*1 v. CALIFORNIA. STROBLE Argued April 7, No. 373. March 1952. Decided 1952. *2 peti- for the cause argued A. L. Wirin Gray D. and John Okrand, Clore Fred brief were on them the With tioner. Miller. Loren and Warne respondent. argued cause Alexander

Adolph Brown, Attorney G. Edmund brief were him With Deputy O’Connor, Chief V. California, William General At- Richards, Deputy Frank W. General, Attorney torney General. of the Court. opinion delivered the

Mr. Justice Clark murder degree convicted of first Petitioner has been Court to to death. He asks this reverse sentenced process guar- in that of law wanting his conviction as due by the Fourteenth against anteed state encroachment (1) Petitioner that his conviction Amendment. claims (2) that a fair part confession; was based on coerced inflammatory newspaper impossible because (3) that he reports inspired by Attorney; the District deprived was in of counsel the course of his effect delay sanity hearing; (4) that there was an unwarranted arraignment; (5) prosecuting that the officers unjustifiably permit attorney refused consult *3 petitioner shortly petitioner’s after arrest. Petitioner urges that each first three circumstances is inde- pendently a deprivation process; that, any of due and event, operated the combination of all five circumstances deprive him of a fair trial.

The murder of has been oc- convicted curred on Monday, 14, 1949; November the victim was a girl, aged 6. Petitioner was arrested around noon on Thursday, 17, November 1949. arraigned He was in the Angeles Los Municipal Court at following 10 o’clock the morning, and the City Public Defender was appointed to represent him. A preliminary on hearing was held Mon- day, 21, November was bound over for trial in the Superior Court of Angeles County. Los On No- 25, petitioner vember arraigned was the Superior Court County Public Defender appointed was as his counsel. From point until the conclusion of his trial, petitioner was vigorously defended deputies two of the County Public Defender’s office. On December 2, 1949, petitioner pleaded both guilty” “not and “not guilty by of insanity.” reason The case came on for trial on January 3, 1950. The of guilt issue a tried to guilty of a verdict 19, returned January on which,

jury, under recommendation; without murder, degree of first at penalty fixed the automatically law, this California trial jury waived 1950, petitioner 20, January On death. that peti- found court and the insanity, of on the issue On offense. committing the the time was sane tioner attor- private motion, a on 1950, petitioner’s January 27, February On counsel. petitioner’s as substituted ney was petitioner’s hearing, denied a court, after trial 6, 1950, judgment, arrest motion in trial, new for a motion the issue jury waiver of aside the motion set insanity. unani of California Court Supreme appeal On P. 615, 2d 36 Cal. the conviction. mously affirmed of the seriousness because granted 330. certiorari 2d We Clause. Due Process under the allegations petitioner’s U. S. 811. be sum- may arrest leading petitioner’s The facts follows: as marized 1949, the vic- November morning of early

In the in the back incinerator found behind the body was tim’s son-in-law. daughter and home of yard of the with boxes. covered blanket and wrapped It neck. child’s was wound twice around necktie A vicinity found hammer knife, and were axe, An cause that the immediate An revealed body. autopsy re- It also *4 strangulation. due to asphyxia of death was and sides top on the lacerations numerous vealed in the back deep a laceration fractures, head, six skull back, child’s on the and discolorations neck, abrasions puncture and three genitalia, external irritation chest. wounds had who petitioner, on immediately focused

Suspicion day until and his son-in-law visiting daughter been be- Some months disappeared. had six before, when he molesting a charge bail a jumped had fore, petitioner small girl and had never since apprehended. been At approximately 11:50 a. m. on November petitioner as entered the bar of a restaurant in downtown Los Angeles, a civilian recognized him as the man whom the police were seeking in connection with the murder. The civilian summoned police a officer, Carlson, who thereupon arrested petitioner.

From this point on there are some conflicts the testi- mony, as noted below. Carlson, accompanied civilian, took petitioner to the park foreman’s office nearby Pershing Square, where Carlson called headquar- report ters to his petitioner arrest of and to request that police a car be sent. Then Carlson, the presence of the civilian and the park foreman, proceeded to search petitioner. Carlson petitioner had stand facing the wall with his hands against raised it his feet away from it. While being searched in this position, petitioner pulled his feet closer to the wall and then Carlson, with the side shoe, kicked petitioner’s shoes at the toes in order push petitioner’s feet back into position. The civilian testified that “possibly” Carlson’s slipped foot hit petitioner’s shin “once or twice.” Carlson testified that at no time did he petitioner “strike” or any “inflict kind of physical injury on him.”1 No marks were pe- found on titioner when he was by physician examined a few hours later. It also appears that after searching petitioner, Carlson took out his blackjack, held it under petitioner’s nose, and said either, you “Do know what this is for?” or you “Have seen this?” Petitioner makes no claim that Carlson used the blackjack on him. While waiting the police car to arrive the civilian asked whether he was guilty of the murder, “mumbled something under his breath that sounded like ” T guess I am.’ Thereupon, according to the civilian,

1Petitioner testify himself did not at the trial. *5 hand open with petitioner slapped foreman park glasses. petitioner’s off knocked

and peti- and car arrived police delay undue Without in the office Attorney’s District to the driven was tioner one en route Building. While of Justice Hall peti- with began conversation car officers police re- Petitioner been. he had where asking him by tioner I went happened, thing terrible that after “Well, plied, to going Park. I was to Ocean beach, down to the down you do said, officer “What The myself.” with away do replied, petitioner to thing?” terrible that by mean inter- then The officer killed.” got girl little “When girl?” little killed the you when mean you “Do posed, down going I “Yes. was answered, petitioner and commit in the ocean jump going was I beach. pay on have I would that I decided but suicide this pay back and as well come might Iso side other peti- promise did that he officer testified The side.” immunity, hope of any himto or extend reward any tioner The kind. any or threats use force did not he is this conversation testimony regarding officer’s entire a confession as it contains insofar uncontradicted, and, on the at the was made objection no petitioner, involuntary. was such confession ground to the intro- however, trial, at the object did Petitioner after made which he of a confession in evidence duction Petitioner Attorney’s office. District in the his arrival approxi- Attorney’s office brought to the District began attorney district an assistant m., mately p. nineteen of some presence in the questioning police and the Attorney the District attaches persons, on a was recorded proceeding entire department. The operation before been which had set recording machine after- that on the stated Petitioner arrival. petitioner’s to the home victim came 14, his noon of November he visiting; where daughter, *6 took his victim into the upon bedroom and made advances when her; she began scream, he frightened, to became got hold of her throat, squeezed it until she became she quiet; to squirm started again, he took a necktie so from the dresser and it tied around her neck; when she continued to move, he took her off bed, wrapped her in a blanket, and hit her the temple with a hammer which he had obtained from the kitchen drawer; he then dragged her across the yard back to the incinerator, re- turned to the kitchen an get to ice pick, and pushed the pick into her three in an times effort to reach her heart; next he got an axe from garage and hit her on the head and backbone; finally got he a knife from the kitchen her in stabbed the back of the neck, covered her body with boxes, and left for Park, Ocean a beach resort within city of Los Angeles, where he remained for the three nights before apprehension.

Towards the end of the recording petitioner stated that the officers had not threatened or him abused in any way, either in park foreman’s office or the District Attor- ney’s office. The recording disclosed no mistreatment at the time of the making of the confession.

The questioning of petitioner in Attorney’s District office lasted approximately two hours. About 45 minutes petitioner after had begun his confession, an attorney, Mr. Gray, at called the waiting room of Attorney’s the District office and asked for the assistants handling the case. Upon being advised they that were busy he then asked for the District Upon Attorney. being told that the Dis- trict Attorney was also in conference and could not be disturbed, Mr. Gray to see petitioner. asked It is uncon- tradicted that at point Mr. Gray stated police to a department inspector present who was in the waiting room that he “just to hear wanted from [petitioner’s] lips whether or petitioner not” had committed the murder, “so that could report [he] back” to petitioner’s son-in- room to the admission denied was Gray Mr.

law.2 talked but questioned, being was petitioner had been the confession after attorney district assistant see permitted Gray was Mr. completed. dur- represent did Gray Mr. evening. sub- for new motion on the but trial,

ing the Defender. Public for request, stituted, from the taken m., petitioner p.3 Shortly after physi- a Crahan, Dr. Marcus Attorney’s office District county jail, hospital charge cian when Crahan, Dr. examination. mental *7 and physical testified trial, at the a witness as by petitioner called including his feet carefully, examined that he kind. any abrasions or no bruises found shins, but and peti- the examination during Crahan, Dr. According officers had police the arrest since his that stated tioner “mis- not been that he had and kind to him very been Peti- consideration.” “every given had been and treated” killing. details the Crahan to Dr. related tioner the night county jail the in lodged Petitioner at 10 o’clock Court Municipal the arraigned and was 18. morning, November following the date the between period in the six weeks’ Thereafter, trial, petitioner of his beginning the and arraignment psy- one clinical and psychiatrists3 four by was examined he had that he stated persons of these To each chologist. detail, or lesser greater recounted, his victim killed experts, These killing. the about gone had how he just by called been (two having trial at the testifying when related petitioner), the by three prosecution did Petitioner them. told had what jury (testi R. 210 Gray); also see D. (testimony of John 2 R. 287-288 Donahoe). mony Inspector J. A. by appointed had been psychiatrists Three of these Code, 1027. to Cal. Penal pursuant § court object not the time, and makes no objection now, admission these ground confessions they that involuntary. were

The trial charged court the jury it could not con- sider a confession it unless was voluntary; jury was the sole judge of voluntariness; that a confession was not voluntary when obtained by any kind of violence, abuse, or threat, byor “any coaxing, cajoling, or menacing influence which induces in the mind of the defendant or hope belief that he gain will some advantage by mak- ing a confession.” The court further charged that the fact that a is confession made an while accused is under arrest and being detained, or when he is represented by counsel, or without his been having told that any state- ment he makes may be against used him, does not itself make the confession involuntary, but is one circumstance to be considered determining the voluntariness of the confession. The court admonished the jury to with view caution the testimony any witness which purports to relate oral confession a defendant.

The California Supreme Court stated: may “We as- sume that, as a matter of law under the circumstances shown,” petitioner’s confession in the District Attorney’s *8 office was involuntary.4 The court felt, however, that the use of that confession “could not have affected the fairness of [petitioner’s] trial,” because petitioner “thereafter made at least five confessions, of materially similar sub- stance and unquestioned admissibility, which were put in evidence,” and because does not appear “[i]t that the out- come of the trial would have differed” if that confession had been excluded.5 Therefore the court concluded that use of the confession had not deprived petitioner of due process.

4 623, Cal. 36 2d at 226 P. 2d at 335. 536 Cal. 2d at 226 P. 2d at 336. If the confession view. different a somewhat

takeWe office Attorney’s District in the made which even stand, cannot conviction involuntary, the in fact was might confession from that apart evidence though the Malin verdict. jury’s the to sustain been sufficient have (1945); Lyons 401, 402, York, S. 324 U. New ski v. That (1944). confes n. 596, 597, Oklahoma, S. 322 U. a steno First trial. feature prominent was a sion then read, and was the confession of transcript graphic Under jury. to the played it was of recording a wire ver jury’s the say that we cannot circumstances these part, least based, have been not could dict office. Attorney’s District made the confession the as “assume,” merely cannot view, this we we take Since in that confession that court, supreme the state did question the determine on to go but must voluntary, voluntariness. the action suggest as not so much

Petitioner does the confession taking of during the officer any is sole contention His force or threats. accompanied by coupled office, foreman’s park in the incidents Attor- in the District officers presence nineteen with in the he made the confession office, render ney’s involuntary. latter office with when faced that, stated frequently Court has

This has been violation there whether question by the Amendment Fourteenth Process Clause Due make confession, it must involuntary anof introduction facts. undisputed on the determination independent id., cited; York, 404, and cases supra, at v. New Malinski In adhere to that opinion). We rule. (dissenting at 438 need confine ourselves however, we case, present if give petitioner facts; for, even we undisputed we alleged coercion, to the doubt as every benefit fairly be said that confession not think it can do *9 product. was coercion’s Attorney’s office District 191 Whatever occurred park foreman’s officeoccurred at least hour before began he his confession in the Dis- trict Attorney’s office, accompanied by any demand that petitioner implicate himself. Likewise his statement the officer while on the way to the District Attorney’s office was admittedly In voluntary. the Dis- trict Attorney’s office, petitioner answered questions read- ily; there was none of “pressure of unrelenting interrogation” which this Court condemned Watts v. Indiana, 338 U. S. 49, 54 (1949). Indeed, the record shows that from the time of his arrest until the time of trial, his petitioner was anxious to to anybody confess who would listen —and as much so after he had consulted with counsel as before. His willingness to confess to the doc- tors who examined him, after he been arraigned had counsel had been appointed, circumstances free of coercion, suggests strongly that petitioner had con- cluded, quite independently of any duress the police, “that it was wise to make a clean guilt.” breast See Lyons Oklahoma, supra, at 604. In light all these circumstances, we are unable to say that peti- tioner’s confession the District Attorney’s officewas the result of coercion, physical either or psychological.

We turn to petitioner’s now contention that the news paper accounts of his arrest and confession were so in flammatory as to make a fair trial in the Los Angeles area impossible though a period of six in —even weeks tervened between day of his arrest and confession and beginning his trial. Here we are not faced with any question as to the permissible scope of newspaper comment regarding pending litigation, see Bridges v. Cali fornia, 314 U. S. (1941); Pennekamp v. Florida, 328 U. S. (1946); Craig v. Harney, 331 U. S. (1947) ; but with the question whether newspaper accounts aroused such prejudice in the community that petitioner’s trial was “fatally infected” with an absence of “that *10 justice.” of concept very the essential fairness

fundamental (1941). S. 314 U. California, enba Lis at- was petitioner of apprehension for and search The time the Between publicity. newspaper by much tended arrest, news- petitioner’s of time and the murder of the fea- area Angeles in the Los circulation general of papers police which the “manhunt” the headlines banner tured of day On the petitioner. conducting were from excerpts extensive printed newspapers these arrest details the office, Attorney’s in the District his confession the by press to the having been released of confession the petitioner while intervals periodic at Attorney District Monday, following the On the confession. giving was full reprinted the newspapers Angeles later, Los days four at the record into read as it was of that confession text given were these events Most of hearing. preliminary the ac- and were papers, the of page the front billing on top variously was Petitioner headlines. by large companied stories, of news in the text headlines described, both killer,” and a “fiend,” a “sex-mad “werewolf,” as a press Attorney announced The District like. and sane. guilty was belief peti- accompanying publicity newspaper of spate The Dur- however. abated, and confession soon tioner’s arrest made 1949, petitioner December, of month ing only infrequently, newspapers Angeles of Los headlines “not on Decem- guilty” plea a when he entered as such which other events to certain points 2. ber Petitioner State The Governor during that month. occurred consider, legislature session special a called crimes”; problem “sex things, other among one-day a law enforcement conference called Governor subject; committee same to consider the officers hearings in held crimes investigating sex legislature state he Attorney stated that the District at which Angeles, Los disposed be “shouldn’t why sex offenders not see did the same way” as mad dogs; and various citizens’ groups proposals made for studying and dealing with sex crimes. Angeles Los newspapers published accounts of each of events, these and the accounts times made reference to the murder with charged.

Petitioner’s trial itself reported Angeles Los newspapers, usually on pages. inside Petitioner makes *11 no objection to phase this of the newspaper coverage ex- cept for the newspapers’ occasional reference to petitioner as a “werewolf.”

While may deprecate we the action of the District At- in torney releasing to press, the on day the of petitioner’s arrest, certain details of the confession petitioner made, we find that the transcript of that confession read into the record at the preliminary hearing the Municipal Court on 21, November days four later. Thus in any event the confession would have become available to the press at that time, for transpires in “[w]hat the court room public is property.” Craig Harney, supra, at 374. Petitioner has not shown how the publication of portion a of that confession four days earlier prejudiced jury arriving at their verdict two months thereafter. agree We . with the California Supreme Court peti- that tioner has failed to show that the newspaper accounts against aroused him prejudice such in the community as to “necessarily prevent a fair trial,” Lisenba v. California, supra, at 236. At the outset, it should be noted that at no point did petitioner move for a change of al- venue, though the California Penal Code explicitly provides that whenever fair “a and impartial trial cannot be had county” in which a criminal action is pending, the action may, upon motion of the defendant, be removed to “the proper court of some convenient county free from a like objection.” Of course petitioner’s failure to make such Code, Cal. Penal 1033, 1035. §§ here, since issue of the dispositive is not

a motion ground on this petitioner against decide did court state constitutional federal the merits rejected rather but there whether determine claim.7 in an effort But, community prejudice widespread or hysteria public sig- it we think trial, of his at the time against petitioner vig- were who defenders deputy public two nificant no saw trial, throughout defense petitioner’s orous county another the action a transfer to seek occasion had accounts newspaper prejudicial ground on the a fair to obtain for impossible made it County. Angeles of Los Court Superior in the first accounts was newspaper prejudicial matter The petitioner’s after attention trial court’s brought of a motion in support of the conviction, grounds as one attor- present At that time trial. new pre- “deprived had been urged that ney by the release premature innocence sumption confession,” office details Attorney’s District *12 Los certain allegation that support of offered in petitioner’s of at the time published Angeles newspapers as follows: replied court arrest. The trial and all examined thoroughly jurors were all “[T]he to the de- give would they stated that definitely inno- presumption of the the benefit fendant jurors nothing . . show those . There is cence. papers. read those or ever papers those ever saw far as defense counsel fully examined so They were they knowledge or information any desired as of the case.”8 might have 7 Grayson Harris, 352, (1925); International 267 v. U. S. 358 See Surety Co., 657, 665-666 v. National 297 U. S. & Iron Co. Steel (1938); Brand, (1936); rel. U. S. Indiana ex Anderson (1948). 410, 414, Comm’n, n. 4 Fish 334 U. Takahashi v. & Game S. 8R. 361-362. challenge this court. Petitioner does not statement has Indeed, stage proceedings at no prove any juror that offered so much as affidavit He asks prejudiced by newspaper fact stories. simply declare, this Court to read those stories and then to courts, they of two contrary finding over state him necessarily deprived process. of due That we cannot do, where, here, inflammatory newspaper at least as appeared approximately accounts six weeks before the be- no ginning petitioner’s trial, there is affirmative showing any community prejudice ever existed or any way jury. affected the deliberation of the It is also significant that in one this case the confession which was prominent the most newspaper features accounts was made at voluntarily was introduced evidence the trial itself. find no

We substance in that he contention was deprived of in the point effective counsel a critical case, namely, when by jury he waived trial on the issue of insanity. attorney The who consulted with as to whether he should make such a waiver was the Public himself, Defender although prior deputy to that time two public defenders had handled the Pub- case court. The lic Defender took this action because trial court, at the conclusion the trial on the guilt, issue of had requested personally that he attend the trial on insanity issue.9 failWe to see how this petitioner. action harmed As the California Supreme Court found, the Public Defender “was familiar case, with the having read the daily tran- script and consulted with and advised deputies] two [his and interviewed witnesses during trial”;10 moreover, consulting before with petitioner on the waiver question, *13 9 request The trial court made this as a result of certain conduct part deputy public defenders, on the of one of the set forth in the opinion 628, below at 36 Cal. 2d 226 P. 2d 338-339. 10 628, 36 Cal. 2d at 226 P. 2d at 338.

196 There- deputies. two matter with the he discussed to reply court, open twice stated after, petitioner to waive he wished that judge, trial by the inquiries there Furthermore, insanity. of the issue trial on jury intro- He sanity. petitioner’s as to question no real was in- hearing; sanity the at evidence additional no duced would evidence the sole that stipulated parties the stead the plus guilt, of the issue trial on at the adduced be that at testified who had psychiatrists of complete reports testified, whether had who Every psychiatrist that trial.11 prosecution, behalf or on petitioner of on behalf On sane. petitioner that the conclusion had reached attor- present petitioner’s trial, when for new motion on the jury the waiver to set sought aside ney relating to evidence no new offered insanity, he issue any not indicate and did mental state petitioner conclude We evidence available. such in decid- counsel competent the full assistance received tried the court. insanity issue he wanted ing that afforded has been others, all he question, as On that ar- from counsel of zealous earnest “the assistance Avery v. Court.” in this argument to final raignment (1940).12 450 Alabama, 444, S. 308 U. that a combination with agree we

Nor can unwar- circumstances, namely, other with grounds these permit refusal to counsel arraignment delay ranted 11 Indeed, stipulation. point petitioner challenged that has At no deputy public into one stipulation had been entered confidence, complete he had defenders, whom states personally Defender be asked the Public prior to the time the court insanity present trial. Adamson, 320, 333, P. 2d People 34 Cal. 2d In say about this (1949), Supreme had this Court of California judicial take “This court can Defender his office: same Public any lawyers to find in California notice, too, be difficult that it would defending cases than qualified in criminal or experienced more better County Angeles and his staff.” Los Defender of the Public

197 to petitioner consult during making confession, of amounts to such deny process. unfairness as to due The arraignment within twenty-four was had less than hours after the arrest. The officials questioned petitioner only during period the two-hour Attorney’s the District office, described above. The remainder of that afternoon a physical devoted to examination, and mental petitioner makes no objection. Counsel called petitioner at county jail at 9:30 m. p. evening of the arrest; presumably petitioner remained alone from then until the time of his arraignment the following morn- ing. Although the California Supreme Court found that promptly the failure to arraign petitioner before a com- mitting magistrate awas violation of law,13 state that is not determinative of the issue before us. When this Court is asked to reverse a state court conviction as want- ing due process, illegal acts of prior state officials to trial only are relevant as they petitioner’s bear on contention that he has deprived been of a fair trial, through either use of a coerced confession or otherwise. Lisenba v. Cali- fornia, supra, 234, Oklahoma, at 235, 240; Lyons v. supra, n. 2; Gallegos Nebraska, 342 55, 59, U. S. (1951). Upon the facts of this case, we cannot hold that illegal of conduct the law enforcement officers taking petitioner promptly before a committing magis- trate, coerced the confession which he made the Dis- Attorney’s trict office or in any other him way deprived a fair impartial trial.

As to prosecutors the refusal of the to admit counsel during interrogation their of petitioner, counsel stated that he had come to the Attorney’s District office at the request petitioner’s son-in-law merely inquire guilt. as to his At no point did light himself ask for counsel. In facts, these the Dis- Const., I, Cal. Art. 8.§ examination interrupt Attorney’s refusal trict hour, for almost proceeding been which had petitioner, son-in- inquiry make could that counsel so process, of due deprivation not constitute law, does *15 other cir- with all conjunction inor independently either attorneys should district While in this case. cumstances with an interview for a of counsel request honor always showing no there is us record before the client, upon a ex rel. States in Adams United was said As prejudice. McCann, (1942): S. 317 U. not to be is adjudicatory process of the the result

“If the too much asking not naught, it is set sustained unfairness be showing essential burden to have and seeks injustice such by him who claims not as a that it be sustained aside, and result set the reality.” a but as demonstrable speculation matter is Court California Supreme of the The judgment

Affirmed. Frankfurter, dissenting. Mr. Justice attacking his con- grounds for of the One be- fairness the trial lacked fundamental is that viction intrusion initiated the himself attorney the district cause trial. miscon- Such process into the press adjudicatory contends, subverted duct, Anglo-Saxon determined is by guilt process Clause what Due Process countries, so as offend issue protects. The Amendment of the Fourteenth Court of California Supreme verdict, and raised after had it by ruling that disposed of the claim might have required stage proceeding been made at It not to do so. however, chose court, That State law. Clause the Due Process invoke permitted issue, as constitutional federal thereby tendered disposition. for our recognizes, this Court The Supreme Court of California thus formulated the issue and indicated its conception of the allowable stand- ards of fairness under the Due Process Clause:

“Defendant deprived claims that he was of a fair trial because the trial court protect did not him from, attorney and the district 'public pressure.’ fostered, The killing and the subsequent search defendant publicity. received much Immediately de- after fendant’s arrest he was taken the office of the dis- trict attorney, interrogated, and confessed. The dis- trict attorney, even before defendant completed his statement, press released to the details of the state- (including ment defendant’s play admissions of sex with his victim and other children on prior occasions to the killing) and also announced his belief that defendant was guilty and sane. At the time of de- *16 fendant’s arrest and at the time of his (which began some seven later) weeks there was notorious widespread public excitement, sensationally exploited by newspaper, radio and television, concerning crimes against children and defendant’s in par- crime ticular. In these circumstances, urges, defendant it was impossible for him to obtain an unbiased jury, and process due requires a new trial even though there is no showing that any juror was in- actually fluenced by the sensational publicity and popular the hysteria.

“In connection with 'public his claim of pressure’ defendant also calls attention to following the state- by ment one of his (veteran counsel Deputy Public Defender John J. Hill; defendant was not rep- then resented by present private counsel) made during his closing argument: T wish to make this commen- with tary just reference to what has occurred before the Court took the I Bench. refer to the televising box, entering the jury the taken pictures

and pub- added I like this don’t ... counsel. and with cooperate we conform, yet we case; licity in the voca- beings human men, our fellow with we of what part it as accept therefore we tion, and much has so attracted a case expect have widely publicized, has been so attention, over have been utterances which there concerning unduly have public press, in the radio, . . . of this case importance [W]e accentuated in that degree slightest in the be influenced shall and arriv- discussion, deliberation, dispassionate calm which we under under institutions a verdict ing at the Ameri- proud: are concerning which we live, and of a trial.’ the conduct way of can ‘Amer- concept traditional that the “It seems a trial,’ of a particularly of the conduct way ican of de- as that offense such a sordid criminal trial for un- mentioned so aspects both the fendant, includes hand over- Mr. Hill: on the one derstandingly by communication, of mass media of stimulation, by gruesome; in that which is interest public usual immune judge jury hand a trial the other Stroble, 36 People v. Cal. passion.” public from the 330, 2d 333-334. 620-621, P. 2d of the rec- reading own on the California court’s Thus, guilt and adduced tending to establish circumstances ord, begun the trial even before had outside the courtroom *17 actively media, and other avidly exploited by press were sanctioned the The State court by prosecutor. promoted ingredient but as an inevitable only permissible as not this That contradicts justice. of criminal sanction American guilt on the as to establishment of professions all our the subject to courtroom, in the place basis of takes what gen- in in the judicial proof and producing restrictions are of course Jurors proceedings. of the eral conduct in of intentions with the best and even beings human of Holmes phrase in well-known are, the they the world likely impregnated to be “extremely Hughes, JJ., Mangum, 237 Frank atmosphere.” environing the by of feeling the Precisely because 349. 309, 345, S.U. kept care, utmost be cannot, with the outside world the be must every endeavor the courtroom wholly outside have To keep trial to it outside. in a taken civilized with evidence press feed the prosecutor the himself in anticipation press ought publish to no self-restrained through prose- the itself a trial is to make the State of participant a conscious cutor, power, who wields its those methods which by instead of by newspaper, indispensable to be experience have shown centuries with all its Science justice. fair administration determining given us instruments advances has has newspaper exploitation impact when the of such bound powerful impression or whether the spent itself preceded here inflaming articles as by be made such average juror by the mind dissipated trial can be in court. pedestrian proceedings the tame often found that Supreme Court of California Moreover, notorious trial “there was at the time of the by sensationally exploited widespread public excitement, concerning against crimes newspaper, television, radio and particular.” children and defendant’s crime I a conviction which agree uphold And so cannot instigated affirmatively newspaper participation treats concept traditional part as of “the prosecutor ” passion of a trial.’ Such way ‘American of the conduct explained be stirred this case can newspapers as revolting exploitation from mere (apart commercial orderly in the course crime) want of confidence only as press by prose- allow justice. To such use im- undisciplined, here left cution as the court California *18 left guilt that cannot be plies either the ascertainment impatience of law or with processes to the established judicial may of the which aspects process those calmer satisfy natural, primitive, popular revulsion but do second against horrible crime vindicate sober If thoughts community. guilt clear, dig- of a here is nity by establishing of the law would be best enhanced guilt wholly through processes by of law unaided passion. the infusion of extraneous The moral health of community strengthened by according is even the most and pathetic rights miserable criminal those which designed Constitution has all.

As to one other I opinion branch the Court’s must enter a caveat. This legal significance concerns the confession, first the one made to the dis- trict attorney. Supreme disposed The California Court this coerced confession as- .claim suming was, that it but finding that the fact was imma- later, voluntary terial because of so-called confessions. I agree my with brethren that this view disregards our York, decision Malinski New 324 U. S. 401. But I agree that, cannot despite the refusal of the California Su- preme Court to affirmatively determine the legal character of this first confession, this Court may do so here on its own independent interpretation of the facts. That con- clusion at all does not follow from the fact that we make such a at least determination, upon the undisputed evi- dence, when the State court finds the confession to be free of constitutional question defect. The whether or not a confession is coerced involves a complex judgment upon facts inevitably entangled with assumptions and standards part parcel are of the ultimate issue of con- Baumgartner States, stitutionality. See v. United U. S. 670-671. finding The of “fact” that a confes- sion is voluntary may involve application of improper standards to the evidence, and thus the denial of a con- different wholly aBut accused. right stitutional *19 concludes a State court when presented is situation factors complicated inevitably into entered coercion that constitutes totality of circumstances in the included a confession. but undisputed, be may items of evidence

Moreover, most rudimen- except the “Facts,” meaning. not their them- identify lodge of a who members are not like tary, an has denied a State court by badges. When selves fore- court cannot right, the State constitutional asserted merely the federal claim considering from Court close this ifBut a State a “fact.” of coercion labelling absence by knowl- intimate light in the of its reading the record court, methods, should police prosecutorial of local edge I believe coerced, cannot was that a confession conclude and decide appraisal aside that would set that this Court free and wholly was the confession independently all the cases which not fortuitous that It is self-willed. by the that it was not foreclosed has indicated this Court in which have been cases of the court determination State find- by constitutional claim rejected the federal the State voluntary. ing the confession of the an determination believe, as I affirmative

Since, coerced was that the confession Supreme Court California I here, would, not be reexamined not and should would say for that court case, remand aspect this on assumption, and not as judgment or its not, whether involuntary. the first confession Mr. Black Douglas, whom Justice with Mr. Justice concurs, dissenting. be- obtained illegality of confessions

My views arraignment are contained time of arrest tween the Penn- Indiana, 56-57; Turner v. 49, v. 338 U. S. Watts Carolina, 62, 66-67; Harris South 338 U. S. sylvania, practice obtaining The confes- S. 71-73. 338 U. and the third-degree breeds the arraignment prior sions police lawful for as it remains long As inquisition. will coerced confessions incommunicado, persons to hold of due commands trials in violation infect criminal of law. process police of this the evils this case illustrate facts of

The by held being the defendant While practice. him. lawyer tried to see arraignment, prior to police It was repeated requests. lawyer’s police The refused lawyer was that the was obtained a confession only after lawless con- This was prisoner. to talk with the allowed It Court of California. Supreme duct, condemned that pro- it was conduct only conduct; lawless was not *20 duced confession. obtained con- subsequently well as

This confession as the later trial. The fact were used fessions or used is lawfully have been obtained may confessions infects the illegal For confession immaterial. once no matter guilty must be set aside trial, the verdict be. Malinski may how free of taint the other evidence York, New S. 401. U. talking started

Moreover, the fact accused prior he arrested and to the time he was shortly after Attorney before the not save the case. taken District does accompanied preceded by That talk or blows Supreme and the Court of police; kicks California part that it was of the first parcel assumed confession through “physical psychological obtained abuse or torture or a two.” combination