# Petition for Writ of Certiorari — Malinski v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0125%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1945 - **Citation:** 324 U.S. 401 ## Text > ; : x ont 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 See ee era area a hk a kes a ee aaa Se 3G | DERPACEN PRe ee SIP ae Sire LR 5 es WBN eed OP i ob ay Thc ov has bums lakarcee Bee natas 6 eee ia s bhai as REM Ks sr Oe ROE Ean ea Res 38 EP oe aie prin iter aga Re (aera hip Coe she 38 oe 6 te & O'S. 26 .s + 4.8-56.8 2 8S 66S a SR Oe 2.2 28 OS SO 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, 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, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0125%3A3. Public record. Not legal advice.