Gallegos v. Colorado/Dissent Clark
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
As Chief Justice John Marshall said a century and a quarter ago, '(i)f courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined.' Cherokee Nation v. Georgia, 5 Pet. 1, 15, 8 L.Ed. 25 (1831). A 14-year-old boy stands convicted of murder and has been sentenced to imprisonment for life. But, as Mr. Justice Paterson said in Penhallow v. Donane's Admr., 3 Dall. 54, 88-89, 1 L.Ed. 507 (1795), 'motives of commiseration, from whatever source they flow, must not mingle in the administration of justice.'
The Court sets aside the conviction here on due process grounds, finding that the formal confession made by petitioner on January 7 was obtained by 'secret inquisitorial processes' and other forms of compulsion. In so doing it turns its back on the spontaneous oral admissions made by petitioner at the time of arrest on January 1, as well as a detailed confession made the next day, all long before the formal confession was given five days later. Moreover, I find nothing in the record that suggests any 'secret inquisitorial processes' were used or any compulsion was exerted upon petitioner even during that longer period. With due deference I cannot see how the Court concludes from the record that petitioner was 'cut off from contact with any lawyer or adult advisor' and 'made accessible only to the police,' that there was a failure to bring him before the juvenile judge in the manner required in juvenile delinquency cases, or that Gallegos' case is in anywise on the same footing with Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), or the other cases cited by the majority.
As the Court says, 'the totality of circumstances' is the only guide we have in confession cases. However, in view of the hop, skip, and jump fashion in which the Court deals with them here, I believe it is first necessary to detail the facts.
The record through the testimony of Officer Chism, a special juvenile officer, shows that on Thursday evening, January 1, he was investigating the assault on Mr. Smith,  an 80-year-old man, when he noticed three boys who appeared to fit the description furnished him of the ones involved. The three, who were sitting on the curb outside of Dutchman's Inn, were the Gallegos brothers: petitioner Robert (14), Charles (12), and Richard (8). The officer, who was alone and in street clothes, stopped his car across the street from the inn. He approached the boys, told them he was a police officer, and asked them to come over and sit in his car. They did so and the officer asked them about the Smith assault. Richard orally confessed, and the petitioner 'admitted he had a part in it.' Officer Chism then took the boys to Juvenile Hall where the petitioner again admitted his participation, as did his youngest brother, Richard. Both stated that the third brother, Charles, had nothing to do with the matter, but that their cousin, Eddie Martinez, had accompanied them. Charles, having been cleared of any involvement in the assault, was taken home that very evening by Officer Chism, who told Mrs. Gallagos that the petitioner and Richard were being held at Juvenile Hall and that visiting hours were on Monday and Thursday evenings. He also informed her of her sons' right to counsel.
The next evening, January 2, Officer Chism talked to the petitioner, Richard, and Martinez, who by this time was also at Juvenile Hall. As the officer took notes,  petitioner again described his participation in the assault on Mr. Smith in the following manner as narrated by Officer Chism at the trial:
'(After his participation in an assault on a Mr. Kruhd,) he proceeded down to 18th and Curtis Street where he was shining shoes. * * * (U)pon seeing an old man, who was later identified as Robert F. Smith, he followed him to a hotel on 18th street. * * * (H)e * * * was with his younger brother, Richard, and one Eddie Martinez. * * * They followed the old man to the hotel and Richard stayed downstairs and watched out for cops. He and Eddie went upstairs and they lost track of the old man; they asked several if they had seen his grandfather come in, that he had just come in and was drunk * * * (and) a man told * * * (them) he just went down the hallway, and upon knocking on the door a man opened the door and he told him he was looking for his grandfather, that he was drunk, and the man told him the old man next door had just come in. He said upon knocking on the other door someone told him to come in, that he opened the door and he seen it was the man he was looking for. * * * (A)t that time Eddie Martinez asked the old man for a drink of water and when the old man brought the water Eddie grabbed him and he, Robert, hit the old man about the head and face with a shoe brush; that when the old man fell to the floor he took a knife and held it to the old man's throat and took his billfold out (of) his back pocket. * * * (T)hey all left then and went to the Twenty-third Street Viaduct where he gave Eddie $3.00 and he kept $10.00 to split between him and Richard and they then went home * * *.'
That same evening, January 2, at 11:30 p.m., Mrs. Gallegos attempted to visit her two sons at Juvenile Hall but was again informed that visiting hours were 7 p.m. to 8 p.m. on Mondays and Thursdays. At the trial she testified that she made no effort to see her sons on the next visiting day, which was Monday, but waited until Thursday, January 8.
The record shows that on January 3 the officer filed in the juvenile court a detailed report of the arrest and petitioner's confessions together with a petition charging petitioner with juvenile delinquency. This was supplemented on the 5th by the report of the Kruhd assault and Kruhd's identification of petitioner and the other boys. The officer followed, as he was obliged to do, the juvenile court law of Colorado which provides for commitment in Juvenile Hall, report to the juvenile judge who supervises the Hall and its inmates, and the filing of a delinquency petition.
For the first few days at Juvenile Hall petitioner was placed in 'security,' which meant that he did not participate in the school program. The uncontradicted testimony of the Hall Superintendent was that the decision to keep the petitioner out of the program was made by his unit supervisor in order to size up the boy, who had been charged with a serious crime, before placing him in the regular activities with the others. During this time he had all his meals with the other boys and conversed with his younger brother who was held in another ward. Although the petitioner did not testify at the trial in the presence of the jury, he admitted at a hearing held to determine the admissibility of the formal confession that he was only questioned three times between January 1 and January 7 and that no threats or physical coercion was used at any time.
On January 7 the police department sent a man over to formalize the earlier confessions. Officer Miller, who took the confession, testified that he told petitioner of the possibility of a murder charge, warned him that he did not have to make a statement, and told him that he could have his parents and an attorney present if he desired. Petitioner indicated that he did not so desire and a formal confession was taken which was substantially identical to the statement given on January 2, as related by Officer Chism in his testimony. The confession was typed, and Officer Chism took it over to Juvenile Hall for petitioner to sign. He testified that petitioner read it aloud before signing it. Above his signature was the admission that the confession was made voluntarily and upon warning that it could be used against him.
On January 16 the three assailants were committed to the Industrial School by the juvenile court. Upon the death of Mr. Smith, petitioner on information was tried for murder. As noted above, the evidence included testimony of his admissions upon arrest and his confession on January 2, as well as the formal confession of January 7. These were admitted after independent findings of voluntariness by the trial judge and jury. The latter was instructed that in determining whether petitioner freely and voluntarily made the confessions it was to take into account 'the age, maturity, physical and mental condition of the defendant, the length of his confinement, his opportunity or lack of opportunity to seek friendly or professional aid, the advice or lack of advice given him as to his constitutional rights, and all other facts and circumstances surrounding such confession.'
Before discussing the admissibility of the formal confession of January 7, I must first comment on the Court's treatment of the earlier confessions, viz., those of January 1 and 2. Although the Court carefully refrains from holding these confessions inadmissible under due process standards, its innuendo that they were acquired 'in callous disregard of this boy's constitutional rights' cannot pass unexposed. In regard to these confessions, the test of voluntariness as evidenced by the 'totality of circumstances' leads the Court not to question them. Here there were no 'secret inquisitorial processes' or compulsion of any kind as the Court envisions in relation to the confession of January 7. The Court's only criticism is that petitioner 'would have no way of knowing what the consequences of his confession were without advice as to his rights * * *.'  The truth of the matter is that the singular circumstance pointed out by the Court has never been thought to render a confession inadmissible. See Culombe v. Connecticut, 367 U.S. 568, 577-602, 81 S.Ct. 1860, 1865, 6 L.Ed.2d 1037 (1961) (opinion of Mr. Justice FRANKFURTER).
The Court is overturning petitioner's conviction because it flows in part from the formal confession of January 7. I cannot draw from this record a conclusion that this confession was involuntary. Petitioner freely admitted in testimony before the trial judge that he was not threatened or physically coerced in any way and that he was not intensively questioned. Moreover, prior to the formal confession he was told that he did not have to make a statement and warned of the possibility of a murder charge, as well as informed that he could have an attorney and his parents present. Officer Chism's testimony as to this matter was documented by the confession itself which recites that it was voluntary and given after notice that it could be used against him.
Petitioner was never placed in solitary confinement, as might be implied from the Court's opinion, but was merely kept out of the organized activities until the unit supervisor could determine whether his full-time participation would have an adverse effect on others. And even under this schedule he had all his meals with the other boys and conversed freely with them.
Nor was petitioner 'cut off' from contact with lawyers or adults and 'made accessible only to the police.' His mother made no effort to obtain an attorney although informed of the right to do so.  And she was not prevented from seeing him but was merely asked to comply with reasonable visiting regulations. She was informed on two occasions that she could see him Monday, January 5, two days before the formal confession which the Court finds invalid, but she did not attempt to do so. And petitioner himself passed up the offer to confer with his parents and an attorney before making this confession.
In support of the above factors indicating that the confession of January 7 was voluntary is the undeniable fact that petitioner admitted on January 1 his participation in the assault and confessed in detail thereto on January 2. Both of these statements occurred prior to the events which the Court finds to have coerced the confession of January 7. I am hard pressed to understand how one could conclude that the police found it expedient to coerce the January 7 confession or that the events discussed by the Court rendered it involuntary when five days earlier a substantially identical confession was made in the absence of the 'coercive' events.
As I have noted, in light of these facts I cannot conclude that this confession was involuntary. A fortiori, I could not determine, as the Court must, that so clear a case of coercion was made out that three prior findings that the confession was voluntary-including one by the jury which was specifically instructed to consider each of the factors relied on by the majority-can be reversed. I have carefully examined the cases upon which the Court relies and can find not one among them which in the least is apposite. There were no 'secret inquisitorial processes' as in Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). There Chambers, a Negro, for a week after arrest was kept incommunicado, moved from one jail to another, constantly questioned, and was finally subjected to around-the-clock interrogation by a relay of from 4 to 10 persons. Nor does Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), in any way resemble this case. There the accused had requested a doctor in order to get relief from a painful sinus attack. The police brought in a psychiatrist who by subtle means induced him to confess after an hour or two of questioning. The state court found this confession invalid because of mental coercion. However, at the second trial subsequent confessions were admitted in evidence. This Court held that the psychiatric inducement used to extract the first confession poisoned and invalidated the subsequent ones. Likewise, the reference of the Court to Chief Justice Hughes' statement in Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682 (1936), concerning the 'element of compulsion which is condemned by the Fifth Amendment,' is misleading and inapposite. 'The question in this case,' he said in Brown with his usual conciseness, 'is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.' Id., at 279, 56 S.Ct. at 462. Brown and the other suspects, the Chief Justice pointed out, had been stripped, laid over chairs and beaten with a leather strap with buckles until their backs were cut to pieces and they confessed. Nor does the holding in Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944), have any bearing on this case. It also involved 'prosecutors serving in relays' keeping a person under continuous cross-examination for 36 hours without rest or sleep. Nor can it, in my view, be said that Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), has any weight under the facts here. In that case continuous, all-night cross-examination by four officers, the refusal of repeated requests to consult his counsel, together with the use of an old friend who was a fledgling police officer as bait to break down the accused, led us to invalidate the confession. And in Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945), the accused was stripped of his clothing and his request for counsel ignored while he remained in solitary confinement and without food until, led to believe that he was going to get a 'shellacking,' he confessed from apparent fear of his jailors. Finally, I see no similarity in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), the last case cited by the Court. There a 15-year-old boy never before in trouble was questioned 'through the dead of night' by five to six policemen in relays of one or two each and then only was led to confess by being shown alleged statements of two confederates incriminating him. Haley does not indicate that youth alone is sufficient to render a juvenile's confession inadmissible. Here we do not have any of the factors which led to the comment: 'What transpired would make us pause for careful inquiry if a mature man were involved.' Id., at 599, 68 S.Ct. at 303.
I regret that without support from prior cases and on the basis of inference and conjecture not supported in the record the Court upsets this conviction.
^1 At this time Smith was still alive. He died on January 26, and the murder prosecution here at issue followed.
^2 These notes were signed by petitioner.
^3 There is no basis for the Court's suggestion that the officers improperly failed to bring petitioner before the juvenile judge when they first arrested him. The procedure used in Denver of filing a report with the juvenile judge and temporarily placing the offender in Juvenile Hall pending a hearing is in keeping with advanced procedures being followed with reference to juvenile offenders throughout the United States.
^4 Indeed, no attorney was obtained for petitioner's trial in the juvenile court.