Jackson v. Denno

PETITIONER:Nathan Jackson
RESPONDENT:Wilfred Denno, Warden
LOCATION:Cumberland Hospital

DOCKET NO.: 62
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 378 US 368 (1964)
ARGUED: Dec 09, 1963 / Dec 10, 1963
DECIDED: Jun 22, 1964
GRANTED: Jan 21, 1963

ADVOCATES:
Daniel G. Collins – for the petitioner
William I. Siegel – for the respondents

Facts of the case

On June 14, 1960 at around 1 a.m., Nathan Jackson and Nora Elliot entered a Brooklyn hotel and registered for a room. Jackson drew a gun and took money from the clerk, then ordered the clerk and others upstairs before leaving the hotel. Outside, Jackson encountered a policeman. Both men drew their guns, and in the ensuing altercation, the policeman was fatally wounded and Jackson was shot twice. When a police detective questioned Jackson at the hospital around 2 a.m., he admitted to the robbery and to shooting the police officer. Jackson received pain medication and was questioned again around 4 a.m. He again admitted to the robbery and the shooting. An hour later, Jackson was taken into the operating room.

Jackson and Elliot were indicted and tried together. His two confessions were admitted into evidence without objection. In his testimony, Jackson testified to being pressured into answering questions in the hospital, which the state denied. Consistent with New York practice, the question of the validity of the confession was submitted to the jury along with the other issues. The jury found Jackson guilty and sentenced him to death. The New York Court of Appeals affirmed. The Supreme Court denied certiorari.

Jackson submitted a petition for habeas corpus alleging that the New York procedure for determining the voluntariness of confession was unconstitutional and that his statement was involuntary. The district court denied the petition. The U.S. Court of Appeals for the Second Circuit affirmed the conviction.

Question

Is the New York procedure governing the admissibility of allegedly involuntary confessions constitutional?

Earl Warren:

Nathan Jackson, Petitioner, versus Wilfred Denno.

Mr. Collins, you may continue your argument.

Daniel G. Collins:

Mr. Chief Justice, may it please the Court.

Just before the Court recessed yesterday, I asserted that the New York procedure for determining voluntariness of a confession, which lets the jury have this question unless the defendant can meet the very heavy burden for showing that anything but a finding of involuntariness would be unreasonable, imposes a very, very heavy burden on a defendant and in New York, makes the protection against coerced confessions largely an illusion.

I do not assert this merely as a theoretical argument.

I think it is a prevalent notion in the New York Criminal Bar that all confessions will go to the jury.

Moreover, it seems to be no accident that a great deal of this Court’s litigation on con — coerced confessions has through the years come from the New York jurisdiction.

In appraising the New York procedure, it is, as I said yesterday, important to recognize that there is no legitimate relationship between constitutional protection and degree of constitutional violation that this is so.

And that the New York procedure applies in the face of this conclusion is apparent from the rationale of the rule that coerced confessions, once admitted, vitiate a state conviction.

We note today, after this Court’s opinions in Rogers against Richmond, Spano against New York and Mapp against Ohio, that the basis for this rule is the fact that our system of constitutional justice will not tolerate the impermissible method used to obtain such confessions, in essence that they are used — taints the entire proceeding and requires its complete nullification.

Only if the rationale of the coerced confession rule or the unreliability of such confession might there be some justification for finding a positive relationship between constitutional violation and the degree of constitutional protection.

On this point, I think it is useful to recall that in Stein against New York, Mr. Justice Jackson, speaking for this Court, indicated that he believed, erroneously we now know, the unreliability of the confession was the basis for the exclusionary rule.

Petitioner also asked this Court to take cognizance of the fact that the New York procedure compels a defendant on penalty of losing his constitutional protection against the use of an involuntary confession to take the witne — the witness stand in a state criminal trial.

As a practical matter, a defendant cannot afford to let a confession go unanswered. He must take the stand to refute or explain it.

This is just what happened in the present case.

Petitioner took the stand to deny any memory of the interrogation by the Assistant District Attorney to claim that in any event, there was duress present and to deny among other allegations in the confession that he had admitted firing the first shot.

The question of state compulsion, testimony of — the state — the question of — of incrimination under state law is squarely before this Court again this term in the case of Malloy against Hogan, which has already been briefed and is awaiting argument.

Should this Court find unconstitutionality there, that would indicate that there is another fatal deficiency in the New York procedure.

Respondent repeatedly asserts in his brief that petitioner’s argument here against the New York procedure is essentially an anti-jury argument.

This is most certainly not so.

In the first place, this Court, in a long series of — of cases, has firmly established that a confession that is involuntary as a matter of law cannot go to the jury without vitiating a conviction regardless of the sufficiency of the other evidence.

Respondent in — at page 15 of his brief, himself, admits this rule.

Petitioner is only asking that this well-established rule be applied consistently and rationally.

Secondly, the procedure in which judge and not jury makes the factual determination of voluntariness is the traditional common-law procedure, the so-called “orthodox” rule.

Professor Wigmore, no great friend of exclusionary rules generally, nevertheless, was outraged from the viewpoint of the law of evidence by the New York procedure.

He simply could not understand how a jury could administer exclusionary rules.

Petitioner here certainly cannot be accused of making — of advancing a position that tampers with the traditional rights of juries.

Petitioner hopes that it is abundantly clear, both in his brief and in this oral argument, that the rule — that involuntary confession vitiate a state conviction is based on their abhorrence under our constitutional system of justice.

Unfortunately, the New York procedure does not serve the ends that a constitutional procedure must serve.

The argument you are making is somewhat against the argument you’ve made rejecting the (Inaudible).

Daniel G. Collins:

I think this argument has been rejected before, sir, by this Court.

I asked that the Court now accept it.

It was Stein.

Daniel G. Collins:

Yes, Stein — Stein.

Stein I think, yes.

It had a relation.

We — we entered another connection (Inaudible) where the same argument (Inaudible).

Daniel G. Collins:

I think that if — if the — that the — the fact of self-incrimination in this case is an important additional factor that should be — should be taken into account should the Court feel that the Stein argument, itself, the Stein position, previously adopted by the Court is persuasive.

I don’t think it is, but I do think that the question of self-incrimination wasn’t raised directly in the Stein case since the defendants there did not take the witness stand.

This comes up as unconstitutional.

Daniel G. Collins:

Yes, it does, sir.

Arthur J. Goldberg:

Mr. Collins, may I ask you (Inaudible)

Daniel G. Collins:

No, this —

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

This is the complete confession.

Its re —

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

Yes, it’s a complete transcript of the confession.

Respondent reproduced the confession at the back of the record and its there as the same as it appears in the — in front.

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

There is —

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

There is not such indi —

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

There is no such indication at any point in the record, Mr. Justice Goldberg.

Arthur J. Goldberg:

You also (Inaudible) that this confession was subsequently filed in the first statement where you have stated the (Inaudible), “I will shoot you”, is that correct?

Daniel G. Collins:

Yes, it followed within two hours of that statement which of course, didn’t contain the statement though that he shot first.

But the —

Arthur J. Goldberg:

Yes.

Daniel G. Collins:

— the police thereupon notified the assistant district — the District Attorney’s office and an assistant came to the hospital and took the second confession.

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

He — when he had alighted from the taxicab in the vicinity of the Cumberland Hospital after the shooting shortly after 1 a.m., he was approached by a policeman with a drawn gun and then taken into custody and taken to the hospital.

With the Court’s permission, I would like to turn to petitioner’s second argument that is that his confession to the Assistant District Attorney was involuntary as a matter of law.

I think it is fair to say that the courts below took an extremely narrow and pseudo-technical view of the facts of coercion in this case.

There is no dispute that at the time he confessed, petitioner was desperately ill nor is there any disputes — dispute that a confession would be involuntary when taken while a defendant were under the influence of the drugs that were actually administered to petitioner.

The answer of — of the court below to all of this, and I think it is a very, very inadequate answer, is that there was no problem, and I am quoting “because the undisputed proof was that any effect of a demerol would not have commenced until at least 10 minutes after the confession had been concluded”.

In the first place, petitioner submits that this is not what the proof showed.

It showed in the only medial testimony that the — that demerol reaction is an individual matter and that any statements about its time effectiveness can speak only in terms of averages.

Averages is not my term, although I am very glad adopt it here.

Speaking in a memorandum of law in the district — to the District Court, respondent said, and I quote, “The medical testimony was to the effect that in the average case, demerol does not begin to operate upon the patient for 15 minutes.”

Moreover, for the purpose of safeguarding this petitioner’s rights and the rights of other — of — of criminal defendant similarly situated, petitioner asked this Court to hold that whenever a confession follows close upon the administration of drug and memory — the administration of will and memory depri — depriving drugs, the confession should be regarded as presumptively involuntary.

And that presumption should not be subject to rebuttal merely by showing — by general medical testimony, some time effectiveness of normal drug reaction.

Any other rule petitioner submits is fraught with the greatest danger and imposes an unfair burden on — on a criminal defendant.

How I think is it fair to ask, can a criminal defendant mount the necessary technical attack on a drug induced confession when there is a real danger that he cannot even remember the confession because one of the properties of the drug that was administered is to create amnesia?

The very least that the prosecution should be required to do in such cases, and it certainly did not do it in this case, is to prove that a criminal defendant under such circumstances had the benefit of advice of counsel when he confessed.

And I think that bringing in the question of counsel on this point follows naturally from this Court’s many opinions on coerced confessions in which it has said that a criminal defendant who, under the circumstances, did not have the necessary — ordinarily would not have had the necessary capability of making a voluntary confession should have had some independent advisor-counsel at the time he confessed.

Such cases as Gallegos against Colorado, Haley against Ohio, Fikes against Alabama, Culombe against Connecticut, all considered the point of the necessity for independent advice when a defendant makes a confession under circumstances that indicate that in all probability, he did not have the requisite mental capacity alone to confess at that stage.

Petitioner’s third argument here goes to the question of the necessity for a hearing in the District Court.

Denying petitioner a hearing, the courts below, both the District Court and the Court of Appeal — Court of Appeals relied heavily on Brown against Allen.

This Court has since rendered its opinion in Townsend v. Sain, which found that the Brown — Brown case was an inadequate guide for determining when a District Court hearing must be held.

At the very least, Townsend requires a reappraisal of the decisions below.

More importantly, Townsend also offers specific guidance for this case, since the actual basis for the decision here, that material facts concerning the properties of the drugs scopolamine and demerol were not developed at the state hearing is very much in point.

In fact, this case presents an even more compelling need for a hearing than existed in the Townsend case.

Here, the jury was told merely that scopolamine, and I’m quoting, “dried up secretions”.

The jury was not giving the — given the faintest inkling that scopolamine is notorious as a drug capable of breaking down will and memory or that it intensifies all of the effects of demerol including the amnesic effect.

Nor were there are any — any facts developed in the state hearing at all concerning the time which it takes scopolamine to be effective.

As to demerol, as I have said previously, a reading of the attending physician’s testimony in the state court, indicates that he made no categorical statements about time effectiveness.

A reading of the Standard Medical Authority does not bear out the normal time effectiveness periods that he referred to.

Moreover, the trial record is devoid of any reference to the manner in which demerol was administered.

If it were administered intravenously, the drug would have been effective immediately.

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

No, Your Honor, that — that is not a correct statement in terms of the entire state record.

It is a correct statement in terms of the record presented to this Court.

Arthur J. Goldberg:

Could you explain what the time (Voice Overlap) —

Daniel G. Collins:

Yes, petitioner — petitioner is not arguing here, as I indicated to Mr. Justice Harlan yesterday, that the instructions were erroneous and consequentially, did not reproduce an entirety to charge.

The charge is reproduced in petitioner’s part of the record in this Court is here for the — for a purpose that I will come to in a moment.

However, in the full Court record, just before the jury retired, the following instruction was given by the Court, and I quote, “When the felony terminated, I leave as a question of fact for you to decide taking all the facts into consideration”.

And now, I come to the important part, “and I have in mind as I told you, Judge Healy, I would charge in regard to the voluntariness of the confession that they are to take into consideration all the elements present, his physical condition, his mental condition and everything that occurred at the time he made the statement.

You may retire, gentlemen.”

I think that that was an adequate instruction, sir.

And we certainly do not assert here that the instructions were inadequate.

Where does that appear in this case?

Daniel G. Collins:

It a — I’m sorry.

It appears in the original state record at page 807, Folio 2421.

Arthur J. Goldberg:

Is that the Court’s (Inaudible)?

Daniel G. Collins:

This was a charge to the jury, I believe, just before the jury retired.

There were a number of special instructions given to the jury just before it retired.

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

Yes, I think that is confusing.

This charge came after this — this exchange came after that request, and it’s — it’s preceded by a statement by juror number 6, “Thank you, Judge.”

And then the Court goes into this instruction.

Is the state record on file here?

Daniel G. Collins:

It is not, sir, but we certainly can make a copy of it available to the Court.

Only excerpts from the state record are — are present in the — in the record in this Court.

The Chief Justice agree with you?

Earl Warren:

Yes, I do (Voice Overlap) —

Daniel G. Collins:

Yes sir.

I — I will leave this with the Court, Mr. Chief Justice.

Earl Warren:

(Inaudible)

Did — Mr. Collins, did the doctors state for what reason he gave both these two drugs, scopolamine and demerol?

Daniel G. Collins:

I believe he stated that — that they were given for normal preoperative — operative purposes.

And I think that would be consistent with the standard practice, sir.

We — the petitioner has never asserted that the drugs were administered as part of any conspiracy between doctor and — and police to obtain this confession, only the taking the confession under the circumstances made it involuntary.

And I think — I think it’s fair to say that respondent would agree that if in fact the drugs had taken the effect that they are capable of having, that the confession under those circumstances would have been involuntary — involuntary.

It seems to be respondent’s position throughout this case has been that the time effectiveness period was controlling.

Petitioner’s argument is that — that a rule which decides these questions in terms of a minute or two when drug reaction as an individual matter is fraught with the greatest danger.

In that respect, I think the case of Griffith against Ray, which was decided in the Ninth Circuit, is of some interest.

There, the confession was taken under almost identical circumstances.

Testimony by various medical testimony resulted in a characterization by the Court of the time effectiveness period is from 5 to 15 minutes.

The confession was over as here at — in 5 minutes.

The District Court there said that the confession was not involuntary since the drug reaction began the moment the confession ended.

I think that’s frankly cutting it too close, much, much too close to protect the defendant’s rights.

Fortunately in that case, the conviction was reversed on other grounds in the Court of Appeals.

In denying any need —

Earl Warren:

I suppose it would depend —

Daniel G. Collins:

I’m sorry.

Earl Warren:

— on the amount that was given too, wouldn’t it?

Daniel G. Collins:

The — the drug, the dosages here that were given so were normal dosages, I think it’s fair to say.

The dosage of scopolamine was at greater.

It was a larger dosage that was administered in the Townsend case.

I think it — it’s fair to characterize them as normal preoperative doses.

Earl Warren:

Yes, but I — without casting any aspersion on — on anyone whether it’s a normal — normal dose or — or not, I suppose the size of the dose would — would make some difference, wouldn’t it?

Daniel G. Collins:

Oh, yes, there’s no question —

Earl Warren:

I know in —

Daniel G. Collins:

— of the standard medical authority.

Earl Warren:

— Townsend versus Sain that was one of the principle contentions of the — of the state that —

Daniel G. Collins:

Yes, I think that’s a fair statement that — that under the standard medical authority that I’m familiar with the — the size of the dose would make a difference.

But I think it’s also a fair statement to say that the standard medical authority has indicated that the doses administrated in this case would have the effect that I’ve described.

In denying any need for a hearing, respondent makes what — what seems to be today a somewhat startling argument at pages 32 and 33 of his brief.

His position on the question of hearing is in essence that petitioner’s trial counsel decided as a matter of tactics, not to attack petitioner’s confession and that petitioner thus is barred from attacking it here.

Daniel G. Collins:

To attack the confession says respondent is to attack the competence of petitioner’s trial counsel, and petitioner here has not shown such incompetence.

In the first place, it seems to me, the record indicates quite clearly that there was no such tactic.

Quite to the contrary, the trial counsel attempted to show in cross-examining the attending physician that a drug was administered and that it hadn’t the effect on petitioner of making him incapable of rendering a voluntary confession.

He took an objection to the admission of the confession in — in the Court.

He asked for a charge to the jury specifically concerning the effect of the so-called “sedation”.

That charge, as I’ve indicated this morning, was — was in fact given to the jury.

In the face of — in the face of those facts, it seems to me, not fair to characterize petitioner’s trial counsel — counsel’s tactic as one of not protesting the admission of this particular confession.

Earl Warren:

Did counsel —

Daniel G. Collins:

On —

Earl Warren:

— propose a more specific instruction on — on the administering of this drug and the one given by the Court, which says you shall take into the consideration all the surrounding and —

Daniel G. Collins:

He — he did not, sir.

He — the — what he requested appears in — in the record in this Court, and there was nothing more asked than that and nothing more given that I’ve indicted this morning from reading — reading from the state record.

The problem was in the trial court, not a problem of tactics.

The problem was that the material facts that I’ve indicated are present were not brought out in the state court hearing.

Moreover, I think respondent misconceives the significance of this Court’s decisions in Townsend v. Sain and Fay v. Noia.

Those cases indicate quite clearly that a criminal defendant does not forfeit constitutional protections because, as a tactical matter, his counsel decides not to protest depravation of constitutional rights, something more is required.

The Court has indicated to raise the argument on waiver that respondent raises here.

There must be a showing that the criminal defendant consciously and willingly participated in the tactical decision, which resulted in the purported waiver.

But respondent’s argument will be tenable only if he could show, probably at a District Court hearing that there was such a conscious and willing waiver of constitutional rights.

It seems to me that on the facts in this case such a contention would be incredible

In any event, respondent has consistently opposed any hearing in this case.

For the reasons stated —

Byron R. White:

(Inaudible) before the — the evidence should address itself to?

The respondent — respondent in his petition for certiorari and his petition for writ of habeas corpus in his brief and this Court has asked for a hearing on the question of the effect the drugs had on his capacity to make a voluntary confession.

That question and that question only.

William J. Brennan, Jr.:

You mean the properties of the particular drugs —

Daniel G. Collins:

The properties of the particular — particular drugs with respect to this particular criminal defendant.

William J. Brennan, Jr.:

Are these the same drugs we had in Townsend and Sain?

Daniel G. Collins:

You — you had — sir, you had one of the drugs.

You had scopolamine.

Daniel G. Collins:

The problem there was it had been called “atropine” in the state — state proceedings.

William J. Brennan, Jr.:

The same here.

Daniel G. Collins:

Scopolamine and atropine are the same.

Here, we, in addition, have the drug demerol.

I think there were some other narcotic present in the —

William J. Brennan, Jr.:

Was there atropine here as well as scopolamine?

Daniel G. Collins:

Atropine is the same thing as scopolamine.

William J. Brennan, Jr.:

Scopolamine.

Daniel G. Collins:

I mean, the — the terms are synonymous.

Byron R. White:

If the waiver — if there was a waiver here, I suppose this — here in point would wash out.

Daniel G. Collins:

If there were — if there was a conscious and willing —

Byron R. White:

Yes.

Daniel G. Collins:

— participation, that is certain.

I think, under your decision in Fay against Noia, there could be a waiver.

Byron R. White:

And there would be no necessity for a hearing at all?

Daniel G. Collins:

If that could be shown, but I think your decision — your opinion in Fay —

Byron R. White:

Yes, I know, but I —

Daniel G. Collins:

— against Noia indicates that ordinarily a hearing is necessary to determine that fact.

Byron R. White:

So this hearing should also address itself to — to waiver?

Daniel G. Collins:

Well, from petitioner’s viewpoint, the question of waiver is — is not one that he would raise.

Of course, that will be —

Byron R. White:

Yes.

Daniel G. Collins:

— a question respondent might — might appropriately raise at such a hearing.

William J. Brennan, Jr.:

But suppose —

Byron R. White:

That assumes who’s the — that assumes something about the burden I suppose.

I mean this is a — this is a — according to state law, I suppose he is concluded — I mean he had a chance to object to the confession and he didn’t.

Daniel G. Collins:

Under — under New York state law, I believe, the rule, Your Honor, is that failure to take an exception in a capital case does not necessarily preclude it’s assertion on appeal.

Failure, of course to exhaust that — to raise the issue at all in the state courts would be a question for this Court.

William J. Brennan, Jr.:

Well, we should agree with you on your Stein point.

(Inaudible) require a reversal of the (Inaudible)

Daniel G. Collins:

Yes, the — the way we have phrased the plea for relief in our brief is as follows on the Stein point.

For on point two, which goes to the involuntariness as a matter of law of the confession, for the reason stated the judgment of the court below should be reversed and the case remanded to the District Court with instructions to issue the — the writ and to order petitioner’s conviction to be set aside and that he be discharged from custody unless — less forth — forthwith accorded a new trial, which I think is the proper plea in such cases.

We certainly don’t ask that the —

Byron R. White:

(Inaudible)

Daniel G. Collins:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

Tom C. Clark:

(Inaudible)

Daniel G. Collins:

Then we would revise our plea to save reasonable time.

Unless the Court has further questions, petitioner’s argument is concluded at this point subject to re — rebuttal.

Potter Stewart:

I just want to make one thing clear to myself.

You say that you are not now claiming any error at all in the Court’s instructions to the jury?

Daniel G. Collins:

I think I’m precluded, Mr. Justice, from — from contending that because we didn’t raise it here.

We didn’t raise it in the Court of Appeals and frankly we did not raise that — that question in our petition for certiorari.

Potter Stewart:

Well, do you think there’s a — apart from whether not sure, you’re precluded from making it, do you think the instructions were erroneous?

Daniel G. Collins:

Frankly, Your Honor, I do not.

I think the — I think the instructions liberally interpreted, which it — which certainly has been the position this Court has taken similar on — on this problem would be adequate.

Potter Stewart:

You read to us a little earlier today from the — the state court record, enforcing the instructions, what page were you reading?

Daniel G. Collins:

I was reading from page 807 of the state court record in Folio 2421.

Potter Stewart:

807?

Daniel G. Collins:

Yes, in Volume II of the paperback record.

Potter Stewart:

2421?

Daniel G. Collins:

Yes, sir.

Potter Stewart:

Thank you.

Earl Warren:

Do you think if counsel had asked for a more specific instruction that the Court would have been obliged to give it?

Daniel G. Collins:

I think the instructions could’ve been better phrased, Mr. Chief Justice, but I don’t think the Court would’ve found this —

Earl Warren:

What I mean is — what I mean is — is this.

The general instruction you take into consideration, all the surrounding circumstances might mean one thing, but if they were — were asked to take into — to consider, you’re entitled to consider the effect of this drug upon — on his — the voluntariness of the confession, it might — it might mean another thing.

Daniel G. Collins:

I think if he had asked for that instruction, specifically that the drug — the effect of drugs be considered and a court had refused, I have no doubt that the refusal would have constituted reversible error.

Earl Warren:

Yes, that’s —

Daniel G. Collins:

And no doubt about that.

Earl Warren:

That’s what I was trying to —

Daniel G. Collins:

But I think in view of the — in view of this entire record, these — these — in trial counsel’s request, I think the instructions are probably adequate.

As I say, we did not raise this — this question, specifically because of the statement that appears on page 807 of the record.

In — it — if the only statement had been the statement that appears in the record in this Court, we might very well have raised that question and argued it here.

Earl Warren:

You may reserve the rest of your time, Mr. —

Daniel G. Collins:

Thank you.

Earl Warren:

— Collins.

Mr. Siegel.

William I. Siegel:

Mr. Chief Justice, may it please the Court.

My learned and respected friend has made a statement that there is some significance in the fact that a great volume of a litigation coming from — involving coerced confessions comes from New York to this Court.

Now, within the last 20 years, approximately, this Court, to the best of my recollection, has considered only four such cases.

The first was the Malinski case.

And I have a very definite recollection of that because I retried Malinski after this Court reversed the judgment on the ground of a coerced confession.

The next was the Leyra case.

What happened there?

William I. Siegel:

In the trial?

The second trial?

William I. Siegel:

Well, we couldn’t use the confession, Your Honor.

And the state’s principal witness on the first trial who was a very degraded character, a — a convict, I forget his name, who was Malinski’s brother-in-law, and who had implicated him outside of the confession recanted.

So we didn’t have the confession, we didn’t have this witness, and the jury naturally acquitted him.

The second case was the Leyra case.

And I have an even more pertinent and personal recollection of that because I argued the case in this Court.

And there too, the Court reversed the judgment because of a coerced confession.

And perhaps to anticipate a question, we retried Leyra, but we didn’t have the confession in that case.

The jury convicted him anyway.

This made three juries which had found him guilty but our Court of Appeals reversed and dismissed the indictment.

The third case was the — the Stein case to which I will refer more at length later.

And the fourth case was the Spano case.

In Stein, the Court affirmed.

In Spano, the Court reversed.

(Inaudible)

William I. Siegel:

In Spano?

I think, sir, that he pleaded guilty to a lesser crime.

It wasn’t our case, it came from the Bronx.

Only the first two were ours.

I find (Inaudible) in the fact that in Leyra, which I argued there was a strong dissent by three members of the Court.

So that there is not this preponderance of litigation from New York to which my friend has referred.

He makes this statistical claim or I should say, perhaps, it has a statistic.

Our record in this Court is not very impressive.

And from New York, there are three reversals and one affirmance, but I don’t cite these facts as a statistic.

I cite them because of their pertinence and relevance to the first argument which Professor Collins makes to wit that not only is the New York procedure in testing out the voluntariness of confession, unkind to defendants.

It is unconstitutional.

Now, in Malinski and in Leyra and in Spano, no point was raised about the constitutionality of the procedure.

But in Stein, it very definitely was raised.

And Mr. Justice Jackson wrote at length on the subject.

And Your Honors will find quotations from his opinion, which I, of course, admire very much, scattered throughout my brief.

And counsel has just conceded here in argument that the Court found in — in Stein, found in New York procedure to be a proper one, unobjectionable from any point of view — of view, and he has reduced to the necessity of asking this Court in effect to reverse on it.

It is, I think, noteworthy that he doesn’t cite a single judicial authority for that point.

And that he has constrained to cite only the writings of text writers and of learned professors of the law, whose authority to speak generally, I — I, of course, do not attack, but whose practical experience in the field is open to question.

Potter Stewart:

Do you happen to know, Mr. Siegel, how many states follow the New York rule that you’ve told (Voice Overlap) —

William I. Siegel:

I have no statistics, Your Honor.

They — there are more than one I would say.

Potter Stewart:

New York’s not unique.

William I. Siegel:

No.

I think my friend would concede that.

That there’s anything inherently unfair in the system, I do not believe.

I’ve tried cases.

I’ve tried cases for many years before I began to argue on the questions of law.

I’ve seen jury’s concern with — with confession cases who have acquitted defendants.

I can’t give you a statistic on that either, but I think it is fair to sum up Professor Collin’s position and the position of those legal scholars in whom we he finds his support in his conflict, that it is based on a deep pervasive and underlying fear and disbelief and distrust of the jury system.

William I. Siegel:

Now, this Court had occasion to write in Leland against Oregon, in addition to Stein against New York, where the specific question of confession was involved.

This Court had occasioned to write not too long ago in 344 U.S. Juries have for centuries made the basic decision between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts as revealed by all the evidence and the law, as explained by instructions detailing the legal distinctions, placement and weight of the burden of proof, the effect of presumptions, the meaning of intent, etcetera.

We think to condemn the operation of this system here would be to condemn the system generally.

We are not prepared to do so, and it is our answer almost in some to the contention on the first point that nothing has been shown in this case to cause this Court to change its opinion expressed in the Leland case, in the Culombe case, in Rogers against Richmond and Stein against New York that the jury system of trying out the voluntariness of a confession is both proper and workable and constitutional.

That it — that the system operated to the detriment of this defendant in the final verdict and judgment.

So, of course, no argument at all because there was a plentitude of — of evidence in this case of guilt outside of the confessions, and I will have to refer to that in brief in a moment or two.

But to summarize our position, there is no warrant either in the decisions of this Court or in the Constitution itself to compel this Court to say that a particular method of trying a question of fact is unconstitutional.

My friend speaks of the Stein decision as the Stein aberration.

Now, I think he is not — he is not really referring to this aspect of the Stein case at all.

And that which caused the dissent in Stein was the intimation, although I don’t find that it was a holding that if there was other and sufficient credible evidence of guilt, the fact that an involuntary confession had been admitted would not void the judgment.

Well, this Court has made it clear in Spano and other cases that that is not the law, and that is not the point that’s involved here in this case.

Arthur J. Goldberg:

Mr. Siegel, your argument (Inaudible)

William I. Siegel:

Well, there are — there some cases where that is so in libel.

In libel our statute —

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

— specifically provides and I’ve never seen an attack on that.

Arthur J. Goldberg:

But that is in effect that the point of your argument is to illustrate —

William I. Siegel:

No, Your Honor.

I’m arguing just the other way around.

I’m not concerned with the case with that point because the issue hasn’t been raised.

I am arguing that as long as proper safeguards are thrown around a defendant, a jury may, under a state constitution and federally constitutionally pass on all questions of fact involving the very awesome ultimate question of guilt or innocence.

If it may pass on guilt or innocence, I can’t see why it can’t pass on subsidiary questions provided that proper safeguards.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

I don’t intend to say that, Your Honor.

I think that can be solved, but I don’t intend to say so because I don’t think it’s necessary to my argument.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Not all lawyers.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Not all lawyers.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

If a —

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Yes.

Our procedure — I — I had thought the Court was familiar with it, our procedure in summary is this, the confession is offered on behalf of the people.

The defendant may then, through counsel, object to it and ask for a preliminary voir dire.

He doesn’t have to.

This is (Inaudible) but he certainly has this important right.

Or you may wait and cross-examine on the subject.

If he wants a voir dire, he may have it in the presence of a jury or not in the presence of a jury.

Usually, it’s done in the presence of the jury but I am very certain that if a request were made that the jury be excluded, it would be granted even though that would involve trying the issue of voluntariness twice.

If, after all, the evidence is in and the defendant, if he wishes, may call witnesses on the issue of voluntariness, he may even take the stand on that issue, although if he does, he subjects himself to general cross-examination.

When all of the evidence is in, if the Court must say that no reasonable men could differ on the issue of involuntariness, then the Court must, as a matter of law, exclude the confession.

If on the other hand, reasonable men, with normal mentality and normal probity, can disagree on this subject, then it must go to the jury with proper instructions as to the necessity of complete voluntariness.

Arthur J. Goldberg:

Mr. Siegel, from your experience (Inaudible)?

William I. Siegel:

Well, at the moment, in my own experience, I remember one.

Now of course, Your Honor, there — there are not too many cases were confessions are involved out of the, let’s say 6000 indictments which we’ve had to get in Brooklyn this past year.

I would say that 90% of them are disposed of by plea or dismissal or something like that.

And of the remaining 600 or so, not all of them have confessions that —

William J. Brennan, Jr.:

(Inaudible) preliminary voir dire excluding the jury.

William I. Siegel:

Very few.

William J. Brennan, Jr.:

If you recall?

Very few.

William I. Siegel:

Very few.

William J. Brennan, Jr.:

I —

William I. Siegel:

But this —

William J. Brennan, Jr.:

I gather what you said.

The judge, doubtless, would grant a request.

I think is the way you put it, but I gather the judge is not obliged to even a grant a voir dire (Voice Overlap) —

William I. Siegel:

No, I think it’s discretionary.

William J. Brennan, Jr.:

It is discretionary.

William I. Siegel:

I think it’s discretionary.

I — I don’t really remember any request at all, but I am very certain, Mr. Justice Brennan, that the request can be made, and it would be a capricious judge, I think, who would reject the request.

And even —

William J. Brennan, Jr.:

But of course, all that (Voice Overlap) —

William I. Siegel:

— if he did, it would be in the exercise of judiciary discretion, and I’m not sure that — I am sure that that would not be an — an abuse of discretion because the defendant has an opportunity to test out the question.

And since the question must eventually go to the jury anyway, I don’t see that he is harmed by having the confession tried out preliminarily and then other proceedings.

William J. Brennan, Jr.:

Well, I — I gathered what you said though that if the jury were excluded and the judge were to conclude after the hearing of testimony out of the presence of the jury that as a matter of law, this was an involuntary confession.

The jury had never hear a thing about it.

William I. Siegel:

That’s true.

That is —

William J. Brennan, Jr.:

But you don’t recall any instance where that happened?

William I. Siegel:

I can’t, Your Honor.

Standing here, I mean these cases come, and they go, and I don’t try them all.

I just remember those that are particularized for a point.

But I think it happens.

Now, the second and third points in petitioner’s brief —

Potter Stewart:

I just — just to com — just to complete your New York procedure, I am quite sure I’m correct about this, but you tell me if I’m not, that after the judge has determined that reasonable minds could differ as to the voluntariness of a — of this confession, he then — if the confession is then introduced and — and subsequently or at that time, in his instructions to the jury, the judge tells them that it’s up to them to decide whether or not it’s voluntary.

And that if that — and if they find that it is not voluntary, they are to completely disregard it.

William I. Siegel:

That’s correct.

Potter Stewart:

Now, what’s he telling about the credibility of the confession if anything?

William I. Siegel:

Well, the question of credibility of witnesses is always (Voice Overlap) —

Potter Stewart:

Just a general instruction on credibility.

William I. Siegel:

Yes.

And he instructs them on that.

I might say that the Court of Appeals — the court below paid the instructions in this case on the question of voluntariness, the complement of speaking very highly.

And as I recall, I think our Court of Appeals, our State Court of Appeals did the same thing.

Incidentally, Your Honors, I have here a bound volume of the record and the briefs in our Court of Appeals, if this will serve the Court’s purpose better than Professor Collins’ loose volume, I’ll be happy to leave it.

Earl Warren:

You may — you may do that.

William I. Siegel:

Thank you, sir.

Earl Warren:

Sure.

William I. Siegel:

Now, Your Honors, I advert to — to the two points raised by petitioner, which I think really involved one question.

The second point is that the petitioner’s confession was, in fact, in a law voluntary.

And the third is that the — that’s my answer.

He says it was involuntary, and he says in his third point that in any rate, the District Court shouldn’t have decided the question without a hearing.

And I answer that they should.

Now, for this reason, it’s necessary to refer a little more fully to the facts of the case than did Professor Collins.

This defendant, with a woman, had entered a Brooklyn hotel and perpetrated a robbery on a number of people there.

I make no further reference to the woman because she pleaded guilty to manslaughter in the first degree and nothing in this case is, in anyway, affected by her participation in the crime.

After —

Tom C. Clark:

(Inaudible)

William I. Siegel:

Yes, sir.

Tom C. Clark:

And Justice Jackson says I think under New York law, page 162, New York law says it requires a preliminary hearing of admissibility.

I thought you said it was discretionary.

William I. Siegel:

Well, if the point is raised.

I think he meant that.

Suppose, Your Honor, that we offered no objection whatever is made.

In fact, there’s a concession by silence that it’s a perfectly voluntary confession.

You don’t have to have a voir dire on that point.

Tom C. Clark:

Then this — he doesn’t mean by this — the judge happen to have — it’s required (Inaudible)?

William I. Siegel:

No.

Earl Warren:

Well, if he does —

William I. Siegel:

You may suppose it —

Earl Warren:

If he does object to the confession at the outset, is — is he then required to have a preliminary hearing?

William I. Siegel:

Well, then the preliminary hearing will be held if we offer it.

Tom C. Clark:

(Inaudible)

Earl Warren:

But it’s a part of the —

Tom C. Clark:

(Inaudible)

William I. Siegel:

Oh, yes.

Yes.

The admission of a — a confession to which an objection has been made without a preliminary voir dire would be clear error under New York law without more.

Earl Warren:

But the — the voir dire is a part of the trial?

William I. Siegel:

Yes, unless, as I have said before, counsel has —

Earl Warren:

Yes, yes.

William I. Siegel:

It’s part of the trial.

Earl Warren:

Yes.

William I. Siegel:

It’s conducted in the hearing of the jury unless counsel asks that the jury be excluded during the voir dire.

Earl Warren:

Yes, I see.

Tom C. Clark:

I misunderstood you.

I thought that you said it was discretionary hearing (Inaudible).

As I understand it now, one objection (Inaudible) in the law of your state requires —

William I. Siegel:

Oh, yes.

Tom C. Clark:

— preliminary hearing —

William I. Siegel:

Yes.

Tom C. Clark:

— either in — in or out of the presence of a jury —

William I. Siegel:

That’s right.

Tom C. Clark:

(Inaudible)

William I. Siegel:

And as I say if the Court denied the voir dire, the request for voir dire, this would be grounds for reversal without more, regardless of the other proof of guilt.

Now, as I say, Your Honors, this man entered a Brooklyn hotel with the woman.

He perpetrated a robbery.

]He herded the victims to an upper floor room, and in effect, he said, “You stay here and don’t make any noise or else.”

But when he got down on the street, they broke the window — a window and they shouted for help.

There was a policeman named Ramos in the vicinity, and Ramos ran towards the defendant.

Unfortunately, he didn’t have his service revolver out when he met up with the defendant.

And a struggle ensued during the course of which the police officer was knocked to the ground.

And this defendant, and we had other witnesses aside from the confession that I think four taxi cab drivers has happened to be at a stand where taxi men rested from their labors.

He stood over the policeman, who was continuing to try to get his revolver out of his holster, and in substance, he said to him, “Don’t be a hero, don’t be a hero.”

While the policeman persisted, he finally got his revolver out, he shot the defendant.

I think it’s fairly clear, although it’s confused.

It’s fairly clearly that the policeman shot the defendant first, which, of course, raises no legal question in this case.

And then defendant shot the policeman a number of times.

William I. Siegel:

And after he did, he come and get a taxi cab and asked for — forced the man, because in the record, you will see somewhere that the taxi driver says, “Put that thing away”, meaning his gun.

He forced him to take him to the Cumberland Street Hospital, which is a city hospital in downtown Brooklyn.

The taxi driver had presence of mind enough to say to the defendant, “I can’t take you in all by myself.

I’ve got to go and get help.”

And the defendant permitted him to leave the cab.

There was a police officer in the vicinity, came up, arrested the defendant, he was taken into the hospital.

The detectives of the precinct were notified and very quickly, thereafter, one of the detectives came and he got a statement which certainly implicated the defendant in the crime.

And this detective testified that the defendant was strong.

He gave no evidence of weakness.

And as a matter of fact, his confession is not at all tact.

About almost two hours later, well, I should say this, the police then notified our office.

We have a system whereby whenever a felony is committed in the county, in the borough of Brooklyn, we are notified, and somebody from our office goes with a stenographer and interviews witnesses and interviews the defendant, if he’s been apprehended and tries to get a statement or a confession.

It was about two hours later that our man came with a stenographer.

And it is one of the coincidences which happened, which give warrant to the phrase that more — truth is sometimes stranger than fiction, but just as this defendant was about to be taken upstairs to the operating room and just as he was given this injection of combined scopolamine and demerol, our man came, took the statement.

The evidence shows that the statement was 5 minutes in duration and then our man left.

Now, the testimony as to his physical condition, there was nothing in the record, nothing whatsoever to show that he was unable to try to give this statement, the trial of some statement about his being refused water unless he continued to give the statement.

We showed quite satisfactorily that he was refused water at the instance of the hospital attendants because that’s proper preoperative treatment.

Nobody gets water when he is about to go up to the operating table.

Potter Stewart:

He had been shot —

William I. Siegel:

Oh, yes.

Potter Stewart:

— through the liver?

William I. Siegel:

Very badly, very badly wounded.

He had been shot in the lung, and I think in the abdomen.

I think the operation took several hours.

Arthur J. Goldberg:

He had lost considerable blood?

William I. Siegel:

He had lost a little 500 cc, sounds very great.

Actually, I think it’s a pint of blood, which is something which is fairly easily repaired and re-supplied.

Arthur J. Goldberg:

Mr. Siegel, in interrogating the person accused, he wasn’t accused at the time.

Is it natural practice to warn him of his rights?

William I. Siegel:

We hadn’t at this time.

William I. Siegel:

We hadn’t been required under the decisions of our court to do so.

We don’t believe that we are required under the decisions of this Court, required absolutely to do so.

I think I may sum up the law of this Court by saying that the failure to do so, with all of the other circumstances in the case goes to the question of voluntariness but we were under no McNabb-Mallory compulsions.

There have been certain developments which will probably change the practice in our jurisdiction.

Arthur J. Goldberg:

Wasn’t there some intimation on the judge’s statement about the statement made by this woman that the warning question was not the — something relevant to consideration of the — the voluntariness?

William I. Siegel:

I don’t understand that, Your Honor.

Arthur J. Goldberg:

(Inaudible) trial judge has indicated the question (Inaudible) had nothing to do with voluntariness (Inaudible) the question.

It wasn’t (Inaudible).

William I. Siegel:

I don’t think he — I don’t think he went that far.

Arthur J. Goldberg:

In some respect with (Inaudible).

William I. Siegel:

Your Honor —

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

— pointed out to me, I tried to deal with it but I don’t think he went that far.

I don’t think any of our experienced trial judges would do that.

Now —

Potter Stewart:

Mr. Siegel —

William I. Siegel:

Yes sir.

Potter Stewart:

You told us correctly as I understand it that no objection has been made or is made now to the introduction of the first incriminating statement —

William I. Siegel:

As I —

Potter Stewart:

— which this man say — made to the policeman when he was (Voice Overlap) —

William I. Siegel:

As I understand the case, Your Honor, that’s so.

Potter Stewart:

And that’s my understanding from Mr. Collins.

And in objecting to the — to the second incriminating statement to the so-called confession, to the confession, Mr. Collins made a great point to the fact that it was more damning — more damaging than the first one insofar as it made explicit the fact that — that the defendant fired the first shot and yet, in argument, you’ve said that has nothing with to do with the (Voice Overlap) —

William I. Siegel:

I don’t think my learned adversary is correct in that.

I — I think the second — the second statement is, “I shot the cop.”

Potter Stewart:

Which one —

William I. Siegel:

One — one of them said, “I got the drop on him.”

Potter Stewart:

That was the first statement.

William I. Siegel:

And I as remember that’s the first —

Potter Stewart:

“I shot — I killed a cop, I got the drop on him.”

Potter Stewart:

That was the first statement.

William I. Siegel:

Got the drop on him.

Now, this is the one to which no objection is made.

The other one as I recall it is, “I shot the cop.”

Now, in the whole picture and framework of this case, I doubt that the jury picked out an adjective or a word and in order to attribute more importance to one confession than to another confession.

They considered the whole panorama of proof.

Yes, sir.

Potter Stewart:

The policeman in uniform when he was shot?

Was he obviously a policeman in other words?

William I. Siegel:

Yes, there’s no question that the defendant knew he was a policeman, yes, sir.

Arthur J. Goldberg:

Mr. Siegel (Inaudible)

William I. Siegel:

Yes.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

That’s right.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Yes.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Well, at that time, it was.

In state law, we’ve since had a decision by our Court of Appeals in Donovan v. Menture (ph) in which by a very sharply divided court, four-to-three, Judge Fuller wrote, that where a defendant is being questioned, this case happened to be the police station, could be by us, and a lawyer retained for him by his family comes and asks to see him and is refused admission.

The confession thereafter gotten is inadmissible.

So that I think our procedure and if the police are wise, police procedure, hereafter will be, if somebody comes and asks to see the defendant and he is going to see him.

But Judge Fuller’s opinion still doesn’t go to the length of saying that willy-nilly and without a request, we have to say you are entitled to a lawyer.

And neither a prophet nor a prophet’s son, therefore, I won’t say whether in New York, we will eventually reach that point, but we haven’t reached it yet.

Hugo L. Black:

What was the ground for that holding, constitutional or statutory?

William I. Siegel:

No, sir, no, sir.

Judge Burke, who dissented, pointed out that there was no requirement under constitutional law, federal law there was no requirement under our own constitution and there was no requirement under the various statutes dealing with the right of counsel.

Hugo L. Black:

You say that’s what the dissent pointed out?

William I. Siegel:

Yes.

Judge Fuller disserted —

Hugo L. Black:

(Inaudible)

William I. Siegel:

Judge Fuller —

Hugo L. Black:

He what?

William I. Siegel:

— disserted that these statutes and our own Bill of Rights section against self-incrimination require this holding.

Hugo L. Black:

It was (Voice Overlap) —

William I. Siegel:

Not for me to say who was right, but I do —

Hugo L. Black:

It was constitutionally —

William I. Siegel:

— have an opinion.

Hugo L. Black:

It was based on the constitution.

William I. Siegel:

Not the Federal Constitution.

Hugo L. Black:

They (Voice Overlap)

William I. Siegel:

He says quite apart from the federal —

Hugo L. Black:

Based on the state provision against self-incrimination.

William I. Siegel:

Yes, sir.

Hugo L. Black:

Is it the same as the —

William I. Siegel:

Yes sir.

Hugo L. Black:

(Inaudible)

Precisely?

William I. Siegel:

I — I think it’s in precisely the same words.

Certainly, the same intendment.

I thought we’ve held that there is no such right (Inaudible)?

William I. Siegel:

That’s right.

And Judge Fuller recognizes that because he uses a phrase, as I recall, quite apart from federal requirements.

Later on as I make the point that so far as this record is concerned, there is nothing, and the State Court of Appeals, the District Court and the Circuit Court of Appeals all agree, that there’s nothing in the record to indicate any disability, mental or otherwise, on the part of this petitioner when he gave the second confession.

And that everything, every argument made in his behalf in this Court is based upon assumption.

It’s based upon the fact that because some medical authorities wrote, and I have read them and some of them are pretty old, that scopolamine and/or demerol generally have the effect of dulling the mind.

This happened in the instant case.

Arthur J. Goldberg:

Mr. Siegel, this is (Inaudible) that there was no hearing?

William I. Siegel:

No, there was no hearing.

Arthur J. Goldberg:

(Inaudible) in this case.

This came down the court (Inaudible).

William I. Siegel:

Yes, I believe so.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Well, alright, Your Honor if —

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Yes.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

I suppose that’s so.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Well, Your Honor —

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

No, Your Honor, I don’t think so.

Arthur J. Goldberg:

Why not?

William I. Siegel:

You pointed out in Townsend against Sain six classes of cases where there ought to be a hearing on a petition for writ.

I know you remember them but just for my own benefit I want to read this.

“We hold that a federal court was granted a — evidentiary hearing to a habeas applicant under the following circumstances.

If one, the merits of the factual dispute were not resolved in the state hearing.”

Now, they were resolved.

The jury’s verdict resolved them against the defendant.

They found that the con — that the confession was voluntary and having found that they necessarily had to find that he had no impediment of mind.

They were resolved.

Hugo L. Black:

Was that accepted finding?

William I. Siegel:

I beg your pardon?

No, sir, this is a general verdict.

Hugo L. Black:

You mean they found him not guilty?

William I. Siegel:

They — they found him guilty.

Hugo L. Black:

In fact, they found him guilty.

William I. Siegel:

And they found him —

Hugo L. Black:

You say from that that it necessarily follows that they have a confession that’s voluntary?

William I. Siegel:

Yes.

Hugo L. Black:

Why?

William I. Siegel:

Yes.

Because they were charged — they had been charged by the trial court on the subject of the fact of the confession and what they had to find in order to accept the confession.

Potter Stewart:

But isn’t it quite possible that they found the confession involuntary but found that there was sufficient other evidence to make them — make them find him guilty of the murder.

William I. Siegel:

No, because I think the charge, the instruction pointed out that once the confession had been received, if they found it in — has been involuntary, they had to acquit.

Where is that (Inaudible)?

Potter Stewart:

Where is that here?

William I. Siegel:

That’s somewhere in the record, Your Honor.

I got at the moment —

Potter Stewart:

Be — because there was that other confession and there was the — all the other evidence against the —

William J. Brennan, Jr.:

(Inaudible) — I think I’ve suggested (Inaudible) that that’s the most important point in the case.

Where does that appear?

(Inaudible)

William I. Siegel:

Where is that, right in the little one?

(Inaudible) If you should (Inaudible) exclude in the case, you don’t consider at all (Inaudible).

William I. Siegel:

Well, I think that sustains my assertion.

Arthur J. Goldberg:

(Inaudible)

William I. Siegel:

Well, no, they couldn’t — they couldn’t consider that.

They couldn’t consider.

Arthur J. Goldberg:

(Voice Overlap)

William J. Brennan, Jr.:

(Inaudible)

Potter Stewart:

But they could find the confession completely involuntary and if they followed the Court’s instructions completely disregard the second confession and nonetheless find him guilty of first degree murder, could they not?

William I. Siegel:

Yes.

Potter Stewart:

And that’s your point?

William I. Siegel:

On — on all of the (Voice Overlap) —

Potter Stewart:

And they were so instructed?

William I. Siegel:

Yes.

Tom C. Clark:

That’s Stein.

William I. Siegel:

I beg your pardon?

Tom C. Clark:

That’s Stein case?

William I. Siegel:

That’s Stein.

William I. Siegel:

That’s the practice.

I guess practice in New York is practice in the federal courts so far as I know.

Now, the second class of cases, the state factual determination is not fairly supported by the record as a whole.

We say that just because counsel didn’t inquire into the hypothetical features does not mean that the evidence which actually is there does not support the finding that the defendant’s mind was not affected.

The third, the fact finding procedure employed by a state court was not adequate to afford a full and fair hearing.

Well, I think the answer is that our voir dire procedure does support such an opportunity.

The fourth, there is a substantial allegation of newly discovered evidence.

Now, Your Honors, there’s no new evidence offered to this Court and there was none offered to the District Court.

All that is being offered now is the fact that in cases quite different from the instant case, this Court has held that demerol — that a confession induced by demerol is inadmissible.

And all — in addition to that that’s offered, is that there’s some medical — there are some medical treatises, some medical learning on the subject of demerol.

But evidence as such, evidence tending to show even in the most minute particular that this defendant was thus affected has not been offered and is not now offered in this case, in this Court.

It’s only generalizations based on medical knowledge but the material facts were not adequately developed at the state court hearing.

Now, I’ll skip this for a moment.

And six, for any reason, it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Now, I — I don’t think that there is any question that — that the hearing was fair insofar as it went.

And I don’t think there’s any question that whatever limitations on the hearing that were in the state court was — were limitations self-imposed by counsel.

In other words, counsel didn’t ask for more than the defendant got.

I — I think this requires me to say word about counsel.

Defendant was represented by assigned counsel, Chief of whom and the gentleman who carried the fall was Mr. Leo Healy.

I think in my brief, I speak of him as the Nestor of the criminal bar in Brooklyn.

He was then almost 70 years of age.

He had in his earlier days been an Assistant District Attorney.

He’d been a magistrate and for upwards of a half a century had practiced criminal law almost exclusively.

He was assigned to this man.

Your Honors will read the record.

I think you will perceive that he did for his client everything that anybody could do for a client in the situation and precarious predicament in which this defendant found himself on the trial.

So far as I pointed out, we had eyewitnesses that the defendant stood over the policeman and said, “Don’t be a hero.

Don’t be a hero.”

And finally shot him.

Now, what was Judge Healy to do in a case like this?

William I. Siegel:

Was he to exercise his forensic ability and he had it in great degree, he had a voice that sounded like the overtones of a cathedral organ.

And try to get this man acquitted in the face of the overwhelming evidence, one, of premeditated murder and two, that it — it was a homicide committed at the very moment of the completion of the robbery?

Well, no lawyer worthy of resolved would do that anymore than a general would send a platoon against a division.

All Mr. Healy had opened to him, and all he tried to do was to persuade the jury not to convict his defendant, his client, a murder in the first degree.

And the summation is replete with that.

He uses the word I don’t quite understand the — the relevance of this.

He says, “It would be — it would be affectatious for me to ask you to acquit the defendant completely.”

And his whole summation was devoted to an attempt to show that there was no premeditation and that the felony had long been completed and therefore, this was not a true felony murder.

Now, to say to my friend, it’s too gentlemanly to say it, but I think it’s implied in his argument even though he rejects the suggestion in his own presentation to say a lot to imply that Judge Healy’s choice of tactics, and I use the word “advisedly”, and I don’t there is anything offensive about it.

That to say or to imply that Judge Healy’s choice of trial tactics rendered the representation that bad, as to make a mockery of justice in this case, is I think to misconceive the nature of the state and federal cases on that subject and to misconceive the — the tenor of the trial.

Now, let me concede that the issue was not fully explored.

It wasn’t.

I take it that Judge Healy had been so minded he could have asked for a continuance.

And he could have brought in an expert witness or witnesses.

And the expert could have testified in response to a hypothetical question involving all the evidence in the case and maybe, the expert would have said, under these circumstances, the man could not have been in full possession of his mental faculties.

I think Judge Healy had the right to say whether from the overall point of view of the ultimate interest of his client, he wanted to confuse the issue in that fashion.

And he also had the right to say out of his experience and out of his ability that he didn’t have a ghost of a chance to win this case on that kind of an issue.

Because from practical experience I think juries demonstrably always pay more attention to a witness who was present and who can testify and who did testify, the man was alright than they will to a paid expert who come in and on the basis of a hypothetical question pontificate that this was or was not so when he wasn’t there.

And this whole issue was as simple as all that.

And this, by the way, is what’s going to happen if this Court shouldn’t reverse the court below and — and return the matter to the District Court.

I can’t conceive that this Court will reverse the judgment because there’s nothing in the record to warrant anything of that kind.

The outside limit of what this Court could or — and I don’t say should, could do, it seems to me, is to return it to the District Court for a hearing on the issue of the physic — not the properties of demerol but the — the effect of the demerol administered here on this defendant within the 5 minutes that it took to take the statement.

Now, what would the District Court have?

It wouldn’t have a single thing beyond — before it that it didn’t already know because everybody knows that drugs given to reduce pain, and that’s what demerol is for, drugs given to reduce pain have, an effect on the nervous system and on the mind in general and the District Court would have no more than this.

We get hold of the same doctor.

We get hold of the same nurse.

We can get a hold of everybody who is in that room when our assistant took the statement.

And those people would testify and testify truthfully to the same effect as they testified to on the trial.

And then they would be paraded before the District Court, a possession of one or more experts, who would testify that in certain cases, demerol causes a man to lose control of his mental faculties.

They couldn’t say.

William I. Siegel:

They couldn’t say positively.

They couldn’t even approximate the certainty which our eye and ear witnesses would have that in this case, it has that effect.

Now, what could the District Court properly do except to find after a hearing exactly what it found before a review.

Earl Warren:

Mr. Siegel, may I ask —

William I. Siegel:

Yes sir.

Earl Warren:

— you where that confession is, that second confession is in the record at, do you recall?

Page 10.

Earl Warren:

Oh, (Inaudible) — Mr. Justice Harlan just told me its page 10, it’s alright.

William I. Siegel:

Yes, sir, that’s at page 10.

Earl Warren:

Yes.

William I. Siegel:

And you can see from the shortness of it, Your Honor, that when — when the testimony shows, it took only 5 minutes but that testimony was adequate.

Now, Your Honors, this (Voice Overlap) —

Could I ask you a question?

There was no issue at the trial that a drug of this character do have a debilitating or whatever (Inaudible) effect on memory or (Voice Overlap) —

William I. Siegel:

Well, there was some testimony I think at page —

Well, I mean that wasn’t disputed was it, that the administration of the drug does have —

William I. Siegel:

Makes him drowsy.

Got drowsy there.

William I. Siegel:

I think that was the word that was used.

But the —

Was there any evidence introduced to — as to the effect of — either of these drugs within a period of 5 minutes which was the period which these confessions (Voice Overlap) —

William I. Siegel:

I’m going to read — on cross-examination, Dr. Suarez, who had been present, testified that demerol is a pre-anesthetic medicine.

Its main action is to relieve pain, to deaden pain and somewhere in here, scopolamine, apparently isn’t in question, not only dries up secretions, but somewhere in here, the word it makes them drowsy or the phrase as used.

And then on redirect examination or on cross-examination, Judge Healy asked, “Wouldn’t it take effect in a shorter time, perhaps on one person than it might on another?”

The doctor said, “In children, for example, the same dose might have a faster effect.”

Then the Court said, “Judge Healy asked you, doesn’t the physical condition of the patient to whom you inject have an effect on how long before it takes effect?”

And the witness said, “Oh, no.”

Now, this is undisputed, nothing in the record to the contrary.

The — he — he said the same thing.

There wouldn’t be much different as between a person in good health and a person who have been shot through the liver, is not much different.

William I. Siegel:

And when Judge Healy persistently said that there would be some difference, wouldn’t there?

He said, “I couldn’t say.

I don’t think there is much difference.”

Then he goes on to say, “Well, 15 minutes is usually the time of action after you inject it.”

He says it operates individually, the sum and substance Your Honor is that our witness, it was not contradicted except in the form of questions which, of course, wasn’t evidenced.

Our witness in substance said that the fact that this man had lost a pint of blood that he had been shot through the liver, I thought it was the lung, had made any difference.

He was still in full possession of his faculties.

And that’s exactly what this witness will say, I’m sure, if there’s a hearing order.

And so will everybody else who was there speaking as layman not as — as technicians or experts.

And the expert alone he say, “Well, there are cases”, I sum it up, he say, “Well, there are cases where demerol and/or scopolamine will have this effect.”

But I can’t tell you.

I’d had this effect in this case of course I wasn’t there.

And I can’t tell you that it had this effect in this case even though the man had been shot and even though he lost a pint of blood because I wasn’t there.

In other words, it’s comparative value of an eye-ear witnesses’ testimony as against expert testimony in response to a hypothetical question.

Arthur J. Goldberg:

Mr. Siegel, what do you mean (Inaudible) to the confession on page 11 (Inaudible), is that your standing in the (Voice Overlap)?

William I. Siegel:

Well, Your Honor, I have to guess a little bit.

I think he was probably thirsty, didn’t have any water.

I think he was probably tired.

I think he was very uncomfortable.

But this is far from a concession on my — on my part.

I certainly don’t intend to make one and it is far from a showing by way of evidence that he was in that condition, either mental or physical which prohibits the taking of an inculpatory statement.

Arthur J. Goldberg:

Being forced by whom, his testimony would be, does he?

William I. Siegel:

His testimony on the trial?

Arthur J. Goldberg:

Yes.

William I. Siegel:

I would hardly have expected him to testify to anything else.

But the law is well settled in this Court than on all contested questions of fact, the issue comes here resolved by the state court.

And in this case resort — reinforced by the action of the District Court and the Circuit Court.

The only thing that I think this Court ever concerns itself with are the — are the inescapable conclusions to be drawn from the admitted facts and this has been said in Thomas against Arizona and a whole long line of cases.

Hugo L. Black:

What if the New York court that we know has held that this confession was voluntary?

William I. Siegel:

Well —

Hugo L. Black:

I want to ask you —

William I. Siegel:

From the book, Your Honor.

Hugo L. Black:

May I ask on the facts and held it voluntary.

William I. Siegel:

Well, since it’s a death case —

Hugo L. Black:

What?

William I. Siegel:

Since it’s a death case, our Court of Appeals searches the whole record.

Hugo L. Black:

They may search the whole record but did they discuss and decide and take up the evidence, say on this evidence we find that the testimony — confession was voluntary.

It’s plain —

William I. Siegel:

Of course I can’t —

Hugo L. Black:

— we can’t say that the jury did it, we can’t say the trial court did it and it — can we say it in any other court?

William I. Siegel:

Yes, I think you can because aside from the reports on the matter, the — our Court of Appeals, after affirming the judgment on July 7th, 1961, on October 5th, 1961, denied a motion for re-argument but granted a motion to amend the remittitur and to certify a constitutional question or two.

These constitutional questions were, one, whether the petitioner’s right to due process under the Fourteenth Amendment were violated, one, by the use of a coerced and involuntary confession, which is precisely this point.

And the other had —

Hugo L. Black:

But the jury may not have used it at all, the jury may have discarded it.

William I. Siegel:

The confession?

Hugo L. Black:

Yes.

William I. Siegel:

I have no way of telling you that, Your Honor.

Hugo L. Black:

You have no way of telling.

William I. Siegel:

Since we have a general verdict —

Hugo L. Black:

You have no way of telling whether the jury had accepted it or rejected it?

William I. Siegel:

That’s right.

Hugo L. Black:

And the trial judge was under no duty to find — to find it, to determine it, was it?

William I. Siegel:

No, because —

Hugo L. Black:

Because —

William I. Siegel:

— there was a question of fact.

Hugo L. Black:

And did your Court of Appeals’ write an opinion saying that they took it up?

William I. Siegel:

I don’t believe so.

From the pagination, I —

Was there an opinion?

William I. Siegel:

I don’t think there was an opinion in our Court of Appeal.

Byron R. White:

I thought you indicated that this certificate that they gave showed that they did consider that they (Voice Overlap) —

William I. Siegel:

They considered it.

No.

Mr. Justice Black asked me if they had written an opinion.

Byron R. White:

But they — but their certificates — do you think shows that they —

William I. Siegel:

Oh, yes.

Byron R. White:

— did consider whether it was or was not voluntary?

William I. Siegel:

They granted a motion to amend the remittitur and they certified that upon the argument of the appeal, a constitutional question was necessarily presented and decided to wit.

And then one of the questions was whether or not the use of this confession violated his rights to due process and the other related to the charge by the trial jury.

But this is —

Byron R. White:

I’m not —

William I. Siegel:

— exactly the question that was raised in Stein Your Honor —

Byron R. White:

I understand that.

William I. Siegel:

— the same complaint.

Byron R. White:

I understand that but I understand that we are asked to reconsider Stein —

William I. Siegel:

Yes.

Byron R. White:

— in that respect.

William I. Siegel:

Yes.

Does it ever have been the practice to ask for a special verdict on these coerced confession cases?

William I. Siegel:

I don’t know of any.

I think our statute, one of the sections of the Code of Criminal Procedure permits of special verdicts.

It doesn’t say specifically with respect to a confession, but it does permit of special verdict, but I never heard of one.

Never saw one considered in — in the cases.

Arthur J. Goldberg:

Mr. Siegel, in assessing the effect of the drug, the — these several kinds of medicines (Inaudible)

Now what’s another property of the drug (Inaudible)?

William I. Siegel:

First, I didn’t intend to say memory, I — his mentality in general.

Secondly, I don’t find anything in the petition which specifically — which specifically claims that demorol and/or scopolamine lands him — I’ve used — they put susceptible to suggestion.

There’s no such claim that I know of.

I — as I understand, it is claimed that when he talked, he didn’t know what he was saying. Put it in layman’s language, he didn’t know what he was saying and therefore, this was not the free product of a conscious mind.

And as I say, Your Honor, I don’t know if repetition will add very much.

William I. Siegel:

This is based on nothing more than few articles in the Pharma Code here and so on.

There’s no basis whatever into it.

Earl Warren:

Mr. Collins.

Daniel G. Collins:

Mr. Chief Justice.

Several of the points that have been raised, questions by the Court to Mr. Siegel, I think, are answered in the Stein case.

The opinion by Mr. Justice Jackson, on page 172 of 346 U.S., speaks of the — discusses the question of whether the jury should be present — must be present when the judge makes a determination of voluntariness or involuntariness as a matter of law under the New York procedure.

Now, I’m quoting from the bottom of that page, “The judge is not required to exclude the jury while he hears evidence as to voluntariness,” citing People against Brasch, “and perhaps is not permitted to do so”, not permitted to exclude the jury.

Now, I’ve read the Randazzio case and I don’t think that that case would be a bar to the judge’s — frankly to the — would be a bar to the judge’s decision to exclude the jury as a matter of discretion.

Yet, I do think it’s a matter of discretion very clearly under New York law.

As to the amendment of the remittitur of the New York Court of Appeals to which Mr. Siegel has referred, all that says is that the Court of Appeals held there was no violation of any constitutional right of said defendant.

I assumed that the Court simply means that it was applying what we have referred to here as the Stein rule, that they simply had found that there was no involuntary as a matter of law confession but have not gone into the facts except to the extent of seeing whether there’s sufficient other evidence in the record to sustain a conviction.

Potter Stewart:

Was the Court of Appeals — excuse me —

Daniel G. Collins:

Yes, sir.

Mr. Justice.

William J. Brennan, Jr.:

— does that mean, in other words, he — they might have assumed that it was involuntary.

Daniel G. Collins:

Yes, and still have to state —

William J. Brennan, Jr.:

I have read the record as justifying a conclusion that it was involuntary, that nevertheless, there was sufficient other evidence to sustain the conviction.

Daniel G. Collins:

I — I —

William J. Brennan, Jr.:

Therefore, under Stein, no violation of any constitutional right.

Daniel G. Collins:

I so read the amendment of the remittitur.

Potter Stewart:

Did the Court of Appeals have to hold the existing New York procedure that is the Stein rule of — violative of the Constitution.

Daniel G. Collins:

They were not, sir.

That question was never raised in the New York Court of Appeals to my knowledge.

I don’t think that’s a bar to consideration of that question by this Court.

The District Court, the Court of Appeals below both decided that question on the merits and reaffirmed — reaffirmed Stein.

And moreover, I think we have a principal in law — in our law very deeply ingrained principal in all areas of our law that a defendant need not perform a futile task and I think in the case of the New York courts, the Stein rule is so well settled with approval of the federal courts and this Court in particular that there will no point in raising that issue.

And on that point, I would cite to you as — as an illustration of another court which has recently so considered a point which wasn’t raised in the state courts because it would have been futile as United States ex rel. Duke — Dukes against Sain a Seventh Circuit opinion at 297 F. 2d 799, which involved the question of whether exclusion from a jury of — of jurors, prospective jurors of professed group was against capital punishment was constitutional.

The Court reached the issue on the merits.

The Courts decided against the defendant.

Potter Stewart:

You know and if so have you told us, if you have, I’ve missed it.

Potter Stewart:

How many states follow this New York procedure?

Daniel G. Collins:

Yes, I haven’t told you, but I think I do know.

About a dozen follow the — oh, I’m sorry about a dozen follow the orthodox rule and somewhat more follow the New York procedure.

I think the New York procedure we would say is the majority viewed today, although in Wigmore’s time, Wigmore set only a few jurisdictions of the New York procedure.

It seems to have become popular, but frankly, I must say that reading the cases, it’s very difficult to tell what — what procedure a jurisdiction is following particularly in terms of what the trial judge is doing.

Very often doesn’t appear in — in the cases Wigmore cites in many cases, sometimes, he has jurisdictions on both sides, New York and non-New York procedures.

As —

Potter Stewart:

But — but —

Daniel G. Collins:

I’m sorry.

Potter Stewart:

So far as you can gather more — more follow New York’s procedure than don’t.

Daniel G. Collins:

I think a few more follow the New York procedure than don’t.

And there are a number of jurisdictions where it’s impossible to say what procedure they follow.

I do think the federal courts follow the orthodox rule or some variant of it that is required the federal — the trial judge to make a decision as to the question of voluntariness as a matter of fact.

Whether or not they leave that question to the jury should there be — the same question to the jury, should there be a finding of voluntariness is, I think, the subject of some split in the Circuits.

As to the question as — as to who shot first, on page 12 of the record, in the confession of Nathan Jackson to the Assistant District Attorney, the question was asked, “Who fired first, you or the police officer?”

I beat him to it was the answer.

I think it — as I said earlier in my presentation, it’s clear that the confession contains a statement that the defendant fired the first shot.

Later on in his testimony, defendant denied that he had made — that he could have made such a statement.

He said he did not fire the first shot in his trial testimony.

Potter Stewart:

What relevance is that?

Daniel G. Collins:

It’s relevant, it seems to me.

I — I didn’t raise that point in my presentation, Mr. Justice Stewart, but the question was asked yesterday and I pursued it.

It’s relevant only to the extent that the fact of shooting first was a material part and it was a material fact under the question of premeditation, this was a premeditated murder conviction.

I think the rule of this Court is that the sufficiency of other evidence to sustain the conviction is immaterial.

And so — so I did not — did not raise that question from it.

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

It may very well have (Inaudible).

Arthur J. Goldberg:

(Inaudible)

Daniel G. Collins:

It certainly had an effect on Mr. — on Mr. Jackson’s — the decision, I believe, to testify since he affirmatively denied that statement.

Potter Stewart:

Well, there were — were there what?

Potter Stewart:

Four eyewitnesses?

Daniel G. Collins:

There were four eyewitnesses.

Potter Stewart:

Did they —

Daniel G. Collins:

There —

Potter Stewart:

— testify as witnesses, (Voice Overlap)?

Daniel G. Collins:

Yes, they all testified, I believe sir.

I raised the question of right to counsel on page 11 of my brief.

As I raised it here this morning in terms of the needs for the prosecution in meeting its burden of proving voluntariness to show under circumstances such as present in this case, that counsel or some independent advisor was present.

I noted in a footnote on page 11 of my brief that in the record of this case, at page 46, the Court indicated that because it believed there was no right to counsel at this preliminary stage of a prisoner’s detention.

There was no right to counsel that the Court would have excluded that with respect to Jackson or at least by indicating that the question — that the fact of right of counsel couldn’t be raised in the case of the codefendant, really told Jackson’s counsel that he was futile form to raise that question himself.

Byron R. White:

Now, what do you — do you think the state’s assertion is as regards waiver? Are they relying on some sort of a waiver?

Daniel G. Collins:

Yes, I believe so.

I believe there — their argument is essentially an argument that might have been made prior to your decisions in Fay against Noia and Townsend against Sain.

Byron R. White:

What do you think they are saying?

Daniel G. Collins:

I think they are saying that is a tactical matter, the defendant’s counsel decided not to pursue the question of voluntariness of the confession.

And as a result, petitioner —

Byron R. White:

Well, how can they — how can it be their position — apparent, there was an issue raised about voluntariness?

Daniel G. Collins:

Yes.

I — I said in my — my presentation before that I think that, as a matter of fact, there was no such tactic and I think that can be shown quite adequately.

Byron R. White:

Oh, there was any tactic, I suppose, insofar as choosing not to put on certain kind of medical testimony, I suppose.

Daniel G. Collins:

Well, I don’t think so because this — the question of scopolamine simply was not gone into under state court at all.

And it seems to me from the reading of the medical authority, scopolamine is — is more of the culprit in — than is demerol in the ordinary case.

Scopolamine is — what produces the amnesic effect.

Byron R. White:

I know but you can’t say that there is some ex — that the state was the exclusive reason for not going into scopolamine.

Daniel G. Collins:

I don’t know why counsel didn’t go into scopolamine.

I — I can only speculate that he simply was (Voice Overlap) —

Byron R. White:

The trial counsel for the petitioner did not go into it.

Daniel G. Collins:

He went into one drug but not the other —

Byron R. White:

Yes.

Daniel G. Collins:

— and he didn’t pursue it, he —

Byron R. White:

But it was on his mind, and I thought all the state was asserting was that — was that he deliberately and — and knowingly has stopped the chance to —

Daniel G. Collins:

I think they are —

Byron R. White:

— to —

Daniel G. Collins:

— making that argument.

And my —

Byron R. White:

— to — yes, but that is — that isn’t waived, that isn’t in a waiver argument going to the whole issue of voluntariness.

Daniel G. Collins:

Well, I believe that’s only argument they’re making as — as far as waiver is concerned.

And I —

William J. Brennan, Jr.:

And that is limited to scopolamine, the properties.

Daniel G. Collins:

No, I believe their argument goes to both drugs —

Byron R. White:

Well, how (Voice Overlap) —

Daniel G. Collins:

— because I read in their brief —

Byron R. White:

How could it since — since the defendant himself testifies — I mean certainly, when he — he was put on the stand to make the confession, wasn’t he?

Daniel G. Collins:

I — I confessed to being — to being as perplexed by that as you are, sir that —

Byron R. White:

Well, I am not — I’m just suggesting that the state’s argument isn’t that broad, it’s just as to — it’s just as to the scopolamine.

Daniel G. Collins:

No, I think I — I disagree respectfully.

I — I think that the — their argument in their brief is — is as broad as I’ve stated it.

They’re saying that there was a general waiver of this issue that the trial counsel did not want to pursue the question of the confession for fear of (Voice Overlap) the jury.

Byron R. White:

Was it true that he didn’t object to the confession, that much is true.

Daniel G. Collins:

He did object to the confession, I think.

Byron R. White:

He did.

Daniel G. Collins:

Yes.

Potter Stewart:

Now, what — there — was there a voir dire here?

Daniel G. Collins:

There was no voir dire request —

Potter Stewart:

No.

Daniel G. Collins:

— to the jury.

Potter Stewart:

He didn’t make that kind of an objection, did he?

Daniel G. Collins:

He — he raised the objection when he — after — after cross-examining the attending physician and learning that demerol “made one dopy”.

Potter Stewart:

But he —

Daniel G. Collins:

At that point, he (Voice Overlap) —

Potter Stewart:

But he did not exercise — his counsel did not exercise his right into that extent.

I don’t want to argue (Voice Overlap).

Daniel G. Collins:

No, he didn’t — he didn’t exercise his right.

He certainly —

Potter Stewart:

He couldn’t exercise his right to a voir dire before the judge (Voice Overlap) —

Daniel G. Collins:

He didn’t exercise his right to a voir dire but he did exercise his right to contest the question of voluntariness in front of the jury by requesting a charge and having it made as to the general physical condition —

William J. Brennan, Jr.:

(Inaudible)

Daniel G. Collins:

And by putting his client on the stand and testifying.

And this client on — in his direct testimony, in response to questions by Mr. Healy, denied — not only said that it — that the — there was duress employed in the sense of being deprived of water, also said he couldn’t remember the confession at all and denied a number of statements that were made in it in his direct testimony.

I don’t find — I — I don’t believe the fact show it such a tactic.

As far as the — Mr. — Mr. Siegel said that a number of New York cases didn’t bear out my broad statement that a — that a great part of this Court’s litigation dealing with coerced confessions came from that state.

He cited four cases, I had add Fay against Noia which had coerced confession as the basis for the problem in this case.

And in addition, with now three cases that — that arose in jurisdictions which have the same rule as the New York rule that I know.

Payne against (Inaudible) or the courts — of this Court’s opinion in that case indicates it has the same rule as New York.

Haynes against Washington, this Court’s opinion indicates that the rule at least in Washington at the time the case arose was the same as New York and Haley against Ohio which affirmed as to New York rule as well.

So I do think that the statement that the — this procedure is the root of a great many of our constitutional promises, an accurate one.

William J. Brennan, Jr.:

May I ask you (Inaudible) on the properties of scopolamine.

It may be that Judge Healy, defense counsel, was just not aware of the significance of those properties to the issue of voluntariness.

Daniel G. Collins:

I — I think he wasn’t aware of them and I — I think —

William J. Brennan, Jr.:

He was not?

Daniel G. Collins:

He was not aware of them.

And I think that that, perhaps, is born out by his own reference in — in speaking to the jury, he described the — the drug is atropine, as we — you — the Court will recall was the problem in the Townsend case.

If he thought the drug was atropine and he might have thought so because the attending physician, in his testimony, first referred to it as atropine and then changed his characterization as scopolamine.

I said they are the same.

Judge Healy may simply have not related the scopolamine, the properties of scopolamine to the drug that he thought have been used.

I only suggest that because we — we don’t have a definite statement in the record of course.

I do think that Mr. Siegel is on the basic question here of a general finding of involuntariness of these confessions as a matter of law.

I do think Mr. Siegel’s argument presents the question in its most dramatic terms and that is the problem when drugs are administered, approving their effect on a particular petitioner.

When we are talking in terms of minutes, 5 minutes or 10 minutes or 2 minutes and we are talking about drugs that deprive — deprive dependence of their — not only ability to resist interrogation but ability even more importantly I think to remember interrogation.

I think we have such a dangerous situation that we’d be — that certainly petitioner feels this Court should adopt the rule which would strike at that practice as a general matter.

Daniel G. Collins:

Thank you.

Earl Warren:

Very well.