source: Caselaw Access Project

author: Mr. Justice Powell

license: Public Domain

text:
    SHADWICK v. CITY OF TAMPA
    No. 71-5445.
    Argued April 10, 1972
    Decided June 19, 1972
    . Powell, J., delivered the opinion for a unanimous Court.

      Daniel A. Rezneck argued the cause for appellant. With him on the briefs was Malory B. Frier.

      Gerald H. Bee, Jr., argued the cause for appellee. With him on the brief was William Reece Smith, Jr.

   Mr. Justice Powell

delivered the opinion of the Court.

The charter of Tampa, Florida, authorizes the issuance of certain arrest warrants by clerks of the Tampa Municipal Court. The sole question in this case is whether these clerks qualify as neutral and detached magistrates for purposes of the Fourth Amendment. We hold that they do.

Appellant was arrested for impaired driving on a warrant issued by a clerk of the municipal court. He moved the court to quash the warrant on the ground that it was issued by a nonjudicial officer in violation of the Fourth and Fourteenth Amendments. When , the motion was denied, he initiated proceedings in the Florida courts by means of that State’s writ of common-law certiorari. The state proceedings culminated in the holding of the Florida Supreme Court that “[t]he clerk and deputy clerks of the municipal court of the City of Tampa are neutral and detached ‘magistrates’ ... for the purpose of issuing arrest warrants within the requirements of the United States Constitution . . . 250 So. 2d 4, 5 (1071). We noted probable jurisdiction, 404 U. S. 1014 (1972).

I.

A clerk of the municipal court is appointed by the city clerk from a classified list of civil servants and assigned to work in the municipal .court. The statute does not specify the qualifications necessary for this job, but no law degree or special legal training is required. The clerk’s duties are to receive trafile fines, prepare the court’s dockets and records, fill out commitment papers and perform other routine clerical tasks. Apparently he may issue subpoenas. He may nbt, however, sit as a judge, and he may not issue a search warrant or even a felony or misdemeanor arrest warrant for .violations of state laws. The only warrants he may issue are for the arrest of those charged with having breached municipal ordinances of the city of Tampa.

Appellant, contending that the Fourth Amendment requires that warrants be issued by “judicial officers,” argues that even this limited warrant authority is constitutionally invalid. He reasons that warrant applications of whatever nature cannot be assured the discerning, independent review compelled by the. Fourth Amendment when the review is performed by less than a judicial officer. It is less than clear, however, as to who would qualify as a “judicial officer” under appellant’s theory. There is some suggestion in. appellant’s brief that a judicial officer must be a lawyer or the municipal court judge himself. A more complete portrayal of appellant’s position would be that the Tampa clerks are disqualified .as judicial officers not merely because they are not lawyers or judges, but because they lack the institutional independence associated with the judiciary in that they are members of the civil service, appointed by the city clerk, “an executivé official,” and enjoy no statutorily specified tenure in office.

II

Past decisions of the Court have mentioned review by a “judicial officer” prior to issuance of a warrant, Whiteley v. Warden, 401 U. S. 560, 564 (1971); Katz v. United States, 389 U. S. 347, 356 (1967); Wong Sun v. United States, 371 U. S. 471, 481-482 (1963); Jones v. United. States, 362 U. S. 257; 270 (1960); Johnson v. United States, 333 U. S. 10, 14 (1948). Income eases the term “judicial'officer” appears to have been used interchangeably with that of “magistrate.” Katz v. United States, supra, and Johnson v. United States, supra. In others, it was intended simply to underscore the now accepted fact that' someone independent of the police and prosecution must determine probable cause. Jones v. United States, supra; Wong Sun v. United States, supra. The very term “judicial officer” implies, of course, some connection with the judicial branch. But it has never been held that only a lawyer or judge could grant a warrant, regardless of the court system or the. type of warrant involved. In Jones, supra, at 270-271, the Court implied that United States Commissioners, many of whom were.not lawyers or judges, were nonetheless “independent judicial officers.”

The Court frequently has employed the term “magistrate” to denote those who may issue warrants. Coolidge v. New Hampshire, 403 U. S. 443, 449-453 (1971); Whiteley v. Warden, supra, at 566; Katz v. United States, supra, at 356-357; United States v. Ventresca, 380 U. S. 102, 108 (1965); Giordenello v. United States, 357 U. S. 480, 486 (1958); Johnson v. United States, supra, at 13-14; United States v. Lefkowitz, 285 U. S. 452, 464 (1932). Historically, a magistrate has been defined broadly as “a public civil officer, possessing such power, legislative, executive or judicial, as the government appointing him may ordain,” Compton v. Alabama, 214 U. S. 1, 7 (1909), or, in a narrower sense “an inferior judicial officer, such as a justice of the peace.” Ibid. More recent definitions have not much changed.

An examination of the Court’s decisions reveals that the terms “magistrate” and “judicial officer” have been used interchangeably. Little attempt was made to define either term, to distinguish the one from the other, or to' advance one as the definitive Fourth Amendment requirement. We find no commandment in either, term, however,., that all warrant authority naust reside exclusively in a lawyer or judge.. Such a requirement would have been incongruous when even within the federal system warrants were until recently widely issued by nonlawyers.

To attempt to extract further significance from the ¿bove terminology would be both unnecessary and futile. The substance of the Constitution’s warrant requirements does not turn on the labeling of the issuing party. The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court long has insisted that inferences of probable cause be drawn by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, supra, at 14; Oiordenello v. United States, supra, at 486. In Coolidge v. New Hampshire, supra, the Court last Term voided- a search warrant issued by the state attorney general “who was actively in charge of the investigation and later was to bé chief prosecutor at the trial.” Id., at 450. If, on the other hand, detachment and capacity do conjoin, the magis-traté has satisfied the Fourth Amendment’s purpose.

Ill

. The requisite detachment is present in the case at hand'.' Whatever else, neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement. There has-been no showing whatever here of partiality, or affiliation of these clerks with prosecutors or police. The record shows no, connection with any law enforcement activity or authority which would distort the independent judgment the Fourth Amendment requires. Appellant himself expressly refused to allege anything to that effect. The municipal court clerk is assigned not to the police or prosecutor but to the municipal court judge for whom he does much of his work. In this sense, he may well be termed a “judicial officer.” While á statutorily specified term of office and appointment by someone other than “an executive authority” might be desirable, the absence of such features is hardly disqualifying. Judges themselves take office under differing circumstances. Some ' are appointed, but many are elected by legislative bodies or by the people. Many enjoy but limited terms and are subject to re-appointment or re-election. Most depend for their salary level upon the legislative branch. We will not elevate requirements for the independence of a municipal clerk to a level higher than that prevailing with respect to many judges. The clerk’s neutrality has not been impeached: he is removed from prosecutor or police and works within the judicial branch subject to the supervision of the municipal court judge.

Appellant likewise has failed to demónstrate that these clerks lack capacity to determine probable cause. The clerk’s authority extends only to the issuance of arrest warrants for breach of municipal ordinances." We presume from the nature of the clerk’s position that he would be able to deduce from the facts on an affidavit before him whether there was probable cause to believe a citizen guilty of impaired driving, breach of peace, drunkenness, trespass, or the multiple other common offenses covered by a municipal code. There has been no showing that this is too difficult a task for a clerk to accomplish. Our legal system has long entrusted non-lawyers to evaluate more complex and significant factual data than that in the case at hand. Grand juries daiiy determine probable cause prior to rendering indictments, and trial juries assess whether guilt is proved beyond a reasonable doubt. The significance and responsibility of these lay judgments betray any belief that the Tampa clerks could not determine probable cause for arrest.

We decide today only that clerks of. the municipal coutt may constitutionally issue thé warrants in question. We have not considered whether the actual issuance was based upon an adequate showing of probable cause. Aguilar v. Texas, 378 U. S. 108 (1964). Appellant did not submit this question to the courts below, 237 So. 2d 231 (1970), 250 So. 2d 4 (1971), and we will not decide it here initially. The single question is whether power has been lawfully vested, not whether it has been constitutionally exercised.

Nor need we determine whether a State may lodge warrant authorityun someone entirely outside the sphere of the judicial branch. ' Many persons may not qualify as the kind of “public civil officers” we have come to associate with the term “magistrate.” Had the Tampa clerk been entirely divorced from á judicial position, this-case would have presented different considerations. Here, however, the clerk is an employee of the judicial branch of' the city of Tampa, disassociated from the role of law enforcement. On the record in this case, the independent status of the clerk.cannot be questioned.

What we' do reject today is any per se invalidation of a state or local warrant system on the ground that the issuing magistrate i§ not a lawyer or judge. Communities may have sound reasons for delegating the responsibility of issuing warrants to competent personnel other than judges of lawyers. Many-municipal courts face stiff and unrelenting caseloads. A judge pressured with the docket before him may give warrant applications more brisk and summary treatment than would a clerk. All this is not to. imply that a judge or lawyer would not normally provide the most desirable review of warrant requests. But our federal system warns of converting desirable practice into constitutional commandment. It recognizes in plural and diverse state activities one key to national innovation and vitality. States are entitled to. some flexibility and leeway in their designation of magistrates, so long as all are neutral and detached and capable of the probable-cause determination required of them.

We affirm the judgment of the Florida Supreme Court.

Affirmed.

       The relevant Florida .statute and Tampa charter provisions are set forth below:
      1. Section 168.04 of Fla. Stat. (1965) reads as follows:
      "The clerk may administer an oath to and take affidavit of any person charging another with an offense by breach of an ordinance, and may issue a warrant to the marshal to- have the accused person arrested and brought before the mayor for trial. The marshal may, in the absence of the mayor and clerk from the police station, administer oaths to affidavits of complaints and issue warrants- for the arrest, of persons complained against.” ■
      2. Section 495 of the Charter of the City of Tampa enacted by . the legislature of the State of Florida in Section 17, Chapter 5363, Laws of Florida 1903, reads as follows:
      “The Chief of Police, or any policeman of the City of Tampa, may arrest, without warrant, any person Violating any of the ordinances of said city, committed in the presencé of such-officer, and when knowledge of the violation of any ordinance of said city shall come to said chief of police or policeman, not committed in his presence, he shall at once make affidavit, before the judge or clerk of the municipal court, against the person' charged with such violation, whereupon said judge or clerk shall issue a warrant for the arrest of such person.”
      ' 3. Section 160 of the Charter of the City of Tampa enacted by the legislature of the State of Florida in Sectioii 1, Chapter 61-2915, Laws of Florida 1961, reads as follows:
      “The city clerk of the City of Tampa,-with the approval of the mayor, may appoint one' or moré deputies, such deputy or deputies • to be selected from the approved classified list of the city civil service, and to have and exercise the same powers as the city clerk himself, including but not limited to the issuance of warrants. One or more of such deputies may be designated as clerks of the municipal court.”

       Tr. of Oral Arg. 6, 7, 20, 21.

       Brief for Appellant 6; Tr. of Oral Arg. 10.

       Brief for Appellant 12 — 13; Reply Brief for Appellant 8.

       Reply Brief for Appellant 8; Tr. of Oral Arg. 10-12.

       The United States Commissioner system has, of course, been replaced by the Federal Magistrates Act of 1968, 82 Stat. 1107.

       In Compton, a notary public was deemed a “magistrate,” but the Court has nowhere indicated that the term denotes solely a lawyer or judge.
      Dictionary (2d ed. 1957), defines magistrate as “[a] person clothed with power as a public civil officer; a public civil officer invested with executive or judicial powers . . or, more narrowly, “[a] magistrate of a class having summary, often criminal, jurisdiction, as a justice of the peace, or one of certain officials having a .similar jurisdiction Random. House Dictionary (1966) defines magistrate as (1) “a civil officer charged with the administration of the law” and' (2) “a minor judicial, officer, as a justice of the peace or a police justice, having jurisdiction to try minor criminal cases and to conduct. preliminary examinations of persons charged with serious crimes.”

       United States Commissioners were not required to be lawyers until passage of the Federal Magistrates Act of 1968. Even under this Act, a limited exception to lawyer’s status is afforded part-time magistrates. 28 U. S. C. §631 (b)(1).

       Tr. of Oral Arg. 10.

       Some communities, such as those in rural or sparsely settled areas,'may have, a shortage of available lawyers and judges and must entrust responsibility for issuing warrants to other qualified persons. The Federal Magistrates Act, for example, explicitly makes provision for nonlawyers to be appointed in those coinmumties where members of the bar aré not available. 28 U. S. C. § 631 (b) (1).

       See generally Mass Production Justice and the Constitutional Ideal (C. Whitebread ed., 1970).

       States differ significantly as to whom they entrust the authority to grant a warrant. See Burke v. Superior Court, 3 Ariz. App. 576, 579, 416 P. 2d 997, 1000 (1966); Parks v. Superior Court, 236 P. 2d 874, 882 (Ct. App. Cal. 1951); Kennedy v. Walker, 135 Conn. 262, 272, 63 A. 2d 589, 594 (1948); Grano v. State, -Del.-, —, 257 A. 2d 768, 773-774 (1969); Shadwick v. City of Tampa, 250 So. 2d 4 (Fla. 1971); State v. Swafford, 250. Ind. 541, 546, 237. N. E. 2d 580, 584 (1968); State ex rel. French v. Hendricks Superior Court, 252 Ind. 213, 247 N. E. 2d 519 (1969); Bailey v. Hudspeth, 164 Kan. 600, 606, 191 P. 2d 894, 898 (1948); State v. Guidry, 247 La. 631, 635-636, 173 So. 2d 192, 194 (1965); Wampler v. Warden of Maryland Penitentiary, 231 Md. 639, 648, 191 A. 2d 594, 600 (1963); LaChapelle v. United Shoe Machinery Corp., 318 Mass. 166, 168-170, 61 N. E. 2d 8, 10 (1945); State v. Paulick, 277 Minn. 140, 151 N. W. 2d 591 (1967); People v. Richter, 206 Misc. 304, 306-307, 133 N. Y. S. 2d 685, 688 (1954); State v. Furmage, 250 N. C. 616, 625-626, 109 S. E. 2d 563, 570 (1959); Moseley v. Welch, 218 S. C. 242, 250, 62 S. E. 2d 313, 317 (1950); State v. Jefferson, 79 Wash. 2d 345, 348-349, 485 P. 2d 77, 79 (1971); State ex rel. Sahley v. Thompson, 151 W. Va. 336, 342-343, 151 S. E. 2d 870, 873 (1966); State ex rel. White v. Simpson, 28 Wis. 2d 590, 137 N. W. 2d 391 (1965); State Van Brocklin, 194 Wis. 441, 217 N. W. 277 (1927).

       Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943, 944 (1963).


author: Per Curiam. Mr. Justice Douglas,-

text:
    MUREL et al. v. BALTIMORE CITY CRIMINAL COURT et al.
    No. 70-5276.
    Argued March 28-29, 1972
    Decided June 19, 1972

      Karl G. Feissner and Andrew E. Greenwald argued the cause for petitioners. With them on the brief were William L. Kaplan and Thomas P. Smith.

      Henry' R. Lord, Deputy Attorney General of Maryland, argued the cause for respondents. With him on the brief were Francis B. Bur eh, Attorney General, and Edward F. Borgerding and Donald R. Stutman, Assistant Attorneys General.

      Evelle J. Younger, Attorney General, Herbert L. Ashby, Chief Assistant Attorney General, William E. James, Assistant Attorney General, and Russell Iungerich and William R. Pounders, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.

      Briefs of amici curiae were filed by Alan F. Charles for the, National Legal Program on Health Problems of .the Poor, and by Curtis R. Reitz and Julian Tepper for the Prison Research Council of the University of Pennsylvania Law School.
   Per Curiam.

Petitioners were convicted of various state crimes and sentenced to fixed terms.of imprisonment. They were then committed to the Patuxent Institution in lieu of sentence, for an indeterminate period, pursuant to the Maryland Defective Delinquency Law, Md. Ann. Code, Art. 31B. They sought federal habeas corpus, challenging on constitutional grounds the criteria and procedures that led to their commitment, and the conditions of their confinement. They contend, inter alia, that the statutory standard for commitment is impermissibly vague, that they are entitled to put the government to the burden of proof beyond a reasonable doubt, that at the compulsory psychiatric examination prescribed by the statute they were entitled to have the assistance of counsel and to invoke the privilege against self-incrimination, and that they are being denied a constitutional right to treatment. The District Court denied relief sub nom. Sas v. Maryland, 295 F. Supp. 389 (Md. 1969), and the Court of Appeals affirmed sub nom. Tippett v. Maryland, 436 F. 2d 1153 (CA4 1971). We granted certiorari, 404 U. S. 999 (1971), to consider whether, and to what extent, the constitutional guarantees invoked by petitioners apply to this kind of commitment process. After briefing and oral argument, it now appears that this case does not present these issues in a manner that warrants the exercise of the certiorari jurisdiction of this Court.

1. Of the four petitioners, one has been unconditionally released from confinement, and the other three are subject to criminal sentences that have not yet expired, and that would bar their release from custody even if their claims were to prevail. This fact, while not necessarily dispositive of all the claims presented by these petitioners, casts those claims in a different light, not contemplated by our original grant of the writ. Cf. McNeil v. Director, Patuxent Institution, ante, p. 245.

2. Under our decisions in Baxstrom v. Herold, 383 U. S. 107 (1966), Humphrey v. Cady, 405 U. S. 504 (1972), and Jackson v. Indiana, 406 U. S. 715 (1972), petitioners’ challenge to the Maryland Defective Delinquency Law should be considered in relation to the criteria, procedures, and treatment that the State of Maryland, makes available to other persons, not “defective delinquents,” committed for compulsory psychiatric treatment. We are informed that the statutes governing civil commitment, in Maryland are presently undergoing substantial revision, designed to provide greater substantive and procedural safeguards to committed persons. Accordingly, it seems a particularly inopportune time for this Court to consider a comprehensivé challenge to the Defective Delinquency Law.

In these circumstances, the writ of fore dismissed as improvidently granted.

It is so ordered.

Mr. Justice Douglas,-

dissenting.

Patuxent Institution is a special prison used by the State of Maryland for the incarceration of “defective delinquents.” Individuals who have demonstrated “persistent aggravated anti-social or criminal behavior,” who have “a propensity toward criminal activity,” and who have “either such intellectual deficiency or emotional unbalance” as to present “an actual danger to society” may be confined at Patuxent. Md. Ann. Code, Art 31B, §5(1971). The initial determination that one is a defective delinquent is made judicially and, for those confined to Patuxent after such a determination, there is the right to seek judicial redetermination of their status at three-year intervals. Id., §6 et seq. One of the objectives of Patuxent supposedly is to provide treatment for the inmates so that they may be returned to society. Director v. Daniels, 243 Md. 16, 31-32, 221 A. 2d 397, 406 (1966). Should a defective delinquent Pot receive treatment, or should the treatment prove inadequate to return him to society, the inmate might well remain in Patuxent for the remainder of his life. See McNeil v. Director, Patuxent Institution, ante, p. 245.

Petitioners brought this action in the District Court challenging various aspects of their confinement át Patuxent. The District Court depied relief, Sas v. Maryland, 295 F. Supp. 389 (Md. 1969); the Court of Appeals affirmed, Tippett v. Maryland, 436 F. 2d 1153 (CA4 1971); and we granted the petition for a writ of certiorari. 404 U. S. 999. Because Í base my decision on narrow grounds, I do not reach the broader issues tendered by petitioners.

When a State moves to deprive an individual"-of his liberty, to-incarcerate him indefinitely, or to place him behind bars for what may be the rest of his life, the. . Federal Constitution requires that it meet a more rigorous burdén óf proof than that employed by Maryland to commit defective delinquents. The Defective Delinquency Law does not specify the burden of proof necessary to commit an individual to Patuxent, but the Maryland Court of Appeals has determined that the State need only prove its case by the “fair preponderance of the evidence.” E. g., Crews v. Director, 245 Md. 174, 225 A. 2d 436 (1967); Termin v. Director, 243 Md. 689, 221 A. 2d 658 (1966); Dickerson v. Director, 235 Md. 668, 202 A. 2d 765 (1964); Purks v. State, 226 Md. 43, 171 A. 2d 726 (1961); Blizzard v. State, 218 Md. 384, 147 A. 2d 227 (1958); and see Sas v. Maryland, 334 F. 2d 506 (CA4 1964); Walker v. Director, 6 Md. App. 206, 250 A. 2d 900 (1969). Petitioners have thus been taken from their families and deprived of their consti.tutionally protected liberty under the same standard óf proof applicable to run-of-the-mill automobile negligence actions.

The Court of Appeals disapproved this standard but, becausé it felt it insignificant, nonetheless held it to be consistent with the requirements of the Due Process Clause:

“We might all be happier had [the burden of persuasion] been stated in terms of clear and convincing proof rather than in terms of a preponderance of the evidence. However meaningful the distinction may be to us as judges, however, it is greatly-to be doubted that a jury’s .verdict would ever be influenced by the choice of one standard or the other; We all know that juries apply the preponderance standard quite flexibly, depending upon the nature of the case. In any event, in the present state of our knowledge, choice of the standard of proof should be left to the state. A legislative [sic] choice of the preponderance standard, the same standard governing civil commitments of mentally ill persons who have no history of criminality, ought not to be held in violation of due process requirements when we have no firm foundation for an evaluation of the practical effects of the choice.” Tippett v. Maryland, supra, at 1158-1159.

Judge Sobeloff dissented in part and would have held the State to a more stringent burden:

“The reasonable doubt standard is indispensable in both criminal and juvenile proceedings ... for ‘it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ . . .
“The objections to the preponderance standard apply with equal force in defective delinquency hearings — indeed they are even more compelling in the latter class of cases, since indefinite incarceration is at stake. Due process commands that the jury must be satisfied beyond a reasonable doubt as to all objective facts in dispute, including the truth of any alleged incidents relied upon by the psychiatrists in reaching their recommendation.” Id., at 1165 (citations omitted).

In considering the constitutionally mandated burdens of proof applicable to particular types of cases, our decisions have attached greater significance to the varying standards than did the Court of. Appeals below. In Speiser v. Randall, 357 U. S. 513, 520-521 (1958), we said:

“To experienced lawyers it is commonplace that the outcome of a lawsuit — and hence the vindication of legal rights — depends more often on. how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume, an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the ' rights at stake the more important must be the procedural safeguards surrounding tliose rights.”

And see In re Winship, 397 U. S. 358, 368 (1970) (Harlan, J., concurring).

The reason for our continued concern over the applicable burden of proof is that a lawsuit — like any other factfinding process — is necessarily susceptible of error in the making of factual determinations. The nature of the rights implicated in the lawsuit thus determines the allocation and degree of the burden of proof and consequently the party upon whom, the risk of errors in the factfinding process will be placed. We applied this reasoning in Speiser, where First Amendment rights were implicated:

. “In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account.' Where one' party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt.” -.357 U. S., at 525-526 (citations omitted).

In Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), Me. Justice Brennan, in an opinion joined by The Chief Justice and Mr. Justice Blackmun, again applied these principles and reasoned that the important First Amendment intérests present in defamation actions required plaintiffs to meet an extraordinary burden of proof. Justice Brennan said, “In libel cases ... an erroneous verdict for the plaintiff [is] most serious. . . . [T]he possibility of such error . . . would create a strong impetus toward self-censorship which the First Amendment cannot tolerate.” Id., at 50. Mr. Justice Brennan thus concluded that a more rigorous burden of proof was necessary to safeguard the important First Amendment rights involved:

“We ... hold that a libel action ... by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard' of whether it was false or not.” Id., at 52.

In re Winship, supra, dealt with an individual’s personal liberty which we had characterized as “an interest of transcending value” in Speiser, 357 U. S., at 525. There, we determined that “proof beyond a reasonable doubt” was constitutionally required “because of the possibility that [an individual might] lose his liberty” and because of the stigma of a criminal conviction. 397 U. S., at 363. And see Woodby v. Immigration and Naturalization Service, 385 U. S. 276, 285 (1966).

In the present case, petitioners were deprived of their most basic right — their personal liberty — under a burden of proof which was constitutionally inadequate. The right to liberty is. one of transcendent value. Without it, other constitutionally protected rights such as the right of free expression and the right of privacy become largely meaningless. Yet Maryland has deprived petitioners of this right, using a burden of proof which fáils to give sufficiént weight to the interests involved.

It is no answer to say that petitioners’ commitments were in “civil” proceedings and that the requirement for proof beyond a reasonable doubt is required only in “criminal” cases. In re Gault, 387 U. S. 1 (1967), and In re Winship, supra, specifically rejected this distinction and looked instead at the interests involved and .the actual nature of the proceedings. See also Baxstrom v. Herold, 383 U. S. 107 (1966); Specht v. Patterson, 386 U. S. 605 (1967). Nor would it be persuasive to argue that the difficulty in proving one’s state of mind requires that the State be afforded the benefit of a lesser burden of proof. Proving a state of mind is no more difficult than many other issues with which courts and juries grapple each day. An individual who is confronted with the possibility of commitment, moreover, runs the risk of losing his most important right — his liberty.

Speisér and Winship indicate that an individual’s personal liberty is an interest of transcending value for the deprivation of which the State must prove its case beyond a reasonable doubt. I would follow established precedent and hold that a State may not subject individuals to lengthy — if not indefinite — incarceration under a lesser burden of proof. Accordingly,- I would reverse the judgment below.

       Petitioner Murel was originally committed as a defective delinquent in 1962, and Creswell in 1958; their separate petitions for federal habeas corpus were denied without hearing in 1963. On appeal, the Court of Appeals consolidated these and other similar cases, and remanded all of them for a hearing, sub nom. Sas v. Maryland, 334 F. 2d 506 (CA4 1964). The hearing was deferred, by agreement of the parties, pending the outcome of related litigation in the state courts, which culminated in tSe decision in Director v. Daniels, 243 Md. 16, 221 A. 2d 397, cert. denied sub nom. Avey v. Boslow, 385 U. S. 940 (1966). The federal habeas hearing was then held in the consolidated cases, which by this time also included that of petitioners Hayes and Avey, who had been committed after the Court of Appeals’ remand order. The. petitions were again denied, 295 F. Supp. 389 (Md. 1969), and the Court of Appeals affirmed, 436 F. 2d 1153 (CA4 1971).

       At the start of this litigation nine years ago both Murel and Creswell were subject to confinement' that was wholly attributable to the Defective Delinquency Law, their sentences having expired. This is no longer the case because Murel was recently released, and Creswell was convicted and sentenced on new charges. We therefore do not reach their claims.

       We do not suggest that these claims, are moot, or that a case or controversy is lacking, or that habeas corpus is inappropriate to test the special incidents, if any, of these defective-delinquency confinements. See Carajas v. LaVallee, 391 U. S. 234 (1968); Jones v. Cunningham, 371 U. S. 236 (1963); North Carolina v. Rice, 404 U. S. 244, 248 (1971).

       In petitioner Murel’s redetermination hearing on December 21, 1964, for example, the trial court instructed the jury: “The burden is on the State to prove by a preponderance of evidence, as I' have stated to you, that the defendant does come within all phases of the definition of a defective delinquent.” Trial Transcript. 7Ó.
      The jury instructions in petitioner Creswell’s December 20, 1961, redetermination trial were similar:
      “The burden of proof in this particular casé is governed by our normal civil rules of evidence; The burden of proof is on the State to satisfy you that this defendant is a defective delinquent. If the State has not satisfied you by a fair preponderance of the evidence that he is a defective delinquent, or if your minds are in a state of equal balance, or even balance, after considering all the evidence as to whether he is or is not a defective delinquent, then it is your duty to find him to be. not a defective delinquent.
      “However, if you are satisfied by a fair preponderance of the evidence that he is a defective delinquent, then it. is yoür duty to •so find him to be such defective delinquent.” Trial Transcript 75-76.
      The record developed in the District Court also included the jury instructions in the October 30, 1959, redetermination hearing of Charles Tippett, who was a petitioner in the District Court:
      “The Court informs you that having once been determined.to be • a defective delinquent and now that he comes before you and a-slrs to be released as cured of whatever defect there was, the burden is on him to convince you by a fair preponderance of the testimony that.that is so.” Trial Transcript 40.

       Bruce J. Ennis, Staff Attorney of the New York Civil Liberties Union and Director of the Civil Liberties and Mental Illness Project, testified as follows before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st & 2d Sess., 277-278 (1969 and 1970):
      “As I mentioned earlier, the mentally ill are possibly less dangerous than the mentally healthy. A five and a half year study of 5,000 patients discharged from New York State mental hospitals showed that 'patients .with no record of prior arrest have a strikingly low rate of arrest after release. . . . Their over-all rate of arrest is less than Vi2 that of the general population and the rate for each separate offense is also far lower, especially for more serious charges.’ ■ Another psychiatrist states that there is ‘not a shred of evidence that the mentally ill are any more dangerous than the mentally healthy.’ A diagnosis of mental illness tells' its nothing about whether the person so diagnosed is or is not dangerous. Some mental patients are dangerous, some are not. Perhaps the psychiatrist is an expert at deciding whether.a person is mentally ill, but is he an expert at predicting which of. the persons so diagnosed are dangerous? Sane people, too, are dangerous, and it may legitimately be inquired whether there is anything in the education, training or experience of psychiatrists which renders them particularly adept at predicting dangerous behavior. Predictions of dangerous behavior, no matter who makes them, are incredibly inaccurate, and there is a growing consensus that psychiatrists are not uniquely qualified to predict dangerous behavior and are, in fact, less accurate in their predictions than other professionals.
      “Because predictions of dangerous behavior are so grossly unreliable, we should authorize confinement only if the predicted danger is proved ‘beyond a reasonable doubt’ rather than by a mere preponderance of the evidence.” (Footnotes omitted.)


author: Per Curiam. Mr. Justice Blackmun,

text:
    TURNER v. ARKANSAS
    No. 71-1309.
    Decided June 19, 1972
   Per Curiam.

On December 24, 1968, petitioner, one Richard Turner (no relation to petitioner), the decedent Larry Wayne Yates, and one other person were involved in a poker game, which lasted until the early hours of Christmas morning. After he left the game, Yates was murdered and robbed, and an information filed on December 27 charged that:

“[Petitioner] on the 25th day of December, 1968 .. . did unlawfully, wilfully, feloniously and violently take from the person of one Larry Wayne Yates . . . a sum of money in excess of $300.00 . . . forcibly and against the will of the said Larry Wayne Yates . . . and while perpetrating said crime of robbery as aforesaid, feloniously, wilfully and with malice aforethought, and with premeditation and deliberation did kill and murder one Larry Wayne Yates . . . .”

On April 24, 1969, petitioner received a general verdict of acquittal on this information.

On October 3, 1969, however, a county grand jury indicted petitioner for the robbery of Yates and alleged that petitioner

“on the 25th day of December, 1968, in Hempstead County, Arkansas, did unlawfully take from Larry Yates by force and intimidation lawful currency in the amount of Four Hundred Dollar's ($400.00) belonging to the said Larry Yates, against the peace and dignity of the State of Arkansas.”

Petitioner moved to dismiss this indictment on double jeopardy and res judicata grounds, but the trial court denied the motion. On appeal, it was stipulated that “the murder charge, of which Defendant Dennis Turner was acquitted, and the robbery charge arose out of the same set of facts, circumstances, and the same occasion” and that “the same testimony adduced by the State of Arkansas in the murder trial will necessarily need be reintroduced in this robbery charge.” A divided Arkansas Supreme Court affirmed the denial of petitioner’s motion, Turner v. State, 248 Ark. 367, 452 S. W. 2d 317 (1970), holding that the only question determined at the murder trial was whether petitioner was guilty of murder. The court pointed out that under state law, murder and robbery charges could not be joined in one indictment or information and that no offense could be jointly tried with murder. Petitioner’s rehearing petition, which argued the relevance of this Court’s holding in Ashe v. Swenson, 397 U. S. 436 (1970), announced seven days after the Arkansas Supreme Court’s decision, was denied. Petitioner then entered the complete transcript of the murder trial into the record and once again moved to dismiss the indictment on double jeopardy and res judicata grounds, and the trial court again denied the motion. Aja amended stipulation provided that the evidence the State would present on the robbery charge would be identical with , that it introduced on the murder charge. The Arkansas Supreme Court affirmed the decision of the trial court, 251 Ark. 499, 473 S. W. 2d 904 (1971), declining to consider the applicability of this Court's decision in Ashe v. Swenson, supra,- because it held that its earlier decision denying petitioner relief now constituted the “law of the case.”

Petitioner contends that Fifth Amendment principles of double jeopardy, see Benton v. Maryland, 395 U. S. 784 (1969), prevent his trial on the robbery indictment, because the State is collaterally estopped from relitigating those issues already determined in his favor at the murder trial, determinations that make his conviction on the robbery charge a logical impossibility. Collateral estop-pel is part of the Fifth Amendment’s double jeopardy guarantee, Ashe v. Swenson, supra, and it is “a matter of constitutional fact [this Court] must decide through an examination of the entire record.” Id., &t 443. Thus,, the rejection of petitioner’s claim by the Arkansas Supreme Court on procedural grounds does not foreclose our inquiry on this issue.

In Ashe, the defendant had been tried and acquitted by a general verdict of the robbery of one member of a . poker game. He was then tried and convicted of the robbery of another of the poker players. This Court reversed his conviction, concluding that “[t]he single rationally conceivable issue in dispute before the jury [in the first trial] was whether the petitioner had been one of the robbers,” 397 U. S., at 445, and that, this issue once having, been determined by a jury in the petitioner’s - favor, the State was forestalled from relitigating it.

In the present case, petitioner was not charged with robbery at the first trial, but the State has stipulated that the robbery and murder arose out of “the same set of facts, circumstances, and the same occasion.” The crucial question, therefore, is what issues a general verdict of acquittal at the murder trial resolved. The jury was instructed that it must find petitioner guilty of first-degree murder if it found that he had killed the decedent Yates either with premeditation or unintentionally during the course of a robbery. The jury’s verdict thus necessarily means that it found petitioner not guilty of the killing. The State’s theory, however, is that the jury might have believed that petitioner and Richard Turner robbed Yates, but that Richard actually committed the.murder. This theory is belied by the actual instructions given the jury. The trial judge charged that:

“An accessory is one who stands by, aids, abets, or assists . . . the perpetration of the crime..
“All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted or informed against, and punished as such.” (Court’s Instruction No. 13.)

Had the jury found petitioner present at the crime scene, it would have been obligated to return a verdict of guilty of murder even if it believed that he had not actually pulled the trigger. The only logical conclusion is that the jury found him not present at the scene of the murder and robbery, a finding that negates the possibility of a constitutionally valid conviction for the robbery of Yates. This case is thus squarely controlled by Ashe v. Swenson, supra, and must be reversed. See Harris v. Washington, 404 U. S. 55 (1971).

The writ of certiorari is granted, the decision of the Arkansas Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Blackmun,

with whom Mr. Justice Rehnquist joins,

concurring.

Given the decision in Ashe v. Swenson, 397 U. S. 436 (1970) (see, however, my dissent in Harris v. Washington, 404 U. S. 55, 57 (1971)), I join the judgment of the Court.

The Chief Justice, rather than taking summary action in this case, would hear oral argument and give the matter plenary consideration.

      These instructions reflect Ark. Stat. Ann. § 41-2227 which makes accessories before the fact to first-degree murder subject to the same punishment as principals. Ark. Stat. Ann. §41-118 abolished the distinction between principals and accessories before the fact and also provides that “all accessories before the fact shall be deemed-principals and punished as such.” Ark. Stat. Ann. §41-119 defines an accessory as “he who stands by, aids, abets, or assists . . . the perpetration of the crime.”


author: Mr. Chief Justice Burger Mr. Justice Stewart,

text:
    MILTON v. WAINWRIGHT, CORRECTIONS DIRECTOR
    No. 70-5012.
    Argued January 12, 1972
    Decided June 22, 1972
    Burger, C. J., delivered the opinion of the Court, in which White, BlacemuN, Powell, and RehNquist, JJ., joined. .Stewart, J., filed a dissenting opinion, in which Douglas, BrennaN, and Marshall, JJ., joined, post, p. 378.

      Neil P. Rutledge, by. appointment of the Court, 403 U. S. 951, argued the cause and filed a brief for petitioner.

      J. Robert Olían, Assistant Attorney General of Florida, argued the cause for'respondent pro hac vice. With him on the brief was Robert L. Shevin, Attorney General.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted the writ of certiorari on claims under the Fifth and Sixth Amendments arising out of the use of one of a number of confessions, all of which were received in evidence over objection. The confession challenged here was obtained by a police officer posing as an accused .person confined in the cell with petitioner.

Petitioner Milton is presently serving a life sentence imposed in 1958 upon his conviction of first-degree murder following a jury trial in Dade County, Florida. During that trial, the State called as a witness a police officer who, at a. time when petitioner had already been indicted and was represented by counsel, posed as a fellow prisoner and spent almost two full days sharing a cell with petitioner. The officer testified to incriminating statements made to him by petitioner during, this period. Contending that the statements he made to the officer were involuntary under Fifth Amendment standards and were obtained in violation of his' Sixth Amendment rights as subsequently interpreted in Massiah v. United States, 377 U. S. 201 (1964), petitioner initiated the present habeas corpus proceeding in the United States District. Court for the Southern District of Florida. The District Court, finding that petitioner had exhausted his state remedies in the course of several post-conviction proceedings in the Florida courts, ruled against petitioner on the merits of his claim, holding that his statements to the police ■officer were not inadmissible on Fifth Amendment grounds and that his Sixth Amendment claim could not prevail since “[n]o Court has declared Massiah retroactive, and .this Court will not be the first to do so.” 306 F. Supp. 929, 933. The Court of Appeals affirmed the denial of relief to petitioner, 428 F. 2d 463.

On the basis of the argument in the case and our examination of the extensive record of petitioner’s 1958 trial, we have concluded that the'judgment under review must be affirmed without reaching the merits of petitioner’s present claim. Assuming, arguendo, that the challenged' testimony should have been excluded, the record clearly reveals'that any error in its admission was harmless beyond a reasonable doubt. Harrington v. California, 395 U. S. 250 (1969); Chapman v. California, 386 U. S. 18 (1967). The jury, in addition to hearing the challenged testimony, was presented with overwhelming evidence of petitioner’s guilt, including no less than three full confessions that were made by petitioner prior to his indictment. Those confessions have been found admissible in the course of previous post-conviction proceedings brought by petitioner in his attempts to have this conviction set aside, and they are not challenged here.

The crime for which petitioner was convicted occurred in the early morning hours of June 1, 1958. The woman with whom petitioner had been living was asleep while riding as a passenger in the rear seat of an automobile driven by petitioner; she died by drowning when the car ran into the Miami River with its rear windows closed and its rear doors securely locked from the outside with safety devices designed to ensure against accidental'opening of the doors. Petitioner, who jumped from the-car shortly before it reached the water, was nevertheless propelled into the river by the car’s momentum; he was recovered from the water when a seaman nearby heard his cries for help and found him clinging to a boat moored in the river near the point of the automobile’s entry. A few hours later the car, with the victim’s'body still inside, was retrieved from the bottom of the river a short distance downstream from its point of entry.

The following day the Miami police arrested petitioner on manslaughter charges and placed him in the city jail. Ten days after the woman’s death; petitioner, having been. advised of his right to remain silent, confessed that he had deliberately killed the woman and. that the accident was simulated.' He first made an oral confession to a police officer during- a question-and-answer exchange that was preserved on a wire-recording device. He then repeated his confession during another exchange and these statements were taken down by a stenographer; after this stenographic recording was converted to a transcript, petitioner read it over in full and signed it at 11 p. m. on June ll.

The following day, petitioner told a police officer that he would like to make some clarifying additions to the statements in the writing he had signed the previous night. The officer suggested that they first go with a photographer to the scene of the incident “and reconstruct how this thing . . . occurred.” Petitioner agreed. Hé, the police officer, and a photographer then went to the scene of the crime where petitioner pointed out the route he had taken in driving the car to the river, the.approximate point at which he had jumped out of the car, and the point of the car’s entry into the river. Petitioner was then taken back to the police station where he went over his statement of the night before and indicated to the officer the' parts of that statement he wanted to clarify. Once again, a stenographer was summoned and a question-and-answer exchange was taken down and transcribed to-a writing that petitioner read over and signed. Approximately one week after he had made these confessions, petitioner secured the services of an attorney who advised him not to engage in any further discussions of his case with anyone else.

Following this, and while petitioner was under indictment and confined in the Dade County jail awaiting trial, the State, for reasons that are not altogether clear, assigned a police officer named Langford the special detail of posing as a prisoner and sharing petitioner’s cell in order, to “seek information” from him.

■ Langford entered the cell with petitioner late one Friday afternoon and presented himself as a fellow prisoner under investigation for murder; he assumed a friendly pose toward his cellmate, offering petitioner some of his prison food at their first breakfast together the next morning and telling petitioner something of his own fictitious “crime,” which he described as a robbery committed with an accomplice who had used Langford’s gun to kill the robbery victim. Finally, petitioner began to boast that he had not made Langford’s mistake of having an accomplice who might later serve as a witness; instead, he said, he had committed the “perfect” crime with no surviving witnesses. By the time Langford left, the cell on Sunday afternoon, petitioner had described his own crime in some detail and had predicted with much assurance that he would soon be released, that he would collect a lot of insurance money, and that he would then flee the State with the insurance money without ever being brought to trial for his “perfect” crime. The incriminating statements made to Langford were essentially the same as those given in the prior confessions not challenged here.

At petitioner’s trial-in state court, the wire recording of his first, confession was played back, first to-the judge for a ruling on its admissibility,, and then to the jury. Petitioner’s two written confessions were also- received in evidence, as were the photographs that were taken and the statements that, were made by petitioner when he reconstructed the crime at the scene of its occurrence. In addition, Langford was permitted to testify to the statements made to him by petitioner while the two men were sharing the cell in the county jail. Other evidence, highly damaging to petitioner in its totality, was also presented to the jury. For example, there was testimony that petitioner had told an acquaintance a few months before the murder that he disliked Minnie Claybon (the murder victim) and was interested only , in getting some money out of her. The terms of certain insurance policies- purchased by petitioner about two months before the crime were described in testimony given by the selling insur-aneé agents; the policies provided for the payment of $8,500 to -petitioner upon the accidental death of Miss Claybon, • and the agents testified that petitioner had faithfully maintained his weekly premium payments on the policies. Other testimony, however, indicated that petitioner was hard pressed for money shortly before'the murder, having fallen behind in his rent payments and having sold some of his personal clothing to raise small sums. There was testimony that petitioner had purchased the car in which Miss Claybon drowned on the very afternoon before the crime, making a cash down payment of $8; that the safety devices on the rear doors» of the car had been left in the unlocked position by the car’s former owner; that these devices could be put in the locked position only by loosening'a screw, _ sliding the locking device into position, and then retightening the screw; and that these devices were found securely screwed in the locked position when the car, with the victim’s' body still inside, was recovered from the river. After hearing all the evidence, the jury found petitioner guilty of murder in the first degree, but recommended mercy; on that recommendation, the trial judge imposed the sentence of life imprisonment.

The petitioned has made a number of collateral attacks on his conviction, primarily in the courts of Florida. In response to one of his applications for post-conviction relief, the Florida Supreme Court issued a writ of habeas corpus, heard oral argument on the voluntariness of petitioner’s wire-recorded and written confessions, but thereafter. discharged the writ in a reported decision upholding the voluntariness of those confessions and their admissibility at trial. Milton v. Cochran, 147 So. 2d 137 (1962), cert. denied, 375 U. S. 869 (1963). The issues raised in that proceeding are not now before us and must, for the purposes of the instant case, be treated as having been properly resolved by the Florida Supreme Court. Cf. Sup. Ct. Rule 23 (1)(c).

In initiating the present habeas corpus proceeding in the District Court, petitioner sought to have his conviction set aside on the ground that the statements he made to police officer Langford should not have been admitted against him. Our reviéw of the record, however, leaves us with no reasonable doubt that the jury at petitioner’s ■ 1958 trial would have reached the same verdict without hearing Langford’s testimony. The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but, rather, to review for violation of federal constitutional standards. In that process we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court 14 years ago by use of evidence not challenged here; the use of the additional evidence challenged in this proceeding and arguably open to challenge was, beyond reasonable doubt, harmless.

Affirmed.

Mr. Justice Stewart,

with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join, dissenting.

Under the guise of finding “harmless error,” the Court today turns its back on a landmark constitutional precedent established 40 years ago. That precedent, which clearly controls this case, is Powell v. Alabama, 287 U. S. 45. I respectfully dissent.

In 1958 a Florida grand jury indicted the petitioner, George Milton, for first-degree murder. This was an offense punishable by death under Florida law. After he had been indicted, Milton was remanded to the Dade County jail to await trial. He had retained a lawyer, who had advised him not to talk about his. case with anyone.

Some two weeks later the State directed a police officer named Langford to enter Milton’s cell, posing as a fellow prisoner' also under indictment for murder, in order to “seek information” from Milton. Langford -entered' the cell on a Friday evening. That night he “tried to open him [Milton] up,” but Milton refused to talk about his case. The next day Langford devoted his efforts to gaining Milton’s confidence. He' shared his breakfast with Milton and gave him candy. . He talked ' convincingly about his own ' purported crime. He tried to steer the conversation to the charge against Milton, bxit Milton repeatedly said he did not want to talk about it, and had been told not to talk about it by his lawyer. Finally, sometime between midnight and 3 a. m. on Sunday, after almost 36 hours of prodding by his supposed fellow prisoner, Milton allegedly confessed the murder to Langford.

At Milton’s subsequent trial, Langford, over objéction, was allowed to testify in detail to this alleged confession. Milton was convicted, and, upon the recommendation of the jury, he was not sentenced to death, but to life imprisonment. His appeals to the state appellate courts, were unavailing, and he ultimately filed the present federal habeas corpus proceeding in the United States District Court for the Southern District of Florida, claiming that'his conviction was invalid because he . had been deprived of his constitutional right to 'the assistance of counsel after the indictment.

The District Jiidge denied the writ, apparently believing. that the question before him was whether this Court’s decision in Massiah v. United States, 377 U. S. 201, was “retroactive”':

“This case was tried six years before the Supreme Court indicated in' Massiah v. United States, 377 U. S. 201 . . . (1964), that confessions'are involuntary per se if induced by officers or. their agents from an' accused after his indictment while he is without assistance of counsel.-' No,Court .has declared' Massiah retroactive, and this Court will not be the first to do so. Counsel, for Milton' argues that Massiah was not declared retroactive because far from -stating, new principles of law, it merely restated principles derived from Powell v. Alabama, 287 U. S. 45 . . . (1932). However, the Powell case dealt with the Sixth Amendment right ' to appointment of counsel in a capital case,, a situation far different from this case;' Milton knew what he was doing. He wasn’t intimidated by-the police, because he didn’t even know his cellmate was a policeman. He had a lawyer who had told him not" to make any statements concerning his case, but he chose not to follow that advice.” 306 F. Supp. 929, 933-934. •

The Court of Appeals for the Fifth Circuit affirmed per curiam, “on the basis of [the District Court’s] opinion,” 428 F. 2d 463, and we granted Certiorari, 403 U. S. 904.

The District Court and the Court of Appeals were in error. They were mistaken, first, in thinking that the Massiah case had anything to do with the “voluntariness” of a confession. They were mistaken, second, in thinking that any real question of “retroactivity” was presented. . They .were mistaken, third, in thinking that Powell v. Alabama, supra, dealt only with “appointment of counsel in a capital case.” And they were mistaken, fourth, in thinking that Powell v. Alabama was inapplicable to this case.

Powell v. Alabama, decided almost 40 years ago, was one of the truly landmark constitutional decisions of this Court. It held that under the Fourteenth Amendment a man indicted fob a capital offense in a state court has an absolute right, not “to appointment of,” but to the assistance of counsel. And that constitutional right is not restricted to the trial. The Court reversed the convictions in Powell, because:

“during perhaps the most critical period of the proceedings against these defendants, that, is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial, itself.” 287 U. S., at 57.

.In Massiah v. United States, supra, we found that this constitutional right to counsel was violated when, after indictment, a defendant who had a lawyer was surreptitiously interrogated alone by an agent of the-police. “[U]nder our system of justice/’, we said, “the most elemental concepts of due process of law contemplate that an indictment be followed by a trial, ‘in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.’. . .” “[A] Constitution which guarantees a defendant the aid of counsel at such a trial could surely yoüchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. . . .” “This view,” we said, “no more than reflects a constitutional principle established as long ago as Powell v. Alabama, 287 U. S. 45.” 377 U. S., at 204-205.

The “retroactivity” of the Massiah decision is a wholly spurious issue. For Massiah marked .no new. departure in the law. It upset no accepted prosecutorial practice. Its “retroactivity” would effect no wholesale jail deliveries. Cf. Tehan v. Shott, 382 U. S. 406, 418-419. In no case before Massiah had this Court, at least since Powell v. Alabama, ever countenanced the kind of post-indictment police interrogation there involved, let alone ever specifically upheld the constitutionality of any such interrogation.

For four decades this Court has recognized that when a State indicts a man for a capital offense, the most rudimentary constitutional principles require that he be afforded the full and effective assistance of counsel:

“Let it be emphasized at the outset that this is not a case where the police were questioning a suspect in the course of investigating an unsolved crime. . . .
“Under our system of justice an indictment is supposed to be followed by an arraignment and a trial. At'every stage in those proceedings the accused has an absolve right to a lawyer’s hélp if the case is one in which a death sentence may be imposed. Powell v. Alabama.” Spano v. New York, 360 U. S. 315, 327 (concurring opinion):

So the question in this case is not whether Massiah is “retroactive,” for the rule in that case has been settled law ever since Powell v. Alabama.

I can find no basis for the Court’s holding the admission of Officer "Langford’s testimony was harmless. In Chapman v. California, 386 U. S. 18, we said that an “error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy [v. Connecticut, 375 U. S. 85], be conceived of as harmless.” 386 U. S., at 23-24. And on the question of whether a jury might possibly have been influenced, the State must “prove beyond a reasonable doubt that the error complained of did hot contribute to the verdict obtained.” Id., at 24.

Neither the District Court nor the Court of Appeals even suggested the possibility of harmless error in this case, and with very good reasons. The Court today relies on the fact that the challenged “confession” was, only one of several introduced at the petitioner’s trial. But it fails to mention that each of the previous statements was taken during an 18-day period after arrest but-before indictment, when the petitioner was held in jail incommunicado and was questioned almost every day, often for hours at a time. For 10 days the petitioner denied that he had deliberately killed his wife. Finally, during a session in which two detectives working in tandem questioned him continuously for some eight hours, the petitioner allegedly confessed. Other statements followed that one, but all were' taken during the period of incommunicado detention.

Under these circumstances, it is hardly surprising that the Miami police chose -to plant an officer in the petitioner’s jail- cell two weeks, after indictment, in the hope of obtaining admissions. less tainted by-the indicia of unreliability that surrounded the previous statements. They succeeded in doing so, and the alleged confession thus obtained was truly devastating to the defense at the trial. Langford’s testimony was the first evidence of any incriminating statements introdüced by the State at the trial, and it was referred to repeatedly by the prosecutor in his final argument.

The state courts determined that the petitioner’s pre-indictment statements were voluntary, and that issue,' as the Court notes, is not now before us. But the. weight given by a jury to any alleged confession is affected by the circumstances under which it was obtained, and the ability of the petitioner to discredit in the minds of the jury the evidence of his prior statements was undoubtedly destroyed by the strong corroboration and elaboration supplied by the testimony of Officer Langford, who had been unconstitutionally planted in the petitioner’s jail cell. Surely there is at. the least a reasonable doubt whether in the.se circumstances the introduction of Lang-ford’s testimony did not contribute to the verdict of first-degree murder returned by the jury, particularly where a conviction for a lesser degree of homicide was a distinct possibility on the evidence.

To hold otherwise, in the absence of any finding of harmless error by .any of the four courts that have previously ruled on the admissibility of- Langford’s testimony, is to violate the very principle that' the Court restates today: “The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but rather to review for violation of federal constitutional standards.” Ante, at 377.

Despite its admonition, the Court today refuses to rule on the constitutional question squarely presented in this-case. That question is whether the great constitutional lesson of Powell v. Alabama is to be ignored. I would not ignore it, but would honor its “fundamental postulate . . . ‘that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.’ ” Powell v. Alabama, 287 U. S., at 71-72.

For these reasons, I would reverse.the.judgment before us.

       In this first written confession, petitioner made the following statements:
      “Minnie Lee Claybon [the murder victim] and myself had an insurance policy together. So I started thinking about the insurance and the money that I could get if something happened to her. I knew that I could use the money if something happened. So I decided to do something about it one way or the other, so one night we had been riding around in the car. So I decided to get the whole thing over with. So I drived the car into the river and she was killed. ■
      “. . . I drove the car straight toward the river, and just as I got almost to. the river, ... I jumped from the car and the car went on into< the river and I skidded and kept rolling over and over-until I was in the river also. I hurt my shoulder. I couldn’t move • that arm. It was hurting real bad.”

       In this second writing, petitioner confirmed in major part the statements he had made the night before, but said in addition that he had “decided to kill” the woman “about a month before this incident happened.” He further stated, however, that he was not thinking of the insurance money when he made that decision, but was thinking instead of the woman’s habits of associating with other men, drinking too much, and staying out late at night. He reaffirmed in express terms that he, had deliberately driven the car into the river with the intention of killing the woman.

         Massiah involved a federal noncapital' felony charge, where the defendant had an absolute Sixth Amendment right to counsel under Johnson v. Zerbst, 304 U. S. 458. The same absolute right was-secured by Gideon v. Wainwright, 372 U. S. 335, to defendants in noncapital .state criminal cases under the Sixth and Fourteenth Amendments. This- constitutional guarantee has now bella further extended. See Argersinger v. Hamlin, ante, p. 25.

       An issue of the “retroactivity” of a decision of this Court is not even presented unless the decision in question marks a sharp break in the web of the law. The issue is presented only when the decision overrules clear past precedent, e. g., Linkletter v. Walker, 381 U. S. 618; Desist v. United States, 394 U. S. 244; Williams v. United States, 401 U. S. 646; or disrupts a practice long accepted and widely relied upon, e. g., Johnson v. New Jersey, 384 U. S. 719; Stovall v. Denno, 388 U. S. 293; Cipriano v. City of Houma, 395 U. S. 701.

       Even on the erroneous premise that the “retroactivity” of Massiah is here involved, the District Court was quite mistaken in stating that “[n]o Court has declared Massiah retroactive.” This Court, in McLeod v. Ohio, 381 U. S. 356, reversed, citing Massiah, an Ohio conviction because a voluntary confession was admitted in evidence that had been obtained when police officers questioned the petitioner in the absence of counsel a week after he had been indicted. The conviction antedated Massiah by almost four years.