Gilbert v. California

PETITIONER:Jesse James Gilbert
RESPONDENT:California
LOCATION:Alhambra police station

DOCKET NO.: 223
DECIDED BY:
LOWER COURT:

CITATION: 388 US 263 (1967)
ARGUED: Feb 15, 1967 / Feb 16, 1967
DECIDED: Jun 12, 1967
GRANTED: Jun 13, 1966

ADVOCATES:
Luke McKissack – for the petitioner
Norman H. Sokolow – for the respondent
Thomas C. Lynch – Attorney General, for the respondent
William E. James – Assistant Attorney General, for the respondent

Facts of the case

Jesse James Gilbert was charged with armed robbery and the murder of a police officer in Alhambra, California. Gilbert refused to answer questions about the robbery charge without the advice of counsel, but later answered questions about a robbery in which the robber, allegedly Gilbert, used a handwritten note demanding the money. He gave the police handwriting exemplars, which were later admitted into evidence. The police also had eyewitnesses identify Gilbert in a line-up that was conducted without notice to his counsel. During the trial, several witnesses identified Gilbert in the courtroom as being a part of multiple robberies, including the Alhambra robbery. No distinction was made as to whether the in-court identifications were independent of the illegal line-ups that occurred before the trial. The jury rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed. 

Question

(1) Does taking of handwriting exemplars violate the Fifth Amendment’s protection against self-incrimination?

(2) Are in-court identifications unconstitutional if there was no determination of whether they were influenced by an illegal lineup procedure? 

Earl Warren:

Jesse James Gilbert, Petitioner, versus California.

Luke McKissack:

May it please the Court —

Earl Warren:

Mister —

Luke McKissack:

— at the termination of yesterday, I was informed — I asked the marshal to inform me when ten minutes were left and I managed to go one minute over till nine, but I’ve concluded my opening argument.

Earl Warren:

Very well.

Mr. Sokolow.

Norman H. Sokolow:

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

Mr. James will discuss the effect of the co-defendant’s statements and I shall discuss the other issues commencing with the lineup.

Relative to the lineup we believe the essential question is this, whether petitioner’s right to the assistance of counsel for his defense was violated by his being placed in the lineup subsequent to his — to the indictment when his counsel was not present at which lineup he was required to exhibit himself and speak for identification.

Our answer briefly is that — the right to the assistance of counsel did not apply to the lineup, there being no violation of the privilege against self-incrimination.

Hugo L. Black:

Did I understand —

Norman H. Sokolow:

But —

Hugo L. Black:

Did I understand you to say he was compelled to speak after being put in the lineup?

Norman H. Sokolow:

Yes, Your Honor.

Yes, Your Honor, by way of factual background, Mr. Gilbert was arrested in Philadelphia, February 26, 1964.

He was indicted in this case on March 10th.

He was not returned from Philadelphia to California until March 16th.

Counsel was appointed March 18th, new counsel substituted in on March 24th.

The lineup took place March 26.

Three of the seven eyewitnesses to the robbery at the Mutual Savings and Loan in Alhambra which culminated in the killing of Officer Davis, related that they attended the lineup.

Mrs. Riddle, Ms. Butler, and Mr. Clark at the penalty phase, the eight eyewitnesses who identified Gilbert in connection with various other robberies also related that they attended the lineup.

From the record we have here, it appears that the ten or more so individuals in the lineup were asked to move and to speak for identification.

What the — I — doesn’t appear that Gilbert said anything of an incriminating nature that was —

William J. Brennan, Jr.:

Did he know exactly what each was asked per se?

Was there a question further how was it done, does the record tell us?

Norman H. Sokolow:

The record is not as precise on that Your Honor.

The only witnesses really that testified to any details of what happened were Ms. Butler, Mrs. Riddle, and Mr. Clark —

William J. Brennan, Jr.:

Now, this was at the trial on guilt or innocence?

Norman H. Sokolow:

This was at the trial on guilt or innocence.

William J. Brennan, Jr.:

The other eight testified only at the trial on penalty?

Norman H. Sokolow:

Yes, Your Honor.

William J. Brennan, Jr.:

Yes, and the three —

There were on — excuse me.

William J. Brennan, Jr.:

Can you tell us what the three who testified at the trial on guilt or innocence said they saw or heard?

Norman H. Sokolow:

Yes, they were asked if — Mr. Gilbert and the others were asked such question as, “Do you own an automobile?

What type or what make is the automobile?

Where were you arrested?”

And — now, in our record —

Did he also tried to answer —

Norman H. Sokolow:

Yes —

— these questions, were all of the people in the lineup as you speak with Gilbert?

Norman H. Sokolow:

Again, Your Honor, I don’t — it’s my impression that the people in the lineup were all asked to move forward and to answer certain questions.

William O. Douglas:

Definitely.

Norman H. Sokolow:

And the —

Does the record show them?

Norman H. Sokolow:

The testimony?

Yes, Your Honor.

The — I think we can glean that from the testimony of these three witnesses.

Now as we pointed out in one of the —

Abe Fortas:

Well an automobile is bigger than this —

Norman H. Sokolow:

I beg your pardon sir.

Abe Fortas:

I’m so sorry, did an automobile figure in the crime?

Norman H. Sokolow:

Yes, Your Honor in connection with the escape of the robbers and the — relative to the search and seizure point as furnishing Officer Nixon with information on which to believe that at least two people had escaped in a certain automobile and then he found the wounded Mr. Weaver in a still another automobile —

Abe Fortas:

Yes.

So — but asking this man, asking petitioner whether he own an automobile is getting somewhat close to asking the question that had some relationship to guilt or innocence, is that right?

Norman H. Sokolow:

Well, that may be true Your Honor, but the point we believe is this that nothing that Mr. Gilbert responded as — from our reversal of the record was brought to the attention of the jury through the witnesses who attended the lineup.

Now, as we pointed out in a footnote to our brief, the federal case, Gilbert versus the United States pertaining to the same lineup does reflect that there was — there were further matters brought out at the lineup and as counsel pointed out there — in that — in the opinion of the Court there that people in the audience called out, identifying numbers.

However, Ms. Butler in our case and Mrs. Riddle did not have a recollection of that taking place, that is the people in the audience called out numbers, I’d refer very briefly to reporter’s transcript page 157 and pages 356 and 57.

Tom C. Clark:

356?

Norman H. Sokolow:

Yes, Your Honor.

Hugo L. Black:

What was the purpose of compelling him to talk?

Norman H. Sokolow:

Oh, I submit that it was for purpose for identification Your Honor.

Tom C. Clark:

Is that routine in California that you ask them on the lineup, ask questions?

Norman H. Sokolow:

I believe this is a traditional type of lineup Your Honor.

Tom C. Clark:

Where is the record in this case, I don’t know if it comes to the record.

Norman H. Sokolow:

The case was submitted on the typewritten copy of the record Your Honor.

Tom C. Clark:

So, we have just one copy (Voice Overlap) —

Norman H. Sokolow:

Yes, Your Honor.

Tom C. Clark:

This information with the reference to these questions is at page 157, 356 —

Norman H. Sokolow:

And 357, yes.

Tom C. Clark:

Those are the only reference to?

Norman H. Sokolow:

That — those are the only — well, let me explained that that’s the — those are the places where Ms. Butler and Mrs. Riddle respectively testified to the effect that they did not recall hearing people from the audience that called out numbers.

As far as —

Tom C. Clark:

What do you mean calling out numbers?

I don’t understand.

Were they — he — suspect numbered in the lineup?

Norman H. Sokolow:

Yes, Your Honor.

Tom C. Clark:

Now, who asked the questions, police officer or district attorney, who?

Norman H. Sokolow:

It was one of the officers, whether it was specifically a police officer or an FBI agent, I don’t believe the record makes clear but it — there was a moderator as it were who was asking the questions and directing the people who —

Tom C. Clark:

The questioning is not the purpose of identification of the voice, is it?

It couldn’t be if they’re asking about their car?

I suppose they were trying to find out if that was a car that the escapist (Inaudible).

Norman H. Sokolow:

Well, Your Honor, I — the record doesn’t go that far.

William J. Brennan, Jr.:

But tell me Mr. Sokolow, suppose a question were put each one in the lineup, “Where you guilty of this crime of robbery of a certain savings bank which occurred in such and such day?”

Would you be taking the position you are now if the record clearly showed that’s what the question was even though the answer was not offered in evidence against the — at the trial?

Norman H. Sokolow:

Well, I would think that that would not be a proper question to ask if — at the lineup —

William J. Brennan, Jr.:

No, my question was would the state —

Norman H. Sokolow:

— at the lineup.

William J. Brennan, Jr.:

— would the state be taking the same position that there was no Fifth Amendment issue involved if that had been the question?

Norman H. Sokolow:

Well, if that was not brought to the attention of the jury and if of course — then we might be able to argue that perhaps that did not violate his —

William J. Brennan, Jr.:

But what about the —

Norman H. Sokolow:

— Fifth Amendment (Voice Overlap) —

William J. Brennan, Jr.:

— the problem of — what about the problem of fruits?

Norman H. Sokolow:

Of what?

William J. Brennan, Jr.:

Of fruits, leads.

Norman H. Sokolow:

Well, of course, if that permeated to the eyewitnesses at the lineup, if it were shown and brought out that the — then of course, I would think that there would be a Fifth Amendment question then.

Abe Fortas:

Well one person —

William J. Brennan, Jr.:

What was the (Voice Overlap) —

Abe Fortas:

— at the lineup said that —

Norman H. Sokolow:

I beg your pardon sir.

Abe Fortas:

One person at the lineup said he didn’t that it can facilitate identification, wouldn’t it?

Norman H. Sokolow:

If a person at the lineup said he did it?

Abe Fortas:

That its — facilitate identification?

Norman H. Sokolow:

Yes.

Tom C. Clark:

What was his answer that the — it was his car, that he was in the car?

Norman H. Sokolow:

It doesn’t appear from our record Your Honor, what the answer was.

Tom C. Clark:

I mean the record you referred me to doesn’t appear?

Norman H. Sokolow:

No, Your Honor.

Tom C. Clark:

We don’t know whether he answered it or not, did he?

Norman H. Sokolow:

That’s true.

Tom C. Clark:

I suppose — I thought you were admitting the he answered it.

Norman H. Sokolow:

Well, he was — the individuals at the lineup from our record were asked such question as, “Do you own any car?

What is the make of the car?”

And so on.

What they specifically answered doesn’t appear in the record at least.

Tom C. Clark:

Well, we know there might have several (Inaudible), I’m not going to answer that or if you (Inaudible).

Norman H. Sokolow:

True, but then, we think if that was the case that there is no reason why defense counsel at the trial could not have asked the witness just what did Mr. Gilbert answer.

Or if the defense felt that there was an infringement of the Fifth Amendment rights that Mr. Gilbert himself could have taken the stand out of the presence of the jury on voir dire and testified to the effect that he was asked to make incriminating statements, but our record doesn’t disclose that that was the case.

Tom C. Clark:

Then you don’t know whether he answered it all — about it?

Norman H. Sokolow:

I don’t believe the record specifically shows that Your Honor.

Norman H. Sokolow:

I mean the cross-examination, it’s a — is a rather sparse record as to the details of the lineup and the — I think, the cross-examination was essentially the question — what were the — were you asked such question — or where the people in the lineup asked such questions as, “What is — did the defendant own a car?

What is the make of the car?”

And so on.

How many of your practice do you need to the lineup question (Inaudible) the actual lineup procedure?

Norman H. Sokolow:

I — not to my knowledge Your Honor, to my knowledge.

Earl Warren:

Does a state contended that the lineup did not occur as was recorded in the opinion in the federal case?

Norman H. Sokolow:

No, we’re not contending that Your Honor, just that the witnesses in our case apparently didn’t have the recollection of some of the witnesses in the federal case or that they were not cross-examined specifically in those respects as they were in the federal case.

Earl Warren:

Were these the same witnesses in the federal case as in the state case?

Norman H. Sokolow:

I believe that probably on the penalty phase that they were, it’s my impression from reading the federal circuit opinion that there was some similarity as to the things — at least some of the witnesses, I think.

Earl Warren:

Well, on the question — if it’s a question of — if you’re contending that some lineups are legitimate and some are not legitimate, it would seem to me that it would be very important for us to know what happened here.

And if the state knows and if the state agrees that what happened in the federal case is right, I would take that it would make such a concession here whether it happens to be in the record or not.

What were interested in are the true facts of this situation, are we not?

And if the federal court was right in finding what it did about these people declaring out the public, “That’s the man” or “That’s the man”, and someone else is the man.

I would think the state would be willing to concede it here so, for the purposes of this case.

Surely some investigation was made, was — on this — as to which version was true.

Norman H. Sokolow:

Well, Your Honor, it’s our position that what was brought to the attention of the jury in this case by the witnesses who are present at the lineup was the crucial factor.

It’s — it was our further feeling that actually, that is a record in a different case —

Earl Warren:

No —

Norman H. Sokolow:

— that we in all candor did put — have set forth in our brief the fact that the opinion does therein does refer to the same lineup.

I would think perhaps it would be —

Earl Warren:

But my point is simply this.

If the state knows that that did happen as related in the federal case, and knows, then I suppose, we all would know, that if that was stated to the jury in this case, that it might have affected the verdict of the jury that the state would concede if it believes that to be the fact.

Now if you don’t believe it to be the fact, why — entirely different thing.

Norman H. Sokolow:

Well, it — I know from talking to a member of the United States’ Attorney’s Office that — he told me that the testimony that appeared in the opinion in the case of Gilbert versus United States was in fact the testimony as it did appear in the record in that in that case.

So, I would —

Potter Stewart:

Is that a — what’s the — is that a federal habeas corpus?

Norman H. Sokolow:

No, that was a prosecution for bank robberies Your Honor, a federal — a prosecution —

Potter Stewart:

Of a federally insured banker or a federal bank?

Norman H. Sokolow:

Yes, Your Honor.

Potter Stewart:

And it —

Norman H. Sokolow:

About four —

Potter Stewart:

A separate prosecution?

Norman H. Sokolow:

That’s right Your Honor.

Potter Stewart:

But the same lineup?

Hugo L. Black:

(Inaudible)

Norman H. Sokolow:

That’s right.

Earl Warren:

And as I understood it, it grew out of the same arrest and this man when he was arrested, he said he would talk about other robberies but not about the one in California, isn’t that right?

Norman H. Sokolow:

That’s right, he —

Earl Warren:

Yes.

Norman H. Sokolow:

Yes, and —

Earl Warren:

I thought that he would.

Byron R. White:

Who made the —

Tom C. Clark:

Does this show the answers?

Norman H. Sokolow:

I beg your pardon sir?

Tom C. Clark:

Does the federal reporter show the answers?

Norman H. Sokolow:

The opinion in the federal case does — I don’t know that it shows that answers specifically as to what type of automobile and so forth.

Tom C. Clark:

You see, that’s pretty a close question that — and this lineup when you mingle with it, testimonial compulsion would — makes it almost an impossible question.

It’s pretty an important point, factually, to me.

Well, that’s why I was asking you about whether it was unanswered.

Byron R. White:

Well, who made any findings with respect to this matter in the federal case?The Court of Appeals or (Voice Overlap) —

Norman H. Sokolow:

It is the Court of Appeals for the Ninth Circuit Your Honor.

Byron R. White:

But was there a reading in the testimony?

Norman H. Sokolow:

That’s right Your Honor.

Now, parenthetically, petitioner has suggested that a state statute was infringed relative to custody of prisoners insofar as taking Gilbert from the county jail to the lineup at the police station.

Well, as we point out in our brief, the California Supreme Court indicated that if this was the case, it was immaterial.

Now our further study of the record would indicate that in any event, Gilbert was not in state custody then, but in the custody of the federal authorities although being housed at the county jail.

And we respectfully refer to the Court to pages 66 and 67 of Volume 1 which contains the pretrial proceedings, the previous reference was to the transcript containing the testimony which commences with Volume 6.

We gather from the Schmerber opinion that traditionally, the lineup is considered an identification process — that Schmerber reflects that the privilege against self-incrimination is not violated so long as — at least by that compulsion which makes the accused the source of real or physical evidence and so long as he is required to move or to speak although extensively but only for the purpose of identification, he is exhibiting physical characteristics not communicating testimony only.

We would submit that identification processes whether they be photographic, taking fingerprints, or displaying physical characteristics at a lineup are part and parcel of the people’s preparation of the case, traditionally accomplished in private and that governmental interests of reasonable convenience and reasonable trading and preparing the people’s case require that such preparation not be subject to curtailment or control by the defense.

We reiterate that —

Abe Fortas:

Well, this was also —

Norman H. Sokolow:

— if there is an infringement of the privilege against self incriminate — oh, I didn’t — I’m sorry —

Abe Fortas:

Go ahead.

Norman H. Sokolow:

I didn’t hear you —

Abe Fortas:

I beg your pardon, I — but this was part of the preparation in the case, wasn’t it, it was post-indictment.

Norman H. Sokolow:

Yes sir.

Abe Fortas:

It’s part of the preparation in the case as distinguished from identification.

In terms of trying to find out whether the person — where there is enough basis for holding a person and charging a person with a crime.

But — and the — that — it’s conceivable if that will make a difference.

Can you tell us whether it’s customary in California to have lineups after indictment, that most of them occur before the indictment?

Norman H. Sokolow:

Well, as to my own personal impression, that most of them occur before indictment.

But in this case, of course, Mr. Gilbert was not returned from Philadelphia to California until after the indictment had taken place.

Abe Fortas:

I see.

Norman H. Sokolow:

We submit that if the accused is not entitled to assert a Fifth Amendment privilege at the lineup, then of course, it should be immaterial whether it occurred before or after the filing of the indictment.

What happens in the area of California during lineups were (Inaudible)?

If the man has a lawyer and the lawyer shows up and said, “I’d like to be present at the lineup”, would he be included or would he be excluded?

Norman H. Sokolow:

No, he would be excluded Your Honor.

At least I don’t know of any incidences where he’s been admitted and the — in the Lopez case which we cite in our brief, a similar situation arose there and the counsel was excluded.

Earl Warren:

Is there any ordinary or usual procedure on the lineups in California, or isn’t it on ad hoc basis?

Norman H. Sokolow:

Well —

Earl Warren:

What they’ve did that the police do just what they think the circumstances called for in having a lineup?

This —

Norman H. Sokolow:

Well, I —

Earl Warren:

Is there any recognized practice?

Norman H. Sokolow:

Well, I think they customarily put the individual in the lineup with enough others so that there can a fair testing of identification but as to the exact details on how they are conducted I would suppose they’re — perhaps on an ad hoc basis.

Now, that —

Earl Warren:

Here, I noticed that —

Norman H. Sokolow:

I confess, I’m not —

Earl Warren:

Here I noticed that not only did they put him in the lineup and have the — this big audience out there watching them but they also required them to put on certain clothes.

And in addition to that thing, they cause them to walk both fast and slow and then they asked them questions.

Earl Warren:

Now, is it common in California to make a man dressed up for a — in a way where — to highly incriminate him in a lineup?

Norman H. Sokolow:

Well, I think it is perhaps customary for them to — for all the people in the lineup to be as to — try on articles of clothing and as I — it seems to me that the — this lineup here basically was quite similar again to that one in the Lopez case which we have cited in our brief which is a few years ago, and another California lineup, much along the same lines.

Tom C. Clark:

How do you get in that if you can’t identify?

Norman H. Sokolow:

I beg your pardon sir.

Tom C. Clark:

How do you get into that even if you don’t know the identity of the defendant?

Norman H. Sokolow:

Well, in this case, the various witnesses have been shown photographs.

Tom C. Clark:

You’re just framing it up, wouldn’t —

Norman H. Sokolow:

This would be framing it up — yes, Your Honor.

Now, assuming but not conceding that some legal impropriety might have prepped into the lineup, would that invalidate the testimony of the witnesses who identified Gilbert, we submit it would not as was pointed out in the Silverthorn Lumber Company case that knowledge of the facts is gained from an independent source they may be proved as any others.

The eyewitnesses here did not come into existence as such because they attended the lineup but because they were present when an offense was committed.

William J. Brennan, Jr.:

May I ask Mr. Sokolow, I finally get — have this Court of Appeals’ opinion which is very confusing business trips, so many different ones here.

So I’d like to ask you, and this opinion here of Judge Browning, this is a dissent on the issue of lineup.

As I read Judge Duniway’s opinion, the holding there was no motion had been made to suppress and so forth.

It’s not very informative about what happened at the lineup.

Now Judge Browning’s opinion has this short paragraph, “Approximately 13 men including appellant appeared on stage, the prisoners were identified by number.

They were required to pose the center of the stage individually, turn, try on various articles of clothing, and answered questions including whether they owned an automobile, where they were arrested, and whether when arrested, they were armed.

They were required to say certain phrases used during the robberies, “Freeze, this is a stickup.

This is a holdup.

This is a heist.

Don’t anyone move.

Empty your cash drawer.”

To shout these phrases and repeat them in a quiet voice while standing still and while walking both normally and at a rapid pace”.

Now, does that describe what actually happened if you understand it at the lineup?

Norman H. Sokolow:

Well, I think that occur — accords also with the majority opinion — the opinion of the Judge Duniway in the same case and I certainly acknowledge that there was testimony in that federal case to that effect.

William J. Brennan, Jr.:

But, what was — I’m — is the testimony in the state case like this?

Norman H. Sokolow:

No, Your Honor.

It’s not merely so extensive.

William J. Brennan, Jr.:

Even though it’s the same lineup?

Norman H. Sokolow:

Same lineup.

Tom C. Clark:

Well, they don’t ask the same questions with each number, do they?

Tom C. Clark:

I suppose they’d asked number 1 about his — what they thought he was doing, and number 2 about his, trying to correlate them, won’t you?

Norman H. Sokolow:

Oh, I don’t think —

Tom C. Clark:

So that — this paragraph here wouldn’t necessarily refer to this case here, would it?

Norman H. Sokolow:

Oh, I don’t think we can say specifically from either record precisely what each individual in there.

Tom C. Clark:

It’s unfortunate if you didn’t have a record.

Is there any other record besides the one you have?

Norman H. Sokolow:

No, Your Honor, not that I know of.

I — we would like to stress that trial judge’s observations as to one of the eyewitnesses, Ms. Butler — he said — I am saying she comes into the courtroom here regardless, if you hadn’t any show up here at all, and this by the way is set out in our brief, she comes into the courtroom here and positively identifies the defendant.

I would think, if I were in the robbery she was in, I would have think that — I would have a pretty — I — good idea of who did it when I saw him in the courtroom and I think she has.

And we submit that as to all of the eyewitnesses who identified Gilbert in the courtroom that their testimony reflected the definite opportunity on the part of each one to observe the perpetrator of the particular robbery and that the people were manifestly relying on those in court identifications.

But going to the —

Earl Warren:

Well, Mr. Sokolow if —

Norman H. Sokolow:

Yes.

Earl Warren:

If all they can do at the trial is to test the recollection and the identification of the witness, is there anyway that an illegal lineup could be tested, shows to prevent it having tainted the case?

Norman H. Sokolow:

Yes, Your Honor, I —

Earl Warren:

How could that be done?

Norman H. Sokolow:

I submit that the defense had made a motion to exclude any testimony relating to the lineup or derived from it on the — and asked that the defendant be permitted to take the stand on voir dire examination outside the presence of the jury to relate just exactly what the infringement was.

And we do not have that in our case here.

Now going on then to the handwriting exemplars, as counsel for petitioner indicated yesterday, there is a certain similarity between the two issues.

By way of factual background, and FBI agent, Mr. Dean arrested Gilbert about 9 PM, February 26th in Philadelphia.

Gilbert was surprised of his rights to an attorney but he did not have to make any statements and any statement he made to be used against him in courts.

He was transported downtown about three miles from the arrest scene.

At FBI headquarters, he refused to discuss his activities on the east or west coast indicating he wanted to obtain counsel before making any statements.

At 10 PM, another agent, Mr. Shanahan spoke that Mr. Gilbert again, telling him he did not have to make any statements without the advice of an attorney and any statement he made could be used against him in a court of law.

Shanahan asked Gilbert if he’d like to talk to him and Gilbert said he would, providing it did not pertain to the case in California.

Shanahan testified that he interviewed Gilbert according on that basis.

Shanahan was interested in some robberies in Philadelphia.

He was working on them.

Demand notes had been used in consummating those robberies.

They have been passed to the tellers.

Norman H. Sokolow:

He asked Gilbert if Gilbert would give him some samples of his hand printing and Gilbert agreed and did so.

Now, Shanahan testified he had no information.

These hand printing exemplars were to be used later on in Los Angeles.

However, it was FBI policy to secure hand printing samples of all suspects in robberies and keep them on file here in Washington.

Keep them on file of samples of — handwriting samples of bank robberies throughout the country.

It was testified that —

Earl Warren:

Mr. Sokolow —

Norman H. Sokolow:

Yes.

Earl Warren:

May I ask you if this is a fair statement of the state’s position.

This man was arrested and was asked to make a statement, he said, “I will not make a statement about anything occurred here in California.

I’m willing to discuss with you any charges against me in other states”.

And pursuant to that, they held this lineup and had these witnesses at the California robbery in the audience that was viewing the lineup and that these questions that were asked of him pertained to the California robbery and not to the ones in the other states?

Norman H. Sokolow:

Oh, well Your Honor, the —

Earl Warren:

Is that (Voice Overlap) of it or am I mistaken in that — in those facts?

Norman H. Sokolow:

I would respectfully submit that Your Honor would be mistaken in that the — the lineup took place at quite some while after this interview.

Earl Warren:

Beg pardon?

Norman H. Sokolow:

The lineup took place some while after this interview at the FBI headquarters in Philadelphia.

The lineup was March 26 and this interview where the handwriting exemplars were given was February 26, in other words about a month earlier.

It was on February 26th that Gilbert said in effect he did not want to discuss anything about California but would be willing to talk about Philadelphia and that Shanahan indicated that he is interested in some bank robberies that had occurred in Philadelphia.

He suspected that Gilbert might be involved in them and would Gilbert talk about those loosely or freely interpreting the record.

And it was in the course of that discussion that Gilbert gave the hand printing samples and the handwriting expert gave his qualified opinion that there was a link between the hand printing samples and the writing or printing on a diagram of the robbery scene that was found at — in Gilbert’s apartment in the Los Angeles area.

Earl Warren:

But — so the lineup was before he made that statement, was it that —

Norman H. Sokolow:

Subsequently, Your Honor.

Earl Warren:

It is a —

Norman H. Sokolow:

About a month subsequently.

Earl Warren:

Yes.

Well, had he ever changed his statement to the police as to what situation he is willing to talk about?

Norman H. Sokolow:

I don’t believe the record which — well, there was some evidence — effort by the people as I recall to introduce some statements that Gilbert made and the Court excluded those statements.

I would have to double check them.

Of course they were excluded but I think they were excluded on the basis that Gilbert at that time definitely indicated he wanted a counsel.

Norman H. Sokolow:

Now, whether that would give the answer to Your Honor’s questions, I don’t this moment recall.

Well, the — there was testimony at any rate that the filing of the hand printing samples here in Washington was in the same category as taking and keeping fingerprints on file.

And we would submit that that’s an illuminating piece of testimony that — it’s in the same category as taking and keeping fingerprints on file.

In other words, it points up the identification aspect of taking handwriting exemplars and lends emphasis to our position that handwriting is no more and no less than an essential, physical characteristic.

We would urge that the giving of the exemplars in the case at bar involves no testimonial compulsion which is a predicate for invoking the privilege against self-incrimination.

Gilbert was not required to verify the authenticity of this hand printing on the exemplars that was provided by Agent Shanahan who’s — for whom Gilbert filled out the exemplars, and he was not — Gilbert was not compelled to disclose that the writing on the diagram was his.

That was proved to a qualified extent by the handwriting expert.

So, we urged that giving exemplars as in the case at bar involves no violation of the privilege against self-incrimination, a privilege which invokes the right to the assistance of counsel.

We’d like to say a few words about the search and seizure point by way of factual background, just after the shooting of Officer Davis at the Mutual Savings and Loan, a businessman in the area saw two men running out of the Savings and Loan and then shortly saw a car drive away.

Now, this man told Officer Nixon that the persons — two persons were in a white Pontiac and gave Nixon the license number on a slip of paper, Nixon broadcasts this information over his police radio then went in pursuit.

Soon afterward, another person told Nixon that two men had left a white Pontiac and driven away an Oldsmobile.

Soon after, Nixon came upon a white Pontiac that was parked and the license number tallied with that on the slip of paper.

And then soon afterward, he saw a Chevrolet automobile in which contained Mr. Weaver who as it developed was mortally wounded.

Well, Weaver was taken to the hospital, interviewed by FBI Agent Norton.

After — and Norton kept in contact with his office relative to the information that Weaver was giving which information lead the authorities to this apartment for the Hawaiian sounding name near Los Feliz and Riverside Drive and the pursuit was so hot that Gilbert or Mr. Flood as he was known at the apartment was apparently just leaving as the FBI Agent Kiel arrived.

Other officers arrives shortly including Agent Schlatter, where we have testimony in the records set out in our brief as to Schlatter’s frame of mind when he entered the apartment with a key.

It was his frame of mind that the authorities had information that there were three robbers, that one was wounded and accounted for, that would be Weaver, one had left a few minutes earlier, and a third was unaccounted for and might very well be in that apartment right then and there.

And of course, Mr. Schlatter was aware that a police officer had been shot, and he explained in his testimony the authorities were going into a place where there is a man who had just participated in a bank robbery and might be armed, and it was their intention to take that man into custody.

So we urged that the exigent circumstances of the robbers fleeing in a hot pursuit justified the entry into the apartment by means of the key unannounced.

Now, once they were inside, the authorities observed some objects in open view and — or the — with the exception of some photographs, these were taken later on in connection with the issuance of search warrants.

Now, the only objects taken initially —

Byron R. White:

You mean they were taken pursuant to a warrant with the exception of the photographs?

Norman H. Sokolow:

Yes.

A search warrant was issued later in that afternoon and they were taken pursuant to that.

Byron R. White:

Yes.

Norman H. Sokolow:

Now —

Earl Warren:

Did they make any search of the house at this particular time?

The first time they were there?

Norman H. Sokolow:

The — well, we have the testimony of Mr. Crowley (ph) who testified — testimony goes that he arrived at this apartment after he had been searched for people.

He was instructed to look for anything that could be used to identify or continue the pursuit of the person without conducting a detailed search.

Norman H. Sokolow:

And on top of the dresser in the bedroom, he saw this envelop containing the name of the photographic studio and it appeared to contain some objects and looked inside and saw that there were these photographs of an individual.

It was compared with a mug shot and the indication was that it was of Mr. Gilbert and the — these small photos, passport tagged photos were taken out to the scene of the robbery and killing of Officer Davis, the Savings and Loan, and the reproduction of one of these photographs was shown to various witnesses.

And we submit that the reproduction of that photograph exhibited to the witnesses there that same day could very well confirm or disprove the validity of Weaver’s lead and point the direction in which the authorities should concentrate their efforts to apprehend the man who fled after robbing the Savings and Loan and killing Officer Davis —

Byron R. White:

Mr. Sokolow, what were the items seized on the search warrant subsequent?

Norman H. Sokolow:

There was ammunition clip, some money, some —

Byron R. White:

A drawing?

Norman H. Sokolow:

A drawing of the — there was a notebook there containing a diagram of the Savings and Loan area.

There were some —

William J. Brennan, Jr.:

I take it the — if the initial search was — its not the — there was no probable cause in the part of the officers to know that stuff was there.

They didn’t know anything about until they got into the apartment they sought.

Norman H. Sokolow:

That’s true Your Honor.

William J. Brennan, Jr.:

And I take it, if the original entry was illegal, the seizure is not — the better because, ultimately you’ve got a search warrant, isn’t it?

Norman H. Sokolow:

Well, that’s true Your Honor.

Tom C. Clark:

What’s the meaning of the —

Norman H. Sokolow:

Well, we —

Tom C. Clark:

— Court of Appeals go (Inaudible) on a — on the hot pursuit of what was out there?

Norman H. Sokolow:

The Court of Appeals, the — they emphasized the hot pursuit, the exigent circumstances.

Tom C. Clark:

The same with the California (Voice Overlap) —

Norman H. Sokolow:

Yes, so they elaborated and went into, I would say a lengthier discussion of it.

Now, the Court of Appeals was unanimous in that phase of its opinion.

That was the phase of the opinion that was written by Judge Browning, then the rest of the prevailing opinion, I might say was written by Judge Duniway and concurred in the — by the other Circuit Judge —

William O. Douglas:

Barnes

Norman H. Sokolow:

— and then Judge —

William O. Douglas:

Barnes, wasn’t it?

Norman H. Sokolow:

Barnes, and then Judge Browning dissented as to the lineup.

That’s some other —

William O. Douglas:

Did he — he did not dissent as to the search?

Norman H. Sokolow:

No, the Court there was in accord as to the search.

Thank you Your Honors.

Hugo L. Black:

May I ask you one question?

Norman H. Sokolow:

Yes, Your Honor.

Hugo L. Black:

Is it your position that the state or the Government can take the person and put him in a lineup and compel him to answer questions which might be used against him or which might supply the fruits of — or using it against him and if that would be legal?

Norman H. Sokolow:

I don’t think that would be proper where if he was compelled to incriminate himself at the lineup Your Honor.

It’s a —

Hugo L. Black:

Now, what I’m talking about, compel either to write something for the state to use against him on either an investigation or in a trial are compelled to make statements for the state to use against him in connection with the — his case?

Norman H. Sokolow:

Oh, I don’t think he should be compelled to say anything or write anything like, “Yes, I am guilty of this crime”, but as far as speaking for voice identification —

Hugo L. Black:

Well, what’s the —

Norman H. Sokolow:

— or write a sample of —

Hugo L. Black:

What’s the difference in that if that’s to be used against him?

Norman H. Sokolow:

Well, we would advert —

Hugo L. Black:

What’s the difference of a direct confession and statement of facts which will help the state folds the link of its chains about him?

Norman H. Sokolow:

Well, Your Honor, we would say that basically this is — just in a nature of an identification process basically such as taking fingerprint impressions of the — that’s been considered as distinct from — or not as critical shall we say as requiring the individual to make statements that are going to incriminate him at the trial.

Hugo L. Black:

Well, do you agree that the officers did here — get this man, take him into a lineup, and then compel him to answer questions or compel him to write something which was helpful to the state in bringing about his conviction.

Norman H. Sokolow:

It was helpful to the state in identifying him, yes, in that sense Your Honor.

Hugo L. Black:

The fellow — that man has to be identified before he can be charged I suppose, so that’s to — helping to get evidence to prove that he is guilty of a crime, isn’t it?

Norman H. Sokolow:

Well, yes sir.

Yes Your Honor, in that sense, I would agree.

Byron R. White:

Where was the compulsion with respect to the handwriting for example?

Norman H. Sokolow:

Well, perhaps the compulsion isn’t the most appropriate word to use.

Perhaps he was —

Byron R. White:

And what’s (Voice Overlap) —

Norman H. Sokolow:

He was requested to give handwriting exemplars and the record reflects that he voluntarily gave them.

Byron R. White:

Oh, you mean it’s compulsion in the Miranda sense and that there was a question or a suggestion in the context of the — that the context of a custody that — is that as much compulsion as there was that (Voice Overlap) —

Norman H. Sokolow:

Well, it’s not — it’s not the — you might say that perhaps the — it might be considered compulsion in that sense.

But it’s not — we would certainly argue that it was not incriminating in the Miranda sense.

Byron R. White:

Well, how would —

Norman H. Sokolow:

As I —

Byron R. White:

I know that, but how about compulsion?

That’s what I’m —

Norman H. Sokolow:

I don’t know if I used the most apt expression in saying he was —

William J. Brennan, Jr.:

(Inaudible)

Norman H. Sokolow:

— compelled to speak, he had —

William J. Brennan, Jr.:

Do you concede — can’t you concede that sure, he is compelled.

Of course he’s compelled, even the Fifth Amendment says that, but the issue is what is compelled from him is something that violates the Fifth Amendment.

Is it testimonial —

Norman H. Sokolow:

He — well I —

William J. Brennan, Jr.:

As to the —

Norman H. Sokolow:

I think Your Honors, it’s of —

Byron R. White:

Yes, but I think there’s still a question of compulsion.

I agree with you that there is a — the other question too.

When did this trial take place?

Norman H. Sokolow:

The trial started a little before Escobedo came down Your Honor and would be our —

Byron R. White:

And if it’s only compulsion in the sense that these events took place in that — in custody —

Norman H. Sokolow:

Yes, Your Honor.

Byron R. White:

(Inaudible)

Norman H. Sokolow:

In other words there was no —

Byron R. White:

And that nobody forced (Voice Overlap) —

Norman H. Sokolow:

— there was no force or —

Byron R. White:

Nobody really forced anybody to do anything?

Norman H. Sokolow:

No, there was no —

Byron R. White:

There was no physical or mental or (Voice Overlap) —

Norman H. Sokolow:

No, there was no (Inaudible) situation.

Byron R. White:

That have — if the only reason is that you would say he’s compelled is in the Miranda sense, then the question arises whether a new rule like Miranda would apply to a — to this case?

Norman H. Sokolow:

Yes, Your Honor.

Byron R. White:

Now, that’s right.

Hugo L. Black:

But they took him from his cell, did they not?

Ordered him to go down, to go through this proceeding, did he go down there of his own accord and say I want to go down to be viewed?

Norman H. Sokolow:

Again, the record doesn’t clearly show that.

He certainly didn’t take the stand for voir dire testimony and the — say that I objected.

Now, at the — there’s a discussion between Court and counsel at recorder’s transcript pages 194 and 5 in which defense counsel says — said to the Court that my client has told me that he told the marshals that he didn’t want to go to the lineup for that was a Fifth Amendment violation and they did — I’m interpreting the record freely here, not verbatim.

Norman H. Sokolow:

But the Deputy District Attorney said, well, I would concede that that is what your client told you.

I won’t necessarily assume that that is actually the case and as I recall the record, it was just left at that.

As I say, there was no voir dire testimony by Gilbert himself that he had refused to be taken from his cell to go to the lineup.

Hugo L. Black:

I’m — I assume, there can be no doubt, can’t it, that if a person doesn’t know another — wants to help identify him by his voice, that requiring this man to talk in his presence would be testimonial, could there be any doubt about that?

Norman H. Sokolow:

Well, I would submit that if he is not saying anything incriminating —

Hugo L. Black:

Well, he’s —

Norman H. Sokolow:

— to be used against him —

Hugo L. Black:

He is —

Norman H. Sokolow:

— at the trial —

Hugo L. Black:

He’s incriminated himself by using his voice.

Norman H. Sokolow:

Well, true Your Honor.

But is voice really anymore than an essential physical characteristic, is anymore let us say then a facial expression generally or the way a person walks, moves about, when —

Hugo L. Black:

Well, a facial expression or a shake of the head or a nod in the head can be the same as a confession in a long words, can’t it?

Just —

Norman H. Sokolow:

Yes —

Hugo L. Black:

— the fact that a motion can be a confession or tend in that direction.

Your answer to that point as I gather is that he did not raise that on the voir dire.

You know he may (Voice Overlap) —

Norman H. Sokolow:

No, he did not —

Hugo L. Black:

— of one of your answers.

Norman H. Sokolow:

That is one of our answers and he did not come — claim on voir dire that there was any violation of his privilege against self-incrimination.

Thank you.

Earl Warren:

May I ask this one more question, does the California procedure permit the defendant in such circumstances to have a voir dire examination or a hearing on the question of the propriety of the lineup or must he do that in that trial on guilt or innocence?

Norman H. Sokolow:

Well, he — I would say that he could certainly do it during the trial.

In fact in this case, there was some voir dire on the part of Gilbert himself relative to the voluntariness of the giving of the handwriting exemplars so, I would say he could certainly do it then.

I — whether he — of course he can bring a — make a pretrial motion to suppress on search and seizure grounds, perhaps it could be extended to this situation too, but the point that I was stressing is that there — appears to have been no indication that such was desired in this case.

Earl Warren:

But could we say that as a matter of California practice, his counsel would know that he had a right to bring this up on a pretrial motion or on the other hand that he’s entitled to rely on the fact that all he could do would be to test the credibility of the witnesses on the trial.

Norman H. Sokolow:

Well, I don’t know if there’s any California law precisely on the subject, but I would certainly say that he could do it at the trial.

In fact, there was some just — in this colloquy that I was referring to between counsels.

There were some that was referenced by defense counsel that well, maybe we might be able to find the marshal and bring him in to testify, in other words, by voir dire, there were certainly no indication that they couldn’t have — I would say that if Gilbert or U.S. Marshal had been found that the — they could’ve had some voir dire there.

Earl Warren:

Well, I would think that that might be important if you rely on the fact that the — that they’re not entitled to any relief because counsel didn’t raised this on voir dire.

Now if it is the practice and the Court recognized it, that these things must be brought up in that manner or they are considered waived as one thing, but if there is no law in California and if normally, all they’re entitled to is to test the credibility of witnesses on the trial itself, you would have your — have a different situation and your defense on that regard wouldn’t be so strong, would it?

Norman H. Sokolow:

Well, perhaps not if the — would just be my impression that certainly the defense could bring such a motion and I don’t — couldn’t guarantee that the trial court would necessarily entertain it before the trial but I think the court certainly would consider it during the trial.

Earl Warren:

Yes.

Very well.

Norman H. Sokolow:

Thank you.

Earl Warren:

Mr. James, we’ve taken so much of your time — of your colleague that the — your time is almost up.

But I’ll you 10 more minutes in which to complete your argument.

William E. James:

Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

The time remaining to respond, I will discuss the first point that it was brought up by counsel for the petitioner and that was whether the admission of the statements of the co-defendant King, with limiting instructions which statements implicated the defendant Gilbert, violated his right and denied him a fair trial.

It is our position of course that under the limiting instructions that there was no denial of a fair trial and that the jury could follow these instructions and it was not that type of a case that they were unable to —

Tom C. Clark:

Did this happen at the federal trial?

William E. James:

Not that I know of, Your Honor.

Tom C. Clark:

The issue was (Voice Overlap) —

William E. James:

No, there was no issue raised in the federal case.

Tom C. Clark:

(Inaudible)

William E. James:

No.

King wasn’t involved in those robberies.

They were separate robberies.

King was only involved in the robbery involving Mutual Savings of Alhambra, and so it — wasn’t involved in that case.

It is our position that this case does not bring — present an occasion where this Court might want to reexamine the holding that it made in Delli Paoli.

We think that the circumstances here quite clearly point out that the jury in this case was able to follow the limiting instructions and we want to emphasize the fact that these limiting instructions were very precise.

They were given, not at only at the end of the case, but the admonitions were given to the jury at the very time the statements were being introduced.

I think the five factors, which this Court found very important, Delli Paoli apply here, and that this is even a stronger case than Delli Paoli.

There are certain considerations that we should note here.

In this case, the two defendants were represented by separate attorneys.

In fact that there was a separability as to them was made evident to them through out the case.

The defendants were represented as they say by separate counsel and there was no motion needed, pretrial or during the trial for a separate trial and we think this is significant as the case developed.

It is also to be noted that the co-defendant King took the stand and on examination on the stand acknowledged that his statements were motivated by desire, to place the (Inaudible) Gilbert, and to point the finger of guilt at him.

William E. James:

And the district attorney didn’t rely on this statement as to Gilbert, in fact he was discounting the statements of King and discounting particularly that part of it which would indicate that there was compulsion on the part of King because of Gilbert’s actions and the like.

But we think that these are all significant factors which would show that there was no unfairness in the introduction into this joint trial of the statements of a co-defendant with these very clear and explicit limiting instructions.

Now, Mr. Sokolow has briefly touched upon the circumstances of the crime.

The statement of King to the authorities was that he and the co-defendant, Weaver, the co-robber I should say, Weaver who was killed in this robbery had met at a parole meeting and thereafter, they had discussed the stealing of the car by King for certain purposes.

And it was agreed on the morning of January the 3rd 1964 that King would steal a car.

He stole one.

He met Weaver and Gilbert.

Drove with them up through Alhambra and awaited for them out there.

His statement to the officer was they returned — Weaver was bleeding profusely and King — Gilbert, according to King’s statement, put a gun up to his stomach and told me, he’d better do what he told him to do, and that he had just killed a cop and he’d probably kill more that day.

And King went with Gilbert to Gilbert’s apartment where apparently Gilbert made another attempt on his life according to King’s statements.

But thereafter, King admitted that Gilbert gave him $1300 and King drove Gilbert to a place where he met someone and King left.

Now this was a purport of King’s statements.

Now, King took the stand and testified insofar as it was immaterial to the charges, the same as his statement.

He omitted in his testimony the reference to the statements supposedly made by Gilbert that he just shot a cop and that he would kill more.

Now, we submit that under the circumstances of this case, when the statement was introduced with limiting instructions and I think it is significant at this time to note that at the penalty phase of a trial, these statements were not reintroduced and that there was no testimony by King at the penalty phase and the district attorney made no comment on the statements of the defendant King.

Earl Warren:

Was it the same jury though that tried both?

William E. James:

Yes, under one — Penal Code Section 190.1, in the ordinary case, unless there is some unusual circumstance, the jury that adheres the determination of guilt or innocence will also determine a penalty.

Earl Warren:

Yes.

William E. James:

And at the penalty trial, as to the guilt or innocence of the defendant has been determined, the jury can hear — the testimony concerning the circumstances of the crime, the background and history of the defendant and any evidence in aggravation or mitigation of a penalty.

We submit that at that time, the people’s testimony related to the background and history of this defendant Gilbert just starting out with a murder he committed when he was serving time in a state prison in 1947, a burglary that he committed in 1960, when he was — after he was paroled.

Hugo L. Black:

That is Gilbert?

William E. James:

This was Gilbert.

The escape in 1963 and then the series of robberies that he started in October of 1963 culminating in these acts of violence that occurred on January 3rd of 1964.

And this is what the jury heard in determining the penalty and we don’t understand this case as being a challenge to the constitutionality of Penal Code Section 190.1.

And we submit that there was no unfairness in the penalty trial where a guilt or innocence of the defendant Gilbert having already been determined and that — at the guilt trial, there was obviously no prejudice because there were limiting instructions and I think there were five factors in Delli Paoli which this Court dealt with very significant which we feel exist in this case.

My first note as I’d already indicated that the judge in this case wasn’t content with just merely giving an instruction at the end of the case, telling the jury that the statements of a co-defendant made in — not in the presence of the other defendant wasn’t binding on it.

At the very time the statement was made and this was at the close of the People’s case in chief, the counsel then representing Gilbert, when a question was asked of Officer Bennett concerning King’s statements, said I will object to the question Your Honor as to the defendant Gilbert on the ground that it is hearsay as to him.

And the district attorney then said, the objection is well taken.

And the Court said, obviously, it wouldn’t apply to the defendant Gilbert and whatever is said here, you are to draw absolutely no connection with the defendant Gilbert and disregarded insofar as the defendant Gilbert is concerned.

Now, thereafter, counsel representing Gilbert made a motion that the references to Gilbert be deleted in this statement and the Court heard this and determined that it wouldn’t be feasible to delete these references by name to Gilbert and of — obviously of course at that time, at the end of the People’s case, with all this eyewitness identification, the identity of the particular person namely Gilbert was clear and the Court felt that it would not be fair for the declarant to delete it.

William E. James:

However, it continued.

I think however at this time in view of the testimony of this witness, which she has not completed as yet that I should inform you that this testimony is not binding on the defendant Gilbert in anyway.

It is completely hearsay as far as he is concerned, you are not to draw any inferences whatever from the testimony you’ve heard from this witness as to anything in connection with the defendant Gilbert.

I will warn you again about this, but I thought it would only be fair that I give you this admonition.

And the Court continued to warn constantly during the introduction of the statements and it concluded with the instruction given both at the guilt phase and at the penalty phase, that they were not to consider the statements of the co-defendant made outside of the presence.

Now, we submit that this was a very significant factor.

We would urge that in Delli Paoli, this Court found that the fact that — in that case the conspiracy was a simple one was — and therefore the instruction would be easy for the jury to understand was an important factor.

We submit that the case, the issues here was simple and that the severability as to the two defendants was significant.

Gilbert was the one who entered the Savings and Loan, shot the police officer.

King’s position was merely the driver of the get-away car.

We also note that there were separate attorneys and we’ve also mentioned there was no request at anytime for a separate trial as to these two defendants.

Now, the introduction of the statement of King was postponed to the end of the Government’s case and this Court felt that that was significant in Delli Paoli because it made the instructions in the admonitions easier for the jury to understand and to apply.

And the statement of the co-defendant in Delli Paoli merely corroborated what was already in the Governor’s — Government’s case and we submit that at this stage, the jury obviously knew that Gilbert was the man who perpetrated the robbery for all the mass of eyewitness identification.

And they had the confrontation in Gilbert which they didn’t have in Delli Paoli as I recall.

And I think the fifth factor which is most important is that there was nothing in the record to show that the jury was unable to understand the admonition and the instruction of the judge.

And we think this is significant here, what is probably more significant is there is nothing in the record to show that they did not follow the admonition and the instruction of the judge.

And I think the reference to Jackson versus Denno which counsel made is inappropriate because their witness, the Court was dealing with an involuntary confession.

It didn’t have an involuntary confession here, you had a confession that was voluntarily made by the co-defendant.

And we submit that in — under such a circumstance, that the rationale of this Court in Jackson wasn’t applicable and what this Court said in the very recent case of Spencer versus Texas, I think it’s quite appropriate where an effort was made to say that a jury could not understand it clear and explicit instruction to — in Spencer, limit its application as to testimony concerning the defendant’s prior felony convictions.

And this Court said, it would be extravagant in the extreme to take Jackson as it — evidencing a general distrust on the part of this Court, of the ability of juries to approach their test responsibly and to sort out issues given to them under proper instructions by the judge in the criminal case or standing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit the evidence to its rightful purpose.

We submit that the instructions in this case and the admonitions in this case certainly could lead the jury to limit the application of the statements of the co-defendant King and that there was no prejudice.

How long was the jury (Inaudible)?

William E. James:

I don’t recall right off and of course, there were two defendants and there were seven counts of felony and I would have to make reference to the clerk’s transcript for that period of time.

I don’t think it was any unusual period of time.

Was there any deliberation that they asked him for supplementary instruction?

William E. James:

Yes, they came back and they asked for instructions.

They asked for the reading of the testimony, I believe, of one of the defense witnesses, they asked for instructions as it related to accomplices and to corroboration as I recall.

They did not ask for the repetition of any instructions relating to what they should do or how they should treat statements of a co-defendant.

And I think those instructions were clear and as this Court pointed in Delli Paoli explicitly.

Thank you Your Honor.

Earl Warren:

But Mr. James, what was the —

William E. James:

Yes.

Earl Warren:

What was the precise reason the Court gave for setting aside the conviction of King?

William E. James:

The reason for the — in the California Supreme Court —

Earl Warren:

Yes.

William E. James:

— was their application of the Dorado rule, that the record did not show that there had been an admonition request — required People versus Dorado with which this Court is familiar, that the defendant could have an attorney and that he had a right to remain silent.

Now, this was of course prior to June 13th of last year and we now know that it was not a federally compelled reversal.

Earl Warren:

Well if that confession could not be used against King, and the man who gave it and he was granted a new trial because of that.

Why does the state insist that it ought to — it could be used to whatever extent?

The jury might have used it as against the man who is his co-defendant.

William E. James:

By the man whose the — King’s co-defendant, the declarant’s co-defendant?

Earl Warren:

Yes.

Gilbert.

William E. James:

Gilbert, well the —

Earl Warren:

Why did they —

William E. James:

The state —

Earl Warren:

Why do you take the position as the man who gave it was entitled to have a new trial because it wasn’t properly obtained and yet they used it against the man concerning whom the judge had said it was hearsay?

William E. James:

Because the Court felt that the jury could follow the instructions in the admonition of the Court and not apply the statement made by the co-defendant with these limiting instructions to Gilbert.

And that —

Earl Warren:

But what if it (Voice Overlap) —

William E. James:

— it had no prejudice.

Earl Warren:

But if bad against one, why wouldn’t it have been bad against both?

William E. James:

Because it was not introduced this to Gilbert.

And the Court specifically admonished the jury that it was not to be introduced as to Gilbert and they were not to consider it or draw any inferences from that testimony as it related to Gilbert.

Earl Warren:

Well, you have told that — you take that it was not prejudicial against this man largely because King took a stand and testified frankly the same thing, didn’t you?

William E. James:

Yes, and the —

Earl Warren:

Yes.

William E. James:

Gilbert certainly had confrontation which as I recall in Delli Paoli.

Earl Warren:

Yes.

William E. James:

The Delli Paoli did not have confrontation of the co-defendant Whitley who didn’t take the stand.

William E. James:

So one of the —

Earl Warren:

Well —

William E. James:

— big objections to the introduction of hearsay was obviated confrontation and the right of cross-examination under oath.

Earl Warren:

Well, does that lead you to the harmless error rule?

William E. James:

I think, if we believe that juries can follow simple and explicit instructions, we would find that there was no error here because the jury was told expressly not to consider this testimony as it related to Gilbert.

Earl Warren:

But I wonder if —

William E. James:

And it had some —

Earl Warren:

I wonder if — whether you use the testimony that King gave in the courtroom against Gilbert, and as a result, you come out with harmless error, why wouldn’t that same testimony that King gave against himself in the courtroom accomplished the same result?

William E. James:

That wasn’t the basis for the reversal.

It was not because King took the stand and testified himself.

That had no relation —

Earl Warren:

No.

William E. James:

— with the reversal in King —

Earl Warren:

Why was that?

William E. James:

— because of the introduction —

Earl Warren:

Yes.

William E. James:

— of those statements in confession.

Earl Warren:

But, if he took the stand and frankly confessed his guilt, well, wouldn’t it be just as much harmless error in that situation as it would as against this defendant?

William E. James:

I would think however the California Supreme Court, when applied to harmless error rule where the — its interpretation of the Dorado was involved.

Earl Warren:

I see.

William E. James:

Thank you.

Earl Warren:

Very well.

Hugo L. Black:

Mr. James, I looked at the fact mentioned by Mr. Sokolow, I mean, I don’t (Inaudible) I have the wrong pages.

William E. James:

Oh, incidentally, I understand the Court only has one copy of the record.

We would be very happy to lodge with the Court our copies of the record and while we only have —

Hugo L. Black:

I thought maybe you had a better page.

William E. James:

Maybe so, I’ll ask Mr. Sokolow (Voice Overlap) about it.

Earl Warren:

Suppose we would agree about it, will you do that (Voice Overlap) —

William E. James:

We’ll do that by letter?

Earl Warren:

Yes.

Earl Warren:

Will you — would you just leave with the clerk please.

Byron R. White:

Now, I understand what Mr. Justice Clark and I’m concerned with this too.

We looked at this record at page numbers to which Mr. Sokolow referred as bearing on what occurred at the lineup and the pages do not bear on what occurs at the lineup —

William E. James:

We —

Byron R. White:

One of them was whether the respective juror believes in capital punishment, and the other similar sort of case.

Tom C. Clark:

So long for that —

William E. James:

That’s probably the one — Volume 1 of the voir dire of the jury.

Hugo L. Black:

One, the second volume?

William E. James:

No, it’s the preliminary volume to that, as I understand it.

It’s a very thin volume of the transcript.

Byron R. White:

Well, if you just refer us to the Volume and the page where there is any evidence referring on what occurred at the lineup.

That’s what I’d like.

William E. James:

Yes, we — we’ll lodge you our copy of that transcript with the Court and the pages.

Thank you Your Honors.

Earl Warren:

Very well.

Mr. McKissack.

Luke McKissack:

Thank you Your Honor, may it please the Court.

In the time remaining, I wish to direct my attention to two issues and two issues alone, one being Jackson versus Denno and the Delli Paoli controversy, and secondly the question at the lineup.

But first, let me say that on this question of Delli Paoli or Jackson versus Denno, we must bear in mind that we have the same jury adjudicating both the question of depth and the question of the merits, that is guilt or innocence, and all they did was take — I think a week in before they started on the other matter.

In other words, when the verdict came in, I think it was perhaps a day or so, and then they immediately began to deliberate it.

And I think its mere folly to assume that after weeks and weeks and weeks of trial that they’re suddenly going to forget all the evidence they’ve heard.

And merely because King did not testified again on the death penalty question that there — to have forgotten what they have previously heard.

Abe Fortas:

Were they important points made in the confession that King did not make on the stand?

Luke McKissack:

Yes and the California Supreme Court points this out quite well in its opinion.

The California Supreme Court points out that amongst other things, that it’s not going to — as to reverse this as to King, because it has in mind the fact that his testimony in Court is not nearly so damaging as his testimony out of Court.

For example, the statements about Gilbert, killing a cop and going to kill more, and the statements about Gilbert then threatening the King — kill King, but his efforts being ineffectual, none of this was in the testimony of King.

It was only in the hearsay recitations, given by King to the officer.

Byron R. White:

Which came first?

Luke McKissack:

The recitations came first.

Then King, after that took the stand in the California —

Byron R. White:

Yes, but not — opportunity to cross-examine him with respect to his previous confession or statements that he made previously in addition to what he testified to?

Luke McKissack:

As to defense counsel, I — as I remember, defense counsel attempted to do this.

I know the point was made in the state briefs that one of the things he could not do is to go into this prior confession and therefore he held that — he felt that that this was an error in itself.

I mean, there’s an opportunity to cross-examine him since that King took the stand, yes.

But —

Abe Fortas:

Well, this wasn’t in evidence against the petitioner here.

Luke McKissack:

It wasn’t in evidence against the petitioner and I can’t imagine in front of the jury how defense counsel would to — would dare to ask King on the stand questions that would just reiterate that which the jury has been instructed to forget.

I think it would be quite deleterious even of he had right in the world to do it.

I can’t imagine anyone doing it.

It wouldn’t make much sense, I don’t think.

But, the death penalty question in California, there’s no reasonable doubt standard even.

It’s thrown entirely in the lap of the jury.

There is no way to determine now what factors influenced them and what factors didn’t.

And in this case, I would suggest, when a man’s life is at stake, that one of the most crucial questions is what are the chances that’s he’s going to repeat this kind of conduct, how confirmed a criminal is he, are there any hope for rehabilitation.

And when this statement had came in, designating him as a cop killer by his own admission, and saying that he’s going to kill more, and the jury couldn’t forget that no matter how clearly they were told to disregard it.

I would point out it would just be absolutely impossible for the jury to follow the instruction under those circumstances.

Furthermore, as to that particular statement, if we go back to Delli Paoli, I don’t see what the admissibility is, in other words, in what way is it admissible against King because he’s — recites the fact that Gilbert said that he’d killed one policeman and he’s going to kill someone else.

I suggest, this is merely the backdoor technique that by use of the — what would ordinarily be admissions against King of bringing in something which doesn’t even qualify with that score and that it radiates over against Gilbert, and no instruction can cure it.

So I think insofar as the —

Tom C. Clark:

Do you agree with your adversary statement that there was no motion for a — either a mistrial or a separate trial at any stage in — when this — a bit — and particularly, when the confession was introduced with the (Voice Overlap) —

Luke McKissack:

I — on my recollection is that there was a motion for mistrial, but I could be mistaken.

There was no motion for severance.

And my commentary on this would be that the People versus Aranda rule in California did not come down until after Gilbert had been tried.

And the — that’s upon other opinions by this Court and other courts have indicated that counsel can’t be expected to anticipate the law — changes in the law.

And I would point out that — if this Court does adopt an Aranda like rule, that the Government should be charged with letting the opposition know, if they have these kind of statements and they’re going to introduce them, because after all, it’s the Government that brings the joint trial rather than two separate trials because the Government knows this facts and knows whether they need these statements and whether they are going to be introduced.

Defense counsel would have to resort merely to surmise.

So I feel Your Honor that that — there’s certainly was no harmless error even if that standard be applied.

Tom C. Clark:

Is that — there’s nothing in the record to indicate that Gilbert’s counsel moved that there had been a confession by King?

Luke McKissack:

Absolutely not.

On the question of the lineup —

William J. Brennan, Jr.:

Do I understand that the Aranda rule is, in circumstances like this, an advance of trial, the prosecution is under duty to advise the defense of the existence of the statement of —

Luke McKissack:

No, no.

I insinuated that, I didn’t mean to.

I was advocating that that should be the position of the Court —

William J. Brennan, Jr.:

What I — no, no, no, I’d say what is the Aranda rule?

Luke McKissack:

The Aranda rule says, that where you have this kind of a situation — it doesn’t really talk about whose duty it is to tell who and what.

Perhaps, it’s implicit that the defendant wouldn’t then make a motion for severance.

But of course, it’s saying to counsel in future cases, you can make a motion for severance and here’s what to do.

Counsel should make a motion for severance if you have these kinds of statements.

And then the prosecution would have the opportunity of offering an alternative —

(Inaudible)

Luke McKissack:

— of effective deletions.

This could be done by a joint —

William J. Brennan, Jr.:

I know but, how was the defense learned that there were such a statement as King?

Luke McKissack:

That’s not (Inaudible).

As a matter of policy in California, each defendant has a separate arrest report and the — in some places, the co-defense counsel might know what the other person has said, in other cases, they might not.

On the issue of the lineup, I just wished to point — bring a point to the Court’s attention.

One other paragraph from the federal court opinion, its right after the one that Mr. Justice Brennan quoted where witnesses from all four robberies were assembled in the audience, after each prisoner went to the general routine, the FBI agent in-charged asked if the witnesses wished to see any of the prisoners again.

The witnesses who were — witnesses were instructed to call out the numbers of any prisoner they recognized and they told that if they had doubts, this was the time to see the prisoners the second time and asked them to repeat phrases used in their respective robberies.

The witnesses called out the numbers of two or three of the prisoners including appellant, that’s Gilbert, many of them calling out appellant’s number.

The prisoner does select and were asked by various witnesses to give — to repeat given phrases, walk in a particular way, try on particular articles of clothing.

The appellant was asked to speak loudly, to walk rapidly and slowly while repeating certain phrases, and to speak more loudly which one witness testified appellant refused to do and to put on a hat which of two of the witnesses testified, at first they refused to do.

The witnesses talked amongst themselves as the lineup progressed.

Now I think this bears on —

Hugo L. Black:

What the —

Luke McKissack:

— why counsel —

Hugo L. Black:

What are you reading from?

Luke McKissack:

From the dissenting opinion of Justice Browning recounting the facts as they occurred at this lineup as if — upon the appellate — from the —

William J. Brennan, Jr.:

May I ask, as I understand it — did I understand Mr. James to say that this federal trial —

Luke McKissack:

Yes.

William J. Brennan, Jr.:

— was for a different robbery from the verdict trial, that — from the robbery involving a murder trial?

Luke McKissack:

Yes.

There were a lot of banks robbed.

So the federal courts sees — don’t have the bank robbery, but we had basically the same evidence on the same lineup and the same witnesses involved.

William J. Brennan, Jr.:

Well, but were the inquiries at the lineup all directed to — pinning all of these robberies on Gilbert and —

Luke McKissack:

Yes.

William J. Brennan, Jr.:

Not on somebody else?

Luke McKissack:

No.

And as a matter of fact, that’s an interesting point because you have a state trial for one bank robbery for which the other is really admissible.

The same witnesses that are going to testify on that alone are in the same chamber and not segregated from other witnesses when they hear questions about numerous bank robberies.

And they just call out numbers and then the avalanche continues.

And I would point out that this gives repeated emphasis to the fact that counsel should be present in these kinds of predicaments mainly because its unforeseeable what can happen.

I think the destruction of the case for the prosecution is this simple and that is if self-incriminatory situations can conceivably arise and here they have arise.

Then we should appoint counsels so that we can protect against these things.

Otherwise we have a retroactive determination which requires exclusion of evidence which should not happen.

Thank you sir.