United States v. Pate

• Decision Date: 08 April 1965
• Docket Number: No. 63 C 2015.,63 C 2015.
• Citation: 240 F. Supp. 237
• Parties: UNITED STATES of America ex rel. Robert L. CONROY, Petitioner, v. Frank J. PATE, Warden, Illinois State Penitentiary, Joliet, Illinois, Respondent.
• Court: U.S. District Court — Northern District of Illinois

240 F. Supp. 237

UNITED STATES of America ex rel. Robert L. CONROY, Petitioner, v. Frank J. PATE, Warden, Illinois State Penitentiary, Joliet, Illinois, Respondent.

No. 63 C 2015.

United States District Court N. D. Illinois, E. D.

April 8, 1965.

Ralph A. Mantynband, Chicago, Ill., for petitioner.

William G. Clark, Arthur Ellis, Chicago, Ill., for respondent.

MAROVITZ, District Judge.

Petition for issuance of a writ of habeas corpus.

This matter is before the Court on a petition for issuance of a writ of habeas corpus. The petitioner, Robert Conroy, was convicted in October, 1937, in the Criminal Court of Cook County, Illinois, after a jury trial, for the crime of rape. He is presently confined at the Illinois State Penitentiary, serving a prison term of 199 years. Although petitioner was financially unable to take a direct appeal, he filed a post-conviction petition in 1950. A hearing on his amended petition was had in 1959, and said petition was dismissed. The Supreme Court thereupon affirmed that ruling. Petitioner has therefore exhausted all State Court remedies presently available to him. Sec. 2253, Title 28, U.S.C.

Petitioner asserts, pursuant to Sec. 2241, Title 28, U.S.C. that he is being held in custody in violation of his rights under the Fourteenth Amendment to the Constitution of the United States. In support thereof, petitioner raises four major issues: (1) that he was denied his right to counsel during preliminary interrogation; (2) that he was denied his right to have the voluntariness of his confession determined by a body other than the trial jury; (3) that he was inadequately represented by counsel at trial; and (4) that his confession was elicited by coercive means, and therefore should not have been admitted into evidence against him.

Each question shall be considered individually.

1. Right to Counsel During Preliminary Interrogation: In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court held that where a suspect has been taken into custody, and he is subjected to interrogation, has requested and been denied an opportunity to consult with his attorney, and has not been effectively warned of his absolute Constitutional right to remain silent, the accused has been denied the assistance of counsel in violation of the Sixth Amendment, as made obligatory on the States by the Fourteenth Amendment, and a statement elicited from him may not be admitted into evidence.

There has been, initially, some dispute over whether all the above factors must be present to activate the restrictions of Escobedo. In People v. Dorado, 42 Cal.Rptr. 169, 398 P.2d 361, dec. Jan. 29, 1965, the California Supreme Court refused to erect what it termed a "formalistic distinction," and applied Escobedo when the accused had failed to retain or request the assistance of counsel. Taking a completely contrary approach, the Nevada Supreme Court in Bean v. State, 398 P.2d 251, dec. Jan. 22, 1965, held that the failure of the accused to request counsel rendered admissible a confession obtained from him, even where the arresting officers did not inform him of his right to remain silent.

A reading of the Escobedo opinion clearly demonstrates a limited ruling by the Supreme Court of the United States. There is no justification for a State Court or a lower Federal Court to extend that ruling beyond its expressed language. We need not fully determine this issue in regard to effective warning, however. Of more importance in the instant case, is the extent of retroactive effect to be given the Escobedo doctrine. That is, we must decide whether this 1964 ruling of the Supreme Court can and should affect the conviction of a man tried and sentenced in the mid-1930's.

Two recent State Supreme Court decisions have held the application of Escobedo to be prospective only. The highly regarded Justice Tobriner of California refused to permit retroactive application in In re Lopez, 42 Cal.Rptr. 188, 398 P.2d 380, dec. Jan. 29, 1965. A similar result was reached by the New Jersey Supreme Court in State v. Johnson, 44 N.J. 23, 206 A.2d 877, dec. Jan. 19, 1965.

Petitioner relies heavily on other opinions involving deprivation of constitutional rights, in which retroactive application has been effected. However, a very real distinction can be drawn between those holdings and the problem before us today. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which has generally been given retroactive effect, involved the right to counsel at trial. Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) was concerned with physical coercion of a confession. Griffin v. State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) held retroactive in Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958), dealt with the right of an indigent defendant to obtain a certified copy of the trial record for use on appeal. That opinion was accompanied by a concurrence by Mr. Justice Frankfurter, however, indicating that the majority intended retroactive application.

In all of these cases, on which petitioner relies, the reliability of the guilt-determining process was questioned. That is, where a defendant is without counsel at trial to present his case, where his confession is coerced, and where he does not have access to a trial transcript on appeal, there is great danger that the conviction was incorrect, and that the defendant has not had an opportunity to fairly plead his innocence.

Where a defendant is denied counsel during interrogation, however, as here, he has lost only a more complete instruction on his constitutional rights against self-incrimination. There is nothing in such denial that will inherently make his confession less truthful or reliable. That is, although the accused's rights have been invaded, the truth or falsity of his pre-Escobedo confession will not be affected by his inability to contact counsel at this stage, as it would be were his confession coerced. Rather, the Escobedo rule is more of a deterrent force to prevent police officers from interfering in the future with a defendant's constitutional rights. It does not really go to the reliability of the confession or to the Court's determination of guilt.

A close analogy can be drawn with the Supreme Court's ruling in Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In that case, the Supreme Court overruled Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and held that evidence obtained by an unreasonable search and seizure is inadmissible in a state prosecution as violative of the federal Constitution. With but a few isolated exceptions, the Mapp doctrine has not been applied retroactively to the States. Angelet v. Fay (2d Cir., 1964) 333 F.2d 12; Gaitan v. United States (10th Cir., 1963) 317 F.2d 494. Indeed, the Seventh Circuit in Sisk v. Lane (7th Cir., 1964) 331 F.2d 235, has held Mapp to be prospective in its application. The theory behind these rulings is sound, and is equally valid when applied to Escobedo. When determining whether a decision is to be retroactively applied, it is prudent to determine whether the underlying purpose of that decision would be served thereby. See Durocher v. LaVallee (2d Cir., 1964) 330 F.2d 303. The exclusionary rule of Mapp was not designed to protect the fairness of the actual trial, but rather to serve as a deterrent to oppressive conduct by the police authorities. Following this reasoning a step further, it logically follows that retroactive application of Mapp could not deter searches which took place prior to its decision date. Gideon, on the other hand, goes to the question of "fairness" of trial itself, as do the coercion cases. The evidence illegally seized before Mapp is no less probative for its tinged method of acquisition. A confession elicited by means of coercion, however, might well be less reliable. Therein lies the crucial distinction.

The Court's purpose in deciding Escobedo, it would seem, was to deter police interrogation of a suspect without counsel, to prevent unwary self-incrimination. While such police activities will be curtailed in the future, it does not follow that the confessions already elicited are any less reliable as a result of these tactics. Thus it would appear that Escobedo should fall within the class of cases refusing to extend Mapp v. Ohio, and that petitioner here should be unable to avail himself of the protections enumerated therein.

While we are not prepared to extend Escobedo via retroactive application, the alleged refusal to permit petitioner to contact counsel during interrogation shall be considered infra in connection with the alleged "totality of coercive circumstances" surrounding the confession on which conviction was based.

2. Right to Have Voluntariness of Confession Determined by Body Other Than Trial Jury: In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Supreme Court held that a petitioner was deprived of his liberty without due process of law when he was denied a State Court hearing on the issue of voluntariness of a confession by a body other than the one trying his guilt or innocence. In so holding the Court, through Mr. Justice White, reversed the Second Circuit Court of Appeals and ordered a new trial, or in the alternative, a State Court evidentiary hearing on the coercion issue. If at such later hearing it is determined that the confession was voluntary and admissible, the Court continued, a new trial would be unnecessary.

It would seem unquestionable that the facts before us fall directly within the Jackson v. Denno holding. The voluntariness of petitioner's confession was exhaustively explored by the jury at petitioner's trial. Although the introduction of the confession was not formally objected to, the jury was clearly faced with the making of that determination....