Petition for a Writ of Certiorari — Barnes v. New York

Giles - Susreme Ocurt, U.

FILZAZD

Supreme Court of the United States

Ocroser, 1945, Term.

No. [iam 152

ROBERT W. BARNES,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

Petition FoR A Writ or CERTIORARI TO THE CoURT OF

APPEALS OF THE STATE oF New YorK AND

Brier 1x Suprorr THEREOF.

PETITION AND BRIEF OF THE PETITIONER.

j THOMAS L. NEWTON,

Attorney for Petitioner,

Office & P. O. Address,

612 Erie Co. Bk. Bidg.,

Buffalo 2, N. Y.

BATAVIA TIMES, LAW PRINTERS,

BATAVIA, BR. Y.

SUBJECT INDEX.

: PAGE

Petition for Writ of Certiorari to the Court of A s

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CE TED iss cacucnacsaceveccccnecsec 5

Brief in Support of Petition for Writ of Certiorari .... 10

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PE i bcchkecenheecswhed Coan kee Res kanes 13

State Statutes and Constitutional Clauses In-

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In Part

Defendant’s Version of his Arrest, Treatment

SE IEE A cea b cla vasticsccuaudaces 14

Defendant’s Objection ................. 19

SUN's Sela Eee etans ceian lau Maka dhe ba tee 27

Appendix ‘‘ A’’—Report of Case in New York Court of

I, Gee es: Us SUE KERR Ra aida d dude xccmans 28

Cases CIrTep.

Braum v. United States, 168 U. S. 533, 540-42 .......... 26

Brown v. Mississippi, 297 U. S. 278, 286 .............. 12

Chambers v. Florida, 309 U. S. 227 ..............0.. 23, 24

Headnote Aschraft v. Tennessee, 322 U.S. 143 ........ 24

Lyons v. Oklahoma, 322 U.S. 596 ................. 26, 27

{EP ah ASN A CAE

II.

PAGE

Malinski v. New York, 324 U.S. 401 .................. 13

MNabb v. United States, 318 U.S. 332 ............... 22

NE Ns BW Bi Be BO eS ii oc ce eacscccenccns 22

People v. Bogdunoff, 254 N. Y. 16 ................006. 11

ORE Hi Ber IE On.) ROE conden nce ncasusasraasas 11

People v. Malinski, 292 N. Y. 360 .................05. 13

People v. Mummiani, 258 N. Y. 394, pp. 399, 400 ...... 22

People v. Pantano, 239 N. Y. 416, p. 419 .............. 21

People v. Randazzio, 194 N. Y. 147 ...............000- 20

SratTurEs.

Code of Criminal Procedure:

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Atul cchV cn cawkancs shana kuaacesneeuneheen 19

Penal Law:

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As 54 46be a Sed acesh Ooddas kee cheenceaeas 10

SE SE ech ShA Ra RCKRGAUKARSKAS OED SENOS SALA SORR 11

MISCELLANEOUS.

Fourteenth Amendment of the United States Constitu-

a GiRRMAAEA GAS KW EAD AP AEO ORS SA OOER OR EES 12, 13, 27

Section 6, Art. 1, Constitution of State of New York .... 13

IN THE

Supreme Court of the United States

ROBERT W. BARNES,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK.

To the Honorable, the Chief Justice of the United States,

and the Associate Justices of the Supreme Court of the

United States:

The petition of Robert W. Barnes, by his attorney,

Thomas L. Newton, respectfully shows as follows:

Statement.

That your petitioner believes this Court has jurisdiction

herein under sec. 237 (b) of the Judicial Code as amended,

28 U.S. C. see. 344 (b), providing a final judgment in any

suit in the highest court of a State in which a right under

the United States Constitution has been violated may be

reversed by this Court.

That the judgment or order of the Court of Appeals

of the State of New York affirming the conviction of your

petitioner of the crime of Murder, First Degree, with one

Judge dissenting, was rendered March 7, 1946 (People vs.

2

Barnes, 295 N. Y. 767), and its judgment was made the

final judgment of the Supreme Court, Niagara County,

State of New York, April 2, 1946 (rec. pp. 651, 653) ; that

the remittitur of the Court of Appeals, through the same

‘was requested in the petitioner’s brief and on the argument

of his appeal before said Court, did not state that your

petitioner raised a Federal Question that his rights under

the due process of law clause of the Fourteenth Amendment

of the United States Constitution had been violated and nec-

essarily passed on by the Court which decided that his rights

thereunder had not been violated; that your petitioner made

a motion in the said Court of Appeals returnable May 20th,

1946, to amend its said remittitur, to show that your peti-

tioner raised said Federal Question as requested in his

brief and argument, which motion is pending, and a certified

copy of its decision thereon was requested to be sent direct-—

ly to the Clerk of this Court by the Clerk of said Court

of Appeals, the same to be made a part of the certified copy

of the record on this application for a writ of certiorari.

That the Federal -Question involved is the violation of

your petitioner’s rights under the due process of law clause

of the Fourteenth Amendment of the United States Con-

stitution in that his said conviction was obtained upon al-

leged oral and written admissions and confessions coerced

and compelled from your petitioner and this question was

raised in the first instance on the trial of the case in Su-

preme Court, Niagara County, New York, before a Court

and Jury, as to the oral admissions and confessions by your

petitioner’s objection that what your petitioner said con-

fessions were the result of threats, expressed and implied,

and such evidence would be admitted in violation of the due

process of law clause of the Fourteenth Amendment of the

United States Constitution, which objection was overruled

3

(ree. p. 267), and as to the two alleged written confessions,

People’s Exhibits 46 and 47, by the same objection, which

was overruled (ree. p. 280), and then by your petitioner’s

motion made at the close of all the evidence to strike from

the evidence the two alleged written statements, Exhibits 46

and 47 in evidence (rec. pp. 307-316), claimed to be con-

fessions, upon the ground the statements were taken in vio-

lation of the due process of law clause of the Fourteenth

Amendment of the United States Constitution and were

involuntary as matter of law, and then again by motion for

a mistrial on the ground that receiving those statements

in evidence was such prejudicial matter as could not be

remedied by any instruction of the Court, which motions

were denied with exception (rec. pp. 542, 543), and then

as to the oral admissions or alleged confessions and the

written confessions by your petitioner’s motion made im-

mediately after the jury’s verdict of guilty for a new trial

upon all the exceptions in the case and that the verdict

of the jury was contrary to law and clearly against the evi-

dence, which motion was denied with exception (rec. p.

640) ; that said Federal Question was next raised on appeal

in the Appellate Division of the Supreme Court of the

State of New York Fourth Department, which on June

27th, 1945, affirmed your petitioner’s judgment of convic-

tion, without opinion, with Harris, J., dissenting and voting

for a reversal and for granting a new trial, in a memoran-

dum, in part, as follows, ‘‘ * * * The ruling of the Trial

Court and its charge as to a violation of Sec. 165, Code Cr.

Proc. was insufficient to advise properly the jury. People

v. Malinski, 292 N. Y. 360, reversed 324 U. S. 401. With the

above in mind, it cannot he said that the defendant was not

prejudiced on his trial. * * *’’ (People v. Barnes, 229

A. D. 898, rec. p. 649) ; that said Federal Question was next

raised on appeal in the Court of Appeals of the State of

ates ater canna arene SN SORT | AEA ER EE EET

4

New York, where on March 7th, 1946, your petitioner’s

judgment of conviction was affirmed without opinion, all

concurring except Dye, J., who dissented and voted for a

new trial, Madalie, J. deceased (People v. Barnes, 295 N. Y,

767).

That your petitioner was convicted of the crime of mur-

der, first degree, September 29, 1944, in the Supreme Court,

Niagara County, State of New York, and then sentenced

to life imprisonment pursuant to recommendation of the

jury’s verdict (ree. pp. 5, 6, 639).

That the question involved is if the admission in evidence

of two alleged written confessions in particular was as to

the petitioner a denial of due process of law under the

Fourteenth Amendment of the United States Constitution.

That the indictment herein was filed Sept. 8, 1944, in

Supreme Court, Niagara County, New York, and charged

that on Aug. 4, 1944, at the City of Niagara Falls, Niagara

County, New York, your petitioner committed the crime of

Murder, First Degree, in that he of malice aforethought

strangled and killed Miriam Kennedy (rec. p. 6) and peti-

tioner was arraigned thereon the same day and plead not

guilty (rec. pp. 3, 4) and charged the same day by Bill of

Particulars then filed that at the time Miriam Kennedy was

killed your petitioner was engaged in the commission of

a felony upon her person, to wit, Rape in the First Degree,

and the act took place at 625 Dorothy Street on the early

morning of the date alleged (ree. p. 3).

5

Undisputed Facts.

That your petitioner was arrested at about 5:00 P. M.

August 17, 1944, and questioned that evening maybe 40

minutes in the presence of Officers DeBrine, Stephens,

Wasley, Wagner and Fitzsimmons and District Attorney

Marsh, concerning his movements the night of August 3rd

and the morning of August 4th, and got through question-

ing about 7:00 that evening, and resumed at about 8 o’clock

with Officers Fitzsimmons, DeBrine, Stephens, Hageman,

Cruickshank, Wasley and Wagner present and they con-

cluded questioning him about 11:00 P. M. when he was

placed in a cell. He said he did not know anything about

the murder of Miriam Kennedy. The following morning

he was questioned about an hour and forty-five minutes in

detail concerning his past life with Officers DeBrine, Ste-

phens and Fitzsimmons and District Attorney Marsh pres-

ent. He was brought before Officer Fitzsimmons about one

o’clock and Fitzsimmons told him they were taking him to

Buffalo to put him on the lie detector and he said he had

no objection (rec. pp. 238-250). Officers Fitzsimmons and

DeBrine took Barnes in a car to Buffalo Police Headquar-

ters where they arrived at 2:45 P. M. Officers Fitzsimmons

and DeBrine talked with Anthony Schasre, the lie detector

operator, fur 20 to 25 minutes. Barnes was in the lie detec-

tor room with Officer Schasre an hour and 40 or 50 minutes.

He was in the room some time while Schasre talked to him

before he was put on the machine and questioned by Schasre

and then the machine was disconnected and Schasre talked

to him for 20 minutes (rec. pp. 251-252). Schasre talked to

the petitioner an hour and fifty minutes altogether and he

then came out of the lie detector room (rec. p. 253). Schasre

returned to the lie detector room and had an argument with

Barnes in which Schasre said to Barnes ‘‘You are a lying

black bastard’’ and then Chief of Detectives Golembeck left

a En en Te eae oe

the lie detector observation room and went into the lie de-

tector room (rec. pp. 255-256) and struck Barnes some-

where in the face and he went down on the floor right near

the chair where he was sitting (rec. pp. 336, 337, Officer De-

Brine’s testimony, who said Schasre called Barnes ‘‘a God

damn lying nigger bastard, rec. p. 336) and Barnes was

told to get up from the floor and take off his trousers and

shorts but he made no effort to get up so they were taken

off while he was lying on the floor, and then when Barnes

did not get up the officers raised him and set him in a chair

(rec. pp. 260, 261) and the shorts are People’s Exhibit 25

in evidence (rec. p. 261). During all this time Barnes did

not admit any participation in the murder (rec. p. 263).

Then Officers Fitzsimmons, DeBrine and Fitzgibbons went

into the lie detector room and told Barnes to put on his

trousers, which he did, and they took him to another room

and questioned him for about an hour and Barnes denied

all knowledge of the crime and made no change in state-

ments made before (rec. pp. 263, 264). At about 6 o’clock

Officers Fitzsimmons and DeBrine left the Buffalo Police

Headquarters with the petitioner in a car for Niagara Falls

and Barnes was further questioned by the officers in the car

and they told Barnes he was lying, that they knew he was

lying, that when he claimed he wore 34 shorts he was lying,

that when he said he knew nothing about the Kennedy

Murder case he was lying, the various questions that he

had been asked in the lie-detector room proved he was

lying and that they had his prints and after they had passed

over the Grand Island Bridge nearest Buffalo and for a

short distance on Grand Island and Fitzsimmons and De-

Brine were talking as they were going over Grand Island

about different cases they had been on and reached the

peak of the next bridge and started down toward Buffalo

Avenue, Niagara Falls, Fitzsimmons called DeBrine’s at-

tention to an electric light pole part way down on the

7

bridge and said, ‘‘That electric light pole marks the spot

from which an elderly man was thrown into Niagara River

some time ago and there is now a man by the name of

Knight who is now in Sing Sing waiting the execution of

his sentence. He didn’t know how to tell the truth either,’’

and they continued down the bridge 400 feet (rec. pp. 265,

266) in Buffalo Avenue, Niagara Falls, and the defendant

asked what sentence will he get and when told it was up to

the Judge and Jury then said, ‘‘If you will take me to see

my wife I will tell you about the Kennedy murder case be-

cause I killed Mrs. Kennedy’’ (rec. pp. 267, 268) and then

Officer Zimmerman stated what the petitioner said (rec. pp.

269-274) and thereafter what was said was taken in the

written statement, People’s Exhibit 46, commencing at 9:17

and ending at 11:19 that evening (rec. pp. 277-279) and

signed at 11:22 P. M. August 18, 1944 (rec. p. 280) and he

was questioned the next morning by Officers Fitzsimmons

and DeBrine till around 11:30 and this was reduced to

writing and signed by the petitioner at 8:15 P. M. August

19th and contained matter in addition to People’s Exhibit

46, the last statement baing People’s Exhibit 47 (rec. pp.

288, 289, 307-316).

That the Police Officers prevented your petitioner’s per-

sonal doctor from seeing him at the Niagara Falls police

station though the doctor called at the station at 3 and 4

o'clock P. M. August 20, 1944 (rec. pp. 421, 422).

That Officer Fitzsimmons }new when he took the peti-

tioner into custody that Section 165 of the Code of Criminal

Procedure provided ‘‘The defendant must be taken before

a magistrate without unnecessary delay and he may give

bail at any hour of the day or night’’ and yet he did not ar-

raign your petitioner in the City Court of Niagara Falls

8

till 3:30 P. M. August 20, 1944, Sunday, a rare exception as

to time of holding the Court (rec. pp. 299, 321).

That Officer Fitzsimmons’ preliminary examination be-

fore admission of People’s Exhibits 46 and 47 showed that

during the time your petitioner was in custody he was not

allowed to see any person till 1:00 A. M. August 19th, which

was after he had signed Exhibit 46, and that person was

his wife (rec. p. 301), when they took her into custody (ree.

p. 322) at his home with an officer present (rec. p. 361) and

was not allowed to see anybody else until after the investi-

gation was completed (rec. p. 303).

That the Court of Appeals of the State of New York

has decided the said Federal Question in a way probably

not in accord with the applicable decisions of this Court,

to wit, McNabb v. United States, 318 U. S. 332, Chambers

v. Florida, 309 U. S. 227, Aschraft v. Tennessee, 322 U. S.

143 and Malinski v. New York, 324 U.S. 401, cited by your

petitioner in his brief before said Court of Appeals of

the State of New York.

That the Court of Appeals of the State of New York in

affirming petitioner’s conviction sustained the trial court

over objection and exception and prevented your petitioner

from showing he was not allowed to consult his attorney

while in custody of the Niagara Falls Police without a

Niagara Falls Police Officer being present on the morning

of August 21, 1944, when time was of vital importance to

your petitioner in protection of his rights under said due

process of law clause of the Fourteenth Amendment of

the United States Constitution, and in its ruling made

the law of the Supreme Court of New York State con-

trolling over the decisions of this Court, which matter

a

a

9

was presented by your petitioner on his brief and argu-

ment in the said Court of Appeals on his appeal to said

Court (ree. pp. 302, 303).

Wherefore, your petitioner, Robert W. Barnes, prays

that a writ of certiorari may issue out of and under the

seal of this Court directed to the Court of Appeals of

the State of New York, commanding the said Court to cer-

tify and send to this Court for review and determination,

as provided by law, this cause and a complete transcript

of the record of the Court of Appeals of the State of

New York affirming the judgment of conviction that it

may be reviewed and reversed and that your petitioner

may have such other relief as may be just and that if your

petitioner’s motion in the Court of Appeals of the State

of New York to amend its remittitur, now pending, is not

decided by that Court within 3 months from March 7, 1946,

| within which time this petition must be filed with this Court,

the petitioner’s time to file this petition for a writ of cer-

tiorari be extended under sec. 350, Judicial Code, for not

to exceed sixty days.

Dated, June 3, 1946.

ROBERT W. BARNES,

Petitioner,

by THOMAS L. NEWTON,

Counsel for Petitioner.

I hereby certify that I have examined the foregoing peti-

tion for a writ of certiorari and that in my opinion it is

well founded and the cause is one in which the petition

should be granted.

THOMAS L. NEWTON,

Counsel for Petitioner.

cece

OEE RU

10

IN THE

SUPREME COURT OF THE UNITED STATES.

‘

Rosert W. Barnes,

Petitioner,

against

Tue Propie or THE State or New York,

Respondent.

4

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

The statement under which jurisdiction of this Court is

invoked, the question presented and the undisputed factual

matter relevant to this application with authorities believed

applicable appear in the petition to which this brief is an-

uexed.

Indictment.

The indictment is based on part of Sec. 1044, Penal Law,

State of New York, which provides as follows:

‘The killing of a human being, unless it is excusable

or justifiable, is murder in the first degree, when com-

mitted: ** * 2. * * *; or without a design to effect

death, by a person engaged in the commission of, or

an attempt to commit a felony, either upon or affecting

the person killed or otherwise; or,—’’

Punishment.

Sec. 1045 of the Penal Law provides as follows:

‘Murder in the first degree is punishable by death,

unless the jury recommends life imprisonment as

provided in section ten hundred forty-five-a.’’

—

ll

Sec. 1045-a of the Penal Law provides as follows:

‘‘A jury finding a person guilty of murder in the

first degree, as defined by subdivision two of section

ten hundred forty-four may, as part of its verdict, rec-

ommend that the defendant be imprisoned for. the

term of his natural life. Upon such recommendation,

the court may sentence the defendant to imprisonment

for the term of his natural life.’’

Under this section the petitioner was sentenced to im-

prisonment for life (ree. pp. 5, 6, 639).

The jurv’s recommendation under section 1045-a is not

binding o.. the Court.

People v. Ertel, 283 N. Y. 519.

Bill of Particulars.

The Bill of Particulars when filed became, in effect, a

part of the indictment.

People v. Bogdanoff, 254 N. Y. 16.

The Crime.

Miriam Kennedy was a young married white woman, re-

siding with her husband, Alvie J. Kennedy and their three

children, James 8 years, Evelyn 4 years and Ronald 2 years,

in a ground floor apartment in the Pineacres Federal Tem-

porary Housing Project, on the outskirts of the City of

Niagara Falls. The project, built to accommodate 1700

families, was made up of over one hundred two-story six-—

teen family dwelling units covering a wide area. At the

time of the murder only about 100 families lived in the en-

tire project; a group of white families in the neighborhood

of the apartment occupied by the Kennedy’s at No. 625

Dorothy Street, and a group of colored families on 69th

Samet oe . Pont a eects sence AEE

12

Street where the defendant resided, about six or seven

blocks from the white settlement.

On the morning of August 4, 1944, Mr. Kennedy com-

pleted a 13-hour shift at the Bell Aircraft Corporation,

about 3 miles from his home; punched out at the time clock

at the plant at 5:30 A. M., and immediately started for his

home in a friend’s car. His 4 year old daughter answered

his call to unlock the front door, and when he entered he

found his son, James Kennedy, in a highly emotional con-

dition. He went through to the bedroom occupied by his

wife and two youngest children and there found his wife

lying on the floor dead; her legs spread apart; the lower

portion of her night gown up over her private parts; her

underpanties around her neck; and marks on and about her

throat and neck.

An autopsy on the murdered woman’s body showed

numerous cuts and laceration about the neck and throat

and the cause of death asphyxiation by strangulation.

Spermatozoa was present in the vagina (rec. pp. 56, 87, 90).

ARGUMENT.

The petitioner asserts that he has been convicted of the

crime of murder and been sentenced to life imprisonment

as the result of a trial that deprived him of his rights un-

der the due process of law clause of the Fourteenth Amend-

ment of the United States Constitution.

‘<The complaint is not of commission of mere error,

but of a wrong so fundamental that it made the whole

proceeding a mere process of law.’’

Brown v. Mississippi, 297 U. S. 278, 286.

—

—

13

POINT L

The admission in evidence of People’s Exhibits 46 and 47

over the petitioner’s objection and denial of his motion to

strike the same from the evidence made at the case’s close,

being the alleged confessions of the petitioner, with excep-

tion, together with the denial, with exception, of the peti-

tioner’s motion for a new trial on the ground the verdict

of the jury was contrary to law and against the evidence,

constitute a violation of petitioner’s rights under the due

process of law clause of the Fourteenth Amendment of the

United States Constitution (rec. pp. 298, 304, 302, 305, 307-

316, 542, 543, 544, 640).

State Statutes and Constitutional Clauses Involved.

‘‘The defendant must in all cases be taken before a

magistrate without unnecessary delay, and he may

give bail at any hour of the day or night.’’

See. 165, Code of Criminal Procedure.

‘‘Section 1. * * * nor shall any State deprive any

person of life, liberty, or property, without due pro-

cess of law; * * *’’

Amendment XIV, United States Constitution.

‘No person shall be deprived of life, liberty or prop-

erty without due process of law.’’

Section 6, Art. 1, Constitution of State of New

York.

The holding of the United States Supreme Court in

Malinski v. New York, 324 U.S. 401, affirming and reversing

in part People v. Malinski, 292 N. Y. 360, is as follows:

‘“The question whether there has been a violation

of the due process clause of the Fourteenth Amend-

ment by the introduction of an involuntary confession

is one upon which this Court must make an independ-

ent determination on the undisputed evidence.”’

ne ee ee Setanta sateen teert nats OP OREN a

a al ek ee

14

“If all the attendant circumstances indicate that

the confession was coerced or compelled, it may not

be used to convict a defendant.’’

‘A conviction obtained by use of coerced confes-

sion will be set aside even though the evidence apart

from the confession might have been sufficient to sus-

tain the verdict.’’

‘“‘The judgment against Malinski, resting in part

on a coerced confession, must be reversed. A major-

ity of the Court do not reach the question whether the

subsequent confessions were free from the infirmities

of the first.’’

‘*Sec. 395, Code of Criminal Procedure, provides in

part as follows: A confession of a defendant whether

—to a private person, can be given in evidence against

him, unless made under the influence of fear produced

by threats, * * *; but is not sufficient to warrant his con-

viction without additional proof that the crime charged

has been committed.’’

People’s Exhibit 46 is, in substance, a repetition of what

the defendant said after Fitzsimmons and DeBrine crossed

the Grand Island Bridge into Niagara Falls and People’s

Exhibit 47, in substance, is the same with statements as to

additional crimes (rec. pp. 265-274, 338-342).

IN PART

Defendant’s Version of his Arrest, Treatment and Questioning.

The police came to the petitioner’s home Saturday night,

Aug. 5, after which the appellant went to Police Headquar-

ters at 9:30 A. M. Monday and the police then took his

palm prints and head and pubic hair and scraped the dirt

from underneath his fingernails. There was no proof of

any white epithelium cells or human blood found in these

scrapings yet there were on Miriam Kennedy’s throat three

overlapping fingernail scratches three-eights to one inch

in length and three circular lacerations one-half inch long

on the left side of her neck (rec. pp. 52, 407, 409, 410).

15

Her fingernails were scraped underneath after her death

and the scrapings therefrom were sent to the laboratory

at Albany and returned to the Falls police (Fols. 984, 985).

The condition of the deceased’s bedroom and the position

of her body clearly disclosed she had powerfully resisted

her assailant undoubtedly scratching him with her finger-

nails, yet no proof any brown epithelium cells or human

blood or negroid head hair was proven on the trial as evi-

denced by her fingernail scrapings (rec. pp. 48, 92).

Barnes was taken into custody by the Falls police about

5 o’clock P. M., Aug. 17, 1944. His fingerprints and picture

were then taken and he was questioned by the finger-print

man. District Attorney Marsh, officers Fitzsimmons, De-

Brine and another detective from about 7:30 to 8:30 that

evening during which he related in detail his actions and

the people with him during the evening of Aug. 4, to noon

of August 5, 1944. He was again questioned by them at #2

police station from 9:20 till after 10 during which time he

denied knowing anything about the Kennedy murder when

Marsh said to him, ‘‘It’s no use to lie to us because we have

the dead evidence on you,’’ and he told them again and

again of his actions on the night of the murder. The next

morning, Aug. 18th, he was questioned from 30 to 45 min-

utes by Marsh along the same line as before and Marsh

said to him, ‘‘You are lying to us, and we know it,’’ and he

said, ‘‘Well, you ask me for the truth and I told you’’.

In the afternoon he was again questioned by two Falls de-

tectives whom he did not know and again denied killing

Mrs. Kennedy and other charges. About an hour later

officers DeBrine and Fitzsimmons again questioned the

appellant and again he denied killing Mrs. Kennedy or en-

tering her home and answered various questions. Again

at about 3 o’clock that afternoon he was questioned by

tl et a a ee

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phi SA TPM ARID I OC TRICE

16

Fitzsimmons, DeBrine and Marsh and he again asserted he

had told the truth and all he knew and DeBrine said, ‘‘ You

are sure you told us all you know,”’ and appellant said, ‘‘I

sure have,’’ and DeBrine said to Fitzsimmons, ‘‘Let’s take

him to Buffalo,’’ and to defendant ‘‘We will put you on the

lie-dector, we will tell what you done,’’ and the appellant

said O. K. and they left for Buffalo about 10 minutes later

(rec. pp. 239, 410, 411, 413-417, 427, 432-442).

Officers DeBrine and Fitzsimmons took him to Buffalo

to the lie-detector room at police headquarters. Officers

Fitzsimmons and DeBrine were in the room with Buffalo

Police Office Schasre, the lie-detector operator, about 30

minutes before they took him therein where he was ques-

tioned by Schasre. He was placed on the lie-detector ma-

chine twice and each time denied the killing of Mrs. Ken-

nedy and other facts claimed to be material evidence by the

police. When Schasre asked him, ‘‘Wasn’t these your

shorts,’’ and he said, ‘‘No, they isn’t my shorts,’’? where-

upon Schasre said, ‘‘You are a lying black son-of-a -bitch,”’

and he said ‘‘You don’t have no right to call me that, those

isn’t my underwear,’’ and during this statement he had

gotten up and walked over toward Schasre and shaking his

hand in his face told him, ‘‘You don’t have any right to

call me that,’’ and Schasre said, ‘‘Well, you are,’’ and

Barnes then said, ‘‘ Well don’t call me no more, because you

are wrong”’ and Schasre broke for the door and then Officer

Golombeck, weighing 185 pounds entered atid said, ‘‘What

is wrong,’’ and Schasre said, ‘‘Captain, this young negro

made a jump for me,”’ and as Barnes told him he didn’t and

said, ‘‘I got up to tell him not to call me another black, lying

son-of-a-bitch,’’ and as he was trying to explain Golombeck

said, ‘‘You are a black, lying son-of-a-bitch’’ and about

that time hit Barnes and not one Buffalo Police Officer took

——

17

the stand to deny this evidence though they had been in

court. When Golombeck struck Barnes he knocked him on

his face on the concrete floor and before he could get up

some one kicked him under the arm. He tried to get his

head under the table where they could not stomp his head

and some one stomped him on the back (substantiated by

the evidence of Dr. Hayes) and then Officers Fitzsimmons

and DeBrine came and they asked him what was wrong with

him and he told them, ‘‘ You know what it was all about,”’

and Barnes pulled himself up by taking hold of the legs

of those officers who ‘‘sat’’ him in a chair (Fols. 1343-1347).

They said that when Schasre went out that Barnes bit a

hole in the lie-detector hose but he did not have time to

bite any hole and it could not be done and was not produced

at the trial though Officer DeBrine was challenged to do so

while on the stand. (rec. 335, 445-448, 336, 453, 421-423,

449, 450, 346, 347).

While Barnes was on the floor they took his clothes off

(rec. p. 450).

DeBrine and Fitzsimmons continued to question him to-

gether with another officer whom he did not know but who

said Mr. Marsh was his boss and who told him, ‘‘Why

don’t you tell me the truth, that I can make it easy with

you, Mr. Marsh is my boss, I call him up and tell him you

have confessed,’’ and he told him ‘‘I ain’t going to say

nothing because I didn’t do it. What is the use of my telling

a lie. I know I didn’t do it.’’ They then placed him in an auto,

DeBrine driving. They kept asking him questions and Fitz-

simmons told Barnes ‘‘ We will get you to a doctor just as

quick as you start talking.’? When they got to the top of

Grand Island bridge Fitzsimmons said, ‘‘ Bob, you remem-

ber some crime happened here away back.”’ It was some

man thrown off that bridge into Lake Erie. He told him

EES Om Perna tnt So a eI RED es

Ab VEER OER Bt ae

ee

18

the man was thrown off the bridge for lying and showed the

spot where it was, stopping the auto at the top of the bridge.

Barnes told him, ‘*‘ Well, what are you telling me about it

for? I haven’t done any crime,’’ and Fitzsimmons said,

‘‘Well, now, tell us the truth. We will make it light on

you,’’ ‘* Well, we will see about getting a light sentence,’’

and Barnes said ‘‘Mr. Fitzsimmons, I haven’t done any

crime you have accused me of.’’ While on the bridge they

told Barnes that the man who threw the other man in the

river was waiting electrocution. They stopped at the Car-

borundum plant but did not see appellant’s wife. They

then asked Barnes if he did it and he said, ‘‘No, I didn’t’’

and Fitzsimmons said, ‘‘Well, you are going to tell us a

better story than that’’ and they pulled up at the Shredded

Wheat plant and DeBrine said, ‘‘ Bob, if you will tell us the

truth, we can help you”’ and he said ‘‘ Well, Mr. O’Brian,

I didn’t do it. What do you want me to do, say I done it,”’

and DeBrine said, ‘‘Well, we known you done it, but we

want you to tell it from your own mouth,’’ and Barnes said,

‘¢Yes I did, I did,’’ and DeBrine said ‘‘ How did you do it”

and he said, ‘‘I done it, whatever you ask me.’’ He said,

‘‘Well, what did you do,’’ and Barnes said, ‘‘ Yes, I killed

Mrs. Kennedy.’’ They then locked him up in the police sta-

tion (Fols. 1361-1370). This was about 6 o’clock. They

told him the doctor would be there in about twenty minutes.

The doctor bandaged his side at No. 2 Police station after

10 o’clock. He felt sleepy. He then was questioned by De-

Brine, Fitzsimmons and Marsh at great length (Fols. 1380-

1383), whereupon he gave the first written statement (Fols.

1380-1407).

They took Barnes about 8:30 the next morning to police

headquarters and DeBrine took hair from his head and pri-

vates and then locked him up. This was Saturday. They

ee

did not let appellant smoke. He only remembered signing

one written statement on different sheets of paper. He

acknowldged his signature as being on the second state-

ment (ree. pp. 452, 455-457, 474-476, 460).

The conversation of Officers Fitzsimmons and DeBrine

on the Grand Island Bridge formed the basis for every al-

leged admission of guilt by defendant and his signing of

People’s Exhibits 46 and 47, supplemented by the threat,

as he understood that if he didn’t talk he would be taken

back to Buffalo (rec. pp. 473, 474).

19

Defendant’s Objection.

‘‘Mr. Newton: I object to what was said as the re-

sult of threats, express and implied, and to any evi-

dence admitted in violation of the due process of law

clause of the State Constitution of New York and the

due process of jaw clause of the 14th Amendment of

the United States Constitution, and in violation of the

clauses of the respective constitutions compelling the

witness to become a witness against himself on a crim-

inal charge.

The Court: Do you wish to cross examine as to what

was said?

Mr. Newton: No. I rest on just what he testified to

on that objection.

The Court: Objection overruled’’ (rec. p. 267).

The same objection and ruling was made four times (ree.

pp. 280, 298, 304, 305).

The Court in its charge read the part of Sec. 395, Code

Cr. Pro. in so far as it pertained to confessions obtained

by reason of fear produced by threats (Fol. 1869) and in

that connection said: ‘‘The burden rests upon the People

of the State of New York to establish that the alleged admis-

20

sions and confessions made by the defendant were volun-

tarily made upon his part and not produced by threats or

fear,’’ therefore, the admissions and confessions were, in

effect, limited to those produced by fear in the defendant’s

mind produced by threats (rec. pp. 623, 624).

The test is not what was actually said or done by the of-

ficers but what the defendant believed from what they said

and did and by using the word ‘‘Bob*’ there is no denying

the fact that by what the officers did and said on the Grand

Island Bridge as testified to by Fitzsimmons and DeBrine

they left the impression on the already beaten and injured

defendant that if he did not admit the killing of Mrs. Ken-

nedy to the officers he would be executed at Sing Sing prison

for not telling the truth, therefore, the admissions and con-

fessions obtained as the natural flow therefrom assisted

by continual questioning, failure to arraign the defendant

when the officers had ample grounds to do so, their not allow-

ing the defendant to see any person without the presence of

an officer, all as evidenced by the prosecution’s witnesses,

rendered the admissions and alleged confessions incompe-

tent as matter of law even under Sec. 395, Code of Criminal

Procedure. There was no question of fact on the issue in-

volved for the jury.

In People v. Randazzio, 194 N. Y. 147, the following, pp.

154, 155, is very significant :

**It will be recalled that the first threat was made the

night of the arrest, while they were crossing the bridge

over the river, at which it was claimed some one called

out that they ought to throw them into the river. It is

not claimed that this statement was made by any of the

officers, but if made, it came from some unknown per-

son in the crowd that was evidently following along in

the trail of the officers having the defendant and Bar-

retta in charge. But it appears that there was a doubt

| aa a7

21

with reference to such an expression being made by

any one, for it distinctly appears by the testimony of

one of the officers that it was Barretta who made the

ery, stating, ‘Throw me in the river.’ If it was Bar-

retta who thus cried out, certainly it could not have

produced any fear in the defendant with reference to

the action of the officers or other persons following

them. A question of fact would thus be presented for

the jury to determine whether or not there was any-

thing in this transaction that produced such fear as

to induce the defendant to confess his guilt; but it ap-

pears that no confession was asked of him that night.

* * @)?

‘*A threat may be implied, as well as expressed and

the fear engendered is alike in each case.”’

Peo. v. Patano, 239 N. Y. 416, p. 419.

Before People’s Exhibits 46 and 47 were received in evi-

dence it had also appeared from the People’s witnesses,

Officers Fitzsimmons and DeBrine, that Barnes had been in

custody from 5 o’clock P. M. August 17, assaulted by a

Buffalo officer at Buffalo on the afternoon of August 18,

before he was returned to the Falls, and that on his return

to the Falls that afternoon he admitted the killing of Mrs.

Kennedy, and, after the admission, was not arraigned on

any charge until Sunday afternoon August 20, at about

3:30 o’clock, in the City Court at Niagara Falls, a rare ex-

ception and when they had an uneducated negro as dis-

closed from his language as a witness and as well that he

had no clear understanding of his arraignment, and, fur-

ther, from the evidence of Dr. Hayes, which was not con-

tradicted, that the officers prevented him from examining

the appellant on the afternoon of August 20, 1944, while in

custody. After the close of the evidence the petitioner

moved to strike these Exhibits from the evidence and for

a mistrial because of their prior reception, which motions

were denied with exceptions. This evidence presented no

question of fact for the jury and as matter of law ren-

SL Ee arts acct tat

os Oe ste ome at

———ay

22

dered the Exhibits incompetent and the denial of the mo-

tions presents reversible error (rec. pp. 299, 321, 421, 422,

542, 543).

People v. Alex, 265 N. Y. 192.

In People v. Mummiani, 258 N. Y. 394, pp. 399, 400, the

Court says:

‘‘The police are guilty of oppression and neglect of

duty when they willfully detain a prisoner without ar-

raigning him hefore a magistrate within a reasonable

time. (Code Crim. Pro. Sec. 165.) The conclusion is

inescapable that they do this for the purpose of sub-

jecting him to an inquisition impossible thereafter.

Until arraignment before a magistrate, he is held in-

communicado, without the protection that comes from

the advice of counsel or the encouragement derived

from the presence of family or friends. After arraign-

ment, he has these and other helps to fortitude. In a

vast majority of the cases that have come before this

Court with a defense that a confession was illegally

extorted, perhaps, indeed, in all, the wrong, if there

was any, was done before the prisoner was brought to

court, and would probably have been prevented had he

been brought there without delay. * * *’’

In MeNabb v. United States, 318 U. S. 332, the Court in

considering Federal statutes somewhat similar to See. 165,

Code Crim. Pro., reversed a judgment of conviction, saying

at page 345:

‘** * * For two days they were subjected to unre-

mitting questioning by numerous officers. Benjamin’s

confession was secured by detaining him unlawfully

and questioning him continuously for five or six hours.

The MeNabbs had to submit to all this without the aid

of friends or the benefit of counsel. The record leaves

no room for doubt that the questioning of the petition-

ers took place while they were in custody of the arrest-

ing officers and before any order of commitment was

made. Plainly, a conviction resting on evidence se-

cured through such a flagrant disregard of the pro-

23

cedure which Congress has commanded cannot be al-

lowed to stand without making the Courts themselves

accomplices in willful disobedience of law. Congress

has explicitly forbidden the use of evidence so pro-

cured. But to permit such evidence to be made the

basis of a conviction in the federal courts would stul-

tify the policy which Congress bas enacted into law.”’

And at p. 340:

‘*And this Court has, on Constitutional grounds, set

aside convictions, both in the federal and state courts,

which were based upon confessions ‘secured by pro-

tracted and repeated questioning of ignorant and un-

tutored persons, in whose minds the power of officers

was greatly magnified.’ Lisenba v. California, 314 U.

S. 219, 239-240, or ‘who have been unlawfully held in-

communicado without service of friends or counsel,’

Ward v. Texas, 316 U. S. 547, 555, and see Brown v.

Mississippi, 297 U. S. 278; Chambers v. Florida, 309 U.

S. 227: Canty v. Alabama, 309 U. S. 629; White v.

Texas, 310 U. S. 550; Lomax v. Texas, 313 U. S. 544;

Vernon v. Alabama, 313 U. S. 547.”’

In Chambers v. Florida, 309 U. S. 227, the Court reversed

conviction for murder holding that such convictions ob-

tained in the state courts by use of coerced confessions are

void under the due process clause of the Fourteenth Amend-

ment and that the United States Supreme Court is not con-

cluded by the finding of a jury that a confession by one con-

victed in a state court of murder was voluntary, but deter-

mines that question for itself from the evidence, saying at

page 240:

* * * «To permit human lives to be forfeited upon

confessions thus obtained would make of the constitu-

tional requirement of due process of law a meaningless

symbol.”’

These Exhibits, 46 and 47, were made by the police offi-

cials to fit their theory of the crime charged. Note in Ex-

tg en Ny

og eer 0°

—y

24

hibit 46 where it says ‘‘* * * the guy came over and boxed

may jaw (rec. p. 311). They were not true nor his admis-

sions to the effect that he killed Mrs. Kennedy and they

were not believed by the jury otherwise they would not

have in their verdict recommended to the Court the imposi-

tion of a sentence of life imprisonment. ‘Their verdict

shows evidence of doubt in view of the dreadful crime

charged against the petitioner.

The following quoted from Chambers v. Florida, supra,

p. 240, is particularly pertinent to the present case:

‘*We are not impressed by the argument that law

enforcement methods such as those under review are

necessary to uphold our laws. ‘The Constitution pro-

scribes such lawless means irrespective of the end.

And this argument flouts the basic principle that all

people must stand on a equality before the bar of jus-

tice in every American court. * * *”’

The defendant was taken into custody by the Falls Police

at 5 o’clock P. M. August 17, 1944 and from that time never

saw a friend or his wife alone or his attorney alone till

after 10 o’clock A. M. August 21, 1944 (rec. pp. 238, 896).

‘The uncontradicted evidence—inter alia, that Arch-

raft had been held incommunicado for thirty-six hours,

during which time without sleep or rest, he had been

interrogated by relays of officers and investigators,

showed a situation inherently coercive.’’ :

Headnote Aschraft v. Tennessee, 322 U. S. 143.

The petitioner was deprived of private consultation and

advice of counsel.

Officer Fitzsimmons had testified that he saw the appel-

lant’s counsel at the police station at Niagara Falls about

10 o’clock on the morning of August 21, 1944, and then the

record shows the following:

25

**Q. And I asked you to tell me—told you who I

was—-

Mr. Marsh: * * * Counsel is now interrogating

the witness about 21st of August, * * * And these

statements were the 18th and 19th. I object to it, your

Honor.

The Court: The only limitation to preliminary ques-

tions is confined to whether or not these statements so-

called were voluntary.

Mr. Newton: That is it, your Honor, and every

question I have asked him has been passed on by the

Supreme Court of the United States and on that very

basis 1 ask those questions.

The Court: I am awfully sorry about the Supreme

Court of the United States, but this is the Supreme

Court of the State of New York.

Mr. Newton: Yes, but they have reversed your State

courts just for not—

The Court: Ido not care to get into any argument

with you. I sustain his objection. You have an excep-

tion to it.

Mr. Marsh: May I just make this point? I do not

object to this line of cross examination at the proper

time, but just at this particular time.

The Court: That is the only basis I am ruling on.

I am not limiting it.

Q. Outside his wife you allowed nobody to see him?

A. No, sir.

Q. Until after you- had completed the questioning

of him as you have related? A. Until after the investi-

gation was completed. (Fols. 904-914.)

The statements had been marked Exhibits Nos. 46

and 47 for identification. (Fols. 837, 891.)

Mr. Marsh: At this time, then, I will offer them in

evidence.

Mr. Newton: Then I object on the ground they are

incompetent; they are taken in violation of Section 395

of the Code of Criminal Procedure, of the due process

of law provision of the State Constitution and the 14th

Amendment of the United States Constitution;* * *”’

(ree. p. 298).

‘‘Mr. Marsh: I renew my offer in evidence.

Mr. Newton: I object on the grounds stated.

SE ee NT 08

26

The Court: I overrule the objection and say this to

the jury sf oo?

Then after the witness was asked at the suggestion of

the Court as to any force or violence or threats being em-

ployed against the defendant, which was objected to as

calling for a conclusion and it was for the jury to pass on,

and answered, ‘‘No, sir, none whatever,’’ the statements

were marked in evidence and read to the jury (rec. pp. 299,

304-306).

The petitioner intended to show that when his attorney

was at the police station at Niagara Falls on the morning

of August 21, 1944, he was not permitted to talk to him

without the presence of a police officer.

Under the United States Supreme Court decision, supra,

the question whether or not the statements of the appellant

was limited to the fact that they were secured by reason of

fear produced by threat but rather whether or not they

were the result of coercion. That question was not to be

confined to what only occurred before they were taken but

his condition, physically and mentally, shortly thereafter

and his treatment as continued before and after their tak-

ing by the police officers. The jury was not to receive the

matter as a question of fact till the matter was developed in

all its phases.

Whether there is other evidence in the record sufficient

to sustain the verdict, regardless of the confession, to which

objection was made, is immaterial. If the admission of the

confession denied a right to the defendants under the Con-

stitution, such an error requires reversal.

Braum v. United States, 168 U. S. 533, 540-42.

Lyons v. Oklahoma, 322 U. 8. 596.

27

‘*The voluntary or involuntary character of a con-

fession is determined by a conclusion as to whether the

accused, at the time he confesses, is in possession of

‘mental freedom’ to confess or deny a suspected par-

ticipation in a crime. * * * When conceded facts exist

which are irreconcilable with such mental freedom, re-

gardless of the contrary conclusions of the triers of

fact, whether judge or jury, this Court cannot avoid re-

sponsibility for such injustice by leaving the burden of

adjudication solely in other hands.’’

Lyons v. Oklahoma, 322 U. S. 596.

CONCLUSION.

The record conclusively discloses an invasion of peti-

tioner’s rights under the Fourteenth Amendment and this

Court should intervene to prevent a clear miscarriage of

justice.

The petitioner prays that his petition for a certiorari be

granted.

THOMAS L. NEWTON,

Counsel for Petitioner.

A NN RS ENE SMB Nii ak nie

28

APPENDIX “A”.

Report of Case in New York Court of Appeals.

295 N. Y. 767.

PEOPLE, Respondent v. ROBERT W. BARNES,

Appellant.

Court of Appeals of New York.

March 7, 1946.

Appeal from Supreme Court, Appellate Division, Fourth

Department, 269 App. Div. 898, 57 N. Y. S. 2d 269. -

Robert W. Barnes was convicted of murder in the first

degree. The bill of particulars stated that at the time

charged in the indictment, defendant choked, strangled and

killed the victim while engaged in the commission of the

crime of rape in the first degree upon her person. The de-

fendant made a confession which he subsequently repudi-

ated and on the trial testified in his own behalf and in addi-

tion to repudiating the confession charged all persons en-

gaged in the investigation with acts of excessive brutality,

drugging, fraud and sexual depravity. The officers in-

volved denied the charges made by defendant. From the

judgment of the Appellate Division, 269 App. Div. 898, 57

N. Y. S. 2d 269, affirming the judgment of conviction, the

defendant appeals.

Affirmed.

Thomas L. Newton, of Buffalo (Julian J. Evans of Buf-

falo, of counsel), for appellant.

John S. Marsh, Dist. Atty., of Lockport, for respondent.

Per Curiam.

Judgment affirmed.

All concur except DYE, J. who dissents and votes to or-

der a new trial.

MEDALIFE, J., deceased.