Petition for Writ of Certiorari — Malinski v. New York
Supreme Court brief1945
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Inthe Supreme Court of the United States
OcTOBER TERM, 1944.
Morris MALINSKE and SIpNEY RUDISH,
Petitioners,
—against—
THE PEOPLE OF THE ST“?PE OF NEW York,
Respondents.
Petition for a Writ of Certiorari to the Court
of Appeals of the State of New York and
Brief in Support thereof.
—_ . ~
Ses
JOHN J. FITZGERALD,
Davip F. PRrRIcek,
y, JOSEPH A. SOLOVEI,
Counsel for Petitioners.
Eowarn D. O’Tonnexn, 21 Sptu
Street, New York, N. Y
J
see
INDEN
PAGE
PUNE ee a kr ee eke a eae De ae Li ear 1-15
GR A a og Cee re Se Se eae 1
eI oo es SY ef tcera O tee Od eae 13-14
Cretan -Prementes os So a nee kw ea eso ees !
Reasons Relied on for Granting Writ. ooo... 0... 14
Putitingern Bistatures. .5-.22% can ee coe cosh: 15-
Counsel's Stennture and’ Certificate... 00000000. ie
NN or icre a ee ee eee ee Ae OE Re OS 135
CPMNIOME TIO 55 os so oe hh at Geese ena a \y
Jurisdiction, Questions Presented and Statement 17-18
SUnimaryY of ATRUMCU .... ees cine she ee ee hw ois Is
Point T--The admission in evidence of Matlin-
“ ski's confession wes a violation of the rights
of the petitioners under the due process clause ‘
of the Fourteenth Amendment of the Consti-
tution of the United States.:............... IX-—34
CRIN oicas ca a Sk ae ee eee see ear en 34
CARET a ee eOtEle oa cee he eee eee 2boD
NE IR oo oe ce eg sera ar een en Odie ieee are EA at
BRS ae ara es ora ee oth taka! PO a ee ene ea oe ww
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| DERPACEN PRe ee SIP ae Sire LR 5 es WBN eed OP i ob ay
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INDEN
(ASES CITED
PAGI
Anderson v. UL S., L. ed. Adv. Op... Vol ST, No. 10;
Me cena eee rere es ee sr eee IZ. 1e
Asheraft vo Tennessee, L. ed. Adv. Op... Vol SS, No.
Pe MON os 5 5 vay a Cock Va ete re 14, 29, 33)
cerger a. 0 6 S08 Ue ee wn
setia v..Behdy, 316-0 a86...... 14, 29) 54
rae v1, 1G Ue eRe te 1!)
Brown v. U. 8., 297 U.S. 354... .. teat otras eae 14, 18,234
Canty v. Alabama, 309 U. 8. 699.................. 14.554
Chambers vo lorida, 209 0, 33 Y= og Soa ae owe aa 14, 28, 29. 34
Lisenba vo California, als u, 4 PPS 14, 28,234
Lomax vo Texas, 313 Ul 8 a Mela eae hare oie ee Ro 14.534
Lyons v. Oklahoma. bL. ed. Adv. Op. Vol 88. No. 16,
i, ONT BNA Th eS ae oc Rn DRED pt Bogs OAs 14.19, 30, 34
meNabb vy. U: &. 1, ed. Ady, Op. Vol 89, No. 10,
Ch ET POSES Bharat ie Be Mes NS ct apt nts ass dh Rohe 14, 2%
Ne, Oo Bees Johneon, 279 U. & 310.......... 4
People +. Conrow, 200 eR EL ey See 2
Peonle v, Esposite, 22O N- y a OS RS a eee 2h
People v. Fielding, 158 N. ¥. 542............. 2
People v. Manganaro, 218 N. ¥.9°................ er
People ve Mull, 167 N.Y. Po ta nO ee ee ae)
yrople:v.. Pantans, 220 Nov-48-72 ee. Lh
People eg ioe aN ee ie)! ON ait, Bey ee Bech © a 24
Pierre v. Louisiana, 306 U. 8. 354............... 14,28 544
United States \ Mitchell, Lo ed. Adv. On. Vol SS,
ee Da cle A OER ED ee bath ee TW ok AN gmt 14, 2%
Vernon v. Alabama, 313.0. 8 547.0... 8) 14.°5
Viereck v. UL S.. L. ed. Adv. Op... Vol. &7, No. 10.
pale EEE Pee ePIC der Wun Rag at = diet 14, 24
Ward x. ‘Vesas, 316 Ui RbF. Se oe ee ee 14, 29
Wwelte.f. Tetas, 310 6 GAO. a ee 14.5
INDEN iil
CONSTITUTIONAL PROVISIONS AND STATUTES CITED
(These are printed in appendices. |
PAGE
U.S. Consticution, Amendment 14, Section b.....-. ot
Judicial Code of the United States, Section 237 ¢b)
as amended by the Act of February 15, 125,
c, 2P9, See. 1 (43 Stat. 987; 28 UL Ss. CL AL See.
FR ERLE cee eee ERE EI RE A LC OEE oh
Section 395. U.S. Code of Criminal Procedure, Title
El Re pa Be ker ee la I RR Aer ar eee 5s
Section BOOA of Tithe 35, UL S.C. (1940 Ed., Vol. t.
aR oD RA Snr orate SF ie Ararat a iar mea aie not of
ee Pe. ma RR S| ee nearer ae 36
yO Ween ae A Fc cn Sk dscns We se eee 3S
N.Y. Code of Criminal Procedure Section Soo... vi
N.Y. Code of Criminal Procedure, Seetion S282... yt
In the Supreme Court of the United States
(kToBER TERM, TO4EE.
No.
Morris MALINSKt and SipNEY RUDESII,
Petitioners.
neninst
THE PROPLE oF THE STATE OF NEW York,
Respondents.
Petition for Writ of Certiorari to the Court of
Appeals of the State of New York.
To THE HonNonasee, THE CliER JUsTice oF THE UNITED
STATES AND THE ASSOCIATES -PUSTICES OF THE SUPREME
Courr orf THE UNITED STATES:
Your petitioners, Morris Matinski and Sidney Rudish, re-
spectfully represent the following :
Summary Statement of Matter Involved.
Your petitioners, tovether with Joseph Indovine, were
convicted of qurder in the first degree, in’ the County
Court. Kines County, New York State, on July 1. 19433.
and vour petitioners were sentenced to he execnted® (Ree.
pp. O1-922 95-014 4
On an appeal te the Court of Appeals of the State of New
York, the judgment of canvietion was affirmed hy a divided
* \ stay of execution was granted by the order of M1 lustice
lackson, dated June 19th, 1044
+ References to pages of Record on Appeal in the Court of Ap
peals of the State of New York.
COUTT. A tnotion fora re-argument in the Court of Appeals,
returnable June b2. 1944, was denied without opinion on
June 14. 1944 (Order of Court of Appeals, June 14, 1044)
The petitioners are under sentence of death. Alleged con.
lessions of the petitioner, Morris Malinski, were admitted in
evidence over objection and exception by the petitioners,
and objection was specitieally made, that the admission of
such confessions was a denial “of due process” under the
Pourteenth Amendment of the Constitution of the United
States.*
The remittitur of the Court of Appeals recites that:
“Questions under the Cogstitution of the United >
States were presented and necessarily passed upon.
The defendant Rudish contended that the admission
of the confession of his co-defendant Malinski in evi
dence against Malinski was a denial te the defendant
Rudish of due process under the Fourteenth Amend-
ment to the Constitution of the United States,
The defendant Madinski contended that the admission
in evidence of his alleged confession and his identifies-
tion of the cmurder car and his description of the
events at the scene of the murder, violated his rights
under the Fourteenth Amendiment to the (Constitution
of the United States. a
This Court held that the rights of neither defendant
under the Pourteenth Amendment to the Constitution
of the United States had been violated or denied.”
During the trial a motion was made on behalf of Malin-
ski to set aside the verdiet on a number of grounds, among
Whiek Was “that the Court. in admitting the confession in
evidence deprived the defendant Morris Malinski of due
Process of law in violation of the Fourteenth, Amendment
of the Constitution of the United States: * * * that the de
Side Order of the Court of \ppeais of New York, dated
May 18, 1944. amending remittitur (292 N. Y. 686, Adv. Sheet.
No, 274).
-
4 2
3
fendant Malinski was deprived of due process of law in vio-
lation of * * * the Fourteenth Amendment of the United
Mites Constitution by reason of the fact that the arresting
officers failed to arraign the defendant Morris Malinski at
the time of his arrest before a Magistrate having jurdiction
to take his examination: * * * that the Court's charge to
the jury deprived the defendant Morris Malinski of due proc:
ess in violation © * * of the Fourteenth Amendment of the
United States Constitution”. ; :
The motion was denied ond an exception duly taken (Ree.,
pp. IAaT-b4oty.
A similat motion was made on behalf ef Rudish upon a
number of crounds, among which were “that this defendant
was deprived of his constitutional rights” in vthat evidence
was admitted during the course of the trial whieh deprived
the defendant Rudish of due process in’ violation of the
Pourteenth Amendment of the United States: * * * that the
Court's charge to the jury deprived the defendant Rudish of
due process Of law in violation of * * * the Fourteenth
Amendment of the Constitution of the United States”.
(Ree p. 1460). The motion was denied and an exception
duly taken (Ree. pp. 1462, 1465, 1465),
The jury recommended “life imprisonment” for Endovino,
Which penalty was imposed. His conviction was not passed
npon by the Court of Appeals (202 NOY. 360, 564) and is
not involved herein.
There were two opinions tiled by members of the Cours
of Appeals (loz N.Y. 5605.
The opinion upholding the conviction was written by
Judge Conway and concurred in by Judges Lewis, Desmond
and Thatcher: a dissenting opinion was filed by Chief Judge
Lehman, with whom Judges Loughran and Rippey con
eurred (292 N.Y. 3700. 7
In his dissenting opinion, Chief Judge Lehman said
ip. jS4e:
“A confession which is net incompetent under the
provisions of section 395 of the Code of Criminal
-
Procedure is not to be rejected because the aecused
Was unlawiully detained by the police without
arraignment for the purpose of obtaining the con-
fession. “Nevertheless, in determining whether a con-
fession has been obtained as the result of a beating,
or is voluntary, the circumstances that it) was ob-
tained while arraignment was iNegally delaved for
Ho apparent reason except that the police needed a
confession in order to have competent proof of the
cominission of a crime, should be considered by the
jury’ (Peo. v. Alex, 265 N.Y. 192. 194). We must
examine the record in this case to determine if there
has been a fair trial in this ease of the question
Whether the confession under the cirenmstances here
disclosed was obtained as oa result of threats or
violence”
Again, at page S87:
“Nonetheless, in this case, as in) People vo Mam:
Mivai (supra, pp. 399-400) ." the conclusion is ines
capable? that the police delaved the arraignment of
the defendant sfor the purpose of subjecting him to
an inquisition impossible thereafter, at which he
might be indnaced to make a confession by resort te
What the Supreme Court of the United States has
deseribed as ‘those reprehensible practices known as
the “third degree.” which, though universally rejected
as indefensible, still tind their Way Into use” There
can be No fair trial of the issue whether the con-
fession is voluntary where the jury is not property
informed that the detention was unlawful and that
they must take that faet into consideration. That
has not been done in this case.”
The question involved is w hether the admission in evi-
dence of certain confessions of the petitioner, Malinski, was
a denial of due process” under the Fourteenth Amend-
ment of the Constitution ef the United States.
- >
* 258 N. Y. 394, :
a
Details of Crime.
On February 15. 1Otl, at cleven o'clock, PL M.. Leon Fox.
a patrolnfan of the Police Force of the City of New York,
was shet and killed. At the time of the homicide he was
escorting the manaver of Loew's Theatre in Coney Island,
Borough of Brooklyn, Citv and State of New York, to a
hank depository. The manager had the day's receipts of
the theatre, consisting of seven hundred dollars in bills, anil
sever. rolls of quarters of ten dollars each ina burlap base.
As they approached the depository, a branch of the Brook
Ivn Trust Co: spany, located at Suri Avenue and West 12th
Street, Coney Island (Ree. pp. P2e-T2s), they ngticed an
automobile parked on West both Street, south of Surt Ave
nne, with the lights out and the motor running. As they
reached the vieinity of the car, they were “jumped™ by two
men, ene of whom came ont of the antomobile; Me officer
was shot, the bag containing the maney taken the two men
entered the car, which sped away at a high rate of speed.
None of the oecupants of the car, nor the participants in the
robbery and killing were ever identified (Ree. foals. SS6-
303). The petitioners herein, Malinski and Rudish were
‘ndicted with Joseph Indovine for the homicide. The teste
mony against the defendants was wiven chiefly by David
Yellin®*® Nathan or slip Spielfogel + and Samuel Kovner:
three criminals then serving time in) States Prison.
t
-_
*Vellin was serving a term of from 10 to 20 vears, for a ‘‘stick-
up”, convicted December 12, 1941 (Rece., p. 221).
+ Spiclfogel, as a second offender, wa- under sentence of fromm
30 to @ vears, for complicity in the same “hold ap” if whieh
Yellin was convicted (Rec., pp. 295, 246).
+ Kovner was serving a term of from 15 to 30 vears for a
“stick-up” committed December 15th, 140 (Rec.. p. 679)
6
The indictment is as follows:
“The Grand Jury of the County of Kings, by this
indictment, accuse the defendants of the crime of
Murder in the First Desree, committed as follows:
The defendants, on or abeut February 15, 1941. in
the County of Kines. veting in concert with Abraham
Beitler, deceased,** wilfully, fefoniously and of malice
aforethought, shot and killed Leon Fox, with a
pistol” ( Ree., Ma Ge
The only testimony against the petitioner Rudish, was
siven by Yellin and Spielfogel ¢ Ree., Ppp. 221-288: 295-447).
The incriminating festimony consisted very largely of
ronversations alleged to have been had between Beitler,
Yellin and Indovino: Beiter. Indovino und Kovner: Ma-
linski and Spielfovel: and Rudish, Spielfogel and Yellin
The conversations related largely to the planning of the
robbery, and those between Rudish and Yellin, and Rudish
apd Spielfogel as to Rudish's alleged participation ino the
affair—all of such conversations having occurred immedi.
ately subsequent to the homicide (Ree., pp. 221-288; 315-
320).
The witness Yeilin was held to be an accomplice as i
matter of law (Ree. p. 1347).
The Court of Appeals divided, four to three, on whether
Spielfogel was an accomplice. The majority of the Court
held that whether he was an wecomplice Was properly sub-
mitted to the jury as a question of fact (292 N.Y. 360. @
Se): the minority ruled that the evidence established him
to be an accomplice as a matter of law. or if not, that the
evidence overwhelmingly proved him te be so as a matter
of fact (292 N.Y. 360, at 380).
If Spielfogel were an accomplice, Rudish's ‘convietion
could not stand. since in New York State a conviction
** Beitler was dead at the time of the trial (Rec. pp. 679-681).
~
‘
;
eannot be Had upon the uncerroborated testimony of at
accomplice.”
Circumstances Under Which Confessions Obtained.
The testimony establishes that on October 22. TO42,
Morris Malinski was living with his family at 714 Hinsdale
Street. Brooklyn, N.Y. (Ree. pp. S48: D455. He left
his home shortly after 7 A.M. that morning to preceed to
work. When he had gone a short distance, he was-accosted
by two men who put pistols to his head. THe was hand-
cuffed, taken te an antomobile, placed if it and @riven
away. He asked if he were being kidnapped and told te
keep still He was driven to the Bossert Hotel, in’ Brook. —
Ivn, a distance of five or six imiles. During the drive a
number of police stations, police headquarters, the Counts
Court of Janes County, and the offiee of the District
\ttorney of Kings County were all passed. No stop was
ade. The
otel Bossert was reached at eight o'cloeh ane
Malinski was\immediately taken to a room where Lieut.
MeNally was Nresent. Malinski was immediately stripped,
neked.+
After being stripped naked at the Bossert Hotel, he was
kept that way for a while, and then given his BV D's. Later
he was given a blanket. The testimony is conflicting as to
the length of time he remained undressed (Ree.. pp. S87
SSS: GOT: 595-596): but one officer attached to the dis-
trict attorney's office, testified that he was still in= his
stripped condition when he ceturned to the room in= the
rossert Hotel at 3:00 A. M. Saturday morning (Ree., pp.
295-996). The reason assigned by the police for strp-
* Section 399 of the New York Code of Criminal Procedure
provides that “A conviction cannot be had upon the testimony o1
an accomplice, unless he be corroborated by such other evidence
as tends to connect the defendant with the commission of th:
crime.” |
+ Malinski ciaims by force; the police say he undressed volun-
tarily (Rec., pp. 549; 374; 595; 605-606).
8
pine Malinski was to ascertain whether there were an
bullet wounds of sears on his body (Ree. po O84),
“although the homicide had been effected twenty months
Cpreviously (Rec... pp. 11-12). What was found on examin
ing Malinski's body was evidence of twenty-one skin graft
ings on his chest and abdomen, necessitated by severe burs
When he was a child (Ree. pp. S551: 506).
Malinski also testified that while he was still stripped.
he was taken to an open window, his clothes placed on the
Window sill and that the police threatened to throw hin
out the window (Ree. po 551). This was denied by the
police i Rec., }’- Dia).
As soon as Malinski was brought to the hotel, Lieut.
MeNally “phoned Edward Heffernan, an assistant district
attorney, who had been working on the case with the police
Malinski testified that during the afternoon. Heffernan
cate to the hotel and questioned him about the Pox killing
and left in disgust because Malinski denied all knowledge
of the affair (Ree. p. 550). Lieutenant MeNally tes
tified that Heffernan came to the room where Malinski was.
Was told who he was, looked at him and walked out with
out speaking to him (Ree. p. S761. Another highly
improbable storv—that the public prosecuter, notified of
the arrest-of a suspect in a murder case on which he was
working, merely looked at the suspect and did not question
him at the earliest opportunity. Although Heffernan was
present in the court room at the trial he was not called as
au Withess (Ree. pp. 325-326). Malinski claimed that the
pelice had beaten him from time to time during the dav.
Friday, October 23. 1941 (Ree.. pp. 549: 551: 555. 557-558).
The police denied it (Ree. pp. S72: 592: 604: G13). Some
time in the course of the day, about 5 or 6 o'clock in the
afternoon, it is claimed that Malinski made a full confession
(Ree. po 576). No transcript was made of any such confes-
sion. Later in the evening, about 9 o'clock, Malinski was
questioned in the presence of the Acting District Attorney,
Thomas Cradoc& Huches, Assistant Distriet Attorney Hef-
—
9
fernan, Captain MeGowan, Captain Dowdell, and Lieutenant
McNally. No record was made of any statements made at
that time by Malinski. None of the persons mentioned as
being present at that time, ever denied his presence or that
what Malinski. testified had occurred there had never hap
pened (Ree. po S51). The following day, Saturday, October
2 1942. Malinski complained of illness and asked for a
doctor (Ree. p. 562). His request) wits refused (Ree. p.
363). He alse requested permission to see a Rabbi, and an
assistant district attorney named Nat Math: both requests
were refused (Ree. pp. 322: 1254). Some sort of medicine
or drug was given to him by one of the police officers te al
leviate the stomach condition of which he complained (Ree.,
p. 506). He was questioned all day Saturday and inte the
night. The following day (October 25, 142) he was ques:
tioned further and eventually taken to a police garage. Tt is
claimed by the People that he there identified the car
which had been used in the affair. Tle denied doing se,
and his conduct substantiates lis clain.*
He was questioned further and at length on that and on
the following Monday. when he was taken to the scene
of the erime (Ree. -p. G44). All of this time he was
held incommunicado in the Bossert) Hotel. When Lieut.
McNally was asked whys. if the police had a complete con
fession at about tive or six o'clock on Friday, October 23rd,
that Malinski had participated in the bental killine of a
fellow member of the police department, he was not locked
up in jail, MeNally answered that) Malinski had remained
at the hotel of his own volition. That he was given the
choice of going te jail or remaining at the hotel, and he
chose to remain at the hotel with his “pal.” Spielfogel,
*He was asked to Gpen one of the door- of an sutomobre
claimed to have been the one used. He took his handkerelnet «
from ‘his pocket and grasped the handle with his handkerchief,
asking at the same time whether the police were trying to ~ frame”
him by inducing him to do something which would leave his tinger
prints on the car (Rec., pp. 949-959).
10
although Spielfogel was locked up in jail every night (Ree,
pp. OSO-581L), while Malinski was kept incommunicado in
the hotel.
On Monday, the 26th, Malinski was questioned further
and was taken in an automobile over the route alleged te
have been followed by the killers to the seene of the crime.
He was accompanied by detectives and Spielfogel. The
People contend that he voluntarily described the actions of
the participants preceding the killing and during the
“stick-up” during which the homicide was effected. Malin
ski contends that the information furnished by him was
given him by Spielfogel from time to time. That they
conversed in Yiddish and that Spielfovel continually urced
him to give the answers he snegested. as hy so doing
Malinski would avoid further il treatment. About three
oclock in the afternoon of October 26. 1942. the Darts
arrived at the Bath Beach or G2nd Precinet, station house
Malinski was questioned off and on until 2:10 4. Mo. Octo
ber 27, 1942, when a statement then made by him as a
result of questioning by Assistant District Attorney Pe!
fernan, Was taken by a stenographer, and later transcribed
(Ree. pp. 552-553: 579).4 Then about 3:30 or 5:45 A- M..
Tuesday morning, Oeteber 27, 1942. after having been
held incommunicado, from TAS AL M. of October 23.
142, vour petitioner, Malinski, was booked. or formally
Placed ander arrest by having a charge entered asainst
him.*
+ Evidently the alleged “full confessions” were unsatisfactors
and so the questioning was continued until! one was obtained which
met the requiremesits of the police
*“The defendant must, in all cases be taken before the magis
trate without unnecessary delay, and he may give bail at anv hour
of the day or night” (N. Y. Code of Criminal Procedure, Sec
165.) .
Section 1844 of the Penal Law (N. Y.). provides that
“A pubhe officer or other person having arrested any person
’
upon a criminal charge, who wilfully and w rongfulls delays
se
“If, as appears plain, they did carrest” the defend:
ant Malinski, then his confinement by the police at
the Hotel Bossert, or any other place, without prompt
arraignment was contrary to the express command
of the statutes and was unlawful” (Opinion of Chief
Jude Lehman. p. 382.)
Lieut. MeNally testified that Malinski was arrested: Tues
dary morning, Oetober ZT. 19k, i Ree., })}). S80: OST).
During the trial, Malinski testified in his own behalt ane
denied enphatically that the admissions in the alleged con
fession were true, or that he had participated in any mane
ner whatsoever in the robbery and killing (Ree. pp. 955:
N56. MOL).
In addition to the oppressive conduct of the police and
proseenting officers, there were other violations of peti
tioners’ rights so highly prejudicial as to deprive them of a
foir trial under the Fourteenth Amendment. Por instance
during the final address of the assistant district attornes
remarks were indulged in of se highly a prejudicial and
Vieious character as to vitiate the trial There is nadispute
as to their indefensible character. ALL the Judges of the
Court of Appeals are in agreement as to their objectionable
character. Their impropriety was a denial of that funda
ental concept of justice and fairness that are essential te
a fair and impartial trial imperative under the Fourteenth
Amendment? The remarks and their impropriety are fully
ser forth and discussed in the brief accompanying this pe
tition (post, pp. 2b, 22. 25
_——e Ps
to take such person before a magistrate having jurisdiction to
take his examination, 1s guilty of a misdemeanor.”
In People vi Mummiani (258 N.Y. 304, 399) at was said:
“The police are guilty of oppression and negleet of duty
when they wilfully detain a prisoner without arraigning him
before a magistrate within a reasonable time (Code of Crim
Proc., sec. 165). The conclusion 1s inescapable that they do
this for the purpose of subjecting him to an inquisition im-
possible thereafter.”
12
As to Rudish.
“The conviction of Rudish,” said Chief Judge Lehman. in
the dissenting Opinion, “thus rests upon the testimony
Of two witnesses y ho ware accomplices as matter of law
or, at deast, shown to be tecomplices by the great weieht
of evidence. The Trial Judeve charged that no other evi-
dence’ corroborates them. The verdict against Rudish
should for that reason he set aside’ (Pes. V. Malinski, 292
N. ¥. 360, 380). }
That) statement evidences how vital te Rudish was the
admission of evidence harmful to him. After proceedings
on the roir dire te determine whether the alleged written
confession of Malinski Should be admitted and submitted to
the jury. the Court decided te admit the confession, After
Selne discussion, the Court (directed that) certain Hames
Should be deleted and in their places, the designations ep ty
and “Y" he used Ree. pp. GIS-G20).
In the alleged cColifession, Matinski involved both Rudish
and Indovine, and it Was those names which the Court
directed should be Suppressed and for whieh “X" and as
should be substituted. The device was futile. As SOOP as
Malinski was called to testify in his own behalf, a few
questions by his conpsel developed thay “N° and eye were
respectively Riidish and Indoving «Ree. PP. 953: 962). As
sand in faderson y. 7 nited States, Law halo Ady, Opinions,
Vol. 87, No. 10, ive OSG:
“The government urges that even if the confes-
stous are held te he inadmissible, only the convie-
tions of the six petitioners whe confessed should be
reversed. The Prosecution rested principally on these
confessions and the testimony of an informant. -Fred
Long, whose credibility was under severe attack.
The incriminating statement of each petitioner inpli-
cated all the others including those who did not
confess, To he sure, the trial court devised a proce:
LS
dure under achich the confessions were introduced
without mention of the names of the other persous
implicated, But their vames were in fact, revealed
in the course of the croxss-cramination of the cousess
ing petitioners.” (italics ours.)
The only testimony against Rudish was given by Yellin
and Spielfovel. Yellin was held to be an accomplice as a
matter of law ¢ante, po Gis the Court of Appeals divided
sharply by four to three as to the status of Spiclfogel
pautes op. Gi. Spielfowel wits under severe attack aus te
whether he had been an actual participant im the crime.
The confession of Malinski must have had tremendous influ.
ence With the jury in determining Rudish’s guilt. If if
were Wronefaily admitted, the convietion of Rudish should
hot dee permitted te stared.
Grounds Upon Which the Jurisdiction of This Court
Is Invoked.
It is respectiuliv submitted that this Court has juris:
diction of this petition for certiorari under Section wari by
of the Judicial Code as amended by the Act of February
13, 1925, ¢. 220, section 1 (43 Stat. 987): 28 U. &. ©. Fass
Section S4b ohio such petition being one to review the tinal
judgment of the Court of Appeals of the State of New York
in which a decision could be had. rendered April 20. D944.
The judgment attirmed a judgment for sentence of death
(Ree pp. 9-92: 95-06): and in said Court) of Appeals
petitioners especially set up and claimed, under the Pour
teenth Article of Amendment of the Constitution of the
United States, the right, privileges and imiiunity agai ist
being deprived by the State of New York of their rights and
liberty without due process of law, “and,” as certified
by the Court of Appeals, “this point was considered and
necessarily decided by this Court’ (Order Amending Re-
mittitur. dated May US, 1944). this point having been spe-
cifically presented in the briets on behalf of Malinski and
14
Rudish, on the areument of the appeal from the judement
of convietion and death of the County Court of Kings
County, New York State, and specifically on the trial.
Reasons Relied Upon for the Allowance of the Writ.
The Court of Appeals of the State of New York has
decided a federal question of substance ina way probabls
Het in accord with the applicable decisions of this Court
in that the Court of Appeals of the State of New York has
affirmed a judgment and sentence of death wherein tested
by an appraisal of the totality of the faets in this case
(Betts vo Brady, S16 UL 8. HH, AHL), petitioners were
deprived of their lives and liberty: without due process
ol law, a
See : ..
.
Ixhevatt Vv. Tenw., SS L. ed. Ads Op... No. 14, S58;
P Ward v. Tera, 316 U.S. Ae:
McNabb vo OS. 87 Le. ed. Adv. Op. No. LO, 570:
liderson Vo UN. ST Le. ed... Wwly. On. No. 10. 580:
Lisenha v. California, 314 USS. 219:
Chambers vo Florida, 200 U.S. Be7:
White vo Teras, 21000 SS. S30:
Vernon Vv. Alabama, 318 Ul OS. 4
Lomasr Vv. Teras, 313 Ul oS. SAA:
Canty Vv. Alabama, 200 UL OS. Gea: :
(2S. Vv. Mitchell, 88 L. ed., Adv. (ip., So. 13: 812:
Brown Vo Mississippi, 207 Ul SS. 278:
Viereck v. U.S. 87 L. ed, Adv. Op. No. 10, 529:
Pierre Vo Louisiana, 306 U.S. BS
Betts vo Brady. BAG US. 455-
Luons Vv. Oklahoma. Ss LL. ed. Adv. Op. New 16. 1076.
yg
WHEREFORE, vour petitioners, Morris Malinski and Sidney
Radish, pray that a writ of certiorari may issue out of
and under the seal of this Court, directed te the Court of
Appeals of the State of New York, commanding the said
15
Court to certify and send ‘o this Court: for review and
determination, as Provided by law, this cause and a com.
plet®. transcript of the record and all proceedings had
herein: and that the order of the Court of Appeals of the
State of New York affigming the judgment in this cause
may be reversed and that the petitioners, Morris Matinski
and Sidney Rudish, may have sich other and further relie!
in the premises as this Court mir deem proper, -
.
Dated, Aueust 15. P44,
>
‘ Morris MALINSKI,
SIDNEY Repestt,
Petitioners.
Jousx J. PIivtzGeranp,
Davin PL Pricer,
Joserit AL SOLOVEE,
Counsel for Petitioners.
Spare OF NEW York, |
COUNTY OF KINGS. ( ts «
I hereby certify that TP have examined the foregoing
petition for a writ of certiorari and that ino my opinien
it ix well founded and the eause is one in which the petition
should be granted. =
Joun J. FITZGERALD,
Counsel for Petitioners.
In
is
ma
to '
w Supreme Caurt of the United States
,
Ocropen TERM, 1944.
No
Morris MALINSKI and SipNey Reptstt,
Petitioners.
—neainst ~
8 Tur Prorie oF THE STATE OF New York,
eS
ief in Support of Petition for Certiorari.
ep two opinions of the Court of Appeals of the State
w York are officially reperted in the weekly advanee
e Xo. 267. June 10. 1944, 292 N. Y. 300. No opinion
handed down on the denial of the motion for rearen
2
Statement of Jurisdiction, Questions
Presented, and Facts.
e statement under whieh the jurisdiction of this Court
vwoked, of the questions presented, and the faetual
ep relevant to this application appear in’ the petition
hich this brief is annexed.
lotion for re-arcument denied by th Court of Appeals with
pinion, June 14. 1944
18 ‘
Argument.
Petitioners urge that they have been convicted for the
erime of murder, and have been sentenced to death as a
result of a trial se violative of their constitutional rights
as to be a denial to them of the protection of the Four-
teeath Amendment of the Constitution of the United States
in that they were denied due process of law.
The basis of their contention may be stated in’ the
387:«U. OS.
language of this Court in Brown y, Vississippi,
ZTN, UNG!
“The complaint is not of commission of mere error,
but of a wrong so fundamental that it made the
Whole proceeding a mere pretense of a trial” °
POINTS.
I.
The admission in evidence of Malinski's con-
fession was a violation of the rights of the pe-
titioners under the due process clause of the
Fourteenth Amendment of the Constitution of
the United States.
The question involved herein is whether the confession
of Malinski, on the 27th day of October, 1942, was made
ander such circumstances as to render it inadmissible
under the applicable decisions of this Court, and the due
process clause of the Fourteenth Amendmente It is the
confession taken on (“tober 27th, by a stenographer at
2:10 ALM. at the Bath Beach station house, with which
this Court alone is concerned. While there is testimony
that Malinski had made “complete confessions” prior there-
fo, no attempt was made to prove what Malinski said when
,
19
the alleged “complete confessions” were made, and there
is no evidence of any admissiens made by him at any other
time after his appreheusion on Oetober 25, 1042, and his
detention incommunicado in the Hotel Bossert: trem whieh
to predicate a conclusion that he had confessed: nor was
any effort made to prove any admission by him whieh
would constitute a confession.
Whether there is other evidence in the record: suffieient
to sustain the verdiet. regardless of the confession, tov hich
objection was made, is imomaterial of the admission of
the confession denied a right to ay defendants under the
Constitution, such an errer requirés reversal.
Braum vy. l nited States, 16s W. S.532, 5, SHOAL:
Lyons \. Oklahoma, ss L. ed... Adv. Op. No. 16, 1076,
While there is a contliet in thg testimony as toe whether
Malinski was beaten owhtle in cusaly to proenre a eotifes
sion, there are certain conceded and undisputed ficts \ hieh
clearly and conclusively establish that the confession wits
extorted as the result of coercion, duress and iNegal acts
and conduet by the police and prosecuting officers, Whieh
vielated the constitutional rights of the petitioners,
It is not denied that Malinski was assauited by two
individuals, subsequently identified as potice officers, about
TD AJM. on October 23. 1942, immediately after leaving
his home, where he was living with his family, and on his
way to work. Two strangers “jumped” him, put pistols to
his head, put handeuffs on him, told him to keep sitent,
when he asked if he were being kidnapped. put him inte
a private antomobile and drove away from the vieinity of
his home. It is not only not denied, but it) is conceded,
that he was taken to a private hotel, immediately stripped
naked and kept wholly unelothed, and later parrtialls
clothed for a considerable time. Tt is admitted that numer:
ous (21) skin eraftings were found on his chest and
abdomen, The testimony is coatradictory as toe-whether
he was beaten while in custody, and whether the police
20
threatened, while he was partially dressed, to throw him
out of a windew. It is conceded that be complained of
iHmess and asked for a doctor and none was furnished,
It is conceded that he asked to see a Rabbi and an assist-
ant distriet attorney, and that his requests were denied.
It is admitted that he was held incommunicade from the
time of bis arrest at 7:15 A.M. on October 23, until 9250
A.M. on October 27-—a period of four days: that during
the time of his detention he was continuously questioned,
day and night, by police officials and representatives of
the distriet attorney's office, and that at 2:10 A.M. oon
the 27th of Qetover, he was questioned that the questions
and his answers were taken by a stenographer, and that
he was then “hooked” and formally placed under arrest
at DMO or SA ALM.. practically four days after heing
taken inte custody.
The purpose of these proceedings is not a matter of
conjecture or speculation. There is neither dispute ner
controversy as to the underlying motive of the poliee and
the public prosecutor, and the result sought,
“Nonetheless.” said Chief Judge Lehman, in the dis
senting opinion, cin this case, as in People v. Mum
miani (258 N. Y. 399, 400). ‘the conciusion is
inescapable’ that the police delayed the arraignment
of the defendant, ‘for the purpose of subjecting him
to inquisition imposstbie thereafter at which time
he might be induce] to make a confession by resort
to what the Supreme Court of the United States
has deseribed as those reprehensible practices known
as the “third degree” which, though universalls
rejected as indefensible, still find their wav inte
Ne,
The mere recital of the facts set forth herein should
suffice to establish that the confession was the result of
coercion and duress, and was net veluntary. But the peti-
tioners de not rely only upon the foregoing narrative. to
rs
astain their contention that there was a flagrant denial
f constitutional rights.
In his summation, the district attorney said:
“Why this talk about being undressed? — OF CorTPse
they had a rieht to undress him te look for builet
sears, and keep his clothes off him. ‘Phat was quite
proper police procedure. That is some psveholoes
jet him sit around with a blanket on him, hnmitiate
him there for a while: let him sit in the corner: let
him think he teas going to qeta shellackina’” (Ree.
p. 12S). (Italics supplied.)
In what’ phiiner teens coald an admission be couched
that the practices to which the police had resorted were
eolely to preduce such a cnent: |} state is to induce the
defendant to make any statement desired so 28 to he
relieved of the pressure”? And does not such a frank waders
sion of coercion tend rather to st renethen Malinskis claim
that he was subjected te physical abuse as well as to
mental terror?
Again, the district attorney said:
“Malinski was held and he was allowed to sleep
there.® He could not get away. When McNally was
asked, “did you place him under errest”, he prob
ably meant he did net book hin rieht away. They
hold men for several days.4 Are YoU aatistied with
that? They are not voing to let him mt Miome, or let
him eet holed of a smut mouthpiece to pr meh about
his riehts and to sie out writs. You want a district
attorney Who is worth his salt, net a powder putt
distrier attorney. When vou are trying a case of
murder, especially murder of 2 police officer, vou
don't ge over and vive him a pat on the back and
* Referring to Malinski's detention at the Hotel Bossert.
+ Such action is in violation of the New York statute § 165 of
the Code of Criminal Procedure, ante, Pp. 10
r
me
Savi Do vou want anything? De you Want to have
Your lawyer, or vour wife, or somebody else?” In
fact after they would not let him see Mr. Math. an
assistant in our oftice. thes would not let him talk
to # Rabbi. Do vou think that Me Nally, 17 vears
in the Police Department, is goine to let this jerk
from the East Side tell him his business?” i Ree.,
p. 1254).
In view of the lone and histories struggle to establish
; i *
and protect fundamental rights which are sacred to Anelo-
Saxon civilization can a more shocking and ineredible
Statement be imaeined?
Commenting upon the foregoing, and other passages in
the district attorney's suinmation, Judge Conway, in the
prevailing opinion +292 NOY. 260, Oech, said:
“The remarks were indefensible.”
Chief Justice Lehman, in the dissentine opinion, said
(asthy :
“Weare louthe to believe that the police did actually,
wet as the wvesistant District Attorney saves they did.
We certainty en tnot-sin that they did not do so. and
we should not hesitate to reverse 4 judement which
is the result of a trial at whieh a jury was led te
believe that such practices were lawful and Preper
A turther excerpt IN GIS follows:
“Justimagine! Down there on that bleak, winter's
night, Patrolman Fox trvine to deo his duty in the
face of these hoodlams who were out there in Cones
Island from the lower east side of Manhattan erhere
your life is not worth a preteci.” (Einphasis ours.)
( Ree... p. 1258
It is at Notorious fact of cotmion knowledge, that in the
region of the City of New York, usually referred to as the
“East Side.” there are hundreds of thousands of Jewish
-
23
people. They are decent, thrifty, industrious, law-abid-
ing and patriotic. Of course some of the residents of
that section at times commit crimes and are in conflict
with law. It is noc an uncommon thing for attempts
to be made to create the impression that all of the inhabi-
tants of the East Side are eriminals, and because of
their race and religious beliefs are an undesirable element
of the community. The whole tenor of the “indefensible” re-
marks of the assistant district attorney was a brazen appeal
to racial and religious prejudice, highly prejudicial to these
defendants—-both of whom are Hebrews—designed to have
the jury cenviet defendants because of their race rather
than on the evidence.
The Court was in sereement us to the outrageous and in-
exensable character of the assistant district attorney's state:
ments.
The majority took the position that although counsel hare
interrapted the summation a number of times, that they
were so little impressed by the offensive character of the
remarks, they made ne objection to them. Chief Judge
Lehinan pointed oct, however, that exception was taken by
motion for a iistrial Under the practice in’ New York
State, in a capital case it is not essential for review by the
Court of Appeals thataan exception be taken. The Court
has power to reverse for error, whether “any objection be
wade or exception be‘taken.* But the question was not, as
Judee Conway seemed to assume, whether the remarks were
such as to impress counsel with their impropriety. The im-
portant question is, were they harmful te the defendants?
If they were, it was the duty of the Court to give such relief
tadthe defendants as the sitmation required,
* Section 528 of the New York Code of Criminal Procedure 1
in part as: follows: “* * * When the judgment is of death, the
Court of ‘Appeals may order a new trial, if it be satished that th:
verdict was.against the weight of evidence, or against the law, or
that justice requires a new trial, whether any exception shall hav
been taken in the court below.” “
a4
Moreover, the Trial Cotrt was not without responsibilits
in the premises. ft was under an obligation to act. The
trial judge is not supposed te aet the Sphinx. His duty is
hot passive it is affirmative. Tle is there not only to pre-
side, but to see that the trial is conducted fairly and im-
partially and in aceordanee with the fundamental concepts
of fairmess and justice. This Conrt, in biereck against the
lnited States, supra, commenting upon certain remarks of
the prosecuting attorney said:
“In his closing remark to the jury. he—-the prose-
eutine attorney — indulged in an appeal wholly irrele-
vant to any faets or issues in the case, the purpose
and effeer of whieh could only have been to arouse
passion and prejudice. The trial judge overruled, as
comibe foo late, petitioners objection first mace in
the course of the Courts charge to the jury * * *
We think the trial judge should have stopped coun-
vets discourse, without waiting for an objection”
In VL YL CLR. Co. vv. Séhnson, 279 U.S. 310, 316, 318, the
followine appears:
“The public interest requires that the Court of its
OWN Tetion, as is its power and duty, protect suitors
in their right toa verdict unintluenced by the appeals
of coupsel te passion and prejudice”
In People Vo -Me/f. is NV. 404, 402:
“An unfair trial especially in a eriminal ease, is a
reproach te the administration of justic®. and casts
erave esponsibility not only upon the prosecuting of-
ficer Dut also upon the trial judge. * * * we have
repeated y laid down the rule governing prosecuting
officers in addressing the jury and to govern trial
judges also in their duty reiating to the subject. We
have repeatediv admonished both, the former at times
With severity and the Jatter more mildly, not to de-
part Crem that rule, but our admonitions hate not
on
pare)
always been regarded, although they were followed by
reversal of the judgment involved, founded solely on
the remarks of the prosecuting officer and the failure
of the trial judge to do his duty in reference thereto.”
Cf.
People NV. Esposito, 220 SX a0
People Vv. Manganaro, fe ae ee a Mp
People v. Mull, WOT N.Y. 247;
People vy. Fielding, V8 NX. ¥., D4.
In People v. Conrow, 2000N. Y.. 356, 369, considerable
adverse testimony had been elicited: in the cross-examina-
tion of the defendant and subsequently stricken out by the
Trial Court. The Court of Appeals said:
“It is not always an easy thing for a jury to elimi-
nate from his memory the effect. of damaging state:
ments made in his presence. * * * In this case, where
the defendant's life is involved, we are unwilling to
tuke the responsibility of saying that the statements
and charges of Monat erroneously received, aithoueh
stricken out, did not affeet the result.”
The Trial Court did not interrupt the District Attorney
at any time during his “indefensible” remarks, nor did he at
any time or in any manner point ont in his charge the ob-
jectionable and inexcusable character of them, and advise
the jury to disregard them and not to be influenced by them,
Whatever prejudicial impression the remarks may have
made upon the jury no attempt was made to eradicate the
improper impression by the one whose duty it was to pre
vent such results. :
This Court has emphatically and in po unmistaken terns
condemned such conduct by the prosecuting attorney.
In Berger V. U. S.. 295 UT. S. 78, 88, Mr. Justice Suther-
land, speaking for the Court, said :
“The United States attorney is the representative
not of an ordinary party to a controversy, but of 4
26
sovereignty whose obligation te ¥overn impartiall
is as compelling as its obligation to govern at all,
and Whose interests, therefore, ina criminal prose-
eution, is not that it shall win a case, but that justice
shall be done. As such. heois ims peculiar and vers
definite sense the servant of the law, the twofold: ain
of which is that the guilty shall not escape or mne
eent suffer. Te may prosecute with earnestness and
Vigor indeed, he should do so. But white he may
strike hard blows. he is met at liberty to strike foul
ones, Tt is as much his duty to refrain from im-
proper methods calenlated to produce ao wrongful
conviction us it is to use every legitimate meons te
bring about a just one
This language was quoted with approval in) Viereck vy.
(.N., supra
Again, jet us quote from the remarks of the district at
Forney :
“OP course they liad a right to undress him to look
for batlet scars, and keep his clothes off him. That
Was quite proper police procedure. That is) some
psychology——let him sit around with a blanket on
him, humiliate him there for a while: lef him thind
he was qoing to get a shellacking”’ (Ttalies ours. |
(Ree, p. 1285.)
As saidd in Peaple Vv. Pantano, 239 NOY. W6. 419.
“A hreat may be implied as well as expressed nd
the fear engendered is alike in each ease.”
The assistant distriet: attorney frankly boasted that the
Procedure adopted was intended to instill a belief that
physical force was to be applied to Malinski. Under the
cirennistanees, the mental condition resulting was the same
as if the foree were actually used. While there is contre.
dietory testimony as to whether physical force was actualls
applied, there iso ne dispute that the procedure followed,
Was intended te have the same effeet.
27
In United States vo Mitchell, SS L. ed. Adv. Op., No. 15,
S12, 815 (decided April 24. 1944), Mr. Justice Reed said :
"As To understand MeNabb vo United States, 31S
UL S352, as explained by the Court's opinion today.
the MeNabb rule is that where there has been illegal!
detention of a prisoner. joined with other circum
stances Which are deemed by this Court to be con-
trary to proper conduct of Federal prosecutions, the
confession will not be admitted. *~ * * In iny view,
detention without committment is only one factor for
consideration in reaching a conclusion as to whether
or not a confession is voluntary, The juristic theory
under whieh a confession should be adritted or
barred is bottomed on the testimonial trustworth:.
ness of the confession. Tf the confession is) freels
made, without inducement or menace, it is admissible.
If otherwise made, it is not, for if broueht about dns
false promises or veal threat, it has mo weight as
proper pros op ouilt”
While it ix recounized that the rule in the WeNabh case.
supra, thus interpreted applies only to cases in the Federal
Courts, and the power to review cases in State Courts, is
Inere restricted and limited ¢(MeNabh vo lnited Ntates,
supra), vet the petitioners herein contend that there is here
both coneeded illegal detention and coercion and duress of
the most flagrant character.
The Defendants Having Seasonably Asserted That Their
Constitutional Rights Have Been Denied Resulting in a
Judgment of Death, This Court Is Required to Make an
Independent Examination to Ascertain Whether the
Convictions Have Resulted From the Use of Confessions
Improperly Obtained.
The petitioners have seasonably asserted their rights. The
amended remittitur of the New York Court of Appeals sets
forth that defendants’ claim that thev were denied due proc-
ess of law under the Fourteenth Amendment was raised and
ow
necessarily passed upon by that Court (ante, Be Big The
record on appeal to the Court ef Appeals discloses that ‘the
questions were raised on the trial in the Court below (ante,
This beme a capital case this Court is net bound by the
finding of the Court, or the jury. or of both. It is under
the solemn duty to make an independent investigation te
determine tle facts for itself,
Yin Chambers vy. Plovida, 309 U.S. PET Pes. it is said:
-* @&
Use by ao state court oof an dmproperly ob
tained confession may constitute a denial of due proce
ess of Taw as euoaranteed in the Fourteenth Amend
ment. Sinee petitioners have seasonably asserted the
right under the Pederal Constitution to have their
Lutoor inmecence af a capital erine determined with-
out reliance Upon confessions obtained by means pre
scribed by the due process clause of the Fourteenth
Atendiient, We must determine independently wheth
er petitioners CODPESSTONS Were so obtained by review
of the firets pom whieh that issue necessorily turns”
In hesenha vy California. ate t:. . 2t9. 40. it is said:
_ & & *
we think it right to add that when a prisoner
held incotmimunioade is subjected te questioning by
officers fer long periods and deprive of the advise of
counsel, we shall scrutinize the record with eare te
determine Whether, by use of his confession, he is
deprived of his liberty or life throueh tvrannica!
OF OpPPressive teas.”
In Pievie vi. Louisiana, 206 UL S ot, S58:
7S" * when a claim is properly asserted * * * that a
citizen whose life is at stake has been denied the
equal protection of his country’s laws on account of
his race, it becomes our selemn duty to make inde-
pendent inquiry and determination of the disputed
facts —for equal protection to all is the basie prin-
ciple upon which justice under the kaw rests.”
7
ty
tS
fs
“
O86, Ady. Sh., 27.
‘ . ~/
—_----
29
In Ward v. Teras, 316 Ul S., SAT. 550, the Court said:
“Each State has the right to preseribe the tests
voverning the admissibility of a confession, In vari-
OUS States there may be various tests. But when, as
in this case, the questioh is properly raised as to
whether a defendant has been denied the due process
of law guaranteed by the Federal Constitution. we
cannot be prechided by the verdiet of a jury from
determining whether the circumstances under which
the confession was made were such that its admission
wnounts toa denial of due process.” :
In Axheraft vo Tenn, SS L. ed., Adv. Op., No. 14. S58,
<peaking of the duty of the Supreme Court to Wiaike au
independent examination to determine whether a confession
was voluntary, the Court said:
“Our duty te make that examination could met
have been foreclosed by the finding of a court, or the
verdiet of a jury or both.”
Considering the circumstances under whieh Malinski's
confession Was obtained, as eres before set forth. the lan
= «pep
cuage of this Court in White vo Tecas, 310 1, #30. 533.
is peculiarly pertinent: —
“Dune process of law, preserved for all by our Con
stitution. commands that no sueh practice as that
disclosed by this record shall send any accused te
his death.”
Chambers v. Florida, 309, U.S. 227, 288.
In Betts v. Brady, 316 UL OS. 455, 462, it is said:
“Due process of law is secured against invasion by
the Federal Government by the Fifth Amendment
and is safeguarded against state action in identica!
words in the Fourteenth Amendment. The phrase
formulates a concept less rigid and more flaid than
30
those envisaved in the Bill of Rights. | Its applies
tien is less no omatter of rule, Asserted denial is ts
‘ be tested by aa appraisal of the totality of the facts
ina given case.”
fu the instant case every device condemned by this Court
as obnexious to the Constitution were all emploved to ob
tain Matlinski's confession. Stimunarized they are: arrest
without warrant: an assault with firearms: threats to keep
silent: a spiriting fwav toa hotel, instead of a jail, during
Whigh Dimerous police stitions, police headqaarters, the
County Court) House and distriet attorney's office were
passed: stripped naked, upon a flimsy pretext that it) was
desired te ascertain if there were bullet: wounds or sears
twenty months after the altray: held) incommanieade from
TAS ALM. October 23rd untel 2210 04. Me Oetober 27th: re-
peatedds questioned lity und tieht. denied niecliea?! atten
tien When requested: denied opportunity te consult a Rabbi
or ah assistiunt district uttornmey, W ith the conceded Purpose
of preventing advice or assistance from friends and counsel
the only thing disputed being physica? vielence — mental
coercion being conceded What mere eould be done. or
moist be done, to establish that a confession is involuntary?
To use Mr. Justice Holmes iuminating expression the
petitioner was subjected te a pressure that can only be
properly characterized as “hydrautie™.
Northern Necnurities Vv. United States, 198 U.S... 197. 100:
“The voluntary or involuntary character of a con
fession is determined by a conelusion as to whether
the aecused, at the time he confesses, is in possession
of cmental freedom’ to confess or to deny a suspected
participation in oaoerime. * © * When coneeded facts
exist which are irreconcible with such mental free
dom, regardless of the contrary conelusions of the
triers of fact, whether judge or jury, this Court can-
net avoid responsibility for sueh injustice by leaving
the burden of adjudication selely in other hands.”
(Mr. .Justice Reed. in) Lyouws vo Oklahoma, SS LL.
md. Ady. ()p.. wo; 16, 1OT6.)
tet ON eae Pee Pe aT
ei
v
As to Failure to Arraign Without Unnecessary Delay.
In a note, page LO, ante. Section 165, of the New York
Code oof Criminal Procedure, requiring a defendant to be
taken before a Magistrate without unnecessary delay is set
forth.
Somewhat similar statutes govern federal procedure.+
Arraignment of the defendant herein without) “unneces-
sary delay” was a question of law to be determined by the
Court. A jury may not speculate upon the motives of the
police in failing to arraign promptly. There may be situa:
tions where there is uaaveidable delay, i... inabilitw te
locate a magistrate or illness of the prisoner. Tt is a matter
of common knowledge, however, that in the City of New
York, magistrates are always available. They sit every day.
There are night courts held by them. No issue was pre-
sented that uetcistrates were not available during the
period of detention. The purpose of delaying arraignment
in order to secure a satisfactory confession was conceded.
It was the duty of the Trial Court to advise the jury as a
matter of law that the failure to arraign Malinski from the
time of his arrest on October 23rd until Oetober 27th, was
a faerant violation of law. The Court did not do se.
The charge on that question is as’ follows:
-* * © PT eharge vou that it was the duty of the
police to arraign the defendant before the nearest
magistrate wirhout unnecessary delay, and. further,
#It shall be the duty of the marshall, his deputy, or other of-
ficer, Who mas arrest a person charged with any crime or offense,
to take the defendant before the nearest United States Commis-
sioner, or the nearest judicial officer having jurisdiction under ex-
isting laws for a hearing, commitment, or taking bail” (18 U. 5%.
CAC Sete oo)
The Act of June°18, 1934, ¢. 595, 48 Stat. 1088; 5 UL S.C. A.,
sec, 300 A, authiorizing officers of Federal Bureau of Investigations
to make arrests, requires that, “the person arrested shall be im-
mediately taken before a committing officer”.
that if a police officer failed or refused to perform
sich duty, he is guilty of a misdemeanor.,
But, gentlemen, vou will bear ino mind that) the
police department is not on trial in this case. This
testimony was adduced solely on the Question as to
) whether or not the alleged confession jater made,
Was the result of the coercion, either direet or im-
plied, which is prohibited by the statute. and which
invalidates a confession, if made. Tf vou should) tine
that the arraignment of the defendant was dehived,
You thay consider that on the question of the velun
tariness of any confession made by Matlinski, inelud
ine the one miude in the early hours of Oetober 27,
aft the Bath Beach station house.
Hlowever, Toam charging vou thet the failure te
arraign in and of itself. is not coneiisive against the
People and does mot of and in itself, stamding alone,
destroy the validity of the confession. Is that clear?”
It is respecttally submitted that the charge was erroneous
wd grossly inadequate. it Was net fer the jury to specu:
life as te whether there had been cunnecessary delay’, in
The arraignment. The fact was so overn heimingly estab
lished, that the jury should have been so advised. They
should have been further instructed-that such ao flagrant
Violation of law on the part of the police must be seriously
and carefully weighed in determining whether the con
lession of Oetober 27th was voluntary. ft should have been
pointed out that only after repedted questioning. dav and
night, for four days, did the police obtain sneha confession
as they were willing to have transeribed. The jury should
have been told to consider well whether the delay inoar
raigniment was to obtain the sort of confession desired and
necessary to involve Malinski. As Chief Jndge Lehman
ported out tante ny. 20) that “the conetusion is inescapable
that the police delayed the arraignment for the purpose of
subjecting the defendant to pressive thereafter impossible”,
Moreover, the charge minimizes the importance of a prompt
armignment of a perisoner and must have heen exceedingly
eb
inisleadine to the jury. AAS Chief Jide Lehman said (292
N.Y. 360, 587):
“There can be no fair trial of the crime whether
the confession is voluntary, where the jury is net
properly informed that the detention wis unlawtul
and they must take that fact into consideration, It
has not been done in this case,
It is true thet in the charge of the ‘court, the jury
was informed that cit was the duty of the police to
arraign the defendant before the nearest: tracistrate
Without unnecessary delay, and further if 1 police
officer failed or refused to perform: sneh duty, he ix
euilty of a misdemeanor, and if yeu tind thet the
arraignment of the defendant was delaved, vou mits
consider that on the question of the voluntariness of
any confession made by Matinski ineludine the one
made in the earty hours of October 27th, at the Bath
Beach Station House. That instruction is net sul
ficient where, as in this ease, the evidence produced
by the People, conclusively shows that) the police
Nagrantly disobeved the express niamndate of the law,
Even if there had been a question in this case, thist
the delay ino arraignment was not) “unnecessary”
Within the meaning of section 165 of the Code of
Criminal Procedure, that question was not properly
submitted to the jury.”
No clearer analysis of the circumstances under which the
issue of whether the voluntary nature of the confession was
adequately and properly submitted to the jury’ is possible.
The jury Was never properly instructed on the applicable
law: it was impossible to have an intelligent discussion and
decision under the circumstances,
Controlling Decisions.
This case comes squarely within Asheraft Vv. Tenn, supra.
There is a striking similarity between the cases, It would
serve no useful purpose to detail at length the facts estab
lished in the Asheraff case. Suffice to sar that there ape
of
peared to have been continuous questioning by experienced
lawyers and police officials: that he was held) incomumiaini-
eado for thirty-six hours without sleep or rest. “The
Constitution of the United States stands as a bar’, said the
Court. “against >the conviction of any individual ino an
American Court by means of coercion”,
The conceded and proven facts in the instant case, heve-
inbefore specitically set. forth, disclose a situation more
Havrant and indefensible than that shows in the tsheraft
ease No novel enle is asserted by the petitioners. Their
rights under the Constitution have been unlawfully invaded
They inveke its protecting weis, that their lives may vot be
forfeit by such unconscionable and vieious practices as were
indulged in herein.
— Other decisions that support petitioners’ contentions and
justify the writ sought are:
Wary. Teras, 316 UL S547?
Lisenha Vv. California, 314 US 219:
Chambers vo Blavida, 200 UL S.. B47:
White vo Teras, 310 UL S.. ABO:
Vernon Vo Alabama, 318 UL OS. SAT:
Lomar v. Teras, 313 U. S., 544:
Canty Vo Alabame, 309 UL OS. G29:
Brown Vo Mississippi, 297 Ul S., 27s:
Pierre \. Louisinna, 306 0. S.. 35
Betts v. Brady, Sit Ui, Sy 458
Liuvous \ Oklahoma. MEE Uett.. Adv. Op. No. 16, 1076
Conclusion.
The killing of patrolman Leon Fox was ai destardlh
Inexcusable, abhorent murder. Its perpetrators should be
punished. They deserve no svmorathy, they should receive
neo mereyv. Phe wisdom of the maxim “Justitia fiat. rurat
coclum”” is neither challenged nor deprecated, Considering
the present world-wide abnorma! conditions punishment. for
crime should be swift and exact. Convictions, however.
shonld be in accordance with law. The fathers wrought
one
better than they knew when “they incorporated those in-
Valuable safeguards for the life and liberty of our people
Which are found in the Constitution. Inherent in our crim-
inal procedure are definitely recognized foundamental com
cepts of justice, fairness and impartiality, precious to our
Anglo-Saxon civilization, which cannot be evaded merely to
secure Vietims for punishment. The law instinetively looks
upen confessions by the aeensed with suspicion. The
methods frequently used te obtain them, in violation of con-
stitutional rights, are teo well known, and have been so
often and erophatieaiiv condemned by this and other courts,
as to require ne enumeration. The Nazi system of justice,
with its concomittant methods of inducing confessions, has
no place in our jurisprudence and should never be given a
beachhead,
A calm and dispassionate examination of the record here-
in, and oof the cirenmstances under which Matinski's eon-
fession was procured, disclose a process abhorent to those
fundamental concepts of fairness and justice, characteristic
of our criminal procedure, and repellent to every element
of impartiality,
Important it is indeed to punish crime: but far more it
perative is it that our criminal procedure be not polinted
With foreign methods, alien to our concept of justice and
inconsistent with our system: of governinent,
So conclusively apparent does the record disclose an in
vasion of the petitioners’ rights under the Pourteenth
Amendinent, that the iatervention by this Court te prevent
2 gross miscarringe of justice, and the execution of te
titioners as a result of practices condemned by it. os
perative,
We respectively pray that the petition for certiorari be
eranted.
Respectfully Submitted,
JOHN J. FITZGERALD.
DAVID FL PRICE,
JOSEPH A. SOLOVET,
Counsel for Petitioners
dee
wilh
Appendix A.
United States Constitution, Amendment XIV. Section 1.
All persons borm ov naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
_—7 States and of the State wherein they reside. No State shall
mtke or enforee any law which shall abridee the privileges
or immunities of citizens of the United States: nor shall
any State deprive wny person of life, liberty, or property,
Without due process of law: nor deny to any person within
its jurisdiction the equal protection of the laws.
Appendix B.
Judicial Code of the United States, Section 237 (b), as
Amended, 28 U.S. C. A. Section 344 (b).
It shall be competent for the Supreme Court ys certiorari,
fo require that there be certified to it for review and de
termination, with the same power and authority amd with
like effect as if broweht up by writ of error, wiv Cause
Wherein a tinal judgment or deeree has been rendered or
passed by the highest court of a State in which a decision
could be had where is drawn in question the validity of a
treaty or statute of the United States: or where is drawn
In question the validity of a statute of anv State on the
vround of its beine repugnant to the (Constitution, treaties,
or taws of the United States: or where any title. right, priv-
ese, or immunity is specially set up or claimed by either
party under the Constitution, or any treaty or statute of, or
commission held or authority exercised under, the Onited
States; apd the power to review under this paragraph may
he exercised as well where the Federal claim is sustained as
Where it is denied. Nothing in this paragraph shall be con
strued to limit“or detract from the right to a review on a
writ of error in a ease where such a right is conferred by
the preceding paragraph: nor shall the fact that a review
on a writ of error might be obtained under the preceding
paragraph be an obstacle to granting a review on certiorari
under this paragraph.
Appendix C.
Section 165 of the Penal Law of the State of New York.
The defendant must in all CUSES be taken before the mag
istrate Without unnecessary delay.
%
Appendix D.
Section 399 of the Code of Criminal Procedure of the State
of New York.
A conviction cannot We had upon the testimony of am ac-
complice, unless he be corroborated by such other evidence
as tends to connect the defendant with the commission of
the crime.
“SN
_ &
Appendix E.
Section 1844 of adhe Penal Law of the State of New York.
A public officer or other person having arrested any per:
son upon a criminal charge, who wilfully and wrongfulls
delays to take such a pergon before a magistrate having
jurisdiction® te take his examination, is eniltv of a misde-
rhein.
Appendix F.
Section 528 of the Code of Criminal Procedure of the
State of New York.
When the judgment is of death, the Court of Appeals
may order a new trial, if it be satistied that the verdict was
weainst the weight of evidence, or against the law. or that
justice requires a new trial, whether any exception shail
heve been taken or not in the Court below,
Appendix G.
Section 595, United States Code of Criminal Procedure.
Title 18, United States Code (1940 Ed.. Voi. 2).
It shall be the duty of the Marshal, his deputy, or other
officer, Who may arrest a person charged with anv crime or
offense, to take the defendant before the nearest United
States Conmuissioner or the nearest judicial officer having
jurisdiction under the existing laws for a hearing, commit-
ment, or taking bail for trial * * *
oo
Appendix H.
Section 300 A of Title 5, United States Code
(1940 Ed.. Vol. 1, p. 124).
The Director, Assistant Directors, agents, and inspectors
of the Division of Investigation of the Department of lus:
tice are empowered to serve warrants and subpoenas issued
under the authority of the United States: to make seizures
under warrant for violation of the laws ef the United States:
tomake arrests without warrant for felonies which have
heen committed and which are cognizable under the laws
of the United States, in cases where the person making the
arrest has reasonable vrounds to believe that the person so
arrested is enilty of sueh felony and where there is a likeli:
hood of the person escaping before a warrant: can he ob-
tained for his arrest, but the person arrested shall be im
mediately taken before a committing officer, Such members
of the Division of Investigation of the Department of Tus
tice are authorized and empowered to carry firearms,
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.