# Townsend v. Sain/Concurrence Goldberg

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Goldberg
United States Supreme Court
372 U.S. 293
Townsend v. Sain
Argued: Oct. 8 and 9, 1962. --- Decided: March 18, 1963
Mr. Justice GOLDBERG, concurring.
I join in the opinion and judgment of the Court and add a few words by way of comment on the dissenting opinion of my Brother STEWART.
I cannot agree with Mr. Justice STEWART that the instructions given to the jury by the trial judge on the issue of credibility indicate the application of a proper constitutional test to measure the voluntariness-and hence the admissibility-of the petitioner's disputed confession of the Boone murder. In my view, the very portions of the instructions excerpted by my Brother STEWART support, if anything, the contrary conclusion that an improper and constitutionally impermissible standard was utilized by the trial judge himself in the suppression hearing.
If, as suggested by my Brother STEWART, these instructions are taken to evidence the exclusionary standard applied by the trial judge in ruling on the petitioner's motion to suppress, they reflect error of constitutional dimension, as does the standard of admissibility contained in the affirming opinion of the Illinois Supreme Court. While the appellate court, as pointed out in the opinion of THE CHIEF JUSTICE, see pp. 319-321, appears to have adopted a test of 'coherency' to measure the admissibility of the confession, the trial court seemingly concluded that inducement of amnesia was a prerequisite to disregard of the confession. Both standards, whether or not intended to incorporate similar elements, fail to conform to the requisite test.
The third paragraph of the instructions quoted by my Brother STEWART in footnote 2, p. 330, advises the jury that it might discount the confession if it found that administration of the drug caused the petitioner to 'lose his memory,' to suffer 'a state of amnesia' during the period of questioning, and to be unable 'to control his answers or to assert his will by denying the crime charged.' By use of the conjunctive to incorporate the requirement of loss of control, this instruction indicates the trial court's apparent view that if the drug had the effect of overbearing the petitioner's will but did not also cause loss of memory, the confession would nonetheless remain acceptable evidence of guilt. This conclusion is buttressed by the instruction quoted in the concluding paragraph of note 2 in my Brother STEWART'S dissenting opinion, in which the trial court indicates that the confession might be disregarded by the jury not simply if the drug had the effect asserted by the petitioner's expert in response to a hypothetical question, but only if, in addition, the drug so affected the petitioner's consciousness that 'he did not know what he was doing.' The petitioner may have been fully aware of what he was doing in confessing and may have suffered no loss of memory, but that is not the issue. The crucial question, and the measure of evidentiary propriety under the Constitution, is whether the drug-whatever label was or was not affixed to it-so overbore the petitioner's will that he was unable to resist confessing. Whether or not he was conscious of what he was doing, the petitioner could, because of the drug, have been wholly unable to stop himself from admitting guilt.
In the absence of contrary indications, I think we must recognize that the misconception of the constitutional standard evidenced by these instructions may well have infected the trial judge's ruling at the suppression hearing. The inference of error is not negatived by the remainder of the instructions, which permit disregard of the confession if induced by force, physical or mental, duress, or promise of reward. In the context of the instructions as a whole, these references to 'voluntariness' do not meet the problems raised by the administration of the drug to the petitioner and do not vitiate the crucial inference that the trial judge viewed exclusion as dependent upon the presence of facts in addition to a druginduced sterilization of the petitioner's will.
For the reasons contained in the opinion of the Court, and on the basis of what I believe to be the wholly fair inference that the trial court misconceived the proper constitutional measure of admissibility of the petitioner's confession, the lack of any indication that the trial court did utilize the correct test, and the state appellate court's apparent application of a similarly erroneous standard, I agree that a hearing must be held below.
Finally, the Court's opinion does not warrant my Brother STEWART'S criticism as to the propriety or wisdom of articulating standards to govern the grant of evidentiary hearings in habeas corpus proceedings. The setting of certain standards is essential to disposition of this case and a definition of their scope and application is an appropriate exercise of this Court's adjudicatory obligations. Particularly when, as here, the Court is directing the federal judiciary as to its role in applying the historic remedy in a difficult and sensitive area involving large issues of federalism, the careful discharge of our function counsels that, '(i)n order to preclude individualized enforcement of the Constitution in different parts of the Nation, (we) lay down as specifically as the nature of the problem permits the standards or directions that should govern the district judges in the disposition of applications for habeas corpus by prisoners under sentence of State courts.' Brown v. Allen, 344 U.S. 443, 501 502, 73 S.Ct. 397, 443, 97 L.Ed. 469 (separate opinion of Mr. Justice Frankfurter).
Mr. Justice STEWART, whom Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITE join, dissenting.
The basis for my disagreement with the Court can perhaps best be explained if I define at the outset the several areas in which I am entirely in accord with the Court's opinion. First, as to the underlying issue of constitutional law, I completely agree that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. Secondly, I agree that the Court of Appeals in this case stated an erroneous standard when it said that '(o)n habeas corpus, the district court's inquiry is limited to a study of the undisputed portions of the record. * * *' 276 F.2d 324, 329. Thirdly, I agree that where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew.
I differ with the Court's disposition of this case in two important respects. First, I strongly doubt the wisdom of using this case-or any other-as a vehicle for cataloguing in advance a set of standards which are inflexibly to compel district judges to grant evidentiary hearings in habeas corpus proceedings. Secondly, I think that a de novo evidentiary hearing is not required in the present case, even under the very standards which the Court's opinion elaborates.
I have no quarrel with the Court's statement of the basic governing principle which should determine whether a hearing is to be had in a federal habeas corpus proceeding: 'Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.' P. 312. But the Court rightly says that '(i)t would be unwise to overly particularize this test,' and I think that in attempting to erect detailed hearing standards for the myriad situations presented by federal habeas corpus applications, the Court disregards its own wise admonition.
The Court has done little more today than to supply new phrases-imprecise in scope and uncertain in meaning-for the habeas corpus vocabulary of District Court judges. And because they purport to establish mandatory requirements rather than guidelines, the tests elaborated in the Court's opinion run the serious risk of becoming talismanic phrases, the mechanistic invocation of which will alone determine whether or not a hearing is to be had.
More fundamentally, the enunciation of an elaborate set of standards governing habeas corpus hearings is in no sense required, or even invited, in order to decide the case before us, and the many pages of the Court's opinion which set these standards forth cannot, therefore, be justified even in terms of the normal function of dictum. The reasons for the rule against advisory opinions which purport to decide questions not actually in issue are too well established to need repeating at this late date. See e.g., Marine Cooks & Stewards v. Panama S.S.C.o., 362 U.S. 365, 368, n. 5, 80 S.Ct. 779, 4 L.Ed.2d 797; International Association of Machinists v. National Labor Relations Board, 362 U.S. 411, 415, 80 S.Ct. 822, 825, 4 L.Ed.2d 832 n. 5. I regard these reasons as peculiarly persuasive in the present context. We should not try to hedge in with inflexible rules what is essentially an extraordinary writ, designed to do justice in extraordinary and often unpredictable situations.
Even accepting the Court's detailed hearing standards in toto, however, I cannot agree that any one of them requires the District Court to hold a new evidentiary hearing in the present case. And I think, putting these rigid formulations to one side, that accepted principles governing the fair and prompt administration of criminal justice within our federal system affirmatively counsel against a de novo federal court hearing in this case.
The Court refers to two specific defects which it feels compel a hearing in the District Court: the absence of 'indicia which would indicate whether the trial judge applied the proper standard of federal law in ruling upon the admissibility of the confession' and the fact that it was not disclosed in the state hearing that 'the substance injected into Townsend before he confessed has properties which may trigger statements in a legal sense involuntary.' Since the lengthy extracts from the testimony and pleadings in the Court's opinion do not seem to me to bear on these issues, it becomes necessary to sketch the prior proceedings in this case to indicate why I think the Court is mistaken in concluding that a new hearing is required.
During the early morning hours of January 1, 1954, the petitioner was arrested by the Chicago police. He admitted having given himself an injection of heroin 90 minutes before his arrest. Within an hour of his arrest, he was questioned for 30 minutes about various crimes, all of which he denied having committed. He was not questioned again until that evening.
Shortly after the evening questioning began, the petitioner complained of stomach pains and requested a doctor. A police surgeon was summoned, and he administered an injection consisting of 2 cc.'s of a saline solution in which 1/230 grain of hyoscine hydrobromide and 1/8 grain of phenobarbital were dissolved. Slightly more than an hour later, the petitioner confessed to the murder of Boone. The following day, 15 hours after the police surgeon had administered the hyoscine, the petitioner initialed a copy of his previous night's statement in the offices of the State's Attorney General. At the coroner's hearing on January 4, the petitioner again confessed to the Boone killing.
A. THE STANDARD OF FEDERAL LAW APPLIED BY THE STATE TRIAL COURT IN RULING UPON THE ADMISSIBILITY OF THE CONFESSION.
At the trial, the petitioner's lawyer objected to introduction of the confession on the ground that it was involuntary. In accordance with Illinois practice, the motion to suppress was argued before the judge in the absence of the jury. During this proceeding, the petitioner testified that the injection had produced a temporary state of amnesia, that he could not remember making any confession, and that various other physical effects were produced. The police officers present at the petitioner's questioning stated that no change in the petitioner's demeanor suggesting any loss of his mental faculties had taken place as a result of the injection. On the question of the possible effects of the injection administered to the petitioner, Dr. Mansfield, the police surgeon and a licensed physician, testified for the State that he had treated thousands of narcotics addicts suffering from withdrawal symptoms, that in about 50% of such cases he had used the same treatment administered to the petitioner, and that he could recall no case in his experience where his use of hyoscine had produced loss of memory. A doctor of pharmacology (who was not a licensed physician) testified on behalf of the petitioner, and in answer to a hypothetical question stated that a person in the petitioner's condition at the time of interrogation could have been suffering amnesia and partial loss of consciousness as the result of the treatment which had been administered to relieve the narcotic withdrawal symptoms. On cross-examination, this witness revealed that he had never actually seen the effects of hyoscine on a human and admitted that he was unfamiliar with its use in treating drug addicts. It is evident that a finder of fact could with reason have accorded more credibility to the evidence offered by the prosecution than to that offered by the defense.
It is true, as the Court today says, that in overruling the motion to suppress the confession, the trial judge did not explicitly spell out the exclusionary standards he was applying. The instructions to the jury at the end of the case, however, although directed to the question of credibility-since that was the issue before the jury under Illinois procedure-were couched in terms of voluntariness, and they clearly established that the trial judge was aware of the correct constitutional standards to be applied. Nothing in the record indicates that an incorrect standard was applied at the suppression hearing. Given these circumstances, I think it completely impermissible for us to assume that the trial judge did not apply 'the proper standard of federal law in ruling upon the admissibility of the confession.' Where, as here, a record is totally devoid of any indication that a state trial judge employed an erroneous constitutional standard, the presumption should surely be that the judge knew the law and correctly applied it. Certainly it is improper to presume that the trial judge did not know the law which the Constitution commands him to follow. Yet that is precisely the presumption which the Court makes in this case. B. DISCLOSURE OF THE 'PROPERTIES' OF THE MEDICINE ADMINISTERED TO THE PETITIONER.
Much of the evidence which had been presented to the judge alone was subsequently brought before the jury by defense counsel in an attempt to diminish the weight to be given to the confession. Additional evidence was also adduced by the prosecution, including testimony by another licensed physician, who made clear that hyoscine was identical with scopolamine. The case was submitted to the jury under unexceptionable instructions, and the petitioner was convicted and sentenced to death. The Illinois Supreme Court, after reviewing in detail the evidence bearing on the voluntariness of the confession, affirmed the conviction. 11 Ill.2d 30, 141 N.E.2d 729. This Court denied certiorari, 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60; rehearing denied, 355 U.S. 887, 79 S.Ct. 128, 3 L.Ed.2d 115.
The petitioner then instituted post-conviction proceedings in the state trial court. His claim in these proceedings was that the confession had been procured as a result of the administration of scopolamine, that the witnesses for the State were aware of the identity of scopolamine and hyoscine and had deliberately withheld the fact of this identity at trial, and that the petitioner had consequently not been afforded an opportunity to make clear the basis for his claim that his confession had been coerced. The trial court dismissed the petition, and the Supreme Court of Illinois affirmed. In an unpublished opinion, that court concluded as follows:
'A study of our opinion on (the original appeal) discloses that all of the evidence with respect to the injection of hyoscine and phenobarbital was carefully considered by us in resolving the issue of the validity of petitioner's confession. (People vs.
Townsend, 11 Ill.2d 30, 35, 44, 141 N.E.2d 729, 732, 736). Thus, it is clear that the issue of the effect of the drug on the confession was before us * * *. The only matter which was not presented then was the fact that hyoscine and scopolamine are identical. In an attempt to escape from the doctrine of res judicata, the present petition for a writ of error contends that this fact could not have been presented to us because it was unknown to petitioner and his counsel at the time. Assuming for the moment the truth of this statement, we are of the opinion that the mere fact that the drug which was administered to petitioner is known by two different names presents no constitutional issue. At the original trial there was extensive medical testimony as to the properties and effects of hyoscine. If hyoscine and scopolamine are, in fact, identical, the medical testimony as to these properties and effects would be the same, regardless of the name of the drug. In determining the effect of the drug on the validity of petitioner's confession, the vital issue was its nature and its effect, rather than its name. This issue was thoroughly presented, both in the trial court and in this Court. Furthermore, the claim by petitioner now that the State 'suppressed' this identity of hyoscine and scopolamine at the trial is destroyed by reference to the bill of exceptions from the original trial. A State medical witness, on cross-examination by petitioner's counsel stated: 'Scopolamine or hyoscine are the same."
Even under the detailed hearing requirements announced today by the Court, therefore, I think it is clear that the district judge had no choice but to conclude, on the basis of his examination of the full record of the state proceedings, that a new hearing on habeas corpus would not be proper. For the record of the state proceedings clearly shows that the petitioner received a full and fair hearing as to the factual foundation for his constitutional claim-i.e., as to the properties of the drug which had been administered to him and the circumstances surrounding his confession. A total of 3 medical experts and 17 lay witnesses testified. Their testimony was in conflict. The trial court determined upon this conflicting evidence that there was no factual basis for the petitioner's claim that his confession had been involuntary. There is nothing whatever in the record to support an inference that the trial court did not scrupulously apply a completely correct constitutional standard in determining that the confession was admissible. The trial court's determination was fully reviewed by the Supreme Court of Illinois on appeal, and reviewed again in state post-conviction proceedings. To be sure, no witness at the trial used the phrase 'truth serum'-a phrase which has no precise medical or scientific meaning. Yet I cannot but agree with the Supreme Court of Illinois that the mere fact that a drug may be known by more than one name hardly presents a constitutional issue.
Under our Constitution the State of Illinois has the power and duty to administer its own criminal justice. In carrying out that duty, Illinois must, as must each State, conform to the Due Process Clause of the Fourteenth Amendment. I think Illinois has clearly accorded the petitioner due process in this case. To require a federal court now to hold a new trial of factual claims which were long ago fully and fairly determined in the courts of Illinois is, I think, to frustrate the fair and prompt administration of criminal justice, to disrespect the fundamental structure of our federal system, and to debase the Great Writ of Habeas Corpus.
I would affirm.

## Notes

* ↑ Indeed, the original version of 28 U.S.C. § 2243 directed the court to 'proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.' See Walker v. Johnston, 312 U.S. 275, 283-284, 61 S.Ct. 574, 577, 578, 85 L.Ed. 830. (Emphasis added.) The statute was later revised so that it now provides that 'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.' The Revisers' notes indicate that the change was one of 'phraseology' and not substance.
* ↑ Among the instructions given were the following:
* ↑ See footnote 2, supra.
* ↑ See pp. 766-767, supra.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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