Bullock v. South Carolina – Oral Argument – January 09, 1961 (Part 1)

Media for Bullock v. South Carolina

Audio Transcription for Oral Argument – January 09, 1961 (Part 2) in Bullock v. South Carolina

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Earl Warren:

Number 78, Quincy Bullock, Petitioner, versus South Carolina.

Mr. Perry.

Matthew J. Perry:

Mr. Chief Justice, may it please the Court.

This case comes by writ of certiorari to the Supreme Court of the State of South Carolina.

On August the 3rd, 1958 in Dillon County, South Carolina, there occurred one of those crimes which generally engenders a great deal of passion in the local community.

A lady was killed out in the cemetery of Dillon County, South Carolina.

She and a male companion were in the cemetery and the evidence presented at the trial was to the effect that someone came up behind the car which they were sitting and fired a shot or shots into the car.

The next day, the body of this lady was found to some distant from the automobile which was parked in the cemetery.

Evidence also showed that the companion of the deceased was injured by gunshot wound.

Charles E. Whittaker:

May I ask?

Did they find the automobiles still in the cemetery the next day?

Matthew J. Perry:

Yes, sir, they did.

Charles E. Whittaker:

You stated that she was shot in the cemetery.

Is that known?

Matthew J. Perry:

That was the evidence presented at the trial, sir.

And there was other evidence which I think forms a part of the confession which has been an issue in this proceeding.

Charles E. Whittaker:

But there was evidence that the lady was shot in the cemetery.

Matthew J. Perry:

Yes, sir.

On August the 7th, 1958, the petitioner, Quincy Bullock was arrested at — at his home.

Bullock was arrested and taken to the Dillon County jail and was confined overnight in the Dillon County jail.

He denied commission of the offense on the day of his arrest.

John M. Harlan II:

How old was the defendant?

Matthew J. Perry:

Bullock was 46 years old at that time, sir.

On the following day, the sheriff and other officers of Dillon County, South Carolina went into the new jail of Dillon County and transferred Bullock over to the old jail which houses no prisoners.

The record does not reveal any reason for this particular action on the part of the law enforcement authorities other than for questioning.

It is important to note that the old jail of Dillon County houses no prisoners.

The questioning continued for more than an hour.

And Bullock later contended that he was brutally beaten by the police officers while he was in the old jail.

In fact, his contention was that a sheet was placed over his head and that he was brutally beaten and kicked on his chin.

After questioning in the old jail of Dillon County, Bullock was removed over to the judges’ chambers, which adjourns the courtroom in the courthouse.

Matthew J. Perry:

The sheriff of Dillon County testified that in removing Bullock from the old jail over to the new jail, he was doing so far Bullock’s protection and that a mob of some 200 or 300 persons had gathered around the old jail.

Charles E. Whittaker:

Is there any evidence as to whether or not Bullock knew that?

Matthew J. Perry:

No, sir, Mr. Justice Whittaker.

The evidence in fact, the testimony of Bullock appears to be that he did not see the 200 or 300 people there although it is difficult to understand why he didn’t see them.

The sheriff and the other officers saw them and apparently removed Bullock for his own protection.

That appears to be a conflict in the testimony of the sheriff and of Quincy Bullock himself.

We think of course that the presence of — of such a large number of persons around to the extent that the sheriff himself was concerned for the welfare of Bullock perhaps had its influence in the totality of the situation.

While in the judge’s chambers adjoining the courtroom, Bullock saw his sister-in-law.

Now, the sister-in-law, though a member of his family was not there for the purpose of visiting Bullock or giving him comfort, but was brought in by the law enforcement officers for the purpose of reputing Bullock’s assertion that he did not have a gun.

And so, for all practical purposes, we submit that — that her visit with him in the judge’s chambers adjoining the courtroom was on — in other than — than friendly or social purposes.

William J. Brennan, Jr.:

Was the judge present (Inaudible)?

Matthew J. Perry:

No, sir, he was not.

Thereafter, after questioning for an additional hour or two, Bullock was taken back into the county jail where he had been incarcerated overnight.

And there, he saw and conversed with his wife, Mattie Bullock.Mattie Bullock was also under arrest.

In fact, in investigation of the same crime and so we again note that the fact that he saw Mattie Bullock, his wife, does not interfere with our contention that Bullock was in fact being held incommunicado.

After Mattie Bullock saw the defendant, then her testimony given at the trial was to the effect that when she saw her husband, his face was swollen to the point that his eye was almost closed and that he could not have walked.

Now, this testimony of Mattie Bullock is unchallenged in the record.

It is recognized that the issue of — of brutality generally is sharply contested by the sheriff and the law enforcement officers of Dillon County.

Felix Frankfurter:

And all of that testimony is taken out of the hearing of the jury, was it?

Matthew J. Perry:

The testimony of the Sheriff of Dillon County was taken out of the hearing of the jury, Mr. Justice Frankfurter but otherwise, the testimony of Mattie Bullock was taken in the presence of the jury as a witness for the defendant.

Felix Frankfurter:

Could you at least — putting up to state what the South Carolina rule is that to the — the confidence of — when a confession is offered, what procedure is followed to establish the admissibility of the statute?

Matthew J. Perry:

The procedure that South Carolina follows sir and which is outlined in the opinion written by Mr. Justice Moss that when the issue of the voluntariness of the confession that brought into issue that the judge shall immediately exclude the jury and conduct a separate or private examination of the witnesses having any knowledge about the issue of coercion.

And that is what happened here.

The judge — the presiding judge did excuse the jury and the sheriff of Dillon County was placed on the witness stand and was examined both by Solicitor Kilgo and cross-examined by Mr. Ritz (ph).

Felix Frankfurter:

But weren’t all witness is relevant to the admissibility hearing chamber?

Matthew J. Perry:

No, sir and I submit that this was not in chambers but in open court.

Felix Frankfurter:

Well, I don’t care if I (Voice Overlap) —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

Outside the jury (Voice Overlap) —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

Wasn’t all the testimony bearing on admissibility taking out of the hearing of the jury?

Matthew J. Perry:

No, sir, it was not.

Felix Frankfurter:

Well then, the rule must be that after the judge rules his permissibility issue is retried before the jury?

Matthew J. Perry:

Yes, sir.

That is correct.

William J. Brennan, Jr.:

As a matter — as a matter of option, was the defendant — whether he’ll testify as to the (Inaudible)?

Matthew J. Perry:

I think it is sir.

William J. Brennan, Jr.:

Exercise until not testify.

Matthew J. Perry:

That is correct.

Charles E. Whittaker:

What is the test to determine whether or not the judge shall hold (Inaudible)?

Matthew J. Perry:

It’s — the test is in the judge’s own mind as to whether or not the evidence presented on the issue of coercion convinces him that the confession is voluntary, then the issue as to whether or not it was voluntary is submitted to the jury and with appropriate instructions which the Court did in this case.

He instructed the jury that if they should find that the confession was involuntary, that they should disregard it.

He did this both before the testimony was — was pursued concerning the confession and later in his charge to the jury.

Hugo L. Black:

Was the question of brutality contested?

Matthew J. Perry:

Yes, sir, it was.

The question of brutality was sharply contested but we submit that the testimony of Bullock’s wife, Mattie Bullock, is not in — not contested, that when she saw him on Friday, August the 8th, he — his — his face was swollen to the point that his eye was almost closed and he couldn’t have walked.

Now, there was reply evidence —

Charles E. Whittaker:

(Voice Overlap) — couldn’t half walk —

Matthew J. Perry:

Yes, sir.

Charles E. Whittaker:

— couldn’t half —

Matthew J. Perry:

That’s — that’s a quote from the record, sir.

John M. Harlan II:

That was before the jury, was it that —

Matthew J. Perry:

That is correct, sir.

Tom C. Clark:

Was there (Inaudible) doctor testified?

Matthew J. Perry:

Yes, sir.

A Dr. Branford testified that on Monday, August the 11th, he examined the petitioner and that he saw no — no evidence of bruise.

Tom C. Clark:

That’s three days later?

Matthew J. Perry:

That’s three days later, sir.

Felix Frankfurter:

To be able to follow your argument, I think it’s more understanding if you tell me whether your claim is that the judge erroneously charged the jury as to the standards determining admissibility i.e. voluntariness in defense this Court has, you could find it in decisions or whether the complaint is that even according to a right charged on the evidence in this case, legally no such conclusion could have constitutionally been drawn.

Matthew J. Perry:

That is the substance of our contention Mr. Justice Frankfurter that —

Felix Frankfurter:

Did we not complaint that the judge laid down a wrong standard or what himself guided by wrong standard?

Matthew J. Perry:

We do not, sir.

William J. Brennan, Jr.:

Well, Mr. Perry, we suggest that Mattie Bullock’s testimony stands unchallenged but what I’ve gathered from the sheriff and the other law enforcement officers testified that there had been no beating.

Matthew J. Perry:

Yes, sir.

That is correct Mr. Justice.

William J. Brennan, Jr.:

Well, that extent I gathered that the challenge is this, it was Mattie Bullock’s description of him as having —

Matthew J. Perry:

There is, taking the testimony of the sheriff and the other officers that Bullock was not beaten.

That of course would put an issue of the contention of Mattie Bullock that that’s when she saw and his face was swollen but we do submit that — that that particular statement of Mattie Bullock is unchallenged.

William J. Brennan, Jr.:

He did not testify I gather at the hearing out of the presently pledge of the jury?

Matthew J. Perry:

No, sir, she did not.

William J. Brennan, Jr.:

No one testified at all for the defense, is that it?

Matthew J. Perry:

No, sir.

Only sheriff — the sheriff of Dillon County testified.

Now, thereafter, Bullock was taken over to his home where the — where the gun was retrieved.

The evidence was that Bullock had the gun placed in a wall in his home.

And later, as he was testifying in the — in the trial of course, he seem to place great deal of stress on the fact that he was simply attempting to protect his gun of being discovered by the law enforcement officers because he was afraid that would be taken from him.

Be that as it may, the gun was retrieved from inside a wall near the window in his bedroom.

Here again, Mattie Bullock testified that she went over to the home with the officers and with her husband and that it was necessary that he’d be given some assistance to go from the sheriff’s car into the home that still he couldn’t have walked, that he was obviously bruised.

Now, the testimony of Mattie Bullock, I again submit of course is unchallenged except for the general denial of the law enforcement officers that — that no physical brutality was inflicted upon Bullock.

After the gun was retrieved, Bullock was then taken in an automobile out on the outskirts of town to a motel known as Faith Motel.

Now, the — the testimony is that they stopped there.

It was — it was very brief but we do submit that this is — all falls within the chain of moving Bullock around always in the presence of a number of law enforcement officers.

William J. Brennan, Jr.:

What day was this, Mr. Perry?

Matthew J. Perry:

This was on Friday, August the 8th, the afternoon of the 8th after the gun was retrieved.

Potter Stewart:

He was not taken into the motel?

Matthew J. Perry:

The record is silent as to whether he was taken in the motel.

As I understand the contention of the State, he was not taken in the motel but was left in the car on the outside of —

Potter Stewart:

He stopped there to pick up another officer?

Matthew J. Perry:

Apparently, that is the contention of the State, sir.

They had —

Tom C. Clark:

What county?

Matthew J. Perry:

That’s still in Dillon County sir.

Mr. Justice Clark, after they did leave the Faith Motel, the evidence is that Bullock was kept in the car in which he was riding and then taken over into adjoining Marion County.

Tom C. Clark:

(Inaudible)

Matthew J. Perry:

I believe that this officer that they picked was an officer of the South Carolina Law Enforcement Division.

I do not recall at this time but it occurs to me that he might have been the ballistics expert.

William J. Brennan, Jr.:

Just like state police in the —

Matthew J. Perry:

Yes, sir.

Thereafter, Bullock was taken over into adjoining Marion County and was surrounded by a number of officers including the sheriff of Dillon County, several of his deputies and some men from the South Carolina Law Enforcement Division.

And the testimony of the sheriff was that Bullock made the first admission while sitting in the car on the outside of the Marion County jail.

The testimony of the sheriff was that Bullock said to him, “If you say I’ve done it, I’ve done it.”

That was the form of the admission.

This constituted the form of the admission and thereafter, Bullock was placed in the Marion County jail, well this being Friday night, August the 8th.

And he was thereafter held in the Marion County jail until Monday, August the 11th.

Charles E. Whittaker:

(Inaudible) your — your argument, this is why I asked you, whether that testimony is submitted before the jury.

Matthew J. Perry:

It is my understanding, my recollection that it was, sir.

That the — that the sheriff testified in his direct examination after the judge had already charged that if the jury should find the confession involuntary that they should not consider it.

This was included in the sheriff’s direct examination.

John M. Harlan II:

Do you mean as I — you said I have done it, I have done it.

That’s —

Matthew J. Perry:

Yes, sir.

If you say I have done it, I have done it.

Now on Monday, August the 11th, the sheriff of Dillon County along with some of his other officers went to the Dillon County jail — to the Marion County jail, I beg your pardon, and brought Bullock back to the Dillon County jail.

Earl Warren:

How far apart from those two jails?

Matthew J. Perry:

They are two small counties which adjoined each other over in the eastern section of South Carolina near the Atlantic Ocean.

There’s a distance of less than 30 miles as I recall.

I maybe slightly old on that but they are reasonably closer.

Earl Warren:

Yes.

Matthew J. Perry:

On the way back to the Dillon County jail, a stop was made in the cemetery on the outskirts of Dillon in which this crime is alleged to have been committed.

And Bullock later was called upon to reconstruct the crime at that — at that location.

Matthew J. Perry:

Bullock in his testimony stated that the officers told him where to point and he simply pointed out anywhere, “So they wouldn’t get a hold of me no more.”

That was the — the reason which Bullock himself assigned to his having pointed in any direction in the cemetery.

Of course that is she was also in conflict, the sheriff testifying that Bullock pointed exactly to the spot where the crime was allegedly committed and where the body was found.

But Bullock in his — in his testimony stated half crying in the Court that he simply pointed out anywhere so they “wouldn’t get a hold of me no more.”

Bullock was then taken to the Dillon County jail and a statement, a written statement prepared for his signature.

The evidence was — the testimony of the sheriff was that — that Bullock would make a statement and that the clerk who — who was preparing the statement would — would translate what Bullock have said and write it down into a statement on the paper and that the — the written confession which was somewhat lengthy was the product of this kind of exchange between Bullock and the officer who was preparing a statement, that Bullock would make a statement and the officer would translate it and write it down in his own words.

After some ado, the statement was completed and Bullock signed the statement.

Now, a contention was made in the court below that Bullock did not receive a copy of the statement in accordance with — with South Carolina law in this interpreted subject but the Supreme Court of South Carolina resolved that against our contentions.

And of course, we make no — no issue on it here.

But, there was some showing made in the record on — on the part of counsel who conducted the trial of the case that the — the exhibit was removed from the typewriter and apparently thereafter, reinserted for the purpose of adding the words, “I have received a copy of this confession.”

And of course, South Carolina statute requires that — that such a statement be included on any confession before it can be used in evidence against the accused.

About an hour later, another statement was prepared.

This one of course purporting to be a written reconstruction of the crime and that one also was signed by Bullock.

And apparently, reinserted also for the purpose of adding the words, “I have received a copy of this statement.”

John M. Harlan II:

Were there differences in substance between the two statements?

Matthew J. Perry:

Yes, sir.

There was differences — there were differences in substance.

The first is purporting to — to be the confession in narrative form.

And the second, a collaborating statement made for the purpose of reconstructing.

John M. Harlan II:

Oh what I meant was, was the account given of the crime the same in the first statement, is the same (Voice Overlap) —

Matthew J. Perry:

The substantial are the same, yes, sir.

Yes, sir.

John M. Harlan II:

I had — I have some recollection.

I maybe wrong but the first statement says there was this woman was shot outside of the automobile, apart from the automobile and the second statement says she was shot in the automobile.

Am I wrong?

Matthew J. Perry:

As I recall Mr. Justice Harlan, the contention of the — the State was that the deceased had been shot more than once.

John M. Harlan II:

More than once.

Matthew J. Perry:

Once while in the car and once later at the point where her body was found or at some point prior.

John M. Harlan II:

If you make no point of any inconsistency in the account between — as to how the crime occurred between the two statements?

Matthew J. Perry:

I do not, sir.

Matthew J. Perry:

It’s our contention principally that the — the method of extracting the confession validated the — the right to due process of law of the petitioner and hence should not have been considered.

The petitioner was thereafter confined on the motion of the State to the South Carolina Hospital for a psychiatric examination for a period of 30 days.

And on the same day that he was committed being August the 26th as I recall, two lawyers in the City of Dillon were notified by the presiding circuit judge of that circuit that they were appointed to defend the accused.

William J. Brennan, Jr.:

Mr. Perry, is this an examination or a routine sort of business under your practice or has to be some reason which accounts for the State’s motion that having committed for a psychiatric?

Matthew J. Perry:

It is — it is wildly used in South Carolina by the State as an effort, I believe, to expedite the handling of criminal prosecutions.

William J. Brennan, Jr.:

Well, is that — is that that you have to answer this largely routine then, it doesn’t have to be an indication that the accused maybe under some mental difficulty before it’s —

Matthew J. Perry:

It’s my understanding that it’s largely routine.

Although, it is also used where there is evidence of insanity.

William J. Brennan, Jr.:

What’s the — what’s the —

Matthew J. Perry:

Clearly, the —

William J. Brennan, Jr.:

— base here?

Matthew J. Perry:

It would hesitate to comment on that sir unless the Court requires —

William J. Brennan, Jr.:

Nothing in the record which tell us.

Matthew J. Perry:

There is nothing in the record which tells us.

I — I suspect that the real reasoning is that the crime was committed on August 3rd.

And the next term of Court would commence on about October 16th or thereabout.

And because of the lapse of time between August the 3rd and October, it was possibly felt that the — since the accused had a right to be committed if — if he wanted to that possibly the State should go ahead and get the period of examination out of the way so that when the October term of court came, that there would be no purpose of delaying the prosecution by reason of such a request.

I hastened to say that that is merely — merely speculation on my part and I certainly do not attribute to the solicitor any — any scheme of course to deprive the accused of his rights in connection with any plea of insanity or so forth.

The court-appointed counsel did not have an opportunity to examine the accused until a few days before his trial.

And did not proceed of his defense until sometime thereafter by reason of their statement that of course he did not apparently trust them in the beginning.

I believe there was some contention that he apparently wished to obtain attorneys in another city and after ascertaining that those attorneys were not available that he then gave his statement to his court-appointed counsel.

The counsels who were appointed conducted the defense of the defendant vigorously.

They raised to the pertinent questions which were necessary to protect him and defended him as I say rather vigorously.

The confessions were received an evidence and the Court — the jury found the defendant guilty and under the — the requirement of South Carolina where a defendant is found guilty of the murder case without recommendation to the mercy of the Court, the death — that death penalty is mandatory.

The Court accordingly sentenced the — the defendant to death in the electric chair.

Thereafter, the present counsel in the case were substituted and the appeal taken to the Supreme Court of South Carolina.

In the Supreme Court of South Carolina, it was contented by assignment of error that the — the defendant was deprived of due process of law by reason of the — the receiving evidence of the confessions and the inculpatory statements made on Friday, August the 8th, 1958.

Now, these and other contentions of the defendant were resolved against the — the defendant and the Court affirmed that the judgment of the Court of generalization to Dillon County.

Thereupon after a rehearing was denied, this Court granted the petition for certiorari to the Supreme Court of South Carolina.

We respectfully submit that the — the — taking the uncontroverted portion of the record in this case and it is certainly recognized that in a case of this nature.

Matthew J. Perry:

This Court will examine the entire record.

And even though the — the contested issues which lead to the making of the confession are said to come here conclusively resolved by the adjudication of the court below.

And nevertheless, we recognize that this Court does make its own independent examination of the records.

It is submitted that the uncontradicted portions of the record in this case presents a series of — of things, which we think bear heavily upon the issue of coercion.

John M. Harlan II:

Could you list those uncontested factors as you call them, I mean would you —

Matthew J. Perry:

Very good, sir.

John M. Harlan II:

— categorize them for us and you’ve mentioned some of them and I just want to see what the list was.

Matthew J. Perry:

Alright, sir.

We contend first of all, that the petition of being of a different race from the arresting officers was one of the issues which might present some circumstance, which the Court might consider.

Felix Frankfurter:

Do you mean by that that in every case in which the accused or the convicted person is a colored person that this Court must take that as having some presumptive weight of coercive power?

Matthew J. Perry:

Mr. Justice Frankfurter, I certainly would not —

Felix Frankfurter:

I shouldn’t think you would.

Matthew J. Perry:

I — I would not go that far, sir.

I — I simply urge that in this case, the — the racial difference of the accused from his arresting officers taken in connection with the other factors, which I shall attempt to cover might have some way.

Felix Frankfurter:

Well, I don’t need to —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

— be troubled by suggestion that in the context of this case, the circumstance of this or in the context of any particular case.

But it did sound as though you made a generalization as presumptively.

Matthew J. Perry:

I certainly did not intend — did not intend to.

Felix Frankfurter:

You know, you might — if —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

— if he had to do that, in this case, we’d have to take it in the case of a — of a Mexicans, Filipinos, Jews in an Irish community, Irish people in the Jewish district.

I mean, where would we get into continuing which we are trying consistently with facts, with the realities of life, not to emphasize all differences but it’s rather more and more contractions?

Matthew J. Perry:

I think, sir — as I say, I certainly did not intend to — to generalize it to the extent of having this Court to consider it as one of the overriding factors.

Felix Frankfurter:

Not even overriding, but presumptively.

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

It maybe presumptive in a particular situation.

A record may show a consistent conduct.

I hope they’re not many.

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

And not one who shut the guy to this fact, but I don’t like to just hold to see more than there is there.

Matthew J. Perry:

I understand, sir.

We — we merely point out that in — in a situation where a lady who is apparently very well-known in the southern community is brutally killed, the — the race of the accused may possibly take on some added meaning and particularly as he is surrounded by — surrounded by — by officers of the opposite race who —

Felix Frankfurter:

You’ve — you’ve already added some ingredients.

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

Making out of generality.

Matthew J. Perry:

Yes, sir.

Next, it is shown that the petitioner is illiterate.

This Court, of course, has stated, I believe, on many occasions that the educational level of the accused is relevant on the issue of whether or not a confession is coerced.

Potter Stewart:

Do you mean illiterate in the technical sense that he couldn’t read or write?

Matthew J. Perry:

He could not read, sir, and the record shows that he could write only his name.

And he did in fact write his name on the exhibits in this case.

It is submitted that the petitioner that was held incommunicado from the time of his arrest on August 7th through August the 11th at which time he confessed.

Now, we recognize the — the short visits with his sister-in-law who was brought in for the purpose of contesting the issue of whether or not he owned a gun.

And also, the fact that he saw wife briefly, she being also under arrest.

Felix Frankfurter:

Was the visit from the wife or by the wife curtailed by the authority?

Matthew J. Perry:

The record does not show that it was curtailed, sir.

However, in the regular course of — of police work after the prisoner was returned to his cell for a few minutes and during which time he had a short visit with his wife.

Felix Frankfurter:

(Inaudible) was the —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

— wife understand she wasn’t allowed to and that he wants his wife to stay and the question denied.

Matthew J. Perry:

The record does not — does not bear us out on that particular one, sir.

Felix Frankfurter:

What about talk with a lawyer?

Matthew J. Perry:

That issue was not — was not answered, sir.

Felix Frankfurter:

But he — he did have a lawyer?

Matthew J. Perry:

Oh, yes, sir.

Felix Frankfurter:

(Voice Overlap)

Matthew J. Perry:

I beg your pardon.

Only after the Court appointed counsel.

Felix Frankfurter:

Yes.

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

But there afterwards, access denied his counsel to see him?

Or the request by him to see his counsel denied?

Matthew J. Perry:

The — the counsel, the only counsel which Bullock had was appointed by the Court on August the 26th, some several weeks after the commission of this offense.

Felix Frankfurter:

Yes, but during this, was there a counsel during any of the period, during which you claim he was held incommunicado?

Matthew J. Perry:

No, sir, there was not.

Felix Frankfurter:

So that during that period, he was — there was not?

Matthew J. Perry:

There was not.

Felix Frankfurter:

And during that period, did he ask for any counsel?

Matthew J. Perry:

There —

Felix Frankfurter:

Or any — let me generalize, Mr. Perry.

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

Was there cany request by him to see anybody, family, friend, wife or lawyer during what you call a period of incommunicado denied?

Matthew J. Perry:

The record, Your Honor, does not show that the prisoner requested to see anyone and that that request was reviewed.

Felix Frankfurter:

Does the record show that he was held more incommunicado than other persons held for murder?

Matthew J. Perry:

I of course, would respectfully urge that here, we had a hideous crime which was committed and the authorities were trying very — very strenuously to solve that — that crime.

The first inculpatory statement having been made on Friday, August the 8th, the prisoner was transferred to adjoining Marion County and we — we submit that — that since the prisoner was said to have made his first inculpatory statement.

At that time, it was transferred to an adjoining county.

There is certainly a presumption that he was being held incommunicado although I hasten to say that that does not appear in the record any request that he made to confirm with counsel or for instance in that request denied.

Felix Frankfurter:

Since, we have to seek out in each case, yes it is (Voice Overlap), but we have to ascertain that this either fact in the context of a circumstance of each cases, it’s important to ask these questions, which if I may say so you’ve given very candid answer.

Matthew J. Perry:

Thank you kind sir.

I might say on that same point, sir that the petitioner was not taken immediately to a magistrate and a warrant securing for his arrest.

Although during that period from August the 7th through August the 11th, the petitioner was incarcerated in close proximity of a magistrate.

Felix Frankfurter:

Well, when did the — when according to record, varying from — from the record, when did the police for the whole — using the word prosecution its comprehensive sense, when was there — the assumption or the belief or the decision by the authority that Bullock should, the guilty person, the person to be charged?

Matthew J. Perry:

I think that on the evening of Friday the 8th, 1958, the authorities had formed an opinion concerning the complicity of this petitioner, concerning the commission of the offense.

And as of that moment, if not prior to that, I believe they were under a duty to — to take him before a magistrate and secure a warrant.

Now, may I —

John M. Harlan II:

If you have a statute that South Carolina requires (Voice Overlap) —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

What’s the phrase, crumb or immediate, or what is the word?

Matthew J. Perry:

Without unnecessary delay.

As I seem to recall, sir, it’s cited in our brief at page 6.

Felix Frankfurter:

Were there other people involved in the minds of the authorities as having complicity in the offense?

Matthew J. Perry:

The record does not show that that was the case, sir.

However, the offense having been committed on August the 3rd, and this petitioner having been arrested on August the 7th, there was a lapse of a period of about four days.

Felix Frankfurter:

And does the record show even — no one I think of — well, I feel very strongly for the enforcement of procedural safeguard in criminal cases —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

— and I think you explained it.

But I think we must also take into account the responsibility of the police in —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

— trying to solve a mystery, a commission of a crime particularly where it creates the very difficulty of feeling and where —

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

— I don’t know what the newspapers said in this case, but they usually are not (Inaudible)

Matthew J. Perry:

Yes, sir.

That is correct.

The statute of South Carolina Section 43 and Section 222 requires that where an arrest is made by a deputy sheriff without a warrant that the person arrested shall be carried before a magistrate and a warrant of arrest procured and disposed off as the magistrate shall direct.

So, it doesn’t say — it doesn’t use the phrase without unnecessary delay, but it did say he shall be carried.

And I submit that of course —

William J. Brennan, Jr.:

It would be the word forthwith.

Hugo L. Black:

Use the word forthwith?

Matthew J. Perry:

Yes, sir.

It does say forthwith.

William J. Brennan, Jr.:

But apparently —

Matthew J. Perry:

Yes, sir, he does.

William J. Brennan, Jr.:

— that — that was strange.

This applies only to the deputy sheriff and this arresting officer was the sheriff —

Matthew J. Perry:

That is correct, sir.

William J. Brennan, Jr.:

— and that is why it doesn’t apply to him?

Matthew J. Perry:

Apparently, this petitioner was arrested by the sheriff of Dillon County.

William J. Brennan, Jr.:

You mean the statute does not apply, I gathered from the text of his brief.

Matthew J. Perry:

Yes, sir.

William J. Brennan, Jr.:

That statute has no obligation upon the sheriff as he is the arresting officers, but only a deputy sheriff.

Matthew J. Perry:

Apparently so.

However, I — it’s — perhaps stretching the — the rule of strict interpretation and technicality, a little too far to suspect that the legislature intended that a deputy sheriff to pick a man up without a warrant and carry him and be required to carry him forthwith to a magistrate and not place the same requirement on the sheriff.

Felix Frankfurter:

Don’t sheriffs have a metric?

Matthew J. Perry:

Yes sir, they have.

Felix Frankfurter:

Well, what — what’s their tenure?

Matthew J. Perry:

Four years.

Felix Frankfurter:

Is the deputy sheriff appointed by the sheriff?

Matthew J. Perry:

Yes, sir, he is.

Felix Frankfurter:

So, he is a — he is a —

Matthew J. Perry:

Yes, sir.

Earl Warren:

Does the — did your Supreme Court interpret the statute that way?

Matthew J. Perry:

The Supreme Court did not have the occasion to interpret.

As matter of fact, it wasn’t — this particular statute was not urged to the Supreme Court.

It was —

Earl Warren:

Who —

Matthew J. Perry:

— was —

Earl Warren:

Who interprets this statute to — to the effect that it applies to the deputy but not to the sheriff himself?

Matthew J. Perry:

Well, a counsel placed that interpretation by reason —

Earl Warren:

It’s not — it’s not a judicial —

Matthew J. Perry:

Yes, sir.

Earl Warren:

— not a judicial interpretation?

Matthew J. Perry:

That is not a judicial interpretation.

Earl Warren:

Yes, right.

Matthew J. Perry:

No, sir.

The — the petitioner was — was continuously interrogated.

That I believe is another one of our contentions concerning the — the chain of circumstances which we are —

John M. Harlan II:

What was the longest time of the record shows that he was interrogated one time at one period?

Matthew J. Perry:

If I’m not in error, I believe an hour and a half to hours.

Matthew J. Perry:

The sheriff testified that he was present during the interrogation of the accused in the old county jail for a period of approximately an hour and a half to an hour and 45 minutes.

John M. Harlan II:

(Inaudible)

Matthew J. Perry:

He did not, however, state that when he left the old jail, that the questioning ceased and there was no other testimony by any of the — the deputy sheriffs concerning how much longer the questioning continued.

The next issue — the next item of testimony on the issue of — of interrogation is during the period that the interrogation ensued in the office of the presiding judge which adjoins the courtroom.

And the testimony there is that the questioning continued for approximately an hour and 15 minutes.

It is submitted, however, that the sheriff after the preliminary examination had been conducted in the absence of the jury, the sheriff was asked on direct examination by the solicitor whether or not the confessions were the product of several days questioning and the sheriff stated that they were.

We also offer that as some evidence that the questioning was perhaps more lengthy than the only testimony on that issue might show.

John M. Harlan II:

Is he arrested on 8th?

Is that 7th —

Matthew J. Perry:

He was arrested on the 7th.

John M. Harlan II:

— and answer the questions signed on the 11th.

Matthew J. Perry:

Yes, sir.

That is correct.

Hugo L. Black:

What time of the day on the 7th?

Matthew J. Perry:

He was arrested on the — the late afternoon of the 7th.

In the early night, I would say.

John M. Harlan II:

Is there any way you can tell in the record the total number of hours, in that interval that he was subjected the question?

Matthew J. Perry:

No, sir, because the only — the only direct testimony on that issue comes from the sheriff himself.

And on those two occasions, he testified it seems that a total period according to the testimony of the sheriff might be left in three hours.

Although the sheriff does not — does not say that he was present at all times that the other officers had the custody of the accused.

The next item that we contend which should be added on the circumstances to be considered by this Court is the fact that the — the petitioner was moved about first of all from the new jail over to the old jail, which houses no prisoners and we do urge that it’s an unoccupied place.

It does not show that there are any particular devices of law enforcement or — or any conference rooms which the old jail had and which the new jail did not have.

As a matter of fact, it would seem that the new jail would certainly have better law enforcement devices than the old jail.

And that he was moved from there to the — the courtroom or the judges chambers adjoining the courtroom and that he was then moved up to a motel.

I beg your pardon.

He was taken into — to the county jail then to his home then to the motel and ultimately to adjoining Marion County.

John M. Harlan II:

Was there any motive for this crime shown?

Matthew J. Perry:

There was no motive shown, sir.

John M. Harlan II:

I notice that Court of Appeals says that there os no claim, rape case?

Matthew J. Perry:

That is correct, sir.

Matthew J. Perry:

It was urged to the Supreme Court of South Carolina that it was error to have permitted the examining physician to testify.

John M. Harlan II:

The record is barred of any motive?

Matthew J. Perry:

That is correct, sir.

Charles E. Whittaker:

Well, may I ask you?

You stated as an answer question earlier that there was evidence that the shooting, the murder occurred in the cemetery.

Matthew J. Perry:

That — that there is evidence to that if we —

Charles E. Whittaker:

Well, now, did Horne testify?

Matthew J. Perry:

Horne did not testify.

Charles E. Whittaker:

He is the man who is with the lady?

Matthew J. Perry:

That is correct.

Charles E. Whittaker:

Well then, why didn’t he testify?

Matthew J. Perry:

That of course, we — it was urged to the court below that — that the absence of Horne left the status of this case in such a condition that it was error for the court below — for the general sessions court of Dillon County to have denied the request for continuance.

Charles E. Whittaker:

By whose testimony was it shown that the girl was shot in the cemetery?

Matthew J. Perry:

By the confession of this petitioner.

Charles E. Whittaker:

Only that?

Matthew J. Perry:

However, the — the — a citizen who resides in close proximity to the cemetery testified that Horne came to his house at about the time that — or shortly after the shooting allegedly occurred.

Charles E. Whittaker:

Well, this confession involving the shooting says he shot — he shot her in the — in the swamp, which is not in the cemetery, but some distance from the cemetery.

Matthew J. Perry:

There are —

Charles E. Whittaker:

I thought the —

Matthew J. Perry:

— two statements sir —

Charles E. Whittaker:

— confession says.

Matthew J. Perry:

There are two statements as I recall, sir.

Charles E. Whittaker:

Well?

Matthew J. Perry:

Both of which of course indicate — one of which indicates that that the firing occurred in the cemetery and ultimately, the other one states that the — that another bullet was fired some distance from the cemetery where the body of the deceased had been carried or where the lady had been carried prior to the time she was fatally shot.

Charles E. Whittaker:

Well, on his first confession, this long one, he says, “On the cemetery, I saw a car parked.

I walked on a piece further and I pulled out my mess and started shooting.”

Later on, he says, “After we’ve gone into the swamp, I was standing about two feet from her when I took the gun out of my pocket and fired one time into her head.”

That wasn’t in the cemetery, was it?

Matthew J. Perry:

That was some distance from the cemetery.

Charles E. Whittaker:

Last?

Matthew J. Perry:

The last occasion.

Yes, sir.

Charles E. Whittaker:

Then, what evidence is there aside — do you — do I understand you said there is no testimony aside from the confessions that the girl was shot in the cemetery?

Matthew J. Perry:

Other than these signed confessions, sir.

Of course, the other evidence is circumstantial.

There was some evidence of — of blood marks on the leaves just outside the automobile and the bag that the lady’s underwear was found and her slip was found, all making a path in the general direction of the point where the body was found.

But it is respectfully submitted that there is no evidence, no — no concise or direct evidence that the shooting of the deceased actually occurred in the cemetery.

Charles E. Whittaker:

Well, was Horne also shot?

Matthew J. Perry:

The evidence was that Horne was also shot and a bullet was received in the court below and the Court of General Sessions allegedly removed from Horne.

I might say that the ballistics expert who testified could not say precisely that the bullet which was removed from — from the deceased bore markings similar to the bullet to a test bullet fired from Bullock’s gun.

However, the same ballistics expert did testify that another bullet which was identified as having been removed from Horne did pass similar markings to a test bullet fired from Bullock’s gun.

Earl Warren:

Was any explanation made at the trial why Horne was not called (Voice Overlap) —

Matthew J. Perry:

It seems that Horne had — had been in an accident after this killing and before the trial and was on the day of this trial confined to the hospital, I believe paralyzed.

However, the — the General Session’s Court was urged to continue the case by reason of the absence of Horne.

It was felt by defense counsel that — that they should have an opportunity to examine Horne and perhaps find out a little bit more about this matter.

And so, it is respectfully suggested that — that Horne being the only eye witness, if — if it can be said that he was an eye witness to any shooting at all was a material witness to this prosecution.

Charles E. Whittaker:

Was any effort made to defer the trail pending Horne’s ability to get out to testify?

Matthew J. Perry:

The — the defense counsel, Mrs.Britt and Hawkins, two very able counsel of Dillon South Carolina strenuously urged to the General Session’s Court to continue the case, to allow them more time to investigate and prepare their defense and as part of their — their insistence upon a continuance, they also urged that Jimmy Horne was not present in Court to testify.

Charles E. Whittaker:

Does your law allow the taking of depositions in a criminal case?

Matthew J. Perry:

Yes, sir, it does.

And it does not appear that this was done although bear in mind that the — the counsel did not perceive of Bullock’s defense until a very short time before he was tried.

And they were very busy with other trials in the same term of court for which they have been compensated and possibly did not perceive of the — the method of taking the deposition.

Moreover, I think that they might reasonably have been expected a continuance because of the absence of this witness.

Hugo L. Black:

Where is the statement where they requested his opinion or the reason he’s absent?

Matthew J. Perry:

In the affidavits of counsel which is included in the — in the record.

If I recall, I believe it appears at the — at the beginning of the testimony and before the matter to proceed.

Now, the affidavit begins on page 8 and continues through pages 9, 10 and 11.

William J. Brennan, Jr.:

Is this part of the totality picture?

Matthew J. Perry:

Yes, sir.

I respectfully submit that it is a part of the totality picture.

Felix Frankfurter:

You mean the deal for a continuance?

Matthew J. Perry:

I beg your pardon.

I — I did not intend to say that the denial of the continuance was a part of the totality picture.

I simply urge that of course, in the background bearing in mind that the Court, I believe, makes its independent examination that deep down in this record, there is some lead to speculate as to why this man was not present.

And I merely said in answer to the question of Mr. Justice Whitaker that — that the request was made in the motion for a continuance.

I might say that my last item on this totality picture, if might call it the last item is the fact that the petitioner did not consult with a lawyer during the entire period of his incarceration beginning August the 7th through August the 11th.

John M. Harlan II:

Does the record show that he asked for a warrant?

Matthew J. Perry:

No, sir, it does not.

John M. Harlan II:

Was there any lawyer sought to see him and required to refuse admittance?

Matthew J. Perry:

No, sir, it does not.

The record does not show that.

However, we do say that — that possibly on our contention that he was being held incommunicado and adjoining Marion County is — is an item of evidence that he was being held incommunicado and we — we respectfully submit that this along with the fact that he did not — that he did not consult with a lawyer and no one else advised him of his right to counsel nor of his right to remain silent and demand a hearing.

Felix Frankfurter:

Does it affirmatively appear that he was not told that he should have a lawyer?

Matthew J. Perry:

It does not affirmatively appear, sir.

But —

Felix Frankfurter:

Under your — under South Carolina law, when a man is arraigned that the magistrate of whoever the judicial official is.

Is he under either the practice duty or statutory duty to advice who advised in of his rights?

Matthew J. Perry:

Under a practice duty, I respectfully submit, but not under a statutory.

Felix Frankfurter:

Was the — because you said he had two able counsel assigned to him, is that right?

Matthew J. Perry:

Yes, sir.

That is correct.

Felix Frankfurter:

He said be comfortable.

Matthew J. Perry:

Yes, sir.

Felix Frankfurter:

Did they — in the trial court or at any stage that he was taken, was it suggested that he was not advised of his right of words?

Matthew J. Perry:

I respectfully submit that — that the record does not show that — that an issue was made on that particular point.

Earl Warren:

When was he arraign Mr. —

Matthew J. Perry:

Under South Carolina procedure, the arraignment has had at least three days before the accused is brought forth to trial and this of course is during the term of the Court of General Sessions that was in October, some two or three months after the — after the arrest.

Felix Frankfurter:

When you say arraigned, in three days before a trial (Inaudible), presumably the trial, your trials aren’t so rapidly on the heel of arrest with a good deal of sometimes weeks most of that before the trial.

Matthew J. Perry:

Yes, sir.

That is correct.

Felix Frankfurter:

Well, what’s the bearing of these three days before the trial, I don’t understand.

Matthew J. Perry:

That is — is a rule which — which our courts follow, Mr. Justice Frankfurter.

Felix Frankfurter:

But he has been arraigned already before the magistrate, hasn’t he?

Matthew J. Perry:

Actually —

Felix Frankfurter:

(Voice Overlap) — what you call arraign pleading to the indictment?

Matthew J. Perry:

Yes, sir.

That is correct.

Earl Warren:

And that was only — that was only three days before indictment?

Matthew J. Perry:

That is correct, sir.

Earl Warren:

I mean, before the trial.

Matthew J. Perry:

Before the — before the trial.

Earl Warren:

Yes.

Matthew J. Perry:

Possibly a little more than three days since the Court itself gave I believe some extra time after counsel stated that they would like some time to prepare but within the same terms.

I believe this having been a two-week term of Court of General Sessions.

Earl Warren:

Does the record show when he first saw his attorneys?

Matthew J. Perry:

That he first saw his attorneys only a few days before his trial.

His —

Earl Warren:

Well, they’d (Voice Overlap) —

Matthew J. Perry:

The affidavit of counsel was to the effect that they learned that the accused had been found to be not insane.

On or about October the — the 4th or 5th and on October the 7th, they requested the Solicitor to have the petitioner brought back to Dillon County in order that they could confer with it since that they have no — no funds for transportation or anything.

In South Carolina, the appointment of the Court requires counsel to serve without compensation.

And the Solicitor apparently promptly advised the sheriff or requested the sheriff to return the prisoner to Dillon County.

This — the letter of the Solicitor was — was dated October the 8th.

The term of Court began as I recall on October the 16th and it appears that — that counsel did confer with him after he was brought back, although it does not appear exactly when the prisoner was returned.

I hasten to say it does not appear when he was returned, but he certainly was returned prior to the opening of the Court of General Sessions.

May I reserve —

Earl Warren:

You may.

Matthew J. Perry:

— my time for reply?

Earl Warren:

You may.

Matthew J. Perry:

Thank you very much, sir.

Earl Warren:

Mr. Kilgo.

Robert L. Kilgo:

Mr. Chief Justice, may it please the Court.

At the outset, I would like to state that as a prosecuting officer in this case, Solicitor of the Fourth Judicial Executive of South Carolina, I am accompanied here by the Attorney General of the State of South Carolina and Sheriff Rogers of Dillon County, the sheriff who made the arrest in this case.

I would like to state to the Court the outset that if you afore brutality in law enforcement, you do not afore anymore than I do nor anymore than the Attorney General of South Carolina and the people of South Carolina and Sheriff Rogers, the sheriff in this case.

We do not desire convictions in our State by means of brutality and if the Court determines from the record in this case that there is one single act of brutality uncontradicted, we, of course want this case reversed and sent back.

Now, the position of the petitioner in this Court is simply this, that he was sentenced subjected to trial and had admitted an evidence against him by the State of South Carolina certain confessions that were extracted for him — from him by means of force coercion, brutality.

Now, of course, the question is what has this Court determined amounts to coercion either physical or mental and we, in our State attempt to enforce the law, do what is necessary to investigate crime properly, also read the decisions of this Court so that we may — we hold the best of our ability remain within the limits of this coercion that this Court has set out

And we have examined the cases cited by the petitioner of this Court commencing with Chambers against Florida in 1940.

That was a case in which the petitioner had been convicted in the State of Florida and confession was involved and that conviction would reversed on a showing undisputed, uncontradicted that the petitioners were subjected to five days of continuous questioning culminating in an all night session of questioning.

The sheriff in that case testified that he participated in the questioning during the day, but was so exhausted at night that he had to stand beside and let others conduct the night questioning of the petitioner, which resulted in a confession.

That was reversed and we think properly reversed, Chambers against Florida.

Now, 1942, Ward against Texas, you had a murder case, you had conviction in the state court, you had a confession as he urged to have started was result of coercion and he showed uncontradicted that the — one of the officers slapped him while he was under arrest, that the petitioner was removed from one jail to another, to another and still another while his employer and attorney was going about following the officers from county-to-county trying to catch the officers so that he could serve a petition for writ of habeas corpus to — to release his house servant.

Here, you’re moving about one place to another to deny the prisoner the right to help from his attorney/employer.

During all of that time, he was continually questioned and he later confessed.

And as the turning point in his confession, he was told that there was threat of mob violence and that if he confess, officers would protect him.

Now, if you are convinced that — that the petitioner in this case has shown that kind of coercion then we think the case should be reversed.

The next, comes a case from McNabb versus United States where similar unremitting questioning for two days in a barren cell after the defense was left in a barren cell for 14 hours very strong feeling of extended questioning almost amounting to brutality.

Now —

Earl Warren:

We’ll recess now, Mr. Kilgo.