Hester v. Illinois

PETITIONER:Hester
RESPONDENT:Illinois
LOCATION:United States District Court for the Central District of California

DOCKET NO.: 82
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 397 US 660 (1970)
ARGUED: Nov 18, 1969
DECIDED: Apr 27, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – November 18, 1969 in Hester v. Illinois

Warren E. Burger:

Number 82, Hester against Illinois.

Mr. Kaplan.

Marshall Kaplan:

Yes Your Honor.

Warren E. Burger:

You may proceed whenever you’re ready.

Marshall Kaplan:

Mr. Chief Justice, may it please the Court.

This case is before this Court to review the murder conviction of a 14-year old fifth grade elementary school negro boy on the south side of Chicago.

The confession that he gave primarily, being responsible for his subsequent conviction in the Criminal Court of Cook County Illinois and his subsequent incarceration for 55 years in the Illinois state penitentiary.

On April 20, 1961 at 4 o’clock in the afternoon, the body of a school teacher in the Lewis Champlain Elementary School on the south side of Chicago Illinois was found, she was dead.

She had been stabbed numerous times and it appeared that she had been sexually molested.

16 hours after her body was found, Lee Arthur Hester was removed from his school room at the Lewis Champlain school which would put it at approximately 8 o’clock am.

From 8 o’clock am on April 21, a Friday 1961 to the minute I stand before you, Lee Arthur Hester has been incarcerated.

Most of the time at the Illinois State penitentiary, part of the time in the Cook County Jail and some other time in the Audi home, the Juvenile Detention Home in Chicago Illinois.

The school where Lee Arthur Hester attended had approximately 2,600 students attending in double shifts.

Hester going from 8 to 12 in the morning and another group going from 12 to approximately 3 or 4 o’clock in the afternoon.

On the same grounds of this school was a high school called the Englewood High School just separated a little distance away through a courtyard or field and that had 2,000 students approximately and then there was a continuation school.

A school in Chicago which houses and teaches older students who drop out of school who because the state law are required to attend school until a certain age, 16 or 17 years of age.

Two police officers came to Hester’s room shortly before 8 o’clock a.m. in a company of a gym teacher, who had stated to the officers that she had seen Hester in the hall, sometime the day before, and I believe she said she saw him running.

The officers rummaged through the records of the teacher that — in whose room, Hester was a student.

When the teacher came to the room, they told everyone to see Lee Arthur.

She told this to Lee Arthur, she sent him out of the room, they kept him a couple of minutes, they sent him back and the teachers says — said and she testified to this.

What — or he testified to this.

“What do they want from Lee Arthur?”

He says “they think I killed Mrs. Keen”.

And the whole room started to laugh.

From that moment until a confession was signed, sometime between 8:15 and 8:30 in the evening of Friday, that day was Friday, April 21, 1961.

Lee Arthur Hester was in to a continuous unbroken custody of at least 7 Police Officers of the Chicago Police Department who kept Hester from about 8 o’clock in the morning until 8:45 a.m. questioning him.

Those two officers, Sheldon R. Teller and another officer by the name of Anton Franco who then turned Hester over to another officer by the name of Feliz in the principal’s office who kept him for approximately 15 minutes, who then turned Hester over to two other officers, Robert Perkins and an officer by the name of Harold Thomas who then took Hester to a Police Station in the neighborhood.

They switched automobiles and they took him to the Audi home, the Juvenile detention home.

Hester was searched at the Juvenile detention home.

All of his clothing was removed and from his pockets, all of his belongings removed including and I beg Your Honor to consider what was removed from the pockets, marbles.

Marshall Kaplan:

Now at this time, Hester was 14 years 5 days of age.

His IQ was either 75 or 82 and the reason that it is either that there are a couple of test included in the record submitted an evidence, one shows he was 75 and the other that his IQ was 82.

He was one of 8 children of a ghetto family.

His reading rate was approximately that of a second grader in grammar school that slightly lower going to the school records.

His mathematics ability was graded at approximately third grade.

His school records indicate from psychological testing that his maximum, his maximum emotional growth was 9 years of age or as the record show, 4.7 excuse me, 4 A grammar school.

4 A grammar school usually a child of normal progression school reaches the Fourth Grade when he is 9 years old.

In my petition for a writ of certiorari, I have an error I believe at page 6 I’m not sure.

I say that the — I made a mistake and said that the maximum emotional growth was 11 years old.

Mr. Justice Underwood who wrote the majority opinion for the Supreme Court said that the defendant had a maximum emotional growth or a mentality.

We find he had a mentality of an 11 year old although he was qualified to give a confession.

Anyway, not to interrupt the chronology of what happened, at approximately 4 o’clock in the afternoon, after having been detained from 10:30 in the morning until 4:00 in the afternoon, Lee Arthur Hester was interrogated by four obliged police officers.

Now, Hester was 5 feet one and a half inches tall I believe, a 111 and a half inch — a 111 and a half pounds.

Hester could barely read.

Hester could barely compute.

Hester could barely understand.

Hester was not insane and we admit it.

Not once in the entire day that he was kept either in custody or interrogated, was he permitted to see his mother whom he repeatedly requested to see “I want to see my mama.”

Not once was he permitted to see a probation officer.

Not once was he permitted to see his father or lawyer or anyone standing in loco parentis to him, not once.

Every single witness who testified for the prosecution testified that we did not warn him that he need not make a statement.

That we did not warn him that anything he said could be used against him.

That we did not warn him he was entitled to counsel and we did not warn him if he couldn’t afford counsel, we give him counsel.

Now I know that those are the four requirements of Miranda versus Arizona.

Now, our basic point today Your Honors is that in three ways, this confession must fall.

The first way that basically, specifically and unequivocally, you cannot take a confession from a person almost illiterate.

Now when he is 14 years old, you must couple that with what we know we cannot forget as lawyers what we know as men.

I believe Justice Frankfurter once said that and I think it was in Kolom versus Connecticut.

We can’t forget that a 14 year old in the ghetto who can barely read has no experience with life.

We cannot forget that a 14 year old in to custody of approximately 7 police officers is no match for these police officers.

Marshall Kaplan:

When you couple that with the fact that these four police officers walked in to a room at 4 o’clock in the afternoon and testified, that’s in the record when my associate who was sitting at that table asked him.

“What did you say to Lee Arthur when you walked in?”

“We introduced ourselves.”

“And how long did you stay?”

“Five minutes.”

And after five minutes, after they told him to get it off his chest, the words came tumbling out.

He confessed.

This interrogation then resumed with two officers leaving and the two negro officers staying.

The defendant testifying that they told me that they — that the white officers were going to throw my head through a wall unless, I told them what they wanted to hear.

They showed him enumerable pictures he testified to.

And from these pictures he told them what happened and then they called in the other two officers who had left.

They went through this whole business again.

Finally, they took him down and got him a pair of shoes.

And at approximately 6:30, an Assistant States Attorney was called who testified that he went through the whole business with Lee Arthur.

Went through what happened then finally at 6:45 o’clock in the evening, a written confession was commenced in the presence of an Assistant States Attorney, a Sergeant Keating for the Chicago Police Department and a Donald Flanery, a Court reporter.

Subsequently this was transcribed in an approximately 8:15 to 8:30 in the evening, Lee Arthur has to sign the confession.

Now, it is the contention of the defendant that in and under conventional principles of due process forgetting the retroactivity or lack thereof of Miranda and Escobedo that you cannot take the confession of a 14-year old of the type that I have described after incommunicado holding of him, failing to give him even the barest rudiments of representation or having anybody stand in loco parentis to him.

Number two, forgetting about conventional principles of due process, it is a violation of due process not to take a statement, excuse me, it is a violation of due process to take a statement without making some equalization in the procedure used in making a statement between a juvenile and an adult and may I point it out.

In a golf game we give a handicap.

In a bowling tournament, we give pins to a less capable bowler as opposed to a bowler who is more capable.

In a horse race we add weights to the faster horse.

I say that even if you were to anoint Lee Arthur Hester with the finest of oils and place him in a room with a swimming pool and velvet walls, you cannot take a confession from Lee Arthur Hester without providing him some rudiments of due process.

Fairness that in order to assure that the confession is voluntary, when you take it in a setting of an incommunicado holding, when you take it in the presence of only police officers without any protections whatsoever, a bell must ring, a light must go on.

And the greatest conceivable care must be given so that the confession is voluntary.

Third, in our brief ask the Court to abolish the taking of Juvenile confessions because there is no possible way at least Lee Arthur Hester can be adequately advised of his rights.

Advising Lee Arthur Hester of his rights is like advising a deaf man of his rights.

He may —

As the rule you are asking this for there to say that that was not so constitutional prohibition against taking the confession of a juvenile no matter what the circumstance is?

Marshall Kaplan:

In my brief Your Honor.

I will be very candid with you.

Marshall Kaplan:

I asked you to make a rule like that.

I think it’s the only workable rule with the Juvenile.

However, this case can be decided under the narrowest, the narrowest principle.

But to be candid, yes I did ask to make that rule.

And that this case can be examined, we must look at what kind of an individual is Lee Arthur Hester.

Thurgood Marshall:

Well what about the 18 year old who was a genius and was seen in, was in college?

Same rule?

Marshall Kaplan:

We have a problem and I’ll be frank to admit Your Honor.

I don’t know how to resolve that.

Thurgood Marshall:

Well you do have a problems with all general rules like that don’t you?

Marshall Kaplan:

Your Honor, we have a problem.

Everyday of our —

Thurgood Marshall:

Why don’t you stick to the case you have which is a 14 year old with nine years of mentality?

Why don’t you stick with that?

Marshall Kaplan:

Yes Your Honor.

Now going back to the basic facts in this case and conventional due process rules, this case can be resolved by placing this case within the purport and the ambit of all of those cases that this Court had decided from Graham versus Mississippi up to and including Miranda versus Arizona.

And although Johnson versus New Jersey may not require — does not require Miranda to be applied to pre Miranda cases.

Nevertheless, effect that a man was held incommunicado, that he was never advised of his rights, that he has a mentality of an 8 year old, that we have a 14 year old person chronologically 14 with the mind of an 8 year old.

We really in effect have nothing more than an 8 year old being interrogated by police officers with whom he could not possibly cope with.

Not only that, Lee Arthur Hester failed in school 6 times, he flunked in the vernacular of the street.

He even flunked in kindergarten.

Records concerning this were introduced in evidence not objected to by the states.

A psychologist testified completely as to his school records.

Mr. Justice Shafer of the Supreme Court of Illinois who dissented in this case really succinctly laid out what the state failed to do in this case.

Mr. Justice Shafer said that he would reverse this conviction.

He would suppress this confession because the state failed to sustain its burden of proof to show that the confession was voluntary.

Two police officers on the motion to suppress evidence, one who was present at the oral — that the first oral statement and shortly after 4:00 and a Court reporter was all the state called on the motion to suppress.

That’s all they called, they rested.

Now, this is the first case that I ever tried.

Young counsel who should have been given more courtesy and more leniency and the judge had have extended himself much more in a 14-year old — to a 14-year old defendant then he ever would be required to do if he had an adult defendant.

Marshall Kaplan:

So, we ask the Court prior to the hearing commencing to exclude witnesses.

We noticed all the police officers sitting in the Court.

Judge says “I’m only going to exclude witnesses on direct.

I do not exclude rebuttal witnesses.”

So, all of the witnesses except the two I mentioned were called as rebuttal witnesses and I think we made the motion to exclude at least three times.

So, the rebuttal witnesses sat in the courtroom, heard what all of the other rebuttal witnesses had to say and purely by the Court exercising its discretion and not excluding rebuttal witnesses permitted just two witnesses.

Only one neither of whom were both present at both confession.

One officer was present at the oral and the Court reporter transcribed the confession and that was enough to force us to go forward.

Maybe we shouldn’t have gone forward.

Maybe we should have rested at that time.

Now the burden of proving a confession voluntary, I don’t believe that this Court has really ever stated who has the burden of proving the confession voluntary.

Mr. Justice White in Jackson v. Denno set forth rather succinctly the procedure that must be followed in a motion to suppress a confession but who has the burden.

Or under Illinois law and to the line cases that Mr. Justice Shafer cites in his dissent, there is no doubt that an Illinois law, the stake has the burden of proving the confession voluntary.

All the state put on was police officers and a Court reporter.

And we have the age old problem that existed in this Court up to Miranda versus Arizona of the state puts on to police and the defendant puts on the defense, the jury heard the facts, the jury made its conclusion and the jury rules.

It’s impossible when all you have is a 14 year old with an 8 year old mind.

It’s impossible to do other than put him on and say Lee Arthur tell us what happened that day.

You just can’t do anything else.

The police get on and say we treated him fine.

But they admit that they kept him all day.

They even admit that it was in the Audi home which is a stones throw a walk, a long cuff from the hallway of the Audi home over to at least 3 sitting Juvenile Court Judges.

Not once, not once in this entire matter was Lee Arthur taken from the moment of his arrest until the moment of his arraignment after indictment by a grand jury two weeks later, not once did he see an examining magistrate, not once.

Not once that he see a lawyer until Monday morning when my associate and I were permitted to see him in a barred room which was guarded outside.

Not once was he permitted to see his mother.

So that when you examine the mentality of the defendant, his ability to withstand pressure, the fact that he was held incommunicado, the fact that he was never taken before magistrates, the fact that he could not possibly cope with the scepters, the fact that when you take a confession from a boy like this, it’s like the proverbial taking candy from a baby.

Now in this age of enlightenment, in this progress we are making under criminal law can anyone logically say that it would have been improper or would have hindered the administration of justice to take this boy, a 14 before a magistrate.

This boy who is probably by my search is, I can’t find anybody younger, probably the youngest defendant in the history of the United States Supreme Court.

I don’t think there has ever been a case before this Court where the mentality was any lower and those cases were it was just as bad.

How old is Gallegos?

Marshall Kaplan:

Gallegos was 14.

Marshall Kaplan:

Hailey was 15.

Now on my brief, I placed a great stress on Hailey and I placed a great stress on Gallegos.

Gallegos confessed within two minutes after his apprehension and was kept in a juvenile detention home for some 4 to 5 days and then made a written confession, in fact I think more than written confession.

Hailey was 15, a senior in high school, 15 years 8 months, a senior in high school who was questioned for five hours.

In both those cases, there is no question of brutality.

Hailey, a senior high school at age 15 was at least I think two years ahead of what the usual high school student would be at that time.

And this Court said in Hailey and this Court said in Gallegos that we must be extremely careful when we take confessions from juveniles.

Court pointed out that they are not a match and never can be for a large and experienced police officer.

You have a juvenile Courts system in Illinois started?

Marshall Kaplan:

Yes, we have a juvenile Court system.

Are there any in this stage of this proceeding where there is a possible this, this young man was to undergo before the juvenile Court?

Marshall Kaplan:

Oh yes!

But they got around that real, got around that real good in this case.

In the record I filed Mr. Justice Harlan in this case, I included the Juvenile Court proceedings in this case.

Saturday morning, the day after Hester’s confession, Saturday morning, a petition for delinquency was filed in the Cook County Juvenile Court which is now branch of Circuit Court of Cook County.

That petition still sits to this day undisposed.

Filed by whom?

Marshall Kaplan:

Filed by — it’s under the auspices and the States Attorney of Cook County.

And our statute at that time stated that the Juvenile Courts could relinquish its jurisdiction to the criminal Court of Cook County, which it never did because we have two old Illinois Supreme Court cases which say that a Juvenile Court or court of inferior jurisdiction and a criminal Courts a Court of superior jurisdiction.

And therefore that section of the statute permitting the Juvenile Court to waive its jurisdiction, has no application to this case.

Hester was interrogated in the Juvenile Court.

He was interrogated in an office of the States Attorney in a cubicle existing in the Juvenile Court.

Everything in this case started out as a juvenile case.

A confession was taken under Juvenile Court even though we have a statute in Illinois which I cite in my brief which precludes the admission at any time of a confession taken under the auspices of the Family Court Act.

I desire to save some time for rebuttal if you don’t have any questions, I would like to do that.

Warren E. Burger:

Very well Mr. Kaplan.

Marshall Kaplan:

Thank you.

Warren E. Burger:

Mr. Flaum.

Joel M. Flaum:

Mr. Chief Justice, may it please the Court.

You have before you a case where the proof of guilt we suggest is overwhelming.

Joel M. Flaum:

That statement we make in consideration even if the confession were to be said to one side.

Just Shafer said the opposite?

Joel M. Flaum:

Yes he did Your Honor.

Yes he did.

And we feel that the majority in the opinion reflected by Mr. Chief Justice Underwood, now Chief Justice Underwood where they felt a scientific evidence was so overwhelming.

That it is on that we base it Mr. Justice Harlan.

The difficulty at first in rebuttal is that counsel for the respondent find it very difficult to recognize this case from the facts as presented by the petitioner.

But before I make any reference to that, let me just say that the petitioner raised the host of points in this petition for certiorari in brief.

We feel one of his only constitutional dimension.

That is the one he has chose and argue this morning.

We put aside those others.

We will address ourselves to the confession.

In 1961, the petitioner Hester was 14 years old.

He was in the fifth grade.

He was not given Miranda warnings before he confessed after five minutes of interrogation.

Those confessions were voluntarily given we suggest and this conviction should be sustained.

If we —

Byron R. White:

The year was 61?

Joel M. Flaum:

61 Your Honor.

Byron R. White:

Pre Miranda?

Joel M. Flaum:

Pre Miranda, April of 61 is the date of the commission of the crime, the conviction is October of ’61.

Thurgood Marshall:

I wonder when did you give this for his see his mother?

Joel M. Flaum:

He saw his mother Your Honor at 10 am the following morning.

The statement made by counsel —

Thurgood Marshall:

When did he first have a lawyer?

Joel M. Flaum:

He had it on Monday morning Your Honor, 48 hours right off.

Thurgood Marshall:

48 hours, is that it?

Joel M. Flaum:

And he was not informed of his right to have counsel.

Thurgood Marshall:

I’m wondering when did you give this boy his mother?

Joel M. Flaum:

At 10 am the next morning Your Honor.

Thurgood Marshall:

That was after the confession.

Joel M. Flaum:

After the confession.

Confession was signed at 8 —

Thurgood Marshall:

Prior to the time he was picked up, is the prior and up to the time that he made the confession that was written down, he saw nobody that was friend to him?

Joel M. Flaum:

Correct Your Honor.

Thurgood Marshall:

And obviously there is no reason for depriving him of that was it?

Joel M. Flaum:

Well Your Honor, we suggest that this is the situation, 1961, what did the prosecuting authorities of Cook County have by the way of case law to rely upon.

There was no —

Thurgood Marshall:

They have mothers.

Joel M. Flaum:

Excuse me Your Honor?

Thurgood Marshall:

They had mothers.

Joel M. Flaum:

I understand Your Honor.

Thurgood Marshall:

And they knew this was a Juvenile.

Joel M. Flaum:

Yes it was.

Thurgood Marshall:

They knew he was a 14-year old stuttering I guess, wasn’t he?

Joel M. Flaum:

Your Honor, that — there is where we take strong exception if I may.

There is no abstract in this case, there is a record.

Thurgood Marshall:

Well what grade was he?

Joel M. Flaum:

And the record — he was in the Fifth Grade Your Honor.

Thurgood Marshall:

At the age of 14.

Joel M. Flaum:

He was a poor reader.

Thurgood Marshall:

Something was wrong.

Joel M. Flaum:

Well Your Honor, the test that Hester underwent as does any ghetto youth in 1961 and hopefully it’s different today, are structured for white urban culture.

Hester can be best judged by his dialog with the police in the trial transcript here.

I suggest he was not a retiring youth.

He is an aggressive youth, that’s what the records indicate the psychological —

Thurgood Marshall:

But he was 14.

Joel M. Flaum:

He was 14 Your Honor and he only reached the fifth grade.

Thurgood Marshall:

Deprived him of his family?

Joel M. Flaum:

There’s no request for —

Thurgood Marshall:

Until after you got the confession.

Joel M. Flaum:

Well Your Honor, if I may, the circumstances to that confession on how quickly that was obtained.

There was —

Thurgood Marshall:

Were the 7 policeman around?

Joel M. Flaum:

There were none.

Thurgood Marshall:

Nine?

Joel M. Flaum:

No.

Thurgood Marshall:

How many were they?

Joel M. Flaum:

Hester was confronted at 8 am in his school by two policeman.

After being questioned and interviewed for 45 minutes in the school balcony by two policeman, he was taken to the principals office or a sub office.

In that sub office, no interrogation went on.

There was no admission of guilt during the 45 minute interview and Hester says, as fast as they ask me question, I gave it back to them.

That’s the incompetent shy retiring 14-year old shown by counsel.

I suggest —

Thurgood Marshall:

That might be a stupid one too.

Joel M. Flaum:

Your Honor, I don’t think the record will reflect.

Thurgood Marshall:

Well, when did you bring the four police in?

Joel M. Flaum:

I will come to that.

The next period Your Honor, he stays in that room for 15 minutes with one police officer.

The two bring him to a sergeant Feliz, he remains there and nothing is done.

Two policeman transport him to the Audi Juvenile Detention Home.

At that time he is left there for 6 hours from 10 to 4 in custody but not in direct police custody.

He has never — under the supervision, he was placed in an infirmary room —

Thurgood Marshall:

When was his mother notified he was arrested?

Joel M. Flaum:

Your Honor, the record there has a problem.

The mother testifies that two officers came at 1:30 that afternoon.

In other words, within a few hours after his apprehension.

Thurgood Marshall:

4 Hours?

Joel M. Flaum:

Yes Your Honor, it would be about 4 hours.

The police officers testify actually that they came a half hour to 45 minutes later.

Joel M. Flaum:

2:30 to 3.

Because — and Justice Shafer points this out in his dissent.

Because of objections by both sides, the actual testimony of what occurred with these officers, what they said to the mother and what the mother said to them is never in this record and they must be candid about that.

The majority of the Illinois Supreme Court concludes that if the officers went to his house at 1:30 within 4 hours after his arrest and before any confession was obtained, they went to inform her.

But the record is not clear on the exact language used and so I don’t want to make the representation.

We can — I rely only on our State Supreme Court and that’s the view we take, that they went to inform in nearly afternoon.

Now, he is left alone from 10 till 4.

I say left alone and of course he is in custody of the Audi Home but he is not interrogated in any way.

He is given a medical examination and lunch.

At 4 o’clock, 4 officers come.

Thurgood Marshall:

Why four?

Joel M. Flaum:

Why four o’clock?

Thurgood Marshall:

No, there were not four officers for a five foot, how tall was he?

What do you need four for?

Was there anything in the record to show why you needed four?

Joel M. Flaum:

Why there had be four officers at the scene?

There is nothing to indicate why there were four.

Two were from homicide, two — I don’t recall the exact area they identified, two homicide officers in the city of Chicago working there.

Thurgood Marshall:

Nobody in the room with the four and this boy?

Joel M. Flaum:

Well, at 4 o’clock, they come — the four officers confront this boy Your Honor.

Thurgood Marshall:

All by himself?

Joel M. Flaum:

All by himself for five minutes.

And then the two of the four officers leave.

Two of the officers revealed to Hester that certain lab tests were conducted at an intervening 10 am to 4 pm period, and they showed results connecting him with the crime.

Two officers leave and as counsel says, one of the officers says get it off of your chest, within a five minute period, that’s all I described occurs in a five minute period.

Hester starts to make a statement.

It is admittedly exculpatory.

He calls it an accident.

And if I can just make one passing mention to the kind of individual, we suggest Hester is, and how he should be viewed.

Hester later continued to talk to the officers for approximately 45 minutes.

Joel M. Flaum:

At 5 o’clock, given a medical examination and left alone.

So we have — within 5 minutes of the initial contact with the officers at confession, 45 minutes approximately of explanation and then he’s left alone, and an Assistant States Attorney comes which is quite often a practice in homicide cases in Cook County where an assistant takes the formal confession.

When that confession was taken, corrections were made by Hester.

This is the kind of corrections for example, he made.

Hester would suggest where he had said “I kicked certain books going into the book room”, which was the scene of the murder.

Hester changed them to “I tripped over them.”

I think the reflection shown by the corrections in the confession which are contained of course in the record, belay the fact that we have the kind of individual suggested by the petitioner in his statement of facts.

The early 45 minute interview in the school produced absolutely no admissions by Hester.

And he made the statement “as fast as they could ask me, I could answer the questions”.

This case we suggest is not Hailey.

In Hailey Your Honor, is what the state of Illinois had to rely upon in 1961.

In Hailey, you have questioning of a 15 year old in a dead of night.

The questioning takes 5 hours.

There is a detention in a jail not a juvenile home.

There is relay questionings were there — which was totally absent Your Honors in Hester.

There is a suggestion of brutality because the mother testified as to seeing certain evidences of blood and bruises, and I believe the majority opinion suggests that there is a discounting of a police testimony in that case.

In Hester, you have custody in the middle of the same school day.

His interrogation and the words admitting guilt came out within five minutes.

There was a 45 minute period — interview period proceeding the arrest.

He was detained in a juvenile home and left alone and he was interviewed by two officers, no relay.

Was there any effort made to take this case to the federal habeas?

Joel M. Flaum:

No Your Honor.

This case is —

I know this is on direct appeal.

Joel M. Flaum:

Yes it is Your Honor.

You realize that?

You have to review, right?

Joel M. Flaum:

No, I don’t believe so.

I don’t want to speak —

As I listen to the arguments of both sides, the kind of an argument where you are asking us to, or of being asked to reassess the facts.

I have not heard yet anybody, the assertion of any principle of law —

Joel M. Flaum:

Well, —

— that we have laid down so far that was misapplied in the judgment of the state Court made on this confession.

Joel M. Flaum:

Well Your Honor we suggest there has been no misapplication of the law.

We feel that the law that applies here is the totality of circumstances test.

In 1962, this Court in Gallegos said there is no guide for the cases as such as these unless it’s totality.

It is that test which we ask this Court to apply and it firmed the Illinois Supreme Court in its application of totality.

We feel that there is nothing inherently coercive about the period of custody of the five minutes from 4:00 to 4:05 when the words came out.

In Hailey and Gallegos, there is a suggestion of an anonymous casted a detention, we suggest that is not here, it cannot be fairly said about this case.

We contend that when viewing this in the totality of circumstances test, the crucial period of custody was only five minutes.

The comparisons with Hailey and Gallegos therefore must pale, the questioning was briefed, it indeed unless you elevate to a constitutional status to claim that any questioning of any type is impermissible, could a petitioner succeed in casting doubt about the validity of the the state was made to him during the interview.

As to the age and condition of the suspect, we fill that the petitioner while admittedly having lagging mental achievement when reading the record reflects not an individual whose will was over borne within the five minute period of his questioning.

We suggest there has been — that the calling for a per se rule in this case which maybe supported by some of the dictum in Gallegos would do great harm to the administration of criminal justice.

We feel that if Hester’s case came up today, which it could not come up in the same posture because of Miranda.

That the Miranda warnings together with a strict application of the totality test cause no new rule of perse to be established.

We feel for this case, totality is the only test that totality when viewed in the facts in light of this case, finds this case not wanting or full of the inherent coercion found in the Hailey and Gallegos test.

Warren E. Burger:

Did Justice Shafer dissent on any ground except the admissibility of the confession?

Joel M. Flaum:

He denies Your Honor, at no point that he challenged anything other than the admissibility of the confession.

I suggest that the lower courts which have had occasion to apply the totality rule to juveniles have not found it an impossible test.

Admittedly, it’s a heavier burden.

Admittedly, the circumstances surrounding it must be found to be — if there’s possible most grossly scrutinized than in an adult case.

And we feel that that kind of scrutiny took place in this case, that the period of questioning being short, the lack of inherent coercion, the fact that in 1961, prosecution authorities had Hailey to Hailey to upon.

Had Hailey’s was to come — Gallegos was to come that they acted properly.

That their actions are those of professional officers seeking to solve a crime admittedly but in no way overboard the will of a 14 year old who was reluctant to confess.

Your Honor, the testimony of all police officers in this case went un-rebutted.

We suggest that there was a finding even by Justice Shafer’s dissent of no criticism of the action of the officers only speaking of the failure to prove beyond the preponderance.

I will conclude with this unless the Court has other question.

That society is always paid and this is a quote from Justice Harlan, a stiff price for law and order and peaceful interrogation is that one of the dark moments of the law.

We feel that the application and the calling for the per se rule, number one is totally unwarranted by the petitioner that the facts that he alleges are not those reflected in the record.

And those reflected in the record do not cause this case to fall under totality.

Joel M. Flaum:

Thank you.

Warren E. Burger:

Mr. Kaplan you have about six minutes.

Marshall Kaplan:

Thank you. I had been tended to say something else with Mr. Justice Harlan raised the point and perhaps Mr. Boudin didn’t say enough about the law.

There is no doubt that whether it’s 1961 pre-Miranda or 1969 post Miranda.

There is no doubt that in our premises you cannot take the confession from a boy like this.

This case must be examined as this Court has always said in the confession case.

We can look to the entire record.

In fact, the record was so long in this case, the Court asked that this case be considered on the entire record and after counsel and I prepared stipulations for record designations to prepare appendix in this case, the clerk notified us there would be no appendix, it was too long.

When reviewing each factor about this boy, when coupling that with the fact that it took seven, eight, nine, ten different individuals, seven policeman, a states attorney, the head of the juvenile detention home, when you coupled that with the inability of the defendant.

When you add to that Hailey versus Ohio and Gallegos versus Colorado.

It’s just impossible to say that under conventional principles of due process, just because fortuitously it happened to be 1961 instead of 1969 that the police department didn’t know that they shouldn’t take the confession below 14 year old almost imbecile.

If a police department in an urban center like Chicago with a population of three-and-a-half million, a county of 6 million in Cook, doesn’t know that they can’t question a 14-year-old (Inaudible) without this Court telling them that they can’t and they don’t deserve to be the police department.

Now I can see that there are cases that this Court has decided that may fairly have a price prosecuting authorities of police authorities of what the law was after the case was decided.

But conventional due process looking at kolom versus Connecticut although there was physical brutality there.

Hailey versus Ohio, Gallegos versus Colorado, Fikes versus Alabama, Blackburn versus Alabama.

Every single case talks about psychological coercion.

Now, Lee Arthur Hester can’t take the punishment that some big, tall, strapping fellow who streetwise as we say and sometimes I hear in the courthouse that he has got the smarts.

Here is a 14 year old living in a community where he sees almost only black people.

His primary association with white people is in a school.

Here is a boy who has no possible association at all with police per se.

When he is put in a room and he is interrogated by four officers, one officer could have done the job —

Warren E. Burger:

Counsel, are you going to tell us at some point whether there is any legal question other than the confession, the involuntariness of the confession?

Marshall Kaplan:

No, I have other points in the brief.

The search and seizure was improper.

There was no reason to take all of his clothes and leave him naked like — and then except with a smack on him which is similar to Malinski versus New York.

There was no reason that they couldn’t have gone before a magistrate, they couldn’t even got the warrant.

Boy is in school, they could have watched him.

They took all of his clothes, they hustle these clothes to a crime lab which took three or four weeks analyzing the clothes and in the course of their conversation with him, told him that all the evidence shows that it’s your blood.

A hair of the lady is on your jacket.

Warren E. Burger:

Well if the arrest, if the detention in the first instance was lawful, do you contend there was anything wrong if they are sending his clothes to the laboratory for analysis?

Marshall Kaplan:

I do, yes in this case.

Warren E. Burger:

And on what grounds?

Marshall Kaplan:

That they could have gotten the warrant.

They’re all — I know what the general rule is Your Honor.

That the general rule that in a lawful arrest, you are entitled to make a reasonable search.

I have realized that.

But they could have — but to go to a magistrate in this case would have destroyed the subsequent examination and interrogation of the squad because ones he is before a magistrate, a detailed inquiry of whether this is the guy, a detailed inquiry would have been made.

And lastly Your Honor that when you take this case, and the total absolute inability to cope with his captors plus the fact that this is an innocent boy sitting in the penitentiary.

That an offer of proof as to a truth serve test was made and then he passed a truth serum test, that he denied unequivocally that he had any knowledge of how the woman had met her demise.

I say that when a judge in chambers is presented with testimony like that, although I can’t find any basis in the law to admit a truth serum test into evidence.

That once he knows that a boy has passed a truth serum test, some inquiry has to be made as to whether or not the right guy is on trial.

You just can’t bury your head in the sand and say, “Well, the law doesn’t allow the truth serum test to be admissible in evidence.”

Warren E. Burger:

Are you suggesting that if the state had taken such a test and that he had — the contrary result that it would have been admissible against him?

Marshall Kaplan:

No I don’t.

It would not have been admissible.

Not under Illinois law.

All I’m saying is that you had to live with this case.

My associates and I under the law of 1961 couldn’t get a dime to hire competent people to come to the state or people from our own state to testify, that’s where we spent $12,000.00 trying and appealing this case.

So we could bring in a blood expert, a pathologist, a hand writing expert.

Warren E. Burger:

The time is up Mr. Kaplan.

Marshall Kaplan:

Thank you very much.

Warren E. Burger:

Thank you for you submission.

Thank you gentlemen.

The case is submitted.