Ciucci v. Illinois

PETITIONER:Ciucci
RESPONDENT:Illinois
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 157
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 356 US 571 (1958)
ARGUED: Mar 13, 1958
DECIDED: May 19, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – March 13, 1958 in Ciucci v. Illinois

Earl Warren:

Number 157, Vincent Ciucci, Petitioner, versus People of the State of Illinois.

We’ll wait just a moment until the counsel gets in.

Mr. Leighton, you may proceed now.

George N. Leighton:

May it please the Court.

This case is before this Court on grant of certiorari to review judgment of the Supreme Court of Illinois in which the conviction of the defendant in the Criminal Court of Cook County was affirmed and a death sentence imposed.

The federal question which is presented here is whether under the Fourteenth Amendment of the Constitution of the United States, a state can construe the alleged criminal acts of a defendant so as to indict him under four separate indictments, try him four times introducing in evidence against him the same proof showing that he committed four offenses which the state contends are distinct crimes.

Now, if I may be allowed a moment to state the facts of which this question arises, if Your Honors please.

Vincent Ciucci was indicted in the Criminal Court of Cook County charged with the murder of his wife and three children and the incident giving rise to the indictments occurred in the early morning hours of December 5, 1953 when his home was discovered on fire.

The firemen found his wife and his three children dead in the little home they occupied as part of a store that was owned and operated by the Ciucci family.

Ciucci first was indicted separately for the murder of his wife and he was tried in a separate trial and he was found guilty and sentenced to a term of 20 years in the Illinois State Penitentiary.

The State of Illinois does not contradict the facts that at that first trial there was introduced in evidence all of the facts showing the killing of four persons.

The jury considered all these evidence and returned a verdict of guilty and sentenced Ciucci to 20 years imprisonment in the Illinois State Penitentiary.

As soon as that happened the prosecutor for Cook County announced in the newspapers that this was a miscarriage of justice and that he, the prosecutor, was going to see to it that some jury was found that would impose what he thought was an adequate penalty for this crime which he thought enormous.

Are those statements in the newspapers controverted by the State anyway?

George N. Leighton:

They are not, Your Honor.

Now, they proceeded to try him the second time and it is not contradicted that at the second trial, they introduced the same proof that they had submitted to the jury in the first case.

And the jury again, considered the evidence from all that appears adequately and properly and returned a verdict of guilty and sentenced him this time for the murder of his oldest daughter Angeline to a term of 45 years in the Illinois State Penitentiary.

Contemporaneous with that, the prosecutor announced in the newspapers that this also was a miscarriage of justice and that he said, he thought that some jury ought to see what he thought in the matter that only death was a proper penalty for Ciucci.

Now, it happens that in the first trial, they discovered there was some inconsistency in the proof.

There was some question where these three persons had met their deaths by inhalation of carbon monoxide or whether they had come to their deaths by shooting.

So that, the State’s attorney while the three remaining of the four indictments obtained in 1953 remained pending, went before the grand jury and obtained three others.

So, as we point out in this brief at one time, Ciucci had been under six separate indictments charging him with three separate crimes.

In April of 1954 on motion of the prosecution, three of the remaining indictments obtained in 1953 with nolle prosequi on motion of the State and there remained the three indictments obtained in 1954.

After the second trial in which Ciucci was found guilty and sentenced to 45 years in the Illinois State Penitentiary, again, the prosecutor announced this was not satisfactory.

And he proceeded then to try him a third time under the indictment charging him with the murder of his son, Vincent, Jr.

This time when the trial had gone on in a few days a mishap occurred and a mistrial was declared on motion of the defendant.

And then the fourth trial was begun.

And I think that it is clear from this record, and certainly all of us who have had experience in the trial of criminal cases known, that by the simple process of rearranging the evidence they finally — as we argue here, found an arrangement of the evidence, the same proof, the same evidence, but a rearrangement of it by this experience of three trials.

They found an arrangement which convinced the jury that this crime was of the enormity deserving the extreme penalty.

Felix Frankfurter:

In Illinois, according to Illinois law, could there have been a trial for the death of all the victims?

George N. Leighton:

There could be, Your Honor.

Felix Frankfurter:

The State could have tried for the prosecution for the death of all?

George N. Leighton:

They could, Your Honor.

It is not unusual for an indictment to be returned in which there will be one indictment several counts.

It all arose out of the same transaction.

They could have been —

Felix Frankfurter:

Well, that’s normally so.

I wondered if — I’m asking whether they saw there’s a capital offence.

George N. Leighton:

Speaking from personal experience, I have never seen one, but if Your Honor — but it could be it’ll need a little more practice.

In fact that’s the point we make this case, that’s what should have been done in the case like this.

Felix Frankfurter:

Well is there — there must be — if there’s no statutory disposition of the question.

There’s no statute in Illinois which gives an answer to my question.

In case you give an answer to that question.

George N. Leighton:

Sir, I have been —

Felix Frankfurter:

If there is no enactment of the state legislature, which gives me an answer to that question, would I find an answer in some of the decisions of the Supreme Court of Illinois?

George N. Leighton:

I don’t think Your Honor will find an answer to the decision of the Supreme Court of Illinois.

Felix Frankfurter:

And then — the answers — I quote the answers and you can’t answer it, could they?

George N. Leighton:

Well, that might be the most accurate answer possible under circumstances.

However, I would say this to Your Honor that in Illinois, under the Illinois criminal law of practice it is common for the prosecutor to charge in one indictment, under separate count, all of the crimes which are related and which make a part of the same criminal transaction.

Felix Frankfurter:

I can see a difference in that rule with reference to charges of murder.

George N. Leighton:

Yes, Your Honor, there could be a difference.

And Your Honor, there was a difference here and that is — and that I would like to say, is why this case is before this Court.

Felix Frankfurter:

Because it — it — it may make a difference from the out — and I don’t say it is.

I haven’t — there’s nothing on that.

But I should think we have one question.

If a state says “In fairness to the Defendant, we do not allow him to be charged with the murder of more than one human being, and that he can’t be put on trial for the murder of two people before that may have,” — I should think it might easily have “a prejudicial influence upon the jury as against the State who does allow such a trial, chooses not to try the defendant that way but chooses to try him in possession if he commits more than one murder.” I’d like to submit the Court on that.

George N. Leighton:

I think we’d all agree with that, Your Honor except that it sounds a bit inversed if the State were reasoning in that way, to say that they wouldn’t impose upon him a trial in which there is alleged in the indictment, several murders but then at the proof of the case on a construction of a rule of evidence of Illinois as they did in this case relying on People versus Murphy the doctrine of res gestae which is the knob of the contention of the State, that under the doctrine of res gestae, though — and this is where the State’s position in my judgment is a — inconsistent and indefensible.

They say on one hand these are separate and distinct crimes.

But then they said, “And the record is clear and the position of the State of Illinois hasn’t changed one with from the beginning to the day.”

Then they say that while it is a distinct crime we have the right to introduce before a jury the evidence that you committed this great enormous crime consisting of four murders.

Felix Frankfurter:

You understand — did I understand on the first trial there was a disagreement of the jury?

George N. Leighton:

No, Your Honor.

Felix Frankfurter:

Pardon me?

George N. Leighton:

No, Your Honor.

It was not a first —

Felix Frankfurter:

When was there is a disagreement?

George N. Leighton:

It was in the third trial.

There was a mistrial as —

Felix Frankfurter:

There’s then a fourth trial?

George N. Leighton:

Then there was a fourth trial.

Felix Frankfurter:

Now, who was tried —

George N. Leighton:

Which —

Felix Frankfurter:

Take my case.

George N. Leighton:

Yes.

Felix Frankfurter:

Supposed they had a state of (Inaudible) in my mind, suppose the State claims that there were four murders committed —

George N. Leighton:

Yes, Your Honor.

Felix Frankfurter:

In roughly speaking, in — on one occasion, one temporal unit —

George N. Leighton:

Yes.

Felix Frankfurter:

— within one temporal unit, and suppose at the trial for the murder of A and the jury disagrees, I take it under Illinois law there could be a retrial for murder of A.

George N. Leighton:

That’s right, Your Honor.

Felix Frankfurter:

But the State say, “Well, it will not rhyme for the murder of B.”

George N. Leighton:

There is nothing to prevent that if they have separate indictments on the Illinois criminal law of practice.

There is nothing statutorial case law that prevents that.

Felix Frankfurter:

Suppose there’s a mistrial and both the jury disagreed as to C, the then crime for the murder of C under your view?

George N. Leighton:

There is nothing that would prevent that — there is nothing to prevent that.

Felix Frankfurter:

You say, but you say, that if and either an acquittal or a conviction that as it were liquidates the affair?

George N. Leighton:

Yes.

Felix Frankfurter:

That’s your position?

George N. Leighton:

That’s the point, Your Honor.

But if at the trial in which the case resulted either in an acquittal or a conviction in which the same evidence was introduced.

George N. Leighton:

You see Your Honor, the — the constitutional question arises here, in my judgment, it wouldn’t be as pointed if the State had taken a consistent position that these were distinct crimes and that he should have been tried separately for these distinct crimes then punish for the distinct crimes.

But they didn’t do that.

They insist that they were distinct crimes, that they were entitled to the right to show in the jury each time that he committed not only the crime of murdering his wife for which he was tried the first time, not for the crime of murdering his daughter for which he was tried the second time, not the crime for murdering his son which he was tried the third time, but that he committed this heinous crime of wiping out his family.

In fact —

William J. Brennan, Jr.:

Are you saying Mr. Leighton that in each of those several trials, part of the State’s proof was that, in fact, there were four killings not just the one where indictment of which he was on trial?

George N. Leighton:

Yes, Mr. Justice Brennan.

William J. Brennan, Jr.:

And that happened every time?

George N. Leighton:

Each — each time.

In fact, the way the question which is before this Court was raised was by a motion which a — one of the trial attorneys filed raising the question, and it was alleged in allegation which is not successful to understanding, and we cited on page 8 to the brief.

And he alleged that the facts and the evidence upon which the instant indictment, number 54839 is based are the same, that a trial in this instant case will be a retrial of the above and foregoing two-named indictment namely 841 and 532415 which had been previously called.

William J. Brennan, Jr.:

Well, let me get this clear.

Is that to say then, there was actually no difference except as you suggested earlier, perhaps, in the arrangement of the proofs?

George N. Leighton:

The only difference —

William J. Brennan, Jr.:

In the proofs, except that there was a different name on the particular indictment under trial at that time?

George N. Leighton:

That’s right, Your Honor.

William J. Brennan, Jr.:

That is a different name received?

George N. Leighton:

The only difference — the only difference.

And you see, if I may press the point further.

By the time they got to this case, incidentally, they had gone through the matter so often that they had finally had, at the trial of this case, one of the most experienced prosecutors in Cook County.

And the newspaper references showed that Mr. Sam (Inaudible) who had been in the State Attorney’s office some — almost 30 years.

If I’m wrong one — I may stand corrected.

But Sam (Inaudible) was known as one of the most experienced prosecutors in Cook County.

He’d been through several administrations of the Cook County — of the State Attorney’s office.

So that — it was by the rearrangement of proof and incidentally, if Your Honor please, in the Supreme Court of Illinois we raised that point, that it was this rearrangement of the —

William J. Brennan, Jr.:

Before you get to that.

Can you say shortly what the rearrangement was?

George N. Leighton:

Well, they started off this time with putting on Carol Amora, the young girl, whom he had seduced and who had a child for him.

They had tried in the various cases to put Carol Amora in the middle of the trial or at the end of the trial.

And in this trial, they started off with Carol Amora.

And in the opinion of the Supreme Court, the opinion which is published in the record of this case, we pointed out that in allowing Carol Amora to testify first about her illicit relationship with this defendant for bearing a child, they even went to the point of bringing out that he had swindled her out of $300 to buy a Cadillac.

George N. Leighton:

They started off with that frame of mind on the jury that he was not a murderer but as the state’s attorney said before the Supreme Court, a stinger, a rocker, that’s how they started the fourth and final trial.

In that tone, this was not a man who had the innocence of heart to wipe out his family but a man also, who would seduce a young girl of 18.

That’s how they started the fourth trial, by this rearrangement of proof.

Felix Frankfurter:

Let me ask you this question, that’s bearing on — your to enlighten my mind on singular against collective offenses.

Suppose he had attempted to murder — the part that they should meet —

George N. Leighton:

Yes, sir.

Felix Frankfurter:

Supposed he’d attempted to murder his family, wife and three children, and he had failed in his purpose but they were all injured so that there’s manslaughter or some other — a high degree of that whatever it should be called in Illinois, under the Illinois Penal Code, as I understood you, certainly as to those cases there could be trial of all four before the attack on all four, is that right?

George N. Leighton:

Yes, Your Honor.

Felix Frankfurter:

Now, would you mind expressing your view whether there could be punishment, accumulated punishment for each of the victims could pose the maximum was 10 years for the particular offense that the Court give a sentence of 40 years?

George N. Leighton:

That’s not — that’s not what they do in Illinois.

Now, if he were tried in the fashion, Your Honor’s suggestion, Your Honor’s hypothetical case, he would give — be given one sentence in a manner informed as charged in the indictment and he would be sentenced for the crime charged in the indictment.

Felix Frankfurter:

Now, what makes you say that?

Is there some decision of Illinois which says, if a person by one comprehensive deed, brings injury, violence, mens rea injury to for four people we cannot be given more than the maximum of one person.

George N. Leighton:

No, Your Honor.

There is no statute in Illinois so provided.

However —

Felix Frankfurter:

Do you have any decision that should be right on that problem?

George N. Leighton:

Yes, there are decisions on that for which I cannot give, Your Honor, one right at this moment.

However, I would say this.

The custom in practice in — under Illinois criminal law in such a case as, Your Honor puts, is to impose if there are separate findings of guilty as to each count.

If there are, is to impose sentences on those findings to run as a rule concurrent with.

Now, that — that’s the usual custom.

It is rare indeed —

Felix Frankfurter:

No doubt a court — no doubt a court, I suppose can do that.

What I want to know is what the requirements of Illinois law are, limiting that power or allowing a trial judge to make accumulate — give accumulated sentence?

George N. Leighton:

The requirement —

Felix Frankfurter:

— even if he puts forth —

George N. Leighton:

Yes.

Felix Frankfurter:

Put before (Inaudible) et cetera, attempted — take attempted murder.

What is the punishment of Illinois for attempted murder?

George N. Leighton:

Well, under the law of attempt, the punishment is the same as the crime for which the — the attempt was made.

Felix Frankfurter:

So that is death for attempted murder?

George N. Leighton:

Yes.

Well —

Felix Frankfurter:

That sounds shocking to me.

George N. Leighton:

It will be a felony under Illinois, punishable under the code.

Felix Frankfurter:

Without any limit?

George N. Leighton:

Without any limit.

Now, to answer Your Honor’s question, though, so as I may not mislead, Your Honor.

In the case you put, now that I have understood Your Honor’s point, there is nothing to delimit the Court’s power in imposing separate penalties for each count.

If there —

Felix Frankfurter:

Filing them on.

George N. Leighton:

Yes.

If there is a separate finding.

But there is this much to be said in Illinois practice.

There is a discretion given to the Court to compel an election.

You see, Your Honor the question you put brings up the question which is raised here.

If this procedure were followed in the Ciucci case, then Ciucci would have had the opportunity to have moved to compel the State to have elected on which count they were proceeding, and then the question could have been raised, he would have had his hearing right there and then as to that.

All the procedural safeguards against the multiplicity of prosecutions would have been afforded him if such a — a proceeding had been instituted by the state —

Felix Frankfurter:

But there are lots of — there are lots of things in the administration of criminal justice that a humane and wise system would enforce by a state law the absolute which doesn’t make a violation of the Due Process Clause.

All the things you’ve indicated that are maybe your prosecution-elect or looking in the direction not multiplying.

But we’re here concerned as well, whatever maybe Illinois law, in her own good or bad wisdom, it — it transgresses the Fourteenth Amendment.

That’s the question, isn’t it?

George N. Leighton:

Yes.

But, Your Honor, in this case we also have the question which we raised here.

That this is not the exercise of the sovereign power of Illinois to correct what is considered to be a criminal act.

This is an arbitrary use of state power because it would be just as if any state officer should decide to arbitrarily or discriminatorily impose a state act against a citizen of the United States without going through the details, Your Honors have held consistently, that an arbitrary discriminate use of state power against the citizens of the United States so as deprive him of his life liberty is a denial of due process.

This case puts out the fact that Ciucci was treated in a manner solely to obtain the extreme penalty and that he was tried several times and because the prosecutor had in his mind that the only way to punish this man is to put him to death.

Now —

Is the question of life or death a matter for the jury under Illinois law?

George N. Leighton:

Your Honor —

Did they fix the death sentence in the Court?

George N. Leighton:

If the jury — if the case is — it’s a trial by jury, the jury fixes the penalty in murder.

Well, that’s to this case —

George N. Leighton:

Yes.

It was a function of the jury to say whether this man —

George N. Leighton:

That — that’s right.

— should be given a capital sentence to death?

George N. Leighton:

Yes, Your Honor.

In Illinois in — for trial for murder and if it’s tried by the Court, it’s for the Court to set the penalty.

Yes.

George N. Leighton:

Now —

This was a jury case all four of them, weren’t they?

George N. Leighton:

That’s right, Your Honor.

They’re all tried by jury.

Now within the time allotted to me, I would like to go to what strikes me as a persuasive point in these cases.

Authorities on the subject, students of this subject have asked the question, “Why is it that in civil proceeding we don’t allow a party who has a cause of action against another party arising out of the same transaction to chop up his cause of action and try it at his own whim and go on before one jury and rearranging his proof at his own discretion and his own arraignment?”

We don’t do that.

In fact it is almost consistent throughout the country that in civil cases we require the individual with a — with a cause of action to bring his case at that time, otherwise, he shall be barred under the doctrine of res judicata.

Now, the question I raise in this case, why should the State of Illinois have greater rights than individual members of its sovereign body?

What is it about the criminal law administration that will allow a — a digression from what is uniformly considered?

Just a simple fairness, that if you have a case against the man bring it all at one time so you may have his one day in Court and defend himself.

Felix Frankfurter:

And this all turns on what the — the case is.

George N. Leighton:

That’s right, Your Honor.

Felix Frankfurter:

So you have — you’re going back to your original starting point as to what the case is.

George N. Leighton:

That is true, Your Honor.

Now, we say that the case here where one is put against the sovereign power of the State, that he should be treated in a manner consistent with fairness, and consistent with fairness within the concepts of the Fourteenth Amendment.

Felix Frankfurter:

So your case, in view what you said earlier, your position is that in this case, in the circumstances of this case in view of the conduct of the district attorney in his behavior, all that has to be taken into account in this case?

George N. Leighton:

That’s right, Your Honor.

Felix Frankfurter:

You’re not saying or are you saying that if by one comprehensive act for dealing, for things that the State of Illinois says, that it was being singled, constitutes a crime, must be tried all in one case.

Felix Frankfurter:

You’re not saying that, are you?

George N. Leighton:

No, but I say that —

Felix Frankfurter:

Are you saying that — that the — the particular relation what the district attorney or whatever he is called, a prosecutor here did and the way he managed these prosecutions, these successive prosecutions, that that’s what — that’s the problem in the view of the complainant?

George N. Leighton:

That’s right — that’s right, Your Honor.

And it was the use by him, a state officer of the state prosecution power in this way that denies the petitioner the protection of the law that we now assert and the Fourteenth Amendment protection.

Now, I have elected, if Your Honors please, to reserve 10 minutes for rebuttal as I understand my time.

Earl Warren:

You may, you may Mr. Leighton.

George N. Leighton:

All right.

Thank you, Your Honor.

William C. Wines:

May it please the Court.

Earl Warren:

Mr. Wines.

William C. Wines:

Your Honors, despite the great importance of this case, not only to petitioner but in the field of constitutional law and criminal jurisprudence, it can be argued briefly and simply, and I know that I won’t be understood as deprecating the importance of the case if I do argue it briefly and simply.

The facts that give emergence to the questions presented in this case can be briefly summarized.

The Petitioner had been engaged in an illicit love affair with a young woman by the name of Carol Amora.

She had conceived a child by him.

He had been refused to divorce by his wife who would yield him only separate maintenance.

On the night in question, in the building in which he live with his wife and three children, was found in flames.

He was found crouched in a doorway.

I can’t hear you.

William C. Wines:

I’m sorry.

He was found — the building in which they live was found in flames.

He was found crouched in the doorway.

The day before the fire, he had borrowed a 22-caliber rifle from a friend saying that he wanted to use it in hunting.

His wife and three children were found dead.

Apparently, overcome by carbon monoxide asphyxiated, but each of them had a hole shot through his or her head, wife, two daughters and son were killed.

The State of Illinois first indicted petitioner for the murder of his wife.

The trial on that case ultimate in a verdict, the jury fixes the penalty in Illinois in a murder case.

We don’t have degrees of murder of 20 years.

He was subsequently tried before another jury for the murder of his daughter and was given 20 — that was given 45 years.

A third case resulted in a mistrial, and in the fourth case a prosecution for the murder of his son, the jury fixed the penalty at death.

William C. Wines:

Petitioner contended, and contends here that he was denied due process of law and that he was subjected to three separate prosecutions, there was one mistrial, four trials but three separate prosecutions, and presumably would have faced a possible fourth prosecution for the death of these four people.

He also contends that it was error to admit in evidence as to each, the scene for which he was tried, respectively, evidence of the deaths of the other members of his family although, all of them perished on the same occasion.

It is the position of the State of Illinois that in accordance with inveterate practice throughout the English-speaking world at least, where a defendant kills or robs or rapes or otherwise injures, or damnifies four a separate persons and is convicted.

I want to emphasize “convicted” for one of such damnifications, that conviction does not bar prosecution for other injuries to other people even though the transactions are contemporaneous.

I will call the Court’s attention to the fact —

William O. Douglas:

— your conclusion I gather would be different if he’s acquitted.

William C. Wines:

I don’t think — it is a different case, Your Honor.

We would be prepared to argue as was argued in the Hoag case —

William O. Douglas:

I was wondering why —

William C. Wines:

That even — even an acquittal would not bar the further prosecution.

That’s an argument I would make but I’m not compelled to make it in this case because it is my position, that even if an acquittal would bar a further prosecution.

William O. Douglas:

You’re not drawing a difference here now?

William C. Wines:

What?

William O. Douglas:

You’re not trying to draw a difference?

William C. Wines:

Yes, I am Your Honor.

I am making — I’m — I’m saying that at least where there is a conviction for one of the four deaths, robberies, larcenies, assaults, rapes, slanders or the like, at least in that case, the Fourteenth Amendment does not bar a second prosecution even if it would bar it in the event of an acquittal.

However, even in the case of an acquittal I would be prepared to argue that there was no denial of due process under the Fourteenth Amendment by successive trials as long as there were separate injuries.

I realized that Your Honors have before you the case of Hoag against New Jersey which is not, as far as I’m aware, been yet decided by this Court.

But in the Hoag case there was an acquittal of the first robbery and that poses a very different question.

Felix Frankfurter:

Mr. Wines, may I put this to you, if you consider it sometime before you sit down that, argumentatively, let me see if I can state on.

There it denies, considering the fact the Hoag case is still before us and the case of — of an acquittal, there is the argument of — of the hazard to the jury trial etcetera, etcetera.

But if there is a conviction and the State tries again, a conviction in which the sentence was short of the ultimate sentence and then is there an escape from the consideration.

I’m not saying it’s controlling of what he does, but as a matter of fact if there was an escape from the consideration that by retrying, having had guilt established but a lower sentence in the alternate sentence, the State is really complaining or not satisfied that does what it does however, you choose to put it because it isn’t satisfied with the heaviness of the sentence.

Isn’t that what — is there an inference unentitiled necessarily to draw.

William C. Wines:

I wouldn’t say necessarily, but it certainly —

Felix Frankfurter:

Well reasonably sensibly.

William C. Wines:

But — but I would say reasonably —

Felix Frankfurter:

Sensibly.

William C. Wines:

— and sensibly.

Felix Frankfurter:

That the State is really — the State wants to get another crack at getting a heavier sentence.

William C. Wines:

I would —

Felix Frankfurter:

By the use of algorithm.

William C. Wines:

Well, I would say Your Honor that —

Felix Frankfurter:

I’m not saying it changes your position.

It was that —

William C. Wines:

I would say — I would say Your Honor that even if — if they had imposed the heaviest sentence provided that sentence hasn’t been death, the state could go ahead and prosecute —

Felix Frankfurter:

Well, I (Voice Overlap) —

William C. Wines:

For — for the other crimes.

Felix Frankfurter:

There is a difference, that’s the whole point.

If — if a jury has it within its power, it has in so many States including Illinois, to say, “No.

We don’t want to send this fellow to death and we merely give him a life sentence,” is not a fair, sensible in this limited powerful world of ours.

Is it a fair inference for me to say that what the State is about — going to get a death sentence although the jury merely gave a life sentence.

William C. Wines:

I think that’s a fair — I think that’s a fair inference.

I don’t think it’s an inevitable or necessary inference.

The state attorney might feel compelled as a matter of duty to prosecute for each of the separate —

William J. Brennan, Jr.:

Well have you prosecuted him for the full extent?

William C. Wines:

No.

William J. Brennan, Jr.:

Why?

William C. Wines:

Well, I presumed that since he is already been sentenced to —

William J. Brennan, Jr.:

To death.

William C. Wines:

— to death.

There would be no —

Felix Frankfurter:

Can’t get two deaths —

William C. Wines:

That’s — that’s —

William J. Brennan, Jr.:

That’s what you wanted?

William C. Wines:

That — that — I – I think — I think that’s a fair inference, Your Honor.

William J. Brennan, Jr.:

It’s more than a fair inference.

It’s — it’s an inevitable inference.

Tom C. Clark:

Was a mistrial — was a mistrial the same victim that the (Inaudible)

William C. Wines:

I – I think not, Your Honor.

William C. Wines:

I think not.

Tom C. Clark:

(Inaudible)

William C. Wines:

I beg your pardon?

Tom C. Clark:

There were four trials then.

William C. Wines:

I didn’t hear, Your Honor.

Tom C. Clark:

I said they were four trials.

William C. Wines:

They were four trials, yes.

Tom C. Clark:

Perhaps, the district attorney figured there’s a mistrial on one.

I wouldn’t try that on oath perhaps.

William J. Brennan, Jr.:

Though as I understand it, the third trial and the fourth trial were for the same death, weren’t they?

In other words a mistrial —

William C. Wines:

I think — I think that’s correct.

William J. Brennan, Jr.:

Yes.

William C. Wines:

I think that’s correct.

William J. Brennan, Jr.:

So that actually he’s never been tried for more than just three deaths?

William C. Wines:

That’s right.

He’s never —

William J. Brennan, Jr.:

He’s never been tried for the fourth death.

William C. Wines:

He’s never been tried for the fourth death.

Felix Frankfurter:

Mr. Wines, would you state with your customary fairness as you will, as one who is much interested in these aspects of these cases.

How much publicity was there about all this business and how much public addressing as it were was there by the prosecutor?

William C. Wines:

The record —

Felix Frankfurter:

To what he’s after.

William C. Wines:

The record doesn’t show, but to answer Your Honor’s question, there was a good deal.

These excerpts from the newspapers are not in the record but it’s not said that they’re not in fact correct.

Felix Frankfurter:

These — there was no motion made by Mr. Leighton in which this matter was brought to the attention of any Court?

William C. Wines:

No, Your Honor.

Hugo L. Black:

Mr. Wines, I’d like to ask you a question.

William C. Wines:

Yes, sir.

Hugo L. Black:

With your answer with Justice Douglas.

Hugo L. Black:

You had made one statement.He asked you a question that applied to acquittal and conviction, that you answered him in a slightly different matter from my standpoint.

Your original statement that least in the English-speaking world as you’ve talked —

William C. Wines:

Yes.

Hugo L. Black:

That insofar as convictions were concerned it had been held that there could be trials of (Inaudible) such as we have here, into different offenses by reason of conviction of damage to different persons.

William C. Wines:

Yes.

Hugo L. Black:

And if you based that on history —

William C. Wines:

Yes.

Hugo L. Black:

Then when you answered promptly, Justice Douglas asked if you are drawing a distinction between the two, you went back to — you didn’t say based on history.

As far as the English-speaking world is concerned that you were talking about, as you’ve investigated, has there been any difference drawn?

William C. Wines:

So far as I know —

Hugo L. Black:

In regard to those two circuits.

William C. Wines:

So far as I know generally speaking, there has not been.

Hugo L. Black:

So that whatever you would say with reference to the convictions, four convictions, the three convictions it apply alike so far as history is concerned four acquittals or three acquittals are forth with.

William C. Wines:

Yes, Your Honor.

My position on that is — is this.

We say, I really think, that due process permits successive trials for successive deaths, assaults, slanders, or similar offenses against individuals, even though the transactions are virtually simultaneous and there is an acquittal in the first or the first two or three of them.

That’s the Hoag case.

But if I’m wrong about that, I say that at least where there is a conviction, the State has a right to take into account the fact that more than one person has been damaged and to inflict successive punishments and penalties for that injury.

Hugo L. Black:

But that distinction you draw is not based as I understand here on different treatment in connection with those —

William C. Wines:

That’s right.

Hugo L. Black:

— in the past.

William C. Wines:

That’s right, Your Honor.

There aren’t too many decisions of this Court directly on the point but I will call Your Honors attention to the case of Flemister against the United States cited and discussed in our briefs in 207 United States, a unanimous opinion by Mr. Justice Holmes.

That case arose in the Philippine Islands.

The accused had struck a policeman and simultaneously assaulted another public official.

He was tried for the first of these offenses, punished, tried for the second, pleaded in effect double jeopardy and Mr. Justice Holmes is writing for a unanimous Court sustained both convictions and held that there was no infraction of the Due Process Clause.

A similar result was reached in the Hotema case, that’s a little different.

There the defendant was indicted for killing three persons on the same day.

In two trials, he was found to have been insane, in the third trial he was found to be sane, and this Court rejected as “wholly without merit” the plea of “once in jeopardy.”

Your Honors have in mind other cases that have been cited in the recent arguments in this case, Your Honors have in mind the mail bag cases where a man who slits several mail bags even though at the same time has been held punishable for each of those offenses, and Your Honors have mind the cases in which it has been held that both the State and federal government may prosecute for the same — or virtually the same Act.

William C. Wines:

I —

Felix Frankfurter:

What case in connection with the mail bag case is?

What cases in this Court, Mr. Wine, or cases that raised not the question of accumulated sentence but successive trials?

William C. Wines:

I don’t know of any.

William O. Douglas:

Well, there was that Philippine case.

William C. Wines:

The Philippine case was successive.

William O. Douglas:

220 (Inaudible) is it?

William C. Wines:

Yes, that’s one.

Felix Frankfurter:

I’m talking about the mail — the mail and narcotic.

You had none of the successive?

William C. Wines:

Yes.

Now, we say this, very earnestly, Your Honors, that while due process is a steadily evolving concept, there are guides of history and it has been as we all know the Welna Universal Consensus throughout the English-speaking world that a man who kills more than one person is subject to several punishments.

States don’t deny due process of law when even though there may be some tincture or parodistic nature of vengeance in the sentence, they punish several offenses.

I have in mind the case that we’re all familiar with which did not reach this Court at least certiorari wasn’t granted where a man blew up an airplane and killed 40 passengers.

Now, we say that there is nothing so shocking to the universal sense of justice about prosecuting that man for a more than one of those deaths as wouldn’t deny due process of law.

It might be that there’s much to be said — I want to be entirely fair in arguing with the Court – for a system of jurisprudence in which there would be only one investigation of guilt and only one punishment for what is in effect one transaction.

But we say, that a State doesn’t deny due process of law when it applies to the maximum, if men will multiply crimes, the state will multiply prosecutions and punishments.

One other contention need detain us for only a moment.

It is contended here that due process was denied because on each of these trials, the state was permitted to show all four of the killings while on the very simplest principles of evidence they were all part of the res gestae, they were all part of a single scheme, they were all part of a single transaction.

Now, petitioner says, ‘Well, if you’re going to treat it that way for the purpose of rules of evidence then it’s all part of one transaction for the purpose of punishment,” we say that, “It was not in accord with the historic contours of the Due Process Clause.”

And we think, that whatever Your Honors might wish to make the law, due process is not denied by multiple prosecutions for multiple crimes.

Felix Frankfurter:

Before you sit down, Mr. Wines —

William C. Wines:

Yes.

Felix Frankfurter:

Would you be good enough to express your view as to the extent to which, if it all, the conduct of the public utterances of the prosecutor relevantly to be taken into account in this case?

William C. Wines:

Well, I don’t think they should be taken into account at all because they’re not a part of the record and after all, we are entitled to a — a hearing on the record.

But if they were a part of the record I would say —

Felix Frankfurter:

But at — at no time — was this the first time that the mention was made to this conduct?

William C. Wines:

So far as I — so far as I know yes, Your Honor.

They’re just — just reprinted as — as appendices to the petitioner’s brief with no — no citation to the record at all.

Felix Frankfurter:

Do the counsel — did he have counsel at the trial?

William C. Wines:

He had counsel at all trials, yes.

Felix Frankfurter:

Same counsel?

William C. Wines:

No.

Felix Frankfurter:

Court appointed counsel?

William C. Wines:

He had a counsel of his own choice in the first trial and he had court-appointed counsel in subsequent trials.

I really am not sure about the second trial.

I should know but I don’t.

Felix Frankfurter:

Well now, assuming you have a right to — you have a right to urge if we can, we must be unmindful of it, but assuming it were in the record and not merely printed in the book, what would you say?

William C. Wines:

I would say, Your Honor that the question —

Felix Frankfurter:

By the way, you — you candidly — I think, it answered Justice Harlan in that question correctly to those —

William C. Wines:

No, I don’t question —

Felix Frankfurter:

I understand (Voice Overlap) —

William C. Wines:

The correctness of quotations —

Felix Frankfurter:

Now, go on from there —

William C. Wines:

But I don’t want to be in —

Felix Frankfurter:

— you — you make your (Inaudible)

William C. Wines:

I would say, Your Honor that the error would not be such as to deny due process.

I would say that that is a matter that could be taken care of, my instructions to the jury.

And I have in mind how difficult it is to erase from a jury’s mind utterances but I don’t think that an in temper utterance of a prosecutor ought to operate —

Felix Frankfurter:

Successive, weren’t they?

According —

William C. Wines:

Successive, yes.

Felix Frankfurter:

But would this matter before the Supreme Court of your State, the conduct of the prosecutor?

William C. Wines:

Not these utterances, no.

Felix Frankfurter:

Any other conduct?

William C. Wines:

I think — oh, yes, it was contended that it shouldn’t have been allowed to — to show the — the other deaths and it was contended that it shouldn’t have been allowed to show the extent of the illicit relations with — with the question of evidence but not — but not as far as these utterances are concerned.

(Inaudible)

William C. Wines:

Not the fact of his previous conviction.

Oh, that’s — that’s a point that I — that I would — that I should discuss.

Now petitioner — petitioner makes the point that he was prevented from trying — from — from testifying on his subsequent trials because had he testified, his original conviction would have been admissible to impeaching.

William C. Wines:

That is correct, but we say that that is in accordance with a very well-set of rules of criminal evidence everywhere, that prior convictions are admissible to impeach when you take the stand and that no question of due process is raised by that.

I’m — I think Mr. Leighton made a slight mistake as to Illinois law.

He said that the punishment for an attempt is the same as a punishment for the commission of a crime.

He’s mistaken about that if he meant to say it.

Have these people not died, to my understanding of the Illinois law, and I’m quite sure I’m correct about it, that the defendant would have been subject to a prosecution for assault with intent to commit murder and the maximum penalty would have been 14 years which is a minimum penalty for murder.

But there is no death penalty in Illinois for an attempted murder that’s not successful.

I don’t think Mr. Leighton meant to say that there was.

Felix Frankfurter:

What is your answer to my question whether there could have been one prosecution for all four deaths?

William C. Wines:

My understanding based on my general knowledge of the Illinois criminal law is just exactly the same as Mr. Leighton’s, but I’m not able to fortify it by a citation —

Felix Frankfurter:

It could be tried —

William C. Wines:

But I’m not able to support it by — by a citation of any decision one way or the other.

Do you know of any (Inaudible)

William C. Wines:

I can’t think of one by name but I do know that there are occasional successive prosecutions for, but I can’t give you the name of one even from — even from the trial court.

I know it does happen.

Felix Frankfurter:

You covered a good deal of territory.

You — you said in the — I can get what your phrase was, your opening — the whole — the jurisprudence of the whole English-speaking world support your position, is that right?

Something like that (Voice Overlap) —

William C. Wines:

Oh, I don’t say without any — without any deviations or variations but I say that the overwhelming consensus is —

Felix Frankfurter:

But what I want to know is — is — are there decisions in the different jurisdictions, British Commonwealth on — are they on your brief?

William C. Wines:

I don’t have any from the British Commonwealth.

Felix Frankfurter:

There in the 48 states have you —

William C. Wines:

Yes, in fact —

Felix Frankfurter:

Have you canvassed all the — all the adjudications there are on this question?

William C. Wines:

I couldn’t say — I couldn’t say all —

Felix Frankfurter:

What I mean you — have you tried to?

William C. Wines:

Yes — yes.

Felix Frankfurter:

Are they enumerated in your brief?

William C. Wines:

I will not — not really.

There weren’t — there weren’t too many.

And I will say this for petitioner.

William C. Wines:

Petitioner’s — petitioner’s brief itself collects, and we cite two.

There were a number of cases, recent cases, where a single automobile accident has resulted in the deaths of several people and these several states hold for it generally that that subjects the driver to successive prosecutions for manslaughter.

Felix Frankfurter:

Are they on Mr. Leighton’s brief?

William C. Wines:

Yes, they are on Mr. Leighton’s brief.

He is very candid about citing them.

He has made a very fair argument and a very fair presentation.

Felix Frankfurter:

Well (Inaudible) —

Charles E. Whittaker:

Mr. Wines, may I ask you?

Does — does the record show (Inaudible)

William C. Wines:

No, it shows that each one was shot through — was found shot through the head and overcome — yes, after — as a result of this fire, yes.

If there are no further questions that’ll conclude my submission.

Earl Warren:

Mr. Leighton.

George N. Leighton:

If Your Honor please.

In answer to the question put to Mr. Wines by Mr. Justice Whittaker.

If Your Honor please, the proof in the record as to the deaths of the other members of the petitioner’s family went even to the point of the embalming of the body.

The record shows that each one of these bodies were taken out of this home by a different fireman, and I argued in the Supreme Court of Illinois, that since that was the case, this was not a case which the death of one had to be shown to prove the death of another because the bodies were taken out of the room separately.

They even went to the point of showing how much embalming fluid they put into the seven-year-old child.

They went through all the gory details, revolting and all that.

They — they proved every — even down to the point of how much — how much embalming fluid necessary to embalm the body of the little girl.

Charles E. Whittaker:

It is found in the record (Inaudible)

George N. Leighton:

No.

You see, Your Honor there was — there’s nothing — under Illinois criminal practice, the prosecution could not show that unless he took the stand.

They couldn’t show he had been convicted of a prior offense unless he testified so that at the second trial, and at the third trial, and at the fourth trial, he, of course, remained from the witness stand.

Because as we point out in this brief you can see the effect upon the jury of being told that this defendant killed the mother of this child for whom he’s being prosecuted.

No reason for his — for the defense that I’m sure putting him on the stand whether they wish to do (Inaudible) enforce the prosecutor to show the — to try the sentence?

George N. Leighton:

Well, Your Honor —

(Inaudible)

George N. Leighton:

Mr. Justice — yes, Mr. Justice Harlan.

If this petitioner had been represented at the trial by in an astute counsel who could see the point that, Your Honor raised.

You see, Your Honor it would take a lot of — it would take a lot of trial court courage in representing a man before a jury for murder.

George N. Leighton:

To prove that he had been convicted twice, it would be stroke of genius of advocacy, it would be an amazing amount of perception.

And I suppose that one would say now in retrospect that perhaps, that was the thing to do, but it would take on a kind of ability for a trial counsel that this petitioner couldn’t afford by the time he was tried in this case.

Felix Frankfurter:

Mr. Leighton, will you please tell me how I can take note of the behavior of which you now complain of the prosecutor on this record?

George N. Leighton:

Your Honor, that can only be done by inference from the record and I took the liberty in —

Felix Frankfurter:

What — what will be the basis of the inference?

George N. Leighton:

I think —

Felix Frankfurter:

I’m perfectly ready to draw inferences that the reasoning power from this one to draw from what appears in the record.

George N. Leighton:

Yes.

I submit to Your Honor that from the record itself, the contention made in the trial court, that he was being prosecuted successively by a prosecutor for the purpose of obtaining the extreme penalty.

The question raised by motion.

I simply took the liberty —

Felix Frankfurter:

Where was — where was it?

The prosecutor said that to whom?

George N. Leighton:

The —

Felix Frankfurter:

To the jury in order to get a conviction?

George N. Leighton:

No — no, Your Honor.

I think — I think I should make it very clear, Your Honor, that these statements of the prosecutor were not made during trial.

Felix Frankfurter:

I understand.

They were made outside.

George N. Leighton:

They were made outside.

They were made soon after the defendant was tried and convicted the first time.

Felix Frankfurter:

Yes.

George N. Leighton:

Then there — then there was a big lapse of time, then he was tried the second time, then after he was convicted the second time and sentenced to 45 years.Then the state was again — then there was a big lapse of time.

You see this is not the case of a statement that the prosecutor made during trial or just —

Felix Frankfurter:

I understand that.

But you’re complaining of those you hear, urged those statements, if I understand it, as an evidence of the state of mind as a conduct of the prosecutor in securing the conviction that he did secure which is the only thing before us.

George N. Leighton:

That’s right, Your Honor.

Felix Frankfurter:

This death sentence.

George N. Leighton:

That’s right.

Felix Frankfurter:

And what I’m asking is, how can I take if you give me the basis for allowable consideration of those successive statements by the prosecutor that he’s going to persist in this until an understanding from his point of view, until an effective jury brings in the death sentence?

George N. Leighton:

I think, Your Honor, it’s just a matter of taking into account the entire total aura of this case.

Now —

Felix Frankfurter:

Well, well — but aura implies something.

Now, where — where can I – -and what can I — on what basis can I find this aura which gives me any kind of indication that those were the considerations that underlay the fourth conviction?

George N. Leighton:

From the facts of the prosecution, Your Honor.

Felix Frankfurter:

Mere fact of the prosecutor?

George N. Leighton:

Yes.

Did the trial judge —

George N. Leighton:

That’s what I know —

Felix Frankfurter:

Well, that doesn’t — that doesn’t — that doesn’t enable me to — to treat these statements which you’ve appended, as I understand it, I looked at it.

George N. Leighton:

Yes.

Felix Frankfurter:

These public utterances in the Chicago Press, is that right?

George N. Leighton:

That’s right, Your Honor.

Felix Frankfurter:

Presumably, read that they appear in all the papers or —

George N. Leighton:

They did, Your Honor.

All the (Voice Overlap) —

Felix Frankfurter:

You are asking me to take into account as an element in the — what does or doesn’t amount to due process, that the prosecutor was bent on getting a death sentence.

And I’m asking you, on what take can I take notice of those statements, handle statements?

George N. Leighton:

There’s — there’s no rule of Court to which I can point to, as you all know, nor is there —

Felix Frankfurter:

— this before the Supreme Court of Illinois, did you?

George N. Leighton:

No, Your Honor we did not.

We did not.

That precise question, don’t put that way before the Supreme Court of Illinois.

We had raised the federal question before the Supreme Court of Illinois, and I might add to inform the Court that I did not represent this man at the trial.

I undertook to represent him after his conviction.

Felix Frankfurter:

And at the — was your position — what was your position before the Supreme Court of Illinois?

George N. Leighton:

That the multiplicity of the — of the —

Felix Frankfurter:

As such —

George N. Leighton:

As such.

Felix Frankfurter:

The fact that he was finally, he was sentenced to death in a trial when there had been three preceding trials of convictions for other victims, is that right?

George N. Leighton:

That’s right, Your Honor.

Now, if Your Honor observed in — on page 9 of the brief, on petition for rehearing before the Supreme Court of Illinois.

Again, we made a claim, what was the federal constitution question being urged.

Now, I will —

Felix Frankfurter:

Page 9?

George N. Leighton:

On page 9 of petitioner’s brief.

See, the Supreme Court of Illinois cited People versus Allen as the sole authority for denying the constitutional question.

And I have not had the time, but I think it’s quite plain to Your Honor, that People versus Allen is not authority for the proposition which the Supreme Court of Illinois cited it.

Felix Frankfurter:

Rather end up with the wrong concerning which the Defendant complained and before that, you do not consider determinative, the constitutional question that defendant’s case does not fall into the established rules of double jeopardy.

The gravamen of the wrong concerning which the defendant complained was the multiple forms of prosecution against it, elected by the state.

George N. Leighton:

That’s right, Your Honor.

Felix Frankfurter:

And — and so far as you candidly stated, there’s nothing in the record that enables me to go outside, that statement of the issue?

George N. Leighton:

No.

May I ask you a question on the same line?

George N. Leighton:

Yes, sir.

This is not the full typewritten record of the trial I suppose.

Certainly, not the earlier trial.

George N. Leighton:

Not the earlier trial.

Is there anything in the record of the two earlier trials —

George N. Leighton:

No, Your Honor.

That shows either that the Court who presided it made any comment as to what he thought about the jury’s verdict or did the prosecutor made any comment about it?

George N. Leighton:

No.

Your Honor, it is very clear that at this present trial, the prosecutor made no comment about the prior conviction.

There’s nothing to indicate —

I’m talking about the earlier convictions, the records of the earlier convictions.

George N. Leighton:

No, there was nothing said about those.

Nothing?

George N. Leighton:

No.

Under Illinois practice, that would have been a reversible error.

The Supreme of Illinois would have reversed.

No, I — you don’t understand me.

If you went to the records of the two earlier trials now —

George N. Leighton:

Yes.

Would you find in those typewritten records any — anything that bore upon the questions that Mr. Justice Frankfurter has been asking you?

George N. Leighton:

No, Your Honor.

I’m sure there isn’t anything like that.

I’m sure there isn’t.

I might say in frankness to the Court, that this appendage to this petition was my idea in — in bringing before this Court the detail as to the — the forces behind this prosecution.

I think Mr. Justice Harlan asked Mr. Wines and Mr. Wines said he doesn’t remember any such case in which any man had been treated in this fashion.

Now, Mr. Wines could remember there was a case in Illinois which a man set a fire to several buildings and killed eleven people.

He was indicted eleven times, he went into trial once, on the second trial when he came up, he pled double jeopardy and the plea was sustained.

The States Attorney of Cook County filed a petition for writ of error and the Supreme Court of Illinois dismissed the writ of error saying that while the plea may not have been signed, there was no writ of error to review, sustaining of a plea of double jeopardy under Illinois practice by the prosecution.

Felix Frankfurter:

Can I trouble you to state, how soon after the crime, the prosecution got under — how soon was the first trial after this affair?

George N. Leighton:

Your Honor, he was tried in 1953.

The fire — the first trial was in 1953.

He was — the fire —

Felix Frankfurter:

When was the — when was the occurrence?

George N. Leighton:

The occurrence December 5, 1953.

Felix Frankfurter:

And he was tried the first time?

George N. Leighton:

He was — he was tried during the latter part of December 1953.

Felix Frankfurter:

That is within a few weeks and this —

George N. Leighton:

Well, a short time.

It was short then —

Felix Frankfurter:

Did that — did that bring normal speed of prosecutions in Cook County?

George N. Leighton:

No, Your Honor.

No — no, it’s not.

Not for murder cases.

Felix Frankfurter:

And there was, as Mr. Wines indicated a great deal of publicity about this at that time.

George N. Leighton:

Oh, yes.

There was —

Felix Frankfurter:

And none of this was brought to the attention of the Court?

George N. Leighton:

No, it was not.

It was not brought to the attention of the Court.

Now, if Your Honor will allow me just to say this final word.

You see these statements that we make point of here were not made in connection with the intended first prosecution.

Felix Frankfurter:

I understand that.

George N. Leighton:

Yes.

Thank you very much.

Felix Frankfurter:

But two different things.

There was — there was — if I — suppose I’m accurate, there were sensational accounts of the affair naturally enough.

George N. Leighton:

Oh, yes — yes.

Felix Frankfurter:

There was a quick trial after the event.

George N. Leighton:

Yes.

Felix Frankfurter:

There were successive trials in what you’re raising or what you put in the appendix is a totally different thing.

It evolves by the prosecutor that he’s going to keep at it until the jury has a good chance to bring him a death sentence.

George N. Leighton:

That’s right.

Now, in the final word, in Mr. Wines’ comment about the English-speaking world, I don’t think Mr. Wines’ research would reveal one single case in which a defendant had been tried in a series of prosecutions and in which the same evidence was introduced against him in this manner, and that is why we raised the federal question.

Thank you, Your Honor.