DARWIN v. CONNECTICUT
No. 794, Misc.
Supreme Court of the United States
Decided May 20, 1968
391 U.S. 346
Joel H. Reed II and Etalo G. Gnutti for respondent.
PER CURIAM.
Petitioner was convicted of second degree murder and sentenced to life imprisonment. The Connecticut Su-
On Friday, December 6, 1963, petitioner was arrested on a coroner‘s warrant charging him with murder. During that entire day until 9 p. m. petitioner was subjected to questioning. Sometime thаt evening, the officer in charge brought in a revolving disc and sought to persuade petitioner to look at it and “relax.” The trial judge said that “[the officer] was not complеtely unaware that this was a common hypnotic device.” The wheel turned for about half an hour, but petitioner refused to look at it.
The next morning the questioning resumed and cоntinued intermittently until about 4 p. m. when petitioner fell forward, according to the trial judge, “either fainting or pretending to faint.” He was revived and then confessed to the murder, as hereinafter described, in response to questioning by the officer in charge.
During the entire period petitioner was in custody, his counsel had been making determined but unsuccessful effоrts to contact him or the officer in charge of him. On Friday, December 6, there were 19 phone calls to various police offices, including nine to the one at which petitioner was held. On Saturday, there were five calls, and on Sunday, there was one.
On Friday, there was a personal visit by one of the lawyers to the police barracks in Stаfford Springs where petitioner had been taken that morning. But at about the same time that counsel arrived, the officer in charge took petitioner from the barracks аnd drove him around, apparently to protect him from what the officer thought were newspapermen.1 Counsel made four visits to various barracks on Saturday.
Petitioner‘s first confession, made orally after the “fainting” incident on the afternoon of Saturday, December 7, the second day of arrest and interrogation, was excluded from evidence by the trial judge. The trial judge also excluded petitioner‘s written confession made shortly thereаfter. The trial judge, however, admitted a subsequent written confession made on Sunday, December 8, and evidence as to a partial re-enactment of the crime which рetitioner staged on that day at the request of the police. During the course of this partial re-enactment, petitioner, as he had done intermittently during his custody, denied thаt he committed the crime. The Connecticut Supreme Court affirmed.
The inference is inescapable that the officers kept petitioner incommunicado for the 30 to 48 hours during which they sought and finally obtained his confession. See Davis v. North Carolina, supra, at 745-746; Haynes v. Washington, 373 U. S. 503 (1963). Considering the “totality of the circumstances” (see Clewis v. Texas, 386 U. S. 707 (1967)), we conclude that thе court erred in holding that the confession and the partial re-enactment were voluntary. The denial of access to counsel and the outside world continued throughout, and there was “no break in the stream of events” from arrest throughout the concededly invalid confessions of Saturday, December 7, to the confession and re-enaсtment of Sunday, December 8, “sufficient to insulate” the final events “from the effect of all that went before.” Clewis v. Texas, supra, at 710. See Beecher v. Alabama, 389 U. S. 35, 36, n. 2 (1967).
Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment bеlow is reversed and the case
MR. JUSTICE WHITE dissents.
MR. JUSTICE HARLAN, concurring in part and dissenting in part.
I am unable to agree with the bаsis on which the Court reverses petitioner‘s conviction. The courts of the State of Connecticut conducted a careful and conscientious review of the “totality of the circumstances” surrounding petitioner‘s three confessions. If the question in this case were simply whether the third confession was coercively extracted, I would votе to affirm. I cannot join the Court in what seems to me no more than a substitution of its view on a close factual question for that of the state courts.
In this case, however, a sрecial element is present. The trial court ruled that the prosecution had not met its burden of proving that petitioner‘s first two confessions were voluntarily made. It then admittеd his third confession. The Connecticut Supreme Court, affirming, evaluated petitioner‘s third confession by the rules that had been applied to the other two: finding that the atmosphеre had changed enough to tip the balance in favor of voluntariness, it found this confession admissible. I do not think this reflected a proper approach to the рroblem of multiple confessions.
A principal reason why a suspect might make a second or third confession is simply that, having already confessed once or twice, he might think he has little to lose by repetition. If a first confession is not shown to be voluntary, I do not think a later confession that is merely a direct product of the earlier one should be held to be voluntary. It would be neither conducive to good police
In consequence, when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has, in my view, the burden of proving not only that the later confession was not itself the product of improper thrеats or promises or coercive conditions, but also that it was not directly produced by the existence of the earlier confession. See United States v. Bayer, 331 U. S. 532, 540-541. Here, the facts аs stated by the state courts fail to satisfy this additional burden. Petitioner‘s third confession followed the completion of his inadmissible second confession by only a few hours.* In the intervаl he appears to have talked to no one except his jailors and the coroner. There is no indication that he had any reason to think that a third confessiоn would increase his peril. Since I would hold only that the state courts applied the wrong standard in this case, I would remand for further proceedings, in order to give the prosecution the opportunity to show that the third confession was not merely the product of the erroneous impression that the cat was already out of the bag.