Mallory v. United States – Oral Argument – April 01, 1957 (Part 2)

Media for Mallory v. United States

Audio Transcription for Oral Argument – April 01, 1957 (Part 1) in Mallory v. United States

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Earl Warren:

Mr. Bryant, had you concluded your opening remarks?

William B. Bryant:

You Honor —

Earl Warren:

Had you —

William B. Bryant:

— please I haven’t, I believe —

Earl Warren:

I see.

William B. Bryant:

— there’s about 13 more minutes —

Earl Warren:

Yes, you may have some more time.

William B. Bryant:

Yes, sir.

Two or three to just one question, and reserve the rest of the time for rebuttal.

Earl Warren:

Yes, sir.

William B. Bryant:

In reference particularly to the admission of the evidence which was obtained pursuant to the so-called consent to service.

I believe that that evidence was illegally seized for this reason if Your Honor, please.I believe that the petitioner with his particular characteristics, his lack of training, some grave question as to what his mentality was, whether not even psychotic, no question about him being psychopathic, need of background, his youth, strangeness to the city, being incarcerated at the time that the so-called consent was given to him, I think that in this area that the — and voluntariness within the contemplation of the federal rule that consents to search must be voluntary cannot be arrived at so that I have a two-pronged attack on the consent to search.

One is that it was a fruit of illegal detention and I think that the McNabb (Inaudible) certainly or logically would apply to anything gained as a result of illegal detention.

And then the other side of the coin that it was not voluntary in the — according to the standard adopted by this jurisdiction.

Inasmuch as that’s so, I think that the evidence admitted depends — the trial wasn’t — the defendant — that the petitioner who should not have been admitted and that their introduction was error which should cause the case to be reversed.

Felix Frankfurter:

I just want to ask you one question before you take your seat, Mr. Bryant.

William B. Bryant:

Yes, sir.

Felix Frankfurter:

Does the record give details, particulars, to substantiate your statement that the defendant here was at disadvantage, a person of limited capacity?

William B. Bryant:

Yes, if Your Honor please.

Felix Frankfurter:

That’s in the record?

William B. Bryant:

The record.

Felix Frankfurter:

Well, then.

William B. Bryant:

At the very outset, the testimony of the psychiatrist.

Felix Frankfurter:

All right.

Earl Warren:

Mr. Barrett.

Edward L. Barrett, Jr.:

May it please the Court.

I should like to address myself first to the McNabb question and reserving the other two questions for later consideration.

It’s noteworthy that in this case; petitioner makes no claim that his confession was a result of coercion, physical or psychological.

The petitioner himself testified in this case that he had been treated kindly and made no complaint with respect to actual coercion.

The petitioner’s claim on the McNabb point is essentially that Rule 5 (a) must be interpreted as forbidding any delay in taking a person before the committing magistrate, other than that physically necessary for locating a magistrate and transporting the prisoner there.

Edward L. Barrett, Jr.:

We then argued that under the McNabb rule, any confession obtained during a period of delay and beyond that must be excluded.

Now, the Government concedes, of course, that the police could have found a committing magistrate and brought the petitioner before him within a relatively short time after his arrest at 2:30 on a Thursday afternoon.

It is the Government’s petition — position, the Rule 5 (a) must be given a broader interpretation.

That delay may be necessary within the meaning of the Rule beyond the time physically necessary to take an arrested person before a magistrate.

That the delay in this case was necessary on a reasonable interpretation of the Rule and that hence from McNabb rule does not apply to exclude this confession.

The facts in this case, we think, are an excellent example of the reason why a mechanical interpretation of Rule 5 (a) as applying only to the time actually necessary to find a magistrate to take a man before him, would be an undesirable interpretation.

Consider what you have here.

A rape was committed in the basement of an apartment house.

The facts are that this basement may be reached by a set of wooden stairs or through a door, into a janitor’s apartment.

The courts investing the right of the victim, tells the police that after she came down to this basement to do her washing, she heard nobody come down these set of wooden stairs.

That’s conceded.

And the petitioner himself conceded that he had been in the room shortly before the rape and to help the victim with a hose.

The inference at this point was that — probability was that the person who committed the crime came from the janitor’s apartment.

The description given by the victim would have fitted generally, apparently, the petitioner and his two nephews.

A tall, Negro with bright eyes, with a white hat, was about as much as the victim was able to say at this stage of the game.

So, hereafter, preliminary investigation, the police were faced with the fact that on the physical evidence there was a reasonable suspicion at least that one of these three people committed the rape.

Further investigation apparently disclosed that the petitioner and one of his nephews had disappeared.

The next morning, at some point, it’s not clear from the record.

The police picked up the two nephews, brought them into the police station and questioned them.

That record doesn’t disclose how long or under what circumstances with respect to the crime.

They finally found the petitioner at 2:30 in the afternoon.

Felix Frankfurter:

Would you mind finishing what they did with the nephews?

Edward L. Barrett, Jr.:

The nephews stayed and I’ll deal with that.

The nephews were at the police station when the petitioner was brought in.

They brought the petitioner in and they questioned him.

Now, several officers were apparently present during the questioning though the record doesn’t tell us much about this.

And, it’s well to remember that this case was tried well over a year after the arrest.

So that everybody’s memories with respect to the details were undoubtedly fuzzy.

He was questioned — it’s probable, though the record is not entirely clear that he was questioned in the presence of his two nephews.

He said that they —

Felix Frankfurter:

They picked up without a warrant?

Edward L. Barrett, Jr.:

Insofar as I know, the record doesn’t disclose anything on that but I assume he was picked up without a warrant.

Apparently he testified.

The petitioner testified that his nephews and his brother were questioned — were present when he was questioned at this initial period.

Officer (Inaudible) testified that the nephews were present, part of the time.

One of the nephews testified that he didn’t think the petitioner was questioned in his presence.

That’s about the state of the record on that point.

After a period of questioning which was —

Earl Warren:

But would that help — would that help any if other suspects were in at the questioning?

Edward L. Barrett, Jr.:

Well, there were other suspects, plus his brother who apparently was not a suspect —

Earl Warren:

Oh, I thought —

Edward L. Barrett, Jr.:

— within this case.

Earl Warren:

— I thought all of them, they picked up were suspects.

Edward L. Barrett, Jr.:

There’s — I’m not — this record isn’t clear but my assumption from the record is the brother who was an older man evidently were — was never suspected here.

It was the two nephews and that record only shows interrogation of the defendant and the two nephew — the petitioner and the two nephews.

Nothing would respect to his brother.

They’ve been interrogating in the morning of the two nephews?

Earl Warren:

The record just doesn’t disclose.

Part — there’s nothing in the printed record, the original record that’s on file with the court shows that the other nephews were brought in at some point during the morning — they testified that they were brought in to the police station during the morning.

But that — that we assume they were questioned.

But the record isn’t clear.

This wasn’t brought into focus in the trial.

Now the petitioner was brought in and he was questioned, the officer said 15 to 30 minutes, he said 30 to 45 minutes.

After this questioning he was taken, this had been — taken place apparently in the Identification Bureau.

He was then taken to the Sex Squad office where in the presence, he testified of his brother and his two nephews, the police asked them if the three of them would consent to take a lie detector test to determine apparently who was telling the truth.

Petitioner in his testimony doesn’t question the voluntariness of his consent to take a lie detector test.

And the nephews testified that — that they were asked.

And they all agreed to take the lie detector test.

Now, all of the delay after this time was consumed in waiting for the officer to arrive, who gave lie detector test and in giving the test first to the two nephews and finally to the petitioner.

The brothers alone — fuzziness on this issue, the — the record seems to bear out statement that from about 4 o’clock in the afternoon until 8 o’clock when the petitioner was taken in for the lie detector test, he sat on a chair in the Sex Squad office with one or both of his nephews.

Earl Warren:

It’s not clear whether his brother was there all or part of the time.

He was apparently there at the beginning of this period.

They were given food and drink.

They received no other guarding.

And that was implied in sitting in the back of an office where police were coming and going.

We don’t contend, of course, they were free to leave.

There’s no question about that.

And while there’s a little conflict on this, most of the evidence suggests that they weren’t questioned during this time.

Petitioner himself said that he didn’t remember any questioning during this period.

They just sat in the office and waited.

(Inaudible)

Edward L. Barrett, Jr.:

From — in — in the petitioner’s case from 4 until 8.

At 6 o’clock they sent out apparently for a lie detector —

Felix Frankfurter:

When did —

Edward L. Barrett, Jr.:

Excuse me.

Felix Frankfurter:

Would you mind Mr. , when did the lie detector machinery and its operator turn it up?

Edward L. Barrett, Jr.:

He came about 6 o’clock.

Felix Frankfurter:

Six o’clock.

Edward L. Barrett, Jr.:

The consent was somewhere around four they — and then they sent out and then he came in.

Felix Frankfurter:

Was he subjected to this — was the defendant subjected at once to the machine or –?

Edward L. Barrett, Jr.:

No sir.

The — the — he came at six and he took first one of the nephews for an hour, approximately.

Then the other nephew for an hour and he got the petitioner at 8 o’clock.

The man who offered —

Felix Frankfurter:

Probably in the meantime about — the — the victim wasn’t called in for identification (Inaudible)

Edward L. Barrett, Jr.:

No, sir.

This —

Felix Frankfurter:

Anything in the record to suggest that the defendant was advised of his right to counsel or was — anything on that point?

Edward L. Barrett, Jr.:

The record shows that — the only thing the record shows on this is that at the point later — much later on at which he was given the lie detector, in which he was given the lie detector or under which he signed the — was about to sign the written confession, you’ll find it in the bottom of page 42 of the record.

After he’d been confronted with the complaining witness after he’d made the oral admissions —

Felix Frankfurter:

(Inaudible) he confronted with this?

Edward L. Barrett, Jr.:

Was around — late at night around 11 o’clock.

Felix Frankfurter:

Before arraignment or after?

Edward L. Barrett, Jr.:

It was before — actual arraignment — it was after the police made an attempt to get in touch with the commissioner.

Felix Frankfurter:

Before arraignment?

Edward L. Barrett, Jr.:

Yes.

He was arraigned the next morning after all these happened, sometime during the morning.

Felix Frankfurter:

Let me ask you one more question.

Suppose he had declined to subject himself to the lie detector or suppose he had a lawyer and the lawyer said, “Don’t you submit to that,” and he — that would have been clearly within his rights wouldn’t it?

Edward L. Barrett, Jr.:

Yes, sir.

Felix Frankfurter:

Suppose the lawyer had said, “Don’t you do it.

The lie detector is not yet established as a wonderful scientific instrument.

There are doubts and worries about the conditions under which it’s given, et cetera.

All the things that you and I know.”

That will be all right, wouldn’t it?

Edward L. Barrett, Jr.:

Yes, sir.

However, we don’t know.

Felix Frankfurter:

I know we don’t know.

Edward L. Barrett, Jr.:

Yes.

Felix Frankfurter:

But all I’m saying is that all that period was utilized and — and his subjection to this — to this prosecutorial — I’m not questioning any — prior to this prosecutorial intention that about having any counsel on his side or any advice or any knowledge of what his rights were.

Edward L. Barrett, Jr.:

I should add that there’s nothing in the record that suggests that had he wanted counsel, he could not have had it.

He wasn’t isolated from family and friends at least in the sense of being secreted in the back room.

He was held in an office, his brother was evidently in and out.

And the — the situation is — is different but not, I suggest, perhaps materially, different than if he’d been asked the question in his home when you come down to the police station and take the lie detector test.

Felix Frankfurter:

I don’t want to delay your conclusion.

You can draw from it.

But will dispose in a word of the character of this defendant.

Do you agree or disagree with Mr. — that the general impression that Mr. Bryant’s statements left on with me especially the kind of a person you were dealing with.

Edward L. Barrett, Jr.:

Well, I think the evidence is somewhat more conflicting on this issue than Mr. Bryant suggested.

Actually one psychiatrist whose testimony or that appears here in — in the record that’s before you on page — page 4, a Dr. (Inaudible) saw that petitioner for an hour from the jail, a few days after the event.

Earl Warren:

Page 4 of what?

Edward L. Barrett, Jr.:

Of the transcript, that’s before here.

It’s a letter report —

Earl Warren:

Oh, a letter.

Edward L. Barrett, Jr.:

— appears at the bottom.

Felix Frankfurter:

Whose — whose witness — whose psychiatrist was he?

Edward L. Barrett, Jr.:

Appointed by the court.

Felix Frankfurter:

Appointed by the court?

Edward L. Barrett, Jr.:

At this point, appointed three psychiatrists to determine the issue of sanity.

The three came in with or that I guess that was two.

The two came in with this — agreed that he was mentally ill at the time.

Now, this particular psychiatrist also said the patient appeared to be dull and apathetic and mildly confused.

No former psychological test were given but the estimate of his intelligence, is that of a moron.

Now, he was sent to St.Elizabeth and after 90 days was sent back.

The three doctors from St.Elizabeth testified that he wasn’t insane.

That he hadn’t been at the time he came or they filed a report testified that he hasn’t been insane at the time he came to them and that on their — on their investigation he wasn’t.

Now, later on, now it is not in this transcript.

It’s in the original transcript.

Dr. (Inaudible) testified in this case.

It appears, beginning at page 365 of the type-written transcript.

In — in which again he repeated his assertion that the petitioner was a high grade moron.

But again this testimony was based on his hour of examination of a year and two months, previously.

Felix Frankfurter:

Do you mean his trial was before the Government (Inaudible) wasn’t it?

When was that?

Edward L. Barrett, Jr.:

I think so, I’m not sure.

Felix Frankfurter:

I’m not sure either.

Edward L. Barrett, Jr.:

Yes.

But at any rate, none of the other people who testified said anything directly about — none of the other doctors got to the issue of the petitioner’s intelligence.

Felix Frankfurter:

Well, I didn’t mean so much his actual mental state.

But as the record disclose (Inaudible)

Felix Frankfurter:

The record discloses education is what kind of stability?

I don’t mean —

Edward L. Barrett, Jr.:

Well —

Felix Frankfurter:

— psychological.

Was he pending on that in the record?

Edward L. Barrett, Jr.:

Very little.

He stated to one of the (Voice Overlap) —

Felix Frankfurter:

How old is he?

Edward L. Barrett, Jr.:

He was 19 at this time.

Felix Frankfurter:

19?

Edward L. Barrett, Jr.:

He stated to one of the doctors that — who — according to the doctor that he was, “How far did you go school in “Eight grade?

“How did you do?”

“I did good.”

He stated on his oral examination that he went to the seventh grade in school.

And that’s about all the —

Felix Frankfurter:

Did he have a permanent occupation?

Did anything appear on that?

Edward L. Barrett, Jr.:

There’s nothing in the printed record here as I remember from looking over the written transcript.

He — he had come up to the — from — he had come here not — two or three months before the event from Greenville, South Carolina for six or seven weeks.

And as I remember in the transcript it shows that he’d been taken some trips in the moving van and in fact the day that — when he’d gone out somewhere in Maryland to look for a job and — but no permanent fixed occupation.

What does a part of the record includes as to the (Inaudible)

Edward L. Barrett, Jr.:

That’s the — that’s the theory on which it was constructed.

Yes, sir.

Though there are some other portions that might be.

Though — though most of them are here as a printed record.

William J. Brennan, Jr.:

Were you suggesting, Mr. Barrett, that the original record would indicate a difference in Dr.(Inaudible) testimony over the findings?

Edward L. Barrett, Jr.:

No his testimony — his testimony was the same.

All I was suggesting is that — that he stood along and assessing the man as a moron.

That everybody else that had anything to do with him on this day testified that he was bright and alert, cooperative.

His own testimony as your read it here in the record suggests a relatively high degree of ability to verbalize concepts and to respond to questions.

Have you have heard this point whether the total time which was — interrogation of this man proved the interrogation (Inaudible)

Edward L. Barrett, Jr.:

Well, at — at 2:30 or 3 o’clock he was somewhere between 15 and 45 minutes, the longest estimate is 45.

The petitioner says 30 to 45 and then it was an hour and a half that he was with Officer McCarthy in the room with the polygraph at which apparently about 20 to 25 minutes was consumed with asking questions while he was hooked up to the machine.

He was asked the questions ahead of this and after.

Then after that hour and a half when he had confessed to Officer McCarthy, then other officers were brought in and he repeated his confession to them.

Now, the record doesn’t disclose quite how long that took, apparently 10 or 15 minutes.

And when he repeated the — the confession to them, and then later on he — he repeated it to the complaining witness and ultimately he dictated to a type-writer, a written and signed confession here.

Overall who (Inaudible) two and a half to three hours.

Edward L. Barrett, Jr.:

That’s right.

Felix Frankfurter:

What was —

Edward L. Barrett, Jr.:

With this intervening period of time.

Felix Frankfurter:

What was the defense, Mr. Barrett?

Edward L. Barrett, Jr.:

That the petitioner —

Felix Frankfurter:

I infer from what you said that he took the stand.

Edward L. Barrett, Jr.:

Yes, the petitioner’s defense was that he didn’t remember anything that happened after 6:30 in the evening.

Felix Frankfurter:

No, I don’t mean on this issue.

I mean the defense on the merits?

Edward L. Barrett, Jr.:

Well, that — he denied doing it, and he testified that he didn’t remember all his confession business He didn’t remember anything that happened after 6:30.

And I don’t know that there was much more than that.

The flat denial, the —

Felix Frankfurter:

And on the identification — identification by the victim.

Edward L. Barrett, Jr.:

Not clear.

Felix Frankfurter:

Not clear?

Edward L. Barrett, Jr.:

As I read the — the record.

Felix Frankfurter:

(Inaudible)

Edward L. Barrett, Jr.:

She — she said, at least in the part of the record that’s here.

She — she testified that at the time it happened, she wouldn’t have identified the defendant as being the same person that had been in the room previously.

That all she can say was that he fit the same general description.

Now —

Felix Frankfurter:

I asked that question because some of the cases — indeed this Court points out — has pointed out that (Inaudible) towards alleged errors of this one finding, may be influenced by the — by the certainty of a — the convincingness of proof.

Edward L. Barrett, Jr.:

The —

Felix Frankfurter:

Assuming there’s enough to go the jury anyhow.

Edward L. Barrett, Jr.:

Yes.

The — the way the — the way that confession went here, the — the defendant avoided any question about it simply by saying he thought he’d been drugged when they gave him food and drink.

He didn’t remember anything after 6:30 until he woke up in the jail the next morning.

And therefore, he wouldn’t affirm or deny what had happened in this intervening period.

He said it looked like his signature but he couldn’t remember signing it with someone.

Felix Frankfurter:

I — there are two different questions.

What I was just referring to is the — the certainly or the confidence in which one can say, guilt was established by the proof apart form the confession.

Not, the confidence one can have, the confession is valid.

I’m saying that the case is — I think has indicated pretty clearly that makes a difference how you feel about diversity.

How solid the proof is on — on controverting — controvertible the proof is, on the merits apart from the contested (Voice Overlap) —

Edward L. Barrett, Jr.:

I suppose you know what you have to say instead of we’ll say, case of circumstantial evidence here, apart from the confession and especially if you say apart from the clothes which had seminal stains and so on which were introduced.

Earl Warren:

Was there not — suppose you took — suppose you took out of the case the confession that he gave and the evidence that was obtained by the search of the house that you say was a part and parcel of the same conversation while he was detained.

What would be left in the case?

Edward L. Barrett, Jr.:

I Suppose what would be left, my familiarity with the record here is not all that it might be that entire record, but I assume what would be left was the fact that he had been in the room with the victim shortly before he conceded that and seen her there.

That he testified that he was the only person in the adjoining apartment.

His brother or his nephews testified that they weren’t there at the crucial time.

The victim testified that she heard nobody come down the wooden steps from which you could infer that person came in from the apartment.

He met the general description of the person who committed the rape.

Felix Frankfurter:

How old are these nephews, Mr. Barrett?

Does that appear —

Edward L. Barrett, Jr.:

I’m not sure.

I don’t think it shows from the record.

They were evidently adults.

Or I don’t — I don’t know the answer to that.

Well, our — our contention on the McNabb point here then is that under these circumstances, a serious crime of violence had been committed.

The police had reasonable grounds for suspecting one or three persons, either the nephews or the petitioner had committed this crime.

The police, upon arresting the petitioner could not very well have taken him immediately before a magistrate and singled him out to file a complaint that he was the person who had done it.

They couldn’t have done it with anyone of the three at the point at which they brought him in.

Earl Warren:

Did I understand Mr. Bryant to say they were also bringing in other people for this same crime?

Edward L. Barrett, Jr.:

That apparently the only people (Inaudible) the record, the only people that were suspected were the — were the petitioner and his two nephews.

Earl Warren:

Oh, I see.

Edward L. Barrett, Jr.:

And they were all there.

They were all three interrogated.

They all consented to the lie detector test.

They all took —

Felix Frankfurter:

Did you —

Edward L. Barrett, Jr.:

— the lie detector test.

Felix Frankfurter:

— did you say a little while ago that the nephews or one of them wasn’t in the rule of the three?

Edward L. Barrett, Jr.:

Well — apparently they were —

Felix Frankfurter:

How could they have been then suspected if — if —

Edward L. Barrett, Jr.:

Oh, I —

Felix Frankfurter:

— it had to be one of the three in that room?

Edward L. Barrett, Jr.:

Oh, I don’t mean in that room.

I mean in the — in the —

Felix Frankfurter:

Detention room.

Edward L. Barrett, Jr.:

— police station, in the detention room.

They were in and out but —

Felix Frankfurter:

It conceded the three people or wasn’t one of the three, the janitor?

Edward L. Barrett, Jr.:

Well, that the — the father of the nephews, the brother of the petitioner was the janitor.

Felix Frankfurter:

Oh.

Edward L. Barrett, Jr.:

And that’s why he lived there.

And the petitioner —

Felix Frankfurter:

So that the three — so that the potential, the possible defendant, possible — guilty people was the janitor, this — his brother and a nephew?

Edward L. Barrett, Jr.:

No, I’m not sure.

The record doesn’t answer this, but I get the impression that the brother wasn’t suspected.

Maybe he didn’t —

Felix Frankfurter:

Wasn’t suspected?

Edward L. Barrett, Jr.:

Maybe he didn’t — maybe he didn’t met — meet the general physical description.

Edward L. Barrett, Jr.:

That I don’t know.

It was the two nephews and his two sons, in other words and the defendant, petitioner here who were the suspects.

Now, under these circumstances, to say to the police that you have to either not take these people in and question them or you have to pick one out and taking, and file a charge, a complaint against them before a Commissioner.

They weren’t in the position to do this.

Now, this is not like Upshaw.

In the Upshaw case, you had a different situation.

You had the police suspecting an individual, had the policeman of the court know or was testifying that the reason they held this individual is to get a confession from him.

Here you have a different situation.

You have three logical suspects.

The reason the police did what they did here was to try to eliminate.

There, about the only investigative technique left to the police in this case at this time was to question the suspects.

They weren’t going to get physical evidence that would pick anybody out.

They were going to be no eyewitnesses.

And so they were questioning these three people who logically might have committed the crime under these circumstances.

I assume that the petitioner never confessed.

That — that on — as a result of the questioning the police have then let loose the two nephews and charged him with the crime.

That there wouldn’t be as much feeling about illegality as there is here because he ultimately did — he ultimately did confess.

There are lots of other situations which are just similar to this one.

The police for example, a man is shot in the street.

Officers rushing to the scene may see two or three people running away.

Maybe somebody in the crowd says, “He shot him, he shot him.”

Under the circumstances they have to make an arrest.

And they have to make some inquiry before they take the step of filing a formal charge against one of these individuals with the crime.

It seems to be generally conceded by most of the authorities that — that there is a necessity for some amount of investigation in this kind of a situation.

Now, there may be serious questions as to how best it should be done.

The Government, of course, is sympathetic with the — with the underlying purpose of the McNabb rule.

We recognize the evils of secret interrogation, the evils of the — of the third degree.

But we suggest however, to apply the McNabb rule, purely mechanically, is only a question of time.

It goes too far and rules out, confessions that are — or rules out, it’s not just that it rules out confessions but brand this illegal, perfectly reasonable police practices which have nothing to do with beating up the man in the back room.

This case is — is a good example.

Edward L. Barrett, Jr.:

It could not be said that the petitioner here was held incommunicado.

That he was secreted in the back room.

He was held out in the — with his nephews, apparently with his brother in the offices of the police.

The only time in which he could be said to have been taken off into the back room is the hour and a half that he spent with the polygraph operator and where the — he was questioned in this — this small room.

Felix Frankfurter:

Mr. Barrett, as you well know, McNabb isn’t merely concerned, wasn’t concern merely with a fellow being beaten up in the back room.

It was concerned primarily that occasion be made out against the defendant to his — to himself.

Now, of course, if you got beating up from the back room that night, everybody is used to that.

But —

Edward L. Barrett, Jr.:

Well — well, the Government are — The Government’s position here is that it would certainly be a — a drastic change in law enforcement practices and we suggest it’s nothing —

Felix Frankfurter:

The McNabb rule was intended very considerably to change conventional methods of law enforcement.

That’s the point of the rule.

Edward L. Barrett, Jr.:

There’s nothing in what was said or decided in McNabb or Upshaw which carries it as far as the contention made in this case.

Felix Frankfurter:

That maybe.

Edward L. Barrett, Jr.:

And —

Felix Frankfurter:

But it wasn’t merely a rule designed to prevent physical violence as a mode of extorting confession.

That was precisely indicated that that was not the reason for it or even for it and it didn’t want to create circumstances as I indicated in which you get stuff out of the defendant and have — instead of having the Government, the prosecutor generally go about the business in establishing through resourceful energy and imagination and enterprise, a case other than out of the mouth of the defendant.

Edward L. Barrett, Jr.:

This case I think, Your Honor, is a good example of the situation in which if you don’t permit police interrogation of the suspects, you don’t convict people.

You get often, these cases where the resources of the physical evidence of eye witnesses are exhausted and — and what you have left is the need for some names under which the police can interrogate these people.

They — they had to talk to these three people in the interest of the society.

Felix Frankfurter:

I saw it here.

The fellow had a lawyer who told him, you don’t open your mouth.

You — the police wouldn’t have (Inaudible) up their head and said, “We can file about this case.”

Wouldn’t they?

I shouldn’t imagine that responsible police would do that.

They will — if he can’t get it out of his own mouth, therefore we stop doing anything.

Edward L. Barrett, Jr.:

But presumably if — if only his lawyer told him that, the police would still have the evidence that they received from the statements of the people who were not guilty, in this case, the two nephews.

Felix Frankfurter:

But if the police went on — at least prove the nephews didn’t do it.

Edward L. Barrett, Jr.:

But it would tend to prove under the circumstances of this case that the Commissioner did.

Felix Frankfurter:

Well, that wouldn’t be — you could put that in a proof in the trial.

At least three fellows were in the room, the two others have been established and are innocent ergo, this fellow, you may find guilty.

Felix Frankfurter:

You don’t suggest that freely, do you?

Edward L. Barrett, Jr.:

No, but — but their stories about where they were which could be checked about where they saw the petitioner and so on are all related to the — to the issue of — of guilt.

Earl Warren:

Mr. Barrett, if he had not gone on the lie detector, how long would you say that they could have kept him in this same condition and still have the Government here in court saying that it referred to be proper?

Edward L. Barrett, Jr.:

Well, I — I don’t know how you answer — answer the — the how long.

I would assume that what would be proper here would be a reasonable amount of time which might be 30 minutes or two hours, I suppose, depending on the circumstances and how complicated the situation was, for getting the stories of the people.

Now, the police were in the position of having gotten each — each man’s story.

And it was at that point that the suggestion was made that, will you be willing to take the lie detector test?

Presumably, the two that were innocent felt they had nothing to lose by taking the lie detector test and I suppose perhaps the force of circumstances, the guilty man maybe was forced under the circumstances to consent too, because he was (Voice Overlap) —

Felix Frankfurter:

But I thought the record showed that he was eager and some — the Government —

Edward L. Barrett, Jr.:

Yes.

Felix Frankfurter:

— relies on —

Edward L. Barrett, Jr.:

Yes.

He — he said —

Felix Frankfurter:

— the Government (Inaudible) said he was eager for this.

Edward L. Barrett, Jr.:

Yes.

Well, so that we —

Felix Frankfurter:

So, that responsiveness to a request to take a lie detector proved innocence (Inaudible)

Edward L. Barrett, Jr.:

Well, I didn’t say that the response proved it.

I merely said that — that after the initial brief period of questioning, the — the only thing that went on beyond this came because everybody said, “We want to prove we’re innocent.

We’d like to take the lie detector test.”

Beyond this, the police — the holding was all for that purpose.

Earl Warren:

So, what do you with the language of the statute that says when he’s arrested he shall be taken without unnecessary delay to — to a magistrate?

What do you do with that language?

Edward L. Barrett, Jr.:

Well, we say that — that the delay here was necessary.

That it depends on how you construe, of course, the word “necessary.”

The earlier —

Earl Warren:

By necessary — by necessary, unnecessary delay, you mean that they can take him and hold him as long as they are investigating him and need to do so in order to determine whether he committed this crime or not, is that right?

Edward L. Barrett, Jr.:

Oh, we don’t take the position that far.

Earl Warren:

Well —

Edward L. Barrett, Jr.:

We take the position that you have to look at the facts of each case to determine whether the delay in this particular case was necessary or unnecessary within the meaning of the rule.

Earl Warren:

Suppose the Commissioner was right there at the time in building or in — in the room, would you have been justified in not arraigning him or not to — not to bring him (Inaudible)–

Edward L. Barrett, Jr.:

The Government’s position is that —

Earl Warren:

— until such time as you — you might have completed the investigation?

Edward L. Barrett, Jr.:

The Government’s position is that in – on the fact of this case —

Earl Warren:

Yes.

Edward L. Barrett, Jr.:

— they would have had no duty to take him to the Commissioner even though he’s been in the room.

Hugo L. Black:

Is there any statute which authorizes you have at least to summon a man to give evidence before them as — the way this man gave evidence?

Is there any statute which specifically authorizes that?

Edward L. Barrett, Jr.:

Not as far I know, Your Honor.

Earl Warren:

There’s no contention that this man was not arrested is there?

Edward L. Barrett, Jr.:

No.

Earl Warren:

(Inaudible)

Edward L. Barrett, Jr.:

Actually the problem here it seems to me stems from the fact that we haven’t had an exercise of either statutory or rule making power to spell out precisely what it is the police ought to be able to do.

Many authorities have contended over the years that there should be some regularized procedure for questioning suspects.

That maybe it should be done, some suggestions have been made that it should be done by the Commissioner.

Other suggestions, the Uniform Arrest Act, for example, suggested that the police should — that the police should be able to take the man before the Commissioner and the Commissioner should have discretion to release him to the custody of the police for up to 48 hours for reasonable investigation before the police would have the necessity to file a — a complaint.

We haven’t had either to rule making or to the legislature a careful spelling out of what ought to be done.

Now — now we suggest that the — that the position of society is not just the police who’re suspecting here.

Obviously the interests in society are that we ought to apprehend people who commit rape, other serious crimes.

Obviously the privacy of the victim here was very severely debated and perhaps there was a risk of the privacy of other women, would — would be invaded.

And that we have to balance in all of these cases the public interest in reducing private, illegal invasion to privacy among the public.

Now, I recognize that public officers are obviously held to a higher standard, but we suggest that what was done here doesn’t offend the moral sense and that it was certainly not clear to — to the police here, for example, that what they were doing was a violation of law.

As we point in our brief, almost without exception, the Courts of Appeals since McNabb and Upshaw have recognized in the cases the necessity for some detention other than that absolutely necessary to take the man before a magistrate.

And there’s a whole string of cases in this circuit and other circuits where the police have — where the courts have not applied the McNabb rule in that literal mechanical sense that — that the only thing is relevant.

Such an application has certain curious circumstances, too, unrelated to the policy.

If you couldn’t find a magistrate the 24 hours, presumably then the police could question a man for 24 hours as long they didn’t interfere with the voluntary rule.

But in another case where you could find one in five minutes, you couldn’t question him at all.

And this doesn’t seem to be the — the correct solution to — to the problem that’s involved here.

William J. Brennan, Jr.:

Well, Mr. Barrett, is there any background to the phraseology of this rule to indicate that unnecessary delay contemplated the circumstances under which the delay was incident to an investigation after an arrest?

Edward L. Barrett, Jr.:

Well, really all we know, I suppose is that the previous statutes that you set out in a footnote on page 22 of the Government’s brief talked in terms of taking him forthwith before some judicial officer or the person arrested shall be immediately taken before a committing officer.

Edward L. Barrett, Jr.:

Now, the — the other people have out that the legislative history here originally was more in terms of cutting down on the expense money that the commission — that the police got by taking them long distance is to arraignment rather than in the problem we’re dealing with here but that’s beside the point.

When the Rule 5 (a) was promulgated, it didn’t use forthwith It didn’t use immediately.

It used unnecessary delay.

William J. Brennan, Jr.:

Well just looking at it, on the face of the rule, would not unnecessary delay appeal reasonably as meaning only that the police upon an arrest to then use due diligence in locating a committing magistrate and nothing else?

The circumstance you mentioned, there might be a magistrate some hundreds of miles distance, the nearest one, does this contemplate though, every effort should be made upon arrest immediately to get him to a committing magistrate?

Edward L. Barrett, Jr.:

They —

William J. Brennan, Jr.:

On the face of it

Edward L. Barrett, Jr.:

Yes.

William J. Brennan, Jr.:

That’s all we have to go by.

Edward L. Barrett, Jr.:

Now, well, we — we — the Government’s position is that unnecessary must be interpreted to mean something other than purely this physical time mechanical rule how long does it take to (Voice Overlap)

William J. Brennan, Jr.:

Well, I’m just among them.

Why do say that?

Well, is it directing in the rule would suggest that?

Edward L. Barrett, Jr.:

Well, all we have is the word.

William J. Brennan, Jr.:

I beg your pardon?

Edward L. Barrett, Jr.:

All we have is the word unnecessary.

And — and we can contend we — our contention —

Felix Frankfurter:

But we have a little more than that.

We had great conflict within the advisory committee whether McNabb should be made into a rule.

Edward L. Barrett, Jr.:

But that didn’t deal with the problem we’re faced with here.

That is, the proposal there was to — to say if you don’t take the man within this period, whatever it is, you have to exclude the confession.

And that ultimately didn’t get in.

But that didn’t deal with the question of what’s meant by unnecessary.

Felix Frankfurter:

No, that doesn’t — couldn’t give a definition.

Edward L. Barrett, Jr.:

I — I don’t.

Felix Frankfurter:

But part — but — but the — what meaning you give to defense and fundamentally what your attitude is toward this problem and that’s the great division in the cases below.

Articulated this jurisdiction where the fact of the matter is some of the law of 0court judges have specifically with McNabb, the plaintiff’s (Inaudible) status.

Isn’t it in their own writing?

Edward L. Barrett, Jr.:

Well, essentially our position, and I suppose I should touch on the other points here.

Essentially our position here is that the consequences to law enforcement the — are — are the mechanical interpretation would be such that we don’t think that the court should take that step.

Edward L. Barrett, Jr.:

That if you have suggestion of coercion for the whole or psychological course, the confession goes on.

That if you have the — the McNabb kind of a — I mean the Upshaw kind of situation where the police pulled a man in and questioned him for 30 hours as they say for the sole purpose of getting a confession.

We can see that the McNabb rule applies.

But though we say that there are other cases of which this is an illustration where this shouldn’t be applied that — that it should be said that it’s reasonable for the police to engage in brief periods of investigation which resulted in this case in bringing two suspects and holding one.

Your were to say it’s a question of the motive of the police.

Edward L. Barrett, Jr.:

In part.

It’s a question of the motive —

Felix Frankfurter:

You know that in this case —

Edward L. Barrett, Jr.:

— and how they did it.

Felix Frankfurter:

I think that’s — if I may say so your difficulty with the rule you were tending.

Once you say reasonable as against mechanical.

I don’t think those are the (Inaudible) If it’s reasonable, then what you said of them a while ago that this was done with — they never thought they were doing anything illegal.

They had self-consciousness of doing right.

(Inaudible) is true but that leaves it open to the police authorities to hold on without presenting him, that without arraignment so long as they’re satisfied, they’re doing something conscientious if you please.

Edward L. Barrett, Jr.:

Oh, we don’t —

Felix Frankfurter:

Not merely — not merely in fixing guilt on the suspect, but in establishing whether he is guilty lest they hold an innocent man.

And that means that these conscientious police officials might have taken two days to establish that he was or wasn’t the — the potential — I mean the criminal.

Edward L. Barrett, Jr.:

But the Government’s position isn’t based solely on the conscientiousness of what the police did.

I mean we take the position that the courts have to look not only at motive but what’s actually right.

Felix Frankfurter:

But what was — what was the criteria that it was a reasonable thing for police to do in order to ascertain whether this fellow was there or he wasn’t there?

That leaves out of the count a whole — maybe for myself.

The central concept of our prosecutorial system and the central concept that arraignment intervened in order to have the magistrate tell the fellow, “You can keep your mouth shut.

You don’t have to say a thing.

Do you want a lawyer?

This is a capital offense.

I’ll give you a lawyer.”

All that is taken out and put into the discretionary, conscientious judgment of the police.

Edward L. Barrett, Jr.:

The — the Government’s position is that the — the alternative should not be the mechanical rule that is suggested here that some —

Felix Frankfurter:

(Voice Overlap) —

Edward L. Barrett, Jr.:

— exercise of the rulemaking powers.

Felix Frankfurter:

(Inaudible) forthwith was stricken out.

That forthwith is that you give it to kind of meeting as Justice Brennan said, that means that once you must (Inaudible) into it and there is stuck in there a judgment that’s unnecessary mainly in relation to the function.

William J. Brennan, Jr.:

May I ask a question before you leave —

Edward L. Barrett, Jr.:

Yes, sir.

William J. Brennan, Jr.:

— this — earlier, Mr. Barrett, you suggested at page 42 though was an indication at least before the confession was signed, he’d been advised to something.

Now, is there anything in that?

I guess you’re going to refer to us — refers to what’s at the bottom of 42 and the top of 43, were you not?

Edward L. Barrett, Jr.:

Yes.

That’s right, sir.

William J. Brennan, Jr.:

Yes.

Edward L. Barrett, Jr.:

And — and then there was a paragraph — this was not — the written confession itself is not on this record.

William J. Brennan, Jr.:

No, but what I wanted to ask you was this witness testified.

I don’t know who he was.

Edward L. Barrett, Jr.:

He was an officer.

William J. Brennan, Jr.:

But before he signed — but before the statement was reduced to writing, he was advised of his rights.

Now, at that time he wasn’t advised of his right to be represented by counsel was he?

Edward L. Barrett, Jr.:

All we know is what’s here plus what the — the opening paragraph of the — of the confession have the usual statements about the — the man was advised of his rights.

William J. Brennan, Jr.:

Well, at the top though —

Edward L. Barrett, Jr.:

Yes.

William J. Brennan, Jr.:

— of page 43.

This witness goes on to say, we told him that the statement would have to be voluntary.

We put it down on his own words so the statement could be used for or against him in Court and he agreed to give the statement.

Now, that’s all that appears as to the rights of which he was advised.

Edward L. Barrett, Jr.:

That’s right.

Frankly I don’t remember whether the — the written confession went beyond and specifically mentioned counsel or not.

It’s not in this —

William J. Brennan, Jr.:

Is there a confession on the record?

Edward L. Barrett, Jr.:

Not on this.

It’s — it’s not in the printed transcript.

No, sir.

Hugo L. Black:

In — in effect you are (Inaudible) are you not?

That these three people, probable witnesses that you wanted to interrogate.

And you claim that they had the right based on their asking — they asked a question to the witness, that he wasn’t on duty and have him arrested at that time or to take him before the Commissioner but he didn’t have — or enough evidence?

Edward L. Barrett, Jr.:

That’s right, sir.

Hugo L. Black:

If that’s true, do you have it as statutory authority for summoning people as witness by the police or do you have to defend here on somehow rights to arrest him without a right to — just because they — they’re a witness.

Edward L. Barrett, Jr.:

The only thing that there — is what — that I’m aware of that there is, Your Honor, there is a — a provision with respect to that under Rule 46 (b) of the Federal Rules of Criminal Procedure there’s a provision which says that if the police think that a witness is about to flee the jurisdiction, they may, upon a proper showing to secure order placing him under bail or if he fails to give bail detaining him.

But again that doesn’t deal with the question of — of their right to question.

Hugo L. Black:

Even assuming that you had a right to interrogate them as witnesses is what I mean.

If or under some kind of procedure, had you gone through any kind of procedure that was either legally authoring to do that or on its face permitted you to do it?

Edward L. Barrett, Jr.:

I’m aware of — of no statute that deals with the question beyond — really beyond the Bill of Rights and that — that specifically set out a procedure and for interrogating witnesses under these — these circumstances.

Earl Warren:

Well, Mr. Barrett, if you were dealing with some crime that’s obviously or apparently obviously a neighborhood crime, would you be justified in — in taking all the young men who, in the neighborhood who might have been — been suspected of this crime taking them to the jail and — and holding them there under arrest until you had an opportunity to — to examine them and determine whether they are guilty or — or not?

Edward L. Barrett, Jr.:

Normally I would assume that would be unreasonable.

That —

Earl Warren:

Well, what is the difference?

Edward L. Barrett, Jr.:

(Voice Overlap) —

Earl Warren:

(Inaudible)

between that case and this.

You — you knew one — only one person committed this crime.

You arrest three persons on some theory or other and take them to — you take them to the police station and you hold them there until you’re satisfied that two of them didn’t do it and one of them did.

Now what is the difference between that and the one I put?

Edward L. Barrett, Jr.:

Here, you have three young men who presumably could easily disappear.

In fact two of them did disappear overnight.

And the police had to go out and look for them.

They didn’t stay home, to find them, to question them.

They had to engage evidently in detective work to find these people to — to bring them in for the purpose of questioning.

Charles E. Whittaker:

Mr. Barrett, was there not evidence that three or these three persons, the two nephews and the petitioner were seen to leave the apartment premises on the afternoon in question?

Edward L. Barrett, Jr.:

There was — there was some testimony in the — in the record by — it’s not in this printed record here, with respect to somebody saw a colored man with certain clothes and description leaving the apartment house.

Charles E. Whittaker:

Why?

Edward L. Barrett, Jr.:

The petitioner himself testified that he left.

That his — that his brother said, “You better — better go.

Edward L. Barrett, Jr.:

The police are looking into this crime.”

One of his nephews testified that the brother had suggested that he and the petitioner make themselves scared because the police were — were around investigating this crime which had taken place just outside their apartment.

On the question of the search, say just a moment, it seems to the Government the problem here is quite different from the problem where you have a man held in custody.

He denies that he committed the crime.

He has said — asked, “Will you consent to search your premises?”

And he says yes.

This essentially was the judge in the Higgins case from which the petitioner rely.

Here it was more like the Mitchell case.

This Court decided where it was only after the defendant had confessed to the crime so that he had made his confession to the crime that he then having confessed the crime said, “Now, I let you search.”

And he signed a written consent So, it was explicit.

There wasn’t any problem to that to search.

So, we — we say that the — the search stands or falls really on the confession.

That — that had once having voluntarily made a confession of the crime, this was essentially what happened in the Mitchell case, he confessed and then he said, “You can go and — and get this evidence.”

Now, on the question of the jury, position of the Government here that the judge did probably the only thing he could have done — once the jury had asked a question.

Now, we say you can’t say, petitioner said that the jury was not concerned with this issue.

Congress in its wisdom had seen fit to — to create the situation where the penalty for the crime is either an indeterminate sentence for 10 to 30 years or death.

The jury decides whether or not it shall be death.

The judge then decides if they don’t say death, what — what it shall be up to a maximum of 10 to 30.

Well, of course, the jury is sentencing here.

The jury is deciding, “Shall this man die?”

But it seems to us that the jury could not rationally decide that issue without knowing the alternatives.

And once the jury asked the question that they did here, it’s clear that they were speculating on the alternatives.

What’s going to happen to this man if we don’t give him the death penalty?

And can be it said that it’s more of a prejudice to defendant to have speculation without fact or — or to give them the fact.

Now, as we find out in the footnote in our brief on page 39, Crow against United States which this Court, it was up on certiorari on another point.

This Court provided certiorari.

You have the situation come up and — and the judge points us the other way.

He refused to ask — answer the jury’s questions about probation.

The jury wouldn’t have him against the for death penalty anyway.

Now, this is not the kind of a case where we can see that you do work the kind of a case where the instruction is apt to (Inaudible) the issue of reasonable doubt.

Edward L. Barrett, Jr.:

That is where the jury is interested in — is in seeing well if we find him guilty, he maybe able to get off in five years.

And well we’re not really sure whether he did but it’s only five years, so we’ll find him guilty.

This — this one is that kind of a case.

The petitioner under the circumstances of this case what the jury said was clear.

They have no question about guilt.

This wasn’t a question about being reasonable doubt as to guilt.

Their ultimate finding I suppose was that.

That what they were concerned with is, “Do we give him the death penalty?”

And on the Winston case, the Court said they could consider the broad spectrum and — and the Government’s position is that — that most certainly that they’ve asked the question.

That they have raised the issue that they have come into the Court and said, “Will he be held for his natural life only?”

The judge did here, the only reasonable thing to do.We suggested that if he’s — if he had refused to do this and the death penalty had been convicted, the counsel for the petitioner could with as much reason perhaps have argued that that was prejudicial to the defendant under the circumstances.

Arguing then that well, maybe they thought he would only get two years or five years.

So, you wouldn’t know what they thought his — his ultimate period of incarceration would be.

So, our contention essentially then is that — that once they made the issue was certainly irrelevant that the issue they would decide, should the man die?

And this can’t be decided solely in terms of the — of the crime and the nature and the circumstances as the jury is bound to want to know if there’s evidence here, what’s the alternative?

Now, it may be that the unfortunate thing here is that Congress fixed these alternatives so far apart and that — and that the — perhaps that is the — maybe if the alternatives had been life and death, the Court would have found that the jury would not have found death.

But that’s that fault of — of the statute, not with what the judge did here.

Felix Frankfurter:

Mr. Barrett, tell me, is that unfair?

Is it unreasonable that — improper for the — intellectually improper for me to say that the innuendo of the jury’s question was perfectly plain?

Can we the jury be assured that the defendant legally be imprisoned for the remainder of his natural life?

Is it — is it — am I entitled with intellectual honesty to say what was behind that question is perfectly plain?

Edward L. Barrett, Jr.:

I suppose so, but I don’t think —

Felix Frankfurter:

(Voice Overlap)

Edward L. Barrett, Jr.:

— that is prejudicial.

Felix Frankfurter:

I’m not — I didn’t — I didn’t mean — (Inaudible)

Edward L. Barrett, Jr.:

Yes, yes.

Felix Frankfurter:

— to ask you —

Edward L. Barrett, Jr.:

Yes.

Felix Frankfurter:

I didn’t mean to ask you — I didn’t mean to ask them question.

What I’m asking you is — is that because they have — they have to wait?

Felix Frankfurter:

Is it fair to say that that jury wanted — the question was supported by the jury in order to get reassurance that they can be — that they can be assured that you — am I entitled to.

(Voice Overlap) —

Edward L. Barrett, Jr.:

Of course, we don’t know.

But on the face —

Felix Frankfurter:

(Inaudible)

Edward L. Barrett, Jr.:

— of it I think it was just certainly reasonable to — to say that the jury must have been thinking at this time that under the circumstances of this crime, they didn’t want this man released in the hopes and the fear that there might be another similar crime and that this was what was back of their question.

Now I don’t suppose — we take the position this is not improper.

Felix Frankfurter:

Well, why not?

Edward L. Barrett, Jr.:

That — that the jury in a sense when you give the jury this power, this is one of the things they’re bound to consider.

Felix Frankfurter:

Well that’s — that’s really what —

Edward L. Barrett, Jr.:

Yes, yes.

Felix Frankfurter:

— this case imposes the Court with, doesn’t it?

That —

Edward L. Barrett, Jr.:

Yes, sir.

Felix Frankfurter:

— that — that’s what I think ultimately the question we get to whether the jury is entitled in a case like this to have this Court’s state with accuracy relevant items in having the jury makes up its mind.

Isn’t that — isn’t that a fair statement on what we’re up against?

Edward L. Barrett, Jr.:

Yes, sir, except there is some — I suppose some distinction should be drawn at the point which the judge states them.

I mean the question of whether he should do it with the original charge.

Felix Frankfurter:

Well, I’m not —

Edward L. Barrett, Jr.:

Yes or — or whether he’s attempting to resolve the question.

Felix Frankfurter:

— but I’m assuming this case, there’s nothing about it and they asked that question which I think you’re happy to be right in this question naturally may bounce into their into heads and then the question is, assuming you gave them accurate answer should we give them give an accurate answer if we’ve have and we got no problem.

If he has this is your entitlement to get that aid from the Court under this kind of a statute.

That’s really what they’re asking.

Edward L. Barrett, Jr.:

And our — and our position is that — that given the inevitability of the jury considering this question that — that the defendant is less prejudiced by them having accurate information than they — than the defendant would be about your speculation.

Certainly you cannot say that playing it other way would not be the right — giving any the death penalty.

Felix Frankfurter:

Well, we — certainly the jury can tell me and then ask the judge for a lot of the instructions or statements of accurate statement on his part helping them to make their thinking more relevant, more rational and more disciplined.

And certainly we wouldn’t allow him to say, “Well, I think looking at this, this is a fact.”

He couldn’t do that could he?

Edward L. Barrett, Jr.:

No, sir.

But certainly obviously limits on how far this can go.

Felix Frankfurter:

No.

I mean even as the things that would help him.

Earl Warren:

Suppose — suppose the judges put that in his charge, would have been all right?

Edward L. Barrett, Jr.:

Oh, we don’t face that here.

Our — the Government’s feeling is that certainly that the defendant would have — petitioner would have a better argument there because the judge would be raising the issue, putting it in effect in the jury’s mind.

Here, we — we know it was in the jury’s mind.

And the judge didn’t put it there.

And the only question here is what really was it seriously prejudicial to the defendant, once it was in the jury’s mind and the jury had asked the question to them go to the — to give them the information.

Earl Warren:

Well, has the judge the right to say anything to them after they have been charged and they’ve gone into the jury room that he wouldn’t have been authorized to — to tell them in the charge?

Edward L. Barrett, Jr.:

Well, I assume that the — that the only question here is the general question of whether what happened here was unduly prejudicial to — to the defendant.

And I — I don’t suppose we can answer that in terms of the rights of the judge.

We have to answer it in the terms of — of in what the judge do — that it’s the judge’s action here given the circumstances a — a prejudicial action.

William J. Brennan, Jr.:

Well, tell me, Mr. Barrett, on page 105, with the close of his charge, on this question, the judge says in that event, the defendant will be subject to imprisonment which the Court will impose but will not be subject to the death penalty.

Suppose he said in that event the defendant will be subject to imprisonment up to 30 years which the Court will impose but will not be subject to the death penalty.

Do you think that would have been error in the charge?

Edward L. Barrett, Jr.:

Our position would be, no.

William J. Brennan, Jr.:

That it would not be?

Edward L. Barrett, Jr.:

If that’s as far as he went.

Earl Warren:

Suppose he went farther and said that the Parole Board may — may release him much sooner even — even on one third.

Edward L. Barrett, Jr.:

Well, for that —

Earl Warren:

And he could stand of one third of the sentence of 30 years?

Edward L. Barrett, Jr.:

That I think the Government’s position that — I — I can’t say what position the Government would take on that point.

But certainly the defendant would have a better argument than he has here of prejudice, simply because here, it was the — he would then be putting the parole system into the minds of the jury for their consideration affirmatively.

Here, the jury raised the issue.

Felix Frankfurter:

It’s not the Parole Board.

They just want to get generally how much — how soon is this fellow likely to get outside?

Edward L. Barrett, Jr.:

Which is the right to (Inaudible)

Felix Frankfurter:

Yes.

Edward L. Barrett, Jr.:

Now, on another question that was asked when Mr. Bryant was here.

We assume that — that if this case is — would — were reversed on the issue of the charge here, it would have to be retried.

Edward L. Barrett, Jr.:

But the statute confers upon the jury the discretion of deciding whether or not that shall be given.

And it certainly cannot be said here as a matter of law the jury was wrong in giving the death penalty.

And that if the case goes back, presumably, it will have to be retried before another jury and give them an opportunity to exercise the — the discretion that’s involved here because there seems to be — it seems — it seems to be a difficult case and needs to separate these two things out since under the statute, the jury has the discretion to decide.

And it’s not the kind of a case in which an appellate court can say as a matter of law they should have decided it the other way.

It’s just like any other case where there was an error committed and it — it’s found to be prejudicial, it would then go back.

Felix Frankfurter:

Is there — may I ask if that — are there any authorities on this last question?

Edward L. Barrett, Jr.:

There are no —

Felix Frankfurter:

(Inaudible)

it’s your logical analysis?

Edward L. Barrett, Jr.:

That’s right on this last point.

Felix Frankfurter:

Yes, there’s no — there are no –?

Edward L. Barrett, Jr.:

Not that I’m aware of.

Earl Warren:

Mr. Bryant.

William B. Bryant:

May it please the Court.

About two to three minutes of my —

Earl Warren:

Take your time.

William B. Bryant:

— remaining time.

Earl Warren:

You have more time.

William B. Bryant:

As to the business of the instruction, the supplemental instruction, I would like to — just to have one word to say on this.

I think that the cases which are on the books up to now and the cases on which the Government draws its rationale relative to the propriety of the judge making comment about the business of parole or how soon he’s going to get out.

Have — those cases have to do with those instances where the jury is charged with the duty of fixing punishment as a matter of fact.

In this particular case, it seems that the jury was seeking — wasn’t seeking information about a matter which was properly within their (Inaudible) of consideration.

They were not to consider any alternative sentences.

Actually what the jury did by way of — I — I like the term innuendo.

By innuendo, the jury was trying to get a commitment from the judge as to what you’re going to do with him if we don’t kill him.

William J. Brennan, Jr.:

Well, tell me, Mr. Bryant, if that interpolation which I suggest to Mr. Barrett, had appeared in the charge, in other words up to 30 years if they’d have

(Voice Overlap) —

William B. Bryant:

Did wrong, Your Honor.

William J. Brennan, Jr.:

Up to 30 years.

Now, my question is, do you suppose the question which finally was asked whatever has been asked?

William B. Bryant:

Well, they might very well to come in and ask the judge then if you give him 30 years, is that — does that mean he’s right?

William J. Brennan, Jr.:

Well, at least I asked it that way.

Don’t you suppose that’s — there’s at least one possible inference from the form of the jury’s question that the jury has– and a fact that’s cited that if this man would be kept imprisoned for the rest of his life, they wouldn’t give him the chair.

But if he was not to be imprisoned for the rest of his life, then they would bring in the death penalty.

At least isn’t that final?

William B. Bryant:

I was looking for that.

Yes, sir.

William J. Brennan, Jr.:

Unless on that interpretation of it that the judge had said, “I can sentence him up to 30 years.”

There would not have been any necessity to ask a question, would there, because in that event they don’t have the information they wanted without asking the question.

William B. Bryant:

That’s right.

And it would have been highly — highly improper for them to give him that inference.

William J. Brennan, Jr.:

Now, why?

That’s the next question that’s been asked.

William B. Bryant:

Well, for this reason if Your Honor pleases.

I think that determining whether or not the comment is proper or not, we have to analyze the due response.

William J. Brennan, Jr.:

No, I’m getting back now.

The — the — suppose all that have been done here was that the charge had added up to 30 years.

William B. Bryant:

Well —

William J. Brennan, Jr.:

Would that have been wrong?

William B. Bryant:

Because it is not the — the province of the jury to know about what the alternative punishment.

William J. Brennan, Jr.:

I see.

Will be subject to imprisonment up to 30 years.

Up to 30 years, would there also have been prejudicial errors?

William B. Bryant:

Certainly, if Your Honor please.

And I say this as to whether or not it’s given to him gratuitously or in answer to question.

I think that —

Felix Frankfurter:

Not in this case.

William B. Bryant:

Sir?

Felix Frankfurter:

Our case is a little different.

Our case —

William B. Bryant:

Yes, Your Honor.

Felix Frankfurter:

This case is a little different.

William B. Bryant:

That’s right, sir.

Our case is a little different.

Now, just on the McNabb, I want to say one final word on the McNabb point.

That it seems that the history of the committing — committing the legislation indicates the language without unnecessary delay would certainly be interpreted to — to permit delay or procrastination only because of the unavailability of committing authorities.

And I say that for this reason.

In the District of Columbia Circuit, over a period of time, they have — there’s been some interpretation of this rule and one of the judges or — or two of them has seen fit to concur especially in some of those cases for this reason.

They have determined that the delay was not — was not unnecessary by virtue of late evening arrest or Sunday arrest or holiday arrest.

In other words, the question of necessary is still determined by the availability of the Commissioner and the element of choice.

If the authorities choose to delay for the purpose of the interrogation, then that delay certainly, is at that time illegal.

Earl Warren:

And Mr. Bryant, before you take your seat.

William B. Bryant:

Yes sir.

Earl Warren:

The Court notices from the record in the case that you came into the case by appointment of the District Court?

William B. Bryant:

That’s right.

Earl Warren:

And that you have carried this case through for an impecunious defendant through the Supreme Court of the United States and we would have you know that we consider this a distinct service to the cause of justice regardless of what the outcome of this case might be.

William B. Bryant:

Thank you, Your Honor.

It’s my honor.

Earl Warren:

Mr. Bryant, the Court said it doesn’t detract one wit from the service you rendered the cause of justice through your representation of the Government in this very serious case.