222 F. 2d 698 - United States Caminito v. E Murphy

The sole evidence of Caminito's guilt consisted of his signed pre-trial confessions. At the trial, his counsel timely objected to their admission, and moved to strike them on the ground that they had been unconstitutionally procured; he also moved to dismiss the indictment on the ground that the State had not proved Caminito guilty. Caminito testified that the police had coerced the confessions. The trial judge left to the jury the question whether the confessions had been thus induced. The jury, by returning a verdict of guilt, found that they were voluntary.

Caminito testified that, before giving the confessions, the police had beaten him. As the police testified to the contrary, we shall ignore that part of his testimony. But the following facts are not disputed.

(1) Caminito was taken into custody by the police on Sunday, May 11, 1941 at 6 P. M.

(2) Commencing about 9 P. M. Sunday, he was continuously interrogated by five or six police officers for a period of approximately five hours, until 2 A. M. the following morning, Monday, May 12th.

(3) At 3 A. M. on Monday, May 12th, he was locked in a cell in which there were no bed, blankets, spring or mattress, but only a wooden bench.¹ (He testified that the cell was unheated. A witness for the State testified that the cell was equipped with a radiator but that he "did not know if the heat was on" during the time Caminito was there confined.)

(4) At 10 A. M. on Monday, May 12th, the questioning was resumed. The interrogation continued all day, with several detectives taking turns.

(5) Members of Caminito's family, his friends and an attorney retained by the family, called at the station house where he was detained and tried to get information concerning his whereabouts. The police officers knew these facts, but kept him incommunicado. Other than the police and the District Attorney, no one was permitted to see him until he was arraigned forty hours after being taken into custody.

(6) During the afternoon of Monday, May 12th, two women and a man were brought in to face Caminito. He was not told that they were detectives. Each falsely pretended to identify him as the person who was sitting at the wheel of the automobile at the time of the shooting, which occurred in connection with the holdup.^1a

(7) About 9 P. M., Monday, May 12th, twenty-seven hours after having been taken into custody, he signed a confession. He gave a second confession to a District Attorney a short time later.

(8) About 2:30 or 3 A. M. the following morning, Tuesday, May 13th, he was first placed under arrest.

(9) He was brought before a magistrate later that same day, more than forty hours after having first been taken into custody. The arraignment could and should have been held long before that time. The police officers knew that the courts were open for that purpose.2

(10) Caminito had never been previously arrested or convicted.³

These facts make it clear that the trial did not measure up to the standards prescribed by the due process clause of the 14th Amendment. The confessions obtained by these loathsome means were no more evidence than if they had been forged. Absent, then, any admissible evidence of guilt, the trial judge should have dismissed the indictment or directed a verdict of acquittal. To jail a man convicted without evidence of guilt is to impose "involuntary servitude" which, "except as a punishment for crime," the Thirteenth Amendment forbids. Only in Erewhon, which recognized "the crime of being maligned unjustly,"^3a could this conviction be justified.

Alone or together, neither the unlawful detention for many hours nor the deceit in confronting Caminito with disguised police officers who lied in identifying him4 would suffice to vitiate the confessions as unconstitutionally obtained. But those factors did aggravate the following unconstitutional practices which — even in the absence of those factors — rendered the confessions inadmissible: (a) The police interrogated him almost continuously for 27 hours, with but a brief interval for rest in a cell so badly equipped as to make sleep virtually impossible for a man already harried by the questioning. (b) During this long period, the police, in effect, kidnapped him: They kept him incommunicado, refusing to allow his lawyer, his family, and his friends to consult with him.

Accordingly, the writ of habeas corpus must issue. See Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L.Ed. 224; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L. Ed. 1029; Ashcraft v. Tennessee, 322 U. S. 143, 64 S.Ct. 921, 88 L.Ed. 1192. Whether Leyra v. Denno, modified Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 — and if so, how far — we need not consider, as the undisputed facts here distinguish the instant case from Stein. Why the upper New York courts did not reverse the conviction we do not know, as they filed no opinions.

All decent Americans soundly condemn satanic practices, like those described above, when employed in totalitarian regimes. It should shock us when American police resort to them, for they do not comport with the barest minimum of civilized principles of justice. It has no significance that in this case we must assume there was no physical brutality. For psychological torture may be far more cruel, far more symptomatic of sadism. Many a man who can endure beatings will yield to fatigue. To keep a man awake beyond the point of exhaustion, while constantly pummelling him with questions, is to degrade him, to strip him of human dignity, to deprive him of the will to resist, to make him a pitiable creature mastered by the single desire — at all costs to be free of torment. Any member of this or any other court, to escape such anguish, would admit to almost any crime. Indeed, the infliction of such psychological punishment is more reprehensible than a physical attack: It leaves no discernible marks on the victim.⁵ Because it is thus concealed, it has, under the brutalitarian regimes, become the favorite weapon of the secret police, bent on procuring confessions as a means of convicting the innocent.

Caminito testified as follows as to why he confessed: At 10:30 P. M. on Monday, May 12th, the police allowed him to talk to Noia who had been similarly subjected to prolonged questioning. "He said, `Let us give them (the police) the same story they gave us.' He says, `It would not mean anything. * * * We can see a lawyer this way. We will tell the lawyer what happened, and they cannot do us nothing. We did not do it. You don't have to worry. You can prove where you were, and I can prove also.' I said `No it is not right.' He said, `How long can I stand this? * * * Let us make up the story they gave us and give them the same story and get it over with.' * * * So I told him the story that the detectives had told me of what happened, as I had heard maybe fifty times, so he said, `That is the story they told me.'" They then agreed to confess. While confessing, when Caminito did not know the desired answer, the police captain told him what to say and he said it. "They put the words right in his mouth." He "gave those answers for fear." We do not rest our decision on that testimony:6 Even without it, we are bound to infer, on the undisputed facts, that something of the sort actually happened. For his testimony in this respect closely resembles many reports of those who, behind the Iron Curtain, after like treatment, confessed to crimes they had not committed.⁷

Aristotle, thousands of years ago, wrote of torture "that people under its compulsion tell lies quite as often as they tell the truth, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner. We ought to be able to quote cases, familiar to the judges, in which this sort of thing has actually happened. We must say that evidence under torture is not trustworthy, the fact being that many men whether thickwitted, tough-skinned, or stout of heart endure their ordeal nobly, while cowards and timid men are full of boldness till they see the ordeal of these others; so that no trust can be placed in evidence under torture."8 In the 16th century, Montaigne said that tortures "seem to be a test of endurance rather than of truth. For why should pain rather make me say what is, rather than force me to say what is not? * * * The effect is that the man whom the judge has put to the torture, that he may not die innocent, is made to die both innocent and tortured."

It is imperative that our courts severely condemn confession by torture, the so-called "Third Degree." To treat it lightly, to condone it, encourages its continued use, with evil effects on the police: The official who utilizes the Third Degree, since he violates statutes and the Constitution, is himself a criminal; and his infliction of torture on others brutalizes him.⁹

Hall remarks^9a on the "startling fact that there is hardly a single physical act of brutality inflicted by the * * * N.K.V.D. which American policemen have not at some time perpetrated" (but adds that our police are less "scientific" about torture). The important difference is that in Russia the coercion of confessions is (at least with respect to some subjects) legal and avowed while with us it is always illegal and secret. That difference is basic: It means that we have a principle of justice on which we can rely to bring such coercion into disrepute and disuse.

That principle the police traduce when they act on the theory that, to discharge their duty, they have the authority to dispense with a suspect's constitutional privileges because they believe him guilty. For it is not the function of the police in our democracy to determine a man's guilt.^9b

Trials fairly conducted have, alas, led to the conviction of some innocent men.10 All such tragedies cannot be avoided even in the best contrived of legal systems. But surely we dare not permit tragedies of that sort to result from confessions by torture. One shudders to think what happens to an innocent man sent to jail.¹¹ Bitter, resentful, he may become an apt student">student of the hardened professional criminals he meets in jail, and thereby be converted from innocence into real criminality.12 If he withstands such a conversion, he will, as a marked man, when released, have a hard struggle to earn an honest living.¹³ If again charged with crime, he will encounter a serious difficulty at a trial: If he takes the witness stand, his previous conviction will count against him; if, on that account, he does not testify, his silence will adversely affect him. And let it not be forgotten that police zeal to convict an innocent man means often that the guilty man escapes punishment.

We have here at some length expressed our abhorrence of confession by torture for this reason: That practice is unknown in England where, to our shame, they call it the "American method." There are those who say that American conditions compel such official resort to crime to catch and convict criminals. The absurdity of such a view is evidenced by the fact that our most effective American police force, the FBI, abjures this execrable method and, in its school for state and city police, teaches that the "third degree" is both detestable and inefficient. Because proof, in court, of its use is most difficult,^13a the only real hope for its eradication lies in the educative influence of such police as the FBI, so that all our American policemen will be trained to detest it.14 Repeated and emphatic judicial denunciations of that barbarism — whenever it is exposed, as in this case — can help to that end. Until that end is realized, the many decent police officers, in a police force generally addicted to that practice, will find themselves at so grave a disadvantage that sooner or later, they may, if they do not themselves indulge in it, at least acquiesce in it. For the accustomed ways of any group usually come to seem the right ways. As Chesterton said,¹⁵ "The horrible thing about all legal officials, even the best, about all judges, magistrates, detectives and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent); it is simply that they have got used to it."

At any rate, as long as many policemen third-degree the helpless, the public will tend to believe that all police officers do likewise, that police brutality, although unfortunate, is normal. (That such a belief is widespread, anyone can see who reads the hundreds of popular, hard-boiled, detective novels.) As a consequence, the public suspects that almost all policemen deal brutally with suspects. Accordingly, the citizenry do not regard the police with respect, and fail adequately to cooperate with the police, a cooperation without which the police in a democracy cannot efficiently perform their lawful functions.^15a Worst of all, public cynicism develops concerning the basic ideals expressed in our constitution.

As we said in 1947, in In re Fried, 2 Cir., 161 F.2d 453, 459-460: "The `third degree' and cognate devices alarmingly persist in this country. The reports of the United States Supreme Court alone disclose eight cases in the six years 1940-1945 in which convictions were reversed because of the use of coerced confessions. The indications are that the following statement, made in 1930 by a Committee of the American Bar Association, could be made today: `It is conservative to say that for every one of the cases which do by a long chance find a place in the official reports, there are many hundreds, and probably thousands of instances of the use of the third degree in some form * * *.' Until such miserable misbehavior is stamped out, it will remain an empty boast that we have, and that we respect, a Constitution which guarantees civil liberties, blocks representatives of government from lawless incursions on the rights of the individual. As possible prosecution of offending officers and civil actions for damages against them seem to have no practical value, the courts, unfortunately, can do little to eliminate these evils; but what slight powers they have to do so they should vigorously exercise."^15b

Recently many outstanding Americans have been much concerned — and justifiably — with inroads on the constitutional privileges of persons questioned about subversive activities.16 But concern with such problems, usually those of fairly prominent persons, should not blind one to the less dramatic, less publicized plight of humble inconspicuous men (like Caminito) when unconstitutionally victimized by officialdom. It will not do to say — as some do — that deep concern with such problems of the humble is the mark of an "old-fashioned liberal." For repeated and unredressed attacks on the constitutional liberties of the humble will tend to destroy the foundations supporting the constitutional liberties of everyone. The test of the moral quality of a civilization is its treatment of the weak and powerless.

Reversed.

CLARK, Chief Judge (concurring in the result).

Since the coercion here was so much more direct and extensive than that in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948, I agree that we must reverse on the authority of that case. But however much I support in the abstract the severe criticisms of police methods voiced in the opinion, I do not believe it helpful so to stress them here in derogation of a great state court which has the primary responsibility for law administration in this community. Since no court really rejects altogether evidence by way of confession or from the informer, the question becomes one of degree; and I can respect the views of the state judges as rationally developed, even though I must disagree. Nor do I have basis for selectivity among law enforcement agencies or among forms of crimes in reaching the result or apportioning criticism. Therefore I prefer to limit myself to the facts here and eschew the more general admonitions.

I am led more readily to this caution because I doubt the utility for dignified or effective law enforcement of review and overturn by any federal judge of the reasoned conclusions reached by a whole hierarchy of state tribunals. We are properly charged with supervising the trials in the federal district courts, but our sphere of superintendence should not extend to state police activities; there the state courts should have the burden, subject only to certiorari by the Supreme Court in the few cases where needed. Consequently the pending legislation to that end, drafted by a committee of the Judicial Conference of the United States and supported by the Conference of State Chief Justices, seems wise policy. Meanwhile, however, our duty in premises such as these is clear, and needs no particular amplification or embroidery.