# Brief for the Petitioner — Malinski v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0125%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Petitioner - **Published:** January 1, 1945 - **Citation:** 324 U.S. 401 ## Text ar 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. Q 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 31 14, Bi eaerad was ey ie eet Cheba 29, li, 2 St GS am On te Ww WwW SS oe -* 41 i4 4} 4] 4} 41 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 la 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 3 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, 4 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). © Beitler was dead at the time of the trial (Ree, pp. 679-681). D 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 i 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 8 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). q 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" 10 “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}. ro 11 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 12 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? - ‘““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 © Such action is in violation of the New York Stature § 165 of the ¢ rode ot Criminal Procedure, ante, p. 14, a 21 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. 22 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 23 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). i v4 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- 20 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- 26 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 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). 38 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 39 officers were magnified’? (authorities cited, p. 584). page DSo, the Court said: At ‘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). ‘’ 40 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, 41 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 43 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. , 44 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, 45 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 46 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. 47 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 48 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0125%3A4. Public record. Not legal advice.