# Reck v. Pate/Concurrence Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
United States Supreme Court
367 U.S. 433
Reck v. Pate
Argued: April 19, 1961. --- Decided: June 12, 1961
Mr. Justice DOUGLAS, concurring.
Emil Reck at the age of twelve was classified as a 'high grade mental defective' and placed in an institution for mental defectives. He dropped out of school when he was sixteen. Though he was retarded he had no criminal record, no record of delinquency. At the time of his arrest, confession, and conviction he was nineteen years old.
He was arrested Wednesday morning, March 25, 1936. The next day, March 26, his father went to the police asking where his son was and asking to see him. The police would give him no information. On March 27 his father came to the police station again but was not allowed to see his son. Later the father tried to see his son at the hospital but was denied admission.
The father was denied the right to see his son over and again. The son was hold for at least eight full days incommunicado. He was arraigned before a magistrate on April 2, 1936, only after he had confessed.
The late Professor Alexander Kennedy of the University of Edinburgh has put into illuminating words the manner in which long-continued interrogation under conditions of stress can give the interrogator effective command over the prisoner. The techniques-now explained in a vast literature-include (1) disorientation and disillusion; (2) synthetic conflict and tension; (3) crisis and conversion; (4) rationalization and indoctrination; (5) apologetics and exploitation.
The device of 'synthetic conflict and tension' is summarized as follows:
'Production by conditioning methods of a state of psychological tension with its concomitant physical changes in heart, respiration, skin and other organs, the feeling being unattached to any particular set of ideas. This is later caused to transfer itself to synthetic mental conflicts created out of circumstances chosen from the subject's life-history, but entirely irrelevant to the reasons for his detention. The object is to build up anxiety to the limits of tolerance so as to invoke pathological mental mechanisms of escape comparable to those of Conversion Hysteria.'
Whether the police used this technique on Emil Reck no one knows. We do know from this record that Emil Reck was quite ill during his detention. He was so ill that he was taken to a hospital incommunicado. He was so ill he passed blood. What actually transpired no one will know. The records coming before us that involve the relations between the police and a prisoner during periods of confinement are extremely unreliable. The word of the police is on the side of orderly procedure, nonoppressive conduct, meticulous regard for the sensibilities of the prisoner. There is the word of the accused against the police. But his voice has little persuasion.
We do know that long detention, while the prisoner is shut off from the outside world, is a recurring practice in this country-for those of lowly birth, for those without friends or status. We also know that detention incommunicado was the secret of the inquisition and is the secret of successful interrogation in Communist countries. Professor Kennedy summarized the matter:
'From the history of the Inquisition we learn that certain empirical discoveries were made and recognized as important by a thoughtful and objective minority of those concerned. The first was that if a prisoner were once induced to give a detailed history of his past and to discuss it with his interrogators in the absence of threat or persuasion or even of evidence of interest, he might after an emotional crisis recant and confess his heresies. The second discovery was that true and lasting conversion could never be produced by the threat of physical torture. Torture not infrequently had the opposite effect and induced a negative mental state in which the prisoner could no longer feel pain but could achieve an attitude of mental detachment from his circumstances and with it an immunity to inquisition. The most surprising feature was the genuine enthusiasm of those who did recant. While these results were necessarily ascribed at the time to the powers of persuasion of the Inquistadores, it is evident in retrospect that something was happening which was often beyond their control. The same facts come to light in the long history of Russian political interrogation. In the Leninist period, the success of the immensely tedious method of didactic interrogation then in use was similarly ascribed to the appeal of Marxist doctrine to reason. The fact is that in conditions of confinement, detailed history-taking without reference to incriminating topics and the forming of a personal relationship with an interrogator wo subscribes to a system of political or religious explanation, there may occur an endogenous and not always predictable process of conversion to the ideas and beliefs of the interrogator.'
Television teaches that confessions are the touchstone of law enforcement. Experience however teaches that confessions born of long detention under conditions of stress, confusion, and anxiety are extremely unreliable.
People arrested by the police may produce confessions that come gushing forth and carry all the earmarks of reliability. But detention incommunicado for days on end is so fraught with evil that we should hold it to be inconsistent with the requirements of that free society which is reflected in the Bill of Rights. It is the means whereby the commands of the Fifth Amendment (which I deem to be applicable to the States) are circumvented. It is true that the police have to interrogate to arrest; it is not true that they may arrest to interrogate. I would hold that any confession obtained by the police while the defendant is under detention is inadmissible, unless there is prompt arraignment and unless the accused is informed of his right to silence and accorded an opportunity to consult counsel. This judgment of conviction should therefore be reversed.
Mr. Justice CLARK, whom Mr. Justice WHITTAKER joins, dissenting.
Twenty-five years ago a jury found Reck guilty of the savage murder of Dr. Silber C. Peacock. His first attempt to upset that conviction came nine years later when he sought a writ of error to the Supreme Court of Illinois. It was denied by opinion. People v. Reck, 1946, 392 Ill. 311, 64 N.E.2d 526. This Court denied certiorari. Reck v. State of Illinois, 1947, 331 U.S. 855, 67 S.Ct. 1742, 91 L.Ed. 1862. In the same year the Illinois Supreme Court again denied Reck's application for discharge. The next year the United States District Court for the Northern District of Illinois did likewise. Then, in 1952, an application under the Illinois Post-Conviction Hearing Act, S.H.A. ch. 38, § 826 et seq. was filed to test the validity of Reck's 199-year sentence imposed 16 years previously. His application was denied after a full hearing by the trial court, and the Illinois Supreme Court affirmed by a unanimous opinion. Reck v. People, 1955, 7 Ill.2d 261, 130 N.E.2d 200. Petition for certiorari was again denied, without prejudice to the filing of appropriate proceedings in Federal District Court, 1956, 351 U.S. 942, 76 S.Ct. 838, 100 L.Ed. 1469. This case was then filed in the United States District Court where no witnesses were heard, the court being satisfied with reviewing the record. Once again relief was denied, D.C., 172 F.Supp. 734, and the Court of Appeals affirmed. 7 Cir., 274 F.2d 250.
Today-25 years after his conviction-this Court overturns the decision of the original trial judge, the judgment and findings of a state trial judge on post-conviction hearing, the unanimous opinion of the Supreme Court of Illinois on that appeal, decisions of both the Supreme Court of Illinois and a federal district judge on separate applications for habeas corpus and, finally, those of a federal district judge and Court of Appeals in this case. All of these courts are overruled on the ground that 'a totality of coercive circumstances' surrounded Reck's confession. The Court second-guesses the findings of the trial judge and those of the only other trial court that heard and saw any of the witnesses, both of which courts impartially declare the confession to be entirely voluntary.
The Court has quoted at length and with approval the summary of the evidence by the United States district judge. I quote in the margin the findings of the two state judges who saw the witnesses and heard the evidence, one a few weeks after the events, and the other sixteen years thereafter. A casual comparison of the three findings shows that the federal judge-to say the least-has imported conclusions and added embellishments not present in the cold record of the trial. I need only cite one example, where he finds that his 'cold summary * * * carries an unexpressed import of police brutality * * *.' While the Court of Appeals, at least sub silentio, overturned some of these findings, the State does not take issue with the basic facts in the summary but does strenuously object to its conclusory findings. Perhaps the explanation for these differences is best explained by the federal judge himself, when he finds that he has read '(t)he record * * * in the light most favorable' to Reck; and further that 'Reck's confession was tested before a judge and jury who had the opportunity to observe witnesses and weigh other fresh evidence at first hand while I must make my decision on the basis of a cold and ancient record, which can appear misleading.' (Emphasis added.)
Although the Court says that it proceeds 'upon the premise, as did the District Court, that the officers did not inflict deliberate physical abuse or injury upon Reck,' it nonetheless finds the confession to have been coerced. I assume, therefore, that the Court bases its reversal on psychological or mental coercion. In so doing it goes far beyond the holding of any of the prior cases of this Court.
I shall not repeat the facts except to note that Reck was arrested on Wednesday; he was not interrogated concerning Dr. Peacock's murder until Friday, when he immediately became ill, and was hospitalized; later that night all three of his confederates confessed; confronted with them on Saturday-each accusing him of participation in the murder-he confessed. There was no evidence of physical brutality, no request for counsel, nor, unlike Turner v. Commonwealth of Pennsylvania, 1949, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810, for relatives or friends. Nor did he ask for food or make any indication of any desire or need therefore, showing, in the light of the record, nothing more than the lack of interest in food of one who had suffered from stomach ulcers for years. How the Court can now-25 years later-find on this 'cold' record that these circumstances amounted to mental or psychological coercion is beyond my comprehension. I agree with the score of judges who have decided to the contrary.
Since mental coercion is the keystone of its rationale, the Court properly sets to one side the cases involving physical brutality, e.g., Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. While they dealt with factors bearing upon the mental state of the defendants, the Court properly distinguishes cases involving threats of mob violence, the wearing down of the accused b protracted questioning, threats against members of the defendant's family, and those in which deception was practiced. Nor can Reck be classified as a mental defective, as was the case in Blackburn v. State of Alabama, 1960, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242.
The Court relies heavily on Turner v. Commonwealth of Pennsylvania, supra. I do not agree that it presented this Court with 'a totality of coercive circumstances' significantly less 'aggravated' than the situation presented here. In Turner the Court reviewed the Pennsylvania Supreme Court's affirmance of petitioner's conviction by a jury. In the present case no claim is made that the codefendants' confessions, with which Reck was confronted, were in fact not made and did not in fact implicate Reck in the murder of which he was convicted. In Turner, however, the petitioner 'was falsely told that other suspects had 'opened up' on him.' 338 U.S. at page 64, 69 S.Ct. at page 1353. Such a falsification, in my judgment, presents a much stronger case for relief because at the outset Pennsylvania's officers resorted to trickery. Moreover, such a psychological artifice tends to prey upon the mind, leading its victim to either resort to countercharges or to assume that 'further resistance (is) useless,' and abandonment of claimed innocence the only course to follow.
Further, the issue of voluntariness of the confession in Turner was submitted to the jury, but the trial judge refused to charge 'that in considering the voluntariness of the confession the prolonged interrogation should be considered.' At page 65, of 338 U.S., at page 1353 of 69 S.Ct. And the appellate court considered it an indifferent circumstance that 'a convicted murderer' was held five days in jail. 358 Pa. 350, 356, 58 A.2d 61, 64. Finally, in Turner the 'Supreme Court of Pennsylvania affirmed the conviction in an opinion stressing the probable guilt of the petitioner and assuming that the alternatives before it were either to approve the conduct of the police or to turn the petitioner 'loose upon (society) after he has confessed his guilt." 338 U.S. at page 65, 69 S.Ct. at page 1353. This Court might well have disagreed in that case with findings so made, and, with less hesitation than is appropriate here, where the determinations of voluntariness have been so constant and so numerous, have reached an opposite conclusion. In this case we are not considering the validity of a conviction by certiorari to the court affirming that judgment. Voluntariness has not been here inadequately tested by a standard which refuses to take account of relevant factors. Cf. Rogers v. Richmond, 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. To the contrary, a proper standard has been successively applied by at least two trial courts and several appellate courts, no one of which felt itself forced to choose between what it considered equally undesirable results, and with whose conclusions this Court may not so lightly disagree.
Similarly, in Fikes v. State of Alabama, 1957, 352 U.S. 191, 196-197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246, also relied on by the Court, the confession was wrung from an 'uneducated Negro, certainly of law mentality, if not mentally ill.' Fikes 'was a weaker and more susceptible subject than the record in that case reveals Turner to have been.' Unlike Reck, Fikes was removed from the local jail to a state prison far from his home and the Court recognized that petitioner's location was a fact 'to be weighed.' So, too, in Fikes the petitioner's lawyer was barred from seeing him, unlike the situation here, where no request for counsel was made.
Of course, I agree with the Cor t that confession cases are not to be resolved by color-matching. Comparisons are perhaps upon occasion unavoidable, and may even be proper, as in a case 'on all fours' whose facts approach identity with those of the one claimed apposite. I do not find that to be the situation here, however. In my view, the Court today moves onto new ground, and does not merely retread the steps it took in Turner. In my judgment, neither the elusive, measureless standard of psychological coercion heretofore developed in this Court by accretion on almost an ad hoc, case-by-case basis, nor the disposition made in Turner requires us to disagree with more than a score of impartial judges who have previously considered these same facts. Perhaps, as these cases indicate, reasonable minds may differ in the gauging of the cumulative psychological factors upon which the Court bases its reversal, but in what case, I ask, has a court dealing with the same extrinsic facts, a quarter of a century after conviction, overturned so many decisions by so many judges, both state and federal, entirely upon psychological grounds? When have the conclusions of so many legal minds been found to be so unreasonable by so few?
Certainly, I walk across this shadowy field no more sure-footedly than do my Brothers, but after reading the whole record and the opinions of all of the courts that have heard the case I am unpersuaded that the combined psychological effect of the circumstances somehow, in some way made Reck speak. The fact is, as the Court of Appeals said, when confronted with and accused by all three of his confederates, Reck knew the 'dance was over and the time had come to pay the fiddler,' quoting from Mr. Justice Jackson's opinion for the Court in Stein v. People of State of New York, 1953, 346 U.S. 156, 186, 73 S.Ct. 1077, 1093, 97 L.Ed. 1522.

## Notes

* ↑ At an interview taking place a few weeks after his arrest in 1936, Reck knew that the Mississippi was a big river, that New York was a big city, that Washington, D.C., was our capital, and that Hoover preceded Roosevelt. But he was unable to divide 25 by 5; he did not know how many weeks were in a year, how many feet in a yard, how many quarts in a gallon, when Columbus discovered America, who the opponents were in the Civil War, or the capitals of Illinois, England, France, or Germany.
* ↑ Kennedy, The Scientific Lessons of Interrogation, Proc.Roy.Instn. 38, No. 170 (1960).
* ↑ Id., pp. 96-97.
* ↑ Id., p. 96.
* ↑ 'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.' Anatole France as quoted in Cournos, A Modern Plutarch (1928), p. 27.
* ↑ Id., p. 94.
* ↑ In ordinary circumstances, the police, under law, are to conduct investigations of crime by interview, and not by interrogation. Typically, it is the Grand Jury or a Court, not the police, which has the power to compel testimony, subject to the limitations of relevance and privilege. See United States v. Bufalino, 2 Cir., 285 F.2d 408, 415, 416, 420. To allow the police to use their power to arrest as a substitute for the power of subpoena is, I think, to strip the Fifth Amendment of its meaning.
* ↑ The original trial judge, after a hearing on the admissibility of the confession, stated:
* ↑ At the conclusion of the post-conviction hearing, the judge stated:
* ↑ E.g., Payne v. State of Arkansas, 1958, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Ashcraft v. State of Tennessee, 1944, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Harris v. State of South Carolina, 1949, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Spano v. People of State of New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.
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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