United States v. Richmond

Decision Date28 October 1959
Docket NumberNo. 261,Docket 25465.,261
Citation271 F.2d 364
PartiesUNITED STATES ex rel. Harold D. ROGERS, Relator-Appellant, v. Mark S. RICHMOND, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

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Louis H. Pollak, New Haven, Conn. and Jacob D. Zeldes, Bridgeport, Conn., for appellant.

Abraham S. Ullman, State's Atty., Arthur T. Gorman, Asst. State's Atty., New Haven, Conn., and Robert C. Zampano, East Haven, Conn., for respondent.

Before CLARK, Chief Judge, and SWAN and MOORE, Circuit Judges.

MOORE, Circuit Judge.

In May of 1954 the relator was convicted in a state court in Connecticut of murder committed during the perpetration of a robbery. He was sentenced to death. In his trial two confessions by him were put in evidence over objection that they were induced by coercion. The trial judge after hearing evidence in the absence of the jury found the confessions voluntary and admissible.* The conviction was affirmed by the Supreme Court of Errors, one judge dissenting. State v. Rogers, 143 Conn. 167, 120 A.2d 409, certiorari denied 351 U.S. 952, 76 S.Ct. 850, 100 L.Ed. 1476. Thereafter a federal writ of habeas corpus was issued by Judge Smith. Without having before him the entire record of the state court proceedings, Judge Smith took testimony and made independent findings of fact. He found the first confession to have been coerced in violation of the due process clause of the Fourteenth Amendment, and ordered the judgment of conviction vacated. Judge Smith's opinion is reported in D.C., 154 F.Supp. 663, sub nom. United States ex rel. Rogers v. Cummings. On appeal this order was reversed and the cause was remanded with directions to Judge Smith to examine the entire state trial record. United States ex rel. Rogers v. Richmond, 2 Cir., 252 F.2d 807, certiorari denied 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361. The opinion of this court, 252 F.2d at page 811 stated:

"We conclude therefore, that on remand the judge below should take such steps as will assure him that he has in evidence not only the findings of the trial court as to the admissibility of the confessions but also the transcript of the preliminary hearing on which the trial findings were based. Unless the judge below shall find in the record thus before him material which he deems to constitute `vital flaws\' and `unusual circumstances\' within the meaning of Brown v. Allen, we hold that he should make the necessary constitutional determinations exclusively on the basis of the historical facts as found by the State trial court. Brown v. Allen, 344 U.S. 443 at pages 507-508, 73 S.Ct. 397 at page 446, 97 L.Ed. 469."

In denying certiorari the Supreme Court wrote a Per Curiam opinion which reads as follows:

"The petition for writ of certiorari is denied. We read the opinion of the Court of Appeals as holding that while the District Judge may, unless he finds a vital flaw in the State Court proceedings, accept the determination in such proceedings, he need not deem such determination binding, and may take testimony. See Brown v. Allen, 344 U.S. 443, 506, et seq., 73 S.Ct. 397, 445, 97 L.Ed. 469." 357 U.S. 220, 78 S.Ct. 1365.

After remand Judge Smith received in evidence the entire transcript of the state court proceedings. Included in the findings of the state trial court was the specific finding that "the accused did not at any time on the day of the questioning request the presence or assistance of an attorney."1 In the original federal hearing which resulted in the order vacating the conviction, Judge Smith found that Rogers had asked to see his lawyer during the period of questioning that led to the first confession, and he relied heavily upon this finding in holding that the confession was illegally coerced. In so finding, Judge Smith as a matter of credibility accepted the testimony of Rogers rather than that of other witnesses.

In his opinion after remand, D.C., 178 F.Supp. 69, Judge Smith proceeded to make his decision in accordance with the Supreme Court's interpretation as is evidenced by his statement that "this `interpretation' by the Supreme Court, on its face, seems to mean that the District Judge, after examining the record of the state proceedings, is free to accept the state factual determinations in those proceedings and base his constitutional determination thereon, or to reject them and call for testimony on which to base his constitutional determinations * *" He recognized that the opinion (Mr. Justice Frankfurter, Brown v. Allen, supra, 344 U.S. at page 506, 73 S.Ct. at page 445) "emphasizing the possibility that the facts have been tried and adjudicated against the applicant, and implying that their determination may well be accepted in the absence of a vital flaw in their state court determination points to a standard to be followed" and that "something must appear upon examination of the state court record to require a trial de novo of the fact issues." Furthermore, he was well aware that the Supreme Court in its comment denying certiorari "makes it plain that there may be circumstances in which the judge may, after review of the state court record, decide to take testimony and not be bound by the state court findings, even though no vital flaw is necessarily found."

Judge Smith's own understanding of the broad scope of his power and review upon the remand is vital to a proper determination of this appeal. He did not regard himself as foreclosed from exercising his independent judgment or as in the role of a rubber stamp upon state court conclusions. To him "the question here is whether on review of the full trial court record which he had not had before him when he delivered his previous opinion, testimony should be considered in a trial de novo." He knew that he was privileged to "take additional testimony not considered by the state trial court on constitutional issues, such as lack of due process by the use of coerced confessions, and make an independent determination of the facts, such as the voluntary character of confessions, and that he must independently determine whether the conviction may constitutionally stand" but that he might "not substitute his judgment on factual issues fairly tried (i. e., where no vital flaw exists) before a state court on similar evidence." With this appreciation of his powers and his duties and "considering the full state trial record anew, to determine whether other evidence should be considered," Judge Smith concluded that the writ should be discharged. In so doing, he ignored "the impressions" made on the trial before him prior to his consideration of the full state record and his own opinion that "on similar evidence, if properly before it, this court he would reach the opposite finding." The correctness of Judge Smith's holding that "Subsequent disagreement with his the state trial court weighing of essentially similar evidence is not in itself sufficient under the limitations now imposed in the interest of proper balance in our dual court system, to permit consideration of the matter heard at the trial of the issue de novo here" is the major question for decision upon this appeal.

However, if by "limitations" the question is raised as to the right of a federal judge or a federal appellate court to take an appellate record after conviction in a state court and appellate review and years after the trial upon the printed record substitute its own opinions as to credibility of witnesses (not seen), weight to be accorded to their testimony and inferences to be drawn therefrom (in other words, to make a redetermination of the historical facts), a much broader and more serious problem is presented. Is a convicted state prisoner, having been unsuccessful before a jury of his peers or a judge, to be able via habeas corpus to have his case re-tried by some federal judge in the district of his incarceration and, if so, is the federal judge to have the right to re-determine the historical facts? Such expressions as "relevant historical facts," "unusual circumstances" and "vital flaws" are not too helpful. They are not self-defining and do not lend themselves to objective use. The closeness of the fact question does not require that it remain unresolved but it does increase the likelihood that the minds of judges and jurors will differ widely in its proper resolution. Under our system of law, juries, and in certain cases judges, are charged with this responsibility. Where does it (or, better, should it) ultimately rest? Take a single case. It is tried and appealed twice in a state court, certiorari is denied. Three, four or ten years later, a federal judge or appellate court takes a different view and decides to believe witness A instead of witnesses B and C as to coercion. Would it not have been better to have had the case tried originally before a federal judge so that the time and expense of the state proceedings could have been avoided? To be sure, the Congress had not yet adopted a statute reading, in effect, that a case involving a closely disputed question of fact as to the coercion of a confession shall not be tried and decided in a state court but no statute will be necessary if the courts by decision create the same result. Or as a short cut a federal judge might be called into the state court trial for the purpose of deciding the question then and there with the case held open pending an appellate court's views on the facts. Would not such a procedure face the problems more fairly than to indulge, in words, in solicitude for the preservation of the "delicate balance of federal-state relationships" and the avoidance of "serious federal-state tensions," yet at the same time, in decisions, to destroy any vestige of state autonomy.

Brown v. Allen, specifically referred to by the Supreme Court in its opinion as to Judge Smith's powers clearly supports the procedure adopted by him and the result reached....

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17 cases
  • Rogers v. Richmond
    • United States
    • U.S. Supreme Court
    • March 20, 1961
    ...Court of Appeals Review.—The Court of Appeals for the Second Circuit affirmed this judgment, one judge dissenting. United States ex rel. Rogers v. Richmond, 271 F.2d 364. The court held that the district judge was correct in restricting himself to the state court's 'findings' regarding peti......
  • United States v. La Vallee
    • United States
    • U.S. District Court — Northern District of New York
    • January 24, 1961
    ...321, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 note 2 — Chief Justice Warren lists the many Supreme Court cases; United States ex rel. Rogers v. Richmond, 2 Cir., 271 F.2d 364, 378, — Chief Judge Clark dissenting lists the considerable body of similar cases passed upon recently by the Court of Ap......
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    • Alabama Court of Appeals
    • April 7, 1964
    ...361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (264 Ala. 694, 88 So.2d 205). Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (2 Cir., 271 F.2d 364 reversed). Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (147 Conn. 194, 158 A.2d 239). Reck v. Pate, 367 U.S. 43......
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    • United States
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    ...Richmond, 2 Cir., 1958, 252 F.2d 807, certiorari denied 1958, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361 and United States ex rel. Rogers v. Richmond, 2 Cir., 1959, 271 F.2d 364, reversed on other grounds 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d Since the testimony in the County Court i......
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1 books & journal articles
  • FRAUDULENTLY INDUCED CONFESSIONS.
    • United States
    • December 1, 2020
    ...threats may well have been true."). (27) See Lynumn, 372 U.S. at 534-35. (28) Id. at 534. (29) United States ex ret Rogers v. Richmond, 271 F.2d 364, 371 (2d Cir. 1959) (observing that Rogers's wife "was a legitimate subject of police inquiry"), re[upsilon]'d, 365 U.S. 534 (30) [per thousan......

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