McNeal v. Culver

PETITIONER:McNeal
RESPONDENT:Culver
LOCATION:John H. Kerr Dam and Reservoir

DOCKET NO.: 52
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 365 US 109 (1961)
ARGUED: Dec 06, 1960
DECIDED: Jan 23, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – December 06, 1960 in McNeal v. Culver

Earl Warren:

Elijah McNeal, Jr., Petitioner, versus R. O. Culver, the State Prison Custodian.

Mr. Daniels.

Sam Daniels:

Mr. Chief Justice, may it please the Court.

The petitioner is serving a 20-year sentence imposed upon him by the State of Florida.

At present, he has 17 more years to serve.

The underlying issue in this case is whether —

Potter Stewart:

How much longer to serve?

I missed it.

Sam Daniels:

17 years, Your Honor.

Potter Stewart:

17.

Sam Daniels:

The underlying issue in this case is whether the State of Florida denied him due process of law when it tried, convicted and sentenced him while he was admittedly unrepresented by counsel.

At the outset, I would like to summarize the petitioner’s position.

First, it is our contention that under the decisions of this Court, due process requires the State to offer or furnish counsel to a prisoner in a noncapital case whenever there are special circumstances which show that without representation by counsel, the petitioner or the prisoner cannot have a fair and adequate defense.

In turning to the special circumstances which we contend exists in the present record, we say that there are six.

They are these, first, ignorance, second, mental illness, third, complicated substantive issues involved in the trial, fourth, difficult evidentiary problems, fifth, the use of inadmissible testimony, entirely prejudicial testimony to convict and sixth, the fact that the unrepresented petitioner received no aid from the trial judge in guiding him pass the errors which make trial without counsel unfair.

The issue comes to this Court in the following manner.

In 1959, the petitioner filed a petition for writ of habeas corpus in the Supreme Court of Florida.

He contended in this petition that he was denied due process of law under the Fourteenth Amendment of the Constitution of the United States of America.

In support of his contention, he alleged the following, that he was tried in the Criminal Court of Record in Polk County, Florida on an indictment charging him with “Assault to Murder in the First Degree”.

He alleged that he was a 29-year-old Negro, that he had never been in court before, that he did not understand court procedure and that he did not know how to defend himself and establish his innocence.

He further allege in his petition before the Florida Supreme Court that he requested the Court to appoint him a lawyer and that in response to that request, the Court told him, “You are not entitled to a lawyer as this is not a capital case and further, you won’t need a lawyer in this case.”

The petition also alleges that a request was made for a copy of the information and the Court denied the request.

It goes on to allege that the State picked the jury in the case, that the information was read and that the trial had commenced.

When the trial was over, petitioner was convicted of “Assault to Murder in the Second Degree” and a 20-year-sentence was imposed upon him.

Potter Stewart:

How long was the trial take?

Sam Daniels:

The trial took one day, Your Honor.

We cannot tell from the record whether it was a morning and afternoon or just a morning but it began and ended on the day it started.

Earl Warren:

How long was the transcript, Mr. Daniels?

Sam Daniels:

The transcript of the testimony of the State’s witnesses is 12 pages, Your Honor.

Earl Warren:

12 pages.

Sam Daniels:

Of the State’s witnesses.

Earl Warren:

Yes.

Sam Daniels:

The —

William J. Brennan, Jr.:

(Inaudible)

Sam Daniels:

There were two questions asked of the first witness who was a Negro as was petitioner.

The third question that the petitioner tried to ask, the Court stopped him saying that was testifying and it isn’t time to testify.

The three witnesses who followed were law enforcement officials, two policemen and a sheriff.

After the first law enforcement official testified, the Court asked the petitioner if he had any questions and he said, “No, sir.

No, sir.”

He asked no questions of the remaining two enforcement officials either.

So —

Felix Frankfurter:

Yes, but does the printed record contain both the proceedings in its (Inaudible) at the trial as well as habeas corpus?

Sam Daniels:

The answer to that, Your Honor, is that it contains a partial transcript of the trial proceedings.

The State filed a return in the Florida Supreme Court.

In that return, it denied the allegations of the petition.

I use the word “denied” loosely because it said, “We deny that the petitioner was denied his constitutional rights by the alleged refusal to furnish counsel,” and then went on to argue that it was noncapital, that he did a very fine job of representing himself and that the trial judge protected it.

Felix Frankfurter:

Was the full — was the full proceeding at trial before the habea — in the habeas corpus proceeding?

Sam Daniels:

No, sir, Your Honor.

Felix Frankfurter:

Are they here?

Sam Daniels:

They are nonexistent so far as we know.

Felix Frankfurter:

Well, then, how can

Sam Daniels:

The —

Felix Frankfurter:

— you tell what took place?

Sam Daniels:

We have to take the allegations of the petition as to what took place as to the period of time before the first witness testified.

The allegations were in the petition concerning the failure to appoint counsel, the failure to furnish the information and the failure to furnish the list of the witnesses, also, the allegation that the State picked the jury.

Then the trial transcript comes into play and the first word of the transcript is the first word of the testimony of the prosecuting witness.

The transcript closes after the petitioner has been asked to argue his case in final argument and the judge told him, “You may plead your case,” and he answered, “Well, sir, I don’t quite understand the meaning of that.”

Then there’s a notation that the State argued.

The Court then asked the petitioner if he wanted to reply to the State and he said, “No, sir.”

That’s the end of it.

Sam Daniels:

We do not know what the judge charged the jury and there’s no formal recitation of anything —

Felix Frankfurter:

Have we hear all the testimonial part of the trial?

Sam Daniels:

Yes, sir, Your Honor.

The testimony, according to the court reporter’s certificate which is attached to the original in this Court, testify — or certifies that that is the transcript of the trial testimony at the trial.

There’s no suggestion that any witness’ testimony has been left out.

Felix Frankfurter:

Are there any witnesses for the defense?

Sam Daniels:

No, sir, Your Honor, except the defendant himself.

Felix Frankfurter:

He did take the stand?

Sam Daniels:

He did take the stand.

Felix Frankfurter:

And his testimony is here?

Sam Daniels:

Yes, sir, Your Honor.

His test —

Felix Frankfurter:

It’s in this record?

Sam Daniels:

Yes, sir, Your Honor.

Pages —

William J. Brennan, Jr.:

(Inaudible)

Sam Daniels:

Well, it started out he looked at the judge or he asked the judge, “Is he going to ask me questions?”

And the judge said, “No, just tell your side of it.”

So he testified — during his testimony, he offered the statement of his doctor who had treated him for his mental illness.

And the Court told him that the statement would not be admissible that he could call the doctor as a witness.

The document there never got into evidence.

He — the gist of his testimony was that he had head injuries in the Army in 1952 but in 1956, he was locked in a psychotic ward in the Bay Pines Veteran’s Administration Hospital for four months under lock and key that finally, his mother came over to the hospital, signed guardianship papers to get him released from the psycho ward and that he then returned to the world at large.

13 months after his release from the psychotic ward, the alleged offense took place.

Felix Frankfurter:

Was there a denial of the defense or a — or a confession and — as it were a confession avoidance?

Sam Daniels:

A denial of the defense of insanity?

Felix Frankfurter:

No.

Is the defense was insanity?

Sam Daniels:

No, sir, Your Honor.

The defense —

Felix Frankfurter:

Well, was there a denial —

Sam Daniels:

Yes, sir.

Felix Frankfurter:

— of the — of the charge — of the — of the occurrence on — on the basis of which the charge is made?

Sam Daniels:

I want to give a careful answer to Your Honor’s question as I realize its significance.

I would say two things.

The testimony of the petitioner is that he doesn’t remember any of the events that took place from the time that he had an argument in this juke joint with the prosecuting witness until he is found barricaded, so to speak, in a building with a shotgun.

He does not know what happened.He testified that his mind is a complete blank.

Now, he uses some language talking about these events but while he is in custody under arrest, the testimony is that the officers told him and their language is, “What had happened and what he had did.”

The case is one that’s susceptible of several interpretations and some very real and substantial issues for the jury.

One, would be the defense of insanity which, due to his ineptness, he couldn’t raise, two, the question of whether he —

Felix Frankfurter:

Whether he could’ve — ineptness, meaning, personal or legal ineptness?

Sam Daniels:

Both, I would say, Your Honor.

The second possibility is that he never committed anything at all that was a violation of state law.

There was a great deal of mystery and intrigue in this record even — although it’s a one-sided recorded and I think better described as a shambles than a trial in an American court.

The — there are many things unexplained.

Three or at least two officials looked for the shell that was supposedly fired on the night of this occurrence.

The shell was never found.

There are a number of things.

The people who supposedly were hit never testified at the trial.

No one was killed.

The gist of the State’s case was that the petitioner took a blast with a shotgun at 14 feet at the prosecuting witness and missed him.

His testimony for that was that wasn’t probable or possible, that he was an expert marksman in the Army and that if he’d meant to kill anybody at 14 feet with a shotgun, he could not possibly have missed.

The second type of defense goes to the amount of the sentence imposed.

When we talk of the substantive issues at the trial, we will find that there’s a 20-year sentence as the maximum in Florida for any type of assault.

And that that takes a felonious intent to kill coupled with the assault.

Absent that intent to kill, the maximum sentence is five years.

So there is a 15-year difference in punishment and petitioner, without any credit for good time, would be about ready for release if he could’ve established the proposition of no intent to kill.

Felix Frankfurter:

Did he — did he address the jury after — after he left the witness stand?

Sam Daniels:

No, sir, Your Honor.

The judge made an explanatory statement to him and said “pleadous” he was called.

If you had a lawyer at this time, he would make the opening address to the jury.

Sam Daniels:

The State would reply, and then you would have a closing argument.

If you wish to argue then plead your case.

His answer to that was, “Well, sir, I don’t quite understand the meaning of that.”

The judge then said, “Alright, suppose you sit here and listen to the State, pay careful attention then get up and say anything you want to in reply.”

The record notes that the State argued and after that, the petitioner was asked if he wished to reply and he said, “No, sir.”

On that note, the trial ends.

Felix Frankfurter:

Well, we don’t know what issues the judge left to the jury.

Sam Daniels:

No, sir, Your Honor.

We do not know what was charged.

We can speculate that since he was charged with “Assault to Murder in the First Degree” and convicted of “Assault to Murder in the Second Degree” that there was a charge which did go into the question of degrees and possible offenses.

But the —

William J. Brennan, Jr.:

(Inaudible)

Sam Daniels:

It carried a 20-year penalty, as did the offense for which he was convicted.

The opinion below notes that he effectively defended himself to the event that he secured a conviction for a crime in lesser degree.

Felix Frankfurter:

Well, I thought — as I understood you a minute ago, you — the punishment is the same.

Sam Daniels:

It is identical —

Felix Frankfurter:

So he had to —

Sam Daniels:

— and he got the maximum.

Felix Frankfurter:

So he achieved getting a different name for the same 20 years, is that it?

Sam Daniels:

I’m sure that as he sits there facing another 17 years, the difference between first and second degree does not interest him in the slightest.

The return which was filed contained this documentary evidence that we are discussing, namely this partial transcript of the trial testimony.

In addition to the testimony of the prosecuting witness, three law enforcement officials testified at the trial.

These officials testified, number one, two of them to finding the petitioner at a building across the street from this juke joint in the circumstances under which they found him and they also testified as to admissions made by the petitioner while he was under arrest.

One of the arresting officers stated that the petitioner confessed regret and said that he was sorry that he had hit the boy, that he had ended up getting, that he meant to kill Scurry.

Now, there were two Scurry brothers involved in this case and the prosecutor asked him, “Which Scurry?”

And he testified, “Both Scurrys”.

The second arresting officer testified that he — admitted that he intended to kill Scurry but there’s no elaboration as to which Scurry was involved.

The plaintiff’s testimony, as I have indicated, took the position that he did not know what had happened.

Secondly, that he couldn’t — could not have intended to kill anyone and it also went into the question of his mental background.

I would say that there is no contradiction in this record as to the fact that the petitioner was locked in a psycho ward, that’s the language used in the record, for a period of four months.

Sam Daniels:

Based on this record, the Florida Supreme Court rendered its opinion in July 1 of last year holding that the writ should be denied and that the petitioner had not made a sufficient showing to warrant any further inquiry into the process which culminated in his conviction.

The opinion stated, first, that as to the request for an information, there was no showing that such a request was made, that there was a waiver of any right to get a copy of the charges against him by failure to make timely request and third, that the error, if any, was harmless.

As to the right to counsel, the Florida Supreme Court said, first, there’s nothing in the record of the trial to show that there was a request made for counsel, that there is no duty upon the trial judge to make inquiry as to the defendant’s desires.

It then went on to say that the charge was simple, so was the evidence to support it and that this petitioner was fully able to defend himself.

And it concluded with language to the effect that it cannot be said that the issues are so complex or the petitioner is so young and inexperienced, as to bring into play the exception to the rule requiring appointment only in capital cases where there are these special circumstances.

That —

Earl Warren:

Is there anything in the record at all, Mr. Daniels, of the — of the proceedings in the court at the time of arraignment or whenever the — whenever the court supposed to advise a man of his rights?

Sam Daniels:

There is a minute book notation attached to the State’s return in the court below which state that the defendant was arraigned on a date not specified, that he admitted identity and pled not guilty.

That is the sum in substance of the record.

Earl Warren:

Admitted identity and that is —

Sam Daniels:

That he was Elijah McNeal.

I’m —

Earl Warren:

That he was the one who was charged, yes.

Yes.

Sam Daniels:

And pled not guilty.

That’s the extent of it.

Earl Warren:

Yes.

Sam Daniels:

In testing the decision of the Florida Supreme Court, if we follow existing law, we go to the line of cases inaugurated with Betts versus Brady in 1942.

In the Betts case, the Court set out the rule which has been applied in full force and with bigger since 1942.

By 1952, Your Honors could remark in Palmer versus Ashe that you had repeatedly held that the due process clause requires the assistance of counsel whenever there are special circumstances that made trial without counsel unfair.

The same rule was applied in Cash versus Culver in the last term and Hudson versus North Carolina of this term.

Turning to the special circumstances involved in this record, we do not have in the record a great deal of evidence on which to discuss the question of ignorance.

We have the allegation which is not disproven that he had never been in court before, that he did not understand court procedure and that he did not know how to defend himself and establish his innocence.

Felix Frankfurter:

When you say disproven, am I right in my recollection that in part of the habeas corpus issue is from the Supreme Court itself?

Sam Daniels:

That is correct, Your Honor.

Felix Frankfurter:

And that the disposition — if the writ is issued in an order to show cause, the proceedings thereafter are by affidavit?

Sam Daniels:

The proceedings thereafter are, first, by returns —

Felix Frankfurter:

Yes.

Sam Daniels:

Then after that, the — as in Cash’s case —

Felix Frankfurter:

Yes.

Sam Daniels:

— on remand, they sent the case to a circuit judge to hold a hearing.

Felix Frankfurter:

Kind of a master for those people.

Sam Daniels:

That — that is correct, Your Honor.

Felix Frankfurter:

He can hear witnesses, of course, he does.

Sam Daniels:

That is absolutely correct.

In this case, their holding was that there’s not enough here to require any inquiry.

But we have the uncontradicted allocation for the purposes of the record that —

Felix Frankfurter:

Was it just on the — the petition for the writ and the return —

Sam Daniels:

And the exhibit.

Felix Frankfurter:

— with all the annexes.

That’s the — that exhibit —

Sam Daniels:

That’s the record —

Felix Frankfurter:

— on the basis of which your Supreme Court did what it did, is that it?

Sam Daniels:

That is correct.

If we go back to their exact language on the matter, they said, “So it cannot accurately be said that the issues were so complex or the petitioner is so young, ignorant and inexperienced as to bring into play the exception to the rule requiring appointment of counsel only in capital cases and to require further inquiry into the process culminating in his conviction.”

Felix Frankfurter:

That — that means that we don’t have to send it to a county judge whatever you call him.

Sam Daniels:

What it means is this complaint didn’t state a cause of action and it’s dismissed with prejudice.

The allegations of ignorance and a lack of understanding, we submit, are conclusively shown by the shambles that the petitioner made of his defense and there is no contradiction about what happened.

It is there.

The only question is the inferences to be drawn from it.

The first thing that the petitioner did, he let the State pick the jury.

I submit that that would be reversible error in any case or any —

Felix Frankfurter:

You mean he took no part in — in choosing —

Sam Daniels:

He took no part in the voir dire.

The allegation of the petition which is not disproven by the record is that the State picked the jury.

Felix Frankfurter:

Did the judge participate?

Sam Daniels:

There is no allegation or evidence as to whether the judge participated.

The allegation is the State picked the jury.

Potter Stewart:

Now, that the record doesn’t show that one way or the other?

Sam Daniels:

The record is silent because all of these things happened before the State’s transcript attached to its current —

Potter Stewart:

Yes, so you’re now relying on the allegations of the petition.

Sam Daniels:

That is correct.

Now, turning to the things that aren’t allegations but are uncontroverted facts, the petitioner did not possess sufficient intelligence to cross-examine witnesses.

He asked two questions of the Negro who was the prosecuting witness.

His third question was a testimony question and that was the last question that he ever asked at the trial.

I submit that a southern Negro would not likely cross-examine law enforcement officials in Bartow, Florida even if he could but the fact is that he did not.

Secondly, he never made a single objection to anything that happened during his entire trial.

We will come to some of the things that he could have objected to but basically, he was convicted by a barrage of unresponsive answers, conclusions of the witnesses and leading questions — questions rephrased by the prosecution to suit their theory rather than the witness’ own testimony.

Potter Stewart:

Where is Bartow, Florida?

Sam Daniels:

Bartow, Florida is in the center of the State, Your Honor.

The only attempt that the petitioner made to get any kind of documentary evidence in failed and that was a doctor’s statement as to his mental illness in the fact of his psychotic confinement.

He did not know the rules of evidence and he was unable to get the document in evidence.

Finally, he didn’t know what it meant to plead his case.

The great force and final argument, the great event, the climax of a jury trial and here is your petitioner who has to tell the judge, “Well, sir, I don’t quite understand the meaning of that.”

That was the extent of his intelligence.

When we add to what is shown as to what he could not do and what went over his head and buy him because he did not know what happened, the fact of his psychotic confinement, we respectfully submit, that the trial of this unrepresented petitioner without more in any kind of a case would be a shocking denial of the Due Process Clause.

The Uveges case, Palmer versus Ashe and Massey versus Moore, all emphasize the question of ignorance and mental deficiency and even insanity.

This is not just any case.

And it is our second line of attack that no layman could defend himself against the issues that were involved in this case.

Florida law is a maze of nightmare.

These distinctions when we get to the law of assault.

To understand what the petitioner’s substantive issues were, we have to consider the interplay between first, the law of assault, second, the law of intent and third, the law of homicide.

And it’s all jumbled up into degrees and distinctions.

Now, these are not academic distinctions.

These are distinctions that mean a difference in 15 years in the penitentiary.

All that the petitioner had to show at his trial was that he had no intent to kill whoever was charged — he was charged with killing any information.

We don’t know because the information is not in the record.

But if he could have proved that, he would have had a maximum of a five-year sentence.

We have quoted the Florida cases in language in our brief but the specific charge is assault with intent to commit felony.

That’s the statutory crime.

Sam Daniels:

I intend — let me say at this time that the positive proof of the complexity of the substantive issues in this trial is the dramatic fact that the petitioner stands convicted today of an offense which does not exist under Florida law.

The jury verdict which came in stated that he was guilty of “Assault to murder in the Second Degree”.

The statutory offense is “assault with intent to”.

The jury verdict left out the “with intent” finding and there never has been a finding in this case that the petitioner had the intent which got him over the five-year hurdle into the 15-year hurdle.

The Supreme Court and the State knows that the offense is assault with intent because in the Florida Supreme Court’s opinion, that’s what it calls it, “assault with intent”.

In respondent’s return they used language “assault with intent”.

The jury did not find it.

If counsel had been present and had asked for a reconsideration with instruction that the jury had not found a lawful verdict, we don’t know whether they would have come in with five years or 15 years but all of this passed unnoticed.

The judge gave him the maximum —

Where does that —

Sam Daniels:

— 20 years —

— where does that appears, the jury verdict?

Sam Daniels:

The jury verdict is quoted, Your Honor, in the exhibit which is attached to the return, which is the judgment of conviction.

It’s on page 22 of the record.

It says “The above cause, having come on to be heard,” and so on, “and the jury having returned a verdict of guilty on February 26, 1958 to the offense of Assault to Murder in the Second Degree.”

There is no “with the intent to murder in the second degree” in there and I would add — I believe this is true in all States but when a judge makes a statement of fact in his order in Florida, that is the record.

If counsel says —

Charles E. Whittaker:

(Inaudible)

Sam Daniels:

Pardon, Your Honor?

Charles E. Whittaker:

You do not have the verdict itself, I guess.

Sam Daniels:

The State did not attach the verdict itself to —

What — what is the practice in Florida?

They just announce the general verdict?

Sam Daniels:

The practice is not uniform under — I — I say that only because of French versus State which I have cited.

It says that the law is that if they return a general verdict of guilty, then you don’t have any problem about something having been left out.

But if they return a specific finding and if one of the elements required for the crime, such as intent, is left out, then it’s said that the verdict may be insufficient to support a conviction.

I concede that the French case is dicta but we can only look to what there is in the Florida law and what it says.

And it’s the only expression on it is that if the verdict leaves out the requisite of intent, that it may be invalid.

We don’t know what kind of a verdict the jury rendered though whether —

Sam Daniels:

Well, we do, I respectfully submit, Your Honor, because the judge used that language, the language “Assault to Murder in the Second Degree”.

Sam Daniels:

And the judge’s finding of fact, as stated in his order, is a proper part of the record in the State of Florida.

If the judge says that “so-and-so appeared before me,” that’s a fact and the record shows that he appeared.

Charles E. Whittaker:

One way, do you submit, in Florida, forms of verdict — does the judge submit forms of verdict in turn?

Sam Daniels:

I cannot answer that question.

I would presume that in varying parts of the State, different practices prevail.

I can say that in civil trials, the judge does submit different forms of verdict.I do not know whether the criminal practice is uniform or not, Your Honor.

But the —

(Inaudible)

Sam Daniels:

The — I think the answer to that is that they are written and what happens is that the court reporter doesn’t bother to take down which — what is actually said.

They just depend when they make a full record the written charges for the type of the charge because the judge grafted it.

That is the —

(Inaudible)

Sam Daniels:

That is correct.

Now, by that, I don’t mean to say that they use the same identical charge in every case.

The judge will juggle it around but you’ll have standard instructions, your right is charged out, then the court reporter won’t bother to take it as he reads it but will use the written charge.

(Inaudible)

Sam Daniels:

There are a number of things, Your Honor, that I cannot understand in this case.

One is why the verdict is not in the record, two is why the information is not in the record, three, why the county solicitor’s argument is not in the record and four, why the charge to the jury is not in the record.

I — I cannot explain but perhaps, the State could prepare the record and answer that question momentarily.

Felix Frankfurter:

May I, in light of all that you’ve said, ask this.

Suppose the Court agreed with you as to the disparity between the conclusion reached by this — by your Supreme Court and the relevant criteria by which a conclusion should have been reached.

What — what do you suggest as the proper relief to be given by this Court, a new trial or to send it back to the state court for them to explore these various — all these puzzles that you have whenever we have doubling, the Court, through the appointment of one of the judges, point out to the facts here.

Sam Daniels:

Your Honors have two possible sources of relief, if anything is done for the petitioner.

One is to remand it to Florida with direction to hold a hearing.

The other is to remand it to Florida with directions to award petitioner a new trial.

The answer as to the latter depends on whether a reading of the trial record which his furnished by the State convinces that the man was utterly incapable of defending himself.

We certainly submit that on the record in this case which shows what happened at his trial, that a hearing in the Supreme Court of Florida is a waste of time.

We know that he couldn’t question.

We know that he didn’t know what it meant to argue.

We know that he sat by and got convicted on inadmissible and extremely prejudicial testimony and under the Hudson case, I think that that is clearly enough.

Sam Daniels:

I think the Hudson case is specifically written to single shot the proposition that a problem of trial strategy, such as being left after one codefendant pleads guilty, is beyond the kin of the layman.

In this case, I think that the admissions of the arresting officers which were admitted is on exactly the same par.

Now, under Florida law, the admissions of an accused made to arresting officers cannot be admitted in evidence unless there is an affirmative showing that they were freely and voluntarily made.

Felix Frankfurter:

Well, how can we —

Sam Daniels:

The —

Felix Frankfurter:

— tell whether they weren’t or how can we tell the fact that Florida may go beyond the requirements of due process?

There’s no reason for us to — to reverse a judgment.

Sam Daniels:

I concede that but the fact that the rules of law in Florida were not applied in a criminal trial shows the prejudice of the absence of counsel.

In Parker versus Ellis, there are —

Felix Frankfurter:

Does it — does it that — I don’t see that that follows.

We’ve got lots of cases here where people have counsel and local rules are not followed.

Sam Daniels:

I think that there is a partial presumption at least that counsel know what they’re doing and if they don’t wish to appear overly technical to a jury, that may be the smartest thing they can do.

But this petition —

Felix Frankfurter:

I mean, addressing my problem to your suggestion on it.

Sam Daniels:

I —

Felix Frankfurter:

The violation of a state law, not reaching the infringement of the Fourteenth Amendment (Inaudible) to reverse it.

Sam Daniels:

I do not say that it is.

I say that it is one of the factors to be considered in determining whether there were special circumstances warranting counsel in a noncapital case.

I —

Felix Frankfurter:

When did you get into this case, when this Court appointed you?

Sam Daniels:

When Your Honors appointed me.

Felix Frankfurter:

And in his writ the Supreme Court of Florida, he did that himself?

Sam Daniels:

Your Honor, I think there’s an interesting history behind that.

The petition that was filed in the State Supreme Court shows some signs of brilliance.

In tracing down the origin of it, which I have done in a footnote, there are paragraphs of identical language in both the habeas petition below and in Mr. Langbein’s brief here in Cash versus Culvert.

The exact language is used.

As a matter of fact, you can look and you can see the quotation marks are in the typing where the prison stenographer even left a little quote marks in — in quoting from Mr. Langbein’s brief.

I don’t think there’s any question but (Inaudible) has a referred bar.

They also have a library when each one of their inmates has some sort of proceeding.

There’s no doubt in my mind that Mr. McNeal did not grab this petition.

Sam Daniels:

We say, in our brief, that it was prison plagiarist and the State, in rephrasing our contention, says that it was eight prison plagiarists.

(Inaudible)

Sam Daniels:

Cash, I can tell Your Honors two things that I know.

One is that, on a hearing, they held that he was capable of defending himself.

Secondly, they held on a second hearing that he had been denied the right to get counsel of his own choosing and remanded his case for trial.

What has happened since then, I don’t know.

But Mr. Cash has gotten a new trial.

The Florida law regarding the fact that there must be an affirmative showing that the admissions were freely and voluntarily made is so strong that the Florida law places an affirmative duty on the trial judge to go into the question even if counsel does not.

And in the Steiner case, they have a discussion of the fact that something this serious ought not to depend on skill of counsel, that courts should be a form for the administration of justice and not a place for playing chess by skilled counsel.

So, we have this evidence —

Felix Frankfurter:

Where is — where is the case in Florida where that was done?

Sam Daniels:

That is the Steiner case.

That’s Steiner versus State.

The citation to it is 78 Florida 647, 83 Southern 565.

The language which I have quoted is quoted on pages 22 and 23 of my brief.

The interesting thing about the Steiner case is that it did not even involve admissions to police officers.

It just involved admissions and they have in the Louette case the statement that special care and scrutiny must be made when it’s the arresting officers that testified.

The issue arose in the Steiner case because it was unobjected to at the trial and the question was whether they could consider it on appeal absent such objection.

They held that the trial judge had an affirmative duty to make inquiry that they could consider it and they did consider it but found that it was free and — freely and voluntarily made.

The Louette case, which is much more recent, states that there must be an affirmative showing in the record regarding the questions of threat, force, inducements and intimidation.

If all that’s shown is that the circumstances where those questions are not asked, then there’s an affirmative duty to reverse.

Earl Warren:

There is no showing of any kind in this case either by — by the District Attorney — through the District Attorney’s questioning or the court.

Sam Daniels:

No, sir, Your Honor.

I would submit that there are some inferences that can be drawn from this record.

At page 31 of the record, we have some discussion of the circumstances of the arrest.

“He and Scurry got into another argument,” and so on.

“Who was, McNeal?”

Answer, “McNeal, and I caught him by the arm and said, “You’ll have to learn better than that.”

He said, “Turn me loose.

I’m not scared of your damn pistol.”

Sam Daniels:

And I said, “McNeal, you’re going with me.”

I said, “You’re still under arrest” and I said, “Let’s go.”

And I gave the other boy the shotgun to keep.

I didn’t know what was in McNeal’s mind but I wanted to be ready.”

Now, drop down a line or two.

“On the way to the station, we told McNeal what had happened and what he had did.”

I submit that the prosecution may have been planning siege in the mind of this petitioner and if we draw any inferences about the free and voluntary nature of his admissions, there’s some evidence in this case that he was dirt brown pretty good.

There’s no evidence concerning an absence of threats or force or intimidation.

The — Your Honors’ decision in Williams versus Kaiser discusses the problems that a layman has when an offense involves degrees.

Now, not only do we have all the degrees of homicide and all the types of assaults in this case but we also have the law of intent.

And of course, we have the possible question of insanity.

It is our position that there’s been a gross violation of the special circumstances rule in this case and we respectfully submit that the judgment of the Supreme Court of Florida should be reversed.

Earl Warren:

Mr. Henderson.

Odis M. Henderson:

Mr. Chief Justice, may it please the Court.

It’s now my honor and privilege to extend to this Honorable Court the greetings and compliments of the Attorney General of the State of Florida.

In approaching the case at bar, I wish to reiterate some of the matters that counsel has already covered in order that my presentation might assume a somewhat orderly form.

This petition was first filed in the Supreme Court of Florida on or about March 24, 1959.

The petition contained only two points of law and two issues were involved.

One issue had to do with whether or not his fundamental rights had been abridged by reason of his allegation that he was not furnished a copy of the information in this cause.

His original petition emphasized that point.

It almost stated, almost as an afterthought, that he had also been denied right to counsel.

In our original response in the Supreme Court of Florida, we dedicated practically all of our response to his first position taken relative to the absence of the information.

The court — that also — another reason why we did that is that particular question had never been passed upon by a Florida appellate court.

As to — we have in our Constitution in — in Article 11 of the Declaration of Rights saying that that must be done.

And so, our Supreme Court took the same position that they did in the Supreme Court of Alabama on an identical question and ruled that the record showed evident waiver of this right, also ruling that it’s a ministerial function and unless the record affirmatively shows that it was not done, it will be assumed that the judge or the court did their duty.

So —

Earl Warren:

Was the petitioner represented by counsel in — before your State Supreme Court?

Odis M. Henderson:

No, sir.

Our practice there in matters of this nature is — we have a very lenient practice to — with business.

We — we — our office is flooded with these petitions each week and we present the response.

Odis M. Henderson:

The — the matter goes to the court on the written petition and the response.

If the — if the petition shows merit, if it shows a question of fact which cannot be answered in a — in a legal manner or on points of law, the court — the Supreme Court then appoints a circuit judge.

A commission — commissioner is called.

Then the Petitioner — the Circuit Judge is — is commissioned to take testimony and to determine questions of fact and law and submit a written report back to the Supreme Court and the decision is made by the Supreme Court.

On such hearings, the petitioner is present while he is not entitled, as a matter of law, to an attorney during those hearings, we have always asked the court to appoint one for him.

These attorneys serve without compensation and I can — I can promise that they always do a good job as is evident by this court-appointed attorney that has appeared here today for the petitioner.

Felix Frankfurter:

You mean — you mean that it is the practice in Florida, when the Supreme Court entertains a petition for habeas corpus and sends it to a commissioner, it is your practice then to supply the petitioner with a — with counsel for the proceeding before the commissioner?

Odis M. Henderson:

That is right, sir.

Felix Frankfurter:

I must say that it seems a little odd that the State should — is, if I may say so, sensible and fair-minded in providing counsel in a habeas corpus proceeding, shouldn’t it be providing counsel in — in the main cases?

Odis M. Henderson:

Well, while it is not —

Felix Frankfurter:

It actually could decide.

Odis M. Henderson:

— while it is not mandatory, we, in the Attorney General’s Office, take this position that if our Supreme Court feels that there is a question of fact which should be determined, then we think that we owe this — our Supreme Court the courtesy of — of providing counsel so that that question of fact can be dealt into.

Felix Frankfurter:

You understood me as commending you for doing that.

Odis M. Henderson:

Thank you, Your Honor.

Felix Frankfurter:

Now, I’d like to know this.

You said you’re flooded with these cases.

That was your word.

May I ask about how many a year you have roughly?

What’s order of magnitude?

Odis M. Henderson:

Well, I would —

Felix Frankfurter:

200 or 50?

Odis M. Henderson:

It would be over 200.

Felix Frankfurter:

Over 200.

Now, how many of those 200 arise in cases by convicted defendants who are tried without the aid of counsel, good many?

Odis M. Henderson:

Over 50% of them.

Felix Frankfurter:

So, the 50% arise on the basis of lack of counsel at the trial.

Odis M. Henderson:

Yes, sir.

Felix Frankfurter:

I should think Florida might save a lot of time and worry in expense and perhaps, prestige.

Odis M. Henderson:

I —

Felix Frankfurter:

(Voice Overlap) the main evil?

Odis M. Henderson:

I believe that I can give the Court a reasonable explanation of that as we go along.

Felix Frankfurter:

Alright.

Odis M. Henderson:

This — the question I just mentioned relative to — to the information has been abandoned in these proceedings and we’re now here on a single — the single issue of whether or not Elijah McNeal was arbitrarily denied his right to counsel in the court below and if so, was such denial a violation of his constitutional rights under our federal and state constitutions.

Now, the history of this case is significant and I believe it will become increasingly so to the Court as we go along.

The dates involved here are particularly significant.

On February the 24th, 1959, this Court reversed our Florida Supreme Court in the case of Ray Cash versus Culver, a similar case in some respects.

The petition, in this case, was filed subsequent to that reversal.

The briefs were filed subsequent to that reversal.

The opinion of our Florida Supreme Court in the instant case was filed after having received your reversal in Cash.

And thus, it is that we have continued in our brief and we do here that when our Supreme Court denied the relief requested by this man, it did so with the tones of reversal bringing clearly in those judicial ears, as you signified in the Cash case.

In that Cash case, you laid down a yardstick for our Supreme Court to be guided by in such cases as this and we feel like that they have attempted to do so and we think that when we come to a comparison, a fair and honest logical comparison of the facts in this case, as applied to the yardstick which you supplied us in the Cash case, that we think that we have complied with your mandate and we believe that we can make that increasingly fair to you.

First, we realize that any obligation that we hope to furnish counsel in noncapital cases to indigent defendants is by virtue of the Fourteenth Amendment and the — and the previous opinions of this Court wherein, stated generally, the defendant, by reason of age, physical or mental incapacity, is not able to present any type of defense in his own behalf.

Now, this Court examined the Cash file and determined that he came within that rule.

Taking that opinion and — and comparing it to McNeal, we have this.

First, we want to compare the records before the Court and this is significant.

In Cash, that record came up here on a bare petition and a bare benial — denial.

It’s a practice in our court down there that if, in the opinion of the court, the petition does not contain sufficient allegations which would merit the writ — the issuance of the writ, then they — they simply enter a blank denial of the relief requested.

That is all that — and at that time, our practice was, down there, was every Monday morning, we would load up our baskets full of the petitions and go over there to the court and as they would be called out, we would reply orally.

And if in our opinion we could not answer the allegations contained there, we would so advise the court.

The court would then issue the writ and further proceedings would be held.

If — we took the position that if all these allegations, even if admitted, were not yet sufficient to — to be awarded relief.

We ask the court to deny the issuance of the writ and that’s what happened in that particular case.

So, the only record that you had up here in Cash was his petition wherein he set out all of these standard things that our jailhouse lawyer down there tells him to put in there.

You had a blanket denial of the writ.

Therefore, under your previous ruling in Hawk, as I believe it is, Hawk versus Olson, every allegation in that petition had to be taken as true.

And certainly, a review of that petition would — would show you that — that there was some merit to the petition if the allegations were taken as true.

The record in this case, that’s before you, is much more complete.

I hasten to agree with counsel that it should be more complete than it is but it is far more complete than was the record in the Cash case.

You have —

Earl Warren:

Why isn’t it more complete, I wonder?

Odis M. Henderson:

Pardon, sir.

Earl Warren:

I wonder why it is not more complete.

Why is there no charge?

Why is there no information?

And why is there nothing about the arraignment in this record?

Odis M. Henderson:

The burden in Florida, as I assume it is in most jurisdictions, is for the person making the allegations to — to furnish the proof of such allegations.

Now, we were never furnished anything but a bare petition.

It’s our practice then to go over to the prison division.

We have a consolidated office for all prisons in Tallahassee and we have these man’s records.

And we take from that record the necessary papers and documents to put in our response and since he raised no question of trial irregularities —

Earl Warren:

I beg your pardon?

Odis M. Henderson:

He raised no question of trial irregularities in his petition, his only question, as I’ve said, the — another reason why the record isn’t any more complete than it is, if Your Honor please, is, again, I go back to our previous statement, that it was the impression of everyone concerned that his primary complaint had to do with the information not being given to him.

And we — we attempted to answer that as a matter of law and we didn’t need very much record and of course, once the record was formulated there in Florida, we couldn’t add to it to bring it up here.

Earl Warren:

Well, I — I don’t quite understand how you say that because the very first item in number one in his petition for habeas corpus reads “The trial court deprived him in his rights to representation by counsel as required by decisional rules and established law of Florida.”

Now, that isn’t just incidental.

That’s the very first and primary complaint that he makes.

Odis M. Henderson:

I had reference to the argument contained in the petition wherein he’s apparently concentrated on the other question.

We didn’t ignore — we didn’t ignore this question in the Supreme Court but we merely passed on it in our response.

I believe we had one paragraph to it under which we relied on the established rules of this Court and of Florida wherein we alleged that it was not a capital offense, that the record showed it was a simple charge and simple evidence to support it, that there is no showing that this man was incapacitated to the extent that he could not defend himself and as a matter of fact, there’s an affirmative showing that he did.

And that’s —

Earl Warren:

Well —

Odis M. Henderson:

— that’s–

Earl Warren:

— well, in your — in your State, whether he has those attributes or not, is it not necessary to inform him at any stage of the proceeding that he’s entitled to counsel?

Odis M. Henderson:

No, sir, it is not necessary but under the rules in keeping of, according keeping of the spirit of the rules laid down by this Court and as adopted and articulated in Sneed versus Mayo, a Florida case.

It is greatly encouraged that they do and I can tell this Court that most of them do and I — I have practiced criminal law all over Florida and I had never been in a court where that observation was not made, in other words, the admonition or the advice given this man.

And it’s — well, it’s not binding or arbitrary.

Earl Warren:

It’s not necessary.

Odis M. Henderson:

No, sir, it is not.

Earl Warren:

Does the record ever show that — that it was then?

Odis M. Henderson:

Very so, Your Honor.

Earl Warren:

It’s considered a ministerial function and the record seldom shows it.

Many records do.

It depends a great deal on the court reporter.

We have some good ones and we have some court reporters.

And the record —

Felix Frankfurter:

Would you forgive me for making the suggestion that considering the number of cases that have come up here in my time from Florida, it’s quite a number, as you well know.

Odis M. Henderson:

Yes, sir.

Felix Frankfurter:

I should suggest that the wise, the wise attitude disclosed or reflected in your Steiner case that it shouldn’t all be left to counsel, to the — to the skill or exigencies or pressure or what mattered to counsel but it might help to have a record more complete in view of the number of cases that has come up here where we have to be with these inadequate records considering the facts, considering the facts that the Betts and Brady limitation turns on the totality of what the whole proceeding shows.

It might well be that — that a man might show certain qualities, when he deals with the charge that he hasn’t shown in cross-examining witnesses.

I just go out of my way to put that to you.

Odis M. Henderson:

Our Supreme Court in case after case has admonished our trial judges to make a more complete record and it’s well voiced by Mr. Justice Sebring in the Sneed case wherein he — he tells them and — and he’s throwing it out as advice to all of our judges that that needs to be done.

Felix Frankfurter:

What is it?

There’s a volume of business?

Are they on the great pressure on your —

Odis M. Henderson:

We —

Felix Frankfurter:

— trial courts, Mr. Henderson?

Odis M. Henderson:

We have a lot of litigation in Florida.

Felix Frankfurter:

The climate, I suppose, encourages that.

[Laughter]

William J. Brennan, Jr.:

(Inaudible)

Odis M. Henderson:

Rather brought what, Your Honor?

William J. Brennan, Jr.:

The rule makes this powerful?

Odis M. Henderson:

Oh, yes, sir.

William J. Brennan, Jr.:

Does it extend to this area?

Odis M. Henderson:

I don’t know —

William J. Brennan, Jr.:

Nevertheless —

Odis M. Henderson:

— I don’t know why–

William J. Brennan, Jr.:

(Voice Overlap) —

Odis M. Henderson:

— I don’t, of course —

William J. Brennan, Jr.:

(Inaudible)

Odis M. Henderson:

Our — our Supreme Court rule making power is very flexible and while I don’t pretend to speak for that court, I — I see no reason why it couldn’t extent to this area.

Earl Warren:

Who determined what was to be in the record, Mr. Henderson, in this case?

Odis M. Henderson:

In this case, of course, the — it’s the primary duty of the trial judge coupled with the clerks of the Circuit Court.

The normal cases, you have the minutes of the court showing arraignment.

You have the plea.

And speaking of voir dire, the voir dire examination is very seldom ever put in the record in Florida.

It begins with the — with the first witness, as does this record, as it’s not mandatory.

You can — you can request it if you want.

Earl Warren:

And ends through with what?

Odis M. Henderson:

And ends with rebuttal, with — now, the — that is, if you pay the court reporter extra to take your closing argument, he’ll do that.

Otherwise, your record ends with the charge to the jury.

Earl Warren:

Why isn’t there a charge in this case?

Odis M. Henderson:

The — I don’t know.

Earl Warren:

Isn’t it particularly important in a case like this where you have many, many different kinds of assault in the — in the State of Florida that this man could be convicted of and the difference in the great disparity in punishment between — between those different kinds of assault?

Wouldn’t it be very important for — for the Court to know whether — whether in the absence of counsel, the — the jury had been adequately instructed as to those different kinds of assault?

Odis M. Henderson:

Well, I would say, if Your Honor please, that if the — we’ve always taken the position that it is presumed that a trial judge does his duty and we rely on that presumption and now, if it’s presumed that — that the absence of a charge and — and the record is prima facie evidence that the judge did not do his duty, then, certainly, the burden would have been upon me to furnish some court with it beginning in Florida.

But it would appear that that burden, if the petitioner is going to rely on some deficiency in the record, he should have — have alleged.

Earl Warren:

At what time?

Odis M. Henderson:

In his original petition.

In other words, if he wanted to allege that the trial judge gave an improper charge or didn’t charge the jury at all, then he had that opportunity.

Then the burden would have been upon me to see whether or not the trial judge did charge the jury.It’s — it’s assumed that he did.

Earl Warren:

Well, in — in the course of your investigation in the Attorney General’s Office to determine whether this is a case that should be — be heard, wouldn’t you take into consideration the fact that this man was not represented by counsel, either in this proceeding of the Supreme — in the Supreme Court or at his original trial and that the — the question of whether the judge had adequately instructed the jury as to the various degrees and — and kinds of assault was an important factor in determining whether he had — had suffered by reason of being deprived of counsel?

Odis M. Henderson:

I didn’t, at that time, feel that the obligation was upon me to do — to go that far.

In other words, that’s the easy question before this Court.

It’s simply “Does the record here reflect that Elijah McNeal was so incapacitated by reason of age, experience, education, mental or physically infirmity that he should have been appointed counsel?”

That’s the only — the only question I see here.

Earl Warren:

Yes, but you have told me that, normally, the — the record starts with the first witness of the prosecution and ends with a charge but the charge isn’t here.

And — and as the petition shows, it becomes a very important element in the case.

Odis M. Henderson:

Well, if the charge were improper, it’s — it would have been a proper subject for appealing this case.

This case was — the conviction was never appealed and we — our court has ruled time and time again that habeas corpus proceedings cannot be substituted for appeal.

Earl Warren:

Well, this man doesn’t — as I understand it, doesn’t attempt to — to use these questions for the purpose of — of appealing and getting a reversal of his trial.

All he wants to show is the effect of his being deprived of counsel and that’s entirely different thing, isn’t it?

Felix Frankfurter:

Suppose the charge, suppose the charge, the judge in charging the jury, points out these are the differences of degree under your code, if it is a code, and then points out how narrow the distinctions are and how conflicting the views are but it’s up to you gentlemen or — gentlemen and — do you have ladies on the jury as part?

Yes, sir.

Gentlemen and ladies of the jury.

That in itself would carry some persuasiveness in this — that these questions are of some difficulty for a man who isn’t immersed or at least familiar with the law.

I — or it might show the opposite.

He might show the distinctions.

It doesn’t make a difference.

I — my imagination isn’t equal to postulating either one of the other but it is equal to say that the charge may reveal what kind of a problem was before the jury and therefore, whether the defendant was in a position to take advantage of the distinctions that were being made.

Odis M. Henderson:

It’s evident that the charge was given.

That’s evidenced by the fact that the jury returned a verdict for a less — lesser offense and that with which he was charged.

Felix Frankfurter:

Your position is that the evidence that we have, the testimony of the State’s witnesses and the examination — and cross-examination of McNeal, in your view, show that he was fully fit and capable of dealing with the charge against him.

That’s your position.

Odis M. Henderson:

That’s it, Your Honor, and going back to these matters and — and it’s coupled with a previous question, the burden is on the petitioner to furnish those documents necessary to support his allegations.

Now, he furnished this record to this transcript and we — we just have to take the position that upon the record that’s furnished, he has not — he has not supported his allegations and the only way we can do that is to, again, compare it with Cash.

Felix Frankfurter:

In a way — in a way, Mr. Henderson, this is a subtle — begging of the question because here is a case where a fellow says, “I’m incapable of meeting the charge” and you say the burden is on him to have the skill of knowing how to put his case.

Isn’t that right?

Odis M. Henderson:

Well, you —

Felix Frankfurter:

That’s what’s involved.

Odis M. Henderson:

I follow you, sir.

Charles E. Whittaker:

Mr. Henderson, does this record show how long it was after (Inaudible) discovered in the psychotic ward of this hospital to the time of this crime?

Odis M. Henderson:

13 months, Your Honor.

Charles E. Whittaker:

13 months.

Odis M. Henderson:

Yes, sir.

Earl Warren:

Mr. Henderson, may — may I ask you this — this question.

What in the — you say that he furnished you — he — petitioner furnished the record to you in this case.

Will you tell us procedure — tell him — tell us how he happen to come by the record and how he furnished it to you?

Odis M. Henderson:

I — I wouldn’t be able to answer that.

It’s our — I don’t — if I’m — if I — I don’t have any independent recollection, whether I did it in this case or not, but it’s my usual practice to write to these petitioners and advise them what to do and it’s possible that I did in this case.

Odis M. Henderson:

We — we defend lots of them down.

Earl Warren:

I beg your pardon?

Odis M. Henderson:

I said the State defends lots of them down there.

We turn (Voice Overlap) —

Earl Warren:

I — I can’t hear you.

I —

Odis M. Henderson:

So, that the — the State advises them from time to time on many matters.

William J. Brennan, Jr.:

Let’s see if I get this, Mr. Henderson.

Odis M. Henderson:

Pardon.

William J. Brennan, Jr.:

Let’s see if I understand this.

Are you telling us that it might be that you told him how he should make up the record?

Odis M. Henderson:

It might be that I advised him of how — what procedures to take to get his problem before the Supreme Court of Florida.

William J. Brennan, Jr.:

Well, I’m just wondering, if you did, how can we attribute to him and — deficiency in the record?

Odis M. Henderson:

Well, I take the position that the — that there is — the deficiency in the record does not affect the question before the court.

I still say the simple question is whether or not the record shows that he comes within the Cash case or doesn’t and —

Potter Stewart:

Well, there are other cases beside Cash against Culver.

Odis M. Henderson:

Yes, sir, but we — we’re aware of many of them and we relied on some of them in our brief.

Earl Warren:

Well, Mr. Henderson, did he — did — how did he get this transcript — transcript or this record, whatever it is?

Odis M. Henderson:

He ordered it from the court reporter.

Earl Warren:

The court — did he have to pay for it?

Odis M. Henderson:

I don’t believe he did.

Earl Warren:

Alright.

Well, then, he — he got it by asking for the record.

Is that right?

Odis M. Henderson:

Yes, sir.

Earl Warren:

Alright.

Now, what is a man entitled to under Florida law when he asks for the record in — in a criminal case for — for a purpose of this kind?

Odis M. Henderson:

Well, it depends on the nature of the legal proceedings involved in — on — on appeal, it’s necessary that the entire record go, especially if there is evidentiary questions involved.

In a case of this nature, it’s actually not — not necessary that any record go, except that which can substantiate the allegations made in the petition.

For instance, if he had merely alleged that the — the judge charged on a totally different crime, all he would have to send up was the charge in the court.

Odis M. Henderson:

If he alleges any other isolated wrongful act that happened during the course of the trial, he would merely have to send that portion of the record which would substantiate his allegations.

Earl Warren:

Well, I noticed here that, in this one, the first allegation is that the trial court deprived him in his rights to representation by counsel as required by decisional rules and established law of Florida.

I don’t find anything in the record that — that would bear on that.

The next is the trial court deprived him of a fair and impartial trial and I would assume that the — that the charge would be a part of — part of the trial that he could rely on.

And then I notice also that the trial court deprived him of due notice by refusing to furnish him a copy of the — of the information.

I don’t — there’s nothing in there about the information, is — is there?

Now, how — how does he protect himself in — in that situation?

Odis M. Henderson:

Well, it — the same question might be — well be asked of how the State would protect.

Now, those things are guided — how would the State protect itself if you take those allegations as true?

When a man waits all this length of time and comes up with a blank allegation that the judge didn’t do this or didn’t do that and then does not support it, it would certainly put the State at a disadvantage.

Earl Warren:

Well, both — both sides would — would be protected if they had the record from which the Supreme Court could — could determine what the fact was.

Odis M. Henderson:

That’s true.

Earl Warren:

And — well, why isn’t it here?

Odis M. Henderson:

I’m afraid I can’t answer that, sir.

Tom C. Clark:

You have a standard form of the charge, I understand.

Odis M. Henderson:

Charges to the jury in criminal trials?

Tom C. Clark:

Yes.

Odis M. Henderson:

Yes, sir.

We have standard forms that’s — that there again, there’s no set rule.

The — most trial judges carry with them in court a large book containing charges on practically every criminal offense punishable and they sometimes have to paraphrase from one form to another.

Others use a standard form books put out by Robinson in Florida that have a form, a standard form for practically every kind.

Others just get it from memory.

Tom C. Clark:

You don’t have a form that’s promulgated by the court — Supreme Court?

Odis M. Henderson:

No, sir, not to my knowledge.

We won’t — we — getting back to the tradition the State takes, it’s whether or not this record shows that this man was so incapacitated that he should have had an attorney.

We’re again comparing him with Cash since that again is the formula that you furnished us.

And we say that another thing that probably influenced this Court in Cash was that he was a — an uneducated farm boy of 20 years old wherein McNeal was a 29-year old Negro man, a veteran of almost six years in the Army.

There again would indicate if they kept him six years, it would indicate that he was not completely devoid of some mentality, that he was a GI student.

I assume that he was a GI student because he says “I — I get money for going to school.

The Government pays me for going to school,” and that’s the only way I know that — that you could get that pay, that he was an employee at a nursery.

Odis M. Henderson:

Now, that would indicate a man of at least a normal intelligence.

The — another thing we feel that — that influenced this Court in the Cash case was that Cash was tried twice.

The first time he was represented by an able — able lawyer from the Dade County Bar.

That trial ended in a mistrial.

While he was — after that trial, he was sent back to Raiford and placed in solitary confinement and his lawyer withdrew from the case without his knowledge until just prior to the time he was brought back to be tried again.

And the second trial, he was not represented by counsel and they convict him.

At least this Court recognized the first mistrial as a concrete evidence of the help that a lawyer gave him that he — that was unavailable to him in the second trial.

We have no such indication of innocence in this case.

Now, this opportunity to obtain counsel is another thing that we feel that this — this case should turn on.

Cash, as going again as comparison, as I said, Cash was placed in solitary confinement immediately after his first trial.

He was unable to obtain counsel and he asked for counsel.

When he went to court at the first opportunity, he asked the court to “give me time to get counsel of my own choice or in the alternative, please appoint one for me.”

McNeal had much more opportunity than that.

He was arrested on the night of his offense on — on November 10th, 1958 or 1957.

And thereafter, in February, he was convicted some over three months between the time he was arrested and the time he was convicted and the — he does not allege that he was in jail during this three months and the record doesn’t reflect whether or not he was in jail but we get the reasonable indication from the record that he was not in jail during this three months.

And we say it’s reasonable and logical because in his testimony, the — he was asked, “Do you draw compensation?”

His answer was “I draw compensation for the school but the pension was cut off.”

Question, “What kind of work do you do?”

Answer, “I work at the nursery in Lake Garfield.”

This matter took place down in the garden spot of Florida.

And these questions and answers indicate the — this — the present tense connotations of his answers indicate that “I work now”.

Now —

(Voice Overlap) —

Odis M. Henderson:

— that not only indicates that this man was out three months when he had an opportunity to get counsel but it also indicates that he draws money from two sources, from the Government and from the nursery.

And in there is all the opportunity a man would want in the world to get counsel and would certainly take him out of the purview of the rule laid down by this Court in — in McNabb and other cases.

Earl Warren:

Did — did I understand you to say that he was out on bail while he was waiting trial?

Odis M. Henderson:

I said we assume that by a reasonable conclusion taken from the record when he — by his answers.

The record doesn’t show specifically whether he —

Earl Warren:

Well, now —

Odis M. Henderson:

— was in or out.

Earl Warren:

Well, do you have to rely on some — some finespun theory of that kind as to whether he was out on bail or not?

Couldn’t — wouldn’t your records of your court show whether he was out on — on bail or not?

Why should we have to — have to have finespun arguments like that because a man says “I work”?

Well, he works when he’s out of jail but he doesn’t work when he’s in jail.

Certainly, your records ought to show whether the man was admitted to bail and if he is — is it reasonable to suppose that in this circumstance, he would have been admitted to bail?

Here’s — here’s a man who’s undoubtedly psychotic.

He’s been in a — in a safe hospital or a veteran’s administration hospital for being psychotic.

You claimed he fired a shotgun at a — at a crowd 14 feet distant from them.

Is — is there an inference that entitled to infer from that that he was admitted to bail just on his statement that “I work”?

Odis M. Henderson:

We felt that it was a reasonable inference to make and —

Earl Warren:

Do you know what the record is?

Odis M. Henderson:

I don’t, if Your Honor please.

Earl Warren:

Did you look for it?

Odis M. Henderson:

I did not.

Earl Warren:

Don’t you think you should, rather than to — to make an argument of this kind that you infer from some general language that had no application to bail at all that he was on bail?

Don’t you think it would have been much fair to this man to — to look at the records of the court and find out if he had been placed on bail?

Odis M. Henderson:

Had I anticipated the case coming here, I would have put more in the record in Florida but it had — once the record was perfected there and we’ve felt, at that time, we had enough in the record to dispose of the case and —

Earl Warren:

I mean, before you wrote your brief in this — in this Court and before you — you took the position that you now take that there is an inference that the man was on bail, don’t you think it would have been fair to look at the record and find out if the man actually was on bail?

Odis M. Henderson:

I have to agree with that, yes, sir, but it was not done in this case.

We felt that that deduction could be reasonably obtained from this entire record.

It’s further stated in the record that this man had a big family, his mother and father and a big family living right there in Polk County.

There, again, an indication that he — he was not cut off from an opportunity to obtain counsel.

The — another factor that is considered in cases wherein the right to counsel is involved is the complexity of the elements involved in the charge.

Going back to the Cash case again, and this Court considered that in the Cash case, the complexity, burglary for which Cash was charged is usually a case — an offense committed in the stealth of nighttime and usually, it’s detected only by scientific means, fingerprints, casts and finally, the conviction is seldom obtained unless you have the testimony of an accomplice which brings in many complex questions of law.

The —

Potter Stewart:

Are those questions, Mr. Henderson, were present in the Cash case?

There was accomplished testimony or there wasn’t?

Odis M. Henderson:

Yes, sir, there was.

There was.

As a matter of fact, his conviction would never have been obtained without it.

Odis M. Henderson:

Incidentally, Cash went back on this Court’s ruling and the question was asked, “What happened to him?”

He went back and a new trial was ordered eventually and he — he entered a plea of guilty to the case.

The — the offense of assault with intent to commit first degree murder is one in Florida which could not possibly put a judge on reasonable prior notice that the issues or testimony would be so complex that a normal person of ordinary intelligence could not defend himself against it.

It’s — logically, the court knows it’s an offense committed against the person of another as opposed to this property that there’s always an eyewitness to — to such an offense and usually, more.

As in this case, there were a number of eyewitnesses.

The testimony is simple and that’s why the entire testimony here, it certainly is short.

It’s 32 pages, but it covers the entire story of what happened down there at that juke joint that night.

Elijah McNeal got into altercation with the proprietors of this place and came out second best.

He then departed to his home, went directly and produced a loaded shotgun, came directly back and in order to further the point that he was discussing when he was there before, he fired pointblank into a group of these people.

He missed the man that he was gunning for but he hit four more.

Now, that’s the entire story of what happened down there.

There’s no need for any more testimony.

The officers testified that’s what happened.

Now, with reference to whether or not he knew what he was doing.

Hugo L. Black:

May I ask you what you understand was necessity for his having a guardian?

Odis M. Henderson:

Did he have a guardian?

Hugo L. Black:

What was the necessity for his having a guardian?

He testified that he had to have a guardian to sign all of his papers, in other words, his guardian.

Odis M. Henderson:

I believe I can explain that.

It doesn’t — it doesn’t show in the record but when a person is put in one of those wards, assuming he was, giving him credit for his testimony —

Hugo L. Black:

You said he stayed there four months.

Odis M. Henderson:

Yes, sir, he stayed there.

They many times treat him with electric shock therapy treatment and when — after they have undergone that type of treatment, they cannot be released unless someone signs for them and lives with them because they have a tendency to blackout during the first week after they leave there.

That’s been my experience in that line and I assume that that’s what he meant by guardian.

Now —

Hugo L. Black:

Do you have a provision for guardianship in Florida?

Odis M. Henderson:

Yes, sir, for incompetents or minors.

Hugo L. Black:

You — you don’t know whether he was under state guardianship by his — for his mother or not — by his mother or not?

I just saw the statement “I had to have a guardian to sign.”

Odis M. Henderson:

I — my reasoning on that is that he does not have and he did not have because of his statement that his pension was cut off.

Odis M. Henderson:

That would mean that if he was under any type of illness, that he had been pronounced secured when his disability pension was cut off.

Hugo L. Black:

Well, he offered the paper, didn’t he, to show whether he was?

Odis M. Henderson:

That was a paper from the — a doctor at the hospital stating that he had received certain treatment some 13 months prior to then.

The paper was not admitted into evidence but the record reveals that the trial judge inspected the paper and evidently, there was nothing on that paper.

Hugo L. Black:

How do — how do we know what was on it? Is anything in the record to show what was on that paper —

Odis M. Henderson:

He says that his paper —

Hugo L. Black:

— by that doctor?

Odis M. Henderson:

From the doctor saying that “I was at the hospital and took treatments” I believe it is or words to that effect.

The trial judge examined that and evidently, found nothing in it that would put him on notice that the man might then be under some mental incapacity.

Hugo L. Black:

What he said is that it was a statement that showed he had blackouts.

Odis M. Henderson:

That he had had blackouts, yes, sir.

Hugo L. Black:

Do have occasion to have blackouts.

That’s all we get —

Odis M. Henderson:

Yes, sir.

Hugo L. Black:

— from that.

Odis M. Henderson:

Well, that was his —

Hugo L. Black:

There’s nothing else in there that explains that.

Odis M. Henderson:

I don’t think there’s anything else in there to explain it.

Hugo L. Black:

That and the fact of his having a guardian.

Odis M. Henderson:

No, sir.

Earl Warren:

And the judge didn’t say there was nothing in the letter that would help him, did he?

He said that if he wanted to get that into the evidence, he would have to — have to bring the doctor there.

Odis M. Henderson:

The only thing under our law that that letter could have possibly helped him is a provision in the law that even at anytime prior, during or after the trial of the case, if a suggestion of insanity or incapacity is presented to the judge or if he is made aware of it directly, he can, upon his own motion, have this man examined to see whether or not he is mentally able to stand trial.

And that’s why I said that, evidently, there was nothing important in that paper or the judge would have been put on notice that man might be incapacitated and I’m certain that he would have had him examined had that paper reflected.

Coupled that — coupled with the —

Hugo L. Black:

Well, this would also have another relevance, would it not, under the Betts and Brady rule, if it had shown that he was subject to blackout that he had been in a hospital for psychotic trouble, it would have something to do with whether the record entitled him to a hearing, was it not?

Odis M. Henderson:

I had the same reaction when I read the record but unfortunately for the petitioner, he defeated that purpose by his own testimony.

Hugo L. Black:

How?

Odis M. Henderson:

When he says he asked the court that he wanted mercy, that he didn’t intend to kill anybody down there that night, that “if I had intended to kill a man, I believe I would have killed him.”

Here in his last sentence, it’s very significant.

Odis M. Henderson:

“I was trying to scare them and stop them from jumping on people.”

By his own admission, he knew what he was doing down there.

Hugo L. Black:

That — does that fully answer the question as to whether or not he was of such a psychotic — in such a psychotic condition that he needed a lawyer?

Odis M. Henderson:

Well, to say, under our law —

Hugo L. Black:

I’m talking about — talking about the defense of himself.

Odis M. Henderson:

Yes, sir.

He — that defense was available to him had he presented it and the only matter in which he intended to —

Hugo L. Black:

I’m not talking about the defense on the ground of insanity.

I’m talking about his capacity to defend himself.

Would — it was not entirely or was it entirely relevant or relevant at all if he was psychotic?

Odis M. Henderson:

It may or may —

Hugo L. Black:

Do you think it was?

Odis M. Henderson:

It — it may or may not have been, depending on what he could establish.

What he did establish was that whatever mental incapacity he had suffered, it was over 13 months prior to the trial, that he certainly was not in the hospital then.

He worked at a nursery.

He went to school.

And there was nothing that would put the judge on notice that this man should be examined to —

Hugo L. Black:

You said he worked sometimes.

His answer was not quite so strong, you see.

You asked him if he worked, he said sometimes.

Odis M. Henderson:

Sir, worked at this nursery —

Hugo L. Black:

Then they asked him where and he said at this nursery.

Odis M. Henderson:

Yes, sir.

That interpretation of “sometime”, I — I wouldn’t know how to interpret that.

Earl Warren:

Mr. Henderson, I understood you to say a little while ago that — that the trial or the evidence against him was 32 — covered 32 pages of the transcript.

As I — as I see it here, there are four witnesses by the State against him and that testimony is covered in its entirety by 12 pages of the — of the record.

Odis M. Henderson:

I think that’s true, Your Honor.

I said the entire transcript is 32 pages, the original transcript.

That includes his testimony and the State’s testimony.

Earl Warren:

Well, it doesn’t go that far.

Earl Warren:

His testimony is about 9 pages, something like that and the others were — were 8 pages and the rest of them were 12 pages.

Convict a man —

Odis M. Henderson:

I did — I merely —

Earl Warren:

— convict a man in a — in a complicated situation of that kind with all of those different assault, the verdicts that could be given and to take only — only 12 pages of testimony with 4 witnesses and have them end up — end up with 20 years in the penitentiary is a — is a rather speedy trial, to say the least, isn’t it?

Odis M. Henderson:

Well, if — if all of the elements of the offense are presented, if it’s immaterial as to whether the trial takes 20 minutes or 20 days, all the — the perfect element of assault with intent to commit murder in the second degree were presented here and they were presented adequately by one witness.

They were presented just as adequately by McNeal himself in his testimony when he said, “I was trying to scare them.”

Well, I’ll try — you — you can try to scare somebody with a shotgun by shooting into them like that.

There’s the — there’s the element of second degree murder which is the unlawful killing of a human being when perpetrated by an act eminently dangerous to another in axing a depraved mind regardless of human life.

Earl Warren:

What is the — what is the rule in your State so far as the judge helping a man who is not represented by counsel?

Is there no statutory or — or judge-made law on that subject?

Odis M. Henderson:

There’s no written rule or law, only, if Your Honor please, it’s a matter of custom and practice that they do it frequently.

As a matter of fact, most people, unless they are charged with a heinous offense, probably have a little better chance without an attorney because the — the judge helps him along and they incur the sympathy of the jury and this — I don’t know how much this man was helped prior to trial.

There’s a long — several places in there where the judge advised him as to his rights in —

Earl Warren:

Well, did the judge ask any questions to — to help this man along —

Odis M. Henderson:

I recall one —

Earl Warren:

— to get his story out?

Odis M. Henderson:

— if Your Honor please, where he asked for the proprietor whether or not the other people involved were armed or whether one of the other people were armed, in other words, exploring the possible idea of self-defense.

Earl Warren:

That’s the only question you remember.

Odis M. Henderson:

That’s the one I recall.

Earl Warren:

May I ask you one other thing.

I understood from counsel that under — under Florida law, no admission could be — can be received in evidence, unless there is — it’s established at the trial that is voluntary and also, I understood him to say that in this case, neither the prosecutor or the judge asked any question about the voluntariness of — of this man’s statement made to a — a police officer and that there is a case in your Supreme Court which holds that if the prosecutor does not establish the voluntariness of it by his questions, that it devows upon the judge to do so.

Odis M. Henderson:

Manner — the nature of the statement involved makes a great deal of difference as to whether or not it’s an admission against interest or a judicial or extrajudicial confession.

Earl Warren:

Does it have to be formally a confession in order to — in order to require that proof of voluntariness?

Odis M. Henderson:

Well, it has to be judicial or extrajudicial confession if it’s a simple statement against interest, such as this appears to be, and of course that question was never raised until Mr. Daniels was on this case that —

Earl Warren:

Never raised at the trial?

Odis M. Henderson:

No, sir, it wasn’t raised at the trial.

And there was —

Earl Warren:

What was the admission?

Odis M. Henderson:

The — I — the — the admission I was talking about, “I — I shot one of them,” I believe, something like that.

Earl Warren:

I shot one of them?

Earl Warren:

Well, that’s pretty good admission.

Is it —

Odis M. Henderson:

But our rule also is whether it’s sufficient —

Earl Warren:

That’s pretty close to a confession, doesn’t it?

Odis M. Henderson:

I — I have to admit that it borders on a confession but our rule is also that if there’s sufficient evidence to support the verdict beyond the — such matters, that is considered harmless error.

Thank you.

Earl Warren:

Well, Mr. Henderson, I took a lot of your time to question — asking you questions.

If you want a few moments to — to sum up your argument, please take the time and do it.

You may do that.

Odis M. Henderson:

Thank you, Your Honor.

We will sum up very briefly by saying this.

That the elements which rule the Cash case are totally missing from this case.

The only question again, we feel, before this Court is whether or not this record showed that this man had reasonable intelligence.

We say it does.

We say he participated in his own defense.

We say that the record showed that he — he’d been in the Army six years, that he attended GI school, that he worked at a nursery, that he did know what he did down there that night because he said, “I meant to — to scare them.”

We say that if this Court rules that a man of that experience and of that intelligence is required, under the Fourteenth Amendment, to be represented by a state-appointed counsel, then you’re going to open the door so wide.

Of course, you’re going to put a lot of lawyers to work but you’re going — you’re going to open it wide enough where we’ll have to have them in — in municipal courts.

We’ll have to have them — the Fourteenth Amendment also extends to property rights as well as human rights.

We’ll have to have them when some — in another time, someone sues somebody for an old debt and we say it’s opening the door too wide.

We say that — that this case is — is no stronger and not much different than the Betts versus Brady case, which we’ve quoted in our brief, wherein this very Court ruled that he was a man of sufficient age and intelligence to — to defend himself and therefore, not come within the purview of the Fourteenth Amendment.

Finally, we say that this man did represent himself.

No lawyer in the world could have presented but one defense to this case and that was lack of intent to kill.

And if he established that defense himself adequately when he testified, “I didn’t mean to kill anybody.

I wanted — I just wanted to scare them and keep them from jumping on the people,” and the jury gave him every benefit of the doubt by reducing the verdict to assault with the intent to commit murder in the second degree, which it actually was.

He was sentenced to a term allowed by Florida statutes which does not necessarily, in and of itself, infer prejudice on the part of the judge.

We say that we have attempted to follow your mandate that you handed down in Cash.

We ask that you recognize that we have followed it and affirm the decision previously handed down by the Florida Supreme Court in this case.

Thank you.

Sam Daniels:

May it please the Court.

Earl Warren:

Mr. Daniels.

Sam Daniels:

The counsel for respondent has taken the position that the Florida rule as to voluntariness of admissions is not a rule as to admissions but as only as it applies to confessions.

At page 18 of our brief, we quote from the Louette case and the second paragraph of it discusses incriminating admissions.

The rule clearly applies to admissions.

If we turn over to the page 22 of our brief, the same thing is said.

The language has used “admissions or confessions”.

The admission in this case was not only concerning the fact that somebody was shot but the crucial element in the admissions was the intent to kill.

That’s what they needed in this record and that’s what they got from these three police officers that he intended to kill Scurry.

Now, on one moment, the counsel for respondent says that since he got up and testified that “I meant to scare him” that he admitted in crime of second — of assault with intent to commit second degree murder.

That isn’t correct.

The Williams case, which is cited in our brief, says that no one can be punished under the assault with intent to commit felony statute unless there is an intent to kill, that the gist of the offense is intent to kill.

The scaring testimony would be a five-year offense at most and he did not confess to that.

I won’t go into the record but I’ll leave respectfully with Your Honors the fact that after he said, “I meant to scare them,” the prosecution came in and said, “You said you meant to scare them?”

And he said, “I must have meant to scare them.”

But this goes back to the words that were put in his mouth by the prosecu — by the arresting officers who had to tell him what he had done on the night of the offense.

Now, counsel takes the position that this case is distinguishable from Cash because Cash was only a habeas corpus posi — petition.

The facts in the Cash case were true only in the pick wiki in a sense of a habeas corpus allegation but the thing that makes this case such a monstrous front to the Due Process Clause is that the — these facts are proven to be true.

Here is a record furnished by the State which shows what happened to this man, shows that we did have an ignorant and mentally unbalanced man that was put to trial in a complicated case that could not defend himself.

These aren’t allegations.

These are facts proven by the State.

The claim is made that the petitioner furnished the record to the State in this case.

The fact finding power of those in prison is rather limited and I would call Your Honors’ attention, first, to page 24 of the record which describes the transcript of testimony as Exhibit D attached to the respondent’s return.

The State of Florida prepared this record and it is shown that that is the fact that’s attached to their return.

Now, petitioner was so upset when he received this return in Raiford without a copy of the trial testimony that he filed the motion in the Supreme Court of Florida which is contained at page16 of the record.

And he says, “The State has filed a return.

They had Exhibit C and D, including the trial testimony and I didn’t get a copy of it and I can’t make any reply to the return because I don’t have a copy of it.”

Not only did the petitioner not prepare the record but he wasn’t sure it was a copy of the record until some later date.So I think all of the discussion that was had about how this petitioner prepared the record is beyond me.

This record was prepared by the State and it was not served on petitioner inquiries and until some further proceedings were taken.

Potter Stewart:

It was about the serving.

Sam Daniels:

Yes, sir.

Sam Daniels:

The contention is made that the claimed right to counsel is a pure afterthought in a mere makeweight argument thrown in the petition for habeas corpus below.

If Your Honors will examine pages 7 to 14 of this printed record, which is half of the petition itself, you will find rather eloquent language of a good prison lawyer discussing vigorously the right to counsel, citing all of the cases that we’re talking about today using the fine language of Mr. Langbein in the Cash case.

This is not an afterthought.

The suggestion that the Florida practice is to furnish counsel and so on leads me to ask this.

If it’s so customary to appoint counsel in Florida, why is it that admittedly half of the habeas corpus petitions in the State come from the fact that they were tried without counsel?

As to the fact that McNeal’s cross-examination was so brilliantly conducted, I call Your Honors’ attention to the cold facts of the record at page 28.

He wanted to argue about whether the prosecuting witness had struck him or whether it was his brother.

And he made the statement, “You said you hit me but Earnest was the one that hit me.”

The court stopped him right there and said, “No, that is testifying.”

Now, that’s the last thing that the petitioner ever said at his trial on his behalf other than his testimony.

Now, question was asked concerning the judge’s help and how judges help these indigent and defenseless prisoners.

That page right there shows how much the judge helped him.

If we read the questions that the judge did ask, he didn’t ask what the petitioner was trying to find out.

He didn’t ask which of the Scurry’s hit him.

He didn’t do that at all.

But what did he do?

He extended a guiding hand to the prosecution because it forgot to prove its element of premeditation.

It forgot to ask if when McNeal was first in the “Blue Chip”, he had a shotgun with him.

Is the trial judge helping this petitioner when he’s asked of the witness, “Did he have a gun or anything with him when he was in there that you know about?”

Answer, “No.”

Why would the Court ask that question?

For one and only one reason, to prove that McNeal had to leave the café, go somewhere and get a shotgun and come back.

That’s not much this trial judge helped this petitioner.

And I defy any explanation of the refusal to conduct a medical examination under the Florida statute when not only did the record show release from the psychotic ward within 13 months prior to the commission of the offense but through one extent, Mr. Justice Whittaker, in answer to your question, I should have told you that, at page 42 of the record, the testimony is that, while he was discharged 13 months ago, he still went back to the hospital to get pills.

That is the record.

He was receiving treatment of some kind, presumably tranquilizers, I don’t know, at the time of the commission of his offense.

Now, it is argued that since petitioner had enough sense to stay in the Army for six years, then he had enough sense to conduct his own defense in this criminal trial.

I deny the validity of the major premise and also point out that we do not know when his head injuries were received with reference to his service in the Army.

If his head injuries were received upon discharge, then the fact that he was in the Army would mean nothing.

As to what being a GI student means in this record, I do not know.

Sam Daniels:

There are trade schools that you can go to under the GI Bill.

I suppose you can go to high school or any other school on it.

We come back to this fundamental proposition.

This is not a case where we have to sit and read allegations and then say inquiry must be made.

This is a case where we know what happened.

It’s proven by the records furnished by the State of Florida.

This is not something that we might get excited about in the future.

This is the cold brutal facts of what went on in the State of Florida.

This ignorant, mentally unbalanced petitioner was tried without counsel in a case that involved extremely complicated issues of substantive law so complicated that the learned Attorney General, in speaking this morning, has made some statements which we are in a position to deny on the substantive issues.

The evidentiary problems are complicated enough that we’re even arguing them here before Your Honors this morning.

Add the man that the petitioner was, the defense which he could not make but so desperately needed and add the type of issues that were involved in this case and we respectfully submit that the trial below in the State of Florida was much more upfront to the fundamental dignities of mankind.

Thank you.

Earl Warren:

Mr. Daniels, before you sit down, on behalf of the Court, I should like to express our appreciation for the fact that you would undertake this assignment for this indigent defendant at our request.

We are always comforted when lawyers are willing to perform that kind of public service.

Sam Daniels:

Thank you, Your Honor.

Earl Warren:

And Mr. Henderson, I — I want to say to you, sir, that we have — we appreciate the earnest manner in which you have represented this — your State.

Odis M. Henderson:

Thank you.