McLaughlin, Forman and Freedman, Circuit Judges. Freedman, Circuit Judge, dissenting.
On February 10, 1947, the appellant, Louis McCloud, at present an inmate of the Correctional Institution, Philadelphia, Pennsylvania, was arrested with several others. He asserts that but for a perfunctory appearance before a magistrate on February 15, 1947, they were detained until February 18, when they were taken before the magistrate for a preliminary hearing. Thereafter appellant was remanded to jail pending grand jury action.
A grand jury returned to the Court of Oyer and Terminer and General Jail Delivery of the County of Philadelphia twenty-two true bills of indictment against appellant and one or more codefendants on April 16, 1947. The charges were chiefly for assaults and robberies while armed. Appellant pleaded guilty to each indictment on April 21, according to an endorsement on its cover, and on May 1, he was sentenced to a term of not less than 15 nor more than 35 years.*fn1
In 1960 he was released on parole. However, he was returned to prison as a violator in 1961, meanwhile having been convicted of another offense in Bucks County, Pennsylvania.
Appellant's first attack upon his sentence came with the unsuccessful pursuit of his post conviction remedies in the courts of Pennsylvania in 1965. His petition for a writ of habeas corpus was dismissed without hearing by the Court of Common Pleas Number 3 of Philadelphia at No. 1392 June Term 1965. Its action was affirmed by the Pennsylvania Superior Court, Commonwealth ex rel. McCloud v. Rundle,*fn2 and the Pennsylvania Supreme Court denied leave to appeal.
Thereupon appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Its finding that he had exhausted his state court remedies is not in dispute. In his petition appellant alleged that following his arrest he and his co-defendants were detained in various police stations where police officers subjected him to long interrogations, prevented him from sleeping and failed to supply him with proper food. They also beat him and held him incommunicado for eight days, when they had coerced a confession of the offenses for which he was subsequently indicted. Only then was he taken before a magistrate for preliminary hearing. He contended that the confession so extorted from him tainted the guilty pleas later entered. Also he asserted that the pleas were induced by the police officers' threats and deceitful representations that a lenient sentence would be imposed on him by reason of his youth and because his record was free from any previous serious crime. The District Court held a hearing in which the appellant appeared pro se. Subsequently a second hearing was afforded at which time appellant was represented by an attorney of the Defender Association of Philadelphia. The District Court denied the petition but granted appellant's motion for a certificate of probable cause.
This appeal followed which appellant grounded on the failure of the District Court to sustain his attacks upon the confession and guilty pleas. He reiterated the arguments made to the District Court and emphasized that at the time of the entry of the pleas he was ignorant of their import being but 19 years of age with the intelligence of only a middle grade moron with no prior criminal record*fn2a and that
"he was not questioned by the court as to his knowledge of the charges against him, his understanding of his pleas, his willingness to plead nor about any threats, coercion, * * * or reasons, in regard to the circumstances surrounding the entering and accepting of the plea."
In addition he emphatically asserts that his pleas of guilty were motivated by his coerced confession and that this tainted and rendered them invalid as violative of his due process under the Fourteenth Amendment.
In its opinion*fn3 the District Court conceded that the problem of deciding whether the confession by appellant was involuntary, first raised eighteen years after the event, was a perplexing one.*fn4 It closely analyzed the testimony of the appellant describing the alleged illegal police conduct. It also examined that of an attorney, Louis Lipschitz, Esq., called by appellant to corroborate his charges of police brutality. Mr. Lipschitz represented one of appellant's co-defendants, William Roberts, and testified to observing bruises and discolorations on his client and on the other defendants when they were brought before the magistrate on February 18, 1947. He also testified that on the occasion of a visit in an office on the second floor of the police station he noticed a length of rubber hose. It was on this floor that the defendants were confined.
Although the District Court was not inclined to place credence in appellant's story of the alleged misconduct of the police officers in connection with the confession, the testimony of Mr. Lipschitz gave it pause and made it regret the questions raised could not be answered because the participants were no longer available. It found, as pointed out by the Commonwealth, that there were inconsistencies in appellant's testimony and concluded:
"In view of the many inconsistencies alluded to above, as well as several gaps left open in the record which can never be filled in, it is impossible for this Court to state categorically whether relator's confession was, in fact, involuntarily induced by the police. We are of the opinion that relator has not sustained his burden of proof with respect to that issue."*fn5
The undisputed fact alone that appellant was held incommunicado by the police from February 10 until February 18, shortly after the time of his confession, bears sharply upon the voluntariness of a statement secured from him after such lengthy custody.*fn6 Little is to be gained, however, by questioning the soundness of the District Court's conclusion that appellant failed to sustain his burden of proving that his confession was involuntary for, as did the District Court, we may assume for the purposes of argument that the confession was indeed coerced.*fn7 Had the ...