United States v. Denno

• Decision Date: 25 January 1963
• Docket Number: No. 387,Docket 27584.,387
• Citation: 313 F.2d 364
• Parties: UNITED STATES of America ex rel. Francis Henry BLOETH, Relator-Appellant, v. Wilfred DENNO, as Warden of Sing Sing State Prison, Ossining, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

313 F.2d 364 (1963)

UNITED STATES of America ex rel. Francis Henry BLOETH, Relator-Appellant, v. Wilfred DENNO, as Warden of Sing Sing State Prison, Ossining, New York, Respondent-Appellee.

No. 387, Docket 27584.

United States Court of Appeals Second Circuit.

Argued June 15, 1962.

Submitted December 5, 1962.

Decided January 25, 1963.

Certiorari Denied April 22, 1963.

Leon B. Polsky, Legal Aid Society, New York City (Anthony F. Marra, New York City, on the brief), for relator-appellant.

Irving L. Rollins, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), and Charles T. Matthews, Asst. Dist. Atty. of Suffolk County, N. Y. (Bernard C. Smith, Dist. Atty. of Suffolk County, on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.

Argued June 15, 1962 to a Panel.

Submitted to the In Banc Court December 5, 1962.

Certiorari Denied April 22, 1963. See 83 S.Ct. 1112.

SMITH, Circuit Judge, with whom CLARK, WATERMAN, KAUFMAN, HAYS and MARSHALL, Circuit Judges, concur.

Appellant, convicted of murder in the first degree in the County Court for the County of Suffolk, New York, and sentenced on May 18, 1960 to be executed, judgment affirmed by the New York Court of Appeals March 2, 1961, People v. Bloeth, 9 N.Y.2d 211, 213 N.Y.S.2d 51, 173 N.E.2d 782, remittitur amended 9 N.Y.2d 823, 215 N.Y.S.2d 769, 175 N.E. 2d 347, certiorari denied October 9, 1961, 368 U.S. 868, 82 S.Ct. 98, 7 L.Ed.2d 65, petitioned in the United States District Court for the Southern District of New York for a writ of habeas corpus. Show cause order was granted, but the petition was withdrawn without prejudice January 9, 1962 in order to move for reargument in the New York Court of Appeals. Reargument was denied, People v. Bloeth, 11 N.Y.2d 768, 227 N.Y.S.2d 18, 181 N.E. 2d 763, February 22, 1962. Applications for stay pending petition for writ of certiorari were denied by Judge Fuld March 7, 1962 and by Mr. Justice Harlan March 19, 1962, Bloeth v. State of New York, 82 S.Ct. 661, 7 L.Ed.2d 780. Application to the District Court for the Southern District of New York for writ of habeas corpus was denied April 3, 1962. Leave to reargue and to amend the petition were granted and on reargument the petition for writ of habeas corpus was denied May 9, 1962. From the orders of April 3 and May 9 by Cashin, D. J., relator appeals, claiming that he was entitled to a hearing on his claims that his confession was involuntary and procured in violation of his right to be represented by competent counsel devoted solely to the interests of his client, and upon the ground that upon the state court record it appears that relator was denied a trial by a fair and impartial jury in violation of his rights under the Fourteenth Amendment. The panel which heard the original arguments on the appeal, Chief Judge Lumbard, Judge Marshall and the writer, considered that the importance of the case as a guide for the District Courts in the discharge of their high responsibilities in the habeas corpus jurisdiction and particularly in the application of the principles recently set down in Irvin v. Dowd, 1961, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, to the facts of cases such as this, make it appropriate for in banc consideration. A majority of the full Court finds this case within those principles and directs the writ to issue.

Between July 31, 1959 and August 8, 1959, there occurred three nighttime murders of lone attendants at small business establishments in Suffolk County, New York. In each instance it appeared that robbery was perpetrated and the victim killed in cold blood by .32 caliber pistol shot to prevent identification of the robber. After the third killing, a witness came forward to tell of the sale of a .32 pistol to appellant prior to the third shooting, and apparently also of statements by appellant admitting the earlier two.

Bloeth was picked up and questioned, denying implication in the murders. Holsters identified as sold him with the pistols referred to were found at Bloeth's residence. He was allowed to see counsel, from the firm of one Siben, in whose office Bloeth's sister was employed. After four days of intermittent questioning, and instruction from Siben that he need not make any statement, but advice from Siben and Bloeth's mother and wife that he should tell the truth and cooperate with the police, Bloeth confessed the Currier murder, for which he was tried, the other two robbery murders, a rape, an assault with a claw-hammer on an elderly woman, and at least one other armed robbery. Bloeth pointed out to the police where he had disposed of the gun used in the Currier murder. The gun was located and its identity later confirmed by ballistic tests. Prior to the confession Siben informed the District Attorney that Bloeth was in his opinion insane and that he would confess. Siben did not remain with Bloeth to hear the confession to the authorities.

The communities in Suffolk County, small towns and cities in transition from semi rural to industrial and suburban residential areas, had been thoroughly alarmed at the murders and the presence of a "mad killer" in their midst. The press gave front page space and scare headlines to the killings, the search for the killer, and the fears of the people. The press received and widely published news of Bloeth's confession from the District Attorney's office, from the police, from Siben, and from Bloeth's wife, of the contemplated defense of insanity from Siben and from the District Attorney of the District Attorney's belief that Bloeth was sane and must get the chair.¹ Prior to the confession, while Bloeth was being held for questioning, the District Attorney was quoted in the press as stating that the method of the stickup was "characteristic of the sadistic nature of Bloeth". The press reported that Bloeth "flunked" lie detector tests given by the police in New York City. After the confession, records from Woodbourne Prison were released through the press, describing Bloeth as "hostile, sadistic" with a "deep hatred of discipline" and an admitted narcotic user.

One Newsday article carried the headline "`Joker' in law, Bloeth could go free again", with comment on the New York "archaic sanity law" pointing out a claimed possibility of a jury verdict of acquittal on the grounds of temporary insanity — "Result: The defendant would be free — perhaps to kill again." The newspapers, particularly Newsday and other local papers, as well as New York papers and radio and T.V. news programs, gave extensive coverage to these statements. Newsday, a daily, had a circulation of 100,000, the Long Island Daily Press 35,000 in the county with a population of about 600,000.

When the case was assigned for trial, under New York practice motion was made in the Appellate Division for change of venue by Clarke, formerly of Siben's office, who had taken over the defense. The results of a survey purporting to show widespread knowledge of the case from the publicity, the formation of opinions of guilt and an opinion by a majority of those questioned that a fair trial was impossible in Suffolk County, were submitted to the Court.² The Court however, was apparently of the opinion that a fair trial could be had without change of venue and denied the motion.

Of the 16 jurors seated in the case as regular and alternate jurors, only one had not read of the case. Of the 16, eight stated that they had formed no opinion of guilt or innocence, the other eight stated that they had formed an opinion of guilt, but expressed themselves in various terms as being able to change the opinion or to render an impartial verdict.³ Of 80 other jurors drawn, 42 were excused on various grounds without interrogation as to knowledge of the case from the publicity. Of the remaining 38, 36 had read about the case, 2 had not, 31 stated that they had formed an opinion of guilt or innocence, 5 stated they had formed no opinion. In every case where the talesmen were asked to specify which way the opinion went, it was toward Bloeth's guilt.⁴

The trial commenced April 19, 1960. Five trial days were consumed in obtaining a jury, ten in presenting evidence. The confession was admitted in evidence. Psychiatrists testified for both sides on a defense of insanity. Bloeth himself took the stand, to tell of the history of his behavior, his crimes and incarcerations from an early age. He denied any memory of the Currier murder or of making the confession; or of the occasion of assaulting a woman with a hammer. The jury after a total of some 13 hours deliberation, brought in a verdict of guilty on the first count, murder in the first degree, calling for a mandatory death sentence, not guilty on the second count of felony murder, and guilty on the third count of robbery.

Petitioner exhausted his state remedies, including petition for certiorari to the Supreme Court of the United States, and the case is properly before us on the appeal from the two orders of the District Court denying the writ of habeas corpus.

The final test in a case such as this is whether the federal judiciary, which is the final arbiter with respect to any alleged deprivation of constitutional rights involving mixed questions of law and fact, Brown v. Allen, 1953, 344 U.S. 443, 507, 73 S.Ct. 397, 97 L.Ed. 469 (opinion of Frankfurter, J.), is satisfied that the jurors were in fact capable of, and did, lay aside their preconceived judgment, and render a verdict solely on the evidence presented in court. Since the District Court in the case at bar acted solely on a review of the available record, its findings are not based in any degree on demeanor evidence. Cf. Orvis v. Higgins, 2 Cir., 1950, 180 F.2d 537, cert. denied, 1950, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595. If these findings are clearly...