Bradford v. Johnson

• Decision Date: 14 July 1972
• Docket Number: Civ. A. No. 37176.
• Citation: 354 F. Supp. 1331
• Parties: Lionel BRADFORD, Petitioner, v. Perry JOHNSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Michigan

354 F. Supp. 1331

Lionel BRADFORD, Petitioner, v. Perry JOHNSON, Warden, Respondent.

Civ. A. No. 37176.

United States District Court, E. D. Michigan, S. D.

July 14, 1972.

David R. Hood, Clinical Advocacy Program, Detroit, Mich., for petitioner.

Frank J. Kelley, Atty. Gen., by J. Ronald Kaplansky, Asst. Atty. Gen., Crim. Div., Office of Atty. Gen., Lansing, Mich., for respondent.

OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

KENNEDY, District Judge.

Petitioner, Lionel Bradford, is presently incarcerated in the State Prison for Southern Michigan, serving a sentence of 20 to 40 years for assault with intent to commit murder imposed by the Circuit Court for Berrien County, Michigan, on February 6, 1963, following conviction by jury trial.

Prior to seeking a writ of habeas corpus with this Court pursuant to Section 2241, Title 28, United States Code, petitioner had exhausted his State remedies as required by Section 2254, Title 28, United States Code, including application for leave to appeal to the Michigan Supreme Court, which was denied October 1, 1968 (Justice Thomas M. Kavanaugh dissenting). He also sought direct appeal from the Michigan Supreme Court to the Supreme Court of the United States. His application for certiorari was denied. See Bradford v. Michigan, 394 U.S. 1022, 89 S.Ct. 1638, 23 L.Ed.2d 48 (1968), three justices dissenting.

Petitioner's conviction and sentence are alleged to be in violation of the Fourteenth Amendment because he was deprived of due process of law both before and during his trial.

The basic facts as alleged by petitioner are admitted to be true by the State of Michigan and, indeed, were fully admitted to at the time of petitioner's trial and appeals in the State courts.

On November 5, 1962, two Benton Harbor, Michigan, police officers were shot and seriously wounded as they attempted to investigate a robbery. The day after the shooting the Benton Harbor police arrested one LeRoy Payne who was questioned for approximately 24 hours during which he was denied food, water and sleep, was physically abused and beaten about the face, sides and genitals, was threatened and degraded by racial epithets, and was threatened with the possible arrest of his wife and removal of his children from his home. He was promised an end to this treatment upon his confessing to the crime and naming his accomplice. A portion of this mistreatment was inflicted at the Benton Harbor police station by Benton Harbor police and continued at the Berrien County sheriff's office by Berrien County sheriff's officers. During this period he was arraigned by a municipal judge who was aware of the mistreatment, since Payne's face was cut and bruised, but did nothing to stop it. Prior to his arraignment, Payne was also visited by an assistant county prosecutor, a Mr. Lake, who told Payne he'd better tell the truth and that if he tried to fight this, he (Lake) would arrest and prosecute his wife and take his children away from their home. LeRoy Payne finally confessed and implicated petitioner, Lionel Bradford.

Despite the fact that Payne confessed, his beatings were not over; he suffered constant fear and punishment for at least another two or three days.

After Payne confessed, he was placed in a cell, where almost immediately he fell asleep, losing track of time. Shortly, or at length, he was abruptly awakened and removed from the cell by some State troopers who took him to the interrogation room. They tried to convince Payne that they were not working on the case, but were just curious about the crime. They asked him to tell what happened. Payne, not understanding what they wanted from him, insisted he had told all there was to tell and had nothing more to say. At this point, he was thrown against a table and held there while another trooper began squeezing his testicles until Payne recounted his story told earlier to the sheriff. When Payne completed his story, one trooper left the interrogation room. Another remained with Payne, telling him that he did not want to hurt him; he just wanted to know everything that had happened. While the trooper was talking, Payne could hear a tape recording of his confession to the troopers being played back. Afterward, he was returned to his cell.

On Wednesday or Thursday, Payne was taken down to the sheriff's department to see Lionel Bradford. His conversation with Bradford (which was electronically overheard) contained essentially a request by Bradford that Payne name someone else so Bradford could go home. To this request, Payne answered that he had taken all the physical punishment he could stand; but upon reconsideration, Payne agreed to mention the name "John Perkins" as being his accomplice. Payne was returned to his cell in the county jail. The next day, Detective Smith and another detective came to question Payne. They told Payne that he was going to tell the truth and that they didn't want any lies. Payne reassured them he had told the truth but they did not believe him. One detective grabbed him and held him down while the other grabbed his testicles and began to squeeze. The detectives mentioned the name "Perkins" and wanted to know why Payne had suggested it to Bradford. Payne told them that the only reason he had mentioned it was because Bradford kept begging Payne to call another name. After this clarification, Payne was returned to his cell. This incident was the last claimed abuse, which the State admits, although it admits he continued to remain until trial, and indeed throughout trial and for a period subsequent thereto, in the custody of the sheriff's department. Payne now claims that during the trial he was purposefully given opportunities to escape so that he could be shot.

At petitioner's trial, which began on February 4, 1963, the principal witness against him was LeRoy Payne, who had pled guilty to the same charge and was awaiting sentence. LeRoy Payne was at that time under the custody and control of the same Berrien County law enforcement officials who had tortured and abused him and to whom he was to be returned immediately after his testifying in petitioner's trial. Petitioner objected to Payne's testimony on the grounds that it was the result of coercion and torture and was therefore unreliable and incompetent. The testimony was allowed over petitioner's objection. Petitioner was subsequently found guilty by the jury and sentenced on February 6, 1963. (Payne was not sentenced until March 8, 1963).

After his transfer from the Berrien County jail, and while incarcerated in the Ionia State Reformatory, LeRoy Payne recanted, signing an affidavit on August 31, 1965, to the effect that his testimony at petitioner's trial was untrue and was given only because of fear for his personal safety and that of his family.

LeRoy Payne filed a Motion for New Trial claiming his guilty plea was coerced. This was denied. He appealed, and the Michigan Court of Appeals remanded to the Berrien Circuit Court ordering it to hold an evidentiary hearing to discover whether Payne's confession was coerced. On June 5, 1967, Judge Burns (having replaced Judge Hadsell who had presided at Bradford's trial, as well as accepted Payne's plea) suppressed LeRoy Payne's confessions, admissions and statements made to the police from November 5, 1963 to December 14, 1963, upon a finding by the court that all such statements were the result of coercion and were not made voluntarily. It is also noted that a pretrial motion was made at Payne's second trial which requested that all statements Payne made against interest at Bradford's trial also be suppressed. This motion was granted, though the reasons for which it was granted are not known to this Court. Payne was then granted a new trial. Subsequently, a motion to change venue was also granted.

Petitioner argues that the use of Payne's testimony under the above circumstances is a denial of due process under the Fourteenth Amendment. It is conceded by the State that Payne's testimony was crucial to petitioner's conviction. In denying petitioner's delayed motion for new trial the State trial judge stated:

I would say if they didn't have Payne's testimony they would probably not have convicted him petitioner Bradford . . . I don't think there is any doubt about that.

Respondent, the State of Michigan, argues that no due process issue is raised but rather one of the credibility of the in-court testimony of Payne, a fact which the jurors were competent to judge.

The Constitutional challenge to the use of Payne's testimony under the circumstances here is two-fold. First, it is asserted that since due process does not permit a person to be convicted upon his own coerced confession it should not allow him to be convicted upon a confession wrung from another by coercion. This is the proposition stated by Justice Rutledge in his dissenting opinion in Malinski v. New York, 324 U.S. 401, 431, 65 S.Ct. 781, 796, 89 L.Ed. 1029 (1945) when he concluded:

The effect is not different because . . . the torture is applied to other witnesses but not to the accused.

The majority of the Court in that case did not reach the issue involved here since they found, as a matter of fact, that the coerced confession of the one defendant had not been used against the other defendant.

This issue has never been squarely presented to the Supreme Court for consideration and there is no controlling Sixth Circuit case on point. This Court is faced, then, not with an altogether novel issue, but one in which there is no authoritative case to aid in resolution of the basic question, i. e., whether the due process clause offers protection to defendants incriminated by a witness who was tortured to gain the incriminating statements similar to that provided by the Fifth Amendment and the due process clause to defendants who are themselves tortured into self-incrimination.

Due process is clearly invoked where coercion is used against a defendant...