[Opinion by Federal Judge James T. Foley:]

About 18 years ago, on June 27, 1941, defendant and three others were convicted of murder in the first degree for the killing of a Sing Sing Prison guard in the course of an escape.

_ UNITED STATES of America ex rel. Edward J. KIERNAN, Relater, V. J. Edwin LA VALLEE, Warden of Clinton Prison, Dannemora, Clinton County, New York, Respondent. Civ. A. No. 8659. United States District Court N. D. New York. Jan. 24. 1961. C. Joseph Hallinan, Jr., New York City, for appellant. Louis J. Lefkowitz, Atty. Gen. of New York (Raymond B. Madden, Asst. Atty. Gen., of counsel); Joseph F. Gagliardi, Dist. Atty., White Plains (Douglas L. McGuire, Asst. Dist. Atty., White Plains, of counsel), for respondent. JAMES T. FOLEY, District Judge.

, , , , The relator Kiernan is a co-defendant of William Wade who was convicted with him In June, 1941, of murder first degree for their participation in the sensational Sing Sing jail break.

The details of the violent episode, the participants, the trial and the disputed and undisputed facts concerning the issue of coerced confession should be sufficiently set forth in my opinion (United States ex rd. Wade v. Jackson, D.C., 144 F. Supp. 458), and the detailed one of present Chief Judge Lumbard (2 Cir,, 256 F.2d 7).

The present Chief Judge differed with the inferences and conclusions I drew from the facts, whether they be characterized disputed or undisputed, although in reading the records of these murder cases, in my judgment, somewhere along the line everything is disputed to some extent, directly or indirectly.

It was my firm, general impression that the defendants had a fair trial before an impartial judge and jury, represented by experienced lawyers under the accepted procedures and law of New York in the presentation of the usual factual clash as to the voluntariness or involuntariness of the confessions. . . .

In accordance with the direction of the Circuit Court after certiorari was denied, I sustained the writ of habeas corpus and Wade appeared before me here in Albany for his transfer from the state prison officials to the county prison officials. The dismay and bewilderment of the state and county law enforcement officers and the legal representatives of the People at my intrusion were apparent.

To complete the picture for the evaluation of possible and growing friction between the state and federal courts in a matter of this kind, according to reliable newspaper reports, the present Westchester County Judge dismissed the indictment against Wade “regretfully and with a heavy heart.” Wade is free.

It may seem anomalous for me in effect to retract my previous determination, but it is not difficult for the reason that Judge Lumbard, writing for the authority which I follow freely when the way is marked clearly, has set a definite guideline, in fact almost a blueprint, of the undisputed facts that must be weighed in favor of Kiernan to the same extent as they were for Wade.

The Relevance of Remembering What is the relevance of revisiting in 2005 the deadly 1941 Sing Sing escape? Remembering Correction involves hope of remorse, reform, and reconciliation is always relevant. Remembering the service and sacrifice of officers killed in the line of duty is always relevant. Remembering authorities' duty to stay within limits the law imposes on power conferred is always relevant. ---- ---- ---- ------ ------ ----- ----- ---- ---- --- NYCHS webmaster.

I further add there is no discomfort or difficulty on my part to digest and follow the analysis of Judge Lumbard because it is penetrating, detailed, persuasive, and has sound support in the record.

In the fact-finding mission there is no formula to test with absolute certainty falsity or truth, and I have long grown accustomed not only to juries disagreeing on facts but even judges of the highest authority who split 5—4 in measurement of the facts involved in situations of this kind. . . .

Good lawyers and good judges, all men of good will, integrity and trained perception, can give plausible argument either way and the reason is that the diagnosis is human and not divine.

There are certain areas of disagreement I still respectfully maintain, although they are not crucial to the determination of the undisputed facts present in the record that tend to show coercion. I would never believe that Kiernan and Wade, who were not inmates of Sing Sing, were in Ossining by coincidence at the exact time of this desperate jail break which resulted in the death at the scene of three human beings.

_ The above image of the James T. Foley Federal Courthouse. at 445 Broadway, Albany, can be found , along with images of other northern NY federal courthouses and buildings, on the web site of the Northern District New York Federal Court Bar Association -- NDNY FCBA Click the above image to access a 52-page PDF file setting forth an informal history of the Northern District NY Federal District Court, including background information on Judge James T. Foley (Pages 36 and 37).

In my previous opinion in the Wade case I referred to Kiernan as deeply involved, and a re-reading of the record convinces me he was the main conspirator on the outside.

It is also difficult for me to reason that on this nightmarish night and day in Ossining the District Attorney, his officers and the State Troopers, no matter how numerous, would not need many days of investigation and interrogation to be content with the number of persons involved.

The safety of a large community was at stake as well as the security of a large prison, and although hindsight improves vision, in my judgment it was a trying and confused situation with little time for legal meditation. . . .

The relator Kiernan did not pursue his appeal as did Wade after unanimous affirmance by the Appellate Division, Second Department, New York. People v. Kiernan, 1942, 265 App.Div. 866, 38 N.Y.S.2d 870. But he did file timely notice of appeal in the Court of Appeals, New York, and it was entertained, heard and decided by this distinguished Court in 1959. People v. Kiernan, 6 N.Y.2d 274, 189 N.Y.S.2d 215, 160 N.E.2d 503.

The Court of Appeals unanimously affirmed the conviction, and upon petition for writ of certiorari to the United States Supreme Court it was denied with the significant addition to the routine denial: “without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court.” Kiernan v. New York, 363 U.S. 824, 80 S.Ct. 1260, 4 L.Bd.2d 1520.

C. Joseph Hallinan, Jr. who appeared for Kiernan in the Court of Appeals, New York, requested that he be assigned and the relator-petitioner be allowed to proceed in forma pauperis, and by memorandum-decision dated June 27, 1960, I allowed both requests. The writ was issued, the matter set down for hearing, and the relator brought to Albany in custody of State prison guards.

_ Click the above image of Judge Charles Froessel to access his opinion for the NYS Court of Appeal's rejection of Kiernan's appeal. The image is from the Portrait Gallery of the Historical Society of the Courts of the State of New York web site. HSCSNY

After persistent statements and requests for the record on my part, Attorney Hallinan, with the relator acquiescing in open court, stated that no evidence would be offered on their side, that Kiernan would not offer himself as a witness, and the relator would stand upon the trial record made in the State courts of New York years ago.

The Attorney General and the District Attorney resist this federal application upon the same grounds that were outlined by Judge Froessel in his opinion for a unanimous court in the affirmance of the original judgment of conviction, now more than nineteen years old. . . .

It is my purpose now to indicate the federal reasoning that must impel me away from this considered judgment under the circumstances here. . . .

The failure of a petitioner (relator) to take the stand at the state trial is not fatal to his cause in the federal habeas corpus proceeding if the facts are sufficiently developed in the record by his counsel as to the challenge of coercion or threat. A United States Court appraises the alleged abuses by the facts as shown at the hearing or admitted on the record. . . .

State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide. . . .

The District Judge must exercise his own judgment on the blend of facts and their legal values. The question whether primary facts underlying a confession prove that the confession was coerced or voluntary cannot rest on the State decision. . . .

The totality of circumstances must be considered. . . .

Where the claim is that the prisoner’s confession is the product of coercion the federal court must make independent examination of the record to determine the merit of the claim and the performance of this duty cannot be foreclosed by the finding of a Court, or the verdict of a jury, or both. . . .

_ Click the above image of the Seal of the 2nd Circuit, U.S. Court of Appeals to access the Lumbard opinion in the Wade case.

It seems clear that the failure of the defendant to testify is not fatal from the federal viewpoint, because the principle is clear in many cases that the federal search is for undisputed and uncontroverted facts in any .part of the record that might bear upon the issue and allow a conclusion of coercion. . . .

In his opinion in the Wade case, Judge Lumbard set forth from the record thirteen numbered points as undisputed facts and inadequate explanations from which the conclusion was drawn that Wade’s confession was involuntary.

Mr. Hallinan in the petition for the writ in this Court relates by reference to the record with elaboration each of the points as they would refer to Kiernan, and demonstrates to my satisfaction that each fits the cause of Kiernan like a glove except 10 and 11, which do not materially affect the sufficiency of substantial factors necessary to find coercion and involuntariness.

_ Click the above image of the cover of Ralph Blumenthal's Miracle at Sing Sing to access 1941 escape-related excerpts.

In number 12 Judge Lumbard specifically finds as admitted fact with inadequate explanation the physical marks on Kiernan the day after arrest testified to by Dr. Davis: “eechymotic areas on the left eye and on Xiernan’s trunk. These were dark blue discolorations. One area in the pit of the stomach was about the size of a baseball. He also found a long laceration on his left shin.”

Strong conclusions are present in the appellate opinion that in my judgment leave no other alternative than to find from the record that the confession was made by Kiernan under physical coercion and induced by fear and threat.

These are stated herein exactly as contained in the opinion of Judge Lumbard:

“In the face of these facts the strategy of the state was tantamount to an admission that it could not fully and honestly meet the claims that Wade and Kiernan had been beaten before their arraignment. . .

“. . .Taking a man to the state police barracks, keeping him incommunicado for twenty-three hours during which he is permitted no sleep, with no food whatsoever, and only two glasses of liquid after many hours, submitting him to constant questioning despite his denials, is not only degrading and uncivilized but it is obviously coercive. This treatment, without convincing explanation of its reasonableness, is sufficient to indicate that the resulting statement was involuntary and that it was given to put an end to what most of us would consider torture. . . .”

_ The above image of guard John Hartye, killed in the 1941 escape, appears -- courtesy of Ossining Historical Society -- in Mark Gado's Stone Upon Stone: Sing Sing Prison on Court TV's Crime Library web site. Click image to access NYCHS excerpts from it.

It is inescapable to me that the important facts in the record as thus analyzed and accepted as undisputed and inadequately explained must apply to Kiernan. He remained admittedly with and always in close proximity to Wade at the Troopers’ barracks during the same or longer period of interrogation after they were arrested together, and before each was arraigned.

The principle of Corbo V. LaVatlee, 2 Cir., 270 F.2d 513, U. S. cx rel.that the awareness of Kiernan, easy to infer under the circumstances, that Wade was being beaten, as Wade testified on the trial, found as an undisputed fact in this record, would be sufficient, if necessary, to hold that the confession of Kiernan was coerced and induced by fear and threat.

The attorney for Kiernan at the state trial objected to the admission of the statement on the ground it had not been shown by the District Attorney or the People that this alleged statement was given by Kiernan’s own free will . . .

The trial Judge admitted it to be considered against Kiernan only in the event you (the jury) find it to be a free and voluntary statement.

It is somewhat presumptuous for me to interpret the law of New York after its highest court has written upon the matter but it seems that the trial Judge in this case followed the rule that there was a fair question of fact as to voluntariness which he left to the jury to decide. . . .

Under our federal system I must accept the guidance and ruling of the higher federal authority to the best of my ability, and doing so I find the confession was involuntary and coerced by physical force and threat, and the conviction thereunder void.

_ Click the above image of columnist Bill Reel photo and byline from The Tablet to access his column about Kiernan's remorse, reform, and reconciliation with his family.

Of course, every law-abiding citizen in this great nation is against coercion by its police officers as much as against sin, but the complex question will always be with us whether the claim of coercion is true or contrived.

It appears we shall remain content, and probably rightly so, with drastic remedy, as here, to deter police brutality and unfair official pressure in these confession cases. . .

The writ heretofore issued is sustained and the judgment of conviction is set aside as void.

If appeal from the judgment herein is taken, the relator may be held in custody of respondent pending decision on appeal.

If appeal is not taken, relator may be held for retrial within a reasonable time of the charges against him.

With these conditions, the writ herein is sustained and the relief sought in the petition granted. . . .