Before CLARK, Chief Judge, and SWAN and MOORE, Circuit Judges.
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.*fn* 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.  at pages 507-508, 73 S. Ct.  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."*fn1 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. Both opinions in Brown v. Allen (Mr. Justice Reed and Mr. Justice Frankfurter) stress the difference between resolution of the factual issues and the determination of constitutional issues. Frequently expressed and implied therein is the thought that first the federal judge must ascertain the basic facts which may be in the state record. If they are not in the record, they may be supplemented by a hearing. These are the "historical facts, the external events that occurred." It is upon these facts that the federal judge is to decide whether the state court "may have misconceived a federal constitutional right." This thought was expressly covered by way of illustration in the opinion of Mr. Justice Frankfurter wherein he said (referring to a fact situation most analogous to this case):
"Moreover, the kinds of State adjudications differ. In some cases the State court has held a hearing and rendered a decision based on specific findings of fact; there may have been review by a higher State court which had before it the pleadings, the testimony, opinions and briefs on appeal. It certainly would make only for burdensome and useless reptition of effort if the federal courts were to rehear the facts in such cases" (Brown v. Allen, 344 U.S. at page 504, 73 S. Ct. at page 445).
This is the type of hearing and review given by the state court here.The entire emphasis in Brown v. Allen is upon a "denial of constitutional rights" based upon "the uncontradicted evidentiary facts" rather than on a retrial to redetermine credibility. This is the indicated area of federal review.
A reading of the alleged coerced confession cases in the Supreme Court over the last few years confirms this view. Thus, in the opinion of the court (Mr. Justice Frankfurter) in Watts v. State of Indiana, 1949, 338 U.S. 49, 50-51, 69 S. Ct. 1347, 1348, 93 L. Ed. 1801, the rule was stated: "On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State Courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State Courts calls for the utmost scruple." In Gallegos v. State of Nebraska, 1951, 342 U.S. 55, 72 S. Ct. 141, 96 L. Ed. 86, "neither judge nor jury accepted the testimony of Gallegos on disputed facts as to coercion" (342 U.S. at page 60, 72 S. Ct. at page 145). The Supreme Court, although recognizing that it was the responsibility of the Federal courts to make the ultimate determination as to the voluntary character of the confession, nevertheless said that because of the better opportunity afforded State agencies to appraise the weight of the evidence and to see the witnesses personally, this reason "leads us to accept their judgment insofar as facts upon which conclusions must be reached are in dispute" (342 U.S. at page 61, 72 S. Ct. at page 145). The court continued, "We [the court] give deference to the [State's] conclusions on disputed and essential issues of what actually happened" (342 U.S. at page 61, 72 S. Ct. at page 145).
Even as in Gallegos, here "The issue of federal due process now tendered is to be considered only on uncontroverted facts" (342 U.S. at page 62, 72 S. Ct. at page 146). Here Rogers, again even as Gallegos, testified to harsh treatment, but this testimony was seriously disputed and resolved by the court and jury, respectively, against them. The function of the Federal court in protecting a defendant against violation of his constitutional rights does not extend to passing upon issues of credibility or to picking and choosing from amongst the various witnesses whose testimony the court may choose to accept or reject.
In passing upon the constitutional issues, the court turns "to the undisputed portions of the record to ascertain the facts against which petitioner's claim of coercion must be measured" (Thomas v. State of Arizona, 1958, 356 U.S. 390, 393, 78 S. Ct. 885, 887, 2 L. Ed. 2d 863). This principle was restated with even greater clarity in the same case, the court saying, "Whatever the merits of this dispute, our inquiry clearly is limited to a study of the undisputed portions of the record. '[There] has been complete agreement that any conflict in testimony as to what actually led to a contested confession is not this Court's concern. Such conflict comes here authoritatively resolved [against petitioner] by the State's adjudication.' Watts v. State of Indiana, 1949, 338 U.S. 49, 51-52, 69 S. Ct. 1347, 1348, 93 L. Ed. 1801. Time and again we have refused to consider disputed facts when determining the issue of coercion."
In this court, Chief Judge Clark cautioned against the "overturn by any federal judge of the reasoned conclusion reached by a whole hierarchy of state tribunals." United States ex rel. Caminito v. Murphy, 2 Cir., 1955, 222 F.2d 698, 706. And, more recently, in United States ex rel. Wade v. Jackson, 2 Cir., 1958, 256 F.2d 7, this Court said that it would review and come to its own independent conclusion "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" (at page 9).
The trial judge's finding that Rogers had not asked to see a lawyer turned on a refusal to credit Rogers' testimony. Capt. Eagan, Assistant Chief of the New Haven Police, testified that Rogers did not ask him for permission to call counsel and that so far as he knew Rogers did not ask anyone else for permission to do so. At the hearing before Judge Smith, Rogers testified but Capt. Eagan did not. However, three detectives of the police force, who had participated in the questioning of Rogers but had not testified at the state trial, testified at the federal hearing that Rogers had not asked to see a lawyer. Judge Smith chose to credit Rogers' testimony. In his opinion on remand he explained that he had done so because it seemed probable that Rogers would ask to see the lawyer who was already representing him on the other charge, and because the recollection of the police officers after so long a period of time would be likely to coincide with what they subconsciously would prefer. Hence, it appears that Judge Smith and the state trial judge reached opposite conclusions on the factual issue whether Rogers asked to see his counsel solely because each reached a different conclusion as to Rogers' credibility. We see no valid reason for substituting the intuitive inferences of an able and conscientious federal judge on the issue of credibility for those of an able and conscientious state trial judge, where the evidence before each was essentially similar as Judge Smith said it was.
However, in a habeas corpus proceeding the federal district judge must make his own determination as to the legal significance of historical facts and the application of constitutional principles to the facts as found. In the words of Mr. Justice Frankfurter in Brown v. Allen, 344 U.S. at page 507, 73 S. Ct. at page 446: "For instance, the question whether established primary facts underlying a confession prove that the confession was coerced or voluntary cannot rest on the State decision."*fn2 Hence, accepting the historical fact that Rogers had not asked to see counsel during the period of questioning, determination whether his constitutional rights were violated by use of the confession in his trial remained to be made by Judge Smith. He concluded that they were not violated. A majority of this court agrees.
As Brown v. Allen points out, 344 U.S. at page 510, 73 S. Ct. at page 448, in habeas corpus petitions the Congress has designated the district court to be the instrument of the application of the superior authority of the federal law. Congress might have designated another member of "the hierarchy of the federal judiciary" to express that law but it chose the district court rather than the court of appeals or the Supreme Court. Therefore the district court's review on habeas corpus of a state conviction is not, "a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law." But since the application of federal law to state convictions has been assured by the district court's review, our review of the district court's judgment becomes the ordinary appellate review wherein a higher court sits in judgment of a lower court's determination. Accordingly, we ought to apply the normal "clearly erroneous" standard of review. Wade v. Mayo, 1948, 334 U.S. 672, 68 S. Ct. 1270, 92 L. Ed. 1647; Palakiko v. Harper, 9 Cir., 1953, 209 F.2d 75, 93; Albert ex rel. Buice v. Patterson, 1 Cir., 1946, 155 F.2d 429, 433, seem clearly to dictate such a conclusion. See also Cranor v. Gonzales, 9 Cir., 1955, 226 F.2d 83, 94.
The facts concerning the making of the confessions are set out in detail in an Appendix to this opinion, which reproduces pages 314-320 of appellant's Appendix A. We need not restate them.
The fact that Rogers was taken from jail to the State's Attorney's office without a court order could not have affected the voluntariness of his confession since he was unaware of it. Finding 106.
The manner in which he was questioned does not appear to have been abusive nor so prolonged as to warrant the conclusion that his first confession was coerced.*fn3 It should be emphasized that Rogers was not an indicted defendant but a suspect who was being questioned in the course of investigating an unsolved crime, a distinction often recognized by the Supreme Court.*fn4 Moreover, Rogers was no novice in respect to contact with the police. His brother was a police officer. At the time of the questioning Rogers was under arrest on a charge of robbery and had previously been under arrest on three other occasions. He was 46 years of age and the state trial court found him "highly intelligent," although his formal education was only through the eighth grade. A man of his age, intelligence and experience is not likely to be frightened into confessing to murder by questioning in the manner here employed.*fn5
Rogers claimed at the trial that he confessed because he did not want his wife brought in for questioning when she was practically crippled with arthritis. Assuming she was crippled, although no proof of it was offered at the trial, there is no evidence that Capt. Eagan was aware of her condition. The only objection made to him when he threatened to bring the wife in for questioning was that she didn't know anything about the murder. She was a legitimate subject of police inquiry.*fn6 In the absence of evidence that the police knew of Mrs. Rogers' arthritic condition and sought to take advantage of it to pressure Rogers into a confession, his decision to shield his wife from questioning does not, in our opinion, render his confession involuntary within the meaning of the due process clause of the Fourteenth Amendment.
We have concluded that the police questioning of Rogers did not render his first confession involuntary. We also hold that Rogers' second confession was not a product of coercion.This second confession was made to the coroner some 16 or 17 hours after the police questioning that led to the first confession had ceased and after the coroner had informed Rogers of his right to remain silent and of his right to counsel.
The court expresses gratitude to assigned counsel for their very competent services in representing the appellant.
For the reasons above stated the judgment discharging the writ is affirmed.
Below are set forth pages 314-320 of Appellant's Appendix A.
Hearing on Admissibility of Exhibit VV
The State through Assistant Chief of Police Raymond Eagan sought to offer in evidence the statement made by the accused on the night of January 30, 1954, whereupon the Court in the absence of the Jury ...