Brief for the Petitioner — Malinski v. New York

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 367

MORRIS MALINSKEI ayn SIDNEY RUDISH,

Petitioners,

’

adaimst

THE PEOPLE OF THE STATE OF NEW YORK,

Responde nts,

ON WRIT OF CERTIONAKI TO THE COURT OF APPEALS OF THE STATE

4 OF NEW YORK

BRIEF FOR PETITIONERS

Joun J. Firzceravp,

Davin F. Price,

Counsel for Petitioners.

¥ Josepa A. So,ovet,

With Them on the Brief.

INDEX

CANAD 3h Src eer

Statement of the case...

Questions involved

Certificate of Court of Appeals yh! 3

Details of the crime. .

Indictment

Circumstances oder rr which jiestemmbeas cht: ained. .

As to Rudish

Argument

Duty of the trial court

Defendants seasonally asserted violation of constitu-

tional rights

As to failure to arraign without unnecessary delay.

Controlling decisions

Conclusion

Appendix A

Appendix B.

Appendix C.

Appendix D

Appendix KE.

Appendix F. .

Appendix G

Appendix H.

Appendix I

(Cases CITED

Anderson v. UU. S., La. Ed. Adv.

589

Ashkeraft v. Tennessee, L. Ed.

HRS.

Berger v. 8: 205 UL. 78.

Betts v. Brady, 316 U.S. 45:

Bram v. U. S., 168 UL. 5

Brown v. Mississippi, 297 U.

Canty v. Alabama, 309 U. .S. 629

Chambers v. Florida, 309 U.S. 227... .

Lisenba v. California, 314 U.S. 219...

—4833

Op.,

Adv. Op.

Vol. 8S, No. 14,

30 35 ,36,¢

30,

. 87, No. 10

14,

Bi eaerad was ey

ie eet Cheba 29,

li,

St GS am On te Ww WwW SS

li INDEX

. Page

Lomax vy. 7% res, 313 U.S. 544 ; Falah 4]

Lyons v. Ohlahkhoma, IT. | bd. Adv. ()p., Vol. SS, No. 16,

Lovo . 14,19,37,41

MeNabh, vi Gt. 8. LL. Ed. Adv. Op., Vol. SO, No. 10,

ja . — 38.30,40

N.¥.C. R. Co. v. Johnsen, 279 U. 8. 310 25

North rh Securit esny. United Slate s, 103 U. s. 107, 401 32

People V. € onrow spa N. . & Bot yh 2b

People vy, Es ae 2) N. fe 370 2h

Peaple v. Fielding, 168 N.Y, 542 26

People vy. Peptide 218. Ny. 9 26

People \ VJ all. lig N. - 247 2)

People v. Pantano, 230.N., Y. $16) 16.27

People v. Rope yr, 250 N. Y. 170 43

i ante v. i olf, ISS N. Y. 44 25

Pierre xy. Louisiana, 306, U.S. 354 30,41

Unilea States v. Mitchell, I. kd. Adv. Op., Vol. SS, No.

1, 5a cA 28.35.40

Vernon v. Alabama, 313 U.S. 547 41

Viereck vy. U.S., L. Ed. an Op... Vol S7, No. 10, 529. 25

Ward v. Us ras, 316 U. - AT oy 30.41

White v. Teras, 310 U.S. 530 .. 01,41

CONSTITUTIONAL ProviSiIOns AND STATUTES CrtEep

These are printed in appendices)

U.S. Constitution, Amendment 14, Seetion 1 45

Judicial Code of the United States, Seetion 237 (b) as

amended by the Aet of February 13, 1925, ¢. 229,

See. 1 (43 Stat. 937; 28 U.S

Section 595, U.S. Code of Criminal Procedure, Title 1S,

U.S. C. (1940 Ed., Vol. 2) : . 32,47

Section 8004 of Tithe 5, U.S. C. (1940 Ed.. Volk 1

124) : 7

N.Y. Penal Law. Section 1041. 4S

N.Y. Penal Law, Section 1844 946

N. Y. Code of Criminal Procedure, Section i63... 4.46

N. ¥. Code of Criminal Procedure, Seetion 399... 5,46

N.Y. Code ¢f Criminal Procedure, Section 528. .. . 23,47

(*, A. See. 344 (b)) 45

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1944

No. 367

MORRIS MALINSKI axp SIDNEY RUDISH,

Petitioners,

agamst

THE PEOPLE OF THE STATE OF NEW YORK,

Respondents

BRIEF ON BEHALF OF PETITIONERS

On certiorari to the Court of Appeals of the State of New

York.

The petitioners were convicted in the County Court of

Kings County of the State of New York of the crime of

murder in the first degree and sentenced to be put to death.

The judgment was aférmed by the Court of Appeals.

Opinions Below

The two opinions written in the Court of Appeals of the

State of New York are reported officially, 292 N. Y. 360.

The denial of the motion for reargument is reported offi-

cially, 293. N. Y. 695.

Jurisdiction

The jurisdiction of this Court is invoked under Section

237 (b) of the Judicial Code as amended by the Act of

February 13, 1925, e. 229, section 1 (43 Stat. 9387); 28 U.S.

CL AL Section 344 (b),’ this being a proceeding to review

the final judgment ef the Court of Appeals of the State of

New York rendered April 20, 1944, in which a decision could

be had.

The judgment affirmed a judgment of death (Ree. pp.

1-92; 95-96); and in said Court of Appeals petitioners

especially set up and claimed under the Fourteenth Article

of Amendment of the Censtitution ef the United States,”

the right, privileges and iminunity against being deprived

by the State of New York of petitioners’ rights and liberty

Without due process of law, ‘tand this point was considered

and necessarily decided by this Court’’, (292 N.Y. 686).

This point having been specifically presented im the briefs

on behalf of Malinski and Rudish, on the argument of the

appeal from the judgment of conviction and death of the

County Court of Kings Connty, New York State, and

specifically in the trial.

Statement of the Case

The petitioners and one Joseph IndBwine were eon

vieted of murder in the first degree, in the Couautyv Court,

Kings (County, New York State, on Julv 19, 1942, and your

petitioners were sentenced to be executed (Ree. pp. O41

Q)- 95.96).

The conviction was affirmed by the Court of Appeals by

a divided Court.) The jury recommended life imprison

ent for Indovino (Ree, pp. 1417), so that his case was not

passed upon by the Court of Ayipeals, and is not involved

here (292 N, Y. 360, 364).

P Appendix B, post pp. 45

fa Appendix A, post, p. 45. ,

* A stay of exeeution was granted hy Mr. Justice Jackson by order

dated June 19, 1944, and continued kw Order of the Court, dated October

9, 1044.

* The Court divided four to three

A motion for a reargument in the Court of Appeals was

denied without opinion June 14, 1944. (293 N.Y. p. 699).

There were two opinions written in the Court of Appeals.

The prevailing opinion was by Judge Conway, concurred

in by Judges Lewis, Desmond and Thatcher (292 N.Y.

360); a dissenting opinion was filed by Chief Judge Leh-

man and coneurred in by Judges Rippey and Loughran

(i. d., 376).

Questions Involved

The issues to be determined are:

(a) Were the circumstances under which a confession

was obtained from Malinski and put in evidence a denial of

due process under the Fourteenth Amendment?

(b) Did the conduct of the prosecuting attorney and his

summation to the jury constitute such a violation of the

fundamental concepts essential to a fair and impartial trial,

as to constitute a denial of due process under the Four

teenth Amendment?

(¢) Did the conduct of the judge, his charge, and his

failure to charge fully and intelligentiy on certain phases

of the case constitute a denial of due process under the

Fourteenth Amendment?

Certificate of Court of Appeals

The amended remittitur of the Court of Appeals (292

N. Y. 686) explicitiy recites that both Malinski and Radish

had raised questions under the Constitution of the United

States, which had been presented to that Court and neces

sarily passed upon (292 N. Y. 686).

Details of the Crime

On February 15, 1941, at elevea o’clock, P. M., Leon Fox,

a patrolman of the Police Foree of the City of New York,

was shot and killed. At the time of the homicide he was

escorting the manager of Loew's Theatre in Coney Island,

Borough of Brooklyn, City and State of New York, to a

bank depository. The manager had the day's receipts ot

the theatre, consisting of seven hundred dollars in bills,

and seven rolls of quarters of ten dollars each in a burlap

bag. As they approached the depository, a branch of the

srooklyn Trust Company, located at Surf Avenue and West

12th Street, Coney Island (Ree. pp. 127-128), they noticed

an automobile parked on West 12th Street, south of Surf

Avenue, with the lights out and the motor running. As

they reached the vicinity of the car, they were ‘jumped’

by one man, who came out of the automobile; the officer

was shot; the bag containing the money taken; the man

entered the car, which sped awey at a high rate of speed.

None of the occupants of the car, nor the participants im the

robbery and killing were ever identified (Ree. Pp}. 129-132).

The testimony against the defendants was given chiefly by

David Yellin’ ‘Nathan or Slip Spielfogel ® and Samuel

Kovner,’ three criminals then serving time in States Prison.

The indictment is as follows:

“The Grand Jury of the County of Kings, by this

indietment, accuse the defendants of te crime o* Mur-

der in the First Degree, committed as fellows:

The defendants, on or about February 15, 1941, in

the County of Kings, acting in concert with Abraham

Beitler, deceased,” wilfully, felontously and of malice

aforethought, shot and killed Leon Fox, with a pistol’

(Ree., p. 11).

‘Yellin was serving a term of from 10 to 2 years, for a “stick-up”,

convicted Deeember 12, 1941 ( Ree., . 221 ) pom

4* Sprelfogel, as a second offender was unfler sentence of from 30 to 60

vears, for eomphieity in the same “hold-up” te which Yellin was convieted

(Ree, pp. 905, 246). \

5 Kovner was serving a term of frou 15 to ul year for a “stiek-up”

committed Deeember loth, 1940. (Ree, p. 679).

The only testimony against the petitioner Rudish, was

viven by Yellin and Spielfegel (Rec., pp. 221-288; 295-447).

The incriminating testimony consisted very largely of

conversations alleged to have been had between Beitler,

Yellin and Indovino; Beitler, Indovino and Kovner; Malin-

ski and Spielfogel; and Rudish, Spielfogel and Yellin. The

conversations related largely to the planning of the rob-

bery, and those between Rudish and Yellin, and Rudish and

Spielfogel as to Rudish’s alleged participation in the atfair

all of such conversations having occurred immediately

prior, or subsequent, to the homicide (Ree., pp. 221-228 ;

315-3820).

The witness Yellin was held to be an accomplice as a mat-

ter of law (Rece., p. 1547).

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 accomplice was properly sub-

mitted to the jury as a question of fact (292 N. Y. 360, at

376): the minority insisted that the evidence established

him to be an accomplice as a matter of law, or if not, that

the evidence overwhelmingly proved him tou be so as a matter

of fagt (292 N. Y. 360, at 380).

If Spielfogel were an aceomplice, Rudish’s conviction

could not stand, since in New York State a conviction can-

not be had upon the uncorroborated testimony of an accom-

plice.’

Circumstances Under Which Confession Obtained

The testimony established that on Oetober 23, 1942, Mor-

ris Malinski was living with his family at 714 Hinsdale

Street, Brooklyn, N. Y. (Ree., pp. 548; 945). He left his

7 Section 399 of the New York Code of Criminal Procedure provides

that “A conviction cannot be had upon the testimony of an accomplice,

unless he be corroborated by such other evidence as tends to eenaect the

defendart with the commission of the erime.”

mains

6 ,

home shortly after 7 A. M. that morning to proceed to work.

When ne had gone a short distance, he was accosted by two

nen who put pistols to his head. He was handcuffed, taken

fo an automobile, placed in it and driven away. He asked

if he were being kidnapped and told to keep still. He was

driven to the Bossert Hotel, in Brooklyn, a distance of five

or six miles. During the drive a number of police stations,

police headquarters, the County Court of Kings County,

and the office of the District Attorney of Kings County were.

all passed. No stop was made. The Hotel Bossert was

reached at eight o’clock and Malinski was immediately

taken to @ room where Lieut. MeNally was present. Malin-

+ki Was immediately stripped naked. (Ree. p. 574).

After being stripped naked at the Bossert Hotel he was

kept that way for a while, and then given his BYD’s. Later

he was given a blanket. The testimony is conflicting as to

the length of time he remained undressed (R. 587-588, 607:

oo-006); but one officer attached to the district attorney's

office, testified that he was still in his stripped condition

when he returned to the room in the Bossert Hotel at

3:00 4. M. Saturday morning, October 24th (R. 595-596).

The reason assigned by the police for stripping Malinski

Was to ascertain whether there were any bullet wounds or

scars on his body (R. 584), although the homicide had been

effected twenty months previously (R. 11-12). What was

fonnd on examining Malinski’s body was evidence of

twenty one skin graftings on his chest and abdomen, neces

sitated by severe burns when he was a child (R. 531, 596),

Malinskt also testified that while he was still stripped

“Malinski claims by foree; the poliee say he undressed voluntarily

(Ree, pp. O49; S574, 595; 605-606),

Under cross-examination Lieut. MeNally was asked:

“Q. Did you immediately eommence interrogating the defendant Malin-

ski? A I stripped him first.

(). Did you then :aterrogate him? A. I did.” (Ree. 574.)

| 7

he was taken to an‘open window, his clothes placed on the

window sill and that the police threatened to throw him

out the window (R. 551). This was denied by the police

(BR. 572).

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

came to the hotel and questioned him about the Fox killing

and left in disgust because Malinski denied all knowledge

of the affair (R. 550). Lieutenant MeNally testified that

Heffernan came to the room where Malinski was, was told

who he was, looked at him ard walked out without spealing

to him (R. 476). Another highly improbable story—that

the publie prosecutor, notified of the arrest of a suspect in

a murder case on which he was working, merely looked at

the suspeet and did not question him at the earliest oppor-

tunity. Although Heffernan was present in the court room

at the trial he was not called as a witness (R. 325-326).

Malinski claimed that the police had beaten him from time

to time during the day, Friday, October 23, 1941 (R. 549,

901, 590, 597-598). The potice denied it (R. 572, 592, 604,

615). Some time in the course of the dav, about 5 or 6

o’clock in the afternoon, it is claimed that Malinski made a

full confession (R. 576). No transeript was made of any

such confession; nor was any attempt made to prove the

details of it. Later in the evening, about 9 o’¢lock, Mal

iuski was questioned in the presence of the Acting District

Attorney, Thomas Craddock Hughes, Assistant District At-

torney Heffernan, Captain MeGowan, head of the Homicide

Burean of the Police Department; Captain Dowdell, and

Lieutenant MeNally. No record was made of any state-

ments made at that time by Malinski. None of the persons

inentioned as being present at that time, ever denied his

presence or that what Malinski testified had occurred there

had never happened (R.851). Nor did any of them testify

(o any of the details of the confession which it is contended

Malinski made at that time. The following day, Saturday, -

October 24, 1942, Malinski complained of illness and asked

for a doctor (R. 562). His requ@&t was refused (R. D063).

He also requested permission to see a Rabbi, and an assis.

tant districtattorney named Nat Math: both requests were

refused (R. 322, 1254). Some sort of medicine or drug

was given to him by one of the police officers to alleviate

the stomach condition of which he complained (R. 596),

Hfe.was questioned all day Saturday and into the night.

The following day (October 25, 1942) he was questioned

further and eventually taken to a police garage. It is

claimed by the People that he there identified the ear which

had been used in the affair. He denied doing so, and his

conduet substantiates his elaim.®

He was questioned further and at leneth on that and on

the following Monday, when he was taken to the scene of

the crime (R. 644). All of this time he was held incom.

municado in the Bossert Hotel. When Lieut. MeNally was

asked why, if the police had a complete confession at about

five or six o'clock on Friday, October 23rd. that Malinsk;

had participated in.the brutal killing of a fellow member

of the police department, he was not locked up in jail, Me

Nally answered that Malinski had remained at the hote|

of his own volition, That he was given the choice of going

to jail or remaining at the hotel, and he chose to remain

atthe he +l with his ‘*pal,"’ Spielfogel, although Spielfowe!

* He was asked to open one of the doors of an automobile claimed to

have been the one used. He took his handkerchief from his poeket and

crasped 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 finger prints on the car (R. 949-959).

was locked up in jail every night (R. 580-581), while Mal

inski was kept @communicado in the hotel.

On Monday, the 26th, Malinski was questioned further

and was taken in an automobile over the route alleged to

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-ug’’ 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 con-

versed in Yiddish and that Spielfogel continually urged him

to give the answers he suggested, as by so doing Malinski

would avoid further ill treatment. About three o’clock im

the afternoon of October 26, 1942, the party arrived at the

Bath Beach or 62nd Precinct, station house. Malinski was

questioned off and on until 2:10 A. M., October 27, 1942,

when a statement then made by him as a result of que

tioning by Assistant District Attorney Heffernan, was taken

by a stenographer, and later transcribed (R. 552-503, 579).")

Then about 5:30 or 5:45 A. M., Tuesday morning, October

27, 1942, after having been held incommunicado from 7:10

A. M. of October 23, 1942, vour petitioner, Malinski, was

hooked, or for mally placed pinder arrest by having a charge

entered against him.’?

10 Evidently the alleged “full confessions” were unsatisfactory and so

the questioning was continced until one was obtained which met the re

quirements of the police.

11 No explanation was ever given for taking Spielfogel on the trip.

126The defendant must, in all cases be taken before the matistrate

without unnecessary delay, and he may give bail at any hour of the day

or night.” (N.Y. Code of Criminal Procedure, Sec. 16%).

Section 1844 of the Penal Law (N. Y.), provides that “.“ pubhe officer

or other person having arrested any person upon a ¢riminal eharge, who

wilfully and wrongfully delays to take such person before a mayistrate

having jurisdiction to take his examination, is guilty of a misdemeanor.”

”) °

wll

sys"

“Tf, as appears plain, they did ‘arrest’ the defend.

ant Malinski, then his confinement by the police at the

Hotel Bossert, or any other place, without prompt ar-

raignment Was contrary to the express command of the

statute and was unlawft!."*) (Opinien of Chief Judge

Lehman, p. 382).

Lieut. McNally testified that Malinski was arrested Tues-

day morning, October 27, 1942 (R. 580, 587), although he

was taken into custody and held tncommuaicado trom Fri-

day morning October 23, 1942, until the 27th when MeNally

claims he was arrested."

During the trial, Malinski testified in his own behalf and

dented emphatically that the admissions in the alleged eon-

fession were true, or that he had participated in any manner

Whatsoever in the robbery and killing (R. 955, 956, 961).

In addition to the oppressive conduct of the police and

prosecuting officers, there were other violations of peti

toners’ rights so highly pwejudicial as to deprive them of

a fair trial under the Fourteenth Amendment. For in

stance during thedfinal address of the assistant district at

torney remarks were indulged in of so highly a prejudicial

and vicious character as to vitiate the trial. There is no

dispute as to their indefensible character. ALL the Judes

of the Court of Appeals are in agreement as to their objec

tlonable character. Their impropriety was a denial of that

In People v. Mummiane (258 ‘ . 394, S09), if was s. ‘d:

“The pohee are guilty of oppression and negleet of duty when they

wilfuliy detain a prisoner withont arratgning him before a magistrate

within a reasonable time (Code of Crim. Proe.. ave. 165). The eonelusion

is inescapable that they do this for the purpose of subjeeting him to an

Inquisition impossible thereafter.”

'S*Malinski was taken into custody on Oetober 23° (R. 573). Con

eededly, he was not arraigned before a Magistrate or ‘booked until Oetober

27 (Ro 586-587). During this time he was in the custody of police ofbeers

ai the Hotel Bossert, Brooklyn.” (Brief in Opposition to petition for

eertiorari, p. 18}.

fundamental concept of justice and fairness that are essen

tial toa fair and iartis! trial imperative under the Four

teenth Amendment. The remarks and their impropricty

are full set forth and discussed hereinatter (post pp. 19,

20, 22

> meme le

As to Rudish

“The convietion of Rudish,’’ said Chief Judge Lehman,

in the dissenting opinion, ‘*thus rests upon the testimony of

two Witnesses who are accomplices by the great weight of

evidence. The Trial Judge charged that ‘no other evi

denee’ corroborates them. The verdict against Rudish

should for that reason be set eside’’? (Peo. ve Malinski, 292

N. Y¥. 360, 380).

That statement evidences how vital to Rudish was the

admission of evidence harmful to him. After proceedings

on the ver dire to determine whether the alleged written

confession of Malinski should be admitted and submitted

to the jury, the Court decided to admit the confession. After

some diseussion, the Court directed that certain names

should be deleted and in their places the designations **X"

and “Y"? be used (R. 618-620).

In the alleged confession, Malinski involved both Rudisn

and Indovine, and it was those names which the Court di

rected should be suppressed and for which **X’’ and “Y""

should be substituted. The device was futile. As soon as

Malinski was called to testify in his own behalf, a few ques.

tions by his counsel developed that ‘X7? and ‘*¥"" were

respectively Rudish and Indovino (R. 955, 962). As

said in Anderson v. United States, Vol. 87, Law Ad. Op.

589. O92.

“The government urges that, even if the confessions

sre held to be inadmissible, only the convictions of the

six petitioners who confessed should be reversed. The

prosecution rested principally on these confessions and

the testimony of an informant, Freed Long, whose

credibility was under severe attack. The incriminating

statement of each petitioner implicated all the others,

including those who did not confess. To be sure, th

trial court devised a procedure under which the confes-

stons were introduced without mention of the names of

the other persons implicated. But their names were in

fact revealed in the course of the cross-caamination of

the confessing petitioners.’’ (Italics ours.)

However, as appears from the Record (p. 589) before

Kudish and Indovino had been taken into custody the assist-

ant District Attorney had introduced their names and gotten

the fact before the Jury that Malinsk: had implicated them.

“By Mr. MeGough:

Q. On the day, (October 23) he (Malinski) finally

told vou at 5:30, had,vou apprehended Indevino and

Rudish? <A. No, sir.

Q. Were you or your men during that interval of

three days working on toe apprehension of those men?

A. Yes.

° ° . ° ° . .

). In other words, you were continuing your vesti-

vation; yes or no? A. Yes, sir.”’

The entire case empliasizes that Malinski’s confession

was fatal to Rudish. The indictment charged that Malinski,

Rudish, Indovino and Beitler, then deceased, acting in con-

eert, had killed Fox. In his opening address the District

Aitorney asserted that Malinski, Rudish and Beitler Were

at the scene of the crime; Indovino was not—he was the

tipster. That Beitler thereafter had committed suicide.

When Malinski’s alleged confession was put in evidence

with Rudish’s and Indovine’s names replaced by **X** and

“Y'’ even without anything further it was inevitable that

the jury should surmise that **X’? and ‘*Y** could only

mean Rudish and Indovino. The case against all ef the de

fendants was interminably interwoven and connected, so

that any evidence against any one of them, whether or not

Jeompetent against the others, must necessarily have influ-

eneed the jury unfavorably against them. It is absurd to

contend that merely because Rudish made no confession he

has no standing here. If the confession of Malinski was a

denial to him of due process, it is equally incompetent and

as vitally disastrous to Rudish.

The only testimony against Rudish was given by Yellin

and Spielfogel. Yellin was held to be an accomplice as a

matter of law (ante, p. 5); the Court of Appeals divided

sharply by four to three as to the status of Spielfogel (ante,

p. 5). Spielfogel was under severe attack as to whether

he had been an actual participant.in the crime. The con-

fession of Malinski 1iust have had tremendous influence

with the jury in determining Rudish’s guilt. If it were

wrongfully admitted, the conviction of Rudish should not be

permitted to stand.

Argument

One question involved herein is whether the confession of

Malinski, en the 27th day of October, 1942, was made under

such circumstances as to render it inadmissible under the

applicable decisions of this Court, and the due process

clause of the Fourteenth Amendment. It is the confession

taken on October 27th, by.a stenographer at 2:10 A. M. at

the Bath Beach station house and his identification of the

murder car and his description at the scene of the murder

with whieh this Court alone is concerned. While there is

testimony that Malinski had made ‘‘complete confessions”’

prior thereto, no attempt was made to prove that Malinski

said when the alleged ‘‘complete confessions’? were made,

and there is no evidence of any admissions made by him

at any other time after his apprehension on October 23,

1942, and his detention incommiunicado in the Hotel Bos-

o .

14 a

sert from which to peedicate a conclusion that he had con

fessed; nor was any effort made to prove any admission

by hint which would constitute a confession.

In ihe language of this Court in Brown v. Mississippi, 20

1S. 278, 286:

“The complaint is net of commission or mere e rror,

buttof a wrong vo fundamental that it made the whole

proceeding a mere pretense of a trial.’

Whether the other evidence in the record is sufficient to

Justify the general verdict of guilty is not necessary to con-

sider. The confession was introduced over the defendants’

objection. If such admission of this confession denied

constitutiqnal right to defendant the error requires re.

versal, «

Lyons v. Oklahoma, 88 S. ©. 1,. = 1076.

Bram v. United State s, 168 U. S. 532, 533 3, d40-42,

et Stromberg v. California, 283 U. S. 359, 367, 368.

Williams v. North Carolina, 317 U.S. 287, 291, 292.

Such being the well settled rule of this Court, no attempt

will be made to analyze the other evidence in-the ree ord,

nor will any answer be made to the elaborate argument in

the Brief in opposition to the petition for the writ of eer.

tiorari, that such other evidence establishes the petitioners’

cuilt regardless of the confession. If the confessisn was

improperly admitted and a constitutional right denied, the

Court will not attempt te evaluate the effect of the CON

fession. e

While there is a conflict in the testimony as to whether

Malinski was beaten while in custody to procure a confes.

sion, there are certain conceded and undisputed facts which

clearly and coneiusively establish that the. confession was

extorted as the result of coercion, duress and illega! acts

and conduct by the police and prosecuting officers.

It is not denied that Malinski was assaulted by two in-

dividuals, subsequently identified as police Officers, about

4:15 A.| M. on,t tober 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 handcutfs on him, told him to keep siient, when

he asked if he were being kidnapped, put him into a private

automobile and drove away from the vicinity of his home.

It is not only not denied, but it is conceded, that he was

taken toa private hotel, immediately stripped naked and kept

wholly unelothed, and later partially clothed for a consider-

abie time. [tis admitted that numerous (21) skin graftings

were found en his chest and abdomen. The testimony 1s

contradictory as to whether he was beaten while in custody,

and whether the police threatened, while he was partially

dressed, to throw him out of a window. It is conceded that

he complained of illness and asked for a doetor and none

was furnished. It is conceded that he asked to see a Rabbi

and an assistant distriet attorney, end that-his requests

were denied. It is admitted that he was held imeommunt-

cado from the time of his arrest at 7:15 A. M., on October

23, until 5:30 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 representa-

tives of the district attorney's office, and that at 2-10 A. M.

on the 27th ef October, he was qucsiioned; that the ques-

tions and his answers then put to him were taken by a

stenographer, and that he was then ‘*booked*’ and formally

placed under arrest at 5:30 o¢ 5:45 A. M., practically four

days after being taken into custody.

The purpose of these proceedings is not a matter of con-

_jecture or speculation. There is neither dispute nor com.

troversy as to the underiying motive of the police and the

public prosecutor, and the result songht.

bigs

What more conclusive evidence that the confession was

the result ef coercion and induced by threats could be fur-

nished than the admission of the People. In the Brief

in Opposition to the petition for certiorari it is said (p. 27):

‘* Malinski says he was keaten; the police deny that;

the district attorney is candid enough to say that the

police let him believe he was going to be beaten for the

psychological effect such a mode of de aling with him

might have upon him.”’ (Emphasis supplied. )

Could the author of that admission have had in mind

what was said in Peo. v. Pantano, 239 N. Y. 416, at 419; that

“A threat may be implied as well as expressed and

the fear engendered is alike in each case?”

» What other conclusion is possible from the established

_gind conceded facts than that stated in the dissenting opinion

‘of Chief Judge Lehman, wherein he Says:

‘Nonetheless, (p. 387) in this case, as in People v.

Muramiani (258 N.Y. 399, 400), ‘the conclusion is in-

escapable’ that the police delayed the arraignment of

the defendant for the purpose of subjecting him to in-

quisition impossible thereafter at which time he might

he induced to make a confession by resort to what the

Supreme Court of the United States has described as

those reprehensible practices known as the ‘third de-

gree, which, though universally rejected as indefensible,

still tind their way into use.’ ”’

The mere recital of the facets set forth herein should suf-

fice to establish that the confession was the result of cour.

clon and duress, and was not voluntary,

In the Brief in opposition to the petition for certiorari

there is a brazen attempt to justify this illegal conduet of

the police. At page 18 thereof is the following :

‘*Malinski was taken into enustody on October 23

(R. 573). Coneededly, he was not arraigned before a

Magistrate of ‘booked’ until October 27 (RL 586-587).

During this time he was in the custody of police officers

at the Bossert Hotel, Brooklyn. He was kept there

with his consent. According toe Detective MeNaily,

Malinski, when he was asked whether he preferred to

remain there, instead of being lodged in a police cell,

said his preference was the hotel. Also, according to

MeNally, when at five-thirty o'clock on the afternoon

of the day of his arrest, Malinski, admitted his part in

the killing, neither Indovino nor Rudish had been appre-

hended (R2 589). That this is so, is borne out by the

testimony of Indoyino that he was arrested on October

24 (R. 672), and of Rudish that he was arrested on the

same day (R. 672).

During the interval of three days following Malinski’s

admission of guilt and his confession to assistant dis-

triet attorney Heffernan, on October 27, the police of-

fieers were continuing their investigation of the case

(R. O80). That is not ar unreasonable explanation of

the police officers’ delay in arraigning Malinski.. Par-

ticularly, it is not unreasonable if it was true that Ma-

liuski acquiesced in being kept at a hotel instead of

‘heing placed ina cell.

‘In the absence of justification the detention for al-

most thirty-six hours was illegal and though the illegal

ity does not require the inference that the confession

obtained was involuntary, yet it has a substantial bear

ing upon that disputed question (People v. Alex., 265

N.Y: 392};’

Justification here appears. Of what avail would the

information supplied to them by Malinski have been

to the police if prompt arraignment followed disclos

ures of the afternoon of October 28, and his guilty part

ners were put on warning and thus allowed to escape?”

The following sentence, in that excerpt, is highly sigt-

nificant: ‘‘Particularly, it is not unreasonable if it was

true that Malinski acquiesed in being kept at a hotel in

stead of being placed in a cell.”’

Ix it possible to conceive that any one in possession of

his mental faculties, in custody and charged with a heinous

crime, having any hesitation in choosing whether to remain

in a hotel or being put in jail? It was Lieut. MeNally’s

plainly false and preposterous excuse for his failure to put

Malinski in jail after he had allegedly admitted participa-

tion in the murder of Officer Fox. Malinski, said MeNally,

preferred to remain at the hotel to be with his pal, Spielfo-

vel. Yet Spielfogel was locked up in jail every night. Was

there ever such solicitation by the police towards an al

legedly self¥fontessed murder roof one of their OWT Ther

bers ?

Unquestionably the assigned reason was false. Its falsits

is shown by what eceurred. Malinski was questioned on Fri-

day night, after his alleged confession that day about 5:30

or 6:00 P. M., all day Saturday, Sunday and Mouday until

he finally made the confession stenographically recorded at

2:30 A. M., October 27, 1944. The reai and sole purpose of

keeping Malinski at the hotel, instead of putting hive an

jail, was te permit continued questioning while he was held

incommunicadea and to permit the application of coercive

pressure until a satisfactory ‘confession’? was extorted.

As the District Attorney said in his summation, ** They

. * * They are not going to

hold men for several days.

let him vo home, or let him get hold of il stnart mouthpiece

to preach about his rights and te sue out writs’? (R. 1254).

In the Brief in opposition to the petition for certiorari it is

said (p. 18): ** During the interval-of thrée days following

Malinski’s admission of guilty and his confession to as

sistant district attorney Heffernan; on October 27. the

police officers were continuing their investigation of the

case."* The statement is too naive. Only those still living

in chidhood’s innocence could possibly be misled by such

reasoning. If Malinski had made a full confession at 5:30

or 6:00 P. M.. on the 23rd of October, why the incessant

questioning thereafter till 2:30 A. M., October 27th. The

conclusion is inevitable-—there was no complete colfession

October 23rd, and the questioning Was persisted in, without

cessation, until one satisfactory to the police was coerced

at 2:00 A. M., October 27th.

“We are loathe to believe that the police did actually

act as the Assistant District Attorney says they did.

We certainly cannot say that they did do so, and we

should net hesitate to reverse a judgment which is the

result of a trial at which a jury was led to believe that

such practices were lawful and proper.’ (Ch. J. Leh

man, 392 N. Y. at 389.)

The petitioners, however, do not rely alone upon the tore-

voing narrative of events to sustain their contention that

there was a flagrant denial of constitutional rights.

In his sununation, the district attorney said:

“Why this talk about being undressed?) Of course

they had a right to undress him to look for bullet scars,

and keep his clothes off him. That was quite proper

police procedure, That 1s some more psychology- let

him sit around with a blanket on him, humiliate him,

there for a while; let him sit in the corner, let him ~ae

think he is going to aet a shellacking’’ (R. 1283)4%

(Italics supplied.)

In what plainer terms could an admission be couched

that the practices to which the police had resorted were

solely to produce such a mental state as to induce thie de

fendant to make any statement desiged so as to be relieved

of the pressure? And does not such a frank admission of

coercion tend rather to strengthen Malinski’s claim that he

was subjected to physical abuse as well as to mental terror?

In Lyons v. Oklahoma, 88 Law Ed. Ady. Op. 1076 at 1079,

it is said: -

‘“‘The voluntary or jnvoluntary character of a con

fexsion is determined by a conclusion as to whether the

accused, at the time he confesses, isin possession of

‘mental freedoii’ to confess to or deny a suspected”

participation in a crime.’’ (Asheraft v. State of Ten-

nessee, 621 U.S. -—; Hysler v. Florida, 315 U.S. 411,

415.)

The People (in the Brief in O to P for C. p. 21) argue

that: : >-

‘““Malinski was possessed of ‘mental freedom’ at the

time he made his oral” confession. That he was dce-

prived of it, later, when he made his official confession

it is impossible, from all of the circumstances to

believe.”

Again it is emphasized that there is no evidence of an

‘oral’? confession. It has been said that Malinski made a

‘complete’’ confession about 5:30 or 6:00 P.M. October

Jord. The assertion is a mere conclusion, No attempt

Was made to prove the details—to show what he said. Not

satisfied with what was said at that time, the police continued

their persistent questioning until 2:30 A. M. October 27th

when the confession desired was stenographically recoriled.

It may be imipossible for a prosecutor to believe that Malin

ski had not by then been deprived of his ‘mental freedom’

it would bie difficult to find anvone else so naive as not to be

certain that he acted under duress.

Again, the district attorney said (R. 1254):

‘*Malinski was held and he was allowed te sleep

there."* He-could not get away. When MeN ally Was

asked, ‘did you place him under arrest?’, he probably

meant hp did not book him right away. . The ‘vy hold men

for several days.’* Are vou satisfied with that? They

are not going to let him go home, or let him get hold

Referring to Malinski’s detention at the Hotel Bossert

Criminal Procedure, ante, p. 14, a

of a smart mouthpiece to preach about his rights and

to sue out writs. You want a district attorney in this

county that is worth his salt, not a powder puff district

attorney. When you are trying a case of murder,

especially murder of a police 4fficer, you don’t go over

and give him a pat on the baekand say: ‘Do you want

anvthing? Do vou want to have your lawyer, or your

wife, or somebody else?’ In fact after that they would

not det him see Mr. Math, an assistant in our office;

they would not let him talk to a Rabbi. Do vou think

that MeNally, 17 years in the Police Department, ts

voing te let this jerk from the East Side tell him his

business?*’ °

In view of the long and historical struggle to establish

and protect fundamental rights which are sacred to Anglo-

Saxon civilization ean a more shocking and incredible

statement be imagined?

Commenting upon the foregoing and other passages in the

District Attorney's summation, Judge Conway, in the pre-

Vailing opinion (292 N. Y. 360, 373), said:

“The remarks were indefensible.”’

A further exeerpf is as follows:

‘Just imagiae! Down there on that bleak winter’s

night. Patrolman Fox trying to do his duty in the face

of these hoodlums who were out there in Coney Island

from the lower east side of Manhattan, where your lif

is not worth a pretzel.’ (Ree, p. 1258). (Emphasis

ours.)

It is a netorious fact of common knowledge, that in the

region of the City of New York, usually referred to as the

lower ** East Side’’, there are hundreds of thousands ot Jew-

ish 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 not an uncommon thing for attempts to be made to

create the impression that all of the inhabitants of the

tower Kast Side are criminals, and because of their race and

religious beliefs are an undesirable element of the eommu-

nity. The whole tenor of the ‘tindefensible’’ remarks of

the assistant district attorney was a brazen appeal to racial

and religious prejudices, highly detrimental to these de-

fendants —-both of whom are Hebrews—designed to have

the jury convict defendants because of their race rather

than on the evidence.

This insidious appeal to racial prejudice was not a spon-

taneous utterance made in the excitement of ar overzealous

summation. It was deliberate and carefully planned and

shrewdly calculated to implant the poisonous seed in the

jury’s minds. That such was the fact is clearly indicated -

by another excerpt from the summation :

‘*Killing’’, he said speaking of Malinski ‘a patrol-

tan tn the dead of winter and coming back and saying

‘that donkey went down like a ton of bricks!’ I guess

he thought he hit a Sullivan or Met ‘arthy, or McGough,

or something * * °** (Ree. p. 1276). (Italics sup-

plied.)

Could anything be clearer? Could there be any misunder-

standing of what was meant? Could the poison have been

tore skillfully injected? Could the conduct have been more

dastardly?

The Court was in agreement as to the outrageous and

imexcusable character of the assistant district attorney ‘s

statements.

The majority took the position that although counsel

had interrupted the summation a number of times, that

they were so little impressed by the offensive character of

the remarks, they made no objection to them. Chief Judge

Lehman pointed out, however, that exception was taken

ly motion for a mistrial. Under the practice in New York

State, in a capital case it is not essential for review by the

Court of Appeals that an exception be taken. The Court

has power to reverse for error, Whether any objection be

made or exception be taken."* But the question was not, as

Judge Conway seemed to assume, whether the remarks were

such as to impress counsel with their impropriety. The im-

portant question is, were they harmful to the defendants?

If they were, no exception was needed. It was the duty of

the Court to give such relief to the defendants as the situ-

ation required; if they were not harmful an exception was

futile.

The situation recalls the poignant words of Goldsmith. “

“When lovely woman stoops to folly,

And finds too Jate that men betray ;

—- What charm can cure her melancholy?

What art can wash her guilt away?

Moreover it is difficult to follow the reasoning of the

majority of the Court. It certainly does not conform to

any recognized system of logic. Indeed it seems to illumi-

nate Herbert Spencer’s comment upon the seeming Incon-

gruity between Tristian Shandy’s father’s argumentative

powers and ignorance of formal logie.* After referring to

the remarks of the District Attorney quoted in Chief Judge

Lehman’s dissenting opinion, and characterizing them as

‘indefensible’? Judge Conway concluded that ‘the effect of

the utterances, it sgems to us, would inure to the benefit of

Malinski rather than against him and they did not relate to

Rudish or Indovina.’* (Emphasis supplied.)

14 Spetion S28 of the New York Code of Criminal Procedure is in part

as follows: “* * © When the judgment is of death, the Court of Appeals

may order a new trial, if it be satisfied that the verdict was against the

weight of evidence, or against law, or that justice requires a new trial,

whether any exception shall have been taken or not in the Court below.”

17 She Stoops to Conquer, Chap. 5, Song Stanza *

is Philosophy of Style (1852).

In all saered and profane literature there is but one per-

tinent passage from Robert Burns that constitutes a cogent

answer to that specious reasoning:

“Oh! Wad some power the giftie gie us

Tae see oursel’s as ithers see us,

It would frae many a trouble free us

An foelish notions,

What airs in speech and gait wad lea us

An e’en devotion.”

In the Brief in opposition to petigion for certiorari an at-

tempt is made to sustain the Court's reasoning. At p. 27 is

the following:

‘The only reason we have referred to Counsel's qui-

escent reaction to the summation and failure on the part

of Malinski’s counsel to voice any objection to the ‘in-

defensible stateme Nts’, is that it is fair, sound argument

on Jndge Conway's part when he says it seemed to the

majority of the Court that the district attorney's utter

ances would inure to the benefit of Malinski rather

than against him."

cs sila then set forth grounds upon which it a&Serted

it Was/proper to base the conclusion that the ‘‘indefensible”’

remarks inured to Malinski'’s benefit.

“Tf'’) it is said, “the district attorne ‘vy coneeded that

the police endeavored to induce in Malinski a belief

that he was going to be beaten if the distriet attorney

went that far, then, if the scales were eve niyv balanced,

the jury might well have accepted Malinski's version

of the cireumstanees under which the confession was

obtained’? (p. 27)

It is submitted that if the ‘‘seaies were evenly balanced *’

the jury could not have been convinced beyond a reason-

able doubt that the confession was voluntary and must

therefore have disregarded it. The reason assigned, how-

e «ver, far from supporting the reasoning by which the con.

clusion that the ‘tindefensible’’ remarks were beneficial

rather than harmful, is but another admission that the

police had by inexcusable methods coerced Malinski to c¢on-

fess. P

Duty of Trial Court

Moreover, the Trial Court.was not without responsibility

in the premises. It was under an obligation to act. The

trial judge is not supposed to act the Sphinx. His duty

is not passive—it is affirmative. He is there not only to

preside, but to see that the trial is conducted fairly and

impartially and in accordance with the fundamental con-

cepts of fairness and justice. This Court, in) Vrereck

awainst United States, 87 Law Ed. 529, commenting upon

certain reniarks of the prosecuting attorney said:

“In his closing remarks to the Jury, he-—-the prose-

euting attorney—indulged in an appeal wholly irrele-

vant to any faets or issues in the case, the purpose and

effect of which could only have been to arouse passion

and prejudice. The trial judge overruled, as coming

too late, petitioner’s objection first made in the course

of the Court’s charge to the jury. * * * We think

the trial judge should have. stopped counsel's dis-

course, Without waiting for an objection.”

In N. ¥. C. R. Co. v. Johnson, 279 U.S. S10, 316, 318,

the following appears:

“The public interest requires that the Curt of its

own motion, as is\its power and duty, protect suitors

in their right to a verdict uninfluenced by the appeals

of counsel fo passion and prejudice.”’

In People v. Wolf, I83.N. Y. 464, 472:

‘An unfair trial, especially in a eriminal case, is a

reproach .y the administration of justices and casts

grave responstbility not only upon the prosecuting offi-

cers but also wpon the trial judge. > * we have

repeatedly laid down the rule governing prosecuting

offceers in addressing the jury and to govern. trial

judges also in their duty relating to the subject. We

have repeatediy admonished both, the former at times

with severity and the latter more mildly, not to depart

from that rule, but our admonitions have not always

been rewarded, although they were followed by reversal

of the judgment involved, founded solely on the re-

marks of the prosecuting officer and the failure of the

trial judge to do his duty in reference thereto.”’

ACE.

People v. Esposito, 220 N. Y., 370;

People v. Manganaro, 218 NY... 9, 17: .

Pe ople w< Mull, 167 N. Ta I47:

P, ople Vv. Ba Idina, 15s N. ge 40.

In People v. Conrow, 200 N. Y.. 356, 369, considerable

adverse testimony had been elicited in the ceross-examina-

tion of the defendant and subsequently stricken out by the

Trial Court. The Court of Appeats said:

“It is not mere = easy thing for a juryvinan to

elnninate from biwememory the effeet of damaging

statements made in his presenee. * * * In this

case, Where the defendant's lite ts involved, we are un.

willing to fake the responsibility: of saying that the

statements and charges of Monat erroneously received

although stricken out, did not atfeet the result.’

The Trial Court did not interrupt the District Attorney

at any time during his *tindefensible’? remarks, nor did he

at any time or in any manner point out in his charge the

objectionable and inexcusable character of them, and advise

the jury te disregard them and not to be influenced by them.

Whatever prejudicial impression the remarks may have

made upon the jury no attertpt was made to eradicate the

improper impression by the one whose duty it was to pre-

vent such results. f

This Court has emphatically and in no unmistaken terms

condemned such conduct by the prosecuting attorney.

In Berger v. UL S., 295 U.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 a

sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all, and

whose interests, therefore, in a criminal prosecution,

is not that it shall win a ease, but that justice shall be

done. As such, he is in a pecular and very definite

sense the servant of the law, the twofold aim of which

ix that the guilty shall not eseape or innocent suffer.

He may prosecute with earnestness and vigor — indeed,

he should do so. But while he may strike hard blows,

he is not at liberty to strike foul ones. [t is as much

his duty to refrain from improper methods calculated

to produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.”

This language was cuoted with approval in Vereck v.

ILS. supra.

Again, let us quote from the remarks of the district at

torney:

“Of course, they had a right to undress him to look

for bullet sears, and keep the clothes off him. That

was quite proper police procedure. That is some more

psychology—let him sit around with a blanket on him,

humiliate him there for a while; let him sit in the cor

ner: let him think he is going to aet a shellackina’

(Italics ours.) (Ree., p. 1283.)

As said in People v. Pantano, 239 N.Y. 416, 419:

“A threat may be implied as well as expressed and

the fear engendered is alike in each case.”’

The assistant district attorney frankly boasted that the

. procedure adopted was intended to instill a belief that

plivsieal foree was to be applied to Malinski. Under the

mreumstances, the mental condition resulting was, the same

as if the force were actually used. While there is contradic-

tory testimony as to whether physical force was actually

applied, there is ao dispute that the preeedure fellowed,

as intended to have the same effect.

The People in their Brief, heretofore mentioned, (py. 27)

quote from United States v. Mitchell, 322 U.S. 65, to sup

port their contention that Malinski’s confession was volun

tary. ‘The very excerpt quoted, however, supports the peti-

tioner’s contentions. The Court pointed out that Mitchell

had consented to a search of his home and made a prompt

acknowledgment of his guilt. He was then detained eight

davs- before being arraigned before a magistrate. ‘Un

doubtedly his detention during this period was illegal."’

But the acknowledgment of guilt was not made as a result

of the detention, nor at the conclusion of it. He made his

ndmissionstbhetore there was any illegal detention. ‘* But

in any event,’’ said the Court, ‘‘the illegality of Miteheil’s

detention does net retroactively change the circumstances

under whieh he made the disclosures. These, as we have

seen, were not elicited through illegality. Their admission,

therefore, would not be used by the Government of the fruits

of wrongdoing by its officers. Being relevant, they could

be exeluded only as a primitive measure against unrelated

wrongdotns by the police.”’

That is not the case at bar. The very reverse happened

here. The detention was continuous and lasted until the

econie- sion Was obtained; the detention was legal; the con-

fession was coerced; the People and used the fruit of the

wrong-doing by the police. Using the confession so ob-

tained violated the petitioners’ Constitutional rights.

& 0

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 Con-

victions Have Resulted From the Use of Confessions Im-

properly Obtained.

The petitioners have seasonably asserted their rights.

The amended remittitur of the New York Court of Appeals

sets forth that defendants’ claim that they were denred due

process of law under the Fourteenth Amendment was raised

and necessarily passed upon by that Court (ante, p. 3).

The Record on appeal to the Court of Appeals discloses that

the questions were raised on the trial in the Court below.

This being a capital case this Court is not bound by the

finding of the Court, or the jury, or of both. It is under the

solemn duty to make an independent investigation to deter-

mine the facts for itself.

In Chambers v. Florida, 309 U.S. 22

97, 228, it is said:

we oF * use by a state court of an improperly ob

tained confession may constitute a denial of due process

of law as guaranteed in the Fourteenth “Amendment,

Since petitioners have seasonably asserted the right

under the Federal Constitution to have ther guilt or

innocence of a capital crime determined without reh

ance upon confessions obtained by means preseribed

by the due process clause of the Fourteenth Amend.

ment, we must determine independently whether peti

tioners’ confessions were so obtained by review of the

facts upon which that issue necessarily turns.””

In Lisenha v. California, 514 U.S. 219, 240, it is said:

«oe * * we think it right to add that when a prisoner

held incommunieado is subjected to questioning by

19 292 N. Y. 686.

Ponree

officers for long periods and deprived of the advice of

counsel, we shall scrutinize the record with care to de-

termine whether, by use of his confession, he is de ‘prived

of his liberty or life through tyrannical or oppressive

means.’

In Ferre vy. Lowisygna, 306 U.S. 354, 35s:

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 solemn duty to make independent

inquiry and determination of the disputed facts—for

equal protection to all is the basie principle upon which

justice under the law rests.’

In Ward v. Texas, 316 U.S. 547, 550, the Court said:

‘*Kach State has the right to prescribe the tests gov-

erning the admissibility of a confession. In various

States there may be various tests. But when as in this

case, the question is properly raised as to whether a

defendant has been denied the due process of law guar-

anteed by the Federal Constitution, we cannot be pre-

cluded by the verdict ef a jury from determining

whether the circumstances under which the confession

was made were such that its admission amounts to a

denial of due process."

In Ashcraft v. Tenn., 88 L. ed.. Adv. Op., No. 14, 858,

speaking of the duty of the Supreme Court to make an in-

dependent examination to determine whether a confession

was voluntary, the Court said;

‘Our duty to make that ¢xamination couid not have

been foreclosed by the finding of a court, or the verdict

of a jury or both.’

Considering the circumstances under which Malinski's

confession was obtained. as hereinbefore set forth, the lan-

cuage of this Court in White vo Texas, 310 US, 530, 533, ts

peculiarly pertinent:

‘*Due process of law, preserved for all by our Consti-

tution, commands that no such practice as that dis-

closed by this reeord shall send any accused to his

ceath.”’

In Betts v. Brady, 316 U.S, 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 identical

words in the Fourteenth Amendment. The phrase

formulates a concept less rigid and more fluid than

those envisaged in the Bill of Rights. Its application

ix less a matter of rule. Asserted denial is to be tested

by an appraisal of the totality of the facts in a given

CAS.

In the instant case every device condemned by this Court

as obnoxious to the Constitution were all employed to ob

tain Malinski’s confession. Summarized they are: arrest

without warrant; an assault with firearms; threats to keep

silent; a spiriting away to a hotel, instead of a jail, during

which numerous police stations, police headquarters, the

County Court House and district attorney's office were

passed; stripped naked, upon a flimsy pretext that it was

desired to ascertain if there were bullet wounds or scars

twenty months after the affray; held incommunicade frog

7-15 A. M. October 23rd until 2:10 A. M. October 27tiy-re-

peatedly questioned day and night; denied medical atten

tion when requested; denied opportunity to consult a,Rabbi

or an assistant district attorney, with the conceded pur-

pose of preventing advice or assistance from friends and

counsel—the only thing disputed being physical violence-

mental coercion being conceded. What more could be done,

or must be done, to establish that a confession is involun-

tary?

To use Mr. Justice Holmes illuminating expression the

petitioner Was subjected to a pressure that can only be

properly characterized as ‘*hydraulic."’

Northern Securities v. United States, 193 U.S., 197,

401.

As to Failure to Arraign Without Unnecessary Delay

In a note, page 9, ante., Section 165, of the New York

Code of 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 unavoidable delay, i. e.. inability to

locate a magistrate or illness of the prisoner. It is a

matter of common knowledge, however, that in the City of

New York, magistrates are always available. They sit

every day. Night courts are held by them. No issue was

presented that magistrates were not available during the

period of detention. The purpose of delaying arraignment

in order to secure a satisfatcory confession was conceded.

It was the duty of the Trial Court to advise the jury as a

20*Tt shall be the duty of the marshal, his deputy, or other officers, who

may arrest a person eharged with any erime or offense, to take the de-

fendant before the nearest United States Commissioner, or the nearest

judicial officer having jurisdiction under existing laws for o hearing,

commitment, or taking bail” (18 U.S. C. A., See. 595).

The Act of June 18, 1934, e. 595, 48 Stat. 1088; 5 U.S. C. A... see. 300

A, authorizing officers of Federal Bureau of Investigations to make ar-

rests, requires that, “the person arrested shall be immediately taken before a

committing officer”.

: a

: matter of law that the failure to arraign Malinski from

the time of his arrest on October 23rd, until October 27th,

was a flagrant violation of law. The Court did not do so.

The charge on that question is as follows (R. 1877):

I charge you that it was the duty of the

police to arraign the defendant before the nearest

magistrate without unnecessary delay, and, further,

that if a police officer failed or refused to perform such

duty, he 1s guilty of a misdemeanor.

But, gentlemen, vou will bear in 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 later made, was the result of

the coercion, either direct or implied, which is pro-

hibited by the statute, and which invalidates a contes-

sion, if made. If vou should find that the arraignment

of the defendant was delaved, vou may consider that

on the question of the voluntariness of any confession

made by Malinski, including the one made in the earl?

hours of October 27, at the Bath Beach Station louse.

However, I am charging vou that the failure to ar-

raign, in and of itself, is not conclusive against the

People, and does not, in and of itself, standing alone,

destroy the validity of the confession. Is that clear?”’

It is respectfully submitted that the charge was erroneous

and grossly inadequate. It was not for the jury to speculate

as to whether there had been ‘‘unnecessary delay,’? in

i the arraignment. The fact was so overwhelmingly estab-

lished, that the jury should have been so advised. They

should have been further instructed that such a flagrant

violation of law on the part of the police must be seriously

Hi and carefully weighed in determining whether the con-

ft fession of October 27th was voluntary. It should have been

i pointed out that only after repeated questioning, day and

night, for four days, did the police obtain such a confes-

sion as they were willing to have transcribed. The jury

should have been told to consider well whether the delay

in arraignment was to obtain the sort of confession desired

and necessary to involve Malinski. As Chief Judge Leh-

man pointed out (ante, p. 16) that ‘tthe conclusion is ip-

escapable that the police delaved the arraignment for the

‘purpose of subjecting the defendant to inquisition there- ‘

after impossible."* Moreover, the charge minimizes the

importance of a prompt araignment of a prisoner and must

have been exceedingly misleading to the jury. As Chief

Judge Lehman said (292 N. Y. 360, 287):

‘*There can be,no fairy trial of the issue whether the

confession is voluntary, where the jury is not properly

informed that the detention was unlawful and they

must take that fact into consideration. That has not

been done im this case,

It js true that in the charge of the Court, the jury

was informed that ‘it was the duty of the police to ar-

raign the defendant before the nearest magistrate,

without unnecessary delay, and further if a police offi-

cer failed or refused to perform such duty, he is guilty

of a misdemeanor’, and ‘that if vou should find that the

arraignment of the defendant was delayed, you may

cousider that on the questien of the voluntariness of

any confession made by Malinski, including the one

made in the early hours of October 27, at the Bath

Beach Station House.’ That instruction is not suffi-

cient where, as in this case, the evidence produced by

the People, conclusively shows that the police flag-

rantly disobeyed the express mandate of the law.

Even if there had been a question in this case, that

the delay in 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."’ (Italics supplied.)

No clearer analysis of the circumstances nuder 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 preperly instructed on the applicable

law. It was impossible to have an intelligent discussion and

decision under the circumstances,

The entire tenor of the charge was apologetic, It sought

to minimize the gross dereliction of duty on the part of the

police. The soft peddling could not be but misleading to

the jury. How could the jury fail to be impressed by the

statement, ‘‘But. gentlemen, vou will bear in mind that the

police department is not on trial in this case?’’ Maybe not;

but surely the conduct of members of the police departinent

Was a Vital issue to be determined. That should have been

made clear to the jury; they should not have been left to

crope in a maze of uncertainty; they should not have been

left to speculate . s to whether there had been illegal delay;

‘illegality is illegality ’’,?" and good motives and pious in-

tentions and excessive zeal do hot make whit is ‘illegal’

Controlling Decisions

This case comes squarely within Ashcraft v. Tenn., supra.

There is a striking similarity between them. It would

serve no useful purpose to detail at length the facts estab

lished in the Asheraft ease. Suffice to say that there ap-

peared to have been continuous questioning by experienced

lawyers and police officials; that he was held inmcom-

municado 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 in an

American Court by means of coercion”’

The conceded and proven facts in the instant case herein-

before specificaiiy set forth, discloses a situation more

flagrant and indefensible than that shewn in the Ashcraft

ease. No novel rule is asserted by the petitioners. Their

21 T'nited States v. Mitchell, 322 U. S. 65.

rights under the Constitution have been unlawfully invaded.

They invoke its protecting aegis, that their lives nay not

be forfeit by such unconscionable and vicious practices as

were indulged in herein.

In the instant case, as in the Ashcraft ease, neither in the

lower Court, nor in the Court of Appeals, was it actually

‘*held as a matter of fact that petitioners’ confessions were

‘freely and voluntarily made.’ *’

‘The record discloses that neither the trial eourt

nor the Tennessee Supreme Couri actualiy held as a

matter of fact that petitioners’ confessions were ‘freely

and voluntarily made.’ The trial court heard evidence

on the issue out of the jurv’s hearing, but did not itself

determine from that evidence that the confessions were

voluntary. Instead it over-ruled Asheraft’s objection

to the use of his alleged confession with the statement

that, ‘This Court is not able to hold, as a matter of law,

that reasonable minds might not differ on the question

of whether or not that alleged confession was volun-

tarily obtained.’ And it likewise over-ruled Ware’s

objection to use of his alleged confession, stating that

‘the reasonable minds of twelve men might * *® *

voluntary, and ° ° ° therefore, that is a question

of fact for the jury to pass on.’*2 Nor did the State

Supreme Court review the evidence pertaining to the

*? The legal test applied by the trial court to determine the admissibility

of the two confessions was stated thus:

nessee with reference to confession is simply this; it is largely a question of

fact as to whether or not a confession is voluntary, and is made without

hope of reward or fear of punishment. It only becomes a question of lay

-for the Court to decide when, from the facts svrrounding the taking of

the alleged confessions or statements, the Conrt, as a matter of law, ean

hold that the State has failed to carry its burden, which it has of showing

that the “confessions .were free and voluntarily, and that reasonable

minds could not differ, and could eome to but one conclusion that the eon-

fessions were involuntary and foreed.”

was vars teh eee ianhine Din Sac Sts ati aan rns Ok

- : ves of ae one AY > eee pe hl

. 37

confessions and affirmatively hold them voluntary. In

sustaining the petitioners’ convictions, on Justice dis-

senting, it went no further than to point out that, ‘The

trial judge * * * held * * * he could not say

that the confessions were not voluntarily made and,

therefore, permitted them to go to the jury’, and td de-

clare that it, likewise, was ‘unable to say tlfat the con-

fessions were not freely and veluntarily made’.**

If, therefore, the question of the voluntariness of the

two confessions was actually decided at all it was by the

jury.

Proceeding te review further what happened in the State

this Court said:

‘*This treatment of the confessions by the twe State

Courts, the manner of the confessions’ submission to

the jury, and the emphasis upon the great weight to

be given confessions make all the more important the

kind of ‘independent examination’ of petitioners’ claim

which, in any event, we are bound to make. Lisenba v.

California, 314 U.S. 219, 237-288. Our duty to make

that examination could not have been ‘foreclosed by

the finding of a court or the verdict of a jury or both

An examination of the circumstances under which Malin-

ski’s confession was obtained permits no conclusion other

than it was involuntary. The facts have heretofore been

reviewed. It is nmnecessary to repeat them here. As Mr.

Justice Murphy said in Lyons v. Oklahoma, supra, such

“flagrant abuse by a State of the rights ef an American

23 Notwithstanding the apparent fact that neither the trial eourt nor

the appellate court affirmatively beld the confessions voluntary, the Ter-

nessee Supreme Court, in its opinion, restated the rule it had annenneed in

previous eases, that, “When confessions are offered as evidence, their

competency beeomes a preliminary question, to be determined by the

Court * * °* (If) the judge allow the jury to determine the pre-

liminary fact, it is error, for which the judgment will be reversed.” (See

Self v. State, 65 Tenn. 244, 253).

citizen accused of murder ought not to be approved.’’ If

the seales of justice are to be held even, it cannot be up-

held.

McNabb vy. United States 87 Law. Ed. 579 strikingly

resembles the instant case.

The defendants therein were arrested by officers of the

Bureau of Internal Revenue, on suspicion of having mur-

dered on officer of that agency, but were not taken before

a committing magistrate, as required by Federal statute,

28 Stat. 486 (1894); 18 U.S. C., see. 595 (1940). After be-

ing kept mcommunicado for several days, and questioned

intermittently, they confessed to the murder. The District

Court ruled at the trial, that the confessions were voluntary

and admissible, and a conviction of second degree murder

resulted largely because of the confessions. The Circuit

Court of Appeals affirmed; the Supreme Court granted

certiorart and reversed the convictions on the groung that

wonfessions elicited from he accused while in illegal eus-

tody, under the circumstances disclosed, were inadmissible,

Whether voluntary or otherwise. ~

lere are some remarkable coincidences in the faets in

that\pase and the mstant one. The defendants wre ques

tionedby a number of officers; ne friends or counsel were

presents one Was stripped to ascertain if he had been in

jured going through the woods at the scene of the affair

and greatly frightened as a result (p. 582).

It was pointed out (p. 583) that a conviction in the Fed-

eral Courts, cannot stand if it be based on evidence illegally

obtained (see authorities cited). That the Court had, on

constitutional grounds, set aside convictions, both in the

Federal State Courts, which were based upon evidence

‘secured by protracted and repeated questioning of igno-

rant and untutored persons in whose minds the powers of

officers were magnified’? (authorities cited, p. 584).

page DSo, the Court said:

‘Quite apart from the Constitution, therefore, we

are constrained to hold that the evidence elicited from

the petitioners in the circumstances disclosed here

must be excluded. For in their treatments of the pe-

titioners, the arresting officers assumed functions which

Congress has explicitly denied them. They subjected

the accused to the pressure of a proce dure which is

wholly incompatible with the vital but very restricted

dutics of the investigating and arresting officers of the

government, and which tends to undermine the integrity

of criminal proceedings”’ (emphasis supplied, p. 585).

Referenee is then made to the Federal statutes similar

to Section 165 of the Code of Criminal Procedure and

contemues:

“The purpose of this impressively persuasive re-

quirement of criminal procedure is plain. A demo-

cratic sotiety in which respect for the dignity of all

men is central naturally guards against the misuses

of the law enforcement process. Zeal in tracking down

crim. is not, in itself, an assurance of soberness of

judgment. Disinterestedness in law enforcement does

not alone prevent disregard of cherished liberties.

Experience has therefore counseled that safeguards

must be provided against the danger of the overzeal-

ous as well as the despotic * ° °. Legislation

such as this, requiring that the police must with

reasonable promptness show legal cause for de

taining arrested persons constitutes and iniportant

safeguard—not only in assuring protection for the in-

nocent, but also in securing conviction of the guilty by

methods that commend themselves to a progressive and

self-confident society. For this procedural require-

ment checks resort to reprehensible practices known

as the ‘third degree’, which though universally reject

as indefensible, still find their way into use’? (emphasis

supplied, p. 586).

‘’

After summarizing the arrest and the detention and

quizzing of the defendants, the Court continues:

‘Plainly, a conviction restir™ on evidence secured

through such a flagrant disregard of the procedure

which Congress has commanded, cannot be allowed to

stand without making the Courts themselves accom-

plices in wilful disobedeience of law.’’

bids , also:

Anderson v. United States, Law. Ed. Ady. Opin

ions, Vol. 87, No. 10, page 589.

Surely this Court cannot permit itself to be put in the

‘ategory of an accomplice of those guilty of the atrocious

violation of law which the record herein discloses.

In United States v. Mitchell, 88 L. ed., Adv. Op., No. 13,

812,815 (decided April 24, 1944), Mr. Justice Reed said:

‘As IT understand MeNabb v. United States, 318

U.S. 332, 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 circumstances

which are deemed by this Court to be contrary to proper

conduct of Federal prosecutions, the confession will

not be admitted. * ° ° Inmy view, detention with-

out commitment is only one factor for consideration in

reaching a conclusion as to whether or not a confession

is voluntary. The juristic theory under which a con-

fession should be admitted or barred is bottomed on

the testimonial trustworthiness of the econfessiog. If

the confession is freely made, without inducement or

menace, it is admissible. If otherwise made, it is not,

for if brought about by false promises or real threat,

* it has no weight as proper proof of guilt.’’

While it is reeoguized that the rule in the McNabb case,

supra, thus interpreted applies only to cases in the Fed-

eral Courts, ana ihe power to review cases in State (Cougts,

is more restvicted-andiiniited (tcNabb v. United States,

supra), yet the petitioners herein contend that there is here

both conceded illegal detention and coercion and duress of

the most flagrant character. 7

Other decisions that support petitioners’ contentions are:

Ward v. Texas, 316 U.S., 547;

Lisenba vy. California, 314 U.S., 249;

Chambers v. Florida, 309 U. S., 227;

White v. Texas, 310 U. S., 530; \

Vernon v. Alabama, 313 U.S., 547;

Lomar v. Texas, 313 U. S., 544;

Canty v. Alabama, 209 U. S., 629;

Brown v. Mississippi, 297.U. S., 27s ee

Pierre v. Lowsiana, 3806 U.S., 3543

Beits v. Brady, 316 U.S., 455;

Lyons v. Oklahoma, 88 L. Ed., Adv. Op., No. 16 1076.

The facets herein come within the principles enumerated

therein. In none are the faets so conclusive as herein.

Even in those of the above cited authorities where the de

cision has been adverse to the petitioners, the applied rule

compels «a required favorable conclusion herein.

Nothing is to be gained by a detailed recital of the cir-

cumstances of the foregoing decisions. Unusual cireum

stances, not present in the instant case, have compelled

conclusions that would be illogical and inconsistent upon the

established facts in the case under review.

But when there is shown to have existed such facts as

were established herein but one conclusion is logical and

just.

As said in the Report of the Committee on Lawless en

forcement of Law, Amer. Journal of Police Science, p. 587;.

‘Holding incommunicado is objectionable because arbi.

trary—at the mere will and unregulated pleasure of a police

chief ’’—we have it here; ‘‘the use of the third degree is

A 42

obnoxious because it is secret; beeause the prisoner is

wholly unrepresented’’—we have it here: ‘because there

is present no neutral, impartial authority to determine

questions between the police and the prisoner’’——we have

it here; ‘because there is no limit to the range of the inqul-

sition, nor to the pressure that may be put upon the pris-

oner’’—we have that situation here. And when it is con-

sidered how little information was furnished cither by the

police or the district attorney as to what transpired outside

of continued questioning of Malinski during his detention

incommunicado from 7:30 A. AML. October 28rd until 2-00

A. M. October 27, it needs no extraordinary degree of in-

telligence, mer@ly ordinary experience, to picture what

Malinski must have undergone during his incarceration.

Conclusion

The fact of the killing of the deceased by the defendants

in a capital ease in the State of New York, must be proved

beyond a reasonable doubt.*

Three of the seven judges of the Court of Appeals voted

to reverse the conviction of both petitioners. The reasons

for their position were set forth cogently and in detail in

Chief Judge Lehman’s opinion. It emphasized that there

was failure to protect petitioners’ right to a fair trial.’

**As applied to a criminal triaf, denial of due process

is the failure to observe that fundaniental fairness es-

sentiaPto the very concept of justice. In arder to de

clare a denial of it we must find that the absency of

that fairness fatally infected the trial: the acts com-

plained of must be of such quality as necessarily pre-

vent a fair trial.’

Three judges of the Court of Appeals so concluded. The

proven facts more than justify their conclusion, At no time

“*N. Y. Penal Law, Section 1041—Appendix, post. p. As.

*5 Lasenba v. California, 314 U. S. 219, 236. 7

in our history has it been more important for the Courts

to stand fast in safeguarding our liberties. The funda-

mental rights, which the founders, so carefully outlined and

protected should not be evaded by a desire to accomplish

something worthwhile. The punishment of the murderers

of Leon F'ox is a praiseworthy task. If the efforts be suc-

cessful, it should not be at the expense, or in violation, of

precious rights. With present world-wide chaotie condi-

tions, the inclination to take short cuts to do so-called justice

is ever pressing. The existing War undoubtedly has among

its important objectives the preservation of our Anglo-

Saxon civilization, with the recognition of man’s natural

rights to life, liberty and the pursuit of happiness, and the

preservation of those institutions so Providentially devised

to preserve them. |

Let us repeat here and emphasize what was said prev

ously : .

‘(Important it is indeed to punish erime, but far more

imperative is it that our criminal procedure be not

polluted with foreign methods, alien to our concept

of justice and inconsistent with our system of govern:

ment.”’

A calm and dispassionate examination 6f the record

herein and of thé circumstances under which Malinski’s

confession was procured, discloses a process abhorrent to

those fundamental concepts of fairness and justice char-

acteristic of our criminal procedure, and repellant to every

element of impartiality.

As said by Ch. Judge Lehman in People v. Ropes eae

“We may not ‘sustain a conviction erroneously se

cured on one theory on the conjecture that it would

have followed just the same if the correct theory had

been applied’. (Hiscock, Ch. J. tn People v. Smith, 252

26 959 N. Y. 170, 176. ,

N. Y. 239, 244). A criminal, however shocking his

crime, is not to answer for it with forfeiture of lite

or liberty till tried and convieted in conformity with

law.*’

The Court ‘annot ignore current world wide events.

Or as has been so aptly said:

“Courts cannot emulate the ostrich, and by hiding

their heads pretend ignorance of current events of

universal knowledge."’

This nation is engaged in « titanic world-wide struggle.

Its chief object is to destroy arbitrary and totalitarian gov-

ernments, which arbitrarily deny ordinary natural rights,

and to make the blessing of democracy secure for all the

peoples of the world. Of what avail to sacrifice the flower

of the youth of our country, to pour out unmeasurable

treasure, to create burdens to be borne by many future gen-

erations to secure those objectives, if some of the more de-

testable phases of Nazism and Fascism are to be tolerated.

even encouraged and approved in our own blessed land?

Perish the thought! This sanctuary of freedom, liberty

and democracy must be preserved inviolate. The one hope

is this tribunal. Failure here, means disaster everywhere

else.

To sustain the judgment of the Court of Appeals will be

to deprive the petitioners of their lives without due process

of law.

Respectfully Submitted,

Joun J. FitzGreaup,

Davip F. Price,

Counsel for Petitioners.

Josern A. Sovovet,

with them on the Brief,

APPENDIX A

United States Constitution, Amendment XIV, Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

Unites! States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

lic privileges or immunities of citizens of the United States ;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within the jurisdiction the equal protection of the

Jaws.

APPENDIX B

Judicial Code of the United States, Section 237 (b), as

Amended, 28 U. S. C. A., Section 344 (b).

{i Shall be competent for the Supreme Court by certiorari,

to require that there be certified to it for review and

determination, with the same power and authority and with

like effect as if brought up by wrig of error, any cause

wherein a final judgment or decree fas been rendered or

passed by the highest court of a State ia 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 any State on the

eround of its being repugnant to the Constitution, treaties,

or laws of the United States, or where any title, right,

privilege, or imbunity 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

United States; and the power to review under this para-

eraph may be exercised as well where the Federal claim

is sustained as where it is denied. Nothing in this para-

eraph shall be construed to limit or detract fromghe 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. a

APPENDIX C

Section 165 of the Code of Criminal Procedure of the State

of New York

The defendant must in all eases be taken before the

inagistrate without unnecessary delay.

APPENDIX D

Section 399 of the Code of Criminal Procedure of the State

of New York

A conviction cannot be had upon the testimony of an

accomplice, unless he be cerroborated by such other evi-

dence as tends to connect the defendant with the commis

sion of the crime.

APPENDIX E

Section 1844 of the Penal Law of the State of New York

A public officer or other person having arrested any pes

son upon a criminal charge, who wilfully and wrongfully de

lays to take sucha person before a magistrate having juris

diction to take his examination, is guilty of a misdemeanor.

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 satisfied that the verdict was

nyvainst the weight of evidence, or against the law, or that

justice requires a new trial, whether any exception shall

have 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., Vol. 2)

it shall be the duty of the Marshal, his deputy, or other

officer, who may arrest a person charged with any eine

or offense, to take the defendant before the nearest United

States Commissioner or the nearest judicial officer having

jurisdiction under the existing laws for a hearing, commit

ment, or taking bailfortrial, * ° °

APPENDIX H

Section 300 A of Title 5, United States Code (1940 Ed.,

Vol. 1, p. 124)

The Director, Assistant Directors, agents, and Ins] clors

of the Division of Investigation of the Department of Jus

tice are empowered to serve warrants and subpoenas is-

sued under the authority of the United States; to make

seizures under warrant for violation ef the laws of the

United States; to make arrests without warrant for felonies

Which have been committed and which are cognizable under

the laws of the United States, in cases where the person

raking the arrest has reasonable grounds to believe that

the person so arrested is guilty of such felony and where

there is a likelihood of the person escaping before a war

rant can be obtained for his arrest, but the person arrested

shall be immediately taken before a committing officer.

Such members of the Division of Investigation of the De

partment of Justice are authorized and empowered to carry

firearms.

APPENDIX I

Section 1041 New York Penal Law

No person can be convicted of murders or manslaughter

unless the death of the person alleged to have been killed

and the tact of killing by the defendant, as alleged, are each

established as independent facets; the fermer by direct

proof, and the latter beyond a reasonable doubt.

(4833)

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.