United States v. Myers

• Decision Date: 26 March 1965
• Docket Number: Misc. No. 2857.
• Citation: 240 F. Supp. 39
• Parties: UNITED STATES of America ex rel. George Lee RIVERS v. David N. MYERS, Superintendent, State Correctional Institution at Graterford.
• Court: U.S. District Court — Eastern District of Pennsylvania

240 F. Supp. 39

UNITED STATES of America ex rel. George Lee RIVERS v. David N. MYERS, Superintendent, State Correctional Institution at Graterford.

Misc. No. 2857.

United States District Court E. D. Pennsylvania.

March 26, 1965.

Harry Shapiro, Herman I. Pollock, Vincent J. Ziccardi and Julian B. P. Brereton, Philadelphia, Pa., for relator.

Joseph M. Smith, John F. Hassett, Asst. Dist. Attys., Philadelphia, Pa., for respondent.

VAN DUSEN, District Judge.

This Petition For A Writ of Habeas Corpus asks the court for relief from a finding of murder in the first degree and a sentence of death imposed by a three-judge Pennsylvania court in June 1957, after a plea of guilty to murder generally (p. 1a of R-5), and reimposed by such a court in October 1959. The background of this case is set forth in the previous opinion of this court (and in the previous state court decisions referred to in that opinion), denying a former Petition For Writ of Habeas Corpus filed by the same relator. See United States ex rel. Rivers v. Myers, 198 F.Supp. 511 (E. D.Pa.1961), aff'd 301 F.2d 782 (3rd Cir. 1962), cert. den. 371 U.S. 841, 83 S.Ct. 71, 9 L.Ed.2d 77 (1962).

After the above proceedings in the Federal Courts, relator sought a writ of habeas corpus in the Pennsylvania Courts in March 1963. This application was denied by Opinion dated April 19, 1963, of the Common Pleas Court No. 3 of Philadelphia County (March Term 1963, No. 1827),¹ aff'd 414 Pa. 439, 200 A.2d 303 (May 1964); cert. den. 379 U.S. 866, 85 S.Ct. 135, 13 L.Ed.2d 69 (Oct. 1964).

Hearings were held before the undersigned on November 10, 1964, December 14-15, 1964, and January 8, 1965. Very helpful and able briefs were filed by counsel in February 1965 (see Documents 15-17).

On March 26, 1957, Jacob Viner was fatally shot in his North Philadelphia pharmacy during the course of a robbery and in the presence of his wife. The following afternoon, the police arrested three persons, Williams, age 20; Cater, age 19; and the relator, Rivers, age 18, who was born on March 9, 1939.

Rivers was arrested about 5 P.M. on March 27, 1957, and taken to Room 117 City Hall, which was then the Homicide Division Headquarters. He was questioned by the police until after midnight, at which time he was taken, without a hearing, to a cell block. During this period, Mr. Rivers signed a written statement (R-7) confessing his part in the crime. The actual dictating of the statement, according to the police, took over three hours and started at 9:30 P.M. When giving this statement and the statement taken the next day, there is no evidence that relator was advised of his constitutional right to remain silent and not to answer any questions.²

The following morning, March 28, 1957, the relator was given a preliminary hearing, but instead of being sent to the County Prison, he was returned to the Homicide Headquarters. The preliminary hearing ended with Mr. Rivers being held for a further hearing on April 4, 1957, at the request of the Commonwealth.

During the questioning, which took place on March 28, 1957, the relator signed another written statement (R-8), the dictation of which began at 2:10 P. M. and ended at 4:55 P.M. The reason given by the police for the second statement was that they were not satisfied with the allegations in the first one concerning the division of the money on the street, rather than in a house, which might result in the criminal liability of persons in addition to Williams, Cater and Rivers (p. 88a of R-5 and testimony of Sergeant Mercer in this proceeding).

The testimony of the police indicated that Mr. Rivers was permitted to make a phone call, but chose not to do so. The police did, however, call his mother, who was permitted to see him on March 28, 1957 (p. 80a of R-5).

Mr. Rivers entered a plea of guilty before a court of three judges, as did the other defendants, on June 17, 1957. The court appointed experienced counsel for each defendant and Mr. Rivers was represented by Garfield Levy, Esq., a lawyer of 27 years' experience who had tried over 400 homicide cases, and by Irwin Apfel, an attorney of 37 years' experience. After the plea was entered, various other evidence was presented, including the two statements of Rivers. Mrs. Viner testified that she could only identify Williams and not the other two defendants. A psychiatric report of Dr. Mallin was also introduced, in which it was stated that Rivers was emotionally dull and that his intelligence and reasoning were impaired. The diagnosis stated that Rivers was a mental defective with a psychosis, moderately severe and chronic. In conclusion, Dr. Mallin's report held that he was psychotic and probably a low-grade moron, in addition to being very suggestible and easily led by others.

Police Officer Mercer, who had questioned Rivers on March 27, also testified that he (Rivers) had difficulty reading and had difficulty with words of more than one syllable. (At subsequent hearings, Dr. Mallin's report was supported by the psychiatric reports of Drs. Torney, Silas Warner and Jonas Robitscher.³ See Appendix A, p. 48. It was also brought out at a later hearing that the highest, regular grade achieved by Rivers in school was 2B and he had attended special schools for sub-normal students for several years. See Appendix A, page 47.

The court, on June 17, 1957, adjudged the three defendants guilty of first degree murder and imposed the death penalty. The Pennsylvania Supreme Court, however, on reviewing the proceeding, vacated the sentence (of Cater and Rivers) and remanded it back to trial court for re-sentence as certain evidence had been misapplied. See Commonwealth v. Cater, 396 Pa. 172, 152 A. 2d 259 (1958).

Another hearing was held on September 18, 1959, after which the finding of first degree murder was affirmed and the death penalty was again imposed.

Based on the above factual situation, paragraph 23 of the Petition reads as follows:

"23. It is further averred that the confessions which were extracted from this uneducated, 18 year old mentally defective and mentally ill boy, were involuntary because:

"a) he was denied counsel to assist him during the stages of the police investigation of the murder for which he was one of the principal suspects;

"b) he was held incommunicado by the police for more than 24 hours during which time two confessions were extracted from him, and

"c) he was not informed of his constitutional right to remain silent during the police interrogations nor advised of his right to contact an attorney."

This record⁴ requires the conclusion that, in taking these statements on March 27 (R-7) and March 28 (R-8) and receiving them in evidence at the judicial proceedings in June 1957 and September 1959, relator was denied the assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments under the decision of the Supreme Court of the United States in Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S. Ct. 1758, 12 L.Ed.2d 977 (opinion of 6/22/64). In that case, the court used this language at pp. 490-491, 84 S.Ct. at p. 1765:

"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. 335, at 342 83 S.Ct. 792, at 795, 9 L.Ed.2d 799 and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."

Under the reasoning of the Escobedo case, supra, the activities of the police officers had become accusatory⁵ (since they had "begun to focus on * * * (3) particular suspect(s) * * *,") rather than investigatory, by 9:30 P.M. on March 27, when the first formal statement of relator was taken, in view of these events:

A. In the early afternoon of March 27, Mrs. Ethel Robinson called the police to notify them that one (Cater) of the three boys believed to have participated in the robbery-homicide was in her luncheonette (pp. 11a and 14a of R-5). Cater was arrested by Officer Thomas at about 2 P.M. on that day (p. 39a of R-5).

B. Relator was arrested at between 5:00 and 5:30 P. M. on March 27 at his home (R-12). He arrived at the homicide unit on the first floor of City Hall at 6 P.M. on that date (R-12). From 6:10 P.M. until 9:30 P.M. on March 27, he was interrogated by Sergeant Mercer and Detective Shanahan (R-12). Rivers was the last of the three co-defendants arrested.

C. Cater made a formal statement to representatives of the Philadelphia Police Department on March 27 at 8:50 P.M., describing Williams and relator as the primary instigators in the robbery-homicide in which they had all participated.

It is interesting to note that relator's able counsel, who served him well until April 1963, when he was called to testify, anticipated the holding in the Escobedo case, supra, by arguing in the state courts in June 1957 that relator's second statement had been secured in violation of his constitutional rights (pp. 113a-114a of R-5). Even if the undersigned is incorrect in believing that both statements will be inadmissible in the additional judicial proceeding which will be necessary to determine the degree of murder and the sentence, the second statement may not be so used under the facts of this case as related above.

This additional proceeding is necessary because both statements (or at least the second statement) were the basis of the finding of first degree murder and...