United States v. Murphy, No. 251

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: CLARK, , and FRANK and HASTIE, Circuit
• Citation: 222 F.2d 698
• Parties: UNITED STATES ex rel. Santo CAMINITO, Relator-Appellant, v. Robert E. MURPHY, as Warden of Auburn Prison, State of New York, Respondent-Appellee.
• Decision Date: 11 May 1955
• Docket Number: No. 251,Docket 23492.

222 F.2d 698 (1955)

UNITED STATES ex rel. Santo CAMINITO, Relator-Appellant,
v.
Robert E. MURPHY, as Warden of Auburn Prison, State of New York, Respondent-Appellee.

No. 251, Docket 23492.

United States Court of Appeals Second Circuit.

Argued April 11, 1955.

Decided May 11, 1955.

222 F.2d 699

Kaufman & Edelbaum, New York City (Maurice Edelbaum, New York City, and Stanley L. Gluck, Brooklyn, N. Y., of counsel), for relator.

Edward S. Silver, Dist. Atty., Kings County, N. Y., Brooklyn, N. Y., and Jacob Javits, Atty. Gen. of New York (William I. Siegel, Brooklyn, N. Y., of counsel), for respondent.

Before CLARK, Chief Judge, and FRANK and HASTIE, Circuit Judges.

FRANK, Circuit Judge.

The sole evidence of Caminito's guilt consisted of his signed pre-trial confessions. At the trial, his counsel timely objected to their admission, and moved to strike them on the ground that they had been unconstitutionally procured; he also moved to dismiss the indictment on the ground that the State had not proved Caminito guilty. Caminito testified that the police had coerced the confessions. The trial judge left to the jury the question whether the confessions had been thus induced. The jury, by returning a verdict of guilt, found that they were voluntary.

Caminito testified that, before giving the confessions, the police had beaten him. As the police testified to the contrary, we shall ignore that part of his testimony. But the following facts are not disputed.

(1) Caminito was taken into custody by the police on Sunday, May 11, 1941 at 6 P. M.

(2) Commencing about 9 P. M. Sunday, he was continuously interrogated by five or six police officers for a period of approximately five hours, until 2 A. M. the following morning, Monday, May 12th.

(3) At 3 A. M. on Monday, May 12th, he was locked in a cell in which there were no bed, blankets, spring or mattress, but only a wooden bench.¹ (He testified that the cell was unheated. A witness for the State testified that the cell was equipped with a radiator but that he "did not know if the heat was on" during the time Caminito was there confined.)

(4) At 10 A. M. on Monday, May 12th, the questioning was resumed. The interrogation continued all day, with several detectives taking turns.

(5) Members of Caminito's family, his friends and an attorney retained by the family, called at the station house where he was detained and tried to get information concerning his whereabouts. The

222 F.2d 700

police officers knew these facts, but kept him incommunicado. Other than the police and the District Attorney, no one was permitted to see him until he was arraigned forty hours after being taken into custody

(6) During the afternoon of Monday, May 12th, two women and a man were brought in to face Caminito. He was not told that they were detectives. Each falsely pretended to identify him as the person who was sitting at the wheel of the automobile at the time of the shooting, which occurred in connection with the holdup.^1a

(7) About 9 P. M., Monday, May 12th, twenty-seven hours after having been taken into custody, he signed a confession. He gave a second confession to a District Attorney a short time later.

(8) About 2:30 or 3 A. M. the following morning, Tuesday, May 13th, he was first placed under arrest.

(9) He was brought before a magistrate later that same day, more than forty hours after having first been taken into custody. The arraignment could and should have been held long before that time. The police officers knew that the courts were open for that purpose.²

(10) Caminito had never been previously arrested or convicted.³

These facts make it clear that the trial did not measure up to the standards prescribed by the due process clause of the 14th Amendment. The confessions obtained by these loathsome means were no more evidence than if they had been forged. Absent, then, any admissible evidence of guilt, the trial judge should have dismissed the indictment or directed a verdict of acquittal. To jail a man convicted without evidence of guilt is to impose "involuntary servitude" which, "except as a punishment for crime," the Thirteenth Amendment forbids. Only in Erewhon, which recognized "the crime of being maligned unjustly,"^3a could this conviction be justified.

Alone or together, neither the unlawful detention for many hours nor the deceit in confronting Caminito with disguised police officers who lied in identifying him⁴ would suffice to vitiate the

222 F.2d 701

confessions as unconstitutionally obtained. But those factors did aggravate the following unconstitutional practices which — even in the absence of those factors — rendered the confessions inadmissible: (a) The police interrogated him almost continuously for 27 hours, with but a brief interval for rest in a cell so badly equipped as to make sleep virtually impossible for a man already harried by the questioning. (b) During this long period, the police, in effect, kidnapped him: They kept him incommunicado, refusing to allow his lawyer, his family, and his friends to consult with him

Accordingly, the writ of habeas corpus must issue. See Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L.Ed. 224; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L. Ed. 1029; Ashcraft v. Tennessee, 322 U. S. 143, 64 S.Ct. 921, 88 L.Ed. 1192. Whether Leyra v. Denno, modified Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 — and if so, how far — we need not consider, as the undisputed facts here distinguish the instant case from Stein. Why the upper New York courts did not reverse the conviction we do not know, as they filed no opinions.

All decent Americans soundly condemn satanic practices, like those described above, when employed in totalitarian regimes. It should shock us when American police resort to them, for they do not comport with the barest minimum of civilized principles of justice. It has no significance that in this case we must assume there was no physical brutality. For psychological torture may be far more cruel, far more symptomatic of sadism. Many a man who can endure beatings will yield to fatigue. To keep a man awake beyond the point of exhaustion, while constantly pummelling him with questions, is to degrade him, to strip him of human dignity, to deprive him of the will to resist, to make him a pitiable creature mastered by the single desire — at all costs to be free of torment. Any member of this or any other court, to escape such anguish, would admit to almost any crime. Indeed, the infliction of such psychological punishment is more reprehensible than a physical attack: It leaves no discernible marks on the victim.⁵ Because it is thus concealed, it has, under the brutalitarian regimes, become the favorite weapon of the secret police, bent on procuring confessions as a means of convicting the innocent.

Caminito testified as follows as to why he confessed: At 10:30 P. M. on Monday, May 12th, the police allowed him to talk to Noia who had been similarly subjected to prolonged questioning. "He said, `Let us give them (the police) the same story they gave us.' He says, `It would not mean anything. * * * We can see a lawyer this way. We will tell the lawyer what happened, and they cannot do us nothing. We did not do it. You don't have to worry. You can prove where you were, and I can prove also.' I said `No it is not right.' He said, `How long can I stand this? * * * Let us make up the story they gave us and give them the same story and get it over with.' * * * So I told him the story that the detectives had told me of what happened, as I had heard maybe fifty times, so he said, `That is the story they told me.'" They then agreed to confess. While confessing, when Caminito did not know the desired answer, the police captain told him what to say and he said it. "They put the words right in his mouth." He "gave those answers for fear." We do not rest our decision on that testimony:⁶ Even without

222 F.2d 702

it, we are bound to infer, on the undisputed facts, that something of the sort actually happened. For his testimony in this respect closely resembles many reports of those who, behind the Iron Curtain, after like treatment, confessed to crimes they had not committed.⁷

Aristotle, thousands of years ago, wrote of torture "that people under its compulsion tell lies quite as often as they tell the truth, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner. We ought to be able to quote cases, familiar to the judges, in which this sort of thing has actually happened. We must say that evidence under torture is not trustworthy, the fact being that many men whether thickwitted, tough-skinned, or stout of heart endure their ordeal nobly, while cowards and timid men are full of boldness till they see the ordeal of these others; so that no trust can be placed in evidence under torture."⁸ In the 16th century, Montaigne said that tortures "seem to be a test of endurance rather than of truth. For why should pain rather make me say what is, rather than force me to say what is not? * * * The effect is that the man whom the judge has put to the torture, that he may not die innocent, is made to die both innocent and tortured."

It is imperative that our courts severely condemn confession by torture, the so-called "Third Degree." To treat it lightly, to condone it, encourages its continued use, with evil effects on the police: The official who utilizes the Third Degree, since he violates statutes and the Constitution, is himself a criminal; and his infliction of torture on others brutalizes him.⁹

Hall remarks^9a on the "startling fact that there is hardly a single physical act of...