We are asked to reverse under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States a state conviction which was entered upon a plea of non vult to an indictment for first degree murder.
In the evening of March 17, 1947, Charles Kittuah, the owner of a small dry goods store in Newark, New Jersey, was shot and killed during the course of a robbery. The crime remained unsolved until December 17, 1949, when the Newark police obtained information implicating the petitioner and two others, Armando Corvino and John DeMasi. Petitioner lived with his parents at Orange, New Jersey. Apparently acting at the request of the Newark police, the Orange police sought to locate petitioner at his home. When told that he was out, the police left word that he was to report at the Orange police headquarters the following day. Petitioner sought the advice of Frank A. Palmieri, a lawyer, who advised him to report as requested. Petitioner did so, accompanied by his father and brother. Upon arrival at the Orange police station at 9 a. m. on December 18, petitioner was separated from the others and taken by detectives to the Newark police headquarters. At approximately 2 p. m. the same day petitioner's father, brother and Mr. Palmieri, the lawyer, arrived at the Newark station. Mr. Palmieri immediately asked to see petitioner, but this request was refused by the police. He repeated this request at intervals throughout the afternoon and well into the evening, but without success. During this period petitioner, who was being questioned intermittently by the police, asked to see his lawyer. These requests were also denied. Lawyer and client were not permitted to confer until 9:30 p.m., by which time petitioner had made and signed a written confession to the murder of Kittuah. The confession is not in the record.
Following his failure to suppress or obtain inspection of his confession, petitioner, on the advice of his attorney, offered to plead non vult to the indictment. In New Jersey such a plea is subject to discretionary acceptance by the trial court, State v. Martin, 92 N. J. L. 436, 106 A. 385, and carries a maximum sentence of life imprisonment. Petitioner's plea was accepted by the trial court, as were the similar pleas of Corvino and DeMasi, whose cases are not before us. Petitioner and his two co-defendants were thereupon sentenced to life imprisonment at hard labor.
Thereafter petitioner commenced habeas corpus proceedings in the New Jersey courts, alleging that his plea of non vult was actuated by the existence of the confession, and that the conviction entered upon such plea was
The contention that petitioner had a constitutional right to confer with counsel is disposed of by Crooker v. California, ante, p. 433, decided today. There we held that California's failure to honor Crooker's request during a period of police interrogation to consult with a lawyer, as yet unretained, did not violate the Fourteenth Amendment. Because the present case, in which petitioner was denied an opportunity to confer with the lawyer whom he had already retained, sharply points up the constitutional issue involved, some additional observations are in order.
We share the strong distaste expressed by the two lower courts over the episode disclosed by this record. Cf. Stroble v. California, 343 U.S. 181, 197-198. Were this a federal prosecution we would have little difficulty in
The difficulties inherent in the problem require no extensive elaboration. Cf. Watts v. Indiana, 338 U.S. 49, 57-62 (opinion of Jackson, J.). On the one hand, it is indisputable that the right to counsel in criminal cases has a high place in our scheme of procedural safeguards. On the other hand, it can hardly be denied that adoption of petitioner's position would constrict state police activities in a manner that in many instances might impair their ability to solve difficult cases. A satisfactory formula for reconciling these competing concerns is not to be found in any broad pronouncement that one must yield to the other in all instances. Instead, as we point out in Crooker v. California, supra, this Court, in judging whether state prosecutions meet the requirements of due process, has sought to achieve a proper accommodation by considering a defendant's lack of counsel one pertinent element in determining from all the circumstances whether a conviction was attended by fundamental unfairness. See House v. Mayo, 324 U.S. 42, 45-46; Payne v. Arkansas, 356 U.S. 560, 567.
In contrast, petitioner would have us hold that any state denial of a defendant's request to confer with counsel during police questioning violates due process, irrespective of the particular circumstances involved. Such a holding, in its ultimate reach, would mean that state police could not interrogate a suspect before giving him an opportunity to secure counsel. Even in federal prosecutions this Court has refrained from laying down any such inflexible rule. See McNabb v. United States, supra; Mallory v. United States, 354 U.S. 449. Still less should we impose this standard on each of the 48 States as a matter
Petitioner's remaining constitutional contention can be disposed of briefly. He argues that he was deprived of due process because New Jersey required him to plead to the indictment for murder without the opportunity to inspect his confession.
The Fourteenth Amendment does not reach so far. As stated by the Supreme Court of New Jersey in the earlier proceedings in this case, 6 N.J. 296, at 299-301, 78 A.2d 568, at 570-571, the rule in that State is that the trial judge has discretion whether or not to allow inspection before trial. This is consistent with the practice in many other jurisdictions. See, e. g., State v. Haas, 188 Md. 63, 51 A.2d 647; People v. Skoyec, 183 Misc. 764, 50 N.Y.S.2d 438; State v. Clark, 21 Wn.2d 774, 153 P.2d 297. In Leland v. Oregon, 343 U.S. 790, 801-802,
MR. JUSTICE BRENNAN took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK concur, dissenting.
Petitioner, pursuant to a request left by the police at his home on Saturday, December 17, appeared at headquarters in Orange, New Jersey, at 9 a.m. on the 18th. He did so on the advice of his lawyer, Frank A. Palmieri. Petitioner's brother and father accompanied him on this visit but were separated from him on arrival at the headquarters. Shortly thereafter petitioner was taken to Newark where he was interrogated by the police until 9:30 p.m. when he confessed. Between 2 p.m. and 9:30 p.m. Mr. Palmieri asked over and again to see his client; but his requests were not granted. On this phase of the case the District Court said:
The District Court reached "without enthusiasm" the conclusion that petitioner's constitutional rights had not been impaired. Id., at 104. The Court of Appeals evinced the same lack of enthusiasm for the result. 240 F.2d 844. Both lower courts felt that any correction of this unjust result should come from us. I regret that we have not taken this case, and the companion cases, as the occasion to bring our decisions into tune with the constitutional requirement for fair criminal proceedings against the citizen. I would reverse the judgment for the reasons stated in my dissent in Crooker v. California, ante, p. 441.