Petition for Writ of Certiorari — Myers v. Gockley

LIBRARY

SUPREWviE COURT, U. S$

in the Supreme

njted States

Supreme Court, U.S.

FILED

NOV 6. 197)

VER, CLERK

the

No. —— Term, 1971 vd 1 " 627

DAVID N. MYERS, Superintendent State Cor-

rectional Institution, Graterford, Pennsylvania,

VS.

Petitioner

UNITED STATES OF AMERICA ex rel.

EDWIN GOCKLEY

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RoBert L. VANHOOVE,

District

County,

GRANT E. WESNER,

Attorney,

Berks

Deputy District Attorney

for Law,

_ ARTHUR Ep SAYLOr,

Special Assistant District

Attorney,

Attorneys for Petitioner

Court House,

Reading, Pa. 19601

A TN TS A — LT A AARNE RS ATER, 2 RSA TESS STE ASA

Murrelle Printing Co.. Law Printers, Box 100, Sayre, Pa. 18840

TABLE OF CONTENTS

BRIEF FOR PETITIONER:

Petition for Writ of Certiorari ...............

Citations to Opinions Below .................

i eee en erage ba ah we Os Ree

cf es ee

PE Wr TID oh 6 oak oe ieee se seciens

Reasons for Granting the Writ ................

Opinions of the Court of Appeals ........... ae

TABLE OF CITATIONS

' CASEs:

Com. ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.

Ff Sf Eee errr rrr Tree

Com. v. Gockley, 411 Pa. 437, 192 A. 2d 693

Er rT ercrr TS Teter ee re

Com. ex rel. Smith v. Rundle, 433 Pa. 93, 223 A.

ee es PRL ewe emcee

Delaney v. Gladden, 397 F. 2d 17 (9th Cir. 1963)

Jackson v. Denno, 378 U.S. 368 (1964) ........

Mallony v. U. S., 354 U.S. 499 (1957) ........

McNabb v. U. S., 318 U.S. 332 (1943) ........

U. S. ex rel. Gockley v. Myers, 378 F. 2d 398 (3rd

RRR I S ae aee

PAGE

oanaouwnth NS

10

oon COC &

Lo)

Wilkes v. Maroney, 423 Pa. 113, 222 A. 2d 856

SEE SAE RUSDDKR SORA SSC OOo RO Cee ee ae

Wong Sun v. U. S., 371 U.S. 471 (1963) ......

MISCELLANEOUS:

SP SE cc cc cheb nee wnbedn eeetees<bee

ve he eh enee os eu ewen keno ae

Federal Rules of Criminal Sala Rule 5.

Pa. Post Conviction hearing Act, 19 PS. 1180-1

eM erie oi ere edb ivaeosc ao sens none.

Petition for Writ of Certiorari

IN THE SUPREME COURT OF THE UNITED STATES

Term, 1971

No.

David N. Myers, Superintendent, State Correctional

Institution, Graterford, Pennsylvania,

Petitioner

v.

United States of America ex rel. Edwin Gockley

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The Commonwealth of Pennsylvania, by and throug’:

Robert L. VanHoove, District Attorney of Berk- Courxy,

Arthur Ed. Saylor, Special Assistant District Atteruey of

Berks County and Grant E. Wesner, Deputy District At-

iorney for Law of Berks County, prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit entered in

the above entitled case on September 20, 1971.

Opinions Below

CITATIONS TO OPINIONS 3ELOW

The opinion of the United States Court of Appeals

for the Third Circuit was filed on September 20, 1971.

That opinion of His Honor William Hastie, Chief Judge,

together with a dissenting opinion of His Honor Arlin

Adam, Circuit Judge is not yet formally reported, but is

included herein in the Appendix hereto. The opinion of

His Honor Alfred Luongo, Judge of the Eastern District

Court, is reported at 314 F. Supp. 839 (1970).

The opinion cf the Supreme Court of Pennsylvania,

on the direct appeal of petitioner’s conviction, is reported

at 411 Pa. 437, 192 A. 2d 693 (1963). The opinion of the

District Court, denying petition for a writ of habeas corpus

without hearing was filed on October 12, 1964. The

opinion of the United States Court of Appeals for the

Third Circuit, confirming the constitutionality of the

search and seizure, but remanding the case to the District

~ Court for a scaring on the question of waiver by failure

of counsel to object to the admissibility of confessions, is

reported at 378 F. 2d 398 (3 Cir. 1967).

On remand, Luongo, J. found that counsel for Gock-

ley had not deliberately by-passed state procedures and

had not waived the alleged constitutional defects, but that

the state courts should decide the issue of voluntariness.

This discussion is reported at 276 F. Supp. 748 11967). .

The United States Court of Appeals, for the Third Circuit,

sitting en banc, affirmed the District Court as to the

waiver issues, but held that the voluntariness issue should

3

Opinions Below

be decided in the federal system. This decision is re-

ported at 411 F. 2d 216 (1969). Certiorari was denied

on that matter to 396 U.S. 847.

Additional hearing was held by His Honor, Judge

Alfred Luongo, who ruled that the arrest was valid and

that there had been no coercion in the obtaining of the

defendant’s statements. This proceeding is reported at

314 F. Supp. 839 (1970).

The matter of voluntariness, so decided, was ap-

pealed to the United States Court of Appeals, for the

Third Circuit, captioned: United States of America ex rel.

Edwin Gockley, Appellant v. David N. Myers, Superin-

tendent,. State Correctional Institution, Graterford, Penn-

sylvania. The judgment of the United States District

Court, above referred to, was reversed. In addition, that

court ordered the release of the defendant unless, within

a reasonable period to be specified in that court’s order,

the state shall grant the defendant a new triai.

Jurisdiction

JURISDICTION

The judgment ot the United States Court of Appeals

for the Third Circtsit was entered September 20, 1971.

Jurisdiction of the Supreme Court of the United States is

invoked pursuant to 28 U.S.C. 1254.

Questions Presented

QUESTIONS PRESENTED

I. Was the defendant, Edwin Gockley, legally ar-

rested and legally detained?

II. Assuming arguendo that the defendant, Edwin

Gockley, was arrested and detained illegally under Penn-

sylvania law, should his judgment of sentence remain in

full force and effect?

Ill. Were the statements given by the defendant,

Edwin Gockley, to the police free of any coercion as would

compel their suppression?

TV. Should a petition for federal habeas corpus,

based upon a collateral attack on a state criminal convic-

tion be denied where the habeas corpus petition fails to

demonstrate noncompliance in the procedural processes

which are implicit in the concept of ordered liberty or

where petitioner fails to assert his innocence and demon-

strates that the police procedures altered and decreased

the fact finding process, be disraissed?

Statement of the Case

STATEMENT OF THE CASE

Appellant, Edwin W. Gockley, in 1961, was con-

victed of murder in the second degree and sentenced by

the Court of Oyer and Terminer of Berks County to not

less than ten nor more than twenty years imprisonment.

On direct appeal, the conviction was later approved by

the Pennsylvania Supreme Court, Commonwealth v. Gock-

ley, 411 Pa. 437, 192 A. 2d 693 (1963). It is important

to note that the question of the voluntariness of the con-

fessions was not raised before nor considered by the Su-

preme Court of Pennsylvania and the United States Court

of Appeals for the Third Circuit in its opinion filed April

30, 1969, so found.

On August 7, 1964. Gockley filed the instant habeas

corpus petition in which he claimed for the first time that

his constitutional rights were violated in that illegal evi-

against him at his trial. On October 12. 1964. the Dis-

trict Court denied the petition without a hearing. (United

States ex rel. Gocklev v. Myers. Mis. No. 2790 (E.D. Pa.

October 12. 1964) .)

Ox Avpeal, the Third Circuit Court unheld the Dis-

trict Court’s disposition of the search and seizure question

as having heen consented to. but vacated the denial of the

writ and remanded the case to the District Court for a

determination as to whether or not Gockley effectively

waived his right to challenge the admissibility of his state-

ment. (United States ex rel. Gockley v. Mvers, 378 F. 2d

398 (3d Cir. 1967) .)

Statement of the Case

The mandated evidentiary hearing was held and, on

November 28, 1967, the District Court ruled that Gockley

had not waived his right to challenge the admissibility of

his confessions, but nevertheless denied the petition for

writ of habeas corpus and remanded the case to the state

courts to litigate the issue of voluntariness through the

procedures provided by the Pennsylvania Post Conviction

Hearing Act, 19 P.S. 180-1 et seq.

Gockley then took a second appeal to the Third Cir-

cuit Court of Appeals. The appeal was argued before a

panel on September 27, 1968 and reargued before the

court en banc on March 21, 1969. After argument the

Court ruled that, although Gockley had not exhausted

available state remedies, a combination of “unusual cir-

cumstances” permitted the provisions of 28 U.S.C. 2254

and the ruling in Jac%con v. Denno, 378 U.S. 368 (1964),

to be ignored. The judgment of the District Court was

reversed and the cause remanded for a hearing on the

voluntariness of Gockley’s confessions.

The remanded matter was heard before His Honor

Judge Alfred Luongo, who found that the statements in

question were knowingly and voluntarily made. That

decision was appealed and reversed by the Circuit Court

which opinion and dissent is printed herewith as the ap-

pendix and from which decision the present petition for

writ of certiorari is lodged.

Reasons for Granting Writ

REASONS FOR GRANTING THE WRIT

I. In spite of the invalidity of the defendant’s ar-

rest on a charge of forgery, the arresting officer had prob-

able cause to believe that a felony had been committed.

The delay between arrest and hearing, governed by ap-

plicable state law and not Rule 5 of the Federa! Rules of

Criminal Procedure, does not require exclusion of the de-

fendant’s statements. In this regard, your petitioner re-

spectfully invites consideration of the following: Mallony

v. United States, 354 U.S. 499 (1957); McNabb v. United

States, 318 U.S. 332 (1943); Delaney v. Gladden, 397

F. 2d 17, 20 (9th Cir. 1963); Commonwealth ex rel. Fox

v. Maroney, 417 Pa. 308, 207 A. 2d 810 (1965); Wilkes

v. Maroney, 423 Pa. 113, 222 A. 2d 856 (1966), and

Commonwealth ex rel. Smith v. Rundle, 433 Pa. 93, 223

A. 2d 88 (1966).

II. Even though the defendant’s arrest may be con-

sidered illegal, his request for relief does not automatically

follow. He must show that the introduction of a con-

fession is prejudicial to him. He must, in fact, prove

taint, which he has failed to do. The rule of totality of

circumstances applies to taint and time is an element

which did, in fact, reverse the possibility of taint. The

petitioner respectfully invites consideration of the case of

Wong Sun v. United States, 371 U.S. 471 (1963), as au-

thority for the proposition that, notwithstanding the estab-

lishment of a primary illegality, the statements were ob-

tained by means sufficiently distinguishable to be cured

of the taint.

III. All circumstances surrounding the obtaining of

a statemen: or confession must be considered in deciding

whether or not such confession was coerced. Judge

Reasons for Granting Writ

Luongo did, in fact, take such totality cf circumstances

into consideration. He also, being the instrument charged

with determination of fact and the allied question of credi-

bility, put his imprimatur upon the facts. His Honor,

Judge Luongo, simply did not find the defendant a truth-

ful witness. That primary decision on credibility and de-

termination of fact should not be lightly set aside. Judge

Luongo’s imprimatur should stand.

IV. Federal habeas corpus petitions should be re-

stricted to direct attack and should not be permitted as an

appropriate remedy in collateral attack upon state convic-

tions. The rights of the individual are not paramount to

the rights of society. So, too, the rights of society should

not transcend the rights of the individual. In truest sense,

they stand in juxta position, one to the other and neither

should prevail against the other. It may not be quixotic

on either side; rather, it must be a rational whole to strike

a balance between the equities of both. The excessive use

of habeas corpus in collateral attacks has unbalanced the

scale, resting on the rational whose predicate has proved

unfounded. In this regard, the petitioner respectfully in-

vites attention to the dissenting opinion of His Honor,

Arlin Adam, Circuit Judge, generally and more specifical-

ly, in portion IV of said dissent, being included herein as

part of the Appendix.

Respectfully submitted,

RoBert L. VANHOOVE,

District Attorney, Berks County,

GRANT E. WESNER,

Deputy District Attorney for Law,

ARTHUR Ep. SAYLOR,

Special Assistant District Attorney,

Attorneys for Petitioner.

10

Opinions of the Court of Appeals

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 19,209

United States of America ex rel. Edwin Gockley,

Appellant

v.

David N. Mvers, Superintendent, State Correctional

Institution, Graterford, Pennsylvania

Appeal From ihe United States District Court for the

Eastern District of Pennsylvania

Argued March 5, 1971

Before Hastie, Chief Judge, and

Adams and Gibbons, Circuit Judges

OPINION OF THE COURT

(Filed September 20, 1971)

Hastie, Circuit Judge.

to

Appellant Gockley, a state prisoner, is serving a ten

twenty-year term of imprisonment after conviction of

11

Opinions of the Court of Appeals

murder in the second degree of Clement Smith. The con-

viction was affirmed by the Supreme Court of Pennsyl-

vania. Commonwealth v. Gockley, 1953, 411 Pa. 437,

192 A. 2d 693.

In a petition to the district court for habeas corpus

Gockley has alleged that his conviction was unconstitu-

tionally obtained through the use of an involuntary con-

fession extracted while he was under illegal arrest. After

a full hearing the district court held that the questioned

confession was made voluntarily while the accused was

under lawful arrest. Accordingly, the petition was denied.

ED. Pa. 1970, 314 F. Supp. 839. This appeal followed.

We conside: first the circumstances of Gockley’s

arrest as established by the record. Properly concerned

about the March, 1960 disappearance of Mabel Klein, a

local resident, the Reading police sought intermittently for

several months to discover her whereabouts. In August,

hearing that Gockley had been seen working on the Klein

premises, police Captain Feltman questioned him about

the missing woman. He explained that she had gone to

Georgia, that she had left him with a power of attorney

and a contract to make some repairs on her property, and

that she telephoned him periodically. Feltman asked Gock-

ley to bring in for inspection the contract and the power of

attorney. Feltman questioned Gockley again in September

and again asked to see the documents mentioned and re-

quested during the earlier interview. Feltman and Gock-

1 Two earlier appeals to this court in this case were decided

without reaching the merits of the petitioner’s contentions, 1967,

378 F. 2d 398; 1969, 411 F. 2d 216. The involved history of the

litigation is set out in our 1969 opinion.

12

Opinions of the Court of Appeals

ley met again, apparently by chance, in Octcber and Gock-

ley mentioned Clement Smith as a person likely to have

information about Mabel Klein. Upon inquiry, the police

discovered that Smith also had disappeared and learned

that, upon the basis of an authorization purportedly signed

by Smith, his personal effects had been surrendered to

Gockley. On October 31, the police once more asked to

see the power of attorney and the r-pair contract. On

this occasion they accompanied Gockley to his home where

he produced and surrendered two documents, both bear-

ing the purported signature of Mabel Klein. On Novem-

ber 14, Captain Feltman sent the documents to the Fed-

eral Bureau of Investigation in Washington for handwrit-

ing analysis. Expert examination indicated that the signa-

tures probably were not genuine and in December the

documents were returned to Feltman.

In the meantime, on November 16, two days after

the documents had been sent to Washington, a Police-

woman Wanger appeared before a magistrate and exe-

cuted and submitted her affidavit as follows:

“That on information received which affiant,

upon investigation, verily believes to be true that one

EDWIN W. GOCKLEY did fraudulently make, sign,

alter, utter and publish a certain check in the sum

of $200.00, dated March 8, 1960, payable to cash,

and drawn on City Bank and Trust Company of

Reading, Pennsylvania, and did sign the name of

MABEL L. KLEIN to said check, to the preiudice

of said MABEL L. KLEIN and with intent to defraud

the said MABEL L. KLEIN contrary to an Act of

Assembly in such case made and provided.”

13

Opinions of the Court of Appeals

Upon the basis of this affidavit, the magistrate issued a

warrant for Gockley’s arrest for alleged forgery. Subse-

quently, the magistrate testified that he had no revollec-

tion whether he was given any other information than that

set out in the affidavit. The state has offered no proof

that anything more was told to the magistrate.

The district court, appropriately citing Giordenello v.

United States, 1958, 357 U.S. 480, held the warrant in-

valid because it did not appear from the affidavit or other-

wise that the magistrate was supplied with particular facts

from which he could reasonably have reached an inde-

pendent conclusion that there was probable cause to be-

lieve that Gockley had forged the check. in question. We

agree that the present record compels the conclusion that

the arrest warrant was invalid. Cf. Whiteley v. Warden,

decided March 29, 1971, US.

On November 17, a Reading police captain and a

state police officer took Gockley into custody under the

illegal arrest warrant. However, the district court held,

as urged by the appellee, that the arrest was legal because

the police had enough incriminating information to con-

stitute probable cause justifying an arrest without a wart-

rant.

Since Gockley was arrested on a charge of forging a

specified check, our inquiry must be whether the police

had information which would “warrant a man of reason-

able caution in the belief” that he had forged that docu-

ment, Carroll v. United States, 1925, 267 US. 132, 162.

It is not enough that the information at hand sufficed to

arouse suspicion. Henry v. United States, 1959, 361 US.

98, 101.

14 |

Opinions of the Court of Appeals

Certainly Gockley’s statements about the disappear-

ance of Smith and Miss Klein, coupled with the subse-

quent inability of the police to find any confirmation of

his assertions concerning their whereabouts. were suspi-

cious circumstances. So too was his delay in producing

Miss Klein’s ‘power of attorney”. Yet there is nothing to

show that the signatures on the documents he ultimately

produced and surrendered or on the check upon which the

charge of forgery was based were obvious forgeries. In-

deed, the action of the police, some two weeks after Gock-

ley surrendered the document and only two days before

they sought a warrant for his arrest, in sending the power

of attorney to the FBI for report whether or not it seemed

genuine indicates that at the time of the arrest, the police

were merely suspicious of Gockley’s conduct and doubtful

about the authenticity of the documents. Without more

to confirm those proper suspicions we think that the ar-

rest must be characterized as having bezn made without

probable cause.

We conclude that Gockley’s arrest on November 17

and his detention through November 19, the day during

which he niade an incriminating statement concerning

Smith’s disappearance that thereafter was in’ oduced in

evidence against him on a subsequent charge of murdering

Smith, were illegal.

This briags us to the question whether the relation of

the illegal arrest and detention to the’ prisoner’s statement

was such as to make the subsequent use of that statement

as evidence against him a denial of due process of law, re-

gardless of any other coercive circumstances.

In Mapp v. Ohio, 1961, 367 U.S. 643, 655 the Su-

preme Court announced that “aii evidence obtained by

15

Opinions of the Court of Appeals

searches and seizures in violation of the Constitution is,

by that same authority, inadmissible in a state court.”

(italics added.) Two years later, in Wong Sun v. United

States, 1963, 371 U.S. 471, the Court made the admissi-

bility of challenged statements of suspects after their illegal

arrest turn on the question whether the statements had

“been come at by exploitation of the illegality or instead

by means sufficiently distinguishable to be purged of the

primary taint.” 371 US. 488.

Judge, now Chief Judge, Friendly, concurring in

Collins v. Beto, 5th Cir. 1965, 348 F. 2d 823, has pointed

out that Wong Sun involved statements of two accused

persons and that the rationale of the decision is illuyminat-

ed by the Court’s invalidation of the statement of one but

not of the other:

“| Wong Sun prohibits the introduction in a

state criminal trial of a confession that is the result

of an arrest violating the Fourth Amendment, just as

Mapp prohibits the reception of an object obtained

through an unconstitutional search. Where the prob-

lems become different is the less clear causal relation

between the unconstitutional act and the ‘fruit’. When

the police, by a search violating the Fourth Amend- -

ment, seize contraband or overhear a conversation dis-

closing the location of stolen goods, the connection

between the unconstitutional intrusion and the booty

offered at trial is so automatic and inevitable that

the latter is readily seen as the ‘fruit’ of the uncon-

stitutional act. But when the object improperly

seized is a person and the alleged ‘fruit’ is a statement

by him, there intervenes the individual’s own decision

to speak. In Wong Sun itself the causal problems

16

Opinions of the Court of Appeals

vere at the temporal extremes. Toy’s statement which

the Court required to be excluded along with the

narcotics to which it led, came directly after ‘[s]ix or

seven officers had broken the door and followed on

Toy’s heels into the bedroon: where his wife and

child were sleeping’ and ‘fh]e had been almost im-

mediately handcuffed and arrested.’ 371 U.S. at 486,

83 S. Ct. at 416. By contrast, Wong Sun’s statement

held to have been properly admitted despite his un-

lawful arrest, was made after he ‘had been released

on his own recogizance after a lawful arraignment

and had returned voluntarily several days later to

make the statement. . . .’ 371 U.S. at 491, 83 S. Ct.

at 419.” 348 F. 2d at 834-5.

Also illuminating is the more recent case of Davis v.

Mississippi, 1969, 394 U.S. 721, where the question was

whether due process required the exclusion of fingerprints

obtained in booking a prisoner after an illegal arrest. In

excluding such evidence, the Court analogized and af-

firmed the rule of Wong Sun, saying:

“We agree with and adopt the conclusion of the

Court of Appeals for the District of Columbia Circuit

in Bynum y. United States, 104 U.S. App. D.C. 368,

370, 262 F. 2d 465, 467 (1958): °

‘True, fingerprints can be distinguished from

statements given during detention. They can also be

distinguished from articles taken from a prisoner’s

possession. Both similarities and differences of each

type of evidence to end from the others are apparent.

But all three have the decisive common character-

istics of being something of evidentiary value which

! 17

Opinions of the Court of Appeals

the public authorities have caused an arrested person

to yield to them during illegal detention. If one such

product of illegal detention is proscribed, by the

same token all should be proscribed.’ ”’*394 US. at

724.

or “product” of the arrest.

This court has recognized the causal issue that is rele-

vant where a statement is obtained during illegal police

detention following an illegal arrest. In Commonwealth of

Pennsylvania ex rel. Craig v. Maroney, 1965, 348 F. 2d

22, we said:

(b) the intervention of other circumstances sub-

sequent to an illegal arrest which provide a cause so

unrelated to that initial illegality that the acquired

18

Opinions of the Court of Appeals

evidence may not reasonably be said to have been di-

rectly derived from, and thereby tainted by, that il-

legal arrest.” 348 F. 2d at 29.

The arrest of Gockley on November 17 was much

more than a causa sine qua non of his November 19 state-

ment during the resulting detention. The record compels

the conclusion that the very purpose of the arrest on a

charge of forgery was to obtain and maintain such control

over him as would facilitate persistent and effective in-

terrogation about the disappearance of Smith and Miss

Klein. This deliberate misuse of arrest is underscored by

the fact that Gockley was never granted an arraignment

or a bail hearing on the forgery charge. At the hearing in

the district court on this petition for habeas corpus, Cap-

tain Feltman, the Reading police officer who had been in

charge of the Gockley case, was asked why Gockley was

not taken before a magistrate. He replied that he did not

much of the questioning was addressed to the obtaining

of information about the disappearance of Smith and Miss

Klein, rather than the forgery charge upon which he never

was prosecuted.

While Captain Feltman’s several statements in the

record as to the length of the periods of interrogation are

to some extent conflicting, fairly read they show police

interrogation of the prisoner for several hours during the

evening of November 17, shortly after his arrest. He was

questioned again during the day of November 18. And

that night he was questioned from 7:00 or 8:00 p.m. to

11:30 p.m. or 12:15 a.m., depending upon which of Cap-

tain Feltman’s statements of his recollection is accurate.

19

Opinions of the Court of Appeals

During the morning of November 19, the prisoner was

removed from the City Hall lockup to the State Police Bar-

racks outside of the city, admittedly to facilitate question-

ing. Interrogation continued from 11:00 a.m. untii 2:00

p.m. by which time the information incorporated in the

statement bearing that date had been obtained. During

the interrogation of November 19, there was some discus-

sion of counsel. Gockley’s testimony is that he requested

counsel and was told that he could not have counsel until

the police had a sufficient case against him. Captain Felt-

man’s stated recollection was: “I didn’t at no time say I

would see the judges to get him—who am I to sce the

judges to get him a lawyer?”

On the transcripts of the trial and the habeas corpus

hearings, we find the conclusion inescapable that, knowing

they had insufficient evidence to prosecute Gockley, the

police arrested and detained him for the purpose of ques-

tioning him without interruption, at greater length and

more frequently and effectively than could have been done

while he was at large, and thus building a criminal case

against him. And this intended result was achieved. The

“fruit” which the police intended to harvest and did har-

vest from the illegal arrest and detention was the very

statement that is now challenged. That statement was

“directly derived from, and thereby tained by . . . [ Gock-

ley’s] illegal arrest” and detention. See Commonwealth

ex rel. Craig v. Maroney, supra, 348 F. 2d at 29.

In these circumstances, there is no need to inquire

whether the prisoner was forced to talk or merely induced

to do so without coercion beyond that inherent in persistent

interrogation during illegal detention. If the police are

20

Opinions of the Court of Appeals

to be deterred from using illegal arrest and detention as a

means of obtaining self-incriminating statements, evidence

thus obtained must be excluded.

A second statement made by Gockley on December 8

was also introduced in evidence. It purports to be an

amplification and correction of what he said on November

19. Gockley had remained in custody during the inter-

vening period. He had been subjected to further interro-

gation. He had not had access to counsel. Indeed, he had

not communicated with anyone but the police.

True, on the basis of the November 19 statement a

warrant had been issued charging him with murder and

his detention thereafter may be viewed as grounded upon

that charge. But because he never was free to communi-

cate with friends or counsel and made the second state-

ment as an amplification of the first, the invalidating

taint of the first statement infected the second as well.

Both were fruits of the illegal November detention for the

purpose of interrogation.

The dissenting opinion correctly poses the critical

questions in this case: whether Gockley’s arrest was illegal

and, if so, whether his statements to the police were the

“fruits” of such illegal arrest. The record shows without

significant conflict in testimony the facts known to the

police when they arrested Gockley on a charge of forgery.

What divides the court is a difference in judgment whether

those facts sufficed to create in the mind of a reasonably

cautious man anything more than suspicion that Gockley

had forged a signature on the check in question.’ Similar-

*We think the dissenting opinion is mistaken in its thought

that petitioner’s counsel conceded at argument that the police had

21

Opinions of the Court of Appeals

ly, the relation of arrest and detention to the prisoner’s

admissions does not depend upon any dispute as to what

in fact happened. We differ only in the significance we

attach to essentially undisputed facts.

The majority find the relation of cause and effect be-

tween illegal detention and the detainee’s statement to be

direct and unmistakable, particularly since it is clear that

detention was intended to facilitate further interrogation

needed to build a case, rather than the prompt charging of

the suspect on evidence already at hand. We have pointed

out in this connection that the excuse given by the police

for not taking Gockley before a magistrate was that they

still were questioning him. The dissenting opinion counters

with the argument that the fact that 44 hours (of which

12 or 15 were devoted to interrogation) elapsed between

arrest and completion of the prisoner's first statement

“provided ample time for dissipation of any taint obtain-

ing from the arrest.” But the wrong in this case, the

“taint”, is not merely the illegality of the initial arrest but

also the illegality of the continuing detention pursuant to

illegal artest for the purpose of controlled, persistent and

repeated questioning such as could not have been accomp-

lished without arrest and detention. “It is not the function

of the police to arrest, as it were, at large and to use an

interrogating process at police headquarters in order to

determine whom they should charge before a committing

magistrate on ‘probable cause’.” Frankfurter, J., in Mal-

lory v. United States, 1957, 354 USS. 449, 456. This is as

probable cause to arrest Gockley before he produced the power of

attorney. And even if such a concession had been made, it would

not have relieved the court of its responsibility of decision on the

point.

22

Opinions of the Court of Appeals

true of state officers as of the federal officers whose con-

duct Mr. Justice Frankfurter condemned.

The dissent also reasons that testimony to the effect

that Gockley suffered from “paranoia vira’’, a condition:

that made him a compulsive talker with “delusions of

grandeur”, somehow insulated the illegal arrest and de-

tention from the prisoner’s statements. But when the ille-

gal detention is intended to and does enable the police to

question the suspect more persistently and effectively than

otherwise would have been possible, the fortuitous cir-

cumstances that a trait of personality may have facilitated

the enterprise is beside the point. We are dealing with a

consequence of violation of the Fourth Amendment, not a

question whether a confession was coerced within the

meaning of the Fifth Amendment. Indeed, this point in

the dissenting argument amounts to no more than saying

that Gockley’s personality defect may have made uncon-

stitutional procedure work better than it might have

worked with some other suspect.

Part III of the dissenting opinion addresses itself to

the question whether Gockley’s statements were so co-

erced that their procurement violated his Fifth Amend-

ment privilege against compulsory self-incrimination, de-

spite the fact that the court has not found it necessary to

decide or even discuss that question in this opinion. Rath-

er, we have undertaken to demonstrate that the evidence

in question was the product of illegal arrest and detention,

and thus was obtained in violation of the Fourth Amend-

ment guarantee against unreasonable search and seizure.

We now observe merely that the Fifth Amendinent issue

dealt with by the dissent is not free from doubt, since it

23

Opinions of the Court of Appeals

required between 12 and 15 hours of interrogation during

a 44-hour period of detention to obtain the challenged

statement; throughout this period the prisoner was denied

coursel, and the police would not take him to a magis-

trate until they had obtained the admissions they sought.

In cases of this sort, there is no sure way of locating the

boundary between persuasion and coercion. And there is

no need to make the attempt here.

Part IV of the dissenting opinion questions whether

“federal habeas corpus is an appropriate vehicle for the

vindication of the fourth amendment rights” that have been

violated in the manner of procuring otherwise competent

evidence. The short, but in a lower court conclusive, af-

firmative answer to this question has been given by the

Supreme Court in the already quoted dispositive language

of Mapp v. Ohio, supra, that “all evidence obtained by

searches and seizures in violation of the Constitution is, by

that same authority, inadmissible in a state court.” The

Court has consistently adhered to that holding. The dis-

sent finds comfort in the fact that dissenting Justices occa-

sionally have expressed dissatisfaction with the Mapp rule.

But that does not make it any less binding upon us. In-

deed, Chief Justice Burger, in his most recent and elaborate

criticism of the Mapp rule has been at pains to add that he

would not “abandon the Suppression Doctrine until some

meaningful alternative [statutory remedy against govern-

ments for police violations of Fourth Amendment rights ]

can be developed.” See Bivens v. Six Unknown Fed. Nar-

cotics Agents, No. 301, decided June 21, 1971, U.S.

% _ Otherwise, he feared that the police might

gain the impression that “‘an open season on ‘criminals’

had been declared.” Id.

24

Opinions of the Court of Appeals

This does not mean that the majority would sub-

scribe to the dissenting view if this court were free to do

so. More than ten years ago, the writer of this opinion

attempted to state the rationale of decisions like this in

Bynum v. United States, D.C. Cir. 1958, 262 F. 2d 465,

468-69, and language there used has been quoted with

approval as recently as Davis v. Mississippi, 1969, 394

USS. 721, 725, n. 4:

“... [T]he matter of primary judicial concern

in all cases of this type is the imposition of effective

sanctions implementing the Fourth Amendment guar-

antee against illegal arrest and detention. Neither

the fact that the evidence obtained through such de-

tention is itself trustworthy or the fact that equiva-

lent evidence can conveniently be obtained in a whol-

ly proper way militates against this overriding consid-

eration. It is entirely irrelevant that it may be rela-

tively easy for the government to prove guilt without

using the product of illegal detention. The important

thing is that those administering the criminal law

understand that they must do it that way. .. .”

Mr. Justice Brennan, speaking for the Court in Miller v.

- United States, 1958, 357 U.S. 301, 313, expressed the cen-

- tral concept this way:

“We are duly mindful of the reliance that so-

ciety must place for achieving law and order upon the

enforcing agencies of the criminal law. But insistence

on observance by law officers of traditional fair pro-

cedural requirements is, from the long point of view,

best calculated to contribute to that end. However

much in a particular case insistence upon such rules

: 25

Opinions of the Court of Appeals

may appear as a technicality that inures to the benefit

of a guilty person, the history of criminal law proves

that tolerance of shortcut methods in law enforce-

ment impairs its enduring effectiveness. . . .”

In the Mapp case itself, Mr. Justice Clark stated in

some detail why, in the Court’s view, the Fourth Amend-

ment requires “that no man is to be convicted [in a state

or federal court] on unconstitutional evidence.” 367 US.

at 657. He consideré@ and rejected the often repeated

complaint that the “criminal is to go free because the con-

stable has blundered.” Ordinarily, it is not the “blunder-

ing” constable but the official who deliberately uses con-

stitutionally prohibited means of obtaining evidence, as

was done in Gockley’s case, whose work product cannot

constitutionally be used as evidence. Moreover, it is not

ordered in these situations that the “criminal go free”, but

rather that the accused be retried on constitutiona‘ly ac-

ceptable evidence. It is this requirement that, in Mr. Jus-

tice Clark’s words, “founded on reason and truth, gives

to the individual no more than that which the Constitu-

tion guarantees him, to the police officer no less than that

to which honest law enforcement is entitled, and, to the

courts, that judicial integrity so necessary in the true ad-

ministration of justice.” 367 U.S. at 660.

One other innovation proposed by the dissenting

opinion calls for comment. It is argued that federal hab-

eas corpus should not be granted to a prisoner who has

been convicted by a state court, absent an allegation and

some indication of ultimate innocence by the prisoner.

And it is concluded that habeas corpus should be denied

here because Gockley has not asserte1 his innocence and

the evidence of guilt is substantial.

26

Opinions of the Court of Appeals

Of course, Gockley pleaded not guilty at his arraign-

ment, so it is not clear what would be gained by requiring

him to do so again in his petition for habeas corpus. In

any event it is proposed that beyond asserting innocence,

the petitioner should be required to persuade the federal

court that there-is some substantial doubt of his guilt.

Presumably, if this requirement were imposed, both sides

would be entitled to introduce evidence on the issue of

guilt or innocence in the habeas corpus proceeding. At

the conclusion of this quasi-trial, the federal court would

be entitled to deny habeas corpus on the ground that the

state record and whatever new evidence had been intro-

duced left the court convinced of the petitioner’s guilt.

In the view of the majority, such inquiry whether the

accused is guilty is a role appropriate only for the courts’

of the accusing state. The federal courts should confine

their inquiry to the fairness of the state procedure that led

to conviction. Of course, if the unfair procedure clear!y

did not prejudice the accused, it could properly be disre-

garded Chapman v. California, 1967, 386 U.S. 18. But

here the challenged admissions of the prisoner provided

the only basis upon which the jury could have found

malice aforethought.

In sum, the dissenting epinion expresses considerably

more than a preference for the rule of Wolf v. Colorado,

1949, 338 US. 25, rather than 4app v. Ohio, supra, that

overruled Wolf. It seems to advocate retreat on a rather

brond front from principles and concepis that now govern

feaeral action upon applications of state prisoners for

habeas corpus. “or the reasons we have stated, this court

is not persuaded that stich retreat is permitted under the

authoritative pronouncements of the Supreme Court.

27

Opinions of the Court of Appeals

The judgment will be reversed. The district court will

order the release of Gockley unless, within a reasonable

period to be specified in that court’s order, the state shall

grant the prisoner a new trial.

Adams, J., dissenting.

In this case we are being asked to set aside the convic-

tion of a man who killed his friend, secretly buried in a

common grave the friend’s body and that of a woman

whose death precipitated the homicide, and for eight

months attempted to conceal the deaths and delude the

police by leading a triple life based upon lies and forged

documents. The facts of this case have been extensively

reported before,’ and will not be repeated here except

insofar as they may be essential to the discussion.

1'The trial was conducted by the Honorable Warren Hess,

an experienced state trial judge, before a jury. The direct appeal

from the judgment of the trial court was affirmed by the Pennsyl-

vania Supreme Court. Commonwealth v. Gockley, 411 Pa. 437,

192 A. 2d 693 (1963). Certiorari was not sought. Gockley then

petitioned to the United States District Court for the Eastern

District of Pennsylvania for habeas corpus. The petition was

denied without hearing by Judge Luongo. This Court remanded

the case to the District Court to determine whether Gockley had

waived his constitutional points. Judge Kalodner dissenting on

the grounds that counsel had twice declined to object to the ad-

mission of the statements. United States ex rel. Gockley v. Myers,

878 F. 2d 398 (1967). On remand, the District Court, Luongo, J.,

found that Gockley’s counsel had not deliberately by-passed state

procedures, and had not waived the alleged constitutional defects,

but that the state courts should decide the issue of voluntariness,

276 F. Supp. 748 (1967). This Court, sitting en bane, affirmed

the District Court’s holding as to the waiver issue, but held that

special circumstances required that the voluntariness issue be

Opinions of the Court of Appeals

A principle element of proof against petitioner con-

sisted of two statements made by him after his arrest.’

Petitioner contends that his arrest was invalid because the

affidavit in support of the warrant of arrest was insuffi-

cient and because the police lacked probable cause for the

arrest, in any event. He also alleges that the two state-

ments were coerced. For these reasons, contends petition-

er, the statements obtained subsequent to the arrest were

inadmissible,** and a conviction based on them is a vio-

lation of the Federal Constitution

There was some question at oral argument as to which

party has the burden of proof regarding the admission into

evidence of the statements in question. Since a petition for

habeas corpus is a civil action, it is clear that the burden

of proof is on petitioner.’ In accordance with this precept,

determined in the federal system. 411 F. 2d 216 (1969). Certi-

orari was denied. 396 US. 847. Judge Luongo then held an

additional hearing, and ruled that the arrest was valid and the

statements had not been coerced. 314 F. Supp. 839 (1970).

*In his first statement, Gockley acknowledged that he shot

Smith twice: once as a result of accident or self-defense, and once

to put him out of his misery. In the second statement, he verified

that two shots had been fired into Smith. At trial, Gockley claimed

that only one shot had been fired. In any event, it is uncontro-

verted that Gockley shot Smith and that Smith died as a result.

"a The statements were admitted without objection. How-

ever, Gockley's counsel requested that the trial judge charge the

jury on the issue of voluntariness. No objection was made to the

charge as given. Apparently for this reason, a copy of the charge

is not part of the record before this Court.

* Allien v. Perini, 424 F. 24 137, 138 (6th Cir. 1970) ; accord,

(ED. Pa. 1968). Sce also, Hawkins v, Bennett, 423 F.

951 (8th Cir. 1970).

29

Opinions of the Court of Appeals

we must determine wh:ether petitioner demonstrated that

his arrest and detention were illegal and if so whether his

statements constituted the “fruits” of such illegal arrest or

whether he demonstrated that the statements were in-

voluntary or coerced. :

I

The first substantive question concerns the legality

of petitioner's arrest and detention. That the forgery war-

rant upon which the arrest was based is patently invalid

yoming State

That the burden of sustaining the admissibility of challenged

evidence lies with the Government once the primary illegality has

been established at a suppression hearing or trial, see, 3 C

WRIGHT, FEDERAL PRACTICE AND

INAL §677 at 138 (1969) i« not significant here, the issue

in a habeas corpus case is not whether the evidence passes muster

when measured against the appropriate evidentiary rule.

cToderal estate, 38 UAC. $2254 (Supp. V 1970), for rolel fren

28 U.S.C. §2254 (Supp. V 1970), for relief from

violations of the Constitution of the United States. Some federal

evurts look to state law to determine the party who must carry the

burden. See ¢.g., Webb v. Beto, 415 F. 2d 433, 436 (5th Cir. 1969),

cert. denied, 396 US. 1019 (1970). However, even if Pennsylvania

law does control such aspect of this federal habeas corpus action,

Pennsylvania also places the burden of proof on the habeas peti-

tioner. Commonwealth ex rel. Harbold v. Myers, 427 Pa. 117, 233

A. 24 261 (1967) (because Escobedo is not retroactive, prisoner

30

is] if re fit neue

ity i f if tcl i Ht

Opinions of the Court of Appeals

Penitentiary, 401 U.S. 560 (1971); Giordenello v. United

: : FEEL THE

Ht i HU

an Hb ale

does not vitiate the arrest if the arresting officers in fact

had probable cause to believe that a felony had been com-

States, 357 U.S. 480 (1958). However, thai fact alone

a eee:

31

Opinions of the Court of Appeals

ing; he told the police that he had a contract and power of

attorney authorizing him to renovate the building, that

called him every Friday.’ Feltman then asked to see the

contract and power of attorney, and to be notified if Gock-

ley was again contacted by Mrs. Klein. The next meeting

between Gockley and police occurred in September of

1960. This meeting, like the one before it, was also

ber 20, 1960, while the police were questioning Ethel

Briggs about Mabel Klein’s disappearance.* Gockley ap-

peared at the door and suggested that the police check with

Clement Smith. Pursuing this lead, the police discovered

that Smith also had disappeared in March, that Gockley

Possessed the key to Smith’s room and had attempted to

remove his possessions but was denied permission by the

landlady, that the landlady then received a note of author.

possession of checks and other documents which purported

to bear Mrs. Klein's signature and which were suspected

to be forgeries.” Furtherm:-e, Captain Feltman testified

* Gockley did not have a telephone at his residence.

* Apparently Ethel Briggs was Gockley’s ex-wife.

“At oral argument, there was a dispute whether the docu-

32

Opinions of the Court of Appeals

both at the trial and the hearing that after the September

meeting he had been travelling “all over the eastern part

of the State of Maryland in this case and West Virginia

and Washington, Philadelphia, and many other places”

checking on leads.*

At oral argument, counsel for petitioner conceded

that in late October, the police did have probable cause to

arrest Gockley for forgery. He contended, however, that

Gockley’s voluntary production of the contract and power

of attorney on October 31, 1960, must necessarily have

caused the police, as reasonable, prudent men, to reduce

their beliefs to mere suspicions. The majority opinion

indicates that the action of the police in sending the docu-

ments to the FBI for analysis indicates that the police were

“merely suspicious of Gockley’s conduct and doubtful

about the authenticity of the documents.” However, one

cannot say, as a matter of law, that merely because the po-

lice were ‘doubtful about the authenticity of the docu-

ments” their production was sufficient to destroy the rea-

sonable belief of prudent men that the crime of forgery

fact. Captain Feltman testified on cross-examination at the habeas

corpus hearing that the signatures on the documents purported to

be Mrs. Klein’s. On this basis, the district judge found that Gock-

ley had been cashing checks in Mrs. Klein’s name. We are bound

by this finding unless it is. determined to be clearly erroneous,

and there is nothing in the record which 80 indicates.

* These travels were probably prompted by letters purport-

edly mailed by Mrs. Klein from those places to various people in

Reading. 'n his first statement Gockley described how he mailed

(or caused to be mailed) these letters in order to allay suspicion

as to the cause of Mrs. Klein’s disappearance. Even if Gockley’s

statements were not considered, it is obvious that the purpose of

the trips was to check out leads, and that this phase of the in-

vestigation was unsuccessful.

33

Opinions of the Court of Appeals

had been committed by Gockley.‘a. Therefore, I would

conclude that the district court did not commit reversible

error when it ruled that the arrest was valid and that

petitioner had not met his burden of proving that there

was no probable cause for the arrest.

Petitioner asserts that his continued detention without

a hearing before a magistrate was also illegal, and for this

additional reason his statements should have been ex-

cluded. If he had been tried in a federal court, this claim

would have merit. In the federal system, delay between

an arrest and the hearing invalidates confessions obtained

during the intervening period of delay only because the

Supreme Court has exercised its supervisory powers to in-

sure compliance with Rule 5 of the Federal Rules of Crimi-

nal Procedure, requiring the arresting officers to take the

accused to a commissioner without delay.

See Mallory v. United States, 354 U.S. 499 (1957); Mce-

Nabb v. United States, 318 U.S. 332 (1943). However,

in @ state case mere delay between arrest and presentment

does not constitute a basis for granting habeas corpus

unless state law renders confessions obtained during that

period inadmissible. Delaney v. Gladden, 397 F. 2d 17,

20 (9th Cir. 1968), cert. denied, 393 U.S. 1040 (1969) ;

see Webb v. Beto, supra, n. 4. Pennsylvania law at the

time of Gockley’s arrest made it clear that “although re-

grettable and to be discouraged, the absence of an immedi-

ate preliminary hearing, per se, constitutes no violation of

petitioner’s constitutional rights.” Commonwealth ex rel.

Fox v. Maroney, 417 Pa. 308, 207 A. 2d 810 (1965),

accord, Commonwealth ex rel. Wilkes y. Maroney, 423 Pa.

*a It is significant that the majority concedes that the valid-

ity of the arrest is » matter of “‘judgment.”’

34

Opinions of the Court of Appeals

113, 222 A. 2d 856 (1966). To be entitled to federal

habeas corpus relief, petitioner must show prejudice flow-

ing from the illegal detention. See Commonwealth ex rel.

Smith v. Rundle, 423 Pa. 93, 223 A. 2d 88 (1966). Pe-

titioner has failed to meet this burden. See Section III,

infra.

Il

Even if the arrest of Gockley had been illegal under

Pennsylvania law, that fact alone would not entitle him to

the relief he seeks. Streeter v. Craven, 418 F. 2d 273, 274

(9th Cir. 1969); Lopez v. Burke, 413 F. 2d 992, 993-94

(7th Cir. 1969); Abraham v. Wainwright, 407 F. 2d 826,

828 (5th Cir. 1969).

Petitioner must not only show the existence of an

illegal arrest, but also that as a result of the arrest he

confessed and such ccenfession was admitted into evidence

to his prejudice. See Wong Sun v. United States, 371 US.

471 (1963). However, in Wong Sun, the Supreme Court

held that a confession “attenuated” from an illegal arrest

by intervening circumstances was admissible. Thus if the

statements here were so attenuated from the illegality as

to dissipate the taint, if any, petitioner would not be en-

titled to the relief sought.°

In Commonwealth ex rel. Craig v. Maroney, 348 F.”

2d 22 (3rd Cir. 1965), this Court stated that two signifi-

*It should be noted that our Courts remanded this case to

the district court so that it could ‘‘now decide the voluntariness

of the confessions.’’ 411 F. 2d at 219. The question whether the

statements were inadmissible for any reason was not raised until

the close of the December 29, 1969, hearing. Nevertheless, the

judge agreed to hear evidence and decide the issue, if appropriate,

in order to avoid further fragmentation of the proceedings.

35

Opinions of the Court of Appeals

cant factors in determining whether a confession is tainted

are the elapsed time between the arrest and the confession,

and the existence of other circumstances “so thet the

acquired evidence may noi reasonably be said to have been

directly derived from, and thereby tainted by, that illegal

arrest.” 348 F. 2d at 29. Thus, it is clear that a significant

time lapse plus intervening circumstances can purge the

poison from the fruit. Id., at 30.”

The lapse of 44 hours between Gockley’s arrest and

the recordation of the first statement provided ample time

for the dissipation of any taint obtaining from the arrest.

In view of the voluntary nature of the statements,” it

follows ineluctably that dissipation did occur during that

time span, and the most significant operative factor which

contributed to it was Guckley’s own personality. Dr.

Bower, a neuropsychiatrist who examined Gockley shortly

after the arrest, testified that Gockley suffered from para-

noia vira, a condition which manifested itself by delusions

of grandeur, a tendency toward bragging, compulsive talk-

ing, and verbal fencing. The finding by the district court

that Gockley was quite willing to talk to the police is am-

ply borne out by the record. Capiain Feltman stated: “He

did all the talking. I didn’t have to ask too many ques-

*°In Wong Sun, supra, the proscribed statements were taken

immediately following Toy’s illegal arrest, in his bedroom, where

he had taken refuge with his wife and son from the pursuing of-

ficers. In Craig, five days had elapsed between the arrest and

confession, Craig had seen an alderman in the interim and had

been warned of his rights, and he had been advised to keep silent

by his attorney.

™ The district court made clear findings regarding the volun-

tary nature of the statements, which findings are discussed infra

at page 15,

we RHONA : a

36

Opinions of the Court of Appeals

tions." It is clear that this personality condition was a

superseding cause of the confession and adequately insu-

lated it from any taint resulting from the arrest.”

There is another critical factor which also serves to

insulate Gockley’s statements from his arrest. Petitioner

was arrested at 6:00 p.m. on November 17th. The next

day, he voluntarily surrendered the keys for his residence

to the police so they could search the premises. This search

was held to be consensual by Judge Luongo in his first

decision in this case, and that holding was affirmed by

this Court. 378 F. 2d at 399-400. Following that search,

Gockley was confronted with a wallet containing Mrs.

Klein’s identification papers and other documents. The

questioning on the 19th of November which led to the

statements in issue was based on information discovered

during the lawful search of Gockley’s residence. And the

statement of the 19th was clearly the product of that

search, not the arrest. Since the search of November 18th

was not a fruit of the arrest, it is difficult to say that the

statement which followed the search was.”

1a The district court found that the duration of the periods

of interrogation was a result of Gockley’s verbosity.

12The mere fact that a suspect confesses because he was suf-

fering from a mental defect will not viti.‘e his confession if the

police did not knowingly exploit that defect. United States ex rel.

Rivers v. Myers, 384 F. 2d 737 (3rd Cir. 1967).

13 Because the second statement was prompted by question-

ing with regard to discrepancies in the first, and because it was

taken many days later, it too is insulated from any taint flowing

from the arrest. Likewise, Gockley’s trial testimony is isclated

from any prior illegality. According to his trial counsel, Gockley

insisted that he could make a good impression on the jury and

could convince them of his innocence.

37

Opinions of the Court of Appeals

The cases cited by petitioner do not compel the con-

clusion that the statements were inadmissible as the pro-

duct of an ‘ilegal arrest. Davis y. Mississippi, 396 US.

721 (1969), which adopted Bynum v. United States, 262

F. 2d 465 (D.C., Cir. 1958), held that fingerprints were

not exempted from the protection of the fourth amend-

ment and that if the prints were obtained as a result of an

illegal arrest or detention, then they were inadmissible un-

der the exclusionary rule. The Court, however, did not

hold that fingerprints were not admissible if there were a

sufficient lapse of time after the improper arrest and if

there were some other attenuation present. Furthermore, it

would be difficult for the prosecution to demonstrate,

because of the nat < of the process of fingerprinting, that

prints obtained curing an illegal detention were free of

taint because of intervening circumstances. Confessions,

on the other hand, involve the active participation of the

confessor, and are susceptible to the influence of circum-

stances which would free them of taint. Gockley’s pre-

disposition to talk and the consensual search are attenu-

ating factors not present in either Davis or Bynum.” It is

significant that in Davis, the Supreme Court pointed out

In Davis, the police, who were looking for a young Negro

male, first detained, fingerprinted, and released the petitioner

along with many other similar youths; then arrested the petitioner

w:thout a warrant or probable cause, drove him over 90 miles to

the state capitol, jailed him overnight, and extracted a statement ;

thereafter, defendant was returned to Meridian, jailed, and finger-

printed again.

Bynum presents a similar factual situation. The defendant

had been told to come to a police station if he wanted to inquire

about his arrested brother. Upon arrival, he was arrested without

a warrant or probable cause and’ imr.ediately fingerprinted.

38

Opinions of the Court of Appeals

‘hat if fingerprints ‘hot connected with the illegal arrest

were utilized at the retrial, a conviction could be sus-

tained, 394 U.S. at 726, n. 4, as happened in Bynum. See

Bynum v. United States, 274 F. 2d 767, 197 U.S. App.

D.C., 109 (1960). I disagree with the majority’s reading

of Davis and Bynum, and do not believe there is justifica-

tion for enlarging the interpretation of Wong Sun beyond

the parameters set forth by the Supreme Court.

The majority also relies on Collins v. Beto, 348 F. 2d

823 (5th Cir. 1965); but the facts there are distinguish-

able from those here. In that case, coercion was found

where the police arrested the petitioner without a warrant

or probable cause, questioned him, and forced him to sub-

mit to a polygraph test. About a month later, Collins was

rearrested without a warrant, and concededly without

probable cause, secreted at Texas Ranger Headquarters,

and unjustifiably incarcerated under a false name for va-

grancy, ali for the purpose of denying him access to friends

relatives and legal counsel. before confessing, Collins was

questioned late at night, and was not told of his right to

consult with a lawyer or his family. Rather than attenua-

tion, Collins showed a continued practice of illegality.

The proper test applicable to the facts of this case is,

as set forth in Wong Sun: “[W]hether, granting estab-

lishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploita-

tion of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint... .”

371i U.S. at 488. The majority here ~an only hypothesize

that the statements in issue have “‘been come at by exploi-

tation” of the arrest and detention, and that the arrest and

PE AR lace CME tetas a Mls bien TY

Reareg Meh be eee a

39

Opinions of the Court of Appeals

detention were motivated by the “purpose of controlled,

persistent and repeated questioning”, although the district

court made no such finding of fact. However, the legal

search of November 18th and the faci that the district

court found that “Gockley willingly engaged in a battle

of wits with the policc, and. . . gave, them information,

some true, some false, in an attempt to outsmart them,”

314 F. Supp. at 846, are two elements leading to the con-

fessions “sufficiently distinguishable [from any illegality]

as to be purged of the primary taint.” Accordingly, even

if the arrest were considered illegal, in light of the princi-

ples of attenuation enunciated in Wong Sun, the petitioner

has failed fo demonstrate that tHe district ccurt erred in

finding. that the confessions were admissible.

Ill

Another major contention by petitioner is that the

Statements used against him were coerced.4a In support

oi this thesis, he cites six factors: “lack of appropriate

warnings.” “lack of a prompt judicial hearing”, “undeviat-.

ing intent of the police to extract a confession,” “incom-

muricado interrogation,” “[his own] mental condition”,

and the pre-arrest interrogations. Petitioner states that the

district court erred in analyzing these factors individually,

and asserts that “all relevant factors must be considered

and weighed together. Culombe y. Connecticut, 367 US.

568, 601 (1961), see Lynum vy. Illinois, 372 U.S. 528

(1963).” It is apparent from reading the district court’s

4a Although the view taken by the majority makes it unnec-

essary for them to discuss this point, it is incumbent on me to con-

sider it because of my conclusions that the arrest was legal and

that, in any event, the statements were attenuated from the arrest. /

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propensity for fabrication.” 314 F. Supp. at 845. There

has been no suggestion that Gocklev was treated poorly or

denied food, water, or sleep. The continued detention

af*-r November 20, was not motivated by an intent to elicit

no time did the police use trickery or deception to attempt

to induce Gockley to confess, as was the case in Spano v.

New York, 360 US. 315 (1959). relied on heavily by

petitioner.

Petitioner's fourth alleged coercive factor is that

See

43

Opinions of the Court of Appeals

As a fifth factor petitioner urges that his mental con-

dition was an element which compels the conclusion of

coercion. However, there is no indication that the police

police, Gockley seemed to be cooperative, and they saw

no reason not to avail themselves of the information freely

or advisable for him to be under care.”’

** According to the Commission the fact that its report was

based on @ private examination accounts for the difference between

the report of the Commission and that of Dr. Bowers. The latter

was based on an examination conducted in the presence of sheriff’s

deputies,

Opinions of the Court of Appeals

The last coercive factor asserted by Gockley is the

history of surveillance and interrogations prior to his

formal arrest on November 17. However, the evidence

clearly shows that the surveillance, although characterized

as “constant” and “day and night,” was in fact neither.

This surveillance consisted merely of several trips to

Gockley’s residence, made with the hope he would be

there, in order to obtain Mabel Klein’s power of attorney

and contract. During the investigatory period, the police

were attempting to ascertain the facts surrounding the dis-

appearance of Mabel Klein, and Gockley clearly figured

in that inquiry. That he was seen at her house on several

occasions was not a product of a surveillance of Gockley,

but rather was a product 0: concern over Mabel Klein,

herself. Similarly, the few actual meetings between Gock-

ley and the police were separated by a span of at least a

month, and one meeting resulted from mere chance. Ac-

cording to the district court findings, it was subsequent to

the meeting where Gockley told the police to look for

Clement Smith, and after that lead boomeranged and

shifted the full focus of the investigation to Gockley, that

the police had probable cause for arrest. Even so, on

October 31, when they met Gockley and asked him for

the documents, the encounter was brief and not the least

oppressive. The pre-arrest conduct by the police fell far

short of any brooding omnipresence which might over-

bear petitioner’s will and cause his statements to be

coerced.

Finally, petitioner urges that the combined factors

show coercion and that this case comes squarely within

Turner v. Pennsylvania, 338 U.S. 62 (1949), and Clewis

v. Texas, 386 U.S. 707 (1967). A reading of these cases

~

eee et eg ss + omer aes Os tee mie -~ ——

} 45

Opinions of the Court of Appeals

indicates clearly that the district judge was correct when

he said that “[n]Jeither the physical nor i

pressures evidenced in Turner and Clewis are presented

here.” 314 F. Supp. 847.” In summary, when all the

type of warnings given by the police, the lack of a prompt

judicial hearing, the intent of the police, the availability

albeit non-utilization of means of communication, the pre-

arrest history, and Gockley’s mental condition, as well as

his intelligence, prior experience with the police, willing-

ness to cooperate, knowledge of his constitutional rights,

the lack of intimidation and deception, and the exculpa-

tory nature of the statements,” it appears manifest that

46

Opinions of the Court of Appeals

the finding by the district judge that the statements were

not coerced, but rather were the product of a voluntary

attempt to outwit the police is sound and valid, and cer-

tainly not clearly erroneous. Therefore, I conclude on

this issue, as on the others, that petitioner has failed to

demonstrate he is entitled to have the writ issue.

IV

One other matter merits comment, This and similar

cases that come before us after state convictions raise

grave questions whether federal habeas corpus is an ap-

propriate vehicle for the vindication of fourth amendment

rights such as at issue here. The problem presented is

whether federal habeas corpus should be granted in cases

not involving punishment for a constitutionally p ted

act; fundamental constitutional error casting doub n

the ability of the trial court to perform its function of

correctly finding the facts, plus an allegation of ultimate

innocence by the petitioner; or some official misconduct

sO outrageous that continued incarceration is intolerable.

The question where fourth amendment violations

could be properly raised, procedurally, was left open to

the states in Mapp v. Ohio, 367 U.S. 643, 659, n. 9

(1961). However, several years later Townsend v. Sain,

372 U.S. 293 (1963) and Fay v. Noia, 372 US. 391

(1963), expanded the jurisdictional bases for federal

habeas corpus so that federal courts were granted broader

latitude to review state convictions. The explicit holding

of Fay v. Noia, that the doctrine of failure to exhaust

state remedies applied only to remedies available at the

time of the petition, 372 U.S. at 434-34, appears to have

47

te vce sO We nna

| Opinions of the Court of Appeals

eroded reliance on Mapp as authority that fourth amend-

ment issues be raised according to state procedural rules.”

In Linkletter v. Walker, 381 U.S. 618 (1965), the

Supreme Court considered the rule of Mapp and held that

it would not be made retroactive because its deterrent

purpose would not be served thereby, and because the

fairness of Linkletter’s trial was not at issue. 381 US. at

636-67, 639. Despite the restraint manifested in that

opinion, by 1969 there was ne doubt that Supreme Court

decisions extended federal habeas relief to state prisoners

solely on the Lasis that such prisoners were alleging that

unconstitutionally obtained evidence was admitted against

them at trial. See Kaufman v. United States, 394 US.

217, 225 (1969).* However, it is now clear that the

Supreme Court’s prediction in footnote 9 of Mapp, that

the fourth amendment exclusionary rule would apply only

22 Justice Brennan stated that failure to comply with state

procedural rules would not justify denial of federal habeas relief

unless such failure amounted to an intelligent, understanding

waiver of the rights in question. Jd. at 339, 438-40. But see Gib-

bons, Wawer: The Quest for. Functional Limitations on Habeas

Corpus Jurisdiction, 2 Seton Haut L. Rev. 291 (1971 ). In this

excellent article, Judge Gibbons criticizes the language of Fay v.

Noia, analyzes the result intended by the Supreme Court, and

suggests a new approach to the problem. See also, Friendly, Js

Innocence Irrelevant? Collateral Attack on Criminal Judgments,.

38 U. Cur. L. Rev. 142, 159-160 (1970). ae =

*° Kaufman involved a federal prisoner whose conviction had™

been previously affirmed. He then sought relief under 28 U.S.C.

§2255, alleging that his conviction was based upon the improper

acmission of illegally seized evidence. The Supreme Court, reason- ,

ing from cases involving state prisoners, expanded the scope of —-

section 2255 actions to encompass unlawful search and seizure

claims asserted by way of collateral attack.

48

Opinions of the Court of Appeals

to a narrow class of cases, has not been validated by the

passage of time. The federal courts are plagued with

petitions from state prisoners who allege that an arrest or

a search was illegal, and that their convictions were bot-

tomed on such violation.”a

In the present case, the first branch of Gockley’s

argument is that he is entitled to relief because his arrest

was invalid, and his incriminating statements were a

product of that arrest. This thesis has nothing at all to do

with the question whether petitioner received a trial be-

fore a court able to find the facts fairly and accurately.

Rather, the implied premise upon which Gocklcy’s request

is based is that if we grant the petition, then the police

will be deterred in the future from making illegal arrests,

and the courts will not have sullied their integrity by per-

mitting convictions based on violations of the law by

police officers. However, the Reading police officers

most closely associated with this case have retired, and

the district attorney, who prosecuted the case, no longer

holds that office. It is difficult to see who would be

directly deterred if the writ is granted. Furthermore, if

petitioner’s constitutional rights were in fact violated, re-

course to an action under the Civil Rights Act, 42 U.S.C.

§1983, would provide compensation and deterrence with-

out affecting the state’s legitimate interest in insuring that

offenders be adequately punished.

3a The soundness of the premise behind the rule of Mapp,

deterrence, is now being seriously questioned. See Bivens v. Six

Unknown Named Agents, US. (1971) (Burger, C.J., dis-

senting) ; Coolidge v. New Hampshire, US. (1971) ,Har-

lan, J., coneurring; Black, J., concurring and dissenting; Burger,

C.J., concurring in part and dissenting in part).

49

Opinions of the Court of Appeals

That the ultimate aim of the decision by the majority

—enhancement of the integrity of the judicial system—

will be achieved if Gockley should be retried without the

use of his statements is, at best, shrouded in doubt. There

is also a question whether the district courts and even the

courts of appeals should have the function of overseeing

State courts in such manner, especially since the district

courts and courts of appeals are parallel, rather than

superior, to the state courts. In view of the heavy case

load oppressing the federal courts, where possible the

states should police their own system subject to review by

the Supreme Court, so that the federal judiciary may ac-

complish its primary mission to the extent its abilities and

resources allow. Cases like the present one only sap the

limited reserves of the federal courts, and if allowed to

proliferate, will seriously enervate the federal judiciary

as we know it.

I am not now questioning the rule of Mapp in cases

a, of direct appeal or state post-conviction proceedings, but

J only whether claims of violations of that rule ordinarily

should constitute grounds for relief from state convictions

through federal habeas corpus.

A second major branch of Gockley’s petition is that

his conviction was based on statements coerced in viola-

tion of fifth amendment rights. The premises behind this

ri argument are that the statements, because they were in-

voluntary, are inherently unreliable and that as a result

the conviction based upon them was not an accurate find-

ing of fact, thereby depriving Gockley of his right to a

fair trial, see generally, Brown v. Mississippi, 297 US.

278 (1936); or that coerced statements ar> so repugnant

to our system of government convictions ought not be

ATER NETS DE: MRR

50

Opinions of the Court.of Appeals

based upon them. See Culombe v.:Connecticut, supra.

However, this is not a case like Fay v. Noia, supra, where

the statements were extracted by “satanic”. means,“ or

where only one of three defendants remained in jail be- |

cause his counsei failed to pursue certain procedural. —

steps, taken by the other two defendants.” Regardless of |

how the factual and legal issues presented here ar re~ {

solved, unless Gockley is innocent his conviction can’ ~*

hardly be called an affront ‘‘to the conscience of civilized

society,” which is the manner in which the Supreme Court

described the petitioner’s plight in Fay v. Noia, supra, at

441. The actions of the Reading police, even if irregu-

24372 U.S. at 396, n. 2, quoting United States ex rel. Cami-

nito v. Murphy, 222 F. 2d 698, 701 (2nd Cir. 1955). In Caminito,

Noia’s two co-defendants were ordered released.

25 372 U.S. at 395, n. 1. History, as well as a close reading

of the opinion, teaches us that at least some of the Justices form-

ing the majority of the Supreme Court in Fay v. Noia were moti-

vated by considerations additional to the “satanic” means utilized

to coerce the confession and Noia’s subsequent inability to chal-

lenge his incarceration. The basic injustice behind that case was

that Noia, who did not appeal because of his fear of the death

penalty, remained in jail while his co-defendants were eventually

freed. And even though Noia protested his innocence throughout

and the state had no evidence that he was guilty other than the

coerced confession, there was no procedural avenue available to

afford relief. ‘‘It was under these circumstances, strongly appeal-

ing to the Court’s sense of what justice required, that this Court

held that Noia was entitled to challenge his convictions even

though it had previously become ‘final.’’’ Kaufman v. United

States, 394 U.S. 217, 285 (1969) (Black, J., dissenting).

26 Gockley has never denied killing Clement Smith. His ap-

parent defense at trial was that the killing was — accidental

or justifiable.

51

Opinions of the Court of Appeals :

lar or indeed illegal, may not accurately be characterized

as “satanic.”

The concept of allowing a guilty person to remain in

jail after his conviction is final because the procedure on

direct appeal has been concluded is hardly novel or medie-

val. Justice Black has asserted that before he would al-

low a collateral attack to succeed he “would always re-

quire that the convicted defendant raise the kind of con-

stitutional claim that casts some shadow of a doubt on his

guilt.” Kaufman v. United States, 394 U.S. 217, 242

(1969) (dissenting opinion). He further stated that one

of the “vital considerations” is the defendant’s “guilt or

innocence.” Id. at 235.” Judge Friendly has stated that

innocence should not be irrelevant on collateral attack

| even though it may be on direct appeal; to the extent we

Shaye gone beyond this, the system nseds revision to pre-

verit abuse, a waste of the limited resources available for

the criminal process, and public disrespect for the judg-

ments of courts. Js Innocerice Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. CHI. L. REV. 142,

172 (1970). .

_ _T am not suggesting that the federal habeas petitioner

must prove his innocence by a preponderance of the evi-

cence in order to be entitled to relief, but only that he

demonstrate that the constitutional violation resulted in

error which makes questionable the factual accuracy of

wa a earn te lial ee hE SA AI dae whital ia Se

as oe Re SAE WOR Eat cee ke ase eanbeb ee

*t Justice Black raised this matter, as well as the issue of

‘ the overall scope of federal habeas corpus, again in Whitely v.

Warden of Wyoming State Penitentiary, 401 U.S. 560, 576, 574-

75 (1971) (dissenting opinion). Although Mr. Justice Blackmun

agreed with much of Justice Black’s opinion, the majority opinion

did not deai with either matter.

52

Opinions of the Court of Appeals

the guilty verdict. Coupled with this demonstration of

uncertainty as to guilt, the petitioner should affirmatively

assert that he is innocent, for if he is not innocent, society

has a strong interest in his continued incarceration.

More than a not guilty plea is required, because that plea

- does not necessarily mean that the pleader is asserting his

innocence, but only that he is challenging the prosecution

to prove its case beyond a reasonable doubt. .

This seems consistent with Section 2243, which spe-

cifically provides that the court shall “dispose of the mat-

ter [i.e. the petition for habeas corpus] as law and justice

requires.” 28

28 Another aspect of the problem of collateral attack im a

criminal connection is addressed by Justice Harlan in -United

States v. United States Coin and Currency, 401 U.S. 715 (1971),

when he considered whether the Marchetti-Grosso rule should be

retroactive. Marchetti v. United States, 390 U.S. 39 (1968) and

Grosso v. United States, 390 U.S. 62 (1968) held that where one

statute requires the report of an act which another statute makes

criminal, the fifth amendment privilege against self-incrimination

may be interposed as a defense to a prosecution for failure to

comply with the reporting requirement. Justice Harlan concluded

that the retroactivity cases fall into two classes: those which hold

prior decisions non-retroactive because they were concerned with

the implementation of a procedural-rule which does not undermine

the basic accuracy of the fact-finding process at trial’’, and those

which require retroactivity ‘‘because the failure to employ such

rules at trial meant there was a significant chance that innocent

men had been wrongfully punished ir the past.’’ In Coin & Cur-

rency, this classification was not useful beeause the majority

granted retroactivity on the rationale that the conduct for which

punishment was sought was constitutionally protected. The clas-

sification referred to by Justice Harlan has utility in determining

whether collateral attack shouid be permitted; for the competing

interests are similar in both retroactivity and habeas corpus cases.

53

Opinions of the Court of Appeals

In this case, it cannot be said that Gockley’s conduct

in shooting Clement Smith was constiiutionally protect-

ed. Nor can it be said that the grant of the writ will en-

sure that his retrial would provide a more accurate fact-

finding process. And, quite apart from Gockley’s failure

to assert his innocence, there is sufficient evidence to

preclude anyone from contending that Gockley had not

committed the act for which he was punished.

Although Justice Harlan and Justice Stewart, both of

whom dissented in Fay v. Noia, did not concur with Jus-

tice Black in Kaufman as to the importance of innocence,

nevertheless they do contend that the scope of habeas

corpus re-examination of convictions should be narrowed.

Kaufman v. United States, supra, at 242-243 (Harlan &

Stewart, JJ., dissenting). In his concurring and dissenting

opinion in Mackey v. United States, 401 U.S. 667, 692-

93 (1971), Justice Harlan asserted that the writ of

habeas corpus ought issue only on substantive due process

grounds, citing United States v. United States Coin &

Currency, 401 U.S. at 722 (1971), or on procedural

grounds which meet the test of Palko v. Connecticut, 302

U.S. 319, 325 (1937). He explained that when there

Those interests may be summarized as finality on one hand, see

Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J.,

concurring and dissenting opinicn), and the correction of constitu-

tional error on the other. Sec Kaufman v. United States, 394 U.S.

217 (1969) ; Brown v. Allen, 344 U.S. 443 (1953). The need for

finality has been eloquently expressed many times, and it is not

necessary to reiterate those arguments.

2° Palko held that a state could appeal a conviction of second

degree murder, retry the defendant, and sentence him to death

for first degree murder because this kind of double jeopardy was

not such that it violated the fundamental principles which under-

lay our civil and political institutions. 302 U.S. at 328.

54

Opinions of the Court of Appeals

occurs nonobservance of those procedures “implicit in the

concept of ordered liberty,” or where “time and growth

in social capacity, as well as judicial perceptions of what

we can rightly demand of the adjudicatory process, .. .

alter our understanding of the bedrock procedural ele-

ments that must be found to vitiate the fairness of a par-

ticular conviction,” habeas corpus is an appropriate

remedy. But I respectfully suggest that such standards

are not satisfied unless the petitioner asserts his innocence

and demonstrates that the police procedures have de-

creased the reliability of the fact-finding process. Appli-

cation of the criteria suggested by Justice Harlan to the

facts of this case fails to show that the procedures em-

ployed either vitiated the fairness of Gockley’s conviction

or offended principles “implicit in the concept of ordered

liberty.”

It is significant here that Gockley has not asserted

his innocence in either his petition or brief before this

Court. Since the evidence of his guilt is substantial, it

would seem preferable to save judicial time and energy to

consider the case of one who contends he is innocent or

whose conviction is based upon methods which cast doubt

on the validity of the facts as found or affront the con-

science of civilized society.

I do not suggest that the vast majority of prisoners

who would be unable to qualify for relief under the tests

set forth herein should be without remedy. I am assert-

ing only that this remedy should lie elsewhere than within

the province of a collateral attack in the federal courts.

Perhaps the proper party to implement the post-conviction

correction of errors similar to those at issue here is the

governor of the applicable state, or an agency fulfilling a

et 55

Opinions of the Court of Appeals

similar position. See, Fay v. Noia, supra, 372 US. at 476

(Harlan, J. dissenting). In particular, an enlightened

state pardons board; which would screen petitions and

recommend clemency in deserving cases, would provide a

viable alternative avenue of relief, and would greatly aid

in stemming the flood of federal habeas corpus petitions.

The responsibility of the state in the administration of

criminal justice extends further than the function of prose-

cution, and the federal judiciary should not become en-

cumbered by the state’s abdication of these other func-

tions.

The crux of the matter is that as the scope of the

federal habeas corpus remedy has been ever expanding,

the need for it has been continually contracting. Today,

nearly every criminal defendant other than the traffic

violator is represented by counsel.” The Supreme Court,

over the years, has appropriately enlarged and protected

the rights of the accused at every important stege in the

criminal process.** In short, the accused citizen is af-

forded a full panoply of procedures, including the right to

suppress probative but illegally obtained evidence and the

80 Fay v. Noia was decided in 19U3, the same vear that the

Supreme Court required counsel be appointed for all persons

charged with felonies. Gideon v. Wainwright, 372 U.S. 335 (1963).

Noia had been convicted some 20 years earlier, where counsel was

not appointed except in capital cases, and then only for the trial

stage of the proceedings.

31 See e.g., United States v. Wade, 388 U.S. 218 (1967) (line-

up); Miranda v. Arizona, 384 U.S. 436 (1966) (custodial inter-

rogation) ; Escobedo v. Illinois, 378 U.S. 478 (1964) (custodial

interrogatigi\; Douglas v. California, 372 U.S. 353 (1963) (coun-

sel on appeal) ;-Griffin v. Illinois, 351 U.S. 12 (1956) (transcript

for appeal),

OSes cen nea renoreee

56

Opinions of the Court of Appeals

Veh. he UK a0 ht

Opportunity for extensive discovery, regardless of his ‘

Stature in the community. Furthermore, the accused, if

convicted, can argue for vindication throughout the ap-

pellate process, all the way to the Supreme Court of the

United States. Following the exhaustion of direct appel-

late remedies, the convicted defendant may begin the pro-

cess anew by seeking relief under the appropriate state

post-conviction hearing act. It seems unreasonable, and

perhaps destructive of long range judicial values, that the

process should be repeated again and again in the federal

courts absent some showing that the habeas petitioner has

been convicted cither for a constitutionally protected act,

because of some procedural defect which casts doubt on

his guilt, or by violence to our minimum standards of fair

treatment.

SGA ANINCE,

V

For all the foregoing reasons, I would affirm the dis-

trict court and deny the petition for habeas corpus.

ee Ts

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit.

__

32Tt was the denial of this opportunity because of Noia’s

failure to appeal which in part shaped the decision in Fay v. Noia.

See 372 U.S. at 426-434.