O'TOOLE v. Scafati, 6982.

• Citation: 386 F.2d 168
• Decision Date: 01 December 1967
• Docket Number: No. 6982.,6982.
• Parties: Edward P. O'TOOLE, Petitioner, Appellant, v. Palmer C. SCAFATI, Superintendent of the Massachusetts Correctional Institution at Walpole, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

386 F.2d 168 (1967)

Edward P. O'TOOLE, Petitioner, Appellant, v. Palmer C. SCAFATI, Superintendent of the Massachusetts Correctional Institution at Walpole, Respondent, Appellee.

No. 6982.

United States Court of Appeals First Circuit.

Heard November 6, 1967.

Decided December 1, 1967.

Certiorari Denied March 11, 1968.

Chester C. Paris, Wakefield, Mass., with whom Joseph J. Balliro, Boston, Mass., was on brief, for appellant.

Brian E. Concannon, Sp. Asst. Atty. Gen., with whom Elliot L. Richardson, Atty. Gen., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Denied March 11, 1968. See 88 S.Ct. 1109.

ALDRICH, Chief Judge.

Petitioner was convicted in the Massachusetts courts of fraudulent conversion, obtaining signatures under false pretences, larceny, and uttering forged instruments. Commonwealth v. O'Toole, 1967 Mass.Adv.Sh. 149, 223 N.E.2d 87. He brought habeas corpus proceedings in the district court, principally asserting that coercively obtained evidence had been admitted against him. The facts were stipulated. The court dismissed the petition, and he appeals.

While city manager of the City of Revere, petitioner was invited to the local district attorney's office and asked by an assistant for a written explanation of overexpenditures. "He wanted him petitioner to give him a reason why he should not prosecute." Though he promised to do so, petitioner never provided such a statement, but at later interviews in his own office he told a representative of the district attorney that he had handled certain matters and destroyed certain papers. These statements were introduced at the trial. Petitioner was never warned or officially informed of his constitutional rights.

Petitioner's contention that he had been coerced is a singular one. Having been asked to explain why he should not be prosecuted, he was afraid that if he did not make explanation, viz., make exculpatory statements, "he would be prosecuted and as the result of the prosecution would be fired or suspended."

We agree with the district court's finding that petitioner's statements were not involuntary under Clewis v. State of Texas, 1967, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423, and related cases. Though petitioner was not told of his rights by his interlocutors, he was an experienced public official, and he had time between discussions to seek advice. He was neither maltreated nor taken into custody, and the statements were elicited not in some alien environment, but in his own office. We might also remark that the coercion petitioner alleges was to make exculpatory statements. Petitioner refused to give the written statement requested, and made clearly inculpatory statements. Although this is not basic to our decision, we find it difficult to see the causal relationship between the alleged coercion and what eventuated, or that petitioner was coerced at all. Cf. Schlinsky v. United States, 1 Cir., 1967, 379 F.2d 735, 738, cert. denied 10/23/67, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265; Vitali v. United States, 1 Cir., 383 F.2d 121, 10/11/67.

This case is not governed by Garrity v. State of New Jersey, 1967, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. There a public employee, a policeman, was told when questioned that if he claimed the Fifth...