Irvin v. Dowd

PETITIONER:Irvin
RESPONDENT:Dowd
LOCATION:Roosevelt Bar and Tavern

DOCKET NO.: 63
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 359 US 394 (1959)
ARGUED: Jan 15, 1959
DECIDED: May 04, 1959

Facts of the case

Question

  • Oral Argument – January 15, 1959 (Part 1)
  • Audio Transcription for Oral Argument – January 15, 1959 (Part 1) in Irvin v. Dowd

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

    Richard M. Givan:

    — for recess, we’re discussing the jurors.

    Now, I would just again stress that we most strongly feel that it is necessary to examine the entire voir dire examination of the jurors who did serve and those jurors — or the jurors who are questioned, I should say, and those jurors are set out in our brief starting at page 15 and thereafter.

    And comments and citations to the direct comments upon and citations to the record concerning their voir dire examination are contained there.

    And I think, at most, I can serve as an — serve an index for you to the record in this case.

    How many of the 431 jurors that were originally called for excuse by the Court because they formed fixed opinions about the case?

    Richard M. Givan:

    It was over 200, Your Honor.

    Over 200?

    Richard M. Givan:

    I can’t state the exact number, but I think it was over 200.

    Felix Frankfurter:

    How long — how long was the total examination of jurors before the jury (Inaudible)

    Richard M. Givan:

    It was in the nature of two weeks, Your Honor.

    Attorney:

    Four.

    Richard M. Givan:

    Four weeks.

    Felix Frankfurter:

    Four weeks.

    Richard M. Givan:

    I beg your pardon, it was four weeks.

    This was quite —

    (Voice Overlap) —

    Richard M. Givan:

    — lengthy.

    This record largely consists of the voir dire examination, and it is near 6000 pages.

    (Inaudible)

    Richard M. Givan:

    I don’t know the exact time on that.

    Again, I refer to trial counsel.

    Attorney:

    It’s about a week.

    Richard M. Givan:

    About a week he says —

    Felix Frankfurter:

    So, we can get a jury in one week to get the fact.

    Richard M. Givan:

    That’s correct.

    Now, we submit that after an examination of this record concerning the qualifications of these jurors, it would become evident to the Court that the jury or each member of the jury who actually sat in this case was qualified under the Indiana statute, that the Indiana statute is a statement in the Reynolds — of the Reynolds case.

    Actually, the reasoning is set out in the Reynolds case that — that is a necessary view under our present civilization.

    We — it’s impossible to keep things of this matter out of the newspapers.

    I think it would be unadvisable to keep them out of the newspaper.

    Now, we often know — we all know of instances where newspapers may go too far and try to use their own influence, but as far as a factual reporting in what does occur, I think, is absolutely essential to the type of civilization which we live.

    Richard M. Givan:

    I think it has a very significant benefit to —

    Felix Frankfurter:

    To — to spread out before the community, out of which impartial men are to be selected what is or may not be prudent or may not be allowed to be prudent at the trial.

    Richard M. Givan:

    I —

    Felix Frankfurter:

    Do you think that’s center of that civilization?

    Richard M. Givan:

    I wouldn’t go that far, Your Honor.

    I said the reporting in news is essential and very often they do overstepped their boundaries.

    Felix Frankfurter:

    (Voice Overlap) a man was indicted he’s charged and visited his lawyer and he plead — and he’s arraigned and he’s going to be tried.

    And that’s a fair account of what takes place.

    That’s the news.

    All the rest is — is exploitation.

    Richard M. Givan:

    I am not prepared to argue against that, Your Honor.

    I think that certainly that they very often do exceed the boundaries.

    Now —

    Felix Frankfurter:

    It is not just a speculation not exploitation.

    Richard M. Givan:

    Now —

    William J. Brennan, Jr.:

    Please tell me, how many of these murders were alleged to have been committed in — in Indiana?

    Richard M. Givan:

    I think only two of the murders in Indiana, Your Honor, the remainder was in Kentucky.

    William J. Brennan, Jr.:

    But I gather all this publicity, those headlines you shown before was murder of six or something like that?

    Richard M. Givan:

    That’s correct.

    You see this — the —

    William J. Brennan, Jr.:

    And confessed to six murders and all that stuff?

    Richard M. Givan:

    Let me explain this very briefly, the physical setup.

    Evansville is in southern tip of Indiana.

    William J. Brennan, Jr.:

    Well, I — I know that —

    Richard M. Givan:

    And the — and murders, although, occurring in Kentucky where in the same community actually, right across the river, and so — although — somewhere in Kentucky and somewhere in Evansville, this is actually a community episode.

    There are series of episodes within a single community.

    But — Mr. Justice Frankfurter makes the — an observation here that they don’t always report it like they should and that’s — I think that’s correct.

    Now, that gets us to the point of the necessity of the statute as it exists here.

    We know we can’t control newspapers absolutely and maybe we don’t want to but we have a faced with a factual situation, what does actually occur?

    Now, we have to presume that those persons chosen for jury duty are literate person.

    Richard M. Givan:

    They — they are persons who read and they listen to radio and watch television in a community.

    We hope that they, at least, have that much intelligence to serve on a jury.

    William J. Brennan, Jr.:

    Do they read anything else from the headlines that were shown?

    Richard M. Givan:

    Now, that’s questionable too, Your Honor.

    William J. Brennan, Jr.:

    Questionable.

    Richard M. Givan:

    We know that —

    William J. Brennan, Jr.:

    And then, what was this?

    A — a nightly broadcast while the trial was going on, interviews and what happened (Voice Overlap) —

    Richard M. Givan:

    I think there is a man in Evansville who has a news program and he sought out and interviewed the attorneys and he talks to various people concerning the trial.

    He observed that I presume himself.

    And — and he made a report and — and news happen as was done on many, many cases and cases that we are all familiar.

    Felix Frankfurter:

    (Voice Overlap) restrained way?

    Richard M. Givan:

    I doubt that, Your Honor.

    But we are faced with that factual situation.

    And so, we — we must speak from a community people who are qualified to try the case.

    Charles E. Whittaker:

    How long (Inaudible)

    Richard M. Givan:

    Oh, no, Your Honor, this is a fairly old statute in Indiana.

    I think it came in about 1905.

    (Inaudible)

    Richard M. Givan:

    But I — I stand up for the statute.

    I think the statute is a good statute.

    It qualified — once a man is qualified — otherwise if — if we didn’t — if we couldn’t qualify a juror in that manner, I submit that we — we have no — we’d have — well, we have two choices.

    We’d have a — an ability to have an illiterate juror that couldn’t read and hadn’t heard any television show and he must obliviously to the facts or we’d have some thought deliberately lied and said they didn’t hear anything and that his mind wasn’t —

    William J. Brennan, Jr.:

    Does that statute provides a standard guide for the judges’ determinations different from what the standard would be without the statute?

    Richard M. Givan:

    I — I just think the statute is a wording of — really, the essential of this — the fundamental reading is laid down in the Reynolds case was laid down about years ago by this Court and that’s all it is.

    It’s just — it’s really a guide for the Court, and I think a very good guide, if I may say so.

    Felix Frankfurter:

    It’s the first choice, Mr. Attorney General, and that is a change in venue.

    Richard M. Givan:

    They didn’t take a change in venue, Your Honor.

    You see, this case was venued from Vanderburgh County.

    This case originated in Vanderburgh County and it was venued to Posey County where the trial occurred.

    Richard M. Givan:

    Gibson County, I beg your pardon.

    William J. Brennan, Jr.:

    But almost across the street for — for the purposes of this case?

    Richard M. Givan:

    Well, it’s fairly close.

    It’s [Laughs] —

    Felix Frankfurter:

    Would it — would it have to be venue in as you call it a adjoining county?

    Richard M. Givan:

    The statute says the most convenient county, Your Honor, the general practice in Indiana is adjoining.

    Felix Frankfurter:

    (Voice Overlap) that means — means geographic convenience, was it?

    Richard M. Givan:

    I take it, I take it.

    It — they — at least we there’s the practice is adjoining counties.

    The statute — the actual language of the statute is most convenient, Your Honor.

    Potter Stewart:

    And the statute —

    Tom C. Clark:

    Was it good you have the authority despite the statute — I understand you have a statute that’s entitled to one — just one change.

    Richard M. Givan:

    That is correct.

    Tom C. Clark:

    The judge, despite that sort of sua sponte, he thought that the venue is not proper there because it’s prejudiced.

    Did he transfer the second time?

    Richard M. Givan:

    Our Supreme Court has held not, Your Honor.

    An attempt was made at that in State ex rel. Fox into Fourth Circuit Court and which was decided just prior to or while this case was really in process.

    And in that case, it was held that the judge could not do that.

    That’s what he had in fact done.

    He had made a finding that there was prejudice in the community and had ordered the venue and the Court said he could not do that and entered a prohibition against him doing such a thing.

    But — and there is a dissenting opinion by one of our best judges in many years, Judge Emmert on that subject.

    He dissents to that.

    And I would refer to his dissenting opinion and submit that that is not the situation here.

    They — they appear — sought to attack the constitutionality of this statute on a change of venue.

    And I would say that although Judge Emmert says that this is improper, he bases his decision on the ground that the judge in that case had found that there was prejudice in the community.

    Therefore, it should have been taken out.

    In the Irvin case, it — the opposite was true.

    The judge made an affirmative finding.

    There was not prejudice in the community.

    He refused to send it.

    Richard M. Givan:

    Well, he didn’t — that’s not exactly true either.

    He followed the statute, I should say, but he refused to put that one.

    He refused to grant the writ.

    Potter Stewart:

    There is also a motion for a continuance of this refusal, wasn’t it?

    Richard M. Givan:

    That is correct, Your Honor.

    Now, that gets us to the —

    Was there any opinion written by the trial courts, reasons for denying a continuance?

    Richard M. Givan:

    No, Your Honor.

    I would like to point out to the Court in relation to the continuance situation.

    First of all, continuance in Indiana, as it is most place, is a discretionary matter, a — an old case Walker versus State, which is cited in my brief at page 25 thereabouts so hold.

    And I think that’s a universal rule.

    Now — and it gets to be a matter then, did the Court abuse his discretion as to whether or not to grant his continuance in this community where possible prejudice exist?

    Now, I would call the Court’s attention to the dates involved here.

    This crime was committed on December 23rd, 1954.

    Publicity, of course, immediately started.

    As you will note from the publications there and this is rather bizarre crime.

    These people were methodically executed following a robbery, a think that was sort of terrifying to the community.

    And they were publicized widely.

    There’s no question about that.

    And that started on December 23rd, 1954.

    Leslie Irvin was arrested on April 8, 1955 as a parole violator not for this crime.

    William J. Brennan, Jr.:

    Was this the last of this series of alleged murder for this trial murder?

    Richard M. Givan:

    No, Your Honor, I don’t believe that it was as far as the — the occurrence is.

    William J. Brennan, Jr.:

    Yes.

    Richard M. Givan:

    I — I couldn’t tell you just to how — for how — what length of period this occurred.

    But the — the arrest of Leslie Irvin occurred on April 8, 1955.

    He was arrested not for these murders but as a parole violator and so held in custody.

    While he was being held as a parole violator, then he was interrogated concerning these murders because they knew him and so for certain things pointed to his guilt in this case, and they barked on interrogation.

    Now, the voir dire examination in this case did not start until November the 14th, 1955.

    And we see from those dates that it was four months from the time this Kerr murder was committed until Leslie Irvin was arrested.

    Richard M. Givan:

    It was seven more months from the time he was arrested and held in custody continuously.

    It was seven more months before the — they started to pick a jury to trial.

    Charles E. Whittaker:

    (Inaudible) that was the publicity concerning the confessions.

    Richard M. Givan:

    The publicity concerning the confessions was, Your Honor, around December or April the 14th of 1955.

    And that was shortly after he was arrested on April 8th.

    And on April 14th, I believe, he was — he made his statements and that was when the — the glaring headlines concerning confessed — confession.

    So and now — of course, they carry the same theme.

    Every time this would come up, they carry the same thing.

    They did the same — the same publicity more or less occurred when Judge Parkinson had it before him.

    And I dare say the same publicity will appear in Evansville tomorrow after this hearing.

    His — this is something that comes up every time the man has heard.

    And so, I think Judge Parkinson made a —

    Felix Frankfurter:

    Are we contributing?

    Are we contributing the — that glaring publicity?

    Richard M. Givan:

    You may be furnishing some fuel for the fire, Your Honor.

    [Laughter] A — nevertheless, this had been seven months from the time the man had been arrested, and seven months possibly less a couple of days from the time he had entered his confession —

    Felix Frankfurter:

    At the time of the trial, what — what was — what was the enveloping journalistic condition?

    Richard M. Givan:

    The same, I think —

    Felix Frankfurter:

    The same.

    Richard M. Givan:

    The same thing, it’s — publicity, interviews with radio and so forth, attendance, heavy attendance —

    William J. Brennan, Jr.:

    And that —

    Richard M. Givan:

    — at the trial.

    William J. Brennan, Jr.:

    — continued from April through the time that (Voice Overlap) —

    Richard M. Givan:

    Oh, no, Your Honor.

    It didn’t continue.

    This — every time something important came up in the case and the newspaper people who are there to follow.

    William J. Brennan, Jr.:

    Well —

    Richard M. Givan:

    It’s a sensational thing.

    William J. Brennan, Jr.:

    — from — from the examinations of this jury panel it certainly took hold and stop?

    Richard M. Givan:

    I think, Your Honor, that I — that examination of the jury panel, I think, should be examined very closely.

    Richard M. Givan:

    You’ll note in my brief I set out one of the statements made by a juror in which he said, “I’ve learned more here than I ever did from the newspaper.”

    Because the — the juror — jury panel was there and then they — the counsel for the defendant would methodically go through this whole business about these other murders.

    And so we’re reviewing the newspaper and if stories — and if any juror was not informed at that time, he certainly became informed before he ever was questioned because he heard the whole business recited over and over again.

    Felix Frankfurter:

    May I ask this?

    Was — is Mr. (Inaudible)

    Richard M. Givan:

    He is, yes, sir.

    Felix Frankfurter:

    He was.

    He is.

    Richard M. Givan:

    He was.

    Felix Frankfurter:

    Was his account of the alleged, and I mean no innuendo, of the alleged confession published in the papers?

    Richard M. Givan:

    I don’t think his account of the alleged confession was published.

    Felix Frankfurter:

    But he’s the only witness.

    Richard M. Givan:

    No, sir, that is another point that I should make, and I was his — would be one of my next —

    Felix Frankfurter:

    Anyhow, was the confession, was the disputed confession, I say disputed because it was challenged there and it’s challenged here, was that confession (Inaudible) in the — in the Evansville papers?

    Richard M. Givan:

    I think just a substance of what he said.

    This was not a written confession, Your Honor.

    Felix Frankfurter:

    (Voice Overlap) —

    Richard M. Givan:

    This was an oral confession.

    I think the substance of what he said was —

    Felix Frankfurter:

    It also went over the radio.

    Richard M. Givan:

    I — I didn’t hear what you say, sir.

    Felix Frankfurter:

    And it also went over the radio.

    Richard M. Givan:

    Yes, sir.

    Charles E. Whittaker:

    After that time — is that in April?

    Richard M. Givan:

    Yes, sir, this started in April was when — his confession was in April.

    Now, I think it’s only fair to assume that these things were reiterated from time to time by news carrying agencies.

    I don’t think that we can say that — it hasn’t stopped yet, this — the publicity will still, I — I take it.

    They all carry the same sort of thing, “Confessed Killer”, “Mad Dog Killer” and so forth.

    I — I take it that those — that same terminology will still be used.

    Now, that brings us to the confession.

    Richard M. Givan:

    We have had the statement made here that they were not permitted to have Leslie Irvin testify as to his side of this confession.

    I submit to the Court that that is not the true picture.

    That from the — and it’s set up in my — the citations of the record are set out in my brief at page 29.

    And if you start at the record of transcript, Volume 2, page 1306 and go to Volume 3 to page 13 or 1613, it’s in my brief at page 29, citation.

    If you start there and read, you will discover that there was a complete hearing as to all aspects of Leslie Irvin’s arrest and his interrogation and the statements he made.

    And those statements that he made were, I submit, given without any kind of coercion at all.

    He — I think this record is very clear that he had every opportunity, if he so chose, to testify.

    Never — no place.

    Now, things were made, he was denied the right to testify.

    I submit you will find nowhere in the record where he was denied the right to testify.

    He certainly could have testified if he so desire but he did not choose to — to testify.

    Now, I submit that the — the Court did laid — they do quote language where the Court overruled the motion without having any hearing.

    But he — this was immediately following this exhaustive hearing on the admissibility of this confession.

    And I submit that it would’ve been completely useless to have had that hearing over again.

    Charles E. Whittaker:

    That was outside the hearing?

    Richard M. Givan:

    That was outside the hearing of the jury, yes, Your Honor.

    Now, that brings us to Paul Wever and his part that he played in this confession.

    Now, this confession was not heard alone by Paul Wever.

    It was heard by the Chief of Detective Hudson and certain portions of it actually were wire recorded in many likewise appeared and it’s — and — but that’s here and there.

    This time they were concerned with Paul Wever’s testimony concerning the confession.

    Paul Wever merely testified that he was call — summoned by Leslie Irvin to tell him a story.

    And it was roughly this, he said, “Are you going to try me in Kentucky or you’re going to — are you going to try me in Indiana, you’re going send me back to Kentucky?”

    Paul Wever said, “They don’t have enough evidence to try you in Indiana at this time unless there is a weapon you need.

    I need the gun for one thing, and he said, “Well, take me out and I’ll show you where it was.”

    Well, it’s — to be very brief about it, he took him out and they found the gun eventually where Leslie Irvin had indicated and so forth.

    That was what Paul Wever testified too but this was also testified too by Chief of Detective Hudson.

    And Paul Wever’s testimony was just —

    Earl Warren:

    I’d like to have (Voice Overlap)

    Richard M. Givan:

    Yes.

    Earl Warren:

    — because I was going to ask you anyway.

    Earl Warren:

    Tell me what — what he said — Mr. Wever said about the confession itself?

    Did he repeat the confession?

    Richard M. Givan:

    Mr. Wever —

    Earl Warren:

    Yes.

    Richard M. Givan:

    Mr. Wever testified as to what Leslie Irvin told him just roughly what I have said about.

    Earl Warren:

    That’s the confession.

    Richard M. Givan:

    This — that was the —

    Earl Warren:

    You referred to the confession.

    Richard M. Givan:

    — confession and I’ve short — considered he gave a detailed story of what he said but so did the detective who was there.

    Paul Wever’s testimony was merely cumulative.

    It was in keeping with the cases that we have in Indiana along the lines that he can testify to something of this nature.

    He was — not that it’s — I’m not advocating that a thing necessarily but I say this, that it was not something that would be prejudicial.

    Earl Warren:

    Did he argue the credibility of his own testimony?

    Richard M. Givan:

    The only thing that he said and their — their remark have referred to it.

    My best memory of it is that he says, “You, yourself, heard what I told you about this.”

    I think that’s —

    William J. Brennan, Jr.:

    Well, now, don’t you think that’s a questionable thing for the attorney who was trying the case for the State to argue the jury after he’s testified?

    You must believe me because I said it?

    Richard M. Givan:

    Well, it’s pretty strong.

    I guess that’s the effect of what he said that’s going —

    William J. Brennan, Jr.:

    But isn’t — isn’t that (Voice Overlap) —

    Richard M. Givan:

    — pretty far but I did still think it fall short of it than I would do promptly.

    William J. Brennan, Jr.:

    Well, isn’t that the effect of it on this record?

    Richard M. Givan:

    I — I wouldn’t put it that strong, Your Honor, that he says — he’s saying — he’s just saying — he’s summing up to the jury and he’s saying that you heard what I told.

    Felix Frankfurter:

    What are the suggestions or the observations that were made that the trial judge took steps to omit what Mr. Wever said in a summation?

    Richard M. Givan:

    Your Honor, the — there’s no authority that I know of, anywhere in Indiana for the reporting of the final argument of counsel to the jury to become a part of the record.

    He’s not a part of the record.

    There’s no way —

    Felix Frankfurter:

    But I understand — I — I would understand — I understand that.

    And I understand not reading any of it but the gravamen of what was said was that it was allowed to be transcribed expect that particular sentence or — or that portion.

    Richard M. Givan:

    No, that — that is incorrect, Your Honor.

    None of it was transcribed.

    Felix Frankfurter:

    No, no, but afterwards, afterwards.

    Richard M. Givan:

    No, it’s still none of it — that part that was — or that part that was placed in a record and it is today in the record is only the part that Paul Wever say concerning —

    Felix Frankfurter:

    (Voice Overlap) wasn’t kept out, the whole summation was kept out, is that right?

    Richard M. Givan:

    That is correct, Your Honor.

    Felix Frankfurter:

    All right.

    Potter Stewart:

    Mr. Givan, just before you sit down —

    Richard M. Givan:

    Yes, Justice Stewart.

    Potter Stewart:

    — you — do you agree with Mr. Lockyear as to — on the preliminary question of exhaustion of state remedies that there is now no remedy available in the State of Indiana?

    Richard M. Givan:

    I do, Your Honor.

    Potter Stewart:

    No possibility of reviewing the fairness of this trial by the State of Indiana at this time.

    Richard M. Givan:

    That is correct.

    No further proceeding that we had in Indiana.

    Who is the victim of this murder?

    Richard M. Givan:

    A man named Whitney Wesley Kerr —

    What was he?

    Richard M. Givan:

    — who — he was a filling station attendant.

    This was a filling station in Vanderburgh.

    In connection with the robbery, was this?

    Richard M. Givan:

    Yes, sir.

    (Inaudible)

    Richard M. Givan:

    This — each case said —

    (Voice Overlap) —

    Richard M. Givan:

    — he is accused of having committed.

    It was a robbery case and in each instance the victim, I believe, was shot at the back of the head.

    It was a rather bizarre thing.

    (Inaudible)

    Richard M. Givan:

    Substantially so, I think, Your Honor.

    Earl Warren:

    Thank you, Mr. Givan.

    Richard M. Givan:

    Thank you.

    Earl Warren:

    Mr. Lopp.

    James D. Lopp:

    Mr. Chief Justice, gentlemen.

    Mr. Lockyear and I participated in this trial as pauper’s attorneys appointed for the lower court in Gibson County at the time of this hearing.

    I’d like to review just a little bit about this so-called appeal filed in a motion such as that.

    Mr. Lockyear and I spent four weeks picking this jury, approximately one week in trying the case.

    After the case was tried, there was a finding of guilty and sentence was passed.

    And then we spent approximately 30 days in preparing our motion for a new trial.

    We went to Gibson County that particular morning.

    And there, we had — we learned from the sheriff that the lieutenant was not present.

    Mr. Lockyear and I nevertheless filed our motion for a new trial.

    And the record was — showed to be the filing of the same on page 450 and comes down the State of Indiana by the prosecuting attorney comes down the defendant, Leslie Irvin by Theodore Lockyear, Jr. and James D. Lopp, his attorneys and — and now said attorneys filed in open court the motion for a new trial.

    And now, Irvin is showing to the Court that the — by the Sheriff Hollen that he was not present.

    The motion for a new trial was filed for a new record.

    Then, a later date —

    Charles E. Whittaker:

    (Inaudible)

    James D. Lopp:

    It sure does or the record shows — shows interest.

    It shows — comes down in the State of Indiana by Loren McGregor, prosecuting attorney in Gibson County, come — the defendant Leslie Irvin by Theodore Lockyear, Jr. and James D. Lopp his attorney herein and now said state attorneys filed on open court the motion for a new trial.

    Tom C. Clark:

    This doesn’t say — excuse me, this doesn’t say that the defendant.

    James D. Lopp:

    And — and comes the defendant Leslie Irvin by Theodore Lockyear, Jr. and James D. Lopp, his attorneys.

    Then at the time of the overruling of the motion, the entry is found on page 573 of the transcript, and now the Court, having hand under advisement, the motion for a new trial and being sufficiently advised to the premises now overrules the defendant’s motion for a new trial to which ruling of the Court, the defendant, his attorneys accept.

    Now, that part of the book entry shows no reason why the Court overruled it.

    It doesn’t say because he has escaped or because he was gone or not present or — or nothing of that nature.

    It’s an ordinary —

    Potter Stewart:

    (Voice Overlap) did not the Court accept into evidence the letter written to Mr. Lockyear by the — by the petitioner?

    James D. Lopp:

    It was merely submitted to the Court at that time, Your Honor.

    We thought it is our duty to inform the Court of this corresponds with this individual.

    Potter Stewart:

    Isn’t that letter somehow incorporated with the order or perhaps not, perhaps I misunderstood the record?

    James D. Lopp:

    I think it is incorporated, Your Honor, at —

    Potter Stewart:

    (Voice Overlap)

    James D. Lopp:

    — 573 of — of the transcript.

    It is incorporated.

    Potter Stewart:

    Yes.

    James D. Lopp:

    That’s the truth.

    Felix Frankfurter:

    Before the — as I gather from the opinion of the Indiana Supreme Court that — that preceding the portion which you read, now the Court (Inaudible) under advisory (Inaudible) attorneys filed in open court the motion for new trial.

    And now, there is a — there is further showing to the Court by Mr. Hollen, the Sheriff of Gibson County, Indiana, sentenced Leslie Irvin, escapes from the Gibson County Jail last night and that his whereabouts were unknown —

    James D. Lopp:

    That’s right.

    Felix Frankfurter:

    — and in the formal entry, the Court says that he’s still at large (Inaudible)

    James D. Lopp:

    At large, that’s right.

    That’s true, Your Honor.

    Now —

    Earl Warren:

    Was there any argument on the merits of the motion for a new trial?

    James D. Lopp:

    Was there any merits on the motion for a new trial?

    Your Honor, I will have to call the Court’s attention to this Indiana Supreme Court record itself, their opinion.

    It says here he was loyal and expertly defended at every point in the case, 415 specifications of allotted error are presented in motion for a new trial, 415 specifications.

    Earl Warren:

    Were those argued (Voice Overlap) —

    James D. Lopp:

    They were argued.

    Briefs were filed in the Court.

    After the defendant was apprehended, brought back into the custody of the Court, Judge Eby appointed Mr. Lockyear and I as pauper attorneys for the purpose of appealing to the Supreme Court of Indiana.

    We accepted that job.

    We prepared briefs and they were submitted to the Court in Indianapolis.

    The case was argued.

    The briefs reserved on the Attorney General and everything was in due form at the time of the filing of those briefs and I think this is very important.

    The — the Supreme Court granted us further time to file our assignment of error and transcript.

    The Supreme Court of Indiana granted us further time to do that.

    Felix Frankfurter:

    While — while — is Irvin still at large?

    James D. Lopp:

    No, Irvin had been apprehended.

    He was back in custody.

    He’s only gone about three weeks.

    And we went to the Supreme Court, we filed our petition for an extension of time to file our transcript and assignment of error, and they granted that.

    Hugo L. Black:

    Was that while he was to say he had come back?

    James D. Lopp:

    Yes, he was back in custody now.

    Hugo L. Black:

    And they took it up —

    James D. Lopp:

    They took it up.

    Hugo L. Black:

    The argument? —

    James D. Lopp:

    After —

    Yes.

    Hugo L. Black:

    (Voice Overlap) —

    James D. Lopp:

    After Irvin was back in custody, Judge Eby then appointed Mr. Lockyear and I as the attorneys to appeal this case.

    So, the first thing we did was go to the Supreme Court of Indiana and got an extension of time to file our transcript and assignment of errors because it would be impossible with such a large transcript here, 5000 pages, to do that.

    They granted that extension of time.

    Now, all through the stage here, there’s never been any objections, no motions to dismiss that appeal and the Supreme Court heard it on its merit and one other particular —

    Well, at that time, when you got an extension of time to file your record, I suppose the Supreme Court didn’t know that this (Inaudible)

    James D. Lopp:

    They most certainly did know.

    We had a hearing in the Supreme Court’s office there.

    And I believe this gentleman would be honest enough to — to admit to this Court that they did, at that time, call to the Supreme Court’s attention, and the Supreme Court went and decided the matter and permitted us to file — give us time to file our briefs, isn’t that right?

    As extension of time.

    Felix Frankfurter:

    They did have a hearing —

    James D. Lopp:

    They sure did.

    Felix Frankfurter:

    Court en banc, the whole court?

    James D. Lopp:

    The whole Court of the Supreme Court of — of Indiana.

    Now — and another thing —

    Could you — could you appeal under your state practice without filing a motion for a new trial?

    James D. Lopp:

    Yes, to appeal — to appeal a case in the State of Indiana, as — a motion for a new trial is important, the same as the evidence that you’re going to appeal on or whatever it maybe.

    But to institute an appeal in the State of Indiana, it’s not necessary a condition precedent to file a motion for a new trial.

    To file a — to file an appeal you file a praecipe in our Court.

    The filing of a praecipe is the first step to get an appeal.

    Then when you file a praecipe, then the next thing to do is to file your assignment of errors with the Supreme Court and transcript.

    Your assignment of errors is the same as your complaint.

    Hugo L. Black:

    Does the defendant have to do that in person?

    James D. Lopp:

    No, never filed that in person.

    He couldn’t have.

    Hugo L. Black:

    (Inaudible) authorize that to be done by the (Inaudible)

    James D. Lopp:

    The — yes, that’s true.

    And that’s exactly what we did.

    Suppose —

    James D. Lopp:

    The State of Indiana asked for an extension of time to file their briefs and the Court gave them an extension of time to file their briefs and by virtue of that, under our laws, the Rules of the Supreme Court of Indiana, they waived any preliminary motions to dismiss or otherwise and that is Rule 2-16, set out on page 123 of our brief and that — and that reads as follows, “The petition,” see, they filed — the State of Indiana asked for an extension of time to file their brief.

    When they did that they had to sign this petition which says in effect, “The petition shall state facts showing that the Court in which the cause is pending has jurisdiction and that the briefs will be on the merits and when filed by the appellee,” which is the State of Indiana’s case, “the petition shall show that all motions to dismiss and all dilatory motions on behalf of the petitioner have been filed.”

    And that’s what the State of Indiana did in this case so this waived your business as a two-way street.

    The State of Indiana has waived their right then too.

    The question I wanted to ask you is this.

    Assuming you had appealed directly from the judgment instead of filing — without filing a motion for a new trial, what would your local rule then be as to the right of the Court to entertain that appeal even though the defendant is not within the jurisdiction, he’d escaped or he was not present at the time the appeal was filed?

    James D. Lopp:

    All right it would have to be discretionary with the Court but in this particular —

    Is the rule — is the rule different in respect to the appeal from an order for a new trial or than it is when the case (Voice Overlap) —

    James D. Lopp:

    The appeal sets out assignment of error.

    Ordinarily, the assignment of error is the overruling the motion for a new trial.

    But once it gets to the Supreme Court of Indiana, the Supreme Court can search the record for any kind of error to determine the case whether or not there was error and that’s exactly what they did in this case, and they did search this record.

    And in their opinion, of course, there was no error.

    Felix Frankfurter:

    Mr. Lopp, this proceeding before the Supreme Court of Indiana on which you predicate states waiver —

    James D. Lopp:

    That’s right.

    Felix Frankfurter:

    — not satisfying the requirements for (Inaudible) there must be a matter of some records, are they?

    James D. Lopp:

    They are of record.

    Felix Frankfurter:

    Well, now, are they (Inaudible) you give us the references to it?

    James D. Lopp:

    Well, right.

    This is the transcript here, Your Honor, and right here is a minute note made by the Court or the clerk where the — the appellee here, State of Indiana, petitions for time for brief.

    Now, the —

    Felix Frankfurter:

    Is that a — is that a certified copy of —

    James D. Lopp:

    This is a certified copy.

    Felix Frankfurter:

    (Voice Overlap) or whatever you call it —

    James D. Lopp:

    That’s right —

    Felix Frankfurter:

    (Voice Overlap) of Indiana?

    James D. Lopp:

    — in the Supreme Court of Indiana.

    Felix Frankfurter:

    And that’s here, isn’t it?

    James D. Lopp:

    That’s here, and I think —

    Felix Frankfurter:

    (Voice Overlap) —

    James D. Lopp:

    — that the Attorney General —

    (Voice Overlap) —

    James D. Lopp:

    — will admit that.

    They will admit that they filed it.

    Attorney:

    Oh, there’s no question what we found.

    Felix Frankfurter:

    What’s the date of that entry?

    James D. Lopp:

    That entry was made August the 29th, 1956.

    Earl Warren:

    Where does it appear in that record?

    James D. Lopp:

    Well, Your Honor, it would be on Federal Volume 1, Your Honor.

    So there’s no dispute that that’s exactly what happened.

    Earl Warren:

    (Voice Overlap) this, did — what — was this — was this merely an oral presentation before the Supreme Court or was that brief filed and whether oral or briefs, did the State of Indiana in asking for an extension of time at the same time insist on the jurisdictional ground that they’re now taking, namely, that the escape had constituted a waiver of the right of filing a motion for a new trial?

    James D. Lopp:

    I’ll try to answer that.

    Felix Frankfurter:

    (Voice Overlap) —

    James D. Lopp:

    First, we — when we were appointed to represent this defendant, we went to the Supreme Court with a petition for an extension of time to file our transcript and assignment of errors.

    The Attorney General’s office more or less objected because he had escaped.

    The Supreme Court heard that and granted us the right to — to —

    Felix Frankfurter:

    That’s oral hearing.

    James D. Lopp:

    — file that.

    Felix Frankfurter:

    You are already heard.

    James D. Lopp:

    That’s right.

    Then we filed our briefs, then the Attorney General felt that he didn’t have time or something to file his brief so he went to the Supreme Court and asked the Supreme Court for an extension of time to file his briefs.

    Now, as a condition precedent before you can get an extension of time to file briefs, you have to follow this rule of court to Day 16 which you have to set out that you waived, that you admit jurisdiction of the Court and you waived all rights to dismiss the appeal.

    Hugo L. Black:

    Was — was that done?

    James D. Lopp:

    That was done by the State of Indiana’s Attorney General.

    Hugo L. Black:

    In writing?

    James D. Lopp:

    In writing.

    Hugo L. Black:

    Is that in the record?

    James D. Lopp:

    That’s of record.

    Felix Frankfurter:

    You mean that they explicitly — that they explicitly brought themselves within your Rule 2-16?

    James D. Lopp:

    They — they had to get an extension.

    Felix Frankfurter:

    I don’t —

    James D. Lopp:

    They did, Your Honor.

    They did.

    Felix Frankfurter:

    I don’t understand.

    James D. Lopp:

    They did.

    Felix Frankfurter:

    Explicitly?

    James D. Lopp:

    Explicitly by a petition for an extension of time to file their briefs.

    Felix Frankfurter:

    Invoking Rule 2-16 —

    James D. Lopp:

    They had.

    That’s right.

    Felix Frankfurter:

    — and they asked for an extension of time.

    James D. Lopp:

    They asked for an extension of time.

    And that’s the only way you can get an extension of time by stating in your petition that you admit the Court has jurisdiction and that you waived the right to — for dismissal.

    And there was never a dismissal motion filed by the State of Indiana at anytime.

    Potter Stewart:

    Now, Mr. Lopp, do we have in the record here the briefs of the parties eventually filed before the Supreme Court of Indiana?

    James D. Lopp:

    No, we do not but we would be glad to submit them.

    Potter Stewart:

    In the brief of the State, did it take the position that —

    James D. Lopp:

    In the —

    Potter Stewart:

    — Trial Court was without jurisdiction to pass on (Voice Overlap) —

    James D. Lopp:

    In the front part of their brief, they did.They did mention in the front part brief.

    Potter Stewart:

    But, it refers to me that maybe in your state practice, it’s not necessary to file a motion to dismiss, maybe the argument on the appeal was just that this motion was properly denied as a matter of state law.

    James D. Lopp:

    No.

    Your Honor, I think —

    Potter Stewart:

    In any event, could you — with the Chief Justice’s —

    James D. Lopp:

    I would be glad to submit our briefs that —

    Potter Stewart:

    (Voice Overlap) —

    James D. Lopp:

    — we filed in the State of Indiana court, and I’m sure they would too.

    Is that right, Mr. Lockyear?

    Earl Warren:

    Well, we can see that both the briefs of both sides are — are —

    James D. Lopp:

    Were filed.

    Earl Warren:

    filed.

    Yes.

    James D. Lopp:

    We’ll be glad to.

    Hugo L. Black:

    Why did you refer to this as a jurisdictional question?

    Earl Warren:

    Refer to which, Your Honor?

    Hugo L. Black:

    (Inaudible)

    James D. Lopp:

    You mean the State of Indiana or this Court?

    Hugo L. Black:

    I — as I understand, you’re invoking the rule —

    James D. Lopp:

    That’s right.

    Hugo L. Black:

    — which requires a motion to be made, raising the question of jurisdiction.

    Do you think that the question involved here is one of jurisdiction?

    James D. Lopp:

    I think this Court and the federal court has jurisdiction.

    Hugo L. Black:

    I understand that but do you think that the Supreme Court of Indiana is denied jurisdiction because a man has (Inaudible)

    James D. Lopp:

    No, no, the Supreme Court of Indiana can hear and determine any case on appeal if it wants to, sure it can.

    Thank you, Your Honor.

    Earl Warren:

    Mr. Givan, would you mind telling us if the State did invoke Rule 2-16 and if so, what the effect of it is?

    Richard M. Givan:

    We did invoke that rule, Your Honor.

    Earl Warren:

    You did invoke.

    Richard M. Givan:

    We — Yes, sir.

    We took the position that we were not trying to dismiss this case, that the assignment of error was that the Court overruled the appellant’s motion for a new trial, and we were taking the position that he was justified in so doing, and we addressed our argument to that fact.

    We — this was — we didn’t take the position ever in this case that we were trying to have a — an appeal dismissed.

    Felix Frankfurter:

    In other words, you — you tendered the merits of the motion for a new trial (Inaudible)

    Richard M. Givan:

    We did, Your Honor, and that was our first opposition to it and our first statement address to the — to the assignment of error that the Court erred in overruling appellant’s motion for a new trial.

    William J. Brennan, Jr.:

    In other words —

    Felix Frankfurter:

    You take the position that there is no appeal properly before the Supreme Court and you didn’t stand head on such a position (Inaudible)

    Richard M. Givan:

    Oh, no.

    We took the position that the appeal was properly there.

    Felix Frankfurter:

    Well, how could the appeal be properly there if — if the appellant didn’t bring himself within the 30-day or whatever the rule is?

    Richard M. Givan:

    This, Your Honor, we said that the Court did not err in overruling the motion for a new trial.

    And we submitted that his reason for overruling the motion for a new trial was that the man was not there, that he never got to the merits, that he overrule it because the man was not within the jurisdiction of the Court, was not there.

    We never —

    Felix Frankfurter:

    But you did —

    Richard M. Givan:

    — questioned the right to the appeal.

    Felix Frankfurter:

    — but you or the Supreme Court tendered the merits, meaning the validity of the confession biased (Inaudible) is that true?

    Richard M. Givan:

    That’s right.

    We — that was the first point in our brief.

    We just — we didn’t try to do this by a motion to dismiss.

    We submitted this as the first part of our brief on the merits of the thing.

    That was our first reason for stating to the Court that the trial court did not err in overruling motion for a new trial.

    Felix Frankfurter:

    That — that position of yours that you just stated shed some light on why the Supreme Court of Indiana went into the merit although it could have stopped yours if it has gone entirely on the question of no standing or whatever you call it.

    It could have stopped right there.

    Richard M. Givan:

    That’s correct.

    Felix Frankfurter:

    I want to ask you one more thing (Inaudible).

    I noticed that in the opinion of the Supreme Court, there is no reference to the — to the newspapers or the enveloping bias.

    Was that argued before the Supreme Court of Indiana?

    Richard M. Givan:

    Oh, yes, Your Honor.

    This — the whole case on the so-called merits that we — and we’re using the term “merits” useally —

    Felix Frankfurter:

    Yes.

    Richard M. Givan:

    We understand what we’re saying the only — the argument on the merits was, of course, the — they did.

    Felix Frankfurter:

    They make no reference to that as I — as I read their opinion.

    Richard M. Givan:

    That — no, they don’t, Your Honor.

    They — they — I’d still go back that they based it on the — this — this one proposition and then —

    Felix Frankfurter:

    All right.

    Richard M. Givan:

    — pass on the other in passing.

    Felix Frankfurter:

    Yes, but they did deal with all the other courts more or less, they dealt with the Wever point, they dealt with jury bias, they dealt with the confession but they pay no attention to their discussions, what you call dicta to the question of the enveloping —

    Richard M. Givan:

    There’s not much of a statement.

    Felix Frankfurter:

    There’s only one paragraph about all of the so-called merits set by the Supreme Court of Indiana.

    (Inaudible) they just —

    Richard M. Givan:

    They just —

    Could I ask you one question, if it’s all right?

    Richard M. Givan:

    Yes, sir.

    As I understand from what you just told Justice Frankfurter, the State’s position in effect was that the jurisdiction of the appeal, we urge you to affirm this case on two grounds.

    Number one, that the Court, trial court properly denied the motion because this man was an escapee and number two, there is no violation of the constitutional — this man’s constitutional rights, is that what your position?

    Richard M. Givan:

    That was our position.

    Well, that’s just what the Supreme Court did, adopt both of your position, didn’t it?

    Richard M. Givan:

    They did.

    Well, then, don’t you consider that the — the second branch of its decision was an alternate ground of holding?

    Richard M. Givan:

    No, not —

    Why not?

    Richard M. Givan:

    I — I hate to belabor that because I don’t know it makes too much difference in a case, Your Honor.

    But I — I still go back to their language what they say and they — they indicated that they were — they were deciding it on this one point and then they — they passed on to the others.

    But they didn’t dismiss the appeal, did they?

    Richard M. Givan:

    They did not and they were never asked to, Your Honor.

    They affirmed.

    Richard M. Givan:

    They affirmed the appeal.

    They affirmed the decision of the lower court.

    They were never asked to dismiss.

    Earl Warren:

    You couldn’t ask the Court to dismiss after availing yourself of 2-16, could you?

    Richard M. Givan:

    No, we could not have.

    Earl Warren:

    So you’re bound by this language in 2-16, “The petition shall state the fact showing that the Court in which the cause is pending has jurisdiction and that the brief will be on the merits.

    When filed by the appellee, the petition shall show that all motions to dismiss and all dilatory motions on behalf of the petitioner had been filed.”

    Richard M. Givan:

    That’s correct.

    Earl Warren:

    And you had filed none.

    Richard M. Givan:

    We had filed — we anticipated none.

    Earl Warren:

    But you’re bound by that rule.

    Richard M. Givan:

    Absolutely.

    Earl Warren:

    Yes.

    Very well.

    Felix Frankfurter:

    I like what you just said about Mr. Justice Emmert.

    Richard M. Givan:

    Thank you, Your Honor.

    I would like to —

    Earl Warren:

    Gentlemen, I — I would — I — I want to thank you, Mr. Lockyear and Mr. Lopp for — for having undertaken the defense of this — this impecunious defendant.

    You’ve had a long journey all through state courts and through the federal courts, and it’s a great comfort to the Court to know that men will — will do that out of respect to their public obligations as counsel and without — without obligation, I mean, without compensation.

    Unfortunately, the whole American public doesn’t — doesn’t understand that lawyers do — do that.

    We always appreciate it.

    And —

    James D. Lopp:

    We thank you, Your Honor.

    Earl Warren:

    — Mr. Givan, we want to thank you for your very able presentation of — of the case of the State of Indiana.

    Richard M. Givan:

    I thank you, Your Honor.

    Earl Warren:

    We appreciate your —

    James D. Lopp:

    Mr. Chief Justice, may I —

    Earl Warren:

    Yes.

    James D. Lopp:

    — ask that in view of the fact that they have admitted what we would present by submitting the brief, does the Court still want the brief?

    Earl Warren:

    I — I think we better have them, yes.

    Felix Frankfurter:

    Any difficulty?

    Richard M. Givan:

    No —

    James D. Lopp:

    No, we’ll be glad to submit them.

    Richard M. Givan:

    (Voice Overlap) the number of copies, Your Honor, that —

    Earl Warren:

    What — what copy (Voice Overlap)

    Richard M. Givan:

    I have a copy with the Court.

    Earl Warren:

    Yes, you will just leave it with the clerk and — and if they have one, they can do the same.

    Richard M. Givan:

    There is no index.

    Earl Warren:

    Oh, don’t do anymore printing or anything that — I just — just let us have the briefs that are available or what’s available.

    Richard M. Givan:

    We’re happy to do that, Your Honor.

    Earl Warren:

    All right.