MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Malinski and Rudish were convicted along with one Indovino of the murder of Leon Fox, a police officer who, late at night, was escorting a manager of a theatre to a bank depository. The details will be found in 292 N.Y. 360. There were no eye witnesses to the crime who could identify the robbers. Malinski was implicated by various witnesses — by Spielfogel, an old friend and a criminal serving a sentence of thirty to sixty years in Sing Sing; by Malinski's girl friend; by Malinski's brother-in-law. Each testified that Malinski confessed the crime to him or her. The confessions to the girl friend and to the brother-in-law were made a few hours after the crime and were merely that Malinski had shot a cop; but the confession to Spielfogel disclosed in detail the planning and execution of the crime. Malinski denied making these confessions. Yet as the New York Court of Appeals pointed out (292 N.Y. p. 370) those confessions and other evidence of the State were sufficient, if believed, to support the conviction, wholly apart from another confession around which the present controversy turns. But the circumstances under which the latter confession was obtained raised the substantial federal question which prompted us to grant the petition for a writ of certiorari.
Malinski was arrested while on his way to work on the morning of Friday, October 23, 1942. The police did not then arraign him but took him to a room in the Bossert Hotel in Brooklyn where he arrived about 8 A.M. He was immediately stripped and kept naked until about 11 A.M. At that time he was allowed to put on his shoes, socks and underwear and was given a blanket in which to wrap himself. He remained that way until about 6 P.M. Malinski claims he was beaten by the police during that period. The police denied this. There was no visible sign of any beating, such as bruises or scars; and Malinski made no complaint to the judge on arraignment nor to the jail authorities where he was later held. Sometime during Friday morning Spielfogel was brought to the hotel. He and Malinski were put alone together in a room sometime that afternoon. Shortly after their conference — apparently around 5:30 P.M. or 6:00 P.M. — Malinski confessed to the police. After it was made Malinski was allowed to dress. Malinski was kept at the hotel that night and the next three days. The record does not show exactly how long and frequent the questioning was after the first confession. But it is clear that Malinski was questioned in the early hours of Saturday, the 24th, and at other times during that day. He was further questioned on Sunday, the 25th, and taken with Spielfogel from the hotel to the scene of the crime where he identified several places which had a relationship to the commission of the crime and where he pointed out how the crime was executed. On Monday, the 26th, he was taken from the hotel to the police garage where he identified the automobile used in the robbery. At about 5:00 P.M. on Monday he was taken to a police station and questioned. On Tuesday morning, October 27th, about 2 A.M. he made a confession
The trial court held a preliminary hearing on the voluntary character of the confession of October 27th before allowing it to be introduced in evidence. There is a question in the case whether the confession of October 23rd as well as that of October 27th was submitted to the jury, a question to which we will return. It is sufficient here to note that the trial court charged the jury that a confession should not be considered by them unless they found beyond a reasonable doubt that it was voluntary. And they were told that although the delay in arraignment was not conclusive, they might consider it in passing on the question of voluntariness. The Court of Appeals sustained the judgment of conviction by a divided vote.
If all the attendant circumstances indicate that the confession was coerced or compelled, it may not be used to convict a defendant. Ashcraft v. Tennessee, supra, p. 154. And if it is introduced at the trial, the judgment of conviction will be set aside even though the evidence apart from the confession might have been sufficient to sustain the jury's verdict. Lyons v. Oklahoma, 322 U.S. 596, 597.
If the evidence alone is considered, there is serious doubt whether the confession made on the late afternoon of Friday,
"Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology — let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking."
If we take the prosecutor at his word, the confession of October 23rd was the product of fear — one on which we could not permit a person to stand convicted for a crime.
But it is said that this coerced confession was not introduced in evidence, that it was submitted to the jury only insofar as it threw light on the voluntary character of the subsequent confessions, and that under the rule of Lyons v. Oklahoma, supra, p. 601, the adequacy of that instruction to the jury is solely for the state courts to determine. We do not think, however, that Lyons v. Oklahoma, supra, fits this case.
The confession of October 23rd was oral. Its details were not put in evidence. But Spielfogel, a witness for the prosecution, adverted to it in his testimony, saying that Malinski told "everything" at that time. A police officer testified on behalf of the prosecution to the same effect. The prosecutor referred to it in his summation in language which we have already quoted. He added that "Six o'clock in the evening after he (Malinski) was picked up, he told the whole thing." When the confession of October 27th (which was a detailed confession taken down by a stenographer) was offered in evidence, a preliminary hearing was had. That hearing covered the voluntary character of the October 23rd confession as well as the October 27th confession. The trial court in its charge to the jury reviewed the events leading up to the confession
"Be that as it may, I charge you that it was the duty of the police to arraign the defendant before the nearest Magistrate without unnecessary delay, and, further, that if a police officer failed or refused to perform such duty, he is guilty of a misdemeanor.
"But, gentlemen, you will bear in mind that the police department is not on trial in this case. This testimony was adduced solely on the question as to whether or not the alleged confession later made was the result of the coercion, either direct or implied, which is prohibited by the statute, and which invalidates a confession if made. If you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinsky, including the one made in the early hours of October 27th at the Bath Beach station house.
"However, I am charging you that the failure to arraign, in and of itself, is not conclusive against the People, and does not in and of itself, standing alone, destroy the validity of the confession. Is that clear?
"On the question whether Malinski was coerced, you may consider that he made no complaint to the Magistrate when arraigned and did not seek the services of the jail physician. That evidence, if true, is not, however, conclusive against Malinski, but may be considered by the jury on the issue of the voluntariness of the confession."
Malinski made no objections to these references to his confession of October 23rd. And while he asked for a mistrial because of the prosecutor's comments, he made on this phase of the case no requests to charge which were
There were repeated references at the trial to the confession of October 23rd. The prosecutor made emphatic references to it in his summation. On this record the fact
It is thus apparent that the judgment before us rests in part on a confession obtained as a result of coercion. Accordingly a majority of the Court do not come to the question whether the subsequent confessions were free from the infirmities of the first one.
We have not mentioned Rudish. He did not confess to the police. He was tried jointly with Malinski, his counsel electing not to ask for a severance. We are asked to reverse as to Rudish because the confession of October 27th which was introduced in evidence against Malinski
We do not believe that procedure is appropriate in this case even though it be assumed arguendo that the confession of October 27th was involuntary. It is true that that confession referred both to Rudish and to Indovino. But before that confession was offered in evidence the trial court with the complete approval of counsel for Rudish worked out a procedure for protecting Rudish and Indovino. "X" was substituted for Rudish, "Y" for Indovino. The jury were plainly instructed that the confession was admitted against Malinski alone and that they were not to speculate concerning the identity of "X" or "Y." When it came to the charge, the trial court submitted
On this record the questions raised by Rudish involve matters of state procedure beyond our province to review. Barrington v. Missouri, 205 U.S. 483. Since the case against him, both as tried and as sustained on review, was not dependent on Malinski's confession of October 27th, we think it inappropriate to vacate the judgment as we did in Ashcraft v. Tennessee, supra, though we assume that that confession was coerced. Whether our reversal of the judgment against Malinski would as a matter of state law affect the judgment against Rudish is not for us to say. In each case our mandate will provide for a remand to the Court of Appeals for proceedings not inconsistent with this opinion.
The judgment against Rudish is affirmed.
The judgment against Malinski is reversed.
It is so ordered.
MR. JUSTICE FRANKFURTER.
It is also my view that the judgment as to Malinski calls for reversal, leaving the disposition of Rudish's conviction in the light of such reversal to the New York Court of Appeals.
Apart from permitting Congress to use criminal sanctions as means for carrying into execution powers granted to it, the Constitution left the domain of criminal justice
Unlike the limitations of the Bill of Rights upon the use of criminal penalties by federal authority, the Fourteenth Amendment placed no specific restriction upon the administration of their criminal law by the States. Congress in proposing the Fourteenth Amendment and the States in ratifying it left to the States the freedom of action they had before that Amendment excepting only that after 1868 no State could "abridge the privileges or immunities of citizens of the United States" nor "deprive any person of life, liberty, or property, without due process of law," nor deny to any person the "equal protection of the laws." These are all phrases of large generalities. But they are not generalities of unillumined vagueness; they are generalities circumscribed by history and appropriate to the largeness of the problems of government with which they were concerned. "The privileges or immunities of citizens of the United States" derived from the two aspects of citizenship in our federal system. The safeguards of "due process of law" and "the equal protection of the laws" summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our
Here we are concerned with the requirement of "due process of law" in the enforcement of a state's criminal law. Experience has confirmed the wisdom of our predecessors in refusing to give a rigid scope to this phrase. It expresses a demand for civilized standards of law. It is thus not a stagnant formulation of what has been achieved in the past but a standard for judgment in the progressive evolution of the institutions of a free society. The suggestion that "due process of law," as guaranteed by the Fourteenth Amendment, is a compendious expression of the original federal Bill of Rights (Amendments I to VIII) has been rejected by this Court again and again and after impressive consideration. See, e.g., Hurtado v. California, 110 U.S. 516; Twining v. New Jersey, 211 U.S. 78; Brown v. Mississippi, 297 U.S. 278; Palko v. Connecticut, 302 U.S. 319.
In the Bill of Rights, Eighteenth-century statesmen formulated safeguards against the recurrence of well-defined historic grievances. Some of these safeguards, such as the right to trial by a jury of twelve and immunity from prosecution unless initiated by a grand jury, were built on experience of relative and limited validity. "Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them." Palko v. Connecticut, supra, at 325. Others, like the freedom of the press or the free exercise of religion or freedom from condemnation without a fair trial, express rights the denial of which is repugnant to the conscience of a free people. They express those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," Hebert v. Louisiana, 272 U.S. 312, 316, and are implied in the comprehensive concept of "due process of law."
The Due Process Clause of the Fourteenth Amendment thus has potency different from and independent of the
A construction which gives due process no independent function but makes of it a summary of the specific provisions of the Bill of Rights would tear up by the roots much of the fabric of law in the several States. Thus, it would require all the States to prosecute serious crimes through the grand jury system long ago abandoned by many of them, see Hurtado v. California, supra, to try such crimes by a jury of twelve which some of the States have seen fit to modify or abandon, see Maxwell v. Dow, 176 U.S. 581, to enforce the privilege against self-incrimination with the technical requirements prevailing in the federal courts when States, consistently with fundamental notions of justice, have seen fit to make other arrangements, see Twining v. New Jersey, supra, and to have jury trials "In Suits at common law, where the value in controversy
And so, when a conviction in a state court is properly here for review, under a claim that a right protected by the Fourteenth Amendment has been denied, the question is not whether the record can be found to disclose an infraction of one of the specific provisions of the first eight amendments. To come concretely to the present case, the question is not whether the record permits a finding, by a tenuous process of psychological assumptions and reasoning, that Malinski by means of a confession was forced to self-incrimination in defiance of the Fifth Amendment. The exact question is whether the criminal proceedings which resulted in his conviction deprived him of the due process of law by which he was constitutionally entitled to have his guilt determined. Judicial review of that guaranty of the Fourteenth Amendment inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain
And so, with every respect for the contrary views of the majority of the judges below and of some of my brethren here, I cannot escape agreement with the Chief Judge of the New York Court of Appeals and two of his associates that there was not in this case a fair trial of issues vital to the determination of guilt or innocence. Considering the circumstances of Malinski's detention, the long and continuous questioning, the willful and wrongful delay in his arraignment and the opportunity that that gives for securing, by extortion, confessions such as were here introduced in evidence,
In reviewing a state criminal conviction we must be deeply mindful of the responsibilities of the States for the enforcement of criminal laws, and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the Due Process Clause of the Fourteenth Amendment authorizes. On the other hand, in the discharge of that duty we must give no ear to the loose talk about society being "at war with the criminal" if by that it is implied that the decencies of procedure which have been enshrined in the Constitution must not be too fastidiously insisted upon in the case of wicked people. Despite the
"The remedy for the ills which afflict the administration of criminal justice, whatever that remedy may be, will not be found in measures which violate law. Such expedients, so far from restoring health and vigor to the system, only aggravate and protract the disorder. Under our form of government the machinery of criminal justice depends for its force and efficiency upon the enlightened moral sense of the individuals to whom the public by their constitution and laws have temporarily entrusted its operation. And it is as unwise as it is unwarranted for these servants of the public to violate the constitution and laws in the vain hope of accomplishing useful or beneficial results." Yearbook (1928) Association of the Bar of the City of New York, 235, 255.
These were the views of three former United States Attorneys for the Southern District of New York and three
MR. JUSTICE RUTLEDGE, dissenting in part.
I concur in reversing the judgment against Malinski, but dissent from affirmance of the judgment against Rudish.
I agree that Malinski's oral confession of October 23, 1942, was coerced, was used in evidence against him and that this requires reversal of the judgment against him. I therefore join in the Court's opinion in so far as it relates to him. But I am unable to agree that we should stop with the ruling grounded upon the confession of October 23 alone. I think the subsequent confessions, including the written one of October 27, were vitiated with all the coercion which destroys admissibility of the first one. Accordingly their use in evidence also requires reversal of the judgment against Malinski. Furthermore, since the written confession also affected Rudish and in my opinion the devices employed were ineffective to prevent its influencing the verdict and the judgment against him, I think that judgment likewise should be reversed.
However great the proof against him otherwise may be, under our system no man should be punished pursuant to a judgment induced wholly or in part by a coerced confession. In my opinion the entire procedure, from the time Malinski was taken into custody until his written confession was obtained nearly five days later, was a single and continuous process of coercion of the type commonly known as "the third degree." I do not think the Constitution has room for this in company with all the protections it throws around the individual charged with crime.
The "psychology" got results. It produced a confession,
Moreover, the first confession was used to secure the defendants' conviction. In more ways than one. In the first place, it was used directly in evidence against the accused, as the Court of Appeals expressly recognized when it sustained the trial court's action in submitting that confession, together with the later ones, to the jury,
This fact is highly material as showing the initial coercion. Without more, it belies the explanation that the prisoner was stripped and kept naked or partly so for ten hours because otherwise he might try to escape.
But the fact that Malinski was given back his clothing, when and only when he confessed, does not show that the coercion ceased then or before the last confession was secured. It shows only that one of the coercive tactics used had become no longer necessary and therefore no longer was employed. Otherwise, why was Malinski not promptly booked and arraigned, as he was four nights later when the written confession was secured. Why was he detained illegally at the hotel for three days and four nights
I cannot accept this view. On the contrary, I think only one conclusion can be drawn from the facts, namely, that all the conditions which forced out Malinski's first confession continued in full effect until they extorted also the written one, excepting only that he was given back his clothing. That fact alone is not enough to show that the coercive conditions were wholly abated and the influences they generated had no part in bringing about the later confessions.
This pattern was not torn apart when it "broke" Malinski and he confessed for the first time. With that event he was not arraigned or released. His unlawful detention continued for three days and four nights. The questioning continued at frequent intervals each day and each night.
All these facts stand undisputed on the record. With the facts of the first day's proceedings, they establish beyond question the pattern of the "third degree." They establish its application from the time of the arrest throughout the first day until the first confession. They prove with equal clarity, in my judgment, that every thread in that pattern but one, no longer needed, continued to hold through every moment from the first confession to the last. No single occurrence, not excluding the return of the clothing, took place which gives basis to conclude that the initial psychological pressures were relaxed or their coercive influence and effects were nullified.
If after the clothing was returned, Malinski no longer feared a "shellacking," an inference there is broad room to doubt, he knew there were other pressures to take the place of this threat, pressures made possible by its success in forcing from him the first confession. He knew that all of the subsequent examination, as it turned out through four nights and three days, would be founded on this confession and that he would be forced to square
To say that in such circumstances the coercive influences had ended before they produced the result at which the entire procedure was aimed and with which it stopped, is, in my opinion, a conclusion we cannot draw and the facts allow no room for permitting a jury to make such an inference.
Were the question wholly fresh, the conclusion would seem doubtful in any case that a later confession could be entirely voluntary and uncoerced, where an earlier one had been compelled. A man once broken in will does not readily, if ever, recover from the breaking. Cf. Mr. Justice Murphy, dissenting in Lyons v. Oklahoma, 322 U.S. 596, 606. No change in circumstances can wholly wipe out its effects upon himself or upon others. Thereafter he acts with knowledge that the damage has been done. Others do likewise. He is suspect by his own mouth and must continue so, whether he repudiates or confirms the confession. If he repudiates, he incurs the additional suspicion of lying, and his credibility as a witness in his own behalf is impaired, if not destroyed. If he confirms, he does so with the knowledge he has already confessed and any other course will bring upon him the suspicions and the burden of proof they entail.
For these reasons a stricter standard is necessary where the confession tendered follows a prior coerced one than in the case of a single confession asserted to have been coerced. It would seem consistent therefore with our constitutional
In any event, where there is a continuous process of coercion such as existed in this case, resulting in a series of confessions of which the first is the creative precursor of the later ones, and they moreover are obtained under identical circumstances except for relaxation in one of the initial pressures, there hardly can be room for saying, as was said in the Lyons case, that the latter confessions are not coerced.
This is a capital case. Rudish has been sentenced to death. The written confession involved him. It was used in evidence against Malinski. The court and counsel attempted what I think is and proved to be the impossible, namely, to keep Rudish's identity as one of the persons mentioned in the confession from the jury by devices similar to those employed in Anderson v. United States, 318 U.S. 350, 356, with the same result. The devices were so obvious as perhaps to emphasize the identity of those they purported to conceal. True, the charge in the Anderson case was not meticulous as was the one given here to separate the defendants and apply the confession only against the one as to whom technically it was admitted. Nevertheless, I think the line too fine to draw, in capital cases at any rate, between that case and this one in this respect. There could be no valid basis for admitting this confession against Rudish in a separate trial. Due process does not permit one to be convicted upon his own coerced confession. It should not allow him to be convicted upon
In Lisenba v. California, 314 U.S. 219, the Court stated: "Like the Supreme Court of California we disapprove the violations of law involved in the treatment of the petitioner, and we think it right to add that where a prisoner, held incommunicado, is subjected to questioning by officers for long periods, and deprived of the advice of counsel, we shall scrutinize the record with care to determine whether, by the use of his confession, he is deprived of liberty or life through tyrannical or oppressive means.
The warning exactly fits this case, as do also the repeated warnings referred to by the dissenting opinion in the Court of Appeals.
MR. JUSTICE MURPHY, joins in this opinion.
MR. JUSTICE MURPHY, dissenting in part.
As pointed out in the opinion of the Court, Malinski's oral confession of October 23 was involuntary in character and hence its admission invalidated his conviction. But it is equally clear to me that the pattern of mental fear continued until his arraignment on October 27, thereby voiding as well his confessions by word and deed on October 25 and 26 and the written confession made during the early hours of October 27. It is inconceivable, moreover, that the admission of these tainted confessions was without influence in the conviction of the co-defendant Rudish. Accordingly, I agree with Mr. Justice Rutledge that the judgment should be reversed also as to Rudish.
The subhuman psychology applied by the police to Malinski began soon after his arrest on October 23. He was stripped, humiliated and threatened with a shellacking. He was questioned throughout the day and was denied the benefit of counsel, relatives or friends. This succeeded in breaking Malinski's will, which the prosecutor
There is an absence of any evidence that the "broken" Malinski regained his free independent will during the illegal detention or that the effects of the humiliation and threatened shellacking, which caused him to "break," wore off prior to the written confession on October 27. There was not even a twelve-hour interval between the interrogations or a change of interrogators which this Court in Lyons v. Oklahoma, 322 U.S. 596, thought sufficient to break the pattern of coercion. The reign of mental fear and terror here was continuous for four days and Malinski's will was in a shattered state on the occasion of making each confession. Such confessions cannot be dignified with the adjective "voluntary," however non-coercive may have been the immediate surrounding circumstances.
Once an atmosphere of coercion or fear is created, subsequent confessions should automatically be invalidated unless there is proof beyond all reasonable doubt that such an atmosphere has been dispelled and that the accused has completely regained his free individual will. Otherwise we might as well discard all pretense to a civilized and humane system of criminal justice and adopt without further ado the terroristic police practices of certain past and present tyrannies in other parts of the world. Since all the confessions here were made in a continuing background of threatened coercion, it follows that they all were void.
One other matter is worthy of comment. Malinski, as well as his co-defendant Rudish, is an American of Jewish
Those clothed with authority in court rooms of this nation have the duty to conduct and supervise proceedings so that an accused person may be adjudged solely according to the dictates of justice and reason. This duty is an especially high one in capital cases. Instead of an attitude of indifference and carelessness in such matters, judges and officers of the court should take the initiative to create an atmosphere free from undue passion and emotionalism. This necessarily requires the exclusion of attacks or appeals made by counsel tending to reflect upon the race, creed or color of the defendant. Here the defendants' very lives were at stake and it was of the utmost importance that the trial be conducted in surroundings free from poisonous and dangerous irrelevancies that might inflame the jury to the detriment of the defendants. Brazen appeals relating to their race or faith had no relevance whatever to the grave issue facing the jury and could only be designed to influence the jury unfairly; and subtle and indirect attacks were even more dangerous and effective. Statements of this character are the direct antithesis of every principle of American justice and fair play. They alone are enough to cast grave doubts upon the validity of the entire proceedings.
MR. CHIEF JUSTICE STONE.
MR. JUSTICE ROBERTS, MR. JUSTICE REED, MR. JUSTICE JACKSON and I think the judgment should be affirmed as to both petitioners.
The testimony as to whether the first confession to the police was coerced was sharply conflicting. There was no evidence that petitioner was subjected to any coercion at or about the time of the second confession to the police, save as the jury could find that the coercion, if any, attending the first confession continued to operate so as to induce the second.
The trial court, after reviewing fully the evidence of petitioner's detention and the coercion by the police which is said to have attended his first confession, and of the delay in his arraignment, instructed the jury:
"This testimony was adduced solely on the question as to whether or not the alleged confession later made was the result of the coercion, either direct or implied, which is prohibited by the statute, and which invalidates a confession if made. If you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinski, including the one made in the early hours of October 27 . . ."
The trial court also correctly instructed the jury that petitioner's contention was that the confession of October 27 was tainted by the detention and coercion which had preceded it, and that "you must find beyond a reasonable doubt that this confession was a voluntary one before you would have the right to consider it." With respect to
"If you find beyond a reasonable doubt that the confession is a voluntary one, you will then determine whether or not the statements inculpating the defendant, therein contained, are true. If you shall have resolved both of these questions in favor of the prosecution, then and only then will you consider the confession in determining the guilt or innocence of the defendant. . ."
There were no exceptions to these instructions and no requests for a further charge on this subject.
After a painstaking review of the facts, the New York Court of Appeals unanimously sustained the jury's verdict that the confessions were not coerced.
It seems to be recognized by this Court that the question whether the second confession was coerced was properly submitted to the jury. But it holds that the first confession was coerced and was submitted to the jury as itself proof of guilt, and that for that reason the verdict must be set aside although the jury found under the instructions of the court, which we have quoted, that the second confession was not coerced.
Even though the first confession were the product of coercion, the trial court, as we have pointed out, instructed
But even if it could be said, as the Court of Appeals seems to have thought, that the jury's verdict was a determination that the first confession was not coerced, we perceive no ground on which that determination can be disregarded. This Court recognizes that if only the testimony submitted to the jury be considered, the question whether the first confession was coerced was for the jury. The Court sets aside the jury's verdict solely because of the interpretation it places upon the conflicting testimony in the light of certain remarks, which the opinion of Mr. Justice Douglas quotes, made by the prosecuting attorney in the course of his summation to the jury. But the prosecutor did not testify in the case, and it does not appear that he was present at any of the interviews of petitioner by the police, or had any knowledge of the alleged coercion. At most, his remarks were an ill-advised attempt at justification of the coercion which the defense had alleged. He added no word by way of proof or admission to the evidence already before the jury. The jury, acting within its province, could have concluded, as it evidently did, that the prosecutor's remarks did not tend to prove anything more than his own ineptitude. The
It is not the function of this Court, in reviewing, on constitutional grounds, criminal convictions by state courts, to weigh the evidence on which the jury has pronounced its verdict, also in the light of the arguments of counsel, or to sit as a super-jury. We have, in appropriate cases, set aside state convictions as violating due process where we were able to say that the case was improperly submitted to the jury or that the unchallenged evidence plainly showed a violation of the constitutional rights of the accused. Brown v. Mississippi, 297 U.S. 278; Chambers v. Florida, 309 U.S. 227; Ward v. Texas, 316 U.S. 547. But we have not hitherto overturned the verdict of a state court jury by weighing the conflicting evidence on which it was based.
The rightful independence of the states in the administration of their own criminal laws in their own courts requires that in such cases we scrupulously avoid retrying the facts which have been submitted to the jury, except on a clear showing of error substantially affecting the constitutional rights of the accused. We agree that the controlling principles upon which this Court reviews on constitutional grounds a state court conviction for crime, are as stated in the opinion of Mr. Justice Frankfurter. But the due process clause of the Fourteenth Amendment is concerned with matters of substance. It cannot rightly be made the instrument of reform of the manners of state officials. And however reprehensible or even criminal the acts of state officials may be, in so far as the conduct of the trial is concerned, they do not infringe due process unless they result in the use against the accused of evidence
Judged by these standards, we think that there was no denial of due process in submitting petitioner Malinski's confession to the jury in the manner in which they were in fact submitted, and that there is no constitutional ground for setting aside the jury's verdict against him. We cannot say on this record that the jury was not rightly permitted to determine whether petitioner's confessions of guilt to the police were coerced, or that the verdict was without support in the evidence, or that the instruction that the jury could find the defendant guilty if it found that the second confession was not the result of the alleged coercion at the time of the first, was not properly given.
Petitioner Rudish has raised no substantial federal question reviewable here, and his conviction, as well as Malinski's, should be affirmed.
"They hold men for several days. Are you satisfied with that? They are not going to let him go home, or let him get hold of a smart mouthpiece to preach about his rights and sue out writs. You want a District Attorney in this county that is worth his salt, not a powder-puff District Attorney. When you are trying a case of murder, especially murder of a police officer, you don't go over and give him a pat on the back and say, `Do you want anything? Do you want to have your lawyer or your wife or somebody else?' In fact after that they would not even let him see Mr. Math, an assistant in our office; they would not even let him talk to a rabbi. Do you think McNally, 17 years in the Police Department, is going to let this jerk from the East Side tell him his business?"
"Here we are agreed that a finding by the jury that the defendant's confession, though obtained while he was unlawfully detained without arraignment, is not against the weight of the evidence. The officers of the law deny that they beat the defendant or threatened him. Whatever may have been the motive of the police in taking Malinski to the Hotel Bossert instead of to a police station or jail, we find no basis for any inference that the police believed that the hotel was an appropriate place where a person could, without too much risk of discovery, be beaten in order to compel a confession. Nonetheless, in this case, as in People v. Mummiani (supra [258 N.Y. 394], pp. 399-400), `the conclusion is inescapable' that the police delayed the arraignment of the defendant `for the purpose of subjecting him to an inquisition impossible thereafter' at which he might be induced to make a confession by resort to what the Supreme Court of the United States has described as `those reprehensible practices known as the "third degree" which, though universally rejected as indefensible, still find their way into use.' There can be no fair trial of the issue whether the confession is voluntary where the jury is not properly informed that the detention was unlawful and that they must take that fact into consideration. That has not been done in this case." People v. Malinski, 292 N.Y. 360, 387-388.
"When we have spoken of Malinski's confession we include, of course, not only the confession made orally to a police officer on the Friday night of the arrest but also the two automobile trips on Sunday and Monday, one to the police garage to permit Malinski to identify the automobile used in the crime and the other to Coney Island to revisit a restaurant and the scene of the crime, and the confession to the District Attorney which was taken stenographically in the early morning of Tuesday, October 27th." 292 N.Y. 360, 370, 373-374.
Throughout October 24, a police lieutenant testified, many of the detectives "continuously" examined and talked to Malinski. The latter said, "They kept questioning me all that day and night." Again on October 25 he was questioned "to clear up certain points," though an officer denied that this "went on for hours and hours." On that day Malinski was taken on a tour of the scene of the crime. The assistant district attorney and a stenographer accompanied the party. Malinski testified without contradiction that he "was being questioned riding all the way back to the hotel," and that the questioning continued there until 2:00 a.m.
On Monday, October 26, ten or twelve detectives were still present with Malinski at the hotel. During the course of that day he was questioned and taken to a police garage to identify the automobile used in the crime. There is much confusion in the officers' testimony as to the time of this trip and whether it preceded or followed one to the Bath Beach Police Station. The weight of their evidence perhaps is that they went to the police garage first, then to the police station, arriving there about 5:00 p.m. The State's supplementary brief supports this view and the view that on arrival at the station questioning by the assistant district attorney and others began. There is every reason to believe that the final questioning of Malinski, leading to a written confession at 2:10 a.m., October 27, had proceeded for some nine hours. At the very least, we know that the questioning by a battery of investigators (eight police officers in addition to the assistant district attorney) was in progress at 7:00 p.m., October 26, and continued to midnight.