Alcorta v. Texas

PETITIONER:Alcorta
RESPONDENT:Texas
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 139
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 355 US 28 (1957)
ARGUED: Oct 23, 1957
DECIDED: Nov 12, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – October 23, 1957 in Alcorta v. Texas

Earl Warren:

Number 139, Alvaro Alcorta, Petitioner, versus the State of Texas.

Fred A. Semaan:

Mr. Chief Justice.

Earl Warren:

Mr. Semaan.

Fred A. Semaan:

If the Court please.

This case is one of certiorari to the Court of Criminal Appeals of Texas.

The decision sought to be reviewed as a denial by the Court of Criminal Appeals of Texas of an application for writ of habeas corpus seeking the release of the petitioner from custody of the warden of the State Penitentiary of Texas for the reason that his conviction is void and that it was based on perjury and suppressed evidence.

Jurisdiction of the Court is invoked under the Fifth and Fourteenth Amendments to the Constitution of the United States.

The questions are, have the provisions of the Fifth and Fourteenth Amendments been violated or has an accused been afford — afforded a fair and partial trial where (1) the prosecutor advised and encouraged the only eye witness to the killing who was also the State’s main witness to deny and not to admit nor volunteer facts favorable to the defendant, which facts would have mitigated his punishment at the hands of the jury.

And further, where the witness, having received the foregoing advise from the prosecutor, committed perjury regarding matters vital and material to the issues of guilt or punishment.

And further, where the prosecutor before the trial had begun, received certain information vital and material to the issues of guilt or punishment favorable to the defendant but unknown to the defendant that such evidence was in possession of the prosecution, failed and refused to apprise the Court, the defendant or the defendant’s attorney of the same so that such evidence would be available to the defendant.

But instead, having advised the defendant — the witness to deny such facts, the prosecutor then proceeded to question the witness regarding these facts, received answers known to the prosecutor to be untrue, sat mute and neither informed the Court nor the defendant that the testimony of the witness was false.

In the trial of the case, the State of Texas, while putting on its main case, called to the witness stand one Natividad Castilleja, and after eliciting testimony from him regarding the stabbing of the wife of the defendant, Herlinda — Herlinda Alcorta, got from him testimony that he was — the girl meant nothing to him that she was a friend of his sister’s, that he had met her at his sister’s home, that his sister made statements to him to the effect that this girl is a friend of mine, she lives near you and she works near you and I’ll appreciate it if you’ll give her a ride home from time to time.

After bringing out that testimony and the testimony regarding the killing, this further testimony was elicited from that witness

What page is that?

Fred A. Semaan:

Page 8 of our brief.

Questions by Mr. Barrera, “She’s married.

Now, other than the time you saw or met Herlinda Alcorta at your sister’s house, did you ever see her on other occasions?”

Answer, “Well, I gave her about two times, I gave her a ride.”

Question, “You gave her a ride about two times?”

Answer, “Yes, sir.”

“From where to where?”

Answer, “From where she was working to her house.”

And then again, “Natividad were you in love with Herlinda?”

“Was she in love with you?”

Answer, “No.”

“Had you ever talked about love?”

“No.”

“Had you ever had any dates with her other than to take her home?”

“No.

Well, just when I brought her from there.”

Fred A. Semaan:

Question, “Just when you brought her from work?”

Answer, “Yes.”

The defendant then took the witness stand in his own defense after the State addressed it and testified about his wife’s misconduct with several men including this witness, Castilleja.

He test about — testified about her neglect to the children and the circumstances under which he found her immediately before the stabbing.

And he testified as to how all this affected him in his state or condition of mind at the type — at the time of the stabbing and the — I’d like at this point to read just a few excerpts from his testimony on those matters.

And I’m reading now from page 30 of our brief.

“From there I went to see my wife.”

Now, he’s testifying — testifying may I explain at this poin, with regard to a matter of time just a few minutes before the stabbing.

“From there I went to see my wife but I didn’t see my wife alone or in the house or getting in from work or anything like that.

She was with another man in a car.”

Although he was here saying it was the only time he had seen her.

Earl Warren:

Where is that?

Is that on — on what page?

Fred A. Semaan:

On page 30 of the brief, Your Honor, towards the bottom.

Earl Warren:

Where is — oh towards the bottom?

Fred A. Semaan:

Yes, sir.

About one, two —

Earl Warren:

All right.

Fred A. Semaan:

— five or six lines from the bottom.

Earl Warren:

All right.

Fred A. Semaan:

Although he was here and saying it was the only time he had seen her, “I have seen him several times in the radio club dancing and she was with that same fellow and not only with that same fellow but with many others that I don’t know the names of.

That’s when I saw her in that place.

I didn’t really have the intentions, that like, Mr. Barrera, has got in the statement, that I have decided to kill her right there.

I didn’t have those intensions.

I only went to the car and this guy started — well getting mad and all that.

Well, I never did carry a knife, either, because I had turned my job in and I was going away.”

Further down, “When I was getting to the car,” this is on page 31.

“When I turned the corner I saw my wife was kissing with this fellow.

I didn’t know him then, I saw him dancing at the radio club up there.

She had so many that I don’t remember their names.

Fred A. Semaan:

I wouldn’t be asking for that.

I just saw her and that’s all.

And I saw them and they were kissing and I thought they were having a date up or something.

She had the door open, yes, but I had a feeling that something else was going to happen then, not only that they were kissing and all that but something else.

If I had a camera and waited a little longer, it would have been a different story than what they claim up here now.”

And then on page 32 or 35 at the top of the page, “I stabbed her.

I mean, I was just all carried away when I saw her with that guy and all of that.

I was drunk.

You get a man like that to think of everything like that and you get carried away and mad.”

And again on page 37, “Like I told you, if I had a camera and waited a little longer, it would have been a different story.

I would have brought the picture and showed it to you.”

Under your Texas law does the jury fix the death penalty?

Fred A. Semaan:

Yes, they do, Your Honor.

Under Texas law, murder is divided, so to speak, into two categories, murder with malice which is punishable by confinement in the penitentiary from two years to life or death in electric chair.

Included in that is the offense of murder without malice.The punishment for that is confinement in the penitentiary from two years to life and no more.

And on page 6 of our brief referring to Article 1257b Penal Code of the State of Texas and all the cases tried under the provisions of this Act, it shall be the duty of the Court to define malice or forethought and shall apply that term by appropriate charge to the facts in the case and shall instruct the jury that unless they find from all the facts, in all the circumstances and evidence that the jury believes the defendant was prompted and acted with his malice or forethought they cannot assess his punishment at a period of longer than five years.

The following article defines murder without malice.

Murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause by which is meant such cause is what commonly produced the degree of anger, rage, resentment or terror and a person of ordinary temper sufficient to render the mind incapable of cool reflection and in connection with that I think we should make some reference at this point to Article 1257a on the preceding page, page 5.

In all prosecutions for a felonious homicide, the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide which may be considered by the jury in determining the punishment to be assessed and then it goes on to include the Suspended Sentence Act or Law rather.

Now, our position is this that the defendant under Article 1257a certainly had the right to tell and to show the jury, the circumstances under which he found his wife.

The suspicions that he had had about her conduct for sometime, suspicions that were confirmed when he woke up and found her under the circumstances, he said he did.

And since he had that right, he had the further right to be corroborative in his testimony regarding his state of mind by the honest and the unpurged testimony of the witness, Natividad Castilleja, who, had he told the truth would have corroborated the defendant or the petitioner to the extent that the jury, undoubtedly, in my mind would have come to the conclusion that what this man says is true, the conditions under which he found his wife are true and they are conditions that probably would render the mind of a man incapable of cool reflection and a killing under those circumstances is murder without malice and the punishment cannot be more than five years.

Hugo L. Black:

Under Texas Law, what offense is committed by one who kills another in the heat of passion?

Fred A. Semaan:

What offenses are committed.

Hugo L. Black:

What offense were committed by one who kills another under the influence of expressed anger of the man.

Fred A. Semaan:

That would be murder without malice.

The fact that Castilleja’s testimony didn’t corroborate but contradicted the testimony of Alcorta, damaged him I think more than anything in the trial of the case and brought about the death penalty at the hands of the jury.

Felix Frankfurter:

Mr. Semaan, what do you conceive to be the requirement that you have to establish before this Court and all that they have is the jury for the particular (Inaudible)

What do you think you have to — what is the burden?

Fred A. Semaan:

I think I’ve got to show that I’ve exhausted all my remedies in the state courts that we have no remedy down there.

Felix Frankfurter:

Remedy for what?

Fred A. Semaan:

For the — for the setting aside of the conviction, a conviction that was based on thought, because it is based on purged testimonies.

Felix Frankfurter:

Well, that last word, is the keyword, isn’t it?

Last two words.

Do we have to purge your testimony?

Fred A. Semaan:

Yes.

Felix Frankfurter:

So that’s the burden here.

Fred A. Semaan:

And the supression of evidence.

Felix Frankfurter:

All right.

Fred A. Semaan:

I — I (Voice Overlap) —

Felix Frankfurter:

The participation of the prosecution in Texas, the conscious participation in having purged testimony given by a witness.

Fred A. Semaan:

Is a denial of due process.

Felix Frankfurter:

Now, that’s the burden that you have to establish.

Fred A. Semaan:

Yes.

Felix Frankfurter:

And what the —

Fred A. Semaan:

And certainly —

Felix Frankfurter:

At what —

Fred A. Semaan:

— under the only cases we have cited amounts to a fundamental unfairness.

Felix Frankfurter:

Is now to assume that one agrees with that, you can take for granted that Mooney and Holohan.

Fred A. Semaan:

Yes, it begins there.

Felix Frankfurter:

But what in the record establishes — that brings you within Mooney and Holohan?

Fred A. Semaan:

The fact that —

Felix Frankfurter:

Is it not the fact that the witness lied, that it meant perjury, that is an monopoly.

Fred A. Semaan:

Well, in some cases it could be, however, in this case —

Felix Frankfurter:

You mean it’s the district attorney or the prosecutor or whatever he is called in perfect good faith puts on a witness and subsequently (Inaudible)

Fred A. Semaan:

I — I see what you mean —

Felix Frankfurter:

So the witness himself committed perjury, you think that’s the reason — the reason for them to quote (Voice Overlap) —

Fred A. Semaan:

No, sir.

I think they’ve got to go one step further and — and show that the district attorney or the prosecutor knew that perjury was being committed and either condoned it, encouraged it or sat mute and did nothing about it.

Felix Frankfurter:

That’s the burden that you —

Fred A. Semaan:

Yes.

Felix Frankfurter:

— that you have to undertake here, don’t you?

Fred A. Semaan:

I believe.

You also mentioned suppression.

Fred A. Semaan:

Yes, sir.

Is there — what’s your theory on that?

I mean in short — short of proving the known use of perjured testimony by the State.

Is there any other ground that you’re linking here?

Fred A. Semaan:

Yes sir, suppression.

What — what’s that?

Articulate that.

Fred A. Semaan:

Well, I — I think I’ll show a little further that the witness, Castilleja, made a statement to the district attorney, I remember his — I remember at of his office the day after the killing, that he told them of his true relationship with the deceased.

He said I’ve been going with her for several months and I’ve had intercourse with her five or six times.

The prosecutor took the position that, well that’s not admissible, so I’m going to advise him not to tell about that, don’t volunteer it and deny it because it’s not admissible.But if you’re asked anything, answer truthfully.

Then the prosecutor in the trial of the case asked these questions regarding the relationship that existed between the witness, Castilleja and the dead girl knowing that there had been acts of intercourse, having been told by the witness and sat mute and did nothing and said nothing to no one.

Felix Frankfurter:

Is there agreement — did the State agree that — that the — assuming there was perjury — assuming there was perjury, is it agreed by the State that the prosecutor will just pause there in the submission of the perjury testimony?

Fred A. Semaan:

No, sir.

Felix Frankfurter:

Well then is it — would you be good enough to state right now what it is that we have before us which doesn’t raise that the disputed question of facts that in fact the prosecutor combined with the — even you regard it as perjurious witnesses to give further testimony.

Fred A. Semaan:

Yes.

Felix Frankfurter:

Do you agree that that must be established not here but by the record that comes here, is that right?

Fred A. Semaan:

Yes sir.

Give me just a minute and I’ll find that, Your Honor.

On page 72 of the printed record, the prosecutor at this point is testifying before the Board of Pardons and Paroles and a hearing for commutation.

He was asked this question by one of the attorneys for the petitioner, “Did Gus Garcia ask you if you didn’t — did not in fact tell Castilleja that they did not have —

Earl Warren:

Where —

Fred A. Semaan:

— to testy about —

Earl Warren:

Where are your reading now?

Fred A. Semaan:

Page 72

Earl Warren:

Oh, 72.

Fred A. Semaan:

Yes sir.

Earl Warren:

Well, excuse me, I thought you said 22.Go right ahead.

Fred A. Semaan:

“Did Gus Garcia asked you this question, if you did not in fact tell Castilleja that they did not have to testify by this relation with Herlinda Alcorta?”

Answer, “Whether he asked the question?”

Question, “Yes.”

Answer, “Yes, and did you not give this answer?”

“Yes, I told him it was not admissible unless brought up by the defense.”

“Did you give that answer?”

Answer, “That’s not the full answer I gave him.”

Question, “Did you give that much of it?”

Answer, “Yes I did give that much of it.

Yes, I did that — that much of it.”

“Alright, now go on further.

Alright now, did you go on further then and say that the defense had never introduced the question of Ms. Alcorta’s infidelity and if they had you would object it?”

Answer, “Yes sir.”

“You said that?”

“That’s correct.”

“But you did tell Mr. Garcia that you had advised Castilleja, the witness, that he did not have to testify about his relations with Herlinda Alcorta because in your opinion it was not admissible.”

Now, on another occasion, the same prosecutor, Mr. Barrera wrote a letter to the Board of Pardons and Paroles which was introduce into evidence in the hearing on the writ and in that letter, beginning on page 114 of the printed record, however, I refer now to the top of the page on 115.

Now, this is the prosecutor and an affidavit to the Board of Pardon and Paroles speaking of the taking of the statement from the witness Castilleja and thereto after the killing.

He verified that statements contained there were true.

There was nothing in the statement with respect to his ever having had sexual intercourse with the deceased, Herlinda Alcorta.

Pete Torres and I pressed him further and stronger about prior sexual relations with the deceased in this case and after a short time he finally admitted to Mr. Torres in that — that he had sexual intercourse with her approximately four or five times, the last time being — having occurred approximately one or two months before the night of the homicide.

He denied empathically that there’d any misconduct on his part — on his or her part on the night of the homicide.

Then further down, the letter is — is a very long one and — and consists of some several pages even in this printed record, but in this letter he goes on to explain that I told him that if anyone asked him about that to deny it because in my opinion, it’s not admissible.

If you’re asked about it, don’t volunteer and if you’re asked about it, deny it but then he ends every statement with —

Hugo L. Black:

Where is —

Fred A. Semaan:

— but tell the truth whatever you say.

Hugo L. Black:

Where is the statement to go ahead about a denial.

Fred A. Semaan:

At that time he asked me —

Where —

Hugo L. Black:

Where is that?

Fred A. Semaan:

115 at the bottom of the page.

At that time he asked me and Mr. Torres what he should do — that is in a printed record that’s what he said.

What he should do or say if someone wanted a statement from him to which I answered that he could give them a statement if he wanted to but certainly he did not have — have to.

Needless to say — say, I told him that I’d prefer that he did not, in view of my past experience with defense attorneys taking statements from the witness — witnesses such as the — such as this filed to a state case and who by force as certainly we’ll know a little further on.

On the next paragraph says, “I told him at this time in the presence of Mr. Torres in — in that event that is, and that he’s asking the question.

In any event you should tell the truth, on the stand but not belonging to any information.

Fred A. Semaan:

Yes sir, bear in mind, however, Your Honor that this is the prosecutor accused of what he’s being accused of making an affidavit to the Board of Pardons and Paroles after all this happened.

William J. Brennan, Jr.:

But Mr. Semaan, isn’t there some relevancy to the list of questions on page 74 going back to that examination before the parole board when he was asked the third question, Mr. Barrera, you knew what time to ask these questions on direct examination, would take effect in the first direct examination filed doesn’t it?On — before the State had rested you have knowledge of the fact and so had divorced Mr. Green that Natividad had on several occasions said in the Court for Herlinda.

I’ll speak of what I have knowledge of and Mr. Green will speak for himself.

I had knowledge that Castilleja had had intercourse with his wife in several occasions and he sat there and asked those questions and heard those answers and did nothing about it.

Fred A. Semaan:

Yes sir.

There’s nothing true about it.

That’s for the Court to decide and he says that’s for me to decide at the time I ask the question.

Yes.

William J. Brennan, Jr.:

Does it not have some relevance to this?

Fred A. Semaan:

Yes, I think it did.

Castilleja in his statement said this about what he was told by Mr. Torres and Mr. Barrera.

On page 121 of the record, beginning at 121, on page 123 or at the bottom of 122, “I want to be clear about this that Torres, this is Castilleja speaking.”

Torres never actually told me to deny that I had intercourse with Herlinda Alcorta, what he told me was this, “If you want to say it go on and say it, but if you don’t want to say it then don’t say it.”

He was talking about the testimony that I was to give when I was told there’s a witness in Court.”

I had already admitted to Torres that I had intercourse with Herlinda Alcorta and he knew that I had.

What I am saying now is regarding what I was to say when I took the witness stand.”

William J. Brennan, Jr.:

But even so Mr. Semaan, is this a fair appraisal of the prosecutors, whatever you call — let me call on that fact.

This is indicia thing of his position at 74 is within my province at the time I am preparing a case as to what testimony I think is admissible and what testimony I think is not admissible —

Fred A. Semaan:

I think —

William J. Brennan, Jr.:

— (Voice Overlap) my questions and answers, defile tactics to this case with enticing of what I think the law is.

And that is —

Fred A. Semaan:

I think that’s in keeping with his attitude which is more clearly reflected in the — let me refer to the brief here — on page 16 of the brief.

Hugo L. Black:

Your brief?

Fred A. Semaan:

Yes.

Would it not have been the honorable and honest thing to do, Mr. Barrera, if you wanted to see that this man had a fair and impartial trial, when you heard those answers knowing that the man had had intercourse with her to notify the judge has to the true answers of the true facts.

Answer, “Mr. Seeman, the honorable thing is never to approach the bench with the facts of the case as I have often seen it done to try to influence the judge one way another.”

Question, “You never took it upon yourself in spite of the fact that the occasion never rules, you never felt it was your duty or took it upon yourself to tell the judge about that either before the trial or after the trial, either before this testimony was elicited or after it — after it was elicited — elicited, did you Mr. Barrera?

Answer, “Not anymore that so that I felt it was my duty to tell him about the character of the defendant, Alvaro Alcorta, or not more than the misconduct of Alvaro Alcorta knowing myself whether it is inadmissible to begin with.

It was not out of the ordinary to instruct any witness not to volunteer any information and — and to answer only the questions asked of him truthfully.”

“Did you ever take it upon yourself, Mr. Barrera either before the trial or after the trial or before this testimony was elicited, this testimony I have just read you and you — read to you and you have acknowledged either before it was elicited or after it was elicited?

Did you take it upon yourself or a feel of duty to inform the attorney for the defendant of the true facts regarding the relationship between Herlinda Alcorta and Natividad Castilleja?”

“Not anymore than I would feel it was if — if there was a duty upon him to tell me what the defendant may have told him or the true facts of the killing as it might have occurred as he knows it.”

The point is this, from my reading and my interpretation of the facts in the record in this case, the testimony of the prosecutor Barrera and the hearing on the writ of habeas corpus the — the testimony of the prosecutor Barrera and the hearing before the Board of Pardons and Paroles on commutation, the — the affidavit of the — of the witness, Castilleja.

All those things lead me to believe and I could be wrong but I sincerely feel that there was at least some subornation of perjury where he tells him, “You don’t have to say this or that or the other unless you want to.”

But he always asked if you — if you are asked answer truthfully.

Then when he on direct examination, after taking this position that those questions are not — are not admissible, you can’t go into them and if you do I’m going to object as to the questions regarding the relationship himself before the defendant has ever taken the stand, before he’s had an opportunity to raise any kind of defense, ask those question and get answers that he knows are not true and say it’s mute.

Would you turn to page 24 of your brief?

I want to ask you a question this.

There you are quoting as I understand it from your examination of a newspaper man was wrong?

Fred A. Semaan:

Yes sir.

For carrying before the Board —

Fred A. Semaan:

Of commutation.

— on commutation and at the bottom, you say, “Give us any background you want.”

This is of a newspaper man but bear in mind that I’m speaking of the point were he stood up.

That refers to Barrera and said, “I’ll take the blame for that,” or words to that effect to the answer Mr. Green was being questioned about his policies.

Who is Mr. Green?

Fred A. Semaan:

The district attorney.

With regard to his investigator’s interview of the witnesses and Mr. Barrera stood up and said, “I was at those interviews between the investigator and Natividad to question Castilleja.

The answer of Castilleja, “And I’m responsible for the alleged subornation of perjury.”

Now, is that testimony elsewhere in the record directly from Barrera’s?

Fred A. Semaan:

Yes, that Mr. Barrera comes very close to that when he testifies.

But where — where is that?

Fred A. Semaan:

In this hearing.

This is a state — this is a testimony of a witness as to what that witness claims he heard Barrera said and I want to know whether that he had — there is a direct statement in the record from Barrera that supports that characterization (Inaudible)

Fred A. Semaan:

Beginning on page 71 of the record where I think that part is a little further on.

No, that’s wrong.

On page 72, that’s not — we’re speaking — Roy Barrera is on the witness stand and the hearing on the writ and he’s being asked questions regarding his testimony before the Board of Pardons and Paroles.

“Did Gus Garcia ask you this question if — if you did not in fact tell Castilleja that he — that he did not have to testify about his relations with Herlinda Alcorta.”

Answer, “Whether he asked the question?”

Question, “Yes.”

Answer, “Yes.”

“And did you not give him this answer?”

“Yes, I told him that it is not admissible unless brought up by the defense.”

“Did you give him that answer?”

Answer, “That’s not the full answer I gave.”

Question, “Did you give that much of it?”

Answer, “Yes, I did.”

Question, “Alright now, did you go further then and say that the defense had never introduced the question of Ms. Alcorta’s infidelity and if they had, you would have — you would have objected to it anyway?”

Answer, “Yes sir.”

Question, “You said that?”

Answer, “That’s correct.”

But you — question, “But you did tell Mr. Garcia that you had advised Castilleja that he did not have to testify about his relations with Ms. Alcorta, Herlinda Alcorta, because in your opinion it was not admissible.”

Answer, “I told him in addition to the proposition which is not in here that he should not and must not volunteer any information unless the question was asked of him, in which event certainly he had to tell the truth.”

I think he’s saying practically the same thing himself right there.

Felix Frankfurter:

Mr. Semaan.

Fred A. Semaan:

Yes, sir.

Felix Frankfurter:

Let’s see if I understand this correctly.

In answer to Justice Harlan’s question and other questions, you have dealt with the problem, you have dealt with testimonies of which doesn’t reveal or it did not hear, in which the district attorney claimed was not admissible, is that right?

Fred A. Semaan:

Yes.

Felix Frankfurter:

That’s one status born out of the case of your problems in your case.

I want to ask you whether the colloquy, the question and answer was two-way and set forth —

Fred A. Semaan:

Whether what, sir?

Felix Frankfurter:

Whether the questions and answers, the colloquy —

Fred A. Semaan:

Yes.

Felix Frankfurter:

— between Mr. Barrera and the witness set forth in presiding Judge Morrison concurring opinion on page 2 and 3 of your brief.I want to ask you whether there is any controversy that those questions and the answer thereto of questions that Mr. Barrera did ask on page —

Fred A. Semaan:

on page —

Felix Frankfurter:

— 2 and 3 of your brief.

Fred A. Semaan:

No.

Felix Frankfurter:

I assume that’s the correct transcript of the record but I haven’t got it that way.

Fred A. Semaan:

Yes, sir.

Felix Frankfurter:

I want to ask you whether those question and the answers given were given by Mr. Barrera — were questions by Mr. Barrera on direct examination of the witness?

Fred A. Semaan:

Yes, sir.

Felix Frankfurter:

And those questions presumably since he put them, he thought were relevant.

Fred A. Semaan:

I assume.

Felix Frankfurter:

And the answers to those questions — my next question is whether the answers to those questions by the witness were in fact necessarily untruthful answers in view of the disclosures that were not made regarding his relation with the woman.

Fred A. Semaan:

Do you want to know if there were answers — were untruthful?

Felix Frankfurter:

I want to ask you whether — whether those answers were not necessarily untruthful in light of the knowledge which has come to Mr. Barrera which he thought, for one reason or the other, for all I know a good reason but not be admitted namely, his relations with — with the wife, wasn’t it?

Fred A. Semaan:

Yes sir, I think they were untrue in every sense of the word and I refer to page 4 of the printed record wherein I’m examining —

Felix Frankfurter:

Now, I don’t care what you’re examining, just stick to my question.

I want to know whether the prosecutor gave questions — put questions which presumably he thought were relevant as the witness put to him and to which he got answers that he must have known were untruthful.

Fred A. Semaan:

Yes, sir.

Felix Frankfurter:

Now then, if that is so, then it is another fact that on this record on the basis of your answers to me that the prosecutor sat by silently while he elicited what he knew to have been untruthful answers.

Fred A. Semaan:

Yes, sir.

Felix Frankfurter:

So why didn’t you ask that on that case?

Fred A. Semaan:

Well, I think I can.

I would like, however, to read the true testimony of the witness, Castilleja, which was acknowledged later on by Mr. Barrera.

As –as I started to say, I’m examining him on page 4 in the hearing on the writ.

“Alright, tell me whether or not you ever had sexual intercourse with Herlinda Alcorta?”

Answer, “I did.”

“When was the first time, son?”

“I can’t remember exactly the time.”

“Well approximate how long after the first time you gave her a ride home?”

Answer, “The third time I would say.”

Fred A. Semaan:

“About the third time and where did that take place?”

Then he goes on, and tells about where the first act took place.

Felix Frankfurter:

Those are not answers to questions knowingly put — by the district attorney, presumably, in order to establish your case on with your cross-examination.

Fred A. Semaan:

I didn’t get the first part of your question.

Felix Frankfurter:

I’m saying, what you’re now — and use the answers you’ve got.

What I call your attention to is, what the district attorney elicited by his question.

Fred A. Semaan:

Yes sir, but bear in mind that the district attorney had been given this same information before the trial.

Hugo L. Black:

That information he had elicited before the trial.

Fred A. Semaan:

Yes and had that and after that while he was taking his — the affidavit from the witness, he was given this information and he admits that it’s in the record by Mr. Barrera that we have that information.

Felix Frankfurter:

Well, that merely proved that he had this knowledge but he didn’t bring out — he didn’t bring out that information at the trial of what Judge Morrison quotes, he did bring out at the trial.

All right.

Fred A. Semaan:

I don’t quite —

Earl Warren:

Isn’t the gravamen of — of your — your argument that he asked these questions of the defendant and received these answers knowing that they were untrue.

Fred A. Semaan:

That’s right.

Earl Warren:

Question, “She’s married.

Now, other than the time you saw or met Herlinda Alcorta at your sister’s home, did you ever see her on other occasions?”

“Well, I give here about two times — I give her a ride.”

“You gave her a ride about two times?”

“Yes sir.”

“From where to where?”

“From where she was working to her house.”

“Natividad, were you in love with Herlinda?”

Now, isn’t this the gist of what you’re talking about?

Fred A. Semaan:

That’s right.

Earl Warren:

“Natividad, were you in love with Herlinda?”

“Was she in love with you?”

“No.” “Had you ever talked about love?”

“No.”

“Had you ever had any dates with her other than to take her home?”

“No, well just when I brought her from here.”

Earl Warren:

“Just when you brought her from her work?”

“Yes.”

And you say that he asked those questions and elicited those answers knowing from the lips of the witness himself that he had had different relations and that he, the prosecutor, told him not to tell that to — to counsel for the defense and not to — to mention it on the witness stand unless it was specifically asked of him.

Fred A. Semaan:

Yes, sir.

Now, we admit that the direct question, “Did you ever have intercourse with Herlinda Alcorta,” was not asked by Mr. Barrera.

But to say that it wasn’t asked even stronger and more emphatically by these series of questions, I don’t see how it can — anything else can be said.

In the hearing on the writ, Mr. Barrera, in response to questions to one of his co-counsel, Mr. Woods, made these statements.

That he did?

Fred A. Semaan:

Page 77 of the printed record.

Question, “Mr. Barrera, going back to the taking of statement on July 20th, is I believe of 1955.”

“Yes sir.”

“You were present, and Mr. Torres was present and then Natividad Castilleja was present.”

“That’s correct.”

“Just what did you tell Natividad at that time and place?”

The situation as I recall it was this, Mr. — was this.

“Mr. Torres had been talking to Castilleja.

He had a statement in writing already and asked me to go in there and look it over and look at it before the witness signed it.

At that time I went in.

I read the statement.

I ask Castilleja if the statement contained therein was true.”

He said, “Yes.”

“I had a conversation with Mr. Torres in private.

I asked him whether or not he — that — that he asked if there was — if there was or was not any intercourse between Natividad and — and the deceased in this case.”

He said, “He wasn’t too satisfied about that.”

We both then went back in and continued to ask him questions about prior acts of intercourse.

He finally admitted that he had had intercourse with Herlinda Alcorta on several occasions.

I asked him whether or not he had had intercourse with Herlinda on the night in question, that is, the night of the killing and he emphatically denied it.

He, as I recall was reluctant to sign a statement, with any statements contained therein about intercourse.

I was told at the time that the fact Alvaro Alcorta whose confession I had taken approximately or had been present at the time it was taken approximately a week or possibly two weeks before, that at the time of the taking of that confession from Alvaro Alcorta, he gave me no indication that he knew of any misconduct on the part of his wife.

That being the situation and not being a — that being the situation, not being a price of it then such a situation could not have entered into his mind at the time he committed the killing in this case could not have contributed to it.

Fred A. Semaan:

Keeping further in mind the obvious education or possible lack of education on the part of Natividad Castilleja and the possibility that there’s — that is always present in any case that a witness may later decide he will not get on the stand and tell you what he knows or the possibility of having to refresh his memory from the various statement you’ve taken from him or the possibility of arising of having to impeach him with the statement you have taken that those things certainly would be immaterial to the all over — to the overall situation in this case especially at — at that time there being no sure answer to that.

I think it’s in here — let me — give me just a minute.

Hugo L. Black:

Is that the page where you said that I told Mr. Torres to go ahead and wind up the statement and leave those things out?

Fred A. Semaan:

Yes, sir.

That’s on page 78.

I told Mr. Torres to go ahead and wind up the statement and leave those things out.

I told him, however, to put the information in the overall jacket which is a matter of public record and — and contained therein at — at this time — contained therein at this time.

I told Castilleja at the time, an answer to his question, what shall I do or say if someone comes out to see me because I asked him has anyone been out to see you.

He said, “Nobody has been out to contact me.”

He says, “What shall I do if someone comes out to see me?”

I said if someone comes out to see you and wants a statement from you, then you may give them a statement if you want.

You don’t have to give a statement if you don’t want to.

I would prefer that you do not.

Now, speaking about putting this information in the jacket and this being a matter of public record, in this record Mr. Barrera, in the hearing on the writ, admitted that had any attorney, Alcorta’s attorney or anyone else before the trial was over, came in and asked to see that information or to see that jacket that he would not have given it to him.

I asked him a specific question.

I asked him, “Would you after the trial wasn’t over but in due time to raise all these on newly discovered evidence?

Would you give him that information?”

At that time he said, “No, not until the appeal is over and everything is closed.

But he, in several instances in the record, he refers to all this information being in the jacket and being a matter of public record and that all or any attorney had to do was to get custody, has his name off the indictment, go out and see him and get the same information.

However, he seems to overlook the fact that he has told Castilleja on several other occasions not to — not to see anyone, not to talk to anyone, not to give anyone any — any information at all.

Yes, sir.

Charles E. Whittaker:

Assume that the prosecutor in asking the questions set forth in the opinion appearing on pages — beginning at page 1 of your brief were relevant and thus showed the knowing use of — or this evidence when he had evidence that at least was contradictory of it or at least is when the full and complete disclosure only after the best.

Assuming that does amount to the knowing use of perjury damage then.

Did — is there any evidence in this record that the defendant knew of this intimate relationship that you referred to between Herlinda?

Fred A. Semaan:

They have — they have.

Charles E. Whittaker:

And the —

Fred A. Semaan:

Excuse me.

Charles E. Whittaker:

Not that — so that it could be said to have affected his state of mind within the meaning of Section 1257a in the Penal Code of Texas.

Fred A. Semaan:

Yes, sir.

The — the evidence all through this record that the defendant suspected.

Fred A. Semaan:

He never saw his wife in actual act of intercourse with any other man.

But he suspected that’s sort of conduct not only with this man but with several other men and he tells about having seen them at this night club — in that night club.

Charles E. Whittaker:

But he was committed to testify about that?

Fred A. Semaan:

I didn’t understand.

Charles E. Whittaker:

He was committed to testify about that and did so in the trial.

Fred A. Semaan:

Yes.

But the — the harm was this.

What he testified as to what his state of mind was — was true and had he been corroborated by Castilleja, who might have said in effect that what this man suspected of my conduct with his wife was true and that we were hugging.

We were kissing.

We had done it before.

The jury would have believed and beyond the shadow of a doubt and probably would have felt that he had adequate cause to become enraged and angered and — and put himself in a situation or state of mind were he was not capable of true reflection.

But when Castilleja says, “No, that’s not true.

She’s just a friend of my sister’s.

I never had anything to do with that.

I was just giving her a ride home.”

The jury got the impression or felt this way.

That he not only killed his wife but now he is up here lying about it running down a reputation.

And the — they, the jury, were in a frame of mind then where they were even more angry at him.

Angry because of the killing and angry because of what he was doing to her reputation.

That was the — that was the real damage by the testimony of Castilleja.

Now, jury got this sort of picture.

That from the testimony of Castilleja, that — that Alcorta for no reason at all and without just provocation or without any mitigating circumstance or reason, stabbed this well-behaved wife and mother when the truth of the matter is and if Castilleja had told the truth and corroborate it, the jury would have seen that he did kill his wife but she wasn’t an innocent, well-behaved wife and mother.

She was running around just like Alcorta said she was.

She was in this man’s arms just before he stabbed her and the sight of her in his arms so inflamed him that he couldn’t reflect coolly and under those circumstances he stabbed her and under those circumstances, it’s a murder without malice.

Charles E. Whittaker:

Of course, I’m still having trouble inasmuch as that very testimony which you received was in the record then before the jury and the Court instructed on him.

Fred A. Semaan:

But contradicted it by — by —

Charles E. Whittaker:

Contradicted because Castilleja or whatever his name is —

Fred A. Semaan:

Yes.

Charles E. Whittaker:

— did not reveal the full truth.

Fred A. Semaan:

Yes.

Charles E. Whittaker:

Is that it?

Fred A. Semaan:

Any of the truth regarding his relationship with her.

Charles E. Whittaker:

Well, he didn’t reveal — what — and tell me what truth — what fact did he not reveal save the relations of intercourse?

Isn’t that all that was withheld?

Fred A. Semaan:

I think had he told the truth about his relationship with her that the jury would certainly have — have believed Alcorta when Alcorta says I came upon them kissing in each others arms and had I waited a few minutes and had a camera, I could show the jury what they were doing.

Earl Warren:

Didn’t — didn’t the — didn’t the defendant testify that he actually saw them kissing and embracing each other in the car?

Fred A. Semaan:

Yes, he did.

Earl Warren:

And didn’t Castilleja —

Fred A. Semaan:

Castilleja.

Earl Warren:

— Castilleja testify that there never had been any love-making between him.

And — and —

Fred A. Semaan:

That’s right.

As a matter of fact, he said that —

Earl Warren:

And wasn’t — it was a question of veracity as –between him and Castilleja than as to whether there have been ever any love-making between them.

Fred A. Semaan:

That’s right.

As a matter of fact, Castilleja had denied that he was kissing her at the time the husband came up, but to the contrary, said I was sitting there talking to her about church.

She was telling me to tell your sister to call me so that we can go to church together in the morning.

I don’t think they were talking about going to church.

Two people, by — who by the admission of — of Castilleja had been out together many times and had intercourse together many times and the record shows him at the house on other occasions as –as they were on this — on this occasion when the stabbing took place.

They weren’t talking about church, they were doing exactly what Alcorta said they were doing.

Earl Warren:

You — you say that another witness testified he had seen Castilleja at the — at the house of — of this deceased?

Fred A. Semaan:

Mr. Barrera, in one of his letters, and I think in the letter to the Board of Pardons and Paroles or in the testimony he gave in the trial said that Castilleja told him that he had had intercourse with her after he brought her home from work and on the way home from work.

I take that to mean that after he brought her home, they pulled up in front of the house and had intercourse in the car just like they were about to do on this occasion when the defendant walked up himself.

Now, that’s — that’s in the record.

Earl Warren:

But is there anything in the record — is there anything in the record to indicate that he had met her and seen her on other occasions than this outside of the testimony of the defendant that he saw her dancing with him?

Fred A. Semaan:

His own testimony, of Castilleja.

Earl Warren:

What — what was his testimony, Mr. Semaan as bearing on — as bearing on his other answers that he never had any dates with her and never — he only took her home from work about two times.

Is there anything inconsistent with that?

Fred A. Semaan:

Yes, sir.

He tells about having danced with her at several clubs.

Fred A. Semaan:

Did you know where he had been?

Do you know when she died approximately on June 19th?

Now, this is page 2 of the printed record.

When was the first — question, “Alright, when did you first meet her?”

Answer, “Well the first time I saw her in the dance but the first time I really got to talk to her was in my sister’s house.”

Question, “Where was that dance were you first saw her?”

Answer, “The Los Angeles Night Club.”

Question, “Los Angeles night club?”

Answer, “Yes, sir.”

“Is that the place ran by so and so?”

“Yes.”

Then he goes on about seeing her again at his sister’s house and his sister says, “I’ll appreciate if you give her a ride home from time to time.”

(Inaudible)

Fred A. Semaan:

Of the printed record?

(Inaudible)

Fred A. Semaan:

Yes, sir.

(Inaudible)

Fred A. Semaan:

Yes.

(Inaudible)

Fred A. Semaan:

Exactly.

Now, that certainly doesn’t go along with what can be assumed from the testimony of Mr. Barrera about having stopped in front of the house before and had intercourse with her in front of the house before.

And that leads me to believe and I think anyone must have seen them from that if he was doing just what he did on other occasions.

He pulled up and put the lights out and they were in and embracing.

This happened at the house when he came up on this occasion.

With the Court’s permission we will reserve whatever remaining time we have for rebuttal.

Roy R. Barrera:

Mr. Chief Justice.

Earl Warren:

Mr. Barrera.

Roy R. Barrera:

If it please the Court.

At the outset, with the Court’s permission I’d like to say that the state prosecutor certainly deny each and everyone of the allegations contained in the petitioner’s petition for this Court and that there have been so many statements made through this Court outside of the record that I would be hard put in the time that I have allotted to me to call the Court’s attention to each and everyone of them.

I will desperately, in the time that I have, attempt to show some of the misconceptions of the record that Mr. Semaan has, I imagine, inadvertently left before this Court.

Roy R. Barrera:

He talks about Alvaro Alcorta making statements on the stand about the misconduct of his wife, what he had seen and allegedly seen having to do with Castilleja in the many night clubs that he had seen her at and so forth.

I refer the Court now to page 183 of the transcript of the record where we’re going to —

William O. Douglas:

If you find the —

Roy R. Barrera:

183.

William O. Douglas:

Did you handle the case for the prosecution?

Roy R. Barrera:

Yes, I was the prosecutor.

I am the ogre in this case.

And I want to —

Hugo L. Black:

Were you the one who asked the question?

Roy R. Barrera:

I’m sorry.

Hugo L. Black:

Are you the one who asked the question?

Roy R. Barrera:

Yes, yes Your Honor.

Hugo L. Black:

Did you ask those questions that were read?

Roy R. Barrera:

The questions with respect to — were you in love with her, was she —

Hugo L. Black:

Yes.

Roy R. Barrera:

— in love with you?

Yes, Your Honor.

Hugo L. Black:

Did you know at that time that he had told you that he had had sexual intercourse with this woman?

Roy R. Barrera:

Yes, Your Honor, I certainly did.

Now, the reasons I will get to those questions that I do certainly intend to get to but I wanted to get on the proposition here of the overall picture and what brought about this matter here.

The killing as it took place and the facts of this case and some of the facts that we appeal the Court must have before it in order to properly determine what took place and the reasons that it did is that approximately 30 days before the deceased in this case, Herlinda Alcorta, died at the hands of her husband she had been threatened with serious bodily injury and death by her husband as a result of which he was placed under a peace bond 30 days before he killed her.

That — that is reflected of course in the record on page 173 and also in his confession where he admits that he was placed under a peace bond by Judge Teilborg.

Two days before he took his wife’s life, Alvaro Alcorta again threatened to kill her and then made statements to that affect which are reflected on page — in the record — 133 stating that, “I’m going to get even with her,” and stating that he intended to leave his job at Kellyfield that he was going to kill her and that he was going to go to Mexico.

Stating further as reflected in the record again page 133 to a barmaid that he was drinking beer with, “You’re going to read about me in the paper on Monday.”

He admitted that he had his suitcase packed in a saloon and ready to go as is again reflected in the record in page 180.

He did in fact quit his job as reflected in one — page 139 and thereafter, on the morning of the 19th — Sunday morning of the 19th he did in fact stab his wife to death with a knife 32 times.

Hugo L. Black:

Where?

Roy R. Barrera:

In the — every portion of the body.

Now this —

Hugo L. Black:

I mean where — where was she at the time?

Roy R. Barrera:

Herlinda Alcorta had arrived at her home in the company of Natividad Castilleja.

Hugo L. Black:

What time?

Roy R. Barrera:

At about 1 o’clock in the morning, Sunday morning.

Now, in the course of the record, Castilleja said that he had gone over to his house to see his children at that time on being — Alcorta, excuse me.

Earl Warren:

And who said that?

Roy R. Barrera:

Alcorta, the — the defendant.

On the stand he said that he had gone over to the house to see his children at that time which is 1 o’clock in the morning.

That certainly did not coincide with the prior threats that he had made a month before or two days before — immediately before and with his statement to this barmaid, “You’re going to read me about me in the paper Monday.”

Now I’m getting to the admissibility of the testimony which was before the Court.

We have to take also into consideration the confession which was given by the defendant, Alcorta.

In which he relates these prior threats, in which he stated that he — the reason that he had killed her on being asked the specific reason was that she was going out and not taking care of the kids.

That she was going out and not taking care of the kids.

Earl Warren:

Chasing around with other fellows he said, didn’t he?

Roy R. Barrera:

That she was going out and not taking —

Earl Warren:

Is that all he said?

Roy R. Barrera:

At that particular time that all that he —

Earl Warren:

— (Voice Overlap) well, didn’t he in his statement also say that she was chasing around with other fellows?

Roy R. Barrera:

That she was going to dances but I’m going to refer the Court again to this 183 what he thought of her dancing.

I asked in this question as to whether she had — he had seen his wife with Natividad Castilleja.

“You didn’t have an idea that that was your wife dancing with Castilleja?”

“Sure it was.

I wasn’t too sure.

I wanted to make everything sure.”

“You just can’t see?”

“You just can’t when you see your wife and you can’t tell him with a guy.

You can’t tell him why I’m going to knock the block off of him.

I’ve got to find out.”

“Then you weren’t sure that was your wife at that time?”

”Yes, I was sure it was my wife.

I saw it when she climbed those steps.”

Roy R. Barrera:

“Then you did know it was you wife, he was sure it was your wife.”

“Didn’t you?”

And answer, “She was dancing with a man.”

“Why didn’t you do anything about it at that time?”

“Well, I didn’t.

Well, I wasn’t sure like I tell you.”

“Sure of what?”

“Well, that she was going around with him or anything like that.

I had to find out.”

“She was dancing with him,” is the question.

Answer, “Well, that don’t mean nothing.”

Question, “That doesn’t mean anything, does it?”

Answer, “No.”

Question, “If she was dancing with these other fellows that doesn’t mean anything either?”

Answer, “A lot of times, I used to take her down to the dance hall to dance because I didn’t dance, I was that good to her.”

Question, “The fact that you dance with other people occasionally, that doesn’t exactly mean that there’s anything wrong either, does it?”

Answer, “Not exactly, it depends.”

Question, “So when you saw your wife dance with Castilleja, if you saw her.”

“I did saw her.”

“Then they weren’t doing anything wrong, were they?”

“No, not dancing.”

“I see.

Well, did you ever see them doing anything wrong?”

“Well, not exactly except that night when I saw them there, the last night I saw them there.”

“And that’s the night you told us in detail here about in your confession.”

“Well.”

Question, “Is that right?”

“Yes.”

“And that’s the same night that you failed to tell us anything about Castilleja kissing your wife.”

“Well, I didn’t told you, I just didn’t remember.”

Roy R. Barrera:

Then, he again, goes into the question as to why did you kill your wife?

Isn’t that why you killed your wife?

Because she was kissing Castilleja up on he’s having — now made the statement in open court that that was the reason.

He says, “In a way, yes, sir.

And she wasn’t taking care of the kids either.”

Now —

Earl Warren:

But he says up there a little are there like, “I told you, if I had had a camera and waited a little longer, it would have been a different story.

I would have brought the picture and showed it to you.

Roy R. Barrera:

Yes.

Now, in the confession, I asked him and in — during the time that he was on the stand, I asked him why didn’t he tell us about these things, about the kissing, and about what he thought that was going to happen and what they were going to do and he says if I did — “I know I didn’t tell you if I had told you, I know that you wouldn’t have put it in there.”

Now that isn’t specific question and answer form.

Earl Warren:

Yes, but there — there’s something you left out there.

You said, “Like I told you, if I had had a camera and waited a little longer, if you would have — it would have been a different story.

I would’ve brought the picture and showed it to you.”

“Isn’t that why you killed your wife?”

“What?”

“Isn’t that why killed your wife because she was kissing Castilleja?”

Roy R. Barrera:

Castilleja.

Earl Warren:

“In a way, yes, sir.

And she wasn’t taking care of the kids either.”

Roy R. Barrera:

And yet, you forgot to tell us in that confession.

Earl Warren:

Yes, but he did tell you that, though.

Roy R. Barrera:

Oh, not — this he said — this is his testimony in Court, if it please the Court.

And not —

Earl Warren:

Oh, yes.

Roy R. Barrera:

— during the — the taking of the confession.

Earl Warren:

Yes.

Roy R. Barrera:

— and that’s why I inquired him as to why he had left that out.

Now —

Hugo L. Black:

Mr. Barrera —

Roy R. Barrera:

Yes.

Hugo L. Black:

— accorded the relevance of the question.

You asked Justice Frankfurter in hearing on this appeal of the brief of the petitioner.

Are you asked during the trial what (Inaudible)

Have you ever had — you ever felt that way?

And have you ever had any dangers of it just when you brought out — just when you brought out between what — what was the relevance of that?

Roy R. Barrera:

The —

Hugo L. Black:

How to fix the problem.

Roy R. Barrera:

The irrelevancy at that particular point which I have a — a sense determined maybe inadmissible but still, the purpose that I had in mind at that time was to show the jury that before his testimony with respect to what he had stated was not biased or prejudiced in any way by the fact that he may have been in love with her or she in love with him on the —

Hugo L. Black:

What about the other cases?

Roy R. Barrera:

The — again, the specific —

Hugo L. Black:

Yes.

Roy R. Barrera:

— question of the date, Your Honor, is a question of interpretation.

What is meant actually when you ask a person, do you have a date with someone?

Whether that —

Hugo L. Black:

But it would seem that that — it would seem to one degree that what she was trying to do was to show that there has been no intimate relation here and that was plain purpose of what you had to testify before the jury.

Roy R. Barrera:

Well, again it’s just a question of the interpretation of the word “date” as to whether he had ever taken her out —

Hugo L. Black:

Date and love —

Roy R. Barrera:

— anywhere.

Hugo L. Black:

— date and love now in Texas as I’ve to assume and probably that if a defendant decides to murder as a man who kills — killing a man were describe in a car in a moment that if it appears before the jury that the man had been going out with her and having intercourse with her it would likely have a pretty heavy influence on the jury, doesn’t it?

Roy R. Barrera:

If it was admissible to begin with, certainly it would, Your Honor.

Hugo L. Black:

Would it be admissible, if it’s admissible they had to offer evidence to show that the man might have acted under the heat of passion.

Roy R. Barrera:

Only if he knew of the things which he saw to corroborate by having that testimony come in.

If he had no knowledge of them, then they could not and would not have affected his state of mind.

Hugo L. Black:

But suppose he stated on the stand that he did have knowledge and he suspect — been waiting for here and there he found them, could that have been the testimony to show that you might appeal as the heat of passion?

Roy R. Barrera:

Yes, it would but again, this record does not reflect that he ever said that he knew that there was anything wrong or even suspected that until such time as he took the stand there.

And when he made those statements to the Court but even at that, he says he didn’t think that there was anything wrong.There was nothing wrong in dancing.

Hugo L. Black:

Well —

Roy R. Barrera:

I had never seen —

Hugo L. Black:

— (Voice Overlap)

Roy R. Barrera:

— anything wrong.

Hugo L. Black:

That’s (Inaudible)

Roy R. Barrera:

In other words, that he had never seen anything wrong —

Hugo L. Black:

I know what the man saying is, he never seen anything wrong with his wife dancing, drawing an inference from that, that he wouldn’t get mad if he saw — when he said he saw it here —

Roy R. Barrera:

Yes.

Hugo L. Black:

— by a man who had done, what the man have already have done.

Roy R. Barrera:

Yes.

But there again, the question that Mr. Semaan called the Court’s attention to with respect to Castilleja denying that he had kissed this woman, that question was not even asked of him by the defense attorney.

There was never any denial on the part of —

Hugo L. Black:

But he feels that —

Roy R. Barrera:

— of Castilleja.

Hugo L. Black:

— he had an intercourse with her —

Roy R. Barrera:

Yes.

Hugo L. Black:

— when you asked him the question.

Roy R. Barrera:

Yes, I certainly did Your Honor and I never —

Hugo L. Black:

And he knew that if that came out it occurred in the haste didn’t he?

Roy R. Barrera:

I knew that it could not come out under our Texas law and it was inadmissible in the fact that he did not know it which was reflected to me by the confession which he had given to us that he did not know that.

Felix Frankfurter:

May I ask if these questions and answer was set forth by your presiding Judge Morrison, at what stage — where in the record did you ask these questions?

Roy R. Barrera:

Just before I turned Castilleja over for cross-examination — or on direct.

Felix Frankfurter:

And that as before Alcorta — Alcorta accepted to stand.

Roy R. Barrera:

That’s correct.

Felix Frankfurter:

And you worked with him as a witness, did you not?

Roy R. Barrera:

Castilleja, yes I did.

Felix Frankfurter:

And these questions were elicited by you on the direct examination of a witness for the State.

Roy R. Barrera:

That’s correct.

Felix Frankfurter:

And the answers that he gave you, if I heard right a minute ago, that you knew were not true, were they?

Roy R. Barrera:

No, Your Honor, the —

Felix Frankfurter:

You were — you were saying that — that the knowledge that you had of Castilleja’s relations with the woman that he’s going to (Inaudible) “Were you in love with her?”

“Was she in love with you?”

“Have you ever talked about love?”

Felix Frankfurter:

“Had you ever had any dates with her other than to take her home?”

“No.”

You would say that they were not false in light of the knowledge that you have of his relations with the woman?”

Roy R. Barrera:

Again, it goes to the interpretation of the word love and whether it — when you say love, you mean intercourse, why then certainly, they would be false.

Felix Frankfurter:

Well, you —

Roy R. Barrera:

But you have a 19-year-old boy there with a married woman with two children.

Now, whether he was in love with her as he could have and did have intercourse with her and still, it’s — it was his contention that he was not in love with the woman.

Felix Frankfurter:

But he should have.

Let me ask you this question.

These questions can be answered — just were made be to be perhaps.

Did they or did they not leave the minds of the jury insofar as this witness concerned and he is the one who would know more about it than anybody else, that his relation with this woman were innocent relationship?

Isn’t that the sum total?

That they had known that they were — that there — that there was no amorous relation between them.

Roy R. Barrera:

That they did not love each other, yes.

Felix Frankfurter:

Well, I — he says very well and I will submit that what love is in here, has many meanings but will you be good enough to answer the question whether the questions and answers they’re proposing by Judge Morrison, did they or did they not?

Assume you’re tendering him as — as a witness tell the jury on his testimony.

He tells the jury he did not have amorous relation with this woman.

Roy R. Barrera:

The Judge, there’s nothing in there about amorous relations.

That’s — that’s what — the point that I’m trying to leave which the Court and make and that is that he was not asked whether he had sexual relations or —

Felix Frankfurter:

I know what —

Roy R. Barrera:

— love relations.

Felix Frankfurter:

— it’s not.

But what — what was conveyed to those — have you got women on the jury down there?

What was —

Roy R. Barrera:

We do now, judges.

Felix Frankfurter:

What was — when the trial was on, what was left in the minds of those 12 people sitting on the jury box that his relations with this woman were what in the point of view is sexual immorality who are innocent, is that right?

Roy R. Barrera:

Well, I would suppose that they would, Your Honor.

Again, if you attach the — the intercourse to the love.

Felix Frankfurter:

Well, I’m not now deciding whether intercourse or it implies —

Roy R. Barrera:

Yes.

Felix Frankfurter:

— the roles and expression of the kind of feeling that we call love.

Roy R. Barrera:

Yes.

Felix Frankfurter:

But what was it not the fact that the impression was left or was bound to be left that his relations were innocent in the sense in which I use the word innocence.

Roy R. Barrera:

Yes, in the sense in which you — you use it.

Certainly the Court is correct.

Felix Frankfurter:

But that’s the crucial sense in this controversy isn’t it, namely, that he did not have relations with a woman calculated to stir the passion of a husband.

Roy R. Barrera:

There wasn’t a controversy as to just what our Court did or did not see there on that particular night —

Felix Frankfurter:

I’m not saying that.

Roy R. Barrera:

— if it please the Court.

Felix Frankfurter:

But I — I’m — I must press you to ask, what — what the — what work of these question was and what it is that the questions and the answers that the questions elicited.

What it is that was left in the minds of the jurors.

Was it or was it not with his relation with his wife were innocent relation.

Roy R. Barrera:

I would imagine so, Your Honor, (Voice Overlap) —

Earl Warren:

But if you — did you ask him on the stand whether he was kissing and embracing?

Roy R. Barrera:

No, Your Honor.

Earl Warren:

You didn’t.

Why didn’t you ask him that?

Roy R. Barrera:

The —

Earl Warren:

The defendant testified that — that they were —

Roy R. Barrera:

Well it comes —

Earl Warren:

— doing that.

Why didn’t controvert that?

Roy R. Barrera:

Castilleja had testified before the defendant took the stand.

When the defendant took the stand, that’s when he brought out for the first time —

Earl Warren:

Yes.

Roy R. Barrera:

— that there was kissing and what he had purportedly seen there in the automobile.

Earl Warren:

Would that — would that stop you from — from putting in one in redirect and putting them on —

Roy R. Barrera:

No.

It —

Earl Warren:

— and move on?

Roy R. Barrera:

— certainly would not.

I didn’t particularly feel that the point was important enough to bring him back to refute that or not refute it.

I felt —

Earl Warren:

In other words, when you have — when you have two different kinds of murder.

Murder with malice and murder without malice, you thought that it made no difference in your case whether a man just fired who was killing his wife found her kissing and embracing another man in his automobile on the public street at 1 o’clock in the morning.

Roy R. Barrera:

Not with the prior threats that we had in this case which the record as rampant with, as to what he would have done and I dare say under the facts in this case and under the threats which he had made when he’s — even states in the record that he had no idea that she was out there with anyone, that the threats having been made immediately before as to what they were going to read in the paper about him Monday, long before he went there, that is, that same night that he was going there with one purpose in mind that was to kill her, whether he had found her with Castilleja or by herself.

Earl Warren:

Did you — did you bring out by your questioning the fact that he stopped there because his carburetor was — was not working and his car occasionally stopped?

Was it your questioning had brought that out?

Roy R. Barrera:

Yes, it came out this way.

He arrived there to leave the girl home.

At that time, his motor stopped.

Earl Warren:

Yes.

Roy R. Barrera:

Now, he was right there and he turned his lights out so that he could again start his automobile at which time she was in the process of getting out of the automobile.

Earl Warren:

And did you bring out by your questioning the fact that what they were talking about was her going to church the next day?

Roy R. Barrera:

That is correct.

Earl Warren:

And, of course, I suppose you did that.

It impressed upon the jury that it was a perfectly platonic affair that there was nothing wrong that they were thinking of their church and they’ve got —

Roy R. Barrera:

That was —

Earl Warren:

— other than anything essential?

Roy R. Barrera:

— a part of the writ’s just stay immediately preceeding these facts that have just taken place which were certainly relevant as to what the parties were doing at that particular time.

William J. Brennan, Jr.:

Well, Mr. Barrera may I — may I ask, you knew when you asked these series of questions as I understand it that these illicit acts or several of what he’s told you about had occurred according to him in his automobile at various places.

Roy R. Barrera:

Yes.

William J. Brennan, Jr.:

You knew that when you asked these questions.

Roy R. Barrera:

That is correct.

William J. Brennan, Jr.:

Well now, beginning those questions in which that he talked about love and so forth.

What about these two questions?

“Had you ever had any dates with her other than to take her home?

No, well just when I brought her from there.

Just when you brought her from work?

Yes.

William J. Brennan, Jr.:

Now, was it the plain implication of that had been to contend the jury to understand that the only times he had her in the automobile were those times when he took her home.

Roy R. Barrera:

Was when he brought her from work, yes.

William J. Brennan, Jr.:

Well, then you already knew that that’s not the fact that he had had her in the automobile on several occasions when according to him as he had told you.

Roy R. Barrera:

Yes.

William J. Brennan, Jr.:

He had had illicit relations.

Roy R. Barrera:

He had told me that he had intercourse with this girl when he brought her from work in the automobile and it’s not in the record anywhere that he stopped in front of the house and had relations with her.

William J. Brennan, Jr.:

Oh, but you —

Roy R. Barrera:

I don’t —

William J. Brennan, Jr.:

— don’t you with that knowledge, how could he possibly not have appreciated that his answers to these questions were false if you were there?

Roy R. Barrera:

The materiality of the question and answer there at that particular point is what —

William J. Brennan, Jr.:

That’s not my question.

My question is obviously, he wasn’t telling the truth, to your knowledge he wasn’t telling the truth when he said that he’s never had any dates with her and the only time he’d ever had her in the automobile was to drive her home from work.

Roy R. Barrera:

Not just to drive her home from work.

The only dates that he had with her, was when he brought her home from work, “just when I brought her from there.”

William J. Brennan, Jr.:

But your question was, had you ever had any dates with her other than to take her home?

Roy R. Barrera:

Yes.

William J. Brennan, Jr.:

No, well just when I brought her from there.

Just when you brought her from work?

Yes.

That was your question, just when you brought her from work.

Roy R. Barrera:

That’s correct.

Tom C. Clark:

Mr. Barrera, if I remember when the — had he had intercourse with her when he was supposed to take her home today from her work?

Roy R. Barrera:

That’s correct.

Tom C. Clark:

Isn’t it true that he testified that — that occurred in a vacant lot —

Roy R. Barrera:

In the —

Tom C. Clark:

— near his house.

Roy R. Barrera:

— in the automobile, that’s correct.

Tom C. Clark:

Near his house.

Roy R. Barrera:

That’s right.

Tom C. Clark:

Not in her house.

Roy R. Barrera:

No.

Tom C. Clark:

Will you construe that to mean that they were on their way from work.

Roy R. Barrera:

Well, he lived about a block from her house.

Tom C. Clark:

Don’t you think that left with a rather — that Justice Brennan indicated and explained that connotation is no less than to leave the impression with the jury that he was just — was carrying them back and forth from work?

Roy R. Barrera:

The thing that was foremost in my mind, if it please the Court, is the fact that Alcorta, not having known about it, therefore, if they were and certainly they were that it was inadmissible and immaterial to his reasons for having killed her.

Tom C. Clark:

Well, that’s true but if you were to prosecute her or would — for fairness, did you not, Alcorta?

You aren’t supposed to persecute him, you were supposed to be fair with him.

Roy R. Barrera:

That’s correct.

Tom C. Clark:

But do you think it was fair for you to leave an impression with the jury that this man whom you knew had had a series of absolute (Inaudible) and not taking her just home from work but had taken her via a vacant lot, at his house before he took her home is that —

Roy R. Barrera:

The dilemma that the state was in at the time if it please the Court was had — had we sought to introduce these acts of intercourse as a motive so to speak that we would have been reversed.

Because again, the crux of it being that not having known about him that we could not either attach him to him as a motive nor could we permit him to come in and use it to mitigate or to minimize the offense that had the State introduce that, it would have been just as inadmissible for us.

Tom C. Clark:

So, I can understand that.

I’m talking about your action in asking these questions.

I can see why you wouldn’t give a statement that he had made from the other side possibly although most (Inaudible) but where you take a statement and you know and you provide the statement is (Inaudible) as you did here and put one in the file and another in the summary section of the file.

And you knew one of these acts and still you asked him a question at least the impression with the jury his answer there that all he did was to run from work to whom each time when you know that’s not true yourself.

Roy R. Barrera:

Again, yes.

We are assuming that the defense had found out what you knew at the time you we’re conducting, you’re direct supposing they find out that the facts were before the case that they have called Castilleja —

Roy R. Barrera:

Castilleja.

— as their own witness.

Roy R. Barrera:

Yes.

Do you think you could’ve successfully objected to his testimony and in the basis of your questions to a minor case?

Roy R. Barrera:

I believe that I certainly could Your Honor because again the — the immateriality of it was directed at his lack of knowledge of it, that is, the immateriality of it.

In the basis of you’re questions?

Roy R. Barrera:

He could — yes, he could have corroborated only his kissing, he could have corroborated the dancing which he said was the reason that he killed her or — or that is that she was kissing Castilleja and not taking care of the children and he could not go beyond that to corroborate anything because it was not in his mind it could not have affected it.

Earl Warren:

Mr. Barrera though we have Mr. Castilleja said that he was just taking her home —

Roy R. Barrera:

Yes.

Earl Warren:

And left the impression with the jury that the relationship was perfectly platonic was doing nothing wrong with it.

Now, Mr. — the defendant, just comes along and testifies that he looked into the car and he saw them kissing and embracing.

Now, whether he had any — any knowledge, personal knowledge of intimate relationships before, would it not have been proper cross examination of Mr. Castilleja to ask him if he had had intercourse with this — with this young woman because if he had, wouldn’t there’ve been a greater probability that the defendant was telling the truth as to their kissing in that car than if there had been no sexual relations at all between the two?

Roy R. Barrera:

Castilleja was never asked a direct question by the defense attorney as to what they have been doing there.

Roy R. Barrera:

There was no dispute, no particular issue made with respect to the kissing or the non-kissing in the automobile, in fact accepting it as a fact on the part of the State that’s why we predicated the question isn’t that why you killed your wife because she was kissing Casitlleja.

That’s when he said yes and because she was not taking care of the children.

Earl Warren:

It may have been that he also — that he also claimed that in some place in the record that he saw them kissing and embracing and he thought something else was going to happen?

Roy R. Barrera:

Yes.

Earl Warren:

He did say that?

Roy R. Barrera:

Yes.

Earl Warren:

And, of course, that would lead you to a conclusion but one conclusion, wouldn’t it?

Roy R. Barrera:

Yes.

Said where —

Earl Warren:

So, wouldn’t the fact that they had had such relations on prior occasions, give some cravings to the fact that they might be doing something there which would indicate to his mind that they were about to do something else?

Roy R. Barrera:

Yes, Your Honor but —

Earl Warren:

And why would you keep that from — keep that information from them so they — so that they couldn’t use it —

Roy R. Barrera:

But we didn’t —

Earl Warren:

— against the defense?

Roy R. Barrera:

— we didn’t even have the slightest indication on their part as to the fact that they even intended to use anything on the love making, in fact their defense was directed at the throwing of a rock.

Now, when Castilleja was on the stand, he was not asked about kissing.

He was not asked about hugging.

He was asked a few, if any questions by the defense attorney.

Earl Warren:

But don’t you think that the easiest way this people could’ve had their — had the jury bring in a — a hanging verdict against this defendant would’ve been to ask if his wife was not having sexual relations with this man after you had proven that this good Samaritan was just taking her home and they were sitting in the car talking about church?

Roy R. Barrera:

They — there was testimony in there that he had danced with her immediately before and that he had taken home on that occasion, and other occasions from work and from other places where he had met her.

Felix Frankfurter:

Mr. Barrera, If you put to your mind the difficulty with this case differently I see it that’s your problem.

I quite understand your — the bigger problem of the issue namely, that fact is not known to a person who commits homicide are not admissible to prove that the homicide is murder.

If he didn’t know it, the argument is in those cases if he could — he couldn’t say that he was in play as to that probability.

Roy R. Barrera:

As the result of that knowledge, yes, sir.

Felix Frankfurter:

A result of that note —

Roy R. Barrera:

Yes.

Felix Frankfurter:

The knowledge was — if he didn’t have knowledge, you can’t predicate a — a motion based on that.

Roy R. Barrera:

That’s correct.

Felix Frankfurter:

I quite understand that, but the difficulty here is that Castilleja was (Inaudible)

You put him on the stand before you knew about what — of course to be of what’s certain.

Felix Frankfurter:

Certainly before you do what he’s going to — nothing that came out of his mouth on the record, that came out as a result of your questioning.

And you asked him questions which are repeated, could have left no other impression on the jury’s mind than the man in the room the victim was involved had innocence, that it was only platonic relations, is that right?

Roy R. Barrera:

That’s correct.

Felix Frankfurter:

At the time that you knew that the relation has not been platonic you tended the witness, you got him to testify and therefore affect the mind of the jury that the relation was one thing, what you knew very well at the time, that was something to be off.

Roy R. Barrera:

Well it’s —

Felix Frankfurter:

So, that all the — all the problems that arise out of the irrelevant — of his none-knowledge or the fact that he couldn’t do at the beginning of your argument that he had resolved to kill her —

Roy R. Barrera:

That’s correct.

Felix Frankfurter:

— et cetera.

Already is irrelevant to the issue.

I put it to your view.

All that is irrelevant to the fact that you put a witness of yours down the witness stand and got him to testify for all practical purposes to the jury listening to this man you knew he must have been interested or effective to the defendant himself.

He was the most important witness, wasn’t he?

Roy R. Barrera:

Yes he was.

Felix Frankfurter:

And for all practical purposes, the questions and answer with Judge Morrison that set forth in his opinion are exactly the same as though you’d turned this (Inaudible) Castilleja.

Did you not on your relations with this woman innocent and he would’ve said yes, that’s not the issue with this question and answers amount to.

That isn’t the question you put.

You didn’t ask him in those words but the question you asked and then answer he gave add up to saying “my relation to this woman was –”.

Roy R. Barrera:

Well —

Mr. —

Felix Frankfurter:

Well, that’s what the jury got, although, at that time you knew, the opposite was the truth, was that a clear statement?

Roy R. Barrera:

Well, again if it please the Court.

It goes to the interpretation of the — the word love as such.

Felix Frankfurter:

But if you take the whole sum total, one question after another calculated could it be any other impression could the jury hearing that have drawn any other possible interest except that their relation was not what we had then, could they?

Roy R. Barrera:

Under that particular situation possibly not Your Honor —

Felix Frankfurter:

All right.

Roy R. Barrera:

If it please the Court.

How long had you been —

Hugo L. Black:

What statements have you made Mr. Barrera?

Roy R. Barrera:

I’m sorry?

Hugo L. Black:

I said, what statement have you made about being irrelevant in the next conviction as you reverted, if the State approved the reason the man who killed the woman, the man had been held in accordance why (Inaudible)

Roy R. Barrera:

We have a —

Hugo L. Black:

And the man did it because — because the theory was most of the men would sleep with his wife?

Roy R. Barrera:

No, not in —

Hugo L. Black:

I had — I had an idea, that was what you should have defended properly than Texas have decided.

Roy R. Barrera:

We have a case Your Honor in which that situation, the role is not certainly under that particular or set of circumstances where — where the State went in as — as seeking to attach a motive to the defendant for having killed the deceased that a certain — in other words the daughter here had conveyed to — the wife had conveyed to the defendant, her husband, that she had been outraged and where the State sought to go in and show more on that to attach a motive to him, the case was reversed for that proposition there that the man not having known about it that the State was trying to going in and give the man a motive for having committed the homicide which the man could not have had because he had no knowledge of those facts.

Hugo L. Black:

As a matter of practicality, you knew that and to that extent to know (Inaudible) that have you had these questions about the contrary that if it — the jury there knew if this (Inaudible) his wife had killed him, you to have practically no chance in the world for conviction.

Roy R. Barrera:

If the — in my mind and if under the cases which I was surprised of the time, Your Honor, if I felt that the testimony was material and admissible, certainly it would have gone in then.

Hugo L. Black:

I’m talking about practicality.

Did you not know then and do you not know now the evidence that come out as you knew you had the (Inaudible) association.

The evidence that come out if this man had been (Inaudible) you just wouldn’t have had any chance to convict him of murder.

Roy R. Barrera:

That maybe so.

Absolutely.

Hugo L. Black:

It is, isn’t it —

Roy R. Barrera:

Yes.

Hugo L. Black:

— that in that event, you knew then?

Roy R. Barrera:

Under those circumstances, actually.

William J. Brennan, Jr.:

Mr. Barrera, (Inaudible)

You had questions whether if those questions were admissible that they were not objected.

Roy R. Barrera:

Not at that particular point, Your Honor, on reflection, I questioned the admissibility —

William J. Brennan, Jr.:

(Inaudible)

Roy R. Barrera:

Bias prejudice, yes.

William J. Brennan, Jr.:

And you wanted to show that it was not binding?

Roy R. Barrera:

That’s correct.

William J. Brennan, Jr.:

(Inaudible)

Roy R. Barrera:

It would have but had again —

William J. Brennan, Jr.:

(Inaudible)

Roy R. Barrera:

At that particular point had — that question have been asked by the State, daresay if that was not there — defense at that time, it would have been a rather merciful act.

Hugo L. Black:

What is the inference attached (Inaudible)

Roy R. Barrera:

I don’t know what the defense attorney would have objected to.

The only thing that we would have to decide — us, would be the — the cases as we read them and indicating that attached to that money motive which we weren’t sure that he knew, when in fact, in the confession he gave no indication that he knew that.

Hugo L. Black:

(Inaudible)

Roy R. Barrera:

Yes.

William J. Brennan, Jr.:

And you were not objecting to the (Inaudible) the consequence that they were all (Inaudible)

Roy R. Barrera:

That’s correct.

William J. Brennan, Jr.:

And you also say that the question on whether there had been an illicit relation of his wife (Inaudible)

Roy R. Barrera:

Well —

William J. Brennan, Jr.:

(Inaudible)

Roy R. Barrera:

That’s correct.

William J. Brennan, Jr.:

And that’s not —

Roy R. Barrera:

No, I did not.

Mr. Barrera, how long had you been persecuting in the prosecutor’s office when you tried this case?

Roy R. Barrera:

At that particular point — I see, this was in — about four years.

About four years?

Roy R. Barrera:

Yes.

I had been in the District Attorney’s Office about four years.

I had there been prosecuting, I believe, about two years.

When did you get out of law school?

Roy R. Barrera:

1951.

I would like to with the Court’s permission refer the balance of my time to my co-counsel here.

Earl Warren:

You may, Mr. Barrera.

Mr. Green.

Hubert W. Green, Jr.:

May it please the Court.

First thing I’d like to do would be to answer some of the questions that were asked here a moment ago and to clear up some of the impressions that perhaps were left as to the record as to Mr. Justice Brennan’s questions and Mr. Justice Clark’s questions.

The question that was asked by Mr. Barrera was as to the number of dates that the witness had with the deceased Herlinda, and he said, “I had dates on the occasions that I brought her home,” and that’s correct, that is truthful.

And so the thing that I’d like to make at the very outset is that we don’t feel and we have never felt that the petitioner in this case has convicted the witness of perjury to begin with.

In other words, in order to have subornation of perjury in order to knowingly use perjury by the prosecutor, there must be showing of untruth.

And when he answered that, he answered truthfully.

The dates that I had, “I had no dates other than when I took her home,” and that’s exactly what he said and that’s what he testified too, later.

Even as to these — as he said three or four — or four or five or five or six, occasions of intercourse.

He said those occurred on those occasions and you’ll notice here in the record when Mr. Semaan was questioning the man.

Earl Warren:

One of them in front of his house.

Hubert W. Green, Jr.:

Sir?

Earl Warren:

One of them in front of his house.

Hubert W. Green, Jr.:

Yes, sir.

Earl Warren:

Not her.

Hubert W. Green, Jr.:

Yes, sir.

Earl Warren:

Was this on the way home?

Hubert W. Green, Jr.:

Yes.

That the occasion in which he took her home.

In other words, his answer was, “I had no dates other than the occasion when I took her home,” you see and we just don’t feel that that answer proves perjury upon his part because those are the occasion the occasions when he took her home.

In other words, he didn’t picked her up and — and go to X night club or he didn’t pick her up and go somewhere else.

He testified of the occasions, that is, for instance on the night of the homicide when he found her walking by the street and picked her up and carried her home and on another occasions when he brought her home from work.

You see, he testified to those occasion when he took her home.

In other words, he had no date in the sense that he would go and pick her up at her home and take her out somewhere as –as anyone might understand in the meaning of a date, in that sense.

You’re forcing it —

Hubert W. Green, Jr.:

So, it was on the occasions that he took her home.

(Voice Overlap) —

Hubert W. Green, Jr.:

Yes, Your Honor.

The answers are not the jury’s or was he misleading?

Hubert W. Green, Jr.:

Sir?

No, sir, because it was clearly stated.

“I had no dates other than when I took her home.”

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

All right, sir.

May I — I would like very much for you to take it as a whole and that was my very next point and that is to say that when you are looking at this language of Natividad Castilleja you must look at his entire testimony not just those two or three of four questions that wound up his direct examination.

Look at his entire testimony and when you look at his entire testimony, I don’t think you’ll find or I don’t think you’ll reach that conclusion.

I don’t think it is a reasonable conclusion to the extent that the man has perjured himself willfully and falsely, told an untruth under oath because I think a fair examination of his entire testimony illustrates the very things that the defendant himself testified to.

The defendant said, “Well, I saw him dancing at this place.”

He said, “Yes, I was there.

She was there with the family.

Hubert W. Green, Jr.:

I danced with her.

Other man danced with her.

I danced and then left and saw here later” you see.

Charles E. Whittaker:

What is your concept of irrelevance of the questions set forth by Judge Morrison?

Hubert W. Green, Jr.:

Of the what, sir?

I didn’t understand.

Charles E. Whittaker:

The relevance — the relevance —

Hubert W. Green, Jr.:

Of the relevance.

Charles E. Whittaker:

— through the case.

Hubert W. Green, Jr.:

Well, frankly I don’t know except as the prosecutor has indicated that as is the last question or two there to indicate this particular witness had no bias to bear against the defendant that he was telling the truth as to what he said and I think the record demonstrates clearly that he did.

Do just that.

Charles E. Whittaker:

Did he tell the truth?

Hubert W. Green, Jr.:

Yes, sir.

He testified that he told the truth on the writ hearing.

He presents that in a number of instances.

“Did you tell the truth?”

“Yes, I did.”

“Well, why didn’t you go into these sexual relations?”

“It’s quite simple.

I wasn’t asked the question,” that’s his answer repeatedly in there.

Well, and he was questioned in this very point by Mr. Semaan.

Well, you said that — that you didn’t have any dates with her, how about that or weren’t you perjuring yourself?

And he says, “No, I didn’t have any dates other than these occasions when I took her home.”

You see, and gives an explanation about that.

Certainly in his own mind, he knows that he’s telling the truth.

Hugo L. Black:

But that was a — that was a joint undertaking of the testimony.

Hubert W. Green, Jr.:

Sir?

Hugo L. Black:

That was a joint undertaking was an — an undertaking on the part of the witness and undertaking on the part of the prosecutor’s attorney.

Hubert W. Green, Jr.:

You mean on the writ hearing?

I don’t understand you, sir.

Hugo L. Black:

Both I mean that when these questions were asked, there was a joint enterprise.

The witness wants to testify to prosecuting attorney who was asking the questions, objective of that which bring truth to the jury and not deception.

Hubert W. Green, Jr.:

Yes, sir.

And I —

Hugo L. Black:

In your judgment —

Hubert W. Green, Jr.:

— think that’s what they did.

Hugo L. Black:

— in your judgment it is fair in the prosecution of the prosecuting attorney to ask questions believing the impression, knowing it fully that has no by — nothing between them that at the time (Inaudible) and the prosecuting attorney knows that that is false.

Hubert W. Green, Jr.:

I agree with you, sir.

But I don’t believe it was done in this case and I don’t believe the record will demonstrate that when the record is read as a whole, not just an isolated question.

Hugo L. Black:

The prosecuting attorneys, of course, do not always simply go by the letter of the point in a word.

Here there was an issue that he thought your prosecuting — your assistant rolled in and try to show a kind of a nice relationship between these points.

Hubert W. Green, Jr.:

Well —

Hugo L. Black:

— and he knew that if there wasn’t that kind of relationship —

Hubert W. Green, Jr.:

And the evidence, may I submit respectfully, Mr. Justice Black, the evidence as a whole does not show that.

The evidence as a whole does not show that relationship that it was innocent and they didn’t desire, that is, to say that the deceased was entirely innocent or that —

Hugo L. Black:

(Inaudible)

Hubert W. Green, Jr.:

— she was a virtuous woman, you see.

Hugo L. Black:

Yes.

(Voice Overlap) —

Hubert W. Green, Jr.:

— when you take it all as a whole.

Hugo L. Black:

You have, of course, the beyond — you the beyond.

We have a number of cases like the (Inaudible) that the prosecuting attorney cannot take unfair (Inaudible) with knowledge on his part that they are wrong impressions left upon which man is lying before this.

Hubert W. Green, Jr.:

Yes sir.

Hugo L. Black:

And here it is possible to that knowledge that these questions were asked to leave an impression in the jury that there was an innocent relationship between these people when the prosecuting attorney knew that there was not?

Hubert W. Green, Jr.:

I don’t think that the jury in sitting on this case and listening to all of the evidence not an isolated set of questions one or two or three questions listening to all of the evidence about the background between the defendant and his wife and his troubles with her, uncontested troubles that she was at that they were separated for 10 months, that’s true, they were separated for 10 months.

Whether she was taking care of the kids or not, we don’t know, we couldn’t contest that, but the things that he testified to, that they were dancing, that he had seen her with other men, were all admitted.

They were true.

The witness Castilleja had testified to that and all the other witnesses brought that out, you see.

There wasn’t any question but what the jury had the impression that here was a woman who was separated that she’s been going with men from time to time and here’s a young 19-year-old boy that she was going home with, you see.

Hugo L. Black:

Didn’t the jury have this idea there was sexual relationship?

Hubert W. Green, Jr.:

No sir.

I don’t see that the jury had the impression that there was sexual relation.

I say that the jury could not have had the impression that she was entirely virtuous and that the relation between a 19-year-old unmarried man and a — and a mother of two or three children here, under the circumstances and separation, all of that, that was — that was an entirely platonic relation or that the deceased –-

Hugo L. Black:

They could continue if they had lead the answer to the question that he had approve with.

It only takes a home to obtain the work and in those occasions taking directly home than on this particular occasion, the carburetor gave them trouble and they need to stop on the purpose of a mere discussion of going to church, couldn’t the jury very well had known under those circumstances nothing wrong about it and that it was of a worse crime than ever for the husband.

Hubert W. Green, Jr.:

Again, yes sir — again, Your Honor, if that were taken alone, however, you raised the question about the car stopping and the carburetor.

The defendant himself testified that the car started up, that the door was opened just as she was getting out when he jumped in and started stabbing her, and as a matter of fact, when he tugged over the car and drove off, the door was still open.

In other words, his wife was in the act of getting out of the car by his own testimony.

The door was open when he jumped in.

Earl Warren:

That would (Voice Overlap) —

Hubert W. Green, Jr.:

The car was in motion —

Earl Warren:

The place in the record where he says she was getting out.

Hubert W. Green, Jr.:

No, sir.

That is the conclusion —

Earl Warren:

Well —

Hubert W. Green, Jr.:

— from the door was open and the legs were out.

Earl Warren:

You did say she was getting out.

Well I just want to —

Hubert W. Green, Jr.:

Yes, sir.

Earl Warren:

— know if the record —

Hubert W. Green, Jr.:

Yes, sir.

Well, let me correct that by saying that I think that is fair inference to draw from his testimony —

Felix Frankfurter:

(Inaudible)

Hubert W. Green, Jr.:

— at the trial and on the confession, yes sir.

Felix Frankfurter:

May I ask you of, apart from the interpretation of this colloquy — the colloquy between Mr. Barrera and the witness as you referred to (Inaudible), are you submitting to the Court any questions about local Texas law, which concludes relief by this Court and this record assuming the Court would take a view contrary to your own on the facts?

Hubert W. Green, Jr.:

Yes, sir.

If I understand your question correctly, and that is to say that because the Court below has made specific findings of fact, that this Court under the authority of Fay versus New York, as a matter of fact, two Fay cases there with the decisions of this Court the effect that this court has no authority or really as a matter of exercising its judgment and discretion will not disturb findings of fact on disputed issues.

And yes sir, we have stated those in our brief and that has a — it’s a separate argument that we have stated.

In other words, as I understood your questioning earlier —

Felix Frankfurter:

What I want to know is, there are — if this Court, is debarred from dealing with the situation assuming the claim of misconduct or unfair conduct of the State, that this Court is debarred from dealing with the situation because under the Texas Law not yet availed of there is a mean of rectifying this under pressure?

Hubert W. Green, Jr.:

No sir, we don’t take that position.

Felix Frankfurter:

You don’t take that.

Hubert W. Green, Jr.:

We take the position that —

Felix Frankfurter:

It’s the Mooney v. Holohan problem.

Hubert W. Green, Jr.:

That’s correct.

Felix Frankfurter:

It was upon —

Hubert W. Green, Jr.:

He has had his full hearing.

He has had his full opportunity to —

Felix Frankfurter:

There’s nothing more —

Hubert W. Green, Jr.:

— make his proof.

Felix Frankfurter:

— there are no — there’s no other relief assuming he’s entitled to a relief that he can get from Texas.

Hubert W. Green, Jr.:

He’s had his — his hearing in the Court of Criminal Appeals where all of the evidence was heard and argued as it is here and the Court made the specific —

Felix Frankfurter:

It doesn’t name them.

Hubert W. Green, Jr.:

— findings.

Felix Frankfurter:

I’m talking about the second aspect of Mooney against Holohan namely and this Court said, although a State can’t do what was done in the Mooney case.

This Court had the case back and said you get your relief in — from Texas and California.

Hubert W. Green, Jr.:

Prove up your case?

Felix Frankfurter:

Yes.

Hubert W. Green, Jr.:

Yes.

Felix Frankfurter:

There’s no — there’s no such problem here.

Hubert W. Green, Jr.:

No, because the —

Felix Frankfurter:

Although, they ordered Texas to close.

Hubert W. Green, Jr.:

Because he was at no time denied his right to make proof.

He has made his proof.

Yes, sir?

Felix Frankfurter:

California contended both.

But assuming you’re against them and you say I just want to know whether you make no plain deal about — here’s the situation of all the judicial doors of Texas have closed.

And you say it should be a basis in the judgment of the Court that due process was violated.

Hubert W. Green, Jr.:

I think so, so far as — as the holdings and the findings of the Court of Criminal Appeals expressed in those opinions are concerned, yes Your Honor.

Yes, I think so.

Felix Frankfurter:

And you can talk about anything except the argument that you and Mr. Barrera made on his so-called —

Hubert W. Green, Jr.:

He has made me — he has made — had the opportunity to make his full proof.

(Inaudible)

Hubert W. Green, Jr.:

Yes sir, the highest code of —

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

Yes sir.

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

Sir, I can’t quite hear you.

Charles E. Whittaker:

Would you mind pointing out where those findings are, that were made by the Court of Criminal Appeals?

Hubert W. Green, Jr.:

Yes sir.

The findings that I am referring to are the findings found on 206 and 207.

Charles E. Whittaker:

You — you say those are findings?

Hubert W. Green, Jr.:

Yes sir.

In the sense that the Court heard all of the evidence, heard the arguments and found that the evidence was not sufficient to support his allegations.

Further, the specific — more specific findings made my Judge Morrison as to what actually was said and was not said between the witness and the prosecutor.

He says that he was advised to tell the truth at all times, right after the end — that’s right at the bottom of page 207.

Just tell the truth about such of this relationship but not volunteering the information unless he was asked.

And also, the finding at the top of page 208 by Judge Morrison, down a few lines, it was not shown that any of the answers were untrue.

In other words, you have a finding here of the Texas Court with the answers given by the witness, Castilleja, were not untrue.

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

Yes sir, there are three judges.

There are two opinions.

The first finding that I mentioned was the opinion of two judges, the third as to what was said by the prosecutor and Castilleja and that the answers were truthful, that was the finding of Judge Morrison.

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

Yes sir, separate concurring opinion.

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

Well, he wanted to elaborate on in more detail as to what their findings were.

Their finding first, generally was that the proof did not support his allegations and so he went ahead and elaborated further.

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

Well, I make this position that the — they heard the evidence, not a Mooney versus Holohan case, where it’s a question of the allegation.

Hubert W. Green, Jr.:

The allegations are sufficient.

It’s a question of the proof.

This is a factual matter.

That’s simply where it boils down to.

This Court passed on the facts and found that the facts did not sustain the allegations.

Judge Morrison went further in a separate concurring opinion to set those matters out.

Charles E. Whittaker:

(Inaudible)

Hubert W. Green, Jr.:

It is a finding and I can suggest only that it is a finding of one of the judges in a concurring opinion of the Court of Criminal Appeals.

And I submit that that is within the rule of the Fay case and other cases where findings of a trial court or an appellate court are entitled to great weight by this Court.

I don’t take the position that in a constitutional matter that the Court in all the cases is going to ignore what the findings might be and — or be bound by it in advance, certainly not.B

ut we feel in this case here that the evidence being what it is so much of it is hearsay, hearsay based on hearsay, the fact that Mr. Barrera was supposed to have been quoted in some out-of-court hearing in the Board in the matters of that saw these as certain matters.

He is basing his contentions upon that.

He is basing his contentions upon affidavits from the witness Castilleja, one of the affidavits that he quoted from here exhibit C was a matter of the very, very first affidavit that he quoted from but he did not mention the portion in the affidavit where the witness is supposed to have said, “I admit that I lied at the trial.

I was asked the question by our court with this lawyer as to whether I had intercourse and I denied it and I admit purging in substance.”

That’s what he’s supposed to have stated in one of the affidavits.

Then upon the trial, he repudiates those affidavits and evidence of that character and testifies openly in court and states unequivocally we have recited the places in our brief where he says, “I told the truth.”

He makes explanations as to his answers here as I said a moment ago about dates and other matters.

“I told the truth and the reason I did not go into the matter of intercourse was that I was not asked those questions.”

Now, we feel that this case does not come within the ruling of the cases cited by petitioner, and that is, the Dyer case and the Baldy case and the — the Dyer, the Baldy and the Reagan cases.We think those are extreme cases where Francis in the Reagan case, a man was prosecuted for rape.

The state had evidence at that time from the doctor who had examined the prosecutor, there was no rape.

The prosecutor to — was a virgin.

In other words, the very prosecution itself was a fraud.

Then you have the two Circuit Court decision cited here, Dyer and Baldy concerning the matter of suppression.

We feel that those facts are far and above extreme the facts that we have in this case.

In one case, where the — the bullets were an evidence.

In other words, there was a question where the men were robbing a store there and the question was who actually shot the deceased, was it the defendant or even policemen?

And the State sought to prove that the defendant fired the fatal shot knowing all the while that it had evidence, it had a bullet and it had an expert witness by hand to testify that no, it wasn’t the defendant’s bullet, it was a policeman’s bullet that killed the defendant.

That basic, that extreme, in other words, keeping out evidence or trying to prove to the jury that the defendant did fire the fatal shot knowing all along that he had not fired the fatal shot and the Dyer case is equally extreme in a situation where the State there, the State of Pennsylvania sought to prove that — and did prove by certain witnesses that the defendant was sober at the time of his arrest knowing at the very same time, a witness who did not testify and was kept away from the trial and was excused on the night of that night session was going to testify that he was drunk.

Now, you have compounded in those cases a situation where in the Baldy, where counsel for the defendant asking whether you have other bullets, you couldn’t have it in certain bullets but do you have other bullets and no reply was made.

You have in the Dyer case, compounding this fraud is overt fraud to the Court and to the jury, you had counsel rising up and standing and saying there’s no use calling this second State’s witness, the second policeman.

Hubert W. Green, Jr.:

He’ll only corroborate the first policeman when he knew that was false telling them.

Also you have the situation there where in Pennsylvania, the jury was instructed that the prosecutor had called all of his witnesses and he sat there and listened to the Court instruct the jury in that fashion knowing that he had not called that witness.

Now, I want to get to a matter that I think is basic and that is the matter brought up and suggested in one of the cases cited by the petitioner, that is the matter cited in the Baldy case.

One of the reasons probably holding in the Baldy case was that this evidence was so well-concealed that you could not fairly accuse defendant’s counsel of lack of due diligence and that’s a matter that they have skirted around that they have avoided at all times in this case and in this litigation.

The matter of the diligence and we suggest in our brief that he has not exercised the diligence and all of the matters available to him to discover these very matters.

Earl Warren:

Do you have anything further Mr. Green?

Mr. Villarreal I think has a word or two, Your Honor.

Raul Villarreal:

I might say, Mr. Chief Justice, Your Honor that we contend here as a size of the evidence that there’s — there’s no disputed issue of fact.

One, the prosecutor admitted before the Court and before all the evidence that was submitted that he told a man that the evidence was inadmissible, that — and further, that he knew about the intercourse and further, it’s a public record that the questions that were asked of the prosecution — prosecution witness.

Now, the — the issue is as a matter of law, was there suppression of vital and material evidence beneficial to the defendant and they claim they make the attempt to even make the case stronger for the defendant.

They say, he didn’t even know about it.

Now, I want to say that the prosecutor knew what, the defendant knowing about this, way before the case came to trial.

When he took the statement from Natividad Castilleja, that was about two weeks to 10 days according to his testimony on the writ of habeas corpus after he took the statement from Alcorta, he took the statement from Castilleja.

And on page 128, on 128 of the transcript, the last — the paragraph of the statement given to Mr. Barrera personally because he — he claims that he admitted under writ and he admits now that he was there at the time of the statement was given and he says here on the next to the last paragraph, one thing I went with, that’s Castilleja talking to Mr. Barrera, the prosecutor, when the man first walked to the car, that is when he ran to get in the car.

He cursed Herlinda, he said and then the words in Spanish (Inaudible), yet that the scale which means literally, (Inaudible).

Now, I’ve caught you.

Now the — notice the interpretation given by Castilleja, you bitch, I caught you leaving out the word “now”.

Now, going back to the cross examination of Mr. Barrera, I think Justice Warren addressed that issue clearly when he interrogated Mr. Barrera about the — the cross examination when Alcorta divulged that he knew or suspected and he caught him kissing and he felt and believed at that particular time that they were making love or having a date up and that compounded with the fact that Alcorta had made a statement corroborating the belief that he had caught her.

Now, this statement was never introduced in evidence.

Now, in the — in the testimony itself, the transcript of page 155, it was sort of watered down.

The testimony was given as Castilleja said, “I caught you.”

He didn’t say the — the profanity, he didn’t say, “now.”

I believe that — that it could have very well given — taken home the message to Mr. Barrera that then he could’ve realized that Alcorta knew about this intercourse and at that time, the issue was very material as the issue of murder without malice was submitted to the jury.

For that reason, we ask the Court to reverse the case.

Thank you.