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May 13, 1971

UNITED STATES of America ex rel. Robert CLAYTON, Petitioner,
Vincent MANCUSI, Warden of Attica Prison, Attica, N.Y., Respondent

Bartels, District Judge.

The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

Petitioner, Robert Clayton, presently incarcerated in Attica Correctional Facility, Attica, N.Y., upon conviction, after a jury trial, of second degree murder, seeks his release through federal habeas corpus. He was sentenced to a term of thirty years to life imprisonment on February 25, 1953, and no appeal was taken from the judgment of conviction. His principal claim for release is the introduction at trial of his involuntary confessions in violation of his constitutional rights.

 Pursuant to the decisions of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and People v. Huntley, 15 N.Y. 2d 72, 255 N.Y.S. 2d 838, 204 N.E. 2d 179 (1965), a coram nobis hearing was held on June 8th and 9th, 1965, in the County Court, Suffolk County, upon the issue of voluntariness. After making skeleton findings of historical fact, the County Court concluded "as a matter of fact and law" that the confessions were voluntary. That decision was affirmed by the Appellate Division, Second Department (People v. Clayton, 28 A.D. 2d 543, 279 N.Y.S. 2d 605 (2d Dept. 1967), Judge Christ dissenting upon the ground that the confessions were involuntarily obtained. *fn1" The Court of Appeals affirmed without opinion, 22 N.Y. 2d 841, 293 N.Y.S. 2d 104, 239 N.E. 2d 734 (1968), and the Supreme Court denied certiorari, 394 U.S. 909, 89 S. Ct. 1018, 22 L. Ed. 2d 219 (1969). Clayton thereupon filed the instant petition, asserting that his confessions were involuntary on the following grounds: (1) unreasonable delay in arraignment for more than sixty hours after his initial detention; (2) unlawful detention as a material witness prior to his confession; (3) subjection to continuous interrogation; (4) removal from police headquarters to the scene of the crime on two occasions; (5) denial of food and sleep during his detention; (6) failure to receive advice of the right to counsel and the right to remain silent; and (7) his limited intellectual capacity and poor education. Counsel was appointed by this court and a hearing subsequently held.

 As no direct appeal was ever taken from the judgment of conviction, a certified transcript of the stenographer's trial notes was never made. *fn2" While certain uncertified portions of trial testimony of some witnesses (which apparently had been ordered by counsel for one or both sides during or after trial) have been produced from the files of the District Attorney, these out-of-sequence testimonial fragments have been of only limited use to the court, and primary reliance has of necessity been placed upon the minutes of the State and Federal proceedings for collateral relief.


 According to the coram nobis minutes, as supplemented by the transcript of the evidentiary hearing held in this court and portions of the trial testimony, the facts are as follows:

 On November 3, 1952, at about 3 P.M., Clayton, an indigent, semi-literate potato picker on the Gozelski farm in East Northport, Long Island, was taken into custody along with approximately ten or eleven other people either employed or living at the farm, and brought to the Huntington Town Police Department headquarters for questioning in connection with a homicide which had occurred on the premises the previous day. Upon arriving at the stationhouse, Clayton and the others were placed in a room behind the sergeant's desk, used primarily as a place for the changing of the policemen's shifts every eight hours. It was described as "a very small place," approximately 20 feet by 10 feet. The only furniture in the room consisted of a table and four or five armless wooden chairs. The lights in the room remained on all night. From time to time all through the night of November 3rd Clayton and the others were taken one at a time from the room to another, smaller room on the second floor for questioning by a group of police officers. Some questioning was also conducted in the larger room in the presence of all those in custody. Detective William Van Size, who was among others assigned to the homicide investigation, testified that he specifically spoke to Clayton at about 5 or 6 P.M. on November 3rd. At about 5 A.M. on November 4th a stenographer, Victor Bruns, was called in to transcribe a battery of questions put to Clayton by a team of interrogators, consisting of Walter Weeks, an investigator with the District Attorney's office, Detective Van Size, and another detective, Alfred Kohler. Clayton's answers were also recorded, in the course of which he denied any connection with the homicide and in fact expressed his desire to bring the culprit to justice. The questioning lasted approximately forty-five minutes. Sometime during the late afternoon or evening of November 4th, Clayton was confronted by one B.J. Mickens, a coworker, who stated that Clayton had killed the deceased and that he (Mickens) had helped Clayton carry the victim's body into the potato shed, where it was later discovered. Clayton nevertheless re-asserted his innocence and Mickens subsequently retracted his accusation. *fn3" Clayton was again questioned at 5 or 6 o'clock the evening of November 4th. At approximately 9 o'clock on the evening of November 4th Clayton and Mickens were both "arraigned" before Judge Fred Munder as "material witnesses". Immediately thereafter Clayton was remanded to the custody of the Sheriff of Suffolk County, in lieu of $10,000 bail, and placed alone in a small cell or lockup, designed primarily for temporary detentions, containing a flat board, without a mattress, as the sole sleeping facility. He remained in that cell until he was arraigned on the charge of murder on November 6th, except for the periods he was removed for questioning.

 On November 5th he was questioned several times during the day and may have been taken out to the scene of the crime that afternoon, although this is not clear. *fn4" Following an interrogation of about one and a half to two and a half hours that evening, Clayton, in response to a series of questions propounded by Weeks, in the presence of Deputy Sheriff Otis Barnes and the stenographer, Victor Bruns, finally admitted the homicide. The interrogation was recorded on tape and by the stenographer beginning at 10:10 P.M. on November 5th and was concluded at approximately 10:45 o'clock the same evening, although Weeks testified that the evening interrogation actually commenced at about 8 or 9 P.M.

 Following this confession, Clayton, accompanied by more than ten police officers and investigators, was transported to the farm sometime around 11:30 P.M., where he proceeded to point out to the officers a number of objects connected with the homicide, which were seized by the investigators as evidence. The trial transcript reveals that further incriminating statements were made at the farm and introduced at the trial. Following Clayton's return to police headquarters, his earlier confession, which had in the meantime been transcribed from the stenographer's shorthand notes, was read to him, beginning at 2:16 A.M. on November 6th. He then dictated various changes which he later initialed, the entire process ending at about 3 A.M. At 3:12 A.M. Clayton requested permission to send a telegram to his mother. The request was granted and the telegram, in which Clayton stated "I have killed a man", was admitted into evidence and read to the jury. Later that day Clayton was arraigned on a charge of murder.


 The crucial question here presented is whether Clayton's confessions were voluntary under the "totality of the circumstances" (Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); Clewis v. Texas, 386 U.S. 707, 708, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967)) and "the product of an essentially free and unconstrained choice" (Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037 (1961)), rather than the product of a will overborne. Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963). Upon this question, Clayton's guilt or innocence is immaterial.

 After a review of all the available evidence, it is my view that the facts of this case reveal a clear pattern of police dominance and psychological coercion which rendered the resultant confessions *fn5" inadmissible under the foregoing constitutional standards. Among the factors which I believe compel this conclusion are the following:

 (1) During the 55-hour period of custody prior to Clayton's first inculpatory statement, he was never advised of his right to counsel, his right to remain silent, or that what he said could be used against him in evidence. *fn6" While the failure to advise an accused of these rights at the outset of interrogation does not automatically render confessions inadmissible in trials occurring prior to the holding in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), it is nonetheless "a significant factor in considering the voluntariness of statements later made". Davis v. North Carolina, 384 U.S. 737, 740, 86 S. Ct. 1761, 1764, 16 L. Ed. 2d 895 (1966); Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966); Haynes v. Washington, 373 U.S. 503, 510-511, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963); Culombe v. Connecticut, supra, 367 U.S. at 610, 81 S. Ct. 1860; Turner v. Pennsylvania, 338 U.S. 62, 64, 69 S. Ct. 1352, 93 L. Ed. 1810 (1949).

 (2) Clayton's statements were secured following an initial taking-into-custody which was apparently without probable cause and followed by 55 hours of intermittent interrogation before he confessed. Approximately 30 hours after he was brought to the stationhouse, he was illegally arraigned as a "material witness", no criminal proceedings having been formally instituted at that time against anyone in connection with the homicide, in violation of the applicable New York statute. *fn7" There can be no doubt that at this point Clayton had become the target of the investigation and as stated by the majority of the Appellate Division, "defendant's commitment as a material witness * * * effectively amounted to the commencement of criminal proceedings against him" (28 A.D. 2d at 543, 279 N.Y.S. 2d at 606). Of all those originally taken into custody, only Mickens and Clayton were held as material witnesses and thereafter segregated from the others. Had Clayton been arraigned as a defendant, he would have thereupon been informed of his right to counsel. New York Code of Criminal Procedure, ยง 308. The conclusion is virtually inescapable that the "material witness" ...

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