Clarence T. Gladden, Warden Oregon State Penitentiary, Appellant, v. Paul Courter Holland, Appellee, 366 F.2d 580 (9th Cir. 1966)

Paul Courter Holland, in Oregon state penal custody under a twenty-year sentence following his 1960 conviction on a charge of rape, applied to the district court for a writ of habeas corpus. He alleged that his plea of guilty was not voluntary because it was tainted by an immediately preceding involuntary confession. The district court, after a hearing, found that Holland's plea of guilty was vitiated by a coerced confession. The court denied relief, however, because Holland was also lawfully imprisoned under a five-year sentence based upon an unchallenged conviction for burglary. Holland v. Gladden, D.Ct.D. Or., 226 F. Supp. 654. We affirmed, Holland v. Gladden, 9 Cir., 338 F.2d 52.¹ 

Following completion of the five-year term for burglary, Holland again applied to the district court for a writ of habeas corpus pertaining to his continuing custody under the sentence for rape. He advanced essentially the same grounds as in his first application to the district court. The court reviewed the record of the prior hearing and again found Holland's plea of guilty had been tainted by a coerced confession. Accordingly, the court granted the application for a writ of habeas corpus and ordered Holland released from state custody. The warden appeals.² 

Appellant argues that in view of the evidence received and the applicable principles of law, the district court erred in making the ultimate finding that Holland's confession was coerced.

The district court made an ultimate finding of fact that the confession was coerced, based upon detailed findings which we now paraphrase.

Holland was arrested on September 6, 1960, at approximately 11:00 p. m., after being found in a strange apartment house. He readily admitted his involvement in a burglary, but at first denied any knowledge of a series of unsolved rapes. He was questioned continuously until about 4:00 a. m., when he signed a confession admitting a number of attempted and actual rapes. He also admitted numerous burglaries.

The sheriff and police effectively denied Holland's requests for counsel during the questioning, initially denied him the right to call his wife, and failed to warn him of his constitutional right to remain silent. Holland was interrogated by teams of officers and was not alone or in friendly company from the time of his arrest until the time of his confession.³ 

Appellant does not challenge any of these detailed findings pertaining to the occurrences and events surrounding the confession.⁴  But, while we accept these findings at face value, it is our appellate duty, in determining the ultimate issue of voluntariness, to examine the entire record for other undisputed facts bearing upon that issue.⁵ 

We hold that the district court did not err in making the ultimate finding that Holland's confession was involuntary. Among the factors which lead us to agree with the trial court that Holland's confession was coerced, are the following: (1) failure to advise Holland of his right to claim the privilege against self-incrimination; (2) failure to advise Holland of his right to counsel and persistence in continuing interrogation when his indicated desire to have counsel could not be immediately met;⁶  (3) conducting the interrogation throughout the night, in secret and incommunicado, utilizing teams of interrogators;⁷  and (4) calling in alleged rape victims and their husbands to view Holland in the interrogation room during the course of the night.⁸ 

These and other circumstances, established by undisputed testimony, present a clear picture of how Holland's will to remain silent was overborne. A confession extorted by mental coercion is as involuntary as one extorted by violence or threats of violence. See Jackson v. Denno, 378 U.S. 368, 389-390, 84 S. Ct. 1774, 12 L. Ed. 2d 908 and Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S. Ct. 223, 100 L. Ed. 126.

Appellant also argues, however, that assuming the confession to have been coerced, the plea of guilty subsequently entered was not thereby vitiated, but was freely and voluntarily given.

Concerning the plea of guilty, the district court found that the police did not take Holland before a magistrate following his written confession. Instead, a few hours after the confession was given, they took him directly before a state circuit judge. After the judge explained to Holland his constitutional rights, Holland waived indictment and his right to counsel. He then entered his plea of guilty and consented to an immediate sentencing. Within twelve hours of his arrest, Holland stood convicted and sentenced.

Based upon these facts the district court further found:

"* * * the speed with which Holland was brought before the Court after a sleepless night of constant interrogation, leave no room for the State's argument that his plea was free and voluntary. Holland's waiver of counsel and pleas of guilty were undoubtedly affected by the physical and mental after-effects of his harrowing night; * * *."

We have made an independent examination of the record with reference to the voluntariness of the plea and we conclude, as did the district court, that Holland's plea of guilty was fatally tainted by the immediately preceding coerced confession.

A conviction on a plea of guilty based on a confession extorted by mental coercion is invalid under the Due Process Clause of the Fourteenth Amendment. Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S. Ct. 223, 100 L. Ed. 126.⁹  The confession given by Holland having been determined to be of this nature, the problem is to determine whether the guilty plea was based thereon. The problem is analogous to that presented when a second confession, not itself imbedded in coercive circumstances, is claimed to be vitiated by an earlier coerced confession.

Concerning the successive confession problem, Justice Jackson laid down these guidelines in United States v. Bayer, 331 U.S. 532, 540-541, 67 S. Ct. 1394, 1398, 91 L. Ed. 1654:

"Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed."

It is apparent to us from the totality of circumstances in our case that the conditions which rendered Holland's confession involuntary had not been substantially removed at the time he entered his plea of guilty. Within two or three hours after the coerced confession had been given, a state circuit judge received Holland's plea of guilty, entered a judgment of conviction thereon, and imposed a twenty-year sentence.¹⁰  He was without a friend in court. He was never out of the presence of law enforcement officers during this period.

While the state judge inquired of Holland whether he voluntarily waived a grand jury, he was not asked whether his plea of guilty was voluntary, nor whether the written confession was voluntary.¹¹  Moreover, Holland was given no explanation of the elements of the crime charged, nor of the maximum possible sentence which could be imposed. While Holland, who was then thirty-three years old, had a fair education, including about a year and a half of college, he had also been in a Washington mental institution during part of an eighteen-month prior prison sentence.

Although we agree with the district court that Holland's present rape conviction cannot stand, we believe Oregon should be afforded an opportunity to rearraign Holland and, if he pleads not guilty, bring him to trial on the rape charge. At such a trial neither the confession, nor any incriminating statements made during the interrogation, nor any of the fruits thereof, may be used.

Following the course adopted in Rogers v. Richmond, 365 U.S. 534, 549, 81 S. Ct. 735, 5 L. Ed. 2d 760, the case is remanded to the district court to be held in order to give Oregon the opportunity to follow this procedure within a reasonable time. In default thereof, appellee is to be discharged. As so modified, the district court order is

Affirmed.