xt7msb3wtd0h_6 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Associate Justices - Felix Frankfurter text Associate Justices - Felix Frankfurter 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_161/Folder_5_6/Multipage648.pdf 1946-1953 1953 1946-1953 section false xt7msb3wtd0h_6 xt7msb3wtd0h COMMONWEALTH v. BRYANT, Appellant. 151
135. (1951).] Opinion of the Court.
Sung lll'an. 1‘. United States, supra, at p. 14; cf. also"
McNo-bh 11?. United States, 318 U. S. 332’ 346. In the
llthubb case a federal prosecution was involved, but,
as that case plainly indicates, the Supreme Court
standard of due process required of the States is, at
least, no stricter than that required of subordinate fed-
eral courts. In Lyon's 1‘. Oklahoma, 322 U. S. 596, 599,
the use of a confession in evidence was held not to
violate due, process under the Fourteenth Amendment
although “. . . counsel was not supplied [the accused]
until (If/('I‘ his prelin‘rinary examination, which was
subsequent to the confessions” (Emphasis supplied).
.\s in the. instant case, the prisoner was “. . . compe
tently represcntml before and at the trial . . . .” In
the lawn/m case, supra, use of the confession was held
not to have worked a denial of due process even though
the accused had specifically requested counsel before
he was subjected to crucial interrogation by the police
and counsel was not summoned. It seems implicit in
Poe-ell e. .‘llrtbanm, 287 U. S. 45, 71, that assignment
of counsel for an accused in a capital case is timely,
within the due process requirements of the Fourteenth
Amendment, if not made “. . . at such a time or under
such circumstances as to preclude the giving of effec—
tive aid in the preparation and trialot’ the case.” In
the present instance the defendant had counsel from
the time of his arraignment: onward. Nor does he make
any complaint in such regard. His contention is that
he should have been supplied counsel at the moment
of his arrest and before the police officers asked him
any questions concerning the crime they were inves-

’l‘he recognized limit of Supreme Court review of
State convictions vas well expressed in United States
e. .lIi/chcll, 322 l. S. 65, 68. True enough, the state-
ment was a dictum (a federal conviction being there


 1:32 COMMONWEALTH r. BRYANT, Appellant.

Opinion of the Court. [367 Pa.
involved), hut, appearing as it does in an opinion for
a majority of the Court’s full membership, it may fair-
ly he taken as interpretive of the Court’s view of its
own pertinent decisions. It was there said (p. 68) with
respect to such review—“Our sole authority is to as-
certain whether that which a state court permitted
violated the basic safeguards ot' the Fourteenth Amend-
ment. ’l‘heret‘ore, in cases coming from the state courts
in matters of this sort, we are concerned solely with
determining whether a, confession is the result of tor-
ture, physieal or psychological, and not the offspring
ot‘ reasoned choice.” I

It. is our opinion that the statements of the appel-
lant; to the polite, made in the circumstances as here-
inhet'ore related, were voluntary and uncoerced and
that: their use as evidence against him at trial did not
violate the due process clause of the Fourteenth

Judgment. and sentence affirmed.

(lmnmonw >alth ex rel. Sheeler v. Burke.

(WHY“-~r;\')/[))‘I'l)lt' ('run~l~—()riaimtl Jurisdiction—Habcas corpus
-—~lt’efn'enre for delu'mim/iou of gfm‘lunl issues—Refercc’s findings
of fact.

‘1. A petition for haheas corpus is incapable of performing the
functions of a writ: of error or appeal. [157]

2. Where a petition for a writ. of habeas corpus raises issues
of material fact, and the Supreme Court refers the matter to a
judge for the purpose of holding a hearing on the issues and to
make findings of t‘aet, his findings are purely advisory. [154]

t'onsHtufimmI IruU‘rDm: process—~0riminal law-Mm‘der———Plea
or gut/1‘11 to /H)))ti('iI/r‘ by aaeommeled defendunt~Timely assignment
of t‘UHHNt'l s» I'oeremi confession —I’ruetice——Sctting aside sentence
(III/l plea.


15:3, (1951).] Syllabus—0pmion of the Court.

1",. The arraignment ol.’ and acceptance of a plea of guilty from
an LInCounscled defendant, charged with a capital crime, con-
stitutes a denial of due process. especially where legal knowledge
is required to determine whether the accused is properly charge—
able with the alleged crime. [137]

Al. The failure of a court to assign counsel timely to a desti-
lule person charged with a capital offense is a Violation of con-
stitutional due process. [137]

5. A conviction in a capital case based upon a confession or
seltliucriurinating testimony which has been coerced from the (le—
l‘endant by police officers constitutes a denial of due process
which, in the procedural circumstances here present, is remedi-
able by habeas corpus. [155]

1,3. In a habeas corpus proceeding it was Held that the
relator's conviction of murder had been had without due process

of law; and, the sentence and plea of guilty were vacated. [103-8]

Original jurisdiction. No. 356, l‘liscellaneous Dock-
et, No. 9, petition for writ of habeas corpus in case
of Commonwealth of Pennsylvania ex rel. Rudolph
Sheeler v. C. J. Burke, Warden, Eastern State Peniten-
tiary. il’lea of guilty to indictment for murder and
sentence of life imprisonment vacated and set aside.

Louis B. Schwartz and Raymond J. Bradley, for Pe-

John. I]. lllaxm-mj, District Attorney and James W.
TI’ruocy, Jr.) First Assistant District Attorney, for Com-


Rudolph Sliccler, the relator, filed his original peti-
tion with this court for a writ of liabeas corpus on the
ground that he was being illegally restrained of his
liberty in the Eastern State Penitentiary as a result of
a life sentence imposed upon him by the Court of Oyer
and Tcrminer of Philadelphia County on March 31,
1939, following his plea of guilty to an indictment (No.
574, March Sessions 1939, in said court) charging him



Opinion of the Court. [367 Pa.
with the murder of James T. Morrow, a police officer of
the (‘ity of l.’hiladelphia, on Novemher 23, 1936, in
Northeast Philadelphia. The petitioner alleges that
his plea and confession of the erime charged in the
indictment were obtained and used in Violation of the
due process clause of the Fourteenth Amendment of
the Constitution of the United States and of Article I,
Section 1), of the Constitution of Pei'insyl'ania. We
entered a rule to show cause why the prayer of the
petition should not be granted on the district attorney
of Philadelphia County who duly filed a responsive an-

The petition and answer raised such important is-
sues of material fact, (for the resolution whereof on
testimony taken at a hearing an appellate court lacks
the requisite facilities) that we referred the matter to
tlonorahte litil'lS It). IithIN'lYltAl‘r, a judge of the Court of
t‘oinnion l’leas of Philadelphia County, for the purpose
of holding: a hearing on the issues framed by the peti-
tion and answer with notice to all interested parties;
the order further directed that a record of the hearing,
int-tintingr a transcript of the testimony taken, together
with the hearin‘t,r judge‘s findings of fact on the issues
raised he returned to this court. Judge LEVIN’I‘ITAL ably
and thoroughly performed the duties imposed upon him
by our order of reference and the matter is now before
us for tinal, disposition. The findings of the learned
referee are, however, purely advisory. The instant
petition is peeuliarly a matter for this court’s action in
the exercise of our original jurisdiction which, by rea- I

son of the unusual circumstances pleaded, we invoked

at the instance of the relator. The services performed
by the referee were in aid ot’ our discharge of our duties
in the premises.

it‘l‘Olll the findings of the referee, who heard and saw
the witnesses, we summarize and adopt; the following


1:32, (1951).] Opinion of the Court.
salient facts and conclusions which are amply supported
by substantial evidence.

Sheeler was taken into custody by the police of
Philadelphia on February 16, 1939, on suspicion of
having participated with a confederate, one Howard, in
the murder of Officer Morrow. He was held by the
police incommunicado in City Hall under a fictitious
name which they intentionally gave him. He was sub-
jected to coercion, both physical and psychological, in
an effort to force from him a confession that he had
been a participant in the Morrow murder. During the...
time he was so held by the police, he was denied op-
portunity to communicate with family or friends and
was taken from his cell-room many times for question-
ing by detectives for a total of 45 to 50 hours Within the
first week. At the end of that period, to wit, on the
morning of February 23, 1939, he orally “confessec”
that he was with Howard when the Morrow crime was
committed. A little later the same morning, he signed
a statement in which he vaguely narrated the commis-
sion of the crime. He was given a hearing before a
magistrate on February 24th where he denied that his
“confession” was voluntary. He was held without bail
for further hearing 011 the representation of the detec-
tive in charge that additional time was required for
investigation and, thereupon, was recommitted to the
custody of the police. Later that day (February 24th),
he signed a statement in which he repudiated his earlier
public assertion that the “confession” was involuntary.

On March 2-1, 1939, the relator was arraigned on
various bills olf indictment for the crimes covered by
the "confession”, including indictment N0. 574 for the
Morrow murder, whcreto he pleaded guilty. He was not
represented by counsel at the time of his arraignment
and pleas.


Opinion of the Court. [367 Pa.
0n the same day (March 24, 1939), Sheeler signed
and swore to an “affidavit of destitute circumstances
and request to assign counsel” under the Act of March
22., 1907, PL. 31, Sec. 1, 19 PS §784. The court sub-
sequently assigned him counsel who were notified of
their appointment about noon of March 28th, the day
before the court hearing for determining the degree of
the murder “confessed” and fixing the penalty. The
eourt:-a]")1_)ointed counsel mistakenly believed that
Sheeler’s “confession” and pleas of guilty were volun-
tary as he himself confirmed to them. They, therefore,
did not consider it necessary or desirable to ask for a
continuance of the hearing in order to examine into the

“confession” or to investigate the underlying facts.

The. following morning, March 29, 1939, a hearing
on indictment No. 57-1 for the murder of Officer Mor—
row was had before the court en banc. The “confes-
sion” of Zli‘ebruary 23rd was offered in evidence and
attaehwl to the record. Sheelcr also testified in sup-
port of the “confession”. Several discrepancies in the
evidence were noted by one of the members of the court
en bane. After the hearing, the police retained their
custody of the accused and on March 31st a final
“confession” was obtained from him whereby the dis-
crepancies ahove-mentioned were eliminated. The court
then :nljudged Sheeler guilty of murder in the first
degre: and sentenced him to imprisonment for life in
the Eastern State Penitentiary to which he was trans-
ferred and where he is now held.

The accused’s plea to the indictment for murder and
his se]f-ineriminating testimony, as well as the “confes-
sion", were the result of coercion, subtly and psycholog-
ieally exerted upon him by the attendant and ever-
present police in whose exclusive custody he was
from the day of his apprehension (February 16, 1939)


1:32, (1951).] Opinion of the Court.
to the time of his commitment to the Eastern State
Penitentiary on April 1, 1939.

The question involved is not whether the relator was
guilty or innocent of the murder charged against him
but whether his conyiction was obtained by Violating
his umstitutioiml rights. As has long been recognized,
a petition for habcas corpus is incapable of performing
the t'um-tions 01‘ a writ, of error or appeal: Passmo-rc
ll‘illiumsrm'a ('use, 26 Pa. 9, 17; Commonwealth ca: rel.
tilt-(Him: 1'. Smith, 314 Pa. 41, i7, 21 A. 2d 1, and cases
there eited. We take occasion to note in passing that
no comparison is to be drawn between the instant ap«
plication l'or habeas corpus and the extraordinary
remedy of a motion for a new trial, nnnc pro tune,
which We heretofore accorded the, relator at his in-
stance under the Act ot’ April 22, 1903, PL. 245, Sec.
1, and which was ultimately ruled against him.

We are unanimous that the relator’s conviction
ol' the murder of (’)fl"icer Morrow was had without due
process of law and that, consequently, the sentence im-
posed upon him and his plea, of guilt)r on March 24,
'lllfi’d), to the im'lictment chz'trging him with that murder
cannot. be upheld. (l) The. arraignment of and ac-
ceptance ot' a plea of guilty From an nnconnselcd de-
fendant, charged with a, capital crime, constitutes a
denial of due process especially Where, as here, legal
knowledge is required to determine whether the accus-
ed is properly chargeable with the alleged crime: cf.
I’mrcl/ r. Alllrlmmu. 2.97 US. :15, 71. That Sheeler was

not, represented by counsel when he. was arraigned
and so pleaded to the indictment for murder is indis-
putably established by the evidence. Indeed, that fact
is expressly conceded of record. (2i The failure of a
court to assign counsel timely to a destitute person
charged with a capital otl'ense is equally a violation of
constitutional due process: see Powell ’17. Alabama,



Opinion of the Court. [367 Pa.
supra, Where it was said at p. 71 that a court’s duty
to assign counsel for a destitute defendant charged With
a capital crime “. . . is not discharged by an assign-
ment at sucha time or under such ci1cumstances as to
preclude the giving of effective aid in the preparation
and trial of the case.” Of. also Connnmncealth 1;.
3111/11/11, at p. 135 ante (3) A conviction in
a capital case basul upon a (oniession 01 self-inmim-
inating,r testimony which has been coerced from the
defendant by police officers likewise constitutes a denial
of due process (e ..g, T'ZIHHZI‘ 1.1 Co111.1110111001121571 of Penn-
.x-1/[1-11111‘11, 32-18 I S 62 ) “hieh, in the procedural cir-
1'r11111stauces here piesent, is remediable by habeas
corpus: see 171111117 States- (‘.11 1‘0]. IHIZCS‘ 1f. Hiatt, 141
F. 2d 664, 665-666 (GA. 3rd Cir).

The petitioner has met the burden of establishing
that. he is illetrallv detained and is, therefore, entitled
to relief. int, inasmuch as his guilt or innocence of
the crime charged cannot be resolved by this proceeding,
we will follow the practice adopted in 00111111011wealth
1c] Townsend 1;.B111'71‘c,361.l’a. 35,1243, 63 A. 2d
and make the following order.



The sentence imposed on the relator by the Court
of Oyer and ’l‘erminer ol.’ li’hiladelphia County on March
3],, 1939, upon indictment No. 57—1, March Sessions 1939,
is hereby vacated and set aside as is, likewise, the rela-
tor’s plea of guilty to that indictment. It is further
ordered and directed that Judge LEVINTIIAL’S report be
filed as a part of' the record in this proceeding at the
cost of the County of l’llilad1rl1'1l1ia.




Sirleiig/i/ 0n. Hughes

in connection with Merle .l.
Pusey's biography of Charles
Evans llughes. there is an inter-
esting story, which I am now at
liberty to tell. of how Justice
Hughes was nominated for the
Chief Justiceship by President
'l‘aft in lflltl. ’[ got the story from
Mr. L\leMurray of Oklahoma at
.lohns Hopkins llospital, [ un-
derstood that he wax there as a
patient of Dr. Hugh Young, just
havingT been operated on, or to
be operated on. i was there with
a very dear kinsman on a similar
mission, This was in 1929.

What he told me was that. he
was a very close friend of Vice
President “Sunny Jim” Sherman.
and that: he was in Yiee Presi-
dent. Sherman’s office one morn—
ing when Vice President Sher—
man came in lo<,>l{ing like a
thunder cloud instead of wear-
ing his ukual smile. He asked
what the. trouble was. The Vice
President said: “It" you knew
what; [ had in here, you would
understand why I am feeling
as i do." [10 then told the story
of having.r had President Taft
give him that. morning for trans-
mission to the Senate the ap-
pointment. of Charles Evans,
llughes to be Chief Justice.

llowever, before he left; the
President‘s office. a secretary
announced Sen. Joe Bailey of
’l‘exas. saying: “Mr. President.
Senator Bailey, as you know. has
an appointment." President Taft
then bade adieu to Vice. Presi-
dent. Sherman, and in doing so,
said: "With reference to that
matter we were discussing.
please hold it in ahex'anee, and
do not do anythingr about. it
until you hear from me further."

Vice 'l’resident Sherman then
said to Mr. Mellurray': “.\nd I
am afraid that Joe Bailey is go-
in: to talk l‘rexideiit ’l‘at'! into
raneelin: this appointment and
appoint in: Justice l‘ithHl‘d Doug—
las White to the Chief Justice-
ship.“ i\lei\lurray then re.-
niarl~;ed' "'l'he appointment. you
have in your pocket is a very
historie document. and i would
like very much to see it. it you
pleam." \l‘iiei‘eupon the \'iee
Prmidvnt produced it. and al—
lowed him to read it.

President 'l‘aft did withdraw
the appointment of Mr. Justice
llughex and did anpoi .t Mr. Jus-
tiee lL‘dward Douglas White to he
the new Chief Justice that same

l’ot'mt‘i‘ Member of Congress.

Selma. «\la.



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 May 7, 1951.

Dear Brethren:

,'It can't happen here" is, happily, one‘s instinctive reaction to an ex—
perience like that of Vogeler in Communist Hungary. we assume that the American
way of life - our social heritage and our Constitution, or perhaps the very air
we breathe ~ precludes such a happening. '

But the enclosed charge shows that it can happen even in our day, in
the very cradle of American independence. It is the instruction givalto the jury
on the new trial ordered by the Supreme Court of Pennsylvania, after it had re—
versed a conviction for murder on the basis of a Referee's Report submitted by one
of the outstanding judges of the Court of Common Pleas. Indeed, the case of Rudolph
Sheeler, whereby a man as innocent of the crime as any of us, was convicted of
murder and incarcerated for twelve years is, in View of our professions, even a
verse instance of lawlessness than the Vogeler case.

It is a widely entertained feeling that one ought not to be what is deemed
“sentimental" in dealing with murderers and other dangerous criminals, and that
the risk of an innocent man being convicted through extorted confession is too
slight to be important. It is also suggested that it is difficult, if indeed not
impoSsible, to convict without the third degree.

Experience disproves both claims.

The Sheeler case is not just one case out of thousands. Men do not in—
dulge in base practices overnight. What the Sheeler case discloses is'a state of
mind in the Philadelphia police. .It is the same police force whose doings we had
occasion recently to examine in the 22:33; and Johnson cases. That the Philadelphia
police are unlike the police of other cities is disproved by many cases from other

cities. That the Sheeler case is not an isolated instance of an innocent man end A



tangled in police misdeeds is evidenced by the fact that in the Harris case, in



 - 2 -

338 U.S. 68, the South Carolina authorities, after our reversal, gglggjgggggg the
indictment against Harris because the trial judge - so I was told when I was in
South Carolina a little while ago — felt that Harris was innocent. In the first
of the modern third-degree cases in this Court, wan v. United States, 266 U.S. 1,
our reversal finally resulted in the clearig of wan. For anyone who has been alert
to these matters over the years, these instances are too uncomfortably recurring.

Nor is it true that convictions cannot be had without confessions extorted
by the third—degree. There was no trouble in convicting watts without the confeSe
sion which we required to be thrown out. Likewise there was no trouble in convict—
ing Turner, after we reversed the case here. The fact of the matter is that these‘
nolice practices afford a fertile opportunity to defense counsel in playing upon \
the emotions of juries to obtain acquittals or disagreements. I

Why do I call your attention to this Fennsylvania opinion, when no third-
degree case is pending before us? Just because-no such case is now here. When we
have a case before us its impact - usually a case seemingly of clear guilt - is

likely to subordinate the significance of an extorted confession.
Faithfully yours,






March Session, 1939

No Q 574

Members of the Jury:

By the verdict of “not guilty“ which you have just rendered in this case,
you have been privileged to participate in the belated righting of a great wrong,
and in opening the way toward erasing a black and shameful page in the history of
Philadelphia's Police Department.

It is not necessary at this time to review at length the lawless means by
which that wrong was perpetrated. They have been judicially established beyond
contradiction by the solemn judgment rendered‘five weeks ago by our Supreme Cairt,
and their appalling details are spread at length, to be read by all, in its offi-
cial record in this case.. It will be sufficient for our present purposes to say
that Mr. Sheeler was taken into custody in 1939 by certain members of the detective
police, when he came from his home in New York to visit a sister who was ill in a
hospital in this city. The pretext given for his arrest was an alleged suspicion,
now revealed to have been wholly groundless, that three years before he had parti-
cipated with a confederate in the murder of a police officer of which you have just
now acquitted him.

At the time of Mr. Sheeler's arrest, the police had hot a scintilla of
evidence to connect him in any way whatever with that murder, and to this day, as
you have learned from the candid statement of the district attorney, they have been
unable to produce a single witness or line of_testimony against him.

Having thus wronghlly taken Sheeler into custody, the detectives removed him
to City Hall, where "he was held by the police incommunicado, under a fictitious
name which they intentionally gave him.’‘ From then oifia period of upwards of forty
days, he was continuously and intensively questioned in an effort to wring a confes—

sion from him, and during that time, every fundamental right which our constitution

and laws have created for the protection of an accused person was grossly violated.

He was deliberately denied an opportunity to communicate with his family, friends
and counsel, and was subjected to prolonged, physical brutal and psychological coer—
cion. He was beaten, threatened, intimidated and terrorized. An attorney procured
for him by his wife was refused access to him, and was finally forced to retina

from the case as the result of a telephone call in which the district attorney in


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