Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.
The question for decision is whether William Wade's confession, obtained during a detention of 23 hours, was involuntary so that its use by the state in order to convict him for felony murder*fn1 in the Westchester County Court was in violation of his constitutional rights. Wade was tried as a principal who aided and abetted three inmates of Sing Sing Prison who while they were escaping killed a prison guard.
We find on the admitted facts that Wade's confession was involuntary and thus its use was in violation of due process of law guaranteed by the Fourteenth Amendment, and that without the confession there was insufficient evidence to convict Wade. As Wade's further detention under sentence of life imprisonment is unwarranted we reverse the order of the District Court for the Northern District of New York which denied him the writ of habeas corpus and direct that the writ issue forthwith.
At the trial which resulted in Wade's conviction in June 1941 for felony murder committed on April 14, 1941, he objected at every point to the introduction of his two unsigned question-and-answer statements to the District Attorney. The County Judge denied the motion to exclude and under the New York rule left to the jury the question of whether the confession was voluntary. See 21 U.Chi.L.Rev. 317 (1954). After deliberating for over 28 hours the jury found Wade, two of the convicts and one Edward Kiernan guilty of first degree murder, but in the case of Wade and Kiernan they recommended mercy and life imprisonment.*fn2
The Attorney General does not dispute that Wade has exhausted his state remedies as required by 28 U.S.C. § 2253. The Appellate Division affirmed Wade's conviction without opinion, People v. Wade, 2 Dept. 1942, 265 App.Div. 867, 38 N.Y.S.2d 369, and the Court of Appeals did likewise, 1943, 291 N.Y. 574, 50 N.E.2d 660, reargument denied 1944, 292 N.Y. 577, 54 N.E.2d 693. It should be noted that at no time has any state court judge set forth the reasons for the unanimous rejection of Wade's claims. The Supreme Court denied certiorari 1943, 320 U.S. 789, 64 S. Ct. 200, 88 L. Ed. 475, rehearing denied 1944, 320 U.S. 815, 64 S. Ct. 426, 88 L. Ed. 492, the petitioner appearing pro se in the Supreme Court. On his appeals Wade argued that his confession was involuntary and this claim was the subject of his first petition to the District Court filed on July 20, 1956.
Wade's second petition of February 1957 alleged suppression of evidence by the District Attorney in failing to produce the clothing Wade wore during his detention prior to arraignment and in taking measures to make one of Wade's alibi witnesses unavailable. The suppression of evidence claims were first raised November 1955 by application for coram nobis which was denied by the Westchester County Court on March 17, 1956. The Appellate Division denied leave to appeal in forma pauperis on April 23, 1956, and certiorari was likewise denied 1957, 352 U.S. 974, 77 S. Ct. 372, 1 L. Ed. 2d 328. Having done all he could to seek redress in the state courts and in the Supreme Court of the United States, Wade was clearly entitled to a hearing in the federal courts. United States ex rel. Marcial v. Fay, 2 Cir., 1957, 247 F.2d 662, United States ex rel. Smith v. Jackson, 2 Cir., 1956, 234 F.2d 742.
After Wade filed his first petition in July 1956, Judge Foley ordered the Attorney General and the District Attorney to show cause. They filed affidavits and the record of the trial, the briefs filed in the Court of Appeals and the petitions for certiorari. On these papers and the oral argument of the Attorney General, Judge Foley considered the petition. As the questions at issue were the admitted facts before the trial court and the inferences to be drawn therefrom, it was quite proper for Judge Foley to dispense with a hearing and to make his decision on the basis of the record already made. Brown v. Allen, 1953, 344 U.S. 443, 503, 73 S. Ct. 397, 97 L. Ed. 469; United States ex rel. Caminito v. Murphy, 2 Cir., 1955, 222 F.2d 698, certiorari denied 350 U.S. 896, 76 S. Ct. 155, 100 L. Ed. 788. Judge Foley denied the first petition on September 26, 1956, D.C., 144 F.Supp. 458. By consent that appeal was held in abeyance until the state courts had acted on the coram nobis application and until Judge Foley had passed on the questions raised in the second petition of February 1957, which he did on July 17, 1957. In his denial of Wade's petitions Judge Foley appears to have rested heavily on the unanimous state court decisions all of which were without opinion. Nevertheless he granted certificates of probable cause which permitted the prosecution of these appeals.
We are mindful that the federal courts should be loath to interfere with the course of criminal justice administered by a state where a serious crime has been committed, here the fatal shooting of a prison guard by three escaping inmates. We are also fully aware of the undesirability of setting aside a seventeen year old jury verdict which, until now, has been unanimously affirmed by the New York appellate courts, both on the original appeal and in subsequent proceedings. Watts v. State of Indiana, 1949, 338 U.S. 49, 50, 69 S. Ct. 1347, 93 L. Ed. 1801.
Notwithstanding whatever weight it may be appropriate to assign to such review as the state courts may have made of such a claimed violation of constitutional rights, it is the duty of the federal courts to make their own independent examination of the record to determine whether on the basis of the undisputed facts there is any merit to the claim. If the undisputed facts disclose that a defendant's confession was involuntary, and it appears that without this evidence he would not have been convicted, his conviction and detention have been obtained in violation of the due process of law promised by the Fourteenth Amendment. In such cases the writ of habeas corpus should issue. Leyra v. Denno, 1954, 347 U.S. 556, 74 S. Ct. 716, 98 L. Ed. 948; United States ex rel. Caminito v. Murphy, Supra. See, also, Stein v. People of State of New York, 1953, 346 U.S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522. Doubtless it was word of the Leyra and Caminito decisions which dealt with facts strikingly similar to those at bar, which stirred the petitioner to knock on the federal court doors fifteen years after his conviction. Of course, such a lapse of time does not bar the petition. In Palmer v. Ashe, 1951, 342 U.S. 134, 72 S. Ct. 191, 96 L. Ed. 154, the Supreme Court ordered a hearing for a habeas corpus petition which attacked a conviction 18 years old. In Caminito, supra, the writ was granted 14 years after the conviction. We have held that a delay of 13 years between conviction and the petition should not prevent the issuance of the writ, Savini v. Jackson, 2 Cir., 1957, 250 F.2d 349.
Thus it is our duty to examine the trial record of 2,688 pages in three printed volumes of testimony and exhibits considered by the jury in Westchester County at the trial which lasted from May 26 to June 27, 1941, for such undisputed facts as bear upon the 23 hour period from Wade's arrest at 3 A.M. on April 14, 1941, to his arraignment at 2 A.M. on April 15, and the circumstances surrounding the two question-and-answer statements which were stenographically recorded at the State Police Barracks at Hawthorne commencing at 10:13 P.M. of April 14 and later at 1:03 A.M. of April 15.
Wade's claim of coercion was first made when he testified at his trial and is repeated in his petition. In summary his claim is that commencing shortly after he was brought to the Ossining police headquarters he was repeatedly struck and kicked by officers and troopers of the State Police and this treatment continued after his removal to the Barracks. He charges that he was continually knocked down and pulled up by his hair and later by a rope tied around his wrists until he bled profesely, that he was punched in the face and kicked in the groin, that he had no sleep at any time, and had no food until after his second statement when he was given a glass of milk and some water after 22 hours of confinement. As a result of this treatment Wade asserts that he could resist no longer and he finally gave the answers which were suggested to him and that his incriminating answers were not the truth.
Just before 3 A.M. in the early morning of April 14, 1941, Wade and Kiernan were arrested by an Ossining police officer, Vincent Kelly, just as they were about to take a taxi at Langton's taxi office on May Street to go to White Plains. Within the half hour preceding, Riordan, McGale and Waters, serving time at Sing Sing Prison, had made a miraculous escape after many months of planning. In the prison hospital McGale and Waters shot and killed a prison guard, John Hartye, just after he had made his 2:30 A.M. report. All three then made their way to the basement, opened numberous doors by means of keys secretly made, and went through a 314 foot long tunnel which carried various pipes to a power house across the New York Central tracks. The tunnel opened 30 feet above the railroad tracks and they slid down a rope and ran along the tracks to the street. There they unexpectedly encountered an Ossining police car and in an exchange of gunfire a policeman was killed*fn3 and Waters was either killed or took his own life.
It was immediately apparent to the police, and it was amply proven at the trial, that the prison break had required not only long and careful planning by the prisoners but outside help to smuggle in the guns and ammunition which the convicts used in their escape. In addition, around 5:30 A.M., three hours after the break, Ossining police found a Plymouth sedan parked under the ramp near the railroad station. In the rear seat were a machine gun and rounds of ammunition. The Plymouth turned out to have been stolen from 39th Street and 7th Avenue in New York City where it had been parked at 7:30 P.M. the evening before. When found it bore the license plates of a Pontiac which had been stolen in New York on February 22.
Meanwhile when first questioned after their arrest, Wade and Kiernan stated that they had driven up from New York with two girls, that they had had a fight with them when they got to Ossining and that the girls drove away and left them. Wade gave his true name and address and for identification produced a bill of sale for an automobile. Wade consistently denied any knowledge about the jail break until 8 P.M. on April 14, which was 17 hours after his arrest. The statements obtained by the end of 23 hours of confinement and questioning told quite a different story. In brief Wade finally admitted that he had twice trailed the truck which delivered milk inside the prison so that the guns and ammunition could be secreted and so delivered to Waters, that he had stolen the Plymouth, that he knew about the machine gun, and that he and Kiernan had driven up to Ossining with two other friends, ...