Ashdown v. Utah

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

DOCKET NO.: 158
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 357 US 426 (1958)
ARGUED: Apr 01, 1958
DECIDED: Jun 30, 1958

Facts of the case

Question

  • Oral Argument – April 01, 1958 (Part 2)
  • Audio Transcription for Oral Argument – April 01, 1958 (Part 2) in Ashdown v. Utah

    Audio Transcription for Oral Argument – April 01, 1958 (Part 1) in Ashdown v. Utah

    Earl Warren:

    Number 158, Milda Hopkins Ashdown, Petitioner, versus the State of Utah.

    Judge Erickson.

    J. Vernon Erickson:

    Chief Justice Warren and fellow associates.

    This is Ms. Milda Hopkins Ashdown, the brief of the petitioner setting out the jurisdiction of this Court is invoked under 28 U.S.C.A. Section 1257.

    The judgment of the Supreme Court of the State of Utah entered on April the 30th, 1956 — 1956, a petition which was denied, it was unanimous decision of the Supreme Court of Utah.

    This petition for writ of certiorari was filed on December the 7th, 1956 and a brief on opposition was filed by the respondent and the certiorari was allowed by this Court on June the 30th — 30, 1957.

    I’ve set out the record carefully.

    Now, the constitutional provision is first the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides in pertinent part.

    I don’t think I’ll have to read that, Your Honors, all of that in Article 7, I’ve set out.

    Third, the self-incrimination and Due Process Clause of the Fifth Amendment and also the Utah section is quite set forth.

    Now, the question presented before this Court whether the petitioner in a state capital case was denied due process of law under the Fourteenth Amendment.

    The facts is this, the petitioner was taken in for question, questioning in a an emotional state and irrational state of mind immediately after the funeral of her deceased husband and was subjected to a series of constant interrogation by the sheriff and his deputies and the district attorneys for approximately five-and-a-half hours.

    During the time, the petitioner did not have food, rest, was not properly advised of her constitutional rights.

    She requested — her relatives requested to go in there and they were denied that privilege.

    She asked for legal counsel.

    That was refused.

    The record — I have set the record up very carefully in my brief.

    She was denied those rights.

    Now, we set up this constant interrogation by the sheriff and his deputies without friends or relatives and the petitioner under three was denied due process of law because the jury under instructions says — were asked to pass on weight and credibility given to the testimony concerning such admissions upon the considerations and the circumstances ruling on the testimony of all the witnesses in relation to there was not given to the jury.

    Now, the statement of the case, it shows that the petitioner Milda Hopkins charges — she was charged by information with murder in the first degree and the trial was held in Parowan from July the 5th — no, excuse me please.

    She was charged with murder in first degree in Iron County, Utah for killing a person of Ray Ashdown, the record shows that.

    A trial was had before a jury in Iron counsel.

    Counsel for the petitioner, which I represent, has followed this case to all courts and they’re (Inaudible) as to affidavit and also a pauperism in this kind — in this Court.

    Now, the testimony shows the oral confession made by the petitioner during the interrogation, it was obtained in violation of her constitutional rights.

    I’ve set the record down, record 88.

    But the trial court ruled, admitted — admitted such testimony, no other evidence was given after that.

    The defendants rested and raised these provisions.

    Later, the petitioner appealed from her conviction to the Supreme Court of the State of Utah and the Supreme Court of the State of Utah affirmed the judgment of conviction on April the 30th, 1956, shown in the record at page 153 and denied the petition for rehearing, October the 5th, 1956.

    On December the 17th petition was filed for the writ of certiorari which was granted by this Court.

    Now, the petitioner was the wife of Ray Ashdown, they lived at Cedar City, Utah.

    J. Vernon Erickson:

    And on the morning of July the 5th, 1955, Dr. Williams was called at the Ashdown home and Mrs. Ashdown to attend her — by Mr. — Mrs. Ashdown to attend to her husband.

    When the doctor arrived, Mr. Ashdown was having a generalized convulsion, seizure and death was imminent.

    And took another convulsion immediately after and died.

    Later, the stomach was sent to the state chemist, analyzed and there was strychnine found in the body of Ray Ashdown.

    And on the 9th day of July 1955, the funeral was held at the cemetery.

    At the cemetery, the sheriff of Iron County, Arthur Nielsen asked Mrs. Ashdown’s son-in-law to bring Mrs. Ashdown to the city and county building, which he did.

    The defendant came with her sister and at that time there was present the sheriff and his three or four or five deputies.

    It was a hot day and they served the girls with lemonade.

    There were — and the sheriff at that time went into the court room and said that he wanted to talk to Milda alone.

    When she arrived in the court room, the three sheriffs were there plus the District Attorney and she was interrogated for, the record shows, five-and-a-half hours, interrogated.

    Felix Frankfurter:

    Continuously?

    J. Vernon Erickson:

    Continuously, Justice Frankfurter.

    The record even — I didn’t dispute that.

    In fact, one of the deputies had even went longer than that.

    The record shows that she went in there at four and come out of it quarter to ten.

    Felix Frankfurter:

    At that — when this interrogation of five-and-a-half hours began, was she suspect?

    J. Vernon Erickson:

    She was suspected of that.

    Is that what you mean?

    Felix Frankfurter:

    Yes.

    Did the — did the police authorities and the prosecutor — is there evidence in the record that this inquiry of five-and-a-half hours which you just referred was begun with consciousness on the part of the law enforcing officials that she may be or might be or presumably was the — the guilty person?

    Is there any evidence on that —

    J. Vernon Erickson:

    They —

    Felix Frankfurter:

    — or there’s an inquiry to find out the circumstances of her husband’s death?

    J. Vernon Erickson:

    It was suspicion that they had.

    Felix Frankfurter:

    What — what is there in the record that bears on that?

    J. Vernon Erickson:

    Very little, Your Honor.

    Was it known at that time, sir, that (Inaudible)

    J. Vernon Erickson:

    This is the only thing here is this, they first interrogated her at her home.

    There was two interrogations —

    Earl Warren:

    Before this —

    J. Vernon Erickson:

    One —

    Earl Warren:

    Before this —

    J. Vernon Erickson:

    One, Your Honor.

    Earl Warren:

    Yes.

    J. Vernon Erickson:

    One, they come there and the testimonies in the record there and I cite that record, it’s very plain when they come there was no compliant about that questions and they looked at cups and —

    Earl Warren:

    Looked at what?

    J. Vernon Erickson:

    Looked at cups and they searched the Frigidaire.

    And that was done before.

    We — that was just they’re suspicion there.

    Felix Frankfurter:

    Would it disturb the order of — of your argument if you were to tell the Court with particularity the course of events from the time of the death of Ashdown?

    J. Vernon Erickson:

    I will do that.

    Felix Frankfurter:

    And order with a view to ascertaining what seems to me a crucial question, namely, the attitude of the police and the prosecutor in finding out, first, whether there was something wrong, whether there was a mislead.

    And secondly, against whom to pursue their inquiry because I suppose — I suppose you agree that if the police have no suspicion at all but want to clear up the natural person to go to in the first instance is the wife of the deceased in — in these circumstances, wouldn’t you agree to that?

    J. Vernon Erickson:

    I do, Justice Frankfurter.

    They went there for the purpose they did suspect her.

    Now, I’d have to go outside the record, the Attorney General knows why did suspect her but it’s a different —

    Felix Frankfurter:

    But it’s not in the record?

    J. Vernon Erickson:

    It’s not in the record.

    Felix Frankfurter:

    Well, how can we —

    J. Vernon Erickson:

    No, I’d have to — they had a suspicion, she went up and they interrogated her first and then the — the chemist kept (Inaudible)

    Felix Frankfurter:

    How — would you mind telling us what led the police to think that this wasn’t a perfectly natural death to be followed by a burial and — and grief and all the rest?

    What is there in the record that called for any kind of inquiry?

    People die all the time, that’s a life event and police don’t make inquiries.

    What was there here?

    J. Vernon Erickson:

    There was only the doctor who went out there, who looked at Ray and he said, “Ray, you are under — you are sick,” the record is there, “What have you — have you had poison?

    Had you taken something bitter?”

    That’s your first.

    That’s in the record, Mr. Justice Frankfurter.

    Then after the burial —

    Earl Warren:

    What was his answer to that?

    J. Vernon Erickson:

    What was his answer to that?

    Earl Warren:

    To that question of the police or whoever?

    J. Vernon Erickson:

    He said — the deceased said, I drank some — it’s in my brief and cites the citation that, “I took something that was sour — sour.”

    In fact, that had — and went through his other things, this led him to suspicion which I came quite outside of the record.

    Didn’t he say that he had taken a drink of lemon juice and that it was very bitter?

    J. Vernon Erickson:

    That’s true, Justice Harlan, that’s true.

    So after that, that was on the 5th, the officers come down there —

    Felix Frankfurter:

    Well, the doctor communicated with the officers?

    J. Vernon Erickson:

    I know he had.

    Felix Frankfurter:

    Pardon me?

    J. Vernon Erickson:

    Yes, he (Voice Overlap) —

    Felix Frankfurter:

    No, is the record — what — does the record show anything about?

    J. Vernon Erickson:

    The record shows that they took the stomach and sent it to the state chemist.

    My record sets that out plain.

    Felix Frankfurter:

    But there’s a gap —

    J. Vernon Erickson:

    (Voice Overlap) —

    Felix Frankfurter:

    — that doesn’t show that the doctor went to the (Voice Overlap) —

    J. Vernon Erickson:

    As soon as he went to the — to the place, he just told them that there was strychnine.

    Earl Warren:

    As soon as what?

    I didn’t get —

    J. Vernon Erickson:

    Strychnine.

    Earl Warren:

    No, you said as soon as.

    Now, as soon as what?

    J. Vernon Erickson:

    Immediately thereafter, the officers had sent him there and he pronounced it without analyzing that you’ve taken something sour there and it was strychnine and —

    Earl Warren:

    The doctor told the police that it was strychnine?

    J. Vernon Erickson:

    That’s — the record would bear that out in a way.

    Earl Warren:

    Well, now, was that before they — they — was that before the funeral?

    J. Vernon Erickson:

    That was before the funeral.

    That was on the 5th day — 5th day.

    Earl Warren:

    Yes.

    Earl Warren:

    Well, had there been any — had there been any report from the chemist to the police before the funeral?

    J. Vernon Erickson:

    I’d say a man was sent — the sheriff, deputy sheriff, it shows in the record that he took it to Salt Lake and brought the stomach back after the 5th day.

    Now, whether it was the 3rd day or the 4th day he brought it, I’m not sure.

    Earl Warren:

    Did the police have knowledge?

    What I’m trying to get at, did the — did the sheriff have knowledge at the time he interrogated your client?

    J. Vernon Erickson:

    He had —

    Earl Warren:

    That — that there have — that there was arsenic in the —

    J. Vernon Erickson:

    No, he had suspicion only.

    Earl Warren:

    I see.

    Well, I —

    J. Vernon Erickson:

    Suspicion.

    William J. Brennan, Jr.:

    Well, what — what’s the significance of the doctor’s testimony at pages 20 and 21?

    He is talking about the time when he found the deceased in the process of having the seizure from which he died —

    J. Vernon Erickson:

    That’s right.

    William J. Brennan, Jr.:

    — and then he said that he instructed the mortician not to disturb anything because he thought a coroner’s jury should be called, and then he went to say that he completed an autopsy, and he took — put certain organs in a container and turned them over to the deputy sheriff.

    Well, when did all of that happen?

    J. Vernon Erickson:

    Sir?

    William J. Brennan, Jr.:

    When did all of that happen with reference to the funeral?

    J. Vernon Erickson:

    That happened after the funeral.

    William J. Brennan, Jr.:

    After the funeral?

    J. Vernon Erickson:

    That happened right after he — he died, Your Honor, which he died on — they immediately got the body and the intestines and all and send it to Salt Lake City and it took about three days for it to return.

    Felix Frankfurter:

    May I — may I press my question?

    Namely, would you be good enough to state what you think is in the record and nothing outside it bearing on this question, namely, when the — pardon me, when the police, the sheriff and the prosecutor, began to interrogate your client, when they started to do that, what — what knowledge or what basis for action by law a enforcing authority did they have to suspect that this woman was what they would believe was the murderess rather than they thought something was wrong and they carried out their duty for such I believe it to be, to have been their duty to ascertain, first, whether there was something wrong and second, if there was something wrong, who was the wrong doer?

    Now, would you state, confining yourself to the record if you will, what there was in the knowledge, in the minds of the law enforcing authorities to get at what facts.

    J. Vernon Erickson:

    The only thing I can say, Justice Frankfurter, is on that, when the doctor was called and — and made those statements.

    That’s as far as —

    Felix Frankfurter:

    That — that this fellow took something which might have caused death?

    J. Vernon Erickson:

    That’s true.

    Felix Frankfurter:

    And nothing else?

    J. Vernon Erickson:

    That’s all, not without going outside the record which I will not do, I would be happy if I could.

    J. Vernon Erickson:

    Then —

    William O. Douglas:

    Did the — the Ashdown home had no telephone, I understand?

    J. Vernon Erickson:

    Yes, sir.

    William O. Douglas:

    There was no telephone in the Ashdown home?

    J. Vernon Erickson:

    There was not.

    William O. Douglas:

    Who made the telephone call to the doctor?

    J. Vernon Erickson:

    She made the telephone calls for the doctor.

    William O. Douglas:

    Outside of house?

    J. Vernon Erickson:

    That’s true.

    The record will show.

    I have that so plain.

    I have so many things when it comes to record that I will later show in the Court.

    William J. Brennan, Jr.:

    Well, what I don’t —

    J. Vernon Erickson:

    I have —

    William J. Brennan, Jr.:

    What I don’t understand is that this all happened on July 5th, that is — that that was a visit to the Ashdown home and the death was (Voice Overlap) —

    J. Vernon Erickson:

    And the death.

    William J. Brennan, Jr.:

    That was July 5th?

    J. Vernon Erickson:

    That’s correct.

    William J. Brennan, Jr.:

    Now, on page 29, it appears the testimony of the deputy sheriff that on July 6th, he says at the request of the county attorney and the sheriff, he went to the Dr. Williams’ office and picked up the specimen and took it to Salt Lake City?

    J. Vernon Erickson:

    Salt Lake City.

    William J. Brennan, Jr.:

    Well, now, why is the county attorney and the sheriff be — going to Dr. William’s office to have these specimens picked up the day after the death?

    J. Vernon Erickson:

    There’s no question the — the doctor is notified and they have other suspicions.

    William J. Brennan, Jr.:

    Well, then the police — but the police were in this before the burial, was it not?

    (Voice Overlap) —

    J. Vernon Erickson:

    That’s —

    William J. Brennan, Jr.:

    What day is the burial?

    J. Vernon Erickson:

    The burial, I think will put us at ease, the 9th, the same day as they questioned her.

    She first —

    William J. Brennan, Jr.:

    On the (Voice Overlap) —

    J. Vernon Erickson:

    They went to the funeral — they went to the funeral then they returned at the funeral two or three hours and the sheriff had her ready to take her for the questioning.

    Felix Frankfurter:

    May I ask this, could one take notice, may it be accepted as something that — customarily that you may take what is called judicial notice, that if the police expect — if the police believe there was foul play —

    J. Vernon Erickson:

    Yes.

    Felix Frankfurter:

    — particularly through poisoning, that they don’t bury the body until they make further examination?

    J. Vernon Erickson:

    That’s right.

    Felix Frankfurter:

    That is correct, is it not?

    J. Vernon Erickson:

    That’s correct.

    Felix Frankfurter:

    Well, then is there some significance in the fact that the body was allowed to be buried that day?

    J. Vernon Erickson:

    Well, that was — you see — see was buried — buried you see four days after that, after the (Voice Overlap) —

    Felix Frankfurter:

    Well, was the burial held up?

    Is there anything in the record to show that the police —

    J. Vernon Erickson:

    Yes.

    Felix Frankfurter:

    — held it up?

    J. Vernon Erickson:

    No, they didn’t hold the burial up.

    Felix Frankfurter:

    It was a family matter, wasn’t it?

    J. Vernon Erickson:

    That’s right.

    Earl Warren:

    Well, did they take — did they take the stomach and the organs from the body before it was buried?

    J. Vernon Erickson:

    I think — that’s right, they did.

    Earl Warren:

    They didn’t disinter the body and —

    J. Vernon Erickson:

    No.

    Earl Warren:

    — and take this thing?

    J. Vernon Erickson:

    It — the chemist report later showed why we got to it, those things would be clarified and I set out that in my record.

    You will find those.

    Charles E. Whittaker:

    You don’t have — you don’t lay down (Inaudible)

    J. Vernon Erickson:

    Well, I’d be coming to that later on.

    But it was taken to Salt Lake, they had no — the sheriff —

    Charles E. Whittaker:

    On — on that day?

    J. Vernon Erickson:

    They immediately, I think, took it there.

    I’ll reserve my other 10 minutes (Voice Overlap) —

    Earl Warren:

    All right, Judge Erickson, that’s better.

    J. Vernon Erickson:

    — be prepared —

    Earl Warren:

    Mr. Budge.

    J. Vernon Erickson:

    — to answer.

    Earl Warren:

    Yes.

    He was in the service, aren’t he?

    Walter L. Budge:

    Mr. Chief Justice Warren, the Honorable Members of the Court.

    Earl Warren:

    I want you to set up — you set up at the counsel table here.

    Walter L. Budge:

    It is a privilege to have the opportunity of appearing before the Court.

    If I seem a little nervous it will be because I am, not having been here before.

    Briefly, the facts in this case are not too much in dispute.

    On the morning of the 5th day of July, Mr. Ashdown died in a convulsing seizure in the doctor’s presence.

    He stated to the doctor that he had — had some lemon juice and that it tasted bitter.

    Later, the doctor talked with Mrs. Ashdown and she told him that she had given her husband two or three glasses of salt water.

    The doctor then became apparently suspicious and he immediately contacted the authorities and they came over and they questioned Mrs.Ashdown on the 5th.

    She denied at all times that she had poisoned anyone and said that she would not even poison a rat.

    Subsequently, the —

    Felix Frankfurter:

    Did the — did the suggestion of poisoning, was that spontaneous with her or in response to questions?

    Walter L. Budge:

    I — it was in response to questions, Your Honor, of the officers.

    Felix Frankfurter:

    Well, I mean that the — the thought of poison, have the officer suggested that?

    Walter L. Budge:

    Well, I think they suspicioned it, yes, Your Honor.

    Felix Frankfurter:

    No, no.

    According to the record, did she make this denial in response to — through intimation that they thought she had poisoned him?

    Walter L. Budge:

    I think she was asked by the officers and the record will so state if there could have been a mistake made and if he could have been poisoned and that was on the 5th before the interrogation on the 9th.

    Felix Frankfurter:

    But it was put to her as — as one of these things that does occur in life, a mistake in insertion of poison.

    Walter L. Budge:

    I think so, Your Honor.

    William J. Brennan, Jr.:

    And this was before he died?

    Walter L. Budge:

    No, this was after he died.

    The officers interrogated her and the body was removed to mortuary and then the officers went to the place and interrogated Mrs. Ashdown at the home.

    And —

    William J. Brennan, Jr.:

    What is (Inaudible)

    Walter L. Budge:

    I think they were removed the following day, sometime between that and the following — the following morning they were taken to the chemist at Salt Lake City and the chemist completed his analysis late in the afternoon of the 8th and gave the report back and the exhibits back to the deputy sheriff, who on that night drove them back to Cedar City which is a distance of approximately 300 miles from Salt Lake City.

    Walter L. Budge:

    So the following morning — I mean on the following afternoon, immediately after the funeral, they asked Mrs. Ashdown to come to the courthouse where she was interrogated for the record shows five and one half hours but she confessed at the end of four hours.

    Felix Frankfurter:

    May I, before you move on —

    Walter L. Budge:

    Yes, sir.

    Felix Frankfurter:

    — from there, ask you whether the appearance of the police, I use that for short for law because — in light of the fact that the doctor said this man may have died or did die of — suspect he died of poisoning, would that be routine procedure for the police when a death occurs under such ambiguous circumstances to make inquiries at once, would that be —

    Walter L. Budge:

    No —

    Felix Frankfurter:

    — would you say that was routine?

    Walter L. Budge:

    No, Your Honor, I wouldn’t say that that was routine but in the circumstance of this case, as Mr. Erickson attempted to say, it didn’t come out in the record, there was background which would warrant that assumption on the part of the officer.

    Felix Frankfurter:

    That’s something that they guessed?

    Walter L. Budge:

    That’s right.

    It’s something in the (Voice Overlap) —

    Felix Frankfurter:

    How long in this inquiry at the — was it at the house?

    I haven’t read the record.

    Walter L. Budge:

    At the house, it was not very long.

    It was in the afternoon and of course —

    Felix Frankfurter:

    Any indication of the length?

    Walter L. Budge:

    I don’t think —

    William O. Douglas:

    Just the day he died?

    Walter L. Budge:

    The day he died, I don’t —

    Felix Frankfurter:

    How long?

    Walter L. Budge:

    — think there’s any record — anything in the record to show the time that the officers were there.

    Felix Frankfurter:

    Is the — is the —

    Walter L. Budge:

    From the — I would just estimate from — from the cold record because of course —

    Felix Frankfurter:

    Yes.

    Walter L. Budge:

    — I did not try the case but from the —

    Felix Frankfurter:

    From the cold record, how long would you estimate?

    Walter L. Budge:

    Well, it would be my estimate that they weren’t there more than 30 minutes or maybe an hour if — at the hour.

    Earl Warren:

    Mr. Budge, did the — did the report of the chemist or your state — state chemist show that there was arsenic in the body?

    Walter L. Budge:

    Very definitely showed —

    Earl Warren:

    Yes.

    Walter L. Budge:

    — Mr. Justice Warren, that there was strychnine in the body —

    Earl Warren:

    (Voice Overlap) —

    Walter L. Budge:

    — and that that was the cause of death.

    Earl Warren:

    Strychnine.

    Yes, strychnine.

    I said arsenic.

    Walter L. Budge:

    That’s all right, Your Honor.

    Earl Warren:

    And that — and that had been received the day before the funeral?

    Walter L. Budge:

    It was — the report was delivered to the deputy sheriff who took it to the sheriff the day before the funeral.

    Earl Warren:

    Yes.

    Walter L. Budge:

    It would — it was delivered late in the afternoon and he drove some 300 miles.

    Now, whether the sheriff got it early the next morning or that night, I don’t know, but there was a sealed report from the chemist.

    Earl Warren:

    In all events, they had it — they had it available to sheriff’s office at the time they interrogated the — the petitioner?

    Walter L. Budge:

    That is correct, Your Honor.

    Earl Warren:

    Yes.

    William O. Douglas:

    I’m confused about the salt water and he said — did she say that she gave salt water instead of lemon juice?

    Walter L. Budge:

    No, she said that — she testified that she had — she didn’t testify anything in the record.

    She said to the doctor that she had given him salt water, I guess to act as a medic or something to make him disgorge the — the strychnine or the lemon juice, that would be my — the way I would understand the record on that.

    Felix Frankfurter:

    May — may I trouble you to state what the upshot of this guess that half hour or so interrogation at the day of the death when they ask questions, does the record show anything as to the attitude of the police or any statements by — by the authorities to her —

    Walter L. Budge:

    Well —

    Felix Frankfurter:

    — as a result of that — of that first interrogation?

    Walter L. Budge:

    The record — the record shows, Mr. Justice Frankfurter, that the police visit with her in a friendly manner and their suspicions were aroused, but it doesn’t show that they had made any accusation or had any definite proof to go on to understanding —

    Felix Frankfurter:

    And there was no restriction on her liberty (Voice Overlap) —

    Walter L. Budge:

    No restriction on her liberty at all, Your Honor.

    Felix Frankfurter:

    That brings you to the question that the Chief Justice asked you, after the report of the analyst had got into the hands of the sheriff’s office then followed this interrogation, what you’ve just reached when I interrupted you?

    Walter L. Budge:

    That’s right, sir —

    Felix Frankfurter:

    All right.

    Walter L. Budge:

    — and there was no restraint at that time she was not charged with any offense.

    William J. Brennan, Jr.:

    But may I — would it be fair to say that the inference may reasonably be drawn to such evidence as there is that when the police interrogated him they did have a suspicion that she was just misstating it.

    Walter L. Budge:

    I’m certain that it would be foolish to deny that, Your Honor.

    I wish they did have a suspicion, there’s no question —

    William J. Brennan, Jr.:

    Did they have — would they go beyond that (Voice Overlap) —

    Walter L. Budge:

    — deciding that —

    William J. Brennan, Jr.:

    — more than mere suspicions.

    They were rather confident, they were rather frail of the — the one responsible?

    Walter L. Budge:

    I think so.

    They went in the kitchen and examined the dishes which were all dirty on the sink except for one cup which had been recently washed and which they asked her why she washed that single cup and placed it on of the top the dishes.

    There were implications that could be drawn even from — and as I say from the background besides that.

    And I don’t think, Your Honors, that we are particularly at loggerheads over the facts, I think the facts are clear.

    I think the fundamental problem that we are now presented with is merely what may a state officer do in interrogating a witness suspected of an offense in the absence of counsel?

    Felix Frankfurter:

    Will you forgive me if I —

    Walter L. Budge:

    Yes.

    Felix Frankfurter:

    Maybe before you come to that problem, I for one would like to have more knowledge than I now have of the time and that’s confused (Inaudible) of the setting of the scene, the people present, the kind of pressure, if it can be called pressure, what her condition was, what her desires were which were rejected, what alleviations for her condition the police did or didn’t afford her on her request?

    I think all those things are relevant before you reach, if I may say so, the problem of which I’m sure one is not unsympathetic if you are about to discuss.Would you mind filling in all (Voice Overlap) —

    Walter L. Budge:

    No, not at all.

    Not at all, Your Honor.

    Felix Frankfurter:

    And — and if possible the undisputed, not as to which there was some evidence on which people might vary a different judgment, but what you would say this is indisputably what the setting was, what her condition was, the interruption or want of interruption, her demand for help, et cetera, et cetera; would you do that?

    Walter L. Budge:

    The record shows that she was requested her brother or her — some relative of the family was requested by the sheriff to have her report to the courthouse and she did in the company with her sister.

    And at the courthouse there was these three police officers and the District Attorney for that District of Utah.

    And they took her upstairs into the courtroom itself, as I understand the record says, and they refused to let the sister come in.

    They interrogated Mrs. Ashdown in the courtroom for the period stated, five-and-a-half hours.

    At the end of the fourth hour, she confessed.

    She was repeatedly told by the officers that they didn’t want her to confess to anything she didn’t do, numerous times the record shows.

    The first part of the questioning was merely nothing, apparently more than a visit about family affairs and one thing and another.

    And then she was advised of her rights by the District Attorney, her sister was not —

    Felix Frankfurter:

    Now, what — what rights was she told she had?

    Walter L. Budge:

    She was told that she had the right to counsel and that she didn’t have to saying anything if she didn’t want to.

    William O. Douglas:

    She had the right to counsel at that time?

    Walter L. Budge:

    She had the right to demand counsel —

    Felix Frankfurter:

    That appears in the record?

    Walter L. Budge:

    — and she had the right to refuse to answer.

    Felix Frankfurter:

    You mean to say she was told, “If you don’t want to, you don’t have to say another word till you get a lawyer.”

    Walter L. Budge:

    That’s right, Your Honor.

    Earl Warren:

    Did they follow that when she did ask for a lawyer?

    Walter L. Budge:

    When she asked for a lawyer, the sheriff said to her, “Well, it’s too late now.

    You’ve told us everything except one thing, where did you get the strychnine?”

    And our court very carefully and deliberately, the trial court refused to let one word of testimony into the record or before the jury that was produced after she had asked for counsel.

    Our Supreme Court (Voice Overlap) —

    Felix Frankfurter:

    This is so vital for that.

    I’ve troubled you by way of repetition to state with — I understand you correctly that she was asked and came voluntarily to the courtroom as the place for examination?

    Walter L. Budge:

    That’s — that’s all the record show.

    Felix Frankfurter:

    By three — three policemen and — and the District Attorney or county attorney, that she was told at the beginning that if she chose she need not say a word.

    Walter L. Budge:

    I think the record shows, Mr. Justice Frankfurter, that it was not right at the beginning, that it was some 20 minutes or maybe 30 minutes after.

    Felix Frankfurter:

    And up to that time though you’ve indicted the questioning was about — not really relevant to — to a confession or to an extraction of a confession, is that right?

    Walter L. Budge:

    That is correct, Your Honor.

    Felix Frankfurter:

    But she was then told what her rights was and particularly that she had the right to have a lawyer and she could keep her mouth shut, keep silent if she chose and she chose — and if she chose she — unless she had a lawyer or get a lawyer and that she declined that or didn’t exercise that right and that finally she made substantially a full disclosure amounting to a confession.

    Walter L. Budge:

    That is correct.

    Felix Frankfurter:

    And that she didn’t ask for a lawyer until she was asked where she got the strychnine from and you say that everything that she said after she asked for a lawyer was scrupulously excluded.

    Walter L. Budge:

    That is correct.

    Felix Frankfurter:

    Is that a correct statement to what you say?

    Walter L. Budge:

    Yes, sir, that’s —

    Felix Frankfurter:

    So what the record would clearly show?

    Walter L. Budge:

    That is what the record will bear, sir.

    Can you pinpoint in the record without taking anytime where it appears that she was advised of her right to counsel, right to remain silent.

    If you haven’t got it there, don’t — don’t carry, I can get it from your brief.

    Walter L. Budge:

    Well, I don’t — I haven’t marked that.

    I haven’t anticipated but the — all of the sheriff’s officials, all three of them testified as to that at one place or another.

    Felix Frankfurter:

    Was the thing taken down, was the whole —

    Walter L. Budge:

    Yes, the — the entire —

    Felix Frankfurter:

    And it’s all in here then?

    Walter L. Budge:

    Well, the — no, the confession?

    Felix Frankfurter:

    No.

    Walter L. Budge:

    Oh, the transcript?

    Felix Frankfurter:

    The — the statement about which Justice Harlan just asked you —

    Walter L. Budge:

    Yes.

    Felix Frankfurter:

    — was actually in the record?

    Walter L. Budge:

    That’s in the record, yes.

    Felix Frankfurter:

    But she was told, “Madam or Mrs. Ashdown, you don’t have to say a word.”

    Walter L. Budge:

    She was advised as to her right to counsel.

    Felix Frankfurter:

    Well, I suppose that’s not a contemporary transcript, it’s what the officers testified on the hearing, that they (Voice Overlap) —

    Walter L. Budge:

    Well, that’s — yes, that’s — that’s what (Voice Overlap) —

    Felix Frankfurter:

    But my question was whether there was rather for present.

    Walter L. Budge:

    No, I misunderstood.

    William J. Brennan, Jr.:

    Well, is this version of –that that’s the versions of the officers with 20 different versions given by her?

    Walter L. Budge:

    No, there was no testimony by Mrs. Ashdown in her —

    William J. Brennan, Jr.:

    The only — only testimony is the officer’s — what she told as to the officers?

    Walter L. Budge:

    That’s right, Your Honor.

    William O. Douglas:

    Did she take – she didn’t — she didn’t testify?

    Walter L. Budge:

    She did not take the stand to testify.

    Only outside in the presence of the jury, Mrs. Ashdown testified to the court, outside in the presence of jury.

    William J. Brennan, Jr.:

    Well, to give them answers?

    Walter L. Budge:

    She testified — yes, sir, as to what was told her in the courtroom —

    William J. Brennan, Jr.:

    During the —

    Walter L. Budge:

    — during the — during the interrogation.

    William J. Brennan, Jr.:

    Well, now, did she confirm in her testimony what she told them?

    Walter L. Budge:

    There is some controversy in the testimony.

    There is some difference as to what she said and what the officers —

    William J. Brennan, Jr.:

    Briefly state what Congress has —

    Walter L. Budge:

    Page 80 — starting on page 83 is the testimony of the witness.

    And the only controversy as I see it in here is — was what she said the prosecutor told her during the interrogation as to what had happened to him in an event in Europe when he was accused of — he said killing five men and he talked to the investigating officers and they helped him and he was not convicted.

    And he was advising her there that it might be well for her to cooperate and if there were — was a mistake made to tell him how it could’ve been made.

    Walter L. Budge:

    Now, there is evidence in the record that she was sobbing and weeping at times during the interrogation and that she could be heard from outside the room.

    But our court in its specific findings found that there was no such coercion or threats or promises of immunity as would invade her constitutional rights.

    Now, getting back to what we feel the question is and we don’t feel we can be followed anymore by Stein versus New York or Stroble versus California or the Gallegos case.

    We feel the answer we have to seek from this Court is what can the State do and its officers in interrogating a witness in the absence of counsel, where is the line to be drawn from here on out?

    In the Gallegos case, you may recall there were some eight days of extensive questioning and at that time the Court said — this Court said that that did not make an infirmity such as what abridged his constitutional rights.

    Felix Frankfurter:

    But wasn’t because 8 days will seem — didn’t seem important but in the peculiar circumstances of — of the fact of that case as I recall and I —

    Walter L. Budge:

    I think that’s right.

    Felix Frankfurter:

    I mean that — that the crime was committed elsewhere, the difficulty with that situation where you had very peculiar set of facts.

    Walter L. Budge:

    I — I think that’s right, Mr. Justice Frankfurter, and I think the Court said the reason he confessed there was probably because of his conscience.

    I think that that was a different situation.

    But we feel — from the State of Utah, we feel that that is the question, I don’t think there’s any controversy gentlemen — justices in the facts, I think that we are substantially in — in terms in both of our briefs with what the actual facts are.

    But the fundamental issue as we see it and which we ask this Court to guide us upon is put to the question that I had just asked before it.

    Felix Frankfurter:

    May I — may I —

    Walter L. Budge:

    Yes.

    Felix Frankfurter:

    — put this question and I would understand if you say that that has been a problem for me to put to you but to put ourselves, suppose this Court where to reverse this case or this Court ought to find the circumstances was such that within our opinion we think this exceeded the — the speed limit of — of your freedom.

    What would be the effect as you — in order — since you want guidance, what — what would this do to you, what would the Attorney General if he has oversight in Utah or the prosecutors, what would — what conclusions, what would they draw from it, what restrictions would they feel it would impose that shouldn’t be imposed?

    Walter L. Budge:

    Well, that all they found upon the opinion of the courts, Your Honor —

    Felix Frankfurter:

    I understand —

    Walter L. Budge:

    — but we would probably invite or attempt to inform our officers and our prosectors as to what they should and should not do in order that we can avoid such unfortunate experience such as this where there is no question whatsoever of guilt and where there is evidence outside of the confession that in all probability would sustain a conviction.

    Felix Frankfurter:

    Well, what — what would you — more specifically, I’m pressing you because — because I appreciate the practicality of your problem, I mean on the one hand, you got — after all, it was presumably a murder committed and on the other hand, the — the law of our country which we boast is that guilty people must be brought to book in a — in a certain way so that guilt isn’t the answer.

    What — what restrictions would you — do you think would be imposed?

    Would you — suppose we — suppose we reverse as we have done in cases, we cite some prior cases indicating that this is beyond the limit of — of due process without making much elucidation, would you say well, we can’t have a lawyer, we can’t say that we won’t examine her.

    You would say that was unreasonable, wouldn’t you?

    Walter L. Budge:

    Yes, sir.

    Felix Frankfurter:

    If there is even suspicion, you would say it was unreasonable for this Court to say, “Well, you can’t — once you suspect a person you can’t make any inquiry of him.”

    You wouldn’t pick that words?

    Walter L. Budge:

    No, I would — I wouldn’t think that would be practical because we —

    Felix Frankfurter:

    You wouldn’t pick that words —

    Walter L. Budge:

    — we can’t —

    Felix Frankfurter:

    — right?

    Walter L. Budge:

    — completely tie the — the hands of the officers.

    We have —

    Felix Frankfurter:

    And you must make inquiry in order to let an innocent person go?

    Walter L. Budge:

    That’s right.

    Felix Frankfurter:

    And you can’t say “Well, two hours is — two hours may sometimes be coercive,” may it not?

    One hour maybe coercive —

    Walter L. Budge:

    Well, I think —

    Felix Frankfurter:

    — that one can use in 15 minutes maybe coercive.

    That’s clearly obvious.

    Walter L. Budge:

    Sir, you’re right.

    Felix Frankfurter:

    I’m trying to probe as to what the problems are that you say we have to face.

    Walter L. Budge:

    Well, I think it may be influenced to some extent by the Brass and Sullivan case that came from Utah in which this Court refused to grant certiorari upon it.

    In that case, the Federal District Court held that they were entitled a release because they did not have counsel at every stage of the proceedings, that they didn’t have counsel immediately upon their arrest, that they should be discharged.

    Now, that’s our problem, there’s no — I think in examining this record, Your Honor, there’s no evidence at all of any coercion or threats or force or violence.

    I — I think that — with the understanding of the law as I have known it until now that there was no violation of any constitutional right.

    Felix Frankfurter:

    Was — was the admissibility first determined by the trial judge before it went to the jury?

    Walter L. Budge:

    In this case, yes, Your Honor.

    Earl Warren:

    Well, Mr. Budge, do you want us to — to assume that she could’ve had counsel in this case or that they have the right to examine her without counsel?

    Walter L. Budge:

    I — my contention and what I feel is that the examination they gave her without counsel, Mr. Justice Warren, was not violative of her constitutional rights.

    William O. Douglas:

    What do you —

    Earl Warren:

    In other words, they — oh, go on.

    In other words, you take — you take the position that they have the right to — to make this particular investigation of her that they did without according her the right of counsel?

    Walter L. Budge:

    In the absence of her requesting it, Your Honor.

    That is exactly what I argue (Voice Overlap) —

    William O. Douglas:

    What do you say —

    Walter L. Budge:

    — our Supreme Court.

    William O. Douglas:

    What do you say to the testimony that seems to be uncontradicted as far as I have been able to read the record, that when — was it her father appeared outside asking —

    Walter L. Budge:

    Her father and an uncle came and asked to get in, but I don’t —

    William O. Douglas:

    And asked that she — that she have a lawyer and — and a man by the name of Benson was it test — told the (Voice Overlap) —

    Walter L. Budge:

    That was the sheriff.

    Walter L. Budge:

    Told him that there was a lawyer in there with her to —

    William O. Douglas:

    Yes.

    Walter L. Budge:

    — advise her of her right.

    William O. Douglas:

    Yes, but that wasn’t true, was it?

    Walter L. Budge:

    The — the District Attorney was in there and he did advise her.

    William O. Douglas:

    Oh, he was (Voice Overlap) —

    Walter L. Budge:

    He was in there and he did advise her of her rights, sir.

    Yes, sir.

    Felix Frankfurter:

    I — I’d like to return to the Chief Justice’s question because I believe your answer left me a little unclear.

    As I understood you earlier, you said that after some preliminaries, unimportant from your point of view about family, 20 minutes whatever it was, she was then told that she need not say another word without having a lawyer present, is that right?

    Walter L. Budge:

    She was advised that she could have a — she — upon request she could have a lawyer and then everything that she said could be used against her and that she might remain silent.

    That is the substance of what she told.

    Felix Frankfurter:

    Well, I — I think your — at least to my hearing, your answer to the Chief Justice’s question was a little obscure there.

    If I got the impression that you thought she could be interrogated without a lawyer present is to be qualified, that if she chose to be interrogated, having been given so far as freedom is existent this will — the freedom to keep quiet, she then went on her own, is that —

    Walter L. Budge:

    That’s what I’m trying to say.

    I mean in the absence of her asking for counsel that the interrogation —

    Felix Frankfurter:

    And not only that but she didn’t — you do not impose upon a person in her situation the initiative of asking for one.

    She was told that that was her right.

    Walter L. Budge:

    Yes, that’s true.

    Earl Warren:

    Well, Mr. Budge, do you want us to read this — this record to mean that she could have had a lawyer at anytime she asked for it in this conversation up to the time that she did ask for one and then she was denied?

    Walter L. Budge:

    Well, I mean to say, Your Honor, she might not have gotten a lawyer at the time of the examination, but if she had not that our Utah court would not let any evidence obtained from her in after she asked for an attorney.

    If she would have asked for an attorney at the outset, I don’t know what the officers would have done.

    Earl Warren:

    Yes, but is it a question of what your court might have done later or is it a question of what they did in that room?

    The question of what they did in that room determines whether or not there was coercion.

    It determines whether or not she was entitled to have — have counsel.

    Now, the thing — the — the question that bothers me is — is this, you say that they told her she could have counsel if she wanted and finally she said, “I want counsel,” and they in effect told her, “You can’t have it now.”

    Walter L. Budge:

    Well —

    Earl Warren:

    Now, do you — do you want — do you think that this record will support our conclusion that — that the police meant what they said that she could have had a lawyer anytime she wanted it up to the time that she asked for it, but at that time she couldn’t have it?

    Walter L. Budge:

    No, I don’t think that, Your Honor, is exactly — pardon me — exactly the interpretation that I would put on it.

    Pardon me.

    Walter L. Budge:

    The District Attorney advised her of her constitutional rights and then she went on freely without asking for counsel and told them what had happened.

    And then she said well now, I — she said I think I should have counsel.

    And they said there is no need of counsel now because you’ve told us you poisoned your husband and you’ve told us everything except where you got the poison.

    Well, when the court below heard this matter up to the point that she asked for counsel, they let the evidence in, beyond that they let nothing in.

    Now, it would seem that officers, if they have reasonable suspicions, can question without counsel, providing of course that they use a reasonable means and do so without coercion and without threats and without imposing upon the rights of the individual.

    Earl Warren:

    You mean refuse to let them have counsel?

    Walter L. Budge:

    Well, it — I think if they have a reasonable suspicion that they have a right to inquire, to attempt to uncover a crime.

    Earl Warren:

    Without — without them being able to have counsel —

    Walter L. Budge:

    But it — but it follows that anything they obtain from a witness in that manner, Mr. Justice Warren, would not be admissible in our courts.

    Felix Frankfurter:

    You — you —

    Earl Warren:

    Well, may I — may I finish just one more question please?

    Well, then what is the use of your district attorney advising her that she can have counsel if it is your position that she can’t?

    Walter L. Budge:

    Well, if she’d made her election there, I’m sure that the District Attorney would’ve known enough to quit questioning her —

    Earl Warren:

    Do you mean —

    Walter L. Budge:

    — right there.

    Earl Warren:

    Do you mean but if she starts talking at all, that she waives her right to counsel and that thereafter they can — they can proceed in any manner they desire without counsel?

    Walter L. Budge:

    No, I wouldn’t say in any manner they desire, Your Honor, but I would say that as long as she was willing to converse and to tell them what took place before asking for counsel, that that would be perfectly legitimately obtained information for the trial.

    Earl Warren:

    But my point — my point is this, that the only test we have as to whether that statement that she could have counsel was made in good faith or not must be based on the action of the authorities when she actually asked for counsel and then they denied it.

    Walter L. Budge:

    Well, I don’t think the record shows that they denied counsel.

    Earl Warren:

    Well, they told her — they — they questioned her for an hour-and-a-half or two hours after that, didn’t they?

    And told her she couldn’t have counsel then.

    Walter L. Budge:

    When she suggested that she would like counsel, they said, “Well, you’ve told us everything, now you’ve told us the truth and all you haven’t told us is where you got the strychnine.”

    There is no need of counsel and she made no further request or demand, she didn’t say I know, but I still want counsel.

    Yes.

    Earl Warren:

    And then they examined her for an hour-and-a-half or two hours after that?

    Walter L. Budge:

    They found out nothing after that.

    Earl Warren:

    No, no, no, that isn’t what I asked you.

    They examined her?

    Walter L. Budge:

    That is right, she —

    Earl Warren:

    For an hour-and-a-half or two hours?

    Walter L. Budge:

    For two or an hour-and-a-half after that —

    Earl Warren:

    Well, what is there in the record to indicate that they would have — have been anymore agreeable to her having counsel if she had asked early in the interview?

    Walter L. Budge:

    Well, I can’t answer that.

    There’s nothing in the record about counsel up to that point where she was — where the — after — until after she confessed, there is nothing in the record.

    Earl Warren:

    Well, would it be a fair — would it be a fair inference to say — for us to say that — or conclude rather that if they refused to give her or let her have counsel in the middle of the interrogation that they would have also have refused to let her have counsel if she had asked for it earlier.

    Walter L. Budge:

    Well, I think – I think I understand your question, Your — Your Honor.

    I think I understand what you’re driving at but I don’t know whether I’ve got my point across to you, that what I think is that if they had made that refusal at any earlier time, her constitutional rights would have been fully protected in the proceedings in our court because the minute she made the request, our court cut — drew the line there and her written confession, which she signed the next day, never appeared because they — they cut it off.

    Now, that’s in the record, that’s clearly in the record.

    William O. Douglas:

    Counsel, could I ask you, would you mind turning to page 71?

    Walter L. Budge:

    71 of the record?

    William O. Douglas:

    On — on folio 95.

    Walter L. Budge:

    Yes, Your Honor.

    William O. Douglas:

    Folio 95 and you — and she was not advised of her constitutional rights when you and Welch wrote this out and you didn’t tell her that that could be used against her then.

    No, I don’t think we did.

    Nelson testified.

    Walter L. Budge:

    Yes, sir.

    And that’s referring to the —

    William O. Douglas:

    Confession?

    Walter L. Budge:

    The written confession that was written out.

    William O. Douglas:

    Was that — that was the confession that was not introduced?

    Walter L. Budge:

    Well, I have the right page at 71,”If you have a question, you will correct that now that she was not advised of her rights to have counsel and her constitutional rights until about 25 minutes after you questioned her?”

    After, yes, that during the questioning and that is what I have said here that the first 20 or 25 minutes she was not advised.

    William O. Douglas:

    And what’s this — after you wrote this out, right below folio 95, what does this refer to?

    Walter L. Budge:

    This — that refers to the subsequent confession that was made in writing the following day, the next morning and this evidence that you’re reading here is — was not presented to the jury.

    This was presented to the Court to establish the admissibility of the evidence.

    William O. Douglas:

    And that’s the confession that was not introduced?

    Walter L. Budge:

    It was not introduced and did not —

    Felix Frankfurter:

    Mr. Budge, humpty dumpty is off my mind again, may I see if I can restore him on this which seems to me crucial.

    As I understand that this woman was questioned for five-and-a-half hours, is that right?

    Walter L. Budge:

    That is correct.

    Felix Frankfurter:

    As I understand it, you said that for the first 20 minutes, that’s neutrals.

    That really doesn’t count when she was asked this, that and the other thing about family, is that right?

    Walter L. Budge:

    That’s what the record would indicate —

    Felix Frankfurter:

    Yes.

    Walter L. Budge:

    — yes, sir.

    Felix Frankfurter:

    About whatever it is.

    At all events at end of that 20 minutes, she was told according to the record, your statement, that she had a right to counsel and that she could keep quiet, she need not speak, is that right?

    Walter L. Budge:

    Of her constitutional rights, yes, sir.

    Felix Frankfurter:

    She did speak —

    Walter L. Budge:

    Yes, sir.

    Felix Frankfurter:

    — and made these disclosures up to 4 o’clock which means 3 hours and 40 minutes of questioning which was accusatory and incriminating, is that right?

    After she was told that she had the right to counsel.

    Walter L. Budge:

    Well, I think a good part of it was accusatory (Voice Overlap) —

    Felix Frankfurter:

    But — but, anyhow that’s the —

    Walter L. Budge:

    Yes.

    Felix Frankfurter:

    And that was admitted, is that right?

    Walter L. Budge:

    Yes, sir.

    Felix Frankfurter:

    At 4 o’clock — well, these are all approximations of course, at 4 o’clock she was asked where she got the strychnine, where she bought it and at that point she said I like to have counsel.

    Walter L. Budge:

    No.

    Felix Frankfurter:

    Is that right?

    Walter L. Budge:

    She was — first — she first said that she poisoned —

    Felix Frankfurter:

    Yes, I mean (Voice Overlap) —

    Walter L. Budge:

    — Mr. Ashdown.

    Yes, and then they asked her —

    Felix Frankfurter:

    She gave all this there —

    Walter L. Budge:

    Yes.

    Felix Frankfurter:

    — and at 4 o’clock she was asked where bought the poison.

    Walter L. Budge:

    Where she obtained it, yes, sir.

    Felix Frankfurter:

    Where she obtained it.

    Walter L. Budge:

    That’s right.

    Felix Frankfurter:

    Obtained it.

    And she then said I like to have a lawyer.

    Walter L. Budge:

    I think I should not —

    Felix Frankfurter:

    And the authorities said, “Well, you’ve told us everything, except where you got it.”

    And that your Supreme Court said that up to the time that she demanded counsel, having been told she could have it but declined to have it or not asking for it, that is admissible but it’s a point where she says I don’t want a — I want now a lawyer, from thereon it couldn’t be admitted, is that right?

    Walter L. Budge:

    That’s what the District Court held and did and the Supreme Court affirmed.

    Felix Frankfurter:

    Now, what I want to know is this.

    According to the law of your state as declared by your court, have we a right to infer or are we even under duty bound to infer that if at the end of the 20 minutes, if after — after this neutral, after this chit chat talk, they then began to ask serious questions introducing it with an assertion, a statement to her of her rights.

    She said, “Well, I don’t want to say a word and I want a lawyer.”

    If they said then you can’t have one and she had talked the way she had talked, would that confession according to the available law of your state, would that have been admitted?

    Walter L. Budge:

    None of it would have been admitted, Your Honor.

    Felix Frankfurter:

    And you base that on the decision of — of your court in this case or is that a rule of law in Utah?

    Walter L. Budge:

    Well, it would be an involuntary confession if we would take —

    Felix Frankfurter:

    Well, I — all I mean to say is are there decisions in Utah that I can read that lead me — that would require me to be confident that if after 20 minutes she said I want a lawyer and they then have denied it, the — the confession would not have been admitted.

    I’m — I’m asking out of innocent ignorance.

    Walter L. Budge:

    Well, I may not be able to intelligently reply, Your Honor, but I’ll try.

    That the opinion of our court merely holds that the — the fact that she was questioned in the absence of counsel and by the officers in the manner she was questioned did not —

    Felix Frankfurter:

    Well, Mr. Budge —

    Walter L. Budge:

    — did not show the — the confession itself was involuntary.

    Felix Frankfurter:

    No, but you — you stated with appropriate confidence, you put a title to it as I assume you are, that if she had asked for a lawyer and they said no you can’t have one, that that’s the cutoff time that nothing would have been admitted.

    And if that’s the law of Utah that’s very vital but the mere fact that she — that they concluded it wasn’t coerce, doesn’t give us the answer.

    Earl Warren:

    You may answer that after the —

    Walter L. Budge:

    Thank you.

    Earl Warren:

    — recess.