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JACKSON, J., dissenting.

343 U.S.

ing to receive those we expel. But, except selected individuals who can do us more harm abroad than here, what Communist power will cooperate with our deportation policy by receiving our expelled Communist aliens? And what non-Communist power feels such confidence in its own domestic security that it can risk taking in persons this stable and powerful Republic finds dangerous to its security? World conditions seem to frustrate the policy of deportation of subversives. Once they gain admission here, they are our problem and one that cannot be shipped off to some other part of the world.

While we would not join in a strained construction of the Constitution to create captious or trivial obstacles or delays to solution of this problem, we cannot sanction sending aliens to prison except upon compliance with constitutional procedures. We can afford no liberties with liberty itself.

The Court intimates that it might be compelled to agree with this constitutional objection to the statute were the reasoning advanced by counsel. I abstain from comment on this new squeamishness whereby the Court imprisons itself within counsel's argument. Cf. Terminiello v. Chicago, 337 U. S. 1. It is our duty before reversing a judgment to examine any ground upon which it can be sustained, even a ground which the court below may have overlooked or expressly rejected. See Langnes v. Green, 282 U. S. 531, and Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9, 21. But this Court is reversing the lower court which held this statute unconstitutional and is sending the Act forth limping with a potential infirmity, because the Court has become too shy to take up a point not sponsored by counsel, though, if well taken, it would support the judgment here being overturned. The least that could be done would be to order the case reargued.

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Syllabus.

STROBLE v. CALIFORNIA.

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.

No. 373. Argued March 6, 1952.-Decided April 7, 1952.

Petitioner's conviction of first degree murder was affirmed by the

Supreme Court of California. Petitioner here challenged the validity of his conviction under the Fourteenth Amendment, on the grounds (1) that it was based in part on a coerced confession; (2) that a fair trial was impossible because of inflammatory newspaper reports inspired by the District Attorney; and (3) that he was in effect deprived of counsel in the course of his sanity hearing. He urged that each of these grounds independently was a denial of due process; and that the combination of them with other circumstances denied due process. Held: The judgment of conviction is affirmed. Pp. 183–198.

1. If the confession which petitioner made in the District Attorney's office shortly after his arrest was in fact involuntary, the conviction cannot stand, even though the evidence apart from that confession might have been sufficient to sustain the jury's verdict. P. 190.

2. When the question on review of a state court conviction is whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession, this Court must make an independent determination on the undisputed facts. P. 190.

3. In the light of all the circumstances of this case, this Court cannot say that petitioner's confession in the District Attorney's office was the result of coercion, either physical or psychological. Pp. 184-189, 190–191.

4. Petitioner's contention that the newspaper accounts of his arrest and confession were so inflammatory as to make a fair trial in the Los Angeles area impossible—even though a period of six weeks intervened between the day of his arrest and confession and the beginning of his trial—is not sustained by the record in this case. Pp. 191-195.

5. Petitioner's contention that he was deprived of the effective assistance of counsel when he waived trial by jury on the issue

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of insanity is not substantiated, since it appears that he had the full assistance of competent counsel on that question. Pp. 195–196.

6. The combination of the above grounds with the alleged unwarranted delay in arraignment and the refusal to permit counsel to consult petitioner during the making of the confession, do not amount to such unfairness as to deny due process. Pp. 196–198.

7. Upon review by this Court of a state court conviction challenged as wanting in due process, illegal acts of state officials prior to trial are relevant only as they bear upon the defendant's contention that he was deprived of a fair trial, either through the use of a coerced confession or otherwise. P. 197.

8. Upon the facts of this case, this Court cannot hold that the illegal conduct of the law enforcement officers in not taking petitioner promptly before a committing magistrate coerced the confession which he made in the District Attorney's office or in any other way deprived him of a fair and impartial trial. P. 197.

9. Upon the record in this case, there is no showing of prejudice resulting from the refusal of the prosecutors to admit counsel during their interrogation of petitioner. Pp. 197–198.

10. The burden of showing essential unfairness in a state court trial is upon him who claims such injustice and seeks to have the result set aside, and must be sustained not as a matter of specula

tion but as a demonstrable reality. P. 198. 36 Cal. 2d 615, 226 P. 2d 330, affirmed.

Petitioner's conviction of first degree murder, challenged as violating the Due Process Clause of the Fourteenth Amendment, was affirmed by the Supreme Court of California. 36 Cal. 2d 615, 226 P. 2d 330. This Court granted certiorari. 342 U. S. 811. Affirmed, p. 198.

John D. Gray and A. L. Wirin argued the cause for petitioner. With them on the brief were Fred Okrand, Clore Warne and Loren Miller.

Adolph Alexander argued the cause for respondent. With him on the brief were Edmund G. Brown, Attorney General of California, William V.O'Connor, Chief Deputy Attorney General, and Frank W. Richards, Deputy Attorney General.

181

Opinion of the Court.

MR. JUSTICE CLARK delivered the opinion of the Court.

Petitioner has been convicted of first degree murder and sentenced to death. He asks this Court to reverse his conviction as wanting in that due process of law guaranteed against state encroachment by the Fourteenth Amendment. Petitioner claims (1) that his conviction was based in part on a coerced confession; (2) that a fair trial was impossible because of inflammatory newspaper reports inspired by the District Attorney; (3) that he was in effect deprived of counsel in the course of his sanity hearing; (4) that there was an unwarranted delay in his arraignment; and (5) that the prosecuting officers un justifiably refused to permit an attorney to consult petitioner shortly after petitioner's arrest. Petitioner urges that each of the first three circumstances is independently a deprivation of due process; and that, in any event, the combination of all five circumstances operated to deprive him of a fair trial.

The murder of which petitioner has been convicted occurred on Monday, November 14, 1949; the victim was a girl, aged 6. Petitioner was arrested around noon on Thursday, November 17, 1949. He was arraigned in the Los Angeles Municipal Court at 10 o'clock the following morning, and the City Public Defender was appointed to represent him. A preliminary hearing was held on Monday, November 21, and petitioner was bound over for trial in the Superior Court of Los Angeles County. On November 25, petitioner was arraigned in the Superior Court and the County Public Defender was appointed as his counsel. From that point until the conclusion of his trial, petitioner was vigorously defended by two deputies of the County Public Defender's office. On December 2, 1949, petitioner pleaded both “not guilty" and "not guilty by reason of insanity.” The case came on for trial on January 3, 1950. The issue of guilt was tried to a

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jury, which, on January 19, returned a verdict of guilty of first degree murder, without recommendation; under California law, this automatically fixed the penalty at death. On January 20, 1950, petitioner waived jury trial on the issue of insanity, and the court found that petitioner was sane at the time of committing the offense. On January 27, 1950, on petitioner's motion, a private attorney was substituted as petitioner's counsel. On February 6, 1950, the trial court, after a hearing, denied petitioner's motion for a new trial, motion in arrest of judgment, and motion to set aside the waiver of jury trial on the issue of insanity.

On appeal the Supreme Court of California unanimously affirmed the conviction. 36 Cal. 2d 615, 226 P. 2d 330. We granted certiorari because of the seriousness of petitioner's allegations under the Due Process Clause. 342 U. S. 811.

The facts leading to petitioner's arrest may be summarized as follows:

In the early morning of November 15, 1949, the victim's body was found behind the incinerator in the back yard of the home of petitioner's daughter and son-in-law. It was wrapped in a blanket and covered with boxes. A necktie was wound twice around the child's neck. An axe, knife, and hammer were found in the vicinity of the body. An autopsy revealed that the immediate cause of death was asphyxia due to strangulation. It also revealed numerous lacerations on the top and sides of the head, six skull fractures, a deep laceration in the back of the neck, abrasions and discolorations on the child's back, irritation of the external genitalia, and three puncture wounds in the chest.

Suspicion immediately focused on petitioner, who had been visiting his daughter and son-in-law until the day before, when he had disappeared. Some six months before, petitioner had jumped bail on a charge of molesting a

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