Malinski v. People of State of New York

Citation324 U.S. 401,89 L.Ed. 1029,65 S.Ct. 781
Decision Date26 March 1945
Docket NumberNo. 367,367
CourtUnited States Supreme Court

Messrs. John J. Fitzgerald and David F. Price, both of Brooklyn, N.Y., for petitioners.

Mr. Solomon A. Klein, of Brooklyn, N.Y., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Malinski and Rudish were convicted along with one Indovino of the murder of Leon Fox, a police officer who, late at night, was escorting a manager of a theatre to a bank depository. The details will be found in 292 N.Y. 360, 55 N.E.2d 353. There were no eye witnesses to the crime who could identify the robbers. Malinski was implicated by various witnesses—by Spielfogel, an old friend and a criminal serving a sentence of thirty to sixty years in Sing Sing; by Malinski's girl friend; by Malinski's brother-in-law. Each testified that Malinski confessed the crime to him or her. The confessions to the girl friend and to the brother-in-law were made a few hours after the crime and were merely that Malinski had shot a cop; but the confession to Spielfogel disclosed in detail the planning and execution of the crime. Malinski denied making these confessions. Yet as the New York Court of Appeals pointed out (292 N.Y. page 370, 55 N.E.2d page 357) those confessions and other evidence of the State were sufficient, if believed, to support the conviction, wholly apart from another confession around which the present controversy turns. But the circumstances under which the latter confession was obtained raised the substantial federal question which prompted us to grant the petition for a writ of certiorari, 323 U.S. 694, 65 S.Ct. 74.


Malinski was arrested while on his way to work on the morning of Friday, October 23, 1942. The police did not then arraign him but took him to a room in the Bossert Hotel in Brooklyn where he arrived about 8 A.M. He was immediately stripped and kept naked until about 11 A.M. At that time he was allowed to put on his shoes, socks and underwear and was given a blanket in which to wrap himself. He remained that way until about 6 P.M. Malinski claims he was beaten by the police during that period. The police denied this. There was no visible sign of any beating, such as bruises or scars; and Malinski made no complaint to the judge on arraignment nor to the jail authorities where he was later held. Sometime during Friday morning Spielfogel was brought to the hotel. He and Malinski were put alone together in a room sometime that afternoon. Shortly after their conference—apparently around 5:30 P.M. or 6:00 P.M.—Malinski confessed to the police. After it was made Malinski was allowed to dress. Malinski was kept at the hotel that night and the next three days. The record does not show exactly how long and frequent the questioning was after the first confession. But it is clear that Malinski was questioned in the early hours of Saturday, the 24th and at other times during that day. He was further questioned on Sunday, the 25th, and taken with Spielfogel from the hotel to the scene of the crime where he identified several places which had a relationship to the commission of the crime and where he pointed out how the crime was executed. On Monday, the 26th, he was taken from the hotel to the police garage where he identified the automobile used in the robbery. At about 5:00 P.M. on Monday he was taken to a police station and questioned. On Tuesday morning, October 27th, about 2 A.M. he made a confession at the police station. That confession was introduced at the trial. Shortly thereafter—about 4:00 A.M.—he was booked and put in a cell and soon arraigned.

The trial court held a preliminary hearing on the voluntary character of the confession of October 27th before allowing it to be introduced in evidence. There is a question in the case whether the confession of October 23rd as well as that of October 27th was submitted to the jury, a question to which we will return. It is sufficient here to note that the trial court charged the jury that a confession should not be considered by them unless they found beyond a reasonable doubt that it was voluntary. And they were told that although the delay in arraignment was not conclusive, they might consider it in passing on the question of voluntariness. The Court of Appeals sustained the judgment of conviction by a divided vote.1 But the question whether there has been a violation of the due process clause of the Fourteenth Amendment by the introduction of an involuntary confession is one on which we must make an independent determination on the undisputed facts. Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192.

If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant. Ashcraft v. Tennessee, supra, page 154 of 322 U.S., page 926 of 64 S.Ct., 88 L.Ed. 1192. And if it is introduced at the trial, the judgment of conviction will be set aside even though the evidence apart from the confession might have been sufficient to sustain the jury's verdict. Lyons v. Oklahoma, 322 U.S. 596, 597, 64 S.Ct. 1208, 1210, 88 L.Ed. 1481.

If the evidence alone is considered, there is serious doubt whether the confession made on the late afternoon of Fri- day, October 23rd (the first day of Malinski's detention) was admissible under the rule of Chambers v. Florida, Lisenba v. California, and Ashcraft v. Tennessee, supra. If the confession had been the product of persistent questioning while Malinski stood stripped and naked, we would have a clear case. But it was not. Malinski was stripped when he arrived at the hotel so that he might be examined for bullet wounds.2 He remained in that condition several hours—much longer than any such physical examination could possibly justify. But it does not appear that he was subjected to more than occasional questioning during tht period. No confession was obtained from him at that time. He said he was beaten; but that was disputed. And the assertion has such a dubious claim to veracity that we lay it aside. In any event, he soon had his shoes, socks, and underwear back on and a blanket in which to wrap himself. He complained of that treatment in his testimony. The police justified it with the dubious explanation that it was to make certain that Malinski did not escape. Yet the record does not show any persistent and incessant—let alone gruelling —questioning by the police while Malinski was only partially clothed. There are many gaps in the chronological narrative of what transpired that day. But several circumstances stand out. Malinski was held incommunicado; he was not allowed to see a lawyer, though he asked for one, and he was not allowed to see friends, with one exception.3 That exception was Spielfogel.4 As we have noted, he and Malinski had a private conference that afternoon. Malinski was told that Spielfogel was there. Malinski asked to see him. Spielfogel's version of what transpired varies from Malinski's. The former says that Malinski told him the police knew so much that Malinski figured he 'might as well go out there and tell them the rest.' Malinski said tht he asked Spielfogel, 'What are you doing with me?'; and that Spielfogel replied, 'don't let them hit you. You know you didn't do it. Go out and say I told you to tell the truth.' Shortly thereafter Malinski made his confession of October 23rd. If that evidence alone is not sufficient to show that that confession was coerced, the comments of the prosecutor place it beyond doubt. For in his summation to the jury he made certain statements which the Court of Appeals said were 'indefensible' (292 N.Y. page 373, 55 N.E.2d page 358) and which we think are sufficient to fill in any gaps on the record before us and to establish that this confession was not made voluntarily. He said that Malin- ski 'was not hard to break'; that 'He did not care what he did. He knew the cops were going to break him down.' And he added (292 N.Y. 360, 55 N.E.2d 364):

'Why this talk about being undressed? Of course they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology—let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking.'

If we take the prosecutor at his word, the confession of October 23rd was the product of fear—one on which we could not permit a person to stand convicted for a crime.

But it is said that this coerced confession was not introduced in evidence, that it was submitted to the jury only insofar as it threw light on the voluntary character of the subsequent confessions, and that under the rule of Lyons v. Oklahoma, supra, page 601 of 322 U.S., page 1211 of 64 S.Ct., 88 L.Ed. 1481, the adequacy of that instruction to the jury is solely for the state courts to determine. We do not think, however, that Lyons v. Oklahoma, supra, fits this case.

The confession of October 23rd was oral. Its details were not put in evidence. But Spielfogel, a witness for the prosecution, adverted to it in his testimony, saying that Malinski told 'everything' at that time. A police officer testified on behalf of the prosecution to the same effect. The prosecutor referred to it in his summation in language which we have already quoted. He added that 'Six o'clock in the evening after he (Malinski) was picked up, he told the whole thing'. When the confession of October 27th (which was a detailed confession taken down by a stenographer) was offered in evidence, a preliminary hearing was had. That hearing covered the voluntary character of the October 23rd confession as well as the October 27th confession. The trial court in its charge to the jury reviewed...

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