# Petition for a Writ of Certiorari — Buteau v. Connecticut

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1950
- **Citation:** 339 U.S. 903

## Text

INDEX

Susyect INDEX

PAGE
Petition for writ of certiorari 1
Summary statement of matter involved 1
This court has jurisdiction 10
The questions presented 12
Reasons relied on for allowance of writ 16
Prayer for writ 19
Brief in support of petition for writ of a 20
Opinion of Court below 20
Jurisdiction 20
Statement of case 21
Errors relied upon 21
Summary of argument 22
Argument 23
A. The confessions should have been excluded ... 23

B. The procedure used to obtain the confessions
is unconstitutional 33
Conclusion... 34

TaBLE oF Cases CITED

Ashcraft vs. State of Tennessee, 322 U. S. 143, 64 S. Ct.

921 19, 23, 31, 32
Chambers vs. State of Florida, 309 U.S. 227, 60 S. Ct.

472 19, 23, 32
Haley vs. State of Ohio, 332 U.S. 596, 68 S. Ct. 302...........

19, 23, 26, 31, 32
Harris vs. State of South Carolina, 338 U.S. 68, 69 S. Ct.

1354 19, 23, 26, 31, 32
Lyons vs. Oklahoma, 322 U.S. 596 26
Malinski vs. People of State of New York, 324 U.S. 401,

65 S. Ct. 781 19, 23, 26, 31, 33
McNabb vs. United States, 318 U.S. 332 26, 30
State vs. Chin Lung, 106 Conn, 701. 4, 24

30

State vs. Coffee, 56 Conn. 399

il INDEX

PAGE

Turner vs. Commonwealth of Pennsylvania, 338 U.S. 62,
69 S. Ct. 1352 19, 23, 26, 31, 32
United States vs. Mitchell, 322 U.S. 65 26

Watts vs. State of Indiana, 338 U.S. 49, 69 S. Ct. 1347
18, 23, 25, 26, 31, 32, 34

OtHer AuTHorities CITED

Constitution of the United States:
Fourteenth Amendment... 2, 10, 11, 12, 13, 14, 16, 17, 18,
21, 22, 23, 29, 31, 32, 33, 34, 35

Sixth Amendment 14
Constitution of State of Connecticut :

Article I, Sec. 9 3, 14

Article V, Sec. 1 31
Connecticut Practice Book, Rev. 1930:

Section 399, p. 117 as amended 11

Section 405, p. 119 12
6 Corpus Juris Secundum, Sec. 17 (b) p. 618 30

TABLE OF STATUTES CITED

Connecticut Statutes :
General Statutes, Rev. 1930, Sec. 239; (Sec. 54-h,
C.S. 1945; Sec. 465, G.S. 1949) 30
1945 Supplement to the General Statutes:
Section 54-h, C.S. 1945 (Sec. 465, G.S. 1949)
2, 3, 12, 13, 14, 15, 21, 22, 24, 25, 29, 30, 32 34
Section 56-h, C.S. 1945 (Sec. 477, G.S. 1949) 8, 28

General Statutes, Rev. 1949':

Section :

466 (Sec. 240, G.S. 1930) 10, 26

468 (Sec. 258, G.S. 1930; Sec. 50-c, C.S. 1935;
Sec. 105-e, C.S. 1939) 8, 10, 26

1Citations to General Statutes, Rev. 1949 contain same provisions
of law as in indicated citations in parenthesis to General Statutes,
Rev. 1930 as amended and operative in the present case.

473 (Sec.

475 (Sec.
476 (Sec.
477 (Sec.
478 (Sec.
479 (Sec.
480 (Sec.
485 (Sec.
486 (Sec.

iil

PAGE

245, G.S. 1930; Sec. 47-c, C.S. 1935)

9
246, G.S. 1930) 7,9
247, G.S. 1930) 7
56-h, C.S. 1945) 8
9
9

248, G.S. 1930) g,
249, G.S. 1930) 8,

250, G.S. 1930; Sec. 48-c, C.S. 1935)
255, G.S. 1930). 8, 10,
256, G.S. 1930)

8350 (Sec. 6043, G.S. 1930; Sec. 1685-c CS.

1935)

8351 (Sec. 6044, G.S. 1930)
8352 (Sec. 6045, G.S. 1930)

8764 (Sec. 6446, G. S. 1930) 4,
Title 5 Chapter 20? (Title 4, Chap. 14, G.S. Rev.

1930, as amended )

United States Statutes:
Title 28, United States Code, Sec. 1257 (3) 10,
28 U.S.C.A. Sec. 344 (b) 10,

30
30

2This citation contains the same laws operative in the present case
under General Statutes, Rev. 1930 as amended except as to Sec.
98-i, C.S. 1947 contained in Sec. 470, G.S. 1949 and Sec. 99-i, C.S.

1947 contained in Sec. 483, G.S. 1949.

—7_—" ' reser ec

Supreme Court of the United States
OCTOBER TERM, 1949

NO.

JAMES BUTEAU
Petitioner

US.

STATE OF CONNECTICUT
Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF ERRORS OF THE STATE OF
CONNECTICUT.

May It PLEASE THE CourT:

The petition of James Buteau respectfully shows:

I

Summary Statement of Matter Involved

This case involves the procurement of two confessions of the
petitioner and their admission in evidence to the jury against him
in a trial in which the petitioner was convicted of first degree
murder and is under sentence of death.

2

The petitioner contended in the Supreme Court of Errors
and on trial that the procurement and admission in evidence of
these two confessions deprived him of life and liberty without
due process of law in violation of the Fourteenth Amendment to
the United States Constitution, because the confessions were
procured after the petitioner had been held incommunicado, in
the private, secret custody of state police, for the purpose of
obtaining a confession from the petitioner, committed to the police
for this purpose by the coroner by virtue of an illegal warrant,
without a presentation in court until twenty-five days after his
arrest, being in violation of Sec. 54-h C.S. 1945 requiring “pre-
sentation with reasonable promptness before proper authority,”
and after having been subjected to persistent questioning for long
periods of time, the first confession having been procured on the
seventh day after his arrest and the second confession on the
eleventh day after his arrest and before the petitioner had the
benefit of counsel.

The petitioner was indicted jointly with one Albert Berard,
on September 17, 1947, for murder in an attempt to perpetrate
a robbery (R. 2). Separate trials were granted (R. 2-4).

Cn an appeal to the Supreme Court of Errors of the State of
Connecticut, the judgment of conviction was confirmed on August
16, 1949 (R. 2252). A motion for re-argument in the Con-
necticut Supreme Court of Errors, timely filed, was denied with-
out opinion on October 5, 1949 (R. 2254).

During the trial in the Superior Court, a preliminary hearing
was held by the court, in the absence of the jury, as to the admis-
sibility of each confession and as to each confession the court
concluded it to be voluntary and admissible in evidence and they
were later admitted in evidence to the jury (R. 538, 587, 590,
731, 1549, 1551; 656, 663, 669, 673, 731, 1674, 1675).

On October 25, 1946 the assistant manager of a department
store in Meriden was shot and killed during the attempted per-
petration of a robbery of the store. The identity of the robbers
at this time was not known.

_—————

3

On August 22, 1947, Albert Berard was arrested for the
crime. On August 23, 1947, about 2:00 a. M., the petitioner was
arrested by state police without a warrant on orders of state
police commissioner, Edward Hickey, and immediately taken to
state police headquarters in Hartford where he was questioned
from 3:00 a. m. to 5:00 a. M. by commissioner Hickey, state
police officers and the assistant state’s attorney and where he was
confronted with Berard who made accusations against him.

Petitioner made no incriminating statements concerning the
crime. Before leaving the room commissioner Hickey told him
he was being held for murder.

The arrest was made under the provisions of 54-h C.S. 1945
which permits an arrest without a warrant under certain circum-
stances and provides that “Any person so arrested shall be pre-
sented with reasonable promptness before proper authority” (R.
532, par. 25.)

At 5:00 a. m. August 23rd the petitioner was locked in a cell
at the Hartford state police barracks.

Beginning at 9:00 a. M. that same morning and until about
2:00 p. M. of that day, the petitioner was further questioned in
the Hartford state police barracks and then brought to the Bethany
state police barracks where hv was lodged in a cell in the late
afternoon, the cell containing a steel bunk with no mattress or
pillow. The petitioner was questioned concerning the crime for
over seven and one-half hours on the day of his arrest (R. 119,
124, 167-8, 172-5, 178, 182-3, 241, 243-7, 250, 327-329).

A presentment or indictment of the grand jury is required to
hold a person to answer for a crime the punishment of which is
death or life imprisonment such as in first and second degree
murder. Conn. Const. Art. I, Sec. 9; Secs. 8350-8352 GS.
1949.

State procedure would have permitted the police to present the
petitioner on charges of murder in the Meriden Municipal Court
on the morning of his arrest or on any week-day thereafter for

4

binding over to the Superior Court at New Haven, being the
process of law by which the petitioner would have been held
until the Superior Court would have taken cognizance of the
charges against him by reason of an indictment by a grand jury.
State vs. Chin Lung, 106 Conn. 701, 720.

The petitioner could also have been presented in the Superior
Court of New Haven County upon an information filed by the
state’s attorney for an order of court holding the petitioner until
indictment by a grand jury. Sec. 8764, G.S. 1949.

The petitioner was never presented in the Meriden Municipal
Court at any time and was not presented in the Superior Court
for New Haven County until September 17, 1947, being the day
of his indictment by a grand jury.

Instead of being presented in court, pending indictment, the
petitioner was committed to the Bethany state police barracks
under a warrant issued August 23, 1947 by Coroner James J.
Corrigan. On that same day, Coroner Corrigan issued his war-
rant committing the petitioner’s accomplice, Albert Berard, to
the New Haven county jail.

In connection with the issuance of the warrant by the Coroner,
it was his own testimony that he knew “it was the desire of the
investigating authorities to talk with Buteau further.” (R.
40-41). On August 23, 1947 the coroner knew he could have
summoned the petitioner before him for questioning, but did not
do so because he was of the opinion that the investigation had
not yet proceeded to the point he “thought most fruitful” against
Buteau and he decided “the most expeditious way’’ was to leave
the petitioner with the state police, (R. 49-50); that he com-
mitted the co-defendant, Berard, to the New Haven county jail
at the same time because the “investigation had advanced to a
more complete stage with regard to him than with regard to
Buteau,” (R. 41); that he committed the petitioner to the state
police barracks “to make it easier for the Meriden police and the
state police to talk to Buteau,” (R. 41) and “because we decided
that the investigation might proceed with greater facility if he

5

were at the Bethany barracks,” and because “it would give the
state police greater chance to confer with him and a better oppor-
tunity than if he were at the jail.” (R. 40-41); that a further
reason for committing the petitioner to the state police barracks
was to prevent the petitioner from having the advice of fellow
prisoners in the county jail (R. 1982); that to assist the state
police in questioning the petitioner further, he ordered the peti-
tioner “kept incommunicado” (R. 43) ; that it was his intention
“no person be permitted to communicate with Buteau”” except
with the coroner’s consent (R. 43; 533, par. 33); that it was the
intention of the coroner that as long as the petitioner “remained
in the custody of the state police he could be left at the barracks
or taken to any other proper place,” and that by “proper place”
the coroner meant “the scene of the crime, the state’s attorney's
office, the coroner’s office, the jail, the City of Meriden,—any
place where the police could get information from Buteau con-
cerning this crime . . . any place the police thought fit to
take him if they could get information about the crime,” (R.
47-48) ; and that whether or not the petitioner “might be brought
to a certain place would be determined by the state police,” (R.
47-48) and his sole purpose was to aid the police in getting
information from the petitioner (R. 48; 533, par. 32, 33). All
the foregoing testimony of the coroner is undisputed.

Petitioner was held on the authority of coroner Corrigan’s war-
rant in private secret custody, without counsel until after the
taking of petitioner's statement on August 30, 1947 by Deputy
Coroner, Nathan G. Sachs.

On August 25, 1947 the petitioner was taken to Meriden by
order of commissioner Hickey and followed his accomplice, Ber-
ard, at a short distance while Berard went over the route and
areas connected with the crime, each being accompanied by state
police officers and representatives of the state’s attorney's office.
On this day the petitioner was questioned over a period of four
and one-half hours concerning the crime. (R. 179-182, 184-186,
189, 197, 198, 251, 252, 255, 259-261.)

6

In the meantime, members of the petitioner’s family were not
able to locate him. His family with whom the petitioner lived,
learned of his arrest through a radio broadcast at noon on the
day of his arrest. State police officers who called at the home
that same morning talked with the petitioner’s sister but failed to
give her any information concerning the arrest or whereabouts
of the petitioner notwithstanding her inquiries of them (R. 296-
300).

For the purpose of aiding the petitioner, his sister tried to
locate him beginning August 23, 1947 on numerous occasions
by making inquiries of the Meriden city police, the New Haven
county jail, by attempting to locate the coroner of the county
without success, by inquiring of the deputy coroner and members
of the state police department but was unable to get any infor-
mation as to the whereabouts of her brother until August 28, 1947
(R. 300-302).

On August 27, the petitioner’s sister inquired of the state police
who called at her home but was given no information as to the
location of her brother (R. 302-303).

On August 28, 1947 the petitioner’s sister (Elaine Buteau)
was taken by state police officers to the Bethany state police bar-
racks on orders of Captain Carroll for the purpose of Captain
Carroll trying to influence her to persuade her brother to give
information on the crime (R. 200-202, 212, 304-305). He was
questioned in the presence of his sister but made no incriminating
statements. At this time, Captain Carroll told the petitioner that
two state police officers had seen a bank book in the name of
Albert Berard that showed a deposit of either $5,090. or $8,090
(R. 215-216, 231). The truth of the existence of said deposit
was never afterwards proven. Petitioner was questioned further
that same evening after his sister left and for the first time
admitted that on the night of the crime he had beer in the store
where the crime had been committed (R. 535, par. 47). On
this day he was questioned for a substantial part of five hours
(R. 200-202, 205, 209, 212-215, 223-230, 261, 263, 273, 304).

—a—

7

That evening, Captain Carroll decided to take the petitioner the
next day to the state’s attorney's office for further questioning.

On August 29, 1947, petitioner was questioned concerning the
crime by Captain Carroll and a county detective for about one
hour at the Bethany barracks. By previous arrangement, he was
then brought to the state’s attorney's office, New Haven arriving
there about 10:30 a. M. and except for a short period for lunch
and when he was kept in the prisoner’s cage in the criminal court
room, the petitioner was held in the state’s attorney's office until
about 6:00 p. m. During these hours the petitioner was ques-
tioned at great length by the state’s attorney, Captain Carroll and
a county detective. Berard was present during a substantial part
of the questioning and made accusations against the petitioner.
On this day he had his first change of clothing since his arrest
and was permitted to shave for the first time and was questioned
even while shaving. He was questioned on this date for a total
of about seven hours (R. 278-279, 281-282, 286-287 ).

The first confession of the petitioner was taken by the deputy
coroner on August 30, 1947 by arrangement with the state’s
attorney (State’s Exhibit 44, R. 28). This questioning took three
and one-half hours (R. 592, 606, 621-622, 652). At the con-
clusion of the statement, the petitioner was committed by a war-
rant of that date issued by the deputy coroner to New Haven
county jail, the place of confinement for prisoners awaiting trial
in New Haven county (Par. 59, R. 537).

Notwithstanding the direction of the warrant committing the
petitioner to jail (Defendant’s Exhiibt “K,” R. 27, 2031-2032,
R. Vol. I, page f), the police brought the petitioner to Meriden
where by arrangement they met Captain Carroll and while in their
custody petitioner was questioned and taken into the store and
other places connected with the crime (R. 387, 392-394, 407,

417).
At no time did coroner Corrigan question the petitioner or

Berard or any witnesses or perform any of the statutory func-
tions connected with a coroner’s inquest (Sec. 473, 475, 476,

8

478, 479, 485, G.S. 1949; R. 18-19, 34, 35, 38, 39, 49, 50, 51:
533, par. 30-32).

Section 485, G.S. 1949, requires that a coroner must be con-
ducting an inquest in order to be authorized to arrest and commit
to jail or other proper place any person whom he has reason to
suspect of having criminally caused the death of another.

The deputy coroner has the same powers as the coroner while
acting in his place (Sec. 468, G.S. 1949).

The deputy coroner started the inquest on the night of the
- crime and after the arrest of the petitioner completed the inquest
and filed his statutory finding. (R. 1122, 1141). He did not
know the place of confinement of the petitioner under the coroner's
warrant until August 29, 1947 when he learned it from the state’s
attorney (R. 1142, 1148).

It is not disputed that the petitioner, on the day of his arrest,
told Captain Carroll that when the time came he expected the
public defender to represent him (R. 182-184; 2246-2247). The
stenographic statement of August 30, 1947 of the petitioner ob-
tained by the deputy coroner does not show that the deputy coro-
ner informed or questioned the petitioner concerning his
statutory right to have counsel present (R. 1126; Sec. 477, G.S.
1949). Whether any such advice was given before the statement
of August 30, 1947 was begun, is not recalled by the petitioner
(R. 351) nor by the deputy coroner (R. 1126).

On September 3, 1947 the petitioner appeared in the Superior
Court for the specific purpose of having a special public deefnder
appointed to represent him because he was without funds and
because the public defender was representing the accomplice,
Berard, at which time the court stated counsel would be appointed
to represent the petitioner.

These proceedings ended at 12:00 noon that day. Petitioner
was not then returned to New Haven county jail, but was kept
in police custody in the state’s attorney’s office until 10:00 Pp. M.
during which time his statement of September 3, 1947 was pro-

———— a
9

cured (State’s Exhibit 45, R. 745-752). This statement was
procured by Captain Carroll when he and the state’s attorney knew
of the impending appointment of counsel to represent the peti-
tioner and before the petitioner had the benefit or advice of any
counsel. The special public defender to represent the petitioner
was appointed September 4, 1947.

The required application for the appointment of a special public
defender for the petitioner was not made by the state’s attorney
until after the confession of August 30, 1947 had been procured.

The petitioner was given a warning against self incrimination
on the morning of his arrest and again was so warned just before
the procurement of the first and second confessions. The peti-
tioner contended in his state appeal that those warnings were
merely recitals to formalize constitutional requirements and_be-
came a cloak for an inquisitorial procedure pursued to wring these
confessions from him (Brief of petitioner in state appeal, p.

63-64).

The introduction into evidence of his two confessions com-
pelled the petitioner to take the witness stand in his own behalf
(R. 2243; State brief of petitioner, p. 66).

Petitioner contended in the state appeal that “proper authority”
before whom under the state law he was to be presented with
reasonable promptness, meant a court of law (Petitioner's state
brief, p. 19-20) and not a coroner.

The function of a coroner under state law concerns an inves-
tigation of the cause and manner of a death suspected of being
caused by the criminal act, omission or carelessness of another
(Section 473, G.S. 1949). In a proper case he communicates the
import of his finding to the prosecuting attorney (Section 478,
G.S. 1949) and files kis report with the clerk of the Superior
Court (Section 479, G.S. 1949). His inquest involves the taking
of testimony of the medical examiner and other witnesses deemed
necessary (Section 475, G.S. 1949). In connection with his
inquest, he may cause a person suspected of the crime to be ar-

10

rested and committed to jail or other proper place and take bail
or commit without bail under certain circumstances (Section 485,
G.S. 1949) but may not keep a person under arrest longer than
twenty-four hours after his finding (Sec. 485, G.S. 1949).

His functions and powers do not include the presentation be-
fore him of an accused on criminal charges for the purpose of
taking a plea or to furnish proof of probable cause or of a prima
facie case against him, or for the purpose of binding the accused
over to answer in the court having proper jurisdiction of the
crime. The coroner examines witnesses merely for the purpose
of making his report to the prosecuting attorney and clerk of the
court. The procedure connected with the inquest does not pro-
vide that a suspected person has the right to be confronted by
witnesses, examined by the coroner nor to cross examine any
such witness nor to present witnesses on his behalf (Title V,
Chap. 20, G.S. 1949). A coroner’s inquest under state procedure
is not necessary to the indictment or presentation of an accused
on criminal charges involving a homicide.

The deputy coroner is appointed by the coroner who is ap-
pointed by the judges of the Superior Court upon recommendation
of the state’s attorney (Sections 466, 468, G.S. 1949).

Petitioner presented as a principal issue in the state appeal the
claim that his conviction based upon his cenfessions used in evi-
dence violated the Due Process Clause of the Fourteenth Amend-
ment of the United States Constitution (State Brief, p. 1-2)
which was passed upon by the State Supreme Court of Errors
(R. 2249).

II
This Court Has Jurisdiction

The petitioner respectfully submits that this court has jurisdic-
tion of this petition for writ of certiorari under Title 28, United
States Code, Section 1257 (3), (formerly 28 U.S.C.A., Section
344 (b)), said petition being one to review the final judgment

_ ———,

. 11

of the Supreme Court of Errors of the State of Connecticut, in
a capital criminal case, rendered August 16, 1949, said state court
being the highest court in the state in which a decision could be
had.

A motion to reargue, filed August 25, 1949, being within the
time prescribed by the rules of practice (Section 399 as amended,
Practice Book, 1930) was denied October 5, 1949 and all reme-
dies in the state courts have been exhausted.

The judgment of the Supreme Court of Errors (R. 2252) con-
firmed the judgment of the Superior Court finding the petitioner
guilty of first degree murder and sentencing petitioner to death

(R. 7).

The federal questions have been carefully preserved in the
record. On trial, at the conclusion of the preliminary hearing
held to determine the admissibility of the confession of August
30, 1947, the petitioner claimed it was not admissible in evidence
because violative of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution (R. 538). The
court overruled this claim and held the confession voluntary and
admissible (R. 587, 590). This ruling was made assignment of
error #49 in the state appeal (R. 731). The court also over-
ruled the objection of the petitioner that this confession was not
admissible in evidence to the jury (R. 1549-1551). This ruling
of the court was made assignment of error #48 in the state
appeal (R. 731).

On trial, at the conclusion of the preliminary hearing held to
determine the admissibility of the confession of September 3,
1947, the petitioner claimed that it was not admissible in evi-
dence because violative of the Due Process Clause of the Four-
teenth Amendment to the United States Constitution. This was
done by reference to the constitutional claims made in connection
with the first confession (R. 656, 663, 669). The court over-
ruled this claim and held the confession voluntary and admissible
(R. 673). This ruling was made assignment of error #51 in
the state appeal (R. 731). The court overruled the objection of

12

the petitioner that this confession was not admissible in evidence
to the jury (R. 1674, 1675). This ruling of the court was made
assignment of error #52 in the state appeal (R. 731).

In the appeal to the State Supreme Court of Errors, the peti-
tioner contended in oral argument and in his brief (State appeal
brief, p. 1, 60) that the circumstances under which the two con-
fessions were procured and their use in evidence against him
deprived him of his life and liberty without due process of law
in violation of the Fourteenth Amendment of the United States
Constitution. These constitutional claims were overruled by the
State Supreme Court of Errors (R. 2249).

Necessarily included in the decision on the constitutional issues
were the factors of the failure of compliance with the prompt
presentation statute, Section 54-h, C.S. 1945, and all illegal de-
tention because petitioner claimed, orally and in his state appeal
brief, the element of illegal detention as a factor to be considered
upon his constitutional claims (State brief, p. 60) and under the
rules of state appeal practice petitioner's brief was deemed a part
of his opening argument (Conn. Practice Book, p. 119, Sec. 405).

The opinion of the state Supreme Court of Errors is included
in the record (R. 2242-2251) and a certified copy of the peti-
tioner’s brief in the state court appeal is filed with this petition.

Ill
The Questions Presented
The questions presented to this court are:

1. Whether the conviction of the petitioner, based on all the
undisputed facts of the case, resulted from the procurement and
use of either or both of his confessions obtained under circum-
stances which should have barred their use against him because
violative of his constitutional rights as guaranteed by the Due
Process Clause of the Fourteenth Amendment of the United
States Constitution.

ee
13

2. This question presents the issue whether in confirming the
conviction, illegal detention based on the illegal warrant of the
coroner, the detention thereunder and the abuse of the coroner's
powers, should have been excluded as a factor in considering the
coercive character of the petitioner’s confessions used against him.

3. A further issue presented is whether the position of the
state Supreme Court of Errors was correct that because “the
situation previous to his (petitioner’s) appearance before the
deputy coroner can only be regarded as a remote circumstance,”
(R. 2247) all the circumstances previous to August 30, did not
need to be considered on the question whether there was any
illegal detention during this time thereby (a) excluding from their
consideration the question whether the coroner’s warrant of
August 23 was illegal and any detention thereunder illegal (R.
2245) and (b) excluding from their consideration all the circum-
stances prior to August 30th as factors upon the coercive char-
acter of the confession rendering them inadmissible because a
denial of due process under the Fourteenth Amendment of the
United States Constitution.

The questions present the issues whether the position of the
Connecticut Supreme Court of Errors is correct in holding :

(a) That there was no need to consider the petitioner's claim
that the coroner's warrant of August 23, 1947 was illegal and
petitioner’s arrest and detention thereunder illegal (R. 2245).

(b) That the presentation before the deputy coroner was
similar in legal effect to a presentation before a “committing
magistrate” under the rule followed in the federal courts that
a “coroner is a ‘committing magistrate’ ’’ and that the presenta-
tion before the deputy coroner was not “unreasonably delayed”’
and thereby holding by inference that the presentation of the
petitioner before the deputy coroner on August 30, 1947 was a
compliance with Section 54-h C.S. 1945 (R. 2248) and thus in
effect denying the petitioner's claim (State appeal brief p. 20-21)
that under Sec, 54-h C.S. 1945 he should have been presented

14

in the Meriden Municipal Court or the Superior Court with rea-
sonable promptness and prior to September 17, 1947.

(c) That the “situation” previous to the petitioner appearing
before the deputy coroner on August 30, 1947 can only be re-
garded as a “remote circumstance,” (R. 2247) upon the question
of the coercive character of the confessions.

(d) That “the most that can be claimed is that he (petitioner)
was not promptly returned to jail but was kept in the court house
until he himself had expressed the desire to make a statement,”
(R. 2248) to the claim of the petitioner that his confession of
September 3, 1947 was procured by State Police Captain Carroll
as a result of illegal detention due to petitioner’s failure to he
presented under section 54-h C.S. 1945 and of his failure to be
promptly returned to the county jail to be there confined in ac-
cordance with the directions of the warrant of August 30, 1947
of the deputy coroner which together with certain factors occur-
ing since his arrest which were still present rendered his confes-
sion not admissible in evidence.

(e) That because all the cases in the United States Supreme
Court dealing with the rule of the federal court barring the use
of confessions when violative of a speedy presentation statute
have concerned confessions made to police officers, “we doubt very
much that the federal court would apply it to an examination
made by a coroner in carrying out his statutory duties of inves-
tigating an untimely death” (R. 2247) and that therefore the
reasons for the barring of confessions under such federal rule do
not apply to the case of the coroner, or deputy coroner, conduct-
ing an inquest.

(f) That “neither the constitution of the United States nor
the constitution of Connecticut requires that one arrested for a
crime shall be promptly taken before a committing magistrate; all
they provide is that he shall have the right to ‘a speedy and public
trial.’ United States Constitutional Amendment VI; Connecticut
Constitution, Article I, Section 9” (R. 2248) in view of the Due
Process Clause of the Fourteenth Amendment to the United States

a —

15

Constitution and the provisions of Section 54-h, C.S. 1945 re-
quiring that a person arrested without a warrant be “presented
with reasonable promptness before proper authority,”
tioner claimed was a court of law and not a coroner.

which peti-

(g) That the “trial court was warranted in concluding” that
neither confession “was the result of any illegal detention or of
coercion, physical or psychological” (R. 2249) thereby approving
the trial court’s ruling made at the conclusion of the preliminary
hearings held to determine the voluntary character and admis-
sibility of the confessions in which the trial court ruled that there
was no illegality of detention either by virtue of the claimed
failure to be presented under Section 54-h, C.S. 1945, or by virtue
of the warrant of coroner Corrigan of August 23, 1947, in which
ruling the trial court stated that in the solution of the crime by
the various officers of the law “under the leadership and with
the coordination of the office of the state’s attorney” that the arrest-
ing officer “was not compelled by the provisions of Section 54-h
to wreck the investigation, to stand on some mandate or sanction
he felt compelled him to do something different from the senior
officers who were over him in this investigation ; that the disposi-
tion of the man, upon his being taken into custody and being

‘apprehended was finally determined by the coordinator of the
investigation, the state’s attorney, and if he was of the opinion
the investigation would be best served by indicating to his fellow
worker, the coroner, that a warrant should be issued, instead of
indicating to his fellow worker, the superintendent of the state
police, the man must be taken forthwith to Meriden, that action
on the part of the state’s attorney, that information to his fellow
worker, the coroner, transcended any other mandate in the law,
and the action of the coroner being in and of itself legal was
proper and the detention of Buteau from thenceforth under the,
provisions of that warrant was legal and proper (R. 667).

(h) That there were present in the instant case “no such
circumstances as have led the Supreme Court of the United
States to hold in certain cases that the conviction of accused
persons upon the basis of forced confessions they had made were

16

in violation of the Due Process Clause of the F ourteenth Amend-
ment of the United States Constitution” (R. 2249) and in deny-
ing the petitioner's motion to reargue (R. 2253-2254).

IV
Reasons Relied on for Allowance of Writ

1. A substantial federal question, not heretofore determined
by this court, presents itself as to whether an appearance by an
accused before a coroner or deputy coroner, for the purpose of
that official conducting an inquest is a compliance with a state
prompt-presentation statute so as to eliminate the failure of the
arresting officers or prosecutiong officials to have “presented”
the accused “with reasonable promptness before proper authority”
for a preliminary hearing on charges under a statute as one of
the material factors in considering whether circumstances result-
ing in the procurement and use in evidence of a confession denied
the accused the protection of the Due Process Cluase of the
federal Fourteenth Amendment. In this regard the case presents
the question also whether the scope of authority and function
of a coroner constitute him the proper type of magistrate before
whom a preliminary hearing on charges should be had within
the intendment of the protection afforded by the federal Due
Process Clause, in view of the existence of a state prompt-pre-
sentation statute.

2. A substantial federal question not heretofore determined
by this court presents itself with respect to the abuse of the power
of a coroner acting in concert with police and prosecuting officials,
in arresting and committing a person suspected of committing a
murder to the secret private custody of the state police for the
purpose of aiding the police to secure a confession and involving
the avoidance of a prompt-presentation statute, resulting in the
procurement and use in evidence of a confession in a conviction
in a capital case as being violative of the Due Process Clause of
the Fourteenth Amendment of the United States Constitution.

17

(a) This question presents the issue whether police officers
who have arrested without a warrant a person suspected of mur-
der and who, together with the prosecuting attorney involved
in the case, should present him with reasonable promptness before
proper authority under a state statute, for a preliminary hearing
on charges, which would have caused the accused to be detained
in a county jail pending indictment, may avoid and delay such
a preliminary hearing on charges and acquire the private secret
custody of the accused for interrogation purposes, by the concerted
and calculated action of the arresting police, the prosecuting attor-
ney and the coroner, until after the police and prosecuting attor-
neys have been able to exert their pressure to break the accused
under circumstances which would have been a denial of the
protection of the federal Due Process Clause so as to invalidate
any confession had the same been procured by the police and
then for said police and the prosecuting authorities to escape such
a consequence by having the deputy coroner afterward take the
statement of the accused in the course of an inquest, which may
be used as a confession under state practice, when the confession
so taken by the deputy coroner in connection with the inquest is
no less the fruit of the inquisitorial procedure on the part of the
police and prosecuting authorities and of the circumstances result-
ting in the making of the confession which would have barred
it in the first instance because constituting a denial of the right
guaranteed by the federal Due Process Clause.

(b) There is also involved in this question the abuse on the
part of the coroner, who is a nominee of the prosecuting attor-
ney in the case, acting in concert with the police and prosecuting
officials in yielding the accused to the private secret custody of
the police for the avowed purpose of extracting a confession and
then after many days of persistent questioning, while the accused
is without benefit of counsel, to have the deputy coroner. who is
the appointee of the coroner, take the confession in the course
of an inquest, which the deputy coroner had started ten months
previous to the arrest and had the right to start and complete,
which confession is then offered in evidence as the product of an

18

inquest legally and duly conducted by the deputy coroner, said
confession being held by the state Supreme Court of Errors to
have had only a “remote” connection with the events leading up
to and preceding the statement so taken by the deputy coroner
and thus approving a procedure whereby the police and prosecut-
ing officials and the coroner acting in concert utilize the inquest
of the deputy coroner as a cloak in procuring a confession under
circumstances which should have barred its use because denying
the protection of the federal Due Process Clause.

(c) Included in the foregoing is the claim that the coroner,
in issuing his warrant had no right to do so because he was not
conducting an inquest and that consequently the arrest and deten-
tion thereunder of the petitioner was illegal.

(d) Also contained in the foregoing is a substantial federal
question whether the combination of the procedures of the pelice,
prosecuting officials and coroner, as disclosed above, establishes
a criminal procedure in the state, in connection with the procure-
ment of confessions from an accused, which is inquisitorial in
nature and subversive of the accusatorial system of criminal jus-
tice as guaranteed by the Due Process Clause of the Fourteenth
Amendment of the United States Constitution.

3. The said Supreme Court of Errors of Connecticut, in the
above case, has decided a federal question of substance in relation
to the confession of August 30, 1947 of the accused, taken by
the deputy coroner, and in relation to his confession of September
3, 1947, taken by State Police Captain Carroll, in favor of the
respondent herein, by denying the petiiioner’s claim that they
were coerced and by holding both of said confessions to have been
voluntary and admissible in evidence and not violative of the Due
Process Clause of the Fourteenth Amendment of the United
States Constitution, which decision in affirming the conviction
of murder in the first degree is not in accord with the applicable
decisions of this court, including the following cases:

Watts v. State of Indiana, 338 U. S. 49, 69 S. Ct. 1347.

19

Turner v. Commonwealth of Pennsylvania, Be VU. &.
62, 69 S. Ct. 1352.

Harris v. State of South Carolina, 338 U. S. 68, 69
S. Ct. 1354.

Haley v. State of Ohio, 332 U.S. 596, 68 S. Ct. 302.

Malinski v. People of State of New York, 324 USS.
401, 65 S. Ct. 781.

Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S. Ct.
921.

Chambers v. State of Florida, 309 U.S. 227, 60 S. Ct.
472.

Wherefore, your petitioner prays that a writ of certiorari be
sssued ovtt of and under the seal of this Honorable Court, directed
to the Supreme Court of Errors of the State of Connecticut,
commanding that court to certify and to send to this Court for
its review and determination on a day certain, to be therein named,
a full and complete transcript of the records and all proceedings
in the case numbered and entitled in its docket, No. 3024, State
of Connecticut v. James Buteau and that the judgment of the
Supreme Court of Errors of the State of Connecticut may be
reversed by this Honorable Court, and that your petitioner may
have such other and further relief in the premises as to this Court
may seem proper.

Dated at New Haven, Connecticut, this 20th day of December,
1949.

James BUTEAU,
By Puitp R. Pastore,
Counsel for Petitioner.

Witi1am T. HOLieRAN,
New Haven. Connecticut,

Of Counsel.

Supreme Court of the United States

OCTOBER TERM, 1949
NO.

JAMES BUTEAU
Petitioner

Us.

STATE OF CONNECTICUT
Respondent

BRIEF IN SUPPORT OF PETITION FOR WRIT OF
CERTIORARI

I
Opinion of the Court Below

The opinion of the Supreme Court of Errors of the State
of Connecticut, which disposed of this case, has not yet been
officially reported. It is printed in the record (R. 2242).

II

Jurisdiction

(1) The judgment of the Supreme Court of Errors of the
State of Connecticut to be reviewed is dated August 16, 1949
(R. 2252). A motion to reargue, filed within the time prescribed
by the rules of practice, was denied October 5, 1949 (R. 2252).

21

(2) The jurisdiction of this court is invoked under Title 28,
United States Code, Section 1257 (3), (formerly 28 U.S.C.A.,
Section 344 (b)). The specific claims as to the jurisdiction of
this court are set out in the foregoing petition under the head-
ing II on Jurisdiction and are incorporated here by reference.

(3) The judgment of the Supreme Court of Errors (R. 2252)
confirmed the judgment of the Superior Court finding the peti-
tioner guilty (R. 7).

Ill
Statement of the Case

This has already been stated in the petition under I, Summary
Statement of the Matter Involved, which is hereby adopted and
made a part of this brief. Any necessary elaboration of the facts
involved will be made in the course of the argument.

IV
Specification of Errors Relied Upon

It is respectfully submitted that the Supreme Court of Errors
erred :

1. In holding that the confessions of August 30, 1947 and
September 3, 1947 of the petitioner were voluntary and admissible
in evidence and that their procurement and use against the peti-
tioner resulting in his conviction was not a violation of the Due
Process Clause of the Fourteenth Amendment of the United States
Constitution.

2. In holding that there was no need to consider whether the
warrant of the coroner, dated August 23, 1947 was illegal or
any detention of the petitioner thereunder illegal.

3. In holding that the appearance of the petitioner before the
deputy coroner on August 30, 1947 was a compliance with the
provisions of Section 54-h, C.S. 1945 requiring the petitioner to

22

be “presented with reasonable promptness before proper author-
ity.”

4. In declining to consider, whether under Section 54-h, C.S.
1945, the petitioner should have been presented with reasonable
promptness before a court.

5. In holding that when the petitioner’s confession of August
30, 1947 was taken by the deputy coroner that the petitioner
was not under illegal detention resulting from the failure to com-
ply with provisions of Section 54-h C.S. 1945 regarding presen-
tation and resulting from the illegal detention under the coroner's
warrant of August 23, 1947.

6. In holding that the circumstances and the situation exist-
ing as to the petitioner prior to August 30, 1947 was only a
remote circumstance in relation to the confession of August 30,
1947 taken by the deputy coroner.

7. In holding that when the petitioner’s confession of Sep-
tember 3, 1947 was taken by Captain Carroll that the petitioner
was not under illegal detention resulting from the failure to com-
ply with provisions of Section 54-h C.S. 1945 regarding presen-
tation and from the failure to comply with the directions of the
deputy coroner’s warrant of August 30, 1947.

Vv
Summary of Argument
A

The conviction of murder and sentence of death of the petitioner
resulting from the procurement and use in evidence against him
of confessions obtained under circumstances rendering them in-
admissible deprived the petitioner of life and liberty without due
process of law in violation of the Fourteenth Amendment to the
United States Constitution.

e—_— Aes

23

B

The confession secured by the deputy coroner was not admis-
sible in evidence because it was the result of a procedure, involv-
ing the abuse of the power of the coroner, the state police and
prosecuting officials, acting in concert, which was subversive of the
accusatorial system in the enforcement of criminal law and vio-
lative of the rights guaranteed under the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.

VI
Argument
A
The Confessions Should Have Been Excluded

Reference is hereby made to the statement of undisputed facts
set forth in I, Summary Statement of the Petition, and is not
repeated here for the sake of brevity.

All the circumstances of the situation resulting in the procure-
ment and use in evidence against him of the confessions of the
petitioner denied him life and liberty without due process of law
in violation of the Fourteenth Amendment to the United States
Constitution.

Watts vs. State of Indiana, 338 U.S. 49, 69 S. Ct. 1347.
Turner vs. Commonwealth of Pennsylvania, 338 U.S.
62, 69 S. Ct. 1352.
Harris vs. State of South Carolina, 338 U.S. 68, 69
S. Ct. 1354.
Haley vs. State of Ohio, 332 U.S. 596, 68 S. Ct. 302.
Malinski vs. People of State of New York, 324 U.S.
401, 65 S. Ct. 781.
Ashcraft vs. State of Tennessee, 322 U.S. 143, 64 S. Ct.
921.
Chambers vs. State of Florida, 309 U.S. 227, 60 S. Ct.
472.

24

The procurement of the confessions was the result of the pres-
sure of the police and prosecuting authorities, aided by the coroner
who abused his powers of office, all acting in concert, until the
petitioner broke and yielded to the influences of the calculated
endeavor of these officials to obtain confessions from him to be
used to convict him.

Following his arrest at 2:30 a. mM. on Saturday, August 23,
he should have been presented for a hearing in the Meriden Muni-
cipal Court. This could have been done on the day of his arrest
or on any business day thereafter but was never done. This
would have been a presentation “before proper authority” under
Section 54-h, C.S. 1945. This is accepted procedure in order to
hold an accused until the Superior Court takes cognizance of the
charge against him.

State vs. Chin Lung, 106 Conn. 701, 720.

The petitioner could also have been presented, under Section
54-h C.S. 1945, in the Superior Court at New Haven, on the
day of his arrest or on any business day thereafter, upon an
information issued by the state’s attorney, for the purpose of hav-
ing the court order the petitioner held in custody until indictment
by a grand jury. Section 8764, G.S. 1949, State vs. Chin Lung,
supra, p. 719. Instead of being presented in court, the petitioner
was kept in the private secret control of the state police in the
Hartford state police barracks until 2:00 Pp. m. on the day of his
arrest during which time he was questioned by the state police
and a New Haven county detective who tried to get a statement
from him from 9:00 a. M. that morning, this being in addition
to the questioning between 3:00 a. M. and 5:00 a. M. earlier that
morning by state police and other officials in the police commis-
sioner’s office.

A presentation in either the Meriden Municipal Court or the
Superior Court on that morning would have resulted in the
petitioner being committed to the New Haven county jail where
he would have been confined pending indictment and trial. In
order to afford the state police and the state’s attorney and his

25

agents opportunity for the further questioning of the petitioner,
since he had in no way incriminated himself up to this time, a
warrant was obtained from the New Haven county coroner,
committing the petitioner, not to New Haven county jail, where
Berard, the petitioner's co-defendant was confined by him at the
same time, but to the Bethany state police barracks under a statute
authorizing a coroner to commit to “the county jail or other
proper place” a person suspected in connection with an untimely
death “in regard to which he (the coroner) is holding an inquest.”
This warrant was issued by the coroner at the request of the
state’s attorney and the petitioner was committed to the Bethany
state police barracks with the consent of the state police commis-
sioner.

The issuance of this warrant by the coroner was an abuse of
power because he was not conducting and did not conduct an
inquest in this case and because the issuance of his warrant was
not in connection with an inquest but, upon his own testimony,
for the purpose of aiding the police in their endeavor to secure
aconfession. The inquest had been started by the deputy coroner
who ultimately completed it.

Petitioner was confined to Bethany police barracks from August
23, 1947 to August 30, 1947 on the authority of the coroner’s
warrant and because of the illegality of this warrant and the
failure to present the petitioner before proper authority, under
Section 54-h during this period, his detention was illegal and an
important factor in the procurement of the confessions from him.

“To turn the detention of an accused into a process of
wrenching from him evidence which could not be extorted
in open court with all its safeguards, is so grave an abuse
of the power of arrest as to offend the procedural standards
of due process.” .

Watts vs. State of Indiana, 69 S. Ct. 1347, 1350.

“Detention without arraignment is a time-honored method
for keeping an accused under the exclusive control of the
police. They can then operate at their leisure. The accused

26

is wholly at their mercy. He is without the aid of counsel
or friends; and he is denied the protection of the magistrate.
We should unequivocally condemn the procedure and stand
ready to outlaw, as we did in Malinski vs. People of the State
of New York, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029,
and Haley vs. State of Ohio, 332 U.S. 596, 68 S. Ct. 302,
92 L. Ed. 224, any confession obtained during the period of
the unlawful detention. The procedure breeds coerced con-
fessions. It is the root of the evil. It is the procedure with-
out which the inquisition could not flourish in the country.”

Watts vs. State of Indiana, supra, p. 1351.

The denial of a prompt examining trial in violation of the
required state procedure “is a fact for consideration on an alle-
gation that a confession used at the trial was coerced. Cf. McNabb
vs. United States, 318 U.S. 332, 340; United States vs. Mitchell.
322 U.S. 65.”

Lyons vs. Oklahoma, 322 U.S. 596, 598.

This factor was also so considered in Watts vs. State of Indi-
ana, supra, in Turner vs. Commonweath of Pennsylvania, supra,
and Harris vs. State of South Carolina, supra.

The coroner is appointed by the judges of the Superior Court
upon the recommendation of the state’s attorney. Sec. 466 G.S.
1949. The deputy coroner is appointed by the coroner. Sec.
468 G.S. 1949.

On Sunday, August 24th, petitioner was confined in one of the
three cells in Bethany police barracks, the accommodations of
which cell consisted of a steel bunk, no mattress, no pillow and
one blanket, this being the same cell in which petitioner was
confined during his stay at the barracks. He was not questioned
on this Sunday.

On August 25th, the petitioner was taken by state police offi-
cers to Meriden, brought to the scene of the crime and then in
the company of police officers followed closely behind another
group consisting of the state police commissioner, state’s attorney,

27

assistant state’s attorney, the county detective and state police
officers whom Berard, being petitioner’s co-defendant, was guid-
ing over the route which they had taken the night of the crime.
Petitioner was questioned at the Bethany barracks by police
officers on this day both before and after the trip to Meriden for
almost four hours but did not incriminate himself in any way.

On August 26 and 27 petitioner was kept in his cell at Bethany
barracks incommunicado and the only person in the three-cell
block. No confession had yet been made by petitioner.

On August 27th, state police visited the petitioner’s home where
he lived with his mother, brother and sister, seeking information
about him and talked with the petitioner's sister who inquired of
the whereabouts of her brother and was falsely told they did not
know.

On the morning of August 23rd, state and Meriden police twice
visited the home of the petitioner to search it. They talked with
petitioner’s sister on both occasions but failed to disclose the peti-
tioner’s arrest. His family learned of the arrest in a noon radio
broadcast of August 23rd. Thereafter up to August 27th peti-
tioner’s sister failed to locate him despite her inquiries of the
Meriden police, the New Haven county jail, the deputy cononer
and state police and no member of the petitioner’s family knew
of his whereabouts until August 28th.

On August 28th, petitioner’s sister was brought to the
Bethany barracks by state police officers on orders of Captain
Carroll whose purpose in having her brought there was to urge
upon her to try to prevail upon her brother to give information
to Captain Carroll (R. 202). She told him she did not have
the influence over her brother that would make him say things
that Captain Carroll wanted him to say (R. 304-305). Petitioner
was questioned while his sister was present but made no incrim-
inating statements. The questioning continued for about one hour
after she left and during this interrogation petitioner admitted
for the first time that he had been in the store the night of the

crime (R. 535, par. 47). On this day the petitioner was ques-
tioned for a total of about five hours.

On August 29th Captain Carroll and a county detective arrived
at the Bethany barracks about 9:00 a. M. and questioned the
petitioner for about one hour and then brought him to the state’s
attorney’s office, New Haven, by previous arrangement with the
state’s attorney. Except for a short lunch period, petitioner was
held in the state’s attorney’s office from about 10:30 a. m. to 5:30
p. M. during which time he was questioned by the state’s attorney,
Captain Carroll, county detectives and was confronted with Ber-
ard, his co-defendant, who made accusations against him.

On August 29th, the state’s attorney and the deputy coroner
arranged for the petitioner to be examined by the deputy coroner
the next day when the confession of August 30th was taken. The
examination lasted over three and one-half hours, during which
a county detective connected with the state’s attorney’s office in
New Haven and a state police officer were present. At the con-
clusion of the hearing, the deputy coroner committed the petitioner
to the New Haven county jail but before he was brought there, two
county detectives, agents of the state’s attorney, brought the peti-
tioner to Meriden and met Captain Carroll by previous arrange-
ment and visited the various places connected with the crime and
transversed the route taken by the petitioner the night of the crime.

Any counsel of petitioner would have had the right to be
present at the hearing before the deputy coroner (Sec. 477 G.S.
1949). The regular public defender was disqualified from repre-
senting the petitioner because he was representing Berard the
co-defendant, whose interests conflicted with those of the peti-
tioner (R. 2037). While Captain Carroll and the assistant state’s
attorney were taking the petitioner from the Hartford police bar-
racks to the Bethany police barracks on August 23rd, they
learned of his intention to be represented by the public defender.
The state’s attorney made no effort until September 3rd, 1947
to have the Superior Court arrange for the appointment of a

— —a—

29

special public defender to represent the petitioner. Such appoint-
ment was not made until September 4, 1947.

On September 3rd, 1947 the petitioner who had appeared be-
fore the Superior Court in connection with the appointment of
counsel to represent him was not returned to the county jail at
noon when the hearing terminated but instead was kept in the
state’s attorney’s office until about 10 00 Pp. M., except for a time
when he was taken to dinner. Captain Carroll questioned the
petitioner between the hours of 3:00 p. m. and 6:00 Pp. Mm. and
between the hours of 8:00 p. m. and 10:00 Pp. M. took the con-
fession of September 3rd. This was done notwithstanding that
the prosecuting officials knew that the appointment of counsel
for the petitioner was imminent. While the petitioner was in
the state’s attorney’s office on this date being interrogated, he was
under illegal detention because he had not been presented before
proper authority under Section 54-h C.S. 1945 and because the
directions of the warrant committing him to the county jail were
being violated during all the time that he was in the state’s
attorney's office being questioned.

Petitioner submits that the procurement and use in evidence
of his confession of September 3 violated the Due Process Clause
of the Fourteenth Amendment of the United States Constitution
because it resulted from all the factors heretofore mentioned ren-
dering his first confession inadmissible and because of the ques-
tioning and trip to Meriden on August 30, after the taking of
his first confession, and because of the events and questioning in
the state’s attorney's office on September 3.

The petitioner’s appearance before the deputy coroner failed to
comply with Section 54-h C.S. 1945 permitting an arrest without
a warrant of “any person who such officer has reasonable grounds
to believe has committed or is committing a felony. Any person
so arrested shall be presented with reasonable promptness before
proper authority.” In a case not involving homicide, “proper
authority” can mean only a court because the coroner has no juris-
diction. To have it mean otherwise in a case involving homicide

30

would not afford the protection of a judicial hearing to an arrested
person involved in a homicide. The purpose of the statute js
similar to that underlying the federal rule laid down in McNabb
vs. United States, 318 U.S 332 at p. 343:

“Legislation such as this, requiring that the police must
with reasonable promptness show legal cause for detaining
arrested persons, constitutes an important safeguard—not
only in assuring protection for the innocent but also secur-
ing conviction of the guilty by methods that commend them-
selves to a progressive and selfconfident a
aims to avoid all the evil implications of secret interrogation
of persons accused of crimes.”

Section 239, G.S. 1930 referred to in the foot note, page 342
of the McNabb case as being legislation having a similar purpose
to the federal rule is the predecessor of Section 54-h, C.S. 1945.

Such presentation must be’ before a “proper judicial officer.”
6 C.J.S. Sec. 17 (b) p. 618.

The hearing of the coroner is not a judicial examination.
State vs. Coffee, 56 Conn. 399, 414. The function of a coroner
is to investigate the cause and manner of death that might be
caused by a criminal act, omission or carelessness of another.
Sec. 473, G.S. 1949; See also Secs. 475, 476, 478, 479, 480, 485,
486, G.S. 1949. He has power to arrest and commit any person
he has “good reason to suspect of having criminally caused the
death in regard to which he is holding an inquest . . .” but
may not keep any person under arrest longer than twenty-four
hours after his finding. Sec. 485, G.S. 1949.

The examination by a coroner of a suspected person does not
involve a presentation on any charges, no pleading is required or
permitted as in any preliminary examination in court under Con-
necticut criminal practice and the suspected person is not con-
fronted by nor may he cross examine, any witnesses being exam-
ined by the coroner nor may any such suspected person produce
any witnesses in his behalf. The coroner has no power to bind

——7_ —E
31

over a suspected person to any trial court. He adjudicates no
rights of the parties and lacks the fundamental powers character-
istic of a committing magistrate.

The judicial power of the state is vested in such courts as are
established by the legislature. Conn. Constitution, Art. V, Sec. 1.

The state police commissioner gave the petitioner a warning
against self incrimination on August 23rd but no incriminating
statement was made on that date. Petitioner made his first in-
criminating statement on the night of August 28 to Captain
Carroll when he admitted he was in the store the night of the
crime. This was the first fruit of the circumstances of his con-
finement, treatment and questioning and there was no warning
against self-incrimination on the evening of August 28. The
warning of the deputy coroner on August 30th and of Captain
Carroll on September 3, in connection with the confessions of
those dates, were but recitals to formalize constitutional require-
ment. Haley vs. Ohio, 332 U. S. 596, 601. The pressure of
police endeavors had by this time rendered these warnings but
empty phrases.

The present case includes factors and circumstances some or
all of which were present in other cases in which this court held
confessions to be not admissible because violative of the Due
Process Clause of the Fourteenth Amendment of the United States
Constitution.

In the present case, the first confession followed twenty-eight
hours questioning on five days within a period of seven days and
the second confession followed a total of 33 hours questioning on
six days over an eleven-day period. In the Ashcraft case, supra,
the confession followed 36 hours of questioning over one and one-
half days; in the Watts case, supra, after not less than 22 hours
of questioning over six days; in the Turner case, supra, after 21
hours questioning over four days; in the Harris case, supra, after
20 hours questioning over four days; in the Malinski case, supra,
after 10 hours questioning on one day; in the Haley case, supra,

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after 5 hours questioning on one day and in the Chambers case,
supra, after many hours over a period of eight days.

In the present case, petitioner was not presented before proper
authority before the procurement of either confession although he
could have been on any of seven days before the first confession
and any of ten days before the second confession. In this regard,
it compares with the Watts, Turner and Harris cases where there
was no presentation before confessions. In the Ashcraft and
Haley cases wherein this court ruled the confessions inadmissible,
there was no opportunity to present before the confessions were
obtained.

Petitioner was held incommunicado, without counsel or friends,
except the sister’s visit in the presence of police officers on August
28, for seven days before the first confession and without benefit
of counsel until after the second confession. These elements are
present in most of the federal cases referred to above.

In the instant case, the illegal detention of the petitioner, based
on the violation of Sec. 54-h, on the illegal warrant of the coroner
and the wilful disregard on September 3 of the directions of the
warrant of the deputy coroner and on the collusive effort of the
police, prosecuting officials, and the coroner, was a material fac-
tor in bringing about the confession. In the Watts, Turner and
Harris cases, supra, this element was present and condemned as
a means of wringing confessions.

Assuming for argument, that the deputy coroner was “proper
authority” under Sec. 54-h, the appearance of the petitioner on
August 30th was not with “reasonable promptness” under this
section because the delay was the result of deliberate concerted
action on the part of the coroner, police and prosecuting authori-
ties to hold the petitioner until after he broke and confessed and
such designed evasion of the requirements of prompt presentation
of Sec. 54-h rendered the confessions inadmissible because a vio-
lation of the federal Due Process Clause.

33

If either confession used should not have been admitted in evi-
dence, it is reversible error even though petitioner may have tes-
tified in his own behalf or the evidence apart from the confession
might have been sufficient to sustain the verdict.

Malinski vs. New York, 324 U.S. 401, 404, 405.

Petitioner respectfully submits that his confessions were ob-
tained under circumstances which rendered them coercive and
made their use at his trial a denial of due process.

B

The Procedure Used to Obtain the Confessions Is
Unconstitutional

An examination of the opinion of the Connecticut Supreme
Court of Errors in this case shows that the statement given to
the deputy coroner, August 30, 1947, which later was used as a
confession against the petitioner, was ruled admissible because
it was given in connection with “an examination made by a cor-
oner in carrying out his statutory duty of investigating an
untimely death,” and that the “situation previous to his (peti-
tioner’s) appearance before the deputy coroner can only be re-
garded as a remote circumstance” (R. 2247).

This ruling excluded from their consideration the illegal de-
tention, questioning, treatment and circumstances affecting the
petitioner however coercive the situation before August 30, 1949
was or might have been, which should have been considered as
relevant and material factors in determining whether there was
coercion resulting in the petitioner's first confession and carried
over to the second confession.

The ruling renders admissible in evidence a statement taken
by a deputy coroner in the course of his statutory duties even
though the confession is the fruit of coercion on the part of the
coroner, police and prosecuting authorities prior to the deputy
coroner’s inquest which would have rendered such confession
inadmissible had it been procured by police officers.

34

This sanctions a procedure inquisitorial in nature, subversive
of the accusatorial system of administration of criminal justice,
which violates the protection guaranteed by the Due Process
Clause of the Fourteenth Amendment of the United States Con-

stitution.
Watts vs. State of Indiana, 69 S. Ct. 1347, 1350.

Whether such procedure meets the constitutional requirements
of the Due Process Clause is a matter of importance in the general
administration of criminal law.

Conclusion

It is respectfully submitted that this case should be reviewed
not only because the decision of the Connecticut Supreme Court
of Errors denies the petitioner life and liberty guaranteed to him
under the Due Process Clause of the Fourteenth Amendment
of the United States Constitution in a criminal prosecution for
homicide but also because the decision involves a serious aspect
in the administration of state criminal justice in a capital case
involving a death penalty in that the police, prosecuting official:
and coroner, acting in concert, combined to utilize illegally and
abusively the power of a corcaer given under a state statute to
arrest and commit a suspected person to a “proper place” as
an instrument to place the suspected person in the private secret
custody of the police for the avowed purpose of interrogation and
the procurement of incriminating disclosures.

The practical effect of the decision is to sanction a procedure
whereby the deputy coroner’s inquest is utilized by the police,
prosecuting authorities and the coroner, as a cloak to escape the
consequences of their inquisitorial conduct which would have
barred from evidence a confession if taken by the police following
such conduct.

Petitioner respectfully submits that for all the foregoing rea-
sons, the petition for a writ of certiorari should be granted to
review the violation of fundamental standards of procedure guar-

35

anteed by the Due Process Clause of the Fourteenth Amendment
of the United States Constitution.

Respectfully submitted,

Puitip R. Pastore,

205 Church Street,

New Haven, Connecticut,
Counsel for Petitioner.

Wiru1aM T. HOLvLeRAN,
185 Church Street,

New Haven, Connecticut,
Of Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2523%3A1. Public record. Not legal advice.