Lisenba v. California/Dissent Black

Mr. Justice BLACK, dissenting, with whom Mr. Justice DOUGLAS concurs.

I believe the confession used to convict James was the result of coercion and compulsion, and that the judgment should be reversed for that reason. The testimony of the officers to whom the confession was given is enough, sanding alone, to convince me that it could not have been free and voluntary. Cf. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. In brief, those officers admitted the following:

Suspecting the defendant of murder they entered his home on Sunday, April 19, 1936, at 9 a.m. He was taken to a furnished house next door, in which the State's Attorney's office had installed a dictaphone. For the next forty-eight hours, or a little longer, the State's Attorney, his assistants, and investigators held James as their prisoner. He was so held not under indictment or warrant of arrest but by force. At about 4 a.m. Monday, one Southard, an investigator, 'slapped' the defendant whose left ear was thereafter red and swollen. James was apparently kept at the State's Attorney's office during the daylight hours; the full extent to which he was questioned there is not clear. But on Monday and Tuesday nights, at the furnished house, with no one present but James and the officers, he was subjected to constant interrogation. The questioning officers divided themselves into squads, so that some could sleep while the others continued the questioning. The defendant got no sleep during the first forty-two hours after the officers seized him. And about 3:30 or 4 a.m. Tuesday morning, while sitting in the chair he occupied while being interrogated, at the very moment a question was being asked him, the defendant fell asleep. There he remained asleep until about 7 or 8 a.m. At about 11 a.m. the officers took him to jail and booked him on a charge of incest. During the entire forty-two hours defendant was held, he repeatedly denied any complicity in or knowledge of the murder of his wife.

The second episode during which the officers held defendant incommunicado, and which produced the confession, was on May 2 and in the early hours of May 3. About 11 a.m. on May 2 an investigator for the District Attorney took James from his cell to the chaplain's room of the jail. In the presence of an Assistant District Attorney he was confronted by Hope and told that Hope had made a confession implicating James in his wife's murder. James refused to talk and was then carried back to his cell. A short time later, under a purported order of court, the nature or authority of which does not appear, James was taken from the jail to his home, and then somewhere between 1 and 4 p.m. to the District Attorney's office. The doors were locked. From then until about midnight the District Attorney, his Assistants, and investigators, subjected James to constant interrogation. Upon asking for his attorney, James was told he was out of the city. He then asked for another but whatever efforts the officers made to satisfy this request were unsuccessful. He was again confronted with Hope but neither this nor the questioning had elicited an admission of any nature by midnight. At that time, according to the investigators, James said to one of them, 'Can't we go out and get something to eat-if you fellows will take me out to eat now, I will tell you the story.' He was taken out to eat by some of the officers, remained about an hour and a half, while at the restaurant made damaging admissions, and upon his return to the District Attorney's office, made the full statement which was used to bring about his conviction, completing it at about 3 a.m. Southard, the investigator who had previously 'slapped' him, was one of the signed witnesses of the confession.

I think the facts set out are sufficient to make applicable the principles announced in Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 479, 84 L.Ed. 716, and the conclusion there announced that: 'Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death.' White v. Texas, 310 U.S. 530, 533, 60 S.Ct. 1032, 1033, 84 L.Ed. 1342; Canty v. Alabama, 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988; Vernon v. Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513. Cf. Bram v. United States, supra.