Baldonado v. California – Oral Argument – May 08, 1961 (Part 1)

Media for Baldonado v. California

Audio Transcription for Oral Argument – May 08, 1961 (Part 2) in Baldonado v. California

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Earl Warren:

Augustine Baldonado, Petitioner, versus California, Number 186, Luis Estrada Moya, Petitioner, versus California, and Number 187, Elizabeth Ann Duncan, Petitioner, versus California.

Mr. Wirin.

A. L. Wirin:

Mr. Chief Justice, may it please the Court.

In these consolidated petitions, each of the petitioners were charged with murder, in the Ventura County in California.

Each of them was sentenced to the death sentence and are presently under death sentence.

The petitioner Duncan pleaded not guilty to the charge.

In brief would the theory of the prosecution was that she had conspired with the remaining, with the other two defendants to murder her daughter-in-law, the wife of her son, the young lawyer in Santa Barbara because of the — of jealousy, because he had married this girl.

In any event, she pleaded not guilty and she was convicted by a jury and thereafter under the procedure in California which is to the effect that one who is convicted in a capital case may then have a trial by jury as to — as to what the sentence maybe, either life imprisonment or death.

She was given the death sentence.

Potter Stewart:

It’s the same jury always, isn’t it?

A. L. Wirin:

Same jury.

With respect to the other two petitioners, while in custody, they made confessions.

In a moment, I shall tell Your Honors the circumstances of the release of the confessions by the District Attorney, but in any event, they made confessions that they — to the effect that they had been employed by Mrs. Duncan to murder her daughter-in-law and thereafter, they pleaded guilty, but they were entitled to a trial by a jury as to what sentence should be imposed.

Felix Frankfurter:

I didn’t hear.

A. L. Wirin:

Till they pleaded guilty —

Felix Frankfurter:

Yes but they were —

A. L. Wirin:

But they were — they were entitled under California procedure to a trial by Court or jury and they selected a jury as to what sentence should be imposed, either the death sentence or life imprisonment, and they were given death sentences.

This Court in the grant of certiorari, a number of issues were raised in the petitions, limited the issues to two, and I shall paraphrase them summarily.

The first issue which — to which this Court limited certiorari was whether or not the conduct of the District Attorney and the resulting publicity in the community in Ventura, I’m of course paraphrasing the Court’s order, the Court’s orders are in — are in the record, if Your Honor — Your Honors have page reference, in any event the first issue is whether as — as indicated by this Court, was whether the conduct of the District Attorney and the resulting publicity as well as other accompanying circumstances deprived the petitioners of a fair trial and a due process under the Constitution of the Fourteenth Amendment.

This Court also indicated another issue and that is whether or not the presence of three jurors who finally remained on the panel which tried one of the defendants who when they arrived in the jury box as been not — as then prospective jurors and venire admitted that they believe the defendant guilty whether or not their continued presence upon — they be selected as jurors and their continued presence as members of the jury violate the right of fair trial guaranteed by Due Process Clause of the Fourteenth Amendment.

Charles E. Whittaker:

You say –-

Earl Warren:

That was the Duncan case, wasn’t it?

A. L. Wirin:

That’s it.

Yes Your Honor.

Charles E. Whittaker:

That was my question, which one?

A. L. Wirin:

Yes, yes.

The second issue applies only to the Duncan case.

The first issue applies to all of the three cases.

I shall address myself entirely to the first issue, first of the two issues and I shall be followed by Mr. Warner who will address himself to the second issue which applies exclusively to the Duncan case and then it is our plan with Your Honors permission to have Mr. Henson make the rebuttal argument in — in all of the cases.

Earl Warren:

May I ask this, Mr. Wirin?

A. L. Wirin:

Yes, Your Honor.

Earl Warren:

Is it your position that the — what happened in the Duncan trial as to the jurors has any bearing at all on the other two cases?

A. L. Wirin:

Well, it is our position that what happened in the Duncan trial as to the rulings of the Court and the conduct of the District Attorney in connection with that case has the bearing upon all of the cases.

On the other hand, it is probable that the precise question as to whether or not, there were three jurors in the Duncan case who had an express whether — expressed an opinion.

That is limited in the Duncan case but let me qualify it further.

It’s our contention that there were jurors in both the Baldonado and Moya cases as well as in the Duncan case, who have formed the opinions as the result of the publicity, there’s the (Inaudible) District Attorney and who remained on the jury so that these defendants also were denied a fair trial.

Charles E. Whittaker:

But is that question here with respect to the others?

A. L. Wirin:

It is with respect to the others only in this limited context, and that is whether or not under all of the circumstances, the others, Baldonado and Moya received the kind of trial which the Due Process Clause accords every person particularly in the Capital case.

So to that narrow extent and only to that narrow extent is it in the case.

The thrust or the gravamen of the argument with respect to the other two petitioners would also apply to Mrs. Duncan is the conduct of the District Attorney and the resulting publicity and with respect to that, but I want to primarily, not entirely, address myself and proceed to — to make my presentation.

Charles E. Whittaker:

(Inaudible)

A. L. Wirin:

Sequence of the trial was as follows.

Mrs. Duncan was tried first both thrust on guilty and then the death sentence was imposed.

Baldonado was tried second and the last of the trio was Moya.

I shall I think I’m reasonably certain in my argument, have some occasion to refer specifically to the dates because and I may say to you at this point then I won’t say it later, because it is our contention that the prejudicial effects of the statements made to the press by the District Attorney continued in their impact throughout a reasonably long period and continued through the trials of Baldonado and Moya.

And in that respect, it is our position that the cases to be distinguished from a case which I argued before, some of Your Honors some time ago, the Strobel case in which there was — once they had been by a prosecutor, Justice Clark wrote the opinion, Justice Frankfurter, and Justices Black, and Douglas dissented, be that as it may.

In that case there was one statement by a prosecutor made a long time prior to the trial and this Court took the view that the impact of that improper statement had dissipated prior to the actual trial.

In our — it is our contention in this case that that is not so, but on the contrary, the impact continued probably because of the nature and the quality of the statements made by the prosecutor to the press and largely because he continued to make statements which were prejudicial and inflammatory throughout the three proceedings.

Felix Frankfurter:

Mr. Wirin.

A. L. Wirin:

Yes Your Honor.

Felix Frankfurter:

I need some indictment.

I don’t understand your answer to the Chief Justice’s question —

A. L. Wirin:

Yes Your Honor.

Felix Frankfurter:

— namely, the interrelation of these three cases.

These are three cases against three individuals, each of whom was tried separately.

A. L. Wirin:

That’s correct, Your Honor.

Tom C. Clark:

In each case we have a separate record.

Is that right?

A. L. Wirin:

Yes.

That is correct, Your Honor except —

Felix Frankfurter:

Now, was there any — was there in the cases subsequent to Mrs. Duncan’s trial either in Moya or Baldonado, was there any stipulation that evidence introduced in the earlier trial should be deemed as though introduced in the succeeding trials or were these trials absolutely separate?

The argument – the suggestions you last made or the observations that a — that a conduct may continue over a period of time is irrelevant to my question.

A. L. Wirin:

Yes.

May I —

Felix Frankfurter:

My question is whether three cases separately tried before separate juries here on separate records should be judged independent, each record being an autonomous proceeding and therefore your answer to the Chief Justice is not clear to me when you said it has some connection.

What is the connection?

A. L. Wirin:

Alright.

In the first place to answer your — Your Honor’s specific question, it is true that the cases are here on three separate documents which are denominated rec — separate records in each case.

However, with respect to the motion for change of venue which was made and it is largely in connection with the rejection or the denial of the motion for change of venue, a motion suggesting prejudice in the community.

In connection with the motion for change of venue, I think it is accurate to say that all of the petitioners relied upon the same — some immaterial —

Felix Frankfurter:

But separately introduced in each trial.

A. L. Wirin:

But — but separately introduced —

Felix Frankfurter:

Or — or by stipulation agreed to —

A. L. Wirin:

Yes, Your Honor.

Felix Frankfurter:

— to carry over, wasn’t it?

A. L. Wirin:

Quite — quite so.

Separate — there was — they were by — both by stipulation and they were by stipulation incorporated in each of the cases.

Felix Frankfurter:

Let me ask you this.

A. L. Wirin:

Yes.

Felix Frankfurter:

Put in short reverses.

A. L. Wirin:

What is the exception?

Felix Frankfurter:

What I — what I want to know, could I judge each one of these trials by merely looking at the record of each one of these trials?

A. L. Wirin:

I believe so.

Felix Frankfurter:

Well then — then there’s no connection between the (Voice Overlap)

A. L. Wirin:

Well except that — except Your Honor that some of the material —

Felix Frankfurter:

I don’t care about the material.

I want to know whether each record presents an autonomous record of the cases which must be decided by this Court.

A. L. Wirin:

I would answer Your Honor’s question.

Earl Warren:

Now I — I’m just a little confused now because you said there was some kind of a stipulation concerning these things carrying over this.

A. L. Wirin:

When I say —

Earl Warren:

Where is that stipulation in the record?

A. L. Wirin:

Well may I just say to Your Honor that the identical material —

Earl Warren:

Well that’s not a stipulation.

If there is a stipulation in the record, I will —

A. L. Wirin:

Well, the identical material appears —

Earl Warren:

I beg your pardon.

A. L. Wirin:

The identical material upon which their motion for change of venue was relied upon appears for instance in the Baldonado record and in the Moya record.

Baldonado’s counsel having adopted the material which are — which was presented in the — in the Moya record.

So to that extent while the records are separate, some of the material is duplicative in that it was physically incorporated in the other record.

Earl Warren:

Well I was just talking to your — your stipulation as you said.

There was no — there was no stipulation.

A. L. Wirin:

Well, the stipulation was — might maybe deem to be — this maybe deem to be so, namely, that portions of the record in one case maybe deem to be considered in the other case.

Felix Frankfurter:

Well that’s just a physical way of dealing with the materials in each record.

A. L. Wirin:

But I’m entirely content to answer Mr. Justice Frankfurter’s question by saying that we are content that each case be considered upon the record of that case and move along then to the —

William J. Brennan, Jr.:

Well Mr. Wirin —

A. L. Wirin:

Yes Your Honor.

William J. Brennan, Jr.:

Moya and Baldonado first pleaded guilty, did they not?

A. L. Wirin:

They did Your Honor.

William J. Brennan, Jr.:

And then Mrs. Duncan was tried and she was — there were witnesses against her, were there not?

A. L. Wirin:

That is true, Your Honor.

William J. Brennan, Jr.:

And her trial, her first trial was on guilt or innocence.

A. L. Wirin:

That’s correct Your Honor.

William J. Brennan, Jr.:

Then followed as I understand it before the same jury that determined her guilt another trial as to sentence.

A. L. Wirin:

That is correct, sir.

William J. Brennan, Jr.:

And how long after the determination by that jury of the death sentence for her was the Baldonado trial?

A. L. Wirin:

Well, Mrs. Duncan was sentenced on April the 3rd.

Baldonado’s trial began on April the 6th.

William J. Brennan, Jr.:

Now this was, of course, not a trial or guilt or innocence, he pleaded guilty, it was only to determine sentence, wasn’t it?

A. L. Wirin:

That’s right.

That is true.

William J. Brennan, Jr.:

On April 6.

A. L. Wirin:

On April 6.

Three days thereafter.

William J. Brennan, Jr.:

How long did —

A. L. Wirin:

And included about — and took three days and concluded on April 9.

William J. Brennan, Jr.:

And then Moya?

A. L. Wirin:

Moya’s trial began on April 20th about 10 days thereafter although there were some proceedings in connection with Moya between April 9th and April 20th.

So that it is our contention that quite immediately one after the other, these cases were tried though of course conceded that the issues in the Baldonado and Moya cases were different, the issue was different from one of the issue which was in the Duncan case maybe of guilt or innocence.

William J. Brennan, Jr.:

Now was — was it common to all four proceedings, the question of the prosecutor’s conduct?

A. L. Wirin:

Indeed.

William J. Brennan, Jr.:

That was common — that was also an issue in the trial of Mrs. Duncan on guilt or innocence.

A. L. Wirin:

It was raised indeed.

William J. Brennan, Jr.:

But the materials in all four cases regarding prosecutor’s conduct was the same?

A. L. Wirin:

Well I think I maybe —

Felix Frankfurter:

But I think if you — if I may interrupt or intervene, I think we’d all save time if you told us what the facts were, you see them relevant to the issues.

A. L. Wirin:

Well good, good Your Honor.

May I just say — may I just make one qualification if I may because I don’t’ want to misstate anything.

I think it is probable that the Duncan record differs in some respect on the issue of change of venue, from the record in the Moya and Baldonado cases, but as to those cases, the record is identical because of the operation.

Now I —

Earl Warren:

Now one other — one other thing.

You said that she was sentenced on the — on the 8th of April, did you?

A. L. Wirin:

3rd

Earl Warren:

3rd of April and the trial of — of the —

A. L. Wirin:

Baldonado began three days thereafter.

Earl Warren:

Thereafter —

A. L. Wirin:

On — on the penalty.

Earl Warren:

Yes, but when was her — when was her second trial completed?

Was it — was it completed before —

A. L. Wirin:

Yes.

Yes it was.

Earl Warren:

It was completed before either trial, before the trial of Baldonado?

A. L. Wirin:

It was.

Earl Warren:

Yes.

A. L. Wirin:

But it is our contention that after her trial was concluded, there were still statements pertaining to the involvement of all of the three defendants, including the remaining two by the District Attorney.

So we think that the critical dates or critical date is not when she was convicted but what transpired during this — this entire proceeding and I’m prepared now to state what took place, what’s the conduct of the District Attorney and what the presence of the mass media did about it?

Earl Warren:

Well do you contend that what he said after the second verdict was in on Mrs. Duncan that that affected her trial?

A. L. Wirin:

No, not at all.

Earl Warren:

Not at all.

A. L. Wirin:

No.

Earl Warren:

Very well.

A. L. Wirin:

Merely our contention that it affected the trials which dealt which followed thereafter.

Earl Warren:

Yes.

A. L. Wirin:

And if I will answer Your Honor’s question, the (Inaudible) Moya from our point of view was the — the victim or the subject of the cumulative effect of numerous statements made by the District Attorney first in the Duncan case and then to the Baldonado case and I have occasion also to refer in — in passing to some of the rulings made by the trial court and the publicity given to them which we think was also prejudicial.

Earl Warren:

Well on the rulings of the trial court, wasn’t that determined in the Supreme Court of California?

A. L. Wirin:

Well, when I say the rulings I am referring to, for instance, a statement made by the judge.

I’m referring to two things.

First, the statement made by a judge which according to the record was publicized widely in — in the local press that, and I am paraphrasing it, that the suggestion that the citizens of Ventura County could not give a fair trial to these defendants was an insult to their integrity and insult to their integrity and we see that kind of a statement, I am not talking about rulings, I said rulings I misspoke myself, the kind of a statement made publicly obviously made — may have had prejudicial effect with respect to all of the defendants who by that time hadn’t been tried at all.

Moreover to answer Your Honor’s question, affirmed.

When the jury returned its verdict in the Duncan case, he made a statement which appeared in the local press as a matter of utmost importance.

Generally commending, I’m not sure about the precise word now, the verdict in the — in the Duncan case.

And moreover, when shortly thereafter, the after sentence was imposed, Baldonado was tried and the jury found him guilty after having been out purely, through imposed death sentence, after having deliberated on the matter less than two hours.

The judge said to the jury and to the public and thence to the press, he complimented the jury and he congratulated them upon their courage.

Now we think that kind of a thing may — maybe a factor in having influenced the jury which three days thereafter was going to determine whether to send — to send to gas chamber the third of these defendants, namely, Mr. Moya.

But however, the major point of our — of our complaint is the matter of, if I’ll use a shorthand phrase of trial by newspaper, but that’s not an accurate phrase in this case because what all of these petitioners object to is not trial by newspaper (Inaudible) to trial by fair court and jury, but trial by prosecutor in the newspapers.

And hence the problems which this Court had in Bridges and the Times cases and other cases to determine one point at what point a newspaper opens against the law by virtue of publications which have a tendency to do affect the administration of justice.

That is not an issue in this case.

The issue in this case is whether or not the State of California through one of its agencies, namely the District Attorney of Ventura County, intentionally or otherwise, it makes much difference, resorted to the press and made prejudicial and inflammatory statements to the press, calculated the prejudice the community against these defendants as the result of which conduct by the District Attorney, these defendants did not get in Ventura County in California that kind of fair trial which the Due Process Clause of the Fourteenth Amendment accords to all.

And so I turn then with the expectation of giving Your Honors some specific details or certainly not all of them because the statements by the District Attorney and law enforcement officers on this control are very many.

They are outlined in our briefs and needless to say, I do not have the time and shouldn’t take the time to outline them all.

But I do want to indicate some of them to give Your Honor some examples of — of the following.

A. L. Wirin:

Let me — before I come to that, let’s make a further argument or conclusion or state my own opinion and then I shall develop the facts.

As we understand it, the Constitution accords to all the right to one trial and to a fair one.

We think in this case these defendants, these petitioners, received two trials, neither of which was fair.

The first trial was in the public press, a trial in which the District Attorney acted as prosecutor and the second trial was before a court and jury which we think was only a trial in — in really no more than in form, a trial which merely registered or recorded the verdict which had already been reached by the community from which the jurors who tried these defendants were selected and that therefore, though I hope I’m not overstating it, that what happened in these cases was that the verdict had already been sealed against these defendants in the community and the court proceeding was merely the form of — of opening up the verdict —

John M. Harlan II:

If you don’t mind I suggest to you, I think you help us a lot more if you could guide us through what you consider to be the controlling thing instead of characterizing them all.

A. L. Wirin:

Your Honor it’s quite, I’m sure Your Honor is quite right.

Earl Warren:

And Mr. Wirin also I — I — in these cases while they’re consolidated are listed as Baldonado and Moya and Duncan.

Now I hope you are going to discuss them separately and not — and not bring them all together so that we have to decide all the issues as to one case because there are some very different situations in these three cases.

Are you going to do that for us?

A. L. Wirin:

I hope so.

Earl Warren:

So who you want to start with, Baldonado?

A. L. Wirin:

I’m going to start with Duncan.

Well because — because —

Felix Frankfurter:

You hope so.

You say you hope so.

I assume that means you determined to do so and that it’s clear in your own mind that they are three separate cases.

If — instead of clearing your own mind, you wouldn’t possibly make it clear to us.

A. L. Wirin:

Well, the reason I said I hope so is I have so often failed in carrying out my — my intention.

Moreover, I must also make this —

Felix Frankfurter:

You didn’t emphasize what the intention should be.

A. L. Wirin:

I understand, but I must — must say to Your Honors, nonetheless at this point that with respect to the defendants Moya and Baldonado, they rely upon the statements made against them and about them made by the District Attorney which statements were filed in the Duncan case as also to Mrs. Duncan to be sure once the Duncan case is through then she can no longer rely upon any conduct by the District Attorney and Baldonado and Moya can.

And when Baldonado’s case is through, he cannot rely upon statements made by the District Attorney but Moya can and I shall attempt to distinguish between these three situations as they go along.

Your Honors, we have a attached as an appendix to the brief in the Baldonado case for the convenience of the Court two of the statements made by the District Attorney which we consider the most prejudicial and the most unfair.

One is in Appendix A which had and that’s in two sheets and the other is Appendix B.

Your Honors will (Voice Overlap)

Earl Warren:

That’s in your brief and Duncan –

A. L. Wirin:

Baldonado brief —

Earl Warren:

Oh! Baldonado! Yes.

A. L. Wirin:

And the Government printer was good enough to make an offset copy of —

Earl Warren:

Yes.

Earl Warren:

Yes, I see.

A. L. Wirin:

Now Your Honors will note the — the headline, I can’t refer to it except because of course the prosecutor is not responsible for — for headlines.

She doesn’t write — like headlines of any newspapers, but Your Honors will note that under this headline which is at larger type as I’ve ever seen in this — in this paper, the District Attorney has quoted in the extreme right hand column, extendedly –

(Inaudible)

A. L. Wirin:

He has quoted as same and he’s going to present the case to the grand jury.

We don’t think that’s extremely prejudicial.

We do think that a statement made by him which is after the — the second fold on the right hand column to the effect that Mrs. Duncan had previously tried to hire the killing of her son’s wife and a direct quotation attributed to him, which he has never denied.

This is not the first time Mrs. Duncan tried to have her killed.

We think this was an entirely improper statement by a District Attorney at a time when these defendants having him been charged with any crime although they have been arrested and were under a suspicion.

We think moreover that it was improper and incidentally this case does not involve the conduc — the misconduct of the District Attorney in any direct way.

This is not a contempt proceeding against the District Attorney.

The narrow question which Your Honors have to face is whether the conduct of the District Attorney deprived these defendants of a fair trial.

We think it did for the District Attorney to make public to the press and to — and to this community a comparatively small community of about 170 to 180,000 people in their county, essentially a rural community.

We think it was depriving these defendants of the fair trial to which they — they were entitled and which trial they were made to have for the District Attorney to release the confession of one of the defendants all together.

Felix Frankfurter:

Well where is that?

Where is that release of the confession?

A. L. Wirin:

Well we think it’s clear Your Honor from a reading of the story that the District Attorney comments on the confession.

It is further clear that at that time —

Felix Frankfurter:

I just — I just want to see it with my own eyes.

Where is it, Mr. Wirin?

Fact is so much powerful that speeches about it.

A. L. Wirin:

Well You Honor, the best I can do and say to Your Honor that the story recites that officers said that Mrs. Duncan was told certain things and then officers undertake to summarize the confession which — which was made by — by this defendant.

Moreover refer —

Felix Frankfurter:

Wait a minute.

You just said you very well know Mr. Wirin and nobody is more sympathetic with scrutinizing the conduct of prosecutors than I am, but I’d like to know – have the facts before I do that.

Now you said the District Attorney released the confession there.

Where in print do I find that?

A. L. Wirin:

Would Your Honor bear with me a moment?

Felix Frankfurter:

I bear with you.

All — all you want me to bear with you, I’m simply asking you to make good on your statements.

A. L. Wirin:

May I — may I give that direct reference to Your Honor a little — little bit later if necessary through other counsel.

Felix Frankfurter:

Alright.

A. L. Wirin:

To the effect that the District Attorney made public this confession.

Felix Frankfurter:

But I thought it was apparently it’s not in this sheet.

A. L. Wirin:

Well it isn’t as clear as I should like it.

Potter Stewart:

It is summarized beginning at the bottom —

A. L. Wirin:

It is — it is summarized, the defendant was in custody.

The confession could have been given to the press only by the law enforcement officers of whom the District Attorney was in charge, but Your Honor, let me — let me back away from that and let me give Your Honor a little bit later a direct reference to the District Attorney having made this confession public.

Felix Frankfurter:

I hope you entirely face it like an issue.

A. L. Wirin:

Now then — but Your Honor, we object not quite as much to the release of the confession as we do to the statement given to the press by the District Attorney, at the same time that this confession was made public no matter who made it public.

Under a headline again for which he is not responsible on the left hand side, DA urges death term in killing and according to this story, which has never been denied by the District Attorney, he issued a formal statement to the press.

He, the prosecutor, he is under obligation to accord these defendants of fair trial.

Before their trial had even began, talks about the killing as in the second paragraph, the brutal calculated revolting killing for hire, makes the decisions for hire of all, of over Duncan and then he goes on and on and in the last paragraph, and in the last paragraph of this statement made by the District Attorney.

He says, “I hope the people of this State rise up against the propaganda, double in connection with capital punishment and they must demand so and so.

Now we think —

Felix Frankfurter:

Am I right, am I right in reading that statement whatever I might think of this, am I right that in that statement, there’s no reference direct or most oblique to any of these defendants?

Is that correct?

A. L. Wirin:

I — yes.

I think Your Honor that is —

Felix Frankfurter:

Well you could say yes or no to that, can’t you?

A. L. Wirin:

Well I was going to say, I think it’s —

Felix Frankfurter:

You take time.

A. L. Wirin:

I think it is not entirely correct for this reason Your Honor.

I think that in the reading what appears under this general — under this main banner, you should read this statement by the District Attorney in the context of the confession which had been made public.

And I think that it is a reasonable — first that it is a reasonable inference that the District Attorney who is quoted in one context —

Felix Frankfurter:

But he has been quoted, he has been — you see that’s my difficulty.

You say the District Attorney released the confession.

Then when I ask you where is it you say, “Well will you bear with me, I’ll tell you about that later.”

Then you refer to a statement in which there is no reference to any defendant and you say it isn’t true that there is no reference because that must be read in context with the right hand column which however you agree doesn’t sufficiently made clear that the District Attorney released it.

A. L. Wirin:

Mr. Justice Frankfurter, if you will bear with me and you said you would, you will discover that in this — that the District Attorney is quoted in quotation mark –

Felix Frankfurter:

Yes, but –

A. L. Wirin:

— as having said — as having said, this is not the first time Mrs. Duncan tried to have her killed.

So in part —

Felix Frankfurter:

But I was talking about the confession.

Is there any reference in the right hand column that the District Attorney whose name was what was it –

A. L. Wirin:

Jackson –

Felix Frankfurter:

— that he released it.

I’m not denying the fact.

I’m merely denying that I don’t find that in this column.

A. L. Wirin:

I am saying to Your Honor that with respect to the question as to whether he released it, I hope to demonstrate that to you (Voice Overlap)

Felix Frankfurter:

Very well, but then you make — then you got to make that statement carry more than it is barely capable of carrying.

A. L. Wirin:

That is quite true, Mr. Justice Frankfurter, but — but, Mr. Justice Frankfurter, while it is true that the statement which the District Attorney gave to the press on the death penalty does not mention any of these defendants by name.

He is talking about the only offense which is involved in this matter, he’s talking about the brutal killing by hirebales by Duncan.

Felix Frankfurter:

Perhaps, I will accomplish my prefaces best by not asking you any further question which you will lay bear all the facts.

A. L. Wirin:

Well I know.

I think I know.

I’m glad to answer any question.

Felix Frankfurter:

I know you are but I don’t think you can get much proper.

A. L. Wirin:

Now we think another statement made by the District Attorney, which appears in Appendix B to that —

Earl Warren:

Now that’s all — that’s all that you have in mind so far as this particular exhibit is concerned, what have told?

A. L. Wirin:

That’s all I have in mind as to that exhibit is concerned with the qualification that I am claiming that it is part of a persistent continuing program and plan by the District Attorney to make statements concerning these cases to the press prior to and during the trials which said statements adversely affected such defendants as — as where they were after tried.

Earl Warren:

The same — on the same page is a picture of the shallow grave in which they found the murdered young woman, is it?

A. L. Wirin:

That is true, Your Honor.

Earl Warren:

Yes.

You object to that?

A. L. Wirin:

No.

I don’t object to anything that a newspaper prints.

I’m objecting to what the District Attorney hands out to a newspaper to print in connection with the guilt of the defendants.

Earl Warren:

Very well.

A. L. Wirin:

Now the other statement I’m calling Your Honors’ attention is a statement attributed to the District Attorney which he has never denied and this is at a time also prior to that trial, it is Appendix B to our — to our — to the brief and in it, well, he makes an argument.

A. L. Wirin:

He refers to the three persons who had been arraigned.

So obviously, he was —

William O. Douglas:

What is the time interval?

You’ve given us — the first one was one statement, (Voice Overlap)

A. L. Wirin:

That was September 22nd.

This next statement is on December 30.

William O. Douglas:

This is —

A. L. Wirin:

Eight days after.

William O. Douglas:

Eight days later.

A. L. Wirin:

Yes.

In the meantime as our briefs indicate particularly in the Moya brief, every single day between the 22nd of the 30th, Mr. Gustafson made some statement about the — about the evidence and about the case.

Felix Frankfurter:

Where are they?

Are they in the record?

A. L. Wirin:

They are — they are in two places.

First they are in the record, in the form —

Felix Frankfurter:

Well just give me — can’t you refer to the page?

I have the greatest possible interest in this case, Mr. Wirin.

You well know from my prior writings.

All I want to do is to be satisfied that you make out your case if you got a case.

A. L. Wirin:

Alright.

William O. Douglas:

Those are the only two you mentioned in —

A. L. Wirin:

Yes.

Those are the only two in the Baldonado.

The Moya brief is much fuller Your Honor and contains numerous other statements which do not appear in the Baldonado brief, and if I may turn to the Moya brief —

Felix Frankfurter:

Well now were all these other statements entered before the Court in each case?

A. L. Wirin:

They were in the Moya and Baldonado cases.

Felix Frankfurter:

In each case, they were these statements on the basis of which you felt you did not have your client and you have a fair trial within each record.

A. L. Wirin:

Some of — some of these were not in the Duncan record, but were in the Moya and Baldonado records although the two statements which I have just called up Your Honors’ attention were in the — in all of the records.

But now this —

Earl Warren:

So you rely, in the Duncan case you rely on these two statements and these alone.

A. L. Wirin:

I would — I would answer that yes.

Now that in the Moya brief, we have references to the Moya record with respect to the further statements made by the District Attorney.

Felix Frankfurter:

May I — may I, before you move on, pursue Chief Justice’s question.

If you rely on merely on those two statements in the Duncan record, then you cannot say that there was a persistent course of conduct by the District Attorney.

Isn’t that so?

If you only — if you — you just answered Chief Justice — Chief Justice that these are the only two things in the Duncan record.

Well, then your statement that there was a persistent course of conduct can’t apply the Duncan.

A. L. Wirin:

I would make that concession.

Felix Frankfurter:

Well, but it’s very vital to that case, isn’t it?

To me it makes a lot of difference whether District Attorney talks all the time over that the judge what he did once or twice.

One who betrays the state of mind and the other may betray a lapse.

A. L. Wirin:

In any event let me say that in the Moya record, there are references to numerous other statements made by the District Attorney in the record in the Moya record at the various page of references.

They are found in the Moya brief at pages 8 to 11 and the record references appear there.

With respect to Moya and Baldonado, the District Attorney not only made various statements, some of which I’ve already called Your Honor’s attention, but after he had argued the case to the jury, he deemed it appropriate to issue a formal release to the press explaining that when he made some remarks about some of the other judges in the course of which to the jury, he had said that he was ashamed of their conduct.

He made a formal release to the press that he had misspoken himself and all he intended to say was that he had regretted the conduct of these other judges rather than being ashamed of it.

The —

Earl Warren:

Who said that?

A. L. Wirin:

The District Attorney.

Earl Warren:

When was that?

A. L. Wirin:

This was after his argument in the Duncan case.

He made the statement.

I am merely citing that as an example, that the District Attorney was of the view that it was entirely proper for him to make such statements as he — as that occurred to him in connection with the trial — with the trial of the case or what happened in the case.

The newspaper — local newspapers were thought that when the jury verdict came in, in the Duncan case, he hailed the verdict and we think that must have had some effect upon the jurors who were thereafter selected to determine the sentences, to be imposed on Moya and Baldonado.

Now with respect to Moya and Baldonado, then I —

Earl Warren:

Well wouldn’t the — wouldn’t the record at the trial itself convey that same impression just as strongly if the District Attorney in the trial of the Duncan case urged the jury to render the — to inflict the death penalty and the jury did, it would be a natural assumption whether he said it or not that he was satisfied with the verdict, wouldn’t they?

And what — what difference would that make to the public?

A. L. Wirin:

Well I’ll merely answer Your Honor’s two foldedly that I want to use my colleagues.

In the first place, we think the District Attorney in common fairness may not try his case twice.

He may not tell the public from which a jury is selected, what his evidence is going to be, and may not make statements which are prejudicial against the defendants first in the public press and then repeat them before — before the jury.

In other words, if (Inaudible) tries the case once, and it entitled to try his case in the public — at a public trial rather than public press.

A. L. Wirin:

Moreover, whenever a District Attorney makes a statement before a court in jury, the defendant is there.

He is represented by counsel, and the defendants’ counsel have — have some opportunity to meet that statement and to refute it.

In this instance, when the District Attorney resorts to the public casting and results to the press to try his case, the defendants in this instance most of the statement he has (Inaudible) not even represented by counsel.

A seriously disadvantage and what happens is as it happened in this case the community makes up its mind with respect to the guilt or innocence or the quantum of sentence to be imposed before members of that community reach the jury box and then the jury box — and then the jurors and the jury box are disposed as most human beings are to accord to or to adhere to in the opinion and judgment which they had theretofore made from reading the statements of the District Attorney.

Earl Warren:

Mr. Wirin, I notice in the Appendix A to the respondent’s brief in the Moya — Moya case, where we have so many items of news, the Government lists, according to the record, 69 statements that counsel for the defense gave to the press concerning the evidence and other matters in the — in the case.

Do you think that bears upon the situation at all?

A. L. Wirin:

Well I think this Your Honor.

In the first place, it’s easier for me to answer this question of the counsel because I was not one of the counsels in the case.

But in any event, it is — it is their position as I understand it, that when they came into the case, such prejudicial statements have been made by the District Attorney against — against these defendants.

The day he felt as a matter of elementary self defense to accord their defendants, the mode to come of a fair hearing ultimately that they should make some reply.

This is particularly true.

Mr. Henson will tell Your Honors about a recording of which he arranged to have played of the defendant Moya.

Moreover Your Honor, while the list in the appendix by the Attorney General is a long one, the import of the statements made by counsel for the defendants is that they were nominal and inconsequential statements not at all comparing or contrasting to the vigorous and prejudicial statements made by the District Attorney and finally —

Earl Warren:

I know this one in there where counsel says that the prosecution was solely for the purpose of politics and that the District Attorney intended to climb to higher office over the dead body of the defendant Duncan.

You think that is provocative?

A. L. Wirin:

I think that’s a — I think that’s a — an overly strong statement.

Actually as we indicate in our brief, we’re going outside the record as has the Attorney General.

Mr. Gustafson did run for — for office immediately after these cases.

But I think that’s an improper statement.

Earl Warren:

(Voice Overlap)

A. L. Wirin:

Oh, three or five six months, I’m sure.

Felix Frankfurter:

Same year you mean.

A. L. Wirin:

Same year.

Now —

Potter Stewart:

Did he win?

A. L. Wirin:

He didn’t.

The sole for a second thought in the community tried.

One final word to Your Honor; in any event, in any event, even — even if counsel for the defendants made the improper statements, the more evidence that the defendants whose rights after all are the ones who are — rights are at issue and those lives are in stake, in any event, any misconduct by the prosecutor is not a tone for compensated by comparable misconduct even by counsel for the defendants.

Earl Warren:

I — I agree with you on that, but there’s one other thing that struck me in — in here.

As I understand from the briefs, the defendant Baldonado — Baldonado through discovery proceedings acquired the tape —

A. L. Wirin:

That’s correct, sir.

Earl Warren:

That prosecutor had taken on his confession.

A. L. Wirin:

That’s correct Your Honor.

Earl Warren:

And that he, the defendant, gave that tape to the broadcasting companies to be broadcasted.

A. L. Wirin:

That’s correct Your Honor.

Earl Warren:

And that he himself went on the air in order to reassert —

A. L. Wirin:

Just the recording, I think.

Earl Warren:

— recording to reassert his — his confession of guilt and how he had beaten — beaten and strangled this unfortunate young woman there.

Do you think that the statement of the District Attorney compares in any respect with — with that so far as influence on the public is concerned?

A. L. Wirin:

Yes.

The District Attorney as we contend issued a statement to the press calling for — as to — as to the nature of that confession, calling from that confession the most horrendous features advantageous to the prosecution and harmful to the defendant.

And as explained in the reply brief which the defendant Moya filed, his Court appointed counsel was of the view that when the District Attorney distorted the confession and painted this defendant in this horrendous role that if the public or the entire confession as it was actually given, it would dilute or mitigated some part of the prejudice which the District Attorney had created in making the confession public.

Later on, I shall keep my promise to Justice Frankfurter to demonstrate the District Attorney made this confession public.

Felix Frankfurter:

May I ask you this question about the prison system for either of the State or the — of this county?

This tape recording that the person that gave or allowed to be made was done while he was in prison, I think.

A. L. Wirin:

Indeed, by the District Attorney.

Felix Frankfurter:

Pardon me.

A. L. Wirin:

By the — by the personal officials.

Felix Frankfurter:

I was going to ask you, he would have to get — he would have to be authorized to do this to receive reporters have a reception and have the TV people in and all that, that would require the consent of the prison authority, wouldn’t it?

A. L. Wirin:

Well he was — he was in county jail.

Felix Frankfurter:

What county jail?

A. L. Wirin:

The prison county jail, the District Attorney pretty much has a large authority over —

Felix Frankfurter:

Well it’s a matter of just — you know we deal about civil liberties as a matter of civil liberty.

Suppose all of that were denied to a person confined in the county jail, could he claim any right either under the California law or the Fourteenth Amendment or anything to be allowed to receive reporters and talk to them, make a good case for himself —

A. L. Wirin:

The facts have not been made clear by me, let me do so.

What happened was that the District Attorney or the law enforcement officers secured a recording in prison from this defendant.

This was taken ex parte and in camera.

The Attorney —

Felix Frankfurter:

But the propriety of that is not an issue here.

A. L. Wirin:

We have not challenged that.

Felix Frankfurter:

All right.

A. L. Wirin:

The Attorney for — the Court appointed Attorney, Mr. Henson for this defendant knew about this recording because it was reported, in the press there was a recording.

So he secured a copy of the recording through discovery proceeding and then he arranged for this recording made by the prison officials to be played over the — over the radio.

In other words — in other words, the — he arranged himself and never saw.

Felix Frankfurter:

He arranged meaning the authorities had to give him permission to do that.

A. L. Wirin:

Well no, he secured a Court order and to examine and to secure access to the State recording.

Felix Frankfurter:

Yes, but he — could he have been blocked in doing that?

The original recording was it that, that you now tell us, was at the behest of the State, is that right?

A. L. Wirin:

That’s true.

Felix Frankfurter:

And that counsel knew that there was going to be such recording?

A. L. Wirin:

Of course not.

He did when he read in the papers that there had been one.

And then he thought —

Felix Frankfurter:

And that’s not brought an issue here?

A. L. Wirin:

No.

Felix Frankfurter:

The more I listen to this case, the stranger it gets.

Earl Warren:

Well Mr. Wirin, I notice also in your brief you complain because there was photography permitted in the courtroom.

A. L. Wirin:

Yes sir.

Earl Warren:

Now as I read the brief of the State, that was done at the request of the defendant and over the objection of the District Attorney.

A. L. Wirin:

Your Honor —

Earl Warren:

Is that true?

A. L. Wirin:

I think the District Attorney consented.

Both sides consented I think that is.

Earl Warren:

I read the brief of the Government to say that the — that the District Attorney objected to it and that the — and that the defense requested it.

Now is that — did the defense request this photography in the courtroom?

A. L. Wirin:

First as to the role of the District Attorney, my recollection know what took place was that the District Attorney said, “I object to it unless the defendant consents.”

Alright, now the defendant did consent, I’m talking now about the defendant Duncan.

So there’s no question that was asked to defendant Duncan.

She is in no position to object to the photography or the news reel, TV recordings which were made of that trial.

But Your Honor, immediately after Mrs. Duncan was sentenced, Baldonado came on for trial for his life as did Moya thereafter.

A. L. Wirin:

Neither they nor their counsel consented to these photographs or these new — or these TV reportings and yet they were the victims of it.

So far as the —

Earl Warren:

Were there any objections to it?

A. L. Wirin:

I can’t be sure, Mr. Henson perhaps will answer Your Honors question more directly.

Earl Warren:

Very well.

Mr. Warner.

Arthur Warner:

Yes sir.

I’m sorry sir, Mr. Chief Justice and Members of the Court.

Earl Warren:

You represent which one?

Arthur Warner:

I represent Mrs. Duncan with respect to — and my discussion will be limited to (Voice Overlap)

Earl Warren:

I didn’t see your name on her — on her brief.

Arthur Warner:

I believe it is, sir.

Earl Warren:

Oh is it?

Arthur Warner:

Yes Your Honor.

Both the (Inaudible) brief and reply brief.

Second —

Earl Warren:

I was looking at the brief, the brief that was filed March 18, 1961.

I see Mr. Wirin, Mr. Dutch, Mr. (Inaudible), and Mr. Rosa.

William J. Brennan, Jr.:

That’s another case.

Arthur Warner:

That’s another case, I believe Your Honor.

Earl Warren:

Oh Baldonado.

I beg your pardon, sir.

I beg your pardon.

Arthur Warner:

I’m in second position on the other.

Earl Warren:

Yes.

Yes, excuse me.

Arthur Warner:

Now — because of the dissipation of the time, I’m going to be relatively brief and I’m going to devote the remarks to following proposition, the petitioner’s right to a fair trial was denied by the manner in which the constituency of the jury was established.

I’m going to start with Your Honors’ permission by reading from pages 6 and 7 of the reply opposing brief, part of the examination of voir dire.

Hugo L. Black:

What brief is that?

Arthur Warner:

The petitioner’s closing brief in Duncan, 187.

Arthur Warner:

I — ordinarily I wouldn’t read it to the Court that’s in there but I think it sets the stage.

It establishes the moot of the trial court’s mental process as an overruling the challenges for cause which later will be referred to in this short discussion.

Now during this examination, this lady, juror Dodge, stated that she believed the defendant to be guilty and that she would require evidence to remove that opinion.

Then the examination concluded, the end of it was as follows.

The Court, you don’t mean to say that you would require the defendant to prove anything, do you?

The defendant is not required to prove anything under the law.

This respective juror – I realized that Judge Blackstat, yes.

The Court – But you said, I go, that’s the Court language, that you would need some testimony from the defendant.

Mr. Gustafson, the District Attorney – Your Honor, the question she answered was that she would need some evidence to remove her opinion.

The juror – Opinion.

The Court – But she indicated at one time that she would require some evidence from the defendant to remove that opinion, didn’t you?

The prospective juror – That’s right.

I said that.

The Court – You did that, didn’t you?

The prospective juror – I said that.

The Court – You still feel that way.

The prospective juror – Yes sir.

Now it appears —

William O. Douglas:

Well that (Voice Overlap) that didn’t serve.

Arthur Warner:

She didn’t sit.

That’s right.

No but that’s not — that isn’t the —

William O. Douglas:

What’s the relevancy of this thing?

Arthur Warner:

Because the reason, the mental processes of the trial court in excusing this juror makes one skeptical as to how this trial court applied the law with respect to the rest of the juror that’s in this case and this is what I’m going to point out to the Court with its permission.

Immediately upon the termination of this voir dire examination, the Court stated as follows.

This is the last challenge.

If he had to use a challenge on this juror, it would be his last challenge.

I think I will allow this challenge.

Earl Warren:

Was that an act of harshness or an act — act of liberality towards the defendant?

Arthur Warner:

I don’t know.

Arthur Warner:

I have my opinion.

I believe — well I better not state what I believe.

Earl Warren:

But he did.

He did —

Arthur Warner:

Excu —

Earl Warren:

Excuse her for a cause.

Arthur Warner:

Yes.

But the reason for it is not because this juror was obviously disqualified from serving constitutionally because she was unable to accept a hypothesis or any hypothesis that included a presumption of innocence for the defendant and she was unable to — to disabuse her mind of the fact that the defendant was required to produce evidence to establish her innocence.

Now with her hypothesis, it didn’t or doesn’t require a metal giant to realize that this juror, without any argument, was constitutionally disqualified from serving on any case let alone a capital case.

But the —

Hugo L. Black:

How does that prove that any other juror was?

Arthur Warner:

I beg your pardon, sir.

Hugo L. Black:

Well your problem is, isn’t it, on this point to show that jurors were kept on like that, not to some jurors who let of.

Arthur Warner:

Yes.

Hugo L. Black:

Whatever the reason —

Arthur Warner:

I’m going to establish that but in order to establish here Your Honor, I must indicate the mental processes of the court because I —

Hugo L. Black:

We did — I suppose what we need to decide if you use mental processes, the jurors were left on there like that —

Arthur Warner:

Alright.

Hugo L. Black:

— not what the Court thought about it.

Arthur Warner:

Alright.

Well, perhaps I —

Felix Frankfurter:

You have — your point would have some validity with me if you could turn to other portions of the record in which the judge made a similar disclosure or even a disclosure of an ambiguity of his mind as to what is required of jurors?

Arthur Warner:

Not objectively but I can give you the hypothesis with separate —

Felix Frankfurter:

I don’t — I don’t care about hypothesis because I — really, I have to act on what’s in this record and such reasoning –

Arthur Warner:

That’s right –

Felix Frankfurter:

— as legitimately flows there from.

Arthur Warner:

That’s what I intend to do.

Felix Frankfurter:

Now are there any things in which legitimately there flows the judge allowed jurors to remain or may defendant needlessly to exercise his preemptory challenges in keeping people off.

It’s the judge who should have thrown off.

Arthur Warner:

I — that’s exactly what I have on my finger on right now.

Felix Frankfurter:

Alright.

Arthur Warner:

— literally, on this piece of paper.

I am now going to concern myself with four jurors, named, Porter, Barice, Sabadra and Flynn.

Now (Inaudible) the testimony on voir dire, this is what happened.

With respect to juror Porter, as a result of discussions with specific people, 20, 15, or 20 people, and from what he read, he believed that the petitioner, that Mrs. Duncan was guilty, that the opinion was such, that the evidence, that evidence would be required to overcome it.

And that if his wife or a member of his family were on trial for the same offense, he wouldn’t trust the fate of his wife or member of the family with jurors or to the judgment of jurors who were in the same frame of mind if he — that he was.

Now undoubtedly, that juror was uncon — or constitutionally disqualified from sitting, both under the so-called rehabilitation statute to which reference is made in the — both briefs, and under the federal criteria established by decisions of this Court going back many years, I don’t have to press that point at all.

Now with juror Sabadra, the second of the four jurors, practically the same hypothesis existed with the additional fact that outside of the courtroom she had expressed her opinion of guilt and that becomes material and important because of the criteria this Court and these cases to which I just referred well at the rehabilitation statute of California.

Juror Flynn had indicated his belief of the defendant’s guilt from discussions with persons from what he had read.

He believed the defendant to be guilty.

He had discussed the case with many people, possibly some of them might have been witnesses or potential witnesses.

The same hypothesis exists with juror Barice.

Now these jurors had entered the box with opinions as to the defendant’s guilt.

On initial examination, they maintained those opinions.

They stated there — a close reading or a close analysis of the voir dire examination would indicate the solidity or practical — practically a solidity of feeling.

It was — it was solified — solidified in their minds.

Now the District Attorney apparently under the guise of rehabilitation under Section 1076 of the California Penal Code posed some questions to these four jurors.

The questions were leading questions and not only were they leading questions but they were framed in such manner that if the answers were not given as suggested the juror would hold themselves out to be an irresponsible and unmoral citizen.

And I have set forth on pages 32 and 33 and 34 and 35 of the opening brief, the type of question that the District Attorney had propounded to allude to obtain a declaration from these witnesses under the Section 1076 that they could sit impartially and decide the case pursuant to the instructions of the Court.

Earl Warren:

Were those questions — were those questions objected to as misconduct?

Arthur Warner:

No.

Earl Warren:

Why — why if they were so designed, would they not be objected to?

Arthur Warner:

Well I do — I fail to see how any particular question set forth on these pages by itself would amount to misconduct merely asking the juror by — they may — there may have been objection of us being leading —

Earl Warren:

No.

you were talking about the type of questions and the inference that would flow from them and the unfair position that put the juror — prospective juror and then making his answer.

Now if that is true, why wouldn’t they be objected to on the trial?

Arthur Warner:

Because the District Attorney in this case was a very competent and clever man.

Earl Warren:

Were not they the attorneys for the other side?

Arthur Warner:

But the attorneys on the other side had a different standard of conduct.

I’ll explain it that way.

Earl Warren:

Well, if that’s your answer, it’s different.

Felix Frankfurter:

Mr. Warner may I ask you this?

When the voir dire examination was completed, there were objections to the retention of these prospective jurors as jurors, is that right?

Arthur Warner:

That’s right.

Felix Frankfurter:

Could you refer me to the record in which the basis of the objection is stated or was it merely of an unexplained objection?

Arthur Warner:

The record is replete.

Earl Warren:

Now are you referring to the four who were — who were taken off?

Felix Frankfurter:

You are talking about four –

Arthur Warner:

Yes, these four.

I believe the brief — the brief.(Voice Overlap)

Charles E. Whittaker:

— maybe stricken by the defendant.

Did any of these four jurors sit in the trial of this case?

Arthur Warner:

They did not, Your Honor.

Felix Frankfurter:

Alright.

Arthur Warner:

Now —

Felix Frankfurter:

Are these — are you — I’m sorry, I misunderstood, it’s all my fault.

Are you getting these instances as — as validation of your statement to me that you’re going to show me other instances disclosing the state of mind of the Court.

Arthur Warner:

It well —

Felix Frankfurter:

They don’t do that, do they?

Arthur Warner:

Yes because the Court had overruled petitioner’s objection for Court.

Felix Frankfurter:

The first one that you read, where he excused the Court somebody who said that the defendant would have to, in effect, at least (Inaudible) prove his innocence, none of these four illustrate that point, do they?

Arthur Warner:

Well the judge made no comment about these, but the — the —

Felix Frankfurter:

You maybe right, if he made no comment on that, each these four up to the other the first one seems so bad —

Arthur Warner:

Well the — the — the trial court made a finding as to these four jurors.

Felix Frankfurter:

What is the finding?

Arthur Warner:

That they were qualified to sit.

Now —

Earl Warren:

And you used the peremptory on them?

Arthur Warner:

Yes.

The defendant, the petitioner on this case, the defendant was required to utilize four of her preemptory challenges to excuse these jurors from the box who should have undeniably been excused for cause.

Felix Frankfurter:

It brings me to, for me, the crucial question in the case, was the conduct of the trial judge in not excusing for cause, jurors as to whom the preemptory challenges had to be utilized such that he was — he had exhausted or she had exhausted the preemptory or preemptory of preemptive challenges and therefore which prejudiced in that way

Arthur Warner:

Yes.

That’s what we — they seek to establish in our briefs that because she was wrongfully deprived of four, at least, four preemptory challenges with respect to this group of four, she was unable to deal with three other jurors who were permitted to remain in the jury box.

Felix Frankfurter:

Does the record if I go to the record which is — which I have not done, if I go to the record as I shall, will I find that the defendants lawyer then said, “We have no more preemptive challenges but I would like to have them, if I had them to get rid of A, B, and C, but I can’t because Your Honor misruled in this rule in not allowing us and compelling us to use preemptive challenges when you should have been discharged them for cause.

Arthur Warner:

In those words —

Felix Frankfurter:

Does the record – do I find that in the record?

Arthur Warner:

The record — the record and — will not contain those words but will contain a situation from which that is definitely spelled out.

Felix Frankfurter:

Alright.

Arthur Warner:

Now —

Felix Frankfurter:

(Voice Overlap) as my word, I can have it in the lawyer’s word.

Earl Warren:

Alright.

May I ask you this, Mr. Warner?

Did you raise that before the Supreme Court of California?

Arthur Warner:

Yes we did, sir.

Earl Warren:

What did the Supreme Court hold?

Arthur Warner:

Well the Supreme Court made a finding as to the four jurors just the four jurors said nothing about these three jurors who sat and the Supreme Court of California using a favored expression that some state courts held that the trial court did not abuse its discretion in overruling the objections for cause to the four jurors that we have just discussed.

Earl Warren:

But that’s a finding, isn’t it?

Arthur Warner:

Well it is a finding that is not borne out by the record and it is a finding in defiance and in derogation of these holdings of the California Supreme Court and appellate court decisions over a period of 80 years.

Because for a period of 80 years, the California courts have held that where a prospective juror has an opinion and that opinion is based partly or entirely upon sources other than general circulating reading material or common rumor, he cannot be rehabilitated, he’s a disqualified juror, he’s not a juror that constitutionally sit.

And the Supreme Court has gone further and stated that where it is unclear whether this juror had predicated his opinion partly upon sources other than general rumor or common circulating reading material, when that hypothesis is not clear, then he cannot be qualified because this Section 1076 which permits a so-called rehabilitation is in derogation of the common law under which, of course, no juror who has expressed an opinion at any time can be qualified or rehabilitated.

Earl Warren:

You have to go further so far as I’m concerned.

Not merely that for all I know accepting your statement of it that the Supreme Court of California disregarded its own precedents or reference to the rehabilitation of prospective jurors.

Here you have to go further and you have to make out a case that the defendant had to exercise territory challenges needlessly in the acceptance in the case of jurors who patently were disqualified, incapable of giving a fair trial so that if they could be — if the defendant had allowed those jurors to sit, he would have had loaded dice in the jury box because the fact that this was outside or in defiance of, if you please, of local state court rule which about, which I know nothing is enough to make it violative of due process, is it?

Arthur Warner:

Now merely the violation, no.

The — inconsistent rulings by state court, it doesn’t give rise to denial of due process.

They can reverse their position and then —

Felix Frankfurter:

You have to — you have to show that according to California law, he was allowed — she was allowed how many preemptors?

Arthur Warner:

Supposedly 20.

Felix Frankfurter:

20, all right.

Arthur Warner:

Actually she — by — by rule of the court, she was granted 16, she was denied the equal protection of the law.

Felix Frankfurter:

But suppose you say she’s allowed 20 but she wasn’t allowed to exercise them at the risk of having on the jury patently biased jurors.

You’ve got to establish that.

Arthur Warner:

We have in our brief, Your Honor.

Earl Warren:

Now may I ask you, Mr. Warner.

When — when was this issue first raised?

Arthur Warner:

The — which one Your Honor?

Earl Warren:

This one you’re talking about — about now.

Arthur Warner:

In California in the appellate court, the first appellate court that was hit with this brief in this argument and that was the Supreme Court.

It was a direct appeal from the —

Earl Warren:

You raised it in your opening brief in the Supreme Court?

Arthur Warner:

No, partially in the opening brief and partially on the reply brief.

Earl Warren:

How partially did you raise it in the — in the opening brief?

Arthur Warner:

In this manner, we emphasized and delineated the facts concerning the four jurors that they were constitutionally unfit, that preemptory challenges have to be utilized which shouldn’t have been utilized that the petitioner was deprived the four — four such challenges needlessly and therefore, she was prejudiced.

She — then in the reply brief, after the Attorney General had denied that the denial of these preemptory challenges had constituted a prejudice in the reply brief, we continued by showing the — the circumstances of the proceeding of these three jurors, their mental processes, their disqualification, and their — the petitioner’s inability to deal with these jurors because of the wrongful deprivation of four preemptory challenges.

Earl Warren:

Yes.

Alright now let me ask you this, Mr. Warner?

Did you raise — did you raise that issue on the motion for a new trial in this very Court?

Arthur Warner:

Yes sir.

Earl Warren:

You did?

Arthur Warner:

I believe we did.

I — I —

Earl Warren:

I — reading the briefs I understood you did not.

Arthur Warner:

Well —

Earl Warren:

Now I don’t want to argue with you because you know the record and I don’t.

Arthur Warner:

I just recall.

I just recalled.

Earl Warren:

You want to know — you want to know whether you raised it in the — in the trial court or not on your motion for a new trial.

Arthur Warner:

On a motion for a new trial generally, that was set forth the denial of due process under the Fourteenth Amendment and the particulars of the argument as I purported to give them here and perhaps in a feeble manner, were not set forth in detail, but the — the result or the conclusion that I arrived at here was set forth in the motion for a new trial.

Earl Warren:

Alright.

Now let — now let me ask you this as to anyone of the 12 jurors who sat in her case, did you object during the trial?

Arthur Warner:

No.

Earl Warren:

You did not object to the sitting –

Arthur Warner:

Oh — to any of the 12 sitting, no.

There was no objection.

If Your Honor means by a challenge for cause —

Earl Warren:

I mean just what I say.

I mean did you object — did you object to the sitting of any single juror who sat in the case of Mrs. Duncan.

Arthur Warner:

By overt acts, yes, not by a specific challenge for cost.

Earl Warren:

What do you mean by overt act?

Arthur Warner:

Because immediately upon the acceptance of the jury by the District Attorney, counsel for the petitioner or Mrs. Duncan moved for a change of venue.

He refused to okay the jury in plain language.

He didn’t accept it.

Earl Warren:

Well now let’s — let’s find that in the record.

So we just find which you did raise.

I’m — I think I —

Arthur Warner:

Alright, on page 673, Your Honor.

Earl Warren:

673, alright.

Arthur Warner:

Beginning — perhaps, either 10 lines in the bottom.

Mr. Gustafson passed for cause and continued it down.

Earl Warren:

No,wait a minute, wait a minute, 673?

Arthur Warner:

72 — 672 Your Honor.

Earl Warren:

Oh 672.

Arthur Warner:

I didn’t mean to say 673.

Earl Warren:

Alright, passed for cause.

The Court – Alright the preemptory is with the people, Mr. Gustafson, I accept that Your Honor.

Mr. Solomon, Your Honor, before the jurist one may counsel for its events.

Yes and the following proceedings were held.

Now tell me in there what — what was said to — to challenge any single juror who sat in that case.

Arthur Warner:

Well not any single but practically all of them and I’m going to quote the following language.

At this time Your Honor, I want to renew my motion for removal, change of venue to another county upon the grounds that as it is apparent from the voir dire examination of the jurors who have been examined, the perspective jurors who have been examined for the last one and a half days that my client cannot receive a fair and impartial trial in this county.

Arthur Warner:

Then he goes on to say, “I think it is apparent from the voir dire examination that the vast majority of perspective jurors who have been called on this jury box and have been examined on voir dire have formed an opinion adverse to Elizabeth Duncan.

Now that includes everybody that was examined.

That includes the people sitting in the box and the people who were not sitting on the box Your Honor and this overt act of Mr. Sullivan, of defense counsel, in refusing to accept the jury and made immediately moving for a change of venue is more significant than words that may come from his mouth that we challenge for cause or something equivalent.

Earl Warren:

Now you merely state that in such general terms, but the court, after you had stated that in those very general terms and not attacking any particular juror said this.

Do you want to argue the motion for a change of venue?

Mr. Sullivan, that’s counsel for the defendant, I take it, I’m — I am just arguing it here now.

The Court – Do you want to argue it further in the absence of the jury?

Mr. Sullivan – No.

I’m going to submit it to Your Honor.

I don’t want to go into any extensive argument.

You’ve heard the voir dire examination of all these jurors.

The only thing I could say Your Honor is that I haven’t read yesterday’s transcript to the voir dire examination.

Perhaps if I have some time to go through it, I might pick out some additional things but I think that perhaps Your Honor recalls the tender of the absence that we receive, then both of you say well it’s — it’s submitted.

Arthur Warner:

Yeah.

Well, the — of course upon the — the completion of the jury and upon the exhaustion of 20 preemptory challenges, defense counsel was no position in the presence of the jury to — to issue a challenge for cause.

He would have prejudiced his client.

Earl Warren:

But you were outside of the presence of the jury when you were arguing this matter.

Why couldn’t you say to the — why couldn’t you say to the Court then?

Now Your Honor, we have been deprived to four preemptory challenges and we think that that’s unfair.

We think it’s a violation of the Constitution and we think we’re entitled four more preemptory challenges.

Why couldn’t you say that to the judge?

Arthur Warner:

Well the — the —

Earl Warren:

You said you didn’t want to say it.

Arthur Warner:

Well — no, no, Your Honor, may I point this out?

That — that the counsel, all through this record has proceeded on the basis that he was using preemptory challenges when he did — he shouldn’t have.

William J. Brennan, Jr.:

Well then he say so, it’s 673 before the judge, in the middle of the page.

Therefore, he left us with some six.

For preemptory challenges, he said the usual 20 because in effect, we had to use our preemptories on jurors whom we felt might believe the voir dire examination discloses a bias and prejudice against in this respect and then that’s your point.

He raised it there, didn’t he?

Arthur Warner:

Yes, I believe he did.

Arthur Warner:

Thank you Your Honor.

William J. Brennan, Jr.:

I believe he did.

Arthur Warner:

Yes he did.

William J. Brennan, Jr.:

All right.

Thank you.

Earl Warren:

Well I wish you could (Inaudible)

Tom C. Clark:

I — I think also right above that he raised the point you’re talking about right now, the last three sentences to pull that.

Right away you stop.

Earl Warren:

Now on the motion for a new trial, did you, where did you raise it there?

Arthur Warner:

I will have to leave that —

Earl Warren:

Well it’s alright.

You go ahead.

William O. Douglas:

Where did you raise it as a federal question?

Where did you —

Arthur Warner:

First time Your Honor.

That would be in the trial court.

William O. Douglas:

I say where – I know where in the trial court?

Arthur Warner:

Well in a motion for a new trial.

William O. Douglas:

Did you raise — I see you raise this point that you only had six preemptory challenges, you said that the usual 20 because you had to use your preemptories on people who use that were disqualified for cause but where did you make that into a federal question?

Arthur Warner:

Page — co-counsel just directed my attention to page 80 of the record.

William O. Douglas:

Page 80?

Arthur Warner:

Yes, in the Duncan case Number 187.

Hugo L. Black:

Page what number?

Arthur Warner:

8 — 8 — 80 Your Honor.

And the — under paragraph 15, the second paragraph under number —

Earl Warren:

What is it — what is this motion that you make here?

What is this?

Arthur Warner:

I believe it is a motion for a new trial.

Earl Warren:

That’s a motion for a new trial.

Arthur Warner:

Yes sir.

William O. Douglas:

Well you just — that motion just speaks generally that she’s been denied due process.

Arthur Warner:

Yes.

I — I don’t suspect that trial practice in the Court when things are done hurriedly that you specifically set forth niceties of argument.

The general procedure is to preserve the record by a general objection under the applicable constitutional provision and that’s been done here.

William O. Douglas:

Yes but this is broad enough to — to include every — everything.

I don’t know if we’ve gone so far as to leave it up to under broad catchall to without any specification as to the manner in which —

Arthur Warner:

Well, out of context yes but in context, in connection with the — with the arrest — with the allegation and the motion and for defense arguments, it’s apparent that this part of the Fourteenth Amendment contemplated the matter of the jurors.

Earl Warren:

Why wouldn’t it apply just as much for instance to your — your item eight where you say the — the Court erred in refusing each and every instruction offered by the defendant and refused by the Court.

Do you intend to apply to that also that he misdirected the jury on matters of law?

Does your — your —

Arthur Warner:

Well, I don’t think — I don’t think we purport to make that a federal question his refusal to instruct.

Earl Warren:

How do we know — how do we know what you — what you intended to make federal question and how would the Court know what you intended to make a federal question of if you weren’t more specific than that?

Arthur Warner:

Well, as I stated to Mr. Justice Douglas, out of context I had no answer but in context, the proceedings that — the matters that preceded and the matters that succeeded this, it’s apparent that the only matter involved as far as due process was concerned at that time was a matter of a selection of the jurors.

I — I think it’s well established practice and Your Honor knows from the California practice that you usually state that set forth statutory grounds and under those statutory grounds you can later expand and include the things in a more definite manner.

Now I — I think that’s a proof procedure and I think that in taking this in (Inaudible) or proposing it or considering in context, there’s no other interpretation as susceptible except that everybody knew as a practical — practical matter that we were talking about the manner in which the jurors were selected.

I believe that unless there are any pertinent questions, I believe I overstepped —

William O. Douglas:

Well you’re also talking about the District Attorney’s statements on the press I suppose too?

Arthur Warner:

No.

I have nothing to do with that question.

William O. Douglas:

Well I say this objection would run to that too, wouldn’t it?

Arthur Warner:

Yes.

It probably would.

So unless this Court wants to make further inquiry of me, I would — a deference to the co-counsel (Voice Overlap) an issue to retire.

John M. Harlan II:

I would like to ask you a question, if may.

The Supreme Court whatever you did or didn’t do below, the Supreme Court of California dealt with your claim that you’re making, is it not?

Arthur Warner:

Not entirely.

It omitted, it didn’t make —

John M. Harlan II:

Or it dealt with your claim that by reason of the improper denial of your challenges for cause as you claim it, on these four jurors, you had been foreclosed from exercising preemptory challenges on the last three —

Arthur Warner:

That’s right.

John M. Harlan II:

— which you otherwise would had?

John M. Harlan II:

That’s the essence of your claim, is it not?

Arthur Warner:

That’s right.

John M. Harlan II:

As I read the Supreme Court’s opinion, it dealt with that claim.

Arthur Warner:

Yes sir.

John M. Harlan II:

It doesn’t say whether it dealt with it as a matter of state law or whether it dealt with it as a matter of federal claim on your part, what did you contend in your brief on appeal?

Arthur Warner:

I believe we contended generally although not as much as —

John M. Harlan II:

Have you got your brief here?

Arthur Warner:

Yes.

John M. Harlan II:

Would you be willing to leave them with the clerk?

Arthur Warner:

I’ve just been instructed or advised that they have been filed.

John M. Harlan II:

Is this Court?

Arthur Warner:

Yes sir with the Court reporter.

John M. Harlan II:

Thank you.

Arthur Warner:

Thank you.

Earl Warren:

Very well.

Mr. Henson.

Burt M. Henson:

With my extent of (Inaudible)

Earl Warren:

Yes you may.

You may use it in that — in that manner.

William E. James:

Mr. Chief Justice, Associate Justices —

Earl Warren:

You may continue Mr. James.

William E. James:

Thank you Your Honor.

I will address myself first to the first question to which this matter was limited upon the order granting certiorari and that was whether the petitioners and that’s all three of the petitioners’ rights to a fair trial, guaranteed by the Due Process Clause of the Fourteenth Amendment was violated by the conduct of the District Attorney, the resulting publicity, and the other circumstances attending to this trial.

It is our position that the conduct of the District Attorney actually was never an issue in the trial below.

That the issue in the trial below on the motions for change of venue related to the newspaper publicity and the question that the Court was faced with and which our Supreme Court was faced was were these defense denied that fair trial, the right to an impartial jury as a result of newspaper publicity.

And it was presented to the trial courts, and it was presented to the Supreme Court on the basis of affidavits and newspaper exhibits that were presented to the trial court on the various motions for change of venue.

And it —

Felix Frankfurter:

The opening — the opening statement of the Supreme Court, your Supreme Court’s opinion on page 143 of the Duncan record, defendant places particular emphasis on newspaper report of statements made by the District Attorney to investigate.

William E. James:

That’s right.

Newspaper reports of statements made by the District Attorney.

Felix Frankfurter:

Made by the District Attorney.

William E. James:

And the other, yes Your Honor.

Felix Frankfurter:

Doesn’t that mean that the relation of the District Attorney to those statements is in the case?

William E. James:

Yes.

The newspaper publicity was an important thing.

The District Attorn —

Felix Frankfurter:

The newspaper reports made by the District Attorney, not newspaper reports.

William E. James:

I think the opinion of our Supreme Court referred to the District Attorney was reported there as saying or it is — it was stated in the press that the District Attorney said this and this.

The Supreme Court for the State of California was very careful —

Felix Frankfurter:

Does your Supreme Court — does your Supreme Court — I haven’t read this opinion since we granted certiorari before you granted the petition, it was nearly a year ago.

Does your Supreme Court completely — does your Supreme Court find on the record that the statements which are attributed by the press or part thereof to District Attorney were in fact not made by him?

William E. James:

No.

It — it merely said other statements which the District Attorney was reported to — was reported to have made where that he had evidence of this was not the first time defendants sought to hire someone to (Inaudible) and he goes on and release certain —

Felix Frankfurter:

I just — I just want to call the reach of your suggestion that this issue was not in the case.

William E. James:

It was in the case insofar as the newspaper publicity might have deprived these defendants for the theory —

Felix Frankfurter:

And not for the (Inaudible) of the District Attorney to that publicity.

William E. James:

Only insofar as the District Attorney admitted making one statement, he — before the Supreme Court denied most of those statements.

Felix Frankfurter:

I’m not implying it if he wants to be solidity of his response to the (Inaudible), but his relation to the publicity certainly was considered by your Supreme Court?

William E. James:

That’s right.

Yes Your Honor, it certainly was.

But whether the District Attorney made it and of course the Supreme Court of California wasn’t concerned with any disciplinary proceedings whether the District Attorney made those statements or didn’t.

He denied most of those statements and it was acknowledged by the Supreme Court.

He did admit some of those statements and I’m going to go through the various exhibits that were presented to the trial court because I think it’s important the entire exhibits, I believe are before this Court.

They should be before this Court.

Felix Frankfurter:

Couldn’t it be more helpful at least to one member of the Court and by doing just that.

William E. James:

Well I hope I will be in the next few minutes Your Honor because I think it is important.

The charge before this Court is that there was content of the District Attorney which deprived these defendants of a right to which they were entitled and that was a fair and impartial trial before a fair and impartial jury in Ventura County.

And this was the issue that head be to decide it and the court, the trial court in California in Ventura County had this before it.

And maybe in response to some of the questions presented by the Court to Mr. Wirin before I go into these exhibits, I might clarify for the Court’s purposes in considering this argument just when these matters were presented and by which of these petitioners.

Now the first motion for a change of venue was made by defendant Moya on January the 13th, 1959.

William E. James:

It was joined in at that time by defendant Baldonado.

At that time, certain newspaper exhibits to which I’ll make reference, all of those exhibits were from December 15, through I believe it was either the second or the seventh of January.

It was prior to the 13th of January.

And then —

Felix Frankfurter:

Had there been an indictment filed?

William E. James:

The indictment was filed on December 26, 1958 against charging all three of these defendants with the murder of Olga Duncan.

This matter was argued on behalf of these two defendants on January the 13th, 1959 and denied by the trial judge on January 15th.

At that time, the trial judge allowed or permitted the defendants to renew their motion, he stated he was permitting them to renew their motion prior to their trials.

The trial at that time of these defendants and it’s turned out of Elizabeth Duncan was scheduled for February the 16th.

Now on February the 16th, Duncan, the petitioner Duncan made her first motion for a change of venue.

And in that motion for a change of venue, she incorporated by reference the newspaper exhibits that had been presented to the Court on January the 13th.

And she likewise appended to her application an exhibit to which I’ll make reference which contained certain news releases that were in the Ventura Star Free Press and the Oxnard Press Courier from the period of January the 12th through approximately the period February the 2nd, 1959.

And these were the exhibits before the trial court.

These were the basis upon which the trial court ruled on the motion for change of venue.

Now thereafter, after the jury was selected and it only took about four days to select the jury, they only interrogated 83 prospective jurors in the Duncan case which wasn’t much for a capital case, petitioner Duncan, through her counsel, made another change motion for a change of venue.

There was nothing additional presented and the argument was merely proforma and it’s recorded in the transcript before this Court and we have made reference to it in our briefs.

Now the —

Potter Stewart:

Mr. James —

William E. James:

Yes.

Potter Stewart:

In response to one of these motions, Judge Blackstock made quite a — unusual response about indicating his impression that the motion was reflecting upon the honor and integrity of the citizens of the county where his judge — where can I find that in the record, I’ve read it, I can’t find it now?

William E. James:

It is contained in the transcript of the Duncan case as I recall, rather it’s contained in the transcript of all three cases if I am not recall on — the exact sequence was I, it is a said commentary and integrity, decency and humanity and the people of Ventura County to say that the defendants whose very lives maybe at stake cannot receive the fair and impartial trial in this County.

Now we have put in our brief and it occurred, this appeared in the press I think on the date of the denial either the 15th of January, 1959 or the 16th of January.

Potter Stewart:

This was a superior court judge county —

William E. James:

This was the superior court judge likewise —

Potter Stewart:

(Voice Overlap) officials are appointed these judges —

William E. James:

He was initially appointed in 1946 by the then governor and our Chief Justice and he was reelected in 1954, reelected in 1948 and then 1954 as I recall.

Potter Stewart:

So it is an elective officer for six terms just six years.

William E. James:

It’s a six-year term for our superior court judges.

Now the counsel tells me that the statement that to which you made reference, Mr. Justice Stewart is in the record at page transcript 137 of the Moya transcript.

Potter Stewart:

Moya, where is it?

William E. James:

After that, it — it —

Felix Frankfurter:

May I — may I — you would or is it out of place in your orderly scheme of things, you would help me at least if you could refer to precisely the newspaper exhibit on the basis on which Duncan for the first time claimed newspaper inflammatory articles as the basis for seeking of change of venue.

William E. James:

Yes, I will.

Your Honor, if I may just make a brief reply to Justice Stewart’s question, following that article which is appearing on page 137 of the Moya transcript, the judge wrote a statement which was published in both the Ventura County, Star Free Press and the Oxnard Press Courier which he said I want to break any false impression which might have been created by reason of a statement made by me in an order denying a motion for a change of venue in the case of People versus Elizabeth Ann Duncan, Luis Estrada Moya and Augustine Baldonado.

Then he says the statement I’m referring to reads as follows and it is as I have read to you.

The judge then continues I his statement which was published in these two newspapers.

By making this statement, I intended in no way whatsoever to suggest that Burt Henson, Counsel for defendant Luis Moya and John Danch, Counsel for defendant Augustine Baldonado were attacking the integrity, decency, or humanity of the people of Ventura County.

William J. Brennan, Jr.:

This is also on the record, Mr. James?

William E. James:

As I recall they did not make this exhibit of January the 17th an exhibit in the —

William J. Brennan, Jr.:

Do I correctly read that page 136 of the Moya record —

William E. James:

137 of the Moya record.

William J. Brennan, Jr.:

Is this an opinion?

It looks as though it’s —

William E. James:

It was just a ruling, I believe of the Court.

William J. Brennan, Jr.:

I mean it’s not written out.

I know this is an order and so forth and then goes on with quoted paragraphs down to the end till the top of 138 ending up done this 15th day of January Charles and Blacksock, judges of superior court —

William E. James:

I think it was an order made on the ruling on the —

William J. Brennan, Jr.:

— an order which it could be stated.

William E. James:

— motion for change of venue.

Felix Frankfurter:

Now this — this is valid he’s been affected from page 138 in substance he said the same thing.

William E. James:

Yes he said in substance but he made a statement which was published in the papers so there was no mistake.

He was merely telling counsel that he felt at that time the people of Ventura County were capable of having a jury that could give these defendants a fair and impartial trial and he was willing to let the matter go to a selection of the jury which wasn’t the fixed place for at least a month and then as far as the Duncan case for a month and as far as Baldonado and Moya for a number of months.

So the judge retracted the statement but he did.

Now as I was stating the petitioner Baldonado never renewed his motion for a change of venue which was made along with Moya on January 13th.

He went to trial solely on issue of penalty on April the 6th.

Moya did renew the application for change of venue prior to the trial which is scheduled on April 20th.

That motion was made on April the 16th, 1959 and at that time, additional newspaper exhibits were presented to the trial judge to serve as the basis for the ruling of that Court on the motion for a change of venue.

And I think that we will perhaps serve everyone’s purpose if we refer directly to those exhibits which I understand are in the possession of the Court.

They were before the trial court.

They were the sole basis of this claim made by these petitioners in the trial court both in at the trial level and on appeal, automatic appeal to the State Supreme Court.

William E. James:

Now perhaps it would serve some purpose to point out some preliminary matters since this point — this first point is directed to what they say the conduct of a District Attorney the resulting publicity and in other circumstances attending to crime.

The case starts as far as the newspaper publicity is concerned on about November the 17th, 1958 in Santa Barbara County when there is a missing person’s report.

Olga Duncan who was the wife of Frank Duncan, the son of the petitioner, Elizabeth Duncan, she was the daughter-in-law of Elizabeth Duncan.

She disappeared under mysterious circumstances.

And the news media in Santa Barbara County and outside the Santa Barbara County was disseminating information concerned and it was a matter of great interest, of great news value.

And so there was a series of reports both in the Santa Barbara paper, in the Ventura, the Oxnard papers and the Los Angeles papers and other papers.

Hugo L. Black:

Did you say he disappeared to Ventu —

William E. James:

From Santa Barbara.

Hugo L. Black:

From Santa Barbara.

William E. James:

Yes Your Honor.

Hugo L. Black:

Was she living there then?

William E. James:

She was living there.

These petitioners with the possible exception of Baldonado were actually not residents of Ventura County.

The victim was not a resident of Ventura County.

She was a resident of Santa Barbara as was her husband, Frank Duncan, as was her mother-in-law, the petitioner Elizabeth Duncan.

Moya was also a resident of that County.

Now this is where the news was first emanating.

The District Attorney of Ventura County or rather of Santa Barbara County made certain statements in regard to her disappearance.

The papers published some report that the police had stopped the excavation of a street in front or the repaving of the street in front of where she resided, and that there was a possibility that they might recover her body.

In the course of this time, a fact came to light that there had been a fake annulment proceedings instituted by petitioner Duncan posing as her daughter-in-law Olga Duncan in Ventura County and an attorney in Ventura County had suggested it to Frank Duncan.

The facts came out that at later time —

Hugo L. Black:

Are those adjoining counties?

William E. James:

They were adjoining counties, north and west of Ventura, Santa Barbara County.

The annulment proceeding was instituted in Ventura County.

Elizabeth Duncan posing as her daughter-in-law and a Ralph Winterstein posing as the son of Elizabeth Duncan, Frank Duncan in this annulment proceedings and this made a blood of publicity and there was a lot of speculation in the various papers in regard to it.

And so the first newspaper exhibit that was presented on the motion for a change of venue by defendants Moya and joined in by Baldonado went in later by incorporation by reference in the implication of petitioner Duncan was what is Exhibit Number 15 which was an issue of the Ventura County Star Free Press on Monday, December 15th.

And in this case, it is merely stated woman held in disappearance, mother-in-law is key figure and it relates the occurrences that I have already referred to in Santa Barbara County.

John M. Harlan II:

Was Mrs. Duncan prosecuted this what you call fake annulment?

William E. James:

Yes Your Honor.

She was and that the next exhibit is a Los Angeles Herald Express which is Exhibit Number 33 which was an issue of the Herald Express of Los Angeles on December 15th with a caption, jailed lawyer’s mother as wife disappears.

William E. James:

A fake annulment proceeding, a prosecution for the fraudulent annulment was instituted in Ventura County against Elizabeth Duncan and her codefendant and she was convicted of it and she is presently under a sentence in the State of California.

Felix Frankfurter:

When was this – this case?

William E. James:

Pardon.

Felix Frankfurter:

The year of this.

William E. James:

This was in 19 — late 1958.

Earl Warren:

With relation to this her indictment in this case, when was she tried and convicted of that — of that crime?

William E. James:

It was, as I understand it prior to the prosecution of this case.

This charge was initiated first.

They had not at this time found the body of Olga Duncan.

So there was no prosecution pending for murder.

Ventura County was not involved in the murder case, it was involved only insofar as there had been a false annulment proceedings instituted in Ventura County.

Felix Frankfurter:

It must have been after this — this newspaper published.

It must have been after somebody disclosed —

William E. James:

Yes.

Felix Frankfurter:

It must have been after early November.

William E. James:

That’s — that’s correct Your Honor.

The matter came to life after Olga Duncan disappeared.

Her disappearance was in November 17th.

Now in what is Exhibit 1180 before this Court, Ventura County Star Free Press of the Tuesday, December 16th, there is a statement of a caption fake annulment charge jails three, nurse is missing, and therein it has related that officers desperately are seeking new leads today in the disappearance of a beautiful Santa Barbara nurse on November 17 and are holding a man on suspicion of kidnapping and her mother-in-law on charges of faking an annulment then relates it, investigators from Ventura County, District Attorney’s office, the Santa Barbara police, the Federal Bureau of Investigation are all seeking added information on —

Earl Warren:

What date is that?

William E. James:

This is our date of December 16th.

It is prior to the finding of the body, prior to the confession of defendant Baldonado and obviously prior to the indictment.

It is one of the exhibits that were presented to the Court on the motion for a change of venue.

There it is also —

Potter Stewart:

Does that identify the man being held for kidnapping?

William E. James:

Yes it says, held in Santa Barbara are Augustine Baldonado, 25 of (Inaudible).

He was booked on suspicion of kidnapping but officers have yet not revealed anything fails that is alleged connection with the missing wife also in custody in Santa Barbara for questioning as Luis Estrada Moya.

Potter Stewart:

So these two —

William E. James:

22 and also in this exhibit is a statement lawyer’s query is tipped off in annulment quiz, and it recites how an attorney, Helen Hamann’s the Ventura was the innocent attorney who affected the annulment proceedings without knowing that the participants, the principles —

Felix Frankfurter:

He was there with Mrs. Duncan’s lawyer in these annulment proceedings?

William E. James:

He — he purportedly got an annulment for Olga Duncan by means of the presence of Elizabeth Duncan testifying in Court.

Felix Frankfurter:

Well was he — he the counsel of Elizabeth Duncan, he must have been?

William E. James:

Well he — he actually represented Elizabeth Duncan.

He thought he was representing all of the Duncan.

Felix Frankfurter:

I understand that.

William E. James:

But she was the one who obtained the annulment proceedings, Olga knew nothing about this.

Tom C. Clark:

What date was that?

William E. James:

This was the Exhibit —

Tom C. Clark:

What date was that?

Did they file the annulment proceeding.

William E. James:

The annulment proceedings as I recall were filed in Ventura on about August the seventh of 1958.

Frank Duncan had married Olga Duncan, the victim sometime in June.

I believe the record may show June the 20th.

Earl Warren:

Mr. James during the luncheon recess would you and counsel agree on the date that the petitioner in this case was convicted of this fraud events.

William E. James:

Yes, of course.

Earl Warren:

Then let us know at that time.

We’ll recess now.