Fikes v. Alabama – Oral Argument – December 06, 1956 (Part 2)

Media for Fikes v. Alabama

Audio Transcription for Oral Argument – December 06, 1956 (Part 1) in Fikes v. Alabama

del

Earl Warren:

Goldberg, you may proceed.

Jack Greenberg:

May it please —

Earl Warren:

Greenberg, excuse me.

Jack Greenberg:

As I stated before lunch, the only evidence against the petitioner to establish that he had committed this crime was his confession.

The prosecutrix had testified that she had awakened to find a man sitting on her chest and he’s had a towel draped over his head and they’ve had a lengthy struggle throughout this apartment that traveled over a distance more than 40 feet and she grabbed the knife from him and (Inaudible) from the apartment but she was never able to identify him.

And consequently, the only — and she so testified at the trial.

The only evidence against the petitioner was his confession with this exception.

As I stated, petitioner was indicted for at least six crimes and he had been tried for another one prior to this.

The one which he had been tried was an actual case of rape, not attempted rape, but this one was.

And he had been convicted but he was sentenced merely to 99 years and not to death.

In this case, the prosecutrix who had testified in the first case testified in this case to the effect that she has been raped as evidence of the fact that this was a kind of man who would commit rapes and therefore, the burglary was with intent to rape.

The petitioner in this case is a Negro, 27 years of age.

He was a service station attendant.

He had entered the first grade when he was eight years of age and had graduated from the third grade when he was 16.

There was testimony, if I may quote, that he was “thickheaded” and three psychiatrists testified that he was severely, mentally ill and had been for some time and they diagnosed the illness as something in the nature of schizophrenia.

He was arrested by a civilian, not a police officer, while walking in an alley in a so-called White section of Selma which in fact is about a block or so from the so-called Negro section.

And while, apparently doing nothing illegal whatsoever, a civilian grabbed him and with three other White men stuck him in an automobile to awake the police whom they — whom they called.

The police took him, arrested him on suspicion, and they did not as is required by Alabama law for the extraordinary case of a civilian arrest, they did not take him before a magistrate and indeed, this is not only required by the Alabama law, but this is the custom, the record shows, of the City of Selma when a man is arrested within the city.

There are some evidence that if a man is arrested outside of a city, a different type of warrant is used and he is not necessarily taken for magistrate.

But for someone in the shoes of petitioner, not only the law but the custom was to take him immediately before the recorder.

He was arrested on a few minutes after midnight on a Sunday and although shortly after his arrest, the day after, he saw the Sheriff of another County and his employer, for what purpose is not stated.

He was — the following day, taken to Kilby state prison, a distance of 50 miles from Selma where he was kept as the Warden of Kilby testified a “safe keeper.”

And as a “safe keeper,” the warden testified, he is not our prisoner, so we never feel like we can let anyone see him without getting an okay from the man who was charged of him.

If a man does identify himself as a lawyer, we will do it.

We will go that far.

But the record shows that when a lawyer came to see the petitioner during the period he was at Kilby, he was not permitted to see him.

The lawyer came there, there’s no evidence that he’s been retained.

He said he’d heard of the case and he wanted to see petitioner because he didn’t believe he was guilty.

The warden testified at first that he didn’t know he was a lawyer and then he admitted that he did know he was a lawyer.

Then he said, “Well, he hadn’t given me his address.”

Jack Greenberg:

And then when finally asked —

He hadn’t what?

Jack Greenberg:

Given me his address.

The lawyer hadn’t given his address.

He did testify that he did know him and know of him.

And then finally, he said that — when asked why after the confession a lawyer was admitted without anymore identification or anymore question and during this period of time, he said that — that — he was our prisoner then and we can let him see anybody we like.

The reason for taking him to Kilby was allegedly for protection, for safe keeping.

But the record shows that there were other people in the Selma Jail who were suspected of similar crimes and there were no more reason for the public to be incensed against one prisoner than against another.

There were — and in fact, there was a — there were no threats.

There was no basis for believing that either anybody outside of the jail or anyone inside the jail was going to do any harm to the petitioner.

When he was taken to Kilby, he was kept in solitary.

The word was “segregation” but at any rate, he was kept in solitude and he was kept there for at least a period of 10 days during which 10 days he rendered the two confessions that are at issue here.

During the first five days, he was questioned intermittently, some of the periods of questioning, being as long as three and a half hours.

On one of the days, he was not questioned.

He was just permitted to be by himself in his solitary cell.

At the end of five days, by the States’ own testimony and its own admission, he was questioned a minimum of 20 hours.

Is there any evidence of brutality?

Jack Greenberg:

There is no evidence of brutality, Your Honor, and in fact, the Police Chief who questioned him stated that prior to commencing each question in session, he advised the prisoner of his constitutional rights and so forth.

The — when I say a minimum of 20 hours, the States’ testimony is in such term, well we questioned him for several hours.

I have interpreted several as two.

It could — certainly more than one and it could readily be in — well, in excess of two, certainly three or four, but I have made the minimum interpretation of the word “several.”

The — this is the uncontradicted testimony.

In addition, there is some conflicting testimony that one questioning session was at least nine hours.

This testimony was in a newspaper story in the Selma newspaper.

And when the newspaper left and took the stand, he testified that he got the information from the police officers.

However, later on in the trial when he was interrogated by the State on this, he testified that he had just made the figure of nine hours up out of the year.

But the non-conflicting testimony is at least 20 hours during this period of time.

The end of 10 days — at the end of five days, one confession was obtained and it was tape-recorded.

At the end of 10 days, another confession was obtained and this second confession was obtained again on the basis of the States’ testimony following at least 27 hours.

That is not 27 hours since the fifth day, but from the first day.

Jack Greenberg:

A minimum, at least 27 hours of interrogation, he was in the state prison at that point, 10 days.

On Thursday, the day he rendered the tape-recorded confession, his father drove 50 miles to Kilby to see him, but his father was unable to see him on Thursday and finally did get in to see him on Sunday after the first confession but before the second confession.

The State appears to find some significance in the fact that he was told of his rights before each session or at least so the — so the police officer testified.

Petitioner’s position that a mere pro forma recitation of constitutional rights to a petitioner such as this is not the adequate procedural protection that the constitution requires.

I believe it was in Haley versus Ohio that the opinion of the Court referred to such a merely pro forma recitations of your right to counsel and your right to remain silent and so forth, and noting that in the absence of some more tangible evidence of actual protection of petitioner’s right, such as taking him before a magistrate and so forth as required by law.

Well, that was — did not remove the evidence, the conclusion of coercion.

In addition to which, this petitioner, a graduate of the third grade at age 16 and at least severely mentally ill, is not a person who could be deemed to be adequately protected by a recitation to him by a police officer what his constitutional rights were.

In summary, on this particular point of the confession issue, we have a case in which the prosecutrix was the daughter of a very important person in the community, the mayor’s daughter.

The police testified that they were under unusual pressure to solve the crimes.

The petitioner is a Negro.

He was obviously terrified by the civilian arrest.

If one is frightened by an arrest by the police, at least there is the thought that perhaps he’ll be brought to a police station and things will then start running there in normal and proper course but I — a civilian arrest that petitioner submits is a far more terrifying experience.

He was arrested originally on suspicion.

Either there was no compliance with the Alabama law or in indeed the custom of the City of Selma.

He was driven out to the state penitentiary, where — were not being interrogated.

He was kept in solitary and he was questioned from 20 to 27 hours prior to the first and second confessions respect — respectively.

And as — not mute, but really articulate evidence of the — the nature of this confession, we can really turn to the confession itself.

And on page 233 of the record, there is — commencing on 232, there is the tape-recorded confession taken at Kilby, the first one after the fifth day.

And there’s the captain of the police force interrogating the petitioner.

And at about the eighth or ninth line down, the captain says, “Now, how did you get into that house, William?”

And William says, “Er, I went around to the side window and took a piece of wire and open the screen and come through that.

And the captain says, “In what kind of room were you in then?”

And he hesitates and says, “I was in a — er.

“At this point, if I may interpolate, it’s essential to the State’s case to show he came into the bedroom window because the bedroom window is the window through which the prosecutrix testified the entry was made.

And so he says — repeats again after the petitioner hesitates, “What kind of room was it, William?

Do you remember?”

And he begins to say, “I was in the kitchen.”

He says a part of the word kitchen, but he doesn’t get the word out entirely.

And the police officer says, “In a bedroom with a child?”

And the petitioner queries bedroom and then the captain of police goes on as if it were a bedroom saying, “Now, who was in that bedroom, William?”

Jack Greenberg:

And then William repeats, “The baby,” and so forth and the confession goes on.

Petitioner submits that in the light of all the circumstances that have been related that is persuasive evidence of the coerciveness of the confession.

What was the — what was the differences between the two confessions?

Why was the — why — why was there a second confession?

Jack Greenberg:

Well —

Do you mean —

Jack Greenberg:

— they were — he was asked this — police officer was asked that and he just said he thought he’d better get another confession.

The second confession, just merely assumes bedroom.

He doesn’t ask him where he went into.

The second confession is on page 259 — on 261, about halfway down the page.

Page — on folio, towards this folio 612, there’s some ambiguity as to how he got into the house but it appears that he’s trying to say he went in through a kitchen and about two lines beneath the numeral 612, he says, “Now Williams, the window you went into the house, was it a bedroom?”

And he said, “Yes, sir.”

And I might add that the entire confessions in both cases, this is only some evidence, coerced, and consist of answers to leading questions, yes or no sir, yes or no sir.

Apart from, I’d say, about a fifth of them consist of — of just recitations.

Now, I told you your rights and I haven’t been questioning you for very long and you’ve been treated nicely and so forth.

But the first confession of course is quite explicit.

It’s the way the words were literally put in the man’s mouth.

Now, respondent cites a number of cases in its brief in an effort to distinguish this case from the rules that had been laid down by this Court and I believe we have shown in our reply brief that those cases really are in apposite.

I may mention them just briefly.

There’s the Gallegos case in which the Nebraska confession was given instantaneously upon coming into the custody of Nebraska and the Texas confession, which some members of this Court thought wasn’t inapplicable was rendered after, I think, four days of questioning.

After four days of imprisonment, there was questioning on two days of an hour to each.

Stein case, there was a questioning span, 32 hours.

In the Stein case, the defendants were — this Court held hardened criminals who during the give and take of the confession gave very adequate evidence of their ability to take care of their rights as a reference to the — the bargain they were driving to — before they agree to confess.

Do this man had a previous record?

Jack Greenberg:

He has a previous record.

I think he was picked up for stealing some automobile tires although he was allegedly —

No major —

Jack Greenberg:

No.

This was —

Jack Greenberg:

No major violations, larceny of some tire.

Jack Greenberg:

Is that, right?

Mr. Attorney General:

Yes.

Jack Greenberg:

This– in Stroble against California, the confession also was given in stentor.

In Brown versus Allen, there was no evidence of prolonged interrogation.

And in the Lisenba case, it was noted that the defendant was a man of business experience.

Again, these people are — who are either not questioned to a great an extent or certainly not as terrified and incapable of taking care of their rights as you would assume this petitioner here would be.

Petitioner recognizes that in these cases, this Court does not add up a calculation of days and hours or — and qualifications and so forth.

It’s not merely quantitative but it’s a qualitative evaluation.

But there is a case which just so happens involves a — a similar defendant and a similar number of hours and similar number of days and that’s cited in our brief, it’s Turner versus Pennsylvania.

There was five days in about 20 some odd hours.

In the companion case of Johnson, which this Court reversed the next term, summarily involved, I think only six hours during that same period of five days.

Could I — you said something earlier in the — in your argument that I may have gotten completely wrong that — I thought you said something about this prosecutrix having testified that this man raped her, it’s an attempt — or attempted to rape her pro forma?

Jack Greenberg:

Well, I — I perhaps wasn’t clear.

He was picked up on where — at least six different crimes.

He was tried for one of them before he was tried for this case.

In that first case, the prosecutrix testified that she had been raped and he was convicted and he was sentenced not to death as had been requested by the State but to 99 years.

Now in this case, which involves burglary with attempt to rape, there’s no charge of rape in this case.

The only other testimony apart from the confession is the testimony of the prosecutrix in the first case, now being used here to get the death penalty they couldn’t get in the first case.

To the effect that this is the kind of man who commits rapes and therefore, when he invaded the house then he did it with intent to rape and therefore, it’s burglary in the first degree.

That’s what I — just trying to place the case in its setting.

Now, petitioner submits that the confession in this case is a confession that on the States’ own uncontradicted testimony.

It’s a matter of law has — has been and should be held coerced by this Court.

But we have more in this case.

There, the petitioner offered to take the stand on page 230 of the record to testify as to the admissibility, the admissibility of the confession into evidence and his counsel said, “We would like to make an offer to put this defendant on the stand for the purpose of refuting certain allegations by the State with reference to the voluntary nature of what purports to be certain extrajudicial admissions and for no other purpose.”

Earl Warren:

What was that page?

Jack Greenberg:

230, Your Honor.

Earl Warren:

230.

Jack Greenberg:

To which the States — to which the solicitor say, if the defendant takes the stand, I insist that he be subject to cross-examination on any and every item that is in evidence.

I am not willing to make any agreement of limitation.

And the Court asked a question as to the purpose of the offer and the Court then said, “I sustain the State if the State is not willing to reach a stipulation or agreement on that.But insist that you open defendant for cross-examination of any and every nature, I overrule the motion.”

Jack Greenberg:

Now, the Supreme Court of Alabama on this point held on page 350 of the record.

If he proposed to testify to facts showing that the confession was unduly influenced, he certainly ought to respond to questions as to his guilt in fact and to any matter relevant thereto.

Two judges of the Supreme Court of Alabama disagreed on this point.

They stated that I cannot agree with that part of the opinion holding that the defendant was not entitled to testify as to the facts and circumstances concerning an alleged confession without thereby subjecting himself to cross-examination as to matters pertaining to his guilt or innocence, sanity or insanity.

And there is — therefore, no question as to what the offer was and to what the ruling of the trial court was and to what the interpretation of it was in the Supreme Court of Alabama as there has been in some other cases in which this issue has arisen but has been held not to have been sufficiently mature to be decided.

The Alabama Supreme Court also pointed out that notwithstanding a state statute which relieves counsel of the necessity of informing the Court in detail of what testimony would be.

In addition to the reason for this not being error was that counsel did not inform the Court in detail of what the testimony would be.

Of course there was no doubt in the mind of the solicitor when he objected as to what its nature would be and there was no doubt in the mind of the trial judge or the Supreme Court of the State and there was no objection on this ground.

And in fact, the Supreme Court of Alabama went on to adjudicate the merits of the point.

But petitioner submits that if this procedure should be held to prevail that is if when petitioner takes the stand to testify as to the admissibility and I emphasize admissibility as distinguished from — in another portion of the case as to perhaps the credibility of the confession.

The petitioner takes the stand to testify as to the admissibility of a confession.

He must then open himself up to as the Supreme Court said, as to his questions, as to his guilt in fact or as the concurrent justices said, “Matters pertaining to his guilt or innocence, sanity or insanity.”

William J. Brennan, Jr.:

Only on admissibility taken in the presence to the jury in Alabama?

Jack Greenberg:

Well, Your Honor, the usual practice is to take it out of the presence of the jury.

In this case, it was in — and it’s an acceptable practice in Alabama.

In this case, it was taken in the presence of the jury and that —

William J. Brennan, Jr.:

That objection on the part of it?

Jack Greenberg:

Well, that takes a little explanation.

There was an objection to the presence of the jury.

At that point, the judge called a recess and asked the jury to leave and there was a conference between counsel and the Court.

Then the conference — recess ended, and the jury came back in and there is no further discussion as to why or how or for what reason the jury came back in at that point.

However, it’s clear that counsel wanted the jury excluded because on two subsequent occasions during the trial, not at this point but during testimony of other witnesses on the voir dire or the preliminary hearing.

There was motion for the jury to be excluded and the jury was not excluded, an objection was taken thereto.

But it’s petitioner’s position in this case that as to this point, it doesn’t matter whether jury was in or the jury was out.

Because if the jury’s in as it was here, it’s, of course, highly prejudicial for them to get this evidence as to his guilt or innocence when he’s taken the stand for the purpose of protecting himself from the introduction in evidence of — the only evidence that could convict him and it was unconstitutionally obtained.

But even if the jury were out, then the State could obtain evidence from petitioner’s lips at that point which it could introduce later in its case.

William J. Brennan, Jr.:

Well, do I gather from what you said that Alabama practice does not permit the defendant as of right to insist upon the exclusion of the jury when evidence was taken to — on the question of admissibility?

Jack Greenberg:

I don’t know that there’s a ruling in Alabama that talks about it as of right.

But the Alabama case that I have read occasionally refer to the fact that the jury was out and I’m familiar with at least one other Alabama case since the jury was out.

It’s the — petitioner submits that if this practice were permitted to — were — were upheld, then especially in this case where there’s no other evidence against the petitioner, he is trapped into having to take the stand to keep out of evidence.

Jack Greenberg:

The only thing that can convict him, that was unconstitutionally obtained, then by this, the State can obtain the only evidence which — by which they can later convict him and even if the confession is admitted into evidence and later, the Court would hold that it were erroneously admitted into evidence.

Under the ruling of Stein versus New York, the State could then come here and say that sure there was an illegal confession admitted into evidence but we have other evidence whereby we can convict him, and consequently, the decision below should not be reversed.

A number of state courts have considered this question.

It hasn’t been canvassed through any tremendous extent, but it has been considered by a number of state courts and the Supreme Court of Louisiana has expressed itself most clearly on it and the — the reason for the rule on — quoted on page 17 of our brief.

Louisiana has held that it would be a simple matter for an unconscionable person to extort from the accused while alone, a confession.

And thereafter falsely testify that it was given freely and voluntarily, whereupon the accused would be compelled to take the stand to contradict the witness thereby subjecting himself to cross-examination on the whole case.

Or he would have to let the extorted confession go unchallenged.

Either of these alternatives would do violence, at least the spirit of the Louisiana Constitution.And petitioner submits that that is the consideration that should govern here.

Now there are some cases — this case Wheat against United States, I believe in the Ninth Circuit cited by the respondent.

But that case really points up petitioner’s contention in this case because in the Wheat case, the petitioner sought to take the stand on — after the confession was admitted into evidence.

And on the issue of — to the weight that should be given to it.

And of course when he takes the stand as to a matter of weight and credibility, it could be argued that — then he’s testifying as to the merits of the case, not in the preliminary hearing addressed only to the Court.

And then he should be subject to general rules of cross-examination.

And then of course, in Stein versus New York where the Court held that the question was not reached because it was not sufficiently definite as it is here that he would be subjected to such general cross-examination.

In the Stein case, the respondent’s quotation from the Stein case in its brief is, again, makes the very point that we insist upon here.

On page 22, the quotation from the Stein case was, “In trial of a coercion issue as of every other issue when the prosecution has made a case to go to the jury.”

It’s not this case because there was no case to go to the jury until that confession got into evidence in this case.

An accused must choose between the disadvantage from silence and that from testifying.

Of course as I said, it doesn’t apply here.

There is an additional point in this case and that of the jury exclusion and I shall address myself with — only for a moment.

In this case until the time of petitioner’s indictment, there had never been any grow — any grand jury in Dallas County, Alabama.

When petitioner was first indicted, there was a motion to quash made on that ground.

And the motion to quash was granted although it is not clear whether it was granted on that ground or not whereupon the jury commissioners went about selecting a new jury list.

They — in using this list and in selecting this list, they selected from among persons whom they knew or from persons — they asked persons whom they knew to give them names.

And they also consulted a number of what might be called “impersonal” sources such as the telephone book and the city directory, and I don’t recall whether it was the voting list or the tax list but it might have been something of that sort.

But they used this only in a sense to refresh their recollection.

They went down and they — they saw someone whom they knew on the list then they might have put him into the jury box.

They also made a practice which is not required by Alabama Law of excluding exempt persons.

That is a — like for example, a lawyer or a doctor or a teacher or a railroad engineer might be called for jury service and under the statute, would be given an exemption.

He could get out of it if he wanted to, but he was not excluded from jury service.

Jack Greenberg:

They also made a practice of excluding exempt persons.

At least so they stated because the record did show that whereas there was no evidence of any exempt Negroes in the box.

There was evidence of a small but substantial number of exempt White persons and — well, at any rate, they ended up with about the names of about 300 Negroes in the box.

Now, that may sound like a very large number but in view of the fact that it was 300 out of in excess of 1700, and a view of the fact that there are more Negroes than Whites in this particular county.

The number of Negroes in the box really was not in excess of those found in the Cassell case, for example, where 1 out of 12 was held to be token representation.

This case, that comes out to be somewhat more than I believe 1 out of 7.

They attempt to justify the small number of Negroes on the box — in the box in their brief by stating that — page 13 in their brief, that it was also shown that approximately 90% of the criminal cases in the courts of Dallas Country involved Negroes.

Of course that’s meaningless because that 20 Negroes in Dallas County can constitute 90% of all the crimes.

That does not mean that any substantial number of Negroes in Dallas County are criminals and that a great many of them live in adultery.

There’s no evidence of a systematic application of this standard to the selection of jurors.

But at any rate, the evidence to which it refers indicates that a very large number of Negroes in Dallas County were married by common law marriage, which as I understand it, a perfectly legal and valid form of marriage in the State of Alabama.

Petitioner submits that this built-in factor into the jury selection system that of selecting people whom you know and the fact of putting Negroes or knowing they’re Negroes for the purpose of getting some Negroes into the jury box when, as in this case, it turns out to be under all the circumstance and really a token, violates the standards of this Court it set down in a number of cases and more exhaustively canvassed in the case of Cassell versus Texas.

Were any colored jurymen called to the box, excused or challenged peremptory?

Jack Greenberg:

The box consists of 72 names from which the first 18 are selected for the grand jury and the remainder are selected for the petit juries.

None of the first 18 were Negro and in fact, during past years when there had been a smaller number of Negroes on the — in the box, six or eight or a dozen or 20 during years past, none of the first 18 names that ever came out of the hat were colored.

Name 19 and beyond did contain some Negroes in other cases in the past and did contain some in this case, but they were struck, so they didn’t —

Struck —

Jack Greenberg:

— by both sides.

By both sides?

Jack Greenberg:

Yes, Your Honor.

Felix Frankfurter:

The Court?

Jack Greenberg:

It was by agreement, agreement by counsel.

Felix Frankfurter:

Now, what is the (Inaudible) I suppose you can say that, what is the exact basis on which you then that this constitutes a purposeful discrimination?

Jack Greenberg:

Two things, Your Honor.

First of all, the jury selection system was based upon selecting people whom the commissioners knew or people whom they knew.

Felix Frankfurter:

(Inaudible)

Jack Greenberg:

Yes, and it cannot be expected as was pointed out, I believe Mr. Justice Reed’s opinion in the Cassell case that conditions being what they are and there was a Dallas County in Texas and a Dallas County here.

In Dallas County, that a jury commissioner would have as wide a representation of Negroes in his acquaintanceship as he would have of White.

Felix Frankfurter:

Is that case ruled — is that case ruled that it must be by some lottery, some mechanical non-pressure or lottery.

Jack Greenberg:

I don’t believe that was the — that was the holding —

Felix Frankfurter:

So, that selection involving an element of judgment does not necessarily violate the constitution.

Jack Greenberg:

No, but it would be our contention that the judgment should be — the question is at what point should the judgment be exercised.

You can select —

Felix Frankfurter:

Before you go into it, why they have allowed you to go —

Jack Greenberg:

Yes.

Felix Frankfurter:

— that by itself couldn’t be announced, and it may not on the basis of people they know to the jury commissioner (Inaudible)

Jack Greenberg:

No, not — not that itself, but you see the point at which the judgment is exercised is the point to which the Negroes are excluded.

If they were selected by some arbitrary objective method —

Felix Frankfurter:

(Inaudible) — you said in one case, it — out of — how many there was in — what’s the number?

A little while ago in answer to Justice Harlan.

Jack Greenberg:

They were about 300, about 300, which is a large absolute number but in terms of the population in the county is really not such a large number at all.

Felix Frankfurter:

But — but you also said they don’t have to — this isn’t a merely arithmetic problem.

Jack Greenberg:

No, it’s not, Your Honor, no.

Felix Frankfurter:

Then where is the — what — in this case was purposeful discrimination.

Jack Greenberg:

The purposeful —

Felix Frankfurter:

As shown by the record.

Jack Greenberg:

The purposeful discrimination was using this method of selection at the point at which the personal knowledge was used, that’s the — personal knowledge was used at the point of initial selection, not at a — see, the Alabama statute proscribes a perfectly — a good method of selecting jurors.

It says you shall place in the box name of every person in the county with the following qualifications, and these are unexceptionable qualifications.

Felix Frankfurter:

And that the — whether or not the qualifications were revealed in a particular potential juror, that was left to the judgment, wasn’t it?

Jack Greenberg:

That was left to judgment.

Felix Frankfurter:

You don’t complain of that as an abstract system.

Jack Greenberg:

No, I don’t.

No, I don’t complain of that as an abstract system.

Felix Frankfurter:

Now, if — if the system is all — is not in — in and of itself discriminatory, and then it was drawn into place, again to be applied of a jury commission, what’s the name?

The official —

Jack Greenberg:

Commissioners, yes.

Felix Frankfurter:

Commissioners.

Now, what is it that he did on which you rely to establish a purposeful discrimination?

Jack Greenberg:

Well, if he saw the name of — someone suggested the name of a Negro to him or if he saw the name of a Negro in the city directory, and the race is placed after your name in a city directory as to whether you’re Negro or White, he would say, “Well, I don’t know him,” and therefore, he didn’t even consider him.

Whereas if he saw a White person whom he knew or a Negro whom he knew, he would say, “Well, I know him and he has good moral character,” or “he has bad moral character.”

Jack Greenberg:

Now, he did not say, “Let’s take the name of every White person over 21 years of age and then — or every person over 21 years of age and then find out whether he has good moral character or not.

We’ll make some investigations no matter how cursory.

If he didn’t know a Negro, he didn’t consider him any further to find out whether he had it or not, and of course, he can’t be expected to know many Negroes under those — under the circumstance.

Felix Frankfurter:

The record show how irrelevant almost, nonexistent in the (Inaudible) of — how big is this City of Selma?

Jack Greenberg:

Well, there were — included Selma and the counties, there were — I would say in total about 13,000 persons who contain prima facie evidence of jury service, at least over 21 —

Felix Frankfurter:

Of that 13,000, how many were Negroes?

Jack Greenberg:

Somewhat in excess of 7000.

Felix Frankfurter:

How many?

Jack Greenberg:

In excess of 7000.

Felix Frankfurter:

7000.

How many in fact are the — take on the — both the grand and petit jury?

Jack Greenberg:

Between 250 and 300.

Felix Frankfurter:

Of those 250 and 300, did the record show how many was Negroes?

Jack Greenberg:

Well, he picked 250-300 Negroes.

Felix Frankfurter:

So 250.

Jack Greenberg:

Out of — out of 1750.

Felix Frankfurter:

How many did he put in — how — how many name did he put in the box —

Jack Greenberg:

Seven —

Felix Frankfurter:

— altogether under which he knew to the grand jury and then the petit jury.

Jack Greenberg:

Well, 1750 names were initially put in the box.

Felix Frankfurter:

1750, how many were respectively going to be colored?

Jack Greenberg:

Between 250 and 300 were colored.

Felix Frankfurter:

250 were colored.

Jack Greenberg:

Yes.

Felix Frankfurter:

And you — what you say is that if he had examined the people, the colored people whom he didn’t know or haven’t informed himself on, there would have been more than that, is that what —

Jack Greenberg:

Yes, Your Honor.

Felix Frankfurter:

But you’re not saying that out of the total from which selection was made, there was a disproportionate number of colored, the accepted proportion because of the exclusionary principle, is that right?

Jack Greenberg:

Yes, because of that exclusionary principle, yes.

Felix Frankfurter:

Not that out of how many were (Inaudible) the final block out of the —

Jack Greenberg:

1750.

Felix Frankfurter:

No, no, no, the lot out of which he finally selected the grand and petit jury.

Jack Greenberg:

72.

Felix Frankfurter:

72.

Out of those, how many were colored?

Jack Greenberg:

I think there were about four or five.

Felix Frankfurter:

Four or five.

Twelve.

Jack Greenberg:

Pardon me?

Twelve.

Jack Greenberg:

I may be wrong.

I thought there were about four or five in — in them of the 72, and maybe more.

Felix Frankfurter:

And — and so far as the system goes, this is a fair example of how they’re being operated, one in the six, or one in the ten, which is colored.

Jack Greenberg:

You mean this — the proportion of Negroes in the 72 was approximately the same —

Felix Frankfurter:

No, I mean, there was — there were Negroes on the jury.

Jack Greenberg:

Yes, there were always some, yes.

Felix Frankfurter:

And so it finally gets down to the fact that honestly (Inaudible) so far as the largest necessarily of — proportionately or (Inaudible) because there the — wasn’t precluded by saying I don’t know and thereby (Inaudible).

Jack Greenberg:

That’s true.

Felix Frankfurter:

That’s what the case get started.

Jack Greenberg:

That’s what — that issue (Inaudible) anything else.

Mr. Greenberg, a little while ago when you — when they finally got down to the jury, you said both sides struck the Negroes off the list and you said that was by agreement of counsel.

What does that mean?

Jack Greenberg:

Well, except — apparently, the counsel on both sides agree that these few Negroes who were in the petit jury should be (Inaudible) what the record says on it, it says, the judge will be — recites this —

Did the petitioner agree that the — that the Negroes could be or should be excluded?

Jack Greenberg:

This is to the petit jury, Your Honor —

Yes, but (Voice Overlap) —

Jack Greenberg:

— not the grand jury.

(Inaudible) the petit jury, but the — I’m questioning whether the petitioner agreed to there not being — they’re not serving on the jury.

Jack Greenberg:

I believe he agreed to that, yes, on the petit jury, yes.

Earl Warren:

Wasn’t there something in the record to show that that was a custom in the community?

Jack Greenberg:

Yes, it had been cut.

Earl Warren:

What — what was that?

Did you know if you don’t why the —

Jack Greenberg:

The record — the record indicates that — you see, there had never been a Negro in a grand jury, but there had been always been maybe a dozen or two dozen in this box of about 1500, and some of them had been — some of them had been pulled out of the hat after number 18.

They never came up before number 18 which would have put them on the grand jury, and they got on to the petit jury.

Felix Frankfurter:

The 18 was selected by way of a lottery.

They were —

Jack Greenberg:

Yes, they were pulled out of — well, there was a —

Felix Frankfurter:

How — how did it turn out to be if they were all White?

Jack Greenberg:

I don’t know.

Felix Frankfurter:

Are you complaining of that?

Jack Greenberg:

Yes, Your Honor, I’m complaining of it, but frankly, I have no explanation for it.

It — it may have been to me, entirely candid about it.

There were only maybe a dozen or so Negroes in the box of 1700 until recently, and so it’s not too farfetched to say that such a small number out of well over a thousand could always come out after number 18.

The experience of this one case, if — if this case — this had happened in a number of occasions and we have no evidence as to whether it’s happened subsequent to the trial of this case.

This had happened in a number of occasions.

I think that we would quite probably complain, but I don’t believe there is sufficient experience at this point to raise a suspicion in my mind, surely.

Felix Frankfurter:

But — but you – you can’t (Inaudible) — but you don’t raise that point in this case.

Jack Greenberg:

No.

No, not as such.

It’s a — I think it’s —

Felix Frankfurter:

(Inaudible) conscious selection of White out of the group that contains those Whites and Negroes for — if there’s a grand jury, you don’t complain of that?

Jack Greenberg:

I — I don’t —

Felix Frankfurter:

Don’t complain that — that with eyes wide open, they saw to it that no Negro got on the grand jury.

Jack Greenberg:

No, I — no, it’s the method of selection.

Felix Frankfurter:

Then you should have just to the fact that —

Jack Greenberg:

No.

Felix Frankfurter:

— through this record.

Jack Greenberg:

No, it’s — it’s — I would say it’s this built-in factor in the jury system that if they don’t know a Negro, they don’t consider whether he has good moral character or not.

Felix Frankfurter:

That wouldn’t — no, that’s a different story.

That wouldn’t explain why 18 Whites (Inaudible)

Jack Greenberg:

No, it wouldn’t, Your Honor.

Felix Frankfurter:

Yet, the law of probability might explain that.

Jack Greenberg:

Well, probability might explain it when you had maybe six or eight Negroes in the box.

I don’t think probability explains it when you have 300 though probability might explain it on one experience.

If this was a third case after the system and —

Felix Frankfurter:

And if —

Jack Greenberg:

No, it isn’t.

This is the first —

Felix Frankfurter:

You haven’t — you haven’t thought a recurrence of inexplicable phenomena always going the same way.

Jack Greenberg:

I’ll be frank with Your Honor, I have attempted to obtain evidence of what the experience has been subsequent to this case and I have been unable to obtain it.

Felix Frankfurter:

All right.

I understand.

Therefore, what that means to me you can’t — therefore, there is no purposeful discrimination observed from the Fourteenth Amendment as to that.

Jack Greenberg:

As to that.

That’s right.

William J. Brennan, Jr.:

Are there any minimum of qualifications to the jury service?

Jack Greenberg:

Yes, there are, Your Honor, and the statute is in the respondent’s brief.

It’s — I would say probably a typical type of statute.

William J. Brennan, Jr.:

Is there any — any evidence on whether inability to qualify may have resulted in reducing the number, the 250, whatever the number you gave us?

Jack Greenberg:

Well, the State refers — may have brought it down to that small number you mean?

William J. Brennan, Jr.:

Yes.

Jack Greenberg:

The State would —

William J. Brennan, Jr.:

I heard you have said earlier, didn’t you that the number of Negroes in this county is greater than —

Jack Greenberg:

Yes, Mr. —

William J. Brennan, Jr.:

(Inaudible) the number of Whites.

Jack Greenberg:

Yes, it is.

The State makes a point in explaining this that many Negroes lived in adultery and 90% of the crimes were committed by Negroes but I submit that’s not a sufficient explanation because even though 90% of the crimes were submitted by Negroes, this could be five Negroes who were committing this 90% of the crimes.

William J. Brennan, Jr.:

I was — I — that is —

Jack Greenberg:

Well, that’s their explanation of it in this — I don’t think that —

William J. Brennan, Jr.:

I wasn’t getting at the — I gather that’s a moral qualification.

William J. Brennan, Jr.:

I was getting at whether there was — or any other minimum qualifications.

Jack Greenberg:

I believe there is this sort of a —

William J. Brennan, Jr.:

(Inaudible)

Jack Greenberg:

There is an education qualification but there’s also another provision for waiving it in some cases, I think.

I should like to reserve the rest of my time for rebuttal, if I may.

Earl Warren:

You may.

Mr. Straub.

Robert Straub:

If it please the Court, the record here before us deals with a great number of facts which we think are pertinent to an understanding of the applicable rules of law and I would like briefly to go through the facts first of all leading up to the confessions which were before the Court and which deal directly with whether or not the confessions were coerced and the question, whether or not he was denied his rights and not being able to testify as to the voluntariness of those confessions without further cross-examination.

Now, as has been stated, the petitioner was picked up wondering around an alley about — about midnight of Saturday night or early Sunday morning.

And he was taken to the police station were he was booked on an open charge of investigation.

Now, the next morning — he wasn’t questioned any that night, it doesn’t appear.

The next morning, beginning about 10 o’clock, he was questioned for about two hours by the captain of police.

Now, the captain testified that that was intermittent questioning.

It — the routine business of the police station was being carried on at the same time and they would stop and see these folks and those folks and get a drink of water and so on and so forth for about two hours.

It wasn’t a constant grueling questioning according to the testimony.

Felix Frankfurter:

What hour of the morning?

Robert Straub:

Began at 10 o’clock, Your Honor, 10 o’clock to 12 approximately, the testimony shows it.

Felix Frankfurter:

(Inaudible) getting the rule, to segregate the environment in which this —

Robert Straub:

In the police captain’s office as I recall.

It was in the station itself, somewhere there.

Now, in the afternoon or some time during this questioning period, the petitioner apparently asked to have the sheriff of his home county.

Now, he was not a native of that particular county.

He was from a neighboring country some 28 miles away.

Hugo L. Black:

What county?

Robert Straub:

Marion County — Perry County, excuse me, Marion, Alabama in Perry County.

And he requested to that sheriff to be notified of his predicament and he also requested the people to notify his employer over in Marion and the police officers did so.

And the sheriff of Marion County whom he had requested to see came to see him at Perry County, came to see him that Sunday afternoon to see what was — what was wrong.

And during the course of the questioning in the afternoon, the sheriff of Perry County together with police officers and the petitioner rode around town for about 20 minutes, I think, in between the questioning periods of that afternoon.

Now, on Monday —

Felix Frankfurter:

How long was that questioning period according to your accounting?

Robert Straub:

According to my accounting and to the testimony, Your Honor, for two and one-half or three hours on Sunday afternoon.

Felix Frankfurter:

Including this ride around?

Robert Straub:

Including this — and during that two and a half or three hours, they took 20 or so minutes out.

Felix Frankfurter:

Well, this — but the drive — did the driver have any — had any particular objective, visit the houses where the —

Robert Straub:

They visited — they drove around some of the houses.

They did not stop apparently and then go in or go around back or anything like that, but they did drive around town during this time.

Now, on Monday morning —

Felix Frankfurter:

(Inaudible) or not?

Robert Straub:

It does not appear.

On Monday, the petitioner’s employer then, also in response to his request, came to see him.

And at that time, a warrant was made out against the petitioner and served on him.

Now, they questioned him on Monday for about one and a half or two hours in the morning beginning about 9 o’clock.

Now, he had been permitted to sleep, eat during Sunday evening then about 9 o’clock in the morning, they — they questioned him again.

Now in the afternoon, about 3 o’clock, they took him to Kilby Prison.

Now, Kilby Prison is about 50 or 55, perhaps 60 miles.

It’s distance from Selma to Montgomery.

Now, this testimony is that they took him there for his own protection and has been brought out that there was no threat and violence, nobody had actually attacked the petitioner and no demonstrations had come about.

Felix Frankfurter:

Was there any suggestion of an inflamed public opinion to the press in this case?

Robert Straub:

The only press articles in the record before us is the one spoken about by counsel for petitioner regarding the confession.

There is no evidence of inflamed public opinion.

Felix Frankfurter:

Sunday and Monday and the day —

Robert Straub:

No, sir.

Felix Frankfurter:

— to Kilby, that was not related to any.

Robert Straub:

No, sir.

But we take this position on that Your Honor, that although no violence appeared, the crime was of such a nature and the circumstances such that we see nothing wrong with the police officers protecting their prisoner and themselves for that matter by taking him away from where — why wait until something breaks out and then try to stop it?

Go ahead.

Felix Frankfurter:

Up to this time when he was taken, had he been charged with anything?

Robert Straub:

On Monday, he was charged with burglary in the second — in the first degree.

Felix Frankfurter:

(Inaudible) before he was taken.

Robert Straub:

Yes, sir.

Robert Straub:

Before he was taken to Kilby.

Earl Warren:

Was he taken to a magistrate before he —

Robert Straub:

No sir, he was not.

Earl Warren:

— before they went to the penitentiary?

Robert Straub:

He was not.

Earl Warren:

Why?

Robert Straub:

It doesn’t appear why, other than this that he would have ordinarily been taken to the city recorder since he was picked up by the city police — I mean, turned over to the city police.

But in cases where they don’t request a preliminary hearing or they’re not going to appear before the city recorder, they’re not put on the docket, not taken.

If they request just preliminary hearing, they are taken before the city recorder when they’re picked up by the city police.

Earl Warren:

Was he told before that time that he had a right to —

Robert Straub:

Testimony of Captain Baker, I believe, or perhaps the chief of police, one of those two officers is to the effect that he was told of his rights but did not request a preliminary hearing.

Earl Warren:

When was he told?

Robert Straub:

Shortly after he was picked up or at least on Sunday during the questioning.

In fact, the police officers testified that before every period of questioning, they told him of his rights.

They did enumerate them, but in response to — when they were dealing with — in the questioning in the case with whether or not he was taken to a magistrate, one of the police officers, or perhaps both of them testified that they did explain his rights to him, but he did not ask for a preliminary hearing.

Earl Warren:

I understand from you then that it is the custom not to take them before a magistrate, unless, they demand a preliminary hearing.

Robert Straub:

If they demand a preliminary hearing as my understanding of the practice, it’s usually the custom not to take them.

If they want a preliminary hearing, they go to a magistrate.

If they want bond of course the judge have to set a bond.

Earl Warren:

How long would you hold him in jail without taking him before a magistrate under those circumstances in accordance with your practices?

Robert Straub:

Well sir, I — I can’t answer that question.

I don’t know.

Earl Warren:

Could it be weeks?

Could it be months?

Robert Straub:

Oh no, sir.

I would not think so, no.

Earl Warren:

Well, what would you — how would you accomplish it and when would you accomplish it and according to your custom, let’s say how did the grand jury didn’t meet to indict this man for a month or so when — what would you do?

Would you just leave him in jail there all that time without taking him to a magistrate?

Robert Straub:

If he requested to be taken before a magistrate or requested a bond or requested a preliminary hearing, we would take him immediately.

Earl Warren:

What is the law — what is the law of Alabama say as to whether he shall be taken to a magistrate?

Robert Straub:

The law on — and rest under these circumstances where a civilian arrests and turns him over to the police, he shall be taken forthwith to a magistrate.

That is law.

Now —

Earl Warren:

You mean then that they — they go absolutely contrary to the law in your practice in Alabama?

Robert Straub:

I’m speaking, sir, of when he is arrested by a civilian and turned over to the police then the police must forthwith take him to a magistrate.

Earl Warren:

Isn’t that what happened here?

Robert Straub:

Yes, sir.

However —

Earl Warren:

Well, you don’t — you don’t say then that this was in accordance with customer practice.

Robert Straub:

No, sir.

Earl Warren:

This was contrary.

Robert Straub:

I do not — I say that this is not according to the law, to the statute.

It is not according to the statute.

We — we are afraid to admit that because it just appears that.

Earl Warren:

Yes.

Robert Straub:

However, the Alabama cases as I would deal later have held and has — that the failure to comply with that statute does not of itself render a statement or a confession taken under those circumstances involuntary.

Now, during the trip to Kilby Prison, there was only general conversation as the record states.

He was taken there and entered under the order of a circuit judge of the Selma Circuit.

He was questioned some that afternoon and for a little while after supper.

Now, it doesn’t appear how much.

It says he was questioned for several hours that afternoon while he left Selma at 3 o’clock and so it was a matter of driving 50 to 60 miles before they could question him again and then it said we didn’t question him too late in the evening and it doesn’t appear how much at that time.

Felix Frankfurter:

Mr. Attorney General.

Robert Straub:

Yes, sir.

Felix Frankfurter:

I heard you say a minute ago that when he was taken to Kilby Prison, he was taken there by — on the basis of an order of a Circuit judge.

Robert Straub:

Yes, sir.

That is right.

Felix Frankfurter:

Then there is some judicial act, who — who was the Circuit judge who —

Robert Straub:

That does not appear, Your Honor.

Felix Frankfurter:

Well, somebody must have asked —

Robert Straub:

Somebody asked or obtained.

Felix Frankfurter:

You’ve been (Inaudible) the circumstance.

Robert Straub:

I beg your pardon.

Felix Frankfurter:

Somebody must have asked the judge that —

Robert Straub:

Yes, sir.

Felix Frankfurter:

— we’ve got this fellow and for these and these reasons, do you think he ought to be taken to prison?

Robert Straub:

Yes, sir, somebody, and it doesn’t appear.

Felix Frankfurter:

And there was some kind of judicial — there was some kind of judicial intervention at that point.

Robert Straub:

Yes, sir.

It does not appear —

Felix Frankfurter:

I’m not suggesting that was an arraignment.

But there was some —

Robert Straub:

No.

Felix Frankfurter:

— some judicial —

Robert Straub:

We do not contend it was an arraignment because it does — we — we don’t know.

But we do know that either ex parte or bringing him up there somehow or rather a circuit judge knew that he was in this — that he was — had been arrested and that they wanted to take him over to Kilby Prison and so —

Felix Frankfurter:

Which I infer that the police couldn’t do this on their own say so.

Robert Straub:

I doubt very much, Your Honor, if the prison officials would accept a prisoner without some order.

I’m pretty sure that they would not.

Earl Warren:

There was no affidavit as a prerequisite to this order and no —

Robert Straub:

No, sir.

Earl Warren:

— testimony taken.

Robert Straub:

No, sir.

Earl Warren:

No evidence of the defendant being taken before the judge?

Robert Straub:

No sir.

Earl Warren:

No consent of the defendant.

Robert Straub:

No, sir.

Earl Warren:

Nothing then?

Robert Straub:

Nothing.

Just the fact testimony in one or two places that there was an order of a Circuit judge and the order itself by the way does not appear in the record.

We don’t know what kind of an order it was.

Robert Straub:

There was some sort of judicial intervention there to that extent, that limited extent.

Now, he was placed in what the prison officials at Kilby Prison called segregation during his stay.

Now, this is not solitary confinement in the sense that he is placed in a dark cell and not allowed to see anybody or talk or anything else.

It’s customary with prisoners who are being held for other authorities to segregate them from the general run of prisoners there at Kilby Prison and excel itself according to the testimony has a comfortable bed and all of the conveniences.

He’s just not allowed to mingle with the prisoners who are there serving a term.

That apparently is customary not only in case of prisoners held or other authorities but in new prisoners coming in for a short period of time.

Now, he got there on Monday and he was not questioned again until Wednesday.

It doesn’t appear how long he was questioned on Wednesday except for the fact they had several conservations with him.

Then on Thursday, no questioning in the morning but in the afternoon, they had two conversations with him, one lasting two hours and one, one and a half hours.

Now —

Felix Frankfurter:

You used the word — you said “they” throughout, could you indicate whether how many constituted “they” —

Robert Straub:

Yes, sir.

Felix Frankfurter:

— that relayed the questioning?

Robert Straub:

No sir.

The relay questioning was not used.

Apparently, Captain Baker was the chief interrogator and he came — he was present at all of the sessions, I believe.

A Lieutenant Ware came at sometimes and one or two of the prison officials at sometimes were in and out but apparently took no part in the questioning and no appreciable amount of questioning.

Hugo L. Black:

Captain of what?

Robert Straub:

Captain of police, police captain in Selma.

Felix Frankfurter:

But it wasn’t the case, it’s the insertion of — interrogated until themselves got tired but continued —

Robert Straub:

No.

Felix Frankfurter:

— to sweat the (Inaudible)

Robert Straub:

No, sir.

Felix Frankfurter:

That’s clear in the case.

Robert Straub:

That to me is clear in this case.

I believe, Your Honor, will find it so by reading the record.

Felix Frankfurter:

If it was —

Robert Straub:

Yes.

At this Thursday afternoon question, he was advised that anything he said would be recorded and they showed him the recording apparatus and took a recording of his confession.

Thereafter, they — they left him rest until Saturday.

Robert Straub:

They didn’t — apparently he went back to his cell and stayed until Saturday.

And then they talked to him for 15 or 20 more minutes in the morning and about three and a half hours in the afternoon.

On Sunday, his father came to see him.

Sunday is visiting day at — at Kilby and his father came to see him.

No questioning on Monday.

On Tuesday, the officers drove back again to Selma — from Selma.

Earl Warren:

Did his father see him on Sunday?

Robert Straub:

Yes, sir.

While he was —

Earl Warren:

When was it — I understood counsel to say that his father had tried to see him before the confessions were taken and refused admission.

Robert Straub:

There is testimony that his father came on a Thursday before and was denied admission but was permitted to see him on Sunday, the regular visiting day at Kilby.

Earl Warren:

What — what reason was assigned for not letting the father see him?

Robert Straub:

No reason was assigned in the testimony and it’s not in the record but from personal knowledge, I do know that Sunday is visiting day out there.

Now, whether that — I mean, that was probably the reason that the — the prison officials would give, but it doesn’t appear in the records.

Earl Warren:

When did the lawyer try to see him first?

Robert Straub:

The lawyer, according to testimony in the record, came on a Saturday.

Now, Warren Burford said he didn’t know what Saturday it was —

Earl Warren:

Didn’t know what?

Robert Straub:

It could — didn’t know what Saturday it was.

It could have been the Saturday before the — the confession.

I mean, the Saturday between the confessions.

You see, one was made on Thursday and one the following Tuesday.

So the lawyer didn’t come before the first confession if he came on the Saturday between.

It isn’t quite clear when he did come, but Warren Burford says it could have been at one right between confessions.

You see, the — the prisoner stayed at Kilby after both confessions for some length of time.

Hugo L. Black:

What was the other testimony on that point?

Robert Straub:

I think that’s about —

Hugo L. Black:

When he came?

Robert Straub:

That’s about the only testimony on it that it was —

Hugo L. Black:

There was no lawyer, he testified himself.

Robert Straub:

The lawyer did not come and testify, no sir.

And it was shown that when he did come, he said he wasn’t retained in the case and there’s testimony that lawyers are not committed to solicit business in — in Kilby Prison and of course, we don’t (Inaudible) their solicity anywhere but lawyers are not permitted to roam about Kilby Prison to solicit business.

And this particular attorney stated that he didn’t represent the petitioner when he came out.

As I said, his father visited him on Sunday and then on Tuesday after lunch during about an hour’s conversation, he confessed again.

Now, this time — I don’t believe it was taken down on a recorder.

That might have been adjacent to it, but it was taped, dictated to a stenographer, took it down in shorthand and transcribed it.

One of Your Honors asked what the difference in the two confessions.

Well, there is one difference and maybe the reason for getting the second one was that the first was taken on a tape recorder.

They decided they wanted something in writing signed by the petitioner so they got the second confession.

Now, at no time, and this appears in the record, both by just reading it and by actual testimony that no time during his stay was he denied food or water or rest or abused in any way.

There’s absolutely no question, no testimony concerning any physical abuse.

And the longest period of questioning was not more than three and half hours.

Unless, you take a newspaper article, which says it was nine hours and then on cross-examination or during testimony by the newspaper reporter, he said that he assumed that number, made an assumption of nine.

Was it precedent?

Is this tape recorded, the questioning?

Robert Straub:

Yes, sir.

He testified on the trial.

Earl Warren:

Did they let the newspapers in?

Felix Frankfurter:

I mean, (Voice Overlap) — I mean, was he present at — in the —

Robert Straub:

Oh, at the questioning, no, sir.

No, no.

No, he was not present.

No.

William J. Brennan, Jr.:

Mr. Attorney General, am I correct —

Robert Straub:

Yes, sir.

William J. Brennan, Jr.:

— in my impression that’s there’s no testimony supporting any version of these events from the part of the defendant, all of the testimony is the version of the officer, is that correct?

Robert Straub:

Yes.

Yes, sir.

William J. Brennan, Jr.:

And I gather that the reason there’s no version from the defendant, there was this insistence that if he took the stand to tell his side of what happened he’d have to expose himself to examination —

Robert Straub:

In cross-examination.

William J. Brennan, Jr.:

— all of the details of the crime of which he was charged.

Robert Straub:

And to the further circumstance that he apparently had no witness present at that — that he wanted to call and prove by others.

William J. Brennan, Jr.:

Well, I suppose the nature of things he wouldn’t have —

Robert Straub:

That’s true.

William J. Brennan, Jr.:

— had a witness present (Inaudible) of the case.

He was in custody (Inaudible)

He — in any event, there’s nothing except what the officer say happened —

Robert Straub:

That’s true.

William J. Brennan, Jr.:

— to tell us what —

Robert Straub:

The officers and in the case of the second confession, the woman stenographer who was employed by the prison department in its stenographic capacity, I think.

Does it appear — going back in your chronology, does it appear why — what the circumstance — what these — why the civilians arrested him in the first instance, what was he doing?

Was he —

Robert Straub:

He was, according to the testimony, wandering around at midnight in an alley in a White neighborhood.

That is all it appears in the testimony.

Whether there was more to it or not, it doesn’t appear.

That’s — that’s it.

He was picked up by one man and taken to a filling station where they called the police.

Now, we contend, first of all, that under Alabama statutes — on Alabama cases exemplified by Ingram against the State which we’ve cited in our brief that the failure of an officer to comply with our statute that requires him to take to a magistrate immediately or forthwith, does not render involuntary a confession obtained under those circumstances.

And we call the Court’s attention first of all to Stein against New York where admittedly the questioning was not as long as here.

But in Stein, he was not taken.

The — the prisoner was not taken before a magistrate forthwith as is required by New York law and this Court in considering the overall picture of the voluntariness of the confession held that that of itself didn’t require the exclusion even though they went contra to a New York statute.

Turning then —

Earl Warren:

Can I ask you this —

Robert Straub:

Yes, sir.

Earl Warren:

Does — does a private citizen have the right to arrest another one on suspicion in your State?

Robert Straub:

If I recall the statutes correctly, a private citizen may arrest for a felony committed in his presence or when he has reasonable grounds to believe a felony has been committed and that the person he arrest has committed it or is connected with it.

I believe that’s it.

He may arrest for a misdemeanor committed in his presence, I believe.

I — I’m not too clear on that but there is a distinction between felony and misdemeanor.

I think that it is.

Robert Straub:

In Brown against Allen, the accused was illiterate.

He was held for five days before being charged and he was given no preliminary hearing for 18 days.

After his arrest — and no counsel was provided either.

The confession in that case was obtained prior to the appointment of counsel and prior to any preliminary hearing.

Now, the Court in that case, you — you all did point out that there was no evidence of physical coercion which we have no evidence here and there was no evidence of prolonged questioning.

Now, we have questioning here of only at the most three and half hours.

And I think this Court, as many other courts have recognized that interrogation is one way to get information and the interrogation itself is not prohibited.

And we feel that three and a half hours at a time with ample time in between for rest include sleep is not prolonged questioning.

Now also, you’ve pointed out in Brown and Allen — against Allen, there were no promises of reward and he was not denied counsel of his choice, the same applies here, we believe, where testimony before each confession that they didn’t promise him anything, didn’t offer any reward so forth and that he apparently didn’t ask the counsel because none was denied and he wasn’t, if he did, he didn’t appear.

The Court held in Brown against Allen of course that the mere detention by police officers, which we have here, didn’t render the statement that he made involuntary.

Turning then to Gallegos against Nebraska, there we had a — a 38-year-old Mexican —

Earl Warren:

To return to Brown versus Allen —

Robert Straub:

Yes.

Earl Warren:

— did you — did you have a question of retarded mentality in that case?

Robert Straub:

He was illiterate, yes.

I don’t recall whether —

Earl Warren:

Wasn’t there more — there’s more than that in this case, isn’t it?

Robert Straub:

Yes, sir, but I’d like to call the Court’s attention to this feature of — of our case.

He had his mother testify that he was thickheaded or — perhaps it was his father.

You have the fact that he was somewhere around 16 when he left the third grade.You have a testimony by three psychiatrists that he is a schizophrenic or some sort of — of character.

However, those three psychiatrists examined him for two hours.

They had no background from which to draw the conclusions other than what they asked the petitioner himself and what he told them and as one of them said a brief conversation with the father.

You get the background.

Now, it may be that a person could be so insane that a psychiatrist can look at him and talk to him for two hours and definitely make up his mind, but this man was holding a job in the service station and worked there for a number of years, worked there all day, servicing cars, greasing and cleaning oil and so forth.

And further as evidence we think of — or perhaps the cursory nature of their investigation of the defendant or petitioner, it was brought out that he had stolen some automobile tires a year or so or several years ago shortly after the war.

The psychiatrist rather than even apparently considering the fact that that might be some indication of criminal bent on the part of the petitioner, just assumed that that was the time he broke this behavior pattern and that he was crazy from that time on.

And so, we think that the — although the state put on no countering testimony as to whether or not he was sane or insane, that the evidence doesn’t show that he was completely insane as is alleged and assumed here.

Earl Warren:

Did the State have any psychiatrist examine him?

Robert Straub:

No, sir.

It doesn’t appear in the record and to my personal knowledge, I’m just not sure.

Robert Straub:

I don’t believe they did.

Felix Frankfurter:

Was insanity made a defense?

Robert Straub:

Yes, sir.

Not guilty and not — not guilty by reason of insanity, both.

Felix Frankfurter:

And the verdict of course went to that defendant?

Robert Straub:

The verdict in Alabama does not specify.

It just says guilty or not guilty.

Now, this of course came in the verdict of guilt.

Earl Warren:

Did the —

Felix Frankfurter:

Well, is there a finding of any kind?

Earl Warren:

You don’t (Inaudible)

Felix Frankfurter:

They find — what did the jury do (Inaudible) by insanity.

Robert Straub:

They find him, as I recall, guilty by a reason of insanity and therefore he is placed not guilty — excuse me, by reason of sanity and therefore, he is then committed to an institution.

Felix Frankfurter:

So that if — if insanity is found then he’s not guilty.

Robert Straub:

Yes.

Felix Frankfurter:

(Inaudible) of an insane mind couldn’t have —

Robert Straub:

Well —

Felix Frankfurter:

Both insanity — suppose insanity supervening the claim that insanity is subsequent to the commission of the act.

Robert Straub:

We recognize the different types, Your Honor either —

Felix Frankfurter:

(Voice Overlap) —

Robert Straub:

I beg your pardon.

Felix Frankfurter:

Is that by (Inaudible)

Robert Straub:

It can be upon motion, yes, sir.

It can — the pretrial motion can be and it — or can come up at the trial.

Felix Frankfurter:

All right, (Voice Overlap) the jury verdict impliedly rejected the defense of insanity —

Robert Straub:

It did.

Yes, sir.

Felix Frankfurter:

Because it didn’t say not guilty because of insanity.

Robert Straub:

That’s correct.

Hugo L. Black:

That settles it, doesn’t it?

Hugo L. Black:

Suffice that case is the jury’s concern, that settles it.

Robert Straub:

Yes, sir.

Earl Warren:

Did the State put on any testimony at all directed toward the insanity defense?

Robert Straub:

No, sir.

I don’t believe they did.

There’s none in the printed record and I — I’ve forgotten whether there’s any in the — it was not any professional, if there was any, there were no professional —

Felix Frankfurter:

The cross-examination, (Inaudible) witnesses on that point?

Robert Straub:

Yes, sir.

They cross-examined to the extent, how long did you —

Felix Frankfurter:

(Inaudible)

Robert Straub:

Yes, sir.

Felix Frankfurter:

(Inaudible)

Robert Straub:

Mostly was rested on that.

In Gallegos against Nebraska, we have the 38-year-old Mexican farm man who can’t read or write English.

Now, he was picked up in Texas of course.

And he was held for a number of days with questioning until he finally confessed.

He was held from September 19th until the 23rd in fact.

And during this time, he was not brought before a magistrate and in fact, he was held in under much more severe circumstances than our petitioner here.

There was testimony that one of the cells he was kept in had no bed, another one had no light, and he was given maybe one meal a day and also that he was threatened with violence.

And then after he had confessed in Texas, he was sent to Nebraska and where he confessed shortly, a day or two after he arrived and then about 12 or 13 days later, was finally taken before a magistrate after he had confessed twice on each state.

Felix Frankfurter:

I noticed the trial began on the 30th, is that right, November 30th, on page 25, and by that time he had two lawyers, he had counsel.

Robert Straub:

Yes, sir, he had —

Felix Frankfurter:

He — he already first had acquired counsel?

Robert Straub:

No, sir.

There were some questioning —

Felix Frankfurter:

A maintained counsel, are they not?

They’re not court assigned counsel (Inaudible)

Robert Straub:

I can’t answer that question, Your Honor.

I’d have to ask counsel.

It doesn’t appear in the record.

Mr. Attorney General:

Well, these are not but the first counsel was appointed in (Inaudible)

Robert Straub:

I understand that his first counsel were appointed at arraignment under the circumstances that Alabama’s court does appoint counsel and will appoint him throughout an appeal if — in capital cases under our automatic appeal statute.

Apparently he later retained counsel.

Felix Frankfurter:

But to (Inaudible) a trial as quickly as this (Inaudible) a case like this in Alabama?

I need to commend you.

Robert Straub:

Well, sir, it — he was picked up on September.

Felix Frankfurter:

(Inaudible) — the twelfth of — given the 12, the indictment required another 12th.

Robert Straub:

Yes.

Felix Frankfurter:

Not shortly after the alleged act?

Robert Straub:

No, sir.

The act occurred in April.

Felix Frankfurter:

Anyhow, but —

Robert Straub:

Yes, sir.

Felix Frankfurter:

(Inaudible) of the indictment?

(Inaudible)

Robert Straub:

It all depends in Alabama, Your Honor, on where the Circuit is sitting at a particular time.

Now, the Selma Circuit — I’ve forgotten how many counties are in there, but it is a — several counties.

If it happens to be that it’s sitting in that county at that time then it’s quick.

If it’s not, it waits until it gets around until the proper time.

Also in Lisenba against California, there of course we had the businessman who attempted or who did or hired of some sort the procured murder of his wife.

Now there, he wasn’t questioned for many — very many days at the time, but he was questioned beginning one day and questioned all that day, all that night, and all the following day and the following night until 3 o’clock in the morning when he either fainted or fell asleep and they dropped him for a while.

And after an accomplice had confessed, they took him back again and questioned him all day and into about the middle of the night, in fact, took him away from the — from the jail, took him away from prison back to his home to question him.

And then in the middle of the night, he said if they’d give him something to eat, he would talk and he was provided with food and he did talk.

Now we contend that in Turner against Commonwealth, which is relied upon by the petitioners here to a great extent that the differentiating quality here is that in Turner, you had the relay technique employed.

They kept the man right there where the officers were working and every time anyone of them had any free time, he called in the petitioner, the defendant in that case in question, and they kept that up.

Now here, the officers had to drive about 50 miles to go — to see the petitioner, to question him.

Now, turning now to the question of his testimony whether or not he should have been permitted to testify on voir dire without submitting himself to cross-examination.

Now, first of all, as Your Honors know, this Court has often held that the first eight amendments are not to be protect — are not protected by the Fourteenth in the — in the action by the State, unless, you get to that lack of fundamental justice.

In fact, in Twining against New Jersey which went into the — the question of the right to remain silent or the right to testify, the Court held that the inference is irresistible that it has been the opinion of Constitution makers that the privilege if fundamental in any sense is not fundamental in due process of law nor essential part of it.

William J. Brennan, Jr.:

Mr. Attorney General, before you get on —

Robert Straub:

Yes, sir.

William J. Brennan, Jr.:

— after this right to take the stand to limited purpose of testifying on the matter of admissibility of the question was denied, is there any offer of proof or what the defendant would have testified to?

Robert Straub:

No, sir.

No.

The objection was to the effect that they wanted to show, they wanted to put him on for the purpose of refuting certain allegations.

William J. Brennan, Jr.:

They didn’t identify those —

Robert Straub:

No, sir.

William J. Brennan, Jr.:

I gather allegations, you mean, testimony, certain testimony?

Robert Straub:

Certain testimony regarding the voluntary character of the — of the confessions.

I did not say in what manner they wanted to attack it.

Felix Frankfurter:

I want to be sure that I got it right.

This voir — this question was put in (Inaudible) admissibility preceding that action outside the hearing (Inaudible)

Robert Straub:

No, sir.

Felix Frankfurter:

Within that —

Robert Straub:

And that question was raised as to the practice of Alabama.

There’s no statute on it.

It’s more or less a matter of discretion.

I guess it’s often heard in the presence of the jury and sometimes without the presence of the jury.

Felix Frankfurter:

Did this came up or not?

Robert Straub:

It was in the presence of the jury.

Felix Frankfurter:

But right after it was heard, the judge ruled on admissibility?

Robert Straub:

The judge rules on admissibility and the jury takes the same or they repeat the testimony or put other testimony on for the purpose of credibility and weight to be given.

William J. Brennan, Jr.:

Well, do you know whether if on part of the defendant gets asked that the judge excludes the jury, whether the practice is construed or not?

Robert Straub:

I don’t know what — whether there is any — as you say, practice.

I — I think it’s discretionary to the judge whether they do it as a matter of course all the time or not, I — I’m just not in position to answer that question.

William J. Brennan, Jr.:

On this case in any event, there was no request to exclude the jury?

Robert Straub:

As was stated by counsel for petitioner, there was a request that the jury be excluded.

William J. Brennan, Jr.:

There was?

Robert Straub:

And the jury was excluded.

And then they had a — a conference of some sort which is not reported in the record.

Robert Straub:

I don’t know what it was about, but they had a conference right before that.

Then the jury came back in.

The State made its offer of the confession and without any further objection to the jury being there, the objection was raised, the offer was made to put the defendant on.

The jury was excluded and then came back in and there wasn’t any objection at that point of getting him back out again or any request putting them back.

Felix Frankfurter:

There maybe a little (Inaudible)

When the jury was sent out, had the — had the preliminary — had there been preliminary testimony on admissibility?

Robert Straub:

To this extent, Your Honor, the officers had — had testified that they had offered him no —

Felix Frankfurter:

Yes.

Was that in the presence of the jury?

Robert Straub:

Yes.

Felix Frankfurter:

And then something happened, you don’t know what — we don’t know what — the jury was sent out.

Robert Straub:

It — it took place in this manner, Your Honor.

I have it here, 230.

I think we can explain it, page 230 of the — of the printed record.

Attorney Hall on cross-examination says, “That is all.”

He’s cross-examining one of the police officers about to introduce the confession and the — the Court solicitor here says the State offers an evidence, a recording.

And if the Court please, the defendant objects to what purpose to be the recording made by this witness on the ground that sufficient predicate had not been laid and they overrule the objection.

And then they — they go through this colloquy which we testified about it.

Apparently, it doesn’t appear here that the — the jury did go out at one time but I think it appears in the — on 190 as counsel has so helpfully provided here.

I knew it was either here or in the preliminary or the full record, which is not before this Court.

When was that particular recording made?

Talking about the one which was subsequently introduced.

If Your Honor please, we’re going to ask the Court to exclude the jury at this time.

And that’s on 190, and they did excuse the jury at that time.

Felix Frankfurter:

I understand 10 minutes, so this was a short intermission.

Robert Straub:

Yes.

Felix Frankfurter:

But the testimony involved had been in the pertinent — in the jury’s hearing and the testimony following had been in the jury’s hearing —

Robert Straub:

Yes, sir.

Felix Frankfurter:

— and they offered of the defendant to take the stand for — for limited purpose of controverting some of the testimony on the admissibility would presumably have been in the jury’s hearing.

Robert Straub:

Yes, it was in the jury, sir, the offer was in the jury’s hearing.

Felix Frankfurter:

And presumably, testimony has been allowed to be made could have been in the jury’s hearing.

Robert Straub:

Yes, sir.

Now in Alabama and a few —

Earl Warren:

Mr. —

Robert Straub:

Yes, sir.

Earl Warren:

May I just ask a question as I — I haven’t quite got this clear in my mind but the way I — I read it here —

Robert Straub:

Page what?

Earl Warren:

Page — at page 190, that’s almost the beginning of this particular — the testimony on this particular instance, isn’t it?

Robert Straub:

Yes, sir.

Earl Warren:

Now, at that time, referring to page 140, about two-thirds down the page, the — Attorney Hall says, “If Your Honor please, we are going to ask the Court to exclude the jury at this time.”

That’s before there — there were any testimony given by the officers as to how it was obtained.

The defendant would like to take an objection to this particular line of questioning and objected to the manner in which the witness is being questioned.

We feel that the jury’s presence in this Court would be prejudicial to the defendant’s interest.

So he objected to this evidence being given in the presence of the jury and then the Court declared a recess.

Robert Straub:

Yes.

Earl Warren:

And then when they came back, they started right in without anything being said about this objection that the defendant made.

Robert Straub:

Well, sir, Your Honor —

Earl Warren:

Yes.

Robert Straub:

Jury retired from the jury room, near the bottom, Attorney Hall and Solicitor Hare confer with the Court.

Earl Warren:

Yes.

Robert Straub:

Then take a 10-minute recess, stand in recess, Captain Baker returns to the witness stand and they go on.

Earl Warren:

Well, that’s tantamount to the Court overruling the objection, isn’t it?

Robert Straub:

Yes, sir.

During the — the conference that they had —

Earl Warren:

Yes.

But you’re not inferring that the defendant consented to do this (Voice Overlap) —

Robert Straub:

Well, we don’t know.

Earl Warren:

Well no, but —

Robert Straub:

There’s no further — there’s no — no exception or exception to the Court’s ruling, it appears.

Earl Warren:

Do you have to take an exception to the Court’s ruling in your State?

Earl Warren:

You don’t — in my State that (Voice Overlap) —

Robert Straub:

Under a very recent statute, and I’m sorry I can’t tell you whether it’s before or after this case was tried, you do not, and I believe frankly that it was after this case was tried that that came in.

I — I can’t be certain on that.

Earl Warren:

Yes.

Robert Straub:

But you do not anymore have to take an exemption.

In Alabama of course, a — under our constitutional provisions, an accused may remain silent or even elect to testify.

And if he remained silent, you can’t make any reference to it in the argument and it’s not supposed to be the basis for any inference of guilt.

We’ve held in the long number of cases that in Alabama that if he does elect to testify that he takes the stand as any other defendant does and that he thereby opens himself up —

William J. Brennan, Jr.:

Had we had a precedent for this in this situation?

Robert Straub:

No, sir.

Not where he has requested a limited to — limited to the extent of — of this particular question.

Now, we’ve had where he’s asked to testify only on certain phases of his case —

William J. Brennan, Jr.:

But, I —

Robert Straub:

— the alibi or something —

William J. Brennan, Jr.:

And that’s it, dealing with either a defense or the murder, (Inaudible)

Robert Straub:

Yes.

But never to where he has asked in this particular instant.

But we have the line of cases and I think this Court has also laid down such a line of cases that when a defendant takes the stand, even though he has a constitutional right not to be called upon to testify against himself, that once he takes the stand, he does so as any other defendant.

William J. Brennan, Jr.:

Well, but that — is that — that’s — that’s a long standing rule of evidence, isn’t it?

Robert Straub:

Yes.

William J. Brennan, Jr.:

Both in civil and criminal clauses —

Robert Straub:

Yes.

William J. Brennan, Jr.:

— which relates to the right to have the testimony of a party when party takes the stand on a matter bearing a — going to the merits.

Robert Straub:

Yes.

William J. Brennan, Jr.:

But do you know of any authority for extending that rule to what’s involved here?

Robert Straub:

I should like, Your Honor, to present some what we consider authority on that point at least.

Turning first to Adamson against California, now there, you had the California statute involved which permitted a comment on the failure to testify.

And the Court brought up this — this particular statement.

We’re talking about the — the choice that any defendant has to make between testifying and remaining silent.

And they say that it’s a dilemma which any defendant might be faced with.

Robert Straub:

If facts adversed to the defendant are proven by the prosecution, there may be — don’t know a way to explain them favorably to the accused except by a witness who may be vulnerable to impeachment on cross-examination.

The defendant must then decide whether or not to use such as a witness.

The fact that the witness may also be the defendant makes the choice more difficult, but a denial of due process does not emerge from the circumstances.

Now there, we are talking about perhaps merits, probably merits, but turning to Witt against United States, a Circuit Court of Appeals case, there, the trial judge heard evidence concerning admissibility in the absence of the — of the jury and they came back in and they had the same testimony over again.

And a — at the — after the second attempt of his testimony, the — the judge at first of course had ruled his confession was voluntary then they came back in and the witness for the government testified again.

On appeal, the defendant claimed that he wasn’t permitted to testify to the voluntary aspect of his conversation.

That was his basis of appeal.

He said, “I wasn’t allowed to testify.”

And the Court after reading the record said this, “We don’t read it that way.”

He was permitted to testify all right if he wanted to, but the Court went no further than to suggest that if appellant testified, he would have subject himself to cross-examination.

And the Court goes further to say that the appellant was obviously afraid to take the stand and speak concerning anything material matter inquired of him by his counsel.

He could not well ask that the Court guarantee him in advance that he would be asked no embarrassing questions on cross-examination if he did do — did so.

If he had taken the stand and the Court had permitted undue latitude in his cross examination, he would have had something to complain about and that’s what we — position we take here, that he can’t —

Felix Frankfurter:

What did it say about the raffle?

Robert Straub:

The raffle?

Well there, the federal agent testified to certain admissions of the defendant on a trial and the defendant didn’t testify at all, and the trial resulted in a hung jury.

There was no verdict.

So they go into trial again and the agent gave the same testimony and the defendant in that trial took the stand and denied the statements.

And so they began to cross-examine him and Court itself just asking why he — why he didn’t testify on the trial before.

And then the Court and — came to this Court and you — this — this Court stated the question as follow.

Was it error to require the defendant wrap it, offering himself as a witness upon the second trial to dispose that he had not testified as a witness in his own behalf upon the first trial.

And you, Your Honors came to this conclusion that a waiver of his right not to testify is not partial.

Having once cast aside the cloak of immunity, he may not resume it at will whenever cross-examination may be inconvenient or embarrassed.

We may not — we need not close our eyes to the fact that every person accused of crime is under some pressure to testify less the jury despite his carefully framed instructions drawn on favorable inference and so forth.

When he does take the stand, he is under the same pressure to testify fully rather than avail himself on a partial immunity.

And goes on to state that the protection is not to be now and then drop and then pick up again throughout the trial.

This was a trial of course in the federal court involving the federal constitution and the right not to be required to testify against yourself.

Earl Warren:

Suppose during a middle of a trial a defendant claims that he’s ill and asked for a continuance and the officers take the stand and testify this man isn’t ill, he’s a malingerer.

And the witness say — the defendant says, “Well, I want to take the stand and testify that I’m not malingering, that I’m — I’m a sick man, that I’m in great pain and I can’t continue with the trial.”

The judge should say to him, “Well, now if you take the stand, testify to that and throw yourself wide open to — to cross-examination on your guilt or innocence.”

Robert Straub:

No sir.

Earl Warren:

What’s the difference between that and this collateral matter as to whether these men unduly — illegally obtain this confession?

Robert Straub:

Sir, I think the difference is this.

In the question that you put has nothing to do with anything that has been placed in evidence.

Now here we have testimony.

We don’t have the confession placed in evidence yet.

Earl Warren:

Not yet.

Robert Straub:

No, sir.

But you have testimony that during his incarceration, a tape recording was obtained.

Now, he wants to come in and say, “Wait a minute.

This was obtained under such and such circumstances.”

Now in a trial of a coercion issue, even though it’s the judge who has to make the determination, we contend that the credibility if nothing else of the petitioner is something that the judge wants to know about.

It’s going to be his word against the officer’s word and as this Court in some case rather said that coercion is as often falsely asserted as it is falsely denied.

Now we feel that — let’s — let him get at the credibility at least then if they step outside the bounds of something that hasn’t been put in evidence yet.

And there was some of the main case which wasn’t put in evidence yet this time.

You had the testimony of the prosecutrix.

He did not have the testimony of the other two women who testified they found him in their apartment those other times, so they couldn’t question him on that.

But what I’m saying is certainly the judge himself should be permitted to get at least the testimony concerning the credibility of the defendant.

Earl Warren:

The judge said open it to for all purposes.

Robert Straub:

Yes.

Earl Warren:

Shouldn’t that — and that (Voice Overlap) —

Robert Straub:

That’s right.

He didn’t —

Earl Warren:

(Voice Overlap) at all, as I understood it.

Robert Straub:

That’s right.

That’s — that’s correct.

But we’re saying he should at least have that aspect of it then if he goes beyond what this Court may subsequently determine is legal or proper then there is something to complain about.

William J. Brennan, Jr.:

Do you mean he should have an aspect of at least that is a judge out of the presence to the jury?

Robert Straub:

Under Alabama law, it apparently wouldn’t make any difference, no, sir.

William J. Brennan, Jr.:

I should think it make a great difference.

Robert Straub:

Well, sir, now, the defendant — the jury is called upon to determine or weigh the credibility then to be given.

William J. Brennan, Jr.:

Well, credibility, yes, but at this point, we’re only dealing with the matter of admissibility, aren’t we?

Robert Straub:

That’s true, yes, sir.

William J. Brennan, Jr.:

I — I could understand the force of your argument better if we’re limited to a situation in which the judge alone was hearing it out of the presence of the jury in order to have everything upon which the basic determination of admissibility or not.

Robert Straub:

Yes, sir, but let’s assume that the judge hears testimony in the presence of the jury concerning — concerning admissibility where the defendant testifies to acts of coercions, supposed acts of coercion and the jury hears it.

They can use that same testimony in their deliberations as to — and the judge says it wasn’t.

So let’s assume that the judge says it wasn’t coerced and we let it in.

William J. Brennan, Jr.:

Well, apparently (Voice Overlap) —

Robert Straub:

The jury can still use —

William J. Brennan, Jr.:

— in this case anyway so far as out of the presence of the jury is concerned because the very outset the judge decided —

Robert Straub:

That they were not —

William J. Brennan, Jr.:

— they’re going to take everything that was to be heard (Inaudible)

Robert Straub:

Yes, sir.

Felix Frankfurter:

I don’t think that’s quite so if I may say so.

Because it may be incumbent now the petitioner to say, I would like to have — if this goes on the preliminary question of admissibility and since if Your Honor rules this was not voluntarily made, that’s an end of the matter.

Robert Straub:

That’s true.

Felix Frankfurter:

In other words, the judge rules the confession out.

Robert Straub:

Then there is no further recourse.

Felix Frankfurter:

(Voice Overlap) to jury on its finding that it ought to be in.

Robert Straub:

No, sir.

Felix Frankfurter:

Therefore, on this preliminary question, that was a leading — is a stupid nor a good way I put to the original in my inquiry as to how this would be and conducted because certainly, (Inaudible) how can the objective to have this ruling restricted if it’s heard before the judge?

Robert Straub:

It could be heard before the judge and often is when it’s requested but is — doesn’t — there’s no statute that says it has to be before the judge or anything of that sort.

If Your Honors will permit, I would like now to briefly state the — our provision — our quotation of the Stein case and then jump toward the — in the few remaining minutes to the question of the Negroes on the jury.

Felix Frankfurter:

It would be good enough having an answer to the —

Robert Straub:

Yes, sir.

Felix Frankfurter:

— question apparently explore you or looked into your direction.

Are there any rulings on these particular question that are against you?

Robert Straub:

Your Honor, I know of none.

Felix Frankfurter:

(Voice Overlap) to know about it.

Robert Straub:

No, sir.

Robert Straub:

There are none in Alabama.

They point actually except for Witt in the Circuit Court and Stein —

Felix Frankfurter:

(Inaudible) is that it?

Isn’t that your review?

Robert Straub:

It has — it is arisen, but is — has never — except for Witt and Stein actually been determined as I can see it.

Felix Frankfurter:

That’s what I mean by —

Robert Straub:

There may — there may be, Your Honor, and there is I’m sure in Louisiana and maybe some state adjudications on it, but federal to my knowledge has not directly decided the point.

Felix Frankfurter:

(Inaudible)

Robert Straub:

Sir, I don’t know.

Stein against New York, the defendants complain that they weren’t allowed to take the stand and to testify the coercion because they would submit themselves to cross-examination.

Now, this Court in discussing the Stein case said we’re not — it didn’t properly preserve.

It didn’t — they didn’t make any offer to testify, but went on further to discuss the matter.

You thought enough of it to discuss it in this light that if they had given such testimony, it would have been in direct conflict with that of the police and the decision would depend on which was believable.

Certainly, the Constitution does not prohibit test of credibility which American law uniformly applies to witnesses.

If an open court, free from violence or threat of it, defendants who’d been obliged to admit incriminating facts, it might bear on the credibility of their claim that the same facts were admitted to the police only in response to a beating.

In the trial and skipping then on down, in trial of a coercion issue as of every other issue on the prosecution has made a case to go to the jury, an accused must choose between the disadvantage from silence and that to testify.

The Constitution safeguards the right of the defendant to remain silent.

It does not assure in the — may remain silent and still enjoy the advantages that might result of them testifying and that’s what we’re saying here, Your Honors, that he’s trying — trying to take advantage of two constitutional safeguards.

He’s trying to take advantage of the right to remain silent so he won’t be cross examined.

At the same time, he’s trying to take advantage of the right to be heard and we feel that this Court in the cases which it has decided and the Constitution itself does not guarantee to any individual those two safeguards at the same time.

Earl Warren:

But isn’t there a third one there too that he — that he’s trying to preserve?

Isn’t he trying to preserve his right not to have a coerced confession introduced against him, which has been determined by this Court to be a constitutional right?

Robert Straub:

Yes, sir.

That is —

Earl Warren:

So there’s a — there’s a third (Inaudible)

Robert Straub:

There’s a third.

Earl Warren:

So isn’t just as reasonable that he is trying to maintain his right not to be a witness against himself and at the same time, protect himself against other people giving illegal testimony against him.

Robert Straub:

By using, Your Honor, a third guarantee of remaining silent.

Earl Warren:

All right.

I’ll — I’ll accept that.

Robert Straub:

Turning now to the — shortly to the motion to quash, it’s true and it’s recognized in the opinion of the Supreme Court of Alabama that for many years there were no Negroes that ever served on a grand jury or a petit jury in Alabama.

But we have the proposition where in response to a motion to quash, an indictment was quashed and the entire jury box thrown out and the jury commissioners instructed to refill the box, which they did.

The testimony shows that prior to this time, it might have been 30 names and it goes in the box in about 1200 or so White people.

Now we have testimony concerning that it contains about 250 to 300 names of Negroes and about 1500 — excuse me — White people.

Now, I’d like to call the Court’s attention to the fact that in drawing the grand jury for this particular case, it’s the first time that we have drawn a grand jury or petit jury in Dallas County, Alabama, where they had 250 or 300 names in the box.

So you don’t have a pattern to go by with this box and this jury and this indictment.

The other testimony we feel should — to be disregarded other than to shed light on what used to be the practice down there.

I bring that out because in Akins against Texas, one of the cases upon which we rely where this Court held, again that numerical and mathematical precision is not necessary.

The Court remarked several times that after this Court and the Supreme Court of Texas had reversed a number of cases because of the exclusion — systematic exclusion of Negroes that the commissioners were obviously trying to follow the mandate of this Court and the Supreme Court of Texas in refilling the box and trying to do what the law of the United States and that the State required.

Now, we don’t contend that mere trying is enough.

But we do say this that this effort being made and shown to have been made by the jury commissioners of Dallas County certainly shows that now, there is no planned and systematic exclusion of Negroes on the jury — in the jury box of Dallas County.

Now, this Court has held that in examining the record that you’re going to give some great weight or some respect to the findings of the lower court in respect to issues such as this unless there’s no evidence to support the findings of the lower court and we submit that when our Supreme Court of Alabama states that there is no evidence of systematic exclusion apparent in the record, that there is ample evidence to back that statement up.

Now, in Thomas against Texas, we find the same reflection by this Court that it may be that they don’t have the full pro rata with the White race in the selection of grand and petit juries in this case.

Still it wouldn’t be evidence of discrimination if they fairly and honestly endeavored to discharge their duty and did not in fact discriminate then no right has been denied.

And we feel that by looking at the testimony of all the jury commissioners and the clerk of the jury commission that were before the trial court, the Court can’t help but see that there is no discrimination being practiced now.

Now, something was said about whether or not the qualifications of the Negroes would explain the disproportionate — proportion in the jury box.

Well now, we feel that under Fay against New York, that burden rests upon the petitioner to show when he realized on figures showing that there are so many Negroes and so many Whites and then tries to say that because of that, you —

Earl Warren:

(Inaudible)

Robert Straub:

Excuse me, Your Honors.

Earl Warren:

Finish your thought.

Robert Straub:

If — if your — because of that, you don’t have enough numerically in the box then he has to turn around and show that numerically they are qualified in such a position and we think Fay against New York is adequate —

William J. Brennan, Jr.:

Well, if I get that then you mean at least the burdens upon them that they contend that this disproportion of colors to White, and Whites to colored.

Robert Straub:

Yes.

William J. Brennan, Jr.:

Was not in part the consequence at least of the inability of more colors to qualify within the eligibility standards.

Robert Straub:

Yes.

William J. Brennan, Jr.:

Is that what you mean?

Robert Straub:

Yes.

Then they should come in and show that there are so many people who do not fall within our statutory exemption.

Thank you.

Earl Warren:

Thank you.

Earl Warren:

Mr. Greenberg.

Jack Greenberg:

May it please the Court.

As to the question of the request to exclude the jury from the courtroom during the preliminary hearing on admissibility, there was the request on page 190, which was followed by a recess and the jury came in with no elucidation of that.

But to make clear that it was petitioner’s obvious, quite clear desire to have the jury out during this on page 254 of the record as the voir dire proceeds there’s another demand that the jury be excluded, and to the middle of the page, the Court overrules it.

And then during another witness on page 312 of the record, there was another demand that the jury be excluded and that was denied and overruled.

Well, it’s petitioner’s position that whether the jury was in or the jury was out, makes no difference in this aspect of the case because when the jury was in, it’s clear that there would be prejudice and that the jury could hear from the petitioner’s own lips facts that he would otherwise be privileged to be silent about.

But even if the jury were out and the State could obtain from the petitioner’s own lips evidence that it could introduce later in the trial and the — just the same amount of harm could be — would be done under the circumstance.

Felix Frankfurter:

The State — the State may completely deny the privilege against self-incrimination without violating the proper clause.

Jack Greenberg:

Well, Your Honor, of course I don’t believe this case calls for the decision of that question.

I don’t believe that that has been so held.

Felix Frankfurter:

It’s been held that he could come without him taking — taking the stand.

Jack Greenberg:

Yes.

It’s been held you can come don’t even take the stand, but I — I don’t believe that it has been — the other has been held nor do I believe that any state has so denied that.

Felix Frankfurter:

I heard you to say that it has been held that you can compel him — to put him on the witness stand and (Inaudible) the jury may take it to account that an innocent man who’d rather keep quiet has been held?

Jack Greenberg:

Yes.

Well, the comment on failure to testify of course that this Court has ruled upon and has also noted that this is something the jury would almost naturally consider anyway.

That’s quite different than holding over —

Felix Frankfurter:

If — if that has been held, we held the contrary because we have this area not to charge him.

They — they must now take that into account on the assumption that juries will obey the (Inaudible)

So we haven’t held the contrary.

We held just the opposite.

William J. Brennan, Jr.:

Mr. Greenberg, may I ask this.

Suppose this was a case involving a shooting, the State might offer as in evidence of the gun allegedly used by the accused to kill the deceased and evidence was offered but this was the gun.

Could the defendant be able to take the stand and insist on the right delimiting his testimony on the question whether or not the gun was his?

Jack Greenberg:

I wouldn’t think so.

No, Your Honor.

William J. Brennan, Jr.:

Well now, that’s just a bit of evidence that’s offered, isn’t it?

Jack Greenberg:

And it is not tied up with the constitutional right.

That’s how I —

William J. Brennan, Jr.:

I’ll accept that.

William J. Brennan, Jr.:

It’s an offer in evidence and his effort is to keep it out of evidence on the ground that there ought to be a determination that it doesn’t belong to him.

What I’m trying to get at is the confession after all is a piece of State’s evidence, isn’t it?

Jack Greenberg:

Yes it is, Your Honor.

William J. Brennan, Jr.:

Well, if it’s not — if the defendant can’t resist in the right to limit his testimony in the hypothetical case I put to you that it’s not his gun, why is he in a different position here as you suggest that he ought to be able to limit his testimony to the question whether in fact it was his voluntary confession.

Jack Greenberg:

Because the question of the admissibility of the confession is the question of whether or not it has been obtained in violation of the United States Constitution.

If there was such a question tied up with the admissibility of the gun, my answer would be the same.

Admittedly, in some cases, there might be a line to draw but I don’t believe this case calls for the drawing of such a line, but clearly, where the only way that a constitutional right can be preserved is by such testimony then its petition is — contention that the integrity of the whole constitutional defense depends upon this preliminary determination.

Earl Warren:

Well, to raise Justice Brennan’s question to a constitutional level, suppose this revolver that he’s speaking about was — was to be introduced in evidence and the claim was by the defense that the home had been burglarized, suppose this was a federal case and defendant claim that his home had been burglarized by a federal officer and this — this gun had been — been taken and that preliminary — preliminary question was being tried by the Court.

I presume the defendant could take the stand and testify that — that he saw the federal officer come — come in there and burglarize his home without — without subjecting himself to cross-examination on — on the guilt or innocence on the charge against him, couldn’t he?

Jack Greenberg:

I would say that yes, Your Honor, because his defense against being convicted by means of an unreasonable search and seizure —

Earl Warren:

Yes.

Jack Greenberg:

— is a — is a cognate to related defense.

Earl Warren:

It — yes.

So, that isn’t — that is different from the one Justice Brennan made —

Jack Greenberg:

Yes, Your Honor.

Earl Warren:

— it seemed to me.

Jack Greenberg:

Yes.

I would like to stress that on this confession point, again, there have been many cases cited in both briefs and in the argument in terms of how many hours this petitioner was interrogated and how many hours that petitioner was interrogated.

It’s not merely a quantitative but a qualitative determination that the Court must make.

And I think the key thing in this case is just who this petitioner is.

Now, there has been some attempt to discredit the testimony of the psychiatrist who were on the staff of the Veteran’s administration on the basis that they didn’t examine him sufficiently.

And that at any rate, the jury found he was not insane but the jury determination of course though it may indicate he was not legally insane, that he did not know the difference between right and wrong, still does not indicate that he was a person capable of understanding his rights and adequately defending himself before these police officers who interrogated him, at least it must be admitted 20 hours during this period of time during which a person in such circumstances obviously must have been terrified.

In fact, at the outset of this case, the typewritten record indicates there was a request for sanity, a lunacy board to be convened and test his insanity and the State denied this.

There were some questions as to when he was denied the right to see the lawyer who came to see him on a Saturday as to this as pointed out in our reply brief, the warden testifies, and this is the States’ witness, this is the warden who has possession of all the records of the prison.

It was on one Saturday but I don’t remember the date.

Question:”Was that before the confession?”

Answer:”Yes.

I believe it was.

I couldn’t say that for sure.”

Well, this is a matter upon which the State had — was attempting to sustain the burden.

Jack Greenberg:

It was — it was its own witness and it was in possession of all the facts.

And I don’t think the State can rely upon the possibility of a conflicting inference in its own testimony to deprive petitioner of something that’s reasonably clear on the record.

There was another question by the Court as to just what kind of an order this was by which he was transmitted from the local jail to the state prison on page 201 of the record.

It is indicated by a police officer.

I just don’t know he was committed to Kilby Prison on an order or request or something of the Circuit judge.

That’s what it — apparently was administered of order for some sort of a transfer.

I had earlier stated that the Negroes on the panel, petit jury were excluded by agreement of counsel.

I was somewhat in error in that.

Counsel agreed that both sides had struck some Negroes on the petit jury panel but there was no agreement of counsel to strike them.

(Inaudible)

Jack Greenberg:

I gather they would.

It doesn’t indicate but on page 180 of the record, the Court says it is further stipulated by and between counsel for the defendant and the solicitors that the members of the colored race who were on the venire were stricken by counsel to both sides.

That’s not an exact quote.

William J. Brennan, Jr.:

You’re trying to answer the Attorney General’s suggestion that neither has practiced — that it has practiced — in any event.

Now, wait you in this circumstance where this time there were 250 to 300.

Jack Greenberg:

Well, my answer to that would be that 250 sounds like a lot but when looked at in terms of the population in the county, you would — it does come out to something like 1 in 7 and in Cassell 1 in 12 was held a token.

William J. Brennan, Jr.:

Now, what about this other point then that you had the burden to show that the disproportion is not the consequence of the application of eligibility standard.

Jack Greenberg:

We are the — this is quite a lengthy record and it’s only part of the typewritten record.

There was a tremendous amount of testimony in the qualification of jurors and I would say that at least 50 Negroes were put on the stand, graduates of Brown University and there were some Phi Beta Kappas and university presidents and doctors and dentists and so forth who had never been called for jury service.

There are a tremendous number of them and I think the — there are citations to the record, in the original record in our brief.

Of course, we couldn’t show out of the population of 6000 or 7000 that — how many hundreds, but certainly, there was a very substantial number.

Now, a partial answer to that was that they were exempt but exempt is not excluded.

The exemption was for them to claim, not for the State to assume that they would claim and if they — but there was no evidence that they would call, even given the opportunity to claim their exemption.

Earl Warren:

It is not a disqualification, it was an exemption.

Jack Greenberg:

That’s right.

There’s a distinction and there’s certainly a substantial number of Negroes there.

I’d say 20 or 30 or 50.

It is the — the record is tremendous on this that were able to serve but were not called and given the opportunity to claim an exemption if they so desired.

Earl Warren:

Thank you, Mr. Greenberg.