Crooker v. California/Dissent Douglas

by William O. Douglas

United States Supreme Court

357 U.S. 433

Crooker  v.  California

 Argued: April 2, 1958. --- Decided: June 30, 1958

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

When petitioner was first arrested, and before any real interrogation took place, he asked that his attorney be present. 'I had no objection to talking with them about whatever they had to talk about, but * * * I wanted counsel with me * * *. I wanted an attorney with me before I would talk with them.' That was petitioner's testimony; and it is verified by the testimony of Sergeant Gotch of the police.

'A. I stated to him that after our investigation was concluded he could call an attorney, and if he didn't have funds to hire an attorney, when he went to Court's public defender would be assigned to handle his case.

'He then stated that he had a friend who had been an instructor at Pepperdine College that would probably handle the case for him. I asked him who the name was, and he said it was a man by the name of Simpson, who lived in Long Beach.

'Q. He asked you if he could call an attorney at that time, and you told him that he could call after your investigation was completed, is that right?

'A. I told him, after I was through with the investigation, he could make a call.'

This demand for an attorney was made over and again prior to the time a confession was extracted from the accused. Its denial was in my view a denial of that due process of law guaranteed the citizen by the Fourteenth Amendment.

The Court finds no prejudice from the denial of the right to consult counsel; and it bases that finding on the age, intelligence, and education of petitioner. But it was said in Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680, 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' That was a federal prosecution. But what is true of the need for counsel is federal case is equally true in a state case.

Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, held that in a state criminal trial the request of the accused for counsel can be denied and a judgment of conviction sustained as not in violation of due process, where the offense is not a capital one, Cf. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398, and the Court on review determines there was no fundamental unfairness resulting from the denial of counsel. The rule of Betts v. Brady, which never applied to a capital case, see Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, is now made to do so. Assuming that Betts v. Brady was properly decided, there is no basis in reason for extending it to the denial of a request for counsel when the accused is arrested on a capital charge.

The Court properly concedes that the right to counsel extends to pretrial proceedings as well as to the trial itself. The need is as great then as at any time. The right to have counsel at the pretrial stage is often necessary to give meaning and protection to the right to be heard at the trial itself. See Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4. It may also be necessary as a restraint on the coercive power of the police. The pattern of the third degree runs through our cases: a lone suspect unrepresented by counsel against whom the full coercive force of a secret inquistion is brought to bear. See Lisenba v. State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. The third degree flourishes only in secrecy. One who feels the need of a lawyer and asks for one is asking for some protection which the law can give him against a coerced confession. No matter what care is taken innocent people are convicted of crimes they did not commit, see Borchard, Convicting the Innocent (1932); Frank and Frank, Not Guilty (1957). We should not lower the barriers and deny the accused any procedural safeguard against coercive police practices. ^[1] The trial of the issue of coercion is seldom helpful. Law officers usually testify one way, the accused another. The citizen who has been the victim of these secret inquisitions has little chance to prove coercion. The mischief and abuse of the third degree will continue as long as an accused can be denied the right to counsel at this the most critical period of his ordeal. ^[2] For what takes place in the secret confines of the police station may be more critical than what takes place at the trial.

'If at any time, from the time of his arrest to final determination of his guilt or innocence, an accused really needs the help of an attorney, it is in the pre-trial period. * * * Indeed, the pre-trial period is so full of hazards for the accused that, if unaided by competent legal advice, he may lose any legitimate defense he may have long before he is arraigned and put on trial.' Note, Criminal Procedure-Right to Counsel Prior to Trial, 44 Ky.L.J. 103-104.

Or as stated by a Committee headed by Prof. Zechariah Chafee, 'A person accused of crime needs a lawyer right after his arrest probably more than at any other time.' ^[3]

The Court speaks of the education of this petitioner and his ability to take care of himself. In an opinion written by Mr. Justice Sutherland the Court said, 'Even the intelligent and educated layman has small and sometimes no skill in the science of law. * * * He requires the guiding hand of counsel at every step in the proceedings against him.' Powell State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158. Mr. Justice Sutherland spoke of the trial itself. But what is true of the trial is true of the preparation for trial and of the period commencing with the arrest of the accused. No matter how well educated, and how well trained in the law an accused may be, he is sorely in need of legal advice once he is arrested for an offense that may exact his life. The innocent as well as the guilty may be caught in a web of circumstantial evidence that is difficult to break. A man may be guilty of indiscretions but not of the crime. He may be implicated by ambiguous circumstances difficult to explain away. He desperately needs a lawyer to help extricate him if he's innocent. He has the right to receive the benefit of the advice of his own counsel at the trial, as we held in Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 4, 99 L.Ed. 4. That same right should extend to the pretrial stage.

The need of a lawyer in the pretrial investigation, if the constitutional rights of the accused are to be preserved, was stated by Mr. Justice BLACK, dissenting, in In re Groban, 352 U.S. 330, 340-343, 77 S.Ct. 510, 517, 1 L.Ed.2d 376:

'The witness has no effective way to challenge his interrogator's testimony as to what was said and done at the secret inquisition. The officer's version frequently may reflect an inaccurate understanding of an accused's statements or, on occasion, may be deliberately distorted or falsified. While the accused may protest against these misrepresentations, his protestations will normally be in vain. This is particularly true when the officer is accompanied by several of his assistants and they all vouch for his story. But when the public, or even the suspect's counsel, is present the hazards to the suspect from the officer's misunderstanding or twisting of his statements or conduct are greatly reduced.

'The presence of legal counsel or any person who is not an executive officer bent on enforcing the law provides still another protection to the witness. Behind closed doors he can be coerced, tricked or confused by officers into making statements which may be untrue or may hide the truth by creating misleading impressions. While the witness is in the custody of the interrogators, as a practical matter, he is subject to their uncontrolled will. * * * Nothing would be better calculated to prevent misuse of official power in dealing with a witness or suspect than the scrutiny of his lawyer or friends or even of disinterested bystanders.'

The demands of our civilization expressed in the Due Process Clause require that the accused who wants a counsel should have one at any time after the moment of arrest. ^[4]

Notes

1. The use of techniques that make man admit crimes they did not commit and embrace ideas they oppose is told in Communist Interrogation, Indoctrination and Exploitation of American Military and
2. Dean Roscoe Pound wrote in 1934 as follows about this problem: 'In the United States the feeling of police and prosecutors that they ought to be able to interrogate suspected persons long ago led to a systematic development of extra-legal or downright illegal examinations by officials, with every external appearance of legality. These examinations have become so much a matter of course that we may read in every morning paper how police or prosecutor examined (the word usually chosen is 'grilled') so and so for anywhere from ten to forty-eight or more consecutive hours, going at him in relays to wear him out and break him down. They are now taken to be the established practice. Prosecutors often conduct them with a pretence of authority when those subjected to them are ignorant, unadvised as to their rights, insignificant, or without means of employing counsel. Indeed, so bold have those who resort to those practices become, that we now read in the newspapers how this man or that was held 'incommunicado' in a police station or jail while the grilling process was going on. * * *
3. See Chafee, Documents on Fundamental Human Rights, Pamphlets 1-3 (1951-1952), p. 541.
4. Quite a few of the States provide that procedural safeguard against coercive police practices. The California Penal Code, § 825, provides:

'The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; and after such arrest, any attorney at law entitled to practice in the courts of record of California, may at the request of the prisoner or any relative of such prisoner, visit the person so arrested. Any officer having charge of the prisoner so arrested who wilfully refuses or neglects to allow such attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow any attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of five hundred dollars, to be recovered by action in any court of competent jurisdiction.'

Another type of statute is that contained in Kan.Gan.Stat., 1949, § 62-1304a, which provides:

'That any person held in restraint of his liberty pending trial or held for investigation in any jail or other place of confinement in this state, shall be permitted upon request to immediately confer privately with an attorney of his choice in the same room with such attorney and without any barriers between such person and his attorney, and without any listening in or recording devices.'

For statutes similar to the Kansas Act see Colo.Rev.Stat.Ann., 1953 (Cum.Supp.1957), c. 39-1-1; Ill.Rev.Stat., 1955, c. 38, § 449.1; Vernon's Ann.Mo.Stat., 1953, § 544.170; Mont.Rev.Codes, 1947, § 93-2117; N.H.Rev.Stat.Ann., 1955, c. 594:16; N.C.Gen.Stat., 1953 (Cum.Supp.1957), § 15-47; Page's Ohio Rev.Code Ann., 1954, § 2935.16. See also § 37 of the A.L.I. Model Code of Criminal Procedure.