Appendix — Berend v. Florida

‘Utiee-supreme Soot, USD

FIL»

be a S tT ie

‘No. eR : - i Pad 8g W964 -

IN THE

Supreme Court of the Anited States -

October Term, 1963

UNITED STATES OF AMERICA ex rel.

SAMUEL TITO WILLIAMS,

- + . Respondent,

| _ - —against— ;

EDWIN M. FAY, Warden of Greenhaven Prison,

Stormville, New York,

: Petitioner.

> ‘ a . ° =

APPENDIX TO PETITION FOR A

WRIT OF CERTIORARI

ES

¢

Epwarp S. Sriver

- District Attorney

Kings County

Attorney for Petitioner

Wim I. Sree.

Assistant District Attorney —

Of Counsel

o

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Case Paess Inc, 421 Hudson St.. N. ¥.—ORegon 5-4540 ©

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_: - c., 42

3 _° Tigges

ria INDEX

Judgment of the United States Court of Appeals in

“and for the Seeond Cireuit dated October 4, 1963 “ F

Reversing Order of United-States District Court

for the Southern District of New York, dated

November 8,4962 ..... fase eae = ee ret eee Ae

Opinions of the United States Court of Appeals in

and for the Seeond Cireuit dated October 4, 16.5

Opinion of the United States Distriet Court ioe the

Southern District dated November 8, 1962 Deny-

ing and Distnissing Petition for Writ of Habeas.

“Cc — ccaRbE ER EDEN G OMe eee Lae Coes ae

PAGE

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Judgment of the Unitied States Court of Appeals in_

and for the Second Circuit dated October 4, 1963,.

Reversing Order of United States District Court for

the Southern District of New York, dated

‘Movember 8, 1962

UNITED STATES COURT OF APPEALS

For THE Seconp Circvit

Ata Stated Term of the United States Court of -Appeals,

in and for the Scond. Circuit, held at the United States

Courthouse.ii. the City of New York, on the fourth day of

October one thousand nine hundred and sixty-three.

Present : .

How. J. Eowarp Lr mpann, :

a Chief Judac,

Hoy. I. JOSEPH Satu, ;

Circuit Judge,

Hox. Freperick vP. Bryay,

District Judge.

Unxrrep States ex rel. SameelL Tito WiuuiaMs.

Relator-Appellant,

Epwarp M. Fay, Warden, Green Haven Prison. Stormville,

New York, | .

eS. Respéndent-Appellee.

SNM, LAGI? ESS ST

Appeal from the United States Distriet Court for the

_ Southern District of New York.

2a

Judqment of the United States Court of Appeals m and

for. the Second Circuit. dated October 4, 1963, Reversing

Oraer of United States District Court for the Southern

District of New York, dated November 8, 1962

This cause came on to be heard.on the transcript of record

from the United States ‘District “Court for the Southern

District of New York, and was argued by counsel.

UN CONSIDERATION WHERKEOF, it is now hereby ordered,

adjudg d, and decreed that the order of said District Court

be and it hereby is reversed with dires.iops to issue the

writ applied for in accordance with the opinion of this court.

A. Daxter Fvsaro

Clerk

A true copy,

A: Dastet F'vsaro

Clerk. ©

(Sear)

3a °

.

Opinions of the United States Court of Appeals in and

for the Second Circuit dated October 4, 1963

UNITED STATES COURT OF APPEALS

For tHE Secoxp Cumiie

No. 397—Uctober Term, 1063

‘Argued June 18, 1963 "Decided etalon 4, 1963)

Docket No. 27911"

ieee eeuae amen oe

Unirep States or America ex rel, Samuet Tito WituiaMs,

Appellant,

ve

Epwis M. Fay, Warden of Greenhaven Prison, Stormyille, -

New York, |

Respondent-Appellee.

»™

—.

Before:, Lumparv, Chief Judge, Smrru, Cireuit Judge,

and Bryan, District Judge.

Appeal by petitioner, linprisone id for lite under judgment

of New York State Court, from order denying petition for

release on writ of habeas corpus, in the U hited States Dis-

trict Court for th ‘Southern District of New York; Archie

VU. Dawsor, District Judge. 211 F. Supp. 359. |

Reversed.

Pasco M. ‘Sauae Il, New York, N.Y., for appeliant.

William 1. Siegel, Xésistant District Attorney for

Kings County, Brooklyn, New York ¢Edward S. °

Silver, District Attorney for Kings County, on the

brief) for réspondent-appellee. :

4a -

Opinions of the United States Court of Appeals in and,

for the Second Circuit dated October 4, 1963

SoiTH, Circuit J udge.

Relator was eeiabitnd of first degree * murder in the

County Court of Kings County ou January 22, 1948. At his

sentencing on March’2, 1948, the trial judge refused to’:

follow the jury’s recommendation that reiator be senteyced

to life imprisonment, and on the basis of certain ex parte

information, ‘s¢ntenced him to death by electrocution. On ~

direct appeal to the New York Court of Appeals, relator

contended that the confessions he had made that. were intro-

_ duced against.him at the trial had been’ coerced and that

the sentencitig procedure was unconstitutional. The convic-

tion and sentence were affirmed without opinion, People v.

Williams, 298 N.Y. 803, 83 N.E. 24.698 (1949).. The amended.

remittitur acknowledged that the court had upheld the con-.

stitutionality of the New York statutes which permitted

the imposition of a death sentence based on ex parte infor-

mation. People v. Williams, 298 N.Y. 863, 84 N.E. 2d 446

(1949). Relator appealed to the Supreme-Court on this

question alone, and his sentence was affirmed. Williams v. ,

New York, 337 U.S. 241 (1949). However, on November 16,

1949 his sentence. was commuted to life imprisonment by

Governor Thumas E. Dewey. + - ty

The’ second round of court proceedings was initiated by

a petition for a writ of. habeas corpus, filed in the District

Court for tne Northern District of New York, alleging that

the confessions admitted at the trial hac been coerced. This

petition was denied on the merits. United States ex rel.

Williams v, LaYallee, 170 F. Supp. 582 (N.D.N.Y. 1959).-

We -aflirmed on the ground that relator had not yet ex-

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Opinions of thé United States Cour! of Appeals in and

for. the Second Circuyt dated October 4, 1962

hansted his state remedies us required by 28 U.S.C. §.2204,

expressing no opinion on the merits. United. States ex rel.

Williams v. LaVallee, 276 F. 2d 645 (2 Cir. 1960). The

Supreme Court dismissed relator’s appeal, Williams v.

LaValleé, 362 U.S. 637 (1960), and denied certiorari, 364

U.S. 922¢ (1960). The New York Court of Appeals denied

relator’s motion for reargument of the origina! appeal.

People v. Williams, 11 N:Y. 2d 835 (1962), cert. denied 370

U.S. 960° (1962). A writ of coram nobis was denied by the

CountyoCourt of Kings County, relator having pursued this

remedy at our suggestion on the prior appeal: ‘It is clear

that presently existing state. remedie® are now exhausted ;

the State makes ne argument that they are not. 28 U.S.C.

§ 2254; Fay v. Nowa, 372 U.S. 391 (1963). Relator again

brought his petition, this time in the Distriet Court for the

Southern District of New York, and it was again\ denied

on the merits. United States ex rel. W lliams v. Fay, \211- Ik.

Supp. 399 (S.D.N.Y. 1962). He takes this appeal from the

order denying his petition. We conclude that this denial.

was error, that the undisputed facts reveal that relator’s

confessions were the product of coercion as a matter of law,

that the mtroduction of them against him at trial wus a

violation of his right to a trial conducted in accordance

-with the standard of due process of law guaranteed by the

i gurteenth Amendment, and that we must therefore raverse

aud direet that the writ be issued,

The crime for which Williams is now.in prison is the

- slaying of a 15-year old girl during the course o. a birglary.

The intruder beat her over the head with an tron bar, caus-

ing unconsciousness from which she never awakened. Her

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‘Opinions of the United States Court of Appeals in and.

for the Second Circuit dated October 4, 1963

10-year old brother was a witness to the crime ; he was also

struck by the burglar and injured. About 5 months later, -

on September 8, 1947, at 2:30 A.M., relator was arrested |

by the police. ‘He is a Negro, then 18 years old, with no

prior convictions of crime, but with a history of trouble

_ with law enforcement agenéies and social maladjustments.

Apparently he had had some high school education, but the

record does not reveal how much. Relator’s physical con-

dition was poor; he had had rheumatic fever which had

caused a weakened heart (resulting in his early discharge .

from the Navy for medical reasons) and swelling in his legs

causing difficulty in walking.

After the arrest, the police breught w items to the sta-

tion house where, beginning at 3:30 A.M. on September &th,

he was intérrogated continually by relays of police. He was

- . . e. .

yot asked about the crime for which he was eventually |

convicted “ntil about 7:15 P.M. the following evening—

indeed the interrogators were forbidden by their superiors

io do so—but was questioned about other unsolved local ”

crimes.’ At 9:1 P.M., after nearly 18 hours of virtually

continuous interrogation, Williams confessed orally. The

final persuasion was an intimation -by the police that they

would allow him to see his mother, for whom he had already

usked several times, and a chaplain, if he confessed. - Wil-

liams made e further written confession at about 10:00 P.M.

and inculpatory statements at a stenographically-recerded

question-and-answer session with an Assistant: District At-

torney which was not ‘completed until 3:00 A.M.—roughly 24

‘ hour’ after the interrogation had begun. Newspaper re- - d

porters and photographers were also present at this inter-

_e 7a

Opinions of the U nited States Court cf Appeals im and

for the Sec ond Circuil “ated October 4, 1963

view. Here, for the first time, Williams was told in a vague

way of his right to remain silent. He was never advised.

of his right to counsel. Notwithstanding all of hese admis-

_ sions, when ‘finally arraigned the next day, September 9,

ut about 12:30 P.M., some 34 aie, sag his arrest, Williams

pleaded ** Not Guilty.”’ ;

At trial, the variotis confessions and imeulpatory state.

ments Williams had made constituted the only evidence

against him—and the trial court so charged the jury: The

murdered girl’s younger brother was called by the prosecu-

tion and testified that the killer was 4 white man with |

‘*red skin’’ but recanted this the next day, after, appar-

ently. he had been spoken to by. the District Attorney and

some detectives; in any event, the State admitted on de-°

fense cross examiriation of this witness that it was not rely.

‘ing on his testimony. Williams’ defense was a profession

of innocence and an attack on the veracity of the confes

sions. He testified, and not without some corroboration, to

brutal torture by the police which had forced him in despair

to confess falsely. The record leaves the impression that

Williams grossly exaggerated the story of physical abuse.

The police denied anything more than the questioning

which we have summarized, above. We shall make no

further mention of this aspéct of the éaxe for whether or

not disputed quéstions’of fact are closéd to our serutiny ow

this proceeding, see Townsend vy. Sain » 872. U.S. *293, 313,

345 (1963), the undisputed fact > stn ‘coercion under pres

ent standards of due process. The trial judge submitted. -

the issue of the yoluntariness of the confession to the jury,

in, accordance with governing New York law. The guilty

.

_ Opinions of the United States Court of Appeals in-and

for the Second Circuit dated October 4, 1963

- verdict was necessarily a finding thatthe confessions had

. not been coerced. However, the question is not closed by

the jury verdict, as the District Court apparently believed. :

The ultimate fact of coercion is one to be independently

determined by the court on application for a, writ of habeas

‘corpus from the undisputed historical facts if no hearing

has. been had.’ . Haynes v. Washington, 373 U.S. 503

(1963) ; Spano v. New York, 360 U.S. 315 (1959) ; Leyra v.

Denno, 347 U.S. 556 (1954); Ashcraft v. Tennessee, 322°

USS. 143 (1944) ; United States ex rel. Wade v. Jackson, 256

F. 2d 7 (2 Cir.),-cert. denied 357 U.S. 968 (1958). Com-

parison of the circumstances of relator’s detention with

‘the: facts of prior decided cases which have found coffes-

sions to be coerced makes ‘it plain that under governing

law these confessions were not ‘‘the voluntary product of a

free and-unconstrained will’*, Haynes v. Washington, supra

at 514, and that they were therefore inadmissible against

him. at |

In Turner v. Pennsylvania, 338 U.S. 62 (1949), the ac-

- cused was apparently a mature man, who was arrested and

. questioned over a period of 5 days, never more than 6 hours

on any one day. He confessed after a total of about 23

hours questioning—-roughly the same amount as Williams.

It would be mere speculation on our part to try to deter-

‘Our consideration is not foreclosed by the statement of the

Supreme Court on the prior appeal that “appellant was found guilty

after a fairly conducted trial.” Williams v. New York, supra, at 252.

As we pointed out in our prior opinion. “this does not suf{ce to demon-

strate the Supreme Court's consideration of the issue now posed in

light of the parties” silence on the subject and the jurisdictional fact .

that the Supreme Court is restricted to that ground which sustains its

appeal jurisdiction.” .Umited States ex rél. Williams v. LaV allee, supra

at 647. oi,

7

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Opinions of the United States Court of Appeals i in and

for the Second Circuit dated October 4, 1963

mine whether the impact of questioning. is better adapted

to weur down the accused's will to resist when it is spread

over a period of several days, producing a steady avrasion,

or whether a single protracted session with fatigue and de-

Spair increasingly allied with the inquisitor, will more

readily extort a confession... Williams was subject to the lat-

ter, Turner to the former, for about the same-amount of

time. Neither was advised of his right to counsel’ or his

right to remain silent. Moreover, Williams was less able

"to withstand protracted questioning- because of. his poor

health and comparative youth. Turner's confession was

held to have been coerced; Williams presents a situation

at least equally compelling.

In Haley v. Ohio, 332 U.S. 596 (1948), a 15- -year old boy

confessed after 3 hoars questioning when confronted with

false confessions made by alleged accomplices. He was not

advised of his right to counsel and to emain silent until

the signing of the conféssion. Though Williams Was three

years older, he was interrogated four times longer than

‘Haley, ‘likewise not advised of his rights, and the imme-

diate occasion of his confession was likewise an impermis-

sible inducement. The Supreme Court found that Haley’s

confession should have been excluded and the conclusion

. logically extends to Williams as Well. : .

The accused in Spano v. New York. supra, Was 25 years

old, foreign born but with some high school education. He

had surrendered to the polic ‘e on the advi ice of an attorney

whom he had retained. His lawyer also quite wisely ad-

vised him-to remain mute when questioned. - After only §

hours of interrogation, marked by appeals to the accused

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Opinions of the United States Court of Appeals in and

for the Second Circuit dated October 4, 1963

to confess from a childhood friend then on the police force,

Spanc confessed. He had not been allowed to consult with

his attorney, but presumably. was aware of his right to one,

and, specifically had been advised of his right to remain si-

lent, ax Williams bad not been. He had a history of emo-

tional instability, but Williams was" also maladjusted and

considerabiy younger. In finding the confession to have

been the produet of impermissible coercion, the Supreme

Court emphasized the atcused’s fatigue after & hours of

interrogation. If such be the ease, the 24 hours of continuous

interrogation under the more adverse cireumstances that

produced Williams’ confessions can be nothing else than

coercioy. as a matter of law.

In Haynes v. Washinaton., supra. there was no claim of

physicat abuse, deprivation of ‘food or rest, or uninterrupt

ed long periods of questioning. The accused was a mature

individual who had a record of previous contacts with the

poliee. Haynes confessed his crime once to the arresting

officers on the way to the police station, again after 1. hour

“of question’ug that evening, and again during 11. hours of

questioning the next morning. The last confession was

signed that afternoon, 16 hours after arrest. and admitted

in evidence. This confession was hold te have been coerced

through the combination of 4 threat of ‘e ‘ontinued detention

-and the promise that defendant could see his family if he

confessed. This pressure fails far short of that to which

Williams was subjected for a longer period of time, and

with less ability to resist. It wouid be little short of irra.

tional to contend that Haynes’ confession was coerced while

Williams’ was not.

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Opinions of th United States Court of Appeals in and

tor the Second Carcuit dated October 4, 1963

Finally, turning to decisions of this court, although other

cases from the Supreme Court might be noted (see also”

Culombe v. Connecticut, 367 U.S. 568 (1961); Fikes vy. Ala.

hama, 352 U.S. 191 (1957); Malinsky v. New York “324 US,

401 (1945)). we find furthe: corroboration of our conclu-

sion. In United States ex re’. Caminito v. Murphy, 222 F.

Zd 698 (2 Cir.), cert. deniec 50° U.S. 896 (1955). the ae

eused was.an adult with no prior arrests or convietions. He

Was interrogated for five hours, starting three hours after

his arrest, allowed an eight hour rest in an unheated (it was

May, however) and sparsely. furnished cell, then interro

gated anothé# eleven hours until he confessed. Detectives

iasquerading a> witnessed pretended to identify lum. We

held the confession thu- secured from Caminito to be the

produet of eoerction rather thiatie free wall. Adherenee to

thix deeision demands the same conclusion for Williams’

confessions. .

The record of events leading to Williams’ confessions

vields- practically every one of the factors found relevant

hi the cases clleggibove in determining Whether a contession

ha~ been coerced or not. He wa- -ubjected to i long ane

exhausting interrogation by relays of questioner- Perhaps

he did not heid out a- long a- some have, but it was longer

than others were able. Compare ctsheratt vo Tian sser,

supra (36 hours of interrogation) with Spano vo New Yor/.

supra (S hours of interrogation). Moresver. jis Werke

physical condition and rejative youth must form a part of

the cale ulation -of what period of questioning would lave

been, permissible. See Halew v. Ohio. supra. Nor wae hie

advised of his-right to legal*counsel or of his privile we ho,

remain silent. both common factors in many cases. See

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Opinions of the United States Court of Appeals in and |

for the Second Circuit dated October 4, 1963 -

v.85 Lyrner v. Pennsylvania, supra. There was a long delay

in arraignment, demonstrating a callous attitude toward

the legal rights of the accused on the part of the police.

Culombe v. Connecticut, supra. While he was questioned,

Willams was held incommunicado despite his efforts to

see his mother, the natural person to whom. he-would turn,

and it was the veiled promise that this request would be

granted which was.the final inducement toconfession. Sev

flaynes v. Washington, supra. Finally, when at last brought

before a magistrate, he pleaded not guilty, an almost imi-

mediate repudiation of the confession which had been

wrung from him. See Ashcraft v. Tennessee.. supra. A

confession obtained by these methods cannot be introduced

against an accused .consistently with the coristitutional .

guarantee that his life and liberty may not be taken fron:

him without due process of law. Events have made ii

plain that the innoceat as well as the guilty will, on oeca

stun, yield to psy chological pressure expertly applied. To

- protect the innocent the ase of products of such- pressure

must be denied in all eases. While it is the rule stated in

the cases, and most recently reiterated in Haynes vy. Wash-

maton, that the issue of voluntariness is one of ultimate

fact, to be determined from the undisputed historical fact-.

with due weight .given to a verdict on the issue by a jury

which has observed the witnesses, the cases unmistakably

teach that pressures such as those here employ ed require

a ruling of coercion as a matter of law.

We express out appreciation to Pasco M. Bowman II,

counsel assigned to represent Williams on this appeal, for

serviees which have been perfarmed in accordance with the

best traditions o® the bar.

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Opinions of the United States Court of Appeals in and

for the Second Ctrcuit dated October 4, 1963

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Pied ; . * *. - . °

As there was no evidence against Williams dt the trial,

other than the confessions which we now hold’ to have been

inadmissible, a retrial may be unlikely. If, however, tlic

State should desire one 16 years after the crime, it should

- be hdd promptly. We reverse the order appealed from

denying the petition for the, writ and direct that the wrii.-

be issued at once, requiring release of relator unless

promptly retried on the indictment.

‘Order reversed with directions to issue the writ applied

for. : :

Limbarv, Chief Judge—( Joncurring :

Following the mandate of the.Supreme Court expressed

in Haynes v. Washington, 373 U.S. 503 (1963) and earlier

cases discussed in Judge Smith's opinion, we are compelled

to nullify the administration of criminal justice by the

State of New York whereby Samuel’ Titto William- wa

found guilty of murder in the first degree in beating to

death a 15-year old girl who discovered him burglarizing

the bedroom in which she‘and her younger brother were

sleeping. \ reading of the record amply- confirms the

opinion of Mr. Justice Black, expressed when. thi- vase

was before the Supreme Court on another question, that:

The evidenee proved ‘ wholly indefensible murder eom-

mitted by a person engaged in a burglary’’, 377 U.S. 241

at 243 (1949). It ix almost certain that as a result of our

action, taken more than 16 years after the murder, William-

will escape justice for the taking of a life: worse still. he

may be set free to endanger others.

We prohibit New York from using Williams’ confessioy,

because it has been established’ by the Supreme Court that.

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- Oinion. of the Visited Stats Court of Appeals in and*

for the Second Circuit dated October 4, 1963

Williams" right to due pracess at the hands of the state

prohibits the us. of a confession obtained only after =ome

Ts or 19 hours of detention and continuous questioning by

the police. The undisputed circumstances of such deten-

tion and questioning are now considered to be so inherently

coercive as to support by themselves the claim that Wil-

liams’ confession we not voluntary, It follows that the

state may not use the confession in a criminal proceeding.

Cases such as this raise a Very s¢rious question, whether

the states‘are powerless tu make the kind of inquiry whica

will bring te (GStice those who rob at night and murder

their victims leaving no witness who can identify them.

As a judge who must pass upon these eases where- federal

court intervention is sought, | cannot concur withou: point

‘ng out that the courts have.been left to make rulés arui

apply constitutional standards with little, if any. real

cnowledge or guidance regarding the diffieulties which face

the police in solving such crimes in our crowded metro

politan centers. Moreover; Congress and the legislatures

have failed to make appropriate inquiry and statutory pre.

Vision to meet the situation. . : ,

Statistics issued by highly respected agencies of federal,

state and city governments consistentty remind us* thea!

there has been and Continues to be a disturbitig Increase

in erimes of violence, especially in the large cities, and

_ that an increasing percentage of these crimes remains

unsolved and unpinished. Is the increase in crime due in

part to the fact that an increasingly smaller percentage of

~erious erimes ix being solved! Why ix it becoming more

and more difficult to protect the public against such crimex

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pee of the United State « Court of Appeals m and

"for the Second Cirenit dated October 4, 1963

of violence? Is it because it has become more difficult in

recent years to obtain sufficient evidence of guilt? Have

federa&court decisions protecting individual constitutional

. , . *y° ‘ « .

right= made it unduly difficult for law enforeemént agencies !

We should not continue to disregard these similar per-

- tinent problems. No society organized under law would

‘be worthy of the name if it could not afford sdequaté

protection against crimes of violence to its law-abiding

citizens. In the long run no community will tolerate a

situation where its citizens are fearful of going apon the

-treets alone at night, where a knock on the door strike<

terror in detenseless householders and where a citizen

feels that to protect himself and his family he must be

prepared to take the law into his own hands. Before anv

-elf-respecting community permits such a condition to

sevelop it will re-examine its adtainistration of criminal

Justice, and even constitutional sateguards a= the court-

have construed them, lest in the desire to protect indivirinal -

rights the larger and greater right~ of all the people t

he secure iy their persons and in their homes become-

secondary. oe

I~ it not possibie for the states to study and adopt meas

ures which would better protect suspects again<' coercive.

and improper police conduct during detention? and at the

-ame time give the police adequate tune and proper mean-

lor investigating serious crimes, partic larly murder?

Here a night prowler entered a backyard sometime. after

1°A.M. on April 20, 1947, armed himself with an iron bar,

foréed open a windew and entered the Graff apartment

of the ground floor of 143 East voth Street in the Browns”

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Opinions of ‘the United States Court of Appeals in and a

for the Segond Circuit: dated October 4, 1963

vilie section of Brooklyn, He was ransacking the bedroom °

when 15-year old Selma Graff woke up and grappled with

him. He took the 2-foot iron bar an! beat her into uncon-.

sciousness; she died a few hours later. Although Selma’:

10-year old brother knew what was happening in the dark- °

‘ened room lie could not identify the assailant. The killer

fled, leaving behind the iron bar, a flashlight wrapped in

orange puper, and a twig torn from a bush in the yard

and used to hold down the window shade.

More than four months after the murder, at 2:30 \.M.

on September 8, 1947,-a police patrol operating about one-

half mile from the Graff neighborhood noticed William-

coming from a back alley off Howard Avenue. » Phe police

had earher been informed that a prowler had been seen

in this vicinity. ‘Since there had been many unsolved rob-

beries in these neighborhoods, as is appareat from .the

rxecord, particularly from cross-examination of Wéilliatn-<

at his trial, and since Williams’ explanation of his presence

on Howard Avenue, was apparently unsatisfactory, the

police took him into eustody and found a pencil flashlight —

‘in his possession,’

’ Williams was specifically questioned bout several robberies a!]

of which he denied. Of course the state had to tread very lightly-on

this subject. For this reason the record is very bare of details regard-

ing the police activifies and matters concerning which Williams was

questioned in the 1lo-hour interva’ between arrest and the time when

reference was first made te the entry of the Graff apartment. The .

district attorney's brief at page 30, speils‘out what the record strongly

hints at: :

_ “Wifflkms was apprehended under suspicion of having com-

es :. mumber of burglaries. The police were occupied during

the daytime hours of September 8th in the investigation of

these burglaries. The sole clue which they had concerning his

commussion of the Graff murder was the orange paper-covered

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"Opinions of the United States Court of Appeals in and

for the Second Circuit dated October 4, 1963

Wiliams was then taken to the apartment where he was

boarding, at 122 Sutter Avenue, where the police apparently .

found in his room numerous articles which supported their

suspicions. Williams had no employment at the time .and

had not been working tor many weeks, The police took him

to a nearby station house where he was questioned by

patrolmen and by detectives. Apparently numerous people

were called to the station house to see whether they could

identify Williams or some gj the object< found in hi-* -

room. This procedure took many hours a: the person<

involved had to be located at home or at their places of

‘ work. It was the strategy of the police—quite understand-

' able under the cireumstances—tirst to question William-

bout other burglaries before asking him. about the entry.

of the Graff apartment, and it Was not until sometime

after 7:00 P.M. that any questions ahont ‘the Selma Graf?

murder were put to Williams.

flashlight. It was therefore not only normal. but excellent,

police procedure to refrain from questioning. him conce ning

the murder until they had other evidence —conclusive evi.

ee dence. —with which to_con‘ront him in relation to the major

crime. This course of sprocedure, however, could not be drs-

closed by the prosecution on the trial,” ate Pa

Cs .

Ot course all the circumstances surrounding the grres. detention

and questioning of Williams, and further investigation and confronta-

*tion relevant thereto. might have been very material on the question

of the reasonableness of Williams’ detention and wht he was not

sooner arraigned. The district attorney could have asked’ the district

- judge to take evidence as to these matters. or the district judge tmght ,

himself Live requested testimony and evidence on this subject. If in

the hight ef our opimons the district e*torney feels that evidence may

stl be adduced to these matters and ‘%l... there is a possibility thar

the result wonld be different. 1. for one. would favor remanding the

case for that purpose, meanwhile withholding decision on the writ

. a

; 18a

Opinions of the United States Court of Appe als in and

for the Second Circuit date d October 4,.1963

The saline now have little or no guide either under New

York law or federal court decisions from which the’ can

determine with any’ safety how long they may detain and

question a suspect under such circumstances WK we find

here. That there was good reason to detaix and question

Williams is abundantly clear. Apyone prowling in aback

alley at 2:00 A.M., with a pencil flashlight, seme distance

from his own home,’ in a neighborhood where numerous”

robberies have been reported, ought to be detained and

questioned. The process of questioning jis futile unless it

can be done in some-privacy, and where all relevant infor-

mation is available, so that the suspect may be confronted

with minimum delay. Such measures are necessary to

apprehend violators and indeed in order to clear suspects

ot suspicion. '

Law enforcement authorities ought to be empowered to

question, to tést, to confront and to identify witnesses and

suspects for some reasonable period of time. Anything less .

than such means.of inquiry would render the police power-

less to protect .he public.

Of course one. who chooses not to speak may not be com-

pelied to do so. However, the fact is that with but rare

exceptions even those with criminal reeords or associations.

usually are willing to answer questions put to them by.

police authorities.” Even answers [am are false or only

I

partly truthful may be of great ue ii the process of

* See. for example, United States v. Bufalino, 285 F. 2d 408 (2

Cir. 1960), Where. of 58 persons wuo were stopped for questioning

about their meeting at Joseph Barbara's estate in Appalachin, New

York, in 1957, only one refused to answer any questions at all. Of the

$8, about 25 had potice records. Ser also United States v. Vita, 294

F. 2d 524 (2 Cir. 1961), cert. denied, 869 U.S. 823 (1962).

i

. | Ae ae ae

Opinions of the Cnited States Court.of Appeals in and ~

‘ for the Sec ond Cc ireuit dated October 4, 1968 |

investigation, just as they are useful in Cross-vxamination "—

upon trials - . .-* L& | ‘ ~~

_ There is nothing immoral or aureisonable in expecting

that many suspects, when confronted with incriminating

evidence, or with someone who identifies them wil. admit

their transgressions. All of the world’s great religions

teach in one form or another that confession is good for the

soul and that by making~confe: sion one’ may be absolved,

in part :.t ledst.* Ever since 42 B.C. it has been a maxim

‘that ‘‘Confession of ‘our faults is the next thing to inno-

ceney.""* A duty to confess is ingrained in all of. us to

some extent, so much so that to many people telling the

truth and **coming clean’ satisfies a basic spiritual need

of one Wwho-has transgressed and provides a measure of re

lief. Nor is it improper or immorak for police officers, under

a duty to solve a crime, to urge a suspect to tell what he

knows. These considerations give strong support to allow

ing law enforcement officers to question a suspect and to

letting him know the ease against him or the matiers need

ing explanation, so that the witness or suspect may explain

if he can. They.may appeal to such person to assist them

in the solution of a crime by ‘elling what he know~ eves:

though he may incriminate himself, The F ifth Amencment

does tieot command that no one shall be asked or permitted

to answer questions “because he might thereby incriminate

himsélf; the Amendment merely prohibits the “government

from compelling arr one to incriminate himself.

* Romeo and Juliet. Sct I]. se. 3. line 56 See also. Psalms 32:5;

ames 5:16:17 John 1:8. ‘ f ;

* Maxim, of Publilius Svrus. No. 1060, Bartlett's Familiar (uota-

tions. 13th ed. 1955, page 4ob

oS

a 4 20a

| Opinions of the United States Court of Appeals in and

for the Second Circuit dated October “4, 1962

. 7 ‘ e ‘

Reasonable means of ‘detention and private interrogation

‘should. pe permitted where, as here, there is probable °

- causé td believe that the person detained has been engag-

ing in cer pegific criminal activity. At the same time

perhaps even this much cough. not #0 be permitted unless

the suspecti'be _protected from undue pressures and,im-

proper treatment. Experierfée has taught us that all too

often we, cannot trust law enforcement agéncies themselves

‘ to be fair judges of what is proper detention and treatmer‘

of persons who dre completely within their power and with-

out means of summoning aid or even-som fe to witness

their situation. Usually the only witness ior the suspect.

is himself. While there is‘good reason to believe that ob-

fectionable third-degree practices are not as widespread

now as they were in 1947 and earlier, it world seem that no

detention or questigning’ beyond, » few hours is desirable

without the supervision of somé independent quasi-judicial

authority.® Obviously: in murder cases and under the cir-

cunistanetes here attendant there would be good. reason for

a yommissioner or magistrate-to authorize further ‘deten-

tiongef a suspect such as Williams, perhaps requiring some

carefg@@record ‘of police activity during continued deten-

tion and even the presence of some appropriate impartial —

observer. ef 7. Nara Oe

Here there is no deni that Williams’ claims of HRatality

and torture were greatly exaggerated. But at the least it is ©

* See New York Code of Criminal Procedure §165, which requirés

that the defendant be taken before the magistrate “without unnecessary

-delay.” Only a few states have statutery provisions which sefjout more

extensive. requirements for arrest procedure. See Warner, The Uni-

form Arrest Act. 28 U. Va. L. Rev: 315 (1942); N.H. Laws, 1941, :

¢. 982; R.1. Pub. Laws, 1941,¢. 103.

o

~

2la . :

Opinions of the United States Cott of Appe als im and —

‘for the Second Ci ‘ire uit dated mane 4, as,

=

difficult to believe that ‘the ioniiaat of the police did not

“yplace him in very real fear of brutality and ill treatment,

sufficient to raise a serious question regarding the volutari-

ness of his confession. It is far safer for society to re--

' solve the doubt in such cases in favor of the detainee and

to bar his confession; without such a rule of ‘law there

would be little or no protection against coerced confessions.

But this doesnot mean that our law enforcement agencies

must remain powerless to make adequate investigations.

In my opinion there is reason to believe that careful ex- -

- ploration of means to reconéile the requirements of due

process$ and the necessity adequately to investigate and

solve an increasing numbet of crimes of violence would *,

produce ‘methods far. more satisfactory’ than those in pres-

ent use. Were the state legislatures. and the Congfess to.

conduct such inquiries and enacb appropriate 1 measures the ©

courts would be under a duty to favor them with a strong

presumption of propriety. and to abstain from substituting

their own unttitored ideas and personal views about what

. is proper and necessary in law enforcement. At least it

would seem that methods worked out by’ the legislative

branch of the government: would be entitled to a fair trial

period. |

My concurrence in our, action. is reluctant for another

reason. Whether or not W illiams is guilty of the charge, of

murder, there is surely grave doubt in view of his record

and past medical history that he should be at liberty and

freé possibly to molest and injure others, to rob. homes and

to assault those who may resist him. I doubt whether New

York State now has ‘available nieans adequately to kafe-

%

»

. . °

Opinions of the United States Court of Appeals inand

for the Second Circuit dated October 4, 1963

guard the public by detaining persons like Williams until

it is reasonably efear that they will not repeat prior infrac:.

tions. There have been altogether too many instances

where unconditional release of a dangerous criminal or a-

person of criminal tendencies has had disastrousconse-

quences to other innocent -law- abiding citizens.. ;

If it is desirable dnd possible to bring any proceeding

to commit Williams*—w hich, of course, must take into ac-

count his history during the 16 years since his arrest in Sep-

tember 1947—it may be that the state should be permitted

—at least so far as possible federal court. intervention is

concerned—to use as évidence Williams’ confessions which

we. have barred the state from using in this criminal pro-

ceeding. If it can be shown that Williams is a disturbed

_ person whose freedom is fraught with danger to others, his

detention in_an- appropriate institution would’ not be for:

the purpose of punishing him for crime. In that case his

detention pursuant to state law would be tg-protect the

public and, indeed,, to protect Williams hi self from -the

consequences of further criminal acts. While the use of

such evidence in a commitment proceeding would be for .

the determination of the New York courts in the first in-

stance, I- know of no specific federal court case holding

which would preclude the state from using Williams’ con-

-fessions to impose restraints on him in state proceedings

which do net seeek criminal sanctions.

6 See New York mini iveten ene Law gg 71 et seq., 87, 121 et seq.”

It is doubtful whether any law enforcement authorities have the power

to institute such proceedings themselves. ‘

~

S

Fi | | . ua 2 - &-

2 * Opinion of the United States Distpict Court for the

Southern District dated November 8, 1962 Denying

and Dismissing Petition\for Writ of Habeas Corpus.

UNITED S TATES DISTRI ‘T Ona

8 SOUTHERN “District or New _York

e 62 Civ. 2428 ;

Aten RE A Nee Oe

ee Oe tats Tite] ‘

ee aN ee ins

L MEMORANDUM ~*

Dawson, D.J.:

This is a petition for a writ of habeas corpus arising out-

of a conviction of first degree murder’ in the Staté of New

York. The petitioner was found guilty of felony murder

by a juryson January 22, 1948 in the County Court ef Kings

' County. Sentence was imposed on March 2, 1948 by County

Court Judge Goldstein who had presided at the trial. Based

upoh probation department reports which disclosed a eritti-

inal background, Judge Goldstein rejected the recommenia-

tion of the jury that the petitioner be. sentenced to lite

imprisonmen and instead im'posed the death sentence, |

The Court of Appeals of New York aftirmed the eonviction

without opinion (People of the State of New York.v, Wil-

luams, 298 N.Y. 803), amended its remittitur (298 N.Y, 865)

and denied motion.for reargument (300 N.Y, 460). The case

then went t6 the United States Supreme, Court on the nar-

TOW issue of Ww hethe ‘rit was constitutional tor a trial judge

to base sentencing upon the report of Witnesses that .the

defendant had not cross-examined or confronted. The Su-.

preme Court rejected the challenge and affirmed the Court

aa

24a

Opinion of the United States. District @Gourt for the ;

Southern District dated November 8, 1962 Denying

and Dismissing Petition for Writ of Habéas Corpus

of if Appeals of New York. Williams v. Peaple of the State o!

New York, 337° U.S. 241. (1949); re hearing denied 337 U.S.

961 and 338 U.S. 841. In November 1949 Governor ‘Dewey

cemmuted the death sentence’ to life imprisonment.

No turther legal action was undertaken until the peti-

tioner filed a petition tor Habeas corpus in 1958 in the

Northern District of New York. United States v. LaValle,

~ 470 F.Supp. 582 (N.D.N.Y. 1959). The petition was opposed

by the State of New York on two grounds : (1) there was

no merit in petitioner's claim and (2) petitioner had failed —

- to exhaust his state remedies.*

Judge Foley rejected the latter argument of the State ot

New York and denied the petition on the merits. A certifi- -

cate of probable cause was granted and petitioner pee .

to the- Court of Appeals, Second € ireuit. 276 Fs 2d 643, (2d —

_ Cir. 1960), ‘The court: did not condider the merifs of ne

cogtroversy but affirmed Judge Foley’s denial of the. peti- . ”

tion on the ground that the prisoner had not exhausted his

state remedies. .

The United States Supreme Court denjed ‘a writ of

certiorari. 364 U.S. 922 (1960). The Court ot Appealé of”

New York then denied petitioner's motion for reargument

of the origina: appeal. 11 N.Y. 2d 888 (1962 ). Petitioner

next sought a writ of certiorari,based on New York’ s failure

to hear reargument. This was likewise denied, 370 U.S

960 (1962). A motion was also made to the Kings € ounty

Court which denied petitioner,’s motion in. the nature of

coram nobis to vacate - judgment.

"+ 7 U.SIC.A. § 2254.

.

ee

= f ed,

Opinion of the United States District Court for the

Southern District dated November 5, 1962 Denying

and Dismissing Petition for Writ of Habeas Corpus

& 3 i

Petiticiie ‘r now brings the. instant petition for a writ of

habeas corpus ahd the State of New York, while oppdsing

the petition on its merits, does not how élaim that the peti-

tioner has failed to exhaust his state remedies.

The question raised by this petition is not a novel one.

It seeks to show that the confession given by the defendant *

and used against him at the trial was coerced and therefore

inadmissible. Petitioner-also claims that there was illegal

- delay. in arraignment and that his lack of counsel at his

first arraignment rendered the entire trial inv alid.

The record of the trial of the petitioner fills two bound

volumes. In addition, there are brieis submitted to the

New York Court of Appeals, including one by the Americaii

Civil Liberties Cnion as amicus curiae in behalf of the peti-

tioner, the transcript of -record filed in the United: States

two petitions for rehearing. Lastly, there are the-affidavits

+ of petitioner and the State of New York.

, In compliance with the opinion of the -U nited States Su-

preme Court in Brown vy, Allen, 344 U.S. 443 (1952), this

court has examined the transcript of the state proceedings.

Since the recordin this instance affords an: adequate op-

portunity to weigh the ,sufficiency of the allegations and

‘ the evidence, there is no necessity for a hegring on the

application for a writ of habeas corpus. Brown vy. Allen.

supra, at page 463. See Application of Jackson, 206 F.

Supp. 759 (S.D.N.Y. 1962), aff’ cM

While much of what transpire‘l is in dispute, certain facts

remain unchallenged. ‘The petitioner was tried for the mur-

_

Supreme Court on appeatand-the opposing -bricts and the

&

>

cy = : e ; , ag

Opinion of the Uwite: States District Court for the

Southern District dated November 8, 1962. Denying

and Dismissing Petition for Writ of Habeas Corpus

der of a fifteen Year old girl which took place on the night °

of April 19, 1947. A burglar entered the premises and began

_ «to rifle the contents of a dresser. The girl, who was asleep,

~ awakened and attacked the prowler. He responded by beat-

ing’ her. over the head. with an iron bar. The. girl n@ver |

regained consciousness and died several hours later in the

hospital. Her younger brother, aged 10, also awoke and

was struck by the burglar as he lay in bed.

In the: following. months a{ number of burglaries took

place in the same section of Brooklyn. The entire area was

under surveillance? by the police for that reason. Petitioner

was taken into ‘eustody on September 8, 1947-in the early -

hours of the morning. He was brought to the police station’

and was 8 kept in custody until his arraignment before a

: “elony Court at: about shoon-on September =

1947. ‘During the 34 hours that the petitioner” was in the

_ enstody of ‘the police he twice eonfessed to the murder.

After extensive questioning petitioner wrote ‘his own long-

hand confession. Then an assistaht district attorney was

summoned, together with a stenographer, and a detailed

statement was taken from petitioner. In the company’ of

‘he police and the assistant district attorney, the petitioner

“Was taken from the station” house to reenact the crime at

the scene. 2 ee:

It is during the period of time ia. the dinitind of the

_ police that the petitioner claims he was unmercifully beaten

and torttired. This was denied by the assistant-district at-

- torney and all the police. officers who took the stand. The

police do not deny that the petitioner went without sleep

.

“

. Ae Oe eo es eet ee

Opinion of the United! States District Court for the

Southern District dated Noventber 8, 1962 Denying

apy ey Petition for Writ of Habeas fOr pus

-

‘for the entire period and. that his consumption of foodNand

drink Was not extensive... ©. ; |

© * Whey the petitioner was first brought to the police sta-

tion hedkas not questioned about the murder. Instead. the

—% police concentrated their questions on the various burgiar-

ies that had taken place i in the néighborhood. -At one poitt

petitioner was takn by automobile to t ‘scenes of various

crimes in the hope that someone could identify him as the

perpetrator.

A

*

- The interrogation concerning the homicide commented

at about 6 shige es September 8, 1947 and a longhand

confession was obtained within about four hours. At ‘this

point the district attorney’s office was called and petitioner :

gave a. detailed afat&aent-at about midnight. =

° . At the trial petitioner took the witness stand and testified

~ , at great length.concerning the alleged police brutality.

P etitioner exhibited to the j jury the br ulses \ and sears Which

he stated ‘remained as a result of the alleged beatings. In

be rebuttal to this contention the police and ‘assistant district

Attorney testified as to the lack of any coercion. F Further,

. there was testimony of of the admittanercterk of the Ray-

_____—_-—nomdt Street jail to to which petitioner was committed follow.

ing his arraignment in Felony Court. According to that

testimony petitioner complained only of swollen leg-

caused by rheumatic fever. There was also testimony ‘by

the jail physician who ‘examined the petitioner and while

he did tind some injuries, offiese were inconsequential when

compared to the torture ‘described by the petitioner. De.

fense°counes! introduced a-series of photographs taken of’

28a :

.

Opinion of the U nied Miittirs District Court for the

‘Southern District dated November &, 1962 Denying

and Dismissing Petitvon for Writ of Habeas Corpus

petitioner, on September 20, 1947. This was a result of a>”

order signed: by Judge Leibowitz of the County Court when

‘petitioner was arraigned in that court on September 12th.

The charge to the jury fully explaimed the applicable

law : \ ‘

-

‘*A confession of a defendant, Whether in the course

ot judicial proceedings or to a: private person can

be given in evidence against him, unless made under— aan

the influence of. fear produced by threats or unless.

made, upon a stipulation of the District Attorney .

-that he shail not be prosecuted therefor; but if is

ngt sufficient to warrant his convittion without addi- a

tional aged that the crime charged has~peen com-——__

mitted . . 3 3

“Tf you ‘detide that such a or sini

was made.as ‘the result of fear induced by threats,

i. duress, 01 violence,-or indueed by unneeessary and

illegal - ‘delay in arraignment, the: confession so ob"

. tained cannot be used against the defendant and is

to be disregarded even if you believe it to be true.

No confession is admissible unless it is voluntary.

Its primary” meaning imports a condition of mind

that.is free and. unconstraihed by fear, or inspired.

* by false hope, or threats or violence, or by illegal .

and unnecéssary delay in arraignment. At any rate,’ ’

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

You must also determine and decide, if you do accept

such confessions and decide that it was made volun-

tarily, whether or not the confessions are true. | a

course, if you decide that the confession» were “trot

Voiuntary or not true, you must acquit the defend-

nt.’ Trial Record, pp. 1143-46. | |

¢

_ the case were satisfied that the. jury had been correctly.

* 29a

a <y

Opinion of the United States District Cour for the -

Southern District dated November 6, 1962 Denying

© and Dismissing Petition for Writ of Habea) Corpus

At the dsibbeanians of this charge two ‘of’ the three counsel ‘

appointed by the court to defend petitioner found no excep: tie

tion to the charge as given. One requested that ‘additional

instruction be given on the “issue: of —, the trial

judge -o Instructed. the-jury. At this point alf counsel in -

instricted on this matter. aoe Vs

The burdeti of proof placed. mpby A petitioner for a.wril

of habeas corpus is set out by. thé United a Supreme

Court in-Brown ¥. Allen, supra‘ bea oo ney aie 5

ff .

‘As the burden of sterturning: the conviction rests

- on, the applicant, Ae, should allege speeifieally, in.

cases Where matefial, the uncontroverted evidentiary

facts appearing in the record upon which is based

his allegatign of denial of constitutional rights."* |

SH U.S. 466, fn. p. 456. “ .- ae

, fe, ‘. , . -

~ The need fbr a lack of conflict on the record wi islagain

pointed out later in the same —

“In determini uu g whether a confession has been used

-by the state jh

ae ©f a petitioner, a United: States court appraises the

alleged abuses by the facts as shown at the hearing

‘or Admitted on the record.’* 344 U.S. £43, at p. 475.

All the State of New York must show in support of its

contention that the petition for a writ of habeas ‘corpus

be denied is that a jury upon correct instructions could

violation of the constitutional rights _

reasonably “find-that the confession was not coerced. This

af

v

30a

Opinion of the United State s District Court ~ the

* Southern District dated November 8, 1962 Denying

and Dismissing Petition for W rit of marenay orem

. be bate

is what the United States —* Court stated in ‘Lyons

., v. Oklahoma, 322 US. 596 (1942) :

‘*Review here deals with circumstances which require

examination into the possibility as to. whether. the

- judge arfd jury in the trial court could reasonably

conclude that the McAlester confession was volun-

tary. The fact that there is evidence which would

justify. a contrary conclusion: is immaterial. To

triers of fact is left the determination of the truth .

.or error of the testimony of the prisoneér-and official

alike ...’’ 322 U.S. 596, at p. 603.

. The issue of coercion .was fairly presented to the jury

under. proper instructions.. The function of a federal court

is not to sit as a super-jury and as such to conclude that

the confessidh was coerced, Stein v. New York, 346 US.

156, 180 (1953). a

- When. the Unite States Supreme Court heard. argument

in this case; it was on the narrow issue of the constitutidn-

ality of the sentencing procedure employed by the State of

New York. in passing’ upon that question the whole record

was ‘apparently read. While the Court was not making-a

determination on the merits, it is significant that Mr. Justice

Black, speaking for the Supreme Court, stated:

‘The narrow contention here makes it unnecessary

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

carefully conducted trial lagfing more than two weeks

in which appellant (Willia yas represented by

three appointed lawyers who conducted his defense

with fidelity and zeal. The evidence proved a wholly

&

‘ j ; ‘ i Bla -

‘Opinion of the United States District Court for the

Southern District dated November &, 1962 Denying

and Dismissing Petition for Writ of — sting

indefensible’ murder committed by a person engaged

ina burglary . . Pig Shin oS |

; e e ee J: ‘

“ Appellant was found guilty after a fairly.conducted

trial...’’ Williams’ v. People ed State of New York,

377 U. S. 241, at pp. 243; 252.

Judge Foley also passed on the merits of the original

petition for habeas corpus and vacated the petition at

that.time. This was not’ technically a determination on the

merits since the Court of Appeals for. the Second Circuit

in affirming the denial did so on the ground that the peti-

lioner had not exhausted his state remedies. Judge Féiey

- summed up his analysis of the record as follows: <=

“To me, this is another example of a sharp dispute

of fact with adequate support in the record for the ;

State to-prevail in its position that’ the confessions

were freely: and voluntarily obtained. Again, I can-

not add up a combination of undisputed factors that

reasonably lead me to the coticlusion that coereion

and intimidation, have been demonstrated with such’

degree of clarity as to sustain this petition and void

the judgment of conviction. .

“Tt is important to. my reasoning and conclusion

that the’ trial ‘of this. petitioner was conducted as —

fairly as any Judge, state or federal, in the’country. -

could conduct it. The charge unequivocally explained

_the law as to coerced and involuntary confessions,

-and instructed the jury specifically’that if they had

* reasonable. doubt as to the voluntariness. of the con-

‘fessions they should’ acquit the defendant. The most

eminent ‘criminal cofinsel assigned by the Courts =

of New York took no exception to the charge, and ©

™“.

°

>

eee

- Opinion of the United Sfates District Court for the

‘Southern District dated November 8,. 1962 Denying ~

and Dismissing Petition for Writ of Habeas Corpus °

tes

the several requests to charge elaborated again upon

the issue of coercion and intimidation and were

charged without hesitation or qualification by the

Judge.’’ United: States v. LaValle, 170 F. Supp. |

582, at pp. 585-86.

It is stipulated by petitioner ii the State of New York

» that petitioner was in the custody ‘of the police for a period

of 34 hour's before his arraignment i Felong Court, The

effect of such delay was passed — in | Brown V. ‘Allen,

— at ‘Page 476:

.

sé

. If the delay in the arraignment of petitioner

wa’ greater than that which’ might be tolerated in a

federal criminal proceeding, due procés’ was not

. violated. Under the jeadership. of this Court a rule”

~—has been adopted for federal courts, that denies ad- _

‘mission to cenfessions obtained before prompt. ar-

raignment notwithstanding their voluntary character.

-McNabb y. United States, 318 U.S. 332; Upshaie v.

United States, 335 UWS. 410. Cf. Allen v. United ~

States, 91 U.S. App. D.C. 197, "202° EF. 24.329. This

experiment has. been made in an attempt,to ‘abolish

- tie opportunities for coercion which prolonged | de-

“tention without a hearing is said to enhance. But

_. the federal rule dovs not: arise from constitutional -

sonrces. The Court has repeatedly refused to convert

this rule of evidence for federal courts into a constitu-

‘* tional limitation on the states. Gallegos v. Nebraska,

.342 U.S. 55, 63-65. Mere detention and police exam-

“ination i in private of one in official state custody do.

- not render involuntary the statements or confessions

made by the person so detained. Petitioner’s con-.

stitutional rights were not-infringed by the refusal .

* oe |

“33a

| rae of the United: States District Court for the-

Southern District dated: November 8: 1962 De nYyiNg —

‘ aad Dismissing Pelition for Writ of Habeas Corpus

\ of the trial court = snide his confessions ps evi-

dence. il j

j

: The trial court in the instant case, how ev er, went beyond |

the dictates ofthe [nited States Supreme Court in chargfng

‘the jury concerning the effect of an illegal” or unnecessary

delay in arraignment.

“You have heard reference “made during the course

_of this trial to the delay in the i sani of the,

° - defendant. Under our law, the defendant must in

all cases be taken before the » Magistrate w itheut un- °°

necessafy delay. .

‘‘No confession ‘is admissible unless it is voluntary.

- Its primary meaning imports a condition of mind

that is free amd unconstrained by fear, or inspired

by false hope, or threats of violence, of by illegal and

unnecessary delay in arraignment.’’ Trial Record, ,

os PP. 1144-46.

Petitioner’s final sontention: concerns his inck of counsel»

‘at the arraignment. The Uifited, States ‘Supreme Court

recently addressed itself to this issue. Hamilton v. Alabama,

- 368 U.S. 52 (1961). The opinion states-that in‘a éapital

case in the State of Alabama an indigent accuses! jx entitled

to appointed counsel at.evesy stage of the -proceeding; in-.

cluding arraignment. The opinion of the Court makes if

clear that the: decision résts in large measure on the law

of Alabama which denies a defendant certain det fenses un+

less’ they are pleaded at the ar raignment; ot

“ Arraignment tinder Alabama law is acer ‘tinal stage

ini a criminal proceeding. It is then’ that the ‘defense

]

=;

Apinion: of the U nited States District Court ie the —

_ Southern District dated November &, 1962 Denying

and Dismissing Petition for Writ of Habeas Corpus

of insanity must be pleaded (15 Ala. Code § 423),

ox the opportunity is lost. Morrell v. Staté, 136 Ala.

44, 34 So. 208. THereafter that plea may not be made

except in. the discretion of the trial judge, and-his

ieee to accept it is ‘not revisahle*on appeal. Rohn .

y. State, 186 Ala: 5, 8, 65 So. 42,. 43, Cf. Garrett: v.

pi 248 Ala. 612, 614-615, 29 So. 2d 8, 9. Pleas in

* abatement must also be made at the time of arraign-

ment. 15 Ala. Code § 279. It-is then that motions’ to

quash.based om sy stematie exclusion of one race from

gtand juries (Reeves v: State, 246 Ala. 476, 88 So. 2d

561), or on the ground that the grand jury was other-

.Wise improperly drawn (Whitehead v. State: 206 Ala.

288, Os - i 351), ‘must ‘be made. ws 368 US. 52, at pp.

53-54. * ae : ee

Under New York procedure petitioner was. arraigned

twice; in Felony Court before a Magistrate and three days

‘later in:C ounty Court. Petitioner admits that at the second

* arraignment he was represented by private counsel hired by»

his mother. and approved of by petitioner. See pages —

740 and 913-929 of. the trial. record.

It is agreed that petitioner was not represented by counsel.

at his firs: arraignment in Felony Court. Petitioner: testi-

fied that at that arraignment he was advised that he had a

right to counsel and a right to communicate with counsel

and with friends and relatives. Petitioner was also advised

that he could secure an adjournment to obtain counse] if he

desired. (Pages 948-959 of the trial record).

The first arraignment in New York is essentially a com-

mitting procedure which allows the.state to anaiee an ac-

35a

- Opinion of the v nited States District Court for the

Southern District dated November 5.71962 De nying

Sy and Dismissing Petition for W be of Habeas Corpus

- cused prior to an indictment being. -handed down." There .

must be some stage where an accused who does not have

‘counsel is advised of his right to sceure one. This was done

at the arraignment in Felony Court. By the time the indict-

-ment was handed down the defendant had had a conference

with his private attorney. (Trial record, page 919).

This*first arraignment is not ‘‘a critical stage in a crim-

inal proceeding.’ * No defenses are waived by a failure to

plead them at this stage i in the proceedings. Since petitioner

Was assisted by counsel at his second arraignment his con-

stitutional rights were not abridged and his conv iction must

be upheld. .

The petition for habeas corpus is denied. The papers °

herein shall be filed Without the usual requirement for the

prepayment .of fees. A- certificate of probable catise is

hereby granted to allow petitioner to review this decision

in the Court of Appeals, Second Circuit. The bound volumes

furnished by the District Attorney of Kings ‘County shall

be returned to him to be supplied to the Court of Appeals

if review of this wee taken by the ——

So ordered.

Dated: New York, N: Y.

_ November 8, 1962 _ o

nth ee ee ee oe a a ee a en ee

U.S.D.J.