Opposition Brief — Johnson v. New Jersey

OCT 2 2196

1 JOHN E. DAVIS, C

TITION NOT PRINTED

IN. THE

Supreme Court of the United States

October Term, 1965, No, seem. 72

4 SYLVESTER JOHNSON and STANLEY CASSIDY,

a, Petitioners,

ari vs.

* STATE OF NEW JERSEY,

Respondent.

i

he BRIEF IN PARTIAL OPPOSITION TO

- WRIT OF CERTIORARI.

NorMan HEIne,

: Camden County Prosecutor,

Court House,

Camden, New Jersey

TABLE OF CONTENTS

I. The prosecutor’s summation and the charge of

the Trial Court were not violative of defend-

ants’ constitutional rights

A. The defendants having conceded their guilt

of first-degree murder, comment by the Trial

Court and prosecutor on defendants’ failure

to testify did not influence the jury in the

determination of defendants’ guilt

B. Assuming the applicability of Griffin v. Cali-

‘fornia, this decision should not apply retro-

actively ...

. The summation of the prosecutor was proper ..

. The case, sub judice, is inapposite to Escobedo

v. Illinois, nevertheless, the State urges the

granting of petitioners’ writ of certiorari as to

A. The holding of Escobedo should not be ex-

tended to apply to those cases where the de-

fendant failed to ask for counsel

B. Even if the holding in Escobedo should be

extended it should not be applied retroac-

tively ...

. The alleged delay in arraignment does not in-

validate the confessions

. Petitioner, Cassidy, was not deceived and in-

duced to turn over a gun to the authorities as

PAGE

the result of allegedly false statements to the

prosecutor ...

VI. The mere fact that Wayne Godfrey’s confession

was found to be involuntary by the Circuit

Court of Appeals does not require a reversal of

TABLE OF CITATIONS

CASES:

Anderson v. State, 205 A. 2d 281 (Md. 1964)

Ashcraft v. Tennessee, 322 U. S. 143 (1944)

Bean v. State, 398 P. 2d 251, 253-255 (Nev. 1965) ...

Biddle v. Comm., 141 S. E. 2d 710, 713

Browne v. State, 131 N. W. 2d 169 (Wis. 1964)

Colombe v. Connecticut, 367 U. S. 568 (1961)

Commonwealth v. Negri, 34 L. W. 2186-2187 (Pa.

S. Ct., September 28, 1965)

Comm. v. Coyle, 203 A. 2d 782 (Pa. 1964)

Comm. v. Patrick, 206 A. 2d 295, 299 (Pa. 1965) ....

Comm. v. Roy, 207 N. E. 2d 284, 288 (Mass, 1965) ..,

Cowans v. State, 209 A. 2d 552 (Md. 1965)

Davis v. State, 388 S. W. 2d 940, 941 (C. C. A. Tex.

1965) ...

Escobedo v. Illinois, 378 U. S. 478 (1964) . .9, 10, 12, 13, 14

Galarza Cruz v. Delgado, 233 F. Supp. 944, 948 (D.

Puerto Rico (1964)

TABLE OF CONTENTS

PAGE

Gallegos v. Nebraska, 342 U.S. 55 (1951) .......... 14

Griffin v. California, 380 U. S. 609 (1965) ......... 6,7

In Re Gaines, 34 L. W. 2114 (Calif. Sup. Ct., Au-

My iets ewer caden dnd thie taeeoess ne 8

Jackson v. United States, 337 F. 2d 136 (D. C. Cir.

EE Ch der nd bis Cbdiads ses Feb roan anetvriese 10

Linkletter v. Walker, 381 U. S. 618, 14 L. Ed. 2d 601,

Se Gee CIOOOY ks decevccdedusuelivertess 7,13

Long v. United States, 338 F. 2d 549, 550 (D. C. Cir.

UTE as Ve Oar hcaatWN Ye Oe TIC VOL a neh es NS 10

Malinski v. New York, 324 U. S. 401 (1945) ........ 18

Mallory v. United States, 354 U. S. 449 (1957) ...... 14

PO Vs SU, SEO Lee Gi Rms du sip'e pis an punto ch ens 7

Mapp v. Ohio, 367 U. S. 643, 81 Sup. Ct. 1684, 6 L.

Tie RL, LAME). 24 'vic Gan xin ony ote teens 7, 12, 13, 14

McNabb v. United States, 318 U. S. 332 (1943) ...... 14

Morford v. State, 395 P. 2d 861 (Nev. 1964) ........ 10

People v. Agar, 253 N. Y. S. 2d 761 (1964) .......... 10

People v. Golson, 207 N. E. 2d 782 (Pa. 1964) ...... 10

People v. Gunner, 15 N. Y. 2d 226, 205 N. E. 2d 852

Lk Wi MED as ik pee natadeeesatbn seck? Oss > 10

People v. Hartgraves, 202 N. E. 2d 33 (Ill. 1964), cert.

OM Sci d NE NE. REPENS, WL 10

People v. Lewis, 207 N. E. 2d 65, 66 (Ill. 1965) ..... 10

People v. Scanlon, 84 N. J. S. Ct. 427, 202 A, 2d 448

REUED «sick 5) 00k ake 00 cartels bole gree keen 10

Pinch v. Maxwell, 34 L. W. 2190 (Ohio Sup. Ct.,

mpbemnee: TD, TGGG) iss as sings s one npents bane 8

Russo v. New Jersey, 23 L. W. 2621 (3rd Cir., i965) 11

State v. Bindhammer, 44 N. J. 372 (1965) .......... 10

TABLE OF CONTENTS

PAGE

State v. Dufour, 206 A. 2d 82 (R. I. 1965) ........... 10

State v. Elam, 263 N. C. 273, 139 S. E. 2d 601, 607

CUE, ANY, dps tipminhs Ube Rade ends cee cane 10

State v. Fox, 131 N. W. 2d 684 (Iowa 1964) ........ 10

State v. Hall, 397 P. 2d 261, 264-265 (Idaho 1964) .. 10

State v. Hodgson, 44 N. J. 151, 162-163 (1965) ..... 10

State v. Johnson, 31 N. J. 489, 512, 158 A. 2d 11, 24

(1960), 43 N. J. 572, 591, 206 A. 2d 737, 747

CLE chi win doc acp 4 Une c kd Win oul . 6,7, 8, 9, 12,17

State v. Lanzo, 44 N. Pi MOR CRGEB).. vinids Kvainin d's vie ene 10

State v. Longmore, 134 N. W. 2d 66 (Neb. 1965) .... 10

State v. McLeod, 203 N. E. 2d 349 (Ohio 1964) ..... 10

State v. Mendes, 210 A. 2d 50, 52-54 (R. I. 1965) .... 10

State v. Neely, 398 P. 2d 482 (Ore. 1965) ........... 10

State v. Ordog, 45 N. J. 347 (1965) .............. 10, 14

State v. Scanlon, 84 N. J. Super. 427 (App. Div. 1964) 10

State v. Smith, 43 N. J. 67 (1964), cert. den. 379 U. S.

MA COMED. 5 Vitals hv Rk ONE ACLs eke coves Cinecees 10

State v. Upchurch, 141 S. E. 2d 528, 531 (No. Car.

BOE soe EWN hee a blah g dc eh Ook s Gites NREIS 10

State v. Vigliano, OD WV. SE (10CR). ieee: 10

State v. Winsett, 205 A. 2d 510, 525 (Del. Super. Ct.

MOS Ss his fc axns che ckgchnd dah ea 10

State v. Worley, 132 N. W. 2d 764 (Neb. 1965) ....... 10

Stroble v. California, 343 U.S. 181, 197 (1952) ...... 14

U.S. ex rel. Shott v. Tehan, 339 F. 2d 990 (6th Cir.),

cert. granted May 24, 1965, 33 L. W. 3376 ...... 6

United States v. Childress, 347 F. 2d 448, 450 (7th

ST MOE ao ods Coe reeks coupe reer tceh¥erans 10

United States v. Ogilvie, 334 F. 2d 837, 843 (7th Cir.

TD 6k S65 ho RAS RS ah ah wee ess ees wend 10

Ward v. Comm., 205 Va. 564, 138 S. E. 2d 293 (Va.

SOON iba we Redl a sid cane Weak wed TES CRASS 10

STATEMENT OF POINTS INVOLVED.

I, The prosecutor’s summation and the charge of the trial

court were not violative of defendants’ constitutional rights.

(Points 1 and 2 of Petition.)

A. The defendants having conceded their guilt of first-

degree murder, comment by the trial court and prosecutor

on defendants’ failure to testify did not influence the jury

in the determination of defendants’ guilt.

B. Assuming the applicability of Griffin v. California, this

decision should not apply retroactively.

II. The summation of the prosecutor was proper. (Points

3 and 4 of Petition.)

III. The case, sub judice, is inapposite to Escobedo »v. IIli-

nois, nevertheless, the State urges the granting of petition-

ers’ writ of certiorari as to this issue. (Point 5 of Petition.)

A. The holding of Escobedo should not be extended to

_ apply to those cases where the defendant failed to ask for

counsel,

B. Even if the holding in Escobedo should be extended it

should not be applied retroactively. :

IV. The alleged delay in arraignment does not invalidate

the confessions. (Point 6 of Petition.)

V. Petitioner, Cassidy, was not deceived and induced to

turn over a gun to the authorities as the result of all

false statements to the prosecutor. (Point 7 of Petition.)

VI. The mere fact that Wayne Godfrey’s confession was

found to be involuntary by the Circuit Court of Appeals

does not require a reversal of petitioners’ case. (Points 8

and 9 of Petition.)

L

THE PROSECUTOR'S SUMMATION AND THE CHARGE

OF THE TRIAL COURT WERE NOT VIOLATIVE

OF DEFENDANTS’ CONSTITUTIONAL RIGHTS.

A.

The defendants having conceded their guilt of first-degree

murder, comment by the Trial Court and prosecutor on

defendants’ failure to testify did not influence the jury

in the determination of defendants’ guilt.

“The defendants chose not to take the stand in their own

behalf and their reasons for not doing so were made abun-

dantly clear by their counsels’ opening and closing state-

ments.

Cassidy’s lawyer, in his opening to the jury, stated:

“I have made up my mind to one thing, I am not

going to try to fool you, members of the jury, I am

not going to put forth any sham defense. Because if I

do, I feel I am going to harm my client. Because I feel

that you members of the jury would be able to see

through it at once. I intend to listen to these facts as

presented by the State as to how this alleged crime

took place. At the close of the State’s case it is my

intention to present the defense to this case as I would,

naturally, in any other case, but certainly in a case

which is a capital case, with the truth, and I feel con-

fident that, members of the jury, when you have heard

all the evidence in this case, whatever your verdict

may be, that the verdict that you give will be given

after you consider all the facts and after you consider

all the mitigating and extenuating circumstances, and

I feel certain that that verdict will be given without

any partiality or bias.

“That is what I ask of you members of the jury, to

give a true and honest verdict in accordance with the

facts of this case” (JA234a).

In his summation he stated:

“Great mention was made, and undoubtedly will be

further made, by the prosecutor, to the fact that the

defendant failed to take the stand, and because he did

not take the stand, we may all assume that he did not

(1752) do so because he could not deny that which is

charged. That is an honest statement. The action of

the defendant was an honest act. He has not taken the

stand to conjure up stories and lies: The facts are as

they are presented” (JA270a).

Johnson’s lawyer, in his opening, stated:

“As carefully as you listen, that is how carefully I

shall listen. For, I, too, am concerned with the facts

and with the truth, as you are. You too will listen to

all the facts and will consider and determine that they

all be true. If something is not true, we do not want it.

If something is not factual, we do not want it, whether

it be for the good of the defendants, whether it

be bad for the defendants, in favor or against the

State. All we do want are the truthful facts, that

which happened. For then, in that manner, we can de-

termine how to close our case to you and you in turn

deliberate and determine a fair verdict” (JA235a).

4

In his summation, he stated:

“T also think that I can anticipate that the Prosecutor

will have much to say to you in regard to the fact that

the defendant did not take the stand. And I believe

that the Prosecutor will charge you—rather, have the

court charge you, that the failure of the defendant to

take the stand from that fact, that you may infer or

believe that the defendant could not successfully an-

swer the evidence or charges against him.

“Now, members of the jury, I think the Prosecutor

will dwell upon that, I believe he has already earlier

this afternoon.

“I told you members of the jury at the beginning of

this case that I had made up my mind that we were

not going to present any trick defense, that we were

not going to try to fool you, and that we were going

to ask the State to prove their case according to law,

and I think that we have done that.

“T have told you that the defendants were entitled

to have the charges against them proven against them

according to law.

“And, members of the jury, the reason that Sylves-

ter Johnson did not take the stand was because I don't

believe and I know that he could not successfully deny

these particular charges against him. His confession

certainly implicates himself.

“Members of the jury, this case was lost a year ago

by the defense. This case was lost when a citizen had

the alertness of mind to take down a license number

and reported it to the police. This case was lost from

that day on. There is no contest here as to who wins

or loses the case. No matter what happens, the State

wins this case. The evidence as you have heard it

shows, and that you can draw from that naturally, that

a robbery was attempted and that during the course

of that robbery a killing took place.

“But, members of the jury, you are not compelled by

law because you find that a robbery took place or at-

tempted to take place, and that there was a killing in

the course of that robbery, to bring in the death pen-

alty. It is not mandatory. And I think that you. know

that from the questions that we asked you during the

time that we questioned you as prospective jurors”

(JA281la-JA283a).

The Court in its charge stated:

“None of the defendants took the stand to deny their

participation in the crime. Under our law, a defendant

cannot be compelled to testify, but he is competent to

testify, and he has a right to testify, and his failure to

be a witness in his own behalf is no presumption of

guilt and does not erase the presumption of innocence.

The failure of the defendants to take the witness stand

should not be considered as prejudicial in respect to

your determination as to whether or not you should

attach to your verdict the recommendation of life im-

prisonment, in case you, the jury, should find any of

the defendants guilty of murder in the first degree, If

any inculpatory or incriminating facts are testified to

which concern the acts of that particular defendant

which he could by his oath deny, his failure to testify

in his own behalf raises an inference that he could not

truthfully deny those inculpatory or incriminating

facts.”

It is impossible to conceive of injury to defendants by the

prosecutor’s or court’s comment in view of counsel’s posi-

tion that defendants were, admittedly, guilty of first-degree

murder. The defense conceded defendants’ guilt and were

devoted exclusively to an attempt to save defendants from

the death penalty. Under these circumstances, the com-

ment of the prosecutor and the trial court could not have

influenced the jury in the determination of defendants’

guilt. State v. Johnson, 43 N. J. 527, 591, 206 A. 2d 737, 747

(1965).

The case, sub judice, is distinguishable from Griffin v.

California, in that, in Griffin the defendant contested his

guilt. Here guilt is admitted and the only question the

defendants submitted to the jury was the extent of punish-

ment.

Assuming the applicability of Griffin v. California, this

decision should not apply retroactively.

A reversal of these convictions bottomed on Griffin ».

California, 380 U. S. 609 (1965), would require retroactive

application of a factually distinguishable precedent.

We note that this court has recently granted certiorari

on the issue of retroactive application of Griffin in an Ohio

habeas corpus proceeding. U. S. ex rel. Shott v. Tehan,

339 F. 2d 990 (6th Cir.), cert. granted May 24, 1965, 33

L. W. 3376. In that case, as well as in Griffin, the defend-

ant contested the issue of his guilt and offered no explana-

tion for his failure to testify. But, in the case sub judice,

the guilt of defendants was not in issue. See counsels’

statements, supra.

The State concedes that Griffin v. California, supra, pro-

hibits comment where a defendant stands to be injured by

virtue of his exercise of a constitutional right (not to tes

tify). However, as the \'ew Jersey Supreme Court found

7

below, the comment by the prosecutor could not have ad-

versely affected defendants’ constitutional rights to a fair

trial. State v. Johnson, supra. The New Jersey Supreme

Court made specific reference to its earlier holding that the

prosecutor’s remarks did not prejudice the substantial

rights of the defendants in view of the trial court’s clear

instruction to the jury that the failure to testify should not _

be considered in the determination of whether or not to

recommend life imprisonment. State v. Johnson, 31 N. J.

489, 512, 158 A. 2d 11, 24 (1960), as cited at 43 N. J. 572,

591, 206 A. 2d 737, 747 (1965). (See trial court’s charge,

supra.)

The circumstances of this case do not appeal to our “deep-

est sentiment of justice”, and, hence, do not warrant a retro-

active application of Griffin’s interpretation of the Malloy

rule (Malloy v. Hogan, 378 U.S. 1). State v. Johnson, 43

N. J. at 583.

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

recent pronouncement of the Supreme Court upon the ret-

rospective application of constitutional judicial decision,

held the rule of Mapp v. Ohio, 376 U. S. 643 (1961), not

retrospective in application. Mapp, as does the present

case, are concerned with the application of a rule of evi-

dence. Here, as in Linkletter, to apply the rule retrospec-

tively would serve as a foundation for upsetting convictions

in a large number of cases decided long ago wherein the

accused failed to testify and the court and prosecuting at-

torney commented on such facts in accordance with proce-

dures authorized by New Jersey by statute. Release, again,

as in Linkletter, would not be based on the innocence of the

accused, but on a newly declared ruling first announced

long after the time of conviction. Such retrospective ap-

' plication of that newly declared ruling would not benefit

the honest citizen but would serve only to create a new

method whereby convicted felons could avoid their con-

viction. See Pinch v. Maxwell, 34 L. W. 2190 (Ohio Sup.

Ct., September 29, 1965); In Re Gaines, 34 L. W. 2114

(Calif. Sup. Ct., August 20, 1965).

Il,

THE SUMMATION OF THE PROSECUTOR WAS

| PROPER.

The allegations of the impropriety of the prosecutor's

summation has heretofore been decided in the Supreme

Court of New Jersey. State v. Johnson, 31 N. J. 489, 509,

513, 159 A. 2d 11 (1960). At that time the court deter-

mined that the graphic summation of the prosecutor was

justified by the evidence. This matter was again consid-

ered by the New Jersey Supreme Court which again de-

clared it-was completely satisfied that defendant’s rights to

a full and fair trial were not denied by the prosecutor's

summation.

“The defendants finally contend that the prosecutor’s

summation to the jury was so inflammatory that it de-

prived them of due process of law. The character of

the prosecutor’s remarks were fully considered by this

court on the defendants’ direct appeal and we were

completely satisfied that the defendants’ right to a full

and fair trial was not denied.” State v. Johnson, 43

N. J. 572, 596, 206 A. 2d 737, 750 (1965).

The defendants further contend that the prosecutor’s

comment about the failure of the defendants to take the

stand suggested to the jury that they should consider that

failure on the issue of punishment. The prosecutor’s re-

marks were considered by the New Jersey court, State v.

Johnson, supra, 31 N. J. at 512, which declared:

“In view of the trial court’s clear instructions that

the defendants’ failure to testify should not be consid-

ered by the jury in their determination whether to

recommend life imprisonment—the only real issue be-

fore the jury—we are satisfied that the remark did not

prejudice the substantial rights of the defendants.”

The New Jersey Supreme Court, in re-examining this

issue on defendants’ petition for post-conviction relief,

stated that:

“Therefore, we conclude that the comment of the

prosecutor and the trial court could not have adversely

affected defendants’ rights to a fair trial as guaranteed

by the Due Process Clause of the Fourteenth Amend-

ment.” State v. Johnson, 43 N. J. 591, 206 A. 2d 737

(1965).

III.

THE CASE, SUB JUDICE, IS INAPPOSITE TO ESCO.

BEDO v. ILLINOIS, NEVERTHELESS, THE STATE

URGES THE GRANTING OF PETITIONERS’ WRIT

OF CERTIORARI AS TO THIS ISSUE.

A.

The holding of Escobedo should not be extended to apply

to those cases where the defendant failed to ask for

counsel.

Defendants allege the denial of an opportunity to con-

sult with counsel and a failure of the police to advise them

of their rights to remain silent prior to their confessions.

These allegations were made, for the first time, in their

10

affidavits submitted to the New Jersey Supreme Court over

six years after their original trial. Relying upon Escobedo

v. Illinois, 378 U. S. 478 (1964), they conclude that their

constitutional rights have been so violated as to require a

reversal of their convictions.

There is hardly an issue of criminal constitutional law

which has divided the courts more than the issue of whether

the holding of Escobedo should be extended to apply to

those cases where the defendants did not request the as-

sistance of counsel. New Jersey has answered this ques-

tion in the negative.! Other jurisdictions hold similarly.’

1 State v. Ordog, 45 N. J. 347 (1965); State v. Lanzo, 44 N. J. 560

(1965); State v. Bindhammer, 44 N. J. 372 (1965); State v. Hodgson,

44 N. J. 151, 162-163 (1965); State v. Vigliano, 43 N. J. 44 (1964); State

v. Smith, 43 N. J. 67 (1964), cert. den. 379 U. S. 1005 (1965); State v.

Scanlon, 84 N. J. Super. 427 (App. Div. 1964).

2 People v. Hartgraves, 202 N. E. 2d 33 (Ill. 1964), cert. den.; People

v. Lewis, 207 N. E. 2d 65, 66 (Ill. 1965); People v. Golson, 207 N. E.

2d 782 (Pa. 1964); Comm. v. Coyle, 203 A. 2d 782 (Pa. 1964); Comm.

v. Patrick, 206 A. 2d 295, 299 (Pa. 1965); Browne v. State, 131 N. W. 2d

169 (Wis. 1964); State v. Upchurch, 141 S. E. 2d 528, 531 (No. Car.

1965); State v. Elam, 263 N. C. 273, 139 S. E. 2d 601, 607 (No. Car. 1965);

State v. McLeod, 203 N. E. 2d 349 (Ohio 1964); Cowans v. State, 209

A. 2d 552 (Md. 1965); Anderson v. State, 205 A. 2d 281 (Md. 1964);

State v. Hall, 397 P. 2d 261, 264-265 (Idaho 1964); State v. Worley, 132

N. W. 2d 764 (Neb. 1965); Morford v. State, 395 P. 2d 861 (Nev. 1964);

Bean v. State, 398 P. 2d 251, 253-255 (Nev. 1965); State v. Fox, 131

N. W. 2d 684 (Iowa 1964); People v. Gunner, 15 N. Y. 2d 226, 205 N. E.

2d 852 (N. Y. 1965); Comm, v. Roy, 207 N. E. 2d 284, 288 (Mass. 1965).

Intermediate appellate courts further support our position: People

v. Agar, 253 N. Y. S. 2d 761 (1964); Davis v. State, 388 S. W. 2d 940,

te

941 (C. C. A. Tex. 1965); People v. Scanlon, 84 N. J. S. Ct.

18

8

)

v. Dufour, 206 A. 2d 82 (R. I. 1965); State v. Mendes, 210 A. 2d 50, 52-54

(R. I. 1965); Galarza Cruz v. Delgado, 233 F. Supp. 944, 948 (D. Puerto

Rico 1964).

See too, State v. Winsett, 205 A. 2d 510, 525 (Del. Super. Ct. 1964);

Ward v. Comm., 205 Va. 564, 138 S. E. 2d 293 (Va. 1964); Biddle v.

Comm., 141 S. E. 2d 710, 713; State v. Longmore, 134 N. W. 2d 66

(Neb. 1965); United States v. Ogilvie, 334 F. 2d 837, 843 (7th Cir. 1964);

Long v. United States, 338 F. 2d 549, 550 (D. C. Cir. 1964); Jackson v.

United States, 337 F. 2d 136 (D. C. Cir. 1964); United States v. Chil-

dress, 347 F. 2d 448, 450 (7th Cir. 1965).

11

The more recent decisions cry out for elucidation by this

ceurt so as to put the question to rest.

In Commonwealth v. Negri, 34 L. W. 2186-2187 (Pa. S. Ct.,

September 28, 1965), the court, in commenting on Russo v.

New Jersey, 33 L. W. 2621 (3d Cir., 1965)? declared:

“The clear indication to this court is to accept and

follow the decision of the Third Circuit on this mat-

ter until some further word is spoken by the Supreme

Court of the United States.” y

This question has reached such critical proportions that the

New Jersey Supreme Court has issued its advisory direc-

tive suggesting to the trial courts and prosecutors not to

follow the holding in Russo until this court decides further

in this matter.

Of crucial importance to law enforcement officials is the

resolution by this Court of the following questions:

1. Is a free and voluntary confession by a defendant,

who has neither requested nor been refused counsel,

inadmissible in a State criminal trial by reason of the

Constitution of the United States solely because the

investigating officers did not advise him of his right

to consult with counsel and his right to remain silent?

2. Is a free and voluntary confession by a defendant,

who has neither requested nor been refused counsel,

inadmissible in a State criminal trial by reason of the

Constitution of the United States because the prosecu-

tion did not establish that the defendant at the time

of the questioning made a knowing and intelligent

12

waiver of both (a) his right to consult with counsel,

and (b) his right to remain silent?

3. If so, is such a free and voluntary confession in-

admissible where the record does not affirmatively es-

tablish that the defendant was not advised of his rights

and did not waive them?

Even if the holding in Escobedo should be extended it

should not be applied retroactively.

The New Jersey Supreme Court, in the case sub judice,

assumed for the sake of decision, that the allegations con-

tained in defendants’ affidavits were within the principle

announced by Escobedo (an assumption which it consid-

ered unsound), State v. Johnson, 43 N. J. 572, 206 A. 2d 737

(1965), but, nevertheless, refused to apply Escobedo retro-

actively. The court analogized Escobedo with the holding

in Mapp v. Ohio, 367 U. S. 643, 81 Sup, Ct. 1684, 6 L. Ed.

2d 1081 (1961), and stated:

“Where the reliability of the guilt-determining

process is seriously impugned there is good reason for

applying the new rule to a case already decided, It

would offend our sense of justice to continue to incar-

cerate a convicted man where subsequent considera-

tion cast grave doubts upon the reliability of the de-

termination of his guilt. But where the conviction was

obtained as a result of a procedure not considered fun-

damentally unfair at that time, and subsequent judicial

decisions cast no substantial doubts upon the reliabil-

ity of the determination already made, no compelling

reason exists for disturbing a decision no longer sub-

ject to direct appeal.”

13

This Court, in Linkletter v. Walker, 381 U. S. 618, 14 L. Ed.

2d 601, 85 Sup. Ct. (1965), refused to apply Mapp retro--

actively and declared:

“Once the premise is accepted that we are neither

required to, nor prohibited from applying a decision

retrospectively, we must then weigh the merits and

demerits in each case by looking to the prior history

of the rule in question, its purpose and effect, and

whether retrospective operation will further or retard

its operation.”

In Commonwealth v. Negri, 34 L. W. 2186-2187 (Pa.

S. Ct., September 29, 1965), it was declared the rule of Es-

cobedo is not available to a Pennsylvania prisoner whose

conviction became final before Escobedo was decided. The

court declared:

“The fact that the accused may not have known that

he had a right to remain silent or that he had a right

to the assistance of counsel does not in any way negate

the fact that the statement was made voluntarily or

that the probability of truthfulness is very high. And,

while the Fifth Amendment right is against compul-

sory self-incrimination, we do not think that an ac-

cused’s ignorance rises to such compulsion.

“We do not think that the purpose of Escobedo was

to ferret out unreliable or coerced confessions, any

more than the purpose of Mapp was to deny admis-

sibility to irrelevant or unprobative physical evidence.

The identical purpose of each was to provide adequate

assurance of police adherence to the constitutional

principles inherent in due process, by denying fruit to

the poisoned seed. See Commonwealth ex rel. Wilson

v. Rundle, 412 Pa. 109, 194 A. 2d 143 (1963).”

14

If we agree that Escobedo more nearly resembles Mapp

than Gideon, then we must conclude that Escobedo should

not be applied retroactively, since this court refused to so

apply Mapp in the Linkletter decision.

This question is equally vexing to the courts and clari-

fication by this Court would be of prime importance.

IV.

THE ALLEGED DELAY IN ARRAIGNMENT DOES

NOT INVALIDATE THE CONFESSIONS.

The fact that the defendant is over-detained before ar-

raignment in a state proceeding does not invalidate the con-

fession obtained in the interim. While it is the rule in

federal prosecution that confessions obtained in these cir-

cumstances must be suppressed, Mallory v. United States,

354 U. S. 449 (1957); McNabb v. United States, 318 U. S.

332 (1943), this exclusionary rule is a function of the

supervisory power of the federal courts over federal prose-

cution and does not rise to the dignity of a constitutional

prohibition. Colombe v, Connecticut, 367 U. S. 568 (1961);

Stroble v, California, 343 U. S. 181, 197 (1952); Gallegos v.

Nebraska, 342 U. S. 55 (1951). No reason is advanced to

warrant a change of this court’s position. New Jersey has

not altered its position. State v. Ordog, supra.

15

Vv.

PETITIONER. CASSIDY, WAS NOT DECEIVED AND

INDUCED TO TURN OVER A GUN TO THE AU-

THORITIES AS THE RESULT OF ALLEGEDLY

FALSE STATEMENTS TO THE PROSECUTOR.

The Third Circuit Court of Appeals touched on this point

and made the following observation:

“The only evidence of any improper conduct during

this two-hour interval appears in Cassidy’s testimony

at the hearing on motion for a new trial, where he tes-

tified as follows:

‘I remember when I made my first confession, I

told Chief Dube that I didn’t have the gun and the

prosecutor came and got me and asked me did I

have a gun at home at all. I said no at first, because

the gun did not belong to me. He said, “Well, look,

if you have a gun at home, all we want to do is to

check it, (to) see if it has been fired.” He said, “We

won’t use this as evidence against you if it hasn’t

‘been fired.”’

“If the prosecutor did give the prisoner this assur-

ance, it is arguable that the rules of evidence should

exclude an admission thus obtained in exchange for a

promise of favorable treatment. See Shotwell Mfg. Co.

v. U. S., 371 U. S. 341, 348 (1963) (dictum) (federal

prosecution); Crawford v. U. S., 5th Cir. 1955, 219 F. 2d

207 (semble) (federal prosecution). See generally

Bram v. U. S., 168 U. S. 532 (1897) (federal prosecu-

tion); Maguire, Evidence of Guilt (1959), p. 139. But

such a bargain is an improper means of persuasion

rather than a device of compulsion. It may produce a

16

statement that is untrustworthy because a suspect may

ibe induced to incriminate himself falsely when he is led

to believe that, all things considered, he will gain

thereby. But bargaining for a confession is not shock-

ing and outrageous in the way that third degree

meth. are. Probably for this reason, courts have not

heretoiore made the rule which excludes testimony in-

duced by promise of favor a constitutional mandate.

“Cassidy did not assign as a basis for his motion for

a new trial or as a ground for federal habeas corpus

that his admission concerning his gun had been induced

- by a promise not to use this evidence against him.

Thus, no ruling in this regard is presented for appel-

late review. In thus disposing of the matter, we do

not hold or imply that a finding of such inducement

would entitle the prisoner to relief on constitutional

grounds.” 327 F. 2d 311, 317 (1964).

There is nothing in the Circuit Court’s opinion which

suggests that this question is of sufficient importance to

even warrant this Court’s consideration. This is beside the

point that, since it was not raised properly below, either at

the State level or at the Federal District Court level, it is

not a proper subject for review.

VI.

THE MERE FACT THAT WAYNE GODFREY’S CON-

FESSION WAS FOUND TO BE INVOLUNTARY BY

THE CIRCUIT COURT OF APPEALS DOES NOT

REQUIRE A REVERSAL OF PETITIONERS’ CASE.

This point was considered and disposed of adversely to

these petitioners by the same court that voided the God-

frey confession, when it stated:

17

“Finding only Godfrey’s confession to have been in-

voluntary on the record before us, we have considered

whether the admission of that confession itself affected

the constitutional rights of Cassidy and Johnson. The

introduction of a coerced confession in evidence against

one defendant is not in itself the imposition of consti-

tutional wrong upon his co-defendant. Stein v. New

York, supra, 346 U.S. (156) at 194-196, 73 S. Ct. (1077)

at 1097-1098 (97 L. Ed. 1522); Malinski v. New York,

supra, 324 U.S. (401) at 410-412, 65 S. Ct. (781) at

. 786 (89 L. Ed. 1029). The jury was instructed to con-

_ Sider each confession as evidence against its maker

only. And here we have the additional consideration

that substantially the same information was placed be-

fore the jury in the confessions of Cassidy and John-

son as in the confession of Godfrey. In these circum-

stances, we think it is not reasonable to believe that

the jury would or, indeed, had any occasion to go be-

yond Cassidy’s and Johnson’s own confessions and use

similar statements in Godfrey’s confession against

them.” Id., at pp. 318-319.

The New Jersey Supreme Court found itself in accord.

State v. Johnson, 43 N. J. 594, 206 A. 2d 737, 748-749 (1965).

Petitioners stili rely on Ashcraft v. Tennessee, 322 U. S.

143-(1944), as requiring reversal of their convictions, Ash-

craft v. Tennessee, supra, is clearly inapposite. In Ash-

craft, this Court remanded and reversed the conviction of

defendant Ware, who did not confess, because co-defendant

Ashcraft’s confession, introduced at their joint trial, was

found to be involuntary. The Court noted:

“Ware’s conviction was sustained by the Tennessee

Supreme Court on the assumption that Ashcraft’s con-

fession was properly admitted and his conviction valid.

Whether it would have been sustained had the court

18

in a similar case, stated:

“The furtherest we have gone in a comparable case

from a State Court is to vacate the judgment against

the co-defendant who did not confess and remand the

case to the State Court for further consideration. Thus,

in Ashcraft v. Tennessee . . ., we followed that pro-

cedure at the suggestion of the Attorney General of

the State, where the judgment against the co-defend-

ant who did not confess was sustained by the State

Court on the assumption that the confession which we

held to be coerced was properly admitted and that the

conviction of the defendant who did confess was valid.”

CONCLUSION.

For the reasons hereinabove stated, the Petition for Writ

of Certiorari should be granted as to Points I and III, but

denied as to all other points. .

NORMAN HEINE, i

Camden County Prosecutor.

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