Atchley v. California

PETITIONER:Atchley
RESPONDENT:California
LOCATION:Trailways Bus Terminal

DOCKET NO.: 95
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 207 (1961)
ARGUED: Apr 25, 1961
DECIDED: May 01, 1961

Facts of the case

Question

  • Oral Argument – April 25, 1961 (Part 2)
  • Audio Transcription for Oral Argument – April 25, 1961 (Part 2) in Atchley v. California

    Audio Transcription for Oral Argument – April 25, 1961 (Part 1) in Atchley v. California

    Earl Warren:

    Number 95, Veron Atchley, also known as Jack Atchley, Petitioner, versus California.

    Ms. Asher.

    Rosalie S. Asher:

    Mr. Chief Justice, may it please the Court.

    Before embarking appointed discussion of the case in its merits, I should like to correct a misstatement or an ambiguity appearing in our reply to respondent’s brief.

    At page 9 in discussing the case of Ziang Sung Wan versus United States, it might appear that we argue that later cases require a Fifth Amendment to be made applicable to state prosecutions.

    Counsels are aware that such is not the rule.

    We are aware of Twining versus New Jersey and Adamson versus California.

    We can only apologize and explain that this error resulted when as a — the matter — as a result of the matter and the haste of which the response was necessarily prepared, the argument was not fully developed.

    What should have been further stated is that without claiming that the Fifth Amendment operates to restrict the State of California, we do maintain that all of the factors in this case must be considered in their totality to determine whether or not, this petitioner has been deprived of his rights under the Fourteenth Amendment and that the mere absence or presence of threats or promises standing alone is not determinative of the fact as to whether or not the confession was coerced.

    The voluntariness of that confession is the crux of this case, in determining which all relevant factors are to be examined.

    There is a personal experience in stature of the defendant.

    There is trickery and connivance in securing his tape recorded confession.

    There is secrecy as well.

    The defendant’s repeated request for counsel having been denied.

    All of these are methods, which history tells us, were involved during the inquisition, when the inquisitors demanded as the State would appear to demand for the police in this case, he completely freehand.

    These techniques have survived in authoritarian countries today where setting neighbor, to spy upon neighbor is not uncommon.

    And just so, as will be demonstrated, did the State set Mr. Travers to engage in conduct which is a kin to spying.

    We know from Chambers versus Florida and countless other cases that lawless means, irrespective of their ends, are not necessary to uphold the laws and are forbidden by the Constitution.

    Such practices likewise are inimitable to the accusatorial system, which many cases, including Watts versus Indiana and as recently as Rogers versus Richmond, have declared to be the law of the land under our Constitution.

    Jack Atchley is not really the primary concern in this case.

    Men have been executed before him on their own confession for homicide.

    Doubt was more of a follow.

    But the vital consideration is the Constitution and whether under the Fourteenth Amendment, these confessions have been honestly secured.

    If this requirement is satisfied, no state conviction will be challenged, for no one condones murder and were all agreed that one who takes a life may not go free.

    But very naturally is to be executed in the name of justice and justice, as it has delineated for the States by the Due Process Clause, is not satisfied, if he be executed upon his own confession, say that confession be honestly, freely, openly and voluntarily secured.

    As this Court knows, the criterion has been stated in countless ways.

    One being that a confession must be the product of a defendant’s freewill.

    Freewill is a concept troublesome, I think, to philosophers as well as to jurists.

    And it’s probably alludes in all embracing definition, but neither philosophically nor legally, it is submitted can it be said that a man is exercising his freewill, making a free choice, either to confess or to deny when, because he has duked and deceived, he is not aware that he is confessing.

    John M. Harlan II:

    Could I ask you a question?

    Rosalie S. Asher:

    Certainly, Mr. Justice Harlan.

    John M. Harlan II:

    Was — was this episode before or after the defendant’s arraignment?

    Rosalie S. Asher:

    My recollection is that it was prior to arraignment.

    However, I would like to confer with counsel who tried the case.

    John M. Harlan II:

    Prior to what?

    Rosalie S. Asher:

    It was prior to the arraignment, Your Honor.

    John M. Harlan II:

    Prior to the arraignment.

    Rosalie S. Asher:

    We maintain that this confession was not freely self-determined, which is the phrase as the Court knows that — it is used in it — most recent confession case.

    This was not so much a confession elicited against the freewill of the defendant as one extracted, absent his will.

    Briefly, to review for the Court with its permission to salient facts, Atchley had been arrested in the night, detained and questioned.

    He had consistently denied in conflicting stories that must be admitted, commission of the crime.

    He had several times asked for an attorney that these pleas had gone unheeded.

    Then he sent for his — his friendly insurance agent, Mr. Travers.

    They talked.

    Upon leaving, Travers was stopped by the undersheriff and asked whether or not he would again interview Atchley and would permit the second conversation to be recorded.

    He readily agreed.

    Atchley had no knowledge of this.

    Travers did not advise him of the inducing — inducing course of the second conversation, that is to say the request of the undersheriff.

    Travers did not mention that a recording was being made.

    He did not cautioned Atchley that anything he said might be used against him.

    John M. Harlan II:

    Was the substance in the first conversation he has had, the same as the second conversation that was recorded?

    Rosalie S. Asher:

    Your Honor, that cannot be certainly stated.

    All that appears in the record is that Mr. Travers’ testimony was that the two conversations were substantially the same, they had to come mixed in his mind.

    There is no — as I — as I have see — have read the record.

    There was no testimony from Mr. Travers as to the complete question and answer of the earlier conversation.

    Potter Stewart:

    Is it true that the — the tape recording was substantially the same as the — as the testimony of the petitioner on the trial case?

    Rosalie S. Asher:

    This is in essence, true, but we maintain that — that doesn’t really reach the constitutional issues.

    Potter Stewart:

    No, I just want to know the facts of that.

    Rosalie S. Asher:

    Yes, Your Honor.

    Potter Stewart:

    Are the tape recording in issue is what begins on page 194 of the record?

    Rosalie S. Asher:

    That is correct.

    Earl Warren:

    Had the petitioner made any — any other incriminatory statement before this statement to this one?

    Rosalie S. Asher:

    He had made several statements conflicting, but none of them which were really incriminatory.

    He had attempted to explain his whereabouts, the time of the crime and the commission of the crime.

    But up until this time, if memory serves, as this Court is aware, I did not try did case and I’m relying on a rather poor memory.

    He had actually denied commission of the crime.

    Earl Warren:

    Well, have he admitted being present at the scene of the death of this — of his wife before?

    Rosalie S. Asher:

    There were three or four previous interrogations.

    Earl Warren:

    Yes.

    Rosalie S. Asher:

    In some of those, he denied being present at the scene, but in some, he admitted being there.

    Earl Warren:

    And was that — when he had — the statement he made concerning his being there, essentially different from what he related to this man?

    Rosalie S. Asher:

    Yes.

    In relation to the time when he was there, the time he was on the premises where the homicide occurred and his — his activities in going a little shed in the back of the house and coming in around the corner as his wife, the decedent, arrived home.

    At one time, he gave a different story also as to who had the possession of the gun and keep claiming on one occasion, that she was the one who came armed.

    We would call attention to the fact that Travers, who conducted this tape recorded interrogation, was astute, trained and cunning and that Atchley was not his peer in experience with law enforcement and investigational methods.

    Although they are strong words, advisedly we will say that here is a conspiracy — a confession coerced by conspiracy.

    A conspiracy to which the State was a party and all the more and wholly because the California constitution commands just as does the Fifth Amendment, that in a criminal case no person shall be compelled to be a witness against himself.

    The purpose of this conspiracy seems clear from the record.

    It would be exceedingly naive to think that the undersheriff suggested a recorded conversation of any concern for the interest of the suspect, Atchley.

    And is a fair inference that Travers too, intended to secure a confession which would in turn secure a conviction.

    As will be later more fully developed, he presented himself to Atchley as a friend and not as the agent of the law which he had in fact become.

    Now it may be that his original agreement to re-see and re-interview Atchley, standing alone, would not be overwhelming evidence as such an intent, but when we look to the manner of his questioning, whether it was consciously employed or from the habit of his prior conduct of such investigations as a deputy sheriff in Nevada.

    It leaves little room for doubt that he became an active agent in furthering the determination of the deputy to secure a conviction.

    The questioning teams with leading questions and Travers was very careful to omit no relevant fact concerning a homicide.

    Justice Stein versus New York tells us that violence is inherently coercive and of no social value in solving crime, so it is with methods shown here.

    Treachery and deceit they submitted are just as employed to society.

    As the methods employed in Rochin versus California of innocence of justice, so do these techniques.

    In all of the situations, the State has so-conducted its criminal prosecution as to offend the sets of justice and in the end, to deny defendant a fair hearing in substance.

    The defendant is as much wronged as where — as much wronged under the Fourteenth Amendment as where further testimony has knowingly been used to convict.

    The question would raised by (Inaudible).

    Rosalie S. Asher:

    In the one instance, the State has lent — in both instances, the State has lent itself to deliberate deception, in the one case, a deception of the court and the jury, in the other case, a deception of a defendant.

    In neither instance is justice done.

    There are impositions upon the individual other than violence which shock the sensibility and offend the conscience.

    And the unfairness of the State here acting as of course it must through its agents, it is submitted, is just such an imposition.

    We feel that this case much resembles Leyra v. Denno in crucial errors — areas, even though we will of course concede that in Leyra, the defendant’s fatigued much more clearly appeared and that his illness was an additional fact.

    As the Court will recall, that was the case where a state-employed psychiatrist by subtle and suggestive methods, continued the efforts of the police to induce the defendant who was without counsel to admit his guilt.

    The cases differ in four particulars, but the distinctions if they have any effect, would seem to make the confession here all the more vulnerable.

    First in Leyra, the New York court had recognized that the confession had been coerced and by promises of leniency and it was excluded from the jury’s consideration, the question coming to this Court being with regard to a subsequent confession.

    Here, the confession was placed in evidence.

    The tape was played to the jury who were thus exposed to the impact of the defendant’s own voice.

    As with Omar’s Moving Finger, which having rich moved on, not all such piety or wit has very naturally might have had, could ever have wiped out a lion from the minds of the jury.

    And then they submitted that from reading — a reading of the record is rather clearly and pathetically appears that Atchley had neither.

    The second distinction is that in Leyra, it was the psychiatrist who — to — elicited the confession.

    Here, it was the defendant’s own insurance agent, a former deputy sheriff.

    Just as the doctor uses psychiatric training in bringing out the confession, so did Travers make use of his former training and experience in law enforcement.

    Moreover, it was the police who introduced the psychiatrist to Leyra.

    Atchley himself had telephoned for Travers and he had no possible way of knowing that Travers was acting at the instigation of the police when he was questioning him.

    Whether Leyra was or should have been suspicious and on his guard is beside the point.

    Atchley had not the slightest ground even to suspect that Travers had any connection with the State.

    He regarded him as his friend, there at his request and presumably, to help him.

    Third, the record shows or rather in Leyra, the psychiatrist was on a State’s payroll.

    Here, for all the record shows, Travers received nothing for his connivance with the officials.

    To mention the difference is to destroy it for certainly, due process does not hang by so fine a thread.

    Finally, in Leyra, it appears that threats and promises of the sort were made.

    However, it does not so clearly appear that coercion — the coercion which was found to exist, depended upon this fact alone.

    As we read the case, it was because the facts were irreconcilable with the defendant’s mental freedom to confess or to deny that rendered the confession obnoxious to due process.

    And it is submitted very naturally, had no more mental freedom than did Camilo Leyra.

    In Spano versus New York, the undeviating intent of the police to secure from the defendant a statement which would convict him was manifested by sympathy falsely aroused.

    There Spano, after his arrest, had employed an attorney who counseled him to answer to questions.

    Spano followed this advice until Officer Bruno, a friend of his, importuned him into confessing via false stories to Bruno’s being in trouble.

    Rosalie S. Asher:

    But Spano knew that his friend Bruno was a police officer and he knew too that he was making a confession of crime.

    Atchley had no such knowledge.

    There is one parallel between the cases.

    Spano’s confession was secured after he had unsuccessfully tried to see his attorney.

    The situation does not differ here or Atchley had unsuccessfully sought to contact an attorney.

    The ruling in Spano as the Court knows, did not reach the question of whether the confession obtained following indictment in the absence of counsel, must by — for that reason be excluded.

    For it was found the use of the confession was inconsistent with the Fourteenth Amendment, so the fact that Spano may have been indicted, whereas here, Atchley had not been arraigned is of no moment.

    There also appears a strong factual similarity to the case of Malinski versus New York.

    There, the claim of physical violence was rejected and it was also found the record contained no persistent, incessant or grueling question.

    But Malinski was held in incommunicado and he was denied the right to see an attorney although he requested one.

    And he was permitted to see no friends with one exception, the friend to whom he made confession.

    Our position is of course that just as Malinski’s confession was a fruit of coercion, so as these petitioners.

    We would distinguish Lyons versus —

    Earl Warren:

    Is it your — is it your position that the petitioner made this statement to Atchley or Ashers, whatever his name was, (Voice Overlap) in confidence or that he made it with the idea that it — it should be given currency?

    Rosalie S. Asher:

    I would say that he had — the idea that would be given a limited currency perhaps.

    He thought and Travers several times told him, it was for the purposes of being transmitted to the insurance company.

    His main purpose in — in having this discussion with Travers as it appears in the record, was this matter of insurance.

    Now, Atchley was not the beneficiary, but he was attempting to arrange the insurance claims to the one man who would handle these things for him.

    Now, it cannot be denied that he knew that this was to go to the insurance company.

    That we say that it is the — the lack of caution, a cautionary warning of some sort by Travers stands on a far different basis then would be the fact, if this were one of the undersheriffs or the district attorney, deputy as to whom Travers or Atchley had been discussing the matter.

    In that case, he would — I think almost be presumed to know that anything he said would be used in subsequent court proceedings.

    Here, I think it — it’s a very fair inference that he had no knowledge, that his conversation with Travers would be used as it was.

    William J. Brennan, Jr.:

    But do I correctly understand though that Mr. Travers testified that when — when he first interviewed Atchley 10 o’clock that morning interview, that Travers volunteered everything which subsequently, than appeared in the tape recording.

    Rosalie S. Asher:

    That is correct Mr. Justice Brennan.

    I believe the record does show that the first conversation as to which there is — I pointed out and was no direct evidence.

    At that time, Atchley volunteered the information.

    William J. Brennan, Jr.:

    Well now, I — if you already suggested to the Chief Justice that the — he had an impression of a limited circulation, namely that Travers was taking a report for the insurance company.

    Rosalie S. Asher:

    This is true.

    William J. Brennan, Jr.:

    But there wasn’t any suggestion at any time either the first or second interview by Travers was there to Atchley that this would be the only use made of the statement?

    Rosalie S. Asher:

    I don’t believe that he specifically said that.

    Rosalie S. Asher:

    However, I think that by doing so, it’s an additional act of deceit upon his part, because he knew that he was back there the second time.

    At the instance of the authorities, he knew the conversation was being recorded and instead of — he gave no hint of any of this to Atchley.

    Instead he repeated.I think it appears three or four times in the taped conversation, “I have to get all of these for the insurance company.

    Come now, give me all the facts.”

    In essence is what he told him.

    We maintained that he actually drew the defendant’s thoughts away from the fact the he might be incriminating himself and direct —

    William J. Brennan, Jr.:

    Well actually, it was the content of the statement, the substance was exculpatory, it wasn’t incriminating, wasn’t it?

    Rosalie S. Asher:

    Yet, to a degree, yet it incriminates the — I think rather clearly appears as to the element of lying in wait and his being upon the premises there.

    Earl Warren:

    Was it — was it much more incriminating than — than the statement he made to the authorities even before he has seen this man?

    Rosalie S. Asher:

    Relying again on my recollection, because I certainly do not want to mislead the court.

    I believe that it was.

    I believe in the element of time particularly.

    Earl Warren:

    A reading from — on page 1 of the briefs, see the states’ brief at — at page 9, it says, “Petitioner at this time stated he had driven over to Gridley on the night of the shooting, parked his car about one and a half blocks away from his wife’s home, entered the premises by a way of the back alley and spent some time in the shed in the rear of the premises.

    He felt if his wife saw his car, she would not stop.

    When he heard his wife’s car come into the carport, he went around the corner of the house and proceeded toward his wife.

    His wife had a gun in her hand, which after a struggle went off several times.

    He wrestled his gun away and it went off several additional times, by then she was lying on the ground, so he took the gun, drove back to Palermo, buried the gun and concealed the — concealed the holster.”

    Now that was before he had ever — and that was at afternoon that he asked to see Travers.

    Now, is there any substantial — is — isn’t that as about as incriminating as the — the story that he did tell Travers?

    Rosalie S. Asher:

    Taking it by bits and pieces perhaps, yet here, if the Court please, he still was resisting, confessing or incriminating himself completely, in this conversation, which you have just read Mr. Chief Justice.

    Where there he says that the wife had the gun in her hand, in short that — now let’s see — I wanted to make sure I’m correct in this argument.

    Apparently, from what I — I have not checked the record in these two moments, but apparently from all that appears in the states brief, his testimony or his statement then was that it was his wife who had the gun.

    Earl Warren:

    Yes.

    Rosalie S. Asher:

    Yes.

    Then in his — his conversations, his tape-recorded conversation with Mr. Travers, Mr. Travers brought out the fact that he, Jack, the — the defendant — the petitioner here, was the one who had the gun and that he had — he had it with him all that evening in the occasion of his two trips to his wife’s property.

    Earl Warren:

    But he still claimed that it — it was accidental, that she tried to take the gun away from him and — and in the struggle, there was some shots fired and she was accidentally killed.

    That was (Inaudible) —

    Rosalie S. Asher:

    That was the essence —

    Earl Warren:

    — as in the other one also.

    Rosalie S. Asher:

    — that was the essence of his statement to Travers and it was the essence of the defense.

    Earl Warren:

    Yes.

    Rosalie S. Asher:

    We would distinguish Lyons versus Oklahoma where there, the improper methods had been used to extract a confession.

    But the confession was not used at the trial.

    Such might have been the case in this instance, if, instead of being bent upon getting this tape-recorded conversation, the prosecution had merely presented the — Travers’ own testimony as to his morning conversation with Atchley.

    But they were not intent to do so.

    Intent on securing a confession, the police used Travers, as we have shown, the secure one.

    The prosecution adopted the fruits of the police zealousness and introduced the confession, the defendant’s own voice and words at the trial.

    Now, we acknowledge that modern scientific devices and inventions are valuable tools and maybe the instruments are further in justice.

    But nevertheless, where there is an impropriety in their use by the same token, the damage to the defendant is magnified.

    Reference has already been made to the fact that Travers did not caution Atchley in any way as to the use which could or probably would be made of a statement that he was giving.

    And we wish to disclaim any intent here to argue with the rule, his or should be as regarding — as with regard cautionary instructions from my police officer.

    I think as already indicated, we can assume that Atchley knew that he did not have to answer police questions.

    And probably that if he did, it would — they would kidding answers would be used against him.

    I would say that the fact the he had given these conflicting and contradictory stories to all of the officers who had questioned him, up to the time that Travers entered the picture would indicate he might’ve had such knowledge.

    But Travers was nothing about officer of the law.

    He wore no indicia of office.

    He was and so far as he was acting for the undersheriff, he was to Jack Atchley in disguise.

    He was one with whom actually who had had business deals.

    Atchley had telephoned and asked him to come to the jail.

    Travers was the one person he was permitted to see during this time on whom he could rely.

    Just as in the Spano case, Bruno’s was the one face visible in which he could put some trust, so was Travers to Atchley.

    He had requested a lawyer and no doubt would have relied on a lawyer, but no lawyer was permitted.

    Potter Stewart:

    What’s the evidence on — on that point?

    I know he — he testified that he asked to see a lawyer about ten times or something like that.

    Rosalie S. Asher:

    That is correct.

    Potter Stewart:

    And what’s — what was the — was that controverted?

    Rosalie S. Asher:

    That was not controverted.

    Potter Stewart:

    Did he testify that he has to see a certain lawyer by name?

    Rosalie S. Asher:

    I don’t recall his testimony on that point.

    He did state in his conversation with Mr. Travers that he had been attempting to see one particular attorney.

    Potter Stewart:

    They’ve been trying to make arrangements to have one particular attorney represent him is — is that it?

    Rosalie S. Asher:

    That is correct.

    However, I — I believe his testimony at the trial was broader than that.

    I think his words were that he asked everyone he saw for an attorney.

    Eight or ten times he asked to — to get an attorney.

    Potter Stewart:

    This man in his business had — had employed a —

    Rosalie S. Asher:

    Oh yes —

    Potter Stewart:

    — lawyer on that?

    Rosalie S. Asher:

    — unquestionably had.

    William J. Brennan, Jr.:

    Well did any of the officers who would interrogate him, were they asked when they — when they (Voice Overlap) —

    Rosalie S. Asher:

    I do not —

    William J. Brennan, Jr.:

    — whether it might to be ask for a lawyer.

    Rosalie S. Asher:

    I do not believe that that appears in the record.

    Earl Warren:

    Did he — did he ask Travers to try to get a lawyer for him?

    Rosalie S. Asher:

    Insofar as it appears from the tape recording, he did not.

    However, he did have Travers as was noted to our response, to make arrangements for the care of the children.

    We feel that the authorities in this case took advantage of Travers’ friendship with Atchley and have Atchley’s reliance upon him.

    On the occasion of his first visit, Travers was just what he seemed to be, but when he returned, he seemed to be something that he was not.

    And here in the case, Quartz Company with Ashdown versus Utah, where the defendant knew that the district attorney held that office, where he cautioned her she did not have to answer any questions and where he also told her she was entitled to the services of an attorney.

    Earl Warren:

    Was there anything in the record to — to indicate whether or not the police heard the first conversation between Travers and the defendant?

    Rosalie S. Asher:

    No, there is nothing in the record.

    The evidence on that point is rather meekly.

    Mr. Travers’ testimony was that as he was terminating the first conversation, the undersheriff stopped him and he told him that they’ve had this conversation.

    It doesn’t show actually whether or not he related the substance.

    He testified that Atchley had told him all about it.

    We believe that this can be — that this case can be distinguished from the Crooker case, where the defendant had a college education and a law school training and knew of his right to remain silent.

    Now, we’ve already disposed of this matter of knowledge of the right not to answer questions.

    Well, Atchley had only a 3rd grade education here.

    Had and has.

    It also appears from a reading of Crooker that the acclaim of denial of due process or coercion there was based almost on — did not almost entirely upon the denial of request for counsel.

    Rosalie S. Asher:

    But here, we are relying on additional factors.

    Atchley’s limited education, the repeated questioning, his lack of sleep and the fraud practiced upon him by Travers.

    Well, this Court found that Crooker had not been imposed — had not been taken advantage of, they submitted that very face of this record shows that Atchley was the most grievously taken advantage of.

    In other standard which has been suggested by some of the cases for determining the voluntariness of a confession is to look through the strength or weakness of the defendant’s will or mind and the pressures applied to his power of resistance.

    How did this case meet the test?

    In our brief, the parties have discussed pro and con, Atchley’s business acumen and success.

    Yet, perhaps on reflection, this may not be such a weigh consideration of the circumstances of this case.

    Atchley wasn’t brawl beaten into a confession, by threats or by promises.

    He was deceived into a confession he did not know he was making.

    He thought he was arranging insurance business.

    Theretofore by his own methods, he had resisted the efforts of the authorities to obtain a confession from him.

    Once again, Spano comes to mind.

    Spano resisted by following to a point.

    By following his attorney’s advice and refusing to answer questions.

    Atchley without the benefit of legal counsel, resisted by giving false and contradictory statements to his questioners.

    He consistently resisted up to the time when he was taken in by one who he thought was acting for his best interests.

    That is to say he resisted those whom he knew to be against, but yielded to the pressures of one whom he thought was acting for him.

    I dare say that any of us regardless of education or worldly success, similarly situated, might be similarly deceived.

    But regardless of situation in life, none can breathe easily of confession obtained by these means, maybe used as the basis for a conviction.

    And yet in another aspect, it may be the fact that Atchley was unlettered and no hardened experienced criminal, does have relevance.

    Being so, he would feel all the more helpless in the situation in which he found himself.

    His repeated request for an attorney indicates that he knew he was not capable by himself of coping with the power of state, which was set against him.

    That Atchley was then some 40 years old, that his mentality has not really appear, except perhaps inferentially from the testimony as to his limited schooling and the various menial jobs he had held.

    This — this sheds no breaking light on whether or not his confession was voluntary.

    As we read the cases when a great weight is given to the youthful age of the defendant as in Payne versus Alabama or to his low mentality as in Fikes, such factors are considered with regard to the defendant’s weakness and susceptibility.

    In this light, Atchley’s lack of education and his never having been — before been charged with a major crime, do enter into the account.

    Weighing Atchley’s powers of resistance, as we have said which are indicated rather meekly in the record, against the weight of the fraud which was practiced on him.

    It is not so difficult to find coercion is present.

    It was not so much that Atchley’s power of resistance was overcome as that it was circumvented.

    That the net result is the same, the methods are — is unconscionable and the one case as in the other and both that is submitted work a denial of due process.

    Earl Warren:

    Ms. — Ms. Asher, you — you have not mentioned the statement that the petitioner made to the police before he — he made it to this Travers.

    Rosalie S. Asher:

    Well, I’m —

    Earl Warren:

    Now, are you attacking — are you attacking that also as being coerced?

    Rosalie S. Asher:

    I — in the record affords no violence, You Honor, but I say —

    Earl Warren:

    No — no grounds for attacking that.

    Rosalie S. Asher:

    You’re talking about the officer that was there?

    Earl Warren:

    Beg your pardon.

    Rosalie S. Asher:

    Well, there were several statements, but perhaps, Mr. Chief Justice, you refer to statements to Mr. (Inaudible) of the State Department of Investigation and one of the deputy sheriffs.

    Earl Warren:

    I’m speaking of the one that was made around noon on the — on the same day that he asked for his friend to come.

    He made this statement such as I read from the record to you a little while ago.

    And — and then after he made that statement as I — as I read the brief, he — he then asked to see his friend Travers.

    Now — or what I’m asking is that — do you attack the statement that he made before he ever saw Travers?

    Rosalie S. Asher:

    Before doing that, if I may, most respectfully, I would like to say that he had actually requested to see Travers before, but — and he made his —

    Earl Warren:

    Yes.

    Rosalie S. Asher:

    — phone call and Travers then arrived subsequently to this conversation to what you would referred.

    Earl Warren:

    Yes.

    Rosalie S. Asher:

    We would attack it, although perhaps not so strongly, on the grounds that still there remains denial of his request for counsel, there still remains the fact that he’s been kept sleepless as — as shown in the record.

    Earl Warren:

    Is that argued in your brief?

    Rosalie S. Asher:

    That point was not reached in the brief though.

    Earl Warren:

    You — you placed your — all your emphasis upon this statement made to Travers.

    Rosalie S. Asher:

    This, we have done.

    Feeling that if it so completely vitiates the trial, that perhaps in a sense, the other statement was of secondary importance in the light in which we are now examining the case.

    Tom C. Clark:

    Could you give me the page numbers on the counselor’s brief?

    Rosalie S. Asher:

    Give me one moment.

    Tom C. Clark:

    You don’t have them ready?

    Rosalie S. Asher:

    I think — I think they’re in our responses Mr. Justice Clark and I — I believe —

    Tom C. Clark:

    No — no — I already found them in the brief.

    Rosalie S. Asher:

    I know they appear in one of the briefs, if not in both.

    We should also like to consider the case alongside of Blackburn versus Alabama, where the defendant was probably insane and incompetent when he confessed.

    Have put differently, his mental illness was one cause of the confession with being involuntary.

    Rosalie S. Asher:

    Here, having been duked as a result of a conspiracy between Travers and the undersheriff, Atchley’s confession was likewise involuntary.

    In the one case, it was the mental condition of the defendant created by his own illness, which prevented him from exercising his freewill.

    In the other, here, it is the defendant’s mental condition as created — created by the artifice of the State, recognizing as in Blackburn that we are necessarily dealing with probabilities.

    It may be that Atchley would still have confessed had he been afforded his — all of his constitutional safeguards.

    Ultimately, this Court of courts will determine the effect of the circumstances of Atchley’s freewill.

    It is respectfully urged that it may be pertinent to a determination of this fact that repeated interrogation of one who is ignorant of his rights, cut off from his friend and denied the aid of an attorney, may be a coercive technique, if not one of intimidation or of torture.

    We feel that the methods here employed are just a sacrificial of human values as were those which were condemned in Blackburn.

    The matter of a way to be accorded the decision of California Supreme Court has been — have been discussed adequately, we believe, in the briefs.

    And — but one short moment will be devoted to it now.

    We have noted in our response that in upholding the — the judgment of conviction, the California court did so impart upon the fact that the defendant had not suggested the recorded statements were untrue.

    In addition, as we did not argue in the brief, they held the — deception practiced upon the defendant was — was not — did not render the statements inadmissible for the stated reason that it was not of a type reasonably likely to procure an untrue statement.

    It is submitted that the decision of the state court thus shows on its face that it did in fact settle the question of admissibility by giving consideration to the probable truth or falsity of the confession.

    A standard, which now appears clearly impermissible, was Rogers versus Richmond.

    That being true, the state determination is entitled to little weight here and it remains for this Court on the undisputed facts of record, to weigh the case against the standards of the Fourteenth Amendment and to determine whether or not, this was such a coerced and involuntary confession as to fall without the bounds of due process.

    What would be the effect of a formal conviction?

    One result would be to lend support to the idea that the police can do no wrong, which in turn would lead to that inquisitorial system without safeguards, which was condemned in Watts versus Indiana.

    It would portend the situation that then caused envisage when he said, “It is all right to preserve freedom in constitutions, but when the spirit of freedom has freed from — fled from the hearts of the people, then the matter is easily enough sacrifice under the law”.

    And what if the conviction is struck down because of the mean dues to secure the confession in which it — in so large part rests?

    It will place no undue burdens on the police in the proper and necessary exercise of their functions required for the protection of society.

    It will merely enunciate once again the doctrine of Malinski and Spano and Blackburn and other cases.

    That the standards of decency established by our Constitution are paramount and that in the end, illegal means are as great key dangers as — are the miscreants.

    It is right to punish crime.

    It is necessary, but some methods are more dangerous to society as we know it and more obnoxious to honest men than crime itself.

    It is submitted that to condone the methods here used to obtain a confession, is to open the doors to ever widening abuses of constitutionally secured rights.

    Wisely as it been said that vigilance is the eternal price of liberty, to reverse because of the method of securing Atchley’s confession, would be no innovation, no new encroachment on the powers in the State of California or of any other state, in the supervision of their own criminal proceedings.

    It would be but another in a long line of cases, many of them sighted here today, applying a familiar rule, but in the exercise of their powers, the states are constitutionally limited by the provisions of the Fourteenth Amendment.

    It would merely delineate one more set of facts, which constitute a type of coercion banned by that amendment.

    So far as our research is disclosed, this Court has not yet held in so many words.

    But a confession secured by fraud, collusion or trickery, results in fundamental unfairness of equal and dignity with that caused by physical force or psychological coercion.

    Some of the language in Lisenba versus California indicates this might be the law.

    Rosalie S. Asher:

    Of course the facts in — presented in Lisenba were held to measure up the constitutional standards.

    However, we rely here not merely on a different set of facts, which appear from the record.

    But we also say that while California may adopt any rule it elect whether or not in conforme with the federal practice, it cannot by doing so foreclose inquiry in this case, as to whether the application of the rule has worked a deprivation of due process.

    Our position is that the fraud, collusion and deception here present, militate against — petitioner’s confession being the product of any meaningful act of volition on his part and hence, blocking the fundamental imperatives of justice required by the Fourteenth Amendment.

    These methods are more subtle and sophisticated than the brutal use of force present in Brown versus Mississippi.

    But no one will argue that the evils at which the Fourteenth Amendment are aimed, are no longer a consequence when confessions are merely not extorted by physical violence, regardless of how they made otherwise the coerced and involuntarily.

    Mr. Oetje John Rogge, former Assistant United States Attorney, in his book, “Why Men Confess” points out that the Communists very rarely resort — resort to physical violence in the extraction of confessions.

    He says if they do so, no more frequently than do the police in this country, for the reasons that these methods hadn’t been found not necessary and frequently self-defeating.

    Spano tells us that the safeguards of the Constitution still obtained against these sophisticated and subtle methods.

    Every step in the requirements of criminal procedure has come from the humane feelings of man.

    And as man has enlightened, has become more enlightened, laws have gradually changed and modified to conform to the — to conform to the advancing civilizations.

    They have not remained static and immutable.

    Mr. Rogge phrases this far better than I.

    He says, “The inquisitional system stands in the way of the development of equalitarian societies in the growth of human beings into mature individuals.”

    Surely we haven’t reached at least one — reached that stage of civilization, where the methods shown here are apart.

    To find that Veron Atchley did not have a fair trial is but to inform to the cases to which we have referred, to extend their rule to a different factual situation and to pronounce once again that our Constitution forbids a foothold to deception, brainwashing and other totalitarian device.

    Earl Warren:

    Mrs. Maier.

    Doris H. Maier:

    Mr. Chief Justice and may it please the Court.

    The questions discussed today are slightly different than the position taken in the petition for certiorari, which was presented to this Court.

    We plea that the basic question before this Court is whether petitioner’s conviction resulted from the employment of constitutionally impermissible methods by the State’s law enforcement officers and hence, whether petitioner was denied due process of law into the Fourteenth Amendment.

    In this, the two subsidiary questions, first, was a coerced statement used at or a confession used to this trial and second, was the alleged denial of counsel sufficient to vitiate the state proceedings.

    With the Court’s permission, I would like to state briefly the facts in this case.

    Mrs. Atchley, the petitioner’s wife, was shot and killed in her front yard in the early morning hours of August the 3rd, 1958 in Gridley, California.

    Previously, she had separated from her husband.

    On the evening of August the 2nd, she had taken her daughter and another couple to a dance and was absent from the house.

    While she was absent, at about 12:30 that evening, defendant came to the house.

    He saw no one was home.

    He left.

    He searched for another places.

    He then returned to her house with a loaded gun in his belt, parked his car a block away from her home and approached the house through the back alley.

    Doris H. Maier:

    He remained in the shed at the side premises for a short period of time and then waited at the back end side of the house until the headlights of her car appeared.

    When Mrs. Atchley appeared with her car, she proceeded to the front door of her house with the keys in her hand.

    Petitioner stepped around the house and confronted her.

    In the next few moments, Mrs. Atchley was shot some six times.

    Five empty cartridge cases were found, so close together, to show that the shots had been fired from a gun in approximately the same position.

    The victim’s clothing indicated that the gun was held at least two feet from the victim at the time of the shooting.

    Next door neighbors had been awakened during the course of this practice.

    They heard a woman cry.

    They observed petitioner in a stooping position shooting toward the ground.

    A fence destroyed their view of the body.

    They inquired as to what was going on, whereupon petitioner immediately left the scene and went back to his car, secured it and drove away at fast rate of speed.

    He returned to his home in Palermo where he concealed the holster and the gun used in the killing.

    He then went to bed.

    This was approximately 3 a.m.

    Meanwhile, the police were notified.

    They arrived at the scene and petitioner was contacted.

    Earl Warren:

    We’ll recess now —

    Doris H. Maier:

    Yes.

    Earl Warren:

    — Mrs. Maier.