450 F.

2d 232

UNITED STATES of America ex rel. Edwin GOCKLEY,

Appellant,
v.
David N. MYERS, Superintendent, State Correctional
Institution, Graterford, Pennsylvania.
No. 19209.

United States Court of Appeals,

Third Circuit.
Argued March 5, 1971.
Decided Sept. 20, 1971.
Certiorari Denied Jan. 24, 1972.
See 92 S.Ct. 738.

H. Robert Fiebach, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa.,

for appellant.
Arthur Ed. Saylor, Sp. Asst. Dist. Atty., Edelman, Schaeffer, Saylor,
Readinger & Poore, Reading, Pa., for appellee.
Before HASTIE, Chief Judge, * and ADAMS and GIBBONS, Circuit
Judges.
OPINION OF THE COURT
HASTIE, Circuit Judge.

Appellant Gockley, a state prisoner, is serving a ten to twenty year term of

imprisonment after conviction of murder in the second degree of Clement
Smith. The conviction was affirmed by the Supreme Court of Pennsylvania.
Commonwealth v. Gockley, 1953, 411 Pa. 437, 192 A.2d 693.

In a petition to the district court for habeas corpus Gockley has alleged that his
conviction was unconstitutionally obtained through the use of an involuntary
confession extracted while he was under illegal arrest.1 After a full hearing the

district court held that the questioned confession was made voluntarily while
the accused was under lawful arrest. Accordingly, the petition was denied.
E.D.Pa.1970, 314 F.Supp. 839. This appeal followed.
3

We consider first the circumstances of Gockley's arrest as established by the

record. Properly concerned about the March, 1960 disappearance of Mabel
Klein, a local resident, the Reading police sought intermittently for several
months to discover her whereabouts. In August, hearing that Gockley had been
seen working on the Klein premises, police Captain Feltman questioned him
about the missing woman. He explained that she had gone to Georgia, that she
had left him with a power of attorney and a contract to make some repairs on
her property, and that she telephoned him periodically. Feltman asked Gockley
to bring in for inspection the contract and the power of attorney. Feltman
questioned Gockley again in September and again asked to see the documents
mentioned and requested during the earlier interview. Feltman and Gockley met
again, apparently by chance, in October and Gockley mentioned Clement Smith
as a person likely to have information about Mabel Klein. Upon inquiry, the
police discovered that Smith also had disappeared and learned that, upon the
basis of an authorization purportedly signed by Smith, his personal effects had
been surrendered to Gockley. On October 31, the police once more asked to see
the power of attorney and the repair contract. On this occasion they
accompanied Gockley to his home where he produced and surrendered two
documents, both bearing the purported signature of Mable Klein. On November
14, Captain Feltman sent the documents to the Federal Bureau of Investigation
in Washington for hand writing analysis. Expert examination indicated that the
signatures probably were not genuine and in December the documents were
returned to Feltman.

In the meantime, on November 16, two days after the documents had been sent
to Washington, a Policewoman Wanger appeared before a magistrate and
executed and submitted her affidavit as follows:

5
"That
on information received which affiant, upon investigation, verily believes to
be true that one EDWIN W. GOCKLEY did fraudulently make, sign, alter, utter and
publish a certain check in the sum of $200.00 dated March 8, 1960, payable to cash,
and drawn on City Bank and Trust Company of Reading, Pennsylvania, and did sign
the name of MABEL L. KLEIN to said check, to the prejudice of said MABEL L.
KLEIN and with intent to defraud the said MABEL L. KLEIN contrary to an Act of
Assembly in such case made and provided."
6

Upon the basis of this affidavit, the magistrate issued a warrant for Gockley's
arrest for alleged forgery. Subsequently, the magistrate testified that he had no

recollection whether he was given any other information than that set out in the
affidavit. The state has offered no proof that anything more was told to the
magistrate.
7

The district court, appropriately citing Giordenello v. United States, 1958, 357
U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 held the warrant invalid because it did
not appear from the affidavit or otherwise that the magistrate was supplied with
particular facts from which he could reasonably have reached an independent
conclusion that there was probable cause to believe that Gockley had forged the
checks in question. We agree that the present record compels the conclusion
that the arrest warrant was invalid. Cf. Whiteley v. Warden, decided March 29,
1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306.

On November 17, a Reading police captain and a state police officer took
Gockley into custody under the illegal arrest warrant. However, the district
court held, as urged by the appellee, that the arrest was legal because the police
had enough incriminating information to constitute probable cause justifying an
arrest without a warrant.

Since Gockley was arrested on a charge of forging a specified check, our

inquiry must be whether the police had information which would "warrant a
man of reasonable caution in the belief" that he had forged that document,
Carroll v. United States, 1925, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543.
It is not enough that the information at hand sufficed to arouse suspicion.
Henry v. United States, 1959, 361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134.

10

Certainly Gockley's statements about the disappearance of Smith and Miss

Klein, coupled with the subsequent inability of the police to find any
confirmation of his assertions concerning their whereabouts, were suspicious
circumstances. So too was his delay in producing Miss Klein's "power of
attorney." Yet there is nothing to show that the signatures on the documents he
ultimately produced and surrendered or on the check upon which the charge of
forgery was based were obvious forgeries. Indeed, the action of the police,
some two weeks after Gockley surrendered the document and only two days
before they sought a warrant for his arrest, in sending the power of attorney to
the FBI for report whether or not it seemed genuine indicates that at the time of
the arrest, the police were merely suspicious of Gockley's conduct and doubtful
about the authenticity of the documents. Without more to confirm those proper
suspicions we think that the arrest must be characterized as having been made
without probable cause.

11

We conclude that Gockley's arrest on November 17 and his detention through

11

We conclude that Gockley's arrest on November 17 and his detention through

November 19, the day during which he made an incriminating statement
concerning Smith's disappearance that thereafter was introduced in evidence
against him on a subsequent charge of murdering Smith, were illegal.

12

This brings us to the question whether the relation of the illegal arrest and
detention to the prisoner's statement was such as to make the subsequent use of
that statement as evidence against him a denial of due process of law, regardless
of any other coercive circumstances.

13

In Mapp v. Ohio, 1961, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d
1081 the Supreme Court announced that "all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority, inadmissible
in a state court." (italics added) Two years later, in Wong Sun v. United States,
1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the Court made the
admissibility of challenged statements of suspects after their illegal arrest turn
on the question whether the statements had "been come at by exploitation of
the illegality or instead by means sufficiently distinguishable to be purged of
the primary taint." 371 U.S. 488, 83 S.Ct. 417.

14

Judge, now Chief Judge, Friendly, concurring in Collins v. Beto, 5th Cir. 1965,
348 F.2d 823, has pointed out that Wong Sun involved statements of two
accused persons and that the rationale of the decision is illuminated by the
Court's invalidation of the statement of one but not of the other:

15 * * Wong Sun prohibits the introduction in a state criminal trial of a confession

"*
that is the result of an arrest violating the Fourth Amendment, just as Mapp prohibits
the reception of an object obtained through an unconstitutional search. Where the
problems become different is the less clear causal relation between the
unconstitutional act and the 'fruit.' When the police, by a search violating the Fourth
Amendment, seize contraband or overhear a conversation disclosing the location of
stolen goods, the connection between the unconstitutional intrusion and the booty
offered at trial is so automatic and inevitable that the latter is readily seen as the
'fruit' of the unconstitutional act. But when the object improperly seized is a person
and the alleged 'fruit' is a statement by him, there intervenes the individual's own
decision to speak. In Wong Sun itself the causal problems were at the temporal
extremes. Toy's statement, which the Court required to be excluded along with the
narcotics to which it led, came directly after '[s]ix or seven officers had broken the
door and followed on Toy's heels into the bedroom where his wife and child were
sleeping' and '[h]e had been almost immediately handcuffed and arrested.' 371 U.S.
at 486, 83 S.Ct. at 416. By contrast, Wong Sun's statement, held to have been
properly admitted despite his unlawful arrest, was made after he 'had been released
on his own recognizance after a lawful arraignment, and had returned voluntarily

several days later to make the statement * * *.' 371 U.S. at 491, 83 S.Ct. at 419." 348
F.2d at 834-835.
16

Also illuminating is the more recent case of Davis v. Mississippi, 1969, 394
U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, where the question was whether due
process required the exclusion of fingerprints obtained in booking a prisoner
after an illegal arrest. In excluding such evidence, the Court analogized and
affirmed the rule of Wong Sun, saying:

17 agree with and adopt the conclusion of the Court of Appeals for the District of
"We
Columbia Circuit in Bynum v. United States, 104 U.S.App.D.C. 368, 370, 262 F.2d
465, 467 (1958):
18
'True,
fingerprints can be distinguished from statements given during detention.
They can also be distinguished from articles taken from a prisoner's possession. Both
similarities and differences of each type of evidence to and from the others are
apparent. But all three have the decisive common characteristic of being something
of evidentiary value which the public authorities have caused an arrested person to
yield to them during illegal detention. If one such product of illegal detention is
proscribed, by the same token all should be proscribed,"' 394 U.S. at 724, 89 S.Ct. at
1396.
19

True, as Judge Friendly pointed out in his above quoted analysis, the direct
causal relation between an arrest and an incidental seizure of an article in the
possession of the person arrested, or between an arrest and the fingerprinting
required in the booking of all arrested persons, is clear and direct. On the other
hand the relation between an arrest and a statement given during the
consequent detention may be more attenuated. But the Davis opinion shows
that all are to be treated alike, at least so long as the evidence obtained can
fairly be said to be the "fruit" or "product" of the arrest.

20

This court has recognized the causal issue that is relevant where a statement is
obtained during illegal police detention following an illegal arrest. In
Commonwealth of Pennsylvania ex rel. Craig v. Maroney, 1965, 348 F.2d 22,
we said:

21
"There
are two factors which seem to be of major significance in determining the
relationship between an illegal arrest and, as here, the subsequent confession:
22 the proximity of an initial illegal custodial act to the procurement of the
(a)
confession; and
(b) the intervention of other circumstances subsequent to an illegal arrest which
23

provide a cause so unrelated to that initial illegality that the acquired evidence may
not reasonably be said to have been directly derived from, and thereby tainted by,
that illegal arrest." 348 F.2d at 29.
24

The arrest of Gockley on November 17 was much more than a causa sine qua
non of his November 19 statement during the resulting detention. The record
compels the conclusion that the very purpose of the arrest on a charge of
forgery was to obtain and maintain such control over him as would facilitate
persistent and effective interrogation about the disappearance of Smith and
Miss Klein. This deliberate misuse of arrest is underscored by the fact that
Gockley was never granted an arraignment or a bail hearing on the forgery
charge. At the hearing in the district court on this petition for habeas corpus,
Captain Feltman, the Reading police officer who had been in charge of the
Gockley case, was asked why Gockley was not taken before a magistrate. He
replied that he did not know, except that they were questioning him. Moreover,
much of the questioning was addressed to the obtaining of information about
the disappearance of Smith and Miss Klein, rather than the forgery charge upon
which he never was prosecuted.

25

While Captain Feltman's several statements in the record as to the length of the
periods of interrogation are to some extent conflicting, fairly read they show
police interrogation of the prisoner for several hours during the evening of
November 17, shortly after his arrest. He was questioned again during the day
of November 18. And that night he was questioned from 7:00 or 8:00 p. m. to
11:30 p. m. or 12:15 a. m., depending upon which of Captain Feltman's
statements of his recollection is accurate.

26

During the morning of November 19, the prisoner was removed from the City
Hall lockup to the State Police Barracks outside of the city, admittedly to
facilitate questioning. Interrogation continued from 11:00 a. m. until 2:00 p. m.
by which time the information incorporated in the statement bearing that date
had been obtained. During the interrogation of November 19, there was some
discussion of counsel. Gockley's testimony is that he requested counsel and was
told that he could not have counsel until the police had a sufficient case against
him. Captain Feltman's stated recollection was: "I didn't at no time say I would
see the judges to get him-who am I to see the judges to get him a lawyer?"

27

On the transcripts of the trial and the habeas corpus hearings, we find the
conclusion inescapable that, knowing they had insufficient evidence to
prosecute Gockley, the police arrested and detained him for the purpose of
questioning him without interruption, at greater length and more frequently and
effectively than could have been done while he was at large, and thus building

a criminal case against him. And this intended result was achieved. The "fruit"
which the police intended to harvest and did harvest from the illegal arrest and
detention was the very statement that is now challenged. That statement was
"directly derived from, and thereby tainted by * * * [Gockley's] illegal arrest"
and detention. See Commonwealth ex rel. Craig v. Maroney, supra, 348 F.2d at
29.
28

In these circumstances, there is no need to inquire whether the prisoner was

forced to talk or merely induced to do so without coercion beyond that inherent
in persistent interrogation during illegal detention. If the police are to be
deterred from using illegal arrest and detention as a means of obtaining selfincriminating statements, evidence thus obtained must be excluded.

29

A second statement made by Gockley on December 8 was also introduced in

evidence. It purports to be an amplification and correction of what he said on
November 19. Gockley had remained in custody during the intervening period.
He had been subjected to further interrogation. He had not had access to
counsel. Indeed, he had not communicated with anyone but the police.

30

True, on the basis of the November 19 statement a warrant had been issued
charging him with murder and his detention thereafter may be viewed as
grounded upon that charge. But because he never was free to communicate with
friends or counsel and made the second statement as an amplification of the
first, the invalidating taint of the first statement infected the second as well.
Both were fruits of the illegal November detention for the purpose of
interrogation.

31

The dissenting opinion correctly poses the critical questions in this case:
whether Gockley's arrest was illegal and, if so, whether his statements to the
police were the "fruits" of such illegal arrest. The record shows without
significant conflict in testimony the facts known to the police when they
arrested Gockley on a charge of forgery. What divides the court is a difference
in judgment whether those facts sufficed to create in the mind of a reasonably
cautious man anything more than suspicion that Gockley had forged a signature
on the check in question.2 Similarly, the relation of arrest and detention to the
prisoner's admissions does not depend upon any dispute as to what in fact
happened. We differ only in the significance we attach to essentially undisputed
facts.

32

The majority find the relation of cause and effect between illegal detention and
the detainee's statement to be direct and unmistakable, particularly since it is

clear that detention was intended to facilitate further interrogation needed to

build a case, rather than the prompt charging of the suspect on evidence already
at hand. We have pointed out in this connection that the excuse given by the
police for not taking Gockley before a magistrate was that they still were
questioning him. The dissenting opinion counters with the argument that the
fact that 44 hours (of which 12 or 15 were devoted to interrogation) elapsed
between arrest and completion of the prisoner's first statement "provided ample
time for dissipation of any taint obtaining from the arrest." But the wrong in this
case, the "taint," is not merely the illegality of the initial arrest but also the
illegality of the continuing detention pursuant to illegal arrest for the purpose of
controlled, persistent and repeated questioning such as could not have been
accomplished without arrest and detention. "It is not the function of the police
to arrest, as it were, at large and to use an interrogating process at police
headquarters in order to determine whom they should charge before a
committing magistrate on 'probable cause."' Frankfurter, J., in Mallory v.
United States, 1957, 354 U.S. 449, 456, 77 S.Ct. 1356, 1360, 1 L.Ed.2d 1479.
This is as true of state officers as of the federal officers whose conduct Mr.
Justice Frankfurter condemned.
33

The dissent also reasons that testimony to the effect that Gockley suffered from
"paranoia vira," a condition that made him a compulsive talker with "delusions
of grandeur," somehow insulated the illegal arrest and detention from the
prisoner's statements. But when the illegal detention is intended to and does
enable the police to question the suspect more persistently and effectively than
otherwise would have been possible, the fortuitous circumstances that a trait of
personality may have facilitated the enterprise is beside the point. We are
dealing with a consequence of violation of the Fourth Amendment, not a
question whether a confession was coerced within the meaning of the Fifth
Amendment. Indeed, this point in the dissenting argument amounts to no more
than saying that Gockley's personality defect may have made unconstitutional
procedure work better than it might have worked with some other suspect.

34

Part III of the dissenting opinion addresses itself to the question whether
Gockley's statements were so coerced that their procurement violated his Fifth
Amendment privilege against compulsory self-incrimination, despite the fact
that the court has not found it necessary to decide or even discuss that question
in this opinion. Rather, we have under-taken to demonstrate that the evidence in
question was the product of illegal arrest and detention, and thus was obtained
in violation of the Fourth Amendment guarantee against unreasonable search
and seizure. We now observe merely that the Fifth Amendment issue dealt with
by the dissent is not free from doubt, since it required between 12 and 15 hours
of interrogation during a 44-hour period of detention to obtain the challenged

statement; throughout this period the prisoner was denied counsel, and the
police would not take him to a magistrate until they had obtained the
admissions they sought. In cases of this sort, there is no sure way of locating
the boundary between persuasion and coercion. And there is no need to make
the attempt here.
35

Part IV of the dissenting opinion questions whether "federal habeas corpus is

an appropriate vehicle for the vindication of the fourth amendment rights" that
have been violated in the manner of procuring otherwise competent evidence.
The short, but in a lower court conclusive, affirmative answer to this question
has been given by the Supreme Court in the already quoted dispositive
language of Mapp v. Ohio, supra, that "all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority, inadmissible
in a state court." The Court has consistently adhered to that holding. The dissent
finds comfort in the fact that dissenting Justices occasionally have expressed
dissatisfaction with the Mapp rule. But that does not make it any less binding
upon us. Indeed, Chief Justice Burger, in his most recent and elaborate
criticism of the Mapp rule has been at pains to add that he would not "abandon
the Suppression Doctrine until some meaningful alternative [statutory remedy
against governments for police violations of Fourth Amendment rights] can be
developed." See Bivens v. Six Unknown Fed. Narcotics Agents, decided June
21, 1971, 403 U.S. 388, 420, 91 S.Ct. 1999, 2017, 29 L.Ed.2d 619. Otherwise,
he feared that the police might gain the impression that "an open season on
'criminals' had been declared." Id.

36

This does not mean that the majority would subscribe to the dissenting view if
this court were free to do so. More than ten years ago, the writer of this opinion
attempted to state the rationale of decisions like this in Bynum v. United States,
1958, 104 U.S.App.D.C. 368, 262 F.2d 465, 468-469, and language there used
has been quoted with approval as recently as Davis v. Mississippi, 1969, 394
U.S. 721, 725, n. 4, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676:

37 * * [T]he matter of primary judicial concern in all cases of this type is the
"*
imposition of effective sanctions implementing the Fourth Amendment guarantee
against illegal arrest and detention. Neither the fact that the evidence obtained
through such detention is itself trustworthy or the fact that equivalent evidence can
conveniently be obtained in a wholly proper way militates against this overriding
consideration. It is entirely irrelevant that it may be relatively easy for the
government to prove guilt without using the product of illegal detention. The
important thing is that those administering the criminal law understand that they
must do it that way. * * *"

38

Mr. Justice Brennan, speaking for the Court in Miller v. United States, 1958,
357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332, expressed the central
concept this way:

39 are duly mindful of the reliance that society must place for achieving law and
"We
order upon the enforcing agencies of the criminal law. But insistence on observance
by law officers of traditional fair procedural requirements is, from the long point of
view, best calculated to contribute to that end. However much in a particular case
insistence upon such rules may appear as a technicality that inures to the benefit of a
guilty person, the history of criminal law proves that tolerance of shortcut methods
in law enforcement impairs its enduring effectiveness. * * *"
40

In the Mapp case itself, Mr. Justice Clark stated in some detail why, in the
Court's view, the Fourth Amendment requires "that no man is to be convicted
[in a state or federal court] on unconstitutional evidence." 367 U.S. at 657, 81
S.Ct. at 1692. He considered and rejected the often repeated complaint that the
"criminal is to go free because the constable has blundered." Ordinarily, it is
not the "blundering" constable but the official who deliberately uses
constitutionally prohibited means of obtaining evidence, as was done in
Gockley's case, whose work product cannot constitutionally be used as
evidence. Moreover, it is not ordered in these situations that the "criminal go
free," but rather that the accused be retried on constitutionally acceptable
evidence. It is this requirement that, in Mr. Justice Clark's words, "founded on
reason and truth, gives to the individual no more than that which the
Constitution guarantees him, to the police officer no less than that to which
honest law enforcement is entitled, and, to the courts, that judicial integrity so
necessary in the true administration of justice." 367 U.S. at 660, 81 S.Ct. at
1694.

41

One other innovation proposed by the dissenting opinion calls for comment. It
is argued that federal habeas corpus should not be granted to a prisoner who has
been convicted by a state court, absent an allegation and some indication of
ultimate innocence by the prisoner. And it is concluded that habeas corpus
should be denied here because Gockley has not asserted his innocence and the
evidence of guilt is substantial.

42

Of course Gockley pleaded not guilty at his arraignment, so it is not clear what
would be gained by requiring him to do so again in his petition for habeas
corpus. In any event it is proposed that beyond asserting innocence, the
petitioner should be required to persuade the federal court that there is some
substantial doubt of his guilt. Presumably, if this requirement were imposed,
both sides would be entitled to introduce evidence on the issue of guilt or

innocence in the habeas corpus proceeding. At the conclusion of this quasitrial,

the federal court would be entitled to deny habeas corpus on the ground that the
state record and whatever new evidence had been introduced left the court
convinced of the petitioner's guilt. In the view of the majority, such inquiry
whether the accused is guilty is a role appropriate only for the courts of the
accusing state. The federal courts should confine their inquiry to the fairness of
the state procedure that led to conviction. Of course if the unfair procedure
clearly did not prejudice the accused, it could properly be disregarded.
Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. But
here the challenged admissions of the prisoner provided the only basis upon
which the jury could have found malice aforethought.
43

In sum, the dissenting opinion expresses considerably more than a preference

for the rule of Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed.
1782, rather than Mapp v. Ohio, supra, that overruled Wolf. It seems to
advocate retreat on a rather broad front from principles and concepts that now
govern federal action upon applications of state prisoners for habeas corpus.
For the reasons we have stated, this court is not persuaded that such retreat is
permitted under the authoritative pronouncements of the Supreme Court.

44

The judgment will be reversed. The district court will order the release of
Gockley unless, within a reasonable period to be specified in that court's order,
the state shall grant the prisoner a new trial.

45

ADAMS, Circuit Judge (dissenting).

46

In this case we are being asked to set aside the conviction of a man who killed
his friend, secretly buried in a common grave the friend's body and that of a
woman whose death precipitated the homicide, and for eight months attempted
to conceal the deaths and delude the police by leading a triple life based upon
lies and forged documents. The facts of this case have been extensively
reported before,1 and will not be repeated here except insofar as they may be
essential to the discussion.

47

A principal element of proof against petitioner consisted of two statements

made by him after his arrest.2 Petitioner contends that his arrest was invalid
because the affidavit in support of the warrant of arrest was insufficient and
because the police lacked probable cause for the arrest, in any event. He also
alleges that the two statements were coerced. For these reasons, contends
petitioner, the statements obtained subsequent to the arrest were inadmissible,2a
and a conviction based on them is a violation of the Federal Constitution.

48

There was some question at oral argument as to which party has the burden of
proof regarding the admission into evidence of the statements in question.
Since a petition for habeas corpus is a civil action, it is clear that the burden of
proof is on petitioner.3 In accordance with this precept, we must determine
whether petitioner demonstrated that his arrest and detention were illegal and if
so whether his statements constituted the "fruits" of such illegal arrest or
whether he demonstrated that the statements were involuntary or coerced.

49

* The first substantive question concerns the legality of petitioner's arrest and
detention. That the forgery warrant upon which the arrest was based is patently
invalid is beyond cavil. Whiteley v. Warden of Wyoming State Penitentiary,
401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Giordenello v. United
States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). However, that fact
alone does not vitiate the arrest if the arresting officers in fact had probable
cause to believe that a felony had been committed.4

50

Here, the arrest was made by the two police officers who were most intimately
involved with the matter, Captain Feltman of the Reading Police and Detective
Krause of the Pennsylvania State Police. These policemen were armed with a
battery of facts cumulated during a lengthy investigation.

51

By the middle of April, 1960, the police knew that Mabel Klein had
dissappeared approximately a month earlier. While investigating her
disappearance, they discovered that Gockley had been seen on her property. In
July, Captain Feltman, the detective in charge of the investigation, learned that
Gockley was again in Mrs. Klein's apartment, and had Gockley brought to City
Hall for questioning. Gockley was very cooperative at that meeting; he told the
police that he had a contract and power of attorney authorizing him to renovate
the building, that Mrs. Klein had married and moved south, and that she called
him every Friday.5 Feltman then asked to see the contract and power of
attorney, and to be notified if Gockley was again contacted by Mrs. Klein. The
next meeting between Gockley and the police occurred in September of 1960.
This meeting, like the one before it, was also prompted by Gockley's presence
on Mrs. Klein's property. When questioned about the contract and power of
attorney, Gockley claimed that he stopped working because he had not heard
from her. The third meeting occurred on October 20, 1960, while the police
were questioning Ethel Briggs about Mabel Klein's disappearance.6 Gockley
appeared at the door and suggested that the police check with Clement Smith.
Pursuing this lead, the police discovered that Smith also had disappeared in
March, that Gockley possessed the key to Smith's room and had attempted to
remove his possessions but was denied permission by the landlady, that the
landlady then received a note of authorization purporting to be from Smith, and

that Gockley thereafter squared accounts with her and removed Smith's mail
and furniture. By this time, the police had come into possession of checks and
other documents which purported to bear Mrs. Klein's signature and which
were suspected to be forgeries.7 Furthermore, Captain Feltman testified both at
the trial and the hearing that after the September meeting he had been travelling
"all over the eastern part of the State of Maryland in this case and West
Virginia and Washington, Philadelphia, and many other places" checking on
leads.8
52

At oral argument, counsel for petitioner conceded that in late October, the
police did have probable cause to arrest Gockley for forgery. He contended,
however, that Gockley's voluntary production of the contract and power of
attorney on October 31, 1960, must necessarily have caused the police, as
reasonable, prudent men, to reduce their beliefs to mere suspicions. The
majority opinion indicates that the action of the police in sending the
documents to the FBI for analysis indicates that the police were "merely
suspicious of Gockley's conduct and doubtful about the authenticity of the
documents." However, one cannot say, as a matter of law, that merely because
the police were "doubtful about the authenticity of the documents" their
production was sufficient to destroy the reasonable belief of prudent men that
the crime of forgery had been committed by Gockley.8a Therefore, I would
conclude that the district court did not commit reversible error when it ruled
that the arrest was valid and that petitioner had not met his burden of proving
that there was no probable cause for the arrest.

53

Petitioner asserts that his continued detention without a hearing before a

magistrate was also illegal, and for this additional reason his statements should
have been excluded. If he had been tried in a federal court, this claim would
have merit. In the federal system, delay between an arrest and the hearing
invalidates confessions obtained during the intervening period of delay only
because the Supreme Court has exercised its supervisory powers to insure
compliance with Rule 5 of the Federal Rules of Criminal Procedure, requiring
the arresting officers to take the accused to a commissioner without
unnecessary delay. See 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). However, in a state case mere delay between arrest and
presentment does not constitute a basis for granting habeas corpus unless state
law renders confessions obtained during that period inadmissible. Delaney v.
Gladden, 397 F.2d 17, 20 (9th Cir. 1968), cert denied, 393 U.S. 1040, 89 S.Ct.
660, 21 L.Ed.2d 585 (1969); see Webb v. Beto, supra, n. 4. Pennsylvania law at
the time of Gockley's arrest made it clear that "although regrettable and to be
discouraged, the absence of an immediate preliminary hearing, per se,

constitutes no violation of petitioner's constitutional rights." Commonwealth ex

rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965), accord,
Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 222 A.2d 856 (1966).
To be entitled to federal habeas corpus relief, petitioner must show prejudice
flowing from the illegal detention. See Commonwealth ex rel. Smith v. Rundle,
423 Pa. 93, 223 A.2d 88 (1966). Petitioner has failed to meet this burden. See
Section III, infra.
II
54

Even if the arrest of Gockley had been illegal under Pennsylvania law, that fact
alone would not entitle him to the relief he seeks. Streeter v. Craven, 418 F.2d
273, 274 (9th Cir. 1969); Lopez v. Burke, 413 F.2d 992, 993-994 (7th Cir.
1969); Abraham v. Wainwright, 407 F.2d 826, 828 (5th Cir. 1969).

55

Petitioner must not only show the existence of an illegal arrest, but also that as a
result of the arrest he confessed and such confession was admitted into
evidence to his prejudice. See Wong Sun v. United States, 371 U.S. 471, 83
S.Ct. 407, 9 L.Ed.2d 441 (1963). However, in Wong Sun, the Supreme Court
held that a confession "attenuated" from an illegal arrest by intervening
circumstances was admissible. Thus if the statements here were so attenuated
from the illegality as to dissipate the taint, if any, petitioner would not be
entitled to the relief sought.9

56

In Commonwealth of Pa. ex rel. Craig v. Maroney, 348 F.2d 22 (3rd Cir. 1965),
this Court stated that two significant factors in determining whether a
confession is tainted are the elapsed time between the arrest and the confession,
and the existence of other circumstances so "that the acquired evidence may not
reasonably be said to have been directly derived from, and thereby tainted by,
that illegal arrest." 348 F.2d at 29. Thus, it is clear that a significant time lapse
plus intervening circumstances can purge the poison from the fruit. Id., at 30.10

57

The lapse of 44 hours between Gockley's arrest and the recordation of the first
statement provided ample time for the dissipation of any taint obtaining from
the arrest. In view of the voluntary nature of the statements,11 it follows
ineluctably that dissipation did occur during that time span, and the most
significant operative factor which contributed to it was Gockley's own
personality. Dr. Bower, a neuropsychiatrist who examined Gockley shortly
after the arrest, testified that Gockley suffered from paranoia vira, a condition
which manifested itself by delusions of grandeur, a tendency toward bragging,
compulsive talking, and verbal fencing. The finding by the district court that
Gockley was quite willing to talk to the police is amply borne out by the record.

Captain Feltman stated: "He did all the talking. I didn't have to ask too many
questions."11a It is clear that this personality condition was a superseding cause
of the confession and adequately insulated it from any taint resulting from the
arrest. 12
58

There is another critical factor which serves to insulate Gockley's statements

from his arrest. Petitioner was arrested at 6:00 p. m. on November 17th. The
next day, he voluntarily surrendered the keys for his residence to the police so
they could search the premises. This search was held to be consensual by Judge
Luongo in his first decision in this case, and that holding was affirmed by this
Court. 378 F.2d at 399-400. Following that search, Gockley was confronted
with a wallet containing Mrs. Klein's identification papers and other
documents. The questioning on the 19th of November which led to the
statements in issue was based on information discovered during the lawful
inspection of Gockley's residence. And the statement of the 19th was clearly the
product of that search, not the arrest. Since the search of November 18th was
not a fruit of the arrest, it is difficult to say that the statement which followed
the search was.13

59

The cases cited by petitioner do not compel the conclusion that the statements
were inadmissible as the product of an illegal arrest. Davis v. Mississippi, 394
U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), which adopted Bynum v.
United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958), held that
fingerprints were not exempted from the protection of the fourth amendment
and that if the prints were obtained as a result of an illegal arrest or detention,
then they were inadmissible under the exclusionary rule. The Court, however,
did not hold that fingerprints were not admissible if there were a sufficient lapse
of time after the improper arrest and if there were some other attenuation
present. Furthermore, it would be difficult for the prosecution to demonstrate,
because of the nature of the process of fingerprinting, that prints obtained
during an illegal detention were free of taint because of intervening
circumstances. Confessions, on the other hand, involve the active participation
of the confessor, and are susceptible to the influence of circumstances which
would free them of taint. Gockley's predisposition to talk and the consensual
search are attenuating factors not present in either Davis or Bynum.14 It is
significant that in Davis, the Supreme Court pointed out that if fingerprints not
connected with the illegal arrest were utilized at the retrial, a conviction could
be sustained, 394 U.S. at 726, n. 4, 89 S.Ct. 1394. This is what occurred in
Bynum. See Bynum v. United States, 107 U.S.App.D.C. 109, 274 F.2d 767
(1960). I disagree with the majority's reading of Davis and Bynum, and do not
believe there is justification for enlarging the interpretation of Wong Sun
beyond the parameters set forth by the Supreme Court.

60

The majority also relies on Collins v. Beto, 348 F.2d 823 (5th Cir. 1965); but
the facts there are distinguishable from those here. In that case, coercion was
found where the police arrested the petitioner without a warrant or probable
cause, questioned him, and forced him to submit to a polygraph test. About a
month later, Collins was re-arrested without a warrant, and concededly without
probable cause. He was secreted at Texas Ranger Headquarters, and
unjustifiably incarcerated under a false name for vagrancy, all for the purpose
of denying him access to friends, relatives and legal counsel. Before confessing,
Collins was questioned late at night, and was not told of his right to consult wth
a lawyer or his family. Rather than attenuation, Collins is illustrative of a
continued practice of illegality.

61

The proper test applicable to the facts of this case is set forth in Wong Sun: "
[W]hether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be purged of the
primary taint. * * *" 371 U.S. at 488, 83 S.Ct. at 417. The majority here can
only hypothesize that the statements in issue have "been come at by
exploitation" of the arrest and detention, and that the arrest and detention were
motivated by the "purpose of controlled, persistent and repeated questioning,"
although the district court made no such finding of fact. However, the legal
search of November 18th and the fact that the district court found that "Gockley
willingly engaged in a battle of wits with the police, and * * * gave them
information, some true, some false, in an attempt to outsmart them," 314
F.Supp. at 846, are two elements leading to the confessions "sufficiently
distinguishable [from any illegality] as to be purged of the primary taint."
Accordingly, even if the arrest were considered illegal, in light of the principles
of attenuation enunciated in Wong Sun, the petitioner has failed to demonstrate
that the district court erred in finding that the confessions were admissible.

III
62

Another major contention by petitioner is that the statements used against him
were coerced.14a In support of this thesis, he cites six factors: "lack of
appropriate warnings," "lack of a prompt judicial hearing," "undeviating intent
of the police to extract a confession," "incommunicado interrogation," "[his
own] mental condition," and the pre-arrest interrogations. Petitioner states that
the district court erred in analyzing these points individually and asserts that
"all relevant factors must be considered and weighed together. Culombe v.
Connecticut, 367 U.S. 568, 601 [81 S.Ct. 1860, 6 L.Ed.2d 1037] (1961), see
Lynum [Lynumn] v. Illinois, 372 U.S. 528 [83 S.Ct. 917, 9 L.Ed.2d 922]
(1963)." It is apparent from reading the district court's opinion, however, that

all of the relevant factors15 were weighed together by the judge. There is
substantial evidence to support his findings of fact regarding the elements, and
on the basis of those findings, his conclusion that the statements were
voluntary, and not coerced, is reasonable.
63

The most significant and unassailable underlying finding by the district judge in
this regard is that "the testimony of the police officers is more credible.
Gockley did not impress me as truthful and I simply do not believe his
testimony." 314 F.Supp. at 845. Unless this crucial finding is clearly erroneous,
all the other findings bearing on the issue of coercion are fully supported by the
testimony of Captain Feltman and the others.

64

Petitioner first claims that his statements were coerced because he was not
given appropriate warnings. However, Captain Feltman testified, and the
district court found, that Gockley was advised of the charges against him and
his right to use a telephone. Feltman and Krause also stated that Gockley had
been warned of his rights prior to the transcription of his statements.16
Furthermore, Gockley did not ask for legal counsel either at the time of his
arrest or at the time of the transcription of the first statement.17 These
determinations that Gockley was advised and given the right to telephone are
not clearly erroneous since they are supported by credible testimony produced
at the habeas hearing and at the original trial. Further, Judge Luongo
specifically found that the strongest possible warnings would not have induced
Gockley to remain silent.

65

The second point by petitioner is that the lack of a prompt judicial hearing in
effect makes his statements coerced. The district judge considered the evidence
as to the result of this lapse, and could not conclude that the delay affected
Gockley's statements. Petitioner knew he had been arrested on a forgery charge,
and was also aware of his right to counsel, his right to remain silent, and his
right of access to a telephone. Thus, the evil which a prompt judicial hearing is
designed to prevent simply were not present in this case.

66

Petitioner next asserts that the police exhibited "an undeviating intent to extract
a confession" from him. This contention is based primarily on the length of
Gockley's detention from November 17 to December 9, and on the transfer of
Gockley from one jail to another for the purpose of questioning. However, the
record and findings of the district court are clear that the length of the
interrogation sessions resulted from "Gockley's verbosity and propensity for
fabrication." 314 F.Supp. at 845. There has been no suggestion that Gockley
was treated poorly or denied food, water, or sleep. The continued detention
after November 20, was not motivated by an intent to elicit further statements,

but rather was required because the police by then had charged Gockley with
the murder of Clement Smith. And the statement of December 9 was given in
response to police questions as to facts alleged in the earlier statement which
could not be verified. At no time did the police use trickery or deception to
attempt to induce Gockley to confess, as was the case in Spano v. New York,
360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), relied on heavily by
petitioner.
67

Petitioner's fourth alleged coercive factor is that Gockley was interrogated

while being held incommunicado. This assertion, however, is flatly
contradicted by the record. The trial judge found that petitioner could have
availed himself at any time of the opportunity to communicate with others but
that he did not do so because of "his family's antipathy to him and * * * his
apparent lack of friends," and that he "chose to attempt to outwit the police
without the aid of counsel" 314 F.Supp. at 846.17a

68

As a fifth factor petitioner urges that his mental condition was an element
which compels the conclusion of coercion. However, there is no indication that
the police were aware of his condition, and therefore, they may not be charged
with having exploited it. United States ex rel. Rivers v. Meyers, 384 F.2d 737
(3rd Cir. 1967). What the police did know was that Gockley was intelligent,
literate, and articulate; a high school graduate who had had prior experience
with the criminal process. To the police, Gockley seemed to be cooperative,
and they saw no reason not to avail themselves of the information freely
offered. Furthermore, the state-appointed Sanity Commission found that
Gockley was not a mental defective, that he was not mentally ill,18 and that he
would be able to understand his position, cooperate with counsel, and make a
rational defense. It based these conclusions on a private, unrecorded
examination of petitioner,19 as well as on the testimony of his brother.

69

The last coercive factor asserted by Gockley is the history of surveillance and
interrogations prior to his formal arrest on November 17. However, the
evidence clearly shows that the surveillance, although characterized as
"constant" and "day and night," was in fact neither.

70

This surveillance consisted merely of several trips to Gockley's residence, made

with the hope he would be there, in order to obtain Mabel Klein's power of
attorney and contract. During the investigatory period, the police were
attempting to ascertain the facts surrounding the disappearance of Mabel Klein,
and Gockley clearly figured in that inquiry. That he was seen at her house on
several occasions was not a product of a surveillance of Gockley, but rather was

a product of concern over Mabel Klein, herself. Similarly, the few actual
meetings between Gockley and the police were separated by a span of at least a
month, and one meeting resulted from mere chance. According to the district
court findings, it was subsequent to the meeting where Gockley told the police
to look for Clement Smith and after that lead boomeranged and shifted the full
focus of the investigation to Gockley, that the police had probable cause for
arrest. Even so, on October 31, when they met Gockley and asked him for the
documents, the encounter was brief and not the least oppressive. The prearrest
conduct by the police fell far short of any brooding omnipresence which might
overbear petitioner's will and cause his statements to be coerced.
71

Finally, petitioner urges that the combined factors show coercion, and that this
case comes squarely within Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct.
1352, 93 L.Ed. 1810 (1949), and Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338,
18 L.Ed.2d 423 (1967). A reading of these cases indicates clearly that the
district judge was correct when he said that "[n]either the physical nor the
psychological pressures evidenced in Turner and Clewis are presented here."
314 F.Supp. 847.20 In summary, when all the factors are considered, including
the timing, number and type of warnings given by the police, the lack of a
prompt judicial hearing, the intent of the police, the availability albeit nonutilization of means of communication, the pre-arrest history, and Gockley's
mental condition, as well as his intelligence, prior experience with the police,
willingness to cooperate, knowledge of his constitutional rights, the lack of
intimidation and deception, and the exculpatory nature of the statements,21 it
appears manifest that the finding by the district judge that the statements were
not coerced, but rather were the product of a voluntary attempt to outwit the
police is sound and valid, and certainly not clearly erroneous. Therefore, I
conclude on this issue, as on the others, that petitioner has failed to demonstrate
he is entitled to have the writ issue.

IV
72

One other matter merits comment. This and similar cases that come before us
after state convictions raise grave questions whether federal habeas corpus is an
appropriate vehicle for the vindication of fourth amendment rights such as at
issue here. The problem presented is whether federal habeas corpus should be
granted in cases not involving punishment for a constitutionally protected act;
fundamental constitutional error casting doubt upon the ability of the trial court
to perform its function of correctly finding the facts, plus an allegation of
ultimate innocence by the petitioner; or some official misconduct so outrageous
that continued incarceration is intolerable.

73

The question where fourth amendment violations could be properly raised,

procedurally, was left open to the states in Mapp v. Ohio, 367 U.S. 643, 659, n.
9, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, several years later
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 770 (1963) and Fay v.
Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), expanded the
jurisdictional bases for federal habeas corpus so that federal courts were
granted broader latitude to review state convictions. The explicit holding of Fay
v. Noia, that the doctrine of failure to exhaust state remedies applied only to
remedies available at the time of the petition, 372 U.S. at 434-438, appears to
have eroded reliance on Mapp as authority that fourth amendment issues be
raised according to state procedural rules.22

74

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965),
the Supreme Court considered the rule of Mapp and held that it would not be
made retroactive because its deterrent purpose would not be served thereby,
and because the fairness of Linkletter's trial was not at issue. 381 U.S. at 636637, 639, 85 S.Ct. 1731. Despite the restraint manifested in that opinion, by
1969 there was no doubt that Supreme Court decisions extended federal habeas
relief to state prisoners solely on the basis that such prisoners were alleging that
unconstitutionally obtained evidence was admitted against them at trial. See
Kaufman v. United States, 394 U.S. 217, 225, 89 S.Ct. 1068, 22 L.Ed.2d 227
(1969).23 However, it is now clear that the Supreme Court's prediction in
footnote 9 of Mapp, that the fourth amendment exclusionary rule would apply
only to a narrow class of cases, has not been validated by the passage of time.
The federal courts are plagued with petitions from state prisoners who allege
that an arrest or a search was illegal, and that their convictions were bottomed
on such violation.23a

75

In the present case, the first branch of Gockley's argument is that he is entitled
to relief because his arrest was invalid, and his incriminating statements were a
product of that arrest. This proposition has nothing at all to do with the question
whether petitioner received a trial before a court able to find the facts fairly and
accurately. Rather, the implied premise upon which Gockley's request is based
is that if we grant the petition, then the police will be deterred in the future
from making illegal arrests, and the courts will not have sullied their integrity
by permitting convictions based on violations of the law by police officers.
However, the Reading police officers most closely associated with this case
have retired, and the district attorney, who prosecuted the case, no longer holds
that office. It is difficult to see who would be directly deterred if the writ is
granted. Furthermore, if petitioner's constitutional rights were in fact violated,
recourse to an action under the Civil Rights Act, 42 U.S.C. Sec. 1983, would

provide compensation and deterrence without affecting the state's legitimate

interest in insuring that offenders be adequately punished.
76

That the ultimate aim of the decision by the majority-enhancement of the

integrity of the judicial system-will be achieved if Gockley should be retried
without the use of his statements is, at best, shrouded in doubt. There is also a
question whether the district courts and even the courts of appeals should have
the function of overseeing state courts in such manner, especially since the
district courts and courts of appeals are parallel, rather than superior, to the state
courts. In view of the heavy case load oppressing the federal courts, where
possible the states should police their own system subject to review by the
Supreme Court, so that the federal judiciary may accomplish its primary
mission to the extent its abilities and resources allow. Cases like the present one
only sap the limited reserves of the federal courts, and if allowed to proliferate,
will seriously enervate the federal judiciary as we know it.

77

I am not now questioning the rule of Mapp in cases of direct appeal or state
post-conviction proceedings, but only whether claims of violations of that rule
ordinarily should constitute grounds for relief from state convictions through
federal habeas corpus.

78

A second major branch of Gockley's petition is that his conviction was based
on statements coerced in violation of fifth amendment rights. There are two
premises underlying this argument. First, that the statements, because they were
involuntary, are inherently unreliable and that as a result the conviction based
upon them was not an accurate finding of fact, thereby depriving Gockley of his
right to a fair trial, see generally, Brown v. Mississippi, 297 U.S. 278, 56 S.Ct.
461, 80 L.Ed. 682 (1936). Second, that coerced statements are so repugnant to
our system of government convictions ought not be based upon them. See
Culombe v. Connecticut, supra. However, this is not a case like Fay v. Noia,
supra, where the statements were extracted by "satanic" means,24 or where only
one of three defendants remained in jail because his counsel failed to pursue
certain procedural steps, taken by the other two defendants.25 Regardless of
how the factual and legal issues presented here are resolved, unless Gockley is
innocent his conviction can hardly be called an affront "to the conscience of a
civilized society," which is the manner in which the Supreme Court described
the petitioner's plight in Fay v. Noia, supra, 372 U.S. at 441, 83 S.Ct. at 850.26
The actions of the Reading police, even if irregular or indeed illegal may not
accurately be characterized as "satanic."

79

The concept of allowing a guilty person to remain in jail after his conviction is
final because the procedure on direct appeal has been concluded is hardly novel

or medieval. Justice Black has asserted that before he would allow a collateral
attack to succeed he "would always require that the convicted defendant raise
the kind of constitutional claim that casts some shadow of a doubt on his guilt."
Kaufman v. United States, 394 U.S. 217, 242, 89 S.Ct. 1068, 1082, 22 L.Ed.2d
227 (1969) (dissenting opinion). He further stated that one of the "vital
considerations" is the defendant's "guilt or innocence." Id. at 235, 89 S.Ct.
1068.27 Judge Friendly has stated that innocence should not be irrelevant on
collateral attack even though it may be on direct appeal; to the extent we have
gone beyond this, the system needs revision to prevent abuse, a waste of the
limited resources available for the criminal process, and public disrespect for
the judgments of courts. Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U.Chi.L.Rev. 142, 172 (1970).
80

I am not suggesting that the federal habeas petitioner must prove his innocence
by a preponderance of the evidence in order to be entitled to relief, but only that
he demonstrate that the constitutional violation resulted in error which makes
questionable the factual accuracy of the guilty verdict. Coupled with this
demonstration of uncertainty as to guilt, the petitioner should affirmatively
assert that he is innocent, for if he is not innocent, society has a strong interest
in his continued incarceration. More than a not guilty plea is required, because
that plea does not necessarily mean that the pleader is asserting his innocence,
but only that he is challenging the prosecution to prove its case beyond a
reasonable doubt.

81

This seems consistent with Section 2243, which specifically provides that the
court shall "dispose of the matter [i. e. the petition for habeas corpus] as law
and justice require[s]." 28

82

In this case, it cannot be said the Gockley's conduct in shooting Clement Smith
was constitutionally protected. Nor can it be said that the grant of the writ will
ensure that his retrial would provide a more accurate fact-finding process. And,
quite apart from Gockley's failure to assert his innocence, there is sufficient
evidence to preclude anyone from contending that Gockley had not committed
the act for which he was punished.

83

Although Justice Harlan and Justice Stewart, both of whom dissented in Fay v.
Noia, did not concur with Justice Black in Kaufman as to the importance of
innocence, nevertheless they do contend that the scope of habeas corpus reexamination of convictions should be narrowed. Kaufman v. United States,
supra, 394 U.S. at 242-243, 89 S.Ct. 1068 (Harlan & Stewart, JJ., dissenting).
In his concurring and dissenting opinion in Mackey v. United States, 401 U.S.
667, 692-693, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971), Justice Harlan

asserted that the writ of habeas corpus ought issue only on substantive due
process grounds, citing United States v. United States Coin & Currency, 401
U.S. at 722, 91 S.Ct. 1041 (1971), or on procedural grounds which meet the test
of Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288
(1937).29 He explained that when there occurs nonobservance of those
procedures "implicit in the concept of ordered liberty," or where "time and
growth in social capacity, as well as judicial perceptions of what we can rightly
demand of the adjudicatory process, * * * alter our understanding of the
bedrock procedural elements that must be found to vitiate the fairness of a
particular conviction," habeas corpus is an appropriate remedy. But I
respectfully suggest that such standards are not satisfied unless the petitioner
asserts his innocence and demonstrates that the police procedures have
decreased the reliability of the fact-finding process. Application of the criteria
suggested by Justice Harlan to the facts of this case fails to show that the
procedures employed either vitiated the fairness of Gockley's conviction or
offended principles "implicit in the concept of ordered liberty."
84

It is significant here that Gockley has not asserted his innocence in either his
petition or brief before this Court. Since the evidence of his guilt is substantial,
it would seem preferable to save judicial time and energy to consider the case
of one who contends he is innocent or whose conviction is based upon methods
which cast doubt on the validity of the facts as found or which affront the
conscience of civilized society.

85

I do not suggest that the vast majority of prisoners who would be unable to
qualify for relief under the tests set forth herein should be without remedy. I
assert only that this remedy should lie elsewhere than within the province of a
collateral attack in the federal courts. Perhaps the proper party to implement the
post-conviction correction of errors similar to those at issue here is the
governor of the applicable state, or an agency fulfilling a similar position. See,
Fay v. Noia, supra, 372 U.S. at 476, 83 S.Ct. 822 (Harlan, J. dissenting). In
particular, an enlightened state pardons board, which would screen petitions
and recommend clemency in deserving cases, would provide a viable
alternative avenue of relief, and would greatly aid in stemming the flood of
federal habeas corpus petitions. The responsibility of the state in the
administration of criminal justice extends further than the function of
prosecution, and the federal judiciary should not become encumbered by the
state's abdication of these other functions.

86

The crux of the matter is that as the scope of the federal habeas corpus remedy
has been ever expanding, the need for it has been continually contracting.
Today, nearly every criminal defendant other than the traffic violator is

represented by counsel. 30 The Supreme Court, over the years, has appropriately
enlarged and protected the rights of the accused at every important stage in the
criminal process.31 In short, the accused citizen is afforded a full panoply of
procedures, including the right to suppress probative but illegally obtained
evidence and the opportunity for extensive discovery, regardless of his stature
in the community. Furthermore, the accused, if convicted, can argue for
vindication throughout the appellate process, all the way to the Supreme Court
of the United States. Following the exhaustion of direct appellate remedies, the
convicted defendant may begin the process anew by seeking relief under the
appropriate state post-conviction hearing act.32 It seems unreasonable, and
perhaps destructive of long range judicial values, that the process should be
repeated again and again in the federal courts absent some showing that the
habeas petitioner has been convicted either for a constitutionally protected act,
because of some procedural defect which casts doubt on his guilt, or by
violence to our minimum standards of fair treatment.
V
87

For all the foregoing reasons, I would affirm the district court and deny the
petition for habeas corpus.

Chief Judge at time of argument; became Senior Circuit Judge before decision

Two earlier appeals to this court in this case were decided without reaching the
merits of the petitioner's contentions. 1967, 378 F.2d 398; 1969, 411 F.2d 216.
The involved history of the litigation is set out in our 1969 opinion

We think the dissenting opinion is mistaken in its thought that petitioner's

counsel conceded at argument that the police had probable cause to arrest
Gockley before he produced the power of attorney. And even if such a
concession had been made, it would not have relieved the court of its
responsibility of decision on the point

The trial was conducted by the Honorable Warren Hess, an experienced state
trial judge, before a jury. The direct appeal from the judgment of the trial court
was affirmed by the Pennsylvania Supreme Court. Commonwealth v. Gockley,
411 Pa. 437, 192 A.2d 693 (1963). Certiorari was not sought. Gockley then
petitioned to the United States District Court for the Eastern District of
Pennsylvania for habeas corpus. The petition was denied without hearing by
Judge Luongo. This Court remanded the case to the District Court to determine
whether Gockley had waived his constitutional points, Judge Kalodner

dissenting on the ground that counsel had twice declined to object to the
admission of the statements. United States ex rel. Gockley v. Myers, 378 F.2d
398 (3 Cir. 1967). On remand, the district court, Luongo, J., found that
Gockley's counsel had not deliberately by-passed state procedures, and had not
waived the alleged constitutional defects, but that the state courts should decide
the issue of voluntariness. 276 F.Supp. 748 (1967). This Court, sitting en banc,
affirmed the district court's holding as to the waiver issue, but held that special
circumstances required that the voluntariness issue be determined in the federal
system. 411 F.2d 216 (1969). Certiorari was denied. 396 U.S. 847, 90 S.Ct. 96,
24 L.Ed.2d 96. Judge Luongo then held an additional hearing, and ruled that
the arrest was valid and the statements had not been coerced. 314 F.Supp. 839
(1970)
2

In his first statement, Gockley acknowledged that he shot Smith twice: once as
a result of accident or self-defense, and once to put him out of his misery. In the
second statement, he verified that two shots had been fired into Smith. At trial,
Gockley claimed that only one shot had been fired. In any event, it is
uncontroverted that Gockley shot Smith and that Smith died as a result
2a The statements were admitted without objection. However, Gockley's
counsel requested that the trial judge charge the jury on the issue of
voluntariness. No objection was made to the charge as given. Apparently for
this reason, a copy of the charge is not part of the record before this Court.

Allen v. Perini, 424 F.2d 134, 138 (6th Cir., 1970); accord, United States ex rel.
Gallagher v. Brierley, 286 F.Supp. 773, 774 (E.D.Pa.1968). See also, Hawkins
v. Bennett, 423 F.2d 948, 951 (8th Cir. 1970)
That the burden of sustaining the admissibility of challenged evidence lies with
the Government once the primary illegality has been established at a
suppression hearing or trial, see, 3 C. Wright, Federal Practice and Procedure,
Criminal Sec. 677 at 138 (1969), is not significant here, since the isue in a
habeas corpus case is not whether the evidence passes muster when measured
against the appropriate evidentiary rule.
Habeas corpus in the federal courts is a remedy grounded on a federal statute,
28 U.S.C. Sec. 2254 (Supp. V 1970), for relief from violations of the
Constitution of the United States. Some federal courts look to state law to
determine the party who must carry the burden. See e. g., Webb v. Beto, 415
F.2d 433, 436 (5th Cir. 1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 587, 24
L.Ed.2d 511 (1970). However, even if Pennsylvania law does control such
aspect of this federal habeas corpus action, Pennsylvania also places the burden
of proof on the habeas petitioner. Commonwealth ex rel. Harbold v. Myers, 427

Pa. 117, 233 A.2d 261 (1967) (because Escobedo is not retroactive, a prisoner
alleging coercion must demonstrate confessions were involuntary);
Commonwealth ex rel. Storch v. Maroney, 416 Pa. 55, 204 A.2d 263 (1964)
(petitioner must show violation of constitutional rights). Also, the burden of
proof does not shift merely because the petitioner is challenging the
voluntariness of his confession. United States ex rel. Sabella v. Follette, 432
F.2d 572, 575 (2d Cir. 1970); Jones v. Russell, 396 F.2d 797 (6th Cir. 1968).
4

Counsel for petitioner has cited to us footnote 8 of Whiteley, supra, which

states that "an otherwise insufficient affidavit cannot be rehabilitated by
testimony concerning information possessed by the affiant when he sought the
warrant but not disclosed to the issuing magistrate." But the district court in this
case did not reach a contrary result, see 314 F.Supp. at 843, and since no one
here is attempting to validate the warrant, Whiteley is clearly inapposite on this
point. Also, in Whiteley, the arrest was not made by the affiant or officers
under his immediate direction, but rather by the police of a distant community
whose only knowledge of the matter was a radio bulletin citing the warrant,
which later was determined to be invalid, as authority for the arrest. Without
the warrant, the arresting police had no independent facts upon which to base
their judgment of probable cause. Footnote 8 just does not reach the issue
whether an arrest may be justified by facts known by the arresting officer but
not presented to the issuing magistrate

Gockley did not have a telephone at his residence

Apparently Ethel Briggs was Gockley's ex-wife

At oral argument, there was a dispute whether the document bore Mabel Klein's
signature or Gockley's as attorney-in-fact. Captain Feltman testified on crossexamination at the habeas corpus hearing that the signatures on the documents
purported to be Mrs. Klein's. On this basis, the district judge found that
Gockley had been cashing checks in Mrs. Klein's name. We are bound by this
finding unless it is clearly erroneous, and there is nothing in the record which
so indicates

These travels were probably prompted by letters purportedly mailed by Mrs.

Klein from those places to various people in Reading. In his first statement
Gockley described how he mailed (or caused to be mailed) these letters in order
to allay suspicion as to the cause of Mrs. Klein's disappearance. Even if
Gockley's statements were not considered, it is obvious that the purpose of the
trips was to check out leads, and that this phase of the investigation was
unsuccessful
8a It is significant that the majority concedes that the validity of the arrest is a

matter of "judgment."
9

It should be noted that our Court remanded this case to the district court so that
it could "now decide the voluntariness of the confessions." 411 F.2d at 219.
The question whether the statements were inadmissible for any reason was not
raised until the close of the December 29, 1969, hearing. Nevertheless, the
judge agreed to hear evidence and decide the issue, if appropriate, in order to
avoid further fragmentation of the proceedings

10

In Wong Sun, supra, the proscribed statements were taken immediately

following Toy's illegal arrest, in his bedroom where he had taken refuge with
his wife and son from the pursuing officers. In Craig, five days had elapsed
between the arrest and confession, Craig had seen an alderman in the interim
and had been warned of his rights, and he had been advised to keep silent by his
attorney

11

The district court made clear findings regarding the voluntary nature of the
statements, which findings are discussed supra at page 241
11a The district court found that the duration of the periods of interrogation was
a result of Gockley's verbosity.

12

The mere fact that a suspect confesses because he was suffering from a mental
defect will not vitiate his confession if the police did not knowingly exploit that
defect. United States ex rel. Rivers v. Myers, 384 F.2d 737 (3rd Cir. 1967)

13

Because the second statement was prompted by questioning with regard to

discrepancies in the first, and because it was taken many days later, it too is
insulated from any taint flowing from the arrest. Likewise, Gockley's trial
testimony is isolated from any prior illegality. According to his trial counsel,
Gockley insisted that he could make a good impression on the jury and could
convince them of his innocence

14

In Davis, the police, who were looking for a young Negro male, first detained,
fingerprinted, and released the petitioner along with many other similar youths;
then arrested the petitioner without a warrant or probable cause, drove him over
90 miles to the state capitol, jailed him overnight, and extracted a statement;
thereafter, defendant was returned to Meridian, jailed, and fingerprinted again
Bynum presents a similar factual situation. The defendant had been told to
come to a police station if he wanted to inquire about his arrested brother. Upon
arrival, he was arrested without a warrant or probable cause and immediately
fingerprinted.

14a Although the view taken by the majority makes it unnecessary for them to
discuss this point, it is incumbent on me to consider it because of my
conclusions that the arrest was legal and that, in any event, the statements were
attenuated from the arrest.
15

In Culombe v. Connecticut, 367 U.S. 568, 603-604, 81 S.Ct. 1860, 6 L.Ed.2d

1037 (1961), the Supreme Court described the process of determining whether
a confession was voluntary. The first phase involves finding the "crude
historical facts" while the others involve finding and applying "psychological
fact." Both historical and psychological facts are relevant factors surrounding
the confession. But merely because the petitioner alleges that factors exist does
not make it so. The allegations must first be considered individually to
determine if they are supportable by fact. If it is determined that one or more
allegations are untrue, then the facts alleged are not factors surrounding the
rendition of the statements and do not have to be considered further. On the
other hand, all of the allegations found to be wholly or partially factual must
then be weighed together to determine the issue of voluntariness

16

Although the warnings given to Gockley were inadequate by present-day

standards, his arrest and interrogation occurred several years before Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v.
Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) were decided, and
these cases are not retroactive. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct.
1772, 16 L.Ed.2d 882 (1966)

17

Gockley did request counsel when Krause attempted to administer a liedetector

test in early December. Because he was not authorized to grant the request,
Krause then refrained from continuing with that form of interrogation
17a In an earlier opinion by this Court, it was stated that "[t]he accused was
held incommunicado." 378 F.2d at 400. Since the Rules provide that findings
of fact be made by the trial court, and that such findings may not be set aside
unless clearly erroneous, this reference may not be considered a finding of fact.
After further hearings, at which the facts were fully developed, the district
court did find as a fact that Gockley was not held incommunicado. Because
there is credible evidence in the record to support such finding, we may not
characterize it as clearly erroneous.

18

The Commission utilized the following definition of mental illness: "[A]n

illness which so lessens the capacity of a person to use his customary selfcontrol, judgment and discretion in the conduct of his affairs and social
relations as to make it necessary or advisable for him to be under care."

19

According to the Commission the fact that its report was based on a private

examination accounts for the difference between the report of the Commission
and that of Dr. Bowers. The latter was based on an examination conducted in
the presence of sheriff's deputies
20

In Clewis, the petitioner had been held 38 hours before being taken to a
magistrate to be charged, had had little sleep and very little food, and appeared
to be ill. Contact with a lawyer had been withheld. He also alleged physical
abuse. Between his first and second confessions, although formally charged, he
was unrepresented and unadvised by counsel, frequently interrogated, driven on
a 600 mile trip, administered polygraph tests, and given very little to eat. A
third statement was elicited before warnings were given or a lawyer was
obtained. In Turner, the defendant was arrested on suspicion, held
incommunicado for five days without arraignment, counsel, or advice as to his
rights. During that period, he was interrogated day and night by relays of
policemen until he confessed. The purpose of the delay in arraignment,
extraction of the confession, was admitted by the Commonwealth

21

Both statements were consistent as to the cause of Mabel Klein's death: that she
died of natural causes in the presence of Clement Smith. They were also
consistent with the theories that the first shot which was fired was the result of
a scuffle with Smith and was either accidental or a matter of self-defense. Also,
Gockley's testimony at trial, although it was at variance with regard to many
details of both statements, was essentially exculpatory because it tended to
affirm these two important allegations

22

Justice Brennan stated that failure to comply with state procedural rules would
not justify denial of federal habeas relief unless such failure amounted to an
intelligent, understanding waiver of the rights in question. Id. at 399, 438-440.
But see Gibbons, Waiver: The Quest for Functional Limitations on Habeas
Corpus Jurisdiction, 2 Seton Hall L.Rev. 291 (1971). In this excellent article,
Judge Gibbons criticizes the language of Fay v. Noia, analyzes the result
intended by the Supreme Court, and suggests a new approach to the problem.
See also, Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U.Chi.L.Rev. 142, 159-160 (1970)

23

Kaufman involved a federal prisoner whose conviction had been previously

affirmed. He then sought relief under 28 U.S.C. Sec. 2255, alleging that his
conviction was based upon the improper admission of illegally seized evidence.
The Supreme Court, reasoning from cases involving state prisoners, expanded
the scope of section 2255 actions to encompass unlawful search and seizure
claims asserted by way of collateral attack
23a The soundness of the premise behind the rule of Mapp, deterrence, is now

being seriously questioned. See Bivens v. Six Unknown Named Agents, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting);
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
(1971) (Harlan, J., concurring; Black, J., concurring and dissenting; Burger, C.
J., concurring in part and dissenting in part).
24

372 U.S. at 396, n. 2, 83 S.Ct. 822, quoting United States ex rel. Caminito v.
Murphy, 222 F.2d 698, 701 (2nd Cir. 1955). In Caminito, Noia's two codefendants were ordered released

25

372 U.S. at 395, n. 1, 83 S.Ct. 822. History, as well as a close reading of the
opinion, teaches us that at least some of the Justices forming the majority of the
Supreme Court in Fay v. Noia were motivated by considerations other than the
"satanic" means utilized to coerce the confession and Noia's subsequent
inability to challenge his incarceration. The basic injustice in that case was that
Noia, who did not appeal because of his fear of the death penalty, remained in
jail while his co-defendants were eventually freed. And even though Noia
protested his innocence throughout and the state had no evidence that he was
guilty other than the coerced confession, there was no procedural avenue
available to afford relief. "It was under these circumstances, strongly appealing
to the Court's sense of what justice required, that this Court held that Noia was
entitled to challenge his conviction even though it had previously become
'final."' Kaufman v. United States, 394 U.S. 217, 235, 89 S.Ct. 1068, 1078, 22
L.Ed.2d 227 (1969) (Black, J., dissenting)

26

Gockley has never denied killing Clement Smith. His apparent defense at trial
was that the killing was either accidental or justifiable

27

Justice Black raised this matter, as well as the issue of the overall scope of
federal habeas corpus, again in Whiteley v. Warden of Wyoming State
Penitentiary, 401 U.S. 560, 570, 574-575, 91 S.Ct. 1031, 28 L.Ed.2d 306
(1971) (dissenting opinion). Although Mr. Justice Blackmun agreed with much
of Justice Black's opinion, the majority opinion did not deal with either matter

28

Another aspect of the problem of collateral attack in a criminal connection is

addressed by Justice Harlan in United States v. United States Coin and
Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), when he
considered whether the Marchetti-Grosso rule should be retroactive. Marchetti
v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso
v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) held that
where one statute requires the report of an act which another statute makes
criminal, the fifth amendment privilege against self-incrimination may be
interposed as a defense to a prosecution for failure to comply with the reporting

requirement. Justice Harlan concluded that the retroactivity cases fall into two
classes: those which hold prior decisions non-retroactive because they were
"concerned with the implementation of a procedural rule which does not
undermine the basic accuracy of the factfinding process at trial," and those
which require retroactivity "because the failure to employ such rules at trial
meant there was a significant chance that innocent men had been wrongfully
punished in the past." In Coin & Currency, this classification was not useful
because the majority granted retroactivity on the rationale that the conduct for
which punishment was sought was constitutionally protected. The classification
referred to by Justice Harlan has utility in determining whether collateral attack
should be permitted, for the competing interests are similar in both retroactivity
and habeas corpus cases. Those interests may be summarized as finality on one
hand, see Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28
L.Ed.2d 404 (1971) (Harlan, J., concurring and dissenting opinion), and the
correction of constitutional error on the other. See Kaufman v. United States,
394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); Brown v. Allen, 344 U.S.
443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). The need for finality has been
eloquently expressed many times, and it is not necessary to reiterate those
arguments
29

Palko held that a state could appeal a conviction of second degree murder, retry
the defendant, and sentence him to death for first degree murder because this
kind of double jeopardy was not such that it violated the fundamental principles
which underlay our civil and political institutions. 302 U.S. at 328, 58 S.Ct. 149

30

Fay v. Noia was decided in 1963, the same year that the Supreme Court
required counsel be appointed for all persons charged with felonies. Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Noia had been
convicted some 20 years earlier, where counsel was not appointed except in
capital cases, and then only for the trial stage of the proceedings

31

See e. g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967) (lineup); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966) (custodial interrogation); Escobedo v. Illinois, 378 U.S. 478, 84
S.Ct. 1758, 12 L.Ed.2d 977 (1964) (custodial interrogation); Douglas v.
California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (counsel on
appeal); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)
(transcript for appeal)

32

It was the denial of this opportunity because of Noia's failure to appeal which in
part shaped the decision in Fay v. Noia. See 372 U.S. at 426-434, 83 S.Ct. 822