Fahy v. Connecticut

PETITIONER:Harold Fahy and William Arnold
LOCATION: Beth Israel Synagogue

DECIDED BY: Warren Court (1962-1965)

CITATION: 375 US 85 (1963)
ARGUED: Oct 16, 1963
DECIDED: Dec 02, 1963
GRANTED: Feb 25, 1963

Francis J. McNamara, Jr. – for the petitioner
John F. McGowan – for the respondent

Facts of the case

A jury convicted Harold Fahy and William Arnold of willful injury to public property, for painting black swastikas on the Beth Israel Synagogue in Norwalk, Connecticut. The judge admitted a can of black paint and a paintbrush into evidence. A police officer obtained these items during a warrantless search of Fahy’s garage. The Supreme Court of Errors of Connecticut found that the brush and paint were products of an illegal search and should not have been admitted. The court affirmed the convictions, however, holding that the error in admitting the evidence was harmless.


Was the trial court’s error in admitting evidence obtained during an unlawful search harmless?

Earl Warren:

Number 19, Harold Fahy, Petitioner, versus the State Of Connecticut.

Mr. McNamara.

Francis J. McNamara, Jr.:

Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of Errors of the State of Connecticut to review a judgment of that court affirming the conviction of the petitioner in this case, Harold Fahy, of the offence of violating Section 53-45 of the General Statutes of Connecticut as amended.

That statute provides that any person who wilfully injures any public building or willfully places a bomb or other explosive device in any such building shall be fined not more than $5,000 or a prison not more than 20 years or both.

I might say at the outset that the time this case was tried, there were two defendants, Mr. Fahy and Arnold.

And as the Court may know, Mr. Arnold’s petition was dismissed by the Court on its own motion before the petition for certiorari in the Fahy case was granted.

The facts in this case, if the Court please, are quite simple and a few.

On February 1st 1960 at 4:30 in the morning, an officer of the Norwalk, Connecticut Police Department was conducting a routine patrol on a street in south Norwalk on which there was situated a Jewish House of Worship.

He saw at that time four swastikas painted in black paint on this building.

At the same time, another officer of the same department, Osborne Lindwall, was operating a patrol car a short distance from this house of worship and between that place and the home of the defendant Harold Fahy.

Officer Lindwall noticing that the vehicle being operated by Fahy was operating without lights.

He stopped the car and questions both of the boys, Mr. Fahy, the driver; Arnold, the passenger.

During the course of this interrogation, the officer also made a check of the automobile and he noticed on the floor, under the seat, a can or jar of paint and a brush.

He, of course, at that time did not know the discovery that had been made officer Tigano earlier at that morning.

So that after this questioning period was over, he released the two boys from interrogation.

He did however follow the automobile to the home of the defendant Fahy, and when he saw that they were in the house, he then left and went on about his business.

Sometime after that, it was reported to him that this episode had occurred at this temple in South Norwalk.

It’s not clear in the record how it was reported but it was.

He then put two into together and returned to the Fahy home without any arrest warrant, without a search warrant, and entered the garage of the home, which was situated under the house, opened the door, went in, opened the door of the automobile, removed the paint can and paintbrush from the car, and brought it back to the police station.

Within a few hours thereafter six or eight officers of the Norwalk Police Department returned to the Fahy home with warrants for the arrest of these two boys and took —

How long after was he there after he viewed it?

Francis J. McNamara, Jr.:

About two hours Mr. Justice Harlan.

Returned to the home and took the two boys in custody being forced to actually go into the house and wake the boys up in order to take them out and bring them back to the police station, which they did.

This case which resulted in the judgment which is now before the Court came to trial in Bridgeport, Connecticut, the Superior Court, without a jury on June 28th 1960, approximately one year before this Court’s decision in Mapp against Ohio.

During the course of the trial, the state offered in evidence the paint can and paintbrush, which had been removed by Officer Lindwall from the Fahy home around 5:30 or 6 O’ clock on the morning of February 1st.

Defense counsel’s attempt to explore with the states witness Lindwall, the circumstance under which he had obtained this material were held after five or six questions by an objection by the state that the Federal Exclusionary Rule did not apply in the State Court proceeding.

On appeal to the Connecticut Supreme Court after both defendants were found guilty of this offence, in addition to raising various questions, two questions actually, one as to the sufficiency of the evidence to convict under the statute, and two as to the sufficiency of the information to charge an offence.

We also raise the question of whether or not we have not been erroneously precluded from going into this search and seizure during the trial in view of the Court’s decision, this Court decision in Mapp against Ohio, which had been decided by the time they appealed to the Connecticut Supreme Court had been perfected.

We had felt upon appeal that the record was not entirely sufficient with the questions we were able to ask in lower court to present fully the search and seizure question before the Supreme Court of Errors.

Francis J. McNamara, Jr.:

So that in effect we were asking for either a new trial or for a hearing on the question of whether or not this evidence should have been properly admitted.

The Connecticut Supreme Court took the view that after dismissing our, the two points I previously mentioned concerning the sufficiency of the evidence and the statutory construction, took the position that the record in the case was sufficient for them to be able to make a determination that the search and seizure by Officer Lindwall was unlawful within the meaning of this Court’s opinion in Mapp against Ohio.

So that Supreme Court of Errors did affirmatively decide that the search was unlawful.

They, then however, preceded to find that in view of other evidence in the case, the seized articles, which were admitted in evidence were not sufficiently harmful to warrant reversal, in effect, decided that the normal rules of harmless error applied and that the conviction could be affirmed upon the other evidence in the record.


Francis J. McNamara, Jr.:

Your Honor there were — yes, there were admissions made by both defendants, some at the home at the time they were arrested and additionally at the police station.

The defendant Arnold executed a, what should be termed the confession at the police station.

Mr. Fahy did not, but did make certain oral statements which were testified too.

Arthur J. Goldberg:

(Inaudible) here that the legal statute sees the (Inaudible) for confession, is it?

Francis J. McNamara, Jr.:

Well, Mr. Justice Goldberg, unfortunately that — we never did get to that point in the Trial Court and the Connecticut Supreme Court did referred to the fact that that was not claimed, but of course, we never really reached that point in the Trial Court.

We — my questioning in this whole area was stopped and that provided the basis for the appellate review.

Arthur J. Goldberg:


Francis J. McNamara, Jr.:

We were arguing that without the lawfully seized evidence, the corpus delicti would not have been proven.

That’s correct sir.


Francis J. McNamara, Jr.:

The written confession of the defendant Arnold, at my recollection sir, was in fact received an evidence.


Francis J. McNamara, Jr.:


Did you represent Mr. Arnold?

Francis J. McNamara, Jr.:

I did not represent Mr. Arnold, but I do not believe it was objected to Your Honors, I recall.


Francis J. McNamara, Jr.:

I am, just really to be perfectly candid, not certain whether my co-counsel did object to the admission to that confession or not.

Is it in the record?

Francis J. McNamara, Jr.:

It is in the record I believe, the transcript, which has been filed with the record of the case Your Honor.


Francis J. McNamara, Jr.:

After the — there were Your Honor.

After the state’s case was in, it became abundantly clear that, I am being very frank about this, that at least speaking for my own client that the he was going to be convicted by this judge unless we could convince the court that the element of willfulness in connection with intending to inflict material substantial injury on this building was not in the case.

So the defendants testified, and in effect, admitted what the facts clearly show that they had done this, they denied, both of them that they ever had any willful intent to inflict injury on this building, and —


Francis J. McNamara, Jr.:

Yes Your Honor, that was — that’s about it.

Francis J. McNamara, Jr.:

There had been a great deal of drinking in this situation.

I believe that in a period of about six hours before this episode took place that these boys had drunk tequila, bourbon, brandy, and one another item which escapes me and that was —


Francis J. McNamara, Jr.:

None of the pain, no sir [Laughter].

So as the question which is raised here is the, is Connecticut Supreme Court’s determination that the normal rules of the harmless error apply in a case where unconstitutional evidence has been used at the trial and where the trial has been infected with an unconstitutional procedure.


Francis J. McNamara, Jr.:

We claim that the can and brush, which were admitted by the Trial Court should not have been admitted, that we should have been permitted the Trial Court to firmly establish that it had been unlawfully admitted, perhaps although I have to be very candid and say this was a year before Mapp was decided, but perhaps we might have gone on from there and attempted to show that the other evidence was, the admissions so forth, were further a poisonous tree.

We never got to all of this.

(Inaudible), then you have the case, admitted their search and seizure at least so how by the Connecticut law.

Francis J. McNamara, Jr.:

That’s correct Your Honor.

And for the trial, once you could have gone the trial was related (Inaudible) with your argument.

Francis J. McNamara, Jr.:


My basic point here is that — basically what it comes down to it, first, there is no such doctrine as harmless error where there has been an unconstitutional trial procedure, where a coerce confession has been admitted, where coerce admissions have been received, where unlawfully seized evidence has been used, that the normal evidentiary rules of trial of harmless error did not apply.

And the reason for that, in our view, should be that if the reasons, which lay behind the application of the exclusionary rule to State Court proceeding is to have any validity.

It seems to us that it cannot result in having a little bit of unconstitutional evidence in the case.

That there is no such thing and there can be no such thing under the rule of Mapp and Ker as a little bit of the violation of due process.

It’s like having a little bit of leprosy.

It just — it doesn’t fit.

If there is — it is true that these defendants did do this deed on the day in question, but it seems to us that they were not convicted at a trial that was free from error, an error of constitutional dimension.

What have been the decisions, if any, of the Federal Courts of Appeals to the point to your argument namely a non-coerce impression case?

Francis J. McNamara, Jr.:

Well, the decision in the Courts of Appeals throughout the country on this point appeared it was to be in conflict.

And in our brief we have, I think, cited four of them.

I think one was from New York, McCole case, one was from District of Columbia, and I think two were, if my recollection is correct, from California Ninth Circuit, and they go in different directions on this point.

We say this that our looking at these cases has shown us however that it does seem that these — this harmless error rule had just been applied without a real discussion of its application in light of Mapp and Ker.

And I don’t believe that there have been any decisions that have discussed in that light.

The second point is this in our view.

We don’t think that the Court need to go any further with this case than to decide that there is not such doctrine as harmless error where you are talking about coerced confession and unlawfully seized evidence and so forth.

But even if they were, we don’t want to be heard to say by putting all our emphasis on this first point that we agree with the Connecticut Supreme Court of Errors that the evidence admitted in this case was harmless.

As a matter of fact, it was not.

In the light of the evidence abused by the state was not harmless.

Francis J. McNamara, Jr.:

Actually, just to give a couple of examples, Officer Lindwall who testified at the trial was able to tie this evidence in with the evidence he had seen before in the automobile, Officer Tigano whom I previously mentioned testified that he had gone out to the building after, it matched the paint with the paint in the can that he had matched the size of the strokes of the brush with the brush itself, so that we do not think —

Potter Stewart:

Even excluding — even putting all that one side, wasn’t there still overwhelming evidence of guilt?

Francis J. McNamara, Jr.:

If you —

Potter Stewart:

Putting aside not only the introduction of this unconstitutionally gathered evidence, but also everything that float from it wasn’t there still overwhelming evidence of guilt.

Francis J. McNamara, Jr.:

If you leave out also Mr. Justice Stewart the testimony of the defendant themselves, then I say the answer to the question is no.

Potter Stewart:

Well, you have, first of all, the fact that these swastikas were painted on the synagogue.

Then you have the fact that within the hour, these two young men were found with color black paint and a paintbrush in their car.

There is no claim that was an unconstitutional search and seizure, did they?

Francis J. McNamara, Jr.:

No Your Honor.

Potter Stewart:

And then you have the fact that after an arrest warrant was secured later in the next morning, Tuesday morning, and these, the officers went to these young men to their home.

They freely confessed, and it says, I am reading now from the Court’s opinion, when the police later in the morning came with warrants to arrest them, they admitted their guilt at once and attempted to excuse their conduct as a crime.

Now, isn’t that overwhelming evidence appeal?

Francis J. McNamara, Jr.:

Well, I don’t think you can say — I guess on that record you could, but we must bear in mind that we were never — for example on another trial, we would now explore the extent to which all of the facts, which Your Honor has related, were induced to some degree by the a lawfully seized evidence.

None of this was gone into, so that it’s impossible to tell on this record.

Potter Stewart:

Certainly the fact that swastikas were painted had nothing to do with the corpus delicti if you will.

And the stopping of the automobile and the finding or the observation of the paint and the paintbrushes in car of these young men has nothing to do with the later search and seizure.

Francis J. McNamara, Jr.:

Well, I would have to respectfully disagree only with the last that Lindwall was the only one who was able to connect these items up.

He was able to connect the seized evidence with the evidence he had previously seen in the automobile.

Potter Stewart:

On the other —

Francis J. McNamara, Jr.:

The other two points –

Potter Stewart:

— you are telling now that the seized evidence wasn’t admitted and my only question is even without these seized evidence and without everything that flowed from the seized evidence, wasn’t there still overwhelming evidence of guilt and particularly the admission after there were arrest warrant, the admission, the immediate admission by these two defendants that they have done it and saying only that it was a prank.

Francis J. McNamara, Jr.:

If that — if the admissions, if the admissions were not induced by the unconstitutionally seized evidence —

Potter Stewart:

The evidence wasn’t admitted until weeks or days later at a trial.

Francis J. McNamara, Jr.:

Yes but by that time, the search and seizure had already occurred.

And if the record, the record could have shown if we have been able to go in with the trial, we could have shown possibly that all these admissions.

and I think the admissions are important, flowed from this depravation of due process by the police officers, now it’s impossible to tell —


Francis J. McNamara, Jr.:

Now, I’m glad you brought that back to my attention because I would like to point out one thing.

The Court said, they do not claim.

Now my recollection of the argument is that this point did not come up.

Francis J. McNamara, Jr.:

I think what the Connecticut Supreme Court meant in that opinion was that they do not claim and they did not claim, we did not make it a point in the case, and I would have to conceive now that we did not claim that at the trial.


Francis J. McNamara, Jr.:

I really do not recall Your Honor, I just don’t recall.


Francis J. McNamara, Jr.:

I think they would, I think they would, but again I can’t say that for sure, because the time this case went up on appeal Mapp, it just been decided and my recollection is we actually gave very brief treatment to this problem in the Supreme Court, our main appeal, our main argument in the Connecticut Supreme Court was that while these defendants had committed a reprehensible act, that they had — their actions had not violated this statute that this statute was designed to prevent people from blowing up buildings and not to prevent people from defacing public buildings, As a matter of fact, although it’s probably not too pertinent, before this statute read as it now reads, it had the word the face in it, and the word the face was removed.

BUT the Supreme Court rejected our argument on that and we are therefore here with the search and seizure point.

Potter Stewart:

Well, that’s a matter of the courts or state law, but in addition to the language that my brother Goldberg quoted to you, the Court said, to me it’s the significant, they say, the defendants do not claim nor as the transcript shows could they claim that the illegal search and seizure induced their admissions or confessions.

And I had assumed that the meaning of that language was that to be explained on these later language on page 23, when the Court points out that at the time of a perfectly valid arrest, when the police came there armed with arrest warrants, these defendants immediately admitted that they have done the act in question, long before days if not weeks or months before any illegal evidence was introduced in any trial.

Francis J. McNamara, Jr.:

Well, I certainly Mr. Justice Stewart I cannot claim.

I can make no claim that we push to this point, we pursue this in the trial.

Potter Stewart:

My only question is whether you have a point to force?

Francis J. McNamara, Jr.:

We may well not —

Potter Stewart:

I certainly understand your first point, which is there can be no harmless error that’s certainly very understandable.

I had assumed that you had conceded that this was harmless error and I wonder if it isn’t —

Francis J. McNamara, Jr.:

Well I don’t like to give up on that second one, but I certainly recognize that we have a problem there.

And I’m frank to say that the first point is the one that we really think that is the important one from a constitutional law standpoint.

You mean that there can be no harmless error to violation of the federal or constitutional right?

Francis J. McNamara, Jr.:

That’s right Your Honor.

But it can be but if you have no (Inaudible).

Francis J. McNamara, Jr.:

Well, if the –

The state have to weigh it, but it can be (Inaudible)

Francis J. McNamara, Jr.:

I think that on a question of this kind, which has constitutional law overtones that if the error — if this Court felt upon a review of the record that the error was not harmless, that it could review the State Court’s determination.

Although I agree that questions of harmless error when you simply dealing with evidence was ordinary rulings on evidence.

These are State Court questions brought here —

In fact, they decided under the state statute —

Francis J. McNamara, Jr.:

That’s right Your Honor state —


Francis J. McNamara, Jr.:

That’s right, and they be specifically made that ruling under that statute, but I — the only point we’re making on the second one, and I really — I can only put it the way I put when I put the last one and that is that we just don’t believe that this is harmless.

But we — our main position here is that the Court didn’t reach that point that the mere fact that unconstitutionally seized evidence was admitted this year at the whole trial, and the question of prejudice, questions of harmless error are not before the Court, are not for the Court’s consideration.

This has been the view of the confession cases and others which we’ve mentioned in our brief.

Francis J. McNamara, Jr.:

So that I would simply say that we feel that error was committed, harmful error was committed at the trial, but even if the error was properly could properly be denominated harmless that we’re nevertheless entailed to a reversal, and a new trial, so that these accused can be tried in accordance with the due process, which we feel they did not have in the first trial.

Earl Warren:

Mr. McGowan?

John F. McGowan:

Mr. Chief Justice Warren and members of the Court, the State of Connecticut does not question the state must contained in the petitioner’s brief as to the statutes involved, the statement of facts, and therefore will not reiterate those.

There is only one exception.

My brother in his argument said that when the police officer went to the residence on the morning and questioned, he opened the garage door is not accurate, may not have any significance at all.

It was a wide open garage and he walked in unmolested and he didn’t have to open any doorway.

He didn’t have to breakdown any partitions or anything.

The garage physically was part of the house, but beneath it the living quarters were above, and he simply walked in the driveway and there was the car, and he saw in the car, nobody else in the garage, he did see the can of paint and the paintbrush on the floor of the same car, which earlier that same morning approximately 4:30 or the quarter-to-five he had stopped on a public highway in the city of Norwalk, Connecticut, and enquired of these two young men, what they were doing out at that hour without any headlights lighted.

It was dark at that hour in the morning and that was his reason for stopping it.

He was on a routine police duty in the radio car.

And they said, “Well, we just went off for some coffee.

” And while he was talking to them at that time and when he looked in for the automobile, he saw the jar of paint and the brush, but he did nothing about it.

He took the registration of the vehicle and allowed these young men to go on their way.

Now later on that morning when he was checking out after his night’s tour of duty, it was little after 7 o’ clock, there was a notice on the bulletin board of the police headquarters which had comment from — they complaint it for the effect that someone has painted swastikas on a Jewish Synagogue at a certain location.

Then this officer, I suppose anxious and diligent to be an efficient officer, thought that well that might have been done by these two fellows in the car that I stopped earlier.

It is true he did not obtain a search warrant; it is true he did not obtain an arrest warrant at that time, but on his own, he went down to this residence, he drove into the driveway, there is the garage wide open, there is the automobile in it.

He walked in, he looked in, there with the can of paint and a brush, he took them went back to police headquarters.

Byron R. White:

(Inaudible) he had taken the paint.

John F. McGowan:

Not at that time Mr. Justice White no.

Byron R. White:

What do you mean —

John F. McGowan:

There is — do you mean at the time he went into the garage?

Byron R. White:


John F. McGowan:

There is no evidence that the boys knew it at that time.

Byron R. White:

But they know by the time that, two hours later that they arrested them.

John F. McGowan:


Byron R. White:

And did they know at that time that the paint has been seized or is there any evidence in the record about it?

John F. McGowan:

It’s in the best of my recollection, I did not try this care Mr. Justice White.

It’s in the best of my recollection of the evidence is to this effect that the officers told them what had happened, that they had found the paintbrush and the paint.

And it was then and voluntarily and spontaneous came out from, from Mr. Fahy, because he was the one questioned that, well I only did it as a prank, those are his exact quote.

Byron R. White:

Sounds like Wong Sun.

John F. McGowan:

Well, Justice — these two men — I think Arnold was just staying at his house as a guest and they were in different bedrooms, as I understand the evidence and that’s what Fahy said.

And while I am on that point I just like to emphasize this that state respectfully claims and there is nothing in the evidence to substantiate that there was any false confessions here.

Byron R. White:

Did they go to arrest them in the house?

John F. McGowan:

Yes, yes Mr. Justice White, yes they did.

They went to their house and they knocked at the door, the evidence shows this, and they got no response.

This was, this as approximately about 9:30 that same morning.

The original incident had occurred about 4:30 and about 9:30 that morning armed with a search warrant, with an arrest warrant they went to the house and they finally awakened Mr. Fahy, and they told him their purpose, then they showed him the search warrant or the arrest warrant.

And it was then that Fahy said almost spontaneously, he wasn’t interrogated and forced to say that, he just come out with it, he says it’s only a prank, we only did it as a prank.

Byron R. White:

This is at the front door.

John F. McGowan:

Yes it was, or just inside and —

William J. Brennan, Jr.:

And after the officers said, we’ve got the paint and the brush?

John F. McGowan:

Mr. Justice Brennan I can’t go that far, I am not — I don’t have that evidence at my finger tips, but I would conclude that they probably told them why they were there and why they had a right to go into the house.

And tha, of course, that was a little something further said that, I don’t want to state here, unless I am asked to state it, but there was additional remarks made that would be very significant in this matter.

But in any event, that’s what Mr. Fahy said, and they were then arrested about 9:30 and taken on to police headquarters.

Then it was at the police headquarters that the then co-defendant who was no longer in this case made a written statement admitting.

He was a German alien and he finally withdrew his appeal to this Court, he surrendered to the authorities in Connecticut, and he served his sentence, so he is not in this case whatsoever at this time.

Well now, I am arguing essentially from the record in this case, if it please the Court, and you will note as I have pointed out in my brief —

Earl Warren:

You don’t challenge the finding of the Supreme Court.

John F. McGowan:

No I do not Mr. Justice

Earl Warren:

(Inaudible) the search and seize.

John F. McGowan:

I admit that.

I admit that and I say it in my brief.

We have to in view of the Mapp decision.

However, Mr. Justice Warren this case was decided in June of 1961, no June 1960, your Mapp decision I think was in June of ’61, that’s correct.

This case was tried one year prior to the Mapp decision and at that time, the real arguments in this case and the one that the state principally went up to our state Supreme Court on was they challenged the interpretation of the statute involving damage to a public building.

You will see where they filed demurrers here, challenging the legal sufficiency of that information.

We proceed with the exception of catalog cases in Connecticut on information.

And they challenge the sufficiency of the information and that it claimed, in the first place they, they claimed that Jewish synagogue may not come under the category of a public building.

And then they argued that assuming that that is true that to take a paintbrush and paint some symbols of any kind, in this case swastikas, which have a significance when they are attached to a Jewish synagogue was not a damage to a public building.

At the most it was just the paint job and you could come along with some material and you could scrub it all, but that was the basis for the claim, the errors primarily.

John F. McGowan:

Although it is true that during the course of the trial the defense counsel did try to ask of the arresting officer whether or not he did have a search warrant at the time, because Connecticut did not have the exclusionary rule and the objection was made, and it was sustained on the grounds that it was immaterial in a State Court by arrest of state officers the manner in which evidence was obtained.

So long it was exclusively within the State Court and this was.

And for that reason they allow that evidence in the case and this, both of these men were found guilty by a judge without the jury.

Now from that time on, across pending the appeal in the State Supreme Court of Connecticut the Mapp decision came out.

Then immediately, the reasons for the basis for the errors in this case were predicated upon Mapp, entirely upon Mapp, and of course, with Mapp on their side, it is a difficult problem for the State of Connecticut to argue that this case, that this evidence was admissible.

I do not so argue.

I admit that that evidence should not have been admitted in view of the Mapp case.

However, I do respectfully submit to the Court and it’s in my brief and I can be substantiated by the record here that there was sufficient other evidence besides the paintbrush and the can to warrant a conviction of guilt in this case.

In the first place, it was the hour of the morning; in the second place, this automobile was stopped originally within one block of this synagogue; and thirdly, the spontaneous admission by Mr. Fahy.

Now, I use that word spontaneously advisably.

It just isn’t a word I picked up.

As soon as the officer showed them this search warrant, the arrest warrant, he admitted right of the bat like that.

He wasn’t questioned into doing anything, he just simply, it was a spontaneous reaction what he did.

And he said, he did it because he thought it was a prank.

He was bored and he felt that if he did something that had a little excitement in it, well he’d feel better, and he went off and he did this type of act, which of course not only violates the law but it’s an (Inaudible) act anyway to deface a religious institution.

In view of the great principles of freedom of religion in this country, of course, the state had no alternative but to present them under these fcts.

Byron R. White:

Well, well these facts were essentially admitted at the trial through —

John F. McGowan:

Yes Mr. Justice White, yes they were.

As a matter of fact at the trial, and the transcript show it, substantiate it, Fahy and Arnold both of them, both took the witness stand and admitted that they did it.

They said, yes we did it, and they gave a reason why they did it.

They said we did it as a prank and they gave another reason which I said, which I don’t state here, right now before the Court, but it’s in the record as to why another reason they gave for doing this.

And they readily admitted it.

Now the explanation as to why they took the witness stand and admitted it is argued, well that was because their coerced confessions were admitted prior to.

That is not the reason I respectively argue, because they were claiming that no corpus delicti had been established.

And our supreme Court in analyzing the evidence show that as I just argued the location, the time, and what was found there, that all of those would have established that a crime had been committed, whether or not these or this particular individual committed it or not was a matter for some additional proof.

Therefore the corpus delicti had been established and therefore whatever admission or confession was made was admissible.

And I don’t like the connotation of any coerced confessions being interjected into this case, because on the record that is not true, this was all done voluntarily.

Yes Mr. Justice.

Earl Warren:

Did they prove at the trial that the paint that was in this automobile was the same paint that was on the building?

John F. McGowan:

Yes Mr. Justice Warren, they did by putting on a police officer who had taken the paintbrush and just a little small and about two-inches wide and went back to the synagogue, and he matched the width of the paintbrush with the width of the broadness of this upper end of the swastika and it was the same colored paint.

Earl Warren:

How would they approve that if they didn’t have this unlawfully obtained evidence?

John F. McGowan:

Well, Mr. Justice Warren this is my own personal observation, now because you know I did not try this case.

Earl Warren:


John F. McGowan:

And I would think that it wouldn’t be necessary to obtain a conviction to introduce that type of evidence.

I think and I respectfully submit this that —

Earl Warren:

Well, that I suppose is a part of the evidence that the Court refers to as being overwhelmingly against the defendant.

John F. McGowan:

Well, I thought that overwhelmingly against the defendant referred to evidence aliunde of the paint and the paintbrush.

I think its evidence, otherwise that they found at the crime and I think that the brush and paint were cumulative in nature.

And just simply add it to the other facts down there, as to which would be sufficient without it to — for a finding of conviction.

Earl Warren:

Is it not reasonable to suppose that these young men might not have made those admissions if they had not known that the paint and brush were in the hands of the police?

John F. McGowan:

Alright, well there were two instances Mr. Justice Warren where admissions were made.

The first was about 9:30 that same morning when they went to the home, and I keep using the words spontaneously, I think that’s the only appropriate word, because that’s exactly what Fahy said, and he is the one before this Court, Arnold has given up.

Fahy said spontaneously that well I only did it as a prank.

Now that was on February the 1st.

This case did not come to trial in Connecticut until the following June.

So in an entire interim of five months approximately Fahy then got on the witness stand and said yes I did it.

And he says, I’ll tell you why I did it, I did it because I was bored and life didn’t seem very exciting and I wanted to do something exciting.

And he then said, he went out and painted these symbols on this house of worship.

So there are two separate and distinct occasions of admissions or confessions approximately five months apart.

Earl Warren:

But what, what have you to say to the argument of counsel that if it had not been for this unlawfully obtained evidence and the results that you obtained from it by gathering other evidence, that it’s possible they wouldn’t have been obliged to take this stand.

Therefore, they wouldn’t have done it and you wouldn’t be able to rely on those admissions as a part of your overwhelming case?

John F. McGowan:

Our respective answer, Mr. Justice, Chief Justice Warren is this that that line of reasoning never came into existence until after the Mapp decision.

The evidence would disclose in this case that their objection to any admission to this evidence at all was primarily on the basis of the fact that it had not been connected up with their clients.

They said, they object and the reasons for the objection they say, well it hasn’t been connected up with my respective client.

Now that was the basis for the objection all through until they got to the one question of this officer enquiring whether or not he had a search warrant.

The objection was then made by the then prosecuting state’s attorney and it was sustained under then existing non exclusionary rule in Connecticut.

So that period of five months —

Earl Warren:

Yes, but at the trial, at the trial before they made these admissions themselves, they did object to the introduction of that evidence.

John F. McGowan:

On the ground — the ground for the objection was that that has not been connected up to me, that’s the grounds, and I would assume that from that position that as soon as it was connected up with him, well then that objection became invalid.

Earl Warren:

Well, but they weren’t enabled to pursue that, were they, that was the initial, that was the initial question, now how far they would have gone in cross-examination to prove what kind of a search it was, no one knows, because the Court have said, well now it makes no difference, it makes no difference how we obtain it.

Earl Warren:

It’s evidenced in the state, because we don’t recognize the exclusionary rule.

John F. McGowan:

Correct, at that time we do not.

Earl Warren:

So, they couldn’t, they couldn’t go any farther, they had to recognize the evidence, because it was in there before the Court.

So then they were faced with the situation of what they would do in their defense.

John F. McGowan:

Now to answer to that I go back to my own participation in this matter.

I took this case over when I joined the office.

I argued that very point at the time of the hearing before our own state Supreme Court.

And it was upon my motion voluntarily made that even though this record doesn’t present that Your Honor, I think the record, the transcript should be before this Court referring to the State Supreme Court and upon my motion joined of course by brother McNamara at that time, the transcript of the evidence came up.

In other words, I didn’t want admitting before the Court, I didn’t want anything left out in this manner.

Earl Warren:

Well, I think it’s very frank to be fair of, to do that.

John F. McGowan:

Yes, well that’s the — the records will substantiate to that Mr. Chief Justice.

Tom C. Clark:

We have the transcript here —

John F. McGowan:


In what sir?

Tom C. Clark:

The transcript speech of the —

John F. McGowan:

I believe so, yeah I have my own transcript right here, but I was looking at —

Tom C. Clark:

The transcript to follow these events may have some follow-ups.

John F. McGowan:

Well, Mr. Justice Clark I remember this.

When this matter was in the process of coming up to this Court, I was not a member of this Court.

And I could not sign any papers relating to it.

The man who was named you see and who tried this case Mr. Lauren Willis was no longer in the State Attorney’s office in Connecticut, and as a matter of fact was out of the state.

So there was no one to sign papers as far as I face it, until I was admitted.

So I came down here in the spring of this year and was admitted.

But at that time, stipulations for the record and things like that had been submitted by Mr. McNamara here and had gotten into the record, and I didn’t have a chance to (Inaudible) what constituted to the record.

So I am little bit doubtful whether or not that whole transcript is before this Court.

But it was before the —

Potter Stewart:

We have it — we have it right here.

John F. McGowan:

Well fine, well fine all right, that I didn’t know of thank you, all right.

So I can answer myself and for the Connecticut Supreme Court, because I was the one that had brought up, I am happy that it is here.

And when you read it, you can probably see what I am referring to when I don’t like to make a statement in the public here about some reference that is made in that case.

John F. McGowan:

So I’ll leave it at that.

Now therefore, if it please the Court, based upon this record and the reasons that they gave, you’ll see in the finding at paragraph 15, which is on page 12 of the record, that both defendants admitted that they were the ones who painted the swastikas on the synagogue, and they admitted that the paint and the paintbrush found in the car had been used by them for that purpose.

You see the basic claim of this whole thing is contained in paragraph 4 of the claimed error on page 13, the information fails to charge an offense.

They were still arguing that to paint some symbol of any kind on a public building does not come within the purview of our statute.

They try to claim it was only a misdemeanor and it could be eradicated by some hot water or something else by being rushed on it.

But the Supreme Court disregarded that.

Now that was the prime reason of claimant that there was no basis for conviction, and furthermore that the evidence was incredible upon which to indicate the verdict that was filed.

Then as, Mr. Justice Goldberg has pointed out, our supreme court has stated and I quote it in my brief that the defendants were not claimed nor the transcript show could they claim that the illegal search and seizure induced their admissions and confessions.

So I respectfully submit on behalf of the State of Connecticut the the issues before this honorable Court is whether or not there was any constitutional violation of this accused right at the time of the trial.

It is true since Mapp and, of course, we have changed our procedures out there since then.

We honor the Mapp decision and we do not now offer evidence of this kind in any further criminal position cases, and I am in the Court practically everyday out there trying these matters, and that is, I tell this Court that it is now gone.

However at the time we didn’t have and we just didn’t.

Now if I am allowed by the Court, I would like to cite a most recent decision that I fortunately was advised off.

It’s dated September the 12th of 1963, it’s the case of the People versus Parham, P-A-R-H-A-M, and it’s out of the state of California, the supreme Court of California, it’s in 33, California report 497.

I cite it to substantiate the position that I advanced on behalf of the state that the paint and the brush were evidence cumulative in nature.

And this decision, while it is in on this exact factual background, is a very, I thought, excellent analysis of what constitutes cumulative evidence by a Justice Traynor of the California Supreme Court.

And it isn’t too long a decision and I cite it as the most recent work that I could find on this point as far as collaborating the state’s position that this paintbrush and the paint itself were cumulative in nature and not controlling as to the violation of any constitutional right in dispute and I respectfully ask on behalf of the people of State of Connecticut that this conviction be conferred.

Earl Warren:

Anything further gentlemen?

Francis J. McNamara, Jr.:

Nothing further Your Honor.