United States of America Ex Rel. Edwin Gockley v. David N. Myers, Superintendent, State Correctional Institution, Graterford, Pennsylvania

Joques Matter of in “The banc decision Egan”, controlling on F.2d by appellant raised issue the identical District decision

Walsh. The mat- and the reversed Court therefore Evidentiary for an

ter remanded will be Hearing decision with the in accordance Joques Matter in “The Court

Egan.” rel. America ex

UNITED STATES Appellant, GOCKLEY, Edwin MYERS, Superintendent,

David State N. Institution, Graterford, Correctional Pennsylvania.

No. 19209. Appeals, States Third Circuit.

Argued March 1971. Sept.

Decided Denied Jan.

Certiorari

See 92 S.Ct. 738. Judge, Adams, filed dissent- Circuit

ing opinion. THE COURT OF

OPINION Judge. HASTIE, Circuit Gockley, prisoner, state Appellant twenty year of im- serving term a ten to murder prisonment after conviction degree Smith. of Clement the second by the Su- affirmed The conviction Pennsylvania. Common- preme Gockley, 411 Pa. wealth A.2d 693. for court petition the district In alleged Gockley has unconstitutionally ob- his conviction was involuntary through anof the use tained un- he was extracted while confession hearing a full der arrest.1 After questioned that the district court held voluntarily while made confession was arrest. lawful the accused was under Accordingly, petition denied. ap- E.D.Pa.1970, F.Supp. This peal followed. first the circumstances consider We as established Properly concerned about

record. March, disappearance Mabel Reading resident, po- Klein, a local sought intermittently several for lice her months to discover whereabouts. hearing Gockley August, had been po- working premises, seen Klein Captain questioned him Feltman lice missing explained He about woman. gone Georgia, that she she had attorney power him left with repairs on and a contract to make some property, telephoned and that she her periodically. him Feltman asked Gock- ley bring inspection the con- for Block, Wolf, Fiebach, Robert H. attorney. power tract and the Felt- Pa., Solis-Cohen, Philadelphia, Schorr & again Sep- questioned man appellant. again tember and asked to the docu- see Saylor, Sp. Arthur Dist. Ed. Asst. during requested ments mentioned and Atty., Schaeffer, Saylor, Edelman, Read- the earlier Feltman and interview. Gock- inger Reading, Poore, appellee. Pa., & ley again, apparently by chance, in met HASTIE, Judge,* Before Chief mentioned October Clement Judges. GIBBONS, person likely ADAMS Circuit Smith as a to have informa- * Judge argument; petitioner’s Chief time of be- merits contentions. Judge 398; came Senior Circuit before de- F.2d 411 F.2d history litiga cision. 216. The involved opinion. tion is set out in our 1969 appeals 1. Two earlier to this court reaching case were decided inquiry, Upon L.Ed.2d 1503 Mabel Klein.

tion about also had it did held warrant invalid discovered Smith that, appear upon the the affidavit or other- disappeared and learned magistrate purportedly supplied an authorization wise basis of signed Smith, particular personal effects which he facts from Gockley. reasonably Octo- an inde- On could reached been surrendered police pendent prob- asked to that there was once more conclusion ber attorney Gockley repair power and the able cause to had see the believe forged agree question. accom- On this occasion checks We contract. panied Gockley present compels he that the record the con- to his home where produced docu- clusion two that the arrest was in- surrendered warrant signa- Whiteley Warden, ments, bearing purported valid. decided both Cf. 29, 1971, March ture of On November 91 S.Ct. Mable Klein. Captain 28 L.Ed.2d Feltman sent documents Investigation in the Federal Bureau of Washington 17, Reading police cap- On November analysis. writing for hand police tain and a state officer took Gock- Expert indicated that examination ley custody into under the arrest signatures genuine probably were not However, warrant. held, the district court and in re- December the documents were urged by appellee, as that the turned to Feltman. legal arrest was because the had enough incriminating information to meantime, on November probable justifying constitute an days had two after the documents arrest without warrant. Washington, been sent to a Policewoman Wanger magistrate appeared before Since was arrested on a and executed and submitted her affidavit charge forging specified check, our as follows: inquiry must be whether the had information which would “warrant a on received “That information ofman reasonable caution in the belief” investigation, affiant, upon ver- forged he document, Car ily believes to be true that ED- one States, 1925, roll v. United fraudulently did WIN GOCKLEY W. 69 L.Ed. 543. It sign,

make, alter, publish a utter and enough that the information at hand certain cheek in the sum of $200.00 sufficed suspicion. to arouse Henry v. 8, 1960, payable cash, dated March States, City on drawn Bank and Trust 4 L.Ed.2d 134. Company Reading, Pennsylvania, sign and did the name of MABEL L. Certainly Gockley’s statements check, prejudice KLEIN said disappearance about the Smith and of said MABEL L. KLEIN and with Klein, coupled subsequent Miss inability intent to defraud the said MABEL L. any to find con contrary an KLEIN Act Assem- concerning firmation of his assertions bly provided.” in such case made and whereabouts, suspicious their cir Upon affidavit, mag- the basis of this delay pro cumstances. ducing too was So Gockley’s istrate issued a warrant for ar- “power Miss Klein’s of attor alleged forgery. rest Subsequently, ney.” nothing Yet to show that magistrate no testified that he signatures on the documents ulti given recollection whether he was mately produced and surrendered or on other information than out in that set charge upon the check which the the affidavit. The state no has offered forgery was based obvious for proof anything more was told to the geries. Indeed, police, the action of the magistrate. some two weeks after sur rendered the document and two court, citing appropriately The district they sought days before a warrant for Giordenello v. United “ * * * Wong sending power prohibits at- arrest, Sun report introduction in a state criminal trial of torney to the FBI genuine that at a confession that is the result of an indicates not it seemed violating arrest, police were arrest the Fourth Amend- the time of ment, just Gockley’s Mapp prohibits conduct as the re- suspicious merely through authenticity ception object of an obtained doubtful about to con- unconstitutional more search. Where Without the documents. problems suspicions think become less proper we different is the firm those clear causal relation un- between the be characterized the arrest must probable having constitutional act and the ‘fruit.’ made without violating police, by When the a search cause. Amendment, the Fourth contra- seize conclude We band or overhear a conversation dis- through his detention November 17 closing goods, the location of stolen during day 19, November connection between the unconstitution- incriminating con- statement made an booty al intrusion and the offered at cerning disappearance Smith’s trial is so automatic and inevitable evidence introduced thereafter was readily the latter seen as the charge against subsequent of him on a ‘fruit’ of act. unconstitutional illegal. murdering Smith, were object But improperly when the seized brings question This us person alleged is a and the ‘fruit’ is a illegal arrest whether the relation of by him, statement intervenes prisoner’s statement and detention to the speak. individual’s own decision to In subsequent use such as to make the Wong problems itself Sun the causal of that statement as evidence temporal Toy’s at the extremes. law, process of re him a denial of due statement, required which the Court gardless circum of other coercive along to be excluded with the narcotics stances. led, directly to which it came after 643, Ohio, 1961, Mapp In U.S. 367 ‘[s]ix seven officers had broken 655, 1081 81 6 L.Ed.2d S.Ct. Toy’s door and followed on heels that “cdl Court announced into the bedroom where his wife and by seiz evidence searches and obtained sleeping’ child were had been ‘[h]e is, ures violation of the Constitution immediately almost handcuffed and ar- authority, that same inadmissible 486, rested.’ 371 U.S. at 83 S.Ct. (italics years added) a state court.” Two By contrast, Wong 416. Sun’s state- later, Wong Sun ment, properly held to have been ad- 1963, 407, 371 9 L.Ed. U.S. S.Ct. despite arrest, mitted admissibility unlawful 2d made the challenged suspects of made after he statements of aft ‘had been released on illegal ques er their turn recognizance arrest on the own after a lawful tion whether “been statements arraignment, and had returned volun- illegality by exploitation come at of tarily days several later to make sufficiently or instead distin means * * statement *.’ 371 U.S. guishable purged primary of 83 S.Ct. at 419.” F.2d at 834- taint.” S.Ct. Judge, Judge, Friendly, now Chief con- illuminating recent Also is the more curring Beto, in Collins v. 5th Cir. Mississippi, 1969, case of Davis v. Wong pointed 348 F.2d has out that 721, 89 Sun involved statements of accused two question where due persons and that de- the rationale of the finger- process required the exclusion cision is illuminated the Court’s in- booking prisoner prints obtained validation of the statement of one but excluding illegal not of the other: an after arrest. analogized (a) proximity il- an initial evidence, the Court saying: legal Sun, procurement Wong custodial act rule

affirmed the confession; adopt conclu agree “We (b) the intervention of other cir- Appeals the Court sion of illegal subsequent ar- cumstances to an Bynum Circuit of Columbia District provide unre- rest which a cause so U.S.App.D.C. States, 104 v. United illegality lated to that initial (1958) : F.2d reasonably acquired evidence distin- fingerprints ‘True, can be directly derived be said to have been from, given dur- guished from statements thereby by, il- tainted They dis- ing also can detention. legal arrest.” 348 F.2d at 29. tinguished taken from articles on November The arrest similari- possession. Both prisoner’s qua causa sine than a was much more type of of each and differences ties dur- 19 statement non his November are others from the to and resulting The record detention. the de- have all three apparent. But very compels conclusion being characteristic common cisive charge for- purpose on a evidentiary something value which gery and maintain such was to obtain caused public authorities per- facilitate him as would control over yield dur- person to them arrested ing interrogation about sistent and effective one such If detention. disappearance Miss the Smith pro- illegal product detention is of arrest This deliberate misuse Klein. scribed, by all should the same token is underscored the fact ” 724, 89 proscribed,’ U.S. at be arraignment granted aor never an was at 1396. charge. hearing forgery At bail on the hearing the in district on this the court Judge Friendly pointed True, out as petition corpus, Captain for habeas Felt- analysis, quoted direct the his above man, Reading police the officer had who and an an arrest causal relation between charge Gockley case, been in of the was article the incidental seizure of an why Gockley taken before asked was not possession person arrested, or be- of the magistrate. replied did He that he fingerprinting arrest and the tween an know, they ques- except not tioning booking required in the of all arrested Moreover, him. much of the persons, oth- On the clear direct. questioning was addressed to the obtain- arrest er hand the relation between an disappear- of information the about given during conse- and a statement the Klein, ance rather of Smith Miss may quent attenuated. detention be more charge forgery upon than the he which opinion Davis that all are But the shows prosecuted. never was long alike, to so as be treated at least Captain fairly state- said Feltman’s several can While obtained length “product” ments the record to of the ar- as “fruit” interrogation periods are to some rest. conflicting, fairly they extent read show recognized court the causal This has police interrogation prisoner that is relevant a statement issue where during evening several hours of No- during illegal police is obtained detention 17, shortly He vember after his arrest. following illegal an arrest. In Common- again questioned during day was Craig Pennsylvania wealth of ex rel. night November 18. And he was Maroney, 348 F.2d we said: questioned p. to from 7:00 or 8:00 m. p. m., depending 11:30 m. or 12:15 a. seem “There are two factors which upon Captain which Feltman’s state- significance major deter- to be of ments of his recollection is accurate. mining relationship il- an between During morning of November legal and, here, arrest the subse- as City prisoner removed from quent confession: amplifi- purports It to be evidence. Barracks Police lockup to State Hall he said admittedly and correction what city, facili- cation outside had remained Interrogation contin- November questioning. tate intervening during by custody period. p. m. until 2:00 a. m. from 11:00 ued subjected further inter- incorporated He information time rogation. coun- not had access to bearing He had that date statement Indeed, interrogation sel. he had not communicated During the been obtained. anyone police. but the with discus- was some of November testimony Gockley’s counsel. sion of True, on the Novem basis told requested he counsel is had been ber statement warrant until not have counsel he could charging him murder and sued against him. case sufficient had a detention thereafter be viewed recollection Captain stated Feltman’s charge. grounded upon that But because say at no time I “I didn’t was: never to communicate with was free get judges I to him—who am see the friends the second or counsel and made get lawyer?” judges him a see the amplification statement as an first, transcripts of the trial invalidating theOn first taint hearings, the con- we find statement infected second as well. that, knowing inescapable illegal clusion Both were fruits of the Novem prosecute evidence to had insufficient purpose ber detention for the of inter Gockley, detained rogation. arrested and questioning purpose him him for the dissenting correctly opinion greater length interruption, at poses questions critical in this case: effectively frequently than and more and, while he was could been done so, po whether his statements building large, ease and thus a criminal illegal ar lice were the “fruits” of such And this intended result him. signifi rest. The record shows without The “fruit” was achieved. police testimony cant conflict in facts the to harvest did har- intended and they police known to the when arrested illegal vest from the arrest and detention Gockley charge forgery. on a What very statement that is now chal- was the judg divides the court is a difference in lenged. “directly That statement was ment whether those facts sufficed to from, thereby and derived * * * tainted reasonably create in mind of a cau the illegal [Gockley’s] arrest” and anything suspicion tious man than more detention. See ex rel. Commonwealth forged signature on Craig Maroney, supra, 348 F.2d at question.2 Similarly, the check in the circumstances, In these no there is relation of arrest and detention to inquire prisoner to need whether the was prisoner’s depend admissions not does merely forced to talk or to so induced do upon any dispute hap as to in what fact beyond without coercion persistent in that inherent pened. signifi differ We interrogation during illegal essentially cance we attach to undis police detention. de- If are to be puted facts. using illegal terred from arrest de- and obtaining tention as a means of self-in- find the relation criminating statements, evidence thus illegal and effect between and detention obtained must be excluded. the detainee’s statement to be and direct unmistakable, particularly second A statement made since it is on December was also clear that introduced detention fa- was intended to dissenting torney. opinion think the We is And mis- even such a concession thought petitioner’s made, taken in its had been not have re- argument responsibility counsel conceded lieved at the court of its of de- police probable point. cause to arrest Gock- cision on produced ley power before he of at- argument ing than interrogation to no more to amounts needed further

cilitate saying Gockley’s personality prompt defect case, than the rather build pro- al- made suspect have unconstitutional on evidence charging of the might have than it pointed out in better cedure work ready hand. have We suspect. given by worked some other the excuse this connection taking Gockley before police for dissenting opinion ad- Part III of they magistrate still question whether itself dresses opinion dissenting questioning him. The so coerced statements were argument the fact counters with Fifth procurement their violated his (of which 12 or 15 hours that 44 compul- against privilege Amendment interrogation) elapsed be- devoted self-incrimination, despite sory fact pris- completion of the arrest tween necessary not found it court has ample “provided oner’s first statement question to decide even discuss that dissipation of taint obtain- time for Rather, opinion. under- in this we have wrong the arrest.” from But taken to demonstrate merely “taint,” case, this is illegal product question ar- illegality initial also of the arrest but detention, rest and and thus was ob- continuing illegality detention tained in Amend- violation of Fourth purpose pursuant for the guarantee ment unreasonable controlled, persistent repeated search and seizure. We now observe questioning could merely that the Fifth Amendment issue accomplished deten- without arrest and free dealt with the dissent is not tion. “It function doubt, required since it between large arrest, were, as it to use interrogation during 15 hours interrogating process head- period 44-hour detention obtain quarters whom order determine challenged throughout statement; committing they charge should before a period prisoner this coun- denied ” magistrate ‘probable Frank- cause.’ sel, him would not take furter, J., Mallory v. United magistrate to a until had obtained they sought. the admissions In cases of 1360, 1 L.Ed.2d 1479. This as true sort, way locating no sure of state officers as of the offi- federal boundary persuasion between co- cers Frank- whose conduct Mr. Justice ercion. And there is no need to make furter condemned. attempt here. The dissent also reasons that tes dissenting opin Part IV of the timony questions that to effect suf ion “federal habeas vira,” “paranoia fered appropriate is a condition vehicle for compulsive that made him a with talker vindication the fourth amendment rights” grandeur,” “delusions in somehow that have been violated in the illegal procuring sulated the detention manner compe otherwise prisoner’s short, from the But tent statements. evidence. The but in a lower illegal conclusive, when the to court detention intended is affirmative answer police question question given and does enable the this has been the Su suspect effectively preme persistently more already quoted in the dis- positive possible, language than Mapp Ohio, supra, otherwise would have been the fortuitous that “all circumstances that a trait evidence obtained searches personality may have facilitated the seizures in violation of the Consti enterprise point. is, by tution authority, beside the are that We same inad dealing consequence a with missible in a violation state court.” The Court Amendment, consistently ques holding. Fourth has not a adhered to that tion whether dissent confession was coerced finds in comfort the fact dissenting meaning that within occasionally of the Fifth Amend Justices Indeed, point ment. expressed Mapp in this the dissent- dissatisfaction with the duly less mindful of the reli- are it “We not make does that But rule. place society for must Indeed, that Justice ance binding Chief upon us. achieving upon the en- and order elaborate law Burger, recent his most forcing agencies the criminal law. Mapp has been rule criticism by law “aban- But insistence on observance that he would pains add procedural fair some officers of traditional until Suppression Doctrine don long is, point requirements [statutory rem- from the meaningful alternative view, contribute best calculated to governments vio- edy against par- rights] in a to that end. However much Amendment Fourth lations of upon rules ticular case insistence v. Six developed.” Bivens See be can may technicality appear Agents, that decided as Narcotics Fed. Unknown guilty person, ures to the benefit of a June history proves of criminal law Other- L.Ed.2d 619. might tolerance methods in law of shortcut wise, he feared impairs enduring ef- open enforcement its season gain impression “an ” * * * Id. fectiveness. declared.” on had been ‘criminals’ Mapp itself, case Justice Mr. not mean This does why, Clark in the stated some detail dissenting view to the subscribe view, Court’s the Fourth Amendment re- More free to do so. court were this quires “that no man is to be convicted years ago, of this the writer than ten or state federal on uncon- [in court] opinion attempted rationale to state the stitutional evidence.” Bynum v. United like this of decisions 81 S.Ct. at 1692. He considered and States, 1958, U.S.App.D.C. rejected repeated complaint the often 465, 468-469, language there F.2d go the “criminal is to free because approval as quoted used has been the constable has blundered.” Ordinar- recently Mississippi, Davis ily, “blundering” it is not the constable n. deliberately but the official uses who 1397, 22 676: constitutionally prohibited means of ob- * “* * primary matter of [T]he taining evidence, as was done Gock- judicial in all cases concern ley’s case, product whose cannot work imposition type effective constitutionally be evidence. used as implementing Fourth sanctions Moreover, it is not ordered these situ- against guarantee Amendment go free,” ations that the “criminal the fact arrest and detention. Neither rather accused be retried through the evidence obtained constitutionally acceptable It evidence. trustworthy is itself such detention requirement that, is this in Mr. Justice equivalent can the fact words, Clark’s “founded on reason and wholly conveniently obtained truth, gives to the individual more no way proper militates this over- guaran- than that which the Constitution riding entirely ir- consideration. It is him, tees officer no less relatively easy relevant than that to which honest law enforce- government guilt prove and, entitled, courts, ment using product the judicial integrity necessary so in the true thing important is detention. The justice.” administration administering those the criminal 660, 81 S.Ct. at 1694. it law understand that must do proposed One other innovation ” * * * way. by dissenting opinion the for calls com Brennan, argued speaking ment. It is Mr. Justice for the federal habeas 1958, corpus granted pris should not Court Miller v. United be to a 1197, by oner who has 357 U.S. S.Ct. been convicted a state court, allegation expressed central absent an in L.Ed.2d and some concept way: by this dication of ultimate innocence upon provided ha- basis it prisoner. And is concluded jury be- afore- here have found malice corpus denied could be should

beas thought. inno- Gockley his not asserted has guilt sub- is evidence cence and the sum, dissenting opinion ex- In stantial. considerably pref- presses more than a Colorado, for erence the rule of Wolf v. Gockley pleaded not Of course 25, 69 93 L.Ed. arraignment, guilty it so is at his Mapp Ohio, su- rather than gained by requiring clear what would be pra, ad- that overruled It to seems Wolf. again petition for him do in his to so front vocate retreat a rather broad pro corpus. it habeas In event is principles concepts that now innocence, beyond asserting posed that govern upon applications federal action per required to should be prisoners corpus. of state habeas for suade federal court stated, For this the reasons we have guilt. Pre some substantial doubt persuaded court is not retreat such sumably, requirement im if this permitted pro- under the authoritative posed, in would be entitled to both sides Supreme nouncements of the Court. guilt troduce on the issue judgment corpus proceed The innocence in the will be The habeas reversed. ing. quasi- district court will order At the conclusion of this release Gockley unless, trial, peri- within a the federal court would be entitled reasonable deny specified ground order, to od to on the be in that habeas court’s grant prisoner evi the state state record and whatever shall new a new dence had trial. been introduced left the court guilt. petitioner’s

convinced of the In ADAMS, Judge (dissenting). Circuit majority, inquiry view guilty being the accused is role case we are asked set to a. appropriate only for the aside the courts of the conviction aof man who killed accusing friend, secretly state. The federal courts buried in a common grave should inquiry body confine their fair friend’s and that of a procedure ness of the state woman precipitated led whose death homicide, eight conviction. pro Of attempt- course unfair and for months clearly prejudice cedure did ed to conceal the the ac deaths and delude cused, leading properly disregarded. by triple upon could based life Chapman California, forged lies and The documents. facts extensively L.Ed.2d this case 705. But here have been re- challenged ported before,1 prisoner repeated admissions of the and will not (3 1967). The trial remand, was conducted F.2d 398 the Honor Cir. On Hess, experienced court, Luongo, able Warren J., district state found that judge, jury. deliberately trial before a The counsel direct appeal by-passed judgment procedures, from the state trial and had not Pennsylvania alleged defects, court was affirmed waived constitutional Court. Commonwealth the state courts should decide Gockley, 411 Pa. F.Supp. 192 A.2d issue of voluntariness. (1963). (1967). sought. Coui't, sitting banc, Certiorari This en petitioned then holding affirmed the district court’s issue, States special District Court the waiver Eastern but held that Pennsylvania required District circumstances the volun corpus. petition tariness was denied with issue be determined in the fed hearing Luongo. system. Judge out eral This 411 F.2d 216 Cer Court remanded the ease to the tiorari District denied. 90 S. Judge determine whether Luongo Ct. points, Judge hearing, waived his constitutional then held an additional dissenting ground Kalodner on the ruled the arrest was valid and the object counsel had twice declined to statements not been coerced. 314 F. Supp. (1970). the admission of the 839 statements. Unit Gockley Myers, ed States ex rel. v. 378

241 determine precept, must we except be essen- with this as insofar here his petitioner demonstrated discussion. tial illegal if and detention were arrest against proof principal of element A constituted so whether his statements petitioner statements of two consisted or whether of arrest “fruits” Peti- his arrest.2 him after made statements he demonstrated that his arrest was tioner contends involuntary or coerced. of support affidavit valid because insufficient of the warrant arrest was probable I lacked

and because any arrest, He for the event. cause question con- substantive The first alleges that the two statements also legality petitioner’s of cerns pe- reasons, these contends coerced. For forgery war- That and detention. titioner, obtained subse- the statements is based upon the arrest was rant inadmissible,2a quent to the arrest were beyond patently is cavil. White- invalid a on them vio- and a conviction based is Wyoming ley Peni- of State Warden v. Federal Constitution. lation 1031, 560, tentiary, 401 argu- (1971); question v. at oral There some 28 306 Giordenello party ment as has the burden 357 to which United 78 However, regarding proof (1958). into admission 2 L.Ed.2d 1503 question. the arrest evidence of the statements fact does not vitiate alone arresting petition corpus a is a if in fact had Since for habeas officers felony action, probable it is the burden that a civil clear that believe proof petitioner.3 is In accordance had been committed.4 corpus statement, Gockley Habeas the federal courts is 2. In 1ns first acknowl- remedy grounded statute, edged aon federal he shot Smith twice: once as 1970), (Supp. self-defense, 2254 V for re § 28 U.S.C. a result accident or misery. put lief Constitution once to him In from violations out statement, federal States. Some he second verified that two look law to determine the courts party to state At shots had fired into Smith. carry trial, Gockley must See who burden. shot claimed that one g., Beto, event, 415 F.2d 436 Webb v. been fired. un- e. is cert, (5th denied, 1969), shot Smith Cir. controverted that 511 24 L.Ed.2d and that Smith died as a result. Pennsylvania However, law does even 2a. The statements were admitted aspect of this federal habeas control such objection. However, counsel re- action, Pennsylvania corpus places also quested judge charge the trial proof peti habeas the burden of on the jury on the No issue of voluntariness. ex rel. Harbold tioner. Commonwealth charge objection giv- made Myers, 261 233 A.2d Pa. v. Apparently reason, copy en. (1967) (because Escobedo is retro charge part record alleging active, prisoner coercion must before this Court. confessions were involun demonstrate tary) ; Perini, (6th 3. Allen v. 424 F.2d v. ex rel. Storeh Commonwealth ; accord, Cir., 1970) Maroney, (1964) United States ex 204 A.2d 263 416 Pa. Gallagher F.Supp. Brierley, (petitioner rel. violation of must show consti also, (E.D.Pa.1968). rights). Also, See the burden tutional Bennett, merely proof 423 F.2d Hawkins shift does (8th 1970). petitioner challenging the voluntariness Cir. sustaining That the ad- rel. the burden of ex United States confession. challenged (2d missibility Follette, lies evidence 432 F.2d Sabella primary Russell, 1970) ; the Government once 396 F.2d Jones v. Cir. illegality sup- (6th 1968). at a has been established Cir. pression hearing trial, see, G. Procedure, Wright, has cited to us Federal Practice and Counsel WMteley, supra, (1969), states footnote at 138 § Criminal significant here, affidavit “an otherwise insufficient since the isue testimony con- be rehabilitated cannot cerning case is- not whether possessed af- passes information when muster measured sought evidentiary appropriate warrant fiant when rule. questioned by property. about Here, the two When made was the arrest Gockley intimately attorney, power and contract police most who were officers working matter, stopped Captain Felt- that he claimed involved with Reading her. third not heard he had from Police and Detective man of the meeting Pennsylvania occurred Police. on October State of the Krause police questioning Ethel a bat- while policemen armed with These tery Briggs lengthy during disappear- about Klein’s Mabel cumulated of facts Gockleyappeared ance.6 at the door and investigation. suggested police that check with po- By April, the middle Pursuing lead, the Clement Smith. this dissap- had lice Mabel Klein knew that police also had discovered that Smith peared earlier. approximately a month disappeared March, Gockley pos- in investigating disappearance, her While they key sessed room and had Smith’s Gockley had been discovered attempted possessions to remove his but Captain July, property. seen on her permission by landlady, was denied Feltman, charge detective in landlady that thé then received a note of Gockley investigation, learned was purporting authorization to be from again apartment, and in Klein’s had Mrs. Smith, Gockley and that thereafter Gockley brought City ques- Hall for squared accounts with her and removed Gockley very cooperative tioning. was By mail Smith’s and furniture. this meeting; police he told the time, possession had come into attorney power he had a contract and of cheeks and other documents which authorizing building, him to renovate purported signature to bear Klein’s Mrs. Mrs. Klein married and moved suspected which were to be for- south, every she called him geries.7 Furthermore, Captain Feltman Friday.5 Feltman then asked to see testified both at the trial and the hear- power attorney, contract and and to ing September meeting that after the Gockley again be notified if was con- travelling had been over “all the eastern by meeting tacted Mrs. Klein. The next part Maryland of the State of in this between and the occurred Virginia Washington, case and West September meeting, of 1960. This Philadelphia, many places” other it, prompted like one before was also checking by on Gockley’s presence leads.8 on Mrs. Klein’s argument, 7. dispute At oral issuing magistrate.” there was a to the disclosed the document bore Mabel But Klein’s district court case this did signature Gockley’s attorney-in-fact. contrary result, as F.Supp. reach a see 314 Captain Feltman attempt- on testified cross-exam- and since no one here is hearing ination at 'Whiteley warrant, to validate signatures clearly pur- inapposite point. Also, the documents on this ported basis, Whiteley, by be Mrs. Klein’s. On this the arrest was made judge Ooclcley the district affiant or officers under his immedi- found cashing by checks direction, in Mrs. Klein’s name. ate but rather by finding community areWe bound this unless it is a distant whose knowl- clearly erroneous, nothing edge matter was a bulletin radio warrant, citing the record which so indicates. which later was de- authority invalid, termined to be probably prompted 8. These travels were warrant, the arrest. Without the ar- purportedly letters mailed Mrs. resting police independent had no facts places people Klein those to various upon judgment which to base their Reading. In his first statement Gock- probable just cause. Footnote 8 does not ley (or described how he mailed caused reach the issue whether an arrest mailed) to be letters these order justified by arresting facts known allay suspicion as to the of Mrs. presented issuing officer disappearance. Klein’s Even if Gock- magistrate. ley’s considered, statements were not it is trips purpose of obvious that telephone did not at his leads, phase to cheek out residence. investigation unsuccessful. Apparently Briggs Ethel ex-wife.

243 presentment petition- delay arrest argument, for counsel between oral At granting October, for po- a basis late does constitute that conceded er renders law corpus unless state arrest probable have did lice during period contended, that forgery. how- obtained He confessions Gladden, Delaney 397 voluntary produc- v. Gockley’s inadmissible. ever, cert, denied, 1968), (9th 17, attor- Cir. power of F.2d 20 the contract tion of 660, 1040, 21 L.Ed.2d 89 S.Ct. neces- must ney on October supra, Beto, (1969); see v. police, Webb as reason- 585 sarily have caused Pennsylvania the time men, law at able, their be- n. 4. prudent to reduce Gockley’s “al- majority made it clear suspicions. arrest liefs mere though regrettable to be discour- opinion the action indicates pre- aged, immediate sending of an the absence police in the documents hearing, se, no per liminary constitutes analysis that the indicates FBI petitioner’s constitutional suspicious con- “merely violation of were authenticity rights.” v. rel. Fox ex Commonwealth about the duct and doubtful 308, However, Maroney, Pa. A.2d 810 one 417 207 can- the documents.” (1965) , accord, merely rel. say, law, Commonwealth ex as matter of Maroney, A.2d Pa. 222 423 “doubtful about Wilkes v. because ha- authenticity (1966). to federal 856 To be entitled their documents” relief, destroy petitioner show must production beas sufficient illegal flowing prejudice deten- prudent from the men that the reasonable belief of rel. Smith forgery tion. ex had been committed See Commonwealth crime Rundle, Gockley.8a 88 Therefore, A.2d I v. 423 223 conclude Pa. would (1966) . has failed to meet commit re- Petitioner that the district court did not III, burden. See Section versible error when ruled that ar- infra. petitioner rest was and that valid II proving not met his burden been Even if the arrest of probable no arrest. cause for the illegal Pennsylvania law, fact under alone him to the relief would entitle Petitioner that his continued asserts Craven, hearing he F.2d seeks. v. Streeter detention before (9th 1969); magistrate Lopez v. illegal, and for this Cir. was also Burke, (7th 993-994 Cir. 413 F.2d additional reason his statements should 1969) ; Wainwright, Abraham v. 407 F.2d If had been tried have excluded. (5th 1969). court, Cir. in a federal this claim delay system, merit. the federal be- must show the ex- Petitioner hearing tween arrest and the invali- illegal arrest, istence of an but also during dates confessions obtained as a result of arrest he confessed tervening period delay only into such confession was admitted Court has exercised its su- Wong prejudice. evidence to his See Sun pervisory powers compliance to insure States, v. United Rule Rules Federal However, (1963). 9 L.Ed.2d 441 Procedure, requiring Criminal the ar- Wong Sun, Supreme Court held that resting officers to take the accused to a a confession “attenuated” from an delay. unnecessary commissioner without by intervening circumstances Mallory States, See here admissible. Thus if the statements 1 L.Ed.2d 1479 illegality so attenuated from the (1957); taint, dissipate any, McNabb United 87 L.Ed. 819 would not be entitled to the relief sought.9 However, in a case mere state significant 8a. It It re- should be noted that our Court con- validity cedes that of the arrest so manded this case to the district court “judgment.” matter of “now the voluntari- it could decide Craig amply the record. ex rel. out of Pa. borne In Commonwealth 1965), (3rd Captain did all Maroney, Feltman stated: “He F.2d Cir. talking. significant the many questions.” I have to ask too didn’t two this Court stated 11a determining a con- clear that this whether It is factors in personality superseding elapsed time condition the was are fession is tainted confession, adequately of the arrest the confession between the resulting any it insulated from taint of other circumstances and the existence acquired the from arrest.12 so “that the reasonably directly said to have been There is another factor critical which from, by, thereby tainted derived Gockley’s serves insulate state- illegal that arrest.” F.2d from his Petitioner was ments arrest. significant Thus, time it is that a clear p. at 6:00 November 17th. arrested m. on intervening lapse plus can circumstances day, voluntarily The next he surrendered purge poison from Id., the the fruit. keys the for his residence 30.10 premises. so This could search the lapse The of 44 hours between Gock- by search Judge held consensual was to be ley’s the recordation of the Luongo first decision in this his provided ample first statement time for case, by holding and that affirmed was obtaining any dissipation the of taint Fol- this Court. F.2d at 399-400. from the arrest. In the volun- view of lowing search, Gockley was con- tary statements,11 nature of the ineluctably it fol- containing with fronted a wallet Mrs. dissipation did lows oc- papers Klein’s identification and other during span, cur and the most time questioning documents. The on the 19th significant operative factor con- the November which led to statements Gockley’s per- it tributed to was own in issue was based on dis- information sonality. Bower, neuropsychia- Dr. during inspection covered lawful shortly Gockley trist who examined after Gockley’s residence. And the statement arrest, testified that suf- clearly product 19th was paranoia vira, fered from a condition search, the arrest. Since by which manifested itself delusions search November 18th was not a fruit grandeur, tendency bragging, toward arrest, say it is difficult to compulsive talking, fencing. and verbal finding by The the statement which the search followed district court that willing quite was.13 was talk 11 a. The district ness of the court found dura confessions.” at 219. F.2d question periods interrogation The tion was the statements were Gockley’s verbosity. any a result of inadmissible reason was not raised until close the December suspect 12. The mere fact that a confesses hearing. Nevertheless, agreed judge suffering because was from a mental issue, to hear evidence and decide the if defect will not his if vitiate confession appropriate, in order further avoid exploit knowingly did fragmentation proceedings. defect. United ex rel. Rivers States Sun, Myers, (3rd Wong supra, 1967). proscribed 10. In 384 F.2d Cir. immediately statements were taken fol- 13. Because second statement lowing Toy’s illegal arrest, in his bedroom prompted questioning regard refuge where he taken had with his wife discrepancies first, and it in the pursuing and son from officers. many days later, taken too is days Craig, elapsed five between flowing any taint from the sulated confession, Craig arrest and seen Likewise, trial testi- arrest. alderman in interim and had prior illegality. mony is isolated from rights, warned of his and he had been counsel, Gockley According to trial keep attorney. advised to silent good impres- that he insisted could make findings jury 11. The court district made convince them clear sion and could regarding voluntary nature of his innocence. statements, findings are discussed supra page on Collins v. petitioner do also relies cited The eases Beto, 1965); (5th the state- 348 F.2d 823 Cir. compel conclusion product distinguishable from the facts there are inadmissible ments case, Mississip- those here. In that coercion Davis arrest. of an pe- found where the arrested the 22 L.Ed. pi, Bynum probable without a adopted titioner warrant (1969), which 2d 676 cause, questioned him, him to and forced U.S.App.D.C. States, 104 polygraph fingerprints submit to a test. About a (1958), held F.2d 465 later, month with- protection Collins was re-arrested exempted from the were not warrant, eoncededly out a amendment fourth probable Texas He at an cause. was secreted of a result prints as were obtained Ranger unjustifiably Headquarters, detention, and then illegal arrest or under for va- incarcerated a false name exclusion- under the inadmissible were denying grancy, purpose of Court, however, all for the did not ary rule. The legal friends, and relatives him access to not admis- fingerprints were hold that confessing, counsel. Before Collins lapse of a sufficient sible if there were night, questioned at and was late improper if and arrest time after lawyer right of to wth a his consult told pres- other there some attenuation were attenuation, family. his Rather than or Furthermore, difficult would ent. is of a continued illustrative demonstrate, Collins be- prosecution to for the illegality. practice of process of of the the nature cause of prints fingerprinting, obtained dur- proper applicable facts test to the illegal of detention were free Wong is in this case set forth Sun: of intervening circum- taint because of granting “[Wjhether, of establishment hand, Confessions, other on the illegality, stances. primary to the evidence participation objection involve active has been instant is made confessor, susceptible illegality and are by exploitation come at of that fluence of circumstances sufficiently distin- instead or means Gockley’s predisposi- free of taint. guishable purged primary them to of the * * *” are the consensual search tion to talk and taint. U.S. at attenuating present in either factors here can at 417. The significant Bynum.14 Davis It is only hypothesize the statements Davis, Supreme pointed out by exploitation” issue have “been come fingerprints with not connected detention, and and that the arrest re- were utilized arrest and arrest detention were motivated sustained, trial, a could be “purpose controlled, persistent conviction and is n. This U.S. at 89 S.Ct. 1394. repeated although questioning,” the dis- Bynum. Bynum what occurred in See finding of fact. trict made no court U.S.App.D.C. However, legal v. United search November disagree with 274 F.2d 767 I and the fact that the court 18th district majority’s reading “Goekley willingly engaged Davis and found Bynum, is and do not believe police, a * battle of wits with ** justification enlarging interpre- gave information, them some false, true, attempt in an out- Wong beyond para- some to tation of Sun them,” F.Supp. smart are meters set forth Court. jailed, fingerprinted again. Meridian, Davis, police, looking 14. In who were Bynum presents young Negro male, detained, situ- a similar factual for a first fingerprinted, petitioner ation. Tbe defendant had been told and released along many youths; if be come station wanted other similar inquire Upon petitioner about his then arrested the without a arrested brother. arrival, probable cause, a war- he was arrested without him warrant or drove over immediately jailed capítol, probable rant or miles the state him fingerprinted. statement; overnight, and extracted a thereafter, returned to defendant was leading judge. is to the confessions There substantial elements two regarding distinguishable findings support “sufficiently fact [from elements, purged primary illegality] the basis those as to be Accordingly, findings, if the the state- even conclusion taint.” coerced, light voluntary, illegal, ments were and not were considered principles enunciated reasonable. of attenuation Wong Sun, failed to has significant The most and unassailable erred the district court demonstrate that underlying finding by judge the district finding confessions regard testimony in this is that “the admissible. officers credible. more impress did not me truthful Ill simply I do not believe his testi- by petition- major Another contention mony.” F.Supp. at 845. Unless er statements is that used finding clearly erroneous, crucial all support him of this coerced.14a findings bearing the other on the issue ap- thesis, six “lack cites factors: fully supported by of coercion are warnings,” prompt propriate “lack of a testimony Captain Feltman judicial hearing,” “undeviating intent others. confession,” the “in- to extract a interrogation,” Petitioner communicado first claims own] that his state- “[his condition,” pre-arrest mental and ments were the coerced because not he was terrogations. given warnings. appropriate However, the Petitioner states that analyzing Captain testified, district court these Feltman erred and dis- the points individually found, trict court Gockley and that “all asserts that ad- charges relevant and vised must the factors considered him his be and weighed right together. telephone. to use a Culombe v. Connecti- and Feltman cut, 568, Gockley 367 601 6 Krause also stated U.S. that [81 S.Ct. had been (1961), [Ly- rights warned Lynum prior L.Ed.2d of his see 1037] to the tran- Illinois, scription of his 372 statements.16 numn] U.S. 528 S.Ct. [83 Further- Gockley (1963).” more, ap- 9 legal L.Ed.2d is did 922] It ask not coun- parent reading sel either at court’s time at district his arrest or opinion, however, transcription the time of that all of relevant first 15 weighed together by factors statement.17 were These determinations 14a. Although by the view taken the ma- rendition of the statements jority unnecessary makes it do have to to be them considered further. On point, hand, allegations other discuss it is on all incumbent me found wholly partially my to to consider it because of or conclusions factual must then weighed together legal any that, the arrest was to determine the issue event, voluntariness. statements were attenuated from the arrest: Although warnings given to Gock Connecticut, 15. In Culombe v. U.S. 367 ley inadequate by present-day were stand 568, 603-604, 81 S.Ct. 6 L.Ed.2d ards, interrogation his arrest and occurred (1961), 1037 described years Arizona, several before Miranda v. process determining S.Ct. voluntary. phase confession was The first (1966), Illinois, and Escobedo finding involves “crude historical L.Ed.2d 977 finding facts” while the others involve (1964) decided, and these are cases applying “psychological fact.” Both Jersey, not retroactive. Johnson New psychological historical and rele- facts are 16 L.Ed.2d surrounding vant factors the confession. merely petitioner alleges But because Gockley request it did counsel when factors exist does not make so. allegations attempted The must first be Krause to administer lie- considered early individually they sup- detector test December. Because to determine if are portable by grant If is he was not authorized to the re- fact. determined that allegations quest, untrue, one Krause then refrained from con- or more are then tinuing alleged interrogation. the facts are not form of factors surround- right state- And the given Clement der of Smith. Gockley was advised given re- December 9 was clearly ment of erroneous telephone are to al- police questions facts sponse as to to by tes- supported credible are since leged hearing earlier in the statement timony produced did Judge time verified. At no Further, could not be original trial. trickery deception to police use specifically Luongo found confess, Gockley attempt to induce to warnings strongest possible York, Spano the case v. New silent. remain to induced 3 L.Ed.2d is that petitioner point The second (1959), heavily petitioner. relied hearing in prompt judicial of a the lack alleged coercive Petitioner’s fourth coerced. his statements makes effect interrogated factor evi- judge considered district being This held incommunicado. while lapse, and the result of this as to dence assertion, however, flatly contradicted delay affected not conclude could judge record. The found trial knew Goekley’s Petitioner statements. him- could have availed forgery on a arrested had been opportunity to self at time of the right charge, also of his and was aware he did communicate with others but that silent, right counsel, remain his family’s antip- so of “his not do telephone. right of access * ** athy appar- to him and judicial Thus, prompt the evil friends,” “chose ent lack of and that he designed simply hearing prevent attempt to outwit present this case. F.Supp. 846.17a the aid counsel” 314 next petitioner urges Petitioner asserts As a fifth factor undeviating ex- “an intent to exhibited his mental condition an element was con- a from him. This compels tract confession” conclusion coercion. the of length primarily the However, tention based on no indication that detention from November police condition, and were aware his therefore, and the transfer they may charged to December on not be with Gockley jail from one to another having exploited rel. it. United ex States However, purpose questioning. Meyers, (3rd Rivers Cir. 384 F.2d 737 findings and district 1967). police the record What did know was length in- Gockley are clear that intelligent, literate, court and was terrogation articulate; high graduate sessions resulted from “Gock- a who school ley’s verbosity propensity and for fabri- prior experience had with the crim- F.Supp. Gockley cation.” There has 845. process. police, inal To the suggestion Gockley no was cooperative, they seemed to be and saw water, poorly food, treated or denied no reason to avail themselves of sleep. The continued detention after No- freely information offered. Further- by in- vember motivated was more, state-appointed Sanity Com- statements, tent to elicit further Gockley mission found was by required police rather was because the defective, mental mental- he was not charged Gockley ly ill,18 then had mur- with the and that he to un- would be able opinion by Court, support 17a. In an earlier in the record this may finding, it was that “[t]he stated was held we it as accused characterize clearly incommunicado.” 378 F.2d at Since erroneous. provide findings the Rules of fact by court, following be made the trial and that such 18. The Commission utilized the findings may not be set aside clear- of mental illness : illness “[A]n unless definition ly erroneous, capacity person not be reference which so lessens the aof finding customary self-control, judg- considered of fact. After fur- to use hearings, ther at which the facts were ment and discretion in the of his conduct fully developed, the district court did find and social to make it affairs relations as Gockley necessary as a fact in- was not held him to or advisable for be under communicado. Because there is credible care.” cooperate police probable position, cause for derstand his counsel, so, It defense. arrest. Even when make a rational October and private, Gockley un- met and asked him for the conclusions on based these documents, petitioner,19 as and encounter was brief recorded examination oppressive. prearrest testimony of not the his brother. least as on well police conduct fell far short of asserted coercive factor The last brooding omnipresence might history Gockley and of surveillance is the petitioner’s overbear and will prior interrogations formal arrest to his statements to be coerced. However, the evidence on November surveillance, clearly al- shows Finally, petitioner urges that the com- though and “constant” characterized as coercion, bined factors show and that night,” “day fact neither. was in and squarely this case comes within Turner merely Pennsylvania, of v. consisted This surveillance Gockley’sresidence, trips (1949), made 93 L.Ed. several Clewis there, Texas, hope in v. with the he would power reading Klein’s L.Ed.2d 423 A order obtain Mabel clearly attorney During these cases indicates the dis- and contract. judge trict vestigatory period, was correct physical he said that were at- when psycho- tempting either nor the “[n] ascertain facts surround- logical Klein, pressures disappearance evidenced in of Mabel Turner Gockley figured presented clearly Clewis are here.” that in- 314 F. Supp. quiry. summary, when That he seen her house all the considered, including product factors are ing, on several occasions not a the tim- Gockley, type warnings given number and of a surveillance of but rather police, product judi- prompt was a lack of a concern over Mabel hearing, Klein, cial Similarly, police, herself. intent few actual meetings availability albeit between non-utilization separated by span communication, means of pre-arrest of at least a month, history, meeting Goekley’s condition, one resulted from mental According intelligence, well prior mere as his exper- chance. the district findings, subsequent court meeting willingness ience police, with the to co- operate, knowledge where told the of his constitutional rights, to look for Clement and the lack Smith after that of intimidation and de- boomeranged lead ception, and exculpatory shifted and the the full nature of investigation statements,21 Gockley, focus of the appears it manifest According given lawyer Commission the or fact was obtained. report Turner, private that its was on based defendant was arrested on suspicion, examination accounts for the held difference incommunicado for five report days arraignment, counsel, between the Commission and or ad- rights. During that of Dr. period, vice The latter was as to his Bowers. based that interrogated pres- day on night by an examination he conducted was and relays policemen deputies. ence of sheriff’s he until confessed. purpose delay arraignment, The Clewis, 20. In had been held confession, extraction was admitted being magis- 38 hours before taken to a by the Commonwealth. charged, sleep trate to be had had little very food, appeared little to be Both statements were consistent as to lawyer ill. Contact with a had been of Mabel death: Klein’s alleged physical presence withheld. He also abuse. she died natural causes in the confessions, They Between his first and second Smith. Clement were also con- although formally charged, he un- was sistent with theories that the first represented by counsel, and unadvised fre- shot which was fired the result was quently interrogated, on driven a 600 mile a scuffle with Smith and either acci- was trip, polygraph tests, Also, administered matter of dental or a self-defense. given very trial, Gockley’s testimony although little to eat. A third at it state- warnings regard many ment was elicited before with were variance

249 jurisdictional for fed bases judge expanded the finding by the district courts corpus that federal coerced, so eral habeas were the statements granted review voluntary latitude to broader were product of a rather holding explicit The convictions. state police is sound attempt to outwit Noia, fail Fay doctrine of v. clearly certainly erroneous. valid, applied state remedies issue, to exhaust ure as Therefore, on this I conclude at the time to remedies available petitioner has failed others, 434-438, ap petition, is entitled demonstrate Mapp pears reliance on to have eroded issue. writ authority is that fourth amendment according procedural to state sues be raised IV rule s.22 merits comment. matter other One Walker, 381 In Linkletter U.S. come before cases This and similar L.Ed.2d 601 14 S.Ct. grave raise convictions state us after (1965), Supreme Court considered corpus federal habeas questions whether Mwpp it rule and held that the vindica- appropriate is an vehicle made retroactive would be rights such as fourth amendment tion of purpose served its deterrent would presented problem here. The at issue thereby, fairness and because the should federal habeas Linkletter’s trial not at issue. 381 involving punish- granted in cases not 636-637, 639, De U.S. 85 S.Ct. 1731. act; constitutionally protected ment for a spite the restraint manifested in that casting error constitutional fundamental opinion, by 1969 there no doubt ability upon the trial court doubt Supreme Court decisions extended fed correctly perform find- function of its prisoners eral habeas relief to state sole facts, allegation plus of ulti- ly prisoners on the basis that petitioner; mate or innocence alleging unconstitutionally obtained outrageous some misconduct official so them at evidence was admitted that continued incarceration is intoler- trial. Kaufman See v. United able. 217, 225, L.Ed. U.S. (1969).23 However, 2d is now question fourth amendment where predic clear Court’s raised, properly pro violations could be Mapp, tion footnote 9 of eedurally, open was left to the states exclusionary rule fourth amendment Ohio, Mapp v. n. apply only class to a narrow How cases, pas validated has not been ever, years several later Townsend sage are federal courts of time. The Sain, 9 L.Ed. plagued prison petitions from state (1963) Fay Noia, allege ers that an arrest a search who (1963), 9 L.Ed.2d 837 suggests Supreme Court, by statements, essentially details of both was also, problem. approach See new exculpatory because it tended to affirm Friendly, Irrelevant? Col- Innocence Is important allegations. these two Judgments, lateral Attack on Criminal (1970). 159-160 38 U.Chi.L.Rev. 22. Justice Brennan stated that failure to prisoner comply procedural federal involved a with state rules would Kaufman previously justify af- conviction had denial of federal re- whose sought relief under 28 then firmed. He lief unless such failure amounted to an 2255, alleging understanding intelligent, his conviction waiver of the U.S.C. § improper question. upon rights admission Id. based 438-440. illegally Gibbons, The evidence. But see The seized Quest Waiver: involving reasoning Court, cases on Habeas Functional Limitations scope expanded prisoners, Corpus Jurisdiction, Hall L.Rev. state 2 Seton encompass article, unlaw- In 2255 actions this excellent section by language Judge asserted claims and seizure Gibbons criticizes ful search way Fay Noia, analyzes of collateral attack. the result intended illegal, and that their convictions superior, rather than to the state courts. such heavy were bottomed on violation.23a In view ing oppress- case load courts, possible the federal where case, present first branch system the states should their own argument Gockley’s is that en- he is subject by Supreme Court, to review the titled to relief because his arrest was judiciary may so federal accom- valid, incriminating and his statements plish primary its mission to the extent product of that arrest. This were its abilities and resources allow. Cases nothing proposition has at all to do with present only sap like the one the limited question received courts, reserves of the federal and if al- a court trial before able to find proliferate, seriously lowed will ener- fairly accurately. Rather, facts judiciary vate federal as we know it. implied premise upon grant questioning I am request not now the rule of based is that if we Mapp appeal petition, cases of direct or then state will be deterred post-conviction proceedings, only making arrests, in the future from whether claims of violations of that rule and the their courts will have sullied ordinarily grounds should integrity by permitting constitute convictions based through relief from state fed- convictions on violations of the law offi- corpus. eral habeas However, Reading police cers. offi- closely cers most associated with this major Gockley’spe- A second branch of retired, case have and the district attor- tition is that his conviction was based ney, prosecuted case, longer who no statements coerced violation of fifth holds that office. It is difficult see rights. two amendment There are directly who would be deterred if the premises underlying argument. granted. Furthermore, peti- writ is First, statements, rights tioner’s constitutional in fact were inherently involuntary, are violated, recourse to an action under the unreliable and as a result Rights Act, Civil 42 U.S.C. § upon conviction them based provide compensation and deterrence thereby finding fact, accurate affecting legitimate the state’s right depriving Gockley of his a fair insuring interest that offenders be trial, generally, Mississippi, see Brown v. adequately punished. 80 L.Ed. (1936). Second, That the that coerced ultimate aim statements of the decision repugnant gov- system are so to our of the in- —enhancement tegrity ought judicial system ernment convictions upon not be based —will Connecticut, achieved if them. See Culombe v. should be retried supra. However, is, without best, this is not a case like the use of his statements Fay supra, Noia, where the statements shrouded in There is also doubt. means,24 question extracted “satanic” whether the district courts re- even where one of three defendants appeals the courts of should have jail mained in overseeing because his counsel failed the function of state courts pursue procedural steps, taken manner, certain especially since the district Regard- by the defendants.25 parallel, other two appeals courts and courts of are premise n. 23a. behind soundness quoting Mapp, deterrence, being ex rel. Caminito United States the rule now (2nd seriously Murphy, questioned. 222 F.2d Cir. See Bivens v. Six Caminito, 1955). Agents, 388, co-de Noia’s two Unknown Named 403 U.S. 1999, (1971) released. were ordered fendants 91 29 619 S.Ct. (Burger, J., dissenting) ; Coolidge v. C. 395, 1, Hampshire, 443, 822. 25. n. 83 S.Ct. reading 403 91 372 U.S. New U.S. S.Ct. History, 2022, (1971) (Harlan, of the as well as close 29 L.Ed.2d 564 opinion, J., concurring; Black, J., concurring at least teaches us that some majority forming dissenting; J., concurring Burger, the Justices in C. Fay part Supreme dissenting part). mo- in Noia were v.

251 legal prevent abuse, issues sion the factual a waste of lim less of how resolved, presented ited unless Goek- resources available for here are the criminal hardly ley process, public disrespect conviction can is innocent his judgments the conscience of be called an affront “to of courts. Is Innocence Ir society,” manner relevant? a civilized which is Collateral Attack on Criminal Judgments, 142, Court described in which the 38 U.Chi.L.Rev. 172 Noia, Fay plight petitioner’s v. 441, swpra, 850.26 S.Ct. at 372 U.S. 83 suggesting I am not the federal Reading if police, even actions of the The petitioner prove must his inno- irregular may not ac- indeed or by preponderance cence of the evidence curately “satanic.” be characterized as relief, in order to be entitled to but allowing guilty person concept only that he demonstrate that the con- jail is his conviction to remain in after stitutional violation resulted in error procedure on direct final because questionable the factual ac- makes hardly appeal novel is has been concluded curacy guilty Coupled verdict. asserted or medieval. Justice Black has uncertainty with this demonstration of a collateral he would allow before guilt, as to should affirm- always re he “would attack to succeed atively innocent, assert that he is raise quire defendant the convicted strong innocent, society he is not has a claim that kind of constitutional interest his continued incarceration. his doubt on of a casts some shadow guilty plea required, More than States, guilt.” 394 Kaufman United necessarily plea does not 1082, 1068, 217, 242, 22 89 S.Ct. U.S. asserting pleader mean (dissenting opinion). (1969) L.Ed.2d 227 challeng- innocence, that he is the “vital one of further stated He prosecution prove its case be- “guilt is the defendant’s considerations” yond a reasonable doubt. S.Ct. 89 Id. or innocence.” Section Friendly consistent with Judge This seems has stated 1068.27 provides specifically irrelevant should be innocence e. though “dispose the matter [i. court shall even attack collateral corpus] law petition as for habeas appeal; we to the extent on direct justice require[s].” system revi gone beyond this, needs killing accidental was either was that considerations other than tivated justifiable. utilized to coerce “satanic” means inability subsequent Noia’s confession and matter, as challenge Black raised Justice The basic his incarceration. scope of Noia, injustice of the overall well the issue in that case was Wliiteley again corpus, appeal federal habeas fear of because of his who did Wyoming n jail State penalty, Penite v. Warden while remained the death 574-575, tiary, eventually 401 U.S. freed. his co-defendants were (dis (1971) protested though 28 L.Ed.2d S.Ct. Noia And even Although opinion). senting Mr. Justice throughout no the state had nocence agreed of Justice much guilty Blackmun than other that he was opinion opinion, did pro- confession, Black’s no coerced matter. with either not deal relief. available to afford cedural avenue circumstances, these “It was under problem aspect of col 28. Another appealing strongly to the Court’s sense connection in a criminal lateral attack justice required, this Court of what Harlan United Justice addressed challenge entitled to held that Noia was and Cur Coin States v. United States previ- though it had his conviction even ” rency, . ously Kaufman become ‘final.’ (1971), considered when L.Ed.2d 434 States, United should rule Mwrdhetti-Grosso (1969) 1068, 1078, 22 L.Ed.2d Marchetti retroactive. dissenting). (Black, J., States, S.Ct. (1968) v. United killing Goekley and Grosso Clem- L.Ed.2d 889 has never denied 19 L. apparent defense at trial ent His Smith. 252 149, 319, ticut, 82 case, U.S. 58 be said the Goek- 302 S.Ct. it cannot this 29 explained shooting (1937). He

ley’s Smith L.Ed. 288 Clement conduct of constitutionally protected. Nor can there nonobservance when occurs concept grant procedures “implicit in the writ will of the those it said be liberty,” provide “time and or where of ordered his retrial would ensure that ju And, fact-finding growth capacity, process. as well as in social accurate more rightly perceptions Gockley’s to as- what we can quite apart failure dicial adjudicatory process, innocence, is sufficient demand sert his * * * ajter understanding anyone from con- our preclude be must procedural tending not committed elements bedrock punished. particu fairness he was found to the act for which vitiate ap conviction,” corpus is lar habeas Although and Justice Harlan Justice respectfully propriate remedy. But I Fay Stewart, dissented of whom both suggest standards are that such sat Noia, Black Justice did not with concur in asserts isfied unless the importance of in Kaufman nocence and demonstrates they nocence, do contend nevertheless reliability procedures decreased the corpus scope re-exam fact-finding Application process. narrow be should ination convictions suggested by Har the criteria Justice States, supra, United Kaufman v. ed. lan to facts of this fails to show case (Har 242-243, 1068 89 S.Ct. 394 at U.S. employed procedures either viti dissenting). Stewart, JJ., In his lan & ated conviction the fairness dissenting opinion in concurring principles “implicit in the or offended States, Mackey 401 U.S. United concept liberty.” of ordered 692-693, 91 S.Ct. significant (1971), asserted It Harlan here that Justice ought issue corpus either of habeas has asserted his innocence in the writ grounds, process petition or Court. on brief before this substantive due guilt citing States Since the evidence of his sub- United States stantial, S. Currency, preferable at it seem to save Coin & U.S. grounds procedural judicial (1971), energy on to consider time Ct. 1041 Connec of Palko v. he is innocent the test case of one who contends which meet permitted, competing (1968) that where one stat for the interests are Ed.2d 906 held report retroactivity requires an act which both ute similar and habeas criminal, may fifth another makes cases. Those interests statute finality hand, privilege self-incrim summarized as on one see amendment interposed Mackey States, 401 ination as a defense v. United prosecution comply (1971) failure 28 L.Ed.2d 404 requirement. (Harlan, J., concurring dissenting reporting Justice retroactivity opinion), and the correction constitu Harlan concluded See tional error on the other. Kaufman cases into classes: those which fall two prior S.Ct. be v. United hold non-retroactive decisions ; (1969) Brown v. “concerned with the im L.Ed.2d 227 Allen, procedural plementation rule which finality accuracy L.Ed. The need for not undermine the basic does expressed eloquently many times, factfinding process trial,” has been and those necessary require retroactivity it reiterate those “because the arguments. employ meant failure to such rules trial significant inno there was a chance that wrongfully punished appeal a men had held a state could cent Palko murder, retry degree past.” Currency, of second In Coin & conviction defendant, death sentence him to classification was useful because the degree granted retroactivity because this kind ra for first murder pun jeopardy not such that tionale that the conduct for which of double principles sought constitutionally violated the fundamental ishment was protected. underlay political institu- our The classification referred to civil and utility tions. has Justice Harlan determin ing whether collateral attack should be

253 upon meth- or whose conviction based repre- other than the traffic violator is validity Supreme Court, ods doubt on of which cast the sented counsel.30 The years, the appropriately the facts found or which affront over the has en- society. larged protected rights conscience of civilized and the every important stage accused at in suggest I do not vast process.31 short, criminal In the accused prisoners would unable who panoply pro- citizen is afforded full qualify for under the tests set forth relief cedures, including right suppress remedy. I herein should be without probative illegally obtained evidence only remedy lie assert that this should opportunity and for discov- extensive province elsewhere than within regardless ery, of his stature in the com- in the collateral attack federal courts. munity. Furthermore, accused, Perhaps party implement proper convicted, argue can for vindication post-conviction errors correction of throughout appellate process, all gov- similar to those issue here is way Supreme Court the United agen- state, applicable or an ernor cy Following States. di- exhaustion of Fay fulfilling See, position. a similar appellate remedies, rect de- the convicted Noia, supra, 476, v. U.S. 83 S.Ct. 372 may begin process fendant seeking anew dissenting). par- (Harlan, 822 J. appropriate relief under state ticular, enlightened pardons state post-conviction hearing act.32 It seems board, petitions screen would unreasonable, perhaps destructive of cases, deserving clemency in recommend long range judicial values, proc- that the provide avenue would a viable alternative again again repeated ess should be relief, greatly in stem- aid federal courts absent some show- ming the federal flood of habeas been the habeas has petitions. responsibility state The constitutionally either convicted for justice criminal the administration of protected act, procedural of some because extends further than the function guilt, prosecution, judiciary and the federal defect which on his casts doubt by the by should not become encumbered violence to minimum our standards func- other state’s abdication these fair treatment. tions. crux as the of the matter is that V scope corpus rem- habeas federal edy expanding, foregoing reasons, need I would has been all the ever For contracting. continually deny it has for been affirm the district court Today, every nearly corpus. petition defendant criminal for Pay 1963, (custodial ; (1966) interrogation) 30. v. Es was decided Noia 694 year Illinois, re- same v. U.S. 84 S.Ct. cobedo 378 per- quired (custodial appointed (1964) all counsel be for 12 L.Ed.2d 977 charged ; California, interrogation) Douglas v. sons with felonies. v. Gideon Wjainwright, 811 U.S. S.Ct. 9 L.Ed.2d U.S. ; (counsel appeal) (1963) v. Griffin 9 L.Ed.2d Noia had years earlier, Illinois, 585, 100 where S.Ct. convicted some 20 capi- except appeal). appointed (1956) (transcript counsel L.Ed. 891 cases, trial then tal opportunity It was denial of stage proceedings. appeal of Noia’s failure Pay g., Wade, shaped part e. 31. See the decision United States 426-434, S.Ct. Noia. See 372 Arizona, (1967) ; (lineup) Miranda 16 L.Ed.2d

Case Details

Case Name: United States of America Ex Rel. Edwin Gockley v. David N. Myers, Superintendent, State Correctional Institution, Graterford, Pennsylvania

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 24, 1972

Citation: 450 F.2d 232

Docket Number: 19209

Court Abbreviation: 3rd Cir.