Appeal from the United States District Court for the Western District of Pennsylvania. Civil Action No. 76-403).
Gibbons and Van Dusen, Circuit Judges, and Fisher*fn* , District Judge
George Schmidt, a state prisoner serving a sentence of life imprisonment for first-degree murder, appeals from the denial of his application for a writ of habeas corpus. He contends: (1) that he was deprived of due process of law when, while still a juvenile, he was committed for trial as an adult, without ever being brought before juvenile court; and (2) that he was convicted on the basis of a confession inadmissible under the United States Constitution. Without conducting an evidentiary hearing of its own, the district court rejected Schmidt's contention, relying on the state court record.
In this litigation, the state concedes that Schmidt has exhausted his state remedies on each of these issues, and that they are therefore properly before this court. We conclude that the district court properly rejected the first ground for habeas corpus relief on the basis of the state court record. As to the second ground, however, we conclude that that part of the state court record in which the admissibility of Schmidt's confession was adjudicated pursuant to Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), does not fairly support the state court decision. The district court should, therefore, have held an evidentiary hearing before deciding on Schmidt's application.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 10, 1964, about 4:00 A.M. two persons broke into the Caecilia-Mannerchor Club in Pittsburgh, Pennsylvania. While they were rifling the club's coin-operated amusement devices, they were surprised by Joseph Meier, a tenant in the same building. Meier was struck with a blunt instrument and received injuries from which he died.
On the morning of June 15, 1964, George Schmidt, then seventeen years old, was taken into custody under a warrant charging him with suspicion of burglary and felony murder. The Commonwealth of Pennsylvania has subsequently conceded that no affidavit, establishing probable cause, justified the issuance of the warrant. According to the Commonwealth, however, no warrant was required if the officer in fact had probable cause to make the arrest. The state court record is devoid of any evidence showing the existence of such cause.
On the evening of June 19, 1964, George Schmidt made the incriminating statement, the admissibility of which is now in dispute. From the time of his arrest until his confession, Schmidt had been held incommunicado, except for a short visit with a priest. He had first been transported to No. 1 Police Station, where he had been received by Detective Tercsak at approximately 10:30 A.M. on June 15. Interrogation had commenced at 11:00 A.M. and - carried on by eight teams of two interrogators each - had continued for forty hours over five days. Throughout this time Schmidt had consistently denied his participation in the burglary and resulting murder. Finally, at 8:45 P.M. on June 19 he was brought into the presence of two alleged accomplices, Kenneth Baurle and William Thornton, who repeated in his presence their earlier confessions implicating him. After hearing their incriminating statements, Schmidt acknowledged that he was in the Caecilia-Manner-chor Club during the burglary and that he struck Meier. Up to this time Schmidt was without counsel.
In September, 1964, George Schmidt was indicted for first-degree murder. At no time was he brought before juvenile court. Instead, a coroner's inquest was held at which he was represented by court-appointed counsel. The coroner's jury found probable cause to bind him over to the grand jury, which subsequently indicted him.
After the indictment, Schmidt's attorney moved to suppress all evidence of his statement to the police. Thereafter, an evidentiary hearing, as required by Jackson v. Denno, was held. The court, making findings of fact, denied the suppression motion. As will appear, the record and findings in that hearing are critical to the disposition of this appeal.
At his trial in February, 1965, Schmidt was convicted. Post-trial motions were overruled, and on direct appeal the Supreme Court of Pennsylvania affirmed the conviction over a vigorous dissent. Commonwealth v. Schmidt, 423 Pa. 432, 224 A.2d 625 (1966). Justice Roberts in dissent argued that Schmidt's confession had been improperly admitted. Thereafter, Schmidt proceeded under Pennsylvania's Post Conviction Hearing Act, 19 P.S. §§ 1180-1 et seq., alleging five errors which had not been disposed of on direct appeal.*fn1 After a hearing on this petition the Pennsylvania trial court refused relief. On January 19, 1973, the Pennsylvania Supreme Court affirmed. Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973). Among the five errors asserted in that petition was the contention that the confession was the fruit of an illegal arrest and therefore inadmissible under Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). This argument was rejected on the ground that there had been a deliberate choice not to raise it in the pretrial Jackson v. Denno hearing. Also rejected was an argument based on the fact that Schmidt had been deprived of a hearing in the juvenile court on the question of whether he should have been treated as a juvenile offender.
Having exhausted state court remedies, Schmidt filed on April 1, 1976, a federal habeas corpus petition, which resulted in the order appealed from.
II. THE ABSENCE OF JUVENILE COURT PROCEEDINGS
At the time of Schmidt's arrest and trial, the Juvenile Court of Allegheny County had jurisdiction over "all crimes... whatsoever... wherein the person charged is a child under eighteen years of age." 11 P.S. § 269-202(f).*fn2 Schmidt never appeared before that court. The Commonwealth argues that the Court of Oyer and Terminer has discretion under 11 P.S. § 269-413 to retain jurisdiction over juveniles between sixteen and eighteen charged with murder. The difficulty with this argument is that the state court record contains no evidence of a hearing on the question of transfer. If transfer to juvenile court could have conferred on Schmidt any substantial benefit, then a transfer hearing would be constitutionally required. Kent v. United States, 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966).
The Supreme Court of Pennsylvania did not, however, rest its rejection of Schmidt's juvenile claim on the discretion, exercised without a hearing, of the Court of Oyer and Terminer. Instead, construing the Juvenile Court Law of Allegheny County consistently with the general Juvenile Court Law, 11 P.S. §§ 243 et seq., it held that the sole responsibility of a juvenile court in a murder case is to determine whether the Commonwealth has made out a prima facie case. If it is determined that the Commonwealth has borne its burden, then the defendant must be held for indictment and trial in the regular criminal courts. In Schmidt's case the same determination of probable cause was made in a coroner's inquest, at which he was represented by counsel. Commonwealth v. Schmidt, 452 Pa. at 203, 299 A.2d at 264. Thus, all he lost by the failure of the Court of Oyer and Terminer to transfer his case was the determination of probable cause by a juvenile court judge, rather than by a coroner's jury.
We are bound by the Pennsylvania Supreme Court's interpretation of the Commonwealth's statutes. If the role of a juvenile court judge in a murder case is so circumscribed, then we must agree that transfer to the juvenile court would have afforded Schmidt no significant benefit. We must therefore agree that the absence of a hearing on transfer did him no prejudice. It is, nonetheless, a circumstance, among many others, bearing upon the length of his interrogation and therefore, ultimately, upon the voluntariness of his confession.
III. THE DETERMINATION OF VOLUNTARINESS
The Jackson v. Denno hearing in Schmidt's case was held after the decision in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), but before the decision in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and in Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966). Judge Graff conducted a hearing and made findings of fact before denying the motion to suppress. Reviewing the admissibility of Schmidt's confession on direct appeal, the Supreme Court of Pennsylvania divided sharply, both in approach and in result. The majority, joining in an opinion by Justice Eagen, declared:
After a careful consideration of all of the testimony in the record concerning the circumstances under which the incriminating statements of Schmidt were obtained, it is our studied conclusion that the question of the voluntariness thereof was for the jury to decide. Hence, the court below did not err in admitting the evidence thereof at trial or in refusing to suppress it. The evidence offered by Schmidt, indicating the statements resulted from abusive and overborneing [sic] police conduct, did not in itself render the evidence inadmissible. In view of the Commonwealth's testimony, which amply supported the conclusion that the statements were the free and voluntary act of Schmidt and obtained in the absence of physical and psychological coercive circumstances, it was for the jury to assess all of the testimony and determine the true facts. The verdict clearly indicates its findings. Moreover, two judges below who, on separate occasions, heard all of the testimony concerning the circumstances under which the statements were elicited arrived at the same conclusion, namely, that the statements were freely and voluntarily made. Our conclusion is to the same effect.
423 Pa. at 438, 224 A.2d at 628. Thus in its review, the majority placed primary emphasis on the jury's determination, made only passing reference to the Jackson v. Denno hearing, and, to the extent revealed by the opinion, made no analysis of the testimony at the ...