United States of America Ex Rel. Emil Reck, Relator-Appellant v. Joseph E. Ragen, Warden
274 F.2d 250
7th Cir.
1960
Check Treatment

*1 UNITED of America ex rel. STATES Relator-Appellant, RECK, Emil Warden, Respondent-

Joseph RAGEN, E. Appellee.

No. 12687. Appeals

United Court of States Seventh Circuit.

Jan. 1960. Weissbourd,. Bradley Eben, A. Bernard Page Siegal,. Moore,

Donald Richard A. Chicago, appellant. Ill., for Wines, Chicago, Ill., William C. Gren Illinois,. Beardsley, Atty. ville Gen. of White, Atty. Gen., M. Edward Asst. counsel, appellee. for HASTINGS, Judge, and! Before Chief SCHNACKENBERG, DUFFY Cir- Judges. cuit Judge. SCHNACKENBERG, Circuit appeal This from action1 of the quashing district court a writ of habeas corpus peti- which it had issued on the tion of “defendant”, referred Emil also remanding him to Joseph Ragen, appellee, E. penitentiary. warden an Illinois state In 1936 defendant convicted of murder in the Criminal of Cook County, Illinois, term and sentenced to a years penitentiary, of 199 in said where accordingly imprisoned. night January 2, 1936, On the Dr. Chicago Peacock, physician, C. Silber telephone apart- received a call at his Duffy, Judge, dissented. call, Circuit departed In answer ment. with his He car instrument case. evening his did not return. The next body park- found on the floor of He was dead ed automobile. from a bul- deep let and 13 lacerations wound Wednesday, March head. On theft, bicycle for the Reck, arrested Goethe, Nash and Robert Durland years age, and Michael all then age. years who was then 17 Although Decree; no formal order was entered United of Law and States ex clerk, Ragen, D.C., F.Supp. a notation was made of the fil rel. Reck v. judge’s decision Mem entitled orandum, Findings Fact, Conclusions *2 251 signed by which was driven Nash with following four all The sitting right Goeth the participation his and on individual confessions petitioner and with the [Reck] Nash killing Peacock. of Dr. they the rear seat. drove After guilty sentenced pleaded and Goeth Livingston they some ordered the doc- distance and prison, while tor money. of his his to out car and demanded guilty were tried and pleaded not any re He said he didn’t have gether, their money fighting objections. and started with over their in evidence ceived got he Goeth. When loose imprisonment. Goeth sentenced Both were doctor, Supreme fired two and shots at the error, Illinois the writ of On Court, lying the be while the doctor was on record law common with the ground breathing heavily, Reck fin- conviction, affirmed fore killing ished him club with a wooden 311, N.E.2d 64 392 Ill. length foot in car- about one that he Proceeding Post- Illinois boys weapon. ried as a The search- Hearing Act,2 filed Conviction pockets ed the and found doctor’s Cook petition Court in the Criminal $20, equally, him divided it and left denied, action County, which was lying on seat the floor of the rear Supreme by Illinois affirmed was car. also struck Goeth Ill.2d 7 on November several times the butt summarized, That court 130 N.E.2d 200. gun lying he on the while was page at page 130 N.E.2d at 7 Ill.2d ground. driving away the After of the defendants, the substance separated four and went their fol signed four ways.” spective lows: page Ill.2d, page 264 of at early evening January “In the N.E.2d, pointed the court out: 2, 1936, boys four met and were peti- “It should be observed that riding in a driven Ford automobile throughout proceedings these tioner by Jimmy They stopped Nash. represented by has able and been drug Walgreen store on somewhere original counsel. trial alert On Western Avenue. Robert North hearing validity full on the got car, and Nash Goeth out of pres- out of confession drug store, into the went called Dr. jury. judge The trial ence of requested and he make that confession met all ruled that professional call child at on a sick legal requirements. hear- A similar Whipple North 6438 boys, Street. jury. was had robbery, planning while guilty judgment and verdict of neigh- explored previously represent another determi- thereon and found it to be and dark borhood un- that the confessions here nation boys unfrequented. The two came scrutiny did not emanate der reported and to the car back * ** coercion. the above victim would be at their “ * * * signed The statements shortly, whereupon address boys complete, are four de- parked car there and their drove together consistent, which tailed nearby. arrived, parked Dr. Peacock surrounding circumstances with the alighted ear front compel the conclu- execution their case, with his medicine from the car they represent the truth sion approached Robert Goeth freely voluntarily uttered. gun put or- his back and conclusively car, demon- “The record him re-enter his dered Livingston petitioner, Nash, Goeth remained in did. strates arrested had been and followed the doctor’s car Ford sea., 2. § 826 et ch. Ill.R.S.1951. originally suspected inspiring mentality of their because in Reck. Undoubt- edly many genius robberies involvement was no days burglaries. apt “inglorious”, The first more three be classified as entirely Gray benign de- their confinement used the word in his *3 being questioned many persons

voted reference to the up make to their who independent part a about substantial and wholesome crimes twenty- every only population. For murder. four hours leading to up As the evidence to Reek’s boys asked were obtained were the confessions, written record shows areWe about the homicide. instant group young that this in of four men was con- opinion petitioner’s that Wednesday, March infringed rights not were stitutional following Friday night, dur- by the the facts as disclosed being question- which time were ”* * * record in this case. exclusively bicycles, ed about thefts of hearing on writ dis- saxophone, articles, and other court, complete pro- trict records of being were viewed numerous victims ceedings in the were in- Illinois courts They of such crimes. in cus- still troduced. In court this Reck contends tody following when the occurred: events that the district in con- court erred its The first reference to mur- the Peacock struction the fourteenth amendment Friday der was made to Reck on 8:45 applied to this case. p. Captain m. It was then that Andrew only dealing expert testimony di- Aiken, assigned investigate who was to rectly mental is with the status Reck mysterious telephone to doc- calls made Harry Hoffman, of Dr. director that R. Chicago, police tors in viewed Reck at the clinic of the Criminal the behavior station and noticed that he matched a County, Court of Cook who was called description given by previously an elder- for as a witness the defense. He ly doctor who had been the victim aof ported Reck had no that nervous holdup. Aiken then accused Reck of disorder, he dull that was of Peacock murder and Reck A became ill. intelligence, com- normal and was not to at Reck called look feeble-minded; mittable insane or that he said had a “nerve reaction”. juvenile delinquent. he that was never then caused Reck to be sent to county hospital night, has in An extensive effort been made he where for the Saturday picked up morning, court counsel the briefs questioning to that he was a weak character establish station for taken mentality, evidently p. with a retarded with 2 m. about the Peacock case. About establishing Crowley, premise purpose taken F. he was before Wilbert attorney, that his for a conclusion confession was who tes- first assistant state’s instance, on from him. For it as to what occurred extorted tified at the trial argued that, dropped Saturday, as he out of school as follows: age years, when of 16 he at the “Crowley told Reck that Goeth grade, seventh and as he did not take the part morning (who Nash had that games, athletic but content crime) had said he was confessed the weakling. scorekeeper, he was a to However, abe them the Peacock case. with on that, may he note while we being there, but admit- denied he books, interested not been have knew about it because he ted that training. Although did manual liked he had told him about it. Goeth spectacular participate in the fea- Crowley what in detail related contests, of athletic served an tures said. Nash and Goeth Goeth kept purpose score. Crowley essential brought before were then analyze Nash recited the fur- Reek. in detail and identified We need purport crime in Reek’s counsel the details indications which ther him, implicated presence where- pointing un- to an record find in the States, United contends upon not do it. now that he did Reck said product asked, that his confessions were the ercion, citing co- stated Goeth When admitting lengthy truth, that detention in- Nash told the communicado and veloped illness de- he, Goeth, had hit the doctor during period saying gun had hit We of time. convinced, however, Whereupon Crow- are proves the evidence with a club. ley Reck’? asked, that none of the about treatment ‘What interrupted, saying, ‘Go he received detained while and Goeth ahead, Emil, prior produced truth them the afternoon tell there, you it, you be- know Reck. While he about Friday lying Captain about you ill are not come when Aiken on know we *4 night probingly the Pea- accused him of it.’ killing, rugged cock determination “Crowley said, about ‘What say nothing to involvement you to reveal his Emil, you Did do were there? things?’ prevented in responded that affair had those authori- obtaining you, there, any ties from ‘Well, incriminatory I I will tell regard admission from in him on head.’ He I didn’t hit to that Saturday crime until doctor.” hit the claimed afternoon in the attorney. then, officeof the state’s Until group, statement It will be noted strong man of the twenty-four less Reck was made than stood fast and on this occasion was it first asked about hours after only the realization that Goethe and Captain Aiken. murder killing Nash had confessed the Peacock Crowley Liv- Mr. then directed that implicated him, had, and had in the brought ingston in confront Reck be to presence Crowley of upon called to regard Mr. to the latter statement tell it, you “the truth you about know keep appoint- Crowley to another left there, you were lying know we not are back, Crowley writ- came a ment. When it”, about that Reck realized that and, prepared, ten had been statement the “dance was over and the time had sign- presence, four defendants pay come to fiddler”. The latter but, signing, ed the defendants quoted words People are from Stein v. Crowley copies, read watched as Mr. York, State of New 346 U.S. S. suggestion, At Reek’s statement aloud. Ct. case, 97 L.Ed. 1522. In that “my reading and two an answer mother page 186, 346 U.S. at page 73 S.Ct. at you live sisters”, question “who do 1093, the court said: “my ?”, changed father to read “ * * * course, Of and two sisters”. these confes- sions voluntary were day in the On the same individual statements petitioners sense that wanted to defendant, were taken from each as they them make or that separately. were com- each was called in- These pletely spontaneous, signed like a confes- dividual statements were after priest, lawyer, psy- sion to a changed the defendants bathed and signatures chiatrist. But in this clothes. The sense no affixed in presence voluntary. criminal group confession civilians, is in- cluding the former foremen several “Cooper’s and Stein’s confessions grand juries, doctors and various busi- obviously came when were con- ness men. Each statement was read their vinced that dance was over and signed copy aloud before it was and a pay had come the time the fiddler. signer. given then, Cooper Even was so far in con- joint statement and the four indi- of himself and the trol situation vidual statements were admitted in evi- quid quo pro to dictate the for which objection. dence, over confess. he would That confession Invoking came at a time the aid the fourteenth he must have police already amendment to the constitution of the known knew Brassett,

enough, Jeppeson the District Court found as a fact that implication mentally to make inevitable. boy. In retarded Cooper my view, held until after it Stein out a correct statement implicated Both classify him. confessed and record to his condition ‘voluntary,’ “inglorious.” confessions were only sense in I must also dissent from the statement police by arrest one under majority opinion: con “We are suspicion courts state ever are. vinced, however, proves that the evidence properly find absence could that none of the treatment he re psychological coercion.” prior ceived while he was detained effect, v. see Lisenba To the produced same afternoon con California, U.S. fessions State Reck.” At the time Gallegos signed confession, 86 L.Ed. S.Ct. the first had been Nebraska, custody 72 S.Ct. eighty 342 U.S. State about hours. signed confession, he 96 L.Ed. 86. When he his second had been in one hundred hold We two hours food for and without solid voluntary result reached and that *5 forty-eight Supreme least hours. The Ac- correct. was the district court Court of Illinois described the situation pres- cordingly, the from which order by stating that Reck “was appeal is affirmed. ent was taken police week, during of the for a Affirmed. frequently ill, time he was fainted sev times, DUFFY, Judge (dissenting). eral of vomited blood on floor Circuit police station and twice taken was discloses before us Because the record During hospital on a stretcher. Emil charge placed that week no formal was physical, psychological, product if of against petitioner and he was confined process deprived coercion, due practically v. Reck incommunicado." Amendment. the Fourteenth 261, 264, People, 130 7 Ill.2d N.E.2d light of opinion majority makes The 200, boy is the. referred This men- had a retarded the tality, claim strong majority opinion as “the amazing conclu- reaches group.” of the man “Undoubtedly mental no was sion violently apt discloses genius classified The record Reck was to be more was ** opinion ‘inglorious’ Police ill in North Avenue Station *.” night Hoffman, yet this quotes Harry four times the confessed. R. Dr. repeatedly. nineteen He was He fainted vomited blood testified arrest, hospi- years and was unable walk. While of his old at time talized, ten intelligence a child between recounted details n andeleven physicians, years but old. coercion two doctors returned him to the tender previ- never had been arrested police. was ministrations juvenile ously delinquent. and was not a brought magistrate until before a problem He never been behavior day ninth after without his arrest school, early at at from home but n childhood, warrant. because his mental retarda- recurrently tion, is true he was studied It examined social Reck for days agencies, psychologists psychiatrists. three about dozens of unrelated age ranging bicycle crimes robbery, of twelve and half it was theft age eight, “investiga- but estimated so-called IQ sixty-four. hospital tion” made a case When he out of Reck. again nearly physical the' collapse tested time he was He had entire Fri- night. Although years age, age day his mental fifteen his father twice eight years months, attempted during found to be and four to visit him the first IQ fifty-seven. Furthermore, days confinement, .and his of his several he could

25g> so, held in- for Reck was not do

communicado. Applicable decisions are the here 191, Alabama, 352 U.S.

Fikes v. State 246; v. 281, Watts 1 L.Ed.2d 77 S.Ct. Indiana, 49, 69 S.Ct. U.S. State 1801; v. Turner 93 L.Ed. 62, 69 Pennsylvania, 338 Com. of U.S. Haley 1810; v. 1352, 93 L.Ed. S.Ct. Ohio, 68 S.Ct. 332 U.S. State Spano L.Ed. York, State of New U.S. facts, S.Ct. 3 L.Ed.2d

reasoning five Su- results in those

preme cases should dictate Reck is Emil I

sult here. believe con- a new trial because

entitled to pres- by psychological fessions coerced powers of his limited

sures overwhelmed

resistance. *6 FRIEDMAN, Wyandotte

Sidney d.b.a. J. Company, Appellant, Mattress

SEALY, INCORPORATED, Appellee.

No. 6053. Appeals Court of

United States Tenth Circuit.

Dec.

Rehearing Denied Jan.