Baldonado v. California

PETITIONER:Baldonado
RESPONDENT:California
LOCATION:Eagle Coffee Shoppe

DOCKET NO.: 185
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 417 (1961)
ARGUED: May 08, 1961
DECIDED: May 22, 1961

Facts of the case

Question

  • Oral Argument – May 08, 1961 (Part 1)
  • Audio Transcription for Oral Argument – May 08, 1961 (Part 1) in Baldonado v. California

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

    Earl Warren:

    — you may continue.

    William E. James:

    Thank you Your Honor.

    At the recess, Your Honor asked if I would ascertain the date of the —

    Earl Warren:

    Yes.

    William E. James:

    — sentencing on the fake annulment proceeding that I have confirmed it with counsel and it’s agreed that on April the 3rd or at least the date that petitioner Duncan was sentenced on the murder charge.

    She entered pleas to — pleas of guilty to two counts in the fake annulment proceedings and was sentenced accordingly on that date.

    Earl Warren:

    Yes.

    William E. James:

    That was after the trial and after the sentence in the murder case, April the 3rd, 1959.

    Tom C. Clark:

    Third?

    William E. James:

    Third.

    Thank you.

    Now, I will proceed in regard to these exhibits.

    As you recall, we’ve examined the exhibits that are — were before the Court on the motion for change of venue made by petitioner Moya, joined in by petitioner Baldonado on January the 13th, 1959.

    Among the exhibits was the Oxnard Press Courier.

    A town in the Ventura County close to the City of Ventura in which on the front pages headline, or rather not headline, the picture of petitioner Duncan and it states, “Daughter-in-law, missing impersonation jails woman.”

    This continued in the other exhibits that were before the Court, Exhibit Number 12, which was the Ventura County Star Free Press of December 17th, related authorities fear attractive nurse foul play victim.

    And the story is — commences authorities in Santa Barbara now are convinced that all the Duncan attractive three-year-old nurse and wife of Attorney Frank Duncan met with foul play.

    And it continues, gives the facts which the news media obtained which it reported in the public press.

    Hugo L. Black:

    May I ask you, do you have a brief in the Duncan case also?

    William E. James:

    Yes, Your Honor.

    We filed a brief in the Duncan case, in the Baldonado case and the Moya case, separate briefs in all three cases.

    On December 18th, the next day, and this is all prior to the finding of — of the victim’s body, Olga Duncan in the Ventura County Star Free Press which is Exhibit Number 13 before the trial court is the headline “Ex-convict sought for rolling Duncan fake annulment”.

    DA says man post as lawyer and it has a picture of Ralph Winterstein who is the codefendant with petitioner Duncan in the fake annulment proceedings.

    On the succeeding dates —

    Earl Warren:

    Did he plead guilty too?

    William E. James:

    As I recall, yes.

    And he testified in the trial of Elizabeth Duncan which occurred from February the 20th to the 16th of March.

    On December 19th, Exhibit Number 14, the Ventura County Star Free Press, there is a story on the front page, “Chase of the Fake Annulment.”

    She witness gives DA valuable information and a story is placed in the paper, they’re concerning this fake annulment proceeding.

    Then on the succeeding day, Saturday, December 20th, there is the report in the Ventura County Star Free Press, December 20th Exhibit 15 (a), kidnapped murder charges filed in case of missing nurse, mother-in-law, two men held.

    Felix Frankfurter:

    Are the original exhibits filed with our clerk, Mr. James?

    William E. James:

    I certainly hope so and I will make an effort to ascertain if — if they are — I will ascertain if they are and if they’re not, I’ll make an effort to have the original exhibits lodge with the Court because I don’t see how the Court can consider this matter without examining these exhibits and that’s why I have taken the time to go through these particular exhibits because this is one of the issues that’s — before the Court, it was the issue before the trial court and it was obviously the issue when the Supreme Court reviewed the ruling of the trial court on the question of whether there should have been a change of venue in this case because of the publicity (Voice Overlap) —

    Felix Frankfurter:

    Have you purported to go through all the exhibits before the trial court under the motion to change the venue?

    William E. James:

    I will if the Court —

    Felix Frankfurter:

    No, no, no.

    I’m asking whether you have and thus far, are you planning to do that or —

    William E. James:

    Yes, I’m planning to do it unless the Court wishes me to stop.

    Hugo L. Black:

    Were those the ones that you’ve just referred to or there’s more?

    William E. James:

    There are quite few more, Your Honor.

    These are —

    Hugo L. Black:

    Am I wrong — am I wrong in thinking it was reference to these all of them but one related to the fake trial case?

    William E. James:

    No, these were exhibits which were before the Court on Moya’s application for change of venue made on January the 13th.

    Hugo L. Black:

    I understand that but —

    William E. James:

    So far there’s been (Voice Overlap) —

    Hugo L. Black:

    — was the subject to fake trial?

    William E. James:

    Yes.

    That was the only news item relating to the Duncan proceeding.

    Obviously at this time, there was no body found.

    There was no Duncan case as such because the authorities were searching for the body of all the Duncan —

    Hugo L. Black:

    That motion —

    William E. James:

    — unraveled at the time was this fake annulment.

    Hugo L. Black:

    In other words, that motion would may pertain in the venue on the ground that the publicity in connection with the other (Voice Overlap) —

    William E. James:

    Yes.

    These are exhibits that were —

    Hugo L. Black:

    — that was all prejudice to public if you couldn’t have that trial.

    Felix Frankfurter:

    Well, but you haven’t finish the —

    William E. James:

    No, I haven’t finished them yet.

    Felix Frankfurter:

    Later exhibits bring in the other matter, don’t they?

    William E. James:

    Yes.

    William J. Brennan, Jr.:

    Well Mr. James, the last one made reference to the kidnapped and murdering?

    William E. James:

    Yes.

    William J. Brennan, Jr.:

    This before the body was found.

    William E. James:

    Yes, this is before the body was found.

    William J. Brennan, Jr.:

    Well, why — were the three of them arrested?

    William E. James:

    The three of them were under arrest beginning December 12th, Mrs. Duncan on the fake annulment proceedings, Moya as a parole violator and petitioner Baldonado on a charge of failure to support.

    Felix Frankfurter:

    Would she remain detained after December 12th on the fake annulment charge?

    William E. James:

    Yes, sir.

    Felix Frankfurter:

    Isn’t that a bailable offense?

    William E. James:

    Yes.

    And —

    Felix Frankfurter:

    With no — did she make no effort to bail?

    William E. James:

    Yes.

    She knew —

    Felix Frankfurter:

    And that was denied?

    William E. James:

    Bail was set at $50,000 as I recall and on motion of Attorney Frank Duncan, it was reduced.

    And I believe it was reduced to $5000.

    Felix Frankfurter:

    Alright, so thank you.

    $50,000 seemed to be pretty stiff for fake annulments.

    William E. James:

    Well, the — the authorities were then looking for a body — was there a question —

    William J. Brennan, Jr.:

    (Inaudible) $5000.

    William E. James:

    I don’t believe so.

    It’s my recollection she did not.

    William J. Brennan, Jr.:

    Well, I’m — I’m not quite clear with — that last exhibit you referred to.

    What happen if she — were they — the three of them charged at this time before the body was found?

    William E. James:

    Yes, Your Honor.

    In this particular exhibit which I — it is 15 (a), it relates the weird Olga Duncan disappearance case took an important turn late yesterday in Santa Barbara, when her mother-in-law and two men were charged with conspiracy to commit murder and kidnapping.

    Felix Frankfurter:

    What’s the date?

    When was — when —

    William E. James:

    This is the date of December 20th.

    This is Saturday, December 20th, 1958.

    Felix Frankfurter:

    So they were charged with conspiracy to murder and (Voice Overlap) this —

    William E. James:

    In — in Santa Barbara County, not Ventura County.

    Felix Frankfurter:

    Yes.

    William J. Brennan, Jr.:

    Before the finding of the body (Voice Overlap) —

    William E. James:

    Before the finding of the body.

    William J. Brennan, Jr.:

    (Voice Overlap) — December 22nd, wasn’t it?

    William E. James:

    The finding of the body was on the 21st.

    William J. Brennan, Jr.:

    21st.

    William E. James:

    — next day Sunday.

    This is Saturday, December 20th, the body had not been found, however, in — in joining county of Santa Barbara, those conspiracy charges were filed.

    Felix Frankfurter:

    I’m a little mixed up Mr. James.

    William E. James:

    Yes, sir.

    Felix Frankfurter:

    You said she was — she was — the day was fixed at $50,000 on the fake annulment charge.

    That charge preceded the charge in Santa Barbara County for conspiracy for murder.

    William E. James:

    Yes Your Honor.

    Felix Frankfurter:

    When was the reduction from $50,000 to $5000?

    Because after December, what was it, 16, she was under a murder charge, a conspiracy with murder?

    William E. James:

    After the — early after the 19th, she was under conspiracy charge in Santa Barbara.

    Felix Frankfurter:

    Well, there — that — that wouldn’t be bailable, would it or wouldn’t it?

    William E. James:

    Ordinarily not.

    Felix Frankfurter:

    Not.

    After all, I’m — what’s the relation of the $5000 reduced fail to that charge, must have preceded I suppose.

    William E. James:

    He proceeded as I recall.

    Felix Frankfurter:

    Must have, must have.

    William E. James:

    The newspaper exhibits, as I remember, detail the attempt to reduce the bail.

    Felix Frankfurter:

    None of these exhibits that you summarized thus far by — affidavits by —

    William E. James:

    Moya.

    Felix Frankfurter:

    All the affidavits by Moya were not annexed to the motion on behalf of Mrs. Duncan, were they?

    William E. James:

    They were referred by reference as I recall, and Mrs. Duncan’s application had additionally certain excerpts from the Ventura County Star Free Press and the Oxnard Press Courier succeeding January 7th when the —

    Felix Frankfurter:

    After he’s under indictment, after she was under indictment for a murder.

    William E. James:

    Yes.

    She was under indictment for murder as of December 26.

    Felix Frankfurter:

    You’re going to go on and state when it come to her case with particularity exactly what was the basis of the motion for change of venue and her case.

    William E. James:

    Yes.

    Felix Frankfurter:

    And all the exhibits that were introduced at any time in connection with Mrs. Duncan after the indictment on December 26.

    William E. James:

    Yes, Your Honor.

    Now, on December 21st, the body was found, Baldonado confessed and he led the authorities to a part of Ventura County which was a remote part and the body was found in a shallow grave.

    Now, this was reported in the press —

    William J. Brennan, Jr.:

    What did — the body was found or Baldonado confessed then they (Voice Overlap) —

    William E. James:

    Baldonado confessed and took the authorities to where the body was found.

    William J. Brennan, Jr.:

    And where did he confess?

    William E. James:

    He confessed, as I recall, in Ventura.

    William J. Brennan, Jr.:

    And this, after the indictment for conspiracy murder in Santa Barbara?

    William E. James:

    After — after the con — an indictment for conspiracy.

    William J. Brennan, Jr.:

    The same day apparently though.

    William E. James:

    It was the succeeding day —

    William J. Brennan, Jr.:

    Succeeding day.

    William E. James:

    — or the Saturday paper reported the filing of the conspiracy charge in Santa Barbara Friday, and Sunday he confessed and led the authorities to the crime, and Exhibit Number 30 which is the — an issue of the Los Angeles Times of December 22nd contains two articles relating to this matter.

    One, relates, body and missing bride on earth may have been buried alive, man confesses, points to grave, contains a story of the confession of finding of the body, a picture of the victim as well as one of the defendants.

    Also, in the same issue of the Los Angeles Times, is a little chronology which is captioned police reconstruct kidnap murder events.

    Now, this is police reconstruct the kidnap murder event.

    So far, there’s certainly been no conduct of the District Attorney to which we have reference to and to which this Court limited the granting of certiorari on the question of publicity and the question whether the defendants could obtain a fair and impartial jury for their trials in February and April of 1959.

    On December 22nd, Monday, which is Exhibit 3, which has been referred to by counsel for petitioners and has been incorporated in one of their briefs is the issue of Ventura County Star Free Press of Monday, December 22nd, in which it is related that Olga’s body found in County, nurse was beaten, strangled.

    And a news report relating that suspect admits murder for hire in Casitas’ place.

    Now, in the separate article on the same page, on the same date, is a headline which reads, “DA urges death term in killings.”

    (Inaudible) plurally writer of the caption and I believe counsel for these petitioners have said that they do not attribute to the District Attorney the headline or the caption on any article.

    But the caption was written by one who understood this as a statement of the District Attorney about his position on capital punishment, nothing more.

    And he, at this time, it says, “The District Attorney, Roy Gustafson, today saw the Duncan murder as a reason for continuation of California’s death penalty.”

    He issued the following statement, and then it relates what is set forth in this addition to which reference has been made.

    Now, we submit that this is a statement of the District Attorney in relation to his position on capital punishment, and as we point in one of the later exhibits, he had a purpose in doing it.

    William E. James:

    Petitioners would say, it was a sinister purpose.

    It was not, it was because he is one of the outspoken advocates of retention of capital punishment in California.

    The legislature within a short week and a half we’re going to meet and as we’ll see in one of the exhibits, the — there were to be two measures which were going to be quite important measures before that legislative session in regard to abolition of capital punishment.

    And so the District Attorney was making his statement in regard to proposed to a pending legislation.

    And there’s nowhere in here any relation to his asking that the citizens of Ventura County arise against these particular defendants.

    He is merely making his statement urging that the people retain as one of two alternative punishments in California for murders, the death penalty.

    And that’s what it is, pure and simple.

    That’s what the District Attorney said it was.

    That was accepted by the trial judge in his ruling thereon was accepted by the States upon report.

    Felix Frankfurter:

    But of course Mr. James, if in fact, if in fact the District Attorney makes a statement regarding a pending case which fairly considered may poison the minds of prospective jurors.

    The fact that at the time, California was seriously considering measures dealing with the abolition of capital punishment wouldn’t — wouldn’t make a difference, would it?

    William E. James:

    I agree with you, Mr. Justice Frankfurter.

    Obviously, if any statement by District Attorney so inflamed the minds of prospective jurors in Ventura County that they could not render a fair verdict and give the defendant a fair and impartial trial.

    The purposes of a District Attorney would have no consequence.

    But we’re merely pointing this out to show —

    Felix Frankfurter:

    As I — follow you that —

    William E. James:

    — that the District Attorney wasn’t calculating here.

    They scribed to the District Attorney some sinister purpose here to obtain for these defendants the death penalty.

    Felix Frankfurter:

    Well, I don’t think any sinister purpose you just saw in this case reinforcing arguing for reviews.

    William E. James:

    As well as other cases.

    Felix Frankfurter:

    Yes.

    William E. James:

    Unfortunately, we have a number in — in the State of California.

    And he referred I believe in one statement to the Glatman case which was a — a case that received a great deal of notoriety.

    The defendant there killed three women before he was apprehended in the process of strangling a fourth.

    And he had also obtained the death penalty and I think the District Attorney took occasion to make reference to that.

    Now, on December 23rd, Exhibit Number 31, there is an article in the Los Angeles times which relates the — relates as to the murder case in Ventura County and it says, “Blackmail charged in bride slayer.”

    And also relates and we’ve referred to it in our briefs to a statement made by Defense Counsel.

    Defense Counsel was making statements of this time and it refers to Mr. Sullivan who represented the petitioner Duncan it said, Sullivan who talked for two hours to Mrs. Elizabeth Duncan 54 today, said tonight, “I firmly believe that these two men maintained a bitter grudge towards the Duncan family and they resorted to murder in an attempt to blackmail this poor woman.”

    Now, the news media were reporting just exactly what occurred.

    They reported the confession of Baldonado, the finding of the body, the fact that Olga was murdered.

    William E. James:

    They later reported the confession of Moya which occurred on or about Christmas Day in 1958.

    They reported that the petitioner Duncan said she was innocent.

    They reported that the petitioner’s attorney thought she was innocent.

    Certainly, there’s been no slanting of the press in this regard.

    There could be no claim that the people were so prejudice against these defendants that they could not fairly and impartially consider evidence presented at a trial to be held a month and a half later and more than that in the case of Mrs. Duncan and solely on the penal — on the penalty issue in April as to Duncan, as to Baldonado and Moya.

    John M. Harlan II:

    How did the press get hold of Baldonado’s confession?

    William E. James:

    I believe it was released by the authorities.

    John M. Harlan II:

    I read something in the briefs, perhaps I misunderstood it, to the effect that the grand jury proceeding, the grand jury minutes of California as a matter of public registry, is that so?

    William E. James:

    That’s correct.

    And I’ll come to some exhibits where, as I recall the Los Angeles Times printed a good segment, perhaps a good part of the grand jury proceedings after it become a matter of public record.

    John M. Harlan II:

    Was the — was the confession of Baldonado confession given before the grand jury?

    William E. James:

    As I recall, it was.

    I recall that both Moya and Baldonado testified before the grand jury and provision redundant did not —

    John M. Harlan II:

    (Voice Overlap) — matter of public record once it had been given, once the minutes had —

    William E. James:

    Once the indictment has been filed and the transcript is prepared to become the public record of California.

    Felix Frankfurter:

    Meaning — meaning by that, does anybody wants to get a copy, can look at it or —

    William E. James:

    That’s a —

    Felix Frankfurter:

    — or has been published automatically.

    William E. James:

    No.

    It becomes a —

    Felix Frankfurter:

    (Voice Overlap) —

    William E. James:

    — a matter of public record.

    Somebody can go and look at it.

    It’s available to the press as well as to any other member of the public.

    And it was reported both in the Los Angeles Times.

    It was summarized in some of the other papers to which I’ll make reference.

    I believe on December 22nd, there are two issues of the Los Angeles Herald Express in the City of Los Angeles, say at least 65 miles away from Ventura where it is headlined and this is Exhibit Number 10 which was an exhibit before the grand jury.

    The Los Angeles Herald Express of Monday, December 22nd, mother’s love hate seen in bride killing.

    I mean it contains the picture of the two defendants, Baldonado and Moya and a story in regard to the finding of the body of the —

    Felix Frankfurter:

    What’s that —

    William E. James:

    — confession.

    Felix Frankfurter:

    — Exhibit 10?

    William E. James:

    That’s Exhibit Number 10 which was one of the exhibits as I recall presented in the Moya application for change of venue.

    Earl Warren:

    But —

    Felix Frankfurter:

    Go on.

    Earl Warren:

    I was going — I was going at this point as this.

    In California, whether — whether the State proceeding by indictment or by preliminary examination, the — the testimony has made a matter of public record.

    William E. James:

    That’s correct.

    The grand jury proceedings are of course secret but the testimony becomes a matter of public record when the indictments filed in the transcript —

    Earl Warren:

    Yes.

    William E. James:

    — is filed with the Court and the copy served on the defendants.

    Felix Frankfurter:

    Did I hear you say to Justice Harlan in answer to his question, that in fact the confession was emitted by the authority as you put it?

    William E. James:

    As I recall —

    Felix Frankfurter:

    So that it wasn’t the publication of the confession, didn’t derive from somebody going to the grand jury to the appropriate place to find out what the grand jury minutes (Voice Overlap) —

    William E. James:

    No.

    No Your Honor.

    Felix Frankfurter:

    You said, they were given by the —

    William E. James:

    By the authorities which will —

    Felix Frankfurter:

    By the authorities.

    William E. James:

    — as I recall was the sheriff’s office in Ventura County.

    Felix Frankfurter:

    Nothing has been said, not — not a word has been said thus far when you — you speak of news media which this covers it, but nothing has said about the radio that the radio interest itself in other matter while this is going on.

    William E. James:

    No, Your Honor.

    As I understand it, and as I refer in one of these exhibits and of course, all that the trial court had before it except what it knew, what it could possibly take judicial knowledge of, where these newspaper reports.

    There was, of course, reference the radio and the other news media including television carried news accounts concerning these events of transporting in Santa Barbara.

    Felix Frankfurter:

    There’s no reference specifically to communication through the radio or through TV of any — of the statements or emission of — of statements or confessions?

    William E. James:

    No reference in the exhibits that I’ve referred to in the present.

    Felix Frankfurter:

    Or in the record?

    William E. James:

    The record does contain a news reference to this confession of Moya which was obtained by discovery proceedings by counsel from Moya.

    Felix Frankfurter:

    Is that broadcast?

    Is the record —

    William E. James:

    That was broadcast, yes.

    Felix Frankfurter:

    Does the record show it was broadcast?

    William E. James:

    The newspaper exhibit shows it was broadcast.

    Felix Frankfurter:

    Broadcast.

    William E. James:

    In fact, it announced the time that it would be broadcast and the station that it would be broadcast.

    Felix Frankfurter:

    So that everybody could go and should —

    William E. James:

    Everyone could turn the radio on.

    Earl Warren:

    And that was done at whose instance?

    William E. James:

    This was done at the instance of counsel for defendant Moya.

    This was not conduct of the District Attorney and this occurred long after these two items that have been the subject of so much criticism on the part of these petitioners.

    Felix Frankfurter:

    Now, could he be — could he be all those things on his own without permission of the — of the authority?

    William E. James:

    California has discovery proceedings whereby a confession given by a defendant may be obtained by Defense Counsel in order to prepare for his trial.

    Felix Frankfurter:

    Well, what I want to know is could he, in order — I’m quite reading about these things.

    But in order to get on the air, you have to have some dealing with the radio people.

    Now, could he have those arrangements to his counsel on his own and he’s (Voice Overlap) —

    William E. James:

    Early he did.

    Felix Frankfurter:

    Well, what kind of — I know it’s a lugubrious crime but is it — is that engaging to people to person that they can do all these things?

    Earl Warren:

    He had counsel, didn’t he?

    William E. James:

    He had counsel.

    Earl Warren:

    He did.

    William E. James:

    I’ll skip ahead a little bit to this time because you ask this question, Justice Frankfurter.

    This is Exhibit Number A4 which was an exhibit on the application of Moya on April 16th, because this happened after his motion for change of venue made on January 13.

    This is the Exhibit A4 which is dated January 29th, 1959.

    It’s a Ventura County Star Free Press.

    The headline of this article is, “Moya admits nurse’s murder” and it contains the sub caption, “Insanity, his sole defense for slayer.”

    It has a picture of defendant Moya, his counsel, Mr. Henson, and then in a separate story, attorney explains move criticizes DA’s actions, in part of the criticism which was apparently a press statement by counsel representing Moya is one thing that troubles me about this case is the fact that the District Attorney appears to be following a course of selective prosecution and selective retribution.

    It appears as so the District Attorney is again deciding who is to be prosecuted and who will be a target of retribution.

    And it continues on in that same thing complaining that the District Attorney had not filed charges against an — an additional person who introduced Moya and Baldonado to Mrs. Duncan in Santa Barbara.

    Felix Frankfurter:

    It was said — it was said by (Voice Overlap) —

    William E. James:

    The counsel —

    Felix Frankfurter:

    — rather who proceeded you that these statements were made after the District Attorney had fed the press.

    William E. James:

    Well, this was quite a bit after.

    This is January 29.

    Felix Frankfurter:

    It’s been closed after, wasn’t it?

    William E. James:

    It was after.

    Felix Frankfurter:

    Alright.

    William E. James:

    And we haven’t come to the second item that they have criticism of the item appearing in the Ventura Star Free Press of December 30th.

    But on this —

    Earl Warren:

    Was it after — was it after the grand jury testimony was made public?

    William E. James:

    Yes, Your Honor.

    Earl Warren:

    I suppose would have to because your grand jury —

    William E. James:

    Was in December.

    Earl Warren:

    — testimony would be there by the 13, wouldn’t it?

    William E. James:

    Yes, it wouldn’t have been —

    Earl Warren:

    That was the arraignment date so —

    William E. James:

    That’s right.

    Earl Warren:

    — that would have to be filed for 13th of January.

    William E. James:

    Yes, it would Your Honor.

    Earl Warren:

    Yes.

    William E. James:

    Now —

    Felix Frankfurter:

    When you say made public, it doesn’t mean that it’s handed out the way press releases are handed out by official.

    William E. James:

    No, it becomes an official court record —

    Felix Frankfurter:

    Alright.

    William E. James:

    — which is available to any member of the public and the press as member of the public.

    But to answer your question —

    Hugo L. Black:

    (Voice Overlap) — the indictment, anybody could go up and see it.

    William E. James:

    That’s correct.

    To answer Justice Frankfurter’s question in regard to this radio broadcast, this is, as I say A4, the Exhibit of Thursday, January 29th, Ventura County start to be pressed.

    Right next to the column in which the District Attorney is criticized by one of Defense Counsel, because he didn’t institute charges against additional defendants.

    It says, “Moya confession broadcast set.”

    William E. James:

    This is the front page of the paper.

    “Luis Moya’s Christmas night confession of the slang of all the Duncan will be broadcast by a tape recording tonight at 7 o’clock on KUDU, Ventura, 1590 kilo cycles.”

    Moya’s confession was recorded by sheriffs’ officers and was then released to his attorney Burt Henson who rerecorded it and gave the recording to KUDU station spokesman said today.

    Henson recorded a prologue and epilogue with the confession.

    That concludes the news announcement.

    Now —

    Felix Frankfurter:

    Though, it was release to Defense Counsel, it could be authorities that withheld the concession?

    William E. James:

    He obtained a court order, as I recall.

    Felix Frankfurter:

    Or he hasn’t.

    William E. James:

    He certainly could have obtained a court order for production of any statement of the defendant in order to avail himself of the means of preparing for any trial.

    And of course, he was then preparing for a trial on the penalty issue.

    He had pled guilty.

    Felix Frankfurter:

    And when will this confession by Moya in relation to time and when was the recording of it?

    Do you have it in mind?

    William E. James:

    The confession of Moya was referred to as a Christmas night confession which must have been December 25th, 1958.

    It was referred to in the press of December 26 and —

    Felix Frankfurter:

    You mean he moved fast out, between 25th and 26th counsel for defendant got a court order?

    William E. James:

    Between the 26th and the 29th of January —

    Felix Frankfurter:

    Between the 26th (Voice Overlap)

    William E. James:

    — 26 of December and the 29th of January.

    Felix Frankfurter:

    Oh, January, I beg your pardon, I thought it (Voice Overlap) —

    William E. James:

    Yes.

    Yes, this was an — as I pointed out, this was at a time after his first application for change of venue, it became an exhibit before the Court on Moya’s second application for change of venue which took place on April the 16th as I recall a few days before his trial on the penalty phase was scheduled.

    Felix Frankfurter:

    Well, this — this was front page news for about a month, was it?

    William E. James:

    Well, as you’ll see from examining the exhibits, it wasn’t front page all the time.

    It was front page news during the period of her being missing.

    Felix Frankfurter:

    A mystery.

    William E. James:

    While — while it was a mystery, while there was speculation in the public press and the news media, it was front page news.

    It continue —

    Felix Frankfurter:

    And after — after the confession in the finding of the body, was it front page news for days thereafter?

    William E. James:

    From time to time when the matters were — was scheduled for court hearing, it was published on the front page.

    As you will see from examining some of the exhibits, it was relegated to the second and third pages from time to time, and was not as fully covered by the press when the trials commenced by then the news coverage.

    Particularly the trial of Mrs. Duncan, there was news coverage with by press photography and other news media of the trial proceedings of Mrs. Duncan.

    That was reported in the press both in Ventura and in Santa Barbara County.

    Now, on December 23rd, there is a — this is Exhibit Number 16.

    Ventura County Star Free Press, this is front page headline, “Husband of slain nurse missing sought by District Attorney — by DA.”

    Grand jury set for murder case.

    And it relates the fact that the District Attorney is going to present to the grand jury of Ventura County the murder case.

    The succeeding issues of the Ventura County Free Press do not contain necessarily front page stories.

    One is a story that appears on an internal page, “Olga’s dead claims body.”

    Now, that’s Exhibit Number 17, it’s Wednesday, December 24th, 1958.

    On December 26, that’s Friday, the day after the confession by Moya, there’s a headline in the Ventura County Star Free Press Exhibit Number 18, “Moya admits he kidnapped the nurse and it relates the grand jury hear story of kidnapped murder of Olga.”

    And it relates the confession of Moya and the fact that the grand jury was here for the matter.

    Now, likewise on December 26 in the Oxnard Press Courier, there is a headline, “New confession in slain reported, mother-in-law case before grand jury.”

    And there are pictures of two of the defendants, Attorney Frank Duncan and the District Attorney in the Oxnard paper.

    In the Ventura County Star Free Press of December 27th, which is Exhibit 5, there is the headline and a sub-caption, “Hint brain injury to Mrs. Duncan.”

    And it contains a statement made by hers attorney son to the press in regard to the suffering of brain damage by his mother and his statements that there was no indication that she would have done such a thing.

    Likewise on Monday, December 29, there is in the Ventura County Star Free Press which is Exhibit 9, state in heart attack since Mrs. Duncan to a hospital which she lands back in jail cell.

    Now on the next day, there is — there appears in the Ventura County Star Free Press the statement in regard to the transcript of the grand jury and it says, “Lured murder plot beard in transcript.”

    Secret testimony tells of hiring, the hiring of the two —

    Earl Warren:

    Now, what date was that?

    William E. James:

    This is Tuesday, December 30th.

    This is the Ventura County Star Free Press which is Exhibit Number 8 in the application or change of venue made on January 13th by defendant Moya and joined in by defendant Baldonado.

    And it was also incorporated by reference as I recall in the application for change of venue made by petitioner Duncan on February the 16th.

    Now, the front page contains the report, the summary of the grand jury proceedings.

    On the interior page, page 6, the caption of the headline continues the testimony in Duncan murder revealed.

    And on a separate, in the separate article on the same page, is the second article, which is attributed to the District Attorney in which counsel for these petitioners are so critical and it is captioned and they don’t blame the District Attorney for the caption but the caption is, “Roy Gustafson explains why yell asked death penalty for Duncan murder trio.”

    Now, as it will be seen by an examination of these exhibits a full month later, the District Attorney had still not told the press that he was going to ask for the death penalty in this case.

    And as you read the story, you will see that the District Attorney is again merely giving his reasons why he thinks capital punishment should be retained in California.

    And he describes the purposes of punishment and he gives to retribution a — a prime position and relegates to a lesser ground rehabilitation and protection of the public.

    William E. James:

    But it’s strictly a statement by the District Attorney in regard to capital punishment a matter that was to be before the state legislature to which was to convene in a matter of few days.

    Now —

    Earl Warren:

    Mr. James, may I — may I just interrupt to ask you if — if it is claimed that there was any slanting of the — of the news for the purpose of — of prejudicing any of the petitioners in this case or was there any editorial matter in the newspapers that is complained of by these people.

    William E. James:

    There is — they had no complaint that I know of that there was slanting of the news.

    Earl Warren:

    Yes.

    William E. James:

    As I recall, there were some editorials that appeared both in the Oxnard Press Courier and also in the Ventura County Star Free Press in regard to capital punishment.

    Earl Warren:

    Yes.

    Well, are they —

    William E. James:

    They have been referred to.

    Earl Warren:

    They have been referred to in the case.

    William E. James:

    Yes.

    Earl Warren:

    Well, you shouldn’t be bothered about that.

    William E. James:

    But as we will see, these particular Exhibit 8 is interesting for a number of reasons on the back page which is page number 14 is one of a number, I believe three letters to the editor in response to the statement by the District Attorney on capital punishment which had appeared in this paper on December 22nd.

    And all three of them, took a position opposite than — from the District Attorney on the issue of whether capital punishment should be retained in California.

    And it obviously was clear that the District Attorney was merely making his statement on capital punishment or was publishing the paper, letters by people who disagreed with the District Attorney’s position on capital punishment.

    There was no intent.

    There was no campaign to require or to force the jury in Ventura County to render the death penalty in the cases of these three defendants.

    They were now defendants but they obviously had not been convicted.

    They were entitled to a fair trial by an impartial jury and that’s what they were going to get.

    On the same page as the District Attorney’s statement in regard to capital punishment is the little caption, “Duncan defender hits DA.”

    And it says District Attorney Roy Gustafson was accused of going along way to prejudice and jury that might hear the Duncan murder case.

    The accusation came from Mrs. Elizabeth Duncan’s defense attorney, S. Ward Sullivan who charged that Gustafson’s public statements using this case as an argument in favor of capital punishment are a very obvious effort to influence a verdict.

    His remark Sullivan said, certainly will influence potential jurors in Ventura County.

    Gustafson is going a long way to see that these defendants do not receive a fair and impartial trial of the hands of an unbiased and unprejudiced jury.

    Now, this was —

    Hugo L. Black:

    What date is that?

    William E. James:

    This is December 30th, 1958.

    They were already announcing their proposed grounds in the event of a conviction.

    They obviously haven’t even attempted to find if they could’ve obtained a fair and impartial jury in Ventura County.

    They were already announcing that they could.

    William E. James:

    Well obviously, a fair reading of all of these exhibits which the trial judge did would not convince anybody that the citizens of Ventura County will become so in plain by these two articles on capital punishment.

    They couldn’t’ render a fair and impartial verdict in the trial as to petitioner Duncan on the issue of guilt and penalty and as to the penalty issue on the defendants Moya and Baldonado.

    Felix Frankfurter:

    Thus not merely the two articles, but this circulation of the confession because it’s — if merely the fact that grand jury minute a public documents right pleading, the District Attorney wasn’t contend to rely on that.

    He himself was an active agent in putting it in circulation.

    He didn’t rely on the things being a public document.

    William E. James:

    Well of course, all of the news media at this time and this is on December 30th were reporting only what were — was the fact and that was that Moya confessed and Baldonado had confessed —

    Felix Frankfurter:

    But the fact is supposed to be elicited in the courtroom and not in newspaper.

    William E. James:

    That’s true.

    But this was a matter of interest to the press.

    The press was publishing.

    There is no claim that the press did not publish what was false.

    That the — that there was false publication in the press.

    The press published what was the fact and if the hearing —

    Felix Frankfurter:

    And that hearing, he’d never tried.

    Just give — give the press the facts.

    William E. James:

    No, Your Honor.

    There — these defendants were entitled of fair and impartial trial by jurors who, if they had formed any opinion from these newspaper clippings would be able to put those opinions aside and decide the case solely on the basis of the evidence produced at the trial and the instructions as given to them by the Court.

    Now —

    Felix Frankfurter:

    There are many claims can be made for California but not that human nature there is different from other places —

    William E. James:

    Well —

    Felix Frankfurter:

    — of power to control that gets into the mind can be controlled in California when it can’t be controlled in New York or in Massachusetts.

    William E. James:

    No, Your Honor, we’re not contending that.

    We’re contending that the District Attorney did not play any part —

    Felix Frankfurter:

    But you’ve — but you’ve said several times with your characteristic conduct, if I may say so, that even rely on the publicity on the public record quality of the confession, he sought to it that the newspapers got it.

    William E. James:

    Well, there — all we have is what is related in the press.

    That’s all I’ve been reading to you is what is related in the press.

    Now —

    Felix Frankfurter:

    Is there a denial — is there a denial by him?

    William E. James:

    There is a denial made by him.

    Felix Frankfurter:

    That he omitted this confession?

    Felix Frankfurter:

    Is there?

    William E. James:

    That he —

    Felix Frankfurter:

    That he —

    William E. James:

    — that he submitted this confession?

    Felix Frankfurter:

    Is — is there a denial by the District Attorney that it isn’t true that he put out or put into the hands of the press —

    William E. James:

    I don’t —

    Felix Frankfurter:

    — the confession.

    William E. James:

    As I recall, he denied that he made most of these statements attributed to him.

    Felix Frankfurter:

    Well —

    William E. James:

    He admitted —

    Felix Frankfurter:

    — specifically, did he deny that — did he say — why, of course, they got it by going to the record office, whatever you call it, I didn’t get the confession out.

    Did he make any such denial?

    William E. James:

    As I recall, he did not at the time of the motion for a change of venue.

    His position was if the circulation of these news items were such that it would inflame the potential jurors in Ventura County that they, on February the 16th could not render a fair and impartial jury.

    Felix Frankfurter:

    Let’s say I’m innocent.

    I can put everything out of my mind that ever got into it.

    William E. James:

    There were some that could.

    There were some that couldn’t.

    Felix Frankfurter:

    Some that could and some that couldn’t, most of us can’t.

    William J. Brennan, Jr.:

    Well, Mr. James, have you — have you read anything conquer as yet?

    Or perhaps, I didn’t hear it that Mr. Gustafson who was attributed to Mr. Gustafson in any of these news articles that he had turned over a — any of these confessions to the press?

    William E. James:

    I don’t recall that.

    William J. Brennan, Jr.:

    You haven’t read anything of that too —

    William E. James:

    Not that — as I recall the sheriff’s office —

    William J. Brennan, Jr.:

    He said public — he said the authorities.

    William E. James:

    Public authorities —

    William J. Brennan, Jr.:

    — who identified the authorities was the sheriff’s office.

    William E. James:

    The sheriff’s office as I recall the confession.

    William J. Brennan, Jr.:

    That was the issue of December 22nd.

    William E. James:

    That’s — that’s correct as I recall it.

    Felix Frankfurter:

    Wasn’t — was the charge made that he did?

    William E. James:

    No, not that I know of.

    Felix Frankfurter:

    I mean by the defense.

    If they say, it was the District Attorney who let go and put into the hands of — of media.

    William E. James:

    No, Your Honor.

    They criticize the release —

    William J. Brennan, Jr.:

    Well I — no.

    Well, Mr. Wirin said so and tell us he was going to tell us where but I never heard him tell us before (Voice Overlap) —

    William E. James:

    Well I don’t know where — where it is, of it.

    Their charge was that the article which appeared in the December 22nd issue of the Ventura Star Free Press, which the District Attorney said that he was advocating death penalty in all killings, in killings as related.

    Now, the District Attorney admitted making that statement.

    William J. Brennan, Jr.:

    No, no.

    I — what I’m trying to get to is you hadn’t shown us anything which indicates that the District Attorney gave to the press either Baldonado’s or Moya’s confession.

    William E. James:

    Not that I know of.

    Felix Frankfurter:

    But you said the authorities —

    William E. James:

    The authorities as I recall —

    Felix Frankfurter:

    Now, who would be the authority?

    William E. James:

    The sheriff’s office.

    Felix Frankfurter:

    And are they free willing?

    Can they go on their own?

    Or is the case, when a murder case get into this situation, isn’t the District Attorney the controlling authority?

    William E. James:

    No.

    Not necessarily.

    As I recall the —

    Felix Frankfurter:

    But I’m not asking necessarily.

    I’m talking in the normal course of business, wasn’t the District Attorney, isn’t he the chief law officer?

    William E. James:

    He is the chief law officer for the —

    Felix Frankfurter:

    Does he or does he not control police officials?

    William E. James:

    He doesn’t necessarily control the police officials nor does he —

    Felix Frankfurter:

    But we’re not children.

    Felix Frankfurter:

    I know he doesn’t necessarily.

    I’m asking you what is the normal course of business?

    William E. James:

    Well, he is a prosecutor.

    He prosecutes —

    Hugo L. Black:

    I think basically limit that to California because I was thinking.

    As far as I’m concern, it was my experience as prosecuting attorney does not control the police as a sheriff with reference to what they publish.

    William E. James:

    That’s my —

    Hugo L. Black:

    Based on where I can from.

    Felix Frankfurter:

    Well anyhow, they’re part of the prosecutorial obstacle of the State, aren’t they?

    William E. James:

    They are part of the law enforcement —

    Felix Frankfurter:

    Yes.

    William E. James:

    — personnel of the State.

    And the sheriff of course is the law enforcement officer of the county.

    But the prosecutor, the District Attorney and county counsel as he was in Ventura County performs illegal functions and when a charge is brought, he prosecutes it in the Court.Up until that time, he may or may not have any control over the case.

    Felix Frankfurter:

    Was there any — was — did the defense make any specific charge that the authority disseminated these confessions in their motion for change of venue.

    William E. James:

    I don’t recall it sir.

    Felix Frankfurter:

    Well then, that isn’t an issue at all, isn’t it?

    William E. James:

    No.

    Still the issues was —

    Felix Frankfurter:

    If you —

    William E. James:

    — were these publications that we have gone over so much briefly (Voice Overlap)

    Felix Frankfurter:

    But one of them said that the authorities did.

    William E. James:

    Is that — the District Attorney said that the people in Ventura County should retain capital punishment for choice.

    Felix Frankfurter:

    No, no, no.

    But they — that same issue said that the authorities disseminated — the the confession, didn’t they?

    William E. James:

    That is right.

    Felix Frankfurter:

    Well, now did the District Attorney make any reply to that?

    William E. James:

    No.

    Felix Frankfurter:

    Did he say anything about it?

    William E. James:

    As I recall, all he did was he admitted making this one statement in regard to capital punishment.

    Felix Frankfurter:

    But he didn’t say, “I’m not one of the authorities” so that’s a false statement in the press.

    You said a little while ago, the newspapers published nothing but the facts.

    William E. James:

    I don’t recall it —

    Felix Frankfurter:

    It revolves a statement of fact that the authorities gave these.

    Was that denial on behalf of the State?

    William E. James:

    No, it wasn’t because the authorities probably did.

    Felix Frankfurter:

    Alright.

    William E. James:

    And the sheriff’s office undoubtedly turned over to the press, whatever news, item they had of public —

    Felix Frankfurter:

    So far as I’m concerned, I don’t care whether the sheriff or the District Attorney who puts him to the stream of publicity, things that ought to be kept out of the stream of publicity by the enforcing officials.

    (Voice Overlap)

    Hugo L. Black:

    As I understand what you’re saying is that while the papers had an article which said that came from the authority.

    The authorities haven’t said so and I — suppose you’re saying, prosecuting attorney doesn’t ordinarily consider his duties to deny every statement made in the press about his spectacular case.

    William E. James:

    That’s right and that’s what I — when I commenced my argument on this particular point, I said that actually the conduct of the District Attorney was really not put an issue at the trial court.

    Felix Frankfurter:

    But it was put in issue, it was put an issue by the finding of an affidavit which made part of its allegations, this paper and this paper made two allegations that the District Attorney issued the statement on capital punishment.

    It also made a statement that the authority disseminated the confession.

    I suggest that when a District Attorney makes a comment on one part of a statement in an affidavit of change of venue, which says nothing about the other presumably, he doesn’t deny it.

    William E. James:

    Well —

    Felix Frankfurter:

    — which is a very different thing from having — asking a District Attorney to deny everything that’s put in the newspapers.

    William E. James:

    Obviously —

    Felix Frankfurter:

    This was an affidavit of which the — this newspaper was the basis.

    William E. James:

    Well, Your Honor, actually, the —

    Hugo L. Black:

    Do you know which affidavit now is being referred to?

    William E. James:

    I believe it’s the affidavit of Mr. Henson that was filed with the application for change of venue on December 13 — on January 13.

    Hugo L. Black:

    Change of venue.

    William E. James:

    Obviously, the District Attorney was not required at that time to make any these statements.

    This was pure rank hearsay at this stage.

    And the only question before the trial judge was — was the dissemination of — of these articles, whether they were true of false, whether — whether the District Attorney had said it or whether he hence said it was immaterial.

    The question was would this have so inflame the citizens of Ventura County that they (Voice Overlap) —

    Felix Frankfurter:

    I follow your argument but to one like myself to whom it is not irrelevant whether he did or didn’t.

    You say the only issue is true or false, did that so corrupt the minds of the jurors that they couldn’t rid themselves of this.

    Felix Frankfurter:

    I think that is not the only issue because I think that kind of a psychological answer presupposes things that are contrary to human experience.

    Earl Warren:

    Well, Mr. James at the time that this affidavit was presented to the Court for — on a motion for change in venue, the transcript of the grand jury with the complete testimony of these two men confessing to this crime was a matter of public record.

    William E. James:

    That’s right.

    And then the news media has published —

    Felix Frankfurter:

    I say to you —

    Earl Warren:

    As a matter of public record that everybody conceive.

    William E. James:

    That’s correct Your Honor.

    Felix Frankfurter:

    I say to you what I said before.

    If the District Attorney handed out these confessions, it means he wasn’t contempt to have people go to the record office that he actively saw to it that they got it and didn’t rely on the mere — the availabilities, the matter of official doctrines.

    William E. James:

    That’s correct, Your Honor.

    I’ll agree with you.

    I will say and why I said it was not an issue at the time.

    The District Attorney was merely putting at that time that he issued the question on which was the pertinent one to the trial judge on the motion for change of venue where these articles of such a nature regardless of whether they correctly quoted who gave them the information or where the information came or what it was.

    The only thing was would it have so inflamed to minds the potential jurors in this particular case since they could not render a fair and impartial trial.

    Now, the District Attorney contended himself solely with this particular question at the argument before the State Supreme Court.

    He denied making most of these statements, and he explained why he hadn’t previously denied it.

    William O. Douglas:

    Are you referring — are you referring to the footnote, that bottom of page 144 of —

    William E. James:

    The reply brief, as I understand it the —

    William O. Douglas:

    — of the Duncan record.

    William E. James:

    As I understand it —

    William O. Douglas:

    Record 144.

    William E. James:

    — the transcript of the oral argument before the State Supreme Court is lodged with this Court now which continues the full argument of the District Attorney before the State Supreme Court where he made his denial on most of the statements and he explained why he hand — and he had a question post to him, similar to the one post to me now by Justice Frankfurter.

    Why hadn’t he made this denial before?

    And he explained that at that time, he didn’t feel that it was an issue.

    That the issue at that time was — could these defendants obtain a fair and impartial jury in Ventura County?

    And he solely directed himself to it considering all of these articles in which I have been referring as rank hearsay on whether the — they truthfully related what the facts were.

    William J. Brennan, Jr.:

    Mr. James, I do hope you’re going to save some time before an issue of Duncan case as jurors.

    William E. James:

    On the juror, yes, sir.

    Your Honor, I’m glad you reminded me over it at this time.

    William J. Brennan, Jr.:

    I think your time is running and —

    William E. James:

    I have realized how it had been running.

    I have just some brief references that I might make to these other exhibits.

    And as I say, I will ascertain if they are before the Court, because these are the exhibits which formed the basis of these defendants’ applications for change of venue.

    They were the matters before the trial court and upon which he ruled as to whether there should have been a change of venue in this case and certainly, the trial judge could have taken in the consideration his own experience and the fact that jurors would not be inflamed by the articles that appeared here.

    He could take cognizance of the fact that for the most part, these articles merely related the facts without any slanting.

    And as far as I know so far, there’s been no claim that there was slanting of any newspaper reports.

    And you will see as you read through these exhibits as they continue on, pictures of Defense Counsel.

    In fact, there is one article which contains a very nice story giving a biography of Defense Counsel for petitioner Duncan.

    Mr. Sullivan give — relates his long and distinguished career before the bar.

    There is also an article of the District Attorney.

    It’s quite evident and the petitioners here have never been able to establish that there was any slanting of the news here.

    There was a fair and full news disclosure.

    The news media was not perverted or slanted by anyone, nor particularly not by the District Attorney.

    And obviously these defendants could and did get a fair jury trial in Ventura County.

    On February the 16th, many, many days have gone by from the first publication of these articles to which reference has been made.

    Since the first article was December 15, a total of 63 days had gone by.

    Obviously, the trial judge on his ruling on a motion for change of venue could consider that jurors would have forgotten as it’s already been said, most people barely read the news.

    And obviously, they retained the news for only a short period of time.

    It served no purpose to rule at Ventura County, the citizens of Ventura County and there’s been some reference that it’s a rural county.

    Well obviously, it’s not a rural county.

    On the 1960 census, it had almost 200,000 population of the 58 counties in California which is a fairly populous state.

    It ranked number 15 among the county, so it was not a rural county in California.

    And obviously, the jury panels were not exhausted.

    If the jury panels were exhausted before they could have gotten any jury, this would have any good basis —

    William J. Brennan, Jr.:

    Well, you mean that jury was picked on panel of 83 for the Duncan trial.

    William E. James:

    There’s only — no there was more, they did not exhaust their jury panel.

    They had, I believe 150 on the Duncan.

    They only interrogated 83 prospective jurors in the Duncan case.

    They interrogated approximately 70 in the Moya case and only 61 in the Baldonado case.

    And they didn’t —

    Tom C. Clark:

    How many were excused by the Court to calls in Duncan?

    William E. James:

    There, I believe there are about 28 altogether.

    I have the figure somewhere if the Court would like them.

    There were a number of course in the Duncan case, I think there were 23 who were excused on the California law because they entertained conscientious scrupulous against the death penalty.

    Tom C. Clark:

    And only five —

    William E. James:

    A number who had formed opinions.

    Tom C. Clark:

    Only five on it were excused for other grounds.

    William E. James:

    I believe so.

    There were some who would form the opinions and they were excused for cause.

    Tom C. Clark:

    I read some of likeness whole exemption which excused the cause of form the opinions.

    William E. James:

    That was — there were two holds — holds in the Duncan case.

    Tom C. Clark:

    Yes.

    William E. James:

    One said she had no fixed opinion and she remained as a juror.

    There was —

    William J. Brennan, Jr.:

    Well, that’s — that’s the one who (Voice Overlap), isn’t it?

    William E. James:

    Who I will refer to.

    She had a sorority system.

    William J. Brennan, Jr.:

    Who’s been murdered, but she sat on the jury.

    William E. James:

    She sat on the jury and she was not challenge for cause.

    And perhaps as my time is fleeting fast, I might be true to that unless the Court has any questions in regard to these exhibits.

    Felix Frankfurter:

    Only one more Mr. James.

    William E. James:

    Yes.

    Felix Frankfurter:

    Would you please explain the allegation in Mr. Sullivan’s affidavit about the statement printed on page 7 in — his crime is one of the most vicious and powerful, then the editor, there’s no such statement ever appeared to this statement.

    Page 7, this crime is one of the most vicious and horrible and (Inaudible).

    And then the next day, the editor, Mr. Jackson Henry, the managing editor of Ventura County Star examined the issues, did not make any such statement, had no knowledge or information to believe that he made any of the statement to anyone.

    William E. James:

    I believe, and I believe the District Attorney also in his affidavit which succeeds on nine and 10 and 11 also specifically did not —

    Felix Frankfurter:

    Is that — is that cleared how — how Mr. Sullivan or an oath to say this appeared in the December 27, 1958 or just —

    William E. James:

    Not that I know in the record, it was never cleared up.

    Felix Frankfurter:

    Just a piece of flagrant carelessness.

    Earl Warren:

    No.

    Earl Warren:

    I — I think that’s explained isn’t it by the District Attorney’s affidavit which appears on page 9 and at the bottom he says, “I publicly made the following statement, the brutal calculated revoking killing for hire with all the Duncan” is one of the number of horrible crimes which have recently been committed in California’s time after that.

    William E. James:

    Yes.

    Earl Warren:

    There isn’t much —

    William E. James:

    But on page 10, he specifically denies the statement this crime is one of the most vicious and horrible in the annals of modern justice.

    He says either the falling statement or anything resembling it was ever made by — by means anytime.

    Earl Warren:

    Yes.

    Felix Frankfurter:

    Well, I don’t understand why he said that.

    Earl Warren:

    That’s pretty close to it.

    Felix Frankfurter:

    I don’t understand that.

    He said he didn’t make publicly the following statement.

    The proof of calculated revolving killing for hire of Olga Duncan is one of — is a number of horrible crimes recently have been committed in California.

    And then he says neither of the following statement or anything resembling it was ever made by me at anytime.

    This crime is one of the most vicious and horrible in the annals of modern justice.

    William E. James:

    Well, I think he was in the first same in the —

    Felix Frankfurter:

    In the sense of nicety of English, it is very nice.

    William E. James:

    Setting up what was the article that appeared in the December 22nd issue of the Ventura Star Free Press, which related to capital punishment in which he admitted making and which he gave us his reason that he was —

    Felix Frankfurter:

    But — but in —

    William E. James:

    — making a (Voice Overlap) —

    Felix Frankfurter:

    — statement which he avows on the 21st, he did say the proof of calculator result in killing for Olga — Olga Duncan.

    So, this wasn’t just generally in capital punishment source.

    This is using Olga Duncan vicious horrible crime as an argument to capital source.

    William E. James:

    Well he was — he was referring to crimes in that caliber and I think in a later quoted statement in the press, they — he refers to other crimes of a similar nature.

    Now as I say, before I pass this point, the exhibits which I assume are before the Court, I think the Court will want to read because obviously as you read those exhibits, the references to which we made to Defense Counsel statement, it will become manifestly clear that there was no conduct by the District Attorney as such which resulted in publicity and which prevented these defendants from obtaining in Ventura County their impartial jury.

    Now, turning to the point to which the Duncan matter relates and which relates not at all to the other two cases and that was the question certified on the granting of certiorari in this case, was the petitioner’s right to a fair trial is guaranteed by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America denied?

    Was there a violation where in a trial of a capital offense by jury?

    The trial court permitted to remain in the jury box and sit in judgment three jurors who would enter the jury box with fixed opinions as to petitioner’s deal and retain such opinions while being examined on voir dire.

    Well obviously, the petitioner here had overstated herself in her application for certiorari because there was no permitting by the trial judge in this case.

    There was never any motion, there was never any challenge for causing interpose, challenge of any nature interpose by petitioner Duncan as to these three jurors who sat Hall, Bertsch and Horrell.

    And obviously, the statement that they entered the jury box with fixed opinions and retained such opinions while being examined on voir dire is not supported by the record.

    It obviously wasn’t the question addressed to these particular jurors or not post by the District Attorney in this so-called technique that’s been referred to the District Attorney.

    William E. James:

    They were post by Defense Counsel himself in the case of Ms. Hall, who Ms. Hall who sat and not the Ms. Hall who was excused.

    This is the question, “Do you know of any reason whatsoever why you could not be fair and impartial as a trial juror in this case?

    Answer, “No sir, I do not.”

    Mr. Sullivan, “No further questions.”

    The Court, “Did you pass for a cause?”

    Mr. Sullivan, “Yes, Your Honor.”

    And this is page 648 of the transcript in the Duncan case.

    Now obviously, these petitioners have no case here on these either points.

    They made no effort to preserve this constitutional point as they assert it in the trial court.

    They made no effort to raise it in the automatic appeal in the State Supreme Court.

    I understand that there’s been lodged with this — this Court.

    The briefs filed on behalf of petitioner Duncan in the State Supreme Court.

    I have here my copy of the appellant’s opening brief.

    The first point is the trial court committed prejudicial error in disallowing appellants’ challenges for cause for actual bias.

    Now, this is — this is contending that the Court erred in not allowing the cause, the challenges for cause as to the four jurors to which reference has been made.

    No claim as to these three jurors and find (Voice Overlap) —

    William J. Brennan, Jr.:

    Well, as I understand the argument Mr. James, the argument is that the error in that regard, as they saw it, deprived them because it exhausted their preemptory challenges when these three came along, deprived them of their opportunity to use a preemptory challenge to get rid of these three.

    They couldn’t, as a matter of trial practice, challenge the cause because this has been gotten involved (Voice Overlap) —

    William E. James:

    They weren’t —

    William J. Brennan, Jr.:

    — the right equipment when they started.

    William E. James:

    Well, they weren’t (Voice Overlap) —

    William J. Brennan, Jr.:

    The Court — the Court as I understand it, their argument is that as to the first four, the Court had been wrong and would have repeated its error as to these three if they had challenge the Court.

    William E. James:

    Not necessarily.

    Obviously, our position is the trial court was not wrong as to the four and we have stated that in our briefs.

    The State Supreme Court went into this matter.

    This was the issue before the State Supreme Court and I think this was quite clearly set forth in the opinion of the unanimous State Supreme Court where the statements by each of the jurors on the voir dire was summarized, and the Court concluded that pursuant to Penal Code Section 1076 of California Penal Code that these jurors were not disqualified.

    Tom C. Clark:

    That the four or —

    William E. James:

    This is — I’m referring now to the four (Voice Overlap) —

    Tom C. Clark:

    That didn’t discuss — that didn’t discuss the other did he, because they have this

    William E. James:

    No, there’s no limitation–

    Tom C. Clark:

    (Voice Overlap) join to them.

    William E. James:

    There’s no occasion to these jurors were not disqualified.

    They had not come there with fixed opinions.

    As I pointed out first, petitioner overstated herself here and says the trial court permitted.

    The trial court had no opportunity to do rule on it.

    So, there as no permitting by the trial court jurors were not there with fixed opinions.

    Tom C. Clark:

    (Voice Overlap) —

    William E. James:

    And it is not — pardon.

    Hugo L. Black:

    Assuming at one — assuming — let’s assume that there was error in the refusal to excuse the four, then assuming if one disagreed with it, he had felt that there was clear error with reference to the three that it should be noted here.

    Is there anything that shows with reference to those three that they had a fixed opinion?

    William E. James:

    I —

    Hugo L. Black:

    — by opinion one way or the other?

    William E. James:

    I say no and I think —

    Hugo L. Black:

    Is there anything in the record that shows?

    William E. James:

    That they have fixed opinions.

    No.

    Hugo L. Black:

    Is there anything that shows that they had an opinion which was of the kind that the other four had?

    William E. James:

    No, Your Honor.

    Potter Stewart:

    Oh, how about to page 647 of the record, I’m referring now to the Ms. Hall who sat.

    She’d early — she had earlier stated at voir dire that her — she’d had a sorority sister who had been murdered further that her sister was a policewoman and that her father was a policeman.

    William E. James:

    Not in Ventura County.

    Potter Stewart:

    Not on those things would go to cause but they went raised interesting questions from the part of — the possibility of our preemptory challenge obviously on the part of the defense.

    And then on page 46, 47, she says, in answer to this question, now there’s opinion that you formed with the respect to the guilt of Mrs. Duncan.

    “Do you still have that opinion as you sit in the jury box this — box this morning?”

    “Well, yes, sir.”

    “And is that opinion such that it would take some evidence on the part of the defense overcome?”

    “No, sir.”

    And then earlier what I meant to read was this, “I take it then that you form an opinion that Elizabeth Duncan was guilty of this charge.

    Is that right?”

    He says, “That’s right.”

    Potter Stewart:

    And that’s where — that’s — that was her opinion as she came into the jury box.

    William E. James:

    Yes, but it is our position, she did not re — retain a fixed opinion as to the guilt and I think that it is quite clear from the interrogation by Defense Counsel that Defense Counsel did not believe that she had any fixed opinion as to the guilt and that she could not qualify as a juror who’ve rendered a fair and impartial where it’d be solely (Voice Overlap) —

    Potter Stewart:

    Well, (Voice Overlap) says that he had tried to challenge for cause.

    William E. James:

    Not these jurors.

    Potter Stewart:

    These other four and it had been unsuccessful.

    And based on that experience, the argument is that he was not going to — since he knew he would be under — had bearing, good reason to believe it’d be unsuccessful challenging for cause in this case.

    He was not going to try it and just to incur the resent under juror.

    William E. James:

    Present —

    Potter Stewart:

    And also that because his previous challenges for cause, if it disallowed, he was — didn’t have a remaining preemptory challenge for this juror or for the other two.

    That’s the basis of his argument.

    William E. James:

    Of course —

    Potter Stewart:

    And there is an indication here on page 647 that is as this Ms. Hall came to the jury box quite apart from the murder of her friend and the rest of it, but as to her opinion about these defendant’s guilt, she said she had it that she thought she was guilty.

    William E. James:

    But she didn’t say that she couldn’t render a fair and impartial verdict according to —

    William J. Brennan, Jr.:

    He didn’t say positivity.

    William E. James:

    Well, she said why a Defense Counsel because he passed her for cause.

    And I think that —

    William J. Brennan, Jr.:

    But —

    William E. James:

    I don’t see this argument about being afraid to challenge a juror or cause or peremptorily or at least challenge for cause because obviously, this could be made against by any defendant who by the later time, I’d say that there was on the juror — jury an obnoxious juror but he was afraid to challenge because he might — if he — is challenge was disallowed, have the prejudice of that juror and —

    Potter Stewart:

    Well —

    William E. James:

    — possibly, he felt the juror (Voice Overlap) —

    Potter Stewart:

    Well, I understand your argument but in the — in this particular context, the argument may have some merit to it (Voice Overlap) —

    William E. James:

    Well, I think it was suggested earlier when counsel for Duncan, petitioner Duncan was arguing that it wouldn’t been very easy to preserve in the record this challenge if it’d actually be — if it wasn’t and after thought that they had made now as to one that get rid of these jurors, they could have very well have at the bench, outside of the hearing of the prospective jurors made their record, obtained either at the bench or in chambers, their objection to these particular jurors had a ruling.

    John M. Harlan II:

    Your point surely is that it affects counsel cannot play the game in both ways.

    If he wants to stand on this challenge, he’s got to make it clear and if he doesn’t want to risk the effect of it, well that’s too bad whether he loose an appeal.

    William E. James:

    That’s right.

    John M. Harlan II:

    Isn’t that your position?

    William E. James:

    That’s — that’s our position.

    In other words, it’s not an idle act to preserve a constitutional right.

    And if he was going to challenge these jurors, if he felt that these particular jurors could not render fair and impartial verdicts contrary to what he put in the record here that he was satisfied in the minute that he passed them for cause.

    If he felt that they could not render fair and impartial verdict, he had a duty to present that matter to the trial court and get a ruling, and he could have done it —

    William J. Brennan, Jr.:

    Well, Mr. James, what — what significance do you give to this of 673?

    I notice it’s captioned under renewal of motion for removal and change of venue and denial error.

    But certainly, this point was made to the trial judge, have the presence of the juror, wasn’t it, the middle of 673?

    William E. James:

    How could the judge rule?

    This was merely on the change of venue.

    How could the judge rule on any particular juror?

    There was no juror mentioned?

    Was he was going to throw out the entire panel?

    Tom C. Clark:

    Whether (Voice Overlap) —

    William E. James:

    There’s no mention of Hall, there was no mention of Berstch or Horrell.

    Tom C. Clark:

    It’s all directed in a motion for change.

    William E. James:

    Change of venue.

    Felix Frankfurter:

    Mr. James, these — these three jurors which we’re talking about, it kept down for they — for they kept on after the defense that exhausted preemptory challenges?

    William E. James:

    As I recall the record the defense —

    Felix Frankfurter:

    Well then —

    William E. James:

    — had exhausted their preemptories.

    Felix Frankfurter:

    Very well.

    Suppose they had to exhaust their preemptories when they should have been — when they could have kept them in that juror should be drawn off the course.

    And therefore, they had no preemptories left.

    And suppose all that was wrong, suppose people should have been drawn off the course but weren’t and therefore, they have —

    William E. James:

    They should have four more preemptories.

    Felix Frankfurter:

    Therefore, they should have had four more preemptories.

    Many of counsel can exercise preemptory although he couldn’t — he couldn’t throw them off for cause and that right to not to take risks is also a very important right at trial, that’s why people have preemptories.

    William E. James:

    That’s right.

    But it’s still didn’t prevent this petitioner, if she was dissatisfied with these prospective jurors or jurors about to be sworn making a record before they were sworn as to her objection because he said —

    Felix Frankfurter:

    You mean, suppose he —

    William E. James:

    Pardon?

    Felix Frankfurter:

    He couldn’t — he couldn’t make a record as them again — as because you might be right about that.

    You think he should have then said, “Your Honor, if I had three more preemptories, I would exercise them against A, B, and C.”

    Is that — the back of that is what you say?

    William E. James:

    If he was going to now ascribe to the trial court the permitting of three jurors to sit, he certainly should allow the trial court an opportunity to rule one way or another and feeling that —

    Felix Frankfurter:

    Yes, but —

    William E. James:

    — he hardly comes before this Court with a constitutional question.

    Felix Frankfurter:

    Suppose — suppose the counsel or conscientiously — conscientiously believe there isn’t ground of objecting this amount of cause.

    Should he then make a speech to the trial judge and say, “Your Honor, this is the situation I am in.

    There isn’t ground for us Your Honor to discharge these jurors.

    But if I had reference, I would not have that.”

    William E. James:

    We specifically pointed out the dodge in this situation, the dodge juror there and there I think there was an earlier juror that was interrogated, the trial judge was very liberal actually in allowing a challenge for cause when he didn’t actually feel —

    Felix Frankfurter:

    You mean —

    William E. James:

    — that a challenge for cause lay and —

    Felix Frankfurter:

    You mean he should have —

    William E. James:

    Made an effort.

    Felix Frankfurter:

    — he should have made an appeal misericordia.He should have asked the compassionate and said, “Your Honor, I’m not agrestic but would you please” nevertheless I’m troubled about these two jurors and not to seek them.

    Is that it?

    William E. James:

    Well, he should have made —

    Felix Frankfurter:

    That’s to make it sound —

    William E. James:

    — he should have made his objection in the trial court and not here.That’s what we say.

    Felix Frankfurter:

    Well, he had no objection except the trial under which had gone against it.

    William E. James:

    Well then he can’t come before this Court and say that three jurors were permitted by the trial court to remain on with fixed opinions because they didn’t have fixed opinions.

    That’s the sole issue of this case.

    Felix Frankfurter:

    Sufficiently fix — sufficiently fix for his purposes so that he wouldn’t have had them if he could keep them all.

    But it’s not sufficiently vague as a matter of cause, he should have been — not allowed to sit.

    William E. James:

    Well, of course it’s a fairly limited question, this question number two in the Duncan case.

    I think Your Honors (Voice Overlap) —

    Hugo L. Black:

    I think you should obtain really time to — that I started out to ask you about these three jurors and I would like to say (Inaudible) find out who was the second, who was the third and where is the statement about that?

    William E. James:

    The — the first one in order of interrogation was Mrs. Berstch and her testimony, her interrogation appears partially on 636 and 637 of the — I think it extends further but I have a notation 636 and 637 of the transcript.

    Potter Stewart:

    I think it goes from 629 to 640.

    William E. James:

    I think that’s correct.

    Ms. Hall, that’s the Hall that remained in the —

    Hugo L. Black:

    (Voice Overlap) —

    William E. James:

    She’s around 648 and Mr. Horrell, I have a notation, 668 to 6671 — 668 to 671, and I think it extended earlier with an —

    Potter Stewart:

    (Voice Overlap) — again to 665.

    William E. James:

    That’s correct.

    Hugo L. Black:

    That’s Mr. Horrell.

    William E. James:

    Horrell.H-O-R-R-E-L-L.

    Thank you, Your Honors.

    Earl Warren:

    Mr. Henson.

    Burt M. Henson:

    May it please the Court.

    This case, I think, has to be judged on the totality of the facts.

    I feel that the argument thus far may have perhaps narrowed the issues too much insofar as petitioner Moya was concerned whom I represented in the trial court a motion for change of venue was made on January 13th, early on the trial on grounds that a fair and impartial trial could not be held within Ventura County, citing many things, the fact that the defendant was of Spanish-Mexican origin, the fact that the District Attorney and associated law enforcement officers had released a great deal of information concerning the case.

    William J. Brennan, Jr.:

    Now, right there —

    Burt M. Henson:

    Yes, sir.

    William J. Brennan, Jr.:

    Mr. — where and tell us that you were going to tell us where it is that it appears that the District Attorney released a confession or confessions.

    Where is that?

    Burt M. Henson:

    I think that we can — they go about it this way, I don’t mean to avoid it but let me say this.

    The District Attorney in Ventura County has an investigative stand.

    He doesn’t rely solely upon the sheriff’s department.

    And in one publication, this was all before any grand jury transcript was published.

    The District Attorney, this is on December 22nd in the Los Angeles Times, said, “I was tired of waiting for somebody to do something with this case so I ordered my men to question Baldonado.”

    Then in another news item, where it refers to Ventura County as a Cal County, it states that Clarry — Clarence “Clarry” Henderson DA investigators assumed the role, I’m talking about host for the press, he arranged for photographs of the murder suspects.

    He provided names of the witnesses who had appeared before the grand jury.

    Felix Frankfurter:

    What’s the date of that?

    Burt M. Henson:

    That was December 29.

    Felix Frankfurter:

    Now, was that an exhibit?

    Burt M. Henson:

    Yes.

    Felix Frankfurter:

    What exhibit?

    Burt M. Henson:

    That was Exhibit 27 attached to affidavit.

    William J. Brennan, Jr.:

    Now, this was after the appearance before the grand jury?

    Burt M. Henson:

    No.

    If I might clarify the — it was after the appearance before the grand jury but — well, this article, I guess read a portion of, was describing the grand jury proceedings.

    William J. Brennan, Jr.:

    Which had occurred when?

    Burt M. Henson:

    Which had occurred on December 26th, but the grand jury transcript was not published until around December 31st.

    Felix Frankfurter:

    When you say publish, what do you mean by that?

    Burt M. Henson:

    That is, it was transcribed by the court reporter and was available for —

    Felix Frankfurter:

    Publish means available to the public.

    Burt M. Henson:

    That’s correct.

    Felix Frankfurter:

    Alright.

    Burt M. Henson:

    Alright now, with respect to the confessions then, December 26th, 1958 issue of Exhibit of Star Free Press with the headline, Moya admits he kidnapped nurse.

    The article reads, “Moya reportedly told about the same story as Baldonado of the murder.”

    Gustafson, the District Attorney said, “The confession revealed the pair had driven to the apartment of Olga on November 18th and that Moya had gone to the door telling the attractive nurse that her husband Frank, from whom she was estranged, was in the car and wanted to talk to her.”

    William J. Brennan, Jr.:

    What paper was that?

    Burt M. Henson:

    That was the Ventura County Star Free Press, December 22nd, Exhibit 18.

    Then it goes on, “Baldonado has confessed participation in the kidnap slaying” and says, “He was hired with Moya by Mrs. Duncan according to Gustafson.”

    Now if you go back, this case came alight around December 15th and this — the first major headline was lead sought in bizarre plot.

    This was December 16th.

    The fake annulment charge jails three nurses in this.

    Thereafter, these statements were made by the District Attorney or associated law enforcement officer, that is investigators working in his office, under his personal control.

    First of all, DA says man post as lawyer.

    This is about Winterstein.

    And in this article, Gustafson says, “I feel very strongly,” Gustafson said that there might not have been any disappearance that Olga Duncan had we’d been able to move on the case in October.

    The next day, December 19th, key witness gives DA valuable information.This was Star Free Press Exhibit 14.

    And in this, the District Attorney says preferring to Mrs. Duncan, “She has been through enough annulment proceedings to have known that what she obtained here August 7th, was not a legal annulment.”

    Felix Frankfurter:

    Now, may I ask you if you have time with Chief Justice’s permission?

    Were these press accounts attached as part of your affidavit asking for a change of venue?

    Burt M. Henson:

    Yes, Your Honor.

    Felix Frankfurter:

    Did the District Attorney make any reply to that affidavit?

    Burt M. Henson:

    The first change of venue hearing in January, he made one — made a reply affidavit denying that he had made this one statement that Mr. James talked about.

    Felix Frankfurter:

    He said nothing about these others?

    Burt M. Henson:

    No.

    Felix Frankfurter:

    But they were part of the — they were a foundation of your motion?

    Burt M. Henson:

    That’s right.

    Felix Frankfurter:

    I think you specifically claimed that the — the marshaling of these various successive statements attributing statements to him.

    Well but in your view, affected the opinion of the feelings or the thoughts of the capacities of prospective jurors.

    Burt M. Henson:

    Yes.

    Felix Frankfurter:

    And he made no reply to these affidavits attributing to him the statements you quoted.

    Is that right?

    Burt M. Henson:

    Others made a denial of the statement.

    Felix Frankfurter:

    Yes.

    I understand that other than that.

    Is that correct?

    Burt M. Henson:

    Yes.

    Felix Frankfurter:

    But this applied only to Moya, does it?

    Burt M. Henson:

    Well, as Mr. —

    Felix Frankfurter:

    I know you’re in a difficult position but —

    Burt M. Henson:

    Yes.

    Felix Frankfurter:

    This is in your — in your motion.

    Burt M. Henson:

    In my motion.

    Of course Moya made two motions.

    One motion in January, another motion for change of venue in April and in the motion for change of venue at April, there was no counter affidavit, no counter motion by the District Attorney.

    Felix Frankfurter:

    But — but this is very important to me.

    But to this earlier motion in January, in which — to which you are next I take it all these newspapers or reporters’ data or reproductions of them.

    Burt M. Henson:

    Yes.

    Felix Frankfurter:

    Making these explicit attributions either to the District Attorney or members of his own staff, not somebody else’s staff.

    There was no denial except as to the one statement.

    Is that right?

    Burt M. Henson:

    Yes.

    Earl Warren:

    Where — where Mr. Henson did you specifically charged the District Attorney with having — having done anything in your — in your motion or in your affidavit?

    Burt M. Henson:

    Yes.

    We can — page 16 —

    Earl Warren:

    16 of Moya’s —

    Burt M. Henson:

    Of Moya’s, yes.

    Earl Warren:

    16.

    Burt M. Henson:

    There — there were other affidavits including a justice court judge, three attorneys, and two ministers in addition to mind verifying prejudice.

    Earl Warren:

    Yes, but I want — I just want where you — what you specifically charge the District Attorney with.

    Burt M. Henson:

    Yes, sir.

    On the bottom of page 16, a client believes and they’re on alleges that there is widespread and deep-seated prejudice against the defendants and the above and titled case.

    Client believes and thereon alleges that a primary reason for the existing prejudice, this is the fact that certain public officials made certain public statements concerning above and titled case.

    And going on some high ranking public officials publicly expressed their opinions concerning the case, other public officers released information to the press and other public media concerning the investigation.

    Many of such statements were made before any legal tribunal had heard any evidence.

    Many of such statements divulge information which would not have in any way constituted legal evidence in a trial.

    The statements of opinion published would probably have been classified as prejudicial misconduct as stated in a court law, then I go on and recite Roy Gustafson, the duly elected acting District Attorney served in that capacity for approximately eight years.

    Then —

    Earl Warren:

    Well, do you — you don’t — with that paragraph, you don’t necessarily charge him, do you?

    If you say there are some high officials but do you charge him specifically with doing anything?

    Burt M. Henson:

    Yes.

    Your Honor, following paragraph and of December 22nd, 1958, a copy of which the test of Roy Gustafson cause to be published a statement which contained among other matters that follow in that statement.

    Earl Warren:

    That he admitted.

    Burt M. Henson:

    That was admitted.

    Earl Warren:

    That he admitted.

    Now, what else do you charge him with that he didn’t admit?

    Burt M. Henson:

    A number of — that is many of the individual statements were not set forth in the affidavit but were contained in the existence which I was about to recite to the Court but I’m not able to do so by that part.

    Earl Warren:

    Well, there isn’t there a difference in the — in which you’re expecting to respond to depending upon whether you charge him with something in an affidavit or whether — or whether you just file a group of newspapers?

    Burt M. Henson:

    Yes.

    Earl Warren:

    Did you file the affidavit?

    I — I take it that — that he would be — he should respond to it, so it would make an issue on your motion for change of venue.

    But if you — if you just put in a lot of newspapers, would — would he have to deny everything that’s in the newspapers?

    Burt M. Henson:

    No, I don’t believe so.

    I would like to just go on here if I might —

    Earl Warren:

    Yes, you may.

    Burt M. Henson:

    — say anytime preparing an affidavit without making it too long, but we did cite some of the things such as he did state in the — in his interview with Marvin Sasona, the describing reasons why a death penalty should be applied here.

    Burt M. Henson:

    He had said that Moya had been using marijuana when he was arrested, which was false and which he did deny —

    Earl Warren:

    He denied that, didn’t he?

    Burt M. Henson:

    He denied making that statement.

    Earl Warren:

    Yes.

    Burt M. Henson:

    Then the statement now, at further on down page 19 headline, “Heart attack sends Mrs. Duncan to hospital.”

    District Attorney Roy Gustafson this morning said that Mrs. Duncan’s illness may have been real but added that, this is a trick used by many persons in jail in a serious charge.

    It is known as suspects fake illnesses to get into a hospital where there’s a chance to escape.

    Further on down, Santa Barbara Police Lieutenant Charles Thompson, the execution of the $6000 slaying was called by Santa Barbara Police Lieutenant Charles Thompson, the most cold-blooded crime I’ve ever heard.

    And then I perhaps don’t specifically bring out other articles.

    There were some 35 exhibits attached to the affidavit.

    Hugo L. Black:

    Well, is that the original motion for change of venue?

    Burt M. Henson:

    Yes, in January.

    Hugo L. Black:

    Was it also for any purpose except that, as to the change of venue?

    Burt M. Henson:

    No.

    It was offered on that specific purpose for change of venue to support the affidavit.

    Then of course the affidavit also points out that the same things that were contained this page 22, the above entitled case has also been discussed and commented upon by practically every radio and television newscaster in the Los Angeles Ventura County area.

    The broadcast which our client has heard was in substance the same as that reported in newspapers attached hereto its specifics.

    Earl Warren:

    Well Mr. Henson, on the 10th day of January, when that affidavit was — was made, every fact that you complained of in there that has not been denied by the District Attorney, was made known to you and to the public and to the press of course, through the — the regular records in this case, were they not?

    Burt M. Henson:

    No, Your Honor.

    There were many, many things.

    Earl Warren:

    Alright.

    Now what things that — what things do you charge him with that — that were not — that did not stem from the — in your affidavit?

    What — what things do you change him with that were not in the testimony of the grand jury before the grand jury?

    Burt M. Henson:

    For example, the testimony before the grand jury insofar as Moya was concerned didn’t say anything about his prior criminal record and that was fully brought out by the District Attorney’s statements.

    Earl Warren:

    Now, where do you charge him specifically with that?

    Burt M. Henson:

    I — I didn’t charge him specifically.

    Earl Warren:

    Well then how did you know he gave — he gave it out?

    That’s a matter of common knowledge that —

    Burt M. Henson:

    Yes.

    Earl Warren:

    — that newspapers get from police records and what a — what a man’s prior record was and if you’re charging the District Attorney, I would think you would — I — I would think you would have charged him.

    Burt M. Henson:

    Your Honor, the motion for change of venue was not direct solely at the District Attorney.

    It was on the broad general ground that petitioner could not have a fair and impartial trial in Ventura County at which the —

    Earl Warren:

    Well, if — if that’s the purpose of it, is one thing, but if you seek to — to pass all of these things on — on the District Attorney, then it seems to me that you have to charge him specifically with him with those things before you can say he has failed to deny them.

    That’s all I’m — I’m concerned about now.

    Burt M. Henson:

    Yes.

    Earl Warren:

    If you — if you just want to take to thing in its totality, and say these things whether they came from the District Attorney, whether they came from a sheriff or a police officer, or anybody else, has applied to this — has applied to this petitioner deprives him of a — of a fair trial.

    I can unders — I can understand that, but this thing is sort of congealed around the District Attorney and if — if he is to be charged with these things, it seems to me that he should — and — and in addition of being charged, if he’s to be charged with not answering when he should have, it seems to me that we should be able to find those things in the affidavits supporting you — your motion for change of venue.

    Burt M. Henson:

    No, my position was the totality of facts.

    Earl Warren:

    Yes.

    Very well.

    Felix Frankfurter:

    But you don’t —

    Burt M. Henson:

    Including if I might (Voice Overlap) —

    Felix Frankfurter:

    — but you don’t disavow the responsibility of the District Attorney in the setting of the fact that it’s well-known the district attorneys do talk to the press that there were charges in the newspapers that you filed saying that the District Attorney did this and he didn’t answer that.Is that correct?

    Burt M. Henson:

    Yes.

    Hugo L. Black:

    I don’t quite get the complete importance of the question you raised of the — who did it.

    It seems to me like if you were to try the right to — if you were forced to try a case in a county where you should be because of the — that feeling in that county, the question is whether you — whether they should give you a change of venue.

    And what difference would it make who said it except to the question (Inaudible)

    Burt M. Henson:

    Your Honor, I think there is a practical difference here.

    One being that material purporting to him an aid from District Attorney would be more likely if he believe and —

    Hugo L. Black:

    Do you think that — that was — give you a greater — greater reason to get your change of venue?

    Burt M. Henson:

    Yes, plus the fact that he could release what information he wanted to.

    For example, he released the — the confessions of Moya and Baldonado but Mrs. Duncan had denied it and that wasn’t released to the press.

    And then I think there’s something a lot deeper too and that is due process, as I understand it, means a denial of rights and whether the rights are denied by a trial judge in a trial or by other state officers such as the District Attorney or police officers that it makes no difference by which particular agency, due process is denied.

    District Attorney, being a state officer, could clearly violate the person’s right to due process such as in the cases of using purged testimony, willfully suppressing evidence favorable to the defendant.

    Hugo L. Black:

    But that’s why you raised the issues.

    Burt M. Henson:

    That’s correct.

    Yes.

    That’s raised in our briefs.

    Hugo L. Black:

    Well, have you filed the brief you raised with the State?

    Was your argument before the State, if you had asked the Court to grant a mistrial if a new trial is something on the ground of the District Attorney of that behavior?

    Burt M. Henson:

    No, Your Honor.

    Hugo L. Black:

    Was that ever — was that ever done?

    Burt M. Henson:

    Oh, yes.

    There were some errors in the trial that we claim were reversible error.

    But there was this broad issue of venue and one of our salient points was that the trial judge should have granted change of venue by reason of the totality of facts that we’ve been talking about today.

    Earl Warren:

    Mr. Henson, are — are any of the counsel who were — who were now representing any of these petitioners appointed by any of the courts below?

    Burt M. Henson:

    Yes, Your Honor.

    I was appointed.

    They don’t have a public defender’s office in Ventura County.

    I was appointed by the trial judge.

    Earl Warren:

    Yes.

    Well, Mr. Henson on behalf of the Court, I should like to express our appreciation to you for representing this — this defendant.

    We are always comforted when lawyers are willing to give their time in — for public cause of that kind before entitled to representation.

    And — and we always feel good about it when somebody is willing to do it.

    So, I address my appreciation to you for having performed that public service —

    Burt M. Henson:

    Thank you.

    Earl Warren:

    — to consider.

    And Mr. Attorney General, of course, we — we appreciate the — the manner in which you have represented the interest of your State.

    Stanley Mosk:

    Thank you, Your Honor.