United States ex rel. Kemp v. Pate (240 F. Supp. 696, 1965)

WILL, District Judge.

Petitioner, Thomas E. Kemp, was convicted in the Criminal Court of Cook County, Illinois of the robbery of Reynold Mitchell and sentenced, on June 26, 1958, to a term of not less than nineteen (19) nor more than twenty (20) years’ imprisonment in the Illinois State Penitentiary. The judgment of conviction was affirmed by the Illinois Supreme Court on November 26, 1963, People v. Kemp, 29 Ill.2d 321, 194 N.E.2d 217 (1963).

On December 1, 1964, petitioner filed a petition for a writ of habeas corpus, alleging that the trial court erred in failing to suppress a signed, typewritten confession which petitioner claims was not given voluntarily and which, admittedly, was obtained by the police after some twenty-eight hours of detention. Petitioner contends that his conviction is tainted by the use of such evidence and that his confinement, pursuant to the conviction, is therefore unlawful and in violation of rights guaranteed hiña by the Fifth and Fourteenth Amendments to the Constitution.

This contention, and the factual assertions upon which it is based, were presented to the trial court by a motion to suppress and to the Illinois Supreme Court by petition for a writ of error. The trial court, after hearing, denied the motion to suppress without comment. The opinion of the Illinois Supreme Court, cited supra, while noting that the alleged confession was obtained after twenty-eight hours’ detention, affirmed the judgment of conviction on the ground that the trial judge — if he believed the testimony of the police officers who testified in opposition to the motion to suppress and contradicted petitioner’s testimony — could have concluded that the confession was made voluntarily.

After an initial examination of the instant petition, we ordered respondent to show cause why the petition for a writ of habeas corpus should not be granted, appointed counsel to represent the petitioner and set the matter for a hearing. While the petition contains certain allegations with respect to the prosecutor’s closing argument and the “vagueness” attempt was made to elicit a statement. Moreover, the lock-up keeper’s record, which would have shed light on the issue, has never been produced.

Assuming that the time typed on the statements is correct, Kemp was held for about twenty-four hours before his signature was obtained. If, on the other hand, Kemp’s allegations respecting a fourth interrogation are correct, the statements were signed after some thirty hours’ illegal detention. As we have noted, the opinion of the Illinois Supreme Court states that Kemp’s confession came after twenty-eight hours’ detention. The apparent contradiction between this finding, the time endorsed on the statements and the police officers’ testimony is not explained.

Given the factual setting described at length above, the court must now make its determination as to whether or not Kemp’s statement confessing to the Mitchell robbery was secured in violation of his constitutional rights or was given voluntarily.

Before turning to the substantive legal issue presented, however, we must consider respondent’s claim that the petitioner has failed to exhaust state court remedies available to him. Kemp’s case has been before the highest court of the state. Accordingly, he is not required to seek collateral relief by state habeas corpus or post-conviction relief procedures before proceeding in this court. See Brown v. Allen, 344 U.S. 443, 447— 449, 73 S.Ct. 397, 97 L.Ed. 469 (1953); United States ex rel. Crump v. Sain, 264 F.2d 424 (7 Cir. 1959).

Respondent suggests that the present petition raises new issues not presented to the Illinois Supreme Court. Specifically, he points to Kemp’s contentions that he (a) was not brought before a judicial officer for a preliminary hearing; (b) was not advised of his right to counsel; (c) was not advised of his right to remain silent; and (d) was not allowed to call his sister for assistance.

The court believes that these issues were necessarily before the Illinois Supreme Court. The opinion filed demonstrates that the Illinois court was fully aware of the extended detention. The prosecution’s brief filed therein was not limited to a discussion of possible physical coercion; it raised and attempted to negate any possible psychological coercion as well. The record before that court contained Kemp’s repeated assertions that he was kept from contacting his relatives. On the other hand, it contains no evidence that he was advised of his right to counsel, to remain silent or that anything he said might be used against him. These details were sufficient, in and of themselves, to raise substantial questions regarding the possible abuse of Kemp’s constitutional rights at the hands of the police. To be sure, the Illinois court’s opinion is limited to a finding that there was evidence which, if believed, would refute petitioner’s allegations. However, the exhaustion of state remedies is not measured by the language of the opinion, but by the record before the reviewing court. Accordingly, we conclude that the instant petition is properly brought in a federal forum.

The court has examined the transcript of the trial, the testimony at the hearing on the petition and the briefs filed both here and in the Illinois Supreme Court with considerable care. In view of the factual setting already described, we cannot conclude that the written confession here involved was freely and voluntarily made or subscribed to and, accordingly, we are compelled to the conclusion that petitioner’s constitutional rights were infringed when the statement was admitted into evidence.

This conclusion is supported by two lines of analysis which, while different, are not mutually exclusive. The court’s initial approach, a consideration of the “totality of circumstances” surrounding Kemp's detention and interrogation, is now common in the case law. However, the situation described herein prompts the court to consider, additionally, the effect of recent developments in criminal law and procedure on the standards of constitutional protection applicable to the detention and interrogation of persons arrested by state authorities.

Petitioner was thirty-three years old when arrested. He had been involved in criminal matters before. He had an eighth-grade education. Clearly, he was not a child of tender years as the defendants in Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) and Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1947). Nor was he, as the defendant in Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), inexperienced with police procedures. The protection of the Constitution, however, extends to all. It is not limited to the young or to persons clothed with prior innocence. All men are susceptible to coercive practices. The prisoner’s ability to resist does not depend solely on age or experience. It is also a function of the techniques employed by the police.

The young, or those with limited mental ability (see Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 [1958]), may be persuaded by direct suggestion. However, the knowledge and experience of men who have had frequent contacts with legal authorities may be employed against them with the same result. Neither extensive questioning (Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 [1944]), nor physical torture (Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 [1936]), nor even the use of a psychiatrist as an interrogator (Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 [1954]) is necessary.

The interrogation of the petitioner was not overly lengthy. No session lasted more than one and one-half or one and three-quarters hours. The total interrogation time was about four and one-half hours. But the fact that the questioning sessions were short does not assure that the confession was given voluntarily. See Haynes v. State of Washington, 373 U.S. 503, 504, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).

Indeed, the treatment accorded Kemp closely resembles that involved in Haynes. Haynes, too, had a prior criminal record. Like Kemp, his requests to call relatives were refused. Haynes specifically asked to call an attorney. It would be naive, however, to assume that Kemp, when seeking to contact his sister, was merely interested in advising her of his whereabouts or asking for food. If Kemp’s prior contacts with the law have any evidentiary value, they suggest that his attempts to contact his family would have led to the retention of counsel to protect his rights.

Haynes’ confession came after sixteen hours of illegal incommunicado detention ; Kemp’s after an even longer period. This detention cannot be ignored in evaluating the “totality of circumstances”. Even if we accept Kobar’s contention that there were no formal interrogation sessions on May 26, there would still be the undisputed fact that Kemp was asked about “a crime” or, at best “a robbery” without being given any details and without being charged with a specific act. It was obvious that he was a suspect. Although his companion, Price, was arrested with him, the investigatory procedures apparently were directed at Kemp alone.

After each show-up in which Kemp appeared, he was told that a victim had pointed him out. Admittedly, no one told him that the police were attempting to solve three similar crimes. Not even after the third identification was he told that the police investigation was completed. So far as Kemp knew, the chain of show-ups, reports that he had been identified and refusals to allow him to contact his sister might have continued. And, in the course of twenty-four to thirty hours, he was given sufficient opportunity to consider, alone, the full range of possible steps the police and prosecutors might take.

Finally, the spectre of possible life imprisonment was paraded before him. Psychological pressure, unlike physical coercion, does not require direct action by the police. It leaves no external evidence. To convince the court that the writ of habeas corpus should issue, the petitioner must do more than put forth his own subjective analysis of the treatment accorded him. The facts enumerated above, the substantial inconsistencies which appear in the testimony of the police officers, the doubts revealed by a close examination of the statements obtained and the failure, by the prosecution at the trial and the respondent in this court, to produce evidence which should have been easily available and which could have refuted petitioner’s contentions form a background against which Kemp’s relation of the factors leading to his signing the confessions achieves objective confirmation.

Under these circumstances, we conclude that the statements obtained from the petitioner were not clearly the product of the voluntary exercise of his free will and therefore not properly admissible at his trial.

While the findings above are fully sufficient to require issuance of the writ, that conclusion is supported by other principles as well. Our constitutional traditions and legal institutions are grounded on the conviction that a society which seeks both to maximize individual liberty and preserve community order must be governed by a sense of justice. To this end we have evolved principles . and procedures, among them the right to trial by jury, the right to counsel, the privilege against self-incrimination, and the prohibitions against arbitrary exercise of power incorporated in the concept of due process of law.

The interpretation of the Fourteenth Amendment in recent years has been further clarified in various circumstances, and the application of the Fifth and Sixth Amendments to the States has been confirmed by the Supreme Court. The constitutional importance of uniform standards of protection for defendants in criminal cases is evident in the Court’s decisions in Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1963); Es-cobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); and Pointer v. State of Texas, 85 S.Ct. 1065 (1965).

Of these decisions, Gideon, Malloy and Escobedo are particularly relevant to the facts of the instant petition. They affirm the principle that confessions obtained from persons accused of a crime after prolonged detention are constitutionally inadmissible as evidence unless, within a reasonable time after the accusatory process has begun, the accused is advised of his right to counsel, his right to remain silent and the fact that any statement made may be used against him in a trial. While it may be more desirable to employ a disinterested third person, such as a magistrate, to give a potential defendant this advice, the constitutional imperative is that the information be conveyed at the inception of the accusatory process either by the police officials or by a judicial officer.

The importance of this requirement of the Fifth and Fourteenth Amendments as a necessary adjunct of the right to counsel confirmed in Gideon and the privilege against self-incrimination affirmed in Malloy is fully stated in the Court’s opinion in Escobedo:

“ * * * Petitioner had become the accused, and the purpose of the in-interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so. At the time of his arrest and throughout the course of the interrogation, the police told petitioner that they had convincing evidence that he had fired the fatal shots. Without informing him of his absolute right to remain silent in the face of this accusation, the police urged him to make a statement.” * * *

“In Gideon v. Wainwright, 372 U. S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, we held that every person accused of a crime, whether state or federal, is entitled to a lawyer at trial. The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the ‘right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination.’ In re Groban, 352 U.S. 330, 344, 77 S.Ct. 510, 519,1 L.Ed.2d 376 (Black, J., dissenting). “ * * * The right to counsel would indeed be hollow if it began at a period when few confessions were obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criti-calness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor of the right of the accused to be advised by his lawyer of his privilege against self-incrimination.” 378 U.S. at 485, 487-488, 84 S.Ct. 1764.

Once the accusatory process and the attempt to elicit incriminating statements has begun, the failure to warn the suspect of his absolute constitutional right to remain silent and the failure to give him an opportunity to consult with counsel is a violation of the Constitution. Under such circumstances, “no statement elicited by the police during the interrogation may be used against [the suspect] him at a criminal trial.” 378 U.S. 491, 84 S.Ct. 1765.

As Mr. Justice White, dissenting, points out, the application of Escobedo in the light of prior Supreme Court decisions cannot depend upon “whether the accused has retained his own counsel (citing cases) or has asked to consult with counsel in the course of interrogation.” 378 U.S. at 495, 84 S.Ct. at 1767. It would offend our sense of justice to conclude that a right so essential to our adversary system could be so conditioned where the accused has not been informed of his rights and particularly, in the circumstances here presented, where the accused is given no opportunity to contact family or counsel until after a confession has been obtained.

Absent the assurance that the accused will be advised of his right to remain silent and the possibility that his statements may be used in prosecuting him; that he will be informed of his right to counsel and that he will be given an opportunity to secure counsel, the constitutional rights confirmed in Gideon, Malloy and Escobedo lose their impact. They become available only to those who are fully aware of their rights and are able to exercise them in the face of police interrogation. As noted earlier, constitutional rights are not so tenuous.

As we read the holdings of the Supreme Court previously referred to, they require the exclusion from evidence of any confession obtained by interrogation prior to either a constitutional warning by the interrogating official or, in the alternative, presentment before a magistrate where such warning is given.

It should be noted that the practice of advising a defendant of his right not to answer questions, to consult counsel and that anything he says may be subsequently used against him has been followed by the Federal Bureau of Investigation and federal law enforcement agencies for many years without impairing their effectiveness while at the same time increasing the probable accuracy of statements or confessions obtained by them.

This procedure was admittedly not followed in Kemp’s case and constitutes a second reason why his confession should not have been admitted into evidence. Accordingly, we conclude that Thomas E. Kemp is being unlawfully detained in the Illinois State Penitentiary and he is entitled to a writ of habeas corpus and should be discharged from respondent’s custody.

Of course, the State is at liberty to seek a new trial in this matter, subject, however, to the exclusion of prohibited evidence in accordance with this opinion. For this reason, and to allow respondent to determine whether any further procedural steps should be taken, we will delay our order until sixty days hence.

At that time the instant petition shall be granted and the writ of habeas corpus shall issue.