(dissenting).
No federal judge can contemplate with pleasure or even equanimity the obligation, now imposed upon him by constitutional principles defined by our highest court, of examining anew the fairness of confessions received in state capital cases and accepted by the state courts. But there is no question of our duty and responsibility in the premises, and if we are not to make of this a meaningless and illusory gesture we must bring to it all the powers of independent thought and analysis of which we are capable. Since here I find my own conclusions at variance with the views of a number of judges, state and federal, whom I highly respect, the task is indeed disagreeable. Some solace is discoverable, however, in the fact that two unusually restrained judges, Justice (later Chief Justice) O'Sullivan in the state court and Judge Smith in the federal court, have reached conclusions substantially similar to my own. I am led by this circumstance, coupled with the additional facts that the police methods in obtaining the accused’s confessions were harsh and deceitful and the confessions themselves concededly a tissue of lies in their assertion of prior intimacies with the victim, to believe that the State itself here cannot and will not ultimately allow this defendant to be put to death until he has had a fairer trial. We cannot, however, anticipate action by the State’s Chief Executive and must reach our own conclusion on this issue when presented on federal habeas corpus.
The court below and my brethren accept as crucial the question whether the federal trial court may make its own findings or is bound by the state court findings on important details such as, notably, whether relator asked during his interrogation to see his counsel. The question is obviously important, as everyone seems to concede that if the request was made and refused the confessions cannot be received. Hence I shall discuss it below. But I cannot believe it is final in the sense that rejection of Judge Smith’s finding of such a refusal will necessarily authenticate the confessions. For it seems to me that on the admitted and incontrovertible facts these confessions cannot be considered “voluntary” in any real meaning of the word — indeed, that however they may be characterized, that adjective is singularly inappropriate. I suggest that the confessions would necessarily be inadmissible under English and under federal law. The lack of any proper admonitory caution by the police would be sufficient to vitiate them under the former, see Mr. Justice Devlin, The Criminal Prosecution in England 31-41, 137, 138 (1958); and that and other factors, including the lack of prompt arraignment with its resultant safeguards, would compel a like result under federal law. See discussion in United States v. Cleary, 2 Cir., 265 F.2d 459, 462, 463. Hence our real issue is whether a less rigorous standard is to be accepted as state due process of law. Spano v. People of State of New York, 360 U.S. 315, and cases cited at page 321, 79 S.Ct. 1202, at page 1206, 3 L.Ed.2d 1265.
Consider the facts, i. e., the “external” acts or events which are common ground here. I think the most complete, as well as judicious and succinct, statement (showing the admitted as well as disputed facts) is that of Judge Smith in his first opinion, D.C.Conn., 154 F.Supp. 663, 664-665, and I incorporate it here by reference. These facts are shortly summarized in his opinion on remand: *376“Yet, there was the illegal removal from the jail to the office for interrogation, the illegal holding incommunicado, denial of access to his lawyer, questioning by different officers for some eight hours intermittently in relays, the faked phone calls about his wife and children, finally succeeding by inducing Rogers to abandon his denials and make the confession, repeated the next day before the coroner.” D.C.Conn., 178 F.Supp. 69, 73. Note that whether or not relator made the request to see his counsel, it is clear that the police took no steps to remind him of his right to counsel or put him in touch with his lawyer, although they knew he had a lawyer and who the lawyer was. It is also admitted that the next day when relator was before the coroner his lawyer was specifically refused access to him. The pattern is clear, too, of a steady grilling while he was handcuffed to a chair; and when he did not break down, Chief Eagan was called in, who employed the ruse of pretending to send for his crippled wife, with the final compulsory admonition that he would be “less than half a man” if he forced them to take his wife and children into custody.1 Surely by then he had to realize that he had only a dim future unless he confessed.
My brothers attach such importance to the detailed and numbered findings of the state trial court that they reproduce this material in their appendix. Now the basic facts there recited, without the embellishments added, do show the far from voluntary character of the confessions. But in thus lending emphasis to these elaborations upon the underlying facts, I think my brothers have overlooked the unique character of findings of fact in Connecticut appellate practice; for there they serve only as steps in appeal, and not as aids to the adjudication itself. So on all appeals, civil and criminal, and in jury as well as court cases, findings are made after the judgment, but only on request of the appellant and with both sides submitting drafts thereof. Conn. Prac.Bk.1951, §§ 385-400, 406, 410, and Forms 558-563; Maltbie, Appellate Procedure in the Supreme Court of Errors of Connecticut 129 (2d Ed.1957). In practice the judge tends quite naturally to accept the version presented by the party for whom he has decided. So here the findings were filed five months after the decision and trial and were those presented by the State. Hence they include what are quite obviously argumentative conclusions or deductions which are not facts in any true sense, but do properly represent the State’s claims as to the ultimate judgment to be rendered. An example is No. 103: “The pretense of placing a telephone call for Mrs. Rogers had no tendency to produce a confession that was not in accord with the truth.” Certainly no judge can know this as a fact; he can only deduce it as a conclusion and one (I submit) with no obvious support in the record.
Particularly to be noted in this connection are the mutually inconsistent or alternative claims of Nos. 105 and 106; the first asserts that the delivery of Rogers to the State’s Attorney’s Office and his presence there on January 30 were not unlawful, while the second states that if there were illegality in that regard the accused was not aware of it, and it had no effect upon his confession. My brothers make much of this for reasons which are not clear to me. We are called upon to decide whether the admitted compulsion placed upon the accused transcended the bounds of due process. It would seem that the legality of his immediate detention would be a factor of some importance in mak*377ing this test, while his knowledge or lack thereof of this one detail of illegality would be unimportant in the overall picture of compulsion. United States ex rel. Wade v. Jackson, 2 Cir., 256 F.2d 7, 13, certiorari denied Jackson v. United States ex rel. Wade, 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158; Turner v. Commonwealth of Pennsylvania, 338 U. S. 62, 64, 66, 67, 69 S.Ct. 1352, 93 L.Ed. 1810.
And now I turn to the issue raised by Judge Smith’s original finding (reiterated on remand if he was free to make it) that Rogers at his original interrogation asked to see his attorney and was refused this privilege. That finding had solid support of record in Rogers’ very explicit testimony and in the natural probabilities. If he had the actual experience and knowledge of criminal prosecutions stressed by my brothers, it seems simply incredible that he did not call for his already retained counsel as soon as he found himself suddenly being charged with murder and grilled on the assumption that he was guilty. Only the most abject fear could have restrained him. At the state trial only Captain Eagan testified in denial of any request, and his testimony could not cover the crucial time of Rogers’ earliest interrogation.2 It is true that on the federal trial other police officers testified, some two and one-half years after the questioning, that their recollection was that he had not made such a request. As Judge Smith observed on remand: “It is quite natural for their recollection after so long a period to coincide with the version they must subconsciously prefer.” D.C.Conn. 178 F.Supp. 73. Thus Judge Smith’s original finding, which he shows he would have reiterated had he felt free to do so, was and is quite soundly based and cannot properly be discounted on this appeal.
In their opinion my brothers hold that Judge Smith on remand, being more fully informed, was persuaded that he had been in error as to this fact and the state judge had been correct.3 This hardly does justice to the qualms as to his power which Judge Smith showed and his own clearly disclosed reactions to the impact of the evidence before him. Perhaps the best evidence here is Judge Smith’s own recital in his later opinion, D.C.Conn., 178 F.Supp. 71, and I refer to it as support for my conclusion. For he reiterates that “Whether we call it a vital flaw or unusual circumstance, or a substantial ground for exercise of judicial discretion in granting a hearing, something must appear upon examination of the state court record to require a trial de novo of the fact issues. * * * Unless, on consideration of the full record such grounds are found, this court must accept the findings of historical fact in reaching its determination on the constitutional issues. This court is *378bound by the findings of the state trial court that' no request for counsel was made, and that the confessions were voluntary, unless some vital flaw or unusual circumstance exists or some other basis appears for consideration of testimony outside the record.” And I have quoted above the conclusions of fact he would have made but for “the limitations now imposed.”
Though my brothers rather make light of it, it is clear that the Supreme Court’s actual denigration of our previous decision, while failing to reverse it outright, Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361, did create some problems of interpretation, as commentators were quick to discover. 58 Col.L.Rev. 895; 72 Harv.L.Rev, 77, 93; 68 Yale L.J. 98. Naturally Judge Smith faced somewhat of a dilemma in having two appellate masters to serve, while he did have to act in the light of the fact that his earlier decision stood reversed. I am quite clear, however, that he was too modest and that under the Supreme Court ruling he was both entitled and bound to act normally as a judge and thus to credit his own natural and sincere judicial conclusions.4
Indeed, my brothers do not in terms disavow this interpretation, but their ambivalent attitude toward this issue now so crucial in American criminal procedure comes to that result in substance. They imply that the federal trial judge has a considerable reservoir of power (here untapped); but eventually they accept and approve the limitations on his power which are here shown to be completely stultifying. If a “vital flaw” or “unusual circumstance” is (a) necessary to release a federal judge into action and (b) is not to be found where the state trial did not produce all the witnesses covering the entire crucial time period, but did show the elements of coercion noted above, such as the handcuffing to a chair, it would seem unlikely that the necessary elements will ever be found. Hence the federal constitutional review of coerced confessions as violative of due process will become quite, if not wholly, illusory.
For in all these cases coming to the federal courts there has been some finding by the state trier of facts (whether court or jury) that the confessions are voluntary. This is the issue upon which federal judges must pass in testing whether or not constitutional principles of due process of law have been observed. How can they do anything but rubber-stamp the state holding if they must accept the facts as found during the heat of the contested trial which in its entirety is now supposedly under sober and dispassionate review? I suggest that this case, like others, demonstrates that we cannot fairly appraise the totality of acts and events relied on to show compulsion if we are to regard some of them, very likely the most crucial, as untouchable premises in our examination. Such unrealistic compartmentalizing of the important facts has not been attempted before either by us or by the Supreme Court. The contrary practice where the -tribunal has not hesitated to make its own revaluation of the basic facts is illustrated by such cases as Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716, 98 L.Ed. 948; Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; and Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, and by a considerable body of our own precedents. See, e. g., United States ex rel. Corbo v. La Vallee, 2 Cir., 270 F.2d 513; United States ex rel. Sileo v. Martin, 2 Cir., 269 F.2d 586; United States ex rel. Wade v. Jackson, supra, 2 Cir., 256 F.2d 7, 13, 14, certiorari denied Jackson v. United States ex rel. Wade, 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158; United States ex rel. Savini v. Jackson, 2 Cir., 250 F.2d 349; United States ex rel. Alvarez v. Murphy, 2 Cir., *379246 F.2d 871, 265 F.2d 497; United States ex rel. Caminito v. Murphy, 2 Cir., 222 F.2d 698, certiorari denied Murphy v. United States ex rel. Caminito, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788; and see also Cranor v. Gonzales, 9 Cir., 226 F.2d 83, certiorari denied 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed. 816.5 It is also demonstrated by the many cases on our weekly motion calendars where we remand denials of habeas corpus for full hearing and the taking of testimony below. It seems to me rather late in the day to attempt to reverse this settled practice and principle of law.
Of course we cannot be insensitive to the problems faced by the police in a case of this character. Here a most abhorrent crime had remained unsolved for over two months; and when the police obtained a most promising lead pointing to Rogers as the criminal, the temptation to “sew up the case” was naturally strong. But our ideals of criminal prosecution, based on the English common law and embedded in our constitutions, do not permit the solution of criminal cases by forced confessions from persons seized as suspects. The rule of law which we herald as model for free peoples around the world does not permit us to follow such easy course; nor does Connecticut itself wish to do so.6 That is why I do not believe this case is yet at an end. At any rate, I think Judge Smith’s original decision, D.C.Conn., 154 F.Supp. 663, 665, setting aside the conviction, but giving the State an opportunity to arrange for a retrial if it so chooses, is the necessary and correct course for us.
. My brothers say that there was no proof at trial that she was crippled, and then assume that Captain Eagan did not know of it to accept the conclusion that the ruse did not render involuntary the confession then obtained. But there are several answers to this. There was evidence at the trial below as to her condition, and Eagan’s actions do not make sense unless he knew what it was. And since the question turns upon relator’s, and not Eagan’s, state of mind, I cannot see how the issue of specific knowledge by Eagan can have the critical importance it has assumed.
. Thus on such a record Judge Smith’s finding is amply justified, and the restrictions we have placed in our two appeals on liis power to find facts far exceed those recognized by an appellate court passing the facts in review. It is to be noted that on this record the Supreme Court of Errors of Connecticut assumed on appeal that Rogers asked for counsel and Justice O’Sullivan, dissenting, stated flatly: “He immediately asked to see his lawyer.” State v. Rogers, 143 Conn. 167, 120 A.2d 409, 412, 415.
. The reiterated statement that Judge Smith’s first opinion was rendered without the benefit of the full state record, while literally true, gives an emphasis to that factor which is rather misleading. Actually it now appears that the judge, who had accepted all of the state transcript offered by either party, had before him in the original trial all of the testimony relating to the voluntariness of the confessions given in the state trial court in the absence of the jury, except that of two witnesses in no way bearing upon the issue of relator’s request for his counsel: the testimony of the deputy jailer as to the circumstances under which relator was removed from the jail to the State’s Attorney’s Office for questioning and the testimony of the sheriff as to keeping relator incommunicado from his counsel the next day on the coroner’s orders. The only matters added later bearing at all upon disputed issues are the belated findings reproduced in my brothers’ appendix which I have criticized in the text above.
. In my view the Supreme Court took the course it did to emphasize its view that the trial court should always take steps to have the state transcript available, while at the same time it admon--ished the judge to act judicially. This appears to be the significance of its reference : “See Brown v. Allen, 344 U.S. 443, 506, et seq. [73 S.Ct. 397, 97 L.Ed. 469]."
. United States ex rel. Blank v. Jackson, 2 Cir., 263 F.2d 185, is not opposed to, but in fact appropriately complements, this line of cases. It bolds that where on coram nobis proceedings the state subsequent to the original trial has conducted a full hearing with testimony and has then made a controlling finding of a crucial fact, the convicted accused cannot require the federal court to retry this issue.
. The 1959 session of the Connecticut legislature passed a bill making statements and confessions of an accused person inadmissible as evidence unless he had been properly arraigned and informed of his right to counsel. While Governor Ribicoff vetoed the particular bill because he thought it lacked proper safeguards such as the Judicial Council was now studying, he supported the general idea of the legislation, saying that its purpose “was completely in accord with our concepts of basic justice and fairness, and I concur with it.” New Haven Register, July 2, 1959, p. 1, col. 6.