United States v. Burke

• Decision Date: 12 April 1950
• Docket Number: Misc. No. 1344.
• Citation: 93 F. Supp. 490
• Parties: UNITED STATES ex rel. MAYO v. BURKE.
• Court: U.S. District Court — Eastern District of Pennsylvania

93 F. Supp. 490

UNITED STATES ex rel. MAYO v. BURKE.

Misc. No. 1344.

United States District Court. E. D. Pennsylvania.

April 12, 1950.

Charles F. G. Smith, Joseph N. Bongiovanni, Jr., Philadelphia, Pa., for petitioner.

Henry M. Hipple, Lock Haven, Pa., for respondent.

KIRKPATRICK, Chief Judge.

The relator, Harry Mayo, is serving a life term for murder. He was convicted in the Court of Oyer and Terminer of Clinton County, Pennsylvania, on February 13, 1935, of killing a policeman in the city of Lock Haven on August 22, 1934. He petitioned this Court for a writ of habeas corpus, alleging that a confession which was put in evidence at his trial had been obtained under circumstances which made its use a violation of the Due Process Clause. A rule to show cause was issued and a hearing was had at which the relator testified and evidence was produced both by him and the Commonwealth. The relevant facts are found as follows:

Mayo was arrested without a warrant in Philadelphia on December 28, 1934, a little more than four months after the murder. He was held overnight in the police station in Philadelphia and on the following day was transferred to the State Police barracks at Harrisburg.

At the time of his arrest Mayo was an escaped prisoner and a parole violator. He had served a term for burglary in the Western State Penitentiary and had been paroled on December 3, 1933, for a period of two and a half years. A few months later he was arrested on charges involving a fresh series of burglaries. Subsequently, on August 7, 1934, he escaped from the jail at Lewistown, where he had been confined awaiting trial. It is stipulated (apparently on the basis of the police blotter) that he was arrested "on a charge of murder, as a fugitive from justice, and as a parole violator" but nothing was said to him to suggest that he was charged with or suspected of murder.

At Harrisburg he was lodged in a detention cell in the basement of the police barracks and was kept there until January 7, for a period of between nine and ten days, when he was taken to Lock Haven. While at Harrisburg he was questioned by police officers. From December 29 to January 7 he was questioned by them a total of 14 hours as follows: December 31, 11 A.M. until 4 P.M., with an hour intermission for lunch, four hours; January 2, 7 P.M. to 11 P.M., four hours; January 3, three hours in the daytime; and January 4, three hours also in the daytime. In addition there was a three hour interview with the District Attorney at Lock Haven in which police officers took part on January 7 which involved some further questioning but which was mainly a discussion of the terms upon which a plea of guilty, if offered, would be accepted and the court procedure involved.

The interrogations by the police, therefore, took place on four different days, in the course of a nine day confinement. They do not seem to me to have been unduly protracted. Each examination was conducted for the most part by a single officer, and, although others took part briefly now and then, it was in no sense a "questioning in relays". There was no harsh, menacing or abusive language. Mayo stated at his trial that he had been treated "very courteously". He does not deny that he told the police that he knew his "constitutional rights", whatever that may have meant to him, or that he was advised that he did not have to answer any questions unless he wanted to.

The first two interrogations were of a general nature having to do with his personal history, his criminal record, and his whereabouts at various times and were more or less centered upon various burglaries which had occurred in central Pennsylvania towns after his escape from the Lewistown jail in the previous August. In the course of his third interrogation, on January 3, he realized that the inquiry also had to do with the Lock Haven murder and he was then told for the first time that he was being held for that crime. Thereafter the questioning was directed entirely toward the murder.

It is not charged that physical violence was used or threatened. A noisy teletype machine operating at frequent intervals near his cell, together with an electric light just outside his cell, undoubtedly interfered seriously with his sleep, but his repeated statements that he got no sleep at all are not to be taken literally.¹ Otherwise he was well treated.

I do not doubt that in the course of the interrogations the officers pictured their case against Mayo as stronger than it really was and exaggerated the state of public feeling against him in Lock Haven. Their representations, however, were not without substantial basis of fact. He had been positively identified by a police officer as the man who ran out of the alley immediately after the shooting and with whom the witness had exchanged shots, although the identification was certainly weakened by the fact that this witness had, shortly after the crime, identified another man with equal positiveness and that, before identifying Mayo, he had been shown a photograph of him. While the town may not have been as stirred up as the officers said it was, he hardly needed a lawyer to advise him that an escaped convict who goes on trial for the murder of a policeman is not likely to have a very kindly disposed or lenient jury.

On January 7 Mayo was taken to Lock Haven and, after an interview of about three hours, in which the District Attorney of Clinton County and the two officers who had conducted his examinations at Harrisburg took part, signified his willingness to plead guilty to the charge of murder. He was immediately taken before an alderman and entered his plea. The next morning he was returned to the District Attorney's office where, after some discussion, he made an oral statement giving a detailed account of how and why he shot the police officer, which was taken down stenographically and read to him. At the suggestion of one of the officers, he then wrote out his statement in full and signed it.

After an attorney had been assigned to his defense, which was done two days later, he withdrew his plea of guilty and was tried for the homicide. At the trial, an oral admission of guilt made by him in connection with his plea before the alderman, the oral confession in the District Attorney's office and his written confession, were all received in evidence. The jury found him guilty and fixed the penalty at imprisonment for life.

It should be said that, although there was other evidence implicating the relator, his confession (or confessions) was by far the most important evidence against him at the trial and it is doubtful whether a conviction would have been obtained without it.

The foregoing facts are substantially undisputed. It is also undisputed that, during the ten days from his arrest until his plea of guilty was entered, Mayo was not given a hearing before a magistrate and that no effort was made to obtain an attorney for him, nor was he advised of his right to have one.² It is plain from the record that he was, to all intents and purposes, held incommunicado from his arrest until he confessed.

If the view of Mr. Justice Douglas³ in his concurring opinion in Watts v. State of Indiana, 338 U.S. 49, 57, 69 S. Ct. 1347, 1351, 93 L.Ed. 1801, could be taken as declaratory of the law, then it would follow without further proof that the confessions were outlawed and their use against Mayo at his trial was a violation of due process. So far, however, the Supreme Court has not reached that point. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, decided only that in a trial before a Federal Court it was error to admit a confession so obtained. The Court carefully pointed out that its decision was not based upon constitutional grounds. See Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 92 L.Ed. 1690. In every case coming from a state court in which the issue was violation of due process by use of a confession, the ultimate and controlling question has been whether the confession was voluntary or coerced and that I think is still the law. Unlawful arrest, failure to give the accused a prompt hearing, denying him access to friends and refusing him an attorney or failing to advise him of his right to be represented are all circumstances which are to be considered in determining the voluntary or involuntary nature of the confession. If, in spite of them, it appears to the satisfaction of the Court that the confession was a voluntary act, its use in evidence in a trial before a state court is not a denial of constitutional rights. This was the holding of the Court in Lisenba v. California, 314 U.S. 219, 240, 62 S.Ct. 280, 291, 86 L.Ed. 166, "* * * we disapprove the violations of law involved in the...