(dissenting).
On June 13, 1958, at approximately midnight, Carmine Dellorto, aged 66, was robbed and killed on a street comer in Newark, New Jersey. Ten days later, on June 23, 1958, Clarence Smith and Lee Stanford, the relators in. the cases at bar, were arrested by the Newark police and brought directly to the “Homicide Squad” room at police headquarters in Newark, arriving there at about four o’clock in the afternoon. Both Smith and Stanford were minors, 17 years of age and Negroes. No warrant had been issued for their arrests. They were separated upon their arrival at police headquarters. Stanford was taken to a section of the homicide room and questioned. Smith was placed in a small room located a few feet away from the homicide room for interrogation. Five police officers were present upon the relators’ arrival. Later, two detectives from the Prosecutor’s Office arrived and joined in the questioning. Details of the interrogation of the relators are set out hereinafter. They signed typed statements, in substance confessions of the robbery and killing of Dellorto. At about 2 A.M. Smith and Stanford were taken from police headquarters to the Essex County Youth House, in Newark.
Within twelve hours after their arrival at the Youth House on the morning of June 24, 1958, both Smith and Stanford reported to the case worker supervisor, Siegler, that they had been beaten by the police in order to procure their confessions. Medical examinations given to the relators on the day they arrived at the Youth House failed, however, to reveal any noticeable injuries. Nonetheless, during the first few days of their stay at Youth House, both relators were treated at the infirmary: Smith for a sore knee and a cut fingernail, and Stanford for general bodily soreness and a cut lip.1 While detained at Youth House, both Smith and Stanford were permitted to have visitors, and in fact both were *152visited by members of their families and by an attorney. On June 27, 1958, four days after their arrests, complaints were filed against both relators in Juvenile Court. They were charged with murder in the first degree.
On July 3, 1958, ten days after the arrests, a hearing was held before a Judge of the Essex County Juvenile Court. Both minors were represented by counsel. The complaints simply were read out in open court and the Judge ordered the case transferred to the Prosecutor’s Office in order that the relators could be treated as if adult offenders. Smith and Stanford were then taken to the Newark Street jail where they remained until trial.
On September 16, 1958, the grand jury of Essex County returned indictments charging Smith and Stanford with murder in the first degree. The relators moved to dismiss the indictments on the grounds that the juvenile detention rules and statutes of New Jersey had been violated in that they had been detained at police headquarters instead of being brought directly to the Youth House, that they had not been taken promptly before a magistrate or a juvenile court officer, that no preliminary hearing had been afforded them on the issue of probable cause, and that their confessions had been obtained illegally. The motion was denied. 52 N.J.Super. 556, 146 A.2d 224 (1958).
Smith and Stanford were brought to trial on January 21,1959, in Essex County Court before Judge Joseph G. Lyons and a jury. Witnesses called by the prosecution were able to testify only that two Negro boys had been in the vicinity of the killing, that “two persons” were seen “leaning over another person” who was “on the ground” and that “two boys” had been observed fleeing the scene of the crime. One witness stated that one of the Negro youths was tall and thin, the other short and stocky. As general descriptions the words employed might cover Smith and Stanford. None of the witnesses, however, was able to identify the relators as the “two boys” referred to as fleeing the scene of the crime. Both relators testified that they had been in their homes at the time the killing took place. It is apparent that much of the weight of the State’s case lay in the confessions and that without them the jury might well have decided that there was insufficient evidence to convict the re-lators.
Prior to the admission into evidence of the confessions, the trial court conducted an inquiry into the circumstances under which they were given. Smith and Stanford testified respecting these circumstances as did the police officers involved, several persons from the Youth House staff, and other persons. There were substantial differences in the evidence adduced. Both Smith and Stanford asserted that they had been beaten by the police during their interrogation and had been directed by police officers to sign papers which, said the relators, had been represented to them as necessary for their admissions to Youth House. These signed statements, according to the relators, were in fact the confessions. The police officers, without exception, testified that no force or threats of force had been used in order to obtain the confessions and that the relators voluntarily made oral admissions early in the evening of June 23 and had signed the susbequently prepared typed statements with full knowledge of their contents and their effect. The trial court concluded that the confessions were voluntary and admissible and the jury subsequently returned verdicts of guilty of murder in the first degree as to both relators with recommendations for life sentences. Judgments in accordance with the verdicts were rendered as to both relators and were affirmed on appeal to the Supreme Court of New Jersey.2 *153Certiorari was denied by the United States Supreme Court.3 The petition for writ of habeas corpus was subsequently presented to the United States District Court for the District of New Jersey. A hearing on this petition was held on March 20, 1961. Oral argument was heard but no testimony was offered or taken. Judgment was rendered and the petition for habeas corpus was denied.4 The appeals at bar followed.5
The issue which was before the court below and is now before us is whether the confessions of Smith and Stanford, admitted in evidence at their trial, were obtained in such a manner as to violate the guarantee of due process of law of the Fourteenth Amendment. It is axiomatic that “[t]he Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.” Ashcraft v. Tennessee, 322 U.S. 143, 155, 64 S.Ct. 921, 927, 88 L.Ed. 1192 (1944). See Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). A coerced confession is barred whether obtained by physical or mental pressure. Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954). In Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948 (1961), it was said: “[I]t is hardly necessary to state that the question whether a confession was extracted by coercion does not depend simply upon whether the police resorted to the crude tactic of deliberate physical abuse.”
Some of the testimony concerning the details of the interrogations of Smith and Stanford “follows the usual pattern and is in hopeless conflict.” Ashcraft v. Tennessee, 322 U.S. 143, 150, 64 S.Ct. 921, 924, 88 L.Ed. 1192 (1944). The claims of brutality and mistreatment on the one hand and the avowed denials by the police on the other present issues of credibility that cannot be resolved here. Accordingly the conflicting testimony will be set to one side and only the undisputed evidence will be considered. See Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940).
The necessity for maintaining a proper balance, necessarily a delicate one, between federal and state authority must be kept in mind where, as here, a federal court sits in review of a matter decided by the highest court of a state. Nonetheless, “where the claim is that the prisoner’s statement has been procured by [coercion], we are bound to make an independent examination of the record to determine the validity of the claim. The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both.” Lisenba v. People of State of California, 314 U.S. 219, 237-238, 62 S.Ct. 280, 290-291, 86 L.Ed. 166 (1941). See Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963): “[W]e cannot avoid our responsibilities by permitting ourselves to be ‘completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding.’ Stein v. People of State of New York, 346 U.S. 156, 181 [73 S.Ct. 1077, 97 L.Ed. 1522].”6
The following testimony is undisputed. Smith and Stanford were held in the police station from approximately 4:00 P.M. until 2:00 A.M. the following morn*154ing — a period of nearly ten hours. The two relators, Negro minors, 17 years of age, were questioned separately, one apart from the other in separate rooms by five, then later seven, officers in relays of three or four. No attempt was made to inform the relators of their right to remain silent or of their right to counsel, and they were held incommunicado throughout the entire time they remained at police headquarters. The statements of confession were typed by the officers, in contradistinction to a stenographic transcript of oral admission, and were signed by Smith and Stanford at 1:27 A.M. and 1:24 A.M., respectively. One may question, in view of the very late or very early hour at which the confessions were signed and in the light of their comparative brevity, whether the oral statements upon which the written confessions were allegedly based, were obtained in the manner and at the times testified to by the State’s witnesses.7
In the light of the “complex of circumstances,” Harris v. South Carolina, 338 U.S. 68, 71, 69 S.Ct. 1354, 1356, 93 L.Ed. 1815 (1949), from the undisputed testimony, “[t]he question [to be decided] in each case is whether a defendant’s will was overborne at the time he confessed.” Reck v. Pate, supra, 367 U.S. p. 440, 81 S.Ct. p. 1546, 6 L.Ed.2d 948. The test of whether a confession was coerced in violation of the Fourteenth Amendment is whether or not it was a voluntary one.7 8 If voluntary the confession may be employed as evidence against the defendant; otherwise, it may not be so used,
A finding of lack of due process of law may or may not be based on any single element standing alone in a “complex of circumstances.” But a combination of several elements, each of which if standing alone might not constitute a violation of the guarantees of the Fourteenth Amendment, may do so in the aggregate if the totality presents a situation inconsistent with an exercise of free will by the individual making the confession.
Interrogation of a suspect held incommunicado by the police-which results in a confession does not necessarily in and of itself constitute a denial of due process. Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958). The Constitution does not always require that the interests of the police in quickly and efficiently solving crimes yield to the needs of a suspect to have consultation made available to him during a period of questioning. Cicenia v. Lagay, 357 U.S. 504, 509, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). But when closed and secret interrogation of a suspect is prolonged beyond what may be deemed to be a reasonable period of time, the dividing line between police behavior permitted by the Constitution and that prohibited by it is closely pressed if not passed. In Culombe v. Connecticut, 367 U.S. 568, 573-576, 81 S.Ct. 1860, 1862-1865, 6 L.Ed.2d 1037 (1961), Mr. Justice Frankfurter stated: “This practice has its manifest evils and dangers. Persons subjected to it are torn from the reliances of their daily existence and held at the mercy of those whose job it is — if such persons *155have committed crimes, as it is supposed they have — to prosecute them. They are ■deprived of freedom without a proper judicial tribunal having found them ■guilty, without a proper judicial tribunal having found even that there is probable -cause to believe that they may be guilty. What actually happens to them behind the closed door of the interrogation room is difficult if not impossible to ascertain. Certainly, if through excess of zeal or aggressive impatience or flaring up of temper in the face of obstinate silence a prisoner is abused, he is faced with the task of overcoming, by his lone testimony, solemn official denials. The prisoner knows this — knows that no friendly or disinterested witness is present — and the knowledge may itself induce fear. But, in any case, the risk is great that the police will accomplish behind their closed door precisely what the demands of our legal order forbid: make a suspect the unwilling collaborator in establishing his guilt. This they may accomplish not only with ropes and a rubber hose, not only by relay questioning persistently, insistently subjugating a tired mind, but by subtler devices.
“In the police station a prisoner is ■surrounded by known hostile forces. He is disoriented from the world he knows and in which he finds support. He is subject to coercing impingements, * * of every variety. In such an atmosphere, questioning that is long continued — even if it is only repeated at intervals, never protracted to the point of physical exhaustion — inevitably suggests that the questioner has a rig-ht to, and expects, an answer. This is so, certainly, when the prisoner has never been told that he need not answer and when, because his commitment to custody seems to be at the will of his questioners, he has every reason to believe that he will be held and interrogated until he speaks.”
A nine and one-half hour to ten hour period of persistent interrogation during which a suspect is held incommunicado might or might not prove to be overbearing where an adult is involved. But in the appeal at bar this court is dealing with the emotional stability and maturity, or lack thereof, of 17 year old minors. The tension and fears pressing down on the mind of a suspect as the result of prolonged and secret police interrogation must be deemed to be multiplied when the prisoner is an adolescent. In Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1212-1213, 8 L.Ed.2d 325 (1962), Mr. Justice Douglas said: “[W]e deal with a person [a prisoner] who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protect his own interests or how to get the benefits of his constitutional rights. * * He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights — from someone concerned with securing him those rights — and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself.”
Judgment of the issue at bar involves more than a mere matching of cases. See Reck v. Pate, supra. But it is appropriate to compare the circumstances of the case now before us and those of Haley v. Ohio, supra.
In Haley, the Supreme Court, considering only the undisputed testimony, had before it the following facts. The defendant, a 15 year old Negro youth, was questioned by the police for a period of about five hours, from midnight to five o’clock in the morning. Five or six officers conducted the interrogation in relays of one or two each. During this time he was held incommunicado. At about five in the morning the youth confessed. The confession was typed by the police and signed by the prisoner. At no time prior to the signing of the confession had he been advised of his right to remain silent or of his right to counsel. The typed statement, however, contained a clause to the effect that Haley understood his right *156to remain silent and that the confession had been given of his own free will.
The Supreme Court held that the confession had been coerced, rejecting the “voluntary” clause in the typed statement. Mr. Justice Douglas, speaking for the majority, id. supra, 332 U.S. pp. 599-601, 68 S.Ct. pp. 303-305, 92 L.Ed. 224, stated: “What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child — an easy victim of the law— is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a. m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. * * *
“The age of the petitioner, the hours when he was grilled, the duration of his quizzing, the fact that he had no friend or counsel to advise him, the callous attitude of the police towards his rights combine to convince us that this was a confession wrung from a child by means which the law should not sanction.”
In Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 1254, 92 L.Ed. 1690 (1948), Mr. Justice Jackson stated that the Court in the Haley case reversed the state court criminal conviction “because it was believed to have been based on a confession wrung from an uncounseled 15-year-old boy held incommunicado during questioning by relays of police for several hours late at night.” In the appeals at bar, as has been said, the confessions were obtained from two seventeen year old boys held incommunicado during interrogation by relays of police officers for a period of approximately nine and one-half hours to ten hours, lasting until two o’clock in the morning. The difference between Haley and the defendants in the instant case cannot properly be called “abysmal” as the majority has characterized it.
The conclusion is inescapable that the confession of Smith and Stanford so obtained violated “those fundamental notions of fairness and justice in the determination of guilt or innocence which lie embedded in the feelings of the American people and are enshrined in the Due Process Clause of the Fourteenth Amendment.” Haley v. Ohio, supra, 332 U.S. at p. 607, 68 S.Ct. at p. 307, 92 L.Ed. 224. See the concurring opinion of Mr. Justice Frankfurter.9
The Juvenile Court records of Smith and Stanford cannot be considered as weighing too heavily against all the other potent factors considered here.10 The processes of interrogation employed by the police in the light of all the circumstances were of such a nature that records of the relators as juvenile delinquents for misdemeanors or crimes un*157specified in the record in this case cannot be deemed to compensate for Smith’s and Stanford’s lack of years and worldly knowledge.11
In Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, (1963), the Supreme Court had occasion to consider two factors present or allegedly present in the case at bar; that the petitioner had previous experience with police investigation, and that he had made oral admissions of guilt at some time prior to the taking of the written statement he asserted was forced from him. The Court stated: “Here, as in [Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963)], the petitioner was alone in the hands of the police, with no one to advise or aid him, and he had ‘no reason not to believe that the police had ample power to carry out their threats,’ 372 U.S., at 534 [83 S.Ct. at 920, 9 L.Ed.2d 922] to continue, for a much longer period if need be, the incommunicado detention *'* *. Neither the petitioner’s prior contacts with the authorities nor the fact that he previously had made incriminating oral admissions negative the existence and effectiveness of the coercive tactics * * The Court stated further, 373 U.S. at 514, 83 S.Ct. at 1343, 10 L.Ed.2d 513, “We cannot blind ourselves to what experience unmistakably teaches: that even apart from the express threat, the basic techniques present here — the secret and incommunicado detention and interrogation — are devices adapted and used to extort confessions from suspects.”
The majority opinion states that “reversal of these convictions would be a signal to the vicious elements rampant in our cities that the chances are excellent for eventually slipping out from under responsibility lawfully established for crimes which stagger belief.” This declamation begs the question, for the phrase “lawfully established” means guilt proven beyond a reasonable doubt by competent evidence, or if by confession, by confession given freely and voluntarily, with full understanding of the consequences. The brutality of the crime or the fact that the defendant may be part of a “vicious” element of society is and must be deemed to be totally irrelevant to the determination of an issue such as that at bar. Strict adherence to the procedural safeguards established as a result of years of experience in judicial administration of criminal justice is paramount in importance to individual convictions. “ * * * [I]t is the deprivation of the protected rights themselves which is fundamental and the most regrettable, not only because of the effect on the individual defendant, but because of the effect on our system of law and justice. Whether there is involved the brutal ‘third degree,’ or the more subtle, but no less offensive, methods * * *, official misconduct cannot but breed disrespect for law, as well as those charged with its enforcement”, Haynes v. Washington, supra, 373 U.S. at 519, 83 S.Ct. at 1346,10 L.Ed.2d 513.
The doctrine of former jeopardy obtains in New Jersey only where there has been an acquittal. State v. Williams, 30 N.J. 105, 152 A.2d 9 (1959); State v. Edelman, 26 N.J.Super. 588, 98 A.2d 618 (1953). Smith and Stanford could therefore be retried by the State of New Jersey were the writs granted in the case at bar, and their guilt or innocence determined properly and fairly. Thus the majority’s concern that the defendants might otherwise have a chance of “slipping out from under responsibility lawfully established”, assuming arguendo *158that such concern is proper in a case of this nature, is unfounded.
Accordingly, I must respectfully dissent from the decision reached by the majority for I am of the opinion that the writs should be granted.
GANEY, Circuit Judge, joins in this dissent.
. The uncontested infirmary records of the Youth House showed that both Smith and Stanford had been treated for minor cuts and bruises. This fact might or might not tend to support their allegation of physical brutality on the part of the police but, as appears from the body of this opinion, expressly we do not consider this line of evidence. It is to be noted, however, that coercion cannot be measured by cuts or bruises; “[T]he blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960).
. 32 N.J. 501, 161 A.2d 520 (1960). In particular as to tlio admission of the confessions of Stanford and Smith, see 32 N.J. 501, at p. 539, 161 A.2d 546, at p. 540. Cf. State v. Fauntleroy, 36 N.J. 379, 395-398, 177 A.2d 762, 770-772 (1962).
. 364 U.S. 936, 81 S..Ct. 383, 5 L.Ed.2d 367 (1961).
. 194 F.Supp. 691 (D.N.J.1981).
. Smith and Stanford have exhausted their state remedies. See Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950).
. See also Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944).
. The record in this case is a confused one and many critical times are in doubt, but the times at which the confessions read into evidence wore signed are not in doubt. They are written on the confessions themselves and cannot be disputed.
. “The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.”, Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) (by Frankfurter, J.).
“A confession * * * must be the expression of free choice. A statement to be voluntary of course need not be volunteered. But if it is the product of sustained pressure by the police it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a phj'sical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore the reverse of voluntary.” Watts v. Indiana, 338 U.S. 49, 53, 69 S. Ct. 1347, 1350, 93 L.Ed. 1801 (1949).
. Evidence of guilt apart from the confessions is actually an irrelevant factor, for if the confessions were obtained in such a manner as to violate the Fourteenth Amendment the conviction cannot stand even if “the evidence apart from the confession might have been sufficient to sustain the jury’s verdict.” Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). See Payne v. Arkansas, 356 U. S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949).
. Tlie Judge of the Juvenile Court in an affidavit in the record states that both Smith and Stanford were habitual offenders. An affidavit, executed by Stanford, also part of the record, alleges that he was before the Juvenile Court only once, when he was fifteen years old.
. In Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), the issue of whether or not the relator had been in trouble with the law is not mentioned though this fact is brought out in Mr. Justice Clark’s dissenting opinion in Gallegos v. Colorado, 370 U.S. 49, 63, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), as applicable to the fifteen year old relator in Haley v. Ohio. The majority opinion, however, in Gallegos v. Colorado makes no mention of a factor of previous convictions for crimes or misdemeanors of the relator if any existed.