Biggs, Chief Judge, and Forman and Smith, Circuit Judges. Forman, Circuit Judge (concurring). McLAUGHLIN, Circuit Judge (dissenting).
These are appeals from denials of writs of habeas corpus by the court below. The petitioners-appellants, Russo and Bisignano, with a co-defendant, LaPierre, were indicted and convicted of murdering a policeman in Newark, New Jersey. The murder was committed while Russo and Bisignano were engaged in the commission of the felony of attempting to rob a tavern. The convictions were affirmed by the Supreme Court of New Jersey, State v. LaPierre, 39 N.J. 156, 188 A.2d 10 (1963). Bisignano attempted to have his conviction reviewed by the United States Supreme Court, but certiorari was refused. Bisignano v. New Jersey, 374 U.S. 852, 83 S. Ct. 1920, 10 L. Ed. 2d 1073 (1963).
The operative facts are as follows. At approximately 11:15 on the night of March 15, 1961, Russo and Bisignano, with LaPierre, attempted to "holdup" a tavern in Newark, New Jersey. Bisignano and Russo entered the tavern; Russo, brandishing a revolver, announced their purpose. Joseph Hagel, an off-duty policeman, was present and drew a pistol in an attempt to prevent the robbery. Shots were exchanged; Hagel was mortally wounded, while Russo was struck by a bullet in his right arm. Russo, LaPierre and Bisignano then fled from the tavern. LaPierre was quickly apprehended by Newark police officers less than three blocks from the scene of the crime. Soon thereafter, Russo was seized approximately five blocks from the tavern. Bisignano was arrested the following morning.
When LaPierre and Russo were placed under arrest, they were first taken back to the tavern. None of the four eye witnesses to the shooting was able to identify LaPierre since, as it later developed, LaPierre had been stationed outside of the tavern in the "getaway" car. Russo was identified immediately as possibly being one of the two men who had attempted the robbery, although none of the four witnesses positively identified Russo.
LaPierre was then taken to police headquarters while Russo was taken to a hospital for treatment of his wounded right arm. He was admitted to the hospital in the early morning of March 16. After emergency treatment was rendered to Russo, he was questioned for a short time by four members of the Newark police force, but he refused to admit complicity in the crime. Russo also refused to permit an operation to excise the bullet from his arm. However, the pain from the bullet became excruciating and, on March 17, he submitted to an operation. He was accompanied to the operating room by a police officer. Upon return to his hospital bed from the operating room, Russo, for the first time, admitted his participation in the attempted hold up under the questioning of two police detectives. After the operation, Russo was detained at the hospital until March 24, at which time he was released from the hospital in the custody of the police. It is undisputed that during Russo's entire detention in the hospital he was under constant police guard. In addition, he was shackled to the bed to prevent, we assume, any possibility of escape. Interrogation at the hospital was sporadic and it appears that no sustained interrogation was made between the oral admissions on the 17th and his release from the hospital on the 24th.
Upon Russo's release from the hospital he was taken directly to an interrogation room at police headquarters. He was questioned there for approximately two hours before he confessed orally. Russo was then detained in the interrogation room for an additional three hours so that his oral statement could be reduced to writing and signed by him.
Russo was not taken to a magistrate for a preliminary hearing until March 28. At that time, Russo's hearing was postponed until April 4. No explanation appears in the record as to the reason for the postponement,*fn1 but it is relevant to note that the Grand Jury returned an indictment on March 30.
At the trial in the Essex County Court, Law Division, held at Newark, New Jersey, there was psychiatric testimony to the effect that Russo was within "the lower reaches of the average range of intelligence." There was also evidence that Russo "was markedly deficient with respect to his capacity for verbal abstraction, the capacity to think abstractly, and the capacity to evaluate external reality with any validity, with any substance, with any genuine understanding of what is going on around him * * * that his social judgment and perceptual alertness were massively impaired with respect to what the norm might be."
Bisignano was arrested on the morning of March 16 at approximately 10:30 and was taken immediately to a soundproof interrogation room. He was questioned for about two and a half hours by at least nine different policemen working in relays of four and five. During this interrogation period LaPierre was seated outside of the interrogation room. At frequent intervals, policemen questioning LaPierre would check his answers with Bisignano's answers and Bisignano's answers were checked against LaPierre's answers. In addition, the answers of both were being checked against a statement given to the police by Veronica Szmatowicz, who was Russo's financee, who had been arrested with Bisignano that morning. As a result of this cross-checking of stories, it is difficult to determine accurately how many police officers actually participated in the questioning of Bisignano.
Bisignano finally admitted orally his complicity in the crime at about 1:30 P.M. There was then a break in the interrogation process of about two hours. Then, from approximately 3:30 P.M. until approximately 6:30 P.M., Bisignano's oral statement was reduced to writing and signed by him. He was not permitted to see any visitors until after his written statement was signed.
Bisignano was not taken to a magistrate until March 20, at which time his hearing was postponed to March 28. The hearing was again postponed until April 4, at which time he had already been indicted. See note 1, supra.
On the day following their respective confessions, Russo and Bisignano were taken to the tavern and asked to re-enact their crime, which they did, thereby further incriminating themselves.
The court below made an affirmative finding, well-supported and uncontroverted by the record, that neither Russo nor Bisignano were at any time prior to the signing of their confessions informed that they had a right to remain silent, that they had a right to counsel and that anything they said could be used against them. It appears that it was not until April 4 that the two were informed of their rights.
It should be noted further that Bisignano rested on the transcript of the state court trial at his federal habeas corpus hearing. Russo offered some additional evidence in the way of new evidence in addition to his reliance on the state trial transcript.
Russo and Bisignano assert that any confession made during an illegal detention is inadmissible at trial. There is no doubt that the detentions were illegal under New Jersey law, see note 1, supra, and that the Newark police force disregarded the rights secured to an arrested person under the law of New Jersey. The petitioners-appellants press the point that the circumstances under which their confessions were obtained transgressed the rights secured to them by the Fourteenth Amendment and therefore were inadmissible in evidence. While it is the rule in federal prosecutions that confessions obtained in these circumstances must be suppressed, Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), this exclusionary rule is a function of the supervisory power of the federal courts over federal prosecutions and does not rise to the dignity of a constitutional prohibition. Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Stroble v. State of California, 343 U.S. 181, 197, 72 S. Ct. 599, 96 L. Ed. 872 (1952); Gallegos v. State of Nebraska, 342 U.S. 55, 72 S. Ct. 141, 96 L. Ed. 86 (1951). It follows that this defense asserted by the appellants must fall.
Both Russo and Bisignano testified that the confessions were the product of physical beatings and punishment, accompanied by threats of more physical harm. Russo also testified that while at the hospital he was subjected to physical punishment and torturous treatment by the police. Bisignano testified that the police threatened to arrest his wife if he did not confess. The evidence of the petitioners was corroborated to some degree by the statements of various witnesses who testified that they saw bruises or heard complaints by Russo and Bisignano of police brutality. The police denied all accusations of physical abuse, threats or promises and, in fact, testified that both petitioners cooperated with them in solving the case. The State produced additional testimony to rebut the inferences of physical abuse. It is clear that there was a conflict in the evidence and that the issue was solely one of credibility. Under these circumstances, we must accept the findings of fact made by the triers of fact, here the New Jersey state court and the court below. Both found no physical coercion and we are bound by that finding. Haynes v. State of Washington, 373 U.S. 503, 515, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963); Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Watts v. State of Indiana, 338 U.S. ...