Cardinale v. Louisiana

PETITIONER:Cardinale
RESPONDENT:Louisiana
LOCATION:Souther District Court of Georgia

DOCKET NO.: 76
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 394 US 437 (1969)
ARGUED: Feb 24, 1969
DECIDED: Apr 01, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 24, 1969 in Cardinale v. Louisiana

Earl Warren:

Philip Cardinale, Jr., petitioner, versus Louisiana.

Is the other– is there another counsel to be there?

I — I see, you’re just sitting over one.

I thought you–

Preston H. Hufft:

Oh, no it’s–

Earl Warren:

That makes no difference.

It’s alright.

Sit where you wish.

I just wondered if you had an associate who was to sit in that chair, was all.

Preston H. Hufft:

No, sir.

Earl Warren:

Alright.

Mr. Greenberg, you may proceed with your argument.

Nathan Greenberg:

Mr. Chief Justice and may it please the Court.

My name is Nathan Greenberg.

I’m an attorney from Gretna, Louisiana.

I represent the defendant in this case, Philip Cardinale, Jr. who was the petitioner in this Honorable Court for a petition for a writ of certiorari.

The petitioner was convicted of the crime of murder in Plaquemine Parish, Louisiana and he was sentenced to death.

For his appeal, we originally perfected some-14 Bills of exceptions which we took to the Supreme Court of Louisiana and we are here before Your Honors today on what would probably amount to two of the Bills of exceptions which have been combined together in one

The Crux of the issue before Your Honors today is the effect of testimony relative to prior offenses of the accused where the accused has not taken a stand in his behalf and where, actually, we submit that the use of the prior convictions in this case was to show nothing more than a disposition to commit crime which, we submit, would violate the Due Process Clause of the Fourteenth Amendment.

Now, the way this developed in this matter was like this.

The accused turned himself in, in Tucson, Arizona.

And, while he was in custody, he was interrogated by the police there.

Now, this was pre-Miranda and subsequent Escobedo.

So, the Escobedo rule applies.

During the course of his custodial interrogation, the petitioner volunteered that he had previously been convicted of an offense in Louisiana, which offense was actually a crime against nature, that after he served his time in New Orleans Parish Prison, that he went looking for the girl who had charged him with this crime, according to him, allegedly with a gun for the purpose of killing her.

Now, he did not find the girl.

He did not commit any offense in connection with it, and his statements relative to the prior offense or, generally, that let’s see– I’ll see if I can read it.

During the course of his custodial interrogation in Tucson, Arizona, he referred to a prior conviction occurring in Louisiana, which, prior conviction was for a crime against nature occurring on July 12, 1963 and causing the petitioner to be sentenced to serve three months in a parish prison on March 25, 1964.

Petitioner further stated, during the course of his custodial interrogation, that after he served his time in New Orleans Parish Prison, he went looking for his alleged prosecutrix with a gun for the stated purpose of killing her.

However, he never did find her and, therefore, no further offense was committed.

Nathan Greenberg:

Now, in essence, what we have here is a situation where this reference to the prior offense serves absolutely no useful purpose, we respectfully submit.

The only purpose that this link could possibly serve, we submit, is to try to prejudice the jury to show the jury that this defendant is a bad man.

This, of course, is why we’re here before Your Honors today because, here, we had a situation where this could very easily have been separated from the remainder of the statements of the accused.

This could very easily have been excluded, notwithstanding the fact that we sought to exclude it from the time it first came up.

It came up in the opening statement.

It came up in the interrogation of the police officer.

It came up in the closing argument by the District Attorney.

Notwithstanding the fact that we sought to exclude at each level of the proceedings or each stages of proceeding, it was admitted and it was repeatedly referred to in the closing argument.

Potter Stewart:

Did you seek to exclude it on the basis of the United States Constitution or just as a matter of state?

Nathan Greenberg:

In the District Court, if Your Honor please, this trial occurred in May of 1966.

This was prior to the ruling of Your Honors in the Spencer case and, of course, we’ve picked up the language of the Spencer case which, I believe, was in 1967 as a basis of relying upon the application for the writ to this Court and the wording of the dissenting opinion by Mr. Chief Justice Warren.

Potter Stewart:

No, but I’m– I think you understand my question.

Nathan Greenberg:

Yes, sir.

Potter Stewart:

Wondering if you– the time you raised or, in any event, when for the fede– when you raised any federal question in this case.

Nathan Greenberg:

Upon application for the writ.

Potter Stewart:

Of certiorari in this Court?

Nathan Greenberg:

Yes.

In the Trial Court, what had happened was that the states ought to justify the admissibility of the conviction on a basis of propensity or pattern and, of course, we argued to the Court at this time that there was no pattern because the prior offense was crime against nature and this, of course, was murder.

And, of course, the only reference to the alleged looking for the prosecutrix with a gun and so forth related to an incomplete offense.

Now, we did not succeed in this respect.

The state then came in and sought to justify the admissibility of the testimony on a theory that this was a part of the entire confession, and the entire confession as a whole must go in, that Louisiana has such a statute requiring this that the entire confession go in.

And, since this defendant said this, regardless of what it was, it must go into evidence.

And, of course, we respectfully submit that this should not be so.

For example, suppose the defendant made a statement reflecting upon character or integrity of jurors, for example.

Should this go in because it’s a part of an alleged confession?

Should the prosecution be entitled to use this as an attempt to prejudice the jury against the defendant?

We respectfully submit that the issue in this case is quite simple and the issue is to what extent the evidence of prior convictions should be allowed to go in on behalf of the prosecution.

Byron R. White:

But, as Mr. Justice Stewart asked you, was the federal question which you raised here decided at all in the lower Courts?

Nathan Greenberg:

No, sir, it was not.

Byron R. White:

So, there’s been no state decision on any federal question–

Nathan Greenberg:

That is correct.

Byron R. White:

In this case?

Where do we get jurisdiction to hear the case?

Nathan Greenberg:

Because of the contention that the constitution was violated with reference to the admissibility of the evidence per se, in other words, the Louisiana Supreme Court held that the confession must be considered as a whole.

Byron R. White:

When the case comes here from the state Court, doesn’t our jurisdiction depend on the State Court having decided a federal question?

Nathan Greenberg:

The federal question, if Your Honor please, in connection with this matter was not raised in the State Court for the reason that there was no– in the Trial Court, there was no expression which actually hit this on the button as it did in the dissenting opinion in the Spencer case which came out after this trial in the State Court.

William J. Brennan, Jr.:

Well– but when you got to the State Supreme Court, the error was not assigned and the Bill of Exceptions isn’t constitutional error, was it?

Nathan Greenberg:

No, sir, it was not.

We originally–

William J. Brennan, Jr.:

And the Supreme Court opinion did not treat it on the ground of constitutional error, did it?

Nathan Greenberg:

No, sir, it did not.

We took the–

William J. Brennan, Jr.:

Then, how– what is the answer to Justice White’s question?

Nathan Greenberg:

The issue as to constitutionality was not raised prior to the time of the preparation of the application for the writ to this Court.

William J. Brennan, Jr.:

Then do we have any jurisdiction to go through it?

Nathan Greenberg:

We submit that the constitutional issue is present, if Your Honor please.

This is a question where we have raised a federal question.

Perhaps the state may not passed upon up but, even though the state may not have passed upon it, it has been raised in connection with the application for the writ.

Thurgood Marshall:

Where in the record is the exact language of the opinion?

Nathan Greenberg:

I believe that I refer to it at transcripts, page 496-510.

Thurgood Marshall:

Where is it, 496?

Nathan Greenberg:

Through 510.

Thurgood Marshall:

You don’t have it printed?

Nathan Greenberg:

No, in the appendix we refer to the Bill of Exceptions, which, Bill of Exception sets forth the actual reference to– as to the manner in which it was raised.

The– in the appendix, I can refer Your Honors to that.

William J. Brennan, Jr.:

It was cited in the jurisdiction.

Thurgood Marshall:

But it doesn’t say anything– it just says you objected to it.

Nathan Greenberg:

Yes, sir, we did.

Thurgood Marshall:

Well, in no place did you mention that you object on the grounds that it violates any provision of the constitution.

Nathan Greenberg:

Yes, sir.

Nathan Greenberg:

That is correct.

We did raise other issues relative to the constitutionality of various other matters in the course of the case, however, not as to this particular–

Thurgood Marshall:

Where is that in the Bill of Exception?

Nathan Greenberg:

Now, I’m looking at the appendix here and, particularly, the Bill of Exceptions Number 3 which appears at page 9, 10, and 11 of the Bill– of the appendix, and Bill of Exceptions Number 10 which appears at page 12, 13, and 14.

Thurgood Marshall:

Well, i’ve scanned to 9, 10, 11, and I don’t see the US Constitution anywhere.

Nathan Greenberg:

This is–

Thurgood Marshall:

Is this from the law?

Nathan Greenberg:

Correct, sir.

Thurgood Marshall:

Sir?

Nathan Greenberg:

This is correct, sir.

Thurgood Marshall:

So, you didn’t write it?

Nathan Greenberg:

Not in the District Court, no, sir.

Thurgood Marshall:

Well, this Bill of Exception is in the Supreme Court, isn’t it?

Nathan Greenberg:

No, this Bill of Exceptions was prepared and submitted to the trial judge and then–

Thurgood Marshall:

Well, what was submitted to the Supreme Court of Louisiana?

Nathan Greenberg:

These Bills of Exceptions.

Thurgood Marshall:

And no place in the federal question?

Nathan Greenberg:

No, sir, not as to Bill of Exceptions Number 3 and Bill of Exceptions Number 10.

Thurgood Marshall:

Well, my answer was no place.

Nathan Greenberg:

That is correct.

Well, not– there were– permit me to say this.

We did raise other federal constitutional questions in other Bills, but this was not the basis of the application for the writ.

Earl Warren:

But you argued in your briefs or orally that this was unconstitutional under the federal constitution.

Nathan Greenberg:

The exact question which was raised in the appellee’s–

Earl Warren:

The one you’re arguing now?

Nathan Greenberg:

No, sir, we did not.

Earl Warren:

Well, do you have any authority to the effect that we have jurisdiction in such a situation?

Nathan Greenberg:

Well, if Your Honor please, the issue which we raised herein is one which really developed since the trial of this case.

This case was concluded, I believe, on May 5,1966, and the issue which was raised was actually pinpointed in Your Honors’ decision of the Spencer case which was decided by this Honorable Court in 1967.

And, insofar as the focusing of attention on this issue was concerned, at that time, the Bills of Exceptions had already been signed, the appeal had been lodged in the State Supreme Court, and there was no way in which the issue could be raised at that time for the very simple reason that, under the state practice and procedure, we have to raise the Bills of Exceptions, the basis of the objections to the admissibility of the evidence, have them signed by the Trial Court, and then we take the appeal.

Nathan Greenberg:

So, there was really, we submit, no way in which we could raise the issue at that time because the matter had already been tried, submitted, and the Trial Court had lost jurisdiction.

Earl Warren:

Do you take any comfort out of the opinion of the Court in the Spencer case?

Nathan Greenberg:

Yes, sir, we do.

This is the entire basis of the application for the writ.

We respectfully submit that the opinion in the Spencer case, both majority and dissent, would clearly indicate that the position of the defense in this case was correct that it would be violative of the Due Process Clause.

In the Spencer case, in the majority opinion, the majority stated petitioners do not even appear to be arguing that the constitution is infringed if a jury is told of a defendant’s prior crimes.

And this, of course, is exactly what happened in this particular case.

The Spencer case was a habitual criminal and multiple offender situation out of Texas.

And of course, here, we don’t have this case at all because, here, we have a situation where the only thing which is involved here is the question of the defendant’s prior offense coming into evidence where a defendant has not taken the stand, has not sought to offer any character evidence or anything of this type and what, in essence, has occurred is that the prosecution says “Well, since you, Mr. Defendant, made this statement during the course of this confession, we are entitled to bring it into evidence.”

Potter Stewart:

Well, what do you get out of that sentence you’ve just read from the majority that would help you?

Nathan Greenberg:

We submit that this actually leaves our question open.

And, as was pointed out in the dissent, it leaves the question open here and, as was stated in the dissenting opinion– I have the language quoted in the brief.

“While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in Federal Courts as well as decisions by Courts of Appeal and of State Courts suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause and this, of course, is exactly the situations which–

Abe Fortas:

But, is that applicable here?

I know the state cert– I think I recall that State Supreme Court did not rely on this point, but it– isn’t the fact that this prior conviction was part of the story as to the motive, the alleged motive, for the petitioners killing this woman?

Nathan Greenberg:

Well, Your Honor is talking about the propensity of pattern-type–

Abe Fortas:

I’m not either.

I’m talking about motive.

Could the– well, hasn’t then the state alleged that the state said the reason that this petitioner killed this woman was that she had been the prosecutrix in the prior conviction, isn’t that right?

Nathan Greenberg:

Yes, sir.

Abe Fortas:

Now, how could the state have proved motive?

Am I right, too, that State Supreme Court does not rely upon that?

Nathan Greenberg:

That’s correct.

Abe Fortas:

Now, how could they–

Nathan Greenberg:

A different woman here.

Abe Fortas:

Sir?

Nathan Greenberg:

This was a different woman.

Abe Fortas:

This was a different woman?

Nathan Greenberg:

Yes, sir.

William J. Brennan, Jr.:

Oh, yes.

Nathan Greenberg:

Absolutely, a different woman at that time.

Earl Warren:

In a different state, wasn’t it?

Nathan Greenberg:

No, same state.

Earl Warren:

Same state?

Nathan Greenberg:

Yes, sir.

Byron R. White:

But, here, he’s now been convicted for killing a different woman than the one that he had the– this alleged motive for killing.

Nathan Greenberg:

Yes, sir.

Byron R. White:

Yes.

Nathan Greenberg:

Yes, sir.

In other words, we were placed in a rather anomalous position here where the basis of our application here really occurred while this thing was pending, if Your Honor please– if Your Honors please, and we have a situation where I must admit in all candid to the Court that the direct matter raised here today was not submitted to either the Trial Court or the Louisiana Supreme Court.

However, in our research, we discovered the basis of coming up here on a federal question subsequent to the trial, subsequent to the time that the Bills of Exceptions had been perfected and, of course, subsequent to the time that the brief had been prepared in Louisiana Supreme Court.

Thurgood Marshall:

But you still don’t have any authority to afford this.

Nathan Greenberg:

We don’t have any authorities to come before Your Honor and say “I know that I can point to such and such a decision” and say this is a basis of it.

Thurgood Marshall:

No, I mean, you don’t have the authority to say that you can raised in this Court, for the first time, a federal question that was not raised nor decided nor– not raised, submitted, nor decided by the State Court.

Nathan Greenberg:

I do not.

However, if Your Honors want some research on this, we would be glad to check the matter out and submit a supplemental brief in connection with the issue.

We came up solely on the basis of the prior offense coming into evidence which we felt was an unconstitutional Act on the part of the prosecution.

We raised it in a different vein.

There isn’t any question about that.

However, it really is a question of approach.

Byron R. White:

But, I suppose there remains– still remains a federal forum you can get this question cited.

Nathan Greenberg:

Well, in the event, our rights of appeal would be terminated because we came up here in the normal course of the appellant review.

Then, of course, we would have to–

Byron R. White:

I’m not–

Nathan Greenberg:

Resort to habeas corpus in the Federal Court system to present the issue.

In other words, it would be just like a situation where, subsequent to Miranda, for example, a defendant was tried and he didn’t have adequate counsel and then he came in and sought to review it by way of habeas corpus in the Federal Court system.

Potter Stewart:

The Louisiana statute that the Court relied on, do you find that sort of a statute in other states?

Nathan Greenberg:

The statute in connection with the entirety of a confession?

Potter Stewart:

Yes.

Nathan Greenberg:

We have not researched this one from a standpoint of other states, but my recollection is that there are some which have a similar statute.

Potter Stewart:

Which Louisiana has a different historical background, doesn’t it, in its–

Nathan Greenberg:

Not in a criminal law area.

Potter Stewart:

Doesn’t it?

Nathan Greenberg:

Louisiana has a different historical background from a standpoint of development of the law in the civil law area.

Potter Stewart:

Only in the civil law area?

Nathan Greenberg:

Yes, sir.

However, insofar as the law of crimes is concerned, it’s taken from the common law.

Potter Stewart:

That’s interesting.

I suppose you’re sure about that?

Nathan Greenberg:

Oh Yes, sir, absolutely.

Our civil law is based upon the Code of Napoleon which, in turn, is based upon the Code of Justinian.

However, in the law of crimes, our law is taken directly from the common law.

It is, of course, codified by statute today.

We respectfully urge Your Honors’ consideration of the issue which is raised and which was– as was pointed out and raised for the first time in this application for a writ.

We respectfully request the indulgence of the Court for additional time within which to file a supplemental brief to research the issue raised in connection with the matter of jurisdiction.

It is, of course, true that the habeas corpus remedies which are available to petitioner have not been utilized.

However, we felt that in as much as the time for appeal had not yet run and in as much as the opportunity til– still presented itself for this case to run began through the course of the appellate review, that we should ask for the application of the writ of certiorari, which we did.

And, of course, we realized that we did not raise this constitutional issue in the District Court or in the Supreme Court, but the issues is, nevertheless, existed in one which, we submit, should warrant Your Honors’ attention to the matter.

We submit it is a matter of prime importance.

It’s a matter which would have great effect in connection with prosecution of criminal cases, not only in Louisiana but in other jurisdictions.

What is the effect of prior offenses where the defendant has not taken the stand, has not put the issue of his character or reputation at evidence, and in the course of the confession, the defendant refers to the prior offense and the prosecution brings us out as a part of the confession as a whole.

We submit that the evidence which was taken in this case would warrant Your Honors’ taking cognizance of the matter and reversing it.

Potter Stewart:

I suppose the purpose of the statute that requires that if any part of the confession is offered by the prosecution, then the entirety must be offered was, at least arguably, to protect the defendant in the case, wasn’t it?

Nathan Greenberg:

Well, there isn’t any doubt in my mind, but that this was the intent of the statute.

As a matter of fact, we have cited the statute in the brief and, of course, here one phase of the statute is used against us, and this is the statute.

Every confession, admission, or declaration sought to be used against anyone must be used in its entirety so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.

So, actually, the exculpatory proviso of the statute is one which really requires the utilization of the confession as a whole and, here, the confession as a whole is being used to show that the defendant is a bad man.

Potter Stewart:

Is this a written confession?

Nathan Greenberg:

No, sir, it was not.

It was an oral confession.

Potter Stewart:

When he was arrested in some other state.

Nathan Greenberg:

Yes.

Potter Stewart:

Oral confession to the law enforcement officers over there, the arresting officers.

Nathan Greenberg:

That is correct.

We respectfully request Your Honors’ favorable consideration of this matter.

Should the Court require or wish supplemental briefs on the issue of jurisdiction, if Your Honors would fix some additional time within which this matter can be raised, we submitted that the matter that we had jurisdiction under the statutory provisions raised.

Potter Stewart:

This– your client is under sentence of death, is he?

Nathan Greenberg:

Yes, sir, he is.

He’s on death row in Angola State.

Potter Stewart:

Suppose you said that Spencer against Texas was a case decided after the trial of this case?

Nathan Greenberg:

Yes, sir.

Potter Stewart:

Which explains, you say, why you didn’t raise this point as a constitutional point during the course of the trial or the appeals through the Courts of Louisiana.

Suppose other cases have subsequently been decided that might affect the constitutional rights of your client now, haven’t they been?

I’m thinking particularly of the Witherspoon case.

Remember that case?

Nathan Greenberg:

Yes, sir.

Potter Stewart:

We’ve got that kind of a claim in this case?

Nathan Greenberg:

Yes, sir, we do.

Potter Stewart:

Just a question.

I just– the purpose of that question is to suggest that maybe an appropriate forum might be a Federal Habeas Corpus Court, the District Court, rather than here where the record is– it’s where your points were never raised as federal questions.

Nathan Greenberg:

May I just state this to the Court, if Your Honor please.

I note my time is running out.

In as much as a right to review had not been lost because of the laps of time, we sought to come up by way of application for the writ of certiorari and we want to make this abundantly clear to Your Honors that we thought that we should appeal in this fashion rather than go to the–

Byron R. White:

Isn’t it also clear, however, that you did raise a good number of federal issues?

Nathan Greenberg:

Oh, yes.

Byron R. White:

For both the Trial Court and the State Supreme Court.

Nathan Greenberg:

Absolutely, sir.

Byron R. White:

And had them decided in the State Supreme Court.

Nathan Greenberg:

Yes, sir.

Byron R. White:

But you didn’t bring any of them here?

Nathan Greenberg:

No, sir, not those.

Byron R. White:

And it’s– the only one you brought here was one that you never took to State Court.

Nathan Greenberg:

That’s correct.

We reserved Bills of Exceptions in connection with this matter, but it was on a state statute.

William J. Brennan, Jr.:

And, what’s your ground?

I gather, the Fourth and Fifth Amendment questions that you raised, weren’t they?

Nathan Greenberg:

That’s correct.

William J. Brennan, Jr.:

I gather this is neither.

Nathan Greenberg:

No.

You must have been surprised if we granted this petition.

Nathan Greenberg:

Well, I was hopefully —

Byron R. White:

Apparently, we are, too, now.

Potter Stewart:

There used to be a requirement before you could go into federal habeas corpus that you must have petitioned for certiorari here, but that hasn’t been true for many years.

Nathan Greenberg:

Well, we felt that we should try this anyway because the delays have not expired.

Potter Stewart:

Right.

Nathan Greenberg:

We thank you for your consideration.

Potter Stewart:

And sentenced to death the next day.

Nathan Greenberg:

Yes, sir, he had.

Potter Stewart:

Stayed with the State Court?

Nathan Greenberg:

Yes, sir.

Earl Warren:

Very well.

Mr. Hufft.

Preston H. Hufft:

If Your Honor please, I represent the state in this matter.

Before starting out, I’d like to point just one brief comment with respect to Spencer.

Spencer was decided in January 23, 1967.

We argued this case before the Supreme Court of Louisiana in December 1967 and the opinion was handed down in January 15, 1968, almost a year after Spencer.

Now, just to review when —

William J. Brennan, Jr.:

What would say– you mean, that Spencer —

Preston H. Hufft:

Spencer was —

William J. Brennan, Jr.:

Was available at the time of argument.

Preston H. Hufft:

Almost been for a year when we argued the case before the Supreme Court of Louisiana.

William J. Brennan, Jr.:

And, Spencer was not relied on–

Preston H. Hufft:

No, sir.

William J. Brennan, Jr.:

Either in brief or in oral?

Preston H. Hufft:

Spencer was not relied on.

The only constitutional issues raised, federal questions raised in the state proceedings was one on the question of the search warrants by the que– of evidence and this Supreme Court that just decided the Warden case which was in point, and the State Supreme Court used that and disposed of the question of the search warrants.

He also raised the question with respect to Miranda that this case was instituted prior to Miranda, and the Supreme Court of our state made note of the fact that the Johnson case would apply since we got started before hand and, also, took special note, as we had also briefed, that even if this case had started after Miranda, this case met the test of Miranda.

I know that to really picture that the images go into the facts so we’ll see exactly what we’re dealing with here.

Byron R. White:

There was also a Schmerber point, wasn’t there?

Preston H. Hufft:

Sir?

Byron R. White:

A Schmerber point?

Preston H. Hufft:

I don’t recall, sir.

Byron R. White:

But your Supreme Court relied on Schmerber v. California.

Preston H. Hufft:

Yes, well they were– it’s one of the cases that– it’s a California case about the drunken driver.

They did cite it, sir, in their opinion.

Byron R. White:

And had to do with hair and the blood of the victim?

Preston H. Hufft:

Right, sir.

That, of course, the Warden case came in and we decided on the Warden case to eliminate all questions.

That was one of the cases cited, but the Warden case was compelling because we were– they objected to the fact that we had issued search warrants in order to search for evidence, and we raised the Gouled case and the Warden case came out directly on point and we had no trouble whatsoever, at least our State Court didn’t, disposing of that question.

Now, these are the facts of the case.

This man lived in Marrero, Louisiana which is a Parish in Jefferson, right across the river from Louisia– I mean, New Orleans.

Plaquemine Parish adjoins Jefferson Parish and also, in a little tip, adjoins New Orleans Parish.

This man came across the river from Jefferson Parish, went into the downtown area of New Orleans, picked up this girl in a bar, had– this is the victim I’m talking about now, had several drinks with her, went from place to place.

During the course of the night, one witness identified that the man, the defendant, had stopped in for gas and then sped off and he heard the scream of a woman in the car that helped her out.

She was being held in the trunk.

It then develops that the defendant was– admits being at the scene.

He admits the fact that he had blood on his hand, his car, his clothes, and the scene at which we found the victim.

He rode around town that night, finally fled the State of Louisiana, and we issued a warrant for his arrest.

Based on the information, the people who had seen them together at the bars and the nightclubs, the service attendant who recognized him, recognized his car, and so forth and so on.

He fled to finally wound up in the State of Arizona in Tucson.

Preston H. Hufft:

One night, just walking down the street in Tucson, he flagged two policemen and said “Take me in, I’ve committed a crime.”

They said, “Wait a minute, let us give you your rights” and they gave the man his rights under Escobedo.

“In fact, you don’t have to say anything you say it, it can be used against you and you have a right to contact an attorney,” and they took the man in.

The man then still didn’t know what his choice, well at least the police didn’t.

The police had a difficult time to verify the choice because the man said that he had committed a crime in New Orleans Parish.

Well, not knowing to him, he had just crossed the line and had murdered the girl in Plaquemine Parish.

So, the police in Tucson didn’t’ really had the opportunity to either check his stories and see why he was wanted.

Now, in Tucson, talking to these policemen, in which, our State Court, and the Trial Court also, said it was a very relaxed conversation.

He was a man who wanted to get something off of his chest.

He’s a man who flagged the policeman down, the man who wanted to talk about something that had occurred, to talk to the policeman who knew nothing about it.

And, our Court and the State Supreme Court ruled, of course, the Johnson case was applicable where they said even in the– over and above the Johnson case, they felt this confession met that comment in the Miranda case, that you don’t have to stop a man when he walks to the police and flags you down and wants to get something off of his chest.

So, in this writ, there’s no issue raised whatsoever as to the voluntary nature of this confession and this confession meets all the tests of being voluntary.

The only issue arises are the following testimony in which this police officer from Tucson gave the defendant’s confession.

Included in that confession, was this comment and I’ll read it for the Court.

This is the police officer talking.

Potter Stewart:

Where are you in the appendix?

What page?

Preston H. Hufft:

That’s– I’m not in the appendix.

Potter Stewart:

I see.

Preston H. Hufft:

This is on page 5 of my brief, sir.

Potter Stewart:

I see.

Thank you.

Preston H. Hufft:

“Yes, he did.

He told me that, several months prior to this taking place, he picked up a woman whom he described is a prostitute downtown in New Orleans.”

Earl Warren:

What was the preceding question about that?

Preston H. Hufft:

They asked him if wel– weather or not he had walked in this– I’ll just put it this way now.

During the course of his relating the confession, when the police officer arrived at the point in which he was then going to relate this comment relative to the previous incident, the defense objected and has a long protracted argument.

And, after the Court had ruled that this was admissible on the basis that it was part of the confession and under the state statute, it– the confession had to be used in its entirety and this was admissible.

So, this picks up right after the argument in the decision of the trial judge that that question was admissible.

Byron R. White:

Was there is a specific question and direct examination that calls for this prior crime?

Preston H. Hufft:

There may have been.

If I please– I’m not quite certain.

I believe there was a particular question because it has been raised at– earlier in the preliminary statement, in order to introduce the profession, it had been mentioned in the preliminary statement and an argument had ensued on that basis.

This statement had been mentioned when the judge took under the questions whether or not the confession was voluntary, and this comes now for the first time that the jury has heard this actual testimony and I would imagine to say it was in the form of a question, knowing the stopping, so as to make certain that all the arguments are presented thereto.

Thurgood Marshall:

Why did you make that?

Preston H. Hufft:

Well, sir, we did this– we– in the introduction of this evidence, we go on a– went on a two-pronged attack in so far as the introduction.

Number one, we said under the state statute, Title 15450, it says that if you use a confession, the confession must be used in its entirety.

Thurgood Marshall:

And do you agree with the type of petition that that is for the protection of the defendant?

Preston H. Hufft:

Well, I’ll say this.

This is a state statute which does not give the district attorney any discretion for him to say what he shall put in, what he shall not put in.

This is meant for the protection of the defendant, yes, sir.

Thurgood Marshall:

Well, couldn’t —

Preston H. Hufft:

It’s meant —

Thurgood Marshall:

He waive that protection?

Preston H. Hufft:

There is no provision to waive that protection.

Thurgood Marshall:

Well, didn’t —

Preston H. Hufft:

The —

Thurgood Marshall:

He object?

Preston H. Hufft:

He objected, yes, sir.

Thurgood Marshall:

Well, wasn’t that as far as he could go toward waiving it?

Preston H. Hufft:

I suppose he could go toward waiving it, yes, sir, but the state statute —

Thurgood Marshall:

Well, my final question is, did it help him?

Preston H. Hufft:

The waive — objection?

Thurgood Marshall:

No, I — didn’t this testimony help the defendant?

Preston H. Hufft:

No, sir.

Thurgood Marshall:

So, you weren’t helping him, were you?

Preston H. Hufft:

No, sir.

Well, I’m trying to get over this point, if Your Honor please.

Thurgood Marshall:

You were giving the jury — the theory that this man was the type of man who went around murdering women.

Preston H. Hufft:

No, sir.

Preston H. Hufft:

I say this —

Thurgood Marshall:

Isn’t that what you did?

Preston H. Hufft:

Well, Mr. Justice, I’ll say this.

We had two bases upon which we said this testimony was admissible.

Were very strong then and very strong now.

This testimony was admissible because the law said in the State of Louisiana that, to use the confession, you’ve got to use the confession in its entirety.

Secondly, and we argued very strenuously and still do here, that this testimony was appropriate, was admissible because it intended to show motive and intent.

Thurgood Marshall:

That —

Preston H. Hufft:

This was one of those instances —

Thurgood Marshall:

That he made a business of murdering women?

Preston H. Hufft:

That’s what I — when you look at the circumstances–

Thurgood Marshall:

Is that what you — the impression you were giving the jury?

Preston H. Hufft:

Well, again, the circumstance is so.

When you read his statement in which he says exactly what took place in this prior incident, what took place in a crime in which we’ve charged him, they’re almost identical incidents.

And, we show that this man, on the basis that someone would complain against him, and these are his very words I’m going to read you, “would take a gun and kill that person for having complained against him.”

And, we say that’s essential.

Thurgood Marshall:

So, you’re not leaving — you’re not relying on the statute.

Preston H. Hufft:

Sir, we had two bases.

The statute said we had to do it and we also say it’s admissible.

Thurgood Marshall:

I see.

Preston H. Hufft:

Now, this is the man’s statement, if I get back to it.

“Yes, he did.

He told me that, several months prior to this taking place, he picked up a woman whom he described as a prostitute downtown in New Orleans, that after having several drinks together, they had intercourse and then, in his statement in his own words, she went down on me.

He then said that an argument– that after an argument that she slapped him and he backed-hand her.

Then, he said that, a while later, she signed a complaint against him for backhanding her and that he received the sentence of 90 days.

Of which, he did 45.

He said that, immediately after getting out of jail from doing the 45 days, that he went out and got a gun and looked for two or three nights for her downtown in the area where he had first seen her with the intention of killing her because she had signed a complaint against him.”

Present case, the facts almost identical because we have no witness to say what really happened in that argument view because this victim we have wasn’t quite as fortunate as the first woman.

He didn’t find her.

The victim we have in the second question was murdered.

Preston H. Hufft:

Now, that was the — this is the entire statement.

That — what I just read is the entire statement the jury heard with reference to this.

We say that, under our statute, we had no alternative.

We had to produce he’s statement in its entirety.

So, where the lower Court ruled, that’s the way the Supreme Court of Louisiana ruled in a long line of decisions.

Now, we don’t —

Earl Warren:

May I ask you as a matter of practice in Louisiana where you have a man under interrogation for hours, as happens in all states, do you, in presenting your case to the jury, relate everything that happened in those– during those hours?

Preston H. Hufft:

Yes, sir, I would for this reason, and this is —

Earl Warren:

I’m —

Preston H. Hufft:

This —

Earl Warren:

I’m not asking what you would.

Preston H. Hufft:

This we did do in our office —

Earl Warren:

I’m asking you, as a practice, if that is done.

Preston H. Hufft:

In our area, yes, sir, for this reason.

This statute was intended that this man would have the benefit of having the jury hear his confession in the same way he gave it.

Now, whatever he may consider to be irrelevant or not, a juror may attest a certain way, too, and one of the reasons for putting this statute in was not to give me, as a prosecutor, the opportunity to ser — determine what I should withhold, what I should keep in the background or having it with a conference between myself and the defense hits it, you’ve got to tell the jury everything just like the man told it to you.

You’ve got to relay all the instances and let the jury draw their own conclusions with respect to this individual’s testi — confession, and that’s what was done —

Earl Warren:

Did you, at the time you took the confession by questioning the review of the man’s life and get all of the sort of things that might have occurred in his life and then attach that to the —

Preston H. Hufft:

Well, you see, if Your Honor —

Earl Warren:

Confession and introduce it?

Preston H. Hufft:

If the Chief Justice would please, this is not that kind of a case.

This is a case in Tucson where the man was walking, in which they have no background whatsoever on the man, no opportunity whatsoever to —

Earl Warren:

Well, that’s his background.

Preston H. Hufft:

This is background to this third lie.

Yes, but this is not a question for them to ask him questions concerning this.

This is something the man volunteered, came up with his own free will, talking to people who had no opportunity even to search back to the term in what they were considering.

It’s an entirely different situation, and that question did not arise in this particular instance.

Now, we say this information was essential over and above the statute, and we call — we contend in our brief that he has no comfort whatsoever in Spencer.

Abe Fortas:

That so, would you make a distinction between the application of a Louisiana statute to a written confession and to this kind of a situation?

That is to say, what happened here is that the petitioner talked to the police in Tucson and told — I suppose he told them a lot of things.

Abe Fortas:

Now, would you make a distinction between — and then the police officer took the stand in Louisiana and testified.

Preston H. Hufft:

Correct, sir.

Abe Fortas:

Now, is there a distinction in the application of the Louisiana statute between that kind of situation and a written confession with respect to what is appropriate and what’s not appropriate?

Preston H. Hufft:

No, sir, there’s no distinction.

Abe Fortas:

As a matter of commonsense, it would seem that maybe you could make such a distinction.

Preston H. Hufft:

There is no distinction made in the jurisprudence of the state.

Abe Fortas:

Yes, I noticed here that, actually, the state knew about the previous offense and its relationship with this other woman, as appears on page 509 of the typed transcript, that that was elicited by — from the police officer, the Tucson police officer, by question of the prosecuting attorney.

Preston H. Hufft:

Yes, as I said before, if Your Honor please, they had given the background when this was mentioned in the old case in which we had to mention, in order to have it, appear in the trial and use it.

When it was mentioned that it was considerable argument as to whether or not this police officer could state this part of the confession, when the confession was heard by the trial judge as to whether or not it was voluntary, argument ensued on this particular point.

When the thing was founded presented to the jury, the trial judge had ruled.

It went on into the confession and then came this point, and it came at this point with the question where it was stopped on the basis that defendant, again, raised their objection when it was being presented to the jury — the presence of the jury.

He objected three times.

And, it was in the course knowing when these objections were coming out and affording the defendant the opportunity —

Abe Fortas:

Well I suppose —

Preston H. Hufft:

To go ahead and object.

Abe Fortas:

Yes, I understand, but I suppose that it’s at least arguable that the question is, what is the confession?

Now, when you have a written confession that is a confession, when you have a police officer testifying as to what the defendant told him, I suppose it’s questionable as to what is the — it’s arguable anyway that, what is the confession within the meaning and intendment of this Louisiana statute?

He might have told him all sorts of things that, all lawyers would agree, are not admissible in the course of the conversation between the defendant and the police officer, isn’t that conceivable?

Preston H. Hufft:

Well, the theory behind this particular statute, as I view it, sir, is the fact that they don’t give me, as a prosecutor, the discretion to say what I should or should not put in.

Abe Fortas:

I understand that but, on the other hand, the question is whether that statute should — has a different implication with respect to a written confession.

Preston H. Hufft:

No, sir, it —

Abe Fortas:

Or — and, with respect to what the policeman says now.

Would you take the position that everything, everything that the defendant told the police officer in Tucson is admi– not only admissible, but has to be received in evidence?

Preston H. Hufft:

Correct, sir, it’s part of —

Abe Fortas:

Because everything he said is part of the confession, whether it properly relates to this crime or not.

Preston H. Hufft:

Correct, sir, that’s what the statute says and that’s the way —

Abe Fortas:

Well that’s impossible and, I suppose, that it would be impossible for the police officer to do that and maybe if they taped every word he said, the defendant said, they could do it.

Preston H. Hufft:

Of course, if Your Honor please, he doesn’t have to say every word, but of course he has to give the — a substance under the jurisprudence but he cannot leave out items such as that that he figures to be irrelevant under the state statute.

William J. Brennan, Jr.:

No, but after the statute, what it says is it has to be a confession, an admission, or a declaration, and it has to be something that the prosecutor intends to use.

And, I gather, the Supreme Court — your Supreme Court have said here, in any event, that this was, I don’t know whether it’s a confession, admission, or a declaration but in any event, it’s obtained within the four corners of the statute.

Preston H. Hufft:

Correct, sir.

William J. Brennan, Jr.:

That’s what your Court has said.

Preston H. Hufft:

Yes, sir.

William J. Brennan, Jr.:

I suppose we’re concluded by that so far as this testimony of the Tucson officer is concerned, aren’t we?

That’s your — The statute covers it, right?

Preston H. Hufft:

Yes, sir.

Potter Stewart:

Can I ask you a question.

Did your State Court consider this under the common law rule about it?

Preston H. Hufft:

Our State Court, if Your Honor please, considered it under Title 15.

This statute —

Potter Stewart:

What does it say?

Preston H. Hufft:

And also, we have two other statutes which we’ve mentioned with respect to the admissibility of previous offenses when they tend to show motive, mode of operation, guilty, knowledge, and so forth and so on —

Potter Stewart:

Did they–

Preston H. Hufft:

Within the traditional cases that this Court has recognized.

Potter Stewart:

But the Courts considered it at the last —

Preston H. Hufft:

No, sir, the Trial Court ruled that it had to come in on the basis that it was part of the confession, and our State Supreme Court did not go.

But we briefed both issues, but the State Supreme Court arrived at one issue and said “This is determinative,” and didn’t reach the other question.

But, we’ve raised them both times.

We argue both of them here on the very same basis.

We — quickly winding up when one — also, the question of Spencer, we say, does not give any hope or encouragement with respect to the peti — position of the defendant.

Spencer would not entitle him to set the statute aside.

He may have a different opinion as to what it should be, but the statute says that is what the — we should do.

It’s a rule of evidence in the State of Louisiana ans on the books for many, many years —

Earl Warren:

Finish your sentence.

Preston H. Hufft:

It’s been on the books for many, many years.

We think it’s an essential part.

It is not violative of the Fourteenth Amendment.

He relies on the gentle fairness approach, such as they did in Spencer.

This is not a Berget case where he has a denial of a specific federal right.

There is no specific federal right involved here.

Earl Warren:

We’ll recess now, Mr. Hufft.

Preston H. Hufft:

Thank you, sir.

That the Spencer case applicable in this instance would uphold this statute of the State of Louisiana, and I refer to this particular language in the statute that it would be wholly unjustified, encroached by this Court upon the constitutional powers of the states to promulgate their own rules of evidence to try their own state created crimes in their own State Courts.

I also point out that the Berget case was — this Court decided after the Spencer decision, I take no issue with that case either.

The Berget case found that there was a specific federal constitutional right involved.

The question of this defendant had been denied the right of counsel in one of his state prosecutions, and that this Court wasn’t going to allow error to be piled on top of an error and allow him to be denied it at a second time and, rightfully so, in the Berget case.

We also take the position that even under the minority decision in the Spencer case, that this evidence which we introduced meets the test that this Court was talking about in all of its decisions.

This information was essential.

This — under the state law in which this man was being prosecuted, he was charged with murder.

Under our State Code, murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.

In furtherance of carrying out our responsibility to prove intent as a necessary ingredient of the crime of murder, this evidence was inadmissible.

I’ve cited several state cases directly on point in which they deal with the question that when intent is a necessary ingredient of the crime charged, it’s something which goes to the determination of the issue directly before the jury with respect to intent, that it is admissible in a long list of cases in our jurisprudence, and those cases have also been recognized by this Court that they are exceptions to that general rule.

We say we fall under it, number one, because it’s our statute.

It would not be within the providence of this Court to rewrite that statute under Spencer.

Secondly, even if this Court were to say that that statute would be unconstitutional, we say that this evidence is admissible.

On the other decisions of this Court and other State Court, on the basis that we were showing motive and intent, and when you look at the brief — in my brief, if Your Honors please, on page 18, I’ve laid side-by-side the facts in this case in which we charge this man with murder and the facts of the previous incident.

He’s come across the river, the same area of town, picks up a girl in the same area, has drinks with her, commits certain acts, one winds up where she complains, he gets a gun and goes out with intent to kill her because she complained of his conduct.

And, we say the second girl wasn’t quite so lucky.

She was killed before she could complain.

Now, we say this draws a definite parallel and this is essential information.

It was information that the state was required to put in, in order to prove intent and we carried our responsibility with respect thereto.

Potter Stewart:

Your view is under the (Inaudible).

Preston H. Hufft:

Yes, sir, that’s our position.

Potter Stewart:

Let me ask you this.

Your State Courts, taking the other route and a whole other statute and had it turned.

Was that statute construed in the same fashion (Inaudible).

Preston H. Hufft:

Yes, sir.

The statute which says the entire confession must be used in its entirety.

Potter Stewart:

Yes?

Preston H. Hufft:

Yes, sir.

Preston H. Hufft:

Long line of decisions.

Potter Stewart:

Do you think any other than involuntary statements?

Preston H. Hufft:

Yes, it’s a general rule with respect to any —

Potter Stewart:

All statutes say that?

Preston H. Hufft:

Right, sir.

Potter Stewart:

It’s construed in this case then that before a county can issue the instruction of that statute, they must consider, in general, the statute with respect to other involuntary statements saying that he wasn’t —

Preston H. Hufft:

Yes, if it’s part of the confession, it has to be introduced.

Potter Stewart:

You said those other earlier cases in order to dissent from the —

Preston H. Hufft:

Well, yes, sir.

The — They start up with Mani case.

In fact, the evidence case which was decided by our State Supreme Court just prior to this case, came up to this Court and which were refused, involving the very same principles under 444 and 446 on the intent and also under the use of this statute.

Like I said, I didn’t brief the question about whether the case should be here.

I didn’t believe it should be, but I just took the position that you had granted it and I was —

Byron R. White:

Didn’t you reach that?

Preston H. Hufft:

No, sir.

It did not.

I —

Byron R. White:

It didn’t say touch.

Preston H. Hufft:

My brief says —

Byron R. White:

The constitution is a little late.

Do you think that’s true?

Preston H. Hufft:

No, sir.

What I’m doing, sir, is really answering that which he has inserted in his application in which the application was granted.

Byron R. White:

Do you object to our deciding this case under jurisdiction?

Preston H. Hufft:

No, sir.

I don’t believe it has jurisdiction, sir.

Byron R. White:

So, you do object to our deciding this case at all on jurisdiction.

Preston H. Hufft:

Yes, sir.

I don’t believe it has jurisdiction.

I didn’t then and I didn’t brief it on the basis that the writs will be in the —

Byron R. White:

Because we’ve (Inaudible).

Preston H. Hufft:

Yes, sir, and I just then — in my brief, I’ve concerned myself with answering the Georgia’s — and I say, even if you had jurisdiction, I say we answer all of his charges.I’ll make just one quick closing comment, if Your Honors please.

Isthat there was some reference —

Earl Warren:

How about your brief in opposition in the application for the writ of certiorari?

Preston H. Hufft:

I use the same reasoning with perspective that as I did with the other ones, with my brief in this, sir.

Earl Warren:

You can, in that situation, say that you didn’t make the cut being a primary matter and not —

Well.

Before we granted it.

Preston H. Hufft:

I say my reasoning then was the same as in that instance.

I presumed on the basis when you — when I was asked or a brief on response to the points, raised by him that the other question was already resolved.

Now that’s my — in that respect.

Earl Warren:

How would you think that was resolved by this if all we have was this petition and they’re waiting for you to defy your opposition?

Preston H. Hufft:

Well, all I say is that’s the conclusion I reached, and that’s why it’s not mentioned in there, if Your Honor please.

I make this argument when we mentioned Witherspoon before.

I mentioned it here because some question was raised as to whether or not a state had shifted its position in a question raised about fairness.

I know the — in the Berget place, we were — the Court says we are not be concerned with the question of good faith, but I wanted to bring up one thing with Witherspoon.

We have met the requirements of Witherspoon in this very case which was long before this Court decided Witherspoon.

We have a statute similar to Illinois and Louisiana.

We had a man who said he was opposed to capital punishment.

We questioned the man until he finally reached the point when he said “Well, I couldn’t, under any circumstances,” and we allowed that man go and we did not charge him, and such a juror did serve in this case.

Potter Stewart:

Of course, that’s not a question, in that —

Preston H. Hufft:

No, sir.

Potter Stewart:

A is before us or B if it were, if they were before us, then we could possibly decide without having the warranty —

Preston H. Hufft:

Correct sir.

I understand.

I mentioned that only in question with basis of good faith as the situation goes.

I have no further questions.

Thank you, Your Honors.

Earl Warren:

Mr. Greenberg.

Nathan Greenberg:

May it please the Court.

Nathan Greenberg:

I merely would like to call two matters to the Court’s attention.

At page 4 and 5 of the appendix, we set forth the chronology of events and, in the bottom of page 4, it indicates that the case was concluded Friday, May 6, that the defendant — of 1966, the defendant was sentenced to death on July 19, 1966.

And, on October 6, 1966, the per curiam on the Bill of Exceptions were signed by the Trial Court.

Now, under Louisiana law, the rule which was in existence at that time was that, upon signing of the Bill of Exceptions, a Trial Court is divested of jurisdiction and any Bills filed thereafter and presented to the judge for his signature in per curiam come too late and cannot be considered on appeal.

And, this is the decision of State versus Harrell, 228 Louisiana 434, 82 Southern 2nd 701.

Now —

Byron R. White:

Is it true they even recommended that there’d be admissions to get into a law?

Nathan Greenberg:

Yes, sir, absolutely.

Now, the law has since been changed in Louisiana.

We now have a new Code of Criminal Procedure.

However, this case was tried prior to the effective date of the Code of Criminal Procedure.

Spencer versus the State of Texas, which focused attention on the issue raised herein, was decided — or it was rather argued on October 17 and 8, 1966 and was decided January 23, 1967 which, of course, was subsequent to the taking of the appeal, the filing of the Bills of Exceptions, and the rendition of the per curiam by the Trial Court.

And, we also wish to call Your Honors’ attention to the decision of O’Conner versus Ohio decided by Your Honors in 1966, 87 Supreme Court 252, 385 US 92, in which case Your Honors actually took jurisdiction of a matter which have not been raised in the Trial Court and held that, since the defendant was not in the position to literally foresee the action which Your Honors were going to take in this particular case —

Potter Stewart:

That’s got something to do with the comment rule.

Nathan Greenberg:

Yes, sir.

Potter Stewart:

You had a comment rule on the defendant’s failure to testify which is —

Nathan Greenberg:

Yes, and we respect–

Potter Stewart:

Really the Spencer case, it’s more of the Spencer dissent that you rely on, isn’t it?

Nathan Greenberg:

Yes, sir.

We actually pinpoint the issue in the Spencer dissent which, literally, focused its attention on it.

We respectfully urge favorable consideration of our application.

Thank you, Your Honors.