Blackburn v. Alabama

PETITIONER:Blackburn
RESPONDENT:Alabama
LOCATION:Congress

DOCKET NO.: 426
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 354 US 393 (1957)
ARGUED: May 02, 1957
DECIDED: Jun 17, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – May 02, 1957 in Blackburn v. Alabama

Earl Warren:

Number 426, Jesse Blackburn, Petitioner, versus the State of Alabama.

Mr. Hobbs.

Truman M. Hobbs:

Yes, sir.

May it please the Court.

I represent the petitioner in this case, Jesse Blackburn.

Jesse Blackburn was convicted of the crime of robbery in the State of Alabama.

The crime for which he was convicted was a brutal one.

It involved the armed assault and serious injury to the operator of a rolling country store in the rural county of Colbert County.

It was the contention of Jesse Blackburn in his trial and it has been throughout the appellate procedures in Alabama that his conviction rested on a confession of it — the admission of a confession into evidence was improper that the confession was involuntary.

And in our petition for certiorari, we had the consideration of that question by this Court whether the confession in that case was involuntary and therefore violated the Due Process Clause of the Constitution.

The facts — the immediate facts surrounding the confession of Jesse Blackburn all came from the Deputy Sheriff who took that confession.

This was true because Jesse Blackburn testified in the trial and stated that he had no recollection whatsoever of the circumstances surrounding that confession.

In fact, he testified that he had no recollection of anything that had occurred for several months prior to his confession and for several months thereafter.

This was not an inconsistent statement for Jesse Blackburn to make because his medical records in — from Government insane hospital showed that recurrently Jesse Blackburn suffered from complete amnesia for long periods of time.

So then again, as to the immediate facts surrounding that confession, we take it entirely from the testimony of the Deputy Sheriff who obtained the confession.

His testimony showed that shortly sometime after Jesse Blackburn’s arrest, he was confined to jail in Colbert County and was taken into a small room there in the jail, which he described as a room four feet by six feet or six feet by eight feet.

We call it a table size room and he was interrogated there by the — this Deputy Sheriff and two other police officers whom he said came in and out for some nine or 10 hours.

The testimony of the Deputy was that they did knock off the questioning for about an hour while they had supper.

And after supper, the — the questioning continued until 10 or 11 o’clock at night.

In its brief filed in this Court, the State of Alabama has suggested that the only person that questioned Jesse during all this period of time was this Deputy Sheriff Stanford.

The record itself discloses, however, that the Deputy Sheriff stated that there were these other law enforcement officers who were coming in and out and that in answer to a question as to whether any of these law enforcement officers asked questions, he said they might have asked some questions and then the question was asked, did these questions relate to the facts in this case and his answer was yes.

So we think here that without any real question, we have a situation where this man was questioned almost unceasingly for nine or 10 hours by relays of law enforcement officers in this table sized room in this jail down in Colbert County.

We think such a confession, even if Jesse Blackburn had been a person of normal will and mind, would raise substantial doubts as to whether it would square with the constitutional requirements of due process of law.

But in this case we don’t have a person who was of sound mind or sound will.

Jesse Blackburn was a young Negro, 25 years old when this alleged crime was committed.

He had been in the Armed Services during World War II.

And in 1944, he was discharged from the Army as permanently mentally defective.

The Army Medical Board that surveyed him out of the Army, recommended that he be transferred to a government insane institution, and he went from the Army to a government insane institution.

The diagnosis at that time for Jesse Blackburn was that he was a victim of dementia praecox which in other places they call schizophrenia, simple type, that he had a history of hallucinations and defective judgment and insight.

And Jesse Blackburn remained in this government insane institution from 1944 until sometime in 1948.

Truman M. Hobbs:

In November 1946, the medical — the government hospital rated Jesse Blackburn 100% mentally incompetent.

In February of 1948, he was released into the custody of his sister for a 10-day leave from the insane hospital.

When the 10 days was up, Jesse didn’t return to the hospital.

Instead a short time thereafter, he left his home in Chicago and came to Alabama to attend the funeral of his brother.

It was — while he was on this trip to Alabama, that the crime for which he was convicted was committed.

His medical records at this government insane hospital state, however, and they automatically discharged Jesse when he didn’t return after 90 days.

His medical record stated that on his discharge “the diagnosis of schizophrenic reaction, paranoid type, remains unchanged.”

And he was considered incompetent at the time of his release.

Now, we think it’s significant in this case that this issue of insanity was not first raised by petitioner’s counsel.

It was raised by the very persons who obtained the confession from him.

It was raised by the jailer and the Deputy Sheriff, and the Sheriff who watched him there in the jail.

They testified that a short time or some little time or we don’t know exactly the period, but it couldn’t have been more than a few days or very few weeks.

They communicated to the Circuit Judge in Colbert County that Jesse showed signs of insanity.

And the Circuit Judge called in certain lay persons in the community and three local doctors to examine Jesse Blackburn.

All of the persons who examined him apparently found reasonable grounds for believing him insane.

The two doctors, there’s a statement from them in the record, they weren’t psychiatrist, they were just medical doctors.

They stated that in their judgment Jesse Blackburn was not mentally able to stand trial at that time.

On receiving these communications, the Circuit Judge, pursuant to the statute of Alabama, had Jesse transferred to the State Insane Hospital and a sanity commission was appointed which had as its head, the Superintendent of the State Mental Hospitals in Alabama, Dr. Tarwater.

Dr. Tarwater pointed the other two members of this sanity commission that examined Jesse Blackburn.

After their examination and they kept Jesse Blackburn in — under observation for some months before rendering a report, they were unanimous in their conclusion that Jesse Blackburn was insane when he was examined by the sanity commission, that in their judgment he was insane when the alleged crime was committed and in their judgement, he was insane when his confession was received.

The respondent in its brief has suggested that there’s a conflict in the testimony of the three doctors on that commission in their depositions.

He find such conflict from the statement of one of the doctors, Dr. Richards, that in his judgment, Jesse Blackburn did not show — was at all times normal.

And that is the statement of Dr. Richards, that in his judgement, Jesse Blackburn was at all times normal.

On the same deposition, however, Dr. Richards stated — reaffirmed the position he’d taken in his report that Jesse Blackburn was insane when he first examined him, was insane when the crime was committed.

And I think the only logical way to square Dr. Richards’ testimony not with the testimony of the other doctors, but with his other testimony on that deposition was that he viewed Jesse Blackburn’s normal condition as that of insane.

This is strengthened when it is also noted that Dr. Richards was asked, does — did you ever observe Jesse Blackburn when he was having a lucid interval?

And he said that in his judgment Jesse Blackburn had no lucid intervals.

Respondent makes a further effort to minimize the report of the sanity commission by suggesting that Dr. Rowe, one of the other doctors that examined him, conceded that he didn’t see him too often or words to that effect that he saw him on his general rounds.

But what Dr. Rowe said was, and I’m quoting that he had petitioner “continuously under observation from the time of his admission to the hospital until his discharge.”

He stated that on many occasions, he interviewed Jesse Blackburn for quite sometime, for interviews that lasted more than an hour in duration and in on other times, he just saw him on his general ward rounds.

Truman M. Hobbs:

On the basis of this lunacy commission’s report, Jesse Blackburn was committed to the insane hospitals in Alabama and he remained on an insane institution from July 1948 until November 1952.

He was actually in the insane hospital for more than four years being treated for his insanity.

That was under an order of the Circuit Court of Colbert County which directed that he be turned over to the insane hospital “permanently” or until restored to sanity.

In 1952, the sanity commission reported back to the Court that at that time, Jesse appeared to be restored to sanity.

And then he was brought back and put to trial.

Now, the State of Alabama recognized the time honored rule that you don’t try insane people.

And for that reason, they put Jesse Blackburn where he belong in an insane institution for some four-and-a-half years.

But when they said he was restored to sanity, they sent him back to trial and convicted him on a confession, which in the opinion of all the medical evidence in the case, was obtained at a time when he was insane.

Harold Burton:

Did the jury pass on that issue?

Truman M. Hobbs:

The jury passed on the question of whether he was insane at the time the offense was committed.

In Alabama, the Court passes on the matter of — of whether the confession was voluntarily or involuntarily.

The Court ruled that it was voluntary despite the fact that all the medical testimony, these depositions of the doctors that had the lunacy report, and all of this, it ruled that it was voluntary.

Then the confession was admitted in evidence and it went to the jury under instructions which said that there was a claim of insanity in the case and then unless they — they could give whatever weight they desired to the confession.

Harold Burton:

He — he was then directly considered by the appropriate bodies under the Alabama law?

Truman M. Hobbs:

Yes, sir.

I — I don’t think it was appropriately considered, it was — it was considered.

We think that surely if the law protects a defendant from standing trial when he is insane, at which time he, in a capital case such as this, he would be protected by the Court and protected by court appointed counsel that due process extends to a confession which was obtained at a time when he was mentally insane.

Now, if this confession was not obtained at a time when petitioner was insane, we submit this Court will never have an opportunity to pass on a case where such is the situation because the only evidence in this case that petitioner was otherwise than a mentally deranged person.

All of his medical history showed his mentally derangement.

His four-and-a-half years incarceration for mental disorder after his confession shows it.

Felix Frankfurter:

Mr. Hobbs, I probably missed it.

What was the time between the confessions — confession, which is what you bring here —

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

— on the trial, what period?

Truman M. Hobbs:

Oh, better than four years, merely five years.

Felix Frankfurter:

He didn’t come to trial for five years after the confession?

Truman M. Hobbs:

That’s correct, sir, because —

Felix Frankfurter:

I — yes, I understand.

Truman M. Hobbs:

In that —

Felix Frankfurter:

But at the trial — at the trial the claim of insanity was — was stressed, held first.

Truman M. Hobbs:

I beg your pardon?

Felix Frankfurter:

Was the — was it claimed at the trial that he was insane, not when he made the — when he gave the so-called confession, but at the trial, was he — was it claimed that he was too insane at the time to stand trial?

Truman M. Hobbs:

No, sir.

Felix Frankfurter:

Okay.

William J. Brennan, Jr.:

Mr. Hobbs, at the hearing before the judge on the issue of inadmissibility of the confessions by reason of insanity when taken, what testimony was it?

Truman M. Hobbs:

There was the testimony of the three doctors, their depositions, the members of sanity commission and —

William J. Brennan, Jr.:

They are the ones who made the finding that he was in fact insane —

Truman M. Hobbs:

Yes, sir.

William J. Brennan, Jr.:

— when the question was taken?

Truman M. Hobbs:

Yes, sir.

And there was also the — his records from the Veterans Administration which showed that he had been surveyed out in the Army as a mentally — mental defective and he’d spent the prior four years in a government insane hospital as 100% mentally defective patient.

William J. Brennan, Jr.:

Now, what testimony was, therefore, that reputes that?

Truman M. Hobbs:

Yes, sir.

The only testimony to repute it came from the Deputy Sheriff who had taken the confession, who said that in his judgement, the petitioner made sensible answers to questions that his eyes were clear and that he could answer questions with clarity and seemed to know the details about the instance — incidents that he was being questioned about.

William J. Brennan, Jr.:

Now, under your practice did the judge then have to make a finding of fact?

Truman M. Hobbs:

The Supreme Court of Alabama says that at that point, the judge must pronounce whether the confession was voluntary.

William J. Brennan, Jr.:

Well, on the issue inadmissible by reason of insanity at the time, does the judge make a finding of fact?

Truman M. Hobbs:

You mean at the time of the confession?

William J. Brennan, Jr.:

Yes, when it’s offered, does he say that I find as a fact he was sane when it was taken or something?

Truman M. Hobbs:

I don’t know whether — whether it could be classified as finding of fact that he was sane.

He makes a finding of fact that it was voluntary which is implicit and he is admitting it in the evidence.

And then after his — after the ruling on voir dire and after the confession had been admitted in the evidence, when the defendant took the stand in his part of the case, he stated to the Court that the signature appeared to be his, he had no recollection of anything.

Recited in the confession that he had no recollection of events leading up to his trip to Alabama and he — he didn’t remember anything for several months after —

William J. Brennan, Jr.:

Well, this is not important and I’m just curious.

Was the trial judge the same one who had originally committed him for examination?

Truman M. Hobbs:

I’m — I’m pretty sure that’s correct, Judge Hill.

Now, we think that whatever the standard for judging whether this confession was voluntary, the Circuit Judge in Alabama applied that it wasn’t — the stand, that it is not approved by this Court.

In the appellate court, the Court of Appeals, which was the only the Court that brought an opinion addressed to this, the Court of Appeals simply said that the — in matters of this kind, the discretion vested in the trial judge is so broad that it would not upset the trial court’s judgement as to this question of whether the confession was voluntary.

Could this conviction have started without — have been attained without any — without the confession?

Truman M. Hobbs:

I — I believe the State would concede probably that it could not, although the — the trial judge said in its — in its oral charge that in the event the jury didn’t wish to consider the confession, they could consider the circumstantial evidence and so forth.

Truman M. Hobbs:

But the only circumstantial evidence in the case really was that Jesse Blackburn was down there with two other colored men driving — one of the other colored man had a — a maroon Buick and with an Illinois license tag and there was evidence that the robbery was committed by persons driving a maroon Buick with an Illinois licence tag, but there was no evidence that Jesse Blackburn was even at the scene of this crime.

And I think it is — the only fair conclusion would be that without this confession there couldn’t have been any conviction.

Felix Frankfurter:

You wouldn’t concede that that would make a difference?

Truman M. Hobbs:

No, sir, I would not.

I think this Court has stated in many, many cases that if the confession comes in, that — that that ends it, he’s got to go back for another trial.

Now, the test announced by this Court and not for the first time either but announced by this Court in the Stein case was — where this Court allowed a confession, “The limits of constitutional due process in any case depends upon a weighing of circumstances of pressure against the power of resistance to the person confessing.

What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.”

Now, what were the powers of resistance of this mentally deranged man who, at the time of his trial, had spent his entire adult life over eight years in insane institutions?

The Stein case emphasized that the prisoners in that case were not, “Young, soft, ignorant or timid.

They were not inexperienced in the ways of crime or its detection.”

Apply the plain implication of that language to Jesse Blackburn, he is a man that has never had any previous experience whatsoever with criminal procedures.

He was 25 years old when this crime was committed and when this confession was taken and he’d spent all of his adult life at that time in an insane institution.

Plain implication of Stein if it means anything in that regard, we submit, is that the circumstances of pressure brought against him was overpowering to him because his powers of resistance was so weak.

Felix Frankfurter:

Mr. Hobbs, I’d like to ask you a question and — and I’m fumbling for words to avoid misunderstanding.

To you this decision seems to me utterly in defensive of nothing, that’s your word, do you think there’s nothing to justify it, is that right?

Truman M. Hobbs:

You mean the opinion of the Court of Appeals?

Felix Frankfurter:

Yes.

This —

Truman M. Hobbs:

Well, the only thing —

Felix Frankfurter:

You think this is a perfectly clear case, isn’t it?

Truman M. Hobbs:

To me, it is.

Felix Frankfurter:

And to you it’s perfectly clear within our decisions?

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

Is that right?

Now, when I say I’m trying to struggle with words I can use.

I do not remotely mean you to do any psychoanalysis of the judges who decided otherwise.

I mean you to take the opinion and try to — in your capacity to indicate if you can, if you say — prefer not to answer the question, I would understand it too but it bothers me and that’s why I’m putting the — but rather it seems — seems as clear that seems to be — or I ask myself how did the conscientious court — what were the assumption?

What were the presuppositions?

How did they off to legal way as much as your argument indicates that in your view it did, would you care to answer that question, Mr. Hobbs?

Truman M. Hobbs:

I think it’s a fair question and I’ll try to answer it.

Truman M. Hobbs:

I think to begin with —

Felix Frankfurter:

Well, I’m assuming that one assumption in my question.

That court is conscientious?

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

Has read the opinion to the Court, did you argue this case below?

Truman M. Hobbs:

No, sir.

Felix Frankfurter:

That — that all there is — the reports of this Court are not recondite, the very things locked up in some treasure room of the library.

They’re familiar with them and did the best to apply those.

That’s the assumption —

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

— I’m making.

Truman M. Hobbs:

Well, I would suggest this, Your Honor, that in reading the courts of opinions, the courts of Alabama, appellate courts in confession cases, you find almost no cases where the confession — where a case has been thrown out.

A conviction has been reversed because the confession was admitted in evidence.

I don’t purport to have exhausted those reports.

But in my research of it, I found only one case which was many, many years ago where the courts of Alabama knocked out a case on the ground of — of the confessions being involuntary.

And I think the key to — the key to — to answering your question is probably found in the — in the opinion of the Court of Appeals, where it says that we vest so much discretion in the trial judge in these matters that we will not upset his judgment.

They view it somewhat as a judgement of fact, although this Court has said, Your Honor has said in — in some of his opinions that — that these are questions of fact but they’re the very facts that this Court is —

Felix Frankfurter:

What’s the jury’s share in this determination in Alabama?

Truman M. Hobbs:

Well, if you’re asking me how to explain the jury’s verdict in this —

Felix Frankfurter:

I’m not asking you to explain why —

Truman M. Hobbs:

I’d be happy to try.

Felix Frankfurter:

No, no, I don’t mean that.

I mean is there — and I was wondering whether you give an answer along the line as you did, is there that they say — the jury also is a party to this determination —

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

— is it not?

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

So it isn’t merely the trial court but it’s your appellate court, your suggestion is that they regard this as in the manner of — in the way and fairly enough, it can be said to be a question of — of the fact, the ascertainment of a condition, that’s what they say, isn’t it?

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

And that that’s been — and their ascertainment has been made or the determination has been made by a trial judge who then adequately, well assume, I assume charges the jury, charges them with their responsibility and their opportunity to pass on what are complicated facts.

That’s the explanation.

Felix Frankfurter:

The respect show no deference or regard for it, if you will, the jury plus the judge in passing on what they concede to be a question of fact, is that it?

Truman M. Hobbs:

That’s — I would say this in — in defense of the jury down there not that I — no, there’s nothing —

Felix Frankfurter:

Because that’s the language (Voice Overlap) —

Truman M. Hobbs:

I know it — I know it.

I recognize that.

But I would put out this to the Court that the jury was at somewhat of a disadvantage in this case.

They were suppose to pass on the insanity of — of a prisoner who, under the test which the State is now attacking, caused his commission to the Alabama insane hospital for treatment for some four-and-a-half years.

And at the time the jury viewed him, he, according to that commission, had been restored to sanity.

He took the stand and was apparently able to answer questions and the question was brought out that at that time he had been and jury was so advised that he had been restored to sanity.

So the jury was — it’s ironic but perhaps if Jesse Blackburn had not been quite so much mentally deranged, so that it was apparent to everybody that examined him, immediately including his jailor, he might have taken the stand there and even the jury might have seen at the time that his trial would normally have come up that he was a demented individual.

Felix Frankfurter:

How — how many hours, if it was hours, was he before the trial jury in the main case, in this case?

Truman M. Hobbs:

I don’t know, sir.

I — I think it — I’m sure it lasted more than one day.

Felix Frankfurter:

It did?

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

So that they had a good look at him and from that they judged what he was like four years before, is that it?

Truman M. Hobbs:

That’s all it could have been.

William J. Brennan, Jr.:

Mr. Hobbs, may I — I’m just looking at this Alabama appellate court opinion.

I see at 247 and there’s some reference to a standard in cases where this issue was urged as a reason for inadmissibility followed by the Alabama courts, but I don’t quite understand what it means.

According to this and these quotes from some Alabama opinions, “Is to be observed that the voluntariness of a confession is not affected by the fact that the accused was not in full possession of faculties.”

And that goes on, “To render such confession inadmissible on that ground alone.

The mania must have been such that the accused was either an idiot or a lunatic during lunacy.”

What’s that mean?

Truman M. Hobbs:

I’m — I have asked such question myself, what the lunatic doing lunacy unless it means that he’s got to be more or less, I don’t mean —

William J. Brennan, Jr.:

Insane when he stands trial?

Truman M. Hobbs:

Insane when —

William J. Brennan, Jr.:

You mean that?

Truman M. Hobbs:

— when he stood trial or when he — when he — when the confession was taken.

That Redwine case, which is one that they’re referring to there, in that case, the man on voir dire offered to make a showing that the — that Redwine, the defendant, was insane and the Court didn’t permit it.

And the Supreme Court of Alabama ruled that that was not reversible error because the quest — the offer should have been phrased in terms not that he was insane, but that he was a lunatic in lunacy.

William J. Brennan, Jr.:

Well, I take it then when the following paragraph, we conclude the wide discretion, that’s the one you referred to as — is in the trial judge on these issues of admissibility of confession.

The wide discretion vested in the Court is not shown here to have been abused and there was no error in admitting the confession in evidence, has to be read in light of the standard which was employed, does it not?

Truman M. Hobbs:

Yes, sir.

William J. Brennan, Jr.:

Are you attacking the standard as such?

Truman M. Hobbs:

Yes, sir.

I think — I think the standard that although they say here that — in — at the bottom of page 246, when they’re talking about the accused not being in full possession of his faculties, they do say, although that is a circumstance to be considered by the — by the jury, weighing its verity.

William J. Brennan, Jr.:

Well, that means it’s verity as to the contents, doesn’t it?

Truman M. Hobbs:

I think it does.

William J. Brennan, Jr.:

After it’s admitted?

Truman M. Hobbs:

I was going to say if that meant what I believe it doesn’t mean, if the Court — I think what the — what the courts of Alabama do in these instances is to compartmentalize the two.

They say, was there any brutality, was the interrogation beyond the allowable limits, then that’s one compartment.

Then was he a lunatic in lunacy?

If you answer — they don’t consider the two in conjunction which is, as I understand it, is exactly the — the direction of this Court in the Stein case, in the Fikes case, in the Haley against State of Ohio case.

In the Haley case, you remember, there — there was a young boy, I think he was 15 years of age and was picked up and carried to jail and was interrogated for some —

William J. Brennan, Jr.:

But none of those cases involved a case such as this of an actual finding — determination of insanity at the time that the confession was taken, I think, is that (Voice Overlap) —

Truman M. Hobbs:

I think this case is much stronger than (Voice Overlap) —

William J. Brennan, Jr.:

Well, what I’m trying to get at is, are you attacking this on the due process grounds as that if he were that insane and this — assuming the evidence supports it and that there isn’t anything to question the finding, any finding, except that he was so insane as that necessarily his act was involuntary.

Are you attacking this on the ground that being involuntary couldn’t possibly ever it be voluntary and therefore to have used it at all, or admitted it at all was a deniable of due process?

Truman M. Hobbs:

Yes, sir, in my —

William J. Brennan, Jr.:

Do you think that —

Truman M. Hobbs:

In my judgment, the confession from a person who is mentally deranged, insane is and should be per se, inadmissible.

Again —

William J. Brennan, Jr.:

Well, that has nothing to do then with the circumstances under —

Truman M. Hobbs:

But —

William J. Brennan, Jr.:

— which it’s taken.

Truman M. Hobbs:

No, no, sir.

I — I don’t want to stand only on that ground because so far as I know this Court hasn’t had to consider just that issue, but this Court has considered the question where you have mental derangement.

Although it — certainly, none of those cases has gone to the extent that it has gone here.

But this Court has considered mental derangement plus — plus prolonged questioning.

And I stand in the final analysis on the combination of those two things, he has nine or ten hours of sustained questioning plus a person who is already a — a mentally deranged person and there — there couldn’t possibly be any argument that this man was mentally deranged at the time of his confession.

Truman M. Hobbs:

Surely, that the statement of the Deputy Sheriff that his eyes were clear and so forth, we know enough about insanity to know it is not generally detected or not often detected by a layman schizophrenia and so forth.

And in that connection, I think, I might point out just — in just a word, something of a nature of this disease of schizophrenia.

Gray’s, in his textbook, medical textbook for attorneys in volume 1 says, if the victim of even simple schizophrenia is driven, the patient breaks down.

So getting back to the test in this Court which is weighing the power of resistance against pressure brought, you have a mental disease here which is a characteristic of it is that under pressure you breakdown.

Smooth in his text on criminal insanity says that schizophrenics are held not to be able to act rationally in their relations with other members of society and are easily imposed from it.

And in connection with the statement of the Deputy Sheriff that he looked sane, Gray states, should the patient apparently recover from schizophrenia, stoppage of progress is all that occurs with residual changes permanent in character.

So we think that in this case that it is closely analogous to the Fikes case which this Court has recently decided with the exception that the most — two of the two most significant circumstances in the Fikes case present here to a much greater extent, the Court in the Fikes case commented on the mental instability of the prisoner in that case.

Here, we’ve got a history of mental insanity — insanity to the point of incarceration for some eight-and-a-half years.

And in the Fikes case there was a questioning which never at any period, I think lasted for — a sustained period, lasted more than two or three hours.

In this case, according to the Deputy Sheriff, it lasted for nine hours with one break.

Felix Frankfurter:

Mr. Hobbs, did you tell the Court whether the — at the trial, at his trial, the findings of the commission of lunacy were challenged?

Truman M. Hobbs:

They were not, except by the testimony of the Deputy Sheriff that he —

Felix Frankfurter:

Yes.

But I mean findings of the commission, as a — they have all sorts of — or does it have legal significance or —

Truman M. Hobbs:

I would certainly —

Felix Frankfurter:

— consequences?

Within the State of Alabama, would — has that any legal meaning?

What does it mean if the finding of the commission of lunacy in the Circuit Court?

Truman M. Hobbs:

Well, the —

Felix Frankfurter:

But the point of making a finding, I know it’s partly a requirement that he should be capable of being committed.

But that in itself is in a — is hesitating into an adjudication, but it is a determination within the Court of the circumstance that has lots of legal consequences, I should think.

Truman M. Hobbs:

Correct.

The only adjudication of sanity that Jesse Blackburn has ever had was —

Felix Frankfurter:

Well, I mean —

Truman M. Hobbs:

— was at the hands of this —

Felix Frankfurter:

It might —

Truman M. Hobbs:

— this jury.

Felix Frankfurter:

— come up in a perfectly, if he ordered a lot of grocery and he pay for them, it might — you might depend on this going contract of this order.

Truman M. Hobbs:

I — I think that —

Felix Frankfurter:

But that — that finding was not challenged at the main trial.

Truman M. Hobbs:

And — and the State would have been in an anomalous position to have challenged it when it acted on that —

Felix Frankfurter:

Yes.

Truman M. Hobbs:

— report to send this man off for four-and-a-half years.

Felix Frankfurter:

Why do you — at this another question I ought to get put.

Why are you not urging the Court, why are you not standing on the legal proposition that is in fact there has been what within its scope is an adjudication of insanity that in and of itself precludes use of statements, inculpatory statements made during — the state which that determination has made knowing the condition.

Truman M. Hobbs:

I think — I think that is a logical position to take.

I think it’s —

Felix Frankfurter:

Which is the point — you said slightly put.

I don’t see how the — what the — what the bearing of the jury’s finding is on that which has already been found by a body that contemporaneously was acting on the issue in reaching its determination on which this data has acted which wasn’t upset or questioned.

Truman M. Hobbs:

But we — we have here circumstances over and beyond the —

Felix Frankfurter:

I understand (Voice Overlap) —

Truman M. Hobbs:

— finding and I didn’t want to stand anywhere —

Felix Frankfurter:

No, I didn’t (Voice Overlap) —

Truman M. Hobbs:

— on any intermediate —

Felix Frankfurter:

— but why isn’t that a legal proposition or a legal consideration that doesn’t bring the case within the natural, from my point of view, reason, on the whole reasonable statement, there’s a jury determination.

Truman M. Hobbs:

I — I think carrying out Your Honor’s thought on that if this — this is not merely a situation where the defendant comes in with an expert psychiatrist who says this man in his judgment is mentally insane.

This is — is — it — it’s somewhat in the nature of a bargain, a bargain that — that the State makes with the defendants.

And they are committed to this sanity commission and the sanity commission if it had come out with — with a finding of sanity, it would have been powerfully persuasive, if not, conclusive.

And it wouldn’t have been conclusive but it would have been powerful persuasive on — on the Court, the jury, and everyone else at the time of this trial that this man was sane.

But the State got an adverse ruling from its own — own doctors.

Every one of these are state doctors in the state mental hospitals and all of them said he was insane.

Felix Frankfurter:

Well, I put my question to you in the expectation that when the Attorney General comes to reply, he will deal with it because it seems to me of — of great importance.

And the kind of the thing, so far as I recall that we’ve not had in a single case that’s been before us.

Earl Warren:

Was this — oh —

Charles E. Whittaker:

Excuse me.

Earl Warren:

Go ahead.

Charles E. Whittaker:

What would you rely on, Mr. Hobbs, as the act of adjudication of insanity here?

Truman M. Hobbs:

The — the decision of the sanity commission itself which was reported —

Charles E. Whittaker:

Well —

Truman M. Hobbs:

— back to the Court —

Charles E. Whittaker:

Well, that as I understand, the — when this accused came on for trial before the Court, a question arose as to whether or not he was at that time mentally competent to stand trial.

And for the purpose of determining that issue, the Court had him examined.

And reports were made to the Court on the basis of which the Court did not adjudicate him insane.

What found that for the time being he is not mentally competent to stand trial?

Do I misunderstand it?

Is that right or not?

Truman M. Hobbs:

Well, I think — I think that is correct with this exception to it, that the — that the report of the sanity commission went beyond, the report to the judge went beyond a mere finding.

Charles E. Whittaker:

Well, but there was no finding by the Court of anything more than that at the moment the accused is not able to stand trial is as I understand it, am I right?

Truman M. Hobbs:

I — I think that — I think that committing him to the insane institution would —

Charles E. Whittaker:

Well, of course, he must commit him under your law on that (Voice Overlap) —

Truman M. Hobbs:

I was agreeing with —

Charles E. Whittaker:

— until he’s able to stand trial.

Truman M. Hobbs:

I was attempting to —

Charles E. Whittaker:

Now, is it your view that that amounts to an adjudication of sanity — of insanity?

Truman M. Hobbs:

I was tempted to agree with the Court that his commission to the insane institution would go no further than the finding that he was insane at the time he was being examined by the commission.

Felix Frankfurter:

Well, wasn’t the confession made during the period, during which that — that commitment lasted?

Truman M. Hobbs:

No, sir.

The confession was made on May the 8th —

Felix Frankfurter:

Yes.

Truman M. Hobbs:

— and some time after the confession was made, the Deputy Sheriff or the Sheriff reported to the judge that —

Felix Frankfurter:

How soon thereafter?

Truman M. Hobbs:

It’s not clear, he said it — but —

Felix Frankfurter:

Two months or two days or (Voice Overlap) —

Truman M. Hobbs:

Well — well, it — the — the confession was May 8.

He was — the — the order of the judge sent him to the sanity commission which was after local doctors that examined him and other people and so forth was in July.

So it had to be within a relatively short period of time, but it — it may not have been — I think the Deputy said it wasn’t immediately or that it was some time thereafter.

Charles E. Whittaker:

All I was trying to see if there is a basis that could amount to an adjudication of insanity which would raise the question sharply, suggested by my Brother Frankfurter, on the question of the law as to whether, if there is an adjudication of insanity, the confession wouldn’t automatically fall?

But is there any such adjudication in this case?

Truman M. Hobbs:

Well, by the Court itself, I would say no.

The sanity commission which was what I understood Justice Frankfurter was talking about —

Felix Frankfurter:

On the basis of which the Court acted.

Truman M. Hobbs:

That’s right.

The — the sanity commission made a finding to the Court that he was insane, not only when they examined him but in their judgment, was insane when the crime was committed and was insane when the —

Charles E. Whittaker:

You — you use that word finding in that sense I assume in the sense of conclusion.

The — the commission made a — they reached a conclusion.

Truman M. Hobbs:

Yes, sir.

Charles E. Whittaker:

Yes.

Truman M. Hobbs:

In — in conclusion and I’d like to save some — some time for rebuttal in case it’s needed.

I’d just like to say that in our opinion this is the type of miscarriage of justice that Justice Jackson, the late Justice Jackson spoke of in the Stein case as being so grave that it requires in a — in a civilized society with an enlightened system of justice that the reverse shall be thrown out.

This was nothing more than a conviction of an insane person on the basis of a confession which was taken from him after some nine or ten hours of questioning in a room four by six or six by eight, by relays of law enforcement officers at a time when all the medical opinion, not merely the sanity commission but everybody who has ever examined him, had found that he was mentally in — and 100% mentally incompetent.

Earl Warren:

Mr. Gish.

Paul T. Gish, Jr.:

Honorable Chief Justice and if the Court please.

After entering all of the suggestion, my position in this case, the implication of the State of Alabama is and there was a place in the fact which was decided by the trial judge first and then again by the trial jury as to whether or not this petitioner was insane at the time he confessed on the one hand and — and the time of the crime on the other hand.

Now, that question of fact of rightness we submit in this matter on page 32 of the record.

The — is the — about the man which the prosecutor faced attempted to introduce a confession.

Now, on that page the Deputy Sheriff who received the confession testified and the — there was no threshold rule on interval.

He testified to enough, to rebut the presumption that it was involuntary in a normal case.

Now, at that point, the defense objected and offered evidence on voir dire after a question that the jury be excused on voir dire examination.

Now, in the offer of what they were going to prove on voir dire there, they mentioned the records of the Veterans Administration as to Jesse Blackburn’s mental condition in years past.

Actually, when they got into offering the evidence, that evidence of the records of the Veterans Administration were not presented on voir dire.

Therefore, the only thing that the defense offered on voir dire were the two depositions of two of the members of the lunacy commission.

The defense did not even offer the deposition of the third member of the lunacy commission and it’s obvious that the reason they didn’t do any of this, his answers were conflicting with the other two.

They would have entered in a peculiar position had they offered an oath through each definitions.

The State on voir dire offered the deposition of the third doctor whose evidence conflicted with the other two.

And in addition, continued to examine the Deputy Sheriff Stanford on voir dire.

Now, at the end of that voir dire examination, that is when the trial judge made his determination that the confession should be received in evidence.

And one of Your Honors asked Mr. Hobbs whether he makes any at all a determination as I understood it as to mental insanity, he did not.

The jury, you see, has not even been present.

They’ve been away from the courtroom, then they come back and the judge merely allows the objection — the confession in evidence over the objection of the defendant to support the juries’ concern up to that point.

They have no implication, no evidence before them as to the man’s mental condition.

Paul T. Gish, Jr.:

Now, on — on this voir dire examination in the case at bar, we have as Mr. Hobbs stated statements showing that Jesse Blackburn was sane from the Deputy Sheriff — I think that — when he was cross-examined.

His — his testimony on voir dire begins on page 99.

He was examined and cross-examined on the sanity proposition on voir dire.

Now, in addition to his testimony, we have as I have mentioned the depositions of the three doctors, two, introduce by the defendant and one by the State below.

The report of the lunacy commission and that’s all it is, it’s a report to the trial judge for his guidance in deciding whether or not to put this man to trial or to send him to the hospital until he can stand trial.

The report of this commission was that the petitioner was insane.

Defendant was insane at the time of the crime.

But now, when you get to the voir dire examination, these interrogatories which were introduced by these doctors on voir dire, you — you run into the conflict which we say is in the evidence in this case and I’ve mentioned a few question on fact which was properly left by the Alabama Court of Appeals to the trial judge in the trial jury.

Earl Warren:

Mr. Gish, was — was Dr. Richards the third doctor?

Was that the doctor —

Paul T. Gish, Jr.:

Yes.

Earl Warren:

— the doctor that the State relied on for his deposition?

Paul T. Gish, Jr.:

Yes —

Earl Warren:

That’s the one —

Paul T. Gish, Jr.:

You — you — right now, I believe that all three depositions were instituted by the defendant.

Earl Warren:

Oh, I —

Paul T. Gish, Jr.:

And available for cross-interrogatories by the States.

Earl Warren:

Yes.

Paul T. Gish, Jr.:

But when they came to trial, the defendant didn’t see fit to introduce in evidence —

Earl Warren:

I see.

Paul T. Gish, Jr.:

— decisions of Dr. Richards.

They introduced the direct interrogatories of Dr. Tarwater and Dr. Rowe and the State introduced the cross-interrogatories of both those doctors plus the direct and cross of Dr. Richards.

Earl Warren:

Yes.

Well, I was looking at the deposition of Dr. Richards as it appears on — on page 220, that’s the 15 — fifth interrogatory.

It — it says this, did you and the other doctors associated with you find as stated in said report, “from a copy of his case and using information from several other mental hospitals where he has formerly been treated, it is our further opinion that he was insane at the time of the commission of the crime for which he is charged.”

Did this part of your report relate to Jesse Blackburn and to the indictments of robbery and assault with the intent to commit murder which had been returned and were pending against him in Colbert County, Alabama at the time of your said report?

Answering the fifth direct interrogatory the witness says, yes, the other doctors and I have found as stated in said report that, “from a study of his case and using information from several other mental hospitals where he has formerly been treated, it is our further opinion that he was insane at the time of the commission of the crime for which he is charged.”

Yes, that part of our report related to Jesse Blackburn and to the indictments and so forth.

Yes, I have read that report.

Yes, I had signed it.

Earl Warren:

Yes, I and the said other doctors associated with me found stated in — in said report.

And that part of said report which is set out, “commencing with the words.”

So in general I take it he did agree with the other two doctors, did he not?

Paul T. Gish, Jr.:

It would seem so, Your Honor, from that answer.

Now, my references here in my notes to these interrogatories of — early in the record of mine on voir dire, you see they went in twice, once on voir dire and once in the case in chief.

Now, on page 82 and 83, interrogatories, there are number of 6, 7, 8, 9, 10, 14, 15 and 16, they were Dr. Richards’ answers to these questions which are in direct conflict with what he himself stated in this answer.

In those interrogatories, in answer to those interrogatories, he said one time the petitioner has been normal, mentally (Inaudible).

He was asked about this — the petitioner’s mental conditions on the date of the crime and he said they were normal.

He was asked about his mental condition on April 8th, 1948, the date of the confession and his words were it was good.

For that reason, I beg to disagree with Mr. Hobbs in his interpretation that normal mental — he was normally insane.

I can’t read that into it at all.

If that were true, surely, the word good would amend that.

Now, the other two doctors testimony were more damaging to the State than was Dr. Richards.

But Dr. Rowe stated that he was more normal than it is normal and that he had lucid intervals.

But I think and submit for the State of Alabama that the significant part of these depositions lie in the answers of the doctors which clearly show that the — they didn’t give much time to this case.

They — they — of course I know nothing about medicine but I — I don’t see how when the man is committed and when the doctors take six months to report, how they can testify this — what the Dr. Tarwater says, “I saw him at most two or two-and-a-half hours would cover the entire time that I joined during his stay in the hospital.”

Dr. Richards when this — explicit and he gives that (Inaudible), “I didn’t see him very often.”

The other doctor says, “I saw — saw him maybe twice a week but some of those times were on general ward rounds.”

I submit that that could be considered probably by the trial judge on voir dire and by the jury in the case in chief as going to the weight of the report made by the lunacy commission.

Now, Mr. Justice Whittaker asked about the adjudication aspect of that report.

That report is — is not an adjudication of insanity, it’s a gap for the trial judge in determining whether or not the man can be put on trial.

Now, even when the depositions were offered in the case in chief when they were offered on voir dire, the report was attached as an exception to the deposition.

But under implications in Alabama the report cannot be offered in the evidence.

So when they came to offer the depositions in evidence in the case in chief before the jury, the judge refused to allow the report to go in and as they properly so — because there is no adjudication, it is to say the least an ex parte matter (Inaudible) cross-examination and then should not be in evidence and what’s not in this case.

Now, what we have in this case is a trial judge, who he is — the evidence of three doctors and the testimony of the Deputy Sheriff, that with all those offered to him on voir dire then he makes a determination in the essence of the jury.

He says at the confession, “If voluntary, we’ll receive and bring the jury back again.”

The jury back again and all of that evidence were reintroduced before them and in addition thereto that is where the records of the Veterans Administration were introduced.

The trial judge, at the time he — he made his determination, knew nothing of those records.

He couldn’t have known.

They were introduced later but even so, the jury honorably are not guilty by insanity not only found him guilty but one of Your Honors as Mr. Hobbs, about the full determination aspect even after the trial judge had admitted the confession into evidence.

Paul T. Gish, Jr.:

He charges the jury.

That’s on page 234 of the record.

Earl Warren:

234 (Voice Overlap) —

Paul T. Gish, Jr.:

Yes.

In the last paragraph, little half way down.

Begins now and gentlemen, the State introducing the evidence in written paper.

And that goes on to the end of that paragraph.

Now, at the very end, he is telling the jury this.

He said if the defendant signed — signed the paper, he — you make up your minds, these things, if the jury signed the paper, was he insane in denying he’s not.

If the defendant signed the paper and he had the known capacity of knowing and to remember that which he was saying is empirical?

Then he goes on down, beginning the second sentence in the next paragraph.

He said gentlemen, the jury, if you reach the affirmative answers, says this in substance, if you reach the affirmative answers to the those questions that I have asked you above, do not give any weight to the confession.

So even after he — and made his determination that the confession was voluntary.

He is still in that sense leaves it up to the jury.

Now, I think that that is perfectly proper under to our practice.

We have in line of cases which holds that any evidence offered on voir dire can go to the admissibility of the confession in the evidence.

However, the cases say that if the defendant waits and holds back evidence or doesn’t introduce the evidence as was done in this case in regard to the Veterans Administration records, if you hold it by — until after the end of the Board trial examination, then the evidence that you do introduce in the case in chief goes only to the weight of the confession.

And I think that that is the reason that the trial judge was so implicit in his charge to the jury and it is important that we just examine because he realize that you gentlemen, the jury he was saying, have before you much more evidence in regard to this man’s insanity then I have before me, when I allowed the confession in evidence.

In any case, there was still a question of fact because of the testimony of the Deputy Sheriff and because of the conflict in the lack of observation made by the — by the lunacy commission and because the jury told the defendant on the stand.

And it was true, it was four years later.

However, they were in a much better position than it was in the Court of Appeals of Alabama and seeing him, the other witness’ plan.

And my interpretation of the decision of the Court — Court of Appeals of Alabama differs from that.

And mentioned by Mr. Hobbs, when he says that when they talk about the discretion below, they’re measuring it in conjunction with the rule that was mentioned by Mr. Justice Brennan a moment ago.

To me, the — the Court of Appeals is saying that you (Inaudible) your conflict, the lack of evidence down there, we as the Court of Appeals of Alabama don’t know whether this man was insane or not under the record and we can’t determine.

It’s not up to us to determine, a new trial judge and you trial jury have already made that determination.

And since this record has conflicting evidence in it, we won’t disturb your determination.

That is the way I interpret the — the decision of the Court of Appeals of Alabama.

Earl Warren:

Mr. Gish, may I ask you this question.

Perhaps, it will bear on the decision but in the absence of this confession, is there enough in the record to sustain the conviction?

Paul T. Gish, Jr.:

I would have to answer substantially like Mr. Hobbs did by stating that the trial judge submitted it in his instructions to the jury.

Paul T. Gish, Jr.:

He said that if you don’t find at the confession, if you don’t give any weight to the confession, then you have — your case must be based on circumstantial evidence.

Then the case would be much weaker, much, much weaker.

I will be the first to admit that but I do think that there’s enough in this record to make a jury question without the confession.

I do not think that a general charge would have probably been given in the case.

The — as I’ve stated in the evidence which comes in after the conclusion of voir dire only goes to the weight of the confession on our practice.

Now, the last motion to exclude this confession and there were a number — number of them, number of objection and motion to exclude.

The last one in this record was made when the State rested its case.

In other words, before all of the testimonies which the defense had in regard to insanity was before for the Court and throughout they knew — knew nothing on the Veterans’ records at the time of the last motion to exclude.

The trial judge not only pointed out in his instructions to the jury the parts that I have mentioned just a moment ago by the confession.

But in addition, he was — given their clear instruction as to the jury’s duty on the plea of insanity without regard to the confession.

In other words, the only thing that I am saying here is that the jury had before it all of — the attention was brought vividly to the question of insanity all through this case.

Now, I submit that the question of insanity, the question of the — in whether I’m right in my interpretation that we had a question of fact or whether I’m wrong is the only thing in this case here in this Court.

Now, the petitioner attempts in brief to bring in within some of the decision of this Court, notably Turner versus Pennsylvania, Harris versus South Carolina and like cases, but I submit it is not in this record.

The petitioner was questioned on May the 8th, 1948.

The Deputy Sheriff was testifying in 1953.

He said, I can’t remember the exact times but as — I was talking to judges sometime after lunch, probably about 1 o’clock.

He said, I know we took both down to the supper.

He says, “Well, you could think about it, about an hour.”

And he said I questioned him after supper from probably about 7 o’clock or maybe 10 or 11.

The confession was handwritten by the Deputy Sheriff.

It’s a 10-page confession and detailed very vividly, the trip from Chicago, Illinois back to after the defendant was arrested in carrying the act.

The confession has many misspelled words or many grammatical errors, it was a terrible penmanship.

The only reason I’m bringing that out is to put this point forward that the Deputy Sheriff obviously was not an educated man.

Obviously, he did not write this 10-page confession in 15 and 20 minutes.

It — it took a man of his education much longer to write this confession and get it down in writing than it would have a stenographer say or even someone who could just — writing with the average speed.

I’m bringing that out to say that most of this time, not most of course but some of this time as basically that night of May 8th were not taken up with questioning Jesse Blackburn but rather was taken up with getting forward, Jesse Blackburn said down in writing because we don’t know exactly how much time that takes off.

But this isn’t all of this question and even if the man had had a stenographer there didn’t amount to but nine or 10 hours and there was no showing that the man was coerced in any manner whatsoever.

And the petitioner tries to — to bring in relay questioning in this case.

Well, I submit that the record just doesn’t bear that out at all.

Deputy Sheriff Stanford says, “I am the one who received his confession.

Paul T. Gish, Jr.:

I’m the one who talked to this man.”

Yes, the Sheriff and another — another Deputy were there at some time but I was their all the time.

And he said in answer to a question said, yes, they might have asked some questions.

This was four years later.

He was remembering that he talked to this defendant, that he was the man who received this man’s confession and wrote it down, but he wouldn’t — he wouldn’t say and for sure that they didn’t come in and hear us talking.

And I asked the question as amended that all this record bear it out on any question of relay questioning.

There were no evidence of any cruelties.

There were no evidence of any loss of sleep or denial of food.

This record just doesn’t bear it out.

We submit, if it please the Court, that this case has one — in which as I have said in lieu of the question of fact and that question was, was this defendant or was he not insane?

We submit that the trial court afforded the defendant below every legal opportunity to go forward with the evidence in any — every legal manner.

Now, that the defendant did present his evidence and that evidence was in conflict with other evidence in the case.

And that therefore, the Court of Appeals rightfully held that the trial judge and the trial jury had merely decided a question of fact.

Now, we would be the first to admit that if this man was insane, of course all cases, your cases and the cases in the Courts of Alabama and the cases everywhere say that he can’t confess if he was insane.

Since there was a question of fact as to whether or not he was insane in this case, both at the time he confessed and at the time of crime, answers in both those questions have been determined under the practice of Alabama by the trial judge and then again by the trial jury.

We submit that the decision of the Court of Appeals of Alabama did not violate any right generally to this petitioner by the Fourteenth Amendment.

Thank you.

Earl Warren:

Mr. Hobbs, do you have rebuttal?

Truman M. Hobbs:

Thank you.

I just want to take a minute or two, Your Honor, to point out that if this petitioner was not insane at the time of his confession, it’s difficult to see how on any state of evidence there could be such a finding by any court.

The only evidence presented by the State of Alabama that this man was not insane, despite the reports of the numerous doctors who examined him, the Veterans Administration and then the government insane hospital plus the State of Alabama’s doctors convened pursuant to the Court’s order, all found him insane.

The only evidence to the contrary was the statement by the man who took his confession.

Now obviously, the man who took his confession in no case is going to come in and say, well, he probably was insane at the time but it’s — that’s the same Deputy Sheriff that some short time thereafter did admit that he observed signs of insanity.

Harold Burton:

The only judicial determination that ever was made was made for the trial court, the trial court and the jury.

Truman M. Hobbs:

Yes.

Harold Burton:

They’re the only be one.

Truman M. Hobbs:

That’s the only time he’s ever been found sane.

Harold Burton:

And that’s only — only judicial (Inaudible) there was, there’s no judicial determination because (Inaudible)

Truman M. Hobbs:

I suppose — I don’t know that there was a finding of the sanity commission whether there’d be an adjudication or not.

It would be a loose use of the word “adjudicate”.

Truman M. Hobbs:

There was that finding by the sanity commission.

But as to this question of the conflict and I’m about to sit down, I know my time is nearly up.

The — on page 226 of the record, this Dr. Richards says the State of Alabama relies on for having a conflicting opinion about Jesse Blackburn’s insanity, was asked a question, “Is it not a fact, Dr. Richards, from your observation of Jesse Blackburn that he at times had lucid intervals?

The answer – “I do not think so.”

That’s the same doctor who said he was insane on all the occasions that the other doctor said he was.

And may I point out that in the cases of Haley, in the case of Fikes, in the case of Stein, there’s no requirement in order to find that the confession be determined as involuntary that the man have to be insane.

And I think this record adequately supports the conclusion that he was insane and really no other conclusion as it seems to me to be possible but this Court does not require insanity.

It only requires that the pressures brought to bear be greater than the power of the — of resistance of the party who is being interrogated.

And there isn’t any dispute that this man had spent his entire adult life in an insane hospital and that he’d been — he had been found insane by everybody who had ever examined him with medical competence to examine.

The State of Alabama introduced no evidence any way in his trial, despite the findings of its own three doctors that he was insane.

They could have him examined by somebody else if they had any doubt about the correctness of those findings but there was no medical testimony to the contrary.

They simplify found this, submitted it to the jury and then said that so much discretion is in the trial court and there’s a finding of fact and so this Board goes off for 20 years.

Thank you.