was clearly required, continued the incommunicado interrogation for an additional six hours for the purpose of obtaining additional incriminatory statements.
The admissions made to Detective Spahr and DeLisle on the morning of March 6, 1957, were the results of a cumulation of coercive circumstances which made those admissions involuntary under federal constitutional standards. Moreover, the totality of circumstances, beyond the sum of component facts, compels me to find that these admissions were involuntary. The admission of the testimony of Spahr and DeLisle at Smith's trial violated the due process clause of the Fourteenth Amendment.
The Ehrenbeck transcript (Ex. R-26 (Ex. 3-84 in the trial record)) stands on no better footing. The coercive circumstances increased by the time the interrogation reflected therein commenced. Adding to circumstances already alluded to was the presence of a juror and an official court reporter both so identified to Smith. Smith must have been left with the quite correct impression that even the judicial machinery was allied with the Prosecutor in his ongoing interrogation. The calculated steps taken to give an appearance of voluntariness during this interrogation are not convincing. They tend as much to shed light on the essentially coercive atmosphere as to show that Smith was acting voluntarily. The admissions made by Smith on the afternoon of March 6, 1957, at the Prosecutor's office, at the murder scene, and at the trailer, were all the result of coercion, and their admission at the trial violated the due process clause of the Fourteenth Amendment.
Independent of the coercive circumstances surrounding the interrogation reflected in the Ehrenbeck transcript, there was no break in the chain of events between that interrogation and the admissions made to Spahr and DeLisle. This alone is enough to make the later confession inadmissible. Darwin v. Connecticut, 391 U.S. 346, 349, 351, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968); Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716, 98 L. Ed. 948 (1954).
The "acknowledgement" admission made to DeLisle in the Bergen County jail on March 11, 1957, must next be considered. That incident falls squarely within the holding of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). Were I free to do so I would apply Massiah retroactively to this case. That course is ruled out by United States ex rel. Allison v. New Jersey, 418 F.2d 332 (3 Cir. 1969), cert. denied, 400 U.S. 850, 91 S. Ct. 68, 27 L. Ed. 2d 88 (1970), holding Massiah to be non-retroactive, although it could have been decided on the ground that it involved the equivalent of a guilty plea. See McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); cf. Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).
But in this case, in any event, the "acknowledgement" obtained so as to make the Ehrenbeck transcript admissible in evidence was the fruit of the prior coercive questioning, and the prior illegality was not attenuated by intervening events. To the contrary, this was a clear case of an attempt to exploit the illegally obtained transcript. Cf. Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Use of the verbal acknowledgement in order to qualify the Ehrenbeck transcript for admission in evidence as a written confession violated the due process clause of the Fourteenth Amendment.
Finally there is the use made at trial of the admissions made to the psychiatrists. These, too, were so directly related to the admissions elicited on March 6 that they could not properly have been availed of. The fact that they were brought out at the trial on cross-examination of Smith puts them in no better footing. They resulted from the chain of coercive events. Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968). Moreover, as found hereinabove, the examination by the psychiatrists took place pursuant to an understanding of the Bar that amounted to informal compliance with N.J.S. 2A:163-2. The examinations were facilitated by court orders transferring the prisoner from the jail to the Prosecutor's office. They could have been ordered. State v. Whitlow, supra. Use of incriminating statements obtained in such circumstances is impermissible. Cf. Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). The actual use of compelled incriminatory statements was never permitted, even under Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97 (1908) and Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903 (1947). The use made in Smith's trial was far more than mere prosecutorial comment. The admissions to the psychiatrists were used to authenticate the truthfulness and voluntariness of other statements improperly admitted.
The respondent presented the testimony of the same three psychiatrists in this hearing. Each stated his expert opinion that the admissions made by Smith on March 6 were the result of his free will and rational choice. I have taken this testimony into account despite the fact that it was strenuously objected to on most of the usual grounds advanced in opposition to the use of expert testimony. On all the evidence I have reached a conclusion different from that proposed by these experts. Expert opinion evidence is valuable on the ultimate issue to be decided only to the extent that the expert can by reasoned exposition demonstrate to the trier of fact the factual basis for his opinion. The testimony of the psychiatrists, rested upon an examination of Smith held for a different purpose over thirteen years ago, and on inferences to be drawn from written materials only some of which are in evidence. No convincing demonstration of the likely truth of their conclusions was made. Indeed in some instances their testimony acknowledged the presence of coercive factors during Smith's interrogation. Thus, while giving due regard to their testimony I have rejected their proposed conclusions on the ultimate issues decided in this proceeding.
The writ of habeas corpus will issue unless within sixty days of the date hereof the State of New Jersey shall grant to the petitioner Edgar Smith a new trial on the indictment charging him with the murder of Victoria Zielinski, at which none of the admissions made by him on the morning of March 6, 1957, to Detectives Spahr and DeLisle, the admissions in the Ehrenbeck transcript, the "acknowledgement" of that transcript made to Detective DeLisle on March 11, 1957, or the admissions made to Drs. Collins, Spradley and Zigarelli in March of 1957 shall be admitted in evidence.
It is so Ordered.