Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and BRYAN, District Judge.
J. JOSEPH SMITH, Circuit Judge.
Relator was convicted of first degree murder in the County Court of Kings County on January 22, 1948. At his sentencing on March 2, 1948, the trial judge refused to follow the jury's recommendation that relator be sentenced to life imprisonment, and on the basis of certain ex parte information, sentenced him to death by electrocution. On direct appeal to the New York Court of Appeals, relator contended that the confessions he had made that were introduced against him at the trial had been coerced and that the sentencing procedure was unconstitutional. The conviction and sentence were affirmed without opinion, People v. Williams, 298 N.Y. 803, 83 N.E.2d 698 (1949). The amended remittitur acknowledged that the court had upheld the constitutionality of the New York statutes which permitted the imposition of a death sentence based on ex parte information. People v. Williams, 298 N.Y. 863, 84 N.E.2d 446 (1949). Relator appealed to the Supreme Court on this question alone, and his sentence was affirmed. Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). However, on November 16, 1949 his sentence was commuted to life imprisonment by Governor Thomas E. Dewey.
The second round of court proceedings was initiated by a petition for a writ of habeas corpus, filed in the District Court for the Northern District of New York, alleging that the confessions admitted at the trial had been coerced. This petition was denied on the merits. United States ex rel. Williams v. LaVallee, 170 F.Supp. 582 (N.D.N.Y.1959). We affirmed on the ground that relator had not yet exhausted his state remedies as required by 28 U.S.C. § 2254, expressing no opinion on the merits. United States ex rel. Williams v. La Vallee, 276 F.2d 645 (2 Cir., 1960). The Supreme Court dismissed relator's appeal, Williams v. La Vallee, 362 U.S. 637, 80 S. Ct. 1082, 4 L. Ed. 2d 1019 (1960), and denied certiorari, 364 U.S. 922, 81 S. Ct. 287, 5 L. Ed. 2d 261 (1960). The New York Court of Appeals denied relator's motion for reargument of the original appeal. People v. Williams, 11 N.Y.2d 888, 227 N.Y.S.2d 1025, 181 N.E.2d 854 (1962), cert. denied 370 U.S. 960, 82 S. Ct. 1614, 8 L. Ed. 2d 826 (1962). A writ of coram nobis was denied by the County Court of Kings County, relator having pursued this remedy at our suggestion on the prior appeal. It is clear that presently existing state remedies are now exhausted; the State makes no argument that they are not. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Relator again brought his petition, this time in the District Court for the Southern District of New York, and it was again denied on the merits. United States ex rel. Williams v. Fay, 211 F.Supp. 359 (S.D.N.Y.1962). He takes this appeal from the order denying his petition. We conclude that this denial was error, that the undisputed facts reveal that relator's confessions were the product of coercion as a matter of law, that the introduction of them against him at trial was a violation of his right to a trial conducted in accordance with the standard of due process of law guaranteed by the Fourteenth Amendment, and that we must therefore reverse and direct that the writ be issued.
The crime for which Williams is now in prison is the slaying of a 15-year old girl during the course of a burglary. The intruder beat her over the head with an iron bar, causing unconsciousness from which she never awakened. Her 10-year old brother was a witness to the crime; he was also struck by the burglar and injured. About 5 months later, on September 8, 1947, at 2:30 A.M., relator was arrested by the police. He is a Negro, then 18 years old, with no prior convictions of crime, but with a history of troble with law enforcement agencies and social maladjustments. Apparently he had had some high school education, but the record does not reveal how much. Relator's physical condition was poor; he had had rheumatic fever which had caused a weakened heart (resulting in his early discharge from the Navy for medical reasons) and swelling in his legs causing difficulty in walking.
After the arrest, the police brought Williams to the station house where, beginning at 3:30 A.M. on September 8th, he was interrogated continually by relays of police. He was not asked about the crime for which he was eventually convicted until about 7:15 P.M. the following evening - indeed the interrogators were forbidden by their superiors to do so - but was questioned about other unsolved local crimes. At 9:15 P.M., after nearly 18 hours of virtually continuous interrogation, Williams confessed orally. The final persuasion was an intimation by the police that they would allow him to see his mother, for whom he had already asked several times, and a chaplain, if he confessed. Williams made a further written confession at about 10:00 P.M. and inculpatory statements at a stenographically-recorded question-and-answer session with an Assistant District Attorney which was not completed until 3:00 A.M. - roughly 24 hours after the interrogation had begun. Newspaper reporters and photographers were also present at this interview. Here, for the first time, Williams was told in a vague way of his right to remain silent. He was never advised of his right to counsel. Notwithstanding all of these admissions, when finally arraigned the next day, September 9, at about 12:30 P.M., some 34 hours after his arrest, Williams pleaded "Not Guilty."
At trial, the various confessions and inculpatory statements Williams had made constituted the only evidence against him - and the trial court so charged the jury. The murdered girl's younger brother was called by the prosecution and testified that the killer was a white man with "red skin" but recanted this the next day, after, apparently, he had been spoken to by the District Attorney and some detectives; in any event, the State admitted on defense cross-examination of this witness that it was not relying on his testimony. Williams' defense was a profession of innocence and an attack on the veracity of the confessions. He testified, and not without some corroboration, to brutal torture by the police which had forced him in despair to confess falsely. The record leaves the impression that Williams grossly exaggerated the story of physical abuse. The police denied anything more than the questioning which we have summarized above. We shall make no further mention of this aspect of the case for whether or not disputed questions of fact are closed to our scrutiny on this proceeding, see Townsend v. Sain, 372 U.S. 293, 313, 315, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), the undisputed facts show coercion under present standards of due process. The trial judge submitted the issue of the voluntariness of the confession to the jury, in accordance with governing New York law. The guilty verdict was necessarily a finding that the confessions had not been coerced. However, the question is not closed by the jury verdict, as the District Court apparently believed. The ultimate fact of coercion is one to be independently determined by the court on application for a writ of habeas corpus from the undisputed historical facts if no hearing has been had.*fn1 Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963); Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716, 98 L. Ed. 948 (1954); Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192 (1944); United States ex rel. Wade v. Jackson, 256 F.2d 7 (2 Cir.), cert. denied 357 U.S. 908, 78 S. Ct. 1152, 2 L. Ed. 2d 1158 (1958). Comparison of the circumstances of relator's detention with the facts of prior decided cases which have found confessions to be coerced makes it plain that under governing law these confessions were not "the voluntary product of a free and unconstrained will," Haynes v. Washington, supra at 514 of 373 U.S. 503, at 1343 of 83 S. Ct. 1336, 10 L. Ed. 2d 513, and that they were therefore inadmissible against him.
In Turner v. Pennsylvania, 338 U.S. 62, 69 S. Ct. 1352, 93 L. Ed. 1810 (1949), the accused was apparently a mature man, who was arrested and questioned over a period of 5 days, never more than 6 hours on any one day. He confessed after a total of about 23 hours questioning - roughly the same amount as Williams. It would be mere speculation on our part to try to determine whether the impact of questioning is better adapted to wear down the accused's will to resist when it is spread over a period of several days, producing a steady abrasion, or whether a single protracted session with fatigue and despair increasingly allied with the inquisitor, will more readily extort a confession. Williams was subject to the latter, Turner to the former, for about the same amount of time. Neither was advised of his right to counsel or his right to remain silent. Moreover, Williams was less able to withstand protracted questioning because of his poor health and comparative youth. Turner's confession was held to have been coerced; Williams presents a situation at least equally compelling.
In Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948), a 15-year old boy confessed after 5 hours questioning when confronted with false confessions made by alleged accomplices. He was not advised of his right to counsel and to remain silent until the signing of the confession. Though Williams was three years older, he was interrogated four times longer than Haley, likewise not advised of his rights, and the immediate occasion of his confession was likewise an impermissible inducement. The Supreme Court found that Haley's confession should have been excluded and the conclusion logically extends to Williams as well.
The accused in Spano v. New York, supra, was 25 years old, foreign born but with some high school education. He had surrendered to the police on the advice of an attorney whom he had retained. His lawyer also quite wisely advised him to remain mute when questioned. After only 8 hours of interrogation, marked by appeals to the accused to confess from a childhood friend then on the police force, Spano confessed. He had not been allowed to consult with his attorney, but presumably was aware of his right to one, and specifically had been advised of his right to remain silent, as Williams had not been. He had a history of emotional instability, but Williams was also maladjusted and considerably younger. In finding the confession to have been the product of impermissible coercion, the Supreme Court emphasized the accused's fatigue after 8 hours of interrogation. If such be the case, the 24 hours of continuous interrogation under the more adverse circumstances that produced Williams' confessions can be nothing else than coercion as a matter of law.
In Haynes v. Washington, supra, there was no claim of physical abuse, deprivation of food or rest, or uninterrupted long periods of questioning. The accused was a mature individual who had a record of previous contacts with the police. Haynes confessed his crime once to the arresting officers on the way to the police station, again after 1/2 hour of questioning that evening, and again during 1 1/2 hours of questioning the next morning. The last confession was signed that afternoon, 16 hours after arrest, and admitted in evidence. This confession was held to have been coerced through the combination of a threat of continued detention and the promise that defendant could see his family if he confessed. This pressure falls far short of that to which Williams was subjected for a longer period of time, and with less ability to resist. It would be little short of irrational to contend that Haynes' confession was coerced while Williams' was not.
Finally, turning to decisions of this court, although other cases from the Supreme Court might be noted (see also Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Fikes v. Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957); Malinski v. New York, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029 (1945)), we find further corroboration of our conclusion. In United States ex rel. Caminito v. Murphy, 222 F.2d 698 (2 Cir.) cert. denied 350 U.S. 896, 76 S. Ct. 155, 100 L. Ed. 788 (1955), the accused was an adult with no prior arrests or convictions. He was interrogated for five hours, starting three hours after his arrest, allowed an eight hour rest in an unheated (it was May, however) and sparsely furnished cell, then interrogated another eleven hours until he confessed. Detectives masquerading as witnesses pretended to identify him. We held the confession thus secured from Caminito to be the product of coercion rather than free will. Adherence to this decision demands the same conclusion for Williams' confessions.
The record of events leading to Williams' confessions yields practically every one of the factors found relevant in the cases cited above in determining whether a confession has been coerced or not. He was subjected to a long and exhausting interrogation by relays of questioners. Perhaps he did not hold out as long as some have, but it was longer than others were able. Compare Ashcraft v. Tennessee, supra (36 hours of interrogation) with Spano v. New York, supra (8 hours of interrogation). Moreover, his weakened physical condition and relative youth must form part of the calculation of what period of questioning would have been permissible. See Haley v. Ohio, supra. Nor was he advised of his right to legal counsel or of his privilege to remain silent, both common factors in many cases. See, e.g., Turner v. Pennsylvania, supra. There was a long delay in arraignment, demonstrating a callous attitude toward the legal rights of the accused on the part of the police. Culombe v. Connecticut, supra. While he was questioned, Williams was held incommunicado despite his efforts to see his mother, the natural person to whom he would turn, and it was the veiled promise that this request would be granted which was the final inducement to confession. See Haynes v. Washington, supra. Finally, when at last brought before a magistrate, he pleaded not guilty, an almost immediate repudiation of the confession which had been wrung from him. See Ashcraft v. Tennessee, supra. A confession obtained by these methods cannot be introduced against an accused consistently with the constitutional guarantee that his life and liberty may not be taken from him without due process of law. Events have made it plain that the innocent as well as the guilty will, on occasion, yield to psychological pressure expertly applied. To protect the innocent the use of products of such pressure must be denied in all cases. While it is the rule stated in the cases, and most recently reiterated in Haynes v. Washington, that the issue of voluntariness is one of ultimate fact, to be determined from the undisputed historical facts, with due weight given to a verdict on the issue by a jury which has observed the witnesses, the cases unmistakably teach that pressures such as those here employed require a ruling of coercion as a matter of law.
We express our appreciation to Pasco M. Bowman II, counsel assigned to represent Williams on this appeal, for services which have been performed in ...