Irvin v. Dowd – Oral Argument – January 15, 1959 (Part 1)

Media for Irvin v. Dowd

Audio Transcription for Oral Argument – January 15, 1959 (Part 2) in Irvin v. Dowd

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Earl Warren:

Number 63, Leslie Irvin versus Alfred E. Dowd, Warden of the State of Indiana Prison.

Mr. Lockyear, you may proceed.

Theodore Lockyear:

Mr. Chief Justice, Associate Justices, may it please the Court.

20th of December in the year 1955, petitioner, Leslie Irvin, was convicted of murder in the first degree on the circuit — a jury on the Circuit Court of Gibson County, Indiana, and sentenced to death.

Thereafter, the cause was appealed to the Indiana Supreme Court.

Certiorari was sought in this Court but denied with the notation without prejudice to the petitioner’s right, filed writ of habeas corpus in the United States District Courts after exhaustion of his state remedy.

habeas corpus was found, writ of habeas corpus was sought in the United States District Court, Northern District of Indiana.

Court issued the writ, matter was heard and thereafter, the writ was dissolved.

Cause was then appealed to the Seventh Circuit Court of Appeals.

Certiorari was again sought and granted.

We feel this a most unusual case and the facts are principally in the record that was presented to the Indiana Supreme Court.

And by stipulation of the parties entered into the hearing on the writ of habeas corpus, time of the hearing.

The Court were advised by the — a clerk waved the printing of this record, 5000 pages, petitioner comes here as a proper.

The record in the District Court was not printed because the parties were unable to stipulate as to what portion should be printed.

But we feel that the facts, if the Court will permit, as each point is presented will present the facts applicable to that particular point.

Today we feel is a historical day in the history of this Court.

For the first time in history, I believe, a witness who participated in a trial is here in this courtroom assisting the Attorney General of the — of the State of Indiana in a prosecution of the appeal in this cause, is that with great significance.

And it turns out that this man is also the man who has prosecutor participated in the selection of the jury, testified as a witness after having examined witnesses in the State’s case, and thereafter was permitted to make a closing argument to the jury and comment on his own testimony.

This man, Mr. Weaver is in the courtroom today.

He’s been here all week.

Justice Duffy of the Court of Appeals held that this violated a petitioner’s rights with regards to the Fourteenth Amendment and due process.

Felix Frankfurter:

I’m not sure I understand.

Was this person you referred to an official at that time?

Theodore Lockyear:

He was the prosecuting attorney.

Felix Frankfurter:

And he was allowed to take the witness stand?

Theodore Lockyear:

He was allowed to examine the jurors, examine witnesses and then was allowed over our objection.

Felix Frankfurter:

To be a witness.

Theodore Lockyear:

To — to be a witness.

With — with reference to what subject matter?

Theodore Lockyear:

With reference to a confession purportedly made to him.

William J. Brennan, Jr.:

An oral confession?

Theodore Lockyear:

An oral confession made to him.

William O. Douglas:

This happened at the trial?

Theodore Lockyear:

This at the trial, yes, sir.

And heard by the jury, it was introduced in the evidence.

Felix Frankfurter:

Is that — is — is it one of your propositions that that in and of itself violates due process for a prosecutor to be a witness?

I’m quite aware of the fact that the highly undesirable thing to do for a lawyer in the case to be a witness.

But is that in and — is — is it your contention?

I just want to know.

Theodore Lockyear:

It’s our contention, Your Honor.

Felix Frankfurter:

It’s not — that that in and of itself or in connection with other things in this case?

Theodore Lockyear:

The whole —

Felix Frankfurter:

All right.

Theodore Lockyear:

— course of conduct and I think —

Felix Frankfurter:

It’s not the mere fact that the prosecutor takes the stand would not in and of itself be a violation of due process.

Theodore Lockyear:

No.

But if — nor would it be a violation of Canon 19.

Felix Frankfurter:

Yes.

Theodore Lockyear:

But after he has once taken the stand and testified, then he should withdraw from the cause that he is presenting.

He should leave the trial to other counsel.

Felix Frankfurter:

Maybe — maybe that’s the right thing to do.

But suppose he doesn’t, will that in and of itself be a violation of due process?

Theodore Lockyear:

We think when he is permitted then to argue the case to the jury and comment on his own testimony.

William J. Brennan, Jr.:

With initial request credibility is acceptable?

Is running —

Theodore Lockyear:

The —

William J. Brennan, Jr.:

— denial of what (Voice Overlap) —

Theodore Lockyear:

The — and there is a very serious question which we get into later on as to the voluntary nature of a confession.

The objection was not — no evidence was ever heard on that question, and that — that is one of my other points.

William J. Brennan, Jr.:

And you mean that in his summation, he tried to —

Theodore Lockyear:

He was permitted.

William J. Brennan, Jr.:

— persuade the jury that it must have been voluntary because he is the one who testified to have a witness?

Theodore Lockyear:

He permitted him and we have in the record.

I told you what was told to me myself.

The Court refused to permit this to be reported.

The entire brief and proceedings of — in the lower court are reported except this oral argument.

Felix Frankfurter:

Well, that is interesting.

You said, the Court refused to have that report?

Theodore Lockyear:

The Court refused to let us report that.

Yes, sir.

Felix Frankfurter:

You mean that — that a statement was made in summing the jury by the prosecutors, summed up.

And because of it, he made a statement.

That was taken down by the particular sentence which you deemed important, was excised, was not allowed to be incorporated in the stenographic minutes?

Is that what you’re saying?

Theodore Lockyear:

I — and the way we did it, the Court would not permit the oral argument to be reported.

William J. Brennan, Jr.:

Any of them?

Theodore Lockyear:

Any of Mr. Weaver’s oral argument.

That’s right.

Then we, under an Indiana procedure, prepared affidavits and — Mr. Loft and myself prepared affidavits based upon part of this testimony which includes his comment that I told my — you myself what was told to me.

And then the Court approved that, that is a bill of exceptions which is in the record and then the court approved that as being a part of the record and what was said at that —

Felix Frankfurter:

So that it is not a part — so that it is part of the record.

Theodore Lockyear:

It is a part of the record, yes sir.

Felix Frankfurter:

Was all this before the Court — Supreme Court of Indiana?

Theodore Lockyear:

All this was before the Supreme Court of Indiana.

Felix Frankfurter:

Did they take any note of what you’ve just said?

Theodore Lockyear:

No, sir.

Felix Frankfurter:

Where was — I should have mentioned — noticed but I don’t.

Where was this trial and what’s in it?

Theodore Lockyear:

In Gibson County, Indiana which is in the town of Princeton, Indiana.

Felix Frankfurter:

How big a town is that?

Theodore Lockyear:

Community of 30,000, community of 30,000.

Earl Warren:

Was this confession concerning which the prosecutor testified reduced to writing at the time?

Theodore Lockyear:

No, sir.

Earl Warren:

Just his memory, his recollection.

Theodore Lockyear:

Just his memory.

Yes, sir.

William J. Brennan, Jr.:

Well, would you tell us, might want to disrupt your argument, but you said there was an issue of the voluntariness in that statement, that all statements of the prosecutor?

Theodore Lockyear:

Of all of them, Your Honor.

What happened and that gets me — I can get over to that point real quickly.

William J. Brennan, Jr.:

And I don’t — it don’t —

Theodore Lockyear:

On April the 8th, the question was asked.

This is found in transcript page 1306, “What did the petitioner say to you on April 8, 1955?”

And we objected and a hearing was had at that time.

And the Court, after hearing the evidence — and the answer was that he didn’t say anything about the murder of Whitney Wesley Kerr.

Then on April the 12th, the question was asked, not — the question was asked, “What did he say to you on April the 12th, 1955?”

And then we made an objection and in an offer to prove as to the voluntary nature of the confession, and the Court denied that motion, denied the offer to prove and the witness was permitted to testify of what he said.

No hearing was had and that is one of the questions that we’ve raised here.

The same objection —

William J. Brennan, Jr.:

And you made an offer — you made an offer of proof as — in the sense that you offered to prove facts which — to establish it was not a voluntary statement?

Theodore Lockyear:

Offer to prove, it’s found on our brief at page 60, the last part of it, page 67.

“That the defendant did not voluntarily, freely under any circumstances make any statement or confession to this witness or any other police officer, in whose custody he was at the said time or which the defendant now ask leave of court to prove and introduce evidence to prove the same.”

The Court, “Objection overruled.”

Witness answering, “He told me that he had shot and killed Wesley Kerr.”

William J. Brennan, Jr.:

And that, in the — on the trial cause —

Theodore Lockyear:

Shooting Wesley Kerr.

Yes, sir.

And the same objection was made thereafter to the testimony of Mr. Weaver and several other police officers.

Earl Warren:

That was at the trial not in the preliminary hearing.

Theodore Lockyear:

No, sir.

That was at the trial.

Earl Warren:

Was there any — any reason given by the Court as to — to why that was not admissible?

Theodore Lockyear:

No, sir.

No.

The State would contend at this time that a hearing was had on the question, “What was said on April the 8th?”

And that — that was all the hearing that you were entitled to because —

Earl Warren:

I mean when a — when the response was that he didn’t say anything?

Theodore Lockyear:

That’s right, sir.

A hearing was had at that time.

Tom C. Clark:

On voluntariness?

Theodore Lockyear:

On the voluntariness and that was principally on the arrest and the — what occurred there — there at the time of the arrest and thereafter.

Tom C. Clark:

Didn’t go into all this and explained those points then?

Theodore Lockyear:

Not all of it, Your Honor because he was not permitted to testify himself nor was he permitted to introduce other evidence that would have covered the period of time of April the 12th and April the 15th.

The question was limited to what was said on April 8th.

And the answer was that — as we got into that after the hearing was started, he didn’t say anything.

Earl Warren:

Did the State Supreme Court comment on — on this issue?

Theodore Lockyear:

State Supreme Court took the position that he had escaped and at the time — at the time that any motion of new trial had been filed on his behalf.

Earl Warren:

Yes.

Theodore Lockyear:

And that, although they didn’t consider this point, they took the position that the evidence heard on the 8th, question on the 8th was controlling.

And they took the position that the escape was the controlling fact in the case.

William J. Brennan, Jr.:

Well, they never reached any of these constitutional questions.

Theodore Lockyear:

None of these questions, except that in their opinion, they sum up on — in 139 N.E. 2d, 902 and this is all they have to say.

It does not appear from the record in all — an argument had that the appellant was denied due process of law under the Fourteenth Amendment or due course of law under the Bill of Rights, Constitution Article I, Section 12.

William J. Brennan, Jr.:

Well, that makes a disposition on the merits.

Theodore Lockyear:

Sir?

William J. Brennan, Jr.:

That’s the disposition on the merits.

Theodore Lockyear:

That’s — that’s their — that’s this old decision that they made.

They didn’t make an individual.

William J. Brennan, Jr.:

No, but it is a disposition.

Theodore Lockyear:

Yes, sir.

William J. Brennan, Jr.:

Not on the merits of all your constitutional questions?

Theodore Lockyear:

That’s right, sir.

We feel that very strongly, and the same position that was taken by the District Court.

The District Court followed the Indiana Court in holding at the escape bar him the right to appeal, but the District Court uses these almost the same words, although this Court could rest its decision here squarely upon the failure of the petitioner to exhaust his remedies in the state courts of Indiana.

We will come — we will consider the contentions of the petitioner where he claims denial of due process, whether they present nonfederal question — procedural question under law of Indiana or federal question under the Fourteenth Amendment.

So he made the same basic decision.

He took the position and it would have been ridiculous to have another hearing but he ignores the fact that that would — we would have had the right to present other evidence including the petitioner’s own right to testify as to the April 12th.

Tom C. Clark:

At time when the escape (Inaudible)

Theodore Lockyear:

Time when escape came in at — on — the trifle, we don’t know, we weren’t there.

But on the morning of the 19th of January, when we filed a motion for a new trial, the Court was advised by the sheriff that he was not entrusted.

Tom C. Clark:

That’s after conviction?

Theodore Lockyear:

After conviction.

Tom C. Clark:

When was this?

Someone who he rearrested?

Theodore Lockyear:

He was rearrested some three weeks later, within a month he was —

Tom C. Clark:

That’s about —

Theodore Lockyear:

About three weeks and was back in Michigan City within a month, almost that day.

Charles E. Whittaker:

I understand based from this, the sheriff reported the escape, was the last day for the filing of a motion for a new trial.

Theodore Lockyear:

That’s correct, sir.

Charles E. Whittaker:

And you did file motion for new trial on that day but after the escape.

Theodore Lockyear:

What?

He was not in custody.

Now, the escape, whether it’s an escape or not —

Charles E. Whittaker:

Well, suggest the word to me with some connotation —

Theodore Lockyear:

All right.

Charles E. Whittaker:

— that he’s gone.

Theodore Lockyear:

He was not there, that’s right, sir.

But there was no objection entered at that time we filed the motion.

No objection made by counsel for the Attorney General or for the prosecutors.

Charles E. Whittaker:

But the Supreme Court of Indiana did say that on the appeal that because the defendant have escaped prior to the filing of motion for new trial — filing of the motion for new trial on the 30th day, was this though not — not ever been filed.

Theodore Lockyear:

That’s right, sir.

Theodore Lockyear:

They —

Charles E. Whittaker:

Had such was a condition to — found in the most — first condition of the appeal, therefore they dismissed the appeal.

Theodore Lockyear:

That’s right, sir.

They did not dismiss the appeal.

They did not.

But they affirmed it.

Theodore Lockyear:

They affirmed and commented.

They held that we had no authority to file the motion for a new trial, but they did say what I’ve just read to you —

Charles E. Whittaker:

Yes.

Theodore Lockyear:

— as to the deprivation of his constitutional rights.

Yes, sir.

The appeal — and no — no motion was ever made to dismiss this appeal in the Indiana Supreme Court.

Motions were made to appeal as proper.

They were granted extensions of time, printing of the record, all of those things were made by Mr. Loft and myself on behalf of petitioner, Mr. Givan has represented the Attorney General and no objection was ever made to our proceeding.

Under your Indiana law, despite this escape, the ground in which the — your court put it, would they have had a right in their discretion to hear the appeal?

Theodore Lockyear:

In Bland versus State which is in our opinion — in our brief which is back to Indiana which is 1839 that they did consider the man’s appeal.

He had — he had escape while the appeal was pending.

And while he was gone, the time for which the –for his sentence of death had expired.

He came back and objected to resentencing him to death.

He said that, “The time has expired.

You can’t sentence me to death.”

And the Court said that we — that that is of course no merit, but they considered every ground raised in his motion for a new trial and raised on appeal, case of Bland versus State which is in our brief on page 126, Justice Harlan.

Tom C. Clark:

Of course that’s exactly — the petition has been filed, disposed in the Supreme Court.

Is that right?

Theodore Lockyear:

I don’t —

Tom C. Clark:

(Inaudible) Court already passed on the Bland case, has escaped.

Theodore Lockyear:

That’s right.

That was a hundred years ago.

Tom C. Clark:

That is there nothing else?

The escape was an interim.

Theodore Lockyear:

That’s right, but the —

Tom C. Clark:

(Inaudible) but before new trial was filed, a motion was filed.

Theodore Lockyear:

The only difference is in the time for filing a motion for new trial, that’s right, sir.

Tom C. Clark:

Then when he returned, when he was taken into custody again, the time for him to file a new trial motion had left, I suppose.

Is that right?

Theodore Lockyear:

I think it had.

Yes, sir.

Charles E. Whittaker:

Well it must be so because you filed the motion for a new trial on the last or 30th day.

Theodore Lockyear:

You’re asking if our man has — hadn’t escaped at that time for filing a motion for new trial.

He was out of the custody of the sheriff.

Yes, sir.

Charles E. Whittaker:

But what is the — why — why are we — is there something about this word escape?

Theodore Lockyear:

I — that is part of my argument.

Now, the escape —

Earl Warren:

Could you put the facts chronologically that we might get it in our minds —

Theodore Lockyear:

As to the date of the —

Earl Warren:

Those — the facts of the case briefly, because at the moment we’re all talking.

Theodore Lockyear:

Well —

Felix Frankfurter:

If you will (Inaudible) begin at the beginning and go right to (Voice Overlap) —

Earl Warren:

Yes.

That’s — that’s what I —

Theodore Lockyear:

All right.

He was — all right.

The murder was alleged have happened in December of 1954.

Thereafter, on the 8th of April 1955, petitioner was arrested for the first time.

Some seven days later, he was arraigned for the first time after having purportedly made an oral confession two days prior to his arraignment.

He was indicted that same month, April 1955.

And then in May 1955, the cause was venue out of Vanderburgh County to Gibson County, Indiana.

Thereafter, from May 1955 until November the 14th 1955, he was in the Gibson County, Indiana jail awaiting trial.

The trial was commenced on November the 14th 1955 by the selection of the jury which consumed some three and a half weeks.

Theodore Lockyear:

I could get into the facts then into the selection of the jury if the Court would want me to at this —

Earl Warren:

That is an — an issue in the case?

Theodore Lockyear:

It’s certainly an issue.

Earl Warren:

Then you’d better — you’d better state all the facts there in issue to that.

Theodore Lockyear:

All right.

The voir dire examination consisted of examining 431 jurors, 269 of which or 63% were excused for a fixed opinion concerning the petitioner’s guilt.

103 were excused for opposition to the death penalty.

20 were excused peremptorily by the petitioner, 10 peremptorily by the State, 12 were selected as jurors, two serve as alternate jurors and 15 were excused for miscellaneous offense — reasons such as doctor’s excuses hearing, one had moved down the County and one was related to the petitioner.

Potter Stewart:

Each side exhausted its peremptory chances, did they?

Theodore Lockyear:

No, sir.

The State remained — had 10 remained.

Potter Stewart:

Had 10 remained.

Theodore Lockyear:

We had 20 in May.

Potter Stewart:

The defense exhausted it.

Theodore Lockyear:

And exhausted our peremptory challenge.

Now, prior to the — on the day of the commencement of the voir dire, we filed a motion for change of venue from the County and a motion for a continuous delay of the trial.

We had a week prior thereto, also filed a motion for a change of venue based upon the bias and prejudice existing in the community.

William J. Brennan, Jr.:

Now, what’s the —

Theodore Lockyear:

In —

William J. Brennan, Jr.:

And what’s — what (Inaudible) and then many of them murdered (Inaudible)

Theodore Lockyear:

He has alleged to it.

Yes, sir.

William J. Brennan, Jr.:

Was the — was that a significant factor as to why the community was — formed fixed opinions on something about this?

Theodore Lockyear:

That plus the newspaper, an extensive newspaper and radio publicity that this case was given.

Felix Frankfurter:

Is this — isn’t — are you raising this question?

Theodore Lockyear:

Yes, sir.

Felix Frankfurter:

And does the record include a — of a — in case there’s no copies of — filed on the papers to show the unclaimed state of —

Theodore Lockyear:

Matt Stewart, Leslie Irvin bear details of six area slings to local police.

Felix Frankfurter:

What is the date of that?

Theodore Lockyear:

That is April the 15th, 1955.

Felix Frankfurter:

When was he arraigned?

Theodore Lockyear:

He was arraigned in the latter part of April of 1955.

Felix Frankfurter:

And was this kind of thing continuing in the — what is it, the Evansville?

Theodore Lockyear:

(Inaudible) in Evansville press, which are the principal papers for the adjoining county likewise.

Felix Frankfurter:

Well, now, was — was that kind of inflamed exploitation of a case —

Theodore Lockyear:

Day before trial —

Felix Frankfurter:

— continues?

Theodore Lockyear:

Not as large of course.

But the day before trial on the front page and on the day of trial, he was referred to as the confessed killer of six persons.

Felix Frankfurter:

And all that is before us here?

Theodore Lockyear:

All that is before us here and here is the —

William J. Brennan, Jr.:

Is this the — is this the case on which the prosecutor went on to some radio show or something?

Theodore Lockyear:

Yes, sir.

William J. Brennan, Jr.:

This is while your picketing a jury, wasn’t it?

Theodore Lockyear:

Here is another clippings in the six murders solved.

And then during the course of the trial, that’s set out in our exhibits right outside the courtroom, is a panel truck radio station (Inaudible)

There is a picture of urban trial from Princeton, full coverage daily 5:30 p.m., WJPS 1330 on your dial.

Felix Frankfurter:

What was the date?

Theodore Lockyear:

Parked right —

Felix Frankfurter:

What was the date?

Theodore Lockyear:

That was during the trial.

Parked right in the — right where the jury comes in.

William J. Brennan, Jr.:

There’s placards on the sides of the truck?

Theodore Lockyear:

Yes, sir.

Do we bring it up here.

Felix Frankfurter:

Is — we got a copy of the actual —

This is your part of the record.

Is this included in the record?

Felix Frankfurter:

No.

But what — what was actually said by him over the radio?

It’s in our brief.

Page 17, page 17 of the brief.

Theodore Lockyear:

Please the Court.

On page 17 of our brief, the — is a — is an interview.

Now, this interview is significant and that they never denied in Court anything that we set out in our motions for change of venue or continuance.

Mr. Weaver, Paul Weaver.

“ I think probably the most unusual thing in this case is the unusual coverage given to the case by the newspapers and radio.

This is what has caused us so much trouble in the getting of jury of people who are not unbiased and unprejudiced in the case.

And the publicity attached to this case has made it difficult to begin trying it.

”Answer, “Very.”

Tom C. Clark:

What they run on radio in order to present Irvin trial.

Is that a tape of the trial or what?

Theodore Lockyear:

No, sir.

It was not a tape of the trial.

It was the (Inaudible) comments and interviews such as this that were taken immediately after trial court did not permit —

Felix Frankfurter:

Did you say that the full text of what the prosecutors said is in your brief?

Theodore Lockyear:

Yes, sir.

Page 17.

Where — where is the record that we had here?

It’s significant in that record likewise that this press release which gave the details of this crime — these crimes to the newspaper and radiomen.

There is a picture here of Mr. Weaver, the same prosecutor who testified.

William J. Brennan, Jr.:

Is he the one who was on the radio station?

Theodore Lockyear:

He was the one who was on the radio too.

This is on page 75 of the record, shows a picture of Mr. Weaver and the Chief of Police announcing this to the radio newspaper in general.

William J. Brennan, Jr.:

Announcing what?

Theodore Lockyear:

The details on this purported confession.

Tom C. Clark:

That’s before the trial, wasn’t it?

Theodore Lockyear:

That was before the trial.

Yes, sir.

Tom C. Clark:

About the time the confessions were made?

Theodore Lockyear:

During the week.

Yes, sir.

Right after it’s purported.

Felix Frankfurter:

Mr. Lockyear, the — if that’s all that was said — that’s the full utterance there (Voice Overlap) —

Theodore Lockyear:

That is the full, yes.

The —

Felix Frankfurter:

And — and I take it, the significance is that what you have italicized —

Theodore Lockyear:

Yes, sir.

Felix Frankfurter:

— namely in his statement of the unusual coverage given to the case by the newspapers, it made it difficult to get an unbiased jury.

That’s — that’s the — that’s the size of what the —

Theodore Lockyear:

Significant.

That is an admission on the State’s part that the jury was prejudiced and that the jurors who were coming through —

Felix Frankfurter:

Well I don’t that — I don’t think I can quite go that far.

You make that argument.

Theodore Lockyear:

Yes.

Felix Frankfurter:

This is what has caused us so much trouble in getting a jury of people who are not unbiased and are unprejudiced.

You can go on and argue —

Theodore Lockyear:

Yes.

Felix Frankfurter:

— is what he did but he says the opposite.

Is this the — is — is that a more or less customary thing for a prosecutor to be talking to the community while the case goes on?

Theodore Lockyear:

Well, I haven’t had that much experience, Your Honor, but I don’t think it is the experience — the common practice.

Now, after these three-week examination of prospective jurors and the number that were interviewed, as set out on page 19 of our brief, is part of the testimony of those jurors who served including juror Ernest Hensley who testified over on page 19 to set aside this opinion, “Would it require any evidence?”

“Oh, yes, it would require evidence to set it aside.”

“It would require some evidence?”

“Yes.”

“So you think that it would require evidence from the defendant?”

“Evidence direct from the defendant.”

And over on page 20 —

Earl Warren:

What was his answer to that?

Theodore Lockyear:

He says — his answer is evidence direct from the defendant.

Theodore Lockyear:

And then the next question was, “Are from somebody on his behalf, somebody on his behalf?”

“Yes, I think so.”

That’s down about the bottom third of the page, Your Honor.

Earl Warren:

Yes, I see it well.

Theodore Lockyear:

And then over on page 20 about midway, question was asked.

“Now, you understand the law to be that the defendant ordinarily in a criminal case is presumed to be innocent?”

“Yes.”

Question, “Until proven guilty?

Now, in this particular case because of this opinion of yours, would you presume the defendant be guilty?”

“Well, I wouldn’t until I heard evidence otherwise.”

And on page 21 of our brief, “So on this particular case –“

Earl Warren:

But there — there’s some more following that that I think is rather significant, would you read that too?

Theodore Lockyear:

“You would until you heard some other evidence of his innocence, wouldn’t you?”

“That’s right.”

“Then you would presume then starting out on the trial that the defendant was guilty until you heard evidence from him or someone else on his behalf of his innocence.”

“Yes, sir.”

It — it repeats itself, Your Honor.

And on page 21, “So on this particular case, you could not enter in to this matter and give the defendant the benefit of the doubt that he is innocent.”

William J. Brennan, Jr.:

This is one of the jurors who actually served (Voice Overlap) —

Theodore Lockyear:

Yes, sir.

That’s right.

“And under those circumstances, it would be rather impractical for you to render a fair and impart a verdict based solely upon the evidence?”

“That’s right.”

Hugo L. Black:

Was he challenged?

Theodore Lockyear:

Challenged for cause.

Hugo L. Black:

Where is that?

Theodore Lockyear:

On page 21, the defendant challenged the juror for cause, cause being then he could not render an impartial verdict based solely upon the evidence and he has a fixed thing that would require evidence rule.

Hugo L. Black:

That was the court’s ruling.

Theodore Lockyear:

Court’s ruling would be right after that, Your Honor.

That would be on page 36 to 58 of the transcript.

Theodore Lockyear:

It’s not —

Hugo L. Black:

36 to 58.

Theodore Lockyear:

Yes, sir.

And then to show that these were not answers given strictly to the defense counsel, Mr. McGregor asked the question for the State.

“I mean your opinion, could it be disregarded by you?”

He says, “Only by evidence.”

“Only by evidence?”

Answer, “That is right, sir.”

And then if the Court would bear with me and turn to page 30 of our brief and starting about a third down.

“And whether or not this opinion that you have formed,” and this is still Juror Ernest Hensley.

“And whether or not this opinion that you formed and expressed as to the defendant was that he was guilty of the particular crime charged just in my own mind.”

“That’s right.”

In that opinion, you also formed –“

Earl Warren:

Where is this you’re reading from now?

Theodore Lockyear:

Page 30, Your Honor.

That’s right.

“In the opinion — in that opinion, you also formed and expressed an opinion that the defendant confessed to this particular crime.”

“Well, I don’t know whether I said that or not, but I understand from the papers that he did.”

Question, “You have the opinion that he did confess to the crime?”

“That’s right.”

“And you have the opinion that he confessed to other crimes?”

“I believe so.”

“And you have an opinion that the defendant shot, killed, and murdered Kerr?

And that’s for the crime in which he is charged, isn’t that right?”

“Yes, sir.

That’s right.”

Question, “And you have formed the opinion that the defendant shot, killed and murdered Kerr while the defendant was perpetrating a robbery?”

Answer, “Yes, that’s right.”

Of course, here, he changed it.

“Have you formed any opinion as to affixing on the penalty in this case?”

Theodore Lockyear:

“I don’t know what I did.

I just formed that as the one law.”

Felix Frankfurter:

What — would you mind telling us, unless it appears, what Juror Hensley’s occupation or profession was?

Theodore Lockyear:

As I recall, he was a farmer.

Felix Frankfurter:

He was a farmer.

That business associates (Inaudible)

(Inaudible)

Theodore Lockyear:

I could read out the jurors who testified similarly but in answer to your question, it is our position and under the decision in Baker versus (Inaudible), Circuit Court of Appeals decision that a conviction based upon the testimony of such a juror is void and that the conviction is of no effect that —

You misunderstood my question.

My question is, the State Board of Indiana held they could not reach the merits to the class of case.

(Inaudible) Indiana Supreme Court.

He had no right to the cases.

That is a proper — on the state ground.

(Inaudible)

Theodore Lockyear:

The only thing, Your Honor.

They did consider the questions as evidence for what I read to the Court a while ago.

Is that what you rely on?

Theodore Lockyear:

Yes, sir.

We rely on the fact that they did comfort with the fact that this man has never been charged with an escape.

The — escape if any is a separate crime.

Now, why this man was not in custody, we know not.

The record does not show.

We do know that this man has never been tried with an — for an escape, never been charged.

It would seem to me that the State has a remedy to determine whether or not this man is an awfully out of the custody of the sheriff, or whether he — by insanity or other means was out of the custody of the sheriff at that time.

And we take the position here that the conviction causes a serious deprivation to this man’s constitutional right.

William J. Brennan, Jr.:

Well, isn’t there a letter here somewhere.

Theodore Lockyear:

A letter to me, Your Honor.

Yes, sir.

William J. Brennan, Jr.:

Yes, but what — what use was made of that?

Theodore Lockyear:

We felt that — I received the letter and we felt it our duty to file a letter with the Court.

William J. Brennan, Jr.:

Well, I — I have recall reading it (Voice Overlap) —

Theodore Lockyear:

Yes.

William J. Brennan, Jr.:

— when I read this brief but wasn’t there some kind of admission in that letter on his part that he had escaped or something?

Theodore Lockyear:

He says that I know this is a wrong thing to do and that —

Charles E. Whittaker:

(Inaudible)

Theodore Lockyear:

Yes, sir.

Now, that’s the —

William J. Brennan, Jr.:

The only evidence of that all as to — in this record as to why he was absent to — to present the evidence at all.

Theodore Lockyear:

That’s right, sir.

Earl Warren:

Before we get away from that jury question.

How many other jurors whether who — were in a comparable position to this one that you —

Theodore Lockyear:

There are —

Earl Warren:

Tell us about it.

Theodore Lockyear:

There are three others who we feel would require evidence.

There are four others who were the —

Earl Warren:

In addition to that, four?

Theodore Lockyear:

Yes, sir.

Four others who were of the opinion or the impression that he was guilty of the crime for which he was being charged, a total of 8.Now admittedly, four of them I think are qualified generally speaking because they had no fixed opinion and no impression that the man was guilty of this crime.

Charles E. Whittaker:

Mr. Lockyear, in that connection, what have you to say about the status on Section 9-1504 (Inaudible) hearing under the discretion of the Court filed by jurors in the (Inaudible)

Theodore Lockyear:

Our opinion is that a man who says that is an — as a statement of fact that he believes this defendant guilty.

And then later says that the — that he can set that opinion aside or that he would disregard that opinion, is merely the statement of an opinion, and therefore permits the juror to determine whether or not he is qualified rather than the Court determining whether or not the man is qualified.

Charles E. Whittaker:

Well, the statute (Inaudible)

Theodore Lockyear:

That’s right.

Charles E. Whittaker:

(Inaudible)

Theodore Lockyear:

That’s right.

And that was a similar statute that was involved in Julie versus United States case down in Georgia.

But the Court there said that in — under circumstances such as that where a juror is of the opinion that the defendant is guilty and has expressed that opinion would require evidence to remove it that he is not qualified even under a similar statute.

And that is our position that a —

Charles E. Whittaker:

Do you think the statutes (Inaudible)

Theodore Lockyear:

I think you can under certain — certain circumstances and I think —

Charles E. Whittaker:

To attack the (Inaudible)

Theodore Lockyear:

No, we attack the — whether or not this man had a fair and impartial trial.

We claim that he did not have a fair and impartial trial under the Due Process Clause.

William J. Brennan, Jr.:

In other words, you’re taking the whole picture, is that it?

Theodore Lockyear:

Yes, sir.

William J. Brennan, Jr.:

You’re not — you’re not saying anyone alone establishes lack of due process.

Theodore Lockyear:

That’s right.

But when you have eight of them who are in the opinion that he is guilty before the trial even starts.

William J. Brennan, Jr.:

No, no, I — I wasn’t — you — you have several points here, don’t you?

Theodore Lockyear:

Yes.

William J. Brennan, Jr.:

One was, the community was inflamed that the jury wasn’t an unbiased jury?

Theodore Lockyear:

That’s correct.

William J. Brennan, Jr.:

The conduct that you charged to the prosecutor.

And you say in some total of all those things, he was denied a fair trial and thus, denied due process, was that it?

Theodore Lockyear:

In some total and in any one individual, one of them, we think is sufficient.

Potter Stewart:

Mr. Lockyear, as Justice Harlan suggests and — and without any intent on my part to interfere with your argument.

I hope you are trying to address yourself before you’re finished to the — to the important preliminary question here.

The fact is that the Federal District Court and a unanimous Unites States Court of Appeals including Chief Judge Duffy, whom you quoted, squarely held that this man had not exhausted his state remedies and that therefore, the District — the Federal Courts were without jurisdiction to entertain this writ.

Now, and they did so by referring to the opinion of the Supreme Court of Indiana which said that since the appellant had no standing in Court at the time he filed a motion for a new trial, the situation is the same as if no motion for a new trial had been filed, or he had voluntarily permitted the time to expire for such filing, and I’m now quoting under the Supreme —

Theodore Lockyear:

Yes.

Potter Stewart:

— Court of Indiana.

That quite before — ahead of the merits which you’ve been discussing.

It is — is certainly the — the basis of the decisions below both — as I say, by the District Court and the unanimous Court of Appeals, is it not?

Theodore Lockyear:

It’s not —

Potter Stewart:

Even Judge Duffy who — even Judge Duffy who agreed with you that this man’s constitutional rights had been impaired still said we have no jurisdiction to consider it because he did not exhaust his state — state (Voice Overlap) —

Theodore Lockyear:

That’s right, but Judge Parkinson in the District Court did consider them.

Potter Stewart:

He did, but didn’t he also squarely hold —

Theodore Lockyear:

That’s right.

Potter Stewart:

— and not exhaust his state (Voice Overlap) —

Theodore Lockyear:

From now the finality of the punishment in this particular case.

Potter Stewart:

My — my only request to you is that you address yourself to that threshold question sometime before you complete your argument.

Theodore Lockyear:

Well, we — and we feel that the decision in this Court in Allen versus Georgia is in our favor in this cause because it said, in denying in that particular instance, they might in the right to appeal because he was doing this in the status of an escapee at the time his case was dismissed by the Supreme Court of Georgia.

Held that he could only be on a very exceptional circumstances as this Court would be — feel justified in saying there had been a fair legal process.

The plaintiff in there must have established — been deprived of one of those fundamental rights, the observance of which is in dismissible to the liberty of the citizen to justify and affirm.

And we feel uncertain in this case or —

Felix Frankfurter:

Where is that you’re reading from?

Theodore Lockyear:

It’s Allen versus Georgia.

Hugo L. Black:

Does the State contend that you could now raise this question of habeas corpus in the State?

Theodore Lockyear:

We have no remedy in the State.

They —

Hugo L. Black:

It’s admitted that you have —

Theodore Lockyear:

That’s admitted.

Hugo L. Black:

— no remedy in the State.

Theodore Lockyear:

The —

Hugo L. Black:

So far, whenever it is waived, you have exhausted the possibility of getting a remedy in the State.

Theodore Lockyear:

That is correct, sir.

Hugo L. Black:

Then the question whether if there has been assumed to be a violation of due process, you can get a remedy in the federal court even though the State will not give it to you.

Theodore Lockyear:

That is correct, sir.

And in the light in the Allen case, we feel this is one of the exceptional cases that they didn’t refer to.

Felix Frankfurter:

Why have you no remedy on the state court because under state law, an escapee, ugly word, can’t appeal?

Theodore Lockyear:

No, because as he mentioned here as to habeas corpus.

Habeas corpus is available in — in the State of Indiana in only four counties.

That is the county in which you were incarcerated and tried.

Writ of error coram nobis is only available in those instances which appear outside of the court — court’s record.

And all of the questions which we have raised are — appear in the record of the court.

Hugo L. Black:

They would not consider them because he was an escapee.

Theodore Lockyear:

No, that would have nothing to do with habeas corpus or coram nobis.

Hugo L. Black:

I understand — I understand that the argument is that the State, you have forfeited — he forfeited his right by escaping.

Theodore Lockyear:

That’s correct, sir.

Hugo L. Black:

Even his rights to appeal, and that the State therefore will give him no remedy by reason of the fact that he did escape.

Theodore Lockyear:

That’s right, sir.

Hugo L. Black:

And you say that he has exhausted his remedies and that the federal court should not deny him relief if there’s an unconstitutional — if he has been on the constitutional — deprive of his life of liberty on the ground that he is an escapee.

Theodore Lockyear:

That’s right, sir.

Hugo L. Black:

Even though the State does, that’s your argument.

Theodore Lockyear:

Not covered with the fact that they did hear us on the merits of the thing.

Felix Frankfurter:

Well putting to — putting that one side if you can establish that the Supreme Court of Indiana did in fact although by their own law, they were not required to.

They did in fact — as a matter of fact, and it was waived that he couldn’t appeal because he is a known escapee, they went ahead.

That’s one situation.

Theodore Lockyear:

That’s right, sir.

Felix Frankfurter:

But put that to one side and face the question, do you have to face the question that Justice Harlan put and that Justice Stewart suggested you should deal with, namely, is it violative of due process for a State to say that the convicted defendant cannot raise errors that may have vitiate that otherwise would have vitiated the sentence if he escaped after the sentence and before appeal.

Theodore Lockyear:

Well, I —

Felix Frankfurter:

You dealt with that problem at all?

Theodore Lockyear:

The only answer that I can give the Court is that, it is our position that a conviction based upon this various deprivation on this constitutional right is void and that’s the language used by Judge (Inaudible) in the Tenth Circuit in holding — he says that his conviction where a man is deprived due process law, in the selection of jury, or in the — and it denied a fair trial.

The conviction is illegal and void, not voidable, void and we would take —

Felix Frankfurter:

But normally — normally, you can’t come into a federal court.

You can come here directly from a State to the highest court of the State to which an appeal lies in a criminal case.

You can’t get into the federal court — lower federal courts until you go on through the state process.

Now, the question is, the state process is available for raising all these questions.

But if the State says, “A fellow doesn’t take the lawful task of having us, the Supreme Court, passed on that but run the way, is he barred for raising these questions?”

Theodore Lockyear:

They even affect —

Felix Frankfurter:

That’s not a novel question.

This Court have to consider in the case of Eisler.

What we should do with an appeal for a fellow who escaped or something.

Theodore Lockyear:

But he was still refused and still is, I — I presume.

William O. Douglas:

Well, as I read your Supreme Court decisions (Inaudible) February 1957, it goes on two grounds.

One, that the defendant being a fugitive.

He has no right to move for a new trial while he was in that status of fugitive.

And secondly, that even on the merits, there was no error in the trial below.

Theodore Lockyear:

That’s correct, sir.

William O. Douglas:

So you have — you have two grounds, not a denial of all relief but a grant of — of the relief in the form of review on the merits (Voice Overlap) —

Theodore Lockyear:

That is right.

In both Courts, in the Indiana Supreme Court and in the United States District Court.

William O. Douglas:

Well, I’m talking about the Indiana Supreme Court.

Theodore Lockyear:

Yes, sir.

William O. Douglas:

So, so far as the merits of this — of these questions, you’re now presenting, in one — in one sense of the word, you — you did get — you did exhaust the State remedy by getting a review on the merits of the errors unless it’s a criminal trial.

Theodore Lockyear:

That’s correct, sir.

We would like to reserve our — a few minutes for rebuttal.

William O. Douglas:

Yes, you may.

Very well.

Mr. Givan, you may proceed.

Richard M. Givan:

Mr. Chief Justice, Associate Justices, may it please the Honorable Court.

Before I start my argument, I would like to again remind the Court that Mr. Paul Weaver, who was a prosecuting attorney of Vanderburgh County at the time of the trial of Leslie Irvin, is in the Court.

Now, the reason for his presence here is because of the nature of personal attack levied against him and because of the statements made by Chief Judge Duffy in the Circuit Court of Appeals of the Seventh Circuit that Mr. Weaver requested that he be permitted to come with us and talk to us concerning the handling of this case in this Court, although it is the duty of the Attorney General of Indiana to handle the case.

Mr. Weaver made that request which Mr. Steers, the Attorney General of Indiana granted because of the nature of the personal attack against Mr. Weaver.

He is here and I realized it’s highly irregular, but if the Court feel that they have questions they would like to address Mr. Weaver while he welcomes those questions, he would love — he would welcome the opportunity to answering questions the Court might have to direct to him, although he does not anticipate making any part of the argument.

I would like first to address my argument to this matter of the exhaustion of state remedy.

We of course have the basic case Brown versus Allen that a petitioner must have exhausted the available state remedies before he is permitted to go into the federal courts.

That case of course is supported by statute dated 28 U.S.C. Section 2254 which sets out that prerequisite.

And in the Seventh Circuit, we have the case of United States ex rel. Touhy versus Ragen decided in 1955 by Chief Judge Duffy, as Chief Judge Duffy wrote the deciding opinion in that case.

And that statement was again reiterated by the Court at the — and remedies must be exhausted.

Now, I’d like to point out here, I believe Chief — or Justice — one of the justice, I can’t recall which one.

One of the justices through this bench addressed a question to Mr. Lockyear concerning the — whether or not the remedies had been exhausted.

Now, it is our position that the remedies have not been to this day exhausted.

The mere fact —

Felix Frankfurter:

I think that there is a remedy available.

Richard M. Givan:

It does not, Your Honor.

Because as was held by —

Felix Frankfurter:

Or that is was waived.

Richard M. Givan:

It maybe waved, that is the question.

It is — it’s either been exercised, it exists today, or it has been waived in the past.

Richard M. Givan:

In all three situations, you come up with the same answer.

Felix Frankfurter:

Yes.

Richard M. Givan:

And I —

Felix Frankfurter:

Which is it in this case?

Richard M. Givan:

It is a waiver in this case.

The remedy —

Felix Frankfurter:

(Voice Overlap) because of the escape?

Richard M. Givan:

Of the escape, Your Honor.

Yes, sir.

Felix Frankfurter:

That raises the — I hope you will address yourself to this as to — to that a problem.

Namely, it really gets down — by the way, that — that’s a rule of your court, isn’t it?

That’s not a statute that an escapee has no right of appeal.

Richard M. Givan:

No, that is not a statute.

It is a rule of our court following this Court.

Felix Frankfurter:

Yes, very well.

So this is — is the law of Indiana.

Richard M. Givan:

That is correct, Your Honor.

Felix Frankfurter:

Would you please consider the unavailability of a remedy to an escapee, although confess it or concede it for purposes of the argument?

There may have been denial of — of constitutional right of United States constitutional rights at the trial resulting in the burden.

Will you please consider that question that — because escape cuts off the opportunity to review those in the state court, and therefore, bringing into play, the non-exhaustion of state remedy.

Will you please consider that in connection with the Mooney decision of this Court, that although a State may not affor relief for subsequently proved prejudice, these are all the record.

If the State doesn’t give such relief, such relief may be had in the federal courts.

Richard M. Givan:

I will, Your Honor.

Felix Frankfurter:

All right.

Richard M. Givan:

Let us start with the presumption, for the sake of argument that Leslie Irvin was denied due process of law in the trial court.

At that time, the State of Indiana afforded an adequate remedy if that were the situation.

He had, from the rendering of the verdict of guilty by the jury.

30 days within which to address a motion for a new trial to the trial court setting out the specifications assigned — assigned for new trial.

The petitioner then following 30 days, he — let’s assume that he would file such a motion for new trial.

William J. Brennan, Jr.:

Well, he did.

Richard M. Givan:

He did, yes.

William J. Brennan, Jr.:

(Inaudible)

Richard M. Givan:

Yes, yes Your Honor, it was.

William J. Brennan, Jr.:

Here under the Supreme Court of Indiana although he filed (Inaudible) of all the necessary proscribed (Inaudible)refused to hear him but we’re assuming he escaped.

Richard M. Givan:

He escaped.

That’s right, Your Honor.

Now, if I may take this, the hypothetical and — and carry through that he would file his motion for new trial 30 days, the Court would rule on that motion.

Let’s assume not the Irvin case but a case that was — where they — there’s no question about filing a motion for new trial within the time, to file his motion 30 days.

He then has 90 days within which to file a transcript in the Supreme Court.

The Supreme Court then would consider his appeal based upon an assignment of error which act as a complaint in our Court on appeal.

The assignment of error, one of those things which may be assigned is the ruling of the Court on the motion for a new trial.

Now, that was the situation — that situation would afford a remedy in Indiana to any person convicted as Leslie Irvin was.

Now, let us examine the facts to see why the State maintains that Leslie Irvin did not afford himself of that remedy.

The conviction or the verdict of the jury was rendered on the 19th day or the 20th day of December of 1955.

The last day for the filing, as had been pointed out here, where — of a motion for new trial was on the 19th day of January 1956.

On the 18th day of January 1956, Leslie Irvin escaped, and I insist on using those words if I may digress for a moment here and — and that time.

There, the time element was regulated by snowfall which — and there were no tracks and so the time was fairly well fixed as before midnight.

Leslie Irvin manufactured, if you please, a key from cardboard and so forth and — and opened the locks of the jail door.

Now, about that, I — I realized it’s outside of the record, but if I may say it to explain the language of his letter that his — his letter in stating that he had done the wrong thing and he would return was a letter written advisedly knowing that everyone concerned was well aware of the factual situation concerning his escape and his absence in the Court.

Now, the question was raised, “Is the letter the only evidence of his escape?”

We say that the letter is not the only evidence to — it’s in — in this record.

It is not the only evidence, Your Honor.

The sheriff of the Court who had charged of the man and who is an arm of the Court and a duty to inform the Court of the goings on concerning the custody of the prisoners, did in open Court and it is in the record, informed the Judge on the two occasions that the defendant was absent and that he had escaped from the jail, his whereabouts were unknown.

Now, Leslie Irvin therefore escaped on the 18th of January.

On the morning of the 19th of January, his attorney’s appeared in Court to present the motion for new trial.

Simultaneously, the sheriff appeared in Court and informed the Court the defendant was gone.

The attorneys, nevertheless, filed the motion for new trial.

Now, they say that no question was raised concerning their ability to do that, that it was not objected to, they had no right.

I’d like the Court to bear in mind the time had not yet expired.

This was the last day, but it was early in the last day.

Richard M. Givan:

It’s presumed — presumed I — I believe that if Leslie Irvin hadn’t shown up voluntarily or involuntarily and being presented in court sometime that day, that he would have been before the Court and would have had a proper motion before the Court.

So the Court I think rightly entertained the motion and took it under advisement at the time it was filed.

Now, later on the 23rd of January, the Court again took the matter up, again the sheriff came in and advised that this man was not yet in custody.

He was still at large.

At that time, the letter which we have just discussed was put in the record.

And there upon, the Court overruled the motion for new trial.

Now, and we take the position that that was all he could do under the circumstances, under the authority as Indiana has two old cases on it and which are cited in my brief at page 11, Sutherland versus State and Sargent versus State.

And incidentally, Sargent versus State is quoted in Allen versus Georgia by this Court, quoted with approval to the proposition that a person — while an escapee has no standing in court.

Now, later, the petitioner was arrested in California, was returned to the State of Indiana and started his time or — well, he didn’t start time, this is a death sentence.

He was incarcerated way out to a week, the death sentence in the Indiana State Prison.

Within time, the attorney as concerning and considering the extensions of time which were granted by the Court.

The attorneys for Leslie Irvin filed their record in the Court.

Now, it is true that still no objection to their so filing of the record was made by the State of Indiana.

They were permitted to file that record and address a brief to that record to the Court.

We, in turn after an extension of time which I think is quite understandable, even of the voluminous nature of his brief, filed our own brief.

And the first proposition which we set forth in the brief is for his proposition which we must consider here.

Did Leslie Irvin file a proper motion for a new trial, the assignment of error.

The only assignment of error in the Supreme Court of Indiana, was the ruling of the Court on the motion for new trial.

We took the position that the Court ruled properly in overruling the motion for a new trial because Leslie Irvin was not before the Court.

Now —

Potter Stewart:

There had never been a motion to dismiss that motion for a new trial, I think.

Richard M. Givan:

There had never been.

No, sir.

We felt that at that time it was filed that no one knew whether Leslie Irvin would be back in Court before the time it expired and of course there is a — may be a hazy feel whether — I don’t know of any case that says irony on the matter as to where — if he had been returned afterwards but before the court ruled on it, and was brought before the Court because it was filed.

And that — that’s a question that we don’t need to deal with here, but it was a question that we were faced with at that time as to whether we would address a dilatory motion to it.

And due to the severity of the punishment here, we felt that every opportunity should be given to be heard as because it went along.

Now —

Hugo L. Black:

Excuse me, may I ask you this question?

Richard M. Givan:

Yes, Justice Black.

Hugo L. Black:

Suppose, when he started making the allegations of — on the constitution of conviction that he did, he had alleged that there was mob domination of the trial.

Hugo L. Black:

That was in the record that was shown by the record to some extent and the Court refused to consider it on the ground that he was an escapee.

Would that be an adequate State ground so that the federal court could not issue a writ of habeas corpus?

Richard M. Givan:

If I understand your question correctly that we have the same factual situation concerning the filing of motion for new trial but we’d — we had —

Hugo L. Black:

The same thing is here except that the he alleges mob domination, trial under mob domination.

Richard M. Givan:

We think it is all the same, Your Honor that he must have exhausted the state remedy —

Hugo L. Black:

In the —

Richard M. Givan:

— that he had to this mob trial that he —

Hugo L. Black:

And — and he couldn’t do it because he escaped.

Richard M. Givan:

That is correct.

Hugo L. Black:

But what do you say about Moore versus Dempsey on that regard?

Moore versus Dempsey was the case in which the State refused to consider this ground alleged on the constitutionality on the ground that it came too late.

It was insisted that that was inadequate state ground, a denial of habeas corpus.

This Court in the opinion, Mr. — Mr. Justice Holmes tell that that was not true, that he could raise this constitutional question even though the State ruled, did say he couldn’t.

What’s the difference in principle between that case and this one?

Richard M. Givan:

Well, I’m not prepared to state an actual difference in principle with the two cases.

I can only state the proposition —

Hugo L. Black:

Both alleged the depravation of constitutional rights.

One mob domination and the other is the series of actions in the charge ruling.

Richard M. Givan:

I think —

Hugo L. Black:

In each instance, the — there, they defended — they said that the federal courts couldn’t consider it because there was an adequate — it was disposed off on an adequate state ground.

Here, you say that federal courts cannot consider this because as to — disposed off on an adequate state ground.

If Moore versus Dempsey was right, how can you defend your position here?

Richard M. Givan:

I’m not prepared really to — to compare the two cases and such I’m not fairly conversant with the — in the factual situation you have stated, Your Honor.

That in the Moore versus Dempsey case the —

Hugo L. Black:

What the — what the State said was there, that in substance, it would be absent of the sufficient directive process afforded by the state courts.

The person was held under a death sentence.

Said — that fact showing a conviction resulted from a trial denying due process.

The Court said that that could be raised in a federal court even though state court refused to do it because the appeal was too late.

Richard M. Givan:

Well, if that is the true holding in your Court, Your Honor, I would have to take issue with it because I don’t think that is the true state of the law.

Felix Frankfurter:

We have a later case — later case —

Richard M. Givan:

We have the case —

Felix Frankfurter:

We have a later case in which — and even a murder case was filed a day too late.

And this Court said, “That’s too bad but we can’t do anything about it.”

And that was a very strange decision but there it is.

Richard M. Givan:

We have the later case also, Your Honor, of Mitchell versus Louisiana.

I would like at this time to discuss the Mitchell case in which Mr. Justice Black, he dissented believe.

In — in Mitchell versus Louisiana, we had a situation of escape and a waiver (Inaudible) and Mr. Justice Douglas also dissented and Mr. Chief Justice Warren I believe concurred without opinion in that — in those dissents.

But the —

William O. Douglas:

As — as I recall, it was the escape pending trial, was it?

Richard M. Givan:

It was in a escape actually before arraignment, Your Honor.

William O. Douglas:

Before arraignment, yes.

Richard M. Givan:

And that is the point that we wish to make here that in — I feel in the Mitchell case which was decided in 1955 that this Court clearly stated that the man having escaped and — that he had no standing in court.

And the — there, the dissenting opinions were grounded I believe on the fact that the man had escaped or hadn’t escaped really, he had fled the jurisdiction of the State before arraignment and had never had an opportunity to challenge the grand jury.

This was a question of challenging the grand jury, had — never had the opportunity to challenge the grand jury.

And he then later was arrested and returned to Louisiana and they claimed he was too late to challenge the grand jury.

There again, the question of whether the state remedy came too late.

And the dissenting justices held that he was — had never had the opportunity to raise that question because he had not been taken in custody and that there was a good likelihood that he had — did not know that he was charged by this grand jury until he was brought into custody and it was too late.

We would like to submit to the Court that there is a very different situation in the Irvin case here that Leslie Irvin was before the Court, was represented by a competent counsel at the trial, consulted with a competent counsel that they did attempt to afford him every remedy.

And it was Leslie Irvin who by his own act chose to remove himself from the jurisdiction of the state courts.

Hugo L. Black:

But what he — what the situation as Leslie Irvin is that he alleges that his life is about to be taken.

Richard M. Givan:

That is right.

Hugo L. Black:

— under a conviction which was rendered in violation of due process of law.

And if that situation, you — under the Federal Constitution, because that situation, you have to make.

Richard M. Givan:

That’s right, sir.

Hugo L. Black:

Whether the fact that he was not there, the State had a rule, they wouldn’t consider his appeal, means that he has forfeited his right to have his federal constitutional rights protected in the federal courts.

Richard M. Givan:

I think it has under Brown versus Allen in 1953, this Court held that and it is held that not only the remedy —

Felix Frankfurter:

Which part of Brown and Allen?

You mean the exhaustion of remedy?

Richard M. Givan:

The exhaustion of remedy.

Felix Frankfurter:

Well, but — aren’t we sort of — well, using an undistributed middle when you say he hasn’t exhausted his remedy when he couldn’t exhaust it.

Felix Frankfurter:

But there’s no —

Richard M. Givan:

He could have it.

Felix Frankfurter:

There’s no non-exhaustion of a remedy that isn’t opened and he could have it if he haven’t — if he haven’t been an escapee.

But the State says an escapee can’t avail himself of this remedy.

They say it’s — that’s non-exhaustion.

That’s inability to exhaust but it is non-exhaustion.

Richard M. Givan:

Maybe I should back up and get back to the habeas corpus remedy.

What is the habeas corpus remedy?

I think this Court and the Indiana courts have long held, and I think without any dispute that the habeas corpus writ may not be used as a — an appeal.

Felix Frankfurter:

That explains why in Indiana, you provide — he has no remedy by a virtue of habeas corpus.

Richard M. Givan:

That is right.

Felix Frankfurter:

But it doesn’t explain why he’s shut out from having these constitutional questions considered by your Supreme Court, except on the ground that he’s an escapee.

Richard M. Givan:

He had the right.

Felix Frankfurter:

I can well understand and I have no trouble what the State say that you can’t raise on the habeas corpus but you could’ve raised on appeal.

But here, he couldn’t have raised it on appeal.

He wasn’t allowed to raise it rather because he is an escapee.

Richard M. Givan:

But our point is, Your Honor, he could have.

The State — rather, he’s afforded.

Felix Frankfurter:

If he hasn’t been an escapee, he could.

Richard M. Givan:

He — he could have raised them and I take it, even though he had escaped.

That — that — the escape does nothing, Your Honor.

If he had returned to the jurisdiction of the Court within his 30 days and filed a motion for new trial, he would have — he would have been there within the 30 days.

And the fact that there had been an escape and the interim would have been of no harm.

Felix Frankfurter:

Is that your law?

Richard M. Givan:

I believe it is, Your Honor.

Yes.

Felix Frankfurter:

So that you do not deny the right of appeal to a convicted defendant merely because he escapes?

Richard M. Givan:

No, sir.

That — we have no case directly in that — on that point.

But following the federal authorities and following the two Indiana cases on that point, we take — there is no statement in the — in any of those cases indicating that the escape itself does anything to this man in (Inaudible).

Richard M. Givan:

That the only proposition is that at the time he is asking a court to act in his favor, he must be subject to the jurisdiction of that court.

And if —

Potter Stewart:

Mr. Givan, then — then you have no case but you certainly have the Indiana Supreme Court’s opinion in this case (Voice Overlap) —

Richard M. Givan:

Oh yes, yes, Your Honor.

Of course.

Potter Stewart:

And didn’t that Court view the question as you suggest as one of — as one standing, one of the —

Richard M. Givan:

Absolutely.

Potter Stewart:

I — I’m reading, I think I assume a direct quotation from the opinion of the Indiana Supreme Court.

They said, “Cynthia Talbot had no standing in court at the time he filed a motion for a new trial.”

The situation is the same as if no motion for a new trial had been filed or he had voluntarily permitted the time to expire for such filling.

Now, by equating the petitioners absence with having escaped — with voluntarily having permitted the time to expire for such filing, doesn’t the Indiana Supreme Court itself bring this case very close to Moore against Dempsey?

Richard M. Givan:

Well, they have done this.

They have said that at the present — at — now, no remedy exist.

They don’t say that there never was right now.

I come back to the Moore versus Dempsey as it’s been stated here that Moore versus Dempsey said that there was one time a remedy.

But in Indiana, this — this man did have a remedy.

And if that is the holding in the Moore versus Dempsey case, I — I suppose this does, this brings it fairly close to the — to the situation.

Potter Stewart:

It wasn’t the reasoning of the Indiana Supreme Court —

Richard M. Givan:

Right.

Potter Stewart:

— as to the effect of this man having escaped.

Richard M. Givan:

That’s right.

Now, let me make — I think there’s a —

Felix Frankfurter:

And supposing — may I ask this for me to clarify.

Suppose he hadn’t escaped and he just let the time run.

Richard M. Givan:

The same situation would prevail, Your Honor.

Felix Frankfurter:

And therefore the question is, then could a man at the time run, Moore — Brown and Allen was a case where I believe — who I believe, negligence of counsel.

There’s a failure to file a notice of appeal until the 31st day.

And this Court held there it is that — that the State may put a limitation upon the time where the mentioned appeal may be taken.

Now, if this fellow haven’t escaped and he let the 30 days run, you would say, “You haven’t availed yourself of the procedural provisions that State makes for an appeal.”

Richard M. Givan:

That is right.

Felix Frankfurter:

And the question is whether the fact that he has escaped puts him in a more favorable position than if he hasn’t escaped.

Richard M. Givan:

No, I don’t — well, I think that could be a question, yes.

Felix Frankfurter:

Yes.

Richard M. Givan:

But I don’t think that it does.

I think that —

Felix Frankfurter:

Well, I mean that — then we — we have to take that question.

Richard M. Givan:

Yes, sir.

Hugo L. Black:

(Voice Overlap) —

Potter Stewart:

(Voice Overlap) then you put him in the same position.

Richard M. Givan:

That’s right.

Potter Stewart:

As though he left — left the time.

Hugo L. Black:

Even though he escapee’s counsel tried to get the appeal.

So the —

Richard M. Givan:

His counsel are completely without clause, Your Honor and then —

Hugo L. Black:

In time — in time.

Richard M. Givan:

I think he — he’s — he has been adequately represented.

Hugo L. Black:

I say he — he tried to get the — there in time the counsel in Brown and Allen was negligent from getting them.

I did not agree to Brown and Allen.

I’ve said it’s very vigorous as It’s to others, here.

But on three (Voice Overlap) —

Felix Frankfurter:

Four.

Hugo L. Black:

Three or four under it.

But there is this difference as of there, the Court put it on the negligence of counsel, yes.

Impossible to put on the negligence of the counsel.

Felix Frankfurter:

Was there in fact — I ought to know but I don’t.

Was there in fact on the test made by counsel on behalf of Irvin to come within the 30-day rule?

Richard M. Givan:

They did come within the 30-day rule, Your Honor.

William J. Brennan, Jr.:

They filed.

Richard M. Givan:

They filed within the 30-day rule —

Felix Frankfurter:

So that — so that there was a compliance with the state law where some nugatory by the fact that he was an escapee, is that it?

Richard M. Givan:

That is correct, Your Honor.

Counsel did everything that was physically possible for them to do.

Felix Frankfurter:

Well, that was the different situation from Brown and Allen.

There was a meeting that — that the State requirement was met.

Richard M. Givan:

It was —

Felix Frankfurter:

But — but the Indiana Supreme Court says, “It isn’t met because we don’t entertain an appeal while the fellow has escaped.

Richard M. Givan:

That’s what it amounts to.

That is — as far as counsel was concerned, it was met.

As far as Leslie Irvin was concerned, he was not before the Court and they refused to consider the motion for new trial.

Felix Frankfurter:

Therefore, do I understand you said there’s no case.

I mean you just made the statement, that if he comes back within the 30 days, the appeal would have been entertained, the motion for new trial.

Richard M. Givan:

I would take that position although there’s no case over that fact.

Felix Frankfurter:

Then therefore, that’s supposed to mean whether — although on his behalf, proper steps were taken within the time, and eventually, did come back.

Is that all (Inaudible) by — by the fact that while the steps were taken, he was out of the jurisdiction.

That’s really the — we’ll get down to that narrow point in the decision.

Richard M. Givan:

We get down to the fact that he — his appeal was predicated upon the court’s ruling on the motion for new trial.

And the Court overruled the motion for new trial for the reason that the man was not before the Court.

That’s what we get right —

William J. Brennan, Jr.:

Did the trial court file a memorandum when the — what did they do?

Denied the motion or dismissed the motion?

Richard M. Givan:

They denied the motion.

William J. Brennan, Jr.:

Denied.

Richard M. Givan:

Overruled.

And I should use the exact (Voice Overlap) —

Felix Frankfurter:

Suppose the trial court —

Richard M. Givan:

— overruled the motion.

Felix Frankfurter:

Suppose the trial court had done what this Court did in Eisler, held the case, hadn’t ruled on it.

Richard M. Givan:

He did for a few days, Your Honor.

He held that’s been (Inaudible)

Felix Frankfurter:

But suppose he held it without — suppose there had been no cut off within the statutory period and then Irvin would have come back.

Felix Frankfurter:

Would you be here on your — on your understanding of Indiana law saying that he had no right of appeal?

Richard M. Givan:

I seriously doubt that we would, Your Honor, although I mentioned that earlier.

Irvin and I are happily we’re not faced with it.(Voice Overlap) —

Felix Frankfurter:

Yes, I understand.

Richard M. Givan:

But if the Court had — and just to have it, well, let’s say, the Court ruled on — on (Voice Overlap) —

Felix Frankfurter:

That’s submitted in the Heisler case.

That’s what the Court did in the beginning.

Suppose it’s this Court and Heisler escaped — Is this Heisler.

Richard M. Givan:

That is in Eisler.

Felix Frankfurter:

When Eisler escaped, this Court then just held the appeal which has been — about to rely after what we saw.

Now, suppose your — your courts have done that, held it.

Richard M. Givan:

I can —

Felix Frankfurter:

There has been a proper — a proper availing of the local remedy within the time the Court held this and then Irvin returned after the filing.

Richard M. Givan:

I take it —

Felix Frankfurter:

You would have — you would — you would indicate that — you indicate that you wouldn’t then make the point you’re now making, is that right?

Richard M. Givan:

Certainly not the way I’m making it now.

No.

I — my point is that he was absent when the Court purported to act on his motion for new trial.

William J. Brennan, Jr.:

Well, may I — do I understand that on the chronology, Mr. Attorney General, the — that his actual firing was on what, the 19th of January —

Richard M. Givan:

The 19th, that’s correct.

William J. Brennan, Jr.:

— which was the 30th day, was it not?

Richard M. Givan:

That’s correct.

William J. Brennan, Jr.:

And he was brought back from California on what day?

Richard M. Givan:

I don’t know the exact day, Your Honor.

It was several weeks later.

He —

William J. Brennan, Jr.:

Several weeks within the couple of months, was it?

Richard M. Givan:

It’s something like that, yes.

I don’t know the exact.

William J. Brennan, Jr.:

Then if I understand you.

William J. Brennan, Jr.:

Had the trial judge not acted on the 23rd, four days later, but had simply sat on the motion and held it until after — for eight or nine weeks, the issue we now — that now confronts us wouldn’t be here.

Richard M. Givan:

With — would at least not have a strong a case as we have.

I — I have no authority for that.

William J. Brennan, Jr.:

Well, I gather, you’re telling me that if that had been in the situation under Indiana law, your Indiana Supreme Court, I would then have passed upon all the — or rather the trial judge would have passed upon the motion, would he not, on the merits?

Richard M. Givan:

I think that he would have.

Although I have no real way of knowing that.

There is not an issue in this case and it was — and there is no authority on that precise factual first situation.

Potter Stewart:

What — what you do know is what the Indiana Supreme Court held to be the law of Indiana —

Richard M. Givan:

Yes, sir.

Potter Stewart:

— under these circumstances.

Richard M. Givan:

Yes, I do.

Potter Stewart:

You’re telling us you don’t know what they would have held if the law of Indiana came —

Richard M. Givan:

That’s correct.

Potter Stewart:

— under the supposititious circumstances.

Richard M. Givan:

I am in —

Charles E. Whittaker:

(Inaudible)

Richard M. Givan:

That’s what they held, Your Honor.

Charles E. Whittaker:

(Inaudible)

Richard M. Givan:

Maybe I should explain myself a little more thoroughly here, if it please the Court, that Indiana has a procedure whereby a man can file a belated motion for new trial.

This 30-day period is a — a statutory period, but the Court in his discretion upon matters addressed to him made grant additional time, a belated motion for new trial.

And had the judge held that and waited until the man returned, it’s conceivable, he should — he could have awarded an order saying that he has treated this as a belated motion for new trial and handle it very easily.

And I think the inference would have been that if he had purported to act it on — upon the merits, it would — that would have been the situation, but we don’t have that.

William J. Brennan, Jr.:

Tell me where — I think you told us that this rule not to hear such motions when the applicant has escaped.

It is a rule of the Supreme Court, is it?

I mean, well, how is that recorded?

Richard M. Givan:

It — it’s not a — it’s a — it’s case law, Your Honor.

William J. Brennan, Jr.:

It is case law.

Richard M. Givan:

Yes.

We have the two cases, Sutherland versus State of Indiana.

They’re cited in my brief at page 11 and Sargent versus State.

Richard M. Givan:

And that the Sargent versus State was cited in Allen versus Georgia by this Court with approval and it’s a well-established principle of law again reiterated in —

William O. Douglas:

When do you say to the argument that after saying all that, the Supreme Court did go ahead and reviewed the case on the merits?

Richard M. Givan:

I don’t think they did, Your Honor.

I think Justice Finnegan of the — Judge Finnegan of the Circuit Court of Appeals makes the most astute observation of that.

He —

William O. Douglas:

What they said was, “We have — because of finality of the sentence, we have reviewed the evidence to satisfy ourselves that there’s no miscarriage of justice in this case.”

Then they go on to review the — the matter as you know point my point.

Richard M. Givan:

I — even though they said that, I think Justice Finnegan of the Circuit Court of Appeals is correct when he says that what they said in regard to the merits was dictum in the case.

I — I think that is obvious because they did say that he had no standing in court.

And that was — that’s — was finality.

Then they went ahead and said at — as though to — went outside their feeling or wherever you want to put it.

Here’s a man that’s going to die and I know from my own small part in this, it’s no easy thing to address yourself to a case where a human life is at stake and I — I can understand the reluctance.

But would — wouldn’t the Supreme Court’s opinion at least indicate this much.

If they had filed this, there had been a serious violation to this man’s constitutional rights.

It’s non-constant to their escapee rule, they would have had power to review it.

It indicates that much, doesn’t it?

Richard M. Givan:

It does, Your Honor and there again, the — the belated — the post-conviction remedies that Indiana affords, they — not only can the trial court entertain a belated motion for a new trial, the Supreme Court can entertain a belated appeal.

And they could, I take it, have treated this as though it were a belated appeal or sent it back and ask — order the trial judge to entertain a belated motion for new trial, but they didn’t treat it in that fashion.

So that — so that really, you — you would agree then that what they in effect did was to say, “After looking at this record ourselves, we do not consider this as a case where we have to reach the question as to whether we should or should not exercise our discretion the way of our own state rule.

Richard M. Givan:

That’s correct.

Is that it?

Richard M. Givan:

They had not been asked directly to do that but because I think — I don’t think they would have done it in the ordinary case but because in a capital case, I think they took requirements out to do that.

Now, I’m only presupposing what the Court had in mind.

Hugo L. Black:

What’s your limitation of time for a motion for rehearing, in your — before the Supreme Court?

Richard M. Givan:

Before the Supreme Court, it’s the petition for rehearing that I — in — before the Court, 20 days.

Hugo L. Black:

Are — are the parties limited to one?

Richard M. Givan:

Well, I — I don’t quite understand you, Your Honor.

Hugo L. Black:

One petition for rehearing.

Richard M. Givan:

One petition to rehearing, yes.

We —

Hugo L. Black:

Suppose — suppose they make a petition, a second petition for rehearing.

And I presume that Indiana as in all the other states, while they don’t usually take them.

Sometimes they do and they discuss the —

Richard M. Givan:

That’s correct.

Hugo L. Black:

— the merits of that.

Richard M. Givan:

You see —

Hugo L. Black:

And under those circumstances, that’s not considered it’s final, is it until they have —

Richard M. Givan:

That’s right.

Hugo L. Black:

— until they find that on the second petition?

Richard M. Givan:

That’s correct, Your Honor.

See, the rule —

Hugo L. Black:

It’s that about what they’ve done here in this case if even though they have a rule, they’d gone ahead, considered the merits as they would have on the second petition to rehearing sometimes?

Richard M. Givan:

Not directly.

Hugo L. Black:

We frequent — we frequently bring those up on the ground that although the Court didn’t have to act on it, it did.

Richard M. Givan:

No, Your Honor.

See, no motion was addressed to them.

I — I say that —

Hugo L. Black:

But whether the motion is — motion — some kind of motion to get them to consider the merits of this case and they did it.

Richard M. Givan:

Well, they — they recite — they reviewed them, Your Honor but I —

Felix Frankfurter:

Well, then that’s —

Richard M. Givan:

I feel —

Felix Frankfurter:

(Voice Overlap) consideration isn’t it?

You — you can’t get away from the fact if they considered the merits and the only one.

On the merits, a man was not entitled to get out, not entitled to (Inaudible).

Isn’t that what they held?

Richard M. Givan:

They said that, Your Honor, yes.

But — but —

Hugo L. Black:

And they — you don’t deny they had the power to do that if they wanted to, do you?

Richard M. Givan:

No, I don’t deny that they would have had the power —

Hugo L. Black:

Acting within their power, they considered this on the merits and said the merits do no justify granting (Voice Overlap) —

Richard M. Givan:

I — I think this, Your Honor.

I say they had the power.

I think with proper exercises of the judicial power, that power would have been exercised in conjunction with the motion to that effect if they would have entertained the motion approximate to that effect but they didn’t.

That (Voice Overlap) —

Hugo L. Black:

They did, afterward, the motion, did they or if they had the case before them and considered it as what they did.

Did they go beyond their power in doing what they did, because there was no motion?

Richard M. Givan:

Well I again, track back to Judge Finnegan’s opinion.

I think he’s correct in saying they —

Hugo L. Black:

I’m not talking about dictum but I’m talking about what they did and what they passed on and what they considered.

Richard M. Givan:

Well, I think —

Hugo L. Black:

The other is a label.

Richard M. Givan:

I think what they did passed on and considered, Your Honor, was the fact that he was an escapee at the time he filed his motion for new trial.

Hugo L. Black:

You don’t think they considered the other at all.

Richard M. Givan:

They didn’t discuss it at any length or — or any —

Felix Frankfurter:

(Voice Overlap)

Richard M. Givan:

They just — they make up a statement, a — a cover all statement concerning the merits.

They don’t take them one at a time and say, this is no indication that they actually examined all of the assignments.

Hugo L. Black:

They said they had looked at them and found there was no good, isn’t it?

Richard M. Givan:

They said that.

Well, they considered a little more to that.

They said that this being a final — final judgment as they call it, capital case.

They’d scrutinized the record and that they reached the conclusion that there was no substance for the constitution question.

Richard M. Givan:

That’s what they said.

So if you take it at face value, that he did a conscientious job on what the record satisfy themselves before they hear it to their state ground, state rule that there was not a violation of constitutional right.

Richard M. Givan:

They did.

Do you have to go that far, surely.

Richard M. Givan:

If I might, I would like to address my remaining time to the — what little there is to the question of the merits of this case arrived here.

I take it that — not that this first question isn’t of the merits actually but that — to the question of the procedures in the trial court.

Now, the first question that is raised in that respect is a question on the voir dire examination.

Mr. Lockyear read a — a few of the excerpts that they have incorporated in their brief.

Richard M. Givan:

Unfortunately, this record as you know, is not printed and we have their excerpts.

We have placed a few more excerpts in our brief starting at page 15 and continue on to page 22.

And those are only exemplary to this — the — the bulk of this big record, this voir dire examination.

And to go into all this would have been quite voluminous as far as the briefs are concerned.

But with what we have pointed out in our brief and that the citation is therein contained, we respectfully submit to the Court that the portions questioned by the petitioner here are small portions of the voir dire examination occurring early in the examination of these particular witnesses that there are, is much more in the record, contained on the subject that the — the prospective jurors were examined at length that they demonstrated confusion as to the state of law and that they did qualify under the Indiana statute on that subject.

Felix Frankfurter:

Are you — are you — I’d like to infer from what you’ve just said that what it set forth in the petitioner’s brief about Juror (Inaudible) is not a representative portion of the examination of him?

Richard M. Givan:

It is not the complete story, Your Honor.

And for — I think there again, we have no record to refer to.

But I would refer the Court to pages in the record that that was continued on in transcript volume 5 page 3659, this citation appears on our brief.

Felix Frankfurter:

36 what?

Richard M. Givan:

3659.

Felix Frankfurter:

Then the originals here before us.

Richard M. Givan:

Yes.

Felix Frankfurter:

36 what?

Richard M. Givan:

59.

Felix Frankfurter:

Thank you.

Richard M. Givan:

Line 19 to page 3667, line 5.

That citation, Your Honor, is set out in our brief at — on page 16 in the middle of the page.

And a summation of what is contained therein appears just ahead of that in our brief.

And we take the position that the record clearly discloses there that Juror Hensley was qualified under the statute in Indiana.

We also take the position, Your Honor, that this is —

Felix Frankfurter:

It expressed that — expressed that under the statute of Indiana.

Richard M. Givan:

Yes, Your Honor.

Felix Frankfurter:

Is that anything — it is (Inaudible) are we special about Indiana statute as qualifications of jurors.

Richard M. Givan:

I think not, Your Honor.

I think it’s something that’s absolutely essential to the qualification of jurors.

We — in the case of Reynolds against United States, that’s referred to in — by Judge Parkinson, has the District Court opinion on this case.

That’s in 98 United States 155, United States Report.

The principle was laid down — was stated that in this year or — and this was in 1879 that they — and certainly if it prevailed and it prevails today, they said there that in this era of fast communication and public information and so forth that people must, by necessity, be informed of the happenings in their community.

And that goes and states why jurors must be qualified although they may entertain some opinion as to what transpired in this particular instant that they nevertheless must be qualified or — and must — State must be permitted to qualify them to try a case.

Richard M. Givan:

Now —

Earl Warren:

We’ll recess now.

Mr. —