Ferguson v. Georgia

PETITIONER:Ferguson
RESPONDENT:Georgia
LOCATION:Circuit Court of Montgomery County

DOCKET NO.: 44
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 365 US 570 (1961)
ARGUED: Nov 14, 1960 / Nov 15, 1960
DECIDED: Mar 27, 1961

Facts of the case

Question

  • Oral Argument – November 15, 1960
  • Audio Transcription for Oral Argument – November 15, 1960 in Ferguson v. Georgia

    Audio Transcription for Oral Argument – November 14, 1960 in Ferguson v. Georgia

    Earl Warren:

    Number 44, Billy Ferguson, Appellant, versus Georgia.

    Mr. Maxwell.

    Paul James Maxwell:

    Chief Justice Warren, this Honorable Court pleases.

    This is an appeal from the Supreme Court of the State of Georgia.

    Billy Ferguson, the appellant in this case, a 19-year-old boy who is arrested without a warrant in July the 17th, 1958 at Douglasville, Georgia.

    He was immediately taken to the jail and locked up, where he was questioned for approximately seven hours by about five or six policemen, deputy sheriffs and Georgia Bureau of Investigation officers.

    All of whom refused to take this boy before committing magistrate on the Georgia law to inform amicus right to have counsel.

    And after being confined in jail, he was then being questioned.

    He was forced to take a paraffin test.

    He was finally and mentally coerced into making a confession.

    William O. Douglas:

    Would you speak up a little bit careful?

    What kind of a test was he —

    Paul James Maxwell:

    Paraffin test, Your Honor.

    Paraffin test.

    William O. Douglas:

    But could you describe what — what the paraffin test is?

    Paul James Maxwell:

    Paraffin test, Your Honor, is where they put wax, as I understand it, on your hand to see whether you have fired a gun or not, to see if you had recently fired a pistol or a gun.

    He was indicted by the grand jury on September the 15th, 1958 which was approximately two months after he was arrested.

    He was tried on September the 23rd, 1958 and found guilty and sentenced to death by electrocution.

    The Supreme Court of Georgia affirmed the lower court.

    Now, this Honorable Court pleases, we contend that this appellant has been denied his constitutional rights before his trial, during his trial and after his trial.

    He was not given we contend a fair impartial and legal trial.

    Now, if this Court pleases, Georgia has to say the very least a unique and a distinctive law which is called Section 38-415 in which will be found set out on page 3 of the appellant’s brief in which I would like at this time to read.

    In all criminal trials, the prisoner shall have the right to make to the court jury just such statements on the case as he may deem improper in his defense.

    It shall not be under oath and shall have such force only as a jury who may think right to give it.

    They may believe in preference to the sworn and testimony in the case.

    The prisoner shall not be compelled to answer any questions on cross-examination should he think proper to decline to answer.

    Now, Georgia Supreme Court has repeatedly held that the defense lawyer has no right to ask or assist the defendant in any way when he is on the stand.

    It is our contention, if this Honorable Court pleases, that this Code Section 38-415, as construed by the Supreme Court of Georgia, is invalid under both the Due Process and the Equal Protection Clause of the Federal Constitution.

    Now, I would like to say right here, if the Court pleases, that when I first moved to Georgia about eight years ago, I was indeed surprised that this unique law but I was more surprised that while the Code Section has been in operation since I believe 1868 and there have been hundred of cases taken up to the Supreme Court of the State of Georgia regarding its logic and other factories, no one ever raised the constitutional validity of that statute until I attempted to do so in the Corbin case which is 212 Georgia, page 231 where in the Georgia Supreme Court ruled that I — it was not properly raised and therefore refused to pass on it.

    And it was brought to this Court on certiorari and of course declined.

    Paul James Maxwell:

    The Supreme Court of Georgia like I said before has repeatedly held that they cannot assist in any way.

    Now, if I may illustrate what happens in Georgia, the defendant has told the (Inaudible) upon the witness stand.

    Charles E. Whittaker:

    He’s told?

    Paul James Maxwell:

    He is told.

    He wants — wants — defend lawyer wants him to do this, told about on a witness stand.

    He gets up on the witness stand and the judge turns to him and says, now, Mr. — in this case, “Mr. Ferguson, you are charged with murder.

    You have a right to make to the jury setting over there just such a statement as you want to make if you care to make one.

    You can’t be sworn, nobody can ask any questions.

    Now, go ahead and make a statement if you want to make one.

    Now, this Honorable Court will try to realize —

    Earl Warren:

    Is that exactly what was said in this case?

    Paul James Maxwell:

    Yes sir, Your Honor.

    Earl Warren:

    It is.

    Is that in the record?

    Paul James Maxwell:

    Yes, I believe — I certainly believe it is, Your Honor, and that’s what they mostly, say very seldom do I ever repeat the Code Section word to word.

    However, most people especially a boy like this boy, most people who have never been to a court for anything in their life, they’re tongue tied, they’re nervous, the lawyer — his lawyer might just well get up and go downstairs or outside and go and have a cup of coffee, he can’t do a thing for him, he can’t help in any way whatsoever.

    He gets up there and he’ll stammer around and most of them will say, “Well, I — ” that is — I — look at the jury and say, “Well, I didn’t do it.”

    And none at all else to say, and the lawyer sits there like this, “Tongue tie can’t help him anyway whatsoever.”

    However, the Supreme Court has now interpreted into this Code Section that while the defense lawyer has not — does not have a right to ask any questions, it is discretionary where the judge as to whether he shall be allowed to ask any questions or not.

    Now, as it isn’t — so the City of Atlanta, the criminal court is divided in two sections, two divisions.

    Now, if I may point out to this Court, down at this under the hall as division number one, down at this under the hall as division number two.

    Let’s assume that there was a murder trial about to start down in division number one and a murder trial to start down in division number two.

    The lawyer — the defense lawyer down on number one, says to the judge, “If Your Honor pleases, I know I don’t have any right to ask any questions on the Georgia law but from my help my client out.”

    And that judge says, “Well yes, go ahead.

    Ask him anything you want to ask him.Help him all you want to help him.”

    At the same time — same at the other end of the hall, that lawyer has the same question and the judge says, “Absolutely not, you have no right to ask him any questions and I forbid you to ask too many questions.”

    Now, how can anybody say that that is equal protection of the law?

    John M. Harlan II:

    What’s the fact here?

    Did they usually exercise their discretion (Voice Overlap) —

    Paul James Maxwell:

    No, sir.

    Paul James Maxwell:

    They do not.

    They do not exercise that discretion.

    John M. Harlan II:

    You mean it varies from judge to judge?

    Paul James Maxwell:

    Yes, sir.

    Charles E. Whittaker:

    Did the judge have, if he allowed some questions to be asked by defense counsel, would he then also be able to allow the prosecutor to ask some questions of this defendant?

    Paul James Maxwell:

    Not Your Honor, unless — unless the defendant refused.

    Now, if their defendant says it’s alright for him to ask me questions, then he may do so.

    Charles E. Whittaker:

    I thought the statute said that he — the defendant could not be cross examined.

    Paul James Maxwell:

    Unless, he — if he declines to do so Your Honor, it says, if he declines to do so mostly with this permission.

    Charles E. Whittaker:

    I understand that Section 38416 one following the one you’ve read makes of such an accuse than incompetent witness, but under the preceding section, he maybe likes to get on the stand but not as witness, —

    Paul James Maxwell:

    Yes.

    Charles E. Whittaker:

    — make any statement he wants.

    But, he cannot be cross examined.

    Paul James Maxwell:

    That is right.

    Charles E. Whittaker:

    Is that right?

    Now, wouldn’t it be a little bit in Congress for a witness to be allowed to be examined on direct by his own counsel and still not to allow any cross-examination of him?

    Paul James Maxwell:

    It would Your Honor.

    It would.

    My contention is this, that that Code Section does not say anything about direct examination.

    It stresses and strongly says, “Cross-examination.”

    Now, if the Court is going to interpret the cross-examination means, any kind of examination, that it would be up to the defendant to say, “I would like my attorney to ask me some questions and I would like the Solicitor to ask me some questions.”

    But it has not deemed to be in to be that way.

    It is deemed that he can’t get up and make a statement but he cannot be cross examined if he declines to do so.

    Felix Frankfurter:

    Well, isn’t the — isn’t the null of this case that Georgia had continued to what was essentially under relevantly, recently (Inaudible) at all —

    Paul James Maxwell:

    (Inaudible) law.

    Felix Frankfurter:

    The question is whether the fact that its own law makes it a true law.

    Didn’t I ask you for these questions, these both?

    Paul James Maxwell:

    The answer to — to Mr. Justice Frankfurter is that the old law is embodied in 416 which follows —

    Felix Frankfurter:

    No, I’m not talking about your Georgia but that — that would be in each law.

    Paul James Maxwell:

    Yes, sir.

    Paul James Maxwell:

    Yes, sir Your Honor.

    Yes sir, it was.

    Felix Frankfurter:

    Well, if you mean the competent witness that he could make a statement about whatever he wants to make a statement about, and Georgia has continued that, the only statement you make as I understand it, the question is whether time has so far outlawed that old laws could make it come in competent with the Fourteenth Amendment.

    That’s your — that’s our problem, isn’t it?

    Paul James Maxwell:

    Yes, sir, it is.

    It’s the only State as I understand it in the United States that has such a law.

    Charles E. Whittaker:

    Your statement and your conclusion would make of the accuse defendant, a competent but not a compellable witness, is that your view?

    Paul James Maxwell:

    My view is Your Honor that the whole Code Section is invalid.

    You’re asking my view.

    My view is that it’s all invalid.

    It’s invalid because it denies to the first it denies to the defendant the benefit of counsel that the most important time of his trial when he needs counsel law and he does any other trial.

    Charles E. Whittaker:

    You said both sections of lawyers, is that it?

    Paul James Maxwell:

    I — I believe if the — the part that says that he may make a statement, any statement that he desires to make, I believe that that would mean that he would have a right to have assistance, at least assistance from his own attorney in making that statement.

    Charles E. Whittaker:

    He hasn’t advised him counsel from him — from his lawyer before he gets on the stand the (Voice Overlap) —

    Paul James Maxwell:

    Before he gets on the stand.

    Yes, sir.

    Charles E. Whittaker:

    It is only that he can’t be examined there.

    Paul James Maxwell:

    He can’t be assisted even.

    Charles E. Whittaker:

    Now, would you allow full examination — you think he has to have a full examination and cross-examination?

    Full, is that it?

    Paul James Maxwell:

    I prefer my reference would be — I prefer for the justice on both sides for the defense and for the State if he was allowed to do like you do every other jurisdiction including the federal courts if you want to put the man up on a witness stand and let him get up, he swore in and testify and then be cross examined.

    I don’t see how a jury could arrive at the truth about things if some man is put up on a witness stand and that the judge tells the jury, “Now, you’re going to believe if want to you can believe in preference to a sworn testimony.

    Most people believe in the sworn testimony.

    Now, it is worthy also a note that Your Honors, Justice Whittaker — Mr. Justice Whittaker stated that that is followed by 4 — 416.

    Now, in a reply brief that was stated on page 9.

    They were — they say and even if the Code Section 38-415 is invalid that if found this case would not be benefit since he would be unable to make any statement.

    Now, my answer to that is first of all, we have to cross that bridge if it is invalid when we can’t do it.

    But secondly, I feel a no that the Georgia Legislature at this Court was to rule that that Code Section was invalid on the constitutional grounds which we had certainly asking this Court to do that the Georgia — Georgia Legislature would immediately pass a bill which they have been trying to get them to do.

    Every grand jury presumptive recommends that it’d be abolished.

    And most judges and lawyers on layman preferred to have it abolish than they give into their vagarious way of doing things by having any competent witness.

    Paul James Maxwell:

    Now also, where it says that he is incompetent to show you how confusing this whole thing is on page 14 at the top of the page, of the reply brief, the appellee says, “It is respectfully submitted that the Georgia practice of the law in a criminal defendant who was incompetent to be a witness to make an unsworn statement without being under direct examination buy his counsel is not violated with these vagrancies.

    The part I want to bring out is where it says who was incompetent to be a witness.

    Now in 1951, the Georgia Legislature added to the Georgia Code Section 38-1606 an evidence of following and I quote “provided, however, that this Section shall not prevent a party charged with adultery from being competent to testify as to his or her innocent of such charge.”

    Therefore, defendant charged in the State of Georgia with a crime of filthy is competent but if he’s charged with murder, he is not competent.

    That’s how confusing it is.

    That was an Act of 1951 where they simply made adultery, the crime of adultery a person could be a competent witness.

    Now, this appellant was arrested without a warrant, never taken before committing (Inaudible).

    He’s held in jail for about two months.

    A writ of habeas corpus was taken out on his behalf on September the 4th and the trial judge set that out for a hearing on the 23rd — the 15th day of September, 1958, which was the same day that the grand jury was meeting.

    Now, that was in violation, this holding there was in violation of Code Section 27-212 which is set out on page 3 of the appellant’s brief and with says that any personal arrested without a warrant shall be conveyed immediately or as soon as possible before admitting magistrate and anybody held over 48 hours shall be released.

    When this — and also I’d like to bring out — to bring to this Court’s attention in the appellee’s brief.

    They say on page 17 that there is no evidence in the record of any illegal detention, no record in the evidence of any illegal detention.

    They stated that on page17.

    In the record on page — starting on page 26, 27 and 28, if this Court pleases, the officer, J.B. Cooper says, “We have a Justice of the Peace on this courthouse, I did not stop at that Justice of the Peace or anywhere else and obtain a war of any kind, not on my superiors handed me a warrant or told me that they had a warrant.

    When I pursued in, I had time to stop and obtain a warrant if I had wanted to do it.

    Hugo L. Black:

    Stop at what?

    Paul James Maxwell:

    And get a warrant.

    Hugo L. Black:

    Oh.

    Paul James Maxwell:

    So there is evidence in the brief that he was illegal — that it was an illegal detention.

    Now, the judge set this writ of habeas corpus hearing found for 2:30 on September the 15th.

    In a few minutes, just a few minutes before we go to trial and hearing the writ, it was announced by the Solicitor that the grand jury has indicted the appellant.

    The trial judge then issued a bench warrant for his arrest.

    He issued a bench warrant although he had been in the jail still was and had been for two months but he answered the bench warrant and that he said, “It is now moot because I just issued a warrant.”

    They waited two months.

    They do what they should have done two months previously.

    Now, when he was put in jail and questioned for six — for seven — about seven hours by all these policemen, deputy sheriffs forced to take a paraffin test, we had claimed that that was an illegal detention.

    Now, it is very worthy and worthwhile to notice that on page 9 of the — of the transcript of the record, this confession — to me this is very important, this is a confession that they got from this boy.

    I have been advised of my rights —

    Earl Warren:

    Where do you find that?

    Paul James Maxwell:

    On page 9, Mr. Chief Justice Warren, at the bottom of the page.

    Paul James Maxwell:

    (Inaudible) number first.

    Earl Warren:

    Yes.

    Paul James Maxwell:

    “I have been advised of my rights that I do not have to make a statement of any kind, that any statement I do make can be used against me in a court.”

    The plural is used, “I have been advised that my rights,” but the only right that’s in there recently, it doesn’t have to make a statement.

    It certainly doesn’t say anywhere in there that I have — I may have an attorney if I want one.

    It says nothing about that whatsoever.

    They used the word plural rights for one right that they told him about.

    They did not tell him any other right to have counsel.

    Now, it is very true that later on, somewhere in the transcript here, when he was being questioned by the State Solicitor, one of them said, “Oh, yes, we asked him if he wants a lawyer and he said he didn’t want one.”

    But it was at the beginning of that confession right there where he was advised of his rights.”

    We advised him that he — that I have been advised that I have a right to have a counsel.

    I do not have to make a statement.

    If I do not care to do so, if I had it in all there, I would agree to it but it doesn’t say it there.”

    And that’s what the boy signed and that’s why we have to go on then.

    Earl Warren:

    Did you raise federal question?

    Paul James Maxwell:

    But says —

    Earl Warren:

    Did you raise the federal question?

    Paul James Maxwell:

    In the lower court?

    Earl Warren:

    In the trial court.

    Paul James Maxwell:

    Yes, sir.

    Earl Warren:

    Where on this issue?

    Where did you raise it?

    Paul James Maxwell:

    Oh, I’m sorry.

    You mean on this —

    Earl Warren:

    From what you’ve just been talking to us about.

    Paul James Maxwell:

    You mean this part about the confession?

    Earl Warren:

    Yes.

    Paul James Maxwell:

    I didn’t raise it as saying at the time in a court that it was against his federal rights.

    If that’s what Your Honor mean.

    Earl Warren:

    Where did you — where did you first raise it?

    Paul James Maxwell:

    I raised it all the way through it because a lot of these things, Your Honor, we didn’t know about until afterwards.

    Earl Warren:

    Well, didn’t you know — you know about this, didn’t you?

    Paul James Maxwell:

    I knew about that.

    Yes, sir.

    Earl Warren:

    You didn’t raise it?

    Paul James Maxwell:

    I objected to it.

    Earl Warren:

    Well, you didn’t raise it.

    You didn’t raise it.

    Paul James Maxwell:

    (Voice Overlap) being admitted into evidence because it was a violation of his constitutional rights of being — its confession being used for —

    Earl Warren:

    Where — where —

    Paul James Maxwell:

    — the mistake I made according to Supreme Court in United States was that I use this Honorable Court’s rulings and two federal cases.

    Earl Warren:

    Where — where does it appear in the transcript that you raised that question?

    Paul James Maxwell:

    On page 76, Your Honor, the Supreme Court of Georgia’s ruling under A.

    It says that the Supreme Court of United States, those were the same cases that I raised the issue of the —

    Earl Warren:

    Page what?

    Paul James Maxwell:

    Page 76, Your Honor, A, subject A.

    Earl Warren:

    Well, that’s the opinion of the Court.

    Paul James Maxwell:

    Although — that’s what I raised Your Honor, and they’re saying that — that —

    Earl Warren:

    But where did you raise it in the — where did you first raise it, I asked you?

    Paul James Maxwell:

    In the trial court.

    Earl Warren:

    But where in this record does it show that?

    That’s what I mentioned to you.

    Paul James Maxwell:

    This particular brief available, so it’s in this — that was sent up is of course not the complete one and I’m going to have — to be sorry to say, Your Honor, I don’t know just where.

    It isn’t here.

    Earl Warren:

    Then go ahead with your argument.

    Paul James Maxwell:

    But it was — it was raised about those federal cases as being inadmissible along — in the record that I said it was so inadmissible on all of those facts.

    Now one of the main things, other main points that we have that we did not know what were after.

    The trial of this case was that two of the juror men that tried this case were related to the Solicitor that was to the prosecuting attorney.

    We didn’t know it at the time and we found a lot after the trial.Of course, it was well-known to the prosecuting attorney and a third chairman was related to the sheriff that had trusted the other.

    Now there again, we bring him to Supreme Court of Georgia into this as being a violation of his constitutional rights.

    Paul James Maxwell:

    The only two things that the judge of the lower court in his order overruling the motion for a new trial was bias and the jury who’s being related to the Solicitor.

    Now, the Supreme Court of Georgia held — literally held that it’s perfectly alright for — to have 12 jury men related to the prosecuting attorney in the criminal case.

    Of course, you can’t do it in a civil case but on a criminal case it’s perfectly alright because he’s not supposed to have an interest in the case.

    Now of course, I don’t know if any prosecuting attorney who has ever run the clause, this doesn’t mean they’re doing everything in the world they can to our conviction.

    And I would say that any jury men if they’re related to the prosecutor and the defense did not know it then I certainly would not say if that was an impartial jury by any means.

    I don’t believe that the Federal Constitution for an impartial jury man would be covered by saying if they were relative to other prosecuting attorney.

    Earl Warren:

    (Inaudible) questioning of the jurors on the part here?

    Paul James Maxwell:

    Yes sir, Your Honor.

    There are again the — impermeably honest, the Supreme –not the Supreme Court but the trial judge practically set out a line but I didn’t ask him.

    Earl Warren:

    He what?

    Paul James Maxwell:

    He said the truth I didn’t ask him this question.

    I asked everyone of those jury men because I knew that Douglasville is a small town about 3000 people and I certainly responded enough to know that I was one of the tough time getting an impartial jury.

    And I asked each one of them a series of questions, one of them was, are you related to the Solicitor or to anybody sitting at his table?

    Earl Warren:

    Is that in the record?

    Paul James Maxwell:

    Just a second, Your Honor.

    I will cover that completely.

    The other question was how well do you know the Solicitor?

    Now, the States all fit at the making after the rehearing — the hearing for motion for a new trial, they have 12 affidavits.One from each one of the jurors stated this and submitted up to the trial judge.

    In those 12 affidavits, it says this, “They all admitted that I asked him a question of how well they knew the Solicitor.”

    One of them said that I asked him — yes, I asked him if he was related by blood or marriage.

    Another one said he wasn’t quite sure.

    However, the judge in his order overruling the most of a new trial which is on page 11 of the appellant’s brief, the Court finds as a matter of fact that from affidavits of the 12 jurors sworn who tries that case submitted on behalf of the State of Georgia that the question, are you related to the Solicitor or anyone in his law office or anyone around the table was not in fact and in truth asked of the said jurors individually or collectively when the jurors were being examined.

    Now, the problem now comes up though that we do not have those affidavits and all in this record because the Supreme Court of State of Georgia stopped us from doing it.

    That’s another one of our grounds for asking from up here, where this had gone through.

    When I have time to go to the Supreme Court of Georgia on this appeal, missing parts, there were some missing parts missing.

    Now of course, in Georgia, the lawyer is supposed to check it all.

    That was my fault.

    I make no comments about that.

    That was my mistake.

    However, there’s a Code Section which will be found by on — in the appellant’s brief, on page 4, at top of the page, which says, if however it appears the appellate court —

    Earl Warren:

    Where are — where you reading?

    Paul James Maxwell:

    Page 4 Your Honor.

    Earl Warren:

    4?

    Paul James Maxwell:

    Yes sir.

    On top of the page, Section 6-810 subsection 4.

    If however, it appears to the appellate court an argument of the counsel on the hearing or in the consideration of the same preparatory in making up the judgment of the Court that any part or portion of the record of the case in the court below has been brought up and such — has not been brought up that such part of a record is necessary in the opinion of the Court to read before them an order to fully and fairly adjudicate the question of issue in the alleged errors then the Court show by its order directed to the Court to the court below require them to certify and send up such portions of the record.

    As in the opinion of appellate court, I need full and necessary in order to fully and fairly adjudicate the errors of assignment.

    Now, that has been interpreted word per word as a must on the Supreme Court by Chief Justice Duckworth of the Supreme Court of Georgia.

    When the Court overrules — the Supreme Court overruled it and said that the record wasn’t up there, I came back on the rehearing and asked them about that Code Section and asked to send out and have it sent out.

    Now, they dilly-dally around, they sat down to the lower court what they have would be a word approved brief of evidence.

    Earl Warren:

    I beg your pardon.

    Paul James Maxwell:

    Approved brief of evidence.

    If you have the approved brief of evidence down below, send it up.

    If you don’t, let us know, so of course, the court down below said, “Yes, we have all these affidavits submitted by the State and all down here, but they haven’t — they haven’t approved.

    They don’t have an approved by the judge.

    So the Supreme Court of Georgia said, “Well, if they aren’t approved then we can’t force them to set up.”

    However, in Atlantic National Bank versus Zinc, they held it’s just the opposite of that, which is cited on our brief there.

    And our contention is that the only two things that that lower court and his order overruling a motion from a new trial, the only two things that he mentions both retained to the missing parts were not set up.

    That’s all he refers to.

    We don’t refer to any other ground behind it, just so as two grounds.

    Now, how in the world can a Supreme Court rule that there were no errors in the trial court if they don’t have any forum to go over what his own far as this?

    Earl Warren:

    Was this called on cleaving and practice applicable to both criminal and civil litigation?

    Paul James Maxwell:

    Yes, sir.

    Of course the — our careful reading of the — the record here or not the record but our saying that’s referring to all Supreme Courts’ doings about this will show that the judge has said that these affidavits were kind of — duly and timely presented.

    They were on record in the Court but — in the clerk’s office.

    Therefore, it — I just cannot understand why if all that was done that the judge gave us — gave the State and myself time to file these things which we did file, which he turns around his ordinances that he gave us time and they were duly and timely presented.

    They were filed on the clerk’s office.

    Why anybody could say enough by the record?

    Now, I just don’t understand when the whole order that the judge writes is on that final record and nothing else.

    Charles E. Whittaker:

    Do I understand you to say that those were affidavits by the jurors?

    Paul James Maxwell:

    Yes, sir.

    Charles E. Whittaker:

    And all said that you had not asked these questions?

    Paul James Maxwell:

    No, sir.

    (Inaudible) said that I did not ask them whether they were related to the Solicitor.

    What I’ve said I did ask him if — if he was related to the Solicitor and once that he wasn’t quite sure, but everyone of them, everyone of those 12 said yes, I did ask them the question, how well do you know Mr. Noland, the Solicitor.

    And it’s my contention if I ask a man how well do you know John Jones, he’s a brother of his.

    He ought to come out and say, “Well, I all know him well pretty good, he’s my brother.”

    John M. Harlan II:

    Well, what is the relationship the one that you’re talking about?

    Paul James Maxwell:

    Second or third cousins.

    John M. Harlan II:

    Second or third cousins —

    Paul James Maxwell:

    Yes sir, which in the civil angle in — that the Supreme Court held in Georgia, he would be incompetent.

    Well in the criminal case, he would not be.

    The Supreme Court —

    Earl Warren:

    What — what are their answers?

    What were their answers as to whether or not they knew the prosecutor?

    Paul James Maxwell:

    That Your Honor, their answer was simply what any man would say, I know him pretty well, or I’ve seen him around town, or I have been with him for a while or something, I met him at large, or something like that.

    There was no indication that they were close at all in any way.

    Earl Warren:

    One of those who was relative, the one that you stated that the question had been asked of him?

    Paul James Maxwell:

    No, sir.

    My contention is that the fair and impartial trial is just as much on the part of the State, prosecutors to give you that fair (Inaudible).

    And all do respect to Mr. Noland, I think that he knew they were relatives of his and they should have searched them, because that’s no way to convict the person if I have relatives on the witness stand or on the jury.

    I — I say that anybody who was guilty, if they’ve given all their fair just rights under our way of law and then a jury comes back and finds him guilty, that’s the way we have it in the United States but I don’t feel that there should be any conniving or having jury men or anything else to convict the person.

    Earl Warren:

    Mr. Winn.

    Dan Winn:

    If the Court please.

    If I can take the — an issue of moments of this time to try to narrow the issues of this case before the Court, I think that Your Honors have been able to see that basically, there is only one constitutional question before this Court that is the constitutionality of Code 6 in 38-415 of the Georgia Code allowing the unsworn statement.

    Now, I will, later in my argument, see why I believe that is the only question, but at this point, I would like to clear up one or two inaccuracies that I feel have been presented to the Court concerning the Georgia law on unsworn statements.

    As Mr. Justice Frankfurter stated, this law is a continuation of the common law possibly not quite as broad in the usage as it was at that time because as some authorities, I have studied — stated they allowed the accused to also argue his case at the same time in addition to making such statement as he saw fit.

    In that respect, it is not quite as broad.

    However, in the interpretation given this by the Supreme Court of Georgia and in my experience since there was a statement by counsel for Mr. Ferguson that been my experience it has been extremely liberally construed in behalf of the accused even in the trial courts, and of course, I cannot demonstrate that to you.

    Felix Frankfurter:

    What happened in — would you mind telling exactly what happened in this particular case, Mr. Winn?

    Dan Winn:

    In this particular case, the only — the colloquy is shown in the record if the Court please that is — and not as my friend Mr. Maxwell stated an accused is told to take the stand and I — I believe he — he stated that — in this case, this accused was told to — to take the stand —

    Earl Warren:

    By his counsel.

    Dan Winn:

    That is — yes, sir, but that is not the — that is not the practice.

    He has the right at the time the State rest to present anything he wants to present as in any other court.

    And it was a part of that.

    He wants to make an unsworn statement.

    He can’t either make it or not make it.

    The State cannot — cannot comment on his failure to take the stand or his failure to be a witness at all.

    He cannot even comment on.

    Felix Frankfurter:

    Well, but they couldn’t very well, could they, Mr. Winn, as he can’t be a witness?

    Dan Winn:

    No sir.

    Felix Frankfurter:

    Now —

    Dan Winn:

    The failure to take the stand, I’m sorry.

    Felix Frankfurter:

    May I — it’s failure to make some statement.

    Dan Winn:

    Yes sir.

    Felix Frankfurter:

    May I ask, it’s just for a matter of — to get — get more vividly how you do things down there.

    When the State rest and assume that the defense puts in a defense who are the witnesses, may the defendant may — at the very outset, may be accountable for the defendant to say, “My client didn’t make statement Your Honor,” how much do you wait until if it’s all — if the cases all in?

    Dan Winn:

    He may do that at any time.

    He may never mention that if he sees fit.

    Felix Frankfurter:

    Yes, I know.

    You mean you — he’s not — you don’t compel him to do anything (Inaudible)

    Dan Winn:

    No, sir.

    Felix Frankfurter:

    If he wants to make a statement by way of an opening, he can do that?

    Dan Winn:

    Yes, sir.

    He can make that either at the beginning of the case or at the conclusion of the States case.

    He has a — has a right to make his opening state —

    Felix Frankfurter:

    Could he make it at the beginning of the trial?

    Dan Winn:

    Yes, sir.

    If he sees fit at the —

    Felix Frankfurter:

    Does — does counsel for the — the prosecutor doesn’t tell the jury what the case is about?

    Dan Winn:

    Yes, sir.

    Felix Frankfurter:

    Does then the defendant’s counsel make his statement?

    Dan Winn:

    He may.

    He may at that time make a statement.

    Felix Frankfurter:

    Well, may the — may — the counsel makes — tells the jury what he plans to defend.

    Dan Winn:

    Yes, sir.

    Felix Frankfurter:

    And in addition to that, the defendant himself makes a statement?

    Dan Winn:

    No, sir.

    Felix Frankfurter:

    No.

    Earl Warren:

    We’ll recess now, Mr. —