Clewis v. Texas

PETITIONER:Clewis
RESPONDENT:Texas
LOCATION:Samuel Spevack’s Office

DOCKET NO.: 648
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 386 US 707 (1967)
ARGUED: Mar 15, 1967
DECIDED: Apr 24, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – March 15, 1967 in Clewis v. Texas

Earl Warren:

Number 648, Marvin Clewis, Petitioner, versus Texas.

Mr. Legg.

Reagan H. Legg:

Mr. Chief Justice, associate Justices, and if the Court please.

This is a case where the petitioner was convicted by jury for the offense of murder in a Texas trial court and assessed to punishment of 25 years in the penitentiary.

That conviction was affirmed by the Texas Court of Criminal Appeals and we’re here on writ of certiorari granted to the Texas Court of Criminal Appeals.

The case concerns, principally of course, the admission into evidence of what was the denominated state’s Exhibit 13 which is found on page 428 of the record which was the third in a series of confessions which petitioner had signed while in custody of the police.

The central issue I think in the case evolves down to whether or not assuming, as I think we may at least, that the first two confessions here were involuntary, that they were coerced that they were given at the time when as the decisions of this Court have said, the petitioner’s will were overwhelming, that assuming that to be the case then what is required in order to purify the effects of that coercion so that a person might freely and voluntarily make a subsequent confession concerning the same things.

Now, there was in this case of course a petitioner to briefly summarize, had never been in trouble before, he was arrested without a warrant after he had voluntarily come to the city of Midland in response to a request communicated to his sister by the sheriff’s office that they would like to talk to him about some bones which had been uncovered some two miles northwest of the city.

He left immediately and came directly to the sheriff’s office on Saturday night where he was questioned for about two hours and told to go home and to return the following morning about 8:30 or 9:00 am to talk to the sheriff.

He did go, but about 6 o’clock the next morning, a city police officer who had not participated in the investigation of the case and he testified that he knew very little about the case went to the place where the petitioner was and woke him up at 6 o’clock and told him to come on and go with him.

He took him then to the city jail where the interrogation process began.

Byron R. White:

Was that an arrest?

Reagan H. Legg:

Yes sir, that was an arrest and I believe that the officer concedes Mr. Justice White that it was an arrest.

He was asked the question incidentally at the trial why didn’t procure a warrant for the arrest of the petitioner and he testified on page 170 and 171 of the record that he knew that he did not have grounds sufficient to obtain a warrant.

He did testify of course that he took his belongings from him and put him up which meant that he locked him in the cell.

Now, that police officer, the witness Morales testified to questioning the petitioner at least six hours during Sunday.

The petitioner said that it consisted of — it was a lot more time in the night that he was questioned almost all day.

The police officers also admitted to interrogating him at night, but said they did not question him after midnight.

The petitioner had claimed that he was questioned until about 3 am on Monday morning.

William J. Brennan, Jr.:

Then may I ask if one of your position is then that this having been an illegal arrest not on probable cause at the time, everything after that is moot and that that ground alone inadmissible?

Reagan H. Legg:

Yes Mr. Justice Brennan, that is one of our positions on this appeal that the arrest being illegal and it being a fragment, disavowed all of the police officer of the — of the law as they existed.

Because on the Texas law is I think we point that in our briefs where we cited the statutes, there was no cause for arresting him which would excuse rather an arrest without a warrant here.

William J. Brennan, Jr.:

As to the third confession are you going to have a problem of attenuation of chain of events?

Reagan H. Legg:

Yes sir.

I believe that this is what it comes down to.

The — and in order to get to that sir, I think that the contention here on the part of the state is that despite the coercion which I think in effect be admitted concerning the first two statements that because three days then passed in which both the petitioner and the state admit that the only or the principal certainly coercive circumstance was his confinement in custody.

I think that their contention is that that had been attenuated.

Earl Warren:

During those three days was he represented by counsel?

Reagan H. Legg:

No sir, he was not.

There’s testimony in the record Mr. Chief Justice by the deputy sheriff who testified that he was not seen by counsel and to their knowledge he had no counsel.

Reagan H. Legg:

The three days of course is the question I think which we’re presented with in this case.

We have a question I think Mr. Justice Brennan of attenuation not only of the illegal arrest but of course also of the coercive conducts of the police officers during that — during the previous facts.

William J. Brennan, Jr.:

Yes but definitely after the arrest?

Reagan H. Legg:

Yes sir.

I’ve attempted to create these two questions.

I believe it is and that’s the way it has been presented of course to the Court here.

But certainly it is a part of the totality of the circumstances if not an independent ground that they say.

The petitioner of course has testified and it is in the case that “I didn’t figure out, I had no choice,” I believe, this is a colored man who couldn’t get through the fifth grade in school who however, had been reasonably responsible and held a reasonably responsible position and had never been in trouble with the law before.

On Tuesday then, he was, we’re not going into the circumstances and the facts which I think we detailed greatly in the brief, a fact that he wasn’t fed for a period of two days prior to his first confession or he didn’t have anything to eat.

The fact that the newspaper had reported the reporter testified that the office — that the officers had told him that the petitioner said just prior to signing the first confession or making the first confession, if you’ll just bring me some milk I’ll give you whatever confession you want and sign it.

The fact that he didn’t have adequate sleep or rest during that period of the time and of course he says that he was beaten, he was cursed and he was threatened and abused otherwise by the officers.

He was taken to the grave where they told him they had dug up these bones of what was believed to be his wife who had disappeared some six months prior to this attack.

He was not taken before a magistrate of course until 38 hours after his arrest.

He was not advised according to the record of his right to counsel before the first two confessions.

There is no or any oral confession which he has testified to here in this case.

There is no evidence whatever that he was advised to his right to remain silent.

On Tuesday morning then after having been delivered to the sheriff on Friday and making no complaint about being mistreated by the officers during that interim from late Friday afternoon to early Tuesday morning.

He was brought down the Sheriff’s office about 9:30 in the morning.

He again denied as the record shows he had done repeatedly during the previous questioning, he again denied any implication in this case or in the knowledge of his wife’s death and he repeated to the sheriff’s officers the fact that he had been mistreated by the officers during the other interrogations at that time.

They did mention to him that they might want him to take some more lie detector test, since he had been subjected to seven of those during the previous interrogations.

He had been confined of course —

Earl Warren:

Subject to — subject to what did you say?

Reagan H. Legg:

To seven polygraph examinations Your Honor.

Earl Warren:

Oh yes.

Reagan H. Legg:

They referred to in the record post line text.

Abe Fortas:

Is this while he was asserting his innocence?

Reagan H. Legg:

Yes sir, each of them.

Abe Fortas:

And we — does the record show what the results were?

Reagan H. Legg:

No sir.

The — he was confined during that interrogation in jail and the city jail in Midland, Texas in the Department of Public Safety Jail which was outside the city limits of that city and was confined in a jail in Borger, Texas, 300 miles away where has was taken during the first five days of interrogation.

Reagan H. Legg:

On Tuesday morning as I mentioned he was brought down at 9:30 by two deputy sheriffs.

He again denied his guilt.

They mentioned to him that he might be subjected or would he be interested in taking some more polygraph tests.

He did then say that he would like to talk to somebody before talking — going any further with them and they asked him who and he said he like to talk to his boss, and they went to the phone and came back and said there was no answer.

The deputy sheriffs then bought then the district attorney who talked to him and thereafter he did orally confess then the confession he was later reduced to writing, I think all of the procedure there prior to the ten that the old confession was about an hour and 15 minutes according to the record.

His testimony was when asked about this third confession, they went and got Mr. Mends and when they went and got him, “well I was scared because I could see it looked like the same thing happening all over again, that three or four days of abusing.”

This is at page 153 of the record, “and I was scared and I didn’t think I could take that no more, and so I just went on and gave them the statement because I had already made two statements and I didn’t figure it made any difference and I had signed two.”

Certainly, the position of petitioner here is that the taint had not been attenuated.

Once a man is broken in and the opinions of this Court, the decisions of this Court in many instances have referred to the fact that when a man is broken in or when he is subjected to tactics reminiscing of the imposition that has happened in many cases that certainly it takes a long time to repair the damages done that I think that the decisions of this Court would certainly support our contention that once a man has been broken that he’s no longer a whole man and that considering the type of coercive tactics that are employed against him that it would take him certainly more than three days to recover from the effects of that treatment.

Is there a contention that the under state of the area of confession was moved?

Reagan H. Legg:

No sir, it isn’t Mr. Justice Harlan.

It — the state hasn’t been conceding that.

We are saying that we believe that the facts establish it.

We think that they used every coercive tactic they could think of in order to try to get a confession out of this man.

The officers did admit on many occasions that they were trying to get a confession out of him.

That’s shown in the record from the testimony of the various officers that they were trying to get him to tell the truth, that they told him he ought to make a statement and things like this.

I think that it is conceded certainly by the state and by the testimony of their officers that this was the purpose of the interrogation and of all the tactics employed by the police during the course of it was to get a confession.

That much is conceded in the record.

We have, of course in search of the cases of this Court for examples when more than one confession has been considered by the Court, only however, I believe in this case does the proposition come up where they did not use but the third confession, and this was the only confession which the state attempted to use.

The others were brought into evidence by the petitioner for a simple reason that it was necessary to do so in order to try to demonstrate the inconsistency of those statements.

Abe Fortas:

What do you mean by that Mr. Legg?

Did — I thought you had asked for a copies for the first two confessions —

Reagan H. Legg:

Yes sir.

Abe Fortas:

And that request was denied?

Reagan H. Legg:

Yes Your Honor.

Abe Fortas:

So you never got those first —

Reagan H. Legg:

We never got those first two confessions.

We made a motion at the beginning or just part of the jury selection actually for the state to produce the confessions for our examination and the trial court denied that request.

Abe Fortas:

Is that denied or just — did the state say anything as to why not or was just that that was — did they take a proposition as irrelevant?

Reagan H. Legg:

Your Honor, that is not in the record, the discussion on that motion and actually —

Abe Fortas:

Alright.

Reagan H. Legg:

And they accepted the position of being denied, that was made.

Then of course, we did thereafter filed a motion to exclude the use of any of the confessions and we went into — we then request in that the state be required to produce them for examination by the trial judge in connection with our motion.

That of course is one of the grounds for which we are urging the Court, urging upon the Court as the ground for reversal in this case that the rules certainly which now are applicable in all federal cases that require the granting of a motion for discovery and provide explicitly that a defendant has the right to see and examine and use his own statements should be extended to the trials in criminal cases as well as in civil cases.

Abe Fortas:

What was your — why did you want these confessions?

Reagan H. Legg:

As we mentioned, number one, and we have stated in our motion, to demonstrate the inconsistency of the three statements.

We of course had information that the first statement said that – first confession that petitioner signed said that he shot her, that the second confession deviated in other respects and also said that he had choked her with a belt.

We of course have contended that the main reason that these are the two confessions were taken is after they got the first one and they testified to this said that he had shot her that of course they found no evidence that these bones it was completely deteriorated.

No evidence, no bullet, no evidence of being shot but there was a belt around the neck, and — so we felt that we needed to demonstrate this to the jury as a ground of — as a means of demonstrating a coercion which had been practiced upon him.

William J. Brennan, Jr.:

Well that motion to suppress the third confession was out of the presence of the jury, was it?

Reagan H. Legg:

Out of the presence of the jury, yes.

William J. Brennan, Jr.:

And it was in that proceeding that you sought to have produced the first two confessions?

Reagan H. Legg:

Well no.

Actually, it was before testimony was begun —

William J. Brennan, Jr.:

Oh.

Reagan H. Legg:

— in the case and the motion to exclude and suppress the confessions which is what we’re talking, was after or nearly a based testimony.

William J. Brennan, Jr.:

Well, I’m not clear about it.

On your motion to exclude the third confession when was that argued?

Reagan H. Legg:

It was argued as they begun to introduce it which was the trial and —

William J. Brennan, Jr.:

At the trial itself?

Reagan H. Legg:

— in about a day, yes sir.

William J. Brennan, Jr.:

Now, what — did you try to get the first two confessions based in connection with that motion to exclude the third confession?

Reagan H. Legg:

Yes sir.

Actually we didn’t know it at the time we argued this motion which confession or what confessions are we going to introduce but we did want to get the jury out of the room before we went into that and it was a motion to exclude them all three.

And in connection with that we did argue that yes, they should be produced certainly for the trial court’s examination, although he had already refused our request to have them made available to us before that.

William J. Brennan, Jr.:

And he would not require the prosecution to turn them over to him even limited to his examination of them?

Reagan H. Legg:

That’s correct, yes.

The questions here of course are those which this Court has considered many times before.

We certainly think for instance and have urged we believe that the failure to take this man before a magistrate when he was first arrested was a very vital step in the proceedings.

Here we have a case where the officer admits that he had no grounds for his arrest.

Reagan H. Legg:

Here we have a case where certainly one other law enforcement agency knowing that there was no ground for holding him had sent him on his way and told him to come back later would certainly had acted within the law.

That if he had been taken before a magistrate and certainly if he had competent counsel which he did not have at the time of these proceedings, if he had had competent counsel then he would have I think been discharged because there was no evidence against him other than these confessions and we think that the coercion which is demonstrated would easily have been shown.

Hugo L. Black:

You’re not arguing are you that the constitution required that he’d be taken before a magistrate as a part of his trial?

Reagan H. Legg:

No sir.

That we’re arguing about taking him before a magistrate Mr. Justice Black in context with the many decisions of this Court where it has been held as a coercive — that failure to do so has been held to be a coercive circumstance.

Hugo L. Black:

Well, did they — do they have a proceeding there to go before a magistrate?

Reagan H. Legg:

Yes sir, we do.

Hugo L. Black:

And this it all requires, is that’s what you’re talking about?

Reagan H. Legg:

Yes sir, that State Law Article 217 of the Texas Code of Criminal Procedure requires that when a person is arrested, he must immediately and not as soon as convenient as in the federal cases but he must immediately be taken before a magistrate.

Hugo L. Black:

To do what?

Reagan H. Legg:

For the purpose of examining him to the offense among others.

The statute itself Your Honor, there are several articles which cover it but he is — when the accused has been, for instance Article 245, when the accused has been brought before a magistrate, that officer shall proceed to examine and to the truth of the accusation made allowing the accused however sufficient time to procure counsel.

Then the other statutes provide that the same rules on trials prevail in hearings before the magistrate that to direct —

Hugo L. Black:

Is that something like a committing magistrate?

Reagan H. Legg:

Yes sir.

It — it’s a matter of commitment to bail, that’s very true.

But of course, this Court has considered this in Pointer versus Texas and has withheld I think the questions as to whether it is such a vital step in the proceedings against the defendant as to constitute a denial of due process if they do not take it.

We have urged that it is and that certainly this is a case which demonstrates that had this petitioner been taken before a magistrate and counsel had been procured for under the law or even advised as we don’t think the record shows that he was even understood that he could have counsel at that particular time.

Hugo L. Black:

Is it part of your complaint that he gave a confession before the magistrate —

Reagan H. Legg:

No sir.

Hugo L. Black:

— that has been offered.

Reagan H. Legg:

No sir.

Hugo L. Black:

You do not?

Reagan H. Legg:

No sir.

There was in fact apparently no hearing whatever before the magistrate, certainly nothing was introduced in evidence at that hearing.

Hugo L. Black:

No confession came out of that?

Reagan H. Legg:

He had already confessed Your Honor just a few probably less than an hour before.

There is evidence of course that petitioner was sick at the time, right after the first confession and that he —

Hugo L. Black:

Is that in dispute?

Reagan H. Legg:

No sir, it’s not in dispute.

Reagan H. Legg:

As a matter of fact it’s from the testimony of one of the officers who testified that he was sick and —

Hugo L. Black:

That he was what?

Reagan H. Legg:

That he was sick and had some trouble, that he vomited and that was after —

Hugo L. Black:

Not that anything was done to him or was it that something was done to him?

Reagan H. Legg:

Yes sir, he claims that he was —

Hugo L. Black:

What he claims, but is that in dispute?

Reagan H. Legg:

That is in dispute, yes.

The officers have denied that they did inflict any physical damage, but they have admitted that this petitioner had nothing to eat on Sunday morning until late Monday afternoon when he was given the milk at the time he signed the first confession.

They also even admitted that on the second —

Byron R. White:

Oh, was he offered any?

Reagan H. Legg:

They say he was.

He denies it.

Our contention of course —

Byron R. White:

Which way are we supposed to take that?

Reagan H. Legg:

Mr. Justice White our position throughout this case of course has been that if it is a consideration as to the physical state of a defendant who is being held and interrogated that if that is the ultimate question and if we are as they said understand the way the circumstances, the coercion against his particular circumstances and ability to resist that then it doesn’t really matter what — whether he was offered anything to eat or not.

The question is what was his actual physical condition?

This has been our argument and our position.

Byron R. White:

Yeah, but they have — but go back to my question under which way are we supposed to take that conflict of the fact that whether he was offered any?

You say it’s irrelevant but what if it is relevant which way are we supposed to take it?

Reagan H. Legg:

Well this question whether they’re going to believe the defendant or whether they are going to believe the officers I suppose if that’s what it comes into.

I think, I believe that it gets —

Byron R. White:

Did you say we — that we did here weigh that evidence under cold record or what?

Reagan H. Legg:

Yes sir, that’s what I said.

I don’t know anything else to say with that.

Well on the jury, I suppose, had placed it in evidence?

Reagan H. Legg:

Yes, the evidence was given to the jury, and jury was charged, Your Honor.

If I may I would like to reserve what is remaining of my time.

Earl Warren:

You may.

Mr. Pena.

Gilbert J. Pena:

Mr. Chief Justice and members of the Court.

Gilbert J. Pena:

Here we have a case before us which the facts are completely in a state of chaos and are conflicting.

The testimony of the petitioner himself is conflicting on several portions of the record, but we — our position is two-fold.

One, that the first two confessions were not coerced but were indeed voluntary.

And number two, if the Court feels that the first two confessions were involuntary then certainly the third confession was by his own admission voluntary and that under some of the holdings of this Court so much time had transpired from the first two confessions and he had been removed away from the coercive atmosphere which they alleged existed that the third confession was so far removed from the other two that if there was any taint, it disappeared by the time they gave the third confession.

Now, —

Abe Fortas:

Why would you want three confessions?

Gilbert J. Pena:

Well, apparently the officers weren’t satisfied that the version that he gave in the first two was not altogether true.

That’s why the third — took third confession —

Abe Fortas:

Well, that’s probably the reason why the counsel for the petitioner wanted to see them?

Wanted to see the first two, is that right?

Gilbert J. Pena:

Well, our argument for that Your Honor, that’s true, but our argument for that is that if petitioner had wanted those two confessions, those two prior confessions he should have asked for them when the officers testified on the third confession or any of those officers when they testified he could have asked for them under the holding of Gaskin versus State of Texas.

Abe Fortas:

The counsel said he asked for them in an earlier stage as I understand.

Gilbert J. Pena:

That’s before the trial Your Honor.

Abe Fortas:

Oh.

Gilbert J. Pena:

Now, during the trial there was a motion to suppress, heard, but I can’t find anywhere in the record where he actually said Your Honor let me see those two confessions, we want to look at them.

We want to use them to cross-examine these officers.

It’s not in the record.

Abe Fortas:

I don’t want to pressure but is it the state’s view that if he had asked for them at an appropriate time he would have been entitled to them as a matter of law?

Gilbert J. Pena:

That’s our position exactly Your Honor, under the holding of Gaskin.

Abe Fortas:

Your position is that they would have been entitled to him if he had asked for them in the proper time?

Gilbert J. Pena:

Well, let me answer it this way.

He would have been entitled to him or the Court would have had to allow him to perfect his Bill of Exceptions so that the Court of Criminal Appeals could have looked at them to find out that if there’s anything he could use to cross-examine those witnesses.

And that’s exactly what the Gaskin case holds.

They refused to follow the Jencks case or the Jencks Act but I do say that he’s entitled to let the Court look at it so that he can convince the Court or argue in the Court of Appeals that he could have use it to cross-examine and to impeach the witnesses, but he didn’t do it and that’s our position.

Hugo L. Black:

Is that position based on state law or federal law?

Gilbert J. Pena:

Both Your Honor because the Court of Criminal Appeals has specifically held that we will not follow the Jencks Rule.

Hugo L. Black:

They will not what?

Gilbert J. Pena:

They will not follow the Jencks Act or the Jencks case, that’s Section 3500 in Title 18, the so called Jencks Act.

And in any event Jencks Act requires that they’re entitled to the production of those instruments only after the witness has testified not before trial.

Now we have adopted a new system and a new code where he’s entitled to them now by bill of discovery.

Gilbert J. Pena:

Now, the petitioner testified during the trial —

Hugo L. Black:

You mean this question wouldn’t come up again?

Gilbert J. Pena:

I don’t believe so Your Honor.

Hugo L. Black:

They’ve changed the law.

Gilbert J. Pena:

They’ve changed the law.

Hugo L. Black:

The Court did it?

Gilbert J. Pena:

It is — no, the legislature did in the last —

Hugo L. Black:

— session?

Gilbert J. Pena:

This morning, in fact it’s more liberal than Section 3500 of Title 18.

Hugo L. Black:

How did they change it, by rule or the law?

Gilbert J. Pena:

By statute Your Honor — statute.

William O. Douglas:

A new rule, right?

Gilbert J. Pena:

Yes sir, new rules.

William O. Douglas:

In a statute form.

Gilbert J. Pena:

In a statute form, so this problem wouldn’t arise anymore.

Now, admittedly when the third confession was given, the petitioner had visitors in the jail.

He had talked to his sister-in-law, to his — I mean his mother-in-law and two other ladies and Mrs. Johnson and some other ladies, he had talked in private with an attorney, a fellow by the name of H. S. Harris.

Now, he came to visit him in the jailhouse, according to the testimony of one of the officers on Thursday morning before he gave the second confession and the testimony is from his own mouth that he conferred with him in private.

Now, we don’t know what happened.

If we did, it would be in violation of his rights so we cannot argue that that lawyer had informed him of his rights, but we must be allowed to assume that they must have talked about the case and secondly, the only evidence in the record that the man was coerced, it was his own testimony.

Now, why were any —

Hugo L. Black:

Was all of that — was all of that disputed?

Gilbert J. Pena:

Yes sir.

Hugo L. Black:

All of this testimony was in dispute?

Gilbert J. Pena:

All of it is in dispute except made for the times that he was taken from the jail to Borger where the truck, pound truck he was driving in was searched that was admitted, the fact that he was taken out to the grave, now that was admitted.

The fact that he was questioned, that’s admitted, but the fact that he says that he was questioned past midnight with all of those three officers who testified the trial where they were in charge of the keys to the jail.

They were in jail, so they didn’t allow anybody in or out of the cell past midnight for this conflicting testimony in that.

Now, there’s also — he claims that he was taken to a border 300 miles away.

The record shows that, at page 135 or 134 that he voluntarily consented to have the search on the truck maker and the voluntary statement that he signed allowing the search of the truck was offered in try — at the trial state’s exhibit number 10, and that was admitted without any single objection.

So the reason that he went to the Borger was because he had consented to the search.

Gilbert J. Pena:

Now, in Borger he talked to his brother-in-law there and he — a fellow by name of Malone, this the officer testified to that.

Now, he says that the petitioner testified that he was abused back in Borger.

The officer of course denied it.

Here we have a situation where the testimony is really overwhelming on the side of the police officers from the assistant chief of the police who picked him up on Thursday morning.

He says he talked to him, he asked him if he had been abused.

He said “No, he hadn’t been abused.”

This was after he had given his second confession.

So the testimony is really in a mess as far as, as whether or not he was or wasn’t, we got the testimony both ways.

Earl Warren:

Was there a probable cause for his arrest?

Gilbert J. Pena:

No sir, there was not.

Earl Warren:

Why did they put him in jail then?

Gilbert J. Pena:

That’s something that I would never be able to understand from the testimony of the officer and he was investigating —

Earl Warren:

What were they trying to do when they put him in jail as a prisoner?

As far as talking to him, what was the purpose of it?

Gilbert J. Pena:

As I understand it Your Honor, they were investigating the disappearance of his wife and this is why they were talking to him.

Earl Warren:

Yes, I know but why did they put him in jail?

Couldn’t they talk to him at his home because they talk to him where they — some place where he’d have the advice of counsel, the advice of his friends.

Why did they put him in jail if they had no probable cause for arresting him?

Gilbert J. Pena:

I can’t answer that Your Honor.

I really can’t.

I don’t see anywhere where they — we will concede for the record that the arrest was illegal.

I don’t think there was any question about that.

Earl Warren:

The what?

Gilbert J. Pena:

Was illegal, there was no probable cause of the arrest at that time.

Earl Warren:

And do you concede that he was held there from the time that he was arrested for these several days for the purpose of obtaining a confession from him?

Gilbert J. Pena:

No sir.

On Monday night he went to the — before the magistrate, he was before a magistrate and he was then lawfully entered in jail.

Earl Warren:

Yes, was that they continue then to try to get a confession from him?

Gilbert J. Pena:

Alright, let me answer this by saying that Your Honor to the statement of facts where he testified that on Tuesday — alright, now Monday he gave the confession, he went before the magistrate, on Tuesday he testified that he wasn’t bothered by anybody.

Earl Warren:

He said what?

Gilbert J. Pena:

He wasn’t bothered by anybody or abused.

Abe Fortas:

Which confession was that?

Gilbert J. Pena:

That’s in the record page 144.

Abe Fortas:

Which confession was that Mr. —

Gilbert J. Pena:

The first confession.

Abe Fortas:

First confession.

He went to the magistrate after the first?

Gilbert J. Pena:

He went to the magistrate afterwards then he was sent back to jail.

Abe Fortas:

And then when did they get number two or number three?

Gilbert J. Pena:

Alright, now the second confession was taken on Thursday.

Abe Fortas:

Thursday.

Gilbert J. Pena:

Now by the way, he did consent at the — to the taking of the polygraph tests, so this was the reason why he was taken for the safety, that’s on page 135 or 134.

He admits that.

Alright, now by the time he gave the third confession —

Earl Warren:

How many tests did they make of him?

Gilbert J. Pena:

Well, there’s quite a few Your Honor.

Earl Warren:

I understood —

Gilbert J. Pena:

I don’t — I don’t dispute that.

Earl Warren:

— seven times?

Gilbert J. Pena:

I don’t have any dispute on that.

Earl Warren:

Did he — does it show that he consented to all of them?

Gilbert J. Pena:

No.

It doesn’t, I can cite to where he consented to four of them, but I don’t — there’s some testimony he didn’t consent to the others from him.

We have testimony the other way.

William J. Brennan, Jr.:

Mr. Pena did the conviction rest on anything to accept these confessions or this third confession?

Gilbert J. Pena:

Well —

William J. Brennan, Jr.:

Or in other words was there independent proof not secured through the confession?

Gilbert J. Pena:

First of all, of course he answers it didn’t make any difference because the case is going to go if the confession was illegal, but the answer to your question, the — there was an eye — the mother-in-law —

Earl Warren:

What is that — what is that you said at the beginning?

Gilbert J. Pena:

That if the confession is illegal or involuntary, was not voluntary then the conviction as I understand the law, he cannot —

William J. Brennan, Jr.:

That wasn’t my question.

My question was whether they had any other evidence besides the confession.

Gilbert J. Pena:

Just testimony from the daughter of the deceased who testified that on a number of occasions that she witnessed where the petitioner was choking his mother and telling her he was going to kill her and the other witness was the mother-in-law who testified that on one occasion she came into the house and saw him holding a pistol to the woman’s face, he was going to kill her.

William J. Brennan, Jr.:

But there was no evidence I gather as to the actual killing for which he was charged?

Gilbert J. Pena:

No.

William J. Brennan, Jr.:

Except for his own confession?

Gilbert J. Pena:

There was some circumstantial evidence —

William J. Brennan, Jr.:

That’s right —

Gilbert J. Pena:

That that’s mainly it, the confession was really it.

Was there a doubt [Inaudible]

Gilbert J. Pena:

I believe that’s the inference from the record.

I can’t really pinpoint it for you Your Honor.

William J. Brennan, Jr.:

Or proved independently of his statement and his confession that was his belt?

Gilbert J. Pena:

No, I don’t think so Your Honor.

William J. Brennan, Jr.:

No evidence except his own statement that it was his belt.

Gilbert J. Pena:

That’s right.

Now, the belt was identified though by the daughter as being the belt that his mama used, that her mom used to use to whip the kids.

And also there was her — the shoes that she was wearing the last time she was seen was found on the truck in Borger, that’s what they were doing out there, searching the truck.

So —

Hugo L. Black:

And what —

Gilbert J. Pena:

The shoes were in the truck.

Hugo L. Black:

Found in what truck?

Gilbert J. Pena:

In the truck the petitioner used to drive Your Honor.

He was a foreman for a pipeline crew in Borger.

Hugo L. Black:

What you have as I understand that it is that death brought in his activity and it was brought to your attention by him and that you found the body.

Gilbert J. Pena:

No.

Hugo L. Black:

Because of what he had said, is that right?

Gilbert J. Pena:

No, no sir.

No.

The body was found by two Latin-American boys one day.

Gilbert J. Pena:

They called the sheriff’s department, they went out and excavated the bones.

Now, that Saturday he was called — the sheriff’s department called his sister I believe, or sister-in-law or something like that and told her that next time she saw the petitioner, tell him to come by the — by the sheriff’s department.

He wanted to talk to him about it.

And that’s — she called him in Borger and told him they wanted to talk to you down here in Midlands, come on down.

So he did.

He drove down there Saturday night.

He drove straight to the sheriff’s office and talked to the deputy sheriff there for about three or four hours and then he went home.

Then the next day is when he was arrested by that Officer Morales.

But let’s look at the petitioner here, we don’t have a petitioner here or defendant who was an uneducated or ignorant at first like we have in so many other cases that this Court had ruled down where there was 19-year-old Negro boy who was an imbecile or had a mentality for a 3-year-old.

Here we have a case where this man is 37 years of age.

He had served three years in the navy.

Now that to me is significant because —

Abe Fortas:

He had finished the fifth grade.

Gilbert J. Pena:

He had finished the fifth grade, that’s right Your Honor.

But he had been foreman of a pipeline crew for seven years.

Abe Fortas:

And I think they could take a judicial notice that in all probability, he did not have a law degree.

Gilbert J. Pena:

He did not have a what, Your Honor?

Abe Fortas:

Law degree.

Gilbert J. Pena:

That’s right Your Honor.

But — and he was no pauper because he wasn’t represented by an in — he was not represented by the court appointed counsel below.

Now, he had conferred with a lawyer before he gave his last two confessions and certainly before he gave his third, he had not been held incommunicado because he made several phone calls.

He had been visited in the jailhouse.

He had already been before a magistrate and he testifies that no — everybody treated him just real fine in the sheriff’s office.

And that he had no dispute as to the — that last confession about whether or not he was — there was any coercion or threats.

As a matter of fact the Deputy Sheriff Jean Howe testified that before he took the confession, he told him “advised him of his rights to remain silent”.

And he asked him if he want to talk to a lawyer or a master or somebody else and he said, “No, he wanted to talk to his boss man.”

So the deputy sheriff called his boss man but nobody answered.

What he would —

Earl Warren:

was that before the first, the second or the third?

Gilbert J. Pena:

That was before the third confession.

Earl Warren:

Before the first?

Gilbert J. Pena:

The third.

Earl Warren:

Third?

Gilbert J. Pena:

Third confession.

Yes sir.

Earl Warren:

Was there any evidence that they told him of his rights before that?

Gilbert J. Pena:

Oh yes sir, it’s in the record.

Earl Warren:

All the way along the line?

Gilbert J. Pena:

Yes sir.

Earl Warren:

Before the first even?

Gilbert J. Pena:

Well, now before the first or second Your Honor, the record is silent.

They say that if he wasn’t given one of course, we can’t say whether he was or wasn’t because it’s not in the record.

Earl Warren:

What did he say?

Did he testify on that subject?

Gilbert J. Pena:

No sir, he didn’t testify on that subject.

But in Texas if that warning is not in the confession, it’s not used.

You can’t use it in the Court and certainly oral confessions are not admissible in the state.

Earl Warren:

Well suppose for the sake of argument that the first two confessions were involuntary, do you still contend that the third one is admissible?

Gilbert J. Pena:

Yes sir, we sure do.

We contend —

Earl Warren:

Even although —

Gilbert J. Pena:

— admissible because it already had been before a magistrate, he had conferred with a lawyer, I don’t know what happened in there but nobody does.

Earl Warren:

Maybe he merely asked a lawyer if he’d represent him and the lawyer said no, you haven’t got enough money or something of that kind.

That doesn’t prove anything then.

Gilbert J. Pena:

That’s right, that’s why we can’t argue that —

Earl Warren:

The lawyer never represented him, did he?

Gilbert J. Pena:

No sir.

Earl Warren:

Never assume to represent him.

Gilbert J. Pena:

No sir.

Earl Warren:

Well then I suppose no inference can be drawn that he advised him of his rights or anything else.

Gilbert J. Pena:

That’s right.

So we can’t — we don’t know.

But he had had an opportunity to consult with an attorney in private.

He had had many visitors in jail.

As a matter of fact that day that he says he don’t have anything to eat, on Sunday, his own mother-in-law brought him some soup to the jail because he wanted some special — he had an ulcer, that’s what he said.

And he was offered that soup, now they testified to that and he says he didn’t want any.

He was offered — the record was just full of occasions when he was offered food.

Now there’s testimony they saw him out of the Department of Public Safety smoking a cigar, drinking a coke.

There were occasions when they stopped by the road to buy him some milk.

They brought him some soup to the jail.

There’s testimony on that that they warmed it up for him because he gotten back a little late.

He ate it, he drank it there, I mean, the soup.

He was allowed to use the phone.

And the only time he says he wasn’t allowed to use the phone was Sunday.

He says he wasn’t allowed to call his sister.

That he said this upset him because he wanted to talk to his sister before she came to visit him.

So he wasn’t held incommunicado.

So I think that it’s our position that assuming for the sake of argument that those are the two confessions were illegal, because we do have an illegal arrest but I don’t see any connection.

As far as our state is concerned it’s not the illegal arrest but the illegal detention that would vitiate a confession.

And I don’t know of any cases that would this Court has handed down which says an illegal arrest ipso facto remove any voluntary — voluntariness to the confession.

So that was the position that the first two confession were really —

Earl Warren:

Well I suppose it could bear on it though, couldn’t it, if they arrest him without any legal cause and held them there for two or three days until a — three or fours days until they got the confession they wanted to use against him in the court, but would you think that could bear upon whether it was voluntary or not?

Gilbert J. Pena:

Certainly Your Honor.

That would be a question for the — a question that would go directly into the voluntariness of the confession, but here — and it would be something to argue to the court and have the jury pass upon.

In this case the jury heard all this evidence and the court heard all this evidence by itself for a matter of one day, testimony on the confessions and the court resolved this issue against him.

The jury heard it and they resolve it against him too.

And of course the Court of Appeals affirmed the conviction saying that there was — that the court had resolved it and they took the confessions voluntary also.

So at the most we have a situation where they — the facts surrounding the first two confessions is completely muddled because I really can’t make too much sense of the record as it appears there’s contradiction from both sides.

He says he was questioned on Tuesday, all the officers testified that on that day they never saw him.

Also Morales was off that day, he didn’t even work that day and he says that he was questioned by officer Morales on Tuesday.

Gilbert J. Pena:

So unless there weren’t any questions that’s all we have.

Thank you.

Earl Warren:

Very well.

Mr. Legg.

Reagan H. Legg:

Just one or two things Mr. Chief Justice and associate Justices.

I believe that the record does show beyond the question that this petitioner was questioned on Tuesday not for any great length of time according to the testimony of the officers at least.

But they do admit the questioning him on two occasions.

He says that he was questioned on Tuesday and on Tuesday night.

And on Wednesday then he was taking on this 300-mile round trip.

Along, I mean in connection with this idea foods which has been discussed.

I think if — he was offered food they say, the officers say.

He denies that he was offered any food at all.

His sister substantiates at least that he was not offered any food on Sunday.

But certainly on the days that were important to the confessions that is Sunday and Monday and Wednesday and Thursday.

He didn’t eat anything.

He didn’t have anything to eat except from Sunday morning to Monday night, one coca cola, on Wednesday when they took him to Borger, one cartoon of milk.

On Thursday, nothing all day long, now these were the times which of course are pertinent and of course the first two confessions were concerned.

Abe Fortas:

Mr. Legg I’m not clear on some procedural points here.

You move that before the trial for that all three suppressions — all three confessions be suppressed, is that right?

Reagan H. Legg:

Yes Your honor on the face of the record.

Abe Fortas:

And in connection with that motion did you ask that all three of them be produced?

Reagan H. Legg:

All three of them be produced, yes.

Abe Fortas:

Be produced.

Reagan H. Legg:

Yes sir.

Abe Fortas:

And there was the judge ruled on your motion before trial.

Reagan H. Legg:

Yes sir.

Now this is shown on the record.

Abe Fortas:

And the judge — and the judge denied that motion, did he?

Reagan H. Legg:

Yes sir.

Abe Fortas:

And then at a later point during the course of trial and first start of hearing with the jury I supposed there was a proceeding to determine the voluntariness of the confession.

Reagan H. Legg:

Yes Your Honor.

Abe Fortas:

That is the state offered confession number three and there was a hearing to determine whether that was admissible.

Reagan H. Legg:

Yes sir.

Abe Fortas:

And at that time you did not again move for production of the other two confessions?

Reagan H. Legg:

We did move to exclude all three confessions.

Abe Fortas:

Prior to the trial.

Reagan H. Legg:

No, no, at this point that we talked about.

Abe Fortas:

At this point.

Reagan H. Legg:

Yes sir.

Abe Fortas:

That is to say in connection with the determination of the admissibility of confession number three which has been offered by the state.

Reagan H. Legg:

Yes sir.

And there’s a colloquy in the record that at the time this was done concerning the admissibility or concerning the productions of all of these statements.

I believed that my adversary has mentioned here that perhaps we have waived some rights, but I do quote from — to you.

Abe Fortas:

Yes, I’d like to see them because I didn’t see it in your brief, perhaps I missed it.

Reagan H. Legg:

I don’t know exactly where it was, I can’t think.

Abe Fortas:

Because I think that your adversary’s position now is that the state would concede that you would have been entitled to the production of all three confessions had you proceeded in an appropriate way to demand the production and he says you did not proceed appropriately so that —

Reagan H. Legg:

Your Honor that —

Abe Fortas:

— that becomes a point of some significance.

Reagan H. Legg:

That appears to be the contention and frankly I don’t know of any appropriate way to do it.

I guess to converse the state as I understand it says that anytime they offer a confession or a statement in the evidence that then at that point you can demand to see it and again.

Now at the time that we demanded to see it here and moved for the exclusion of all three statements, admittedly we didn’t know where they’re going to try to introduce all three of them or just one of them.

Hugo L. Black:

Did they?

Reagan H. Legg:

They introduced —

Hugo L. Black:

Did they also do it under the so called three —

Reagan H. Legg:

No.

They never did offer to introduce all other of them and refused to produce the first two.

Hugo L. Black:

And were they all three interviewed?

Reagan H. Legg:

No sir, only the third.

Hugo L. Black:

Well if they offered then to produce them and you objected it.

Reagan H. Legg:

They didn’t.

Hugo L. Black:

Why weren’t they introduced?

Reagan H. Legg:

Well, they didn’t offer to, Mr. Justice Black.

Hugo L. Black:

They did not offer them.

Reagan H. Legg:

They never did offer to produce the first two.

Hugo L. Black:

I’m not talking about to produce.

Reagan H. Legg:

Well, introduce.

Hugo L. Black:

Did they ever offered and introduced all three?

Reagan H. Legg:

No sir.

Hugo L. Black:

I mean that did they offer to introduce?

Reagan H. Legg:

Just one, the third one.

Hugo L. Black:

Which one?

Reagan H. Legg:

The third one.

Hugo L. Black:

That’s the only one that was offered to be produced.

Reagan H. Legg:

Yes sir.

Mr. Justice Fortas in connection with this question which you asked if I may answer, the colloquy here begins on page 87, it extends to two, three pages in connection with this motion.

Now, the prosecution of course had said that on page 90, “No sir Your Honor, he is not entitled to his confessions at all.

And this motion is no good as it is right now.

He’s not entitled — he’s not anymore entitled to the confessions now than was a week ago.”

Whereupon I said “I’m not asking for the confessions.

I’ve told you that I don’t even care to see them.”

Well now I want to call the Court’s attention to the fact that we had already been told that we weren’t going to see it.

And our motion had been denied just a few hours before when we asked the state to produce them, but we did ask that they be produced for the Court to look at them in connection with this second motion to exclude all of them which we were at that time offered.

Abe Fortas:

Now where does that appear, is that — did you just make that request subsequent to page 90?

Reagan H. Legg:

No sir.

I think it — on page 91 we have in the middle of the page over here I think is where we prior to say this as well as on page 91 or 90 where we did say that the Court has got the right to look at it and we were asking that they be produced for the court to examine in camera.

Abe Fortas:

Well I guess that’s what your adversary refers to then fact that this hearing you did say I am not asking for the confessions.

Reagan H. Legg:

And at that particular hearing that is more or less true.

We’d already been told we weren’t going to see it.

Hugo L. Black:

What was your reason for saying you didn’t want them.

Reagan H. Legg:

Sir?

Hugo L. Black:

What was your reason for saying you didn’t want them, I understood you say that.

Reagan H. Legg:

Well Mr. Justice Black if I did say that and I know I did not.

Hugo L. Black:

But I thought you read — I thought you read it.

Reagan H. Legg:

I did, it said that at that point we were arguing the second motion now which was an independent motion and we had already been denied the right to see them.

Hugo L. Black:

You said you were not understood in the other?

Reagan H. Legg:

I said that we don’t want to see them right now but we do want the judge to see it.

Hugo L. Black:

But did you state right now, you thought you did read a different sentence.

Are you sure you said right now?

Reagan H. Legg:

No.

Hugo L. Black:

I understood you to say it —

Reagan H. Legg:

I don’t think if they — but —

Hugo L. Black:

That you didn’t want them.

Reagan H. Legg:

Yes sir, I did and in effect I say that at that point we didn’t —

William J. Brennan, Jr.:

Well this was in the context of your trying to get the court, the trial judge as I understood to look at them.

Reagan H. Legg:

To look at it.

William J. Brennan, Jr.:

And you were saying “Look I’m not asking for myself, I want you to look at them.”

Reagan H. Legg:

Yes sir.

William J. Brennan, Jr.:

Is that what it was?

Reagan H. Legg:

Yes sir.

This is what we were trying to say.

Hugo L. Black:

Well, I understood you to read a sentence that you said you were not interested and didn’t want them.

Reagan H. Legg:

I did say that Your Honor.

I said I am not asking —

Hugo L. Black:

Could you read it?

Reagan H. Legg:

I’m not asking for the confessions, I have told you that I don’t even care to see them.

I want to tell you that these confessions entered inadmissible.

The Court has got the right to look at them at anytime he wants to and can and connection with this —

Hugo L. Black:

That was the whole of the conversation.

Reagan H. Legg:

Yes sir, well that particular conversation, yes.

Hugo L. Black:

Yes, meant on that.

Reagan H. Legg:

Yes sir.

Hugo L. Black:

And that was the only one in which you said you didn’t want to see them.

Reagan H. Legg:

Yes sir.

Thank you.