1. The procedure adopted by Florida, whereby a person under
sentence of imprisonment or death, who claims that his conviction
resulted from some fundamental unfairness amounting to a denial of
due process of law, may apply to the Supreme Court of the State,
even though that court has affirmed his conviction, for permission
to apply to the trial court for a writ of error
coram
nobis, and who thus is afforded a full opportunity to have a
jury pass upon his claim, provided that he first make an adequate
showing of its substantiality, is a procedure which meets the
requirements of the due process clause of the Fourteenth Amendment.
P.
315 U. S.
415.
According to decisions of the Supreme Court of Florida defining
this procedure, a naked allegation that a constitutional right has
been invaded is not sufficient; a petitioner must make a full
disclosure of the specific facts relied on, not merely his
conclusions as to the nature and effect of such facts; the proof
must enable the appellate court to
"ascertain whether, under settled principles pertaining to such
writ, the facts alleged would afford at least
prima facie
just ground for an application to the lower court for a writ of
error
coram nobis;"
and, in the exercise of its discretion in matters of this sort,
the court should look to the
Page 315 U. S. 412
reasonableness of the allegations of the petition and to the
probability of their truth.
2. A person who, with others, had been convicted of murder in
Florida, and whose sentence of death had been affirmed by the
Supreme Court of the State, petitioned that court for leave to
apply to the trial court for a writ of error
coram nobis,
claiming that his conviction had been secured by means of false
testimony delivered at the trial by an accomplice who was coerced
thereto by state officials and who, four year later, on the eve of
his own electrocution for participation in the same crime, had made
affidavits exonerating the petitioner. The Supreme Court of
Florida, on the basis of the petition and accompanying affidavits
and the record of prior cases arising out of the same clime,
concluded that the petitioner had failed to make the showing of
substantiality which according to the local procedure was necessary
in order to obtain the extraordinary relief furnished by the writ
of error
coram nobis, and this Court, upon an independent
examination of the affidavits on which the claim was based, has no
doubt that the finding of insubstantiality was justified. P.
315 U. S.
421.
146 Fla 593, 1 So. 2d 628, affirmed.
Certiorari, 313 U.S. 557, to review a judgment denying a
petition for leave to apply to a trial court for a writ of error
coram nobis in a case of murder.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
After the Supreme Court of Florida had affirmed his conviction
for murder, the petitioner applied to that court for leave to ask
the trial court to review the judgment of conviction. The basis of
his application was the claim
Page 315 U. S. 413
that the testimony of two witnesses implicating him was
perjured, and that they had testified falsely against him because
they were "coerced, intimidated, beaten, threatened with violence
and otherwise abused and mistreated" by the police and were
"promised immunity from the electric chair" by the district
attorney. After twice considering the matter, the Supreme Court of
Florida denied the application. 146 Fla. 593, 1 So. 2d 628. We
brought the case here, 313 U.S. 557, in view of our solicitude,
especially where life is at stake, for those liberties which are
guaranteed by the Due Process Clause of the Fourteenth
Amendment.
The guides for decision are clear. If a state, whether by the
active conduct or the connivance of the prosecution, obtains a
conviction through the use of perjured testimony, it violates
civilized standards for the trial of guilt or innocence, and
thereby deprives an accused of liberty without due process of law.
Mooney v. Holohan, 294 U. S. 103.
Equally offensive to the Constitutional guarantees of liberty are
confessions wrung from an accused by overpowering his will, whether
through physical violence or the more subtle forms of coercion
commonly known as "the third degree."
Brown v.
Mississippi, 297 U. S. 278;
Chambers v. Florida, 309 U. S. 227;
Lisenba v. California, 314 U. S. 219. In
this collateral attack upon the judgment of conviction, the
petitioner bases his claim on the recantation of one of the
witnesses against him. He cannot, of course, contend that mere
recantation of testimony is, in itself, ground for invoking the Due
Process Clause against a conviction. However, if Florida, through
her responsible officials, knowingly used false testimony which was
extorted from a witness "by violence and torture," one convicted
may claim the protection of the Due Process Clause against a
conviction based upon such testimony.
Page 315 U. S. 414
And so we come to the circumstances of this case.
On November 25, 1936, as a result of an attempted robbery, John
H. Surrency and his wife Mayme Elizabeth were murdered. On December
16, 1936, Hysler was indicted for the murder of John Surrency; he
was tried on January 21, 1937, was convicted on February 12, 1937,
with recommendation of mercy, and was thereafter sentenced to
imprisonment for life. On February 3, 1938, his sentence was
affirmed by the Florida Supreme Court. 132 Fla. 200, 181 So. 350.
The record in the case was more than 3,000 pages. On January 15,
1937, Hysler, together with two others, James Baker and Alvin
Tyler, was indicted for the murder of Mrs. Surrency. A severance
having been granted as to Tyler and Baker, Hysler was placed on
trial on March 15, 1937, and on April 5 was found guilty without
recommendation of mercy. On April 23, 1937, he was sentenced to
death. On April 24, he sued out a writ of error to the state
Supreme Court, which, on February 3, 1938, sustained the sentence,
and on June 3 denied a rehearing. The record on this second trial
was some 2,500 pages. 132 Fla. 209, 181 So. 354.
Surrency kept a restaurant near Jacksonville, and on the fatal
day was returning from one of his regular and well known trips to
that city to get checks cashed. Hysler had known Baker in
connection with Hysler's illicit whiskey business. Baker and Tyler
were friends. The principal evidence in both trials against Hysler
was their testimony. They testified with circumstantiality that
Hysler induced them to hold up Surrency, furnished them a car, a
pistol, and some whiskey, gave them detailed instructions for
carrying out the plan, and by prearrangement was in the vicinity of
the place of its execution. While their testimony doubtless was the
foundation of Hysler's convictions, the testimony both of numerous
witnesses and Hysler himself sheds much confirming light
Page 315 U. S. 415
on the story told by Baker and Tyler. A careful concurring
opinion affirming the conviction now challenged concluded thus:
"From the evidence, it is difficult to see or understand how the
jury in the court below could have rendered a verdict other than
guilty. We have thoroughly considered each assignment and failed to
find error in the trial of the cause in the lower court."
132 Fla. 209, 235, 181 So. 354, 364.
Accordingly, the date for the execution was set by the Governor
of Florida for the week of February 20, 1939. In the meantime,
however, an application for a writ of habeas corpus by Hysler was
made to the Supreme Court of Florida, partly on the ground of
insanity. This was denied by that Court on February 20, 1939. 136
Fla. 563, 187 So. 261. Tyler broke jail and has apparently remained
a fugitive from justice. Baker was tried after Hysler was convicted
of murder in the first degree, and sentenced to death. His
conviction was affirmed by the Florida Supreme Court on March 14,
1939, and a rehearing denied on April 11, 1939.
Baker v.
State, 137 Fla. 27, 188 So. 634.
We have now reached the final chapter of this unedifying story
in the administration of criminal justice. On April 10, 1941, more
than four years after Hysler's conviction for the murder of Mrs.
Surrency, he petitioned the Supreme Court of Florida for permission
to apply to the Circuit Court of Duval County, Florida (the court
before which he was originally tried), for writ of error
coram
nobis. This common law writ, in its local adaptation, is
Florida's response to the requirements of
Mooney v.
Holohan, 294 U. S. 103, for
the judicial correction of a wrong committed in the administration
of criminal justice and resulting in the deprivation of life or
liberty without due process.
See Lamb v. Florida, 91 Fla.
396, 107 So. 535;
Skipper v. Schumacher, 124 Fla. 384, 169
So. 58;
Jones v. Florida, 130 Fla. 645, 178 So.
Page 315 U. S. 416
404. In brief, a person in Florida who claims that his
incarceration is due to "failure to observe that fundamental
fairness essential to the very concept of justice,"
Lisenba v.
California, supra, at p.
314 U. S. 236,
even after his sentence has been duly affirmed by the highest court
of the State, has full opportunity to have a jury pass on such a
claim provided he first makes an adequate showing of the
substantiality of his claim to the satisfaction of the Supreme
Court of Florida. The decisions of that Court show that a naked
allegation that a constitutional right has been invaded is not
sufficient. A petitioner must "make a full disclosure of the
specific facts relied on," and not merely his conclusions "as to
the nature and effect of such facts." The proof must enable the
appellate court to
"ascertain whether, under settled principles pertaining to such
writ, the facts alleged would afford at least
prima facie
just ground for an application to the lower court for a writ of
error
coram nobis."
Washington v. Florida, 92 Fla. 740, 749, 110 So. 259,
262;
see Skipper v. Schumacher, 124 Fla. 384, 405-408, 169
So. 58;
Skipper v. Florida, 127 Fla. 553, 554, 555, 173
So. 692. The latest formulation by the Florida Supreme Court of its
function in considering an application for leave to apply to the
trial court for a writ of error
coram nobis is found in
McCall v. Florida, 136 Fla. 349, 350, 186 So. 803:
"In the exercise of its discretion in matters of this sort, the
court should look to the reasonableness of the allegations of the
petition and to the existence of the probability of the truth
thereof. This duty we have met, and we are convinced that to grant
the petition would be no less than a trifling with justice."
Such a state procedure, of course, meets the requirements of the
Due Process Clause. Vindication of Constitutional rights under the
Due Process Clause does not demand uniformity of procedure by the
forty-eight States. Each State is free to devise its own way of
securing
Page 315 U. S. 417
essential justice in these situations. The Due Process Clause
did not stereotype the means for ascertaining the truth of a claim
that that which duly appears as the administration of intrinsic
justice was such merely in form, that in fact it was a perversion
of justice by the law officers of the state. Each State may decide
for itself whether, after guilt has been determined by the ordinary
processes of trial and affirmed on appeal, a later challenge to its
essential justice must come in the first instance, or even in the
last instance, before a bench of judges, rather than before a
jury.
Florida then had ample machinery for correcting the
Constitutional wrong of which Hysler complained. But it remains to
consider whether, in refusing him relief, the Supreme Court of
Florida denied a proper appeal to its corrective process for
protecting a right guaranteed by the Fourteenth Amendment.
Hysler's claim before the Supreme Court of Florida was that
Baker repudiated his testimony insofar as it implicated Hysler, and
that he now named another man as the instigator of the crime.
Considering the fact that this repudiation came four years after
leaden-footed justice had reached the end of the familiar trail of
dilatory procedure, and that Baker now pointed to an instigator who
was dead, the Supreme Court of Florida had every right and the
plain duty to scrutinize this repudiation with a critical eye, in
the light of its familiarity with the facts of this crime as they
had been adduced in three trials, the voluminous records of which
had been before that Court. [
Footnote 1]
The Florida Supreme Court had before it four affidavits by
Baker. The affidavits must be considered here
Page 315 U. S. 418
as they were before that Court -- in their entirety. One was
made on April 7, 1941; the second on April 8 between six and seven
in the evening; another between eight-thirty and nine of the same
night; the fourth, the next day. The most striking feature of this
series of retractions is that, in his first and spontaneous new
account of the happenings that led to the murders on November 25,
1936, Baker does not attribute to coercion or inducements made by
state authorities his testimony at the trials that Hysler was the
instigator of the crimes. On the contrary, according to Baker's new
story, after the killing of the Surrencys, Tyler and he
"agreed between them while they were in Cracker Swamp in the
Marietta section of Duval County, that they would lay the blame of
the planning of the robbery of the Surrencys upon Clyde Hysler,
because they had had considerable liquor dealings with Clyde Hysler
and knew him well, and for the reason that the Hyslers bore a bad
reputation in Duval County, and for the further reason that Clyde
Hysler's father had plenty of money and they thought that, by
laying the planning of the robbery of the Surrencys on Clyde
Hysler, that his father and his other relatives would put up
sufficient money to get Clyde Hysler out of the trouble and that,
by laying it on to Clyde Hysler, that he, James Baker, and Alvin
Tyler would escape the death penalty. . . ."
There is no suggestion whatever in this explanation of what is
now claimed to have been a false accusation that it was induced
from without. Baker gives five reasons for having fixed the blame
on Hysler -- an explanation to which he had adhered for more than
four years -- but all these reasons make Baker and Tyler the
spontaneous concocters of the alleged false charge. It was not
until the next day that Baker, under leading questions, suggested
that his account of the crime, contemporaneous with it,
Page 315 U. S. 419
was induced by the hope of getting "life instead of the chair."
[
Footnote 2] Even in this
second affidavit there is no hint that the prosecutor had any
knowledge of the falsity of his implication of Hysler. [
Footnote 3] Only after a third session
did Baker, in an ambiguous reply to another leading question,
convey a suggestion of the prosecutor's knowledge of the use of
force preceding Baker's original testimony. This
Page 315 U. S. 420
is the only testimony that bears on the complicity of the
prosecutor in the alleged coercion of Baker's testimony:
"Q. Baker do you know whether or not Mr. Harrell [the State's
Attorney] knew if you was beat up to make you testify?"
"A. Yes, sir, he knows I couldn't set down, none of the
sheriff's force knew it at the time, they knew it later when I made
it in front all of the officers."
"Q. When you made that statement, you couldn't set down?"
"A. Yes, sir, and I can't set good, and I wish you and those men
could see that now."
"Q. No, we want care to see-that's all you want to say."
"A. (Baker nodding his head indicating yes.)"
In his final affidavit on April 9, Baker returns to the alleged
promise of the State's Attorney that he would not "burn" him. But
there is this time no suggestion that the prosecutor induced or
knew of any false testimony by Baker. We have seen that, according
to Baker's first statement on April 7, his attribution of Hysler's
responsibility was spontaneous and uncoerced. The circumstances of
the case reinforce this, and cast a proper skepticism upon Baker's
subsequent claims of coercion. According to the affidavits of the
two lawyers who represented Hysler at his trials, they examined
Baker and Tyler "at great length" in the presence of counsel for
the two accomplices and
"said witnesses were particularly questioned as to who was
involved in said case, and said witnesses denied that anyone was
involved in said case other than the defendants named in the
indictment; that said witnesses further denied that any statements
previously made by them to law enforcement officers were made under
duress or with any hope or expectation or reward."
And the present Chief Justice of Florida, in his separate
opinion on Baker's appeal, characterized Baker's confession as
Page 315 U. S. 421
"entirely free and voluntary." 137 Fla. 27, 29, 188 So. 634,
635.
In addition to these four affidavits by Baker, there were four
subsidiary affidavits by others. Their want of significance is
sufficiently attested by the fact that, on the motion for rehearing
of this cause before the Florida Supreme Court, reliance was placed
exclusively upon the Baker affidavits, and no reference whatever
was made to these subsidiary affidavits. Nor was reliance upon them
made here.
The essence of Hysler's claim before the Supreme Court of
Florida was that his conviction was secured by unconstitutional
means, that Baker was coerced to testify falsely by responsible
state officials. The Court had to judge the substantiality of this
claim on the basis of all that was before it, namely, the petition
with its accompanying affidavits and the records of prior cases
arising out of the same crime. The Court concluded that Hysler's
proof did not make out a
prima facie case for asking the
trial court to reconsider its judgment of conviction. However
ineptly the Florida Supreme Court may have formulated the grounds
for denying the application, its action leaves no room for doubt
that the Court deemed the petitioner's claim without substantial
foundation. We construe its finding that the "petition" did not
show the responsibility of the state officials for the alleged
falsity of Baker's original testimony to mean that the petitioner
had failed to make the showing of substantiality which, according
to the local procedure of Florida, was necessary in order to obtain
the extraordinary relief furnished by the writ of error
coram
nobis. [
Footnote 4] And
our
Page 315 U. S. 422
independent examination of the affidavits upon which his claim
was based leaves no doubt that the finding of insubstantiality was
justified. It certainly precludes a holding that such a finding was
not justified.
The state's security in the just administration of its criminal
law must largely rest upon the competence of its trial courts. But
that does not bar the state Supreme Court from exercising the
vigilance of a hard-headed consideration of appeals to it for
upsetting a conviction. That, in the course of four years,
witnesses die or disappear, that memories fade, that a sense of
responsibility may become attenuated, that repudiations and new
incriminations like Baker's on the eve of execution are not
unfamiliar as a means of relieving others or as an irrational hope
for self -- these, of course, are not valid considerations for
relaxing the protection of Constitutional rights. But they are
relevant in exercising a hardy judgment in order to determine
whether such a belated disclosure springs from the impulse for
truth-telling or is the product of self-delusion or artifice
prompted by the instinct of self-preservation.
Our ultimate inquiry is whether the Florida has denied to the
petitioner the protection of the Due Process Clause. The record
does not permit the conclusion that Florida has deprived him of his
Constitutional rights.
Petitioner also claims that Florida has denied him the "equal
protection" of its law. This contention is plainly without
substance. If Hysler had been singled out for invidious treatment
by the Florida Supreme Court, he could properly complain here.
Compare 118 U. S.
Page 315 U. S. 423
Hopkins, 118 U. S. 356;
McFarland v. American Sugar Co., 241 U. S.
79. But it is not a fact that the Florida Supreme Court
has granted such applications in other cases but not in Hysler's.
See, e.g., Skipper v. Florida, 127 Fla. 553, 173 So. 692;
McCall v. Florida, 136 Fla. 349, 186 So. 803.
Affirmed.
[
Footnote 1]
In denying Hysler's application, the Supreme Court of Florida
specifically stated the that it was taking judicial cognizance of
its own records. 146 Fla. 593, 594, 595, 1 So. 2d 628.
[
Footnote 2]
"Q. Then it was a definite promise from Mr. Harrell, the State's
Attorney to keep you from burning?"
"A. He said that he would see that I would get life, but that he
would see that I didn't stay at the chain gang but three
years."
"Q. You say he played off sick to keep from prosecuting
you?"
"A. Yes, sir, Mr. Simpson his assistant and Mr. Hallows
prosecuting, the Judge had ordered him to handle the Hysler case
straight through, cause Mr. Hollows was not familiar with the
case."
"Q. Do you know whether or nor Mr. Harrell had gone out of
office and Mr. Hallows had taken office?"
"A. Yes, sir, I think he had and that was why the Judge wanted
him to carry this thing on through, but I don't be sure."
"Q. Is there anything else you want to say along that line about
those threats or beatings?"
"A. No, sir, that is all I can think of right now."
[
Footnote 3]
"Q. Now what threats or promises did they make you to testify
and implicate Clyde Hysler?"
"A. Well, Mr. Griffen and them didn't, they didn't make no
promises, Mr. Hulbert did talk to me, that he would get me life
imprisonment -- life instead of the chair."
"Q. Mr. Hulbert talked to you and made promises that you would
get life instead of the chair?"
"A. Yes, sir."
"Q. What police --"
"A. That's what it was, police officers and John Harrell."
"Q. John W. Harrell, the State's Attorney at that time?"
"A. Yes, sir."
"Q. Did Mr. Harrell tell you that he would help you get a life
sentence if you would testify against Clyde Hysler?"
"A. He said he wouldn't burn me, that he, Mr. Acosta and Mr.
Carson would get me out in three years' time."
[
Footnote 4]
The opinion of the Florida Supreme Court on petitioner's motion
for rehearing states,
inter alia, that:
"The allegations of the petition do not show that the
prosecuting attorney had any guilty knowledge of the alleged
maltreatment of the witness [Baker], or that the alleged falsity of
the testimony of the witness Baker was known to the prosecuting
officer. . . . The petition does not show that any alleged
maltreatment of witness was inflicted by any officer of the trial
court, or that same was known to any officer of the trial
court."
146 Fla. 593, 594, 1 So. 2d 628.
MR. JUSTICE BLACK, dissenting, with whom MR. JUSTICE DOUGLAS and
MR. JUSTICE MURPHY concur.
The application denied by the Supreme Court of Florida alleges
that Tyler and Baker, the accomplices in the murder for which
Hysler was convicted, confessed and gave false testimony against
Hysler because they were "coerced, intimidated, beaten, threatened
with violence and otherwise abused and mistreated," and because
they were promised life sentences instead of the electric chair.
Sworn statements of Baker made in a state prison in the presence of
prison officials were presented in support of these allegations, as
were corroborative affidavits of four others. Tyler, a fugitive
from justice, is unavailable to the petitioner as an additional
source of verification.
The Florida Supreme Court has stated that the petition does not
assert that "the alleged falsity of the testimony of the witness
Baker was known to the prosecuting officer." In
Mooney v.
Holohan, 294 U. S. 103,
this Court held that the use by a state of testimony known by its
"prosecuting authorities" to be false is a denial of due process of
law. I do not, however, regard this as a proper occasion to
determine whether the rule of
Mooney v. Holohan applies
only where the guilty knowledge is that of "the prosecuting
officer" and not any other responsible official. For even if every
representative of the state believed that the confessions of Tyler
and Baker were true in every detail, other allegations of the
petitioner make out a denial of due
Page 315 U. S. 424
process on independent grounds, upon which the scope of
Mooney v. Holohan has no bearing. In those cases, in which
this Court held that a conviction based on confessions wrung from
the accused or his accomplices by third-degree methods was
offensive to the guarantees of the due process clause, there are no
indications that the knowledge of any of the state officials
involved as to the truth or falsity of the confessions was deemed
relevant. [
Footnote 2/1] And if the
allegations of Hysler's petition are true, that is, if Tyler and
Baker were held incommunicado and tortured into supplying the
controlling testimony at Hysler's trial, his conviction is tainted
with a measure of brutality which I had supposed was sufficient,
without more, to establish a violation of Constitutional rights. I
am therefore unable to agree with the statement of the Florida
Supreme Court that,
"if all petitioner alleges in his petition had been true and had
been fully made known to the trial court and to the jury which
tried the defendant petitioner, it would not have precluded the
entry of the judgment upon a verdict of guilty of Murder. . .
."
Nor do I go along with the intimations of approval of that
statement to be found in the opinion which this Court has just
handed down.
The opinion of this Court does not rest solely on the ground
that Hysler's allegations, if true, fail to establish a denial of
due process. The Court finds in the opinion of the Florida Supreme
Court a determination that "Hysler's proof" was insufficient
"to make the showing of substantiality which, according to the
local procedure of Florida, was necessary in order to obtain the
extraordinary relief furnished by the writ of error
coram
nobis."
But "Hysler's proof" is nowhere mentioned in the opinion below,
and of the eight reasons there given for denying Hysler's petition,
the only one which touches in any
Page 315 U. S. 425
way upon the credibility of his allegations accepts them as
true.
To be convinced that the Florida Supreme Court did not pass on
the credibility of Hysler's allegations, but merely decided that
these allegations, however fully proved, would not make out a
violation of due process, I should need to look no further than the
opinion below. But more support for this interpretation of
Florida's denial of Hysler's petition is amply available in other
decisions of its highest court. In
Washington v. State, 92
Fla. 740, 749, 110 So. 259, 262, for example, the Florida Supreme
Court said the issue to be determined when such a petition is
before it is "whether . . . the facts alleged" -- not the proof --
"would afford at least
prima facie, just ground for an
application to the lower court for a writ of error
coram
nobis." That is not to say that the Florida Supreme Court will
not deny a petition when the facts alleged are so patently
incredible that further pursuit of the remedy would be a frivolous
imposition upon the trial court. Thus, in
McCall v. State,
136 Fla. 349, 350, 186 So. 803, where the allegations of the
petitioner denied his guilt for the first time, were without any
supporting affidavits, and were "positively and directly
contradicted" by himself and other witnesses at the trial, the
court denied the petition, stating that to grant it "would be no
less than a trifling with justice." Even under such circumstances,
however, the court explicitly pointed out that it had looked into
"the probability of the truth" of the allegations. And where there
is a color of plausibility in the allegations, the court has been
meticulous to give the petitioner ample opportunity to prove them.
In
Chambers v. State, for example, Mr. Justice Buford, who
spoke for the court in its opinion on Hysler's petition said:
"The petition for leave to file writ of error
coram
nobis presents allegations which, if true, would constitute
ground for issuing the writ. It is not
Page 315 U. S. 426
the province of this court to determine whether or not such
allegations are true. The determination of such question may be had
in the circuit court under issues duly made for that purpose."
111 Fla. 707, 713, 151 So. 499, 152 So. 437.
It must also be borne in mind that, if the proof accompanying a
petition for leave to apply for a writ of error
coram
nobis had to be so full as to establish conclusively the truth
of the allegations, petitioners who required the amplifying or
corroborative evidence of inaccessible or unwilling witnesses would
be effectively barred from access to this remedy, for they would
never have the opportunity to utilize the compulsory process which
a trial of the facts would afford. In the light of Florida's
liberal treatment of other petitioners in other cases, [
Footnote 2/2] and the unambiguous
explanation its courts have given where petitions have been denied,
I cannot impute to the Florida Supreme Court, on the basis of its
opinion in this case, a decision that Hysler's "proof" was
inadequate to support his allegations.
Although it is, at best, not clear that the court below has
canvassed the issue of credibility, this Court has not hesitated to
do so. In the opinion just announced, there has even been a recital
of considerations relevant in determining whether the disclosure
made by Baker "springs from the impulse for truth-telling or is the
product of self-delusion or artifice prompted by the instinct of
self-preservation." And the Court has apparently concluded that
Hysler's allegations are so patently incredible that due process
does not require a hearing. Where, as here, allegations that
controlling testimony was extorted by
Page 315 U. S. 427
third-degree methods are supported by sworn statements, and not
denied by anyone, a summary rejection of them without hearing by
the court of first instance would raise serious questions of
compliance with the Constitutional requirement of a fair trial.
[
Footnote 2/3] Under such
circumstances, I should suppose this Court would be particularly
reluctant to make the original and only disposition itself of what
it treats as a major issue of the case: the credibility of Hysler's
allegations.
The Supreme Court of Florida declined even to consider the
credibility of these allegations, proceeding on the assumption --
erroneous if tested by principles which I believe decisions of this
Court have affirmed [
Footnote 2/4]
-- that, if true, they would be insufficient to impugn the
conviction. Having corrected this erroneous assumption, this Court,
in my opinion, should allow the Florida courts to make their own
disposition of the issue they have not considered. We granted
certiorari because of a "solicitude, especially where life is at
stake, for those liberties which are guaranteed by the Due Process
Clause of the Fourteenth Amendment." That solicitude would seem to
call for remanding this case for further consideration below. I
cannot see why it should impel this Court to sustain the conviction
upon a gratuitous disposition of an issue which the state court
might resolve otherwise.
In cases raising no issue of life or death, this Court has not
hesitated to remand to the lower court for further proceedings
where ambiguities in the opinion below beclouded the ground of
decision. [
Footnote 2/5] The vital
issues here
Page 315 U. S. 428
and the manner of treatment below compel me to believe that a
like procedure should be followed now. Because the basis for my
belief can best be shown by reference to the record, I am adding
excerpts from the petition and accompanying exhibits as well as the
whole of the opinion of the Florida Supreme Court in an
appendix.
[
Footnote 2/1]
E.g., Brown v. Mississippi, 297 U.
S. 278;
Chambers v. Florida, 309 U.
S. 227.
[
Footnote 2/2]
See Nickels v. State, 86 Fla. 208, 98 So. 497, 502, 99
So. 121;
Lamb v. State, 91 Fla. 396, 107 So. 535;
Washington v. State, 92 Fla. 740, 110 So. 259;
Chambers v. State, 111 Fla. 707, 151 So. 499; 113 Fla.
786, 152 So. 437; 117 Fla. 642, 158 So. 153.
[
Footnote 2/3]
Cf. Mooney v. Holohan, supra; Smith v. O'Grady,
312 U. S. 329.
[
Footnote 2/4]
See cases cited in
315
U.S. 411fn2/1|>footnote 1,
supra, and
Canty v.
Alabama, 309 U.S. 629;
White v. Texas, 310 U.
S. 530;
Lomax v. Texas, 313 U.S. 544;
Vernon v. Alabama, 313 U.S. 547.
[
Footnote 2/5]
Villa v. Van Schaick, 299 U. S. 152;
State Tax Comm'n of Utah v. Van Cott, 306 U.
S. 511;
Minnesota v. National Tea Co.,
309 U. S. 551.
|
315
U.S. 411app|
APPENDIX.
I. Excerpts from Hysler's petition for leave to apply for a writ
of error
coram nobis:
". . . Alvin Tyler and James Baker who were codefendants of the
petitioner, Clyde Hysler, and upon whose testimony the Florida
relied upon for a conviction of petitioner was coerced,
intimidated, beaten, threatened with violence and otherwise abused
and mistreated in order to compel the said witnesses, Tyler and
Baker to give testimony at the trial of said cause against
petitioner and to implicate said petitioner in the killing of Mrs.
Mamie Surrency, and further that the said witnesses, Tyler and
Baker were promised immunity from the electric chair, by John W.
Harrell and further promised if they would implicate Clyde Hysler
in said murder and testify against him during the trial of said
cause, that he, as State's Attorney of the Fourth Judicial Circuit
of Florida, together with other law enforcing officers of Duval
County, Florida would see that he did not get the chair, and that
they would procure a pardon and have him released from the State
Penitentiary after serving three (3) years of his sentence, all of
which is more particularly described by reference to a statement
and affidavit made by the said James Baker on the 7th day of April,
A.D. 1941, also by further affidavit and statement made by the said
James Baker on the 8th day of April, A.D. 1941, and also by
statement and affidavit made by the said James Baker on the 9th day
of April A.D. 1941, said affidavit being marked 'A-b and c'
respectively and hereby made a part of this petition as fully as
though set out herein
in haec verba. And for further
reason that said affidavits show that the said petitioner was not
implicated in the murder of the said Mrs.
Page 315 U. S. 429
Mamie Surrency but that one Joe Peterson, Sr. was the person
implicated in said murder, and not the petitioner, Clyde Hysler,
all of which is set out herein more fully in the affidavits herein
above referred to and further substantiated by photostatic copies
of the following affidavits, to-wit; affidavit of one Ed. Mosley;
affidavit of one A. J. Mooney; affidavit of one Mrs. Ruby Crews and
affidavit of one Rudolph J. Dowling, said photostatic copies being
marked 'd-e-f and g' respectively, and each of said affidavits
being hereto attached and hereby made a part of this petition as
fully as though set out herein
in haec verba."
"
* * * *"
"That the said witnesses, Alvin Tyler and James Baker
immediately after and following their arrest were held
incommunicado for a long period of time without being allowed the
benefit and advice of counsel, without being allowed to see or
confer with their friends or relatives and without being allowed to
confer with the attorneys for the petitioner; that said witnesses,
Tyler and Baker were removed from the Duval County Jail and
confined in the State Penitentiary at Raiford, Florida with
instructions to allow no one to communicate with them for a long
period of time immediately following their arrest, and it became
necessary for the attorneys for petitioner to procure an order of
the Circuit Court of Duval County for permission to confer with
said witnesses several weeks after their arrest, and then only in
company with, and in the presence of the attorneys appointed by the
Court to represent said witnesses, and said attorneys for
petitioners made diligent effort to ascertain from said witnesses
facts about which they would testify to in trial of said
petitioner, and thereby used diligent effort in trying to procure
the information as set out herein by the respective affidavits by
the witness, James Baker, but said witness Baker was afraid to
divulge the truth to the attorneys for the petitioner as set out
herein in the said affidavits, a-b and c hereto attached, and that
said petitioner was denied a fair and impartial trial by reason of
the coercion and intimidation of the witnesses, Alvin Tyler and
James Baker and the hope of reward promised them as hereinabove set
forth, and has by reason thereof denied equal
Page 315 U. S. 430
protection of the law as guaranteed to him by the 14th Amendment
to the United States Constitution and was thereby denied due
process of the law as guaranteed by the 5th Amendment of the United
States Constitution."
"
* * * *"
"That had the said witnesses, Tyler and Baker not been
intimidated, coerced and promised immunity from the electric chair
by the law enforcement officers in Duval County as described in
affidavits 'a-b and c' hereto attached, and by John W. Harrell as
herein above described, and the said witnesses had been left free
to testify and tell the truth as to the said Joe Peterson, Sr.
being the person involved in the murder of the said Mrs. Mamie
Surrency instead of the petitioner, said testimony would have
prevented the rendition of the judgment, verdict and sentence of
petitioner in this cause, and if another trial be had of this
cause, this petitioner would be acquitted."
"
* * * *"
"That petitioner further alleges that the affidavits of the
witness, James Baker, being affidavits hereto attached and marked
'a-b and c' and made by the said James Baker freely and voluntarily
on his part and without any suggestion or prompting on the part of
petitioner or any one on his behalf, and that the statements
contained in said affidavits were made in the presence of several
prison officials at Raiford, Florida after said James Baker made a
voluntarily request to see and talk with the attorney for
petitioner."
II. Excerpts from exhibits accompanying Hysler's petition:
(These are from the transcript of three conferences held in a
Florida prison on April 7 and 8, 1941. Baker was under oath. Where
the statements are not in narrative form, the questioner is
Hysler's attorney.)
". . . James Baker . . . deposes and says:"
"That, after the killing of Mr. and Mrs. Surrency near Grand
Crossing in Jacksonville, Florida on the 23rd day of November 1936,
that he and Alvin Tyler, the man who was with him at the time of
the said killing agreed between them while they were in Cracker
Swamp in the
Page 315 U. S. 431
Marietta section of Duval County, that they would lay the blame
of the planning of the robbery of the Surrencys upon Clyde Hysler
because they had had considerable liquor dealings with Clyde Hysler
and knew him well, and for the reason that the Hyslers bore a bad
reputation in Duval County, and for the further reason that Clyde
Hysler's father had plenty of money and they thought that, by
laying the planning of the robbery of the Surrencys on Clyde Hysler
that his father and his other relatives would put up sufficient
money to get Clyde Hysler out of the trouble and that, by laying it
on to Clyde Hysler that he, James Baker and Alvin Tyler would
escape the death penalty, that in truth and fact, that Clyde Hysler
was not implicated in the planning of the robbery and had nothing
to do with the killing of Mr. and Mrs. Surrancy, but that one Joe
Peterson, Sr., was the man who planned the robbery and hired the
said James Baker and Alvin Tyler to perform the robbery after being
advised by the said Joe Peterson that it would be no trouble, and
that Mr. Surrancy did not carry a gun, and all they would have to
do would be to point the pistol at him and take the money, that
affiant further deposes and says:"
"That Clyde Hysler was in no way responsible for the attempted
robbery of Mr. and Mrs. Surrancy; that he had nothing to do with
it, and the man who planned the robbery and was supposed to protect
us in the robbery was Joe Peterson, and not Clyde Hysler; that Joe
Peterson was in the immediate vicinity when the attempted robbery
and the killing of the Surrencys took place, and had it not been
that Joe Peterson planned the robbery and hired Alvin Tyler and
myself to rob Mr. Surrancy, they would probably have still been
living and we would not be in any trouble."
"
* * * *"
"Q. Now Baker, I don't want you to tell me anything except the
truth, I want you to tell me if Joe Peterson was the man that got
you into all of this instead of Clyde Hysler."
"A. Yes, sir, he is the man."
"Q. Then you and Alvin Tyler planned to lay this all on Clyde
Hysler in order to try to get out of it yourself or to get a life
sentence instead of the chair? "
Page 315 U. S. 432
"A. Yes, sir."
"
* * * *"
"Q. You recall what officers brought you over here?"
"A. Mr. Gene Griffen and Mr. Dick Barker and some more
officers."
"Q. Now what threats or promises did they make you to testify
and implicate Clyde Hysler?"
"A. Well, Mr. Griffen and them didn't, they didn't make no
promises, Mr. Hulbert did talk to me, that he would get me life
imprisonment -- life instead of the chair."
"Q. Mr. Hulbert talked to you and made promises that you would
get life instead of the chair?"
"A. Yes, sir."
"Q. What police --"
"A. That's what it was, police officers and John Harrell."
"Q. John W. Harrell, the State's Attorney at that time?"
"A. Yes, sir."
"Q. Did Mr. Harrell tell you that he would help you get a life
sentence if you would testify against Clyde Hysler?"
"A. He said he wouldn't burn me, that he, Mr. Acosta and Mr.
Carson would get me out in three years time."
"Q. Was Detective Cannon and -- you was talking about and
Inspector Acosta --"
"A. The two men that arrested me, yes sir."
"Q. Now from the time you was arrested, Baker, how long was you
kept to yourself before you was allowed to talk to your lawyer or
your friends?"
"A. From the time I was arrested until the 21st of January, till
we went back and had my trial set."
"Q. The day you were arraigned in Circuit Court for the
trial?"
"A. Yes, sir."
"Q. You was held to your self without being allowed to
communicate with any of your friends or your lawyer?"
"A. Yes, sir."
"Q. When was you arrested?"
"A. It was on the 23rd-24-26 -- when was Thanksgiving Day --
just a few days."
"Q. You was arrested just a few days after Thanksgiving? "
Page 315 U. S. 433
"A. Yes, sir."
"
* * * *"
"Q. Did any of those officers threaten you?"
"A. They carried me in a dark room --"
"Q. That was here?"
"A. No, sir, that was in Jacksonville, they carried me out to
Marietta and whipped me."
"Q. What was that with?"
"A. Something covered up in canvas, I don't know what it was and
a piece of hose and something looked like a pine limb."
"Q. You remember any of those names?"
"A. Yes, sir."
"Q. Who were they?"
"A. Mr. Woods, R. L. Woods, and Mr. Carson slapped me two or
three times and gave them the black jack to beat me with. . .
."
"Q. That was in the presence of Mr. Woods, Carson and
Acosta?"
"A. Yes, sir."
"Q. That was to try to make you implicate Mr. Hysler in the
robbery of Mr. Surrency and Mrs. Surrency?"
"A. Yes, sir."
"Q. And if it hadn't been for the beatings and threats and the
promises to get you out of here in three years as you have stated
above, would you have implicated Mr. Hysler in the case at
all?"
"A. No, sir, cause I told them I didn't know anything about it,
and another thing, between Mr. Hysler's first trial and last one,
Mr. Harrell came down to the County Jail after I was allowed to see
people, I said, don't you known that, if you burn Mr. Hysler, you
will have to burn me too, and he said he could burn the whole
Hysler family and don't burn me, cause he and Mr. Sidney Hulbert,
Mr. Carson and Mr. Cannon and some more officers was going to run
the County as long as they were running it."
"
* * * *"
"Q. Baker, how many times did the officers threaten you and beat
you after you were arrested?"
"A. They beat me about three o'clock in the morning to ten
o'clock before they got me to say anything. "
Page 315 U. S. 434
"Q. It was the police made you tell the sheriff's office?"
"A. Yes, sir."
"Q. Was you afraid not to tell them what they wanted you to,
afraid they would beat you some more?"
"A. Yes, sir, if them -- I said two words they would slap me,
before the sheriff bunch got there they had sent out and bought me
dinner, give me $5.00 or $6.00 dollars in money, and said don't
tell any body about me being whipped, if anyone asked me, tell them
no."
"Q. Then it was a definite promise from Mr. Harrell, the State's
Attorney to keep you from burning?"
"A. He said that he would see that I would get life, but that he
would see that I didn't stay at the chain gang but three
years."
"
* * * *"
"Q. Baker what about the remarks you wanted to make?"
"A. Where they kicked me."
"Q. That at Jacksonville police station?"
"A. Yes, sir."
"Q. Who was that?"
"A. Mr. Carson, that's who had me at that time, he taken me down
there where a bunch of police was shooting pool."
"Q. What all did they do to you?"
"A. Those officers down there asked him if he made me tell him
what they wanted to know, and Mr. Carson -- Mr. Carson said not
yet, and they said, turn him loose with us about 25 minutes and we
will make him say anything they wanted me to say, and he told them
to take me and hold me until they went up into the office and make
a call, and while he was gone to make a call they carried me back
into a room and put a coat over my head and went to beating me, I
got scars on me now, I want to show them to you and its what you
call risons, you can get your doctor and he will tell you what was
caused from blows --"
"Q. You still have scars on you from that beating?"
"A. Yes --"
"Q. Was those beatings that caused those scars on you to tell on
Clyde Hysler?"
"A. To make me tell anything."
"Q. Did they mention Clyde Hysler's name to you while they were
beating you? "
Page 315 U. S. 435
"A. Yes, sir."
"Q. Do you know the names of those officers?"
"A. No, sir, those were new officers to me, they were speed
cops, had those things on their shoulders."
"Q. Did any of them tell you that Clyde Hysler was mixed up in
the killing or such as that?"
"A. They said they knew he was in it -- and after I told how it
was, they made me implicate him."
"Q. Implicate him?"
"A. Yes, sir."
"Q. As a matter of fact, Hysler was not mixed in it, but it was
Joe Peterson --"
"A. They had me handcuffed behind my back and I was chained and
beat me. . . ."
"
* * * *"
"Q. Baker do you know whether or not Mr. Harrell knew if you was
beat up to make you testify?"
"A. Yes, sir, he knows I couldn't set down, none of the
sheriff's force knew it at the time, they knew it later when I made
it in front all of the officers."
"Q. When you made that statement you couldn't set down."
"A. Yes, sir, and I can't set down good, and I wish you and
those men could see that now."
III. The opinion of the Supreme Court of Florida on motion for
rehearing: (No opinion accompanied the original denial of Hysler's
petition.)
"Buford, J.:"
"On motion for rehearing on application for an order for leave
to apply to the Circuit Court of Duval County for a writ of error
coram nobis to review the judgment of conviction of
petitioner of the offense of Murder in the First Degree heretofore
entered in that Court, on grounds stated in the petition, we have
denied the petition for reasons as follows:"
"(a) This Court may take judicial cognizance of its own records
and the record lodged in this Court on the writ of error to the
judgment of conviction of the petitioner shows ample evidence to
support the judgment of conviction without the aid of the testimony
given on that trial by the witness James Baker. "
Page 315 U. S. 436
"(b) Writ of error
coram nobis will not lie because of
false testimony given at the trial by important witness.
Lamb
v. State, 91 Fla. 396, 107 So. 535."
"(c) Matters properly presentable for writ of
coram
nobis are such as would have prevented conviction and not such
as may have caused a different result.
Chesser v. State,
92 Fla. 754, 109 So. 906."
"(d) If witness Baker swore falsely at defendant's trial, that
fact was known to petitioner at the time of the trial.
Washington v. State, 95 Fla. 289, 116 So. 470;
Pike v.
State, 103 Fla. 594, 139 So. 196."
"(e) The allegations of the petition do not show that the
prosecuting attorney had any guilty knowledge of the alleged
maltreatment of the witness, or that the alleged falsity of
testimony of the witness Baker was known to the prosecuting
officer."
"(f) The petition does not show that any alleged maltreatment of
witness was inflicted by any officer of the trial court or that
same was known to any officer of the trial court."
"(g) The records of this Court, of which we take judicial
cognizance, show that petitioner was convicted on trial held
subsequent to the trial and conviction of the witness Baker of the
offense of Murder in the first degree without recommendation to
mercy, and that both trials were conducted on behalf of each
defendant by able, diligent and faithful counsel."
"(h) If all petitioner alleges in his petition had been true and
had been fully made known to the trial court and to the jury which
tried the defendant petitioner, it would not have precluded the
entry of the judgment upon a verdict of guilty of Murder in the
first degree having been returned by the jury."
"So it is, the petition in insufficient to require us to grant
same and for such reasons the same was denied and the petition for
rehearing is likewise denied."
"
So ordered."
"Terrell, Thomas, and Chapman, JJ., concur."
"Brown, C.J., dissents."