2 Section 849 of the California Penal Code provides that a person arrested without a warrant must be brought before the nearest or most accessible magistrate in the county of arrest "without unnecessary delay." Cal. Penal Code, 1956, 849.
3 Even if within the scope of the limited grant of certiorari, claims of physical violence - "third degree" methods - were denied by witnesses for the State, and hence are not part of the undisputed portions of the record which we consider here. The ambiguous reply by one police officer, "I don't think we hurt you," in response to petitioner's 438assertion in the District Attorney's office that the officer struck him, cannot alter the contradicted state of the evidence when the same officer categorically denied the claim on cross-examination at the trial.
4 At times petitioner appears to urge "a rule" barring use of a voluntary confession obtained after state denial of a request to contact counsel regardless of whether any violation of a due process right to counsel occurred. That contention is simply an appeal to the supervisory power of this Court over the administration of justice in the federal courts. See McNabb v United States, 318 US 332 (1943), which, significantly enough, petitioner cites. The short answer to such a contention here is that this conviction was had in a state, not a federal, court.
5 Section 825 of the California Penal Code provides that after an arrest, an attorney "may at the request of the prisoner or any relative of such prisoner, visit the person so arrested." Any officer in charge of the prisoner who wilfully refuses to let the attorney see the prisoner is made guilty of a misdemeanor. Cal. Penal Code, 1956, 825.
6 It is suggested that this decision extends the rule of Betts v Brady, 316 US 455 (1942), to a capital case, thereby overruling, I should suppose, Powell v Alabama, 287 US 45, and related cases. But those decisions involve another problem, trial and conviction of the accused without counsel after state refusal to appoint an attorney for him. What due process requires in one situation may not be required in another, and this, of course, because the least change of circumstances may provide or eliminate fundamental fairness. The ruling here that due process does not always require immediate honoring of a request to obtain one's own counsel in the hours after arrest, hardly means that the same concept of fundamental fairness does not require state appointment of counsel before an accused is put to trial, convicted and sentenced to death.
2 Dean Roscoe Pound wrote in 1934 as follows about this problem: "In the United States the feeling of police and prosecutors that they ought to be able to interrogate suspected persons long ago led to a systematic development of extra-legal or downright illegal examinations by officials, with every external appearance of legality. These examinations have become so much a matter of course that we may read in every morning paper how police or prosecutor examined (the word usually chosen is `grilled') so and so for anywhere from ten to forty-eight or more consecutive hours, going at him in relays to wear him out and break him down. They are now taken to be the established practice. Prosecutors often conduct them with a pretence of authority when those subjected to them are ignorant, unadvised as to their rights, insignificant, or without means of employing counsel. Indeed, so bold have those who resort to those practices become, that we now read in the newspapers how this man or that was held `incommunicado' in a police station or jail while the grilling process was going on. . . . . . "No amount of thundering against the third degree and its derivatives and analogues will achieve anything. The temper of the public will not permit of strengthening the constitutional safeguards 445of the accused. For some time to come the tendency is likely to be in the opposite direction. Indeed, a feeling that the public are with them is largely behind the boldness with which high-handed, secret, extra-legal interrogations of persons held incommunicado are constantly carried on. "My proposition is that the remedy for the third degree and its derivatives is to satisfy the reasonable demands of the police and the prosecutors for an interrogation of suspected persons and thus do away with the excuse for extra-legal questionings. "I submit that there should be express provision for a legal examination of suspected or accused persons before a magistrate; that those to be examined should be allowed to have counsel present to safeguard their rights; that provision should be made for taking down the evidence so as to guarantee accuracy. As things are, it is not the least of the abuses of the system of extra-legal interrogation that there is a constant conflict of evidence as to what the accused said and as to the circumstances under which he said or was coerced into saying it." 24 J. Crim. L. & C. 1014, 1016, 1017. As recently stated by T. B. Smith, a distinguished Scottish lawyer: "The opportunities for exerting pressure on a suspect to confess are greatest when there is no judicial supervision, no legal representation and no public scrutiny. If an accused at his trial seeks to retract a confession allegedly extorted by third-degree methods, his word will stand alone against several police witnesses who may be expected to deny improper pressure. It is well known that in the totalitarian states extra-judicial pressure by brain-washing can eventually convince even the accused that he has committed the most improbable offenses, but when a confession has been extorted by less thorough third-degree methods it is likely to be retracted at the trial. The accused may, nevertheless, by then have damaged his position irreparably." 32 Tulane L. Rev 349, 354.
3 See Chafee, Documents on Fundamental Human Rights, Pamphlets 1-3 (1951-1952), p. 541. The Scots view was recently stated by the Lord Justice General in Chalmers v H. M. Advocate, 1954 Sess. Cas. 66, 78: "The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e. g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice."
4 Quite a few of the States provide that procedural safeguard against coercive police practices. The California Penal Code, 825, provides: "The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; and after such arrest, any attorney at law entitled to practice in the courts of record of California, may at the request of the prisoner or any relative of such prisoner, visit the person so arrested. Any officer having charge of the prisoner so arrested who wilfully refuses or neglects to allow such attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow any attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of five hundred dollars, to be recovered by action in any court of competent jurisdiction." Another type of statute is that contained in Kan. Gen. Stat., 1949, 62-1304a, which provides: "That any person held in restraint of his liberty pending trial or held for investigation in any jail or other place of confinement in this state, shall be permitted upon request to immediately confer privately with an attorney of his choice in the same room with such attorney and without any barriers between such person and his attorney, and without any listening in or recording devices." For statutes similar to the Kansas Act see Colo. Rev Stat. Ann., 1953 (1957 Cum. Supp.), c. 39-1-1; Ill. Re v Stat., 1955, c. 38, 449.1; Vernon's Ann. Mo. Stat., 1953, 544.170; Mont. Rev Codes, 1947, 93-2117; N. H. Rev Stat. Ann., 1955, c. 594:16; N.C. Gen. Stat., 1953 (1957 Cum. Supp.), 15-47; Page's Ohio Rev Code Ann., 1954, 2935.16. See also 37 of the A. L. I. Model Code of Criminal Procedure.