United States of America Ex Rel. Murray Dickerson v. Alfred T. Rundle, Superintendent, State Correctional Institution,philadelphia, Pennsylvania

hearing, plea evidentiary and the .directly

delay Crail. attributable

Having court was trial found failing detect

free from error

alleged condition, the onus is we believe expedi- complaining petitioner

tiously get proper his claim before hearing. Failing in that

tribunal for a

regard, passage of cannot await gain thereby trial. Such

time and new again distinguish

circumstances delay was not Robinson case where the

directly petitioner. attributable sum, conclude, light case,

circumstances of this the evi-

dentiary hearing as to mental Crail’s

competency, guilty pleaded at the time he adequate to vouchsafe his

rights. And, the decision reached trial clearly erroneous.

Affirmed.

UNITED STATES America rel. Murray DICKERSON RUNDLE, Superintendent,

Alfred T. State Philadelphia, Institution, Correctional Pennsylvania, Appellant.

No. 17629.

United States Appeals, Court of Third Circuit.

Argued Jan. 1969.

Reargued Nov. 1969. Reargument

Second May July 21,

Decided

463 ALDISERT, STAHL, ADAMS, Cir- Judges. cuit Re-Argued May 1970 HASTIE, Judge, and Before Chief freedman, seitz, McLaughlin, GIBBONS, ALDISERT, ADAMS, and Judges. Circuit OF THE COURT OPINION Judge. ALDISERT, Circuit time, For we are called the second Murray the conviction review for murder of a Philadel- Dickerson housing guard phia project As in 1958. before, admissibility aof at issue is the given time at a statement legal coun- when Dickerson was without by order of a com- sel and incarcerated mitting magistrate. In order to evalu- Sixth the assertions of Fifth and ate necessary deprivations, it Amendment history le- the extensive to review the gal preceded proceedings which have appeal. murder convicted of Dickerson was Pennsylvania jury He in 1960. unsuc- cessfully appealed conviction supreme held in Com- court which state Dickerson, Pa. 406 v. monwealth (1962), the voluntari- 421 176 A.2d Crawford, Atty., James Asst. D. Dist. given to vel non the statement ness (Joseph Musto, Pa., Philadelphia, J. jury finally with the police rested Atty., Sprague, Asst. Dist. Richard A. on review. disturbed not be and would Atty., Specter, Arlen First Asst. Dist. in a position subse- reiterated This brief) Atty., appellant. Dist. on the for corpus re- quent habeas of state denial Schambelan, Cohen, Shap- ex rel. Howard L. lief in Commonwealth iro, Cohen, Berger, Rundle, A.2d Philadel- 192 Polisher & Pa. phia, (David Stein, Berger, Pa. Walter den. 375 U.S. cert. L.Ed.2d 154 Berger Stein, Pa., Philadelphia, on the & brief) appellee. for action, Resorting federal habeas Rudovsky, Dildine, however, Vin- successful David Melvin Dickerson was Assn, overturning two Ziccardi, Phil- cent J. Defender his conviction Pa., Dick- adelphia, Philadelphia, grounds. ex rel. amicus cur- (E.D. F.Supp. iae, Rundle, appellee. on the brief erson Pa.1965), ruled that Jack- Wood Argued Jan. Denno, son Judge, HASTIE, Before Chief required (1964) McLaughlin stahl, circuit voluntariness separate Judges. Illinois, statements, and Escobedo Re-Argued 5, 1969 Nov. 1758, 12 L.Ed.2d v. United (1964) Massiah HASTIE, Judge, Before Chief 1199, 12 seitz, States, McLaughlin, freedman, The Voluntariness L.Ed.2d 246 rendered state- the Statement ments matter of inadmissible as a law 2254(d) pro Section of Title 28 It should due the absence counsel. corpus ap vides that federal habeas emphasized all plications, adjudications state “shall be decisions had announced sub- presumed only to be correct.” It Pennsylvania sequent courts’ where “such factual determination of review the conviction. fairly supported by record” a reject appeal, however, this On court reject federal court is authorized to ed the contention that Dickerson's state findings. Notwithstanding state this “merely ment was inadmissible because admonition, rejected the district court given at he was it was a time when finding the state of voluntariness on without assistance of counsel.” basis of the identical evidence reviewed v. Run United Dickerson States rel. Having the state courts. examined dle, (3 1966), 126, 363 F.2d 129 Cir. ourselves, this record we conclude that Rundle, 386 cert. Dickerson U.S. den. v. 7 adjudication the state more fair than 916, 880, 8 S.Ct. 790 ly supported should and have ac Instead, we case remanded the cepted by the district court. solely purpose to the state courts for the conducting hear Jackson v. Denno The record shows that Dickerson vol- ing on the issue untarily voluntariness. police surrendered three days housing guard after was killed. remand, On state trial court deter- period There followed a mined that the statement was voluntari- August p.m. p.m. from 5:20 9:18 on ly given. agreement By parties, 19, A finding on basis of made morning August held on the 20 for presented testimony in the federal co-suspect, Spencer Dickerson proceedings This before Wood. Broaddus,1 were after which men both holding Pennsyl- was affirmed grand jury. held for the Within a few vania Court for the third time after hours the defendants were commit- Dickerson, in Commonwealth 428 Pa. v. county prison, ted to the the detective 564, (1968), 237 229 A.2d with Justice requested bureau obtained from dissenting grounds Roberts on the quarter judge state sessions police violated the defendant’s order” which authorized removal of they “bring- to counsel when obtained a prison po- defendants from for further up authorizing order” interrogation. lice A second round of affording advising questioning p.m. followed from 3:16 fendant of his to counsel. August p.m. 20, 9:41 on the conclu- gave

Returning courts, sion of which Dickerson state- to the federal Dick- involuntary. arguments ment erson which he attacks as reiterated his on volun- right-to-counsel. The tariness and the Based both Dickerson apparently the same record Broaddus were conducted which the state reviewed, courts had five officers who at times em- district ployed technique concluded “Mutt and Jeff” statement was invol- untary. issuing friendship writ, hostility. A lie detector the court during requested, appeal ensued, test if an was also administered that we interrogation, prior reconsider fol- our re- course the second decision which jected lowing which the accused Dicker- Amendment Sixth claim. argument lying. panel son After At the time events and two rehearings banc, separate transpired, years old en 21 years nine concluded that of formal education. writ should not issue. Spencer plea proceedings. ex rel. Broad- After Broaddus entered (3 1970). guilty sentenced, he, too, Rundle, F.2d and was dus attack initiated a collateral Davis, Haynes, difficulty equating experience Cu- voluntariness We claim— lombe, Spano, Cicenia, Crooker —the with those eases these circumstances 504, Lagay, the accused of his failure to caution U.S. such as Cicenia (1958); rights outright to honor a or an refusal 2 L.Ed.2d 1523 California, request factor but one for counsel was U.S. Crooker v. (1958); ingredients from in a 2 L.Ed.2d 1448 blend S.Ct. Spano York, was extracted. 79 S. conclusion coercion here; (1969); absent Cu find no such blend L.Ed.2d 1265 We Ct. adjudication Connecticut, this, voluntari- the state lombe v. (1961); ness stand. 6 L.Ed.2d 1037 should S.Ct. Washington, Haynes (1963) and 10 L.Ed.2d 513 Bight to Counsel Carolina, v. North Davis previously, case when As noted re 16 L.Ed.2d 895 rejected con- the last us was before his lied on Dickerson to establish was statement tention that Dickerson’s pf Certainly claim the involuntariness. it was obtained because inadmissible way approach no in here in those facts adopt- counsel. In without when he was Culombe, a “mo where the accused was contrary ing position, the district subjected ron or imbecile” who was authority de- of two court relied Davis, interrogation; days five of or Illinois, U.S. Escobedo v. cisions: days of where sixteen incommunicado 1758, 478, L.Ed.2d 977 84 S.Ct. interrogation finally in resulted the ex States, (1964) v. United and Massiah traction from an illiter of a confession 12 L.Ed.2d 84 S.Ct. Crooker, mentality; very of or ate low (1964). decisions Both these interrogated where the accused in non-retroactive declared since been through night opportunity with no Johnson application. in Escobedo Spano, sleep; or where the interven U.S. po in tion of “friend” who was fact a Massiah, by (1966), in confession after lice officer resulted year, in United this Circuit last eight interrogation hours of continuous Jersey, 418 F.2d Allison New ex rel. night. of into the middle 1969). Consequently, if (3 re- is to be conviction Dickerson’s 1960 cases, In contrast the factual right denied he was versed because construct here is too frail to overturn counsel, it be on basis must adjudication the state the confes- decisional law. voluntary. nothing some other sion was is in There age, intelligence, Dickerson’s or back- here are confronted that we We stress ground might any great indicate applica- issue the retroactive susceptibility psychological coercion. principles constitutional tion certain question physical And the of the use of interrogation in which occurred to an is raised. is it force not even Nowhere eight years Escobedo 1958— eating, suggested ample time for re- Were we Massiah decisions. sleeping, resting in or afforded was not post-dat- viewing long interim between the two inter- question cases, is no there ed these rogations August 19 and or even hearing in- post-preliminary Dickerson’s during themselves. terrogation effected been could not have although And it is true that warnings his prior least without give did not has become Dickerson what authority rights. constitutional warning, known as the Miranda Massiah, case Escobedo, the later or emphasized presence should be result. such a dictate would of Miranda retroactivity is justify finding does this factor Where however, convincing concerned, different considera- of coercion absent a factual foremost, array. apply. virtually First every In relied tions case what upon by support determine in- that we essential gov- authority appeal nary hearing, cisional could have urges application police lockup erned. Dickerson been moved from one Maryland, 373 of White v. another stationhouse to detective (1963), headquarters necessity retro- 10 L.Ed.2d 193 without actively applied movement, in Arsenault v. Massa- order. Such chusetts, itself, L.Ed. and of not create a situa- White, 2d tion which there would be re- Court held that Sixth counsel. Amendment The issuance aof court order quired pre- accomplished, preliminary assistance of counsel at after a liminary hearing plea guilty hearing, where a that which could have been ef- position It fected entered. is Dickerson’s before the recognized not, view, an order counsel does in our consti- applies judicial proceedings, all tute the critical event the chain proceedings. required presence significant and in this case What about experience applica- defense the time the of Dickerson was not his pre- temporary prison tion for the order” release from the quarter judge. “bring-up order,” sented to means of sessions his prison incarceration result Mary The doctrines of White v. preliminary proceeding. land, supra, Hamilton Certainly, if after hear- 7 L.Ed.2d 114 ing had States, and Massiah prison, of Dickerson at the without the supra, judicially are crafted benchmarks bringing intervention of a court order particular phases in delineate up police headquarters, him to the criti- proceedings right criminal when the to proceedings cal nature the not absolutely counsel attaches under the interroga- have been diluted. Such an right Sixth Amendment. But this at any tion at time —under circum- by chronology taches not much the so stances, prison, inside or outside the proceedings by interposition or even the “bring-up with or without order”— ancillary judicial proceedings it as prisoner would not have thrust the be- does the accumulation of a circum yond pale pro- the of Sixth Amendment heightens complex the stantial tection. probability that will be violence rights predicate the constitutional of one whom The to the “critical stage” prosecuting. committing magis the here authorities was the simply preliminary appearing preliminary the trate’s action at the hear hearing, ing. being required judicial without It is testi the decision of the of fy plead, period a critical ficer to hold an such accused for court grand require presence jury as the of counsel. await action which affixes Maroney, person label ex the United States rel. Budd “defendant” (3 1968), citing only suspect 398 F.2d who hitherto Cir. Com was police investigative Myers, process; rel. monwealth ex Parker v. once (1964). attaches, right 200 A.2d label the absolute Pa. counsel also attaches in situation Similarly, judicial proceed prejudice may where ac result to the ings designed to cause a or And cused. of counsel attaches proceed der” to issue not a critical precisely at this time rea for same ing. “bring-up or The issuance of the following it sons ren attaches formal judicial for in der” Dickerson not a grand jury. dition of an indictment guilt quiry into vel non of de States, supra; Massiah v. United United fendant; pro an administrative Jersey, States ex rel. O’Connor v. New authorizing cedure the transfer (3 1969). 405 F.2d county prison po from the headquarters lice to make him The relates available root thus during questioning. being questioned prelimi- for Prior to his Furthermore, category. such con this period,” what was “critical holding Up- in White “period.” of the struction generating source thoroughly hangs ques- with retroac consistent determination this right-to- tivity in retroactivity con- which was afforded is the tion Gideon Wain as counsel cases such trolling in this case. issue wright while Hamilton v. indicated, we heretofore As we have being of retro- consonant with denial request routine do not believe activity Wade in decision as bring-up the subse- order and for the Massiah, also which are bot Gilbert and signing order quent an of such Amendment. tomed on the Sixth generated period.” judge the “critical group former of cases involves signifi- Instead, our view adversary proceed at formal the action case was cant event ings “adjudication” made where hearing. preliminary in the earlier taken legal must conclu assistance be Accordingly, that after we believe integ sively presumed very infect stood rity proceedings. McConnell See legal did the defend- same shoes as Rhay, L. exactly rea- same Massiah ant group, Ed.2d The latter while sons, and, therefore, doctrine of it is the ob not be concerned that convictions con- must and not White which Massiah through extra-judicial methods tained is cru- This dictinction trol case. recogniz constitutionally infirm, deemed above, because, full ret- cial noted counsel at certain es that the absence of roactivity Arsenault afforded police proceedings does not foreclose holding Massiah has been denied effectively ultimate defendant from Al- of this court rel. setting ly attacking, supra. lison Newv. counsel, evidence the assistance Massiah and Allison the both of fundamental due obtained violation interrogated indict- fendant was after process. Thus, can still Having ment without counsel. denied coercive, lineups as attacked as Allison, relied retroactive relief to who suggestive. unduly authority Massiah, it on the would be in dif- What has the courts assisted incongruous relief to Dicker- to afford ferentiating groups of has two cases interrogation at an son whose occurred succinctly judgment, a calculated and, conceivably, earlier more formal Jersey, expressed su- in v. New Johnson stage proceedings. Surely Alli- in the pra: a with concerned “We are thus stage son’s at occurred a question probabilities and must take equally as critical as Dickerson’s. factors, account, among the ex- other Assuming and the this Circuit safeguards are avail- tent which other applica- others which have confronted the integrity protect of the able to correctly in tion of Massiah have acted truth-determining process trial.” at denying retroactivity, United States Indeed, at U.S. at (2 Fay, ex rel. Romano v. 360 F.2d 389 concerning although Johnson, di- itself 1966); Lyles Beto, Cir. 363 F.2d rectly retroactivity of Escobedo (5 1966); ex rel. United States denying and Miranda the extension and Long Cir., (7 Pate, 418 F.2d 1028 doctrines, presented nonetheless 1969), appears Nov. the conclusion complex relevant identical in factual inescapable White, insofar as portrayed here: detail the one retroactivity concerned, issue of is must facts, is, petitioner police Johnson be confined to its the rec- took The ognition right Newark, custody for- into at 29, 1958, January judicial proceedings p.m. for mal at at 5 defendant, Cassidy. inaction, may He taken as action or same crime rights. headquarters lose substantial Police interro- and was to detective gations readily evening cannot be included po- booked. Later magistrate conclusion, brought him lice we reiterate that we hearing. Gideon, White, The preliminary do not Hamil- a brief consider stating sepa- ton, tran- what Wade or Massiah record is unclear as as distinguishable law, and spired and after rate rules of there. Both before court, ques- separate appearance in he was rather as enunciations principle: At 2 a.m. Amend- routine manner. the same the Sixth tioned right only police auto ment to counsel. where drove Johnson homicide, Camden, prospective application prin- scene of the of this During concerned, ciple auto the au- miles from Newark. we hold that again interrogated thority about ride he was all of these decisions Upon arrival inter- the crime. Camden establishes the to counsel at a.m., rogation following judicial proceedings him 4:30 took about charged directly headquarters formally at which an detective accused is brought chief detec- him before the criminal violation. tive, officers, three other retroactivity Where the ** * po- stenographer. The court concerned, however, compelled we interrogated him 6:20 then until lice (1) conclude that White and Hamilton a.m., period one- of about one and applied cannot be to factual situations During

half the course of hours. presented different from those in those questioning, he made full confession cases, they i.e. must be confined to those felony murder. to the crime of rights may situations where substantial be lost Id. at defendant’s action or inaction judicial (2) proceedings, at formal Against background the factual the decision and rationale of this court ret- case has denied landmark applied in Allison must be to the case at Miranda, roactivity to Escobedo and bar. say Supreme cannot interroga- Although oblivious to the fact Dickerson’s following place place stage” took tion took aat “critical hearing. proceedings, denial of in Johnson The relief as did the defendant’s easily rejec- > logic Massiah, can a silent be construed as sound precedent compel applicability reject tion the rule us to Dicker- Maryland solely son’s cases to counsel claim presented appeal. retroactivity one basis of considerations. Moreover, justifica- abundant opinion of The written retroactivity tion for the denial of prior de Court’s recent practice holding such cases. cision Coleman v. 399 U.S. interrogations post-preliminary undoubtedly without counsel has (June, 1970). Members of the court wide-spread many practice in states. join majority opinion who do fact, the order” here involved compels consider that Coleman differ printed form, was standard ent result here. was so much a that matter of routine Accordingly, judgment the of the dis- part the orders of were made trict court bewill reversed. court’s record. To void authority made under of White HASTIE, Judge, dissenting. Chief would create of a hurricane habeas cor- pus applications already on overbur- ongoing process incorporat- In the of judiciary, dened both and federal. state ing into the Fourteenth Amendment Irrespective philosophical of the differ- particular provisions of the Bill of might distinguish ence which be Rights used as the of the assistance decisions, the various final this factor guarantee counsel and the freedom of weighty deny alone reason to retroac- self-incrimination, from techni- tivity. gloss cal definitive that attends each of narrowly, or, compre- danger more ed to convict them, that there damaging independent of admissions were ob- reach role hensive accused, pro- from the less than in criminal tained Clause the Due Process eases, process.3 due To some- in some matter And cedure be obscured. differently, proper performance one, among what obscuration that them judicial analysis judicial un- function the Due under can result requires duly protection afforded to Process “an exer- Clause often restricts judgment cise of course persons Fourteenth whole accused proceedings in order to ascertain Amendment. they of de- whether offend those canons reading, in historic face and On its ** cency express and fairness which of the Four- Process Clause the Due * * justice notions of Ma- [our] requires Amendment teenth York, 1945, linski v. through procedure which a state obtains 416-417, 781, 789, 89 L.Ed. 1029 essentially fair. be a conviction of crime (Frankfurter, J., concurring). long Supreme Court incorporation announced particularly, majority opin- More compul- prohibition of Fifth Amendment convincingly if, ion demonstrates sory and the Sixth self-incrimination any since of the time the 1964 decision guarantee the assistance Amendment Supreme Court Massiah v. United requirements specific of counsel as States, process,1 used due coercive methods police interrogation L.Ed.2d obtaining prej- a confession had absence counsel elicited an in- provide an accus- failure udicial criminating statement from a assistance ed with position, in Dickerson’s the use of that Supreme recognized were preclud- statement as evidence would be important that should as circumstances ed violative the Sixth Amendment. determining wheth- be considered In the view of the Court the denial of challenged led procedure that had er any assistance counsel at critical un- conviction was so to a criminal stage proceeding of a criminal was so not be it could fair indecent grossly jus- it unfair the accused that concept squared constitutional prohibition. tified constitutional approach process of law.2 This of due Only operation the technical of a understanding Due Process to and nonretroactivity concept prevents not attended Clause was applying Massiah rule from here. But retrospective application technicality make the denial cannot holdings particular But decisions. stage at a critical of a crimi- of counsel recognize may properly a court did proceeding, is unconstitutional nal aggregate of unfairness elements to-day, unobjectionable wholly when obtaining of a convic- impropriety in the experienced by tion, deci- Dickerson in 1958. one of which alone no procedure sive, basis that did not make the conclude on that Massiah Rather, judi- jury persuad- procedure condemned unfair. ap- Wainwright, has stated and 372 U.S. 3. The Court v. Gideon 799, repeatedly. g., plied principle 792, E. 335, over- this 9 L.Ed.2d 83 S.Ct. Payne 1958, 560, Brady, 1942, Arkansas, ruling 356 U.S. Betts v. U.S. 975; 1595, 844, 1252, 455, v. Ala- Mal- L.Ed.2d Fikes L.Ed. 62 S.Ct. 1957, 281, loy bama, 191, Hogan, 1964, 77 S.Ct. U.S. U.S. validity way overruling in no Adamson L.Ed.2d 246. impaired by Its California, 1947, the fact that its invocation 67 S. unnecessary many in recent has L.Ed. 1903. been Ct. a cases because has found vio- Court specific provision Carolina, 1949, g., a of the Bill E. lation of v. South Harris Rights. of 93 L.Ed. 69 S.Ct. 1815; Burke, Townsend v. 92 L.Ed. 1690. interrogation by an had been facilitated perception made Mas- unfairness of cial parte “bring-up a order” in which siah. judge temporary a authorized transfer non-retro- It the technical follows that custody pris- from the of of the accused activity rule constitutional permit- police, thus on authorities prevent from rec- us should Massiah interrogation ting place in undisturbed underlying ognizing, consistent po- by chosen and under control decision, justification that that ac- lice. All this occurred while significant unfairness element of he cused was without and after interrogation police of Dickerson aft- in had denied an asked for and had been committed, charged and been er had “my opportunity to communicate with vainly requested the he had and after people lawyer.” or a This element of counsel. assistance togeth- considered, unfairness should be interrogation pursuant The actual to er whatever other circumstances by order” was attended reaching relevant, ultimate objectionable procedures. several Pres- procedure decision the entire whether apparent sure the accused is that statement was led Dickerson’s interrogation record. The continued sufficiently unfair a denial constitute more than five hours. Five hours of already process of due It has law. questioning uncomplicated about cir- pointed approach is been out homicide, particularly cumstances of the firmly jurisprudence rooted already after the accused had made Indeed, has Court. statement, rather full earlier is in itself that, very explicit saying “in significant pressure indication judging prosecutions meet whether state being applied. interrogation process, requirements of due [it] by employ- was conducted five detectives sought proper has to achieve a accommo- ing a “Mutt and Jeff” routine under considering by dation lack defendant’s period antagonistic which a interro- pertinent of counsel one element gation by by one detective was followed termining all from of the circumstances friendly cajoling part of another. whether conviction was attended Pressure also was exerted adminis- fundamental unfairness.” Cicenia tering a “lie-detector test” and then tell- Lagay, 504, 509, ing prisoner, apparently jus- 1297, 1300, 2 L.Ed.2d 1523. tification, procedure estab- lished lying. as a fact that he was reasoning applies sepa- Similar Though accept finding contention, rejected by rate also the ma- occurred, brutality no jority, that Dickerson’s statement was applying more subtle methods of “involuntary” so its use amounted pressure employed by police, compulsory self-incrimination in vio- “willingness” after five hours created lation of the Fifth Amendment. Al- though talk, objectionable. on the entire record were there was themselves enough justify Moreover, the state courts’ find- signed by the “statement” ing subjected that Dickerson was not obviously in his own physical abuse, agree I think we all Rather, something prepared words. this record contains a substantial unre- embodying as the useful showing futted that his substance what had been Per- said. significánt characterized pres- haps, standing alone, these characteris- sure, brutality. Very damaging short of interrogation, tics of from different admissions were obtained physical abuse, were not serious through a five hour improprieties to amount a denial accused after process. they due But of- serious charged which he had been with homi- significant improprieties formally cide ficial and and ele- prison committed to to grand jury await Moreover, wrong procedure action. ments that the total adjectives unques- incriminating both state- produced the that tionably only applicable. Not was ment. bring-up parte, issued ex (cid:127) order but significant five Finally, that the it is also condemned state statute. is uninterrupted hour February Act of 2 Sm. [The pris- place than the in a other Dickerson on, 275, 12, 12 P.S. 1887]. L. § § police and under selected language Finletter, ringing possible an control, was made their highlighted heartily concur, I signed a “bring-up parte order” ex judge practice. inherent in this the evils police. a request As of the at the Brines, 50 C.C. Commonwealth v. See Dicker- result (1920): R. Dist. prison, duly to had committed son been any I T not see that have safely pending kept further do there to be order, my power, by charge against to take If mere him. action against relatives, from the defendant his will or counsel friends thereafter prison, county him, they to which he has talk to would desig- wished to had lawfully to committed await required at been do so have been to trial, any purpose subject other connect- place prison to for and nated except the trial. may prison ed with his case rules whatever regulating to practices visitation and prisoners. ‘By the terms the commit- that to believe I am unable ment, county remain in the he is to granted any defense court would have charge prison mur- to answer the parte “bring-up counsel order” der, any not to answer the call of permit to interview his client other, every person, official privately for the bet- in counsel’s office may speak him or who meet wish preparation Yet, for a state ter trial. presence If to him. his elsewhere judge authorized the to remove de- needed to lawful answer prison place Dickerson from under compelled be mand which there, free exclusive control liberty, may at be if answer any possible interruption or of ence, interrogate interfer- by proper writ habeas secured hours. him several corpus. procedure court-sanctioned served This forgotten ‘It seems be purpose no other than facilitate convict, an accused is pressure application accused necessity strong only com- it is might necessary to induce him be pels It is trial. his detention before police de- make such a statement as per- liberty of his a restraint strengthen against him. sired the case It cer- son which is unavoidable. tainly aggravated should be ease When this before the Su- was any unnecessary in- the infliction preme Pennsylvania Court of on Dicker- dignity. appeal from a denial of ha- son’s state accused, unconvicted, corpus, ‘An beas that court affirmed the opinion. not to bundled about nial Commonwealth v. county Dickerson, 1968, at beck call 428 Pa. 237 A.2d every However, prosecutor policeman or who Mr. filed Justice Roberts ” dissenting opinion to see him.’ Pa. he dis- wish significance 567-568, A.2d at 231. cussed nature part quote his order”. I questionable interro- the entire wholly persuasive opinion to me possible by gation made unwarrant- was questioned procedure un- judge. part of a ed action on fair: impropriety yet distinct This is another conduct, “Although ap- official in the whole course of Dickerson’s direct product peal was a state- the end of which this Court insisted against ‘nothing ment that used sinister or secretive’ about bring-up procedure, I his trial. believe officer, My judicial bring-up conclusion from all of this is that order totality interrogation that led the of the circumstances the crucial could second incriminating particu- not the have occurred head statement — order, larly, parte bring-up quarters. bring-up proceeding ex the the The during undisputed pressure gave opportunity indicia of the the interrogation length re- and the denial the Dickerson at throughout quested stage assistance of counsel counsel was therefore critical procedure much all too proceeding the Commonwealth’s —discloses potentially prejudicial against Dickerson, unfair offi- the defendant’s process rights cial conduct regarding stage appro to consist due may such Therefore, of law. priately I would affirm the Maryland, traced White judgment granting corpus. habeas 10 L.Ed.2d (1963), Aren retroactive. is Massachusetts, sault v. 89 S. ADAMS, FREEDMAN Circuit (1968). Ct. deci The Judges, join in this dissent. sions in Massiah and in Allison did not ADAMS, by judi Judge, dissenting. volve Circuit authorized proceedings, cial and do not therefore Although I am in with Chief accord provide applicable governing rule opinion Hastie’s and concur with case here. his that under the “total- conclusion ity White, In circumstances” Dickerson said process required that prelimi denied counsel was the due of law contem- at a nary hearing plated by Amendment, because the the Fourteenth at guilty, pleaded I the defendant al separate am constrained to file this though so, opinion point required not to do was a crit out if even stage prosecution. ical approach the criminal majority adopted— is Accord, approach Commonwealth Firm respects ex rel. which is certain Myers, stone v. grant 431 Pa. 246 A. a mechanical one —the of the writ 2d corpus of habeas should nonetheless be affirmed. impact rulings To avoid the majority concludes, The inter- and Hamilton v. 368 U. rogation following bring-up order S. 7 L.Ed.2d 114 stage was the critical (1961), majority at which the position takes attached, pro- cases “confined to those ceeding rights when the situations where substantial bring-up order was issued was not a be lost defendant’s action or inaction stage require pres- critical judicial so as to proceedings.” at formal But majority ence of pro- counsel. The interpretation then narrow rewards ceeds decide that parte, Dickerson’s confes- penaliz- the state if it acts ex sion, although obtained without es the state if it a formal hear- conducts presence counsel, ing be- present. admissible which the defendant cause this Court majority has quite ruled that Mas- The probably would con- States, siah v. United present if cede that Dickerson were bring-up proceeding, L.Ed.2d he which the crucial Since, took been entitled to counsel. how- place indictment, ever, after bring-up signed is not retroactive. order was parte, right. ex rel. Allison afforded that (3d 1969). 418 F.2d 332 addition, majority fails to rec- majority’s ignores ognize The ju- conclusion element decisive of a fact proceeding of Dickerson dicial which makes it “criti- pursuant stage” conducted consequential cal is the effect of proceeding. sanction bring-up proceeding the defendant. signing Were majority’s appears conclusion to be also

473 Supreme re must be Court’s ordered. case remand inconsistent with determine, ed to the state court to in Coleman v. decision cent instance, 1999, question L.Ed.2d 1, 26 first of harmless 90 S.Ct. 399 U.S. 3 squarely holds that (1970) error.2 387 right at to counsel1 has defendant It is clear on the record here that hearing hear preliminary because prejudiced Dickerson was lack of stage pro ing is a critical bring-up proceeding. at counsel As ceeding. proceeding, a result a statement recog- Supreme Court In Coleman undoubtedly was obtained which preju- may be defendant nized that a damaging against most evidence him.3 judi- pretrial lack of counsel at diced attorney bring- An for Dickerson although defendant proceedings cial up proceeding objected anything pro- say at such or do does not police custody transfer of Dickerson to ceeding subsequently used as for continuous with- against As Jus- him at trial. evidence out counsel. Dickerson’s second out, pointed the role of tice Brennan statement was the “fruit” of his lack of protect defendant counsel representation proceed- bring-up at the prosecu- “against improper erroneous ing, and therefore inadmissible. Cf. may be able to affect tion”. Counsel Louisiana, 30, Vale v. 399 U.S. 90 S.Ct. proceeding for the defendant’s benefit 1969, (1970). 26 L.Ed.2d 409 pro- it a course which or turn toward I rights. would affirm the District Court’s tects the defendant’s grant corpus writ habeas so did Dickerson not have counsel at his that Dickerson be afforded a new bring-up or at trial Supreme for the reasons proceeding. enunciated Chief Coleman said unless absence of Court Hastie as well as those set forth is harmless error a new trial opinion. in this Although an amicus brief in Dick- filed probation imposition ocation of of de urged adopt posi- erson this Court sentencing) ferred jor retroactive. The ma tion taken denying retroactivity decisions involve Coleman, majority does not refer to stages to counsel critical out the contention set forth in the amicus g., side the E. courtroom. Johnson v. Indeed, brief. it mentions the Coleman 719, 1772, 86 S.Ct. 384 U.S. only briefly. decision (1966), denying 16 retroac L.Ed.2d 882 tivity Arizona, to Miranda v. 384 U.S. Although retroactivity 436, Coleman 1602, 86 16 L.Ed.2d 694 S.Ct. yet decided, appear has not it would (1966) ; Denno, 293, Stovall v. 388 U.S. to be retroactive since it is akin to the 1967, L.Ed.2d 1199 87 S.Ct. 18 guaranteeing decisions retroactivity defendant denying v. to United States ju to counsel at 1926, various in-court Wade, 218, 18 L. 388 U.S. S.Ct. 87 proceedings prose dicial in a criminal (1967) v. Califor and Gilbert Ed.2d 1149 nia, cution which 1951, have been 263, held retroac 18 L. 388 U.S. Massachusetts, tive. Arsenault v. hold reliance Because Ed.2d 1178 ing Maryland retroactive; dissenting Maryland in this on White v. Doughty Maxwell, 202, pass necessary opinion 376 U.S. 84 S. is not (1964), holding Ct. 11 retroactivity. L.Ed.2d 650 Wainwright, Gideon v. (1963) (right S.Ct. given L.Ed.2d 799 at the Dickerson 3. The statement crimes) counsel at trial for serious retro hit second —that ; Crouse, jack active guard’s Smith v. guard, U.S. black took the (1964) day S.Ct. hold $1.25 next sold only —was ing Douglas California, supported Dicker- statement “felony degree (1963) (right L.Ed.2d for first son’s conviction interroga- appeal) retroactive; During to counsel on Mc the earlier murder.” Rhay, Connell v. involvement denied tion (1968), holding Mempa always guard L.Ed.2d 2 contended Rhay, present killed 19 L. when Broaddus he was not (right (1967) guard. Ed.2d 336 to counsel at rev

Case Details

Case Name: United States of America Ex Rel. Murray Dickerson v. Alfred T. Rundle, Superintendent, State Correctional Institution,philadelphia, Pennsylvania

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 21, 1970

Citation: 430 F.2d 462

Docket Number: 17629

Court Abbreviation: 3rd Cir.