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FRANKFURTER, J., dissenting.
and the pictures taken of the jury entering the box, and with counsel. . . . I don't like this added publicity in the case; and yet we conform, we cooperate with the men, our fellow human beings in the vocation, and therefore we accept it as part of what we have to expect in a case that has attracted so much attention, that has been so widely publicized, and concerning which there have been utterances over the radio, in the public press, which have unduly accentuated the importance of this case... [W]e shall not be influenced in the slightest degree in that calm deliberation, dispassionate discussion, and arriving at a verdict under the institutions under which we live, and concerning which we are proud: the American way of the conduct of a trial.'
"It seems that the traditional concept of the 'American way of the conduct of a trial,' particularly a trial for a sordid criminal offense such as that of defendant, includes both the aspects mentioned so understandingly by Mr. Hill: on the one hand overstimulation, by mass media of communication, of the usual public interest in that which is gruesome; on the other hand a trial by a judge and jury immune from the public passion." People v. Stroble, 36 Cal. 2d 615, 620-621, 226 P. 2d 330, 333-334.
Thus, on the California court's own reading of the record, circumstances tending to establish guilt and adduced outside the courtroom before the trial had even begun were avidly exploited by press and other media, actively promoted by the prosecutor. The State court sanctioned this as not only permissible but as an inevitable ingredient of American criminal justice. That sanction contradicts all our professions as to the establishment of guilt on the basis of what takes place in the courtroom, subject to judicial restrictions in producing proof and in the gen
FRANKFURTER, J., dissenting.
eral conduct of the proceedings. Jurors are of course human beings and even with the best of intentions in the world they are, in the well-known phrase of Holmes and Hughes, JJ., "extremely likely to be impregnated by the environing atmosphere." Frank v. Mangum, 237 U. S. 309, 345, 349. Precisely because the feeling of the outside world cannot, with the utmost care, be kept wholly outside the courtroom every endeavor must be taken in a civilized trial to keep it outside. To have the prosecutor himself feed the press with evidence that no self-restrained press ought to publish in anticipation of a trial is to make the State itself through the prosecutor, who wields its power, a conscious participant in trial by newspaper, instead of by those methods which centuries of experience have shown to be indispensable to the fair administration of justice. Science with all its advances has not given us instruments for determining when the impact of such newspaper exploitation has spent itself or whether the powerful impression bound to be made by such inflaming articles as here preceded the trial can be dissipated in the mind of the average juror by the tame and often pedestrian proceedings in court. Moreover, the Supreme Court of California found that at the time of the petitioner's trial "there was notorious widespread public excitement, sensationally exploited by newspaper, radio and television, concerning crimes against children and defendant's crime in particular."
And so I cannot agree to uphold a conviction which affirmatively treats newspaper participation instigated by the prosecutor as part of "the traditional concept of the 'American way of the conduct of a trial.'" Such passion as the newspapers stirred in this case can be explained (apart from mere commercial exploitation of revolting crime) only as want of confidence in the orderly course of justice. To allow such use of the press by the prosecution as the California court here left undisciplined, im
FRANKFURTER, J., dissenting.
plies either that the ascertainment of guilt cannot be left to the established processes of law or impatience with those calmer aspects of the judicial process which may not satisfy the natural, primitive, popular revulsion against horrible crime but do vindicate the sober second thoughts of a community. If guilt here is clear, the dignity of the law would be best enhanced by establishing that guilt wholly through the processes of law unaided by the infusion of extraneous passion. The moral health of the community is strengthened by according even the most miserable and pathetic criminal those rights which the Constitution has designed for all.
As to one other branch of the Court's opinion I must enter a caveat. This concerns the legal significance of petitioner's first confession, the one made to the district attorney. The California Supreme Court disposed of the claim that this was a coerced confession by assuming that it was, but finding that the fact was immaterial because of later, so-called voluntary confessions. I agree with my brethren that this view disregards our decision in Malinski v. New York, 324 U. S. 401. But I cannot agree that, despite the refusal of the California Supreme Court to determine affirmatively the legal character of this first confession, this Court may do so here on its own independent interpretation of the facts. That conclusion does not at all follow from the fact that we make such a determination, at least upon the undisputed evidence, when the State court finds the confession to be free of constitutional defect. The question whether or not a confession is coerced involves a complex judgment upon facts inevitably entangled with assumptions and standards which are part and parcel of the ultimate issue of constitutionality. See Baumgartner v. United States, 322 U. S. 665, 670-671. The finding of "fact" that a confession is voluntary may involve the application of improper standards to the evidence, and thus the denial of a con
DOUGLAS, J., dissenting.
stitutional right of the accused. But a wholly different situation is presented when a State court concludes that coercion entered into the inevitably complicated factors included in the totality of circumstances that constitutes a confession.
Moreover, items of evidence may be undisputed, but not their meaning. "Facts," except the most rudimentary, are not like members of a lodge who identify themselves by badges. When a State court has denied an asserted constitutional right, the State court cannot foreclose this Court from considering the federal claim merely by labelling absence of coercion a "fact." But if a State court, reading the record in the light of its intimate knowledge of local police and prosecutorial methods, should conclude that a confession was coerced, I cannot believe that this Court would set aside that appraisal and decide independently that the confession was wholly free and self-willed. It is not fortuitous that all the cases in which this Court has indicated that it was not foreclosed by the determination of the State court have been cases in which the State rejected the federal constitutional claim by finding the confession voluntary.
Since, as I believe, an affirmative determination of the California Supreme Court that the confession was coerced would not and should not be reexamined here, I would, on this aspect of the case, remand for that court to say whether or not, in its judgment and not as an assumption, the first confession was involuntary.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
My views on the illegality of confessions obtained between the time of arrest and arraignment are contained in Watts v. Indiana, 338 U. S. 49, 56-57; Turner v. Pennsylvania, 338 U. S. 62, 66–67; Harris v. South Carolina, 338 U. S. 68, 71-73. The practice of obtaining confes
DOUGLAS, J., dissenting.
sions prior to arraignment breeds the third-degree and the inquisition. As long as it remains lawful for the police to hold persons incommunicado, coerced confessions will infect criminal trials in violation of the commands of due process of law.
The facts of this case illustrate the evils of this police practice. While the defendant was being held by the police prior to his arraignment, a lawyer tried to see him. The police refused the lawyer's repeated requests. It was only after a confession was obtained that the lawyer was allowed to talk with the prisoner. This was lawless conduct, condemned by the Supreme Court of California. It was not only lawless conduct; it was conduct that produced a confession.
This confession as well as subsequently obtained confessions were used at the trial. The fact that the later confessions may have been lawfully obtained or used is immaterial. For once an illegal confession infects the trial, the verdict of guilty must be set aside no matter how free of taint the other evidence may be. Malinski v. New York, 324 U. S. 401.
Moreover, the fact that the accused started talking shortly after he was arrested and prior to the time he was taken before the District Attorney does not save the case. That talk was accompanied or preceded by blows and kicks of the police; and the Supreme Court of California assumed that it was part and parcel of the first confession obtained through "physical abuse or psychological torture or a combination of the two."