dissenting in part.
As pointed out in the opinion of the Court, Malinski’s oral confession of October 23 was involuntary in character and hence its admission invalidated his conviction. But it is equally clear to me that the pattern of mental fear continued until his arraignment on October 27, thereby voiding as well his confessions by word and deed on October 25 and 26 and the written confession made during the early hours of October 27. It is inconceivable, moreover, that the admission of these tainted confessions was without influence in the conviction of the co-defendant Rudish. Accordingly, I agree with Mr. Justice Rutledge that the judgment should be reversed also as to Rudish.
The subhuman psychology applied by the police to Malinski began soon after his arrest on October 23. He was stripped, humiliated and threatened with a shellacking. He was questioned throughout the day and was denied the benefit of counsel, relatives or friends. This succeeded in breaking Malinski’s will, which the prosecu*433tor boasted “was not hard to break,” and the police were able to extract an oral confession from him. But this was not enough; the police wanted a written confession. So they continued to hold the “broken” Malinski until such a confession was forthcoming on October 27. During this period he was illegally held without being arraigned, was questioned at frequent intervals and saw no one save his questioners and Spielfogel. The only concession made to him was the privilege of wearing all his clothes.
There is an absence of any evidence that the “broken” Malinski regained his free independent will during the illegal detention or that the effects of the humiliation and threatened shellacking, which caused him to “break,” wore off prior to the written confession on October 27. There was not even a twelve-hour interval between the interrogations or a change of interrogators which this Court in Lyons v. Oklahoma, 322 U. S. 596, thought sufficient to break the pattern of coercion. The reign of mental fear and terror here was continuous for four days and Malin-ski’s will was in a shattered state on the occasion of making each confession. Such confessions cannot be dignified with the adjective “voluntary,” however non-coercive may have been the immediate surrounding circumstances.
Once an atmosphere of coercion or fear is created, subsequent confessions should automatically be invalidated unless there is proof beyond all reasonable doubt that such an atmosphere has been dispelled and that the accused has completely regained his free individual will. Otherwise we might as well discard all pretense to a civilized and humane system of criminal justice and adopt without further ado the terroristic police practices of certain past and present tyrannies in other parts of the world. Since all the confessions here were made in a continuing background of threatened coercion, it follows that they all were void.
One other matter is worthy of comment. Malinski, as well as his co-defendant Rudish, is an American of Jewish *434ancestry. The prosecutor made certain remarks in his statement to the jury that may have been intended and were indicative of a desire to appeal to racial and religious bigotry. He spoke of Malinsky as a “jerk from the East Side” and referred to his residence in “the lower east side of Manhattan, where your life is not worth a pretzel.” This is a characterization of a territory containing a large proportion of Americans of like origin.
Those clothed with authority in court rooms of this nation have the duty to conduct and supervise proceedings so that an accused person may be adjudged solely according to the dictates of justice and reason. This duty is an especially high one in capital eases. Instead of an attitude of indifference and carelessness in such matters, judges and officers of the court should take the initiative to create an atmosphere free from undue passion and emotionalism. This necessarily requires the exclusion of attacks or appeals made by counsel tending to reflect upon the race, creed or color of the defendant. Here the defendants’ very lives were at stake and it was of the utmost importance that the trial be conducted in surroundings free from poisonous and dangerous irrelevancies that might inflame the jury to the detriment of the defendants. Brazen appeals relating to their race or faith had no relevance whatever to the grave issue facing the jury and could only be designed to influence the jury unfairly; and subtle and indirect attacks were even more dangerous and effective. Statements of this character are the direct antithesis of every principle of American justice and fair play. They alone are enough to cast grave doubts upon the validity of the entire proceedings.
Me. Chief Justice Stone. Mr. Justice Roberts, Mr. Justice Reed, Mr. Justice Jackson and I think the judgment should be affirmed as to both petitioners.*435Malinski, charged with murder, made several confessions of guilt, which were introduced in evidence at his trial. Two, made to the police, are alleged to have been coerced, the first on October 23rd and the other four days later on October 27th. During that time he admitted to the police other isolated facts which tended to fasten guilt upon him. Three friends of Malinski also testified that on several occasions shortly after the commission of the crime and long before his arrest, he voluntarily admitted to them and to his sister that he had committed the crime.
The testimony as to whether the first confession to the police was coerced was sharply conflicting. There was no evidence that petitioner was subjected to any coercion at or about the time of the second confession to the police, save as the jury could find that the coercion, if any, attending the first confession continued to operate so as to induce the second.
The trial court, after reviewing fully the evidence of petitioner’s detention and the coercion by the police which is said to have attended his first confession, and of the delay in his arraignment, instructed the jury:
“This testimony was adduced solely on the question as to whether or not the alleged confession later made was the result of the coercion, either direct or implied, which is prohibited by the statute, and which invalidates a confession if made. If you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinski, including the one made in the early hours of October 27 . . .”
The trial court also correctly instructed the jury that petitioner’s contention was that the confession of October 27 was tainted by the detention and coercion which had preceded it, and that “you must find beyond a reasonable doubt that this confession was a voluntary one before you would have the right to consider it.” With respect to *436this later confession, the jury was further instructed:
“If you find beyond a reasonable doubt that the confession is a voluntary one, you will then determine whether or not the statements inculpating the defendant, therein contained, are true. If you shall have resolved both of these questions in favor of the prosecution, then and only then will you consider the confession in determining the guilt or innocence of the defendant . . .”
There were no exceptions to these instructions and no requests for a further charge on this subject.
After a painstaking review of the facts, the New York Court of Appeals unanimously sustained the jury’s verdict that the confessions were not coerced.1 That court, on appeal from a judgment of death, has power, which we are not free to exercise in a case coming from a state court, to make new findings of fact, Art. 6, § 7 of the New York Constitution of 1939; 2 People v. McGrath, 202 N. Y. 445, 450; 96 N. E. 92, and also to give judgment without regard to technical errors, defects or exceptions not affecting substantial rights. N. Y. Code Crim. Proc., § 542.
. It seems to be recognized by this Court that the question whether the second confession was coerced was properly submitted to the jury. But it holds that the first confession was coerced and was submitted to the jury as itself proof of guilt, and that for that reason the verdict must be set aside although the jury found under the instructions of the court, which we have quoted, that the second confession was not coerced.
Even though the first confession were the product of coercion, the trial court, as we have pointed out, instructed *437the jury that the evidence with respect to the first confession was adduced only to show that the second was coerced. And the jury was instructed that it could consider the second confession, only if it found it voluntary, and that it could convict in that case. In view of these instructions, we cannot say that the first confession was submitted to the jury, or that, in the absence of any exception or request to charge more particularly, there was any error of which petitioner can complain. Hence the jury’s verdict must be taken as conclusively establishing that the second confession was voluntary and was not induced by any coercion attending the first. Lyons v. Oklahoma, 322 U. S. 596.
But even if it could be said, as the Court of Appeals seems to have thought, that the jury’s verdict was a determination that the first confession was not coerced, we perceive no ground on which that determination can be disregarded. This Court recognizes that if only the testimony submitted to the jury be considered, the question whether the first confession was coerced was for the jury. The Court sets aside the jury’s verdict solely because of the interpretation it places upon the conflicting testimony in the light of certain remarks, which the opinion of Mr. Justice Douglas quotes, made by the prosecuting attorney in the course of his summation to the jury. But the prosecutor did not testify in the case, and it does not appear that he was present at any of the interviews of petitioner by the police, or had any knowledge of the alleged coercion. At most, his remarks were an ill-advised attempt at justification of the coercion which the defense had alleged. He added no word by way of proof or admission to the evidence already before the jury. The jury, acting within its province, could have concluded, as it evidently did, that the prosecutor’s remarks did not tend to prove anything more than his own ineptitude. The *438Court’s decision thus sets aside the conviction by the process of re-weighing the conflicting testimony as to the alleged coercion, in the light of the arguments addressed to the jury.
It is not the function of this Court, in reviewing, on constitutional grounds, criminal convictions by state courts, to weigh the evidence on which the jury has pronounced its verdict, also in the light of the arguments of counsel, or to sit as a super-jury. We have, in appropriate cases, set aside state convictions as violating due process where we were able to say that the case was improperly submitted to the jury or that the unchallenged evidence plainly showed a violation of the constitutional rights of •the accused. Brown v. Mississippi, 297 U. S. 278; Chambers v. Florida, 309 U. S. 227; Ward v. Texas, 316 U. S. 547. But we have not hitherto overturned the verdict of a state court jury by weighing the conflicting evidence on which it was based.
The rightful independence of the states in the administration of their own criminal laws in their own courts requires that in such cases we scrupulously avoid retrying the facts which have been submitted to the jury, except on a clear showing of error substantially affecting the constitutional rights of the accused. We agree that the controlling principles upon which this Court reviews on constitutional grounds a state court conviction for crime, are as stated in the opinion of Mr. Justice Frankfurter. But the due process clause of the Fourteenth Amendment is concerned with matters of substance. It cannot rightly be made the instrument of reform of the manners of state officials. And however reprehensible or even criminal the acts of state officials may be, in so far as the conduct of the trial is concerned, they do not infringe due process unless they result in the use against the accused of evi*439dence which is coerced or known to the State to be fraudulent or perjured, or unless they otherwise deny to him the substance of a fair trial, which is due process. See Lisenba v. California, 314 U. S. 219, 235-238; Buchalter v. New York, 319 U. S. 427, and authorities cited.
Judged by these standards, we think that there was no denial of due process in submitting petitioner Malinski’s confession to the jury in the manner in which they were in fact submitted, and that there is no constitutional ground for setting aside the jury’s verdict against him. We cannot say on this record that the jury was not rightly permitted to determine whether petitioner’s confessions of guilt to the police were coerced, or that the verdict was without support in the evidence, or that the instruction that the jury could find the defendant guilty if it found that the second confession was not the result of the alleged coercion at the time of the first, was not properly given.
Petitioner Rudish has raised no substantial federal question reviewable here, and his conviction, as well as Malinski’s, should be affirmed.
The chief judge and two others, dissenting, thought that the conviction should be reversed because of the insufficiency of the charge as to the delay in arraignment; they apparently relied on state grounds, and not on the federal constitution.
The amendment to Art. 6, § 7, effective January 1, 1944, retains this power in the Court of Appeals.