Johnson v. New Jersey

PETITIONER:Johnson
RESPONDENT:New Jersey
LOCATION:Phoenix, Arizona

DOCKET NO.: 762
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 384 US 719 (1966)
ARGUED: Mar 01, 1966 / Mar 02, 1966
DECIDED: Jun 20, 1966

Facts of the case

Question

  • Oral Argument – March 02, 1966
  • Audio Transcription for Oral Argument – March 02, 1966 in Johnson v. New Jersey

    Audio Transcription for Oral Argument – March 01, 1966 in Johnson v. New Jersey

    Earl Warren:

    Number 762, Sylvester Johnson and Stanley Cassidy, Petitioners, versus New Jersey.

    Mr. Shmukler.

    Stanford Shmukler:

    Mr. Chief Justice, may it please the Court.

    This case is here on a petition for certiorari to the Supreme Court of New Jersey which denied a petition for post-conviction relief.

    The — there was a murder, a homicide at 6:10 p.m. on a Friday evening, January 24th, 1958.

    At 1:30 p.m. the following Tuesday, a defendant by the name of Godfrey was arrested in the company of someone else.

    The petitioner Cassidy was not arrested until 4 a.m. in the morning, Wednesday morning, after the homicide January 29th and petitioner Johnson was not arrested until 5 p.m.that evening, Wednesday evening, the 29th of January.

    After the arrests of these three individuals during those two days, the three of them gave a total of six statements, incriminating statements.

    From the time each of them were arrested, they were in the complete custody of the police and they were in custody for quite sometime as will developed during the course of the arguments.

    Now, it is our position that the argument here falls into three major categories of arguments.

    First of all, we are suggesting that the means of eliciting these confessions and using them at the time of their trial, during the time when they were not advised of their right to counsel, they were not advised of their right to remain silent and to make no statements.

    They were not permitted to see family.

    They were not proceeded — permitted to see counsel even though they requested it.

    They were held for several days without a preliminary hearing.

    Although, I will put note that to say that one of the petitioners was given a form of a hearing, he was arrested not at the scene of the crime where they were ultimately tried in Camden.

    But he was arrested in Newark and there was a form of a preliminary hearing during which apparently the only thing that happened was a transfer of custody from the Newark police to the Camden police.

    Nothing in the record shows us exactly what took place there, although, we do have an affidavit of that petitioner that he was not advised of any rights or told of his right to counsel at that time.

    Is there a coerced confession claim in this case?

    Stanford Shmukler:

    Yes, sir, there is.

    There is in two respects.

    First of all, we feel that the totally of the circumstances here under which they were illegally detained, they were held incommunicado.

    They were not told of their right to remain silent.

    They were confronted with the confessions of the other defendant who late — which later were held to be coerced by the Third Circuit that the totally of all these circumstances show that these people were overborne.

    And we also wish to urge that the interpretation of the Escobedo case which we feel means if the Six Amendment is giving effect to the Fifth Amendments shows that the absence of counsel here and the absence of an advice of their right to counsel deprive them of the one feature which is essential on all confession cases, the right to make a free choice.

    They did not have the right to make a free choice because they were not in possession of the facts necessary to make a free choice.

    We have another line of arguments here which does not involve the Escobedo interpretation.

    And that is that these individuals who sought separate trials, who sought to have their cases severed and who sought during the course of the joint trial after they were refused separate trials, the use of this cross-implicating confessions against each other deprived them of a fair trial.

    In the sense of the Aranda decision in California and as now seems to be the practice announced in a New York and a New Jersey case, Young case which is cite in our brief.

    And lastly, the inflammatory comments and summation by the prosecutor deprived them of a fair trial.

    Now, I might state that there were two other issues which were raised in our petition for certiorari which have been rendered both by decisions of this Court.

    Stanford Shmukler:

    One issue concerned the use of a gun which we claim was obtained from them under a promise which was not kept and we recognize that the Linkletter case renders this argument moot.

    Likewise, we raise the question that the prosecutor’s comment on their failure to testify supported by the court’s charge on that point violated the Malloy and Griffin cases.

    However, this Court in deciding Kean has certainly mooted that point insofar as we talk about the retroactivity of the Malloy and Griffin points.

    As we pointed out in our reply brief which is I assumed in — I distribute to the Court although it was printed rather late, we were unable, the Court printed it and I think it was distributed.

    We do not give up the argument which we’d made in the principal brief that the prosecutor’s comments on the failure testify, also affected or taken in totality of the circumstances of his entirely inflammatory summation suggested inferences which were not supported by any facts and that those comments taken along with the others violated in — violated their Fourteenth Amendment rights not the Fifth Amendment right as we — as had originally been suggested in connection with the Griffin and Malloy.

    Now, addressing myself to the question of the means of eliciting and using these confessions, these — first of all, the background on these individuals we think is relevant here to show the need for counsel at this stage which certainly, if we have to give the label was passed the accusatory stage because when the first of these petitioners was arrested, Cassidy, he had already been apparently identified by the other people who had been arrested.

    Certainly as to Johnson, he was told that he had been identified as the finger man.

    They did not come in and picked up a man near the scene or who might have some information about the crime.

    They were here to arrest these individuals, to place them under arrest and charge them with the crime for which they were ultimately tried and convicted and give him the death sentence.

    Cassidy is 25 years — was 25 years of age at the time.

    He’d only completed an eight grade education.

    He had never had any contact with the — with a police in the sense of being arrested or convicted of any crime before and the psychological data which is part of the record showed that he was a highly conflicted, immature individual with deep feelings of incompetence, inadequate personality, and that he needed narcotics to alleviate his anxieties and he was very passive and repented individual.

    And there is —

    Abe Fortas:

    Did the police know that?

    When they invest — when they interrogated him?

    Stanford Shmukler:

    Sir, I’ve — Justice Fortas, I would say that although there is no admission on the record by any of the police officer who made that arrest it was — it should have been obvious to them.

    And especially in light of the petitioner’s testimony at (Inaudible) — at the motion for new trial hearing that he was under the influence of narcotics at the time.

    This should have been apparent to them.

    Now, whether they knew of his eight grade education, whether they knew his age, I assume they elicited that from him when they spoke to him.

    The psychological data —

    Abe Fortas:

    There wouldn’t be very likely they know whether he was schizoid personality, couldn’t they in the part of the submission here?

    Stanford Shmukler:

    Yes, Justice Fortas.

    I doubtedly would’ve known that and I doubted any of us would know that without the report of a psychiatrist or psychologist which of course was obtained here after they had been incarcerated.

    Johnson on the other hand was only 21 years of age.

    He had only had a seventh grade education.

    He had only one prior conviction and the psychological data is set forth in our brief.

    He was — had intense feelings of insecurity and inadequacy.

    He was grossly inadequate with a schizoid personality and his ability in judgment would go to pieces under duress and strain.

    Now, these individuals with this limited ability to stand up to the official detention and custody were arrested.

    The first one, Cassidy was arrested at 4 a.m. in the morning in his home with seven police officers.

    Stanford Shmukler:

    He was taken to the Camden Police Station where he was confined thereafter and according to the affidavits, he sought — he tried to consult with counsel.

    He wanted to consult with counsel.

    He wanted to consult with family and he was refused permission.

    There was no warrant for his arrest.

    In other words, a middle of the night arrest, large number of officers held incommunicado, his first confession was given five hours later.

    This wasn’t sufficient for the police.

    They came back and they got another confession in which he modified his former confession.

    That was two hours later and then another 11 hours — 11 and a half hours later, a third confession.

    The other petitioner, Johnson, was arrested in Newark and was held there at five o’clock in the evening, far from home, taken to the police station in Newark.

    Held there until this night court when apparently nothing happened that was significant to him or at least nothing which significantly warned him of any of his rights or gave him any advice or succor under these trying circumstances.

    He was brought back to Camden in the middle of the night at 1:30 or 2 o’clock in the morning.

    They put him the car.

    They drove him to Camden with a stop for a cup of coffee.

    During the time he claimed, he was questioned during the entire ride.

    In fact, he claimed that he was beaten during the course of this ride.

    And it wasn’t until 4 o’clock in the morning, 4:45 in the morning that he gave his incriminating statements.

    Now under these circumstances, we believe that it is fairly clear that he needed the help and advice of a friendly face of an adviser, of someone to give him some kind of advice, and the Honorable Solicitor General has said that under these circumstances the only advice an attorney can give is to tell the defendant to keep quiet.

    I would like to differ with that.

    I think there’s a lot more that an attorney can do under these circumstances.

    At that point, counsel could have advised him of the legal significance of admitting to a robbery.

    Now in the Escobedo case, the Court made a point of the fact that the defendant admitted to complicity in a crime not realizing the legal significance of that complicity.

    In this case, it became extremely important because this case was tried on a felony murder theory that there was a robbery.

    The petitioners have argued that there was no felony murder.

    There was no robbery.

    That they had gone to the store to obtain money from the store — toy store operator, the man, the victim, the deceased which he owed to them.

    He owed to them not for a very nice purpose because apparently they had delivered some narcotics for him and they went there to get the money that he owes them, not to rob him.

    Therefore, when these individuals are held under these threatening, coercive circumstances, and are told that they are wanted — they want a statement from these individuals as to what part they’ve had in this murder — this robbery murder and they admit to being participants in a robbery they have signed their own doom without knowing the significance of it.

    Admitting to a robbery would’ve seen to them untrained and uncounseled by legal counsel at that point.

    Admitting to the robbery was a small matter compared to admitting to the homicide and what did they admit to?

    Well, Johnson admitted that he had been the one with the gun and he gave somewhat exculpatory statements as to why he shot the man.

    Stanford Shmukler:

    But mostly incriminatory admitting that there had been a participation of robbery.

    Cassidy and Godfrey for that matter, in effect said that Johnson was the man who did it and they didn’t know anything about robbery and they didn’t go there armed and so forth and so on and then changed this during the course of their second and third statements.

    Hugo L. Black:

    May I ask you another type of evidence there was besides the confession?

    Stanford Shmukler:

    Justice Black, there was a — apparently what happened is that when the shooting occurred, a neighbor of the toy store operator run out, saw the defendants or two of the defendants leaving the store, get into a car, somebody observed them drive away in a car.

    And then because they made a minor traffic violation, they made an illegal left turn somebody took down the license number of the car.

    And through the license number they were able to trace them, get to Godfrey, who subsequently — when he was arrested was in company of a fellow by name of Noah Hamilton, who subsequently told all he knew and they had discussed this with Noah Hamilton.

    And there was also a fingerprint of one of the defendants found on one of the items in the store.

    And I believe there was a adequate other evidence in the record to have sustained a conviction of participation in the homicide without the confessions, however, the confessions —

    Hugo L. Black:

    How long after they were — after the robbery was committed in this murder, was it before they were caught and whether it was — made the wrong turn?

    Stanford Shmukler:

    They weren’t stopped at that time, somebody just jutted down their license number at that time —

    Hugo L. Black:

    Well, that —

    Stanford Shmukler:

    — that was a minutes afterwards.

    Hugo L. Black:

    How long was that afterwards?

    Stanford Shmukler:

    Minutes afterwards.

    They went out of the store and got into the car and (Voice Overlap) —

    Hugo L. Black:

    And they got the number?

    Stanford Shmukler:

    That’s right, sir.

    Hugo L. Black:

    And then how long after that until they were arrested?

    Stanford Shmukler:

    That occurred on Friday night, the 24th at 6:10 p.m. and the first one, Godfrey, was not arrested until Tuesday at 1:30 in the afternoon, one, two, three, four days later, approximately.

    The — certainly —

    Hugo L. Black:

    Were they arrested at first, or were they taken down for questioning?

    Stanford Shmukler:

    Arrested immediately.

    The —

    Hugo L. Black:

    When they went there they were arrested.

    They had — they were legally arrested?

    Stanford Shmukler:

    They were legally arrested.

    There was no question about that.

    Godfrey was the first one arrested while he was in a café in company of Noah Hamilton.Cassidy was —

    Hugo L. Black:

    Well, your question here — your question is rather, were they legally arrested, charged with a crime, then jailed, does the Fifth Amendment protect him against self-incrimination, that’s one of them, isn’t it?

    Stanford Shmukler:

    That is our point Mr. Justice Black, definitely.

    Stanford Shmukler:

    When they are arrested in police custody, certainly charged with the crime prior to any advice of their rights, does the Six Amendment give effect to the Fifth Amendment protection there, the Fifth Amendment protection not to incriminate themselves.

    The Six Amendment giving them the right to counsel to advice them of these essential rights at that stage, that critical stage of this incident.

    Abe Fortas:

    Why do you say that they were arrest at that time, what do you mean by that, was there a warrant for their arrest?

    Stanford Shmukler:

    Justice Fortas, there was no warrant for the arrest of Cassidy, one of our petitioners here.

    There is nothing in the record which makes clear whether or not there was a warrant for the arrest of Johnson in Newark.

    There was some testimony by one of the police officers, I don’t have the citation page, they just made the statement that we had some sort of warrants.

    This warrant was never put on the record.

    It was never questioned.

    And as I say at that point in 5 o’clock in the evening when he was arrested, it was at 10 o’clock in the evening taken to a night court, and the transfer of custody took place to the Camden Police.

    Apparently, the Camden Police must have gone to Newark Police and received some form of — or given some form of compliant that they wanted him.

    The Newark Police accompanied the Camden Police, arrested him, took him to Newark Police Station and then transferred custody that evening.

    Abe Fortas:

    I’m just trying to find out, is this what you had in mind in answer to Justice Black’s questions, when you say they were arrested, do you mean that at that time there was conviction of guilt or do you mean that they were taken into custody and then report with the book or do you mean something else?

    Stanford Shmukler:

    Sir, we mean they were seized, restrained of liberty, placed in the custody of the police, and were subsequently booked.

    Abe Fortas:

    (Inaudible)

    Stanford Shmukler:

    They were not booked immediately at that time.

    Abe Fortas:

    About five hours later, —

    Stanford Shmukler:

    Yes, sir.

    Abe Fortas:

    — was it?

    Stanford Shmukler:

    As well — at least in Johnson’s case.

    In Cassidy’s case, I don’t think it’s clear when he was booked.

    But he was certainly restrained of liberty, could not have left, there was no question about that, was taken out of his home.

    In Cassidy’s case, in the middle of the night, taken to the police station, and remained thereafter in custody of the police.

    Hugo L. Black:

    I understand, I had a — that there’s no question at issue here concerning the validity of the arrest or is there?

    Stanford Shmukler:

    There is no question in — at this point of the validity of the arrest Justice Black even though there was no warrant.

    I will concede for purposes of this argument that certainly we have not raised the question at any time that they do not have prima facie case to — prima facie evidence to make an arrest without a warrant at that point or with a warrant.

    I’m not going to —

    Hugo L. Black:

    So you (Voice Overlap) —

    Stanford Shmukler:

    — we’re not resting our case on that point, sir.

    Hugo L. Black:

    You just spread it out it seems to me at least in one aspect of your case is whether when a man has — illegally arrested and put in jail for the purpose of detention aiming until he can be tried of the crime.

    Whether or not the police have thought it that during that time under the Constitution, the Fifth Amendment, one of them to interrogate him alone or where he is and ask him of the question to — tending to prove your guilty?

    Stanford Shmukler:

    Yes, sir.

    I think that is certainly posing the issue.

    That is one of the crucial issues.

    Hugo L. Black:

    Whether that is compulsion?

    Stanford Shmukler:

    Yes, sir.

    I think that is certainly the — phrasing the issue in the Fifth Amendment context here.

    The right to not to be compelled at that stage of the game and the factor of being in police custody incommunicado without advice of rights and without the counsel of a guiding hand at that point whether he has affectively been deprived of his right not to incriminate himself.

    Abe Fortas:

    Well, was there any interrog —

    Hugo L. Black:

    Suppose he — suppose he’s been advice of his rights?

    Supposed he’d been told, you have a right not to answer, during the time he’s legally arrested and there in the custody waiting trial to determine his guilt, would your position be any different?

    Stanford Shmukler:

    If they had been legally advised, I would still say that there were circumstances — that the circumstances surrounding the arrest and detention of these individuals were so inherently coercive and overbearing that without counsel to advice them actually, under these circumstances any statement elicited thereafter would be improperly admitted in their trial for the very reason that, they did not understand the legal significance of the questions that were being asked them.

    They did not understand, for example, that the confessions of the others would not be usable against them in a trial but would be usable only against the person giving them.

    For example, they were told, Godfrey has already confessed.

    You may has — have — you may as well confess.

    They were not told and could not be told without counsel there to advice them that this isn’t true.

    They don’t have to confess just because Godfrey has named them.

    Godfrey’s statement would not be admissible against them.

    And in fact, in this case, Godfrey’s statement in a joint trial was used in the trial but not against them.

    They were limiting instructions and we contend that even with those limiting instructions, the joint trial was improper.

    But had they had separate trials or had the jury been able to strike from their minds, their collective minds, the confessions of Godfrey this would not have been admissible against them and only the advice of counsel especially with uneducated, poorly psychic background boys could this type of significance have been made clear to them.

    This is why in our case here we do not have to read Escobedo very broadly to in — to encompass all of the other cases that are involved here.

    This is a very limiting factual circumstance.

    I’m not suggesting that Escobedo should not be read broadly or that it should be read very narrowly.

    I am suggesting that in the facts of this case, there is no need for a broad rule.

    This can fit within the very narrow circumstances of the Escobedo case itself.

    Abe Fortas:

    Is the only evidence —

    Stanford Shmukler:

    The —

    Abe Fortas:

    — in the record as to what happened in the case of Johnson in these five hours?

    Was he interrogated —

    Stanford Shmukler:

    Oh, just —

    Abe Fortas:

    — had five hours between the so-called arrest and the time he was booked?

    Stanford Shmukler:

    Justice Fortas, I think perhaps you mean Cassidy.

    Cassidy was arrested —

    Abe Fortas:

    Cassidy, I’m sorry.

    Stanford Shmukler:

    And he was held for five hours before he gave his first statement.

    Johnson was arrested in Newark and was held — oh, I meant — no, I’m sorry maybe you are — you — maybe I’m wrong.

    Abe Fortas:

    Yes.

    Stanford Shmukler:

    He was held for five hours before being taken to this police court.

    Abe Fortas:

    That’s right.

    Stanford Shmukler:

    Yes.

    He was interrogated during that time, retracted and continuous interrogation during that period of time.

    That is in the record.

    Earl Warren:

    What is the statutory procedure in the police court on cases of this kind?

    What is the court suppose to do?

    Stanford Shmukler:

    Sir, the — we are not quiet sure.

    There is nothing in the record as to the nature of this police court proceeding in Newark.

    Apparently, it was simply just a transfer of jurisdiction.

    There is a rule in New Jersey which says that a person who was arrested is to be taken before the — a magistrate in the — within — without any unreasonable delay.

    This is set forth in our brief.

    This was violated certainly in the case of Cassidy and probably in the case of Johnson because this rule goes on to say not only should he be brought before a court or magistrate, nearest available magistrate and the compliant shall be filed forthwith and a warrant issue thereon a preliminary hearing before the magistrate shall be held forthwith.

    And then the Rule goes on, this is New Jersey revised Rules 3-3:2-3 (a).

    The next subsection of that Rule goes on to say that the magistrate shall advice him of his rights and of his rights to have counsel and so forth.

    This was not the proceeding which took place in Newark.

    Apparently the only thing that took place in Newark, it is not accord of record.

    We have been unable to obtain the record in that case but apparently the only proceeding that took place in Newark was the transfer of jurisdiction from the Newark Police to the Camden Police.

    He was then returned to the Newark jail, was held there till 1:30 at night, was apparently questioned during that period of time, he was then placed in a car, taken back to Camden, on the road he was continuously questioned, and finally, started his confession at 4:45 in the morning.

    Earl Warren:

    Is there any difference within and between you and counsel on what happen before the court in that occasion?

    Stanford Shmukler:

    I don’t know that we have discussed this but I don’t think that — there is nothing in the record that discloses this at all.

    I don’t think that — there is certainly nothing in a testimony of any of the officers what was done there.

    There is an affidavit contained in the petition or it was considered by the Supreme Court of New Jersey, I should say in this case, setting forth what the defendant Johnson said happened there.

    Stanford Shmukler:

    He said, he doesn’t really know what did happen.

    His statement was that he didn’t know what was going on.

    He was taken there, somebody handed up some papers and he was taken out again.

    And that’s set forth in the — in his petition.

    The — is certainly clear that the petitioners here did not have the right to make a free choice as to whether to admit, to deny or to do anything else because they did not have the facts available to them at the time that these statements were taken.

    Now, it’s clear that in the record, the only warning that was ever given to them was the warning which was given to them when the formal recording of the confession took place.

    And this was the warning by the — by Chief Dube, Chief of the County Detectives, as they took him into the room to record their confessions that you — any statement you make must be freely given and voluntary and truthful and nothing else.

    They are not advised of their right to counsel or their right to remain silent.

    In fact, it’s doubtful whether New Jersey even requires that.

    Now, it is our contention here that the Escobedo case did not introduce a radical new departure from the law.

    That the Escobedo case was merely the next logical step and if there are no more problems of administration created by applying Escobedo in our case on a collateral attack then would be the — applying the doctrine that a confession which is obtained by psychological pressures, might have created after the Court’s holdings previously might have suggested that only physical beatings were sufficient or extending it to the mild weeps of refusing to give him access to his wife as in the Haines case.

    But this was not a radical new departure.

    Thus, in the terms of (Inaudible) in the Linkletter cases, the reliability of the guilt determining process is just as much involved here where these defendants confessed to items which they did not realized the legal significance of and which could very well have been false because it just — they had no knowledge of the legal significance of this anymore than Escobedo did in his case.

    Now, in the — in connection with the — by the way I might to say that, I think that the question of obtaining the confession of one defendant and then using it as a technique to obtain the confessions of the other defendants is — just highlights this need for a legal counseling at that stage.

    As the illegal detention, the violation of the New Jersey Rule discontinued, protracted, questioning during a period of time when the very police officers were violating their New Jersey Rules by not taking him before the nearest available magistrate for the hearing.

    By the way, they did not actually get taken to the magistrate until the 31st, which would be Friday, would be two days after Cassidy was arrested and the day and a half after Johnson had been arrested.

    Now likewise, we want to go — we’d like to point out that the use of those confessions in a joint trial over the objection of the defendants that they were so cross incriminatory and request from the defense counsel to strike this cross incriminating portions and this was denied.

    In other words, they asked, if you’re going to allow Godfrey’s test — confession to be used in evidence, cross out, delete the portions relating to Cassidy and Johnson and so on.

    This was denied and we contend that this technique of trying three defense together and introducing six confessions all of which were cross-incriminatory violated their rights to a fair trial.

    We have done account and apparently Wayne Godfrey’s statements mentions Stanley Cassidy, his first statement mention him 67 times and the second statement 19 times or a total of 86 times.

    And he mentions Sylvester Johnson 48 times in his first statement and nine in the second statement or 57 times.

    New Jersey now apparently is following a rule where it will permit this type of evidence to be deleted or grant new trial — grant separate trials.

    This is what was requested here and it was not given.

    We contend that this violate their constitutional rights.

    Abe Fortas:

    Was this a subsequent decision of the New Jersey Courts?

    Stanford Shmukler:

    Yes, sir.

    Decision —

    Abe Fortas:

    Is that cited in your brief?

    Stanford Shmukler:

    Yes, sir, it is, State versus Young, which is cited in a Footnote 25 of our brief.

    Hugo L. Black:

    Suppose your position was accepted in the record?

    Stanford Shmukler:

    Pardon me sir?

    Hugo L. Black:

    Suppose your position should be accepted as the right to counsel, what would be the practical result?

    What would States have to do?

    Stanford Shmukler:

    Well, sir of course, I submit that we don’t have to draw the broad rules here.

    However, I would suggest the practical result might not be a serious as has been suggested here.

    In our reply brief, I’ve given the — cited an Article, the Philadelphia Evening Bulletin including the District Attorney, Assistant District Attorney Spraig who helped compiled the data which was submitted as part of the National District Attorneys Association’s brief in which a few weeks after Escobedo was decided he suggested that their statistics seemed to indicate that this has not limited the use of — the obtaining of confessions.

    Now, perhaps a ruling that you are entitle to counsel might be a different — might have a different statistical affect, I don’t think we know.

    However, I feel that certainly, in the light of this case that decision need not be made.

    The practical effect would seem to be in our case that if you have a constitutional right to not to incriminate yourself whatever means we —

    Hugo L. Black:

    But that’s (Inaudible) — I didn’t ask you about that?

    Stanford Shmukler:

    Yes, sir.

    Hugo L. Black:

    You were emphasizing the counsel.

    I want to know what would be the factual effect, and how would it effect current — in fact, the universal practice of the — in the United States.

    The whole that counsel must be appointed the minute a man was detained then held for questioning?

    Stanford Shmukler:

    Well, Justice Black, I don’t think that is necessarily the remedy which flows on this.

    Perhaps, the ruling should be only an exclusionary one that evidence obtained in the absence of counsel would not be admissible.

    However, I ‘d– I don’t think that would depend —

    Hugo L. Black:

    Well, isn’t your argument, however based finally on the fact that he needs counsel to keep him incriminating himself.

    And if that’s true, why isn’t that your basic issue here?

    Stanford Shmukler:

    That is sir and I don’t say that the state has an absolute duty to appoint at this stage but what we do say that if they don’t appoint, if he has no counsel then the confessions obtained under these circumstances are not admissible at his trial.

    If nothing flows from his arrest and detention then perhaps he has not been damage by the lack of counsel.

    But where the circumstances which flow from it are the obtaining of confessions which incriminate them so severely and take away their lives ultimately, then those confessions should not be used.

    Hugo L. Black:

    Are you in effect asking us to say that we got to examine the circumstances of case and see whether under those circumstances, you needed a lawyer so badly that it violated the right to counsel clause, is that it?

    Stanford Shmukler:

    Well, Justice Black, I’m saying that under these circumstances there is no doubt of this.

    Hugo L. Black:

    (Voice Overlap) — do you have any theory about what circumstances we could let the courts know so that there would be some kind of understanding on their part and make it function with a knowledge that the general rule to this effect that if he break that rule, if it’s a — case will reversed.

    Stanford Shmukler:

    I would —

    Hugo L. Black:

    Had you thought about it from that page without considering all the circumstances each does, all the section?

    Stanford Shmukler:

    Yes, sir.

    I think that the Fifth Amendment right to be given a full effect must be based upon a knowledge of the factors which exist and only counsel can supply that knowledge of the factors which exist.

    So that (Inaudible) —

    Hugo L. Black:

    That — that just — going on the basis that you got to tie the two together, isn’t it?

    Stanford Shmukler:

    That’s right sir.

    Hugo L. Black:

    And I think the factors are somewhat the same.

    But after all, when you get back, your construing are you not Fifth Amendment provision against self-incrimination being compelled of your witness against yourself, isn’t that it?

    Stanford Shmukler:

    Yes, sir.

    Hugo L. Black:

    And it’s the question of what is compulsion?

    Stanford Shmukler:

    That’s right sir and I think that —

    Hugo L. Black:

    And you think it’s a — if a man is arrested, held by the purpose of an arrest as to hold him for nothing in the world but a trial unless some new provision has been drafted under the Constitution.

    Purpose as to hold him for trial that you could find nothing of compulsion in he’s being interrogated by the officer under that condition, why he is under arrest, and there alone with the officer.

    Stanford Shmukler:

    Sir —

    Hugo L. Black:

    Is that the circumstance you mean or you have to have more?

    Stanford Shmukler:

    I would say that the mere holding him in official detention abd custody would itself the prima facie coercive and that if any rule should be announced.

    It should be that the Government has the burden of overcoming that to show that anything which occurred thereafter was done in an absolute waiver situation.

    The waiver of their right to counsel a — an announcement that the defendant knows the full facts —

    Hugo L. Black:

    I judged — I judged from what you’re saying, its impossible in your judgment for us to decide this question without relying on the other provision with reference to the right to counsel.

    Stanford Shmukler:

    No, sir.

    I think that the — it is a combination of factors here but I think the Fifth Amendment right as soon he is detain and under official arrest in an official situation away from home is enough to constitute an appearance of compulsion sufficient to shift the burden to the Government to prove that anything that occurs thereafter was completely voluntary and of free choice.

    And that the Government must then show that the defendant had knowledge of all the facts upon which to base his choice.

    And that then becomes the Government’s burden that this is new means of substituting a short — with a shorthand phrase of involuntary that has been used as a shorthand previously.

    Hugo L. Black:

    By compulsion for being compelled?

    Stanford Shmukler:

    That’s right.

    That that is — that —

    Hugo L. Black:

    That might be wiser sometimes to consider those thing in the language of the Constitution rather than labels that were given in various opinions.

    Stanford Shmukler:

    Yes, sir.

    I think that perhaps the — as was pointed out, the Blackburn case, the use of the phrase involuntary under those circumstances is a shorthand for all the complex of values which go into the Fifth Amendment right not to incriminate himself.

    If with the Court’s permission, we want — we would like to reserve a few minutes —

    Hugo L. Black:

    Would it be a startling and revolutionary, I don’t say that that’s a possibility.

    But if the Court would say, “When a man is held simply to interrogate him against his will by officers at a place where he does not want to be that that is compulsion which will invalidate the admission of a amend — of a confession?”

    Stanford Shmukler:

    Certainly, I think that would be a permissible reading of the Constitution —

    Hugo L. Black:

    Do you consider that to be revolutionary?

    Stanford Shmukler:

    I would not consider that to be revolutionary.

    I would consider that to be an evolutionary — in (Inaudible) — evolution of the doctrine which is already been announced.

    Hugo L. Black:

    It would at least have the advantage of some kind of a certainty, wouldn’t it?

    Stanford Shmukler:

    It certainly would, sir.

    Hugo L. Black:

    So that we didn’t have to pass on every cases (Inaudible) in the country?

    Stanford Shmukler:

    Of course, I don’t think that —

    Hugo L. Black:

    I don’t say that it should be adopted.

    I don’t know what should be adopted.

    Stanford Shmukler:

    I think that perhaps the fear of the ending of the interrogation process there can be overcome by the right of the Government under appropriate circumstances to cease the laboring order, the laboring order that it has the better opportunity to wield to show that it was not involuntary in that sense.

    It was —

    Was Justice Black’s proposition?

    Stanford Shmukler:

    Pardon sir?

    That was Justice Black’s proposition (Inaudible) the test of voluntariness —

    Stanford Shmukler:

    I —

    — the only difference as I understand in your argument, that is that the burden should be on the Government if the rule could — involuntary rather than (Inaudible) that was involved there?

    Stanford Shmukler:

    Well, I don’t mean to suggest that quite as boldly as that.

    I — what I am suggesting is that this is a form of waiver that the Government should have the opportunity under those circumstances to prove a free waiver of the right — the Fifth Amendment right not incriminate your self.

    And that in so showing they must show that he was in possession of all of the relevant facts which I think is —

    Hugo L. Black:

    What you’re talking about now is the knowing an intelligent waiver of a constitutional right that they have –-

    Stanford Shmukler:

    That’s —

    William J. Brennan, Jr.:

    — that says I just want to take advantage of it.

    Stanford Shmukler:

    That’s right sir.

    Hugo L. Black:

    (Voice Overlap)

    Stanford Shmukler:

    One that he could make at a trial for that matter.

    With the Court’s permission, I will not speak further on the last point but reserve a few minutes for colleague Mr. Haeberle to give him a minute or two of rebuttal.

    Earl Warren:

    You may have five minutes —

    Stanford Shmukler:

    Thank you, sir.

    Earl Warren:

    — for your rebuttal.

    Mr. Heine.

    Norman Heine:

    Mr. Chief Justice, may it please the Court.

    Norman Heine:

    Now, this is the fourth time that this case was before this Court.

    This is the first time it was argued orally.

    On the three previous applications for certiorari, this Court refused certiorari, denied it.

    And if anything we don’t want this case to be decided in a hypothetical factual situation.

    Three and a half days after the victim Davis was murdered, Cassidy, one of the defendants, the petitioners here, was picked up by the police for questioning, not arrested, he was picked up at 4:00 a.m. in the morning.

    He was taken to police headquarters for questioning.

    Earl Warren:

    Will you state the circumstances under which he was picked up?

    Norman Heine:

    The police officers went to his home and asked him to accompany them to police headquarters to be questioned about an alleged robbery-murder.

    No warrant was issued.

    There was no warrant of arrest.

    Hugo L. Black:

    Could they have declined to go?

    Norman Heine:

    Yes.

    Hugo L. Black:

    They didn’t have to go.

    Norman Heine:

    Didn’t have to go.

    Earl Warren:

    How many police officers were there?

    Norman Heine:

    I think it was testified to either five or seven.

    Earl Warren:

    Seven?

    Norman Heine:

    They were looking — they were looking, they were looking at this time and questioning people in connection with a robbery-murder.

    Hugo L. Black:

    Are we to assume that they went because they wanted to?

    Norman Heine:

    They wanted to question — they had some info — they had some information which led them to this suspect.

    So, they went to question him about —

    Hugo L. Black:

    But that would be a very important — of that charge because I’m concerned.

    Norman Heine:

    But what information, I’m — I am unable and I don’t believe anybody is able to this time say, this happened in 1958.

    He was interrogated commencing 9 o’clock in the morning.

    At the time and before he was interrogated, he was warned of his right and advice that they had a right to remain silent.

    The interrogation ended at 10:20 an hour and 20 minutes thereafter.

    At which time or during which interrogation, he admitted his part in a robbery.

    Earl Warren:

    May I ask, in what form he was advised of his rights?

    What did they say?

    Norman Heine:

    He was given a warning in which the interrogator said to him, “I am going to ask you some questions as to what you know about the holdup.

    Norman Heine:

    But before I ask you these questions, it is my duty to warn you that everything you tell me must be of your own freewill, must be the truth, without any promises or threats having been made to you or any other person at some future time.

    Do you understand what I have said to you, Stanley?”

    The answer, “Yes, I understand.”

    Question: “Under these circumstances are you willing to answer my questions?”

    Answer: “Yes.”

    Hugo L. Black:

    Why did they tell him that he didn’t have to answer or that he could go home if he wanted to?

    Did they tell him that?

    Norman Heine:

    I think it is implied in the statement that any questions that you give us or any answers you give us must be of your own freewill.

    This is the same thing as telling him, you have a right to remain silent.

    Hugo L. Black:

    Well, of course, there’s been a difference in telling to a man who is under arrest or in jail or in custody of officers that you don’t have to talk to us except according to your own freewill than telling a man on the street, we’d like to have come down to that place and talk to us a little if you want to.

    Norman Heine:

    Well, I — we don’t understand.

    We don’t understand that all interrogation then would have to be on the street or in the suspect’s home.

    We would think that convenience would entitle the police to interrogate suspects or other witnesses —

    Hugo L. Black:

    (Inaudible)

    Norman Heine:

    — at the police station.

    Hugo L. Black:

    If — to clarify my own view to what — is it your position that you have a right if you want to take a man for (Inaudible) compel him if he answers, compel him to go to the station, talk to him and be interrogated about a crime.

    Norman Heine:

    We think we have a right.

    Hugo L. Black:

    If — well that — that’s really what it is?

    Norman Heine:

    That’s right.

    Hugo L. Black:

    (Voice Overlap)

    Norman Heine:

    We think we have a right.

    Hugo L. Black:

    That may be true.

    I’m not saying it’s not.

    Earl Warren:

    Where does this stem from under the law?

    Norman Heine:

    We think this an inherent right in the police power of the state.

    Earl Warren:

    You think anybody — anybody happened to compel him to come to the station for interrogation?

    Norman Heine:

    I won’t go so far as to say compel him to go to the police station but ask him to come in to the police station.

    Now, whether or not there’s a right of compulsion might depend on whether or not there ought to be a warrant.

    Earl Warren:

    Well, if you get — if you have seven officers go to a man’s home —

    Norman Heine:

    Its very (Voice Overlap) reason.

    Earl Warren:

    — wake him up out of bed and take him down to the police station without his — without — to ask him if he’s willing to come down or if he’s willing to talk to them would seem to some compulsion, wouldn’t it?

    Norman Heine:

    This was never an issue in this case.

    But in your — are you arguing that the police have got a right to arrest a man without probable cause and without a warrant?

    Norman Heine:

    No.

    We don’t think we have a right to do that, to arrest a man without probable cause.

    But we think that when we have information which — doesn’t rise to the stature of probable cause, we have a right to invite him to be questioned about it.

    If he refuses, then we have another problem as to whether not we have sufficient information or probable cause to obtain a warrant.

    Hugo L. Black:

    Did it take seven officers to invite him?

    Norman Heine:

    My answer to that Mr. Justice Black is, if they were looking for somebody who might be involved in a felony murder, where the use of guns was concerned that it would be folly to send less.

    Now, —

    Hugo L. Black:

    I think —

    Norman Heine:

    — if he decides to shoots his way out —

    Hugo L. Black:

    I think (Voice Overlap) —

    Norman Heine:

    — I don’t think it ought to be one or two.

    Hugo L. Black:

    — much argument in that but it doesn’t — still doesn’t satisfy the question as to whether they went of their own freewill in to the court and (Inaudible).

    Norman Heine:

    Well, this phase on it was never questioned and never concerned anyone at the trial.

    The question, I would think that we — everyone bothered themselves whereas — was after indictment, what difference to make how you were arrested or how you were taken?

    Well, aren’t you going to argue your case (Inaudible)

    Norman Heine:

    No.

    I won’t concede that there was an arrest in the technical sense if we ought to speak of an arrest.

    (Inaudible)

    Abe Fortas:

    Indeed, I — first, in what you said a few moments earlier that perhaps your saying that the probable cause cannot exist that time, these seven gentlemen invited the other gentlemen to accompany them for a chat and at the probable cause did not exist until after they had had that chat, is that your position?

    Norman Heine:

    That’s exactly my position.

    Abe Fortas:

    In other words you’re saying that the first interrogation was for the purpose of using probable cause?

    Norman Heine:

    To determine whether or not there would — it would result in probable cause of arrest.

    Abe Fortas:

    Suppose I had probable cause at the time that they went to that man’s house, in your submission, would they still have been able to interrogate him without counsel?

    Norman Heine:

    Yes.

    Abe Fortas:

    So, you really don’t put any stress on that point?

    Norman Heine:

    That’s right.

    Now, he was interrogated for this hour and 20 minutes and during this time he admitted his participation of robbery although did not (Inaudible) admit to his participation in an armed robbery.

    Norman Heine:

    In the meantime, the officers, the investigation indicated that he’d had a knowing part in the use of the guns.

    They resumed an interrogation at 12:15 which lasted for about a half hour.

    And during which time, he now admitted that he had possession of two guns, one of which was the lethal weapon.

    Later on in about a 15 minute interrogation or 10 minute interrogation, he admitted that he had possession the night before of the lethal weapon and how he disposed of it.

    At the trial, the defendants did contest the issue of voluntariness by offering any proof of their own.

    The state followed the accepted and approved practice of proving the voluntariness of the petitioners or defendants’ confessions by proof before the court outside the presence of the jury.

    The defendants did not offer any proof, contrary.

    They did oppose the issue of voluntariness.

    At the conclusion of the proof, the state moved that the (Inaudible) — the confessions be determined to be admissible and voluntary.

    At that time, the trial judge made the determination.

    The state then announced that it was prepared to reintroduce the proof in the presence of the jury so that they can only pass upon the issue of voluntariness.

    At that time, the defendants requested and demanded that the state need not reintroduce its proof before the jury because they were willing to concede that this issue had been already been determined by the trial judge should not be resubmitted to the jury.

    At the conclusion of the state’s case, the defense rested.

    They offered no proof whatsoever on their behalf.

    They offer no evidence by any other witness.

    In their summations, the defendants’ attorneys freely conceded and argued to the jury that the confessions were voluntarily given and were true.

    This was the thrust of each of the defendants’ attorney’s summation both as to Cassidy as well as to Johnson.

    Moreover, they admitted their guilt in summation and the sole thrust of the defense was a plea for mercy on behalf of the jury.

    Hugo L. Black:

    But what was it then, an addition to that?

    Norman Heine:

    In addition —

    Hugo L. Black:

    (Voice Overlap)

    Norman Heine:

    — to the confessions?

    Hugo L. Black:

    That they claim now with (Inaudible)

    That if they have — did they admit precisely the same thing at the trial to which they had confessed?

    Norman Heine:

    Yes.

    Hugo L. Black:

    (Inaudible)

    Norman Heine:

    They — that will — they didn’t take the stand.

    They admitted that the confessions were true that the statements given to the interrogator were true.

    Hugo L. Black:

    Defendants can take stand.

    Norman Heine:

    Defense —

    Hugo L. Black:

    The counsel admitted that the confessions were true?

    Norman Heine:

    Yes.

    On page 270 of the transcript, counsel for Cassidy and his summation said, “Whatever is in this statement made by Stanley Cassidy is true.

    I know it is true.”

    Later on he says, “I know it is true because I a know Chief Dube.

    He is the interrogator, he got the truth.”

    Johnson says in his summation, Johnson’s attorney that is.

    What page is that?

    Norman Heine:

    That would be the first — my first reference was on page 270.

    My second reference is to page 294.

    Johnson’s attorney says, “There were no threats in speaking about the confession.

    There were no threats.

    There was no attempt to evade.

    There was no trickery.

    Anything that Chief Dube asked him he answered honestly and truthfully.”

    This on page 295 of this record.

    The jury founds defendant is guilty without any recommendation under the New Jersey law, they received the death penalty.

    An appeal was made in New Jersey Supreme Court, a direct appeal, review the entire record including the summation of counsel and incidentally, and I don’t know how much I want to speak about that it — whether my time allows.

    Summation of counsel, the remarks of the prosecutor in summation was raised by the Court on its own motion and they concluded to that — did not violate due process.

    That it was within the framework.

    And since there was no objection, there was no objection by defense counsel at the trial.

    They thought in the climate and the atmosphere of that trial, it could not have been harmful.

    Hugo L. Black:

    What was that he said?

    Norman Heine:

    He called one of them a triggerman.

    A — comment about, they were wearing either of these suits.

    They were sleek.

    They went to cabarets.

    This was in the confessions.

    This was all within the evidence.

    The Supreme Court of New Jersey held, there were hard gloves but there were fair gloves.

    Norman Heine:

    A year after — a year and a half after the trial, after the appeal have been decided, there was a motion made or an application made for a new trial based upon newly discovered evidence.

    Testimony was taken because the matter was referred from by our Supreme Court back to the trial judge for the purpose of taking testimony on this application for a new trial.

    There was a two-day hearing.

    This was the first time that the defendants now took the stand and claimed that the confessions were coerced.

    They claimed that they were physically beaten, mentally disturbed, and so forth.

    The trial judge found after reviewing all the testimony in a reported opinion found that the story offered by the defendants was unbelievable, incredible, and denied their request for a new trial because they did not submit any newly discovered evidence.

    They had a full opportunity to contest the issue of voluntariness at the original trial.

    Abe Fortas:

    You know whether they were then represented by appointed counsel or public defense (Voice Overlap) —

    Norman Heine:

    They were then — no, they were represented by their privately retained counsel at the original trial and represented again by privately retained counsel on the motion.

    None of these defendants were indigent and they had court appointed attorney.

    The only court appointed attorney in this matter was the third defendant who was not involved in the present appeal.

    Hugo L. Black:

    Has there been any charge if the counsel the first time was inadequate —

    Norman Heine:

    No.

    No charge of incompetency, no charge at all of that.

    Although It wasn’t effective representation of counsel.

    No such claim made.

    Our Supreme Court reviewed on appeal the entire record made on the claim of involuntariness of confessions of his testimony taken at the year and a half afterwards and came to the same conclusion as the trial judge.

    This was the first post-conviction application after the New Jersey Supreme Court affirmed application of petitioner was filed in this Court for certiorari, certiorari was denied.

    Thereafter, quite sometime afterwards, an application was made for habeas corpus in the Federal District Court charging here again involuntariness.

    And strangely enough attached through the petition for habeas corpus, we first hear about the psychiatric and psychological reports that were made of the inmates for the first time a year and a half after the crime and after six months of incarceration to state prison.

    Objection was made by the state to any reference to the psychiatric reports because, one, they were never in the record, never in evidence.

    The authors of the reports were never interrogated nor examined or cross-examined.

    Nobody had an understanding of what the psychiatric reports actually meant or the psychological report.

    Earl Warren:

    What were they designed to show insanity or —

    Norman Heine:

    That they had some antisocial personality and so forth.

    No claim made of insanity.

    The claim of use of narcotics entered the picture for the first time in the motion for a new trial but this was denied by the attorneys who represented them.

    They didn’t hear anything about narcotics —

    Abe Fortas:

    And they assert —

    Norman Heine:

    — and they claim —

    Abe Fortas:

    I beg your pardon sir.

    Do you recall under the psychiatric reports spoke of the defendant’s condition as of the time that psychiatric examination was made or as of the time of the crime?

    Norman Heine:

    It could only — had only speak of the physical condition or his mental condition as of the time the examination because he had no way of determining what it was a year and a half before —

    Abe Fortas:

    Well, they frequently do.

    They frequently do that whatever one may think of it but (Inaudible) this treatment leads to that.

    But you say that this one purported to speak as of the time that they examined —

    Norman Heine:

    That’s right.

    With the history, however, given to him by the subject, by the defendant but we relate it back as to what he was a year and a half ago and what he was as a young child.

    The district judge, the federal district judge on the application for habeas never reached the question of the psychiatric reports or psychological reports but determined that on the record, the confessions were voluntarily given and he only denied the petition for habeas.

    Appeal was then taken to the Third Circuit, who again reviewed the record and again since the psychiatric and psychological reports came up just because they were attached to the petition, they formed part of the record in the Circuit Court of Appeals.

    There again, the State told the Circuit Court of Appeals, “Do not consider any psychiatric or psychological reports because they are not part of the record.”

    The Circuit Court of Appeals affirmed the district judge in denying habeas.

    Certiorari and appeal was made to this Court and again certiorari was denied.

    Then they filed an application for a post-conviction relief proceeding.

    They filed an unverified petition not supported by any affidavits.

    There’s a legal argument before a trial judge who determines now that you haven’t made out a case on your petition that would fall within the provision of Escobedo, this was already after Haynes and Escobedo.

    The trial judge then denied their petition for a post-conviction relief.

    An appeal is then taken to the New Jersey Supreme Court and here again, very strange practice is introduced.

    They file affidavits with the New Jersey Supreme Court in support of this petition for post-conviction relief.

    These affidavits were never before the trial judge and in these affidavits the New Jersey Supreme Court says, “We will consider them arguendo as if they had been filed with the trial judge.

    We don’t think they make out of case under the facts of Escobedo.”

    There’s one other situation that I think discloses the whole pattern of their procedure in this case.

    Paragraph 11 of their petition filed for this post-conviction relief says this, it’s very significant language, “Keeping in mind please that this is immediately following Haynes and Escobedo decisions of this Court.”

    The petition says this and I quote, “None of the contentions advanced in this petition was raised in any of the prior proceedings, each contention rest upon a recent development in the law or a newly established fact.”

    End of the quote.

    The affidavits filed in the New Jersey Supreme Court and I’m not criticizing my Supreme Court for how we consider that because they figured they — they’d only decide that they had no factual basis and didn’t rise to constitutional requirements anyway.

    The language of this affidavits seemed to (Inaudible) because now for the first time we hear that there was a request by someone by one of more of these defendants to contact their family

    And then we find that following Escobedo there’s an allegation in this prisoner’s affidavit that he was never advised and I quote, “Of the right to remain silent”.

    This is odd language coming from a defendant in the state prison who has this seventh or eighth grade education.

    Earl Warren:

    We’ll recess now Mr. Heine.