Petition for Writ of Certiorari — Berend v. Florida

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- IN THE |

Supreme Court of the United States: os

October. Term, 198° a

_ UNITED STATES OF AMERICA ex rel.

SAMUEL TITO WILLIAMS, eee ae (—

‘Respondent,

—against—

EDWIN M. FAY, Warden of Greenhaven Prison, .

; Stormville, New ¥ork, '

* aa mae ~ Petitioner.

ee ———

———

PETITION FOR A WRIT! OF > CERTIORARI TO THE

- UNITED STATES COURT OF APPEALS FOR THE——

a CIRCUIT

s.” _ Epwarp S. Siiver . mate

; {District Attorney, Kings County.

Attorney for Petitioner

—

WruuM I. SIEGEL

Assistant District Attorney —

Of Counsel

EE J

Ge 32 . Case Passs Inc., 421 Hudson St., N. ¥.--ORegon $-4540

‘ INDEX

PE og WN ccc rceskavcseenacsce's f Sea we sears

“~~ Opinions Below .............. fe, Senne pep error

$ Jurisdiction ......,..... ‘xewn (ey se cuke ene :

re Presented .. Siete teen ners epee eeeeeees

‘Applicable Constitutional and Statutory Provisions

es oe

Record Facts Material to the Question Presented ..

_ The People’s Case ............... ree aaa

Defense ............. Be ir E EEO eee heae

People’s Rebuttal ..... saiken ear exsexs ee

The Court ’s Charge :....... reas fot Ssuasacs

— Proceedings i in the New York Court of —

ARGUMENT:

Pornt 1—The petition for thei rit of habeas corpus

was pronerly denied on the merits, Respondent

ore. failed to sustain the burden of proof cast upon

him by law a ULSEVREHES LAME EATS CRO ORDER OSES

codeoes —-Concivston RRESEL Pena Ero Ne haem aaa

| AurHorrries Crrep

Cases :

Ashcraft v. Piasiiasie, 322 U. Ss. 143 eataekew wey sears

Browr v. Allen, 344 U. ME. eee aye ewin

18-

“ii 2

PAGE

~— Culombe. v. Conneetieut, 367 U.S. 568 .......... ak 26

Darr.v. Burford, 339 U.S. OF éxeccawrsies ebhws ilies 3-4 |

Ex Parte Hawk, 321 U.S, 114 uiteeeer: S. 74.

‘Haley v. Ohio, 332 i; epee Re pe RD iis -24

Haynes vy. ‘Washington, Be ee eee 24

Leyra v. Denno, 347 U.S. 556... 2... oe. : 7 > 24

Lyons v. Oklahoma, 322 U.S. 596, 88 L. Ed: 1481 ....:° °17 |

Malinski v. New York, 324 U,S. 401 ..-.....2%. vee ae 28

Spano v. New York, 360 U.S. 315 .. Sa Saami om pekeaes a

Stein v. New York, 346.U.S. 156 ...-..........020.7 19, 24°

Townsend v. Sain, 372 U.S 293 Sc oeereceeetienei 22.

Tnrner v. Pennsy Ivania, 338 U.S. 62 .6:......3.. ae 24

: ‘United States v. LaVallee, 170F. Supp. oes eagaene: ae

United States v. LaVallee, 276 F. 2d 645 ..... ee.

United ‘States ex rel. Wade v, Jacksony 256 F. 2d 7,

cert. den: 357 U.S. 908 ......... Dea Cews Minawaeek * ~

United States ex rel. Caminito v. Murplty, 222 F.2d

698, cert. den. 350 U.S. a EET TEE whewbedececus _ 24

Ww atts v. Indiana, 338 bos SPOR hale MOINS 29

Williams vy. State’ of New York, 337 if on ‘oe.

ane New York Statutes

Constitution of the Statesof New York ; sine

Article 1, Section 6 ............ wecekesuieds ~ ae

Article’ VI, Section PG ee aug a a Sa re apa de es 18

Code Crim. Pro.: es e

OG; Bees aercn ‘ous DARD RS sehpserveseseeness OSE

UM sic a 6.

Section 482 ..... 1S GAR cANaae A eeae Reed ees Cs 2,18

Penal Law, Sections 1644, 1045 and 1045-a ......... 2,18

Gili

. ° _ PAGE

‘United States Constitution.

Fourteenth Amendment nny gee De oe ioe ee 2, 5,.18

United States Statutes in

28 U.S.C. Eh eat iter Ananer 2

28 U.S.C. ‘mae 7 eae ee 5

se lay shee Pe as eek 5

¢ | Rules :

‘Rule 22. of Revised Rules, of Supreme Court . seseee = 5

i - 7 . vA

bd re °

4 ee

ff . , , |

kf an aii

‘IN THE .

_ Supreme Court nf the Anited States .

ete October aaa 1963.

—_*

* Unitep Srates oF AMERica ex rel. -

SamMveL Fito Wixuiams, a

a Sree Bled Tae Respondent,

—against— :

Epwis M. Fay, Warden of Greenhaven Prison,

e Stormvilie, New York, °

; Petitioner,

—_*

. @

PETITION FOR A WRIT OF CERTIORARI TO THE

"UNITED STATES COURT OF APPEALS FOR THE

: "., SECOND CIRCUIT”

To the Honorable, the, Chief Sistine of the United ‘States

and the A ssociate Justices. of the Supreme Court ‘of

the U ‘mited States:

,“Epwix M. Fay, Warden of Greenhaven Prison, Storm-

Vv ihe, New York, respectfully: prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals. for the Second Cireuit entered on November 18th,

1963 reversing the denial of an application for a writ of

habeas ssa dae

History

_ The judgment ‘to which the petition for the writ was ad-

dressed was entered in the County C ourt of Kings*County,

+ @

- bt

New York, on March 2, 1948. By, it respondent was con-

‘victed of the crime of. Murder in the First ‘Degree eom-

mitted during a burglary in the’ killing of Selma Graff, -a

fifteen year old girl. The trial Court disregarded the jury’s .

recommendation of clemepcy meade pursuant to Penal Law,

‘Section 1945-a, and sentenced respondent to be executed.

” The judgment of conviction was unanimously affirmed by

the Court of Appeals (298 N. Y. 803). That Court, how-

ever, certified that in £0 acting it had necessarily passed on

the_colistitutional question that the sentence aud the stat-

_ utes on W hich it was based (Penal aw, Seetions 1044, 1045

and 1045-a and Code Crim. Pro. Section 482) ‘viol: ited the

- Fourteenth Amendment to the Federal Constitution i in that

the Court had imposed ‘the sentence und@r these statfites

’ upon information supplied by persons by whom the accused

had not been confronted and as to whtm he had no oppor-

tunity for cross-examimation or rebuttal.. The Court of

Appeals held that the Constitution had not-been violated.

The Court: thereafter denied re-hearing (300 N. Y. 460).

An appeai based. on this certification was allowed by ‘the

_ Supreme Court ofthe United States pursuant to 38 U.S. C.

1948, Ed. 1257 (2).. The ‘sdle question’ passed uporr. by the |

~ Court was the constitutionality of thé ‘statutes as applied -

-under of ‘utilizing. ex-parte infoymation concerning th

/ ‘

in, the case and the practice of the sentencing Court there “)

? judgment. The Court ba peso the judgment (337.U. S. 241,

93 L. ed. 1337, 6 9 S. Ct, 1079, with an opinion by Black, d.,

Rutledge anid Murphy, JJ. dissenting, re-hear. den. 337

U: S. 961, 69'S. Ct. 1529, 93 L. ed. 1337 and 338 U.S. 841,

71S. Ct. 34, 94 L. ed.{514). Despite the restricted nature.

of the litigation before the Court, Black, J. wrote:.

—

‘ prisonment. OS ee oe : em

—

The arrow: contention here makes it unnecessary

to set_dut the f facts at length. The record shows a

; enretal ‘conducted trial lasting more than two weeks

‘hie! appellant was represented by three ‘ap-

; bated . wyers who conducted ‘his defense with

fidelity-and zeal. The evidence proved a wholly in-

defensible \murder committed by a person —

es oS

in a burgla v

/ De-oppy was found guilty after a fairly conducted

‘ aa

Williams v..State of Yew York: 337 U. S241, a at

pp. 243, : 22. eae

, We shall have. occasion to => to this aiotatin seit ’

_ this petition.

A *

Tite then Governor of tow ‘York Thomas E. Dewey,

s thereffter commuted the sentence of execution. to life im-

Respondent ’s next proceeding’ was to petition the. United’

States District Court for the Northern District of Yew

York for a writ of habeas corpus. The ‘petition was bfsed’

upon a claim of coercion in the procuremeyt of. ‘the confes.

sions introduced ig ev ‘idence upon respondent ‘trial in the

State ourt.

New York oppoked the petition upon awo vrounds.

- Thie first was that because of the fimitatiog: of the issue”

presented to ih Supramé Court in the Tév iew heretofo,.

mentioned to the question. of the constitutionality | of the ¥e1)-

teveing statutes and the sentence imposed thereundey upon.

' respondent,’ he had failed to exhaust his Stateeremedies ol

the issue of coercion, with the réRult. that that queg s{ion “(Was

not properly: before the Distriet Court (Darr Vv: Burford,

2%,

339 U.S. 200; Ex Parte Hawk. a1 US. 114). The peti-

| fion was alse opposed 7 the. merits of the coercion issue,

The District Court, being of the opinion that the eXliaus-

tion requirement could be dispensed with because of respon-

dent’s indigence, passed upon the merits; and, deciding

adversely towhim, issued an order of denial and dismissal

(Foley, D.J., U nited States v. LaVallee, 170 F. Supp. 582),

but ‘granting a certificate of, probable cause.

On the appeal, without “ consiile ring the merits of the

controversy the Court of Appeals affirmed the order of the

District Court upon the specific ground ‘that the petitioner

had not exhausted his State remedies. United States v.

LaValltee, 276 F. 2d GAD. ‘ak

¢ The Court denied respondent's motion for rearguyent on

April 25, 1960. Qn: December. 12, 1960 the United States

. Supreme Court denied his petition fer a writ of certiorari

(364. 8.922). Nee

The New York Court of Appeals: denied ‘respondent *s mo- —

tion for reargument of the original _ on March 29,

1962 (11 N. Y, 2d 838) and on June 2%. 1962, the Unitéd

States Supreme Court denied the netitioge forthe writ of

certiorari which he had: presented following the denial -

rearguinent by the New York Court of Appeals (370 U.

Of 0).

The petition for the issuance of the writ of habeas cor-

pus, from the denial of which the appeal in the Court be-.

low was taken,. then followed, with the resultant order of

the Court of Appeals. for the Second Circuit in reversal,

which is the subject ef the present petition. .

.¢

Opinions Below

The District Court opinion.is reported in 170 FS oe

The opinions: of the United States Court of Appeals ar

reported in 323 F. 2d 65.

: Jurisdiction

The jurisdictiou of the District Court «as imwolied 6 the

respondent under Title 28, Section 2254, United Seas

ode. The jurisdiction of this Court i invoked by pet

tioner under Title 28, Section 2101 ¢ amd d. Ueeted Seer

Code, and Rule 22 of the Revised Rules of thie Cowrt «>

tive July 1, 1954.

Question Presented

Petitioner contends that the United States Court «° Ap

péals erred in its judgment holding inadmissible in evidemer

confessions made by petitioner to police officials and the

"District Attorney: of Kings County upon the ground that

his right of due process had been violated as a matter of

"law because these confessions were tainted by various ew

ercive practices. It is petitioner’s contention that the eon-

fessions w ere voluntarily made and, therefore, constitution~

ally admissile in evidence against petitioner.

Applicable Constitutional and Statutory: Provisions

(1) Constitution: of the United States, Fourteenth

Amendment, Section 1: aoe

Aes Nor shall any State deprive any person of

on ee liberty or oe without due sian ahaa

sa sla ih

( Dnstitution of “a State of Ne Ww Tork, Artic le 1,

Section 6:

' * * * Nor shall.he be compelled in any-criminal |

Case to be «a witness against himself; ,

'* * * No person shall be deprived of Jife, liberty,

‘oh of ©reminal Procedure of the State of New

*) See 236

\ oateessee of defendant, when evidence, and its

S -omteeseee of a defendant, whether in the course

| (lesa! preeeedings or to a private person, can

orem & evedenee against him, unless made under

atfereee ef fear produced by threats, or unless

ce Gpee « stipalation of the District Attorney

tee ee ofall net be prosecuted therefor; but is not

-afeccet te warrant his conviction, without addi-

tomel pree! that the crime charged has béen com-

i a

hee 16

‘Defendant, upon arrest, to be taken before Magis-_

trate 7

The defendant must in all cases be itis before the

Magistrate without unnecessary delay; and he may

give bail at any "hour uf the day « or night. ay

Record Facts Material to the Question Presented

The People’s Case ©

Pavia Grarr, mother of the deceased girl, described the

wounded condition of her daughter ia A when she was

_ * Keferences are to folios in the case on’ appeal in the New York

Court of Appeals, a copy of which will be made available tothe

Court il desired.

—

which the assault took place ‘*was rather dark’* (340).

‘

discovered upon the mother’s return home late in the night

of April 19, 1948. Later that month while confronting ap-

~ pellant, she asked him ‘* Why ae you kill her?” (176) and

he answered ‘‘] didn‘t mean it.’

DoxaLtp Grarr, the ten year old brother of the deceased

(253), was awakened from his sleep by his sister’s outery

ans] saw a man assaulting her (266). The assailant’ also

struck the boy. (269) who suffered major skui! lacerations -

(436). He described the man as “probably in his twenties’’

(278) whose head he was abie to see (302) : ‘but he did not

specifically identify appellant. Cross-examination dis-

closed that he had previously told the police that the assail:

ant was a white¢man (308). (Respondent is a Negro). The

young witness wore glasses and had been treated with

respect to his eye sight (330). The s e ‘lighting in the

- . +: . " .

apartment was in the adjacent foyer and the bedroom in

However, the jury were left widen no misapprehension

concerning the lack of probative value in the boy's testi-

mony by the trial prosecutor’s statement that ‘* * * * there

is no contention by the People that this witness can iden-

tify this defendant or that he ever has”’ (398).

-PatroLMan ALEXANDER S. Kuivcenr, the first officer. at the

Graff home,.made a search* of the rear yard and there

found a flashlight ( 450). .The police also discovered atwig .

from a tree, or bush, which had been used to hold down the

window shade in a bedroom adjacent to that slept.in by

the dece vased girl and her brother (468). In a nearby yard,

they found an iron bar (485). The flashlight head was cov-__

ered by a piece of paper -(514). ‘The bar had on it hair

Nie

: resembling that of the dece ased girl (521) and the tw ig was

‘similar to ‘that from the lilae bush i in the rear ot the Graff

home (543)., A °

Derecrive Rocer Rooney first spoke to respondent in the

afternoon of September 8 (569) and then again in the early’

evening beginning at about 7:00 o’clock. (He had seen re-

spondent in the precinct about 9:60 o’clock that morning’

(636)). They were then in the police precinct. (The con-

versation between them was given im evidence at this point

pursuant to a waiver by defense counsel of a premiminary

voir dire: and a reservation of their right to move later

in the case to strike out any confession. )

Its substance follows : About 11 0’elock in the ¢ evening of.

April 19th, respondent after drinking some liquor and smok-

ing a marijuana cigarette (584) and finding himself pen-

niless, decided to burglarize some premises. He had with

him a flashlight around whose bulb fe placed a piece of an

orange wrapper. After inspecting various premises, he

came to one ‘the Graffs)-which he decided ‘to enter by

means of an iron bar which he had found in the yard (586).

He did so; and when inside, pulled down the window shade

and fastened it with a piece of wood (the twig) which he

had found in the yard (588). After searching the bureau

drawers of that room, he went into an adjacent bedroom

where, w hile searching the dresser drawers, he was struck

by a gir! whom he.in turn struck (590). many times. ,-As he

was leaving, he observed ‘‘a little man getting up ‘out of

‘another bed’’ and struck him 4lso.. He did not realize that

he had killed the girl until he read‘the next-morning news-

paper accounts (592). He then noticed blood stains on his

shoes, and being unsatisfied with his attempts to remove

them, threw the shoes away in a rubbish can (093).

> . : : 9

Respondent idmitted the ownership of the flashlight which

had been found in the yard (596). He was certain of its

identity because of the orange colored paper inside the

glass.

The only person present with Detective Rooney dsiring

the foregoing. conversation. was Police Captajn Sabatino

(599). ,

The oral confession to the detective was supplemented

by respondent’s own handwritten confession in which he

substantialiy restated the incidents of the murder. Present.

. at the time of the writing were Detectives Henry Werner:

and Roger Rooney and Captain Sabatino (606). It was:

written about 10 o'clock on the evening of Monday, Sep-

‘tember 8th (699) by respondent of his own free will. The

District Attorney did not come to the station house until

after this had occurred (700).

es ell

- Rooney's : _evoss-examination” disclosed that respondent

was ‘*booked’* about 6 o’elock in the morning of Tuesday,

Septemh or 9th ,( 640). He had been apprehended at about 3

o’clock on the’ previous morning (643). He was brought

“to the Felony Court on Tuesday alfout 10 o'clock in the

morning and was there arraigned about Noon. after a com:

plaint had been drawn (647). Felony Court - was open

Sunday morning (648), although not Sunday night (651)...

The Felony Court wa alse open Monday morning. Re-

spondent was given food on Monday ( 659). Rooney s aw no

tmharks of physicai violence on his face (660), except a pur-

plish “color? on his ‘nose (663). He denied burning respon-

dent with a cigarette (668) and he saw no burns on respon-

dent's body (670). Certain biemishes an respondent's legs

disclosed by a photograph were not there when the detec-

tive saw him undressed (671, 678). The detective did not

10.

strike respondent (687) or in any way assault him. He did

hear respondent shout (689). He saw no other person as-

~ sault the prisoner. (690). He did not suggest the details of

“-respondent‘s handwritten confession (717-719).

On re-diréet examination, Rooney clarified the time face

tor with respect to respondent’s confession to the police.

Although he began to talk to the prisoner at about 7:15

P2M. o'clock concernifig the flashlight which ‘had been: found

(820) and did make a reference to the Graff girl (S21), it

was at about 8:45 P.M. that they began to converse defi-

nifely about the killing and between then and 10 6’¢lock.

P.M., respondent made his oral confession “and began to

write out his handwritten confession (821). From 9 o'clock

in the morning (of Septerhber 8, 1947). on, respondent was

proyere with. Sood twice (851) up to 9:30 o'clock in the

Ww hen Rooney arrived in the precinct at 9 o'clock in the-

morning, he was ordered by Captain Sabatino not to ques-

tion the prisoner concerning the Graff killing (So6).: That

order, which he obeyed, was ‘not rescinded until: the

evening.

— Carrary James SapaTIxno arrived at the prec inet about

9 o'clock én the morning of September 8th and remained

‘there until midafternoon (871). He returned about 6:30

and in the evening’ spoke to respondent at about 7 o’vtlock.

‘and intermittently between that time and 9:15 (883). When

he charged Williams with having continuonsly lied during

the day and offered to, grant his request (that his mother

- be sent for) if he would tell the truth, the prisoner agreed

_to, and did, recount the details of the burglary and murder

and his actions. subsequent “thereto (884-897). Captain

11 ;

a“?

Sabatino testified that his first mention to respondent of the

Graff killing was made about 7 o’clock in the evening .

(897). It was le who had ‘issued the order to his subor-

dinates not to talk to the prisoner concerning the Graff

case until later (900). Respondent's mother and stepfather -

were sent for by the police about 2 o'clock in the: after

hoon but did not arrive until the evening (907).

dabatine saw Inat ks on respondent s face 1 Nowa

" not ~ee any burns on his body.” He not'strike the pris-

- -oner, ‘tor aia. he see anyone do so (915).° * :

At, Ou re pido examination, Sabatino testified that as the

.. morting wore on, he noticed that respondent had “difficulty

with his fegs (1049). Upon inquiry, respondent told him that

pe Te

he suffered frou: rheumatit fever and asked that a detective,

be sent to his home to procure medicine which he had there.

‘The detectives were unsuccessful in their quest for it.

— Joun J. Canevari, the District Attorney's stenographer

verified the accuracy of a typewritten transeript of the cen-

fession made by respondent to Assistant District Attorney

Perlman on September 9, 1947 beginning about 12:40 A. M.

in the. presence of seven police officers: of varying rank

(1245-1386). During the progress of the questioning, re-

~pondent went with Mr. Perlman and police officials to vari-—

ous points which he had mentioned as part of his itinerary

on the evening ents (1545. 1350, 135s) and finally

10 Lhe escene of the mu 41367). The: confession con-

tuined+a detailed statement of the murder. committed dur-

‘ ing the burglary, including tbe use of the flashlight, the

twig, the iron bar, and finally, the killing (1312). It is to

be noted that the fact’ of the killing was confessed ‘before

the trip of reenactment began (13845). :

Canevari denied under cross-examination that, he. had

been instructed by Mr. Perlman not to take down certain

** off the record’’ matters (1400).

[Irvine Levine, Selma Graff’s brother -in-law, heard his

‘mother-in-law ask respondent ‘*Why did you kill her?” and

‘ his answer: a didn’t niean to; I didn’t mean af kill her te

(1454).

Assistant. District ATTORNEY Wituiam S. PERLMAN ar-

rived at the police precinct about midnight of September

3B, 1947 (1608) and after talking with Capt. Sabatino for a

_ whilegjirectéd that’ The District Attorney stendgrapher be

| sent for. He took respondent's confession stenographically

and tnen procured ‘respondent's consent to accompany him

to the scene of the homicide (1616). He had ‘promised res- —

pondent an opportunity to see his mother before she read

. newspaper accounts of the crime (1617). On the w ay to the

Ciraff home, they traversed Williams’ itinerary of thfe mur-

der evening (1619 seq.), and in the home, respondent re-

enacted the homicide (1643: 1646). When they returned to

the precinet, Mr. ‘Perlman had food sent in for Williams

(1647). He asked the prisoner about the limp which he

~ observed and was told that it was due to- rheumatic fever

‘(1653). Mr, Perlman had also obse: ved a discoloration of

the left eye and a slight swelling of the cheek bone (1658).

When William’s mother arrived, the prisoner told ker of .

the killing (1665) but denied an intent to perpetrate it.

Mr. Perlman had also heard Mrs. Graft ask ‘*Why did

‘you kill my Selma ?’’, (167 2) and respondent’s- answer ‘‘I

didn’t mean to do it.’’

Mr. Perlman’s eross-examination disclosed that.while he -

had not asked the prisoner if he had been beaten or other-

a. ' Aa

sme"? (1886).

wise mistreated, the prisoner had .made_ no. complaints of

such expericneés (1706). Any omissions from the record

of questions and answers were-on matters which Mr. Perl-

‘man did not deem to be important and occurred after the

fuil confession had been made (1725). He took respondeént’s

confession without first having seen the written confession

to the police (1750). The questions and answers concern-

ing the.crime itself were taken ‘‘just as you have it on the

record’? (1732).

’ Mr. Perlman denied that he had decided ‘what would

be in the statement and what would not be in the state-~

ment’? (1760). Any omissions from ‘the record came only

during the trip’ about the neighborhood and the’ reeniact-

ment of the trime (1807-1811): The mark which Mr. Perl-

man observed on respondent’s right arm did not appear ** to:

have anything to do with a cigarette. It appeared very-

natural and normal, something on his skin, his body; the.

back of his skin, his flesh. That’s the way it appeared to

‘The Defense Ae ”

SamveL Tito Wiiuiams, eighteen years of age, testified

in his own behalf (2043). After a recital of his personal

history not here. material, he. testified to the faet of his

arrest at about 3 A.M. on September 8th (2066) and his

_ treatment by the-police in the station house from the time

ot his arrival there (2072-2197). This included blows on,

many parts of his head and body, some with a rubber hose

(2142) tothe point where he was reduced te uncons¢ious-

ness several times (2143). He was burned with lighted,

cigarettes (2172). The fear which this treatment induced

o tt

”

in him (2: 225), together with the. lack ot food pa sleep

(2150) and these expefirnces,—and these experiences

alone,—compelled him to make the contessfon suygested

to him by the police gn the District Attorney (2265).

Respondent ’s recital of the brutalities practiced upon him

constituted’a veritable cajegory of horror. We do not detail -

the elements of this narrative because of our confidence that

under well established law, hereinafter to be dwelt upon,

governing the action of this Court, the issue is not here

open. For the same reason we do not refer to his cross-

examination, which the jury rightfully accepted as sufficient ;

to disentitle his defense to erédence. ©

‘Dr. Frank Levine, physician at the Brooklyn City Prison i

(2664) testified to respondent’s condition at the time of his

medical examination. It is important to note that the ex-

amination was not made until September 11, 1947, two days

after respondent’ s commitment to that institution. The pris-

ier then showed a sprain of the left ankle with ‘‘a little

knob on the outer side of the-ankle and abrasions on the

-right shin; also a small circular burn on the back of the

left wrist; crushed abrasion on the back of- the neck’’

(2667). .A second examination made two months later, on

November 12, 1947, showed other slight marks which ‘re-

spondent elaimed to have been the result of burns *‘received

prior to admission’’ (2668). It is equally important to note °

that although the physician was i.. the jail at the time of

respondent’ s admission on Septembe r 9th, he made no com-

plaint on that or on the following day (2674), although the

dostor was present in the institution and, available to pris-

oners: (2677). Dr. Levine testified under cross-examination

that these marks were al! located on portions of respond-

. .

Oe eee

ent’s body which could be reaclied ‘with his own hand” -

(2689). The swelling of the ankle might also be. caused by

a chronic condition of rheumatic fever (2694).

Lawrence J. Knrircer, respondent's attorney during the

early stages of the proceeding (2738), observed his condi-

tion on September 12, 1947. He too saw the marks on the

legs, arms (2742), temple, ‘neck (2744) and swelling and

discoloration of an eye (2745). At réspondent’s request, he

conveyed a complaint concerning these matters to Judge

Leibowitz (2748) before whom, respondent had been ar-

raigned that morning (2738).

| People’s Rebuttal

~Derectives ‘RaymMoxp CULLEN (2948), Henry Were

(2973); Deputy Cuter Inspector Patrick F. Kenny (2985),

Caprain JAMES Sabatino (2990), Detectives Perer J. Warp

(3001 ) and Rocer Rooxry (3004) and PatrrouMan JosEPH

De Vivo (3029), all testified in rebuttal that neither they

nor any one in their presence had subjected respondent to

either force or ‘threats.

Morris W ALLEN, a Correction Officer assigned, to the

receiving room of the Brooklyn City Prison. (3033), was

on duty when Williams was admitted to the prison. He

asked Williams at the time if he was hurt in any way or

wished to see'a doctor. The only complaint made was of a

swelling of the legs because of rheumatism (3037) and the

prisoner stated that he did not wish to see a doctor. -He

made no complaints concerning police brutality (3039).

’ The officer had noted these facts: on the prison. records

(3050). { .

“en

Detective Frank De Lorexzo was in contact with re-

spondent. at the time of his arrest at 2: 30 ALM., September

Sth. He then noticed that respondent’ s eyés were e puffed and

discolored a

. The Court’ 5 Saerge

In the aspects of the case germarie to this appeal, the

prial Court charged the jury fully and properly under both

State and Federdl law on the issue of confession (34: 34-

weer 3:

“Our law prov ides that if a police officer fails or

refuses to perform the duty of trraigning ‘a defen-

. dant without unnecessary delay, that he is guilty of

“a misdemeanor. It is for you, gentlerhen, to’ deter-.

mine.ffom the facts in this case whether or not the-

arraignment of the defendant was unnecessarily and

illegally delayed. In determining that question, you

must take into consideration all that transpired be-

’ tween the time the defendant was taken into custédy

and his arraignment.

If, on the basis of all, the facts, you believe there |

_ was.unnecessary and illegal delay, please under-—

. stand, gentlemen, that youare only to consider this.

in connection Pith the question as to whethér or not °

the admissions made by the defendant were to. any

extent induced by such illegaf delay.

If you decide that such confession or admission was

‘made as the result of fear induced by threats, duress,

_or violence, or induced by unnecessary and illegal

delay in arraignment, the confession-or admission

so obtained cannot be used against the defendaint

and is to.be disregarded even if you believe it to be

true. No confession is admissible unless it is volun-

tary. Its. primary meaning imports a condition of -

~ *

e@ “-

mind that is free and unecoustrained by fear, or in-

- ‘spired by false hop or threats or violence, or by’

illegal and unnecessary delay in arraigninent. At

any rate, it is a question of fact for you, the. jury, to.

determine. You also must determine and decide, if

_you do accept stich cénfessions and deciile that it ,

-. was made voliqitarily, whether or not the confes-

sions are true. Of course, if you decide that thé.con-

fessions were not voluntary or not true, you must .

acquit the defendant.” ’? (Italics ours) ¢ -

~ The C ourt clearly summarized the testimony of the Peo-

ple and of the defendant’on these issues (3437-3474).

It is notable that when the trial ¢ ‘ourt asked if there w sie

any requests or exceptions, respondent’ 8 eminent and ex-

perienced trial counsel answered, “No exceptions’ > (3491).

Moreover, every orté of counsel’ s requests for iiditional

charggs were granted and. relevant additional instruction

given to the jury (3491-3496), including the charge that

' wilful and unnecessary delay in ae pe constitutes a

misdemeanor for which the offending police officers may

be prosecuted ( 3499). :

‘ ie ae

‘The Supreme Court of the United States has ruled that

it is within the competetice and discretion of State courts

to determine the wording of instructions upon the involun-

tary character of confession ; and if such instructions fairly

raise the question, the’ requirements of due process are.

satisfied (Lyons v. Oklahoma, 322 U.S. 596, 88 L. Ed*® 1481).

Proceedings in the New York Court of Appeals,

On. the appeal from the judgment of conviction respon-

dont?s brief was limited ‘to two points, One was entitled*

‘

’

‘The Confessions were Obtaine di by U nlawful Methods and

were Inadmissible as a MA&tter of Law’’. The Conrt of

Appeals by its unanimous affirmance of the judgment re--

jected this factual claim after its careful serutiny of the

_ entire record pursuant to its constitutional power-in capital

~ eases (New York State Congtitution, Article VI. Section 7).

The second point treated of the contention that both the

stautes (Penal. Law, Sections 1044, 1045, 1045-a and Code

Crim. Pro, Seetion 482), and the practice thereunder of

basing the Court’s rejection of the jury’s s clemency recom-

mendation on ex 7? iftformation, were ‘unconstitutional.

Xsent from the/ ‘brief . was the contention made in the

Cuited States Court of Appeal that respondent’ Ss arraign

* ment in the Kings County Court upon the indictment with-

ie ° ° ° ° : & -

out the benefit“f counsel ‘violated his rights under the Due

Préeess Clause of the Fourteenth Amendment.

ARGUMENT

- . POINT I

The petition for the writ of habens corpus was prop-

erly denied on the merits. Respondent failed to sustain

the burden of proof cast upon him by law.

We have demonstrated in this petition that respondents

contentions in the Federal Courts were identical with his

arguments in the State Court of Appeals, resolving them.

selves into the, assertion that his rights to due proce<s

under the applicable provisions of the Pourteenth Amend-

ment to the Féderal Constitution were. violated. by the ad-”

inission into evidence of the confessions made by him.

aw”

The unanimous affirmance of the judgment of conviction

by the State Court, of Appeals: and the dismissal by the

Federal District € qurt of the petition for a writ of habeas -

cerpus left the respondent with but one recourse in the

Unjted States Court of Appeals’ of which he has availed

ninbett in full measure and with complete success: to cou-

tend that the jury which found him guilty, New: York's

Court of Appeals and the Federal Distriet Court all erred

so completely. in their treatment of his confessions that-

the United States Court of Appeals, sitting in fact as a

jury, must reverse... The persuasiveness of this argument

‘is, of course, shown by the judgment ofthe Court of

Appeals in reversal of the District Court. It is our sub-

mission that the error of this reversal i is patent.

The error.of the Court of Appeals, we submit, is that it

disregards the decision of this Court in Stein v. New York:

346 U.S. 156: *

3 ;

‘*Since these convictions may rest in w hole or in

part upon the confessions, we must consider whether ;

they are a constitutionally permissible foundation

for a. finding of guilt. |

aye iries on which this Court must he satisfied

are: (i) Under what circumstances were the eon-

fessions obtained? (2) Has the use of. the confes-

sions been repugnant to ‘that fundamental fairne<s

essential to the very concept of justice’? Lisenhba

‘ ove € California, 314 U.S. 219, 236,,86 L. od. 166, 179,

“62 S. Ct 280. The first is identical with that liti- .

gated before the trial court, and jury. The. second.

is Within, if not identical with, those questions con-

sidered by the state appellate cour’. As to both ques-

,. tions, we have the identical evidence that was before

ss both state courts: .At the threshold of our inquiry,

therefore, lies the question: What, if any, weight

do we give the verdict: of the jury, the rulings of

the trial judge and the determination of ‘the state

appellate court? 3

Petitioners’ argument here essentially i is that the

conclusions of the New York judges and jurors are

mistaken and that by reweighing the same ev ile

- we, as a super-jury, should find that the confessions.

- were coerced. This misapprehends ourfunctionw ane

scope of review. a a which ‘may be

shared by some state courts-With the resuit that they

feela ‘diminished Sa eguomathility for protect-

ing defendants °

confession cases. +

Of eourse, this Court’ cannot allow itself to be

completely bound’ by state court determination of

any issue essential to decision of a claim ot federal

right, else -federal law, could be frustrated by dis-

torted fact finding. But that dées not mean that we

aive no weight to the decision below, or approach

‘the record de novo or with the latitude of choice

open to some state appellate courts, such ax the

New York Court of Appeals. Mr. Justice Brandeis,

for this Court, long ago warned that the Fourteenth

Amendment. does ‘not, in guaranteeing due process,

assure immunity from: judicial error. Mikwaukce.

Electric R. & Light Co. v. Wisconsin, 952 U.S. 100,

106, 64 L. ed. 476, 480, 40 S. Ct. 306, 10 ALR 892.

It is-only miscarriages of such qrarity and maani-:

tude that they cannot be expected to happen im an

enlightened system of justice, or be tolerated by it

if they do, that cause us to intervene to review, in

the name of the Federal Constitution, the icetaht of

conflicting evidence to support a decision-by a state

court. . ‘

It is common courtroom knowledge that extortion

‘of confessions by ‘third-degree’ methods is charged

falseiy as well as denied falsely. The practical prob.

len is to separate the true from the false. Primarily,

. and j in most cases final, responsibility for determin-

ing contested résts, and must rest, upon state

trial and appellate edurts.

A jury and the tria ener ing local condi-

tions,. close to the s¢ene ‘of events, hearing and

observing the witnesses and parties—have the same

undeniable advantages over any appellate tribunal -

in determining the charge of coercion of a confession

as in determining the main charge of guilt of the

crime. When the issue has been fairly tried and

reviewed. and there is. no indication that constitu-

tional standards of judgment have been disregarded,

we will accord to the state’s own decision great and,

in the absence of impeachment by conceded facts,

. dectstve.respect.’’. (Italies ours.)

‘In the District Court, Dawson, D.J. properly followed the

spirit of this decision in a procedute authorized by this

* Court in Brown v. Allen, 544 U.S. 448. Since respondent

offered no new evidence touching on the issue of voluntari-

ness of the confessions, J udge Dawson decided the question

by careful study of the record on appeal in the State Court.

He accorded’ that record the weight to which this Court

held it to be entitled when in Brown v. Allen, supra, this

Court wrote: | .

‘*So far as weight to be giwen the proceedings in the

Courts of the State is éoncerned, a United States

- District Court, with its familiarity with State prac-

tice is in a favorable position to recognize adequate

State grounds | in denials of relief by said Courts

without opinion. A-fortiori, where the State action

was based on an edeatate State ground, no further

examination is required, unless no State remedy

for the deprivation of Federal constitutional rights

ever. existed (citing cases). Furthermore, where

there ts’ material conflict of fact in the transcripts:

. of evidence as to deprivation of ‘constitutional rights,

the District Court may properly depend ‘upon the

State’s resolutions of the issue. Malinski v. New

York, 324 U.S. 401, 404, 89 L. Ed. 1029, 1032, 65

S. Ct. 781. In other circumstunces, the State stint

cation carries the weight that Federal practice gives

to the conclusion of a Court of last resort of another

jurisdiction on Federal constitutional issues. It is

not res adjudicata.’* (italics ours.)

‘The decisive and serious responsibility of com-

pelling State conformity to the Constitution by

overturning State criminal convictions, should not

be exercised without clear evidence of violation.”

Nor is there any.doubt that he fulfilled his responsibility

by examining the reeord of the trial with meticulous atten-.

tion to every detail. Such care and scrutiny is revealed by

every line of his opinion and justifies his holding that:

‘The issue of coercion was fairly presented to the

jury under proper instructions. The function of a

Federal Court is not to sit as d’super-jury and as

_such to conclude that -the confession was coerced.

Stein v. New York, 346 U.S. 156, 180, 73 S. Ct. 1077,

97 L. ed. 1522 (1953).”

The decision in this Court in Townsend v. Sain, 372 US.

293, casts no doubt upon the propriety of the District

Court's procedure in dismissing the petition for the writ

of habeas corpus on the basis of the State record of trial.

The case at bar involved no one of the six types of State

trials or hearings which this Court thus summarized in

Tow nsend, supra:

**We hold that a Federal Court must grant a evi-

-dentiary hearing to a habeas applicant -under the

following circumstanges: if (1) the merits of the

factual dispute were not resolved in the State hear-

‘ing; (2) the State factual determination is net fairly

supported by the record as a whole; (3) the fact

finding procedure employed by a State Court was

not adequate to afford a full and fair hearing; (4).

there is.a substantial allegation, of newly discovered

evidence ; (5) the material facts were not adequately

developed at the State Court hearing; or (6) for any .

reason it appears that the State trier of fact did

not afford the habeas situa a full and fair fact

hearing.”’

It suffices to say, we submit, that the issue of voluntari-

_ hess of confession was completely developed and resolved

upon the State trial, whose record supports the jury’s de-

termination and on which respondent had ‘‘a full and: fair

fact hearing’. (Certainly no one is a better judge of the

fullness and fairness of the trial than Black, J., see page 4

of this brief.) .

The question presents itself: Why did the Federal Court

of Appeals, .on exactly the same record of trial, reach a

diametrically Opposite result as to the facts?

Put, in another fashion: which reviewers of the facts,—

or more accurately stili, which deciders of the facts,-—were

correct in their conclusions: the seven Judges cof the State

Court of Appeals and the Federal District ‘Judge, or the

three Judges of the United States Court of Appeals?

We do not-even intimate that justice has only a quantita-

tive basis.’ Nevertheless, the adguinistration of the criminal

justice is not a mechanical matter with conclusions mechan-

We aa ;

human judgment; and that being so, the opinions of the

severnd udges of the State Courts and of thé Distyiet™ Suds

were, we submit, entitled to, but did not, receive from the

Federat Court Of Appeals that *‘great and, in the absenve

of impeachment by conceded facts, décisive respect” which

this Court itself feels. bound to give to judgments of State

Courts (Stein Vw Neu' York, supra).

We turn to the two opinions written in the Court below

im order to find the answer to this question.

In the opinion written by Smith, )./., there is acknowl-

edgement that: ~

'**The record leaves the impression that Williams

grossly exaggerated t! e story of phy sical abuse.’

The ultiinate conclusion of the Court rests upon the com-

‘pendium of factors relating to tie length of interrogation,

the delay im arraignment, respondent's repudiation of the

confessions when finally arraigned, his youth and physical

condition, and,—and this seems to have been the strongest

influetice tpon the decision,-the promise to let him see his

‘4mether if the confession was forthcoming.

The opinion by Lumbard, (./. adopts the factors set

forth in the opinion by his brother Judge, as well as the~

analogies: drawn by Smithy (./. with Haynes vy. W ashington,

373 U.S. 503, Spano v. New York, 360 U.S. 315, Leyta ¥.

De nno, 347 US. 396, Ashcraft v. Tennessee, “322-1S, 143,

United States ar rel. Wade v. Jackson, 256 F.2d 7, cert.

den. 357 US. 908, Turner v. Pennsylraniaz 338 US. 62,

Haley v. Ohio, 332 U.S. 596; United States ex rel. Caminito

v. Murphy, 222 F. 2d 698, cert. den. 35 U.S. 896.

_jeally arrived at. In the last analysis, it depends upon -

+ MSO.

ay)

- We do not believe that it would be 0” service to this Court

o> for us to'embark upon an exhaustive analysis of these cases,

accompanied by a point-to-point distinction between each of

them and the case at bar. We content‘ourselves with an

meee oe ANS WET which relies strongly upon the ‘language employed

‘ by Black, Zz “when the ease was first in this Court upon

respondent ‘s appeal fromthe judgment of conviction pur-

suant to certiorari allowed by the Court (337 U.S. 241).

Despite the restricted nature of the litigation then before

the Court, Black, J. wrote:

“*The narrow eontention here gakes it unnecessary

to set gut. the facts at length. The record shows a

carefully conducted trial lasting more than two weeks

in which appellant. was represented by three ap-

pointed lawyers_.who conducted his deferise with

fidelity and zéal The evidence proved a wholly in-

Yofensible murder cominitted by a - rson engaged .

ina burglary pie!

App&thnt was found guilty afte ‘rea tairly conducted

Sui Ae anal -

We do take note of certain spec ‘ific Tactors w hich appear

to have heen deeply involved in the opinion of Smith, C./.

and which we believe disregarded the law on these points as

enuneiated by this Court. These were (1) the delay |

arraignment in violation of New York's Code of € site

condition; (3) the failure to’ advise 1 respondent of his right

_to counsel or of his privilege to remain silent (neither of

which in.a State Court is an obligation of the police or the

prosecutor); (4) the ‘‘veiled promise’ that he would be

permitted to see his mother. With great respect to the

Court below andiits constitutent three members, we submit

that their conclusion, so diametrically opposed to the con-

‘ clusions of the seven Judges of the State Court of Appeals

and of the District Judge, are contrary to the summary

of the law enunciated by this Court, given by Frankfurter,

J.in Culombe v. Connecticut, 367 U.S. 568 in which he wrote: 2

‘*But asking quesfions is not ihe lash or the rack, and

to say that the argument ex necessitate is not the

short answer to every situation in which it is invoked

is not to dismiss it altogether. Due process does, not

.demaiidl of the States, in their administration of the

criminal law, standards of favor tq the accused which

our civilization, in. its most sensitive expression, has

never found it practical to adopt. The principle of

the Indian Evidence Act which excludes all confes-

sions made to the police or by persons while they

are detained by the police has never been accepted

in England or in th’: country. Nor has the principle

of the Scottish cases barring the use in evidence of a:

defendznt's incriminating responses to police ques-

tioning at any time after suspicion has fotused on

him. ‘Rather, this Court (in cases coming here from

the lower federal courts), the courts of England and

of Canada, and the courts of all the States have

agreed in holding permissible the receipt of confes-

sions secured by the questioning of suspects in cus-

tody by crime-detection officials. And, in a long series

of cases, this Court has held that the Fourteenth

Amendment does net prohibit a State from such de-

tention and examination of a suspect as, under all

the circumstances, is found not.to be coercive. See

Lisenba v. California, 314 U.S. 219, 86 L. ed. 166, 62

S. Ct’ 280; Lyons v. Oklahoma, 322 U.S. 596, 88 L. ed.

1481, 64 S. Ct. 208; Gallegos v. Nebraska, 342 U.S.

55, 96 L: ed. 86, 72 S. Ct. 141: Brown v. Allen, 344

U.S. 443, 97 L. ed. 469, 73 S. Ct. 397; Stein v. New

- York, 346 U.S. 156, 184, 97 L. ed..1522, 1542, 73S.

(t. 1077 ; Crooker v. California, 357 U.S. 433, 2 L. ed.

S..

the po

2d 1448; 78 S. Ct. 1287; Cicenia vy. Lagay, 357 U 5.

504,°2 L. ed. 2d 1523, 78 S. Ct. 1297. And see Town-

send v. Burke, 334 U.S. 736, 738, 92 L. ed. 1690, 68

S. Ct. 1252.” : .

He continued:

‘The McNabb Case was an innovation which derived.

from our concern and resportibility for fair modes

of criminal proceeding in the federal courts. The

States, in the large, have not adopted a similar ex-

clusionary principle. And although we adhere un-

reservedly to McNabb for federal criminal cases, we

have not extended its rule to state prosecutions as a

requirement of the Fourteenth.Amendment. Gallegos

* vy. Nebraska, 342 U.S. 55, 63, 64, 96 L. ed. 86, 93, 94,

72 S. Ct..141 (opinion of Reed, J.); Brown v. Allen,

344 U.S. 443, 97 L. ed. 469, 499, 73 S. Ct. 397; Stein

v. New York, 346°U.S. 156, 187, 188, 97 L. ed. 1522.

1544, 1545, 73 S. Ct. 1077; ef. Lyons v. OkMhoma, 322

U.S. 596, 597, 598, 88 L. ed. 1481, 1483, 1484, 64 S. ('t.

1208, note 2; Townsend v. Burke, 334 US. 736, 738,

92 L. ed. 1690,\1692, 68 S. Ct. 1252; Stroble v. Cali-

fornia, 343 U.S. 181, 197, 96 L. ed. 872, 884, 72 S.

_ Ct. 599.

In light of our pact opinions and in: light of the+wide

. divergence of views which men may reasonably

_ maintain concerning the propriety of various police

investigative procedures not involving the employ.

ment of obvious brutality, this mu¢h seems certain:

It is impossible for this Court, in enforcing the Four-

teenth Ame t, to attempt precisely to delimit, or

to sur Nh specific, all-inclusive restrictions,

int}rrogation allowed to state law en-

forcement officers in obtaining confessions. No single

litmus-papey test for constitutionality impermissible

interrogation has been evolved: neither extensive

cross-questioning—deprecated by the Englis% judges; ~

. ae . e

nor undue delay in arraignment—proscribed by Me-

Nabb; nor failure to caution a prisoner—enjoined by

the Judges’ Rulés; nor refusal to permit communi-

cation with friends and legal counsel at stages in the

proceeding when the prisoner is still only a suspect

—prohibited by several state statutes. See Lisenba

‘ v. California, 314 U.S. 219, 86 L. ed. 166, 6%, S. Ct.

280; Crooker v. California, 357 U.S. 433, 2 L. ed.

1448, 78 S. Ct. 1287; Ashdown. Vv, Utah, 337 US. 426,

2 L. ed. 2d 1443, 78 S. Ct. 1354.

fa Each of these: factors, in company - -with all of the

surrounding circumstances—the duration and condi-

tions of detention (if the confessor has been de-_

tainéd), the manifest attitude of the police toward

him, his physical and mental state, the diverse pres-

‘sures which sap or sustain his powers of resistance

and self-control—is relevant. The-ultimate test re- -

mains that which has been the only clearly established

test in Anglo-American courts for two hundred years;.

the test of voluntariness. Is the.confession the proc

uct of an essentially free end unconstrained choice

by its maker? If it is, if he has willed to confess, it |

may be used against him. If it is not, if his will has

been overborne and his capacity for self-determina-

‘tion critically impaired, the use of his confession

offends due process. Rogers v. Richmond, 365 U.S.

“534, 5 L. ed. 2d 760, 81 S. Ct. 735. The line of dis-

tinction is thatat which governing self-direction is

lost and compulsion, of whatever nature or however

infused, propels or helps to propel the confession.”

Even in referring to its own constitutional duty to enforee

obedience to requirements of due process under the Four-

teenth Amendment, this Court has said (Malinski v. New

York, 324 U.S. 401) that:

‘*We must be deeply mindful of the responsibilities

of the States for the enforcement of criminal Jaws,

and exercise with due humility our merely negative

function in subjecting convictions from state courts -

to the very narrow scrutiny which the Due Process

Clause of the Fourteenth Amendment authorizes, si

Ur as Mr. Justice Fr: annturter wrote in Watts v. Sedlann,

338 U.S. 49:

‘*Power of such delicacy and import must, of’ course,

be exercised with greatest forbearance.”’

. ‘We are, we submit, in no sense ov erstating the ‘soukions

when'we say that thé sov ereignty of the states—of utmost

importance under our. Federal ‘structure of government—

should not be infringed, ‘except upon compelling necessity

-and clearest proof; and with proof of stich kind as rests

neither upon inference nor upon the personal w eltanschaung F

of a Judge. With great deference to the ‘Court below % it is

our submission that i in the case at bar, the sov ereignty of

the State. of New York has been thus adv ersely affected.

It i is our prayer therefore, that the writ of certiorari be

alloived in order that the State of New York may in this

Court have an opportunity to right a wrong decision.

‘ ; 30

- CONCLUSION

For all of the foregoing reasons, petitioner respectfully |

prays that this Court-issue a writ of certiorari to the United

States Court of Appeals for the Second Cireuit +> rev lew its

* judgment reversing the denial of respondent’ s ‘application

fora writ of habeas corpus.

Respectf ully Submitted,

f Epwarp S. aia

District Attorney, Kings County

Attorney for Petitioner

Wituum I. Siecen

' Assistant District Attorney \

Of Counsel

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