Petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

Denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

"[O]urs is an accusatorial and not an inquisitorial system-a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth." Rogers v. Richmond, 365 U.S. 534, 541, 739 (1961). Because the court below failed to examine fully whether petitioners confession was obtained by inquisitorial means condemned by the Due Process Clause, I would grant certiorari in this case to clarify the nature of the voluntariness inquiry. [ Degraffenreid v. McKellar 494 U.S. 1071 (1990) ][1071-Continued.]

In 1973, Claude Killian was murdered. Police questioned petitioner Ray Charles Degraffenreid shortly after the murder, but he was not then charged. In 1977, Degraffenreid was arrested for Killians murder while incarcerated in state prison on an unrelated conviction. Five days later, he confessed to law enforcement officials. At Degraffenreids first trial, the state court granted his motion to suppress his confession as involuntary, and the jury was unable to reach a verdict. At Degraffenreids retrial, a different judge admitted the confession. Degraffenreid was convicted of murder and sentenced to life imprisonment. His conviction was affirmed on appeal by the South Carolina Supreme Court. Degraffenreid then sought state postconviction relief, which was likewise denied.

In this federal habeas petition, petitioner renews his challenge to the admission of his confession. The District Court referred the petition to a Magistrate for findings of fact and recommendations. After conducting an evidentiary hearing, the Magistrate found that the State had failed to prove that the confession was voluntary. The District Court refused to adopt the Magistrates recommendation on the ground that the Magistrate incorrectly allocated to the State the burden of proof regarding voluntariness. A divided panel of the Court of Appeals for the Fourth Circuit affirmed, 883 F.2d 68 (1989), and the full court denied rehearing en banc by a vote of 6 to 5. [494 U.S. 1071, 1072] The record in this case is replete with factual findings by various state and federal judges. The Magistrates findings, which set forth the essential and undisputed facts, are as follows:

"[P]etitioner was held incommunicado for three (3) to five (5) days in solitary confinement. He had no exercise, no visitors, no telephone calls. He ate, slept, bathed, and existed within this one cell. There were no magazines, radios, television, books or other diversions. The only window was an observation window in the cell door which when open revealed the hall and the door to the sheriffs office. The only time the petitioner was taken out of this reportedly cold cell was for questioning.

"The only safeguard taken to protect the petitioners rights was the giving of Miranda warnings. Despite the presence of judicial officers on the grounds of the facility and procedures for transporting prisoners to other court officials, the petitioner was not taken before a judicial officer, was not appointed an attorney and was not given any conditions of release until after he confessed ." App. to Pet. for Cert. A-45.

It is also uncontested that prison officials placed a notice on the wall of the prison facility indicating that petitioner was to have no visitors or phone calls. From these facts the Magistrate concluded that " despite the advice of rights, the only way the petitioner was going to be released from solitary confinement and allowed contact with third parties was to give a confession." Id., at A-47.

The Court of Appeals did not reject this account of the facts and indeed noted that "[t]he delay in taking Degraffenreid befo