Cicenia v. La Gay/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

Petitioner, pursuant to a request left by the police at his home on Saturday, December 17, appeared at headquarters in Orange, New Jersey, at 9 a.m. on the 18th. He did so on the advice of his lawyer, Frank A. Palmieri. Petitioner's brother and father accompanied him on this visit but were separated from him on arrival at the headquarters. Shortly thereafter petitioner was taken to Newark where he was interrogated by the police until 9:30 p.m. when he confessed. Between 2 p.m. and 9:30 p.m. Mr. Palmieri asked over and again to see his client; but his requests were not granted. On this phase of the case the District Court said:

'Mr. Palmieri was not produced as a witness on the trial of     this case, but his affidavit was admitted by stipulation. The contents of his affidavit and the testimony     of petitioner's father and brother are at variance with the      testimony of the Newark police as to the manner in which      petitioner and his counsel were restrained from communicating      with each other. According to petitioner's witnesses     Palmieri's pleas were met with blunt refusals and remarks      such as 'We're working on him.' The police claim to have been      much more decorous. But whether it was done flippantly or     courteously, the fact remains that for over seven hours the      Newark police formed an insuperable barrier between an      accused who wanted to see his counsel, and counsel who wanted      to see his client. And it was during these seven hours that     the police and an assistant prosecutor were able to obtain a      detailed confession from petitioner.' 148 F.Supp. 98, 99-100.

The District Court reached 'without enthusiasm' the conclusion that petitioner's constitutional rights had not been impaired. Id., at page 104. The Court of Appeals evinced the same lack of enthusiasm for the result. 3 Cir., 240 F.2d 844. Both lower courts felt that any correction of this unjust result should come from us. I regret that we have not taken this case, and the companion cases, as the occasion to bring our decisions into tune with the constitutional requirement for fair criminal proceedings against the citizen. I would reverse the judgment for the reasons stated in my dissent in Crooker v. California, 357 U.S. 441, 78 S.Ct. 1293.