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United States v. Ziegele

decided: March 5, 1973.

UNITED STATES OF AMERICA, EX REL. GARY G. RUSH #42029, APPELLANT,
v.
EDWARD G. ZIEGELE, SUPERINTENDENT OF LEESBURG (NJ) STATE PRISON



Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 479-71).

McLaughlin, Van Dusen and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge.

State prisoner Gary G. Rush appeals from the order of the District Court for the District of New Jersey denying his petition for a writ of habeas corpus.*fn1 Rush claims that he is being held in custody unconstitutionally because (1) an involuntary confession was admitted into evidence during his trial, and (2) a number of trial court errors, when taken as a whole, amounted to deprivation of his right to a fair trial. We find no merit in either of appellant's claims and therefore affirm the order of the district court.

Rush was tried and convicted in 1964 for the January 18, 1962, felony murder of the co-owner of the Farm Tavern, Camden County, New Jersey.*fn2 A confession that he was involved in the murder, which Rush had made to detectives on December 26, 1962, was entered into evidence. Its admissibility had been approved by the trial court judge after a suppression hearing was held outside the presence of the jury.

Evidence presented at the suppression hearing established that Rush was 17 years old at the time he was questioned while confined as a juvenile offender at the Annandale Reformatory. He had a below average IQ, had been treated for mental illness at the Trenton State Mental Hospital from July 3 to September 17, 1962, and may have been schizophrenic at age 13. The testifying doctors also stated that Rush had been discharged from the state hospital because he had undergone a remission. The detectives who questioned Rush testified that the interrogation from 1:00 P.M. to 4:45 P.M. on December 26 had been conducted without threats, beatings or use of profanity. They said Rush had been allowed to attend supper and had voluntarily returned to confess after the meal.

A quite different version of the interrogation -- eight hours of constant questioning accompanied by beatings, threats and profanities -- was given by Rush at trial, but he refused to testify at the suppression hearing:

MR. KMIEC [Attorney for Rush]: If your Honor pleases at this time, I think the defendant Gary Rush wishes to make a statement for the record.

GARY RUSH: I'd rather not take the stand. At this point I would rather tell my story to the jury.

THE COURT: All right.

MR. KMIEC: I have advised Mr. Rush it's his decision to make, and that was his response to me, and I wish to make it clear for the purposes of the record.

THE COURT: All right, I would like to ask the defendant, is this a decision ...


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