Frazier v. Cupp

PETITIONER:Frazier
RESPONDENT:Cupp
LOCATION:Circuit Court of Mobile County

DOCKET NO.: 643
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 394 US 731 (1969)
ARGUED: Feb 26, 1969
DECIDED: Apr 22, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 26, 1969 in Frazier v. Cupp

Earl Warren:

Number 643, Frazier, Petitioner versus H. C. Cupp, Warden.

Mr. Feuerstein?

Howard M. Feuerstein:

Mr. Chief Justice, may it please the Court, I’m Howard M. Feuerstein of Portland, Oregon representing the petitioner Martin Rene Frazier who was a prisoner in the Oregon State Penitentiary serving a 25-year sentence for second-degree murder.

This case involves Frazier’s petition for writ of habeas corpus and involves three distinct issues.

The first issue is whether Frazier was denied his right of confrontation when the prosecution placed before the jury in its opening statement the confession of a co-indictee who had later invoked his Fifth Amendment right not to testify.

The second issue is the admissibility of Frazier’s written statement and whether that the obtaining of that statement violated Escobedo versus Illinois or in the alternative that statement was involuntarily given.

And finally, case involved an issue of validity of a search and seizure of certain clothing of Frazier.

The District Court granted the writ of habeas corpus on the right of confrontation and on the confession issue and did not rule on the search and seizure issue.

The Warden appealed and the Ninth Circuit reversed the District Court finding against Frazier on all three issues.

This Court granted certiorari.

If it please the Court I’ll discuss the facts as they pertain to each issue separately.

Frazier and his cousin Rawls were jointly indicted for first-degree murder in the strangulation slaying of one Russell Marleau.

Frazier entered the plea of not guilty and at the time of Frazier’s trial, Rawls had entered the plea of guilty to reduce charge of second-degree murder and was in jail awaiting sentence on that charge.

At Frazier’s trial, Frazier’s defense attorney has admitted that Rawls, Frazier, and Marleau were together at the time of Marleau’s death and that an altercation occurred.

The defense however asserted that it was Rawls who strangled Marleau and that Frazier had no part in the strangulation.

The prosecution of course denied this.

They had ample evidence placing the three at the secluded scene of the crime.

They of course had no direct evidence as to who did the strangling because there are no other eyewitnesses.

Potter Stewart:

He was also hit on the head —

Howard M. Feuerstein:

That is correct, however, that was not the cause of the death.

The prosecution primarily tried to impeach Frazier’s version of what it transpired.

The day in which Frazier’s trial was to start prior to impaneling a jury.

The attorneys met with the Judge in Chambers.

At that time, Frazier’s attorney informed the district attorney that he’d heard that Rawls had been subpoenaed and that he just talked to Rawls’ attorney and been informed that Rawls would not testify if called to the stand.

We know that prior to this time the district attorney was in possession of conflicting information on whether or not Rawls is to testify.

A jury was impaneled in the next day, the district attorney made his opening statement, In the course of the opening statement he said, that the officers had talked to Rawls during their investigation and that the district attorney was going to call Rawls as a witness.

At this point, holding Rawls confession in his hand, the district attorney proceeded to paraphrase that confession.

The defense moved for mistrial after the opening statement which was denied.

Later the district attorney called Rawls to the stand.

Rawls appeared with his attorney and refuse to testify.

Howard M. Feuerstein:

Defense renewed his motion for mistrial and a hearing was held before the judge, the motion was denied.

Potter Stewart:

Is there any rule on your state that if you’re going to introduce evidence along a certain line you have to mention it in the opening statement?

Howard M. Feuerstein:

No, it’s a requirement that you —

Potter Stewart:

There is none?

Howard M. Feuerstein:

— mention in the opening statement, no Your Honor.

I heard that the district attorney was holding the closing statement referring to a confession?

Howard M. Feuerstein:

Yes, as a matter (Voice Overlap).

It was not referred to as a confession.

If you read the opening statement which is in the appendix on pages 41 to 43, they’re all in part, you’ll find that for instance nearly very first the prosecutor said, “That it is Rawls’ version that such and such occurred” and then he stopped and says, “Maybe I’m wrong.

I will look here to see as to whether Rawls said that he hit him first” and at other times you have phrases like “Rawls said” or “It’s Rawls version.”

So that there was a clear inference, one that the officers had talked to Rawls; two, that Rawls had given his version to the officers; and three, the inference is inescapable that what the district attorney was doing was setting out before the jury what Rawls’ version was and what Rawls had told the police.

The written confession itself was not introduced?

Howard M. Feuerstein:

That is right, in fact, the defense never saw the written confession until Rawls later change his plead of not guilty and was introduced in Rawls’ trial.

No specific instruction was requested of the judge and the judge did not give one to disregard these particular comments in the opening statement.

The judge did however in his general charge to the jury indicate that statements of counsel are not evidenced.

How long was this trial?

Howard M. Feuerstein:

Pardon, Your Honor?

How long was the trial?

Howard M. Feuerstein:

I think the trial lasted approximately a week.

The District Court based its decision on this Court’s opinion in Douglas versus Alabama.

The Court may recall in that case the prosecutor by means of leading questions placed the accomplice’s confession before the jury while the accomplice is on the stand asserting the Fifth Amendment.

The Ninth Circuit on the Warden wished to distinguish Douglas versus Alabama and the later case of Bruton versus United States.

On the ground that here the prosecutor acted in good faith and that the statement was not unfairly prejudicial to the defendant.

We submit, however, that the rule under Douglas and Bruton is that where the prosecution places a substance under accomplice’s confession before the jury and the defendant is denied the right of confrontation if that is not subject to cross examination.

We submit that the defendant is just as surely denied his right to confront and cross-examine Rawls whether or not the prosecution acted in good faith or in bad faith or was merely negligent in placing this before the jury.

Perhaps the Ninth Circuit the Warden had confused the right of confrontation which is a fundamental right with the more general due process right against the prosecutorial misconduct.

William J. Brennan, Jr.:

Under Oregon Law, is the state limited to introducing in its case in chief evidence some, said in the opening will be produced?

Howard M. Feuerstein:

No, Your Honor not that I know of.

As far as I know it has never been —

William J. Brennan, Jr.:

In other words if the prosecution made no opening statement, it could still introduce?

Howard M. Feuerstein:

As far as I know, yes Your Honor.

The Warden also attempts to distinguish the Douglas case from the present case by saying that here the statement was made in the opening statement and was in the form of expected testimony, whereas I’ve already indicated the prosecutor or district attorney fairly implied that Rawls had made a statement, that Rawls had said these things so that he clearly raised the inference of past statements rather than future statements. Certainly, one cannot constitutionally distinguish the remarks of counsel who made examining witnesses’ remarks of counsel were made in opening statements.

The right of confrontation is not suspended during opening statements.

The Warden has hinted that the statement was not prejudicial but we would point out that Rawls was the only other eyewitness to the crime and there was no other evidence in the case to the effect that Frazier strangled Marleau and this was the key issue in the case.

Nor legally under Chapman versus California, can one assume that the jury forgot or ignored what the prosecutor said in his opening statement.

Surely when Rawls took the stand and refused to testify and then the motion for mistrial was made, the jury must have speculated on what Rawls would have testified and what was said in the opening statement.

What was the length of time between the opening statement that was given by Rawls?

Howard M. Feuerstein:

I would say there was probably several days.

The prosecution contends that holding the prosecution accountable what it says in its opening statement would have an adverse effect on future cases.

We submit that this is not true.

If I were a prosecutor and I had a case in which I wanted to use a witness who may or may not assert his right not to testify and I have choice, I can say nothing in the opening statement about this witnesses’ testimony and if he does not testify then no harm has been made.

On the other hand, if he does testify then in my closing argument I can make all the mileage out of it that I want.

There may be cases where the testimony of this witness is so critical to the prosecution’s case and the prosecution may be so sure that this witness will testify that the prosecution will take a calculated risk or bring it out in the opening statement knowing full well that there may be a mistrial if the witness does not testify.

Supposing the trial in this case, the morning before he called Rawls to stand in witness and his privilege denied (Inaudible)?

Howard M. Feuerstein:

I would say that the effect on the defendant is just the same even though the prosecutor had the best faith in the world, the best reason in the world that this man would testify because the fact is that the right of confrontation is basic to our arbitrary system.

You put in effect that deposition or a written statement of a witness which is not subject to cross-examination and if it goes before the jury, no amount of good faith will cure that.

Suppose you would hear arguments in this case excepting the findings of the court below in which no prosecutor request the jury on the stand?

Howard M. Feuerstein:

Your Honor, more accurately I think I would say that rather than excepting, I would say that does not matter.

I would point out however, if the Court should find that good faith is critical then I would say that good faith and bad faith are defined variously for different purposes in the law, and I would say surely when the prosecutor goes forth blindly with conflicting information and does not confirm or deny that information that that is probably bad faith.

Turning to the admissibility of Frazier’s concession, at the time Frazier was taken into custody —

Could I ask you one other question?

Howard M. Feuerstein:

Yes, Your Honor.

Do you have some recollection intermediate to the (Inaudible)?

Howard M. Feuerstein:

What occurred was that after Rawls refused to testify, hearing was held and the prosecutor then told the judge under oath what his information was and as I read that testimony and as I understand it, prior to the trial, the prosecutor talked with Rawls’ attorney or at least the prosecutor’s deputy.

Rawls’ attorney told the deputy they talked Rawls, Rawls would not testify.

However, sometime prior to the trial, I think a probation officer and perhaps a relative of Rawls and maybe some other people had said that they thought that Rawls would testify any way.

So in effect that the prosecutor had conflicting information when it came time for the trial.

As far as I can tell, I do not believe the prosecutor indicated that he rechecked on this information after that beginning conference.

On the confession issue, it is clear that the investigation had focused on Frazier and Rawls at the time Frazier was taken into custody.

In this case, we have a tape recording of the entire interrogation.

Howard M. Feuerstein:

Briefly, it indicates that there was preliminary question prior to any warnings have been given, at which time Frazier denied having been with Marleau that night.

Frazier was then told that he had a right to an attorney and whatever he said could be used against him, then the questioning came more accusatory but Frazier still denied being with Marleau.

At that point the interrogator falsely told Frazier that Rawls was in custody and that Rawls did tell everything.

In fact, Rawls was still free and the police did not yet talk to Rawls.

Interrogator used various standard emotional appeals such that Frazier should not shoulder that entire blame himself reference to Frazier’s dead mother.

He was on emergency leave for a funeral at the time.

And after that Frazier admitted having been with Marleau the night of the crime and he told the officers what happened up until the time when the three arrived at the scene of the crime, then Frazier stopped, he said “I think I had better get a lawyer before I talk anymore.

I’m going to get into more trouble than I am in now.”

The officer replied, “You can’t be in any more trouble than you are in now” and then proceeded with the interrogation.

Frazier then gave his entire version of what transpired although he is still denied that he strangled (Voice Overlap).

Pardon me Your Honor.

Miranda, was it not?

Howard M. Feuerstein:

That’s right, this was after Escobedo.

The trial was after Escobedo but before Miranda.

Before Miranda?

Howard M. Feuerstein:

That’s correct Your Honor.

Frazier then made a complete oral statement of what transpired although he still denied that he strangled Marleau.

The officer offered to type up the statement that Frazier would sign it pointing out the officer would testify to his oral admissions any way, and that he would have — be entitled to an attorney after arraignment which would be made that night.

Frazier signed a written statement then which contained the standard warnings and waiver some of which were mimeograph others were typed on the statement.

This case —

Potter Stewart:

What do you mean the standard warning?

Is this was before Miranda and I did note there were any standard warnings before Miranda.

Howard M. Feuerstein:

You see, Your Honor this is case is somewhat peculiar in that at the time of this interrogation, the Oregon Supreme Court had decided the Neely case at which interpreted Escobedo in the broad sense.

It was one of the liberal interpretations of Escobedo.

Potter Stewart:

Much in the way that it rather anticipated the Miranda case, is that what you’re saying?

Howard M. Feuerstein:

That’s correct Your Honor.

So that officers, I think only recently had instituted this procedure of the standard phrases.

Potter Stewart:

I see and he was given those warnings?

Howard M. Feuerstein:

These were in the written statement.

Of course these warnings were not made at least the warning of right to remain silent was not made prior to his oral admission.

Howard M. Feuerstein:

We submit that the written statement was clearly a fruit of the oral interrogation since the officers told them that they would testify to the oral admissions if he didn’t sign the written statement so he might as well get into writing.

This case is also interesting in another facet and that we not only have a tape recording of the entire interrogation but we have a thorough psychiatric study of the accused.

Frazier had an insanity defense.

There are four psychiatrists and psychologists and neurosurgeon who testified at the trial.

We know that Frazier had a passive personality as long as psychiatrist said he was like a leaf blowing in the wind that he is subject to discipline and direction, that he has intropunitive personality in which he tends to turn the blame within or to blame himself for whatever occurs, that he was shy and immature and of course we know that Frazier had no prior experience with interrogations.

On the —

Potter Stewart:

So he’s home on leave from the Marine Corps?

Howard M. Feuerstein:

Yes, Your Honor, his —

Potter Stewart:

For his mother’s funeral?

Howard M. Feuerstein:

That’s correct, Your Honor.

Potter Stewart:

His mother had been a widow.

He had the psychiatric report showed that he had an over possessive mother.

Howard M. Feuerstein:

That is correct.

She’d been very ill throughout his life and had been on medication and had been abusive at times, yet he was still very close to her.

He had no other family other than Rawls.

How old was he?

Howard M. Feuerstein:

He was 20 years old at the time.

With respect to Escobedo, the state contends that this was not an adequate request for counsel.

We submit that this timid but plain request for counsel is all that is required.

There is nothing in Escobedo that requires an aggressive demand for council.

Now Frazier had stopped and said I won’t say anything more to give me attorney, he doesn’t need an attorney because he won’t confess.

He asked for an attorney and his request was turned aside and ignored.

Potter Stewart:

Didn’t the Johnson against New Jersey pretty well limit Escobedo to its own facts?

Howard M. Feuerstein:

That is true.

Then the question arises in this.

In the context of this case —

Potter Stewart:

What are the facts?

Howard M. Feuerstein:

What are the facts and what are the critical facts.

Potter Stewart:

Yes.

Howard M. Feuerstein:

Of course the fact this man’s name is not Danny Escobedo is not a critical fact to that case.

Potter Stewart:

But Escobedo did have a retained lawyer (Voice Overlap).

Howard M. Feuerstein:

Yes, that is the other distinction which the state has put forward that in Escobedo, the accused already had an attorney where here Frazier did not have an attorney at the time he requested one.

We simply submit that the fact that Frazier did not have the foresight or opportunity to hire a lawyer before he is arrested is not a valid ground for distinction.

As to the voluntariness of the confession, of course this Court must review all the circumstances which it has a great deal of information with which to do that, we submit that under all these circumstances this confession was a product of a will overborne.

That this is a case where the will of a passive, immature, intropunitive person not previously interrogated was overborne by aggressive interrogation using falsehoods, denial of request for counsel, emotional appeals and lack of warnings.

There is one other question on —

On the issue of coercion submitted to the jury?

Howard M. Feuerstein:

Yes, it was submitted to the jury.

That raises somewhat of a problem I believe to the states next contention that’s Frazier waived his objections to the mission of the confession because he took the stand and testified.

The fact is that the states agreed to put — placing the voluntariness of the confession for the juries so the issue was still on the case when Frazier testified.

In any case, the series of state cases which are cited in the Bruton’s brief state that if the accused takes that stand and repeats substantially the confession.

The substance of the confession that he has waived the right to object to the introduction of the confession in certain circumstances, the first problem is that even under those cases the state does not fit within the test because the test requires that the defendant not deny, minimize or explain a way the statements in his confessions.

But in at least two respects, Frazier’s testimony under trial differed from his written confession and the prosecution on cross-examination brought this out and then attempted to impeach Frazier’s credibility.

And his credibility was one of the key issues in the case.

Moreover as the Ninth Circuit in Gladden versus Unsworth and that’s not cited in the briefs, that’s 396 F.2d 373 indicated the state cases relied upon by the Warden did not set forth a federal standard of waiver.

The federal standard enforces intelligent relinquishment of a known right and we can find no indication that Frazier when he agreed to take the stand being faced with the reference to Rawls’ testimony and opening statement intended to waive his strong objections to the mission of the written statement.

Certainly, it cannot be said that there was no prejudice in the admission of the written statement.

Assuming prejudice is relevant at all under Chapman and other cases dealing with forced confessions.

The fact that the Frazier’s written statement was used to impeach his testimony and the fact that the state may not have even made a prima facie case without the written statement, I think indicates that there was prejudice.

On the search and seizure issue, the facts are relatively simple.

Frazier and Rawls shared a bedroom in the home of Rawls’ parents.

Frazier had all of his possession in his military bag, flight bag, or duffel bag.

Potter Stewart:

Frazier and Rawls were first cousins, were they?

Howard M. Feuerstein:

I believe so, Your Honor.

Potter Stewart:

So that Mrs. Rawls was your client’s aunt?

Howard M. Feuerstein:

I believe so although I do not believe that they were close in contact with respects.

They were — I don’t know if they got along very well.

The bag had three separate compartments, two-side zippered compartments and a centered compartment.

Apparently, Rawls put some of his clothing in the side zippered compartment or one of them.

Byron R. White:

Is there any contention that that was without Frazier’s consent?

Howard M. Feuerstein:

There is no evidence in the case whether Frazier consented or not.

There is no evidence one way or the other.

We do know that from Rawls’ expected testimony, the opening statement that Rawls’ version is that he had permission.

Byron R. White:

Well would you have a different argument — would your argument change if it were clearly shown that he did consent?

Howard M. Feuerstein:

Well no because I’m willing to assume for purposes of argument that Frazier consented to the placing of the clothes in the side compartment.

Byron R. White:

Alright.

Howard M. Feuerstein:

I have no objection to that assumption.

The problem is that when the police arrested Rawls, they asked him for the clothes they wore the night of the crime.

He said that they could have them, that they were in a blue flight bag in his room.

The police went up, they took the bag, and they took it back to headquarters and searched it.

The state contends that because Rawls was a joint user of the bag, he had the power to consent to the search of the bag and the police had the power to seize whatever they saw in the course of the search.

There’s one difficulty with that however Your Honors, that is, that Rawls was a joint user of the only the side pocket of the bag.

Well I see its time for the recess.

Earl Warren:

Mr. Feuerstein, you may continue your argument.

Howard M. Feuerstein:

Mr. Chief Justice, may it please the Court.

On the search of seizure issue, our contention is quite simple and straightforward.

First, Rawls was a joint user of only the side pocket of the bag and therefore only had the power to consent to a search of the side pocket.

The mere apparent ownership of the bag as a whole would not be enough under Stoner versus California.

It is true that the police could seize anything that came into view while searching that side pocket but under Harris versus Untied States, they could seize only what came into view when they ran a place where they had the right to be and since the police had no power and no consent to be in the center pocket.

They could not seize what came into view in the center of the pocket.

Byron R. White:

Aren’t they the (Inaudible)?

Howard M. Feuerstein:

The transcript indicates that the bulk of Frazier’s clothing was found in the center compartment.

Byron R. White:

What about the details?

He just said that it’s in blue —

Howard M. Feuerstein:

He just said it’s in a blue bag in my room.

That was the extent of it.

Byron R. White:

Do you think they were right to go inside that?

Howard M. Feuerstein:

Yes, I think that he consented to their taking his clothes out of the side pocket.

Byron R. White:

Well, he didn’t say what compartment it is?

Howard M. Feuerstein:

No, no.

Byron R. White:

How did the police have any knowledge where his close where?

Howard M. Feuerstein:

They did not know but the fact that they did not know did not give them power, is my position Your Honor.

Byron R. White:

But did he say that he can get into the side pocket?

Howard M. Feuerstein:

Well I would think that — let us suppose that instead of a bag —

Byron R. White:

He doesn’t concede that they were rightfully in the side pocket?

Howard M. Feuerstein:

Yes, I do Your Honor.

Yes.

Byron R. White:

And by reaching this consent.

Howard M. Feuerstein:

Yes.

Yes, Your Honor, that’s correct.

Byron R. White:

Frazier’s — although it’s Frazier’s bag, do you feel that he has no right to object to the police being at the side?

Howard M. Feuerstein:

That’s right because the doctrine of joint user or joint use of a particular (Voice Overlap).

That’s right and that’s established.

Byron R. White:

But the police didn’t know — what if the police have gone in when they start to search the bag headed from the center compartment first?

Howard M. Feuerstein:

They had — our position would be that they have no right to be in the center compartment, Your Honor.

Byron R. White:

You mean, until the search for the bag is complete, you couldn’t tell in which compartment the police were allowed to be?

Howard M. Feuerstein:

Well if they didn’t know, of course they could have always asked but they did not Your Honor and —

Byron R. White:

(Inaudible)

Howard M. Feuerstein:

Because and only because of consent of a joint user.

Byron R. White:

Oh, I know but he didn’t consent for them to be on the side pocket?

Howard M. Feuerstein:

Rawls.

Byron R. White:

He consented in going to the bag and look for his clothes.

Howard M. Feuerstein:

Well, he consented to their having his clothes and that they could have his clothes.

He told them generally where it was and I would take that probably as being consent to there going in and going wherever necessary to take his clothes.

Byron R. White:

Well, how do they know that they had all his clothes, what if they have gone to somebody’s side pocket?

Howard M. Feuerstein:

Well, I assume that they would not have any way of knowing.

Byron R. White:

And then you would say that they had to quit or —

Howard M. Feuerstein:

It is — it’s a question of power.

Once they leave the domain of which they had the right to be and their only right was because of consent —

Byron R. White:

My problem is it that it would seem they had the same right or power to be in any pocket of the — where Rawls clothes might have been?

Howard M. Feuerstein:

Well, an analogy situation might be I suppose that Frazier and Rawls joined or occupied a room and Rawls merely said that my clothes are in this room, you can go get them.

Byron R. White:

Right.

Howard M. Feuerstein:

And that, in that room was a dresser exclusively owned and used by Frazier and the police not knowing where Rawls clothes were went in and searched the dresser.

Not knowing, I would say that under those circumstances the police exceeded their authority and that they were in a place in which they did not have the consent to be and which Rawls did not have the power to give them consent to be.

Byron R. White:

Well is it that an argument that the legality of the search depends on what’s turned up, what if that had been rejected?

Howard M. Feuerstein:

No, it is question of scope and power to consent.

Byron R. White:

Well I know but if Rawls clothing in fact that or some of his clothing had in fact been in the middle compartment.

You would have said that that was a lawful search?

Howard M. Feuerstein:

That’s right.

Byron R. White:

And any reason that you’re arguing it was not is that instead of Rawls clothing in the middle of the pocket they came out that it was Frazier’s?

Howard M. Feuerstein:

It was exclusively Frazier’s, that’s correct.

That is exclusively used by Frazier.

Byron R. White:

Now Rawls have said that my clothes are hanging on a — my pants are hanging in a hook in the room and opens —

Howard M. Feuerstein:

Yes, Your Honor.

Byron R. White:

— the police and you may go get them.

They go in and they take his pants and then hang it right along the side of them is another pair of pants —

Howard M. Feuerstein:

That’s correct Your Honor.

Byron R. White:

— bloody pants and it’s got a name tag in them, Frazier.

Howard M. Feuerstein:

Yes, Your Honor.

Byron R. White:

I suppose in that event you would concede that they did seize Frazier’s pants.

Howard M. Feuerstein:

That’s right because that closet is jointly occupied and used by the two and therefore either one of them had the power to consent.

Byron R. White:

And in plain view?

Howard M. Feuerstein:

That’s correct, in plain view.

Byron R. White:

And you can see that they were rightly in the room and rightfully in any part of the grip where they could find Rawls clothing.

Howard M. Feuerstein:

Any part of the grip that was jointly used by Frazier and Rawls because therefore either one of them has consent to the search of that area.

Byron R. White:

But if that opened the pocket first and found none of Rawls’ clothes but some of Frazier’s and then opened the middle compartment and found Rawls clothes and none of Frazier’s.

You would say that they could have not seized Frazier’s clothes?

Howard M. Feuerstein:

That’s right, that’s why I would say the side pocket was exclusively Frazier’s.

Thank you Your Honor.

Earl Warren:

Mr. Specter.

Arlen Specter:

Mr. Chief Justice Warren, may it please the Court.

Taking up first the initial argument advanced by the petitioner with respect to the statements by the District Attorney in the opening speech.

I think that the record makes it perfectly plain that this item is even less than what has been characterized by this Court to be a minor lapse in the course of a very extensive criminal trial.

The statement made by the District Attorney at the outset, amount of the sum two pages in the record and five lines.

The portion of the transcript where the co-indictee Rawls was called to the stand —

William O. Douglas:

How does Philadelphia enters in this case?

Arlen Specter:

I’m representing the respondent that I’ve been asked to do so Mr. Justice Douglas.

The National District Attorney’s Association asked if I would represent the respondent here.

Earl Warren:

Well —

William O. Douglas:

— as a respondent?

Earl Warren:

Do they speak for the State of Oregon?

Arlen Specter:

Yes, sir.

Earl Warren:

The District Attorney’s Association?

Arlen Specter:

No, Mr. Chief Justice Warren.

I speak that is how I came to be in the case but I am here at the request of the State of Oregon, to represent the State of Oregon and I did not speak for the National —

Earl Warren:

Who made the request of you?

Arlen Specter:

The request was made up by a Roger Rook, the District Attorney of Clackamas County who’s in the courtroom today.

Earl Warren:

But is he authorized to speak for the State of Oregon, the situation of this kind or as the Attorney General who is authorized to as someone to speak for them?

Arlen Specter:

It is my understanding that it is the responsibility of Mr. Rook to represent himself here, represent Clackamas County in the State of Oregon and he has —

Earl Warren:

You vouch for that as a matter of Oregon law?

Arlen Specter:

I think I have best turn to Mr. Rook to get confirmation of it.

Roger Rook:

Well, actually this is the Attorney General’s positions necessary towards habeas corpus Your Honor.

However, we are committed to the Attorney General and the three-cabinet has to turn this matter over to me as District Attorney of Clackamas County.

Attorney General is Mr. Robert Y. Thornton.

I requested to mention to this attorney to associate and Mr. Spector to clear on behalf of the State of Oregon’s method.

Earl Warren:

That’s a little at unusual way to proceed.

It seems to me because for instance we’re entitled to know if the representative of the State of Oregon is prepared to vouch for Oregon law and Oregon practice and so forth and I was just wondering as I’m sure other members of the court are whether you’re in a position to do that or not to whether any vouch that you give for, for legal situation in Oregon is it would be in any way binding on Oregon?

Arlen Specter:

Well, Mr. Chief Justice Warren I am thoroughly familiar with all of the matters which are raised in this case.

I think both as to the federal principles amnesty Oregon principles and I have consulted with Mr. Rook about the Oregon principles and his availability here is certainly would enable me to respond to any question which might arise as to the Oregon principles.

I have advised the clerk of my position Mr. Chief Justice Warren and made it plaint that I was coming in as a counsel in the case, not being an Oregon attorney, being a Philadelphia Pennsylvania attorney.

Arlen Specter:

So that I made every effort to make plain my position here sir.

Earl Warren:

Well, you are here then representing the State of Oregon and not the District Attorney’s Association in United States?

Arlen Specter:

Correct Your Honor, I’m here representing the respondent only, yes sir.

Earl Warren:

Very well, you may proceed.

Arlen Specter:

The point that I think is most important on the first argument of the petitioner is that the entire sequence of events concerning the opening statement made by Mr. Rook and the amount of time that the co-indictee was on the stand involved a very small portion of this extensive trial.

Measured by the transcript itself, the opening statement amounted to two pages and five lines and the time when Rawls was on the stand amounted to somewhat less than three pages.

The total of some five pages on a transcript which runs more than 1,000 pages.

Now this item accounted for no more than one half of 1% of this entire trial.

The questions which were asked of Mr. Rawls when he took the stand amounted to only two in number and neither of which was incriminating.

Substantially less than that which was asked of the witnesses in Namet versus the United States when there were four and where those questions did go to incriminating items.

The reference made by Mr. Rook in his opening speech did not involve any direct reference to a confession at all.

There was a reference to a statement and there was not even a clear reference to a written statement and the matter was raised immediately after the opening statement on the defendant’s motion for a mistrial and as it appears on page 48 of the printed transcript.

The court noted, “It wasn’t my observation that the District Attorney was reading from any statement, I don’t know were you Mr. Rook?”

And Mr. Rook responded, “I was not, I was referring to it.”

Thurgood Marshall:

Did he have it in his hand while he was doing it?

Arlen Specter:

Yes Your Honor, he did have it in his hand.

As I think it is fair to say that he had many papers in his hands as he was making his opening statement but he never referred to it as a confession and he —

Thurgood Marshall:

Why did he have it in his hands?

Arlen Specter:

He had in his hands —

Thurgood Marshall:

Accident?

Arlen Specter:

No, no, so that he could be accurate in terms of what he was saying.

In the course of his opening statement, he is very careful in quite a number of places to be a circumspect in the positiveness with which he makes representations and I think that point is a very significant one in terms of the quality of that opening statement where he does not speak of evidence or speak of facts but speaks of what a prosecutor intends to prove and I think Mr. Rook makes that very plain throughout the entirety of his opening statement.

And I if I could cite just a few examples of that at page 30 he says, “I haven’t personally talked with the witnesses that the state has and I don’t know what it looks like.”

And on page 31 he says, “I think our testimony will be.”

And on page 33 he says, “I think that the evidence will show.”

On page 35 he says, “I don’t recall what it is” and a little further down he points out, “If my memory serves me right is that throughout the entire presentation of Mr. Rook, he is doing what any lawyer does in an opening statement.

He is outlining what he intends to prove which is something very different from having a witness on the stand as there was a witness on the stand in Douglas where the prosecutor goes over a statement.”

And after a plea and says, “Now isn’t this what you said to which the witness consistently responds with a plea of privilege under the Fifth Amendment where this is enormously different from what happened in Bruton where there is a co-defendant in the course of robbery case who testifies and there is a cautionary instruction.”

I think it is important to note that in the context of the opening, there were two other matters deemed by the defense lawyer to be of substantial importance where as the comments which Mr. Rook made about the testimony that he intended to produce from Mr. Rawls was not objected to at all in the course of that opening statement.

Although it was one of the grounds for a mistrial advanced by defense counsel immediately after the opening statement was concluded so I’m not saying that there was no timely objection made.

Arlen Specter:

I’m merely putting it in the context of the opening statement where there was an interruption and an objection by defense counsel on the question of Mr. Rook’s intention to use the statement of the defendant Mr. Frazier and there was an eruption and objection by defense counsel on the reference to the items of clothing which had been the subject of search and seizure.

But when it came to this question about Mr. Rook’s reference to what he intended to produce through the testimony of the co-defendant.

There was at that point no objection at all.

When the motion for a mistrial was made included Rawls in there?

Arlen Specter:

Yes, sir.

What was the basis of the motion?

Arlen Specter:

The basis for the motion at that time Mr. Justice Harlan was that the prosecuting attorney Mr. Rook had reason to know that the witness Mr. Rawls would not taken stand and therefore or would plead privilege against self-incrimination and therefore it would not be before the jury.

And this matter was inquired into fully and appears in terms of Mr. Rook’s reply at page 82 for the transcript and Mr. Rook made reference to three specific reasons why he believe that Mr. Rawls was going to testify.

And those three reasons were, number one, that Lieutenant Thomas of the Sheriff’s office reported to me this is his testimony “that he felt sure that Mr. Rawls was going to testify.

Next, he receives statement from Mr. Ore of the probation office that Mr. Rawls was going to testify and did not want to take the fifth.

And third, that Rawls’ two brothers and or mother — I am not sure of that; I’m reading from the record here at least two of them or three of them had talked to him and advised me that although counsel advised him not to testify, he thought he wanted to testify and he was going to testify.

And Mr. Rook, on the next page says I’m talking about the information I had in my head at the time that these events occurred and it is of course not of unusual procedure for a defense counsel thinking based on information which he may have had perhaps in an earlier date of that the plea of privilege would be entered to attempt to dissuade a prosecutor from going ahead with that line of evidence.

It took place right after the opening statement.

Arlen Specter:

These references Mr. Justice Harlan took place immediately after Mr. Rawls was placed on the stand so that there was a detailing in terms of what Mr. Rook which I would think the more germane time when he actually put him on the stand and that is what he had as he put it in his head at that time.

I think that if the petitioner’s point is adopted on this line that there would be a very substantial undercutting of the prosecutor’s right to make an opening speech and I think this case illustrates it very well because there were objections made to three points; two of them actually during the course of the speech and the third one afterwards.

On three of the essential points of evidence which the prosecutor was going to put forward; first, the defendant’s statement itself, secondly, the expected testimony of a co-defendant and third, an outline of the evidence which have been subject to search and seizure.

Now, anyone of these points might have been rendered inadmissible although the search and seizure point had been cleared for a pretrial motion.

But if we would to take the position of defense counsel at the trial that a prosecutor could not go into these items.

It is claimed from this case that the major substance of what the prosecutor was going to talk about to the jury would be stricken from the scope of his opening speech.

And I think that the right in the prosecutor to make the opening outline is a very crucial one when the prosecution has the burden of proof when the facts very frequently or disjointed when there has to be some outline to be followed to give the jury some thread as to what is coming and how they fit into the overall picture disconnected bits of evidence.

And if the defense position were to be upheld here and on the facts of this case, I think it is perfectly plain that —

Earl Warren:

I was wondering Mr. Specter if they merely wanted to advise the jury what they were doing why wouldn’t have been sufficient for him to say that he was going to call this man to the witness stand?

Why was it necessary to tell the jury they’re going to put on the confession that he made out of court?

Arlen Specter:

Well, Mr. Chief Justice Warren, I think because there has to be a thread is to what happened when the three men were together, Mr. Frazier, Mr. Rawls and Mr. Marleau that is crucial time in this case.

I would want to make one thing perfectly plain and that is that Mr. Rook never referred to a confession of call by Mr. Rawls.

Never said it was a confession.

He said, “Rawls have made the statement” and I think it is a fair inference, Mr. Justice Marshall points out that he had a written statement to that effect but he never said it was a confession.

And he then proceeded to outline what happened when those three men were together.

He faced precisely that problem when he was to make references to the statement of the defendant Mr. Frazier.

There again, he had identical problems, how much detail does a prosecutor go into in outlining what he intends to prove through that witness.

Arlen Specter:

And I submit to Your Honor that you really have to at that point tell them what is going to transpire in the case if they’re going to be able to piece together all of the detail facts which are present.

Thurgood Marshall:

I have great difficulty with two of your positions.

One, is you started off that this was de minimis and do I now understand you’re argument is very important?

Arlen Specter:

I’m saying yes.

The testimony is important had it got in but our —

Thurgood Marshall:

No, no, I’m talking about the opening statement.

Arlen Specter:

Yes sir.

I’m arguing that it is one of three crucial parts of the prosecutor’s case but the way it unfolded before this jury it was not put before this jury to any significant extent.

It was put to the jury in a very, very abbreviated form in five pages out of a 1000-page record.

And that is why I say even though this point was crucial important to the prosecution, it was not put before the jury in any detail at all and the record will show that out of an opening speech of some 28 pages in the transcript this occupied about one-seventh.

Thurgood Marshall:

Well, then when you say that you should use that one-seventh to one-hundredth of 1%, that wouldn’t wreck all of the future opening statements of prosecutors in Oregon, would it?

Arlen Specter:

Well, —

Thurgood Marshall:

You would?

Arlen Specter:

Yes, sir.

I submit that it would.

I respectfully submit that it would because how is a prosecutor to know when he is making his opening speech, what evidence is not going to be available to him that afternoon or the next day or a week later.

There may be a death of a witness, there may be a witness who fleas the jurisdiction, there may be —

Thurgood Marshall:

Not if we can in this case?

Arlen Specter:

No sir.

No, it is not but this is the import I submit to Your Honor as to what would happen here or a witness who we have positive reason to think is going to testify on the day of the opening speech and he changes his mind the next day which is a not infrequent occurrence.

(Voice Overlap)

Yes, Your Honor.

Thurgood Marshall:

If this one is the confession in his hand?

Arlen Specter:

Your Honor, this is a written piece of paper in his hand that he refers to in terms of what a witness is going to testify to who was called.

And it occupies —

Thurgood Marshall:

But I don’t think maybe I’m not getting through.

The witness is not going to testify to this confession, is he?

Arlen Specter:

No, Your Honor.

Thurgood Marshall:

— put the confession in or the witness on the stand?

Arlen Specter:

You cannot put the confession in; you’d have to put the witness on the stand.

Thurgood Marshall:

Very well.

So, what you’re doing is waive in the confession that known don’t have or intend to put on evidence?

Arlen Specter:

No, Your Honor, I do not think that is what was done here and the best indication that that is not what was done here is what the trial court said on the motion for a mistrial immediately afterward where contemporaneously witness in event.

Now, the trial judge said that there was not a reference to the written statement.

I submit to Your Honor that at the very most what was done here was that this piece of paper was held in the hands of the District Attorney just as he would hold his own sheet of notes, and that it is all written here as to what he said and he did not make any reference to this being a statement word by word as to what this man had said certainly no reference at all to the issue of a confession.

I think the strongest indication that this item was not of real consequence in this trial is the absence of a request by the defense for a cautionary instruction.

A cautionary instruction of course may serve to remind the jury as to what has occurred and a cautionary instruction may not be observable by a jury.

But I think it is a fair inference from this record that there was a calculated decision made and I think perhaps a wise man from a trial point of view by the defense attorney that there would be no request for a cautionary instruction because this portion of the trial was so minimal that the defendant was better off having it not referred to, than he was getting an instruction that the jury should disregard this kind of evidence as was done for example United States versus Namet.

So, that I think that really puts in prospective the question here as to the factor that it was not of really substantial importance in the course of this trial.

What reference then were made to this episode of Rawls and (Inaudible)?

Arlen Specter:

None, absolutely none.

By neither side?

Arlen Specter:

By neither side and the Court gave a general charge that statements of counsel were not to be regard of this evidence from hornbook procedures so that that was present and perhaps more importantly Mr. Rook’s whole tender of his opening made it plain that he was making representation as to what he intended to prove.

I would like, if I may to deal very briefly with the question of search and seizure before coming to the perhaps more substantial consideration on the Escobedo argument.

I think that the facts in this case show rather emphatically that the police officers were justified and going through this duffel bag where they had no indication about it.

In fact, belong to Mr. Frazier, the defendant in this case now that the duffel bag is something of limited size not knowing which compartment, whose clothes were in and that they then came upon these items of clothing which had in fact been worn by the defendant, Mr. Frazier blood spots and stains of clothing.

And under the decision of Harris versus United States last year by this Court, coming upon objects falling in the plain view of an officer, there certainly was a right to take those items and to use them in the course of the trial.

The duffel bag — they searched the duffel bag and then consented to by both Mr. Rawls and by Mr. Rawls’ mother, the aunt of this defendant, and I think it was well within the ambit of permissibility on search and seizure.

The question on the statement presents some greater difficulty but I would submit to Your Honors first of all that the facts of this situation are well within the ambit of permissibility under the Escobedo decision.

There, was the single statement by this defendant Mr. Frazier that he was about to get himself into more trouble but he had been advised earlier in the course of the questioning that he could have an attorney if he want an attorney why you can have an attorney and the police further said, “What you say here could be used against you in the trial, do you understand that?”

And there was an affirmative answer, the answer yes.

I think that the case is put in real perspective by the argument of petitioner’s counsel when he comes to this question of, “Was the will of the defendant, Mr. Frazier here overborne by aggressive interrogation?”

And I would submit to Your Honors that this is a classical case to show from a tape recording which was made at the time of this interrogation which is reprinted in full that there was an abundance of fairness and there was an abundance of propriety by these police officers in the course of their questioning of this defendant.

The arrest in this case, he was taken into custody at 4:15, he arrived at the detective headquarters at 4:50 and he was questioned from 5:05 to 5:10, and he ended shortly after 6:00 so there was approximately one hour of questioning in this case.

I would submit to Your Honors that if the Court concludes that the statement of the defendant, Frazier is not within the purview of the Escobedo decision that the Court reversed Escobedo and adopt in its place the standards which are set forth in the Crime Control Act adopted by Congress last June.

I would submit to Your Honors that this really puts into focus the test which has been suggested here by counsel for petitioner as to whether the confession was voluntary in its entirely.

The Federal Crime Control Act is now the law of the land presumptively constitutional and certainly a more stringent standard should not be applied to the states than that which is applied to the federal government.

The Crime Control Act has been passed after an exhaustive survey made by the legislative branch of government taking into account many, many factors some of which have been provided a very sound statistical basis for concluding —

Thurgood Marshall:

Was this in the opinion of the judgment we have not consider it, his argument made?

Arlen Specter:

No, Your Honor.

Arlen Specter:

It was not there and I think it could not have been as a matter of timeliness.

I think that this argument is one which could’ve arisen only in the immediate prior subsequent to the passage of the Crime Control Act of 1968 which is a —

Thurgood Marshall:

Is it briefed too?

Arlen Specter:

No Your Honor, it is not briefed.

Thurgood Marshall:

It’s just coming since you came in the case?

Arlen Specter:

Yes Your Honor.

Thurgood Marshall:

I see.

Arlen Specter:

The statistical base to which I was referring has provided a very strong basis for a conclusion by the Congress that there have been substantial reductions in the number of a confessions and statements post Miranda and in the balancing process which is the essential ingredient on determining constitutionality, I would suggest that that determination should be accorded great weight.

William J. Brennan, Jr.:

Is this an argument to overrule Miranda?

Arlen Specter:

Yes sir, it’s an argument overrule Escobedo Mr. Justice Brennan and which would necessarily involved an overruling of Miranda because the Escobedo rules are less stringent on law enforcement than Miranda.

But we are faced with here is the Escobedo rule as opposed to the Miranda rule.

The —

Earl Warren:

Does the State of Oregon take that same view of it?

Arlen Specter:

Mr. Chief Justice Warren, I’m authorized to represents the State of Oregon.

Earl Warren:

No, but they didn’t brief it, you’re not on their briefs?

Arlen Specter:

That’s correct.

Earl Warren:

They didn’t brief this subject at all and it isn’t in the record and I just wondered if you were authorized to speak for the State of Oregon when you say that this is a situation?

Arlen Specter:

Yes, Your Honor.

I am authorized to speak for the State of Oregon.

I have conferred with Mr. Rook on this point.

Earl Warren:

In that particular respect when it’s not in their briefs?

Arlen Specter:

Yes Your Honor, I have discussed that aspect with him.

Earl Warren:

With who?

Arlen Specter:

With Mr. Rook, the attorney who tried the case and the District Attorney of Clackamas County, Oregon, yes sir I have.

I would suggest that under the standards which have been suggested by this Court in terms of alternative procedures to guarantee fairness and to guarantee voluntariness, now this is a classical case supported by a tape recording not which is used for a latter formal portion of a statement but it’s a tape recording embodying the entire occurrence between the defendant and the interrogating officers that this does comport with a due process of law and it’s an ample standard for judging the admissibility of this confession.

Earl Warren:

Mr. Feuerstein, I think you a moment or so.

Howard M. Feuerstein:

Mr. Chief Justice, I would merely say that it is true that the District Attorney did not refer to this as confession.

In fact, it was really an exculpatory statement and which the — suppose accomplice placed all the blame on Frazier.

And throughout this opening statement such phrases as “This is Rawls’ version.”

Rawls said that, “He took — trying to rob the bank.”

Howard M. Feuerstein:

He said, “We took all the clothes off after we got home and put them into the travel bag.”

It was perfectly clear to anyone hearing the opening statement that Rawls had made a statements to the police and that the District Attorney was telling the jury what the statement was and there was no way in the world which the defense could test that version of Rawls of cross-examination because Rawls refused to testify.

The same would’ve been true if completely unexpected Rawls had died and did not testify at all.

Potter Stewart:

Was the tape recording played to the jury of the —

Howard M. Feuerstein:

It was played to the judge in chambers in ruling on expression.

Is it part of the record in this Court?

Howard M. Feuerstein:

The tape recording itself is not but the transcript is.

Yes.

The tape is not part of the record?

Howard M. Feuerstein:

No, Your Honor.

Potter Stewart:

But the transcript of the tape recording is?

Howard M. Feuerstein:

That’s correct.

Everything that is said has been transcribed and it is in the appendix.

Potter Stewart:

And this was played in chambers for the judge?

Howard M. Feuerstein:

That’s correct, Your Honor.

Potter Stewart:

Was there an offer to introduce any evidence that was objected too?

Howard M. Feuerstein:

I’m not sure whether the — I think the tape recording was may have been in evidence solely for the purpose of the hearing of a voluntariness of the confession.

It was never presented to the jury or placed before the jury.

Potter Stewart:

Was it — no points made off in fact that there have been tape recording for the point of view of?

Howard M. Feuerstein:

It was relied on by both the state and the defense for purposes of indicating whether the confession was voluntary and whether Escobedo and the state — Neely versus State have been complied with.

Potter Stewart:

Had it been a surreptitious tape recording that is perhaps didn’t (Voice Overlap) have the tape — did the defendant know that the business was being recorder on a tape (Voice Overlap) he is interrogated?

Howard M. Feuerstein:

Apparently, he did and this was indicated to him that what was on the tape would be orally placed in evidence if he did not sign the written statement.

There is no judgment then of points to?

Howard M. Feuerstein:

No, Your Honor.

Hugo L. Black:

As I understand it to be that it was not open in evidence at all?

Howard M. Feuerstein:

Only for purposes of ruling on the voluntariness or admissibility of the written statement.

It was not placed before the jury Your Honor.

Hugo L. Black:

He didn’t used?

Howard M. Feuerstein:

That’s correct, Your Honor.

Earl Warren:

Mr. Feuerstein, I understand you were appointed by the Court of Appeals for the Ninth Circuit to represent this indigent defendant and that you have carried on that same assignment to this Court, and this Court considers it a real public service to lawyers who represent indigent defendants that the — by assignment from the Court and we appreciate what you have done as a public service.

Howard M. Feuerstein:

Thank you.