Claiming that his conviction of murder in a state court on a
plea of
non vult violated the Due Process Clause of the
Fourteenth Amendment, petitioner applied to a Federal District
Court for a writ of habeas corpus, which was denied. He had
retained counsel before his arrest, but, while being questioned by
state police, he was repeatedly denied the right to consult his
counsel until he had confessed. He was not permitted to inspect his
confession before pleading to the indictment.
Held: petitioner's conviction did not violate the Due
Process Clause of the Fourteenth Amendment. Pp.
357 U. S.
505-511.
1. An independent examination of the record satisfies this Court
that the District Court was justified in concluding that petitioner
failed to substantiate the charge that his confession was coerced.
P.
357 U. S.
508.
2. Refusal to permit petitioner to consult his counsel while
being questioned by the state police did not, of itself, violate
the Fourteenth Amendment.
Crooker v. California, ante, p.
357 U. S. 433. Pp.
357 U. S.
508-510.
3. In the absence of a showing of prejudice, petitioner was not
denied due process by the trial judge's discretionary refusal to
permit him to inspect his written confession before pleading to the
indictment. Pp.
357 U. S.
510-511.
240 F.2d 844, affirmed.
Page 357 U. S. 505
MR. JUSTICE HARLAN delivered the opinion of the Court.
We are asked to reverse, under the Due Process Clause of the
Fourteenth Amendment to the Constitution of the United States, a
state conviction which was entered upon a plea of
non vult
to an indictment for first degree murder.
In the evening of March 17, 1947, Charles Kittuah, the owner of
a small dry goods store in Newark, New Jersey, was shot and killed
during the course of a robbery. The crime remained unsolved until
December 17, 1949, when the Newark police obtained information
implicating the petitioner and two others, Armando Corvino and John
DeMasi. Petitioner lived with his parents at Orange, New Jersey.
Apparently acting at the request of the Newark police, the Orange
police sought to locate petitioner at his home. When told that he
was out, the police left word that he was to report at the Orange
police headquarters the following day. Petitioner sought the advice
of Frank A. Palmieri, a lawyer, who advised him to report as
requested. Petitioner did so, accompanied by his father and
brother. Upon arrival at the Orange police station at 9 a.m. on
December 18, petitioner was separated from the others and taken by
detectives to the Newark police headquarters. At approximately 2
p.m. the same day, petitioner's father, brother, and Mr. Palmieri,
the lawyer, arrived at the Newark station. Mr. Palmieri immediately
asked to see petitioner, but this request was refused by the
police. He repeated this request at intervals throughout the
afternoon and well into the evening, but without success. During
this period petitioner, who was being questioned intermittently by
the police, asked to see his lawyer. These requests were also
denied. Lawyer and client were not permitted to confer until 9:30
p.m., by which time petitioner had made and signed a written
confession to the murder of Kittuah. The confession is not in the
record.
Page 357 U. S. 506
Petitioner was arraigned the next day, December 19, and
subsequently indicted, along with Corvino and DeMasi, both of whom
had also confessed to the murder. Thereafter, petitioner moved in
the Essex County Court for an order requiring the State to produce
for inspection before trial his confession and the confessions of
his co-defendants and, alternatively, for an order suppressing his
confession on the ground that it had been illegally obtained. The
County Court denied the motion. The Superior Court of New Jersey
dismissed the appeal,
State v. Cicenia, 9 N.J.Super. 135,
75 A.2d 476, and the Supreme Court of New Jersey affirmed the
dismissal with modifications. 6 N.J. 296,
78
A.2d 568. The State Supreme Court held that New Jersey had no
procedure like that under Rule 41(e) of the Federal Rules of
Criminal Procedure by which inadmissible evidence could be
suppressed before trial; that, under New Jersey law, criminal
defendants did not have an absolute right to inspect their
confessions in advance of trial; and that the trial judge in this
instance did not abuse his discretion in disallowing such an
inspection.
Following his failure to suppress or obtain inspection of his
confession petitioner, on the advice of his attorney, offered to
plead
non vult to the indictment. In New Jersey, such a
plea is subject to discretionary acceptance by the trial court,
State v. Martin, 92 N.J.L. 436, 106 A. 385, and carries a
maximum sentence of life imprisonment. Petitioner's plea was
accepted by the trial court, as were the similar pleas of Corvino
and DeMasi, whose cases are not before us. Petitioner and his two
co-defendants were thereupon sentenced to life imprisonment at hard
labor.
Thereafter, petitioner commenced habeas corpus proceedings in
the New Jersey courts, alleging that his plea of
non vult
was actuated by the existence of the confession, and that the
conviction entered upon such plea was
Page 357 U. S. 507
vitiated under both the State and Federal Constitutions because
the confession was coerced and because it had been taken in
derogation of his right to the assistance of counsel. The County
Court, the Superior Court, and the Supreme Court of New Jersey in
turn denied relief, [
Footnote
1] and this Court denied certiorari. 350 U.S. 925. Petitioner
then commenced in the District Court for New Jersey the federal
habeas corpus proceeding before us attacking his conviction on the
grounds stated above. The District Court discharged the writ,
holding that petitioner had failed to establish the involuntariness
of the confession and that the State's refusal to permit petitioner
to communicate with counsel during the police inquiry did not
deprive him of due process.
Application of Cicenia, 148 F.
Supp. 98. The Court of Appeals affirmed, 240 F.2d 844, and we
granted certiorari to consider the constitutional questions
presented. 354 U.S. 908. [
Footnote
2]
Page 357 U. S. 508
An independent examination of the record satisfies us that the
District Court was justified in concluding that petitioner failed
to substantiate the charge that his confession was coerced.
Petitioner does not now contend to the contrary. He continues to
contend, however, that, under the Fourteenth Amendment, his
confession, even though voluntary, was nevertheless vitiated by
police refusal to permit him to confer with counsel during his
detention at Newark police headquarters, and that, because his plea
of
non vult was based on the confession, the conviction
must fall as well. [
Footnote
3]
The contention that petitioner had a constitutional right to
confer with counsel is disposed of by
Crooker v. California,
ante, p.
357 U. S. 433,
decided today. There, we held that California's failure to honor
Crooker's request during a period of police interrogation to
consult with a lawyer, as yet unretained, did not violate the
Fourteenth Amendment. Because the present case, in which petitioner
was denied an opportunity to confer with the lawyer whom he had
already retained, sharply points up the constitutional issue
involved, some additional observations are in order.
We share the strong distaste expressed by the two lower courts
over the episode disclosed by this record.
Cf. Stroble v.
California, 343 U. S. 181,
343 U. S.
197-198. Were this a federal prosecution, we would have
little difficulty in
Page 357 U. S. 509
dealing with what occurred under our general supervisory power
over the administration of justice in the federal courts.
See
McNabb v. United States, 318 U. S. 332. But
to hold that what happened here violated the Constitution of the
United States is quite another matter.
The difficulties inherent in the problem require no extensive
elaboration.
Cf. Watts v. Indiana, 338 U. S.
49,
338 U. S. 57-62
(opinion of Jackson, J.). On the one hand, it is indisputable that
the right to counsel in criminal cases has a high place in our
scheme of procedural safeguards. On the other hand, it can hardly
be denied that adoption of petitioner's position would constrict
state police activities in a manner that in many instances might
impair their ability to solve difficult cases. A satisfactory
formula for reconciling these competing concerns is not to be found
in any broad pronouncement that one must yield to the other in all
instances. Instead, as we point out in
Crooker v. California,
supra, this Court, in judging whether state prosecutions meet
the requirements of due process, has sought to achieve a proper
accommodation by considering a defendant's lack of counsel one
pertinent element in determining from all the circumstances whether
a conviction was attended by fundamental unfairness.
See House
v. Mayo, 324 U. S. 42,
324 U. S. 45-46;
Payne v. Arkansas, 356 U. S. 560,
356 U. S.
567.
In contrast, petitioner would have us hold that any state denial
of a defendant's request to confer with counsel during police
questioning violates due process, irrespective of the particular
circumstances involved. Such a holding, in its ultimate reach,
would mean that state police could not interrogate a suspect before
giving him an opportunity to secure counsel. Even in federal
prosecutions, this Court has refrained from laying down any such
inflexible rule.
See McNabb v. United States, supra; Mallory v.
United States, 354 U. S. 449.
Still less should we impose this standard on each of the 48 States
as a matter
Page 357 U. S. 510
of constitutional compulsion. [
Footnote 4] It is well known that law enforcement problems
vary widely from State to State, as well as among different
communities within the same State. This Court has often recognized
that it is of the
"very essence of our federalism that the States should have the
widest latitude in the administration of their own systems of
criminal justice."
Hoag v. New Jersey, 356 U. S. 464,
356 U. S. 468.
See Maxwell v. Dow, 176 U. S. 581;
Twining v. New Jersey, 211 U. S. 78. The
broad rule sought here and in
Crooker would require us to
apply the Fourteenth Amendment in a manner which would be foreign
both to the spirit in which it was conceived and the way in which
it has been implemented by this Court.
Petitioner's remaining constitutional contention can be disposed
of briefly. He argues that he was deprived of due process because
New Jersey required him to plead to the indictment for murder
without the opportunity to inspect his confession.
The Fourteenth Amendment does not reach so far. As stated by the
Supreme Court of New Jersey in the earlier proceedings in this
case,
State v. Cicenia, 6 N.J. 296 at 299-301,
78
A.2d 568 at 570-571, the rule in that State is that the trial
judge has discretion whether or not to allow inspection before
trial. This is consistent with the practice in many other
jurisdictions.
See, e.g., State v. Haas, 188 Md. 63, 51
A.2d 647;
People v. Skoyec, 183 Misc. 764, 50 N.Y.S.2d
438;
State v. Clark, 21 Wash. 2d 774, 153 P.2d 297. In
Leland v. Oregon, 343 U. S. 790,
343 U. S.
801-802,
Page 357 U. S. 511
this Court held that, in the absence of a showing of prejudice
to the defendant, it was not a violation of due process for a State
to deny counsel an opportunity before trial to inspect his client's
confession. It is true that, in
Leland, the confession was
made available to the defense at the trial several days before its
case was rested, whereas, here, petitioner pleaded
non
vult without an opportunity to see the confession. We think
that the principle of that case is nonetheless applicable. As was
said in
Leland (343 U.S. at 801), although it may be the
"better practice" for the prosecution to comply with a request for
inspection, we cannot say that the discretionary refusal of the
trial judge to permit inspection in this case offended the
Fourteenth Amendment.
Cf. Application of Tune, 230 F.2d
883, 890-892.
Affirmed.
MR. JUSTICE BRENNAN took no part in the consideration or
decision of this case.
[
Footnote 1]
The opinions of the County Court and Superior Court are not
reported. The State Supreme Court wrote no opinion.
[
Footnote 2]
Although the State does not contend that the case is not
properly here, we have nevertheless felt obliged to consider our
jurisdiction in view of the following circumstances: New Jersey has
a rule that a defendant who pleads guilty waives the right to
attack a confession on which such plea is based.
See In re
Domako, 20 N.J.Super. 314,
90 A.2d 30,
aff'd, 11 N.J. 591,
95 A.2d
505. Following that rule, the Essex County Court held that
petitioner could not attack his conviction on habeas corpus. On
appeal the Superior Court did not advert to that question, but
affirmed the County Court on the ground that, under New Jersey law,
petitioner had no constitutional right to counsel prior to
arraignment.
See State v. Grillo, 11 N.J. 173,
93 A.2d
328. The State Supreme Court gave no reasons for denying leave
to appeal. Since the Superior Court had dealt with petitioner's
constitutional claims on the merits, the two lower federal courts
decided that they had the power to consider them.
Cf. Brown v.
Allen, 344 U. S. 443,
344 U. S. 486;
Hawk v. Olson, 326 U. S. 271,
326 U. S. 278.
We agree that jurisdiction exists. In the absence of a definitive
New Jersey ruling that the
Domako waiver principle applies
to a plea of
non vult, we shall not assume that the New
Jersey Supreme Court's decision denying leave to appeal was based
on that nonfederal ground.
Cf. Stembridge v. Georgia,
343 U. S. 541. Our
conclusion is strengthened by the fact that the Superior Court did
not rely on the
Domako rule, and by the absence of any
challenge to our jurisdiction by the State.
[
Footnote 3]
Since we conclude that the police refusal to allow petitioner to
consult with his lawyer did not violate the Fourteenth Amendment,
we need not consider the State's further contention that petitioner
was not denied due process because the confession was never "used"
against him, he having pleaded
non vult to the indictment.
But cf. Herman v. Claudy, 350 U.
S. 116.
[
Footnote 4]
New Jersey is not alone in its rule that an accused has no right
to consult with counsel during the period between arrest and
arraignment.
See State v. Rogers, 143 Conn. 167, 120 A.2d
409;
Utah v. Sullivan, 227 F.2d 511;
People v.
Kelly, 404 Ill. 281, 89 N.E.2d 27. Most States have not had
occasion to rule on the issue before us, and it is generally quite
unclear in state law when the right to have counsel begins.
See Beaney, The Right to Counsel in American Courts,
127-128; 3 A.L.R.2d 1003, 1032
et seq.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACK concur, dissenting.
Petitioner, pursuant to a request left by the police at his home
on Saturday, December 17, appeared at headquarters in Orange, New
Jersey at 9 a.m. on the 18th. He did so on the advice of his
lawyer, Frank A. Palmieri. Petitioner's brother and father
accompanied him on this visit, but were separated from him on
arrival at the headquarters. Shortly thereafter, petitioner was
taken to Newark, where he was interrogated by the police until 9:30
p.m., when he confessed. Between 2 p.m. and 9:30 p.m., Mr. Palmieri
asked over and again to see his client, but his requests were not
granted. On this phase of the case, the District Court said:
"Mr. Palmieri was not produced as a witness on the trial of this
case, but his affidavit was admitted by
Page 357 U. S. 512
stipulation. The contents of his affidavit and the testimony of
petitioner's father and brother are at variance with the testimony
of the Newark police as to the manner in which petitioner and his
counsel were restrained from communicating with each other.
According to petitioner's witnesses, Palmieri's pleas were met with
blunt refusals and remarks such as 'We're working on him.' The
police claim to have been much more decorous. But whether it was
done flippantly or courteously, the fact remains that, for over
seven hours, the Newark police formed an insuperable barrier
between an accused who wanted to see his counsel and counsel who
wanted to see his client. And it was during these seven hours that
the police and an assistant prosecutor were able to obtain a
detailed confession from petitioner."
148 F. Supp. 98, 99-100.
The District Court reached, "without enthusiasm," the conclusion
that petitioner's constitutional rights had not been impaired.
Id. at 104. The Court of Appeals evinced the same lack of
enthusiasm for the result. 240 F.2d 844. Both lower courts felt
that any correction of this unjust result should come from us. I
regret that we have not taken this case, and the companion cases,
as the occasion to bring our decisions into tune with the
constitutional requirement for fair criminal proceedings against
the citizen. I would reverse the judgment for the reasons stated in
my dissent in
Crooker v. California, ante, p.
357 U. S.
441.