Before CHASE, Chief Judge, and CLARK and FRANK, Circuit Judges.
This appeal is by Camilo Weston Leyra from the denial of his petition for a writ of habeas corpus wherein he asserted a violation of constitutional due process in his trial and conviction for murder and sentence to death in the courts of the State of New York. His first trial and conviction, for murder of his parents, resulted in a reversal by a unanimous Court of Appeals of New York for improper admission of a confession. People v. Leyra, 302 N.Y. 353, 98 N.E.2d 553. A second conviction, for his father's murder,*fn1 was affirmed by a majority of the Court of Appeals, People v. Leyra, 304 N.Y. 468, 108 N.E.2d 673; a petition for a writ of certiorari to the Supreme Court of the United States was denied, Leyra v. New York, 345 U.S. 918, 73 S. Ct. 730, and thereafter an application for a rehearing was denied, 345 U.S. 946, 73 S. Ct. 835. Thereupon he brought a petition for a writ of habeas corpus to the district court, which Judge Ryan denied in a reasoned opinion reported in Leyra v. Denno, D.C.S.D.N.Y., 113 F.Supp. 556. This appeal followed.
The issue here concerns the use in the trials of confessions by petitioner to the brutal hammer murders of his elderly parents. As presented on the second appeal, after the first appeal had established the invalidity by reason of mental coercion and promises of leniency of a confession made to a Doctor Helfand, the question was whether this invalidity also permeated certain other and later confessions, which the jury considered and by their verdicts held to be freely made, to such an extent that as a matter of law they, too, must be held invalid. Since a majority of the state Court of Appeals has held that the issue as to their voluntary character was correctly submitted to the jury, the question before us is narrowly whether that ruling as to the nature and state of the evidence was so unjustified as to be a denial of due process of law requiring federal interference to protect petitioner in his constitutional rights. Whatever of anomaly there may appear to be in a bench of one or more federal judges thus reviewing a decision to which in all details an outstanding state tribunal has given the most careful and conscientious attention, there can be no doubt of our duty to do just this; indeed, it is often reiterated in Supreme Court opinions, of which the latest are Brown v. Allen, 344 U.S. 443, 458, 507, 508, 73 S. Ct. 397, 437, and Stein v. New York, 346 U.S. 156, 170, 180-182, 73 S. Ct. 1077. We cannot escape the heavy responsibility involved in this review.
We therefore turn at once to the confessions which precipitated the issue. We need not deal with the details of the crime, which are sufficiently described in the state court opinions. It appears that after discovery of the bodies of the Leyras as found in their home, made in fact by petitioner, he came almost immediately under suspicion. After two days and a night of intermittent questioning in the custody of the police, and after his complaints that his sinus was bothering him, petitioner was introduced to a Dr. Max Helfand, physician and psychiatrist. Dr. Helfand was unconnected with the police department, but, unknown to petitioner, had been summoned and briefed by the District Attorney. Left alone with petitioner in a wired room, they talked for an hour and a half, while the police listened to and recorded the conversation. The statements thus elicited from petitioner were admitted at the first trial and were the basis of the reversal, where they were held to be coerced as a matter of law. They were brought into the second trial partly by petitioner in attempting to show that details of later confessions had been planted in his mind by Helfand, and the rest by the State in rebutting this contention. This testimony was property isolated in the charge to the jury as bearing only on the voluntary nature of later confessions, and its admission is not here in issue.
At the close of the case the trial judge charged that the statements elicited by Helfand were, as a matter of law, induced by coercion, and hence not to be considered on the issue of guilt. He further charged that, as a matter of law, the statements were induced by an authorized promise of leniency and were therefore invalid. In general the two invalidating factors of mental coercion and inducement by promise were linked together in the judge's references to them, as where he told the jury "that you are bound to consider the established fact that Dr. Helfand practiced illegal coercion upon the defendant and made authorized promises of leniency to him. The presumption is that such coercion and promise of leniency continued to affect the defendant's later confessions; unless the prosecution has convinced you, beyond a reasonable doubt, from all the credible evidence in the case, that such coercion and promise of leniency did not extend over and affect the later confession made to Meenahan. Unless you are so convinced, the later confession made to Meenahan must be entirely disregarded and not considered by you as evidence of guilt." But since, as noted below, the issue has developed more specifically with respect to the effect of the promise, it is well to note exactly what appears to be the one instance where the judge did treat this, at least comparatively speaking, as a separate matter, viz.:
"I charge you, gentlemen, as a matter of law, that the so-called Helfand confession was not voluntarily made; that it was due to mental coercion practiced by the physician upon the defendant. That, in and of itself, renders it worthless as evidence of guilt. It may not be regarded by you, even in the slightest degree, as any evidence of guilt. I charge you also, as a matter of law, that this so-called Helfand confession is invalid and may not be considered by you as evidence of guilt, on the further ground that Dr. Helfand, who was then acting for the District Attorney, made a promise to the defendant in order to induce him to confess, and, thus, did induce him to confess by reason of such promise; the said promise being, in effect, that if he made such confession, he, the defendant, would not be prosecuted for the capital offense of murder in the first degree, but, possibly, for a lesser crime. Therefore, it is now clear that the Helfand confession may not, under any circumstances, be considered by the jury as evidence of guilt. The Helfand confession becomes material with regard to another problem which I shall discuss with you later."
This other problem with regard to which the confession to Dr. Helfand did become material was, as stated above, that of carry-over of the invalidating factors to affect the other confessions. This problem developed because on the first appeal the court, differentiating the accused's responses to Dr. Helfand (the so-called Helfand confession), had said that whether the coercion found implicit in the accused's statements to the doctor carried over and into the later confessions was a question of fact for the jury which there had never been properly submitted to it. People v. Leyra, supra, 302 N.Y. 353, 365, 366, 98 N.E.2d 553. So the second trial was devoted substantially to the question of the admissibility of the later confessions, the first one to Police Captain Meenahan, the next (with the police out of the room) to the accused's business associate Herrschaft, and the final one in extensive narrative to two assistant district attorneys. Not all of these stood on the same basis. The one to the police captain, directly following the activities of Dr. Helfand, was naturally the most vulnerable. The testimony of Herrschaft, to whom he said, "I did it," while not necessarily showing premeditation, was, on the other hand, the most natural; the dissenting judges did not question the jury's finding as to the voluntary character of these statements and no issue is raised as to them here. Moreover, they well might have bearing on the other confessions; thus counsel for the respondent stresses petitioner's failure to complain to Herrschaft, his associate and friend, that he had been coerced to confess to the police captain. And the later statements to the assistant district attorneys, made according to their testimony when his demeanor was normal and when the was cool and calm and told the entire story, might well be regarded as of persuasive effect.
In addition to the testimony of the various participants in or witnesses to the confessions - with the exception of the accused, who did not take the stand in the second trial - there was extensive testimony by two qualified psychiatric experts as to the possibility of a carry-over of the mental coercion and promise of leniency made by Dr. Helfand to affect the later confessions. The two experts differed pretty completely; the one for the accused gave his view that there would be such a carry-over, while the contrary conclusion was expressed by a doctor appearing for the State, who was cross-examined in great detail and at length when offered both in chief and on rebuttal. While the first questions put to these doctors were framed in terms of explicit reference to the mental coercion, yet upon direct prompting of the court they were extended to and did specifically include the effect of the promises.*fn2 There can be no doubt that if expert testimony is competent to do so, these doctors did create a conflict in the evidence justifying submission of the issue of voluntary character of the later three confessions to the jury. It was so submitted under a very full charge and the verdict of the jury may, we believe, be take as settling the issue.
So far as affects the issue of mental coercion this seems to be accepted. But as to the issue of inducement by promises a very able dissenting opinion by Judge Fuld, concurred in by the late Chief Judge Loughran, presents a special problem. Judge Fuld says that when the judge charged that Dr. Helfand had promised the accused, to induce him to confess, that he would not be prosecuted for first-degree murder, and that this was authorized by the district attorney and induced the confession, which was therefore inadmissible as a matter of law under N.Y.Code of Criminal Procedure § 395, that charge became "the law of the case" and it follows "as a matter of ineluctable logic" that all other confessions to the district attorney or his representatives must also be deemed to have been induced by the promise and be likewise inadmissible."Accordingly, when the court further instructed the jury that it might find that the confessions to assistants of the district attorney and to a police captain - made within an hour or two after immunity had been promised - had not been induced by the promise, it pursued a course that was not only opposed to logic, but incompatible with the law of the case. That was error highly prejudicial to defendant." People v. Leyra, supra, 304 N.Y. 468, 473, 108 N.E.2d 673, 674.
There is no doubt of the force of the picture thus deftly etched; but we think Judge Dye for the majority has given the answer, at least so far as constitutional due process is concerned. In the last paragraph of the opinion, 304 N.Y. at page 472, 108 N.E.2d 673, 674, Judge Dye says that the law of the case can be taken only from the total effect of the charge as a whole and not from isolated statements, and that the charge, while excluding the Helfand confession quite completely, nevertheless specifically allowed the jury to pass on the validity of the other confessions from the standpoint of both coercion and inducement. And he ends with the significant statement that because the trial judge had also ruled the confession worthless, "because a promise had been made as a matter of law, did not in any way prejudice the defendant. It was, if anything, to his advantage." Three judges concurred in this opinion; another, Judge Froessel, concurred in the result in reliance upon N.Y.Code of Criminal Procedure § 542, which permits the court to give judgment "without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties."
While action by the New York Court of Appeals does not lessen our responsibility for re-examination of the question federal-wise, we do gain benefit from this careful consideration, not the less from the attitude of the fourth or concurring judge as from that of the three majority judges. For although he does not state his reasons explicitly, it seems obvious that his reliance on § 542 must stem from his conclusion that petitioner could not be considered harmed by an overfavorable charge. Our independent examination of the record leads us to a like result.
Of course if it must be taken as law for this case that Dr. Helfand on behalf of the prosecutor promised petitioner prosecution only on the charge of second-degree murder or less, in return for his confession, it would be difficult to see why a confession made shortly thereafter to Captain Meenahan, who took over the doctor's role, would not be as vulnerable as the admissions made to the doctor. This is the basis accepted by Judge Fuld, who therefore did not examine the nature of the evidence as to the promises. Whether we should have likewise concluded, had we been sitting as state judges of review, is not now important; for the majority rejected that conception of the law, and we can see no constitutional requirement that the trial judge's view must control throughout Constitution-wise we are thrown back to the actual evidence and what it required. Looking at that, we do not think the trial judge's characterization of the inducement - quoted above - can properly be accepted in the extensive form claimed. It is to be noted that there the judge was giving his reason for his exclusionary ruling just made. But even if the reason can be raised to the dignity of the ruling itself, it went beyond the actual evidence in depicting a specific and clear-cut promise. The complete record of the doctor's entire performance shows no clear differentiation between threats and inducement and nowhere a specific and definite promise of a lesser charge as the reward for confession. True, the doctor's offensive activities produced certain statements of convenient vagueness from which a person of some sophistication in the law could have drawn that conclusion. Actually the accused never indicated in any way that he did make such a deduction, either in his response to the doctor's advances or in the testimony which he gave at the first trial.
Carefully examined, the record of what the doctor said and did shows an extensive intermixture of wheedling and threats to induce the accused to admit commission of the homicides in a fit of temper. In addition to reiterated minatory language, there were many instances of his having offered to help, of his being with the accused "a hundred per cent" provided the latter told the truth, and the like. Perhaps nothing makes the unspecific character of the threats and promises more apparent than the reference chiefly relied on to show the nature of the intended inducement, the most specific statement in the record:
"These people are going to throw the book at you unless you can show that in a fit of temper, you got so angry that you did it. Otherwise they toss premeditation in and it's premeditation. See?"
Without any thought of minimizing the despicable nature of the doctor's conduct, we do feel it necessary to conclude that there is no basis in the evidence for the sharp dichotomy between threats and promise at the basis of petitioner's appeal to us. We think the resume given by the court on the first appeal well states this intermixture of act, threat, and inducement, viz.: "Bearing in mind the undisputed setting in which this interview was arranged and recorded, while defendant was in custody of the police; defendant's physical and mental condition at the time, already alluded to; the psychiatrist, calling himself defendant's doctor, playing upon the latter's natural fears and hopes, pressing his hands upon defendant's head with accompanying commands, and suggesting details to an unwilling mind by persistent and unceasing questioning; informing defendant that he was not morally responsible; making deceptive offers of friendship and numberous promises, express and implied; giving assurances in a pseudo-confidential atmosphere of physician and patent; and all the attendant circumstances taken together - this interview was a subtle intrusion upon the rights of defendant and was tantamount to a form of mental coercion, which, despite the good faith of the prosecution, we may not countenance here." People v. Leyra, supra, 302 N.Y. 353, 362, 363, 98 N.E.2d 553, 558.
On the record, therefore, it does not seem appropriate or justified to say that, while a jury issue was presented as to the carry-over effects of the mental coercion practiced by Helfand with respect to the later confessions, yet only a single conclusion, constitution-wise, was possible as to the inducements by promise. Both really stand together as parts of one single chain of conduct with a single purpose and hardly differing acts. And we conclude that both together present a single problem properly submitted to the jury. Indeed, there would seem little doubt as to the Herrschaft confession and the later statements to the district attorneys. But we think the same conclusion is to be reached as to the Meenahan confession. Before the jury was detailed testimony as to the petitioner's attitude and apparent physical condition both before the doctor and later with the police captain, the nature and form of his responses, and the effect which all this evidence made upon two trained experts. That they differed markedly in their conclusions made it all the more a matter for the jury who saw and heard them to decide on the facts; we, who must approach the matter only from the cold record, are not justified in presenting our lately developed guesses or even convictions as constitutionally the only true course for the jury and judges in the state courts to follow.
We therefore find no constitutional infirmity in the procedure followed in the state courts. Consequently the petition for a writ of habeas corpus was properly denied by the district court.
1. Excerpts from statements by Dr. Helfand to defendant
"Q. If you tell us the details and come across like a good man, then we can help you. We know that morally you well just in anger. Morally you are not to be condemned. Right? A. Right.
"Q. But you have to tell us the details, then we will know that you are above board and on the level. Otherwise, we just don't do nothing to you and you will get the worst of it. * * *
"Q. You may as well tell us and we'll work with you. We'll play ball with you.We'll help you if we can * * *.
"Don't be afraid. We're all with you. We want to help you. * * *
"* * * [So] you may as well tell us and get out help. If you don't tell us and get out help, ...