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UNITED STATES v. RAGEN

April 28, 1959

UNITED STATES EX REL. EMIL RECK, RELATOR,
v.
JOSEPH E. RAGEN, RESPONDENT.



The opinion of the court was delivered by: Campbell, Chief Judge.

The Relator, Emil Reck, was convicted of murder in the Criminal Court of Cook County, Illinois, after trial by jury in 1936, and sentenced to the Illinois State Penitentiary for a term of 199 years. At his trial, two confessions to the crime by Reck were received in evidence. At a preliminary hearing by the Court the confessions were found to be voluntary and admissible. On the trial they were again specially found to be voluntary by the jury. After conviction a Writ of Error was taken by Relator to the Illinois Supreme Court and the conviction affirmed. The Writ, however, did not raise the question of the admissibility of the confession, and thus this issue was not presented for review in that case. People v. Reck, 392 Ill. 311, 64 N.E.2d 526. Some considerable time thereafter, Relator filed a petition under the Illinois Post Conviction Hearing Act, S.H.A. ch. 38, § 826 et seq. A hearing was had by the Criminal Court of Cook County, Illinois, and relief denied. Subsequently, upon appeal, the Supreme Court of Illinois affirmed the Criminal Court's finding that no constitutional rights of the petitioner had been violated at his trial. Reck v. People, 7 Ill.2d 261, 130 N.E.2d 200. The United States Supreme Court denied Certiorari without prejudice to an application for a Writ of Habeas Corpus in an appropriate United States District Court. Reck v. People of State of Illinois, 351 U.S. 942, 76 S.Ct. 838, 100 L.Ed. 1469.

Relator then filed his petition for Writ of Habeas Corpus in this Court, the same issued, and was duly answered. At the hearing on the Writ and Answer records of all proceedings in the Courts of the State of Illinois involving Relator were received into evidence on the stipulation of the parties in open Court that said records were complete and authentic, and both sides rested. The cause is now before me for disposition on such record and on the written briefs and arguments of the parties hereto.

A summary of the facts of Relator's crime by the Supreme Court of Illinois is found on pages 262 and 263 of 7 Ill.2d, at page 201 of 130 N.E.2d, as follows:

    "Dr. Peacock, a prominent Chicago pediatrician
  residing in an Edgewater Beach apartment, on the
  night of January 2, 1936, responded to a telephone
  call at his home to administer medical aid to a child
  living at 6438 North Whipple Avenue. He left his
  apartment but did not return. The following afternoon
  his lifeless body was found, drenched in blood,
  slumped on the rear floor of his car, parked at 6326
  North Francisco Avenue, Chicago. There were thirteen
  deep lacerations on his head and a bullet hole
  passing through his brain. There were no
  fingerprints. There were no clues. The doctor had no
  enemies. The Chicago Medical Society offered a
  substantial reward. Every conceivable effort was made
  to find a solution to this mysterious brutal
  homicide. Daily newspaper notoriety attended the
  search for the guilty. Almost three months elapsed
  before a solution appeared in the confession obtained
  from four teenage boys.
    "In the early evening of January 2, 1936, the four
  boys met and were riding in a Ford automobile driven
  by Jimmy Nash. They stopped at a Walgreen drug store
  somewhere on North Western Avenue. Robert Goeth and
  Nash got out of the car, went into the drug store,
  called Dr. Peacock and requested that he make a
  professional call on a sick child at 6438 North
  Whipple [Avenue]. The boys, while planning the
  robbery, had previously explored this neighborhood
  and found it to be dark and unfrequented. The two
  boys came back to the car and reported that their
  victim would be at the above address shortly,
  whereupon they drove there and parked their car
  nearby. Dr. Peacock arrived, parked his car in front
  of 6438, alighted from the car with his medicine
  case, and was approached by Robert Goeth who put a
  gun in his back and ordered him to re-enter his car,
  which he did. Livingston remained in the Ford and
  followed the doctor's car which was driven by Nash
  with Goeth sitting on his right and the petitioner
  with the doctor in the rear seat. After they drove
  some distance they ordered the doctor out of his car
  and demanded his money. He said he didn't have any
  money and started fighting with Goeth. When Goeth got
  loose he fired the shots at the doctor, and while the
  doctor was lying on the ground breathing heavily,
  Reck, finished killing him with a wooden club about
  one foot in length that he carried as a weapon. The
  boys searched the doctor's pockets and found $20,
  divided it equally, and left him lying on the floor
  of the rear seat of his car. Goeth also struck him
  several times with the butt of his gun while he was
  lying on the ground. After driving away, the four
  separated and went their respective ways."

The record, which I have considered in the light most favorable to Relator, discloses that Emil Reck, was at the time of this horrible crime but nineteen years old. Throughout his life he had been repeatedly classified as mentally retarded and deficient by psychologists and psychiatrists of the Institute for Juvenile Research in Chicago. At one time he had been committed to an institution for the feebleminded, where he had spent a year. He dropped out of school at the age of 16, never having completed the 7th grade, and was found to have the intelligence of a child between 10 and 11 years of age at the time of his trial. Aside from his retardation, he was never a behavior problem and bore no criminal record.

Reck was arrested in Chicago without a warrant at 11:00 a.m. Wednesday, March 25, 1936, on suspicion of stealing bicycles. He was then shuttled between the North Avenue Police Station and the Shakespeare Avenue Police Station until 1:15 p.m., at which time he was returned to the North Avenue Police Station and there interrogated mainly about bicycle thefts until 6:30 or 7:00 p.m. He was then taken to the Warren Avenue Police Station where he spent the night. During this time he was fed a ham sandwich and coffee at the North Avenue Station and a bologna sausage sandwich at the North Avenue Station and a bologna sausage sandwich at the Warren Avenue Station.

On Thursday, at 10:00 a.m., Reck was brought back to the North Avenue Station where he was interrogated some six or seven hours about various crimes in the District. Afterwards, he was sent to the Shakespeare Station and later that evening he was taken downtown to the Detective Bureau where he was exhibited at a so-called "show-up." The record does not indicate where Reck spent the night. The record shows that Reck was fed an egg sandwich and a glass of milk on Thursday but apparently nothing else.

The record is silent as to where Reck spent Friday morning but it is clear that interrogation was resumed sometime in the early afternoon. Friday evening over one hundred people congregated in the North Avenue Police Station where Reck was exhibited on the second floor. Shortly after 7:00 p.m. Reck fainted and was brought to the Cook County Hospital where he was examined by an intern who found no marks or bruises upon his body and rejected him for treatment. Reck was then taken directly back to the North Avenue Station where he was immediately again placed on exhibition. He again became sick and was taken to an unfurnished handball room, where a Sergeant Aitken, assigned to the Peacock murder investigation, questioned him about the Peacock murder for a short period of time. Reck again became sick and a Dr. Abraham was called who later testified that Reck was extremely nervous, that he was exposed and that his shirt was unbuttoned and hanging outside of his pants. He was rubbing his abdomen and complaining of pain in that region. After an examination of 60 to 90 seconds, Dr. Abraham left and Reck was questioned intermittently and exhibited to civilians until approximately 9:30 p.m. when he became ill and vomited a considerable amount of blood on the floor.

Reck was again brought to the Cook County Hospital at 10:15 p.m. on Friday where he was placed in a ward and given injections of morphine, atropine, and ipecac twice during the evening. At about 2:00 a.m. two physicians, Doctor Scatliff and Doctor Day, who were members of a Chicago Medical Society which had been assisting the police in the Peacock murder came at the request of Prosecutor Kearney to see if there were any marks of brutality on Reck. They found the door to Reck's room barred by a police officer. After securing permission from one, Police Captain O'Connell, they went in and found Reck asleep and therefore made only a cursory examination in the dark which revealed nothing conclusive. At 9:00 a.m. on Saturday, Reck told Dr. Zachary Felsher of the Cook County Hospital that the police had been beating him in the stomach. He also told Dr. Weissman of the same hospital that he had been beaten in the abdomen and chest over a three-day period. This was the first time since his arrest some 70 hours before that Reck had conversed with any civilian outside the presence of police officers. His father had attempted to see Reck on Thursday and Friday at the North Avenue Police Station and on Saturday at the Cook County Hospital. Each time he was refused.

At 9:30 a.m. on Saturday, Reck was removed from the hospital in a wheelchair and was questioned about the Peacock murder as soon as he was transferred into Captain O'Connell's car to be transported to the North Avenue Police Station, where the questioning continued until the afternoon, when he was taken to the State's Attorney's office at approximately 2:00 p.m.

Previously to this, on Friday evening, two of the boys, Nash and Goeth, who had been arrested with Reck, had confessed to the murder of Dr. Peacock, implicating Reck and one other boy, Livingston. At about 3:00 a.m. on Saturday, Livingston also agreed to sign a confession. (Upon arraignment, Livingston pleaded not guilty and alleged that he was subjected to physical abuse by the police.)

At 5:55 p.m. of the same Saturday, March 28, 1936, a joint confession was taken, at which time Reck was very weak and sick looking. At this point, Reck had been in custody almost 80 hours without counsel, without contact with his family, without a court appearance and without charge or bail. The text of this joint confession reveals mostly yes and no answer in the case of Reck. The interrogation did not deal with the gun or the automobile used in the crime and was signed by all that Saturday night.

On Sunday, Reck was again interrogated in the State's Attorney's office and at 4:30 p.m. his individual statement was taken which was more or less a reiteration of the joint confession. The boys then washed up and were given clean clothes. Thereafter, in a formal ceremony in front of numerous officers and prosecutors as well as twelve invited civilians, the statements were read to the boys, they were duly cautioned and the confessions were then signed. The boys did not know there were civilians present and were not permitted counsel. At this time Reck had been without solid food since Friday when he had an egg sandwich. He was placed on a milk diet by the doctor Friday night at the hospital.

Reck was held in custody Monday, Tuesday and Wednesday, March 30 through April 1. Why, is not revealed in the record. On Thursday, April 2, 1936, Reck was arraigned in open court and pleaded not guilty. He had not seen his father or other relatives or any lawyer during this entire period. Shortly after his arraignment, Reck was treated for "kidney trouble" at the Northwestern University Clinic and on November 6, 1937, he was operated upon for a double hernia.

This cold summary of the record which is, as I have indicated, most favorable to the Relator, carries an unexpressed import of police brutality, which brutality, unfortunately, does exist in our society.

Torture of an accused is a strange circumstance of criminal procedure, which though irrational on its face, has existed for thousands of years in all manner of societies. Its first appearance in what we call modern criminal procedure seems to have occurred in France around the 13th century. At this time, France had done away with the older methods of trial such as ordeals, compurgation and trial by battle and had in effect adopted Ecclesiastical procedure which was inquisitional in form. Why torture was then added is hard to explain. Perhaps, the fact that the later Romans had used torture might have influenced this age of the Renaissance.

The Church of England, during the reign of Henry III, adopted French Ecclesiastical procedure. Under Henry VIII, the Star Chamber was established, using Ecclesiastical rules of procedure and torture was then introduced into the criminal procedure of England.

Today, unfortunately, torture of the accused is still found to varying degrees in the criminal legal systems of the world. In the Western world, this torture often takes place when the accused is in the hands of the police. Although police brutality should never be condoned, one must remember when criticizing the police that they do risk their lives daily in carrying out their duties towards society. While most of us who criticize the police have comparatively safe and pleasant environments, most policemen spend every working day dealing with dangerous criminals of every kind and in the most dismal surroundings. It is not too surprising that in an environment of this nature, some police develop a calloused and cynical attitude toward criminals and consequently also, toward people accused of crime. Of course, this does not justify brutality. It might, however, explain why, when the police have arrested a criminal against whom there is a substantial amount of legitimate evidence tending to show his guilt in a particular crime but whom they can't get to disclose the whereabouts of a gun which would prove his guilt undeniably, they may be tempted to employ admittedly illegal "third degree" tactics to locate the gun. Or where the police suspect strongly that a person is guilty of a crime but have no evidence other than circumstantial to prove it, why again they may resort to such tactics to secure a confession, since they feel it is the only way they can convict, this, however, is little different from the situation that existed in France in the 13th century when torture was regularly employed for the same reasons.

Police today, too often feel that to work swiftly as they must, they are also required to work brutally. Pressures of society and of public opinion in one breath demand that a crime be promptly solved and in the next seem to condemn any interrogation of suspects by the police. How incongruous it is therefore to find the police attempting to protect society which can only be classified as a good and in the process committing acts of brutality which can only be classified as evil.

Evidence obtained by torture has always been regarded as being untrustworthy. As Montaigne said, torture is a "test of endurance, rather than of truth." England began to recognize this fact early in the eighteenth century excluding confessions even on lesser grounds than torture. In 1783 it was stated:

    "A confession forced from the mind by the flattery
  of hope, or by the torture of fear, comes in so
  questionable a shape when it is to be considered as
  the evidence of guilt, that no credit ought to be
  given to it; and therefore it is rejected." K. v.
  Warickshall, 1 Leach Cr.C. 263, 168 Eng.Rep. 234 (1783).

During the 19th century in England, which was an age of criminal reform, there was a great suspicion of all confessions, a prejudice against them as such, and an inclination on the part of judges to repudiate them. Various tests were employed to judge the trustworthiness of a confession. The extreme was reached in a few cases which held that any confession obtained while the accused was in custody was excludable because it was untrustworthy, R. v. Baldry, 2 Den.Cr.C. 441 (1852). The tests that evolved to exclude confessions on the grounds that they are untrustworthy are not to be confused with the entirely separate principle of the privilege against self-incrimination which arose as a reaction to the "ex officio" proceedings of the Star Chamber and Ecclesiastical Courts of England. As was pointed out by the United States Supreme Court in Brown v. State of Mississippi, 297 U.S. 278, at page 285, 56 S.Ct. 461, at page 464, 80 L.Ed. 682, this privilege protects the individual from:

    "The processes of justice by which the accused may
  be called as a witness and required to testify.
  Compulsion by torture to extort a confession is
  another matter."

Thus, the privilege against self-incrimination protects the accused from giving testimony under compulsion by making him non-compellable at his trial and by giving him the right to claim his privilege at other proceedings in which testimony is to be taken while the exclusionary rule in regard to confessions is based on the principle of untrustworthiness.

Besides these two classic principles which may be invoked in excluding a confession from evidence, the Supreme Court of the United States has more recently introduced two more principles under which a confession may also be excluded. First, a confession will be excluded from evidence if the manner in which it was procured violates the Due Process Clause of the 14th Amendment of the United States Constitution. If confessions are procured by local or state police in such a way as to "[offend] some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental," the Due Process Clause has been violated. Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. The second principle of exclusion introduced by the Supreme Court may be called the McNabb rule and is applicable only to Federal police tactics. In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 613, 87 L.Ed. 819, the Supreme Court reasoned that judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining "civilized standards of procedure and evidence." Thus, in McNabb confessions were held inadmissible, irrespective of their voluntariness or the absence of coercion, because they were obtained by federal authorities during a period of illegal delay. The purpose of the rule is not to punish federal police or exclude untrustworthy or coerced confessions from evidence, but to ...


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