*2 GILMORE, District Judge. Fowler, petitioners, Craig
Habeas Charles Jordan, Johnson, Larry with Asa Har- ris, were by Cuyahoga indicted County Jury charging Grand on 33 counts them kidnapping, aggravated burglary, ag- gravated robbery, attempted aggrava- ted murder. a lengthy jury After trial in Pleas, petitioners the Court of Common guilty were found of six counts of the in- aggravated burglary dictment: Johnson, robbery of Andrew aggrava- burglary Winegardner, ted of Judy ag- O’Brien, gravated burglary of Catherine attempted aggravated patrolman murder of Beranek, William the attempted aggra- Sergeant vated murder of Spahr. Richard Harris, Asa who had asserted an alibi de- fense, acquitted. Substantial sentences imposed petitioners. were underlying Circumstances the charges are bizarre. evening of May way forced their into the home Judy Weingardner in East Cleveland. Inside were Andrew Boy” “School Jackson and several others. gun point, At everyone was forced to lie floor, down on the and the petitioners proceeded to take money, jewel- ry, clothing, and appliances household from They home. loaded all of this material automobiles, into two belonging one Jackson and the belonging petition- other er Fowler. All the victims up, were tied except child, for Jackson and a small who were forced into one of cars. home, Petitioners then drove to Jackson’s which was also East Upon Cleveland. Aynes, L. Appellate Richard Review Of- it, entering money, took jewelry, guns, fice, Law, Akron, Ohio, peti- School of for and other items that apparently belonged to tioners-appellants. Jackson. occupants One of the of Jackson’s Brown, Atty. Ohio, William J. Gen. of home was able to telephone police, who Karas, Gen., Atty. Columbus, Simon Asst. responded Meanwhile, to the call. petition- Ohio, respondent-appellee. ers home, started to leave the Jackson tak- EDWARDS, ing Jackson, Jackson however, Before with them. Judge, Chief EN- GEL, broke free and ran Judge, GILMORE,* police, Circuit to the whereupon Dis trict Judge. defendants fled on eventually foot and * Gilmore, Judge, Michigan, Honorable sitting by Horace W. designation. United States District Court for the Eastern District family named order to eliminate the petitioners into the home of broke and to An extensive search of business, O’Brien. protect his narcotic which they finally focused on was commenced and area operated he claimed with the benefit of house where the O’Brien’s paid police protection. It was their claim went hiding. When two officers exchange gun fire which oc- door, occupants told the one *3 in the evening curred was initiated looking for had they the men were police, they and that had originally fled police, there but had left. The how- been sought from the refuge area and ever, remaining suspicious, they asked if O’Brien house in fear of their They lives. Upon entering the could search the house. they insisted that at all times believed that someone inside doorway, police heard police league were in with Jackson and were The shout that the defendants inside. that, instigation, police at Jackson’s porch to run but rifle officers tried off up were determined to set and eliminate forced them to take fire from the house petitioners. officers, approaching the cover. Two other appeals Petitioners exhausted all and now automobile, home were hit with O’Brien appeal the District Court’s denial of their rifle fire. petitions several for writ of corpus habeas quickly po- The area was saturated with filed under 28 2254. They U.S.C. raise ensuing gun nearly lice. The battle lasted one, appeal, seven issues on but the admissi- police an hour several officers were and ' bility of confessions made the petition- gassed, The home was tear and wounded. ers, dispositive, and requires reversal and fled, petitioners eventually taking some of remand to the District Court for a with them. family the O’Brien Two of on the voluntariness of the confessions. were It is O’Briens shot and wounded. shots, who fired the but clear they abused, Petitioners claim that were police hoping assert fired the shots to mentally physically, both and and thus the Fowler, Jordan, petitioners. and kill John- confessions which were received into evi- son were arrested around 1:00 a. m. on the dence were product of coercion. The morning taken May 30 and to the East dispute police allegations of abuse. Police All Cleveland Station. were booked These is clear evidence from photographs interrogated throughout morning. and that defendants Fowler and Johnson suf- apparently Johnson made an oral statement injuries fered between approximately 1:00 m., between a. m. and 7:00 a. and 4:30 m., arrest, a. at the time of their and 4:00 to gave Johnson and Fowler oral and written m., 5:00 a. when photographs were made. statements some time between 4:00 a. m. police injuries occurred, The admit that but and 7:00 a. m. they state that during occurred arrest scuf- petitioners’ version of the events dif- fles. substantially fer from those of the Prosecu- tedious, Although lengthy it is and we tion. Petitioners first claim “School conflicting testimony must look at the Boy” drug pusher Jackson was a known and parties the issue. to resolve We start they gone had to visit Jackson to convert petitioner with He Jordan. testified that religious him to their Sunni Muslim faith gun, he was hit with a struck in the face him persuade drug and to to cease his traf- shotgun, subjected with the butt of a and to ficking. It was their claim that Jackson profanity shortly racial slurs after he voluntarily accompanied the had defendants police station. He says arrived first house to his own in from the order to upon arriving at the station he was taken to guns of certain which he rid himself Later, he a room where was beaten. he they were preparing stored there. As was booked and taken to a cell. After leave, Fowler pushed Jackson and started minutes, about 15 he was removed running police, began ques- towards the who for Jackson, tioning claim that and taken fire. Petitioners back this cell. He police, up had set them Bayerl the aid of states that Officer largely was beating. his also then sponsible Jordan testi- taken the East Cleveland Police Bayerl strike peti- they placed he Officer Station where were booked and fied that saw shotgun; single-man with a breaking interrogation cells. Formal tioner Fowler m., gun. seems to have started around 3:00 a. handle confessions obtained between 4:30 says Johnson he was abused at Petitioner a. m. and 7:00 a. m. arrest. of his He testified that the time arm, officers’ versions of the events stepped tried to break his on his dispute him, most hands, claims. Of- kicked hit him the stomach Staimpel, Freshwater, ficer Bayerl, butt, shotgun with a and threatened him. others, among testified that did not ddring He claims that the ride sta- petitioners. abuse the The facial marks tion, blackjack he hit in the head with bruises observed on Jordan pistol face with a and a flash- explained and Johnson were product station, light. entering While he states *4 of legitimate encounters at time of ar- that his head was rammed into a steel door. rest, or at the station For example, house. He further claims that he beaten was after while Officer Horval pushed admits that he station, got gun he a put into the was petitioner a against Johnson steel door at mouth, spit upon him, in his that an officer station, he prevent claims he it to did was and that he told he would be denied escaping. Johnson from medical attention until a statement It undisputed was made. is that he suf- transcript of the state court’s eviden- injuries right fered to his a eye, chipped had tiary hearing does explain injuries not tooth, hospital and was taken to the several petitioner received only Fowler. Not do hours after his arrest and received seven some of allegations Fowler’s remain undis- stitches in head. his He claims several offi- puted, presented the various officers con- responsible cers were for his mistreatment. flicting testimony regarding Fowler’s arrest interrogation. and nothing There is Petitioner Fowler that he claims was Fowler, record disputing allegation scene, beaten and choked at the arrest and as well petitioners, other two was cigarette that a on put leg. was out his He suffering gas from effects tear at the states he was beaten time interrogation. of his Officer Copeland blackjack, shotgun station with a that a testified that he first Fowler saw around jaw. handle was broken across his He fur- m.; 4:30 a. he acknowledged that Fowler ther being claims he saw Jordan beaten at already been interrogated. Copeland station, and that threats were made stated that he took a written statement family during interrogation his from Fowler at a. Copeland about 7:30 m. process. said that on Fowler had a cut his face and Larry Mrs. Johnson on testified behalf of suffering was from the effects of gas. tear and said was permit- she not Copeland possible admitted is that it ted to see four days her husband until after Fowler black eye, had a was bruised around finally his arrest. When she saw him he nose, had a bleeding broken and eye, had a black eyebrow, stitches over his nose. He admitted that the probably eye. blood clots around his hit the petitioners. to the testimony, addition above it is testimony Officer Farmer’s does not coin- undisputed were the cide with Copeland. that Officer Farmer subjects gas of a tear bombardment which he interrogated testified that Fowler for necessitated medical treatment some in- about 45 minutes at m. 3:30 a. while Offi- present dividuals peti- scene. The Copeland cers Dugan present. tioners received no medical attention prior Farmer said that he nothing noted unusual interrogation. to their about Fowler’s appearance. He claims that sequence The time of all of the alleged voluntarily give Fowler agreed an oral beatings totally statement, is not clear. Petitioners give but would written were arrested around 1:00 a. m. and were without lawyer. statement Judge Thomas for a undisputed hearing by reveals events testimonial The record also surrounding Johnson’s arrest him petitioner on the voluntariness and admissibility that his confession was could indicate which confessions involved. voluntary. example, For Officer Look reviewing Federal courts state crim at 4:15 m. statement from Johnson a. took a inal convictions on corpus writs of habeas had a cut over admitted that Johnson power have broad to hold de novo evidentia acknowledged right eye. Look his Sain, ry hearings. Townsend 372 U.S. hospital. was taken It later Johnson 293, 83 (1963). L.Ed.2d testimony clear rec- is not from is, evidentiary decision to hold an hearing this Hor- injury how occurred. Officer
ord cases, officer, many within the sound discretion of val, arresting testified Johnson’s judge. situations, ground certain how that Johnson was knocked ever, exercise of the federal court’s during apprehension. Horval stated that power try head. Officer facts anew mandated. Johnson suffered bruised Townsend, McIntosh, supra, Johnson from In helped who remove scene, that he held “a shoot-out testified no- federal injuries eye required to Johnson’s before John- unless the ticed state court trier of fact However, in the car. McIntosh got has after a full hearing reliably son that, if his conflicted with 312-13, stated facts.” relevant Horval’s, (McIntosh) he mistaken. Of- 756-57. S.Ct. at The Court further held Kaminski, interrogated who Johnson ficer *5 evidentiary that an must hearing grant be m., may 4:00 said have around a. Johnson ed under the following circumstances: puffed eye. (1) “If merits the dispute factual were not Finally, undisputed petitioner hearing; it resolved in the state was (2) stripped presence was in the Johnson naked factual determination is not whole; supported fairly of woman. the record aas (3) fact-finding procedure the employed disputed these highly In face of facts by the state court was not adequate to contradictory testimony, and afford a full and hearing; (4) fair there is only findings made following at a substantial of allegation newly discov- “With hearing: conclusion of the evidence; (5) ered the material facts suppress to the motion to the state- spect adequately developed were not at ments, I find the statements were voluntar- (6) hearing; state court or for any reason were not ily given given and because of it appears that the state trier of fact did threats, coercion, and No further abuse.” not applicant afford habeas and a full findings were made. hearing.” fair fact trial, were The statements admitted S.Ct. at 757. guilty, were tried and and prison as indicated above. Substantial sen- Thus, in to order eliminate appeals imposed tences all state independent need for an evidentiary federal were exhausted. hearing, the district court must examine the findings of state court to determine corpus pe- Petitioners then filed a habeas whether the state of reliably trier fact States District Court tition United found the material and rejected facts District for the Northern of Ohio. situations, claim on its merits. some Thomas, reviewing the record made in after where not the state court has articulated court, petition state denied the without express findings, may possible be for the hearing, concluding that the evidentiary an the findings federal court reconstruct fairly sup- court’s determination state trier fact. If findings find that these by the record. We ported record, be can inferred from the relying erred in on the conclu- the federal court not and that this need hold its own judge, sions of state trial hearing. must be reversed and remanded to matter possible years three after the deci remedies redress error. .. . Townsend, good presume What it does not Congress codified a is that these
sion proceedings always holding in will be without 28 U.S.C. part of the Townsend duty error in a constitutional sense. The 2254(d),1 Act of November § of a corpus federal habeas to ap- court Although on its face the statute Stat. praise a claim that constitutional error must govern when a federal court does did reflecting as it does the belief evidentiary hearing,2 it independent an hold occur — ‘finality’ deprivation that the of a of lib- findings require that state court does erty through the invocation of the crimi- hearing made a full fair fact nal is simply sanction not to be achieved presumption to a of correctness. If entitled expense right— of a constitutional findings state court meet abjured.” is not one that can so lightly be 2254(d), the state court indicia outlined § (emphasis added) presumed to be correct. determination Nevertheless, special presumption This language provides expla- a succinct do if proof operate 2254(d) burden of at all role plays nation § in collat- eight specified exceptions eral view one of of constitutional error in state ap eight exceptions clearly exists. These court fact. It points up statute the six the constitutional pear subsume Townsend criteria. need for federal courts to Thus, know that state that one six court are reliable. determination necessarily Townsend criteria exists re Federal courts an obligation have 2254(d) proof solves the burden of issue. § ascertain whether the state court found the present, of the Townsend If one criteria is relevant facts and applied correct stan must an evidentiary the district court hold pointed dard of law. As out in United of correctness ex rel. States Williams v. not apply. Conversely, presump does if the (2d 1973): F.2d 1006 Cir. operative, evidentiary hearing an tion “[Tjhe habeas must itself insure cannot be mandated. the relevant facts were found and 2254(d), both Under Townsend legal correct ap- standard was *6 therefore, them, the district court must conduct to plied is only It [cites omitted] inquiry into whether an court has where ‘it can scarcely be doubted’ that adequately resolved the factual issues con- the relevant factual issues have been re- petitioner’s tained in the constitutional solved the petitioner that claim. ‘there is no evidence that the state trier wrong legal utilized the standard’ that 307, Virginia, In Jackson v. 443 99 U.S. requires 2254 § the habeas court to dis- 2781, 323, (1979), 61 L.Ed.2d S.Ct. 560 at subsequent petition miss a without an Supreme Court defined the broader duties independent evidentiary (em- hearing.” in dealing of federal courts with state habe- phasis original) as cases. It said: Id. 1010-11. corpus pre- “The federal habeas statute sumes the norm of a fair trial Thus, in the state this court must examine the adequate postconviction court and to determine if 2254(d) provides Rose, 1. 28 U.S.C. § that ha- In the dissent LaVallee Delle 410 n.2, corpus proceeding 690, 1203, n.2, beas after determination U.S. 701 93 S.Ct. 1209 35 hearing on merits of (1972), says, a factual made issue L.Ed.2d 637 Justice Marshall "... by competent jurisdiction, question a state court evi- hearing ap- whether such a [T]he finding, or denced written other or propriate corpus reliable on federal habeas continues to adequate indicia, presumed written will be exclusively by be controlled our decision in eight exceptions be correct. There are to the Townsend v. Sain even after the enactment of correctness, including finding 2254(d). Developments See § in the Law— dispute that merits of the factual were not Corpus, Federal Habeas 83 Harv.L.Rev. hearing resolved the state court or that (1970). ...” factual determination of the state court was not fairly supported by the record. Supreme The United States Court re- support presump- adequate to they are 2254(d). These opinion, holding under versed in a five to four § correctness tion of enable the must be sufficient judge’s that the state trial determination of obligation its to de- to fulfill court district totality of the circumstances evidenced by the they supported are termine applied he had correct voluntariness standards of the correct and that evidence The Court further noted standards. The federal district applied. law were since the district court could have been rea- without a may petition dismiss certain that the state trial sonably findings of the state hearing only if the granted would have relief if he had believed to enable the federal judge are sufficient testimony, the respondent’s federal courts judge to determine district erroneously opinion concluded that the evidence and supported state trial court did not meet the applied. law were standards of correct 2254(d)(1). quirements § Rose, LaVallee v. Delle LaVallee, petitioner primari- relied (1973), 35 L.Ed.2d 93 S.Ct. ly testimony prove on his own involun- adequacy discussed Supreme Court tariness, up and ended contradicting his findings under 28 U.S.C. court’s own claims. The state presented evidence respondent’s 2254(d).3 In directly refuting the petitioner’s allega- based on two for murder was conviction opinion tions. The Court’s says, in voluntary that were found to be confessions essence, that the district required court was pro- York state court subsequent New to assume that the state court had found heard ceedings. The state court petitioner’s allegations were in- and, summary an extensive assumption credible. This was based on the evidence, concluded: theory that the state court would have evidence, both at the trial and “On all granted relief if had decided to believe considering and after petitioner, every since there was indica- circumstances, totality including judge applied tion that the state trial to warn defendant of his the omission correct standards. right against right to counsel and his self incrimination, I find and decide that the emphasizes Although LaVallee respective confessions must, general, federal courts defer to the were, attorney respects, in all vol- trier determination of the state of fact and in evidence untary legally admissible correctly assume that the state trier re ...” at the trial facts, assumption solved the such an is not at 1204. 410 U.S. *7 Townsend, In warranted all eases. su subsequent proceed- federal habeas pra, anticipated the Court the situation we ings, the district court felt unable to accord face here. court the of correct- the state “If the state court has decided the mer- judge ness because the state trial did not express its of the claim but has made no articulate to what extent he credited or findings, may possible still be for the rejected respondent’s testimony. The findings District Court to reconstruct the hearing, court held its own district fact, of state trier either because involuntary, the confession and ordered the plain his view the facts is of from his respondent discharged unless he was re- opinion of or because other indicia. Appeals tried. The Court of affirmed on will impossible, some cases this be and the ground the state court’s factual compelled Federal Court determination on voluntariness did not District will be 2254(d). hearing. meet the standards of 28 U.S.C. to hold a above, 2254(d). 3. As indicated state court must and § meet the same standards under both Townsend 990 ings if it is and the state possible is not deference accorded court
“Reconstruction
applied
whether
state finder
depends upon
unclear
decisions
the facts of the indi-
dispos-
constitutional standards in
correct
Indeed,
LaVal-
cases.4
vidual
circum-
the claim. Under such
ing of
lee indicated
same
standard when it
as-
Court cannot
the District
stances
said:
whether the state court found
certain
circumstances,
“Under these
we think
adversely
petition-
the facts
law or
the District
been
Court could have
rea-
the decision
er’s contentions. Since
sonably
that the
court
certain
state
would
upon an
may
trier of fact
rest
granted
have
relief if it had believed re-
adverse de-
of law rather than an
error
spondent’s allegations.”
facts,
termination of the
410 U.S.
state court all resolved relevant factual is judge Unless can be reason- petitioner sues if “there is ably certain that the state trier would no evidence that the state trier utilized the if he granted have relief had believed wrong 692, 695, 410 standards.” U.S. at petitioner’s allegations, he cannot be sure 1205. See United States ex S.Ct. in denying trier relief LaVallee, rel. Williams v. 487 F.2d allegations. disbelieved these If (2d 1973). Cir. alleged combination of the facts would judge’s The state findings in the instant prove rights violation of constitutional case cannot these exacting meet standards. and the issue law on those facts The conclusory do give not presents a or novel problem difficult applied assurance that the trier of fact decision, any hypothesis as to the relevant Moreover, correct standards law. in con- factual determinations the state trier trast the facts in the instant purest speculation. involves The fed- case do assumption not mandate the eral cannot exclude possibility court believed the the trial believed which facts because he found that the confessions were deprivation showed of constitutional voluntary. question just here rights yet (erroneously) concluded petitioners’ one credibility; rather, that relief should be denied. Under these there is undisputed evidence that could indi- impossible circumstances it is for the fed- coercion, cate as well as an admission facts, eral court to reconstruct and a prosecutor “were not hearing must be held.” gently.”5 treated 314 through through 759. offered Townsend
Thus,
clearly
contradictory
indicates that the
often
and did
totally
ability
district court’s
infer
find-
factual
example,
fute
claims. For
Offi-
*8
opinion
4. We are well
necessarily
aware that the
in Town-
that the state court
found
facts
“Thus,
third-degree
against
petitioner.
send states:
if
methods of
obtaining
alleged
a confession are
and the state
court refused to exclude the confession from
important
5.
It is
to remember
that
interro-
evidence,
judge may
the district
assume that
gation
place
in this case took
under volatile and
against
peti-
trier
state
facts
emotional circumstances. The
were
tioner,
course,
being,
the law
that
third-de-
apprehended
gun
battle which lasted at
gree
necessarily produce
methods
a coerced
gas
least one hour and involved extensive tear
confession.”
U.S. at
at
S.Ct.
bombardment,
wounding
of two
offi-
problem
in this case is that
do not
we
wounding
cers and of two civilians.
know,
complexity
record,
because of the
of the
judge’s
the state trial
find-
had have accorded
Fowler
conceded
Copeland
cer
correctness,
but
ings
conceded
He also
been struck.
probably
hearing.
of some
held an
evidence
should have
showed
face
Fowler’s
compelled by
taken of
pictures
hearing
such a
The need for
comparison
A
trauma.
identi-
arrest with
to articu-
judge
of his
of the state trial
the time
the failure
Fowler
indicates that
applied making
the station
legal
standard
photos
late
fication
voluntariness,
of blow.
type
some
sustained
or
face
determination
Fowler’s
testimony of Officer
and the
pictures
findings upon which it was based
These
factual
entirely unexplained.
remain
of this case.6
Copeland
complex
facts
light of
judge
conclusion,
we assume that
Even if
reaching
the court
this
pe-
against disputes
all factual
rea
resolved
to state
cognizant
responsibility
of its
unex-
titioners, we
are faced
still
of the
concluding
for
that one or more
sons
render
possibly
could
events that
plained
2254(d)
present.
listed in
factors
§
involuntary. This indicates
the confessions
Mata,
539, 101
v.
449 U.S.
Sumner
not resolve
either did
the state court
(1981). We believe that the
ing
relying
of
on an evaluation of
instead
provided
Congress carefully
in 28 U.S.C.
ruling,
In
the state court record.1
so
the
2254(d)2
for a
of
§
correctness
finding
majority
the
concludes
factual
findings
of
made
hearing
factual
after a
by
judge
state trial
on voluntariness was
of the
court
competent
jurisdiction.
a state
of
2254(d)
section
presump-
not entitled to the
2254(d) commands
these
Section
factu-
tion
because of “the failure
of correctness
presumed
al
“shall” be
correct un-
of
state trial
to
the
the
articulate
any
eight specific
less
one of
circumstances
legal
applied making
in
the deter-
standard
Clearly,
should exist.
the statute
admon-
voluntariness,
of
the factual
mination
or
ishes federal
to
respectful
courts
be
of the
upon
light
in
of
which was based
integrity of their sister courts in the states
complex
Majority
the
of
facts
this case.”
coequal ability
of state courts to
Op. at-(footnote
omitted).
protect
the constitutional
of
rights
persons
of
accused
crime.
my
for the
opinion,
proper respect
a
Rose,
of LaVallee v. Delle
teachings
Rose,
In LaVallee v. Delle
the
Although
acknowledges
it
“po-
that
the
Human motivation
complex,
is
and the
dispute
lice
of the
explain
may
officers’ versions
events
need to
one’s actions
be over-
petitioner’s claims,” Majority whelming,
most of the
though
may
even
appear
later it
986,
have
Op.
majority
by
at
the
is troubled
been unwise. “If it is true that
soul,
testimony
inconsistencies found
some
of
is
for
good
confession
the
it must be
record,
police.
reading
the
After
acknowledged
I do
a free
that
and honest admis-
problems.
agree
guilt
not have
same
I
with
of
perhaps
largest
sion
is
the first and
Judge
Thomas that the
of the state
step toward ultimate rehabilitation.” U.S.
judge, though
Derrick,
point
trial
succinct to the
(6th
1975).3
519 F.2d
4
Cir.
terse,
fairly
being
supported by
suppose
I
While
could
record, judged as a
entire
whole.
petitioners’ story
have credited
they
that
inherently intimidating
The
nature of
on a peaceful
religious
mission to
interrogation
fully
victim,
custodial
has been
cata-
“convert” their
he could certainly
logued
Arizona, supra.
in Miranda v.
While
equal plausibility
have concluded that
perhaps
frequency
may
of abuse
have
it was patently
They
incredible.
had to be
intervening
diminished
years,
sixteen
aware
the evidence of their own vio-
judicial
my
experience
own
confirms the
question
lent conduct on the evening in
observation of
Justice
Chief
Warren that
overwhelming.
I believe that the state trial
physical
brutality
use
and violence
was fully entitled to discredit
“[t]he
not, unfortunately,
relegated
past
is
only
their testimony concerning the night’s
any part
country.”
or to
of the
at
altogether,
Id.
events
but also was entitled to
at 1613. Thus the
burden
cast
the petitioners’ description
discount
of the
government
upon
prove
by prepon-
a
alleged
causes
extent
their
injuries
of the
derance
evidence
voluntariness of
impact
those
might
events
have
may
defendant’s confession before it
be
had
the voluntariness of their state-
hand,
3.
If
are to
purported
we
credit the
Officer
the other
as a
member of a
Horval, petitioner
sect,
religious
may
genuine-
Johnson’s statements could
Johnson
been
have
present just
example.
surprised
ly
such an
From Horval’s
at the unusual twist of events. He
testimony,
appears
may
regretful
Johnson was read
robbery
even have been
a
upon
warnings
being placed
the Miranda
selling
drugs
someone who he believed was
police
cruiser
that Johnson stated he un-
rights
escalated into an invasion of the
of oth-
rights. Transcript
derstood his
at
personal
ers toward whom he bore no
malice
policemen
then
officer
told Johnson that
two
which,
either,
suggest
whatever.
I do not
if
why. According
had been shot and
him
asked
explanation
suggest
is the correct
I do
one.
Horval,
responded
to Officer
Johnson
that “he
quality
accuracy
that the
of the record
Schoolboy,
nothing
was after
and there was
upon
likely
it is
based
at this
police.” Transcript
meant
at 204.
significantly improved,
taking
time to be
even
Obviously, Johnson could have been terrified of
into account the consummate skill and refined
police, offering
explanation
an
he
which
judgment
which
Thomas could be ex-
might protect
hoped
him from a dreaded “third
pected to contribute.
degree” interrogation
at
back
the station. On
what he
Obviously
exactly
U.S.
petent intelligently them upon or to rule
suppress during the While fairly. occasionally ex-
hearing, aggres- with the some frustration
pressed counsel, my of defendants’ conduct
sive hearing in over presided he
judgment, as one intelligent a manner
as fair the feder- in either reasonably expect
could majority opin- system. The
al or provide otherwise or suggest
ion does hearing, presided why another reason judge, of a state instead by federal
over objective re- just or produce a more
could
sult.7 day their have had
These proc- accorded due They have been
court. been and have proceedings in those
ess litiga- trial. This after a fair guilty be at rest.
tion should BANK & TRUST FIDELITY
AMERICAN Jr., Williams, L. & John
COMPANY
Commissioner, Banking Department of Securities, of Ken-
& Commonwealth
tucky, Plaintiffs-Appellants, HEIMANN, Comptroller of the G.
John Department
Currency, of the Trea-
sury Bank & Trust First National *16 Corbin, Kentucky,
Company Defend-
ants-Appellees.
No. 81-5316. Appeals,
United States Court Circuit.
Sixth 6,May
Argued July
Decided Prather, Bullitt, W. L.
Thomas Stewart Iler, Combs, & Richard W. Wyatt, Tarrant appeal. Upon consideration of these is- their remand this case to I would not 7. Because sues, they provide grounds hearing, I do believe I would reach for a new judgment. by petitioners presented reversal of the district court other issues