# Appendix — Berend v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1459%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1964 - **Citation:** 376 U.S. 915 ## Text ‘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 *e a Case Paess Inc, 421 Hudson St.. N. ¥.—ORegon 5-4540 © ——————————————————— _: - 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 la . 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- ba 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 i x i ‘6a ‘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 . a 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 10a 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. lia ? 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 12a 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. « 1Za > Opinions of the United States Court of Appeals in and for the Second Ctrcuit dated October 4, 1963 - 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. e léa - 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 lda 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 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1459%3A3. Public record. Not legal advice.