Culombe v. Connecticut/Concurrence Warren

Mr. Chief Justice WARREN, concurring.

It has not been the custom of the Court, in deciding the cases which come before it, to write lengthy and abstract dissertations upon questions which are neither presented by the record nor necessary to a proper disposition of the issues raised. The opinion which announces the judgment of the Court in the instant case has departed from this custom and is in the nature of an advisory opinion, for it attempts to resolve with finality many difficult problems which are at best only tangentially involved here. The opinion was unquestionably written with the intention of clarifying these problems and of establishing a set of principles which could be easily applied in any coerced-confession situation. However, it is doubtful that such will be the result, for while three members of the Court agree to the general principles enunciated by the opinion, they construe those principles as requiring a result in this case exactly the opposite from that reached by the author of the opinion. This being true, it cannot be assumed that the lower courts and law enforcement agencies will receive better guidance from the treatise for which this case seems to have provided a vehicle. On an abstract level, I find myself in agreement with some portions of the opinion and in disagreement with other portions. However, I would prefer not to write on many of the difficult questions which the opinion discusses until the facts of a particular case make such writing necessary. In my view, the reasons which have compelled the Court to develop the law on a case-by-case approach, to declare legal principles only in the context of specific factual situations, and to avoid expounding more than is necessary for the decision of a given case are persuasive. See Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 461-462, 65 S.Ct. 1384, 1389-1390, 89 L.Ed. 1725, and cases cited; Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752. I see no reason for making an exception in this case, and I am therefore unable to join the opinion which announces the judgment of the Court. Accordingly, I join the separate concurring opinion of Mr. Justice BRENNAN.

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK agrees, concurring.

I find this case a simple one. As my Brother BRENNAN states, it is controlled by many of our decisions concerning confessions unlawfully obtained. It is also controlled by the principle some of us have urged upon the Court in several prior cases, including Crooker v. State of California, 357 U.S. 433, 441, 78 S.Ct. 1287, 1292, 2 L.Ed.2d 1448 (dissenting opinion); Ashdown v. State of Utah, 357 U.S. 426, 431, 78 S.Ct. 1354, 1357, 2 L.Ed.2d 1443 (dissenting opinion); Cicenia v. Lagay, 357 U.S. 504, 511, 78 S.Ct. 1297, 1301, 2 L.Ed.2d 1523 (dissenting opinion); Spano v. People of State of New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (concurring opinion). That principle is that any accused-whether rich or poor-has the right to consult a lawyer before talking with the police; and if he makes the request for a lawyer and it is refused, he is denied 'the Assistance of Counsel for his defence' guaranteed by the Sixth and Fourteenth Amendments.

The police first descended on petitioner on a Saturday afternoon. By ten that night-at the latest-he was in 'custody.' He asked to see an attorney. That request was callously turned aside. The testimony of Officer Rome exposes the critical issue in the case:

'Q. Up until Monday night Culombe hadn't seen a lawyer, had     he? A. No, sir.

'Q. He had asked to see a lawyer, hadn't he? A. Yes, sir.

'Q. Didn't you tell him that he could see a lawyer when you     got good and ready to let him see him? A. No, sir.

'Q. Well, when he asked to see a lawyer did he see a lawyer? A. No, sir.

'Q. Did you allow him to go to a telephone to call a lawyer? A. There was a telephone right there. He didn't have the name     of an attorney to call.

'Q. Well, there are a large number of Hartford lawyers' names     in the Hartford telephone directory. A. Yes, sir.

'Q. Did you offer him the use of the directory to find out     the name of a lawyer to call? A. We were told that he     couldn't read.

'Q. Oh, you were told that he couldn't read? A. Yes, sir.

'Q. Who told you that? A. He did.

'Q. Well, then, before I asked the question here in the     courtroom, you had information that he couldn't read? A.     After I talked with him.

'Q. So, therefore, a telephone directory would have been of     no use to him? That is what you mean by the answer? A. If     what he told me was the truth, yes, sir.

'Q. Did you tell him that he could have gotten in touch with     Mr. Cosgrove, the Public Defender for this court? A. I make     it my business never to mention any attorneys. It is up to     them to mention their attorney.

'Q. This man was in the hands of the police on a serious     investigation. He said that he wanted a lawyer and you did     nothing to help him? A. I told him he could have a lawyer if     he told me who he wanted me to call.

'Q. Did you tell him that? A. Yes, sir.

'Q. Didn't Culombe tell you on Monday night, 'If that is the     way you operate up here I want to get in touch with a      lawyer,' and you replied, 'We will let you get in touch with one at the right time, not until      then.' A. No, sir.

'Q. But there was talk about a lawyer? A. Yes, sir.'

Petitioner is illiterate and mentally defective-a moron or an imbecile. He spent six years in the third grade and left school at the age of sixteen. He has twice been in state institutions for the feeble-minded.

He did not see an attorney until six days after he was first arrested and after he had confessed to the police. During all this time the police questioned him until their questioning produced the confession on which his present conviction is based.

It is said that if we enforced the guarantee of counsel by allowing a person, wo is arrested, to obtain legal advice before talking with the police, we 'would effectively preclude police questioning' (Crooker v. State of California, supra, 357 U.S. 441, 78 S.Ct. 1292) and 'would constrict state police activities in a manner that in many instances might impair their ability to solve difficult cases.' Cicenia v. Lagay, supra, 357 U.S. 509, 78 S.Ct. 1300. It is said that 'any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.' Watts v. State of Indiana, 338 U.S. 49, 57, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801 (concurring opinion). In other words, an attorney is likely to inform his client, clearly and unequivocally, that 'No person * *  * shall be compelled in any criminal case to be a witness against himself,' as provided in the Fifth Amendment. This is the 'evil' to be feared from contact between a police suspect and his lawyer.

Interrogation of people by the police is an indispensable aspect of criminal investigations. But there is no right to interrogate-by the police any more than by the courts-when the privilege against self-incrimination is invoked. Knowing this, the police have set up in its place a system of administrative detention that has no constitutional justification. It is detention incommunicado, a system which breeds oppression. See Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224. In the present case this illiterate petitioner was not given the modicum of protection afforded in England where a prisoner is warned that statements made may be used against him and where the police are enjoined not to hammer away at a prisoner nor even to cross-examine him when he makes a voluntary statement except to clear up ambiguities. See Devlin, The Criminal Prosecution in England (1958), pp. 137-141. The flow of cases coming here shows that detention incommunicado is often accompanied by illegality and brutality. The arrival of an attorney is a specific against these proscribed practices.

If this accused were a son of a wealthy or prominent person, and demanded a lawyer, can there be any doubt that his request would have been heeded? But petitioner has no social status. He comes from a lowly environment. No class or family is his ally. His helplessness before the police when he is without 'the guiding hand of counsel' (Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158) emphasizes the lack of equal protection inherent in the dwarfed and twisted construction we have given the constitutional guarantee of the assistance of counsel. Cf. McNeal v. Culver, 365 U.S. 109, 117, 81 S.Ct. 413, 5 L.Ed.2d 445 (concurring opinion).

The system of police interrogation under secret detention falls heaviest on the weak and illiterate-the least articulate segments of our society. See American Civil Libet ies Union Report, Secret Detention by the Chicago Police (1959), pp. 19-21. The indigent who languishes in jail for want of bail, cf. Bandy v. United States, 81 S.Ct. 197 (memorandum opinion), or the member of a minority group without status or power is the one who suffers most when we leave the constitutional right to counsel to the discretion of the police. That right can only be protected by a broad guarantee of counsel that applies across the board to rich and poor alike. See Reck v. Pate, 367 U.S. at page 444, 81 S.Ct. at page 1548 (concurring opinion).

I believe that the denial of petitioner's request that he be given the right of counsel was a violation of his constitutional rights. I therefore concur in the judgment of the Court reversing the conviction.

Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, concurring in the result.

It is my view that the facts stated in Part V of the opinion of my Brother FRANKFURTER require the conclusion that all and not alone the Wednesday confessions were coerced from the petitioner, and that under our cases none is admissible in evidence against him. See, e.g., Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, and cases there cited.

Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice WHITTAKER join, dissenting.

I agree to what my Brother FRANKFURTER his written in delineation of the general principles governing police interrogation of those suspected of, or under investigation in connection with, the commission of crime, and as to the factors which should guide federal judicial review of state action in this field. I think, however, that upon this record, which contains few of the hallmarks usually found in 'coerced confession' cases, such considerations find their proper reflection in affirmance of this judgment.

With due regard to the medical and other evidence as to petitioner's history and subnormal mentality, I am unable to consider that it was constitutionally impermissible for the State to conclude that petitioner's 'Wednesday' confessions were the product of a deliberate choice on his part to try to ameliorate his fate by making a clean breast of things, and not the consequence of improper police activity. To me, petitioner's supplemental confession on the following Saturday night, which as depicted by the record bears all the indicia of spontaneity, is especially persuasive against this Court's contrary view.

I should also add that I find no constitutional infirmity in the standards used by the Connecticut courts in evaluating the voluntariness of petitioner's confessions. Cf. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760.

I would affirm.