United States v. Ogilvie

• Decision Date: 22 July 1964
• Docket Number: No. 14519.,14519.
• Citation: 334 F.2d 837
• Parties: UNITED STATES of America ex rel. Charles TOWNSEND, Petitioner-Appellee, v. Richard B. OGILVIE, Sheriff of Cook County, and Jack Johnson, Warden of the Cook County Jail, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

334 F.2d 837 (1964)

UNITED STATES of America ex rel. Charles TOWNSEND, Petitioner-Appellee, v. Richard B. OGILVIE, Sheriff of Cook County, and Jack Johnson, Warden of the Cook County Jail, Respondents-Appellants.

No. 14519.

United States Court of Appeals Seventh Circuit.

July 22, 1964.

Edward J. Hladis, Chief of Civil Division, Daniel P. Ward, State's Atty. of Cook County, Ill., Donald J. Veverka, Asst. State's Atty., Chicago, Ill., for respondents-appellants.

George N. Leighton, Chicago, Ill., for petitioner-appellee.

Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

This case is again before us on appeal from the district court following remand by the United States Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), directing the district court to conduct an evidentiary hearing on petitioner's request for a writ of habeas corpus. Petitioner Charles Townsend claimed his confession of the murder of Jack Boone in 1953 was inadmissible in the state court because it was induced by the injection of drugs, thereby rendering the confession involuntary. The district judge, after conducting an evidentiary hearing, concluded the confession was voluntary and its admission in evidence was not violative of petitioner's constitutional rights; nevertheless, the judge granted the writ. It was his opinion that there was evidence, relating principally to the confession, which had not been considered by the jury in the state trial and which should be submitted to the jury upon a retrial. Respondents, the sheriff of Cook County, Illinois, and the warden of the county jail have appealed.

In 1955, petitioner was tried for the murder of Jack Boone before a jury in the criminal court of Cook County, Illinois. He had confessed to the commission of the crime. He objected to the introduction of his confession on the grounds that it was coerced. The trial judge denied his motion to suppress and admitted it into evidence. Petitioner was found guilty and sentenced to death. The Illinois supreme court affirmed the conviction, two justices dissenting. People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371 (1956). The United States Supreme Court denied certiorari. 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60 (1957). Petitioner then sought post-conviction relief in the state court; the Cook County criminal court dismissed his petition. The Illinois supreme court affirmed by order; the United States Supreme Court again denied certiorari. 358 U.S. 887, 79 S.Ct. 128, 3 L.Ed.2d 115 (1958).

Having exhausted his state remedies, Townsend petitioned for a writ of habeas corpus in the federal court. That court, considering only the pleadings and the Illinois supreme court opinion, denied the writ. This court dismissed the appeal. United States ex rel. Townsend v. Sain, 265 F.2d 660 (7th Cir. 1958). The Supreme Court granted certiorari, vacated the judgment of this court, and remanded for a decision by the district court whether a plenary hearing was required. 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634 (1958).

On remand the district court held a hearing in which only the record of the state court proceedings was considered and denied the writ. This court affirmed, United States ex rel. Townsend v. Sain, 276 F.2d 324 (7th Cir. 1960), saying that a district court's inquiry is limited in habeas corpus "to a study of the undisputed portions of the record." The United States Supreme Court again granted certiorari, 365 U.S. 866, 81 S. Ct. 907, 5 L.Ed.2d 859 (1961), and reversed this court, holding that "on this record the federal district judge was obliged to hold a hearing." 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Although many of the facts are contained in the above cases, we do not think it amiss to summarize the facts heard both in the state court proceeding and in the hearing in the district court.

The state court proceeding.

On December 18, 1953, Boone left his home on the south side of Chicago for work at a steel mill when he was hit over the head with a brick and robbed of approximately four dollars. He died three days later.

Petitioner was arrested as a suspect in the early morning of January 1, 1954. He was then nineteen years old and a heroin addict since he was fifteen. He was questioned about various crimes. He denied any participation.

That evening during questioning, petitioner complained to the police that he had pains in his stomach and was suffering from other withdrawal symptoms; he wanted a doctor. One of the officers called a police physician. The doctor arrived at 9:45 p. m. He gave Townsend an injection of 1/8;-grain of phenobarbital and 1/230-grain of hyoscine. Hyoscine is the same as scopolamine and is claimed by petitioner to be a truth serum. The doctor left petitioner four or five ¼-grain tablets of phenobarbital, two to be taken that evening and the remainder the following day.

The medication alleviated Townsend's discomfort. The events following the doctor's departure were disputed. However, both parties agreed that thereafter the police officers resumed their questioning of petitioner in the presence of the assistant state's attorney for about twenty-five minutes. Petitioner then confessed.

On the following day petitioner's statements were read back to him by the assistant state's attorney, and petitioner signed the confession. At the coroner's inquest on January 4, 1954, Townsend was called to the witness stand and, after being advised of his right not to testify, again confessed. At the time he was without counsel; the public defender was appointed after his arraignment.

Petitioner testified at the motion to suppress that he had been questioned in excess of two hours; that petitioner was in a "line-up" and although a robbery victim identified another as his assailant, the police told the victim he identified the wrong man; that he was beaten by a police officer; that he was told that a doctor would be called if he cooperated; and that one officer implied he thought petitioner innocent and that the doctor would give him a narcotic. He also testified that the doctor gave him an injection; thereafter, he took three pills; he felt dizzy and sleepy, his distance vision was impaired. He said that he confessed to the robbery and then he fell asleep, but was awakened, given a pen to sign his name to a document which he believed to be his release on bond; that the next day, although his head was clearer, he could not remember what had occurred that evening; that he was asked about a number of robberies and murders and said "yes" to them; that evening he took more phenobarbital pills and when he was half asleep he signed another paper; further, that he testified at the coroner's inquest because the officers had told him to do so.

The prosecution witnesses contradicted his testimony. They said that petitioner had been questioned initially for one-half hour, not two hours; that he had not taken the pills the doctor gave him on the night of January first; that he appeared to be awake and coherent at all times and understood the statements he signed. They denied threatening or beating Townsend or that he had been told to testify at the inquest.

Considerable testimony was presented about the probable effects of hyoscine and phenobarbital. Dr. Mansfield, the doctor who had given petitioner the injection, said that a therapeutic dose of hyoscine was 1/100-grain; that he administered 1/230-grain; and that phenobarbital combines well with hyoscine to quiet a person. He denied giving truth serum to petitioner. He did not say that hyoscine is the same as scopolamine which is known as truth serum.

Dr. Proctor, testifying for petitioner, said that the effect of the prescribed dosage of hyoscine and phenobarbital could range from absolute sleep to disorientation and excitation, and if phenobarbital was taken orally at the same time, the depressive effect would be accentuated.

At the trial the issue of coercion was before the jury to test the credibility of the confession. At that time the identity of hyoscine and scopolamine was established, but again no mention was made that scopolamine was known as truth serum.

An expert witness testified that Townsend was a near mental deficient. Petitioner testified that the police officers had slapped him and threatened to shoot him. One officer testified Townsend confessed before the doctor gave him the drug. His testimony was unsubstantiated and even contradicted by another officer.

The habeas corpus petition.

Petitioner's application for writ of habeas corpus was based on the allegation that his confession was involuntary because scopolamine (hyoscine) is a truth serum and this fact was not brought out in the state court proceedings; that hyoscine was not a proper medicine to give a drug addict because it affects the mind; that the police doctor willfully suppressed these facts and the identity of hyoscine and scopolamine; that the injection caused petitioner to confess to the murder of Boone as well as two other murders and two assaults and robberies.

The evidentiary hearing.

At the hearing in the district court, counsel for petitioner maintained that the issue was whether Townsend's will was so overpowered by the injection of the drugs that he involuntarily confessed. The evidence submitted at the hearing was directed to that issue. Six witnesses testified for petitioner and two for respondents.

Petitioner's sister testified that she had brought petitioner from Mississippi to Chicago when he was about ten years old; that in 1947 she requested the school authorities give him a psychiatric examination but no examination was given; that petitioner's aunt and grandmother had been in a mental institution.

The assistant principal of an adjustment school testified that petitioner attended various schools for truants and malajusted children until he was released at the age of sixteen; that his mentality...