Hon. Vincent A. Mancusi, Warden, Attica State Prison v. United States Ex Rel. Robert Clayton, 454 F.2d 454, 2d Cir. (1972)

454 F.
2d 454
Hon. Vincent A. MANCUSI, Warden, Attica State Prison,

Respondent-Appellant,
v.
UNITED STATES ex rel. Robert CLAYTON, PetitionerAppellee.
No. 218, Docket 71-1696.
United States Court of Appeals,

Second Circuit.
Argued Oct. 8, 1971.
Decided Jan. 17, 1972.
Samuel A. Hirshowitz, First Asst. Atty. Gen. (Louis J. Lefkowitz, Atty.

Gen. of State of New York, Amy Juviler, Asst. Atty. Gen., of counsel), for
respondent-appellant.
Frederic Block, Centereach, N. Y., for petitioner-appellee.
Before WATERMAN and SMITH, Circuit Judges, and ZAMPANO,*
District Judge.
ZAMPANO, District Judge:
This is an appeal from an order of the United States District Court for the
Eastern District of New York, John R. Bartels, J., granting petitioner's writ
of habeas corpus and directing his release unless he is retried by the state.
Petitioner, Robert Clayton, was convicted of second degree murder on February

25, 1953, after a trial in which his confession was introduced as evidence. He
did not appeal his conviction, but in 1965 sought relief in a coram nobis hearing
in the County Court, Suffolk County, asserting that his confession was
involuntary. That court denied relief on the ground that the confession was a
voluntary one. The Appellate Division, Second Department, 28 A.D.2d 543,
279 N.Y.S.2d 605, and the Court of Appeals affirmed, 22 N.Y.2d 841, 293
N.Y.S.2d 104, 39 N.E.2d 734, whereupon petitioner unsuccessfully sought
certiorari in the United States Supreme Court, 394 U.S. 909, 89 S.Ct. 1018, 22
L.Ed.2d 219. Petitioner then commenced this action for a writ of habeas corpus
in the District Court which held an extensive hearing and granted the writ based
upon its finding that the confession was involuntary.
2
The facts surrounding the making of the confession are set forth in Judge
Bartels' comprehensive opinion below, 326 F.Supp. 1366 (E.D.N.Y.1971);
therefore only a brief summary is necessary. Petitioner, a semiliterate itinerant
farm worker, was taken into custody along with 11 others at about three o'clock
in the afternoon of November 3, 1952, as part of an investigation into a
homicide which had occurred the previous day on the farm where he was
working. Except for repeated periods of questioning in another room by the
police, he was confined in a small and practically bare room with the others
throughout the night and the next day. On November 4th a co-worker
implicated petitioner in the murder after first having given a false confession
himself and that evening petitioner was "arraigned" as a "material witness." At
no time was petitioner informed of his rights. Thereafter he was isolated from
the others who were taken into custody with him, and he alternated between
interrogation sessions with the police and confinement in a small cell with only
a flat board for sleeping. The record is not clear as to whether, and how
adequately, petitioner slept and ate. He finally confessed to the murder late in
the evening of November 5th, approximately 55 hours after having been taken
into custody. The interrogation was finally concluded at approximately three
o'clock in the morning of the next day, November 6th, and later that day he was
arraigned as a defendant.
The District Court relied on six factors to support its conclusion that the
confession, under all the circumstances, was involuntarily made: (1) the failure
to advise petitioner, an indigent and uneducated suspect, of his rights to counsel
and to remain silent; (2) the "sham" arraignment as a material witness for the
purpose of retaining police dominance over petitioner; (3) the unreasonable
delay in arraignment as a defendant for over 60 hours after having been taken
into custody; (4) doubt that petitioner had adequate food and sleep; (5)
persistent interrogation by a skilled team of investigators; and (6) continual
questioning over a period of two and a half days.
In reaching its conclusion the District Court applied the test, whether the
confession was voluntary under "the totality of the circumstances," which is
conceded by appellant to be the correct legal standard. See, e.g., Frazier v.
Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Appellant
nevertheless disputes the validity of the factors on which the District Court
relied, attacking each in turn as being insufficient in itself to show coercion.
While appellant may be correct were each factor considered in isolation, such a
position is only peripherally relevant. Because of the inherent complexity of a

judgment which must depend upon the simultaneous weighing of various
circumstances, the process of determining voluntariness involves more than "a
mere color-matching of cases," Beecher v. Alabama, 389 U.S. 35, 38, 88 S.St.
189, 191, 19 L.Ed.2d 35 (1967). Rather, the touchstone in evaluating all the
factors surrounding the making of a confession is the principle that the
confession is voluntary if it is the product of an essentially free and
unconstrained choice and involuntary if the product of a will overborne.
Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963),
Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037
(1961).
5
It seems clear that petitioner's persistent denials of guilt throughout two days of
constant police questioning and despite a direct accusation by a coworker
demonstrate that it was his will not to confess. The appellant suggests that it
was the petitioner's free choice to change his mind because he learned that a bar
owner had identified the petitioner's girlfriend as the person who accompanied
a "man who cashed a $100 bill at her establishment shortly after the homicide."
This rather inconclusive piece of evidence, it is argued, was the catalyst which
stimulated the petitioner's "normal psychological drive to confess." Judge
Bartels found, and we agree, that this bit of information would hardly have
prompted the petitioner to confess. Rather, it is apparent that the petitioner's
lack of education and knowledge of his rights coupled with the circumstances
of prolonged custody and repeated periods of questioning by trained
interrogators convinced the petitioner that "the police wanted answers and were
determined to get them." Culombe, supra, at 625, 81 S.Ct. at 1891. There is
little doubt that petitioner was under tremendous psychological strain and
physical discomfort. The only way obvious to him to reduce these coercive
influences was to do and say what the police demanded of him. Under these
circumstances, we conclude that the findings of the District Court that the
petitioner's will was eroded and that the confession was a result of a pattern of
police dominance and coercion were not erroneous.
Appellant further argues, independently of the question of the voluntariness vel

non of the confession, that the judgment of the District Court should be
reversed because it exceeded its authority when it held a hearing and
redetermined issues previously decided by the state courts. However, in
applying the legal standard of voluntariness to the historical facts surrounding
the confession, the determination which results is not a conclusion of fact but
one of law, or at most a mixture of fact and law. See Jackson v. Denno, 378
U.S. 368, 391, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); United States ex rel.
Burns v. LaVallee, 436 F.2d 1352, 1356 (2 Cir. 1970), cert. denied, 402 U.S.
1012, 91 S.Ct. 2190, 29 L.Ed.2d 436 (1971). Therefore the District Court
properly redetermined the federal constitutional question for itself. Townsend
v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
7
Moreover, it was proper under the facts of this case for the District Court to
hold an evidentiary hearing. It was by no means clear that the County Court
applied the correct constitutional standard in ruling on the voluntariness of the
confession. That court excluded evidence on whether petitioner was advised of
his rights on the ground that it was irrelevant, although the lack of such advice
was a circumstance which had some bearing on the issue of voluntariness. It
made no findings with respect to the propriety of the arraignment of petitioner
as a material witness and the delay in arraignment as a suspect until after he had
confessed, factors which likewise must weigh in the balance. Finally, the
Appellate Division in affirming the County Court relied on certain principles of
nonretroactivity which are not relevant in making a judgment under "the totality
of the circumstances." Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct.
1761, 16 L.Ed.2d 895 (1966). Because it was not clear that the County Court
applied the correct standard, and because its findings of fact were, as the
District Court characterized them, "skeletal," it was proper to hold an
evidentiary hearing rather than attempting to reconstruct the facts from the state
court record. Townsend v. Sain, supra, 372 U.S. at 314, 83 S.Ct. 745; United
States ex rel. Liss v. Mancusi, 427 F.2d 225, 229 (2 Cir. 1970). The District
Court, having found that "a more detailed exploration of the underlying facts
was necessary," fully complied with the requirements of 28 U.S.C. Sec.
2254(d).
Accordingly, the judgment of the District Court is affirmed.
United States District Judge for the District of Connecticut, sitting by

designation

Hon. Vincent A. Mancusi, Warden, Attica State Prison v. United States Ex Rel. Robert Clayton, 454 F.2d 454, 2d Cir. (1972)

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Hon. Vincent A. Mancusi, Warden, Attica State Prison v. United States Ex Rel. Robert Clayton, 454 F.2d 454, 2d Cir. (1972)

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454 F.

Hon. Vincent A. MANCUSI, Warden, Attica State Prison,

United States Court of Appeals,

Samuel A. Hirshowitz, First Asst. Atty. Gen. (Louis J. Lefkowitz, Atty.

Petitioner, Robert Clayton, was convicted of second degree murder on February

position is only peripherally relevant. Because of the inherent complexity of a

Appellant further argues, independently of the question of the voluntariness vel

Accordingly, the judgment of the District Court is affirmed.

United States District Judge for the District of Connecticut, sitting by

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