Petitioner's conviction of first degree murder was affirmed by
the Supreme Court of California. Petitioner here challenged the
validity of his conviction under the Fourteenth Amendment, on the
grounds (1) that it was based in part on a coerced confession; (2)
that a fair trial was impossible because of inflammatory newspaper
reports inspired by the District Attorney, and (3) that he was, in
effect, deprived of counsel in the course of his sanity hearing. He
urged that each of these grounds independently was a denial of due
process, and that the combination of them with other circumstances
denied due process.
Held: the judgment of conviction is affirmed. Pp.
343 U. S.
183-198.
1. If the confession which petitioner made in the District
Attorney's office shortly after his arrest was in fact involuntary,
the conviction cannot stand, even though the evidence apart from
that confession might hare been sufficient to sustain the jury's
verdict. P.
343 U. S.
190.
2. When the question on review of a state court conviction is
whether there has been a violation of the Due Process Clause of the
Fourteenth Amendment by the introduction of an involuntary
confession, this Court must make an independent determination on
the undisputed facts. P.
343 U. S.
190.
3. In the light of all the circumstances of this case, this
Court cannot say that petitioner's confession in the District
Attorney's office was the result of coercion, either physical or
psychological. Pp.
343 U. S.
184-189,
343 U. S.
190-191.
4. Petitioner's contention that the newspaper accounts of his
"arrest and confession were so inflammatory as to make a fair trial
in the Los Angeles area impossible -- even though a period of six
weeks intervened between the day of his arrest and confession and
the beginning of his trial -- is not sustained by the record in
this case. Pp.
343 U. S.
191-195.
5. Petitioner's contention that he was deprived of the effective
assistance of counsel when he waived trial by jury on the issue
Page 343 U. S. 182
of insanity is not substantiated, since it appears that he had
the full assistance of competent counsel on that question. Pp.
343 U. S.
195-196.
6. The combination of the above ground with the alleged
unwarranted delay in arraignment and the refusal to permit counsel
to consult petitioner during the making of the confession, do not
amount to such unfairness as to deny due process. Pp.
343 U. S.
196-198.
7. Upon review by this Court of a state court conviction
challenged as wanting in due process, illegal acts of state
officials prior to trial are relevant only as they bear upon the
defendant's contention that he was deprived of a fair trial, either
through the use of a coerced confession or otherwise. P.
343 U. S.
197.
8. Upon the facts of this case, this Court cannot hold that the
illegal conduct of the law enforcement officers in not taking
petitioner promptly before a committing magistrate coerced the
confession which he made in the District Attorney's office or in
any other way deprived him of a fair and impartial trial. P.
343 U. S.
197.
9. Upon the record in this case, there is no showing of
prejudice resulting from the refusal of the prosecutors to admit
counsel during their interrogation of petitioner. Pp.
343 U. S.
197-198.
10. The burden of showing essential unfairness in a state court
trial is upon him who claims such injustice and seeks to have the
result set aside, and must be sustained not as a matter of
speculation, but as a demonstrable reality. P.
343 U. S.
198.
36 Cal. 2d
615, 226 P.2d 330, affirmed.
Petitioner's conviction of first degree murder, challenged as
violating the Due Process Clause of the Fourteenth Amendment, was
affirmed by the Supreme Court of California.
36 Cal. 2d
615, 226 P.2d 330. This Court granted certiorari. 342 U.S. 811.
Affirmed, p.
343 U. S.
198.
Page 343 U. S. 183
MR. JUSTICE CLARK delivered the opinion of the Court.
Petitioner has been convicted of first degree murder and
sentenced to death. He asks this Court to reverse his conviction as
wanting in that due process of law guaranteed against state
encroachment by the Fourteenth Amendment. Petitioner claims (1)
that his conviction was based in part on a coerced confession; (2)
that a fair trial was impossible because of inflammatory newspaper
reports inspired by the District Attorney; (3) that he was, in
effect, deprived of counsel in the course of his sanity hearing;
(4) that there was an unwarranted delay in his arraignment, and (5)
that the prosecuting officers unjustifiably refused to permit an
attorney to consult petitioner shortly after petitioner's arrest.
Petitioner urges that each of the first three circumstances is
independently a deprivation of due process and that, in any event,
the combination of all five circumstances operated to deprive him
of a fair trial.
The murder of which petitioner has been convicted occurred on
Monday, November 14, 1949; the victim was a girl, aged 6.
Petitioner was arrested around noon on Thursday, November 17, 1949.
He was arraigned in the Los Angeles Municipal Court at 10 o'clock
the following morning, and the City Public Defender was appointed
to represent him. A preliminary hearing was held on Monday,
November 21, and petitioner was bound over for trial in the
Superior Court of Los Angeles County. On November 25, petitioner
was arraigned in the Superior Court and the County Public Defender
was appointed as his counsel. From that point until the conclusion
of his trial, petitioner was vigorously defended by two deputies of
the County Public Defender's office. On December 2, 1949,
petitioner pleaded both "not guilty" and "not guilty by reason of
insanity." The case came on for trial on January 3, 1950. The issue
of guilt was tried to a
Page 343 U. S. 184
jury, which, on January 19, returned a verdict of guilty of
first degree murder, without recommendation; under California law,
this automatically fixed the penalty at death. On January 20, 1950,
petitioner waived jury trial on he issue of insanity, and the court
found that petitioner was sane at the time of committing the
offense. On January 27, 1950, on petitioner's motion, a private
attorney was substituted as petitioner's counsel. On February 6,
1950, the trial court, after a hearing, denied petitioner's motion
for a new trial, motion in arrest of judgment, and motion to set
aside the waiver of jury trial on the issue of insanity.
On appeal, the Supreme Court of California unanimously affirmed
the conviction.
People v. Stroble, 36 Cal. 2d
615, 226 P.2d 330. We granted certiorari because of the
seriousness of petitioner's allegations under the Due Process
Clause. 342 U.S. 811.
The facts leading to petitioner's arrest may be summarized as
follows:
In the early morning of November 15, 1949, the victim's body was
found behind the incinerator in the back yard of the home of
petitioner's daughter and son-n-aw. It was wrapped in a blanket and
covered with boxes. A necktie was wound twice around the child's
neck. An axe, knife, and hammer were found in the vicinity of the
body. An autopsy revealed that the immediate cause of death was
asphyxia due to strangulation. It also revealed numerous
lacerations on the top and sides of the head, six skull fractures,
a deep laceration in the back of the neck, abrasions and
discolorations on the child's back, irritation of the external
genitalia, and three puncture wounds in the chest.
Suspicion immediately focused on petitioner, who had been
visiting his daughter and son-n-aw until the day before, when he
had disappeared. Some six months before, petitioner had jumped bail
on a charge of molesting a
Page 343 U. S. 185
small girl, and had never since been apprehended. At
approximately 11:50 a.m. on November 17, as petitioner entered the
bar of a restaurant in downtown Los Angeles, a civilian recognized
him as the man whom the police were seeking in connection with the
murder. The civilian summoned a police officer, Carlson, who
thereupon arrested petitioner.
From this point on, there are some conflicts in the testimony,
as noted below. Carlson, accompanied by the civilian, took
petitioner to the park foreman's office in nearby Pershing Square,
where Carlson called headquarters to report his arrest of
petitioner and to request that a police car be sent. Then Carlson,
in the presence of the civilian and the park foreman, proceeded to
search petitioner. Carlson had petitioner stand facing the wall
with his hands raised against it and his feet away from it. While
being searched in this position, petitioner pulled his feet closer
to the wall, and then Carlson, with the side of his shoe, kicked
petitioner's shoes at the toes in order to push petitioner's feet
back into position. The civilian testified that "possibly"
Carlson's foot slipped and hit petitioner's shin "once or twice."
Carlson testified that at no time did he "strike" petitioner or
"inflict any kind of physical injury on him." [
Footnote 1] No marks were found on petitioner when
he was examined by a physician a few hours later. It also appears
that, after searching petitioner, Carlson took out his blackjack,
held it under petitioner's nose, and said either, Do you know what
this is for?" or "Have you seen this?" Petitioner makes no claim
that Carlson used the blackjack on him. While waiting for the
police car to arrive, the civilian asked petitioner whether he was
guilty of the murder, and petitioner "mumbled something under his
breath that sounded like "I guess I am." Thereupon, according to
the civilian,
Page 343 U. S. 186
the park foreman slapped petitioner with his open hand and
knocked off petitioner's glasses.
Without undue delay, the police car arrived and petitioner was
driven to the District Attorney's office in the Hall of Justice
Building. While en route, one of the police officers in the car
began a conversation with petitioner by asking him where he had
been. Petitioner replied, "Well, after that terrible thing
happened, I went down to the beach, down to Ocean Park. I was going
to do away with myself." The officer said, "What do you mean by
that terrible thing?" to which petitioner replied, "When the little
girl got killed." The officer then interposed, "Do you mean when
you killed the little girl?" and petitioner answered,
"Yes. I was going down to the beach. I was going to jump in the
ocean and commit suicide but I decided that I would have to pay on
the other side, so I might as well come back and pay on this
side."
The officer testified that he did not promise petitioner any
reward or extend to him any hope of immunity, and that he did not
use force or threats of any kind. The officer's entire testimony
regarding this conversation is uncontradicted, and, insofar as it
contains a confession by petitioner, no objection was made at the
trial on the ground that such confession was involuntary.
Petitioner did object at the trial, however, to the introduction
in evidence of a confession which he made after his arrival in the
District Attorney's office. Petitioner was brought to the District
Attorney's office at approximately 1 p.m., and an assistant
district attorney began questioning petitioner in the presence of
some nineteen persons, attaches of the District Attorney and the
police department. The entire proceeding was recorded on a
recording machine which had been set in operation before
petitioner's arrival. Petitioner stated that, on the afternoon of
November 14, his victim came to the home of petitioner's daughter,
where petitioner was visiting; he
Page 343 U. S. 187
took his victim into the bedroom and made advances upon her;
when she began to scream, he became frightened, got hold of her
throat, and squeezed it until she became quiet; she started to
squirm again, so he took a necktie from the dresser and tied it
around her neck; when she continued to move, he took her off the
bed, wrapped her in a blanket, and hit her on the temple with a
hammer which he had obtained from the kitchen drawer; he then
dragged her across the back yard to the incinerator, returned to
the kitchen to get an ice pick, and pushed the pick into her three
times in an effort to reach her heart; next he got an axe from the
garage and hit her on the head and backbone; finally he got a knife
from the kitchen and stabbed her in the back of the neck, covered
her body with boxes, and left for Ocean Park, a beach resort within
the city of Los Angeles, where he remained for the three nights
before his apprehension.
Towards the end of the recording, petitioner stated that the
officers had not threatened or abused him in any way, either in the
park foreman's office or the District Attorney's office. The
recording disclosed no mistreatment at the time of the making of
the confession.
The questioning of petitioner in the District Attorney's office
lasted approximately two hours. About 45 minutes after petitioner
had begun his confession, an attorney, Mr. Gray, called at the
waiting room of the District Attorney's office and asked for the
assistants handling the case. Upon being advised that they were
busy, he then asked for the District Attorney. Upon being told that
the District Attorney was also in conference, and could not be
disturbed, Mr. Gray asked to see petitioner. It is uncontradicted
that, at that point, Mr. Gray stated to a police department
inspector who was present in the waiting room that he "just wanted
to hear from [petitioner's] lips whether or not" petitioner had
committed the murder, "so that [he] could report back" to
petitioner's son-in-law. [
Footnote
2]
Page 343 U. S. 188
Mr. Gray was denied admission to the room in which petitioner
was being questioned, but talked to an assistant district attorney
after the confession had been completed. Mr. Gray was permitted to
see petitioner that evening. Mr. Gray did not represent petitioner
during the trial, but, on the motion for new trial, was
substituted, at petitioner's request, for the Public Defender.
Shortly after 3 p.m., petitioner was taken from the District
Attorney's office to Dr. Marcus Crahan, a physician in charge of
the hospital of the county jail, for a physical and mental
examination. Dr. Crahan, when called by petitioner as a witness at
the trial, testified that he examined petitioner carefully,
including his feet and shins, but found no bruises or abrasions of
any kind. According to Dr. Crahan, during the examination,
petitioner stated that, since his arrest, the police officers had
been very kind to him, and that he had not been "mistreated" and
had been given "every consideration." Petitioner related to Dr.
Crahan the details of the killing.
Petitioner was lodged in the county jail for the night and was
arraigned in the Municipal Court at 10 o'clock the following
morning, November 18.
Thereafter, in the six weeks' period between the date of his
arraignment and the beginning of his trial, petitioner was examined
by four psychiatrists [
Footnote
3] and one clinical psychologist. To each of these persons he
stated that he had killed his victim and recounted, in greater or
lesser detail, just how he had gone about the killing. These
experts, when testifying at the trial (two having been called by
the prosecution and three by the petitioner), related to the jury
what petitioner had told them. Petitioner did
Page 343 U. S. 189
not object at the time, and makes no objection now, to the
admission of these confessions on the ground that they were
involuntary.
The trial court charged the jury that it could not consider a
confession unless it was voluntary, that the jury was the sole
judge of voluntariness, and that a confession was not voluntary
when obtained by any kind of violence, abuse, or threat, or by
"any coaxing, cajoling, or menacing influence which induces in
the mind of the defendant the belief or hope that he will gain some
advantage by making a confession."
The court further charged that the fact that a confession is
made while an accused is under arrest and being detained, or when
he is not represented by counsel, or without his having been told
that any statement he makes may be used against him, does not, in
itself, make the confession involuntary, but is one circumstance to
be considered in determining the voluntariness of the confession.
The court admonished the jury to view with caution the testimony of
any witness which purports to relate an oral confession by a
defendant.
The California Supreme Court stated: "We may assume that, as a
matter of law under the circumstances shown," petitioner's
confession in the District Attorney's office was involuntary.
[
Footnote 4] The court felt,
however, that the use of that confession "could not have affected
the fairness of [petitioner's] trial," because petitioner
"thereafter made at least five confessions, of materially
similar substance and unquestioned admissibility, which were put in
evidence,"
and because "[i]t does not appear that the outcome of the trial
would have differed" if that confession had been excluded.
[
Footnote 5] Therefore the
court concluded that use of the confession had not deprived
petitioner of due process.
Page 343 U. S. 190
We take a somewhat different view. If the confession which
petitioner made in the District Attorney's office was in fact
involuntary, the conviction cannot stand, even though the evidence
apart from that confession might have been sufficient to sustain
the jury's verdict.
Malinski v. New York, 324 U.
S. 401,
324 U. S. 402,
324 U. S. 404
(1945);
Lyons v. Oklahoma, 322 U.
S. 596,
322 U. S. 597
note 1 (1944). That confession was a prominent feature of the
trial. First a stenographic transcript of the confession was read,
and then a wire recording of it was played to the jury. Under these
circumstances, we cannot say that the jury's verdict could not have
been based, at least in part, on the confession made in the
District Attorney's office. Since we take this view, we cannot
merely "assume," as did the state supreme court, that that
confession was involuntary, but must go on to determine the
question of voluntariness.
Petitioner does not so much as suggest that the action of any
officer during the taking of the confession was accompanied by
force or threats. His sole contention is that the incidents in the
park foreman's office, coupled with the presence of nineteen
officers in the District Attorney's office, render the confession
which he made in the latter office involuntary.
This Court frequently stated that, when faced with the question
whether there has been a violation of the Due Process Clause of the
Fourteenth Amendment by the introduction of an involuntary
confession, it must make an independent determination on the
undisputed facts.
Malinski v. New York, supra, at
324 U. S. 404,
and cases cited; at
324 U. S. 438
(dissenting opinion). We adhere to that rule. In the present case,
however, we need not confine ourselves to the undisputed facts,
for, even if we give petitioner the benefit of every doubt as to
the alleged coercion, we do not think it can fairly be said that
his confession in the District Attorney's office was coercion's
product.
Page 343 U. S. 191
Whatever occurred in the park foreman's office occurred at least
an hour before he began his confession in the District Attorney's
office, and was not accompanied by any demand that petitioner
implicate himself. Likewise, his statement to the officer while on
the way to the District Attorney's office was admittedly voluntary.
In the District Attorney's office, petitioner answered questions
readily; there was none of the "pressure of unrelenting
interrogation" which this Court condemned in
Watts v.
Indiana, 338 U. S. 49,
338 U. S. 54
(1949). Indeed, the record shows that, from the time of his arrest
until the time of his trial, petitioner was anxious to confess to
anybody who would listen -- and as much so after he had consulted
with counsel as before. His willingness to confess to the doctors
who examined him, after he had been arraigned and counsel had been
appointed, and in circumstances free of coercion, suggests strongly
that petitioner had concluded, quite independently of any duress by
the police, "that it was wise to make a clean breast of his guilt."
See Lyons v. Oklahoma, supra, at
322 U. S. 604.
In the light of all these circumstances, we are unable to say that
petitioner's confession in the District Attorney's office was the
result of coercion, either physical or psychological.
We turn now to petitioner's contention that the newspaper
accounts of his arrest and confession were so inflammatory as to
make a fair trial in the Los Angeles area impossible -- even though
a period of six weeks intervened between the day of his arrest and
confession and the beginning of his trial. Here we are not faced
with any question as to the permissible scope of newspaper comment
regarding pending litigation,
see Bridges v. California,
314 U. S. 252
(1941);
Pennekamp v. Florida, 328 U.
S. 331 (1946);
Craig v. Harney, 331 U.
S. 367 (1947), but with the question whether newspaper
accounts aroused such prejudice in the community that petitioner's
trial was "fatally infected" with an absence of "that
Page 343 U. S. 192
fundamental fairness essential to the very concept of justice."
Lisenba v. California, 314 U. S. 219,
314 U. S. 236
(1941).
The search for and apprehension of petitioner was attended by
much newspaper publicity. Between the time of the murder and the
time of petitioner's arrest, newspapers of general circulation in
the Los Angeles area featured in banner headlines the "manhunt"
which the police were conducting for petitioner. On the day of
petitioner's arrest, these newspapers printed extensive excerpts
from his confession in the District Attorney's office, the details
of the confession having been released to the press by the District
Attorney at periodic intervals while petitioner was giving the
confession. On the following Monday, four days later, Los Angeles
newspapers reprinted the full text of that confession as it was
read into the record at the preliminary hearing. Most of these
events were given top billing on the front page of the papers, and
were accompanied by large headlines. Petitioner was variously
described, both in headlines and in the text of news stories, as a
"werewolf," a "fiend," a "sex-ad killer," and the like. The
District Attorney announced to the press his belief that petitioner
was guilty and sane.
The spate of newspaper publicity accompanying petitioner's
arrest and confession soon abated, however. During the month of
December, 1949, petitioner made the headlines of Los Angeles
newspapers only infrequently, such as when he entered a plea of
"not guilty" on December 2. Petitioner points to certain other
events which occurred during that month. The Governor of the State
called a special session of the legislature to consider, among
other things, the problem of "sex crimes;" the Governor called a
one-ay conference of law enforcement officers to consider the same
subject; a committee of the state legislature investigating sex
crimes held hearings in Los Angeles at which the District Attorney
stated that he did not see why sex offenders "shouldn't he disposed
of
Page 343 U. S. 193
the same way" as mad dogs, and various citizens' groups made
proposals for studying and dealing with sex crimes. Los Angeles
newspapers published accounts of each of these events, and the
accounts at times made reference to the murder with which
petitioner was charged.
Petitioner's trial itself was reported by Los Angeles
newspapers, usually on inside pages. Petitioner makes no objection
to this phase of the newspaper coverage except for the newspapers'
occasional reference to petitioner as a "werewolf."
While we may deprecate the action of the District Attorney in
releasing to the press, on the day of petitioner's arrest, certain
details of the confession which petitioner made, we find that the
transcript of that confession was read into the record at the
preliminary hearing in the Municipal Court on November 21, four
days later. Thus, in any event, the confession would have become
available to the press at that time, for "[w]hat transpires in the
courtroom is public property."
Craig v. Harney, supra, at
331 U. S. 374.
Petitioner has not shown how the publication of a portion of that
confession four days earlier prejudiced the jury in arriving at
their verdict two months thereafter.
We agree with the California Supreme Court that petitioner has
failed to show that the newspaper accounts aroused against him such
prejudice in the community as to "necessarily prevent a fair
trial,"
Lisenba v. California, supra, at
314 U. S. 236.
At the outset, it should be noted that at no point did petitioner
move for a change of venue, although the California Penal Code
explicitly provides that, whenever "a fair and impartial trial
cannot be had in the county" in which a criminal action is pending,
the action may, upon motion of the defendant, be removed to "the
proper court of some convenient county free from a like objection."
[
Footnote 6] Of course,
petitioner's failure to make such
Page 343 U. S. 194
a motion is not dispositive of the issue here, since the state
court did not decide against petitioner on this ground, but rather
rejected on the merits his federal constitutional claim. [
Footnote 7] But, in an effort to
determine whether there was public hysteria or widespread community
prejudice against petitioner at the time of his trial, we think it
significant that two deputy public defenders who were vigorous in
petitioner's defense throughout the trial saw no occasion to seek a
transfer of the action to another county on the ground that
prejudicial newspaper accounts had made it impossible for
petitioner to obtain a fair trial in the Superior Court of Los
Angeles County.
The matter of prejudicial newspaper accounts was first brought
to the trial court's attention after petitioner's conviction, as
one of the grounds in support of a motion for a new trial. At that
time, petitioner's present attorney urged that petitioner had been
"deprived of the presumption of innocence by the premature release
by the District Attorney's office of the details of the
confession," and offered in support of that allegation certain Los
Angeles newspapers published at the time of petitioner's arrest.
The trial court replied as follows:
"[T]he jurors were all thoroughly examined, and all definitely
stated that they would give to the defendant the benefit of the
presumption of innocence. . . . There is nothing to show those
jurors ever saw those papers, or ever read those papers. They were
fully examined so far as defense counsel desired as to any
knowledge or information they might have of the case. [
Footnote 8] "
Page 343 U. S. 195
Petitioner does not challenge this statement of the court.
Indeed, at no stage of the proceedings has petitioner offered so
much as an affidavit to prove that any juror was in fact,
prejudiced by the newspaper stories. He asks this Court simply to
read those stories and then to declare, over the contrary finding
of two state courts, that they necessarily deprived him of due
process. That we cannot do, at least where, as here, the
inflammatory newspaper accounts appeared approximately six weeks
before the beginning of petitioner's trial and there is no
affirmative showing that any community prejudice ever existed or in
any way affected the deliberation of the jury. It is also
significant that, in this case, the confession, which was one of
the most prominent features of the newspaper accounts, was made
voluntarily, and was introduced in evidence at the trial
itself.
We find no substance in petitioner's contention that he was
deprived of effective counsel at a critical point in the case,
namely, when he waived trial by jury on the issue of insanity. The
attorney who consulted with petitioner as to whether he should make
such a waiver was the Public Defender himself, although, prior to
that time, two deputy public defenders had handled the case in
court. The Public Defender took this action because the trial court
,at the conclusion of the trial on the issue of guilt, had
requested that he personally attend the trial on the insanity
issue. [
Footnote 9] We fail to
see how this action harmed petitioner. As the California Supreme
Court found, the Public Defender
"was familiar with the case, having read the daily transcript
and consulted with and advised [his two deputies] and interviewed
witnesses during the trial; [
Footnote 10]"
moreover, before consulting with petitioner on the waiver
question,
Page 343 U. S. 196
he discussed the matter with his two deputies. Thereafter,
petitioner twice stated in open court, in reply to inquiries by the
trial judge, that he wished to waive a jury trial on the issue of
insanity. Furthermore, there was no real question as to
petitioner's sanity. He introduced no additional evidence at the
sanity hearing; instead, the parties stipulated that the sole
evidence would be that adduced at the trial on the issue of guilt,
plus the complete reports of the psychiatrists who had testified at
that trial. [
Footnote 11]
Every psychiatrist who had testified, whether on behalf of
petitioner or on behalf of the prosecution, had reached the
conclusion that petitioner was sane. On the motion for new trial,
when petitioner's present attorney sought to set aside the waiver
of jury trial on the issue of insanity, he offered no new evidence
relating to petitioner's mental state, and did not indicate that
any such evidence was available. We conclude that petitioner
received the full assistance of competent counsel in deciding that
he wanted the insanity issue tried to the court. On that question,
as on all others, he has been afforded "the assistance of zealous
and earnest counsel from arraignment to final argument in this
Court."
Avery v. Alabama, 308 U.
S. 444,
308 U. S. 450
(1940). [
Footnote 12]
Nor can we agree with petitioner that a combination of these
grounds with other circumstances, namely, unwarranted delay in
arraignment and refusal to permit counsel
Page 343 U. S. 197
to consult petitioner during the making of the confession,
amounts to such unfairness as to deny due process. The arraignment
was had within less than twenty-our hours after the arrest. The
officials questioned petitioner only during the two-our period in
the District Attorney's office, described above. The remainder of
that afternoon was devoted to a physical and mental examination, to
which petitioner makes no objection. Counsel called on petitioner
at the county jail at 9:30 p.m. the evening of the arrest;
presumably petitioner remained alone from then until the time of
his arraignment the following morning. Although the California
Supreme Court found that the failure promptly to arraign petitioner
before a committing magistrate was a violation of state law,
[
Footnote 13] that is not
determinative of the issue before us. When this Court is asked to
reverse a state court conviction as wanting in due process, illegal
acts of state officials prior to trial are relevant only as they
bear on petitioner's contention that he has been deprived of a fair
trial, either through the use of a coerced confession or otherwise.
Lisenba v. California, supra, at
314 U. S.
234-235,
314 U. S. 240;
Lyons v. Oklahoma, supra, at
322 U. S. 597,
note 2;
Gallegos v. Nebraska, 342 U. S.
55,
342 U. S. 59
(1951). Upon the facts of this case, we cannot hold that the
illegal conduct of the law enforcement officers in not taking
petitioner promptly before a committing magistrate coerced the
confession which he made in the District Attorney's office or in
any other way deprived him of a fair and impartial trial.
As to the refusal of the prosecutors to admit counsel during
their interrogation of petitioner, counsel stated that he had come
to the District Attorney's office at the request of petitioner's
son-n-aw merely to inquire of petitioner as to his guilt. At no
point did petitioner himself ask for counsel. In light of these
facts, the District
Page 343 U. S. 198
Attorney's refusal to interrupt the examination of petitioner,
which had been proceeding for almost an hour, so that counsel could
make inquiry for petitioner's son-n-aw, does not constitute a
deprivation of due process, either independently or in conjunction
with all other circumstances in this case. While district attorneys
should always honor a request of counsel for an interview with a
client, upon the record before us, there is no showing of
prejudice. As was said in
Adams v. United States ex rel.
McCann, 317 U. S. 269,
317 U. S. 281
(1942):
"If the result of the adjudicatory process is not to be set at
naught, it is not asking too much that the burden of showing
essential unfairness be sustained by him who claims such injustice
and seeks to have the result set aside, and that it be sustained
not as a matter of speculation but as a demonstrable reality."
The judgment of the Supreme Court of California is
Affirmed.
[
Footnote 1]
Petitioner himself did not testify at the trial.
[
Footnote 2]
R. 287-288 (testimony of John D. Gray);
see also R. 210
(testimony of Inspector J. A. Donahoe).
[
Footnote 3]
Three of these psychiatrists had been appointed by the trial
court pursuant to Cal.Penal Code, 1951, § 1027.
[
Footnote 4]
36 Cal. 2d at 623, 226 P.2d at 335.
[
Footnote 5]
36 Cal. 2d at 623, 226 P.2d at 336.
[
Footnote 6]
Cal.Penal Code, 1951, §§ 1033, 1035.
[
Footnote 7]
See Grayson v. Harris, 267 U.
S. 352,
267 U. S. 358
(1925);
International Steel & Iron Co. v. National Surety
Co., 297 U. S. 657,
297 U. S.
665-666 (1936);
Indiana ex rel. Anderson v.
Brand, 303 U. S. 95,
303 U. S. 98
(1938);
Takahashi v. Fish & Game Comm'n, 334 U.
S. 410,
334 U. S. 414,
note 4 (1948).
[
Footnote 8]
R. 361-362.
[
Footnote 9]
The trial court made this request as a result of certain conduct
on the part of one of the deputy public defenders, set forth in the
opinion below at 36 Cal. 2d 628, 226 P.2d 338-339.
[
Footnote 10]
36 Cal. 2d at 628, 226 P.2d at 338.
[
Footnote 11]
At no point has petitioner challenged that stipulation. Indeed,
the stipulation had been entered into by one of the deputy public
defenders, in whom petitioner states he had complete confidence,
prior to the time the court asked the Public Defender to be
personally present at the insanity trial.
[
Footnote 12]
In
People v. Adamson, 34 Cal. 2d
320, 333, 210 P.2d 13, 19 (1949), the Supreme Court of
California had this to say about this same Public Defender and his
office:
"This court can take judicial notice, too, that it would be
difficult to find in California any lawyers more experienced or
better qualified in defending criminal cases than the public
defender of Los Angeles County and his staff."
[
Footnote 13]
Cal.Const., Art. I, § 8.
MR. JUSTICE FRANKFURTER, dissenting.
One of the petitioner's grounds for attacking his conviction is
that the trial lacked fundamental fairness because the district
attorney himself initiated the intrusion of the press into the
process of the trial. Such misconduct, the petitioner contends,
subverted the adjudicatory process by which guilt is determined in
Anglo-axon countries so as to offend what the Due Process Clause of
the Fourteenth Amendment protects. The issue was raised after
verdict, and the Supreme Court of California might have disposed of
the claim by ruling that it had not been made at the stage of the
proceeding required by State law. That court, however, chose not to
do so. It permitted the petitioner to invoke the Due Process
Clause, and thereby tendered a federal constitutional issue, as
this Court recognizes, for our disposition.
Page 343 U. S. 199
The Supreme Court of California thus formulated the issue and
indicated its conception of the allowable standards of fairness
under the Due Process Clause:
"Defendant claims that he was deprived of a fair trial because
the trial court did not protect him from, and the district attorney
fostered, 'public pressure.' The killing and the subsequent search
for defendant received much publicity. Immediately after
defendant's arrest, he was taken to the office of the district
attorney, interrogated, and confessed. The district attorney, even
before defendant completed his statement, released to the press
details of the statement (including defendant's admissions of sex
play with his victim and other children on occasions prior to the
killing) and also announced his belief that defendant was guilty
and sane. At the time of defendant's arrest and at the time of his
trial (which began some 7 weeks later), there was notorious
widespread public excitement, sensationally exploited by newspaper,
radio, and television, concerning crimes against children and
defendant's crime in particular. In these circumstances, defendant
urges, it was impossible for him to obtain an unbiased jury, and
due process requires a new trial even though there is no showing
that any juror was actually influenced by the sensational publicity
and the popular hysteria."
"In connection with his claim of 'public pressure,' defendant
also calls attention to the following statement by one of his
counsel (veteran deputy public defender John J. Hill; defendant was
not then represented by his present private counsel) made during
his closing argument:"
" I wish to make this commentary with reference to just what has
occurred before the Court took the Bench. I refer to the
televising
Page 343 U. S. 200
and the pictures taken of the jury entering the box, and with
counsel. . . . I don't like this added publicity in the case, and
yet we conform, we cooperate with the men, our fellow human beings
in the vocation, and therefore we accept it as part of what we have
to expect in a case that has attracted so much attention, that has
been so widely publicized, and concerning which there have been
utterances over the radio, in the public press, which have unduly
accentuated the importance of this case. . . . [W]e shall not be
influenced in the slightest degree in that calm deliberation,
dispassionate discussion, and arriving at a verdict under the
institutions under which we live, and concerning which we are
proud: the American way of the conduct of a trial."
"It seems that the traditional concept of the 'American way of
the conduct of a trial,' particularly a trial for a sordid criminal
offense such as that of defendant, includes both the aspects
mentioned so understandingly by Mr. Hill: on the one hand,
over-timulation, by mass media of communication, of the usual
public interest in that which is gruesome; on the other hand, a
trial by a judge and jury immune from the public passion."
People v. Stroble, 36 Cal. 2d
615, 620-621, 226 P.2d 330, 333, 334.
Thus, on the California court's own reading of the record,
circumstances tending to establish guilt and adduced outside the
courtroom before the trial had even begun were avidly exploited by
press and other media, actively promoted by the prosecutor. The
State court sanctioned this as not only permissible, but as an
inevitable ingredient of American criminal justice. That sanction
contradicts all our professions as to the establishment of guilt on
the basis of what takes place in the courtroom, subject to judicial
restrictions in producing proof and in the general
Page 343 U. S. 201
conduct of the proceedings. Jurors are, of course, human beings,
and, even with the best of intentions in the world, they are, in
the well known phrase of Holmes and Hughes, JJ., "extremely likely
to be impregnated by the environing atmosphere."
Frank v.
Mangum, 237 U. S. 309,
237 U. S. 345,
237 U. S. 349.
Precisely because the feeling of the outside world cannot, with the
utmost care, be kept wholly outside the courtroom, every endeavor
must be taken in a civilized trial to keep it outside. To have the
prosecutor himself feed the press with evidence that no
self-estrained press ought to publish in anticipation of a trial is
to make the State itself, through the prosecutor, who wields its
power, a conscious participant in trial by newspaper, instead of by
those methods which centuries of experience have shown to be
indispensable to the fair administration of justice. Science, with
all its advances, has not given us instruments for determining when
the impact of such newspaper exploitation has spent itself or
whether the powerful impression bound to be made by such inflaming
articles as here preceded the trial can be dissipated in the mind
of the average juror by the tame and often pedestrian proceedings
in court. Moreover, the Supreme Court of California found that, at
the time of the petitioner's trial,
"there was notorious widespread public excitement, sensationally
exploited by newspaper, radio, and television, concerning crimes
against children, and defendant's crime in particular."
36 Cal. 2d
615, 226 P.2d 334.
And so I cannot agree to uphold a conviction which affirmatively
treats newspaper participation instigated by the prosecutor as part
of "the traditional concept of the
American way of the conduct
of a trial.'" Such passion as the newspapers stirred in this case
can be explained (apart from mere commercial exploitation of
revolting crime) only as want of confidence in the orderly course
of justice. To allow such use of the press by the prosecution as
the California court here left undisciplined implies
Page 343 U. S.
202
either that the ascertainment of guilt cannot be left to the
established processes of law or impatience with those calmer
aspects of the judicial process which may not satisfy the natural,
primitive, popular revulsion against horrible crime, but do
vindicate the sober second thoughts of a community. If guilt here
is clear, the dignity of the law would be best enhanced by
establishing that guilt wholly through the processes of law,
unaided by the infusion of extraneous passion. The moral health of
the community is strengthened by according even the most miserable
and pathetic criminal those rights which the Constitution has
designed for all.
As to one other branch of the Court's opinion, I must enter a
caveat. This concerns the legal significance of petitioner's first
confession, the one made to the district attorney. The California
Supreme Court disposed of the claim that this was a coerced
confession by assuming that it was, but finding that the fact was
immaterial because of later, so-alled voluntary confessions. I
agree with my brethren that this view disregards our decision in
Malinski v. New York, 324 U. S. 401. But
I cannot agree that, despite the refusal of the California Supreme
Court to determine affirmatively the legal character of this first
confession, this Court may do so here on its own independent
interpretation of the facts. That conclusion does not at all follow
from the fact that we make such a determination at least upon the
undisputed evidence, when the State court finds the confession to
be free of constitutional defect. The question whether or not a
confession is coerced involves a complex judgment upon facts
inevitably entangled with assumptions and standards which are part
and parcel of the ultimate issue of constitutionality.
See
Baumgartner v. United States, 322 U.
S. 665,
322 U. S.
670-671. The finding of "fact" that a confession is
voluntary may involve the application of improper standards to the
evidence, and thus the denial of a constitutional
Page 343 U. S. 203
right of the accused. But a wholly different situation is
presented when a State court concludes that coercion entered into
the inevitably complicated factors included in the totality of
circumstances that constitutes a confession.
Moreover, items of evidence may be undisputed, but not their
meaning. "Facts," except the most rudimentary, are not like members
of a lodge who identify themselves by badges. When a State court
has denied an asserted constitutional right, the State court cannot
foreclose this Court from considering the federal claim merely by
labeling absence of coercion a "fact." But, if a State court,
reading the record in the light of its intimate knowledge of local
police and prosecutorial methods, should conclude that a confession
was coerced, I cannot believe that this Court would set aside that
appraisal and decide independently that the confession was wholly
free and self-illed. It is not fortuitous that all the cases in
which this Court has indicated that it was not foreclosed by the
determination of the State court have been cases in which the State
rejected the federal constitutional claim by finding the confession
voluntary.
Since, as I believe, an affirmative determination of the
California Supreme Court that the confession was coerced would not
and should not be reexamined here, I would, on this aspect of the
case, remand for that court to say whether or not, in its judgment
and not as an assumption, the first confession was involuntary.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
My views on the illegality of confessions obtained between the
time of arrest and arraignment are contained in
Watts v.
Indiana, 338 U. S. 49,
338 U. S. 56-57;
Turner v. Pennsylvania, 338 U. S. 62,
338 U. S. 66-67;
Harris v. South Carolina, 338 U. S.
68,
338 U. S. 71-73.
The practice of obtaining confessions
Page 343 U. S. 204
prior to arraignment breeds the third degree and the
inquisition. As long as it remains lawful for the police to hold
persons incommunicado, coerced confessions will infect criminal
trials in violation of the commands of due process of law.
The facts of this case illustrate the evils of this police
practice. While the defendant was being held by the police prior to
his arraignment, a lawyer tried to see him. The police refused the
lawyer's repeated requests. It was only after a confession was
obtained that the lawyer was allowed to talk with the prisoner.
This was lawless conduct, condemned by the Supreme Court of
California. It was not only lawless conduct; it was conduct that
produced a confession.
This confession as well as subsequently obtained confessions
were used at the trial. The fact that the later confessions may
have been lawfully obtained or used is immaterial. For once an
illegal confession infects the trial, the verdict of guilty must be
set aside no matter how free of taint the other evidence may be.
Malinski v. New York, 324 U. S. 401.
Moreover, the fact that the accused started talking shortly
after he was arrested and prior to the time he was taken before the
District Attorney does not save the case. That talk was accompanied
or preceded by blows and kicks of the police, and the Supreme Court
of California assumed that it was part and parcel of the first
confession obtained through "physical abuse or psychological
torture or a combination of the two."