Milton v. Wainwright

PETITIONER:Milton
RESPONDENT:Wainwright
LOCATION:Christian County, Kentucky

DOCKET NO.: 70-5012
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 407 US 371 (1972)
ARGUED: Jan 12, 1972
DECIDED: Jun 22, 1972

ADVOCATES:
J. Robert Olian – for respondent pro hac vice, by special leave of Court
Neal P. Rutledge – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – January 12, 1972 in Milton v. Wainwright

Warren E. Burger:

First this morning in Number 70-5012, Milton against Wainwright.

Mr. Rutledge, you may proceed whenever you are ready.

Neil P. Rutledge:

Mr. Chief Justice and may it please the Court.

This case is on review of a decision of the United States Court of Appeals for the Fifth Circuit which affirmed a denial of a writ of habeas corpus which was challenging a conviction of first-degree murder in the State Courts of Florida.

The first-degree murder conviction occurred in 1958 and became final, that is in the sense, that the appeal procedures were completed and the time expired for petition of certiorari in this Court in 1960 after, I mention that fact because this is after of course the decision of this Court in Spano versus New York, a 1959 decision which occurred after the conviction of the Trial Court before that conviction became final.

The facts involving the alleged crime itself are fairly simple.

The petitioner in this case, the defendant in the State Trial Court was a black man from Mississippi.

He had completed less than six years of schooling in the Mississippi Schools.

He was age 23 at the time of his conviction.

He was working as a porter in a Miami Beach Hotel and he was living in the black ghetto section of Miami with his common-law-wife who was at that time pregnant.

On the evening of May 31, after he got off work, he purchased a cheap used car for approximately a $100.00 and then that evening he took his wife out for a joy ride which ran through the evening and apparently there was some drinking during the course of that evening in the ride in the new car.

In the early morning hours of June 1, that is about 2 or 3 a.m., he ran the car into the Miami River and his wife was drowned.

The petitioner himself barely escaped with his life.

He was fished out of the Miami River by a boat captain and he was incoherent and he injured.

He was prostrate on the bank of the river when the police came and the police took him to the Dade County Hospital where he was admitted to the colored section, the hospital at that time being segregated, and he was held there overnight and then the next day, he was taken to the city jail.

No charge was made against him and he was placed in the city jail in a cell 3 feet or 4 feet x 6 feet in dimensions with no windows and with a solid door.

There was electric light in the cell which at times would be turned on and other times he would be in complete darkness and he was held incommunicado in that box of the cell for 16 days.

During that time, he was taken out from time to time for interrogation.

He was put in that cell on June 2.

On June 3, he was taken out early in the morning about 6 a.m. and was taken by a detective to a room where a Medical Doctor, a Psychiatrist and a Ph. D. Psychologist administered truth serum to him, shoot in the arm with a truth serum, he was then questioned.

Of course he had no lawyer, he had no friends, and he was not allowed to make any telephone calls.

He asked to call his wife’s family, but he was not allowed to communicate in any way with the outside world.

After the session with the doctors and under the truth serum he was then the next day taken out and hooked up the wires to use his words and administered a polygraph test.

And then the day following that, he was again questioned at which time an alleged consent to search his rooming his quarters were extracted from him and pursuant to that alleged consent, the detectives and the medical examiner of the county searched his quarters.

He was questioned again at various times, he says almost daily, for long periods, up until June 11, at which time he was taken from his cell at about 5 p.m., and was not returned to the cell until about 1 a.m. the following morning and during that time from 5 p.m. of June 11 until the early morning hours of June 12, two confessions were extracted from him.

He claims and the evidence, of course he is in dispute on this, he claims that he was subjected to threats and coercion that the detectives threatened to take him for a ride out in the country and so forth at that time and that he had no choice ultimately, but to agree to confess that he had driven into the river deliberately in order to murder his wife, the motive being to collect insurance on her life and it is true that he had an insurance policy.

Actually, it was a policy that covered both him and his wife.

It covered healthcare and it was an accidental death policy.

It is one of these policies that is commonly sold in the black ghetto where the collector comes around every week and it is very expensive insurance actually, but you pay your premiums in cash each week.

How long has (Inaudible)?

Neil P. Rutledge:

A relatively short time.

I think the policy had been in effect only several months.

I am not sure that the precise date that the policy was taken out appears in the record, but there is some evidence from which you could conclude that he originally had one kind of policy and then he changed it comparatively short time before this incident.

During this session on June 11, he was questioned in extensive by two detectives, Detective Holmes (ph) and Detective McClure (ph) and they resorted to the rather customary technique of tandem questioning that is one man would question while the other one is in a secret room adjoining from which he could observe through a one-way mirror what was going on and of course unbeknown to him the room was wired so that whatever he said in there would be recorded.

The man in the secret room behind the one-way mirror could turn on the recording device and record what was said.

The detective testified that he had only one hour of tape and so out of the entire time from 5 p.m. until 1 a.m. that he was out of his cell, only one hour was put on tape and the tape begins at a point where the petitioner was saying that he wanted to confess and that he proposed a little charade where he would go out of the room and then knock on the door and come in and say, I am appearing here voluntarily to confess and that it was stated that he had asked that this little charade be gone through in order to demonstrate that he was doing this voluntarily and freely.

He says that he would had been coerced into doing this and once he decided he had to confess why he wanted to get whatever benefit he could from it.

In any event, it was only after they had extracted these confessions on June 11 that and then the next day on the 12th, they took him down to the scene of the incident and took photographs of him that was in the sense the third confession, the first one was on tape, the second was a transcribe, a secretary typed up confession which he signed.

The third was this incident on the 12th when he was taken to the scene and then again on the afternoon of the 12th he asked to change his statement and a fourth confession was typed up which he signed.

Only after that was an attempt made to arrest him for any specific crime.

After these confessions were extracted, the detective went down to the magistrate and swore out a warrant for his arrest for first-degree murder.

This resulted in his being transferred from the city jail to the county jail and then in the county jail, he was allowed finally to make a telephone call.

He called out and obtained a lawyer immediately, but even though he had been arrested and changed to the county jail, he still was not brought before any committee magistrate and the attorney that he was able to contact by making a telephone call on June 19 filed a habeas corpus petition which resulted in a preliminary hearing and at that time he was brought finally before a magistrate and was committed over to the grand jury and the grand jury indicted him for first-degree murder on July 1, 1958.

He was not able to post bail and so he was held in the county jail pending his trial which occurred in December of 1958.

On July 18, the state for some reason, unexplained, feeling that it needed more information from him, knowing that he was represented by counsel, knowing that he had been indicted decided that the way to obtain this information was not in a straightforward way by either approaching his counsel or even by as calling him in and seeing if he would voluntarily answer questions.

Instead, they resorted to the technique of taking a Negro police officer and dressing him in civilian clothes and having him pose as a fellow prisoner and one who supposedly was in jail being held also on a charge of murder.

And this police officer whose name is Archie Langford entered petitioner’s cell on July 18 at about 4 or 5 p.m. and then stayed in that cell continuously with him except for one brief moment when he was taken out shortly after he entered the cell on that Friday, July 18 evening.

Other than that short time of less than five minutes when he was taken from the cell, Officer Langford was in the cell continuously for 45 — approximately 45 hours from 4 to 5 p.m. on Friday, I mean, excuse me, from 7 to 8 p.m. on Friday until 4 to 5 p.m. on the following Sunday.

The testimony of Officer Langford is clear that he was trying to extract information.

He went into the cell with instructions to get information from the petitioner and he tried to get petitioner to talk about his case.

Petitioner refused.

Petitioner told him that he had been instructed by his lawyer not to talk about his case and he repeatedly, over and over and over again, said I do not want to talk about the case.

He did not talk about the case that Friday even though that Friday evening he was woken up out his sleep by the officer and still refused to, the following morning he refused to talk about his case.

It was not until approximately noon the following day that the officer by use of rather clever and adroit psychological techniques was able to get the petitioner to start talking in little bits and phrases about the case and then it really was not until in the wee small hours of Sunday morning that as Officer Langford describes it himself, the petitioner broke down under this continuous pressure and told, as Officer Langford states it, the full story about why he went into the river, saying that he had gone in the river in order to collect the insurance to kill his wife and then to collect the insurance.

Potter Stewart:

Mr. Rutledge, at this time, I think you, as I understood you told us the authorities already had one or more confessions, did they not?

Neil P. Rutledge:

They did, Your Honor.

Potter Stewart:

Is there any — But what these confessions did was to supply motive, was that it?

Neil P. Rutledge:

It certainly amplified motive and it supplied this confession, this last confession was the one used and relied upon most heavily by the State in the trial.

It was the first one introduced and it was referred to repeatedly in the final argument.

One purpose obviously that they used this last confession was because the State was going for the death penalty and in the course of this confession to Officer Langford, the petitioner had commented to Langford who supposedly was being held or being involved in a murder with a white man or actually a Chinese man was his fake story.

Potter Stewart:

Right.

Neil P. Rutledge:

Petitioner had said, I am being held for allegedly killing a black man and they do not care for the black man and this was the theme of the final argument was, we wanted to prove that it is a serious to kill a black man in the state than it is to kill a white man, and therefore, that was the premise on which the state was asking for the death penalty.

Potter Stewart:

But was their — except for that claim, was there anything additional revealed in this prison confession to the other officers that had not been already confessed to?

Neil P. Rutledge:

There were details — coloration in details.

There was much more rapid descriptions than the formal language that had been written out.

Now, I have not heard frankly the tape that was recorded so I do not know how I could compare what was on the tape with what Officer Langford said.

Potter Stewart:

And finally, is there any indication on the record or any thing at the trial as to why after they had two or three confessions, they felt a need to get an additional one?

Neil P. Rutledge:

I can speculate on that, but I cannot say that there is anything in the record, Your Honor that —

Potter Stewart:

Well, what would be the inference?

Neil P. Rutledge:

The inference is that the state was worried that the confessions that it had extracted on the 11th and 12th would be held inadmissible because of the description of the events that I have just described, they were afraid that they would be deemed to be coerced confession.

Potter Stewart:

Because of the circumstances?

Neil P. Rutledge:

Because of the circumstances, because he had been held incommunicado, because he had been cutoff from getting a lawyer during this period of time.

Warren E. Burger:

And I suppose that speculation is somewhat deluded on the fact that running afoul and not only the Massiah case, but Escobedo by these processes after the man had lawyer?

Neil P. Rutledge:

I am not sure that I follow Your Honor’s question.

Of course neither Massiah nor Escobedo had been rendered at this time.

Warren E. Burger:

No, this is all pre.

Neil P. Rutledge:

All pre.

Warren E. Burger:

They are running afoul to the standards of those cases.

Neil P. Rutledge:

That is correct.

Warren E. Burger:

Which we do not know what is important, which do you regard as the more offensive, the extraction after he has a lawyer or the extraction before?

Neil P. Rutledge:

Your Honor, no court and its significant that no court has ever looked at the totality of the situation involving this petition.

His appeal was taken, but he escaped pending his appeal and that appeal was dismissed without opinion and without review of the record.

He then applied for certiorari to the Florida Supreme Court and that was denied without opinion.

He then filed a series of collateral attacks, but none of these presented the total situation before the Court and the total situation here is that the Sixth Amendment violation, that is the violation of the right to counsel begun from the very day that he was taken into custody in June 1 and continue right through this July interrogation, this Officer Langford interrogation and that seems to me to be the most — the fact that stands out in this case is that here is a man who was blocked from having any legal aid and he needed it desperately until after these confessions of the 11th and 12th were extracted.

Warren E. Burger:

Do you — are you really arguing that independent of the standards of Massiah and Escobedo, without getting into the question retroactivity of Massiah, that this case is one that cannot stand?

Neil P. Rutledge:

Absolutely, Your Honor.

We certainly contend, even if you were to take the extreme position which I submit would be an extreme position, that the legality of this custody could be judged only by decisions rendered by this Court at the time that his conviction became final that even under those standards, his conviction cannot stand.

Mr. Rutledge, are you arguing (Inaudible)?

Neil P. Rutledge:

Your Honor, he was — he filed this petition for habeas corpus in the Federal District Court in Miami and counsel was appointed for him and the Court considered both and rule, both on the voluntariness of this confession and also on the question of whether Massiah was retroactive or not, but counsel, his appointed counsel argued primarily the retroactivity question.

This is in the Federal Court?

Neil P. Rutledge:

This is in the Federal District Court.

(Inaudible)

Neil P. Rutledge:

I cannot answer that question, Your Honor because it does not appear.

The only opinion that discusses the merits of this case is a habeas corpus case in the Florida Supreme Court State v. Cochran.

All the others are per curiam without opinion, so that —

Byron R. White:

Did he ever — did he ever go to file a relief before the court?

Neil P. Rutledge:

Yes, he did Your Honor.

He appealed.

That appeal was dismissed.

He applied for certiorari that was denied.

He then filed a series of habeas corpus in Rule 1 which is a —

Byron R. White:

Did he present the (Inaudible) voluntariness issue in those?

Neil P. Rutledge:

In those proceedings, Your Honor, so far as I can tell from the record, he would attack one of this confessions but not the entire, the total picture.

In other words, as far as I can tell in State v. Cochran, he attacked the voluntariness of the first four confessions, these ones on June 11 to June 12.

In the later collateral attack in the Florida Court, as far as I can tell, he attacked the admissibility of this July confession as being involuntary, although I cannot say categorically that that is so because the opinions do not shed any light.

There is no doubt that the petition that he filed in the Federal Court below in this case squarely attacked his July 12 confession and that the principal argument of counsel was that it was inadmissible because of Massiah and that Massiah should be (Inaudible) normal application.

Now —

Mr. Rutledge, May I ask you on point, are you contesting here today the validity of the principal confession rather the fifth?

Neil P. Rutledge:

Your Honor, I stated in my brief that I could not say candidly that the petition in the lower court presented as a matter of pleading or as a matter of argument the validity of these first four confessions.

However, the evidence before the judge in which was the state’s prior transcript did contain all of this information and we do submit that it is relevant in the totality of the circumstances that you cannot simply savor this case into independent blocks and that the confession that was extracted in July by the use of Officer Langford was merely a continuation of a post scheme of depriving this man of his right to counsel.

But even if you look and address yourself only to this confession that was extracted in July, we say first of all that thoroughly there is no way to distinguish what the state did in that case from what was held in Messiah to be impermissible.

Here is a man who is indicted on the most serious charge of all, involving a capital offense and he had a lawyer and (Inaudible).

The State seeks to go around the lawyer and extract a confession from the accused in a way which obviously it could not have done if he had been — if he had the benefit of counsel present, if there had been notice.

Now, the real question is whether that case, the Massiah case should be given the normal, usual application or whether it should be limited by what we say is a comparatively new doctrine, the Doctrine of Non-retroactivity.

Now, this doctrine is new in the sense that up until the Linkletter case in 1965, no decision of this Court overruling a prior decision based on the constitution, interpreting the constitution had ever been limited to prospective effect only or given less than the total effect that normal decisions have.

Now, the doctrine of the Linkletter Doctrine, the Doctrine of Non-retroactivity of course has roots going back to the Sandburg (ph) case of Mr. Justice Cardozo which held that a State Court, Montana Court could give only prospective effect to a decision in a civil case without violating the Due Process Clause and certainly it is now settled by this Court.

If there is no constitutional impediment to giving a new decision of this Court, a new decision, only prospective effect or limited prospective effect and we do not propose the challenge that contention, but we do say that one, the Doctrine of Non-retroactivity is a new one.

Secondly, that there are obvious disadvantages to it as well as advantages and these have been discussed at length by Mr. Justice Lignose (ph) and Justice Black, the late Mr. Justice Harlan and Mr. Justice Douglas who had dissented consistently from the application of this doctrine.

Now, what are the disadvantages?

One is obvious and that is that it produces and apparent inequality right away.

Neil P. Rutledge:

In other words, as Professor Courier (ph) in his article in 51 Virginia Law Review cited in the Williams case posed it, the prospect of two man involved in the same crime in the same cell and one of them simply by the chance that this case was tried earlier gets the benefit of a new constitutional ruling and goes out whereas the other man at the same time that he is, the first man is freed on habeas corpus, the other man is lead down to the gas chamber and this inequality, this surface inequality certainly is something that causes people to pause.

There is also the fact that if the logic of the Non-retroactivity Doctrine were followed completely that we would have merely an advisory opinion or law dictum, but the most important reason for not applying that we submit is that the doctrine itself has the potential of doing serious damage to the image of this Court in that the power of this Court from Marbury versus Madison has been the respect of the people for this Court as the final expounder of a constitution as the court that does not make law and when the court acts like a legislature and limits its opinion only to prospective effect, the Court then is subject to the charge well-founded or not, of legislating like a Court, like a legislature rather than interpreting and applying the constitution as the court.

And so we submit for this reason the doctrine should not be applied unless there is a sudden new change in the law and Massiah we say was not a sudden new change.

Massiah, as the opinion itself states, stemmed from Powell v. Alabama.

It was expressly anticipated by Spano versus New York and the Spano case as I pointed at the very beginning came down before the conviction in this case was final.

Potter Stewart:

Of course the District Judge in this case quite misstated the Doctrine of Massiah in the –

Neil P. Rutledge:

I think he did.

Potter Stewart:

In the opinion.

He held that confessions are involuntary per se if induced by officers or agents from an accused after his indictment, while he is without assistance of counsel and then in the Powell case, it is quite different.

The Powell case involved the Sixth Amendment.

Well, the fact is that Massiah involved the Sixth Amendment.

Neil P. Rutledge:

Exactly, Your Honor.

Potter Stewart:

It did not hold that confessions are involuntary per se, did it?

Neil P. Rutledge:

No.

Potter Stewart:

That interrogation after indictment deliberately undertaken by the Government was a denial of the Sixth Amendment right to counsel?

Neil P. Rutledge:

Yes, Your Honor.

Potter Stewart:

And then of course the Court will appeal to affirm this case based on the District Court’s opinion.

Neil P. Rutledge:

That is what —

Potter Stewart:

That could have been one.

Neil P. Rutledge:

That is correct.

I think there —

Potter Stewart:

They came with new law.

Neil P. Rutledge:

There was a confusion between the Fifth and the Sixth Amendment and we say of course that this was even if you examine this confession only by Fifth Amendment standard that it was not a voluntary (Voice Overlap) that is the second point and I certainly will leave that to my brief.

Thank You, Your Honor.

Warren E. Burger:

Very well Mr. Rutledge.

Thank you.

Mr. Olian.

J. Robert Olian:

Mr. Chief Justice and may it please the Court.

At the outset for the sake of clarification, I think that we ought to talk about the confessions, that were involved.

In fact, I think if you — the best way to look at this confessions is one the major confession that is being talked about in the petition of certiorari which was the confession which was elicited by Officer Langford in the cell of the petitioner.

J. Robert Olian:

Secondly, there is one other confession which also was discussed by the courts at the state level which is referred to in the petitioner’s brief as 405 Confession.

In fact what it is one confession that was taped, that was transcribed, that was changed, that was initial, but essentially we have two and the second one I refer to is that confession which was made to Officers Holmes and McClure.

Now, there is in fact in the record and I think you will find it in our brief one statement which might in fact be considered the third confession and that statement has never been challenged at any level and that is from the record on page 148 when Officer McGraw arrived at the scene of the crime, he was asked, when you saw this defendant lying on the pavement, describe if you will what he was doing, what he was saying if anything?

He replied, well, he kept insisting he drove his car into the river.

Now, in terms of argument, this is quite important so again there is the Langford, Holmes, and McClure and this other confession of Officer McClure and I think that these distinctions have to be kept in mind.

Thurgood Marshall:

Well, is there any question that he drove the car in the river?

J. Robert Olian:

Mr. Justice, there is no question except the meaning of what he said.

That is why I am saying that there is some, you could call that a third confession, whether he drove it or not.

The State’s contention –-

Thurgood Marshall:

The confession that he drove the car in the river has nothing to do with murder, do you?

J. Robert Olian:

Mr. Justice, the State’s contention at the trial was he did not drive the car in the river.

He jumped out of the car before it went into the river, so I think —

Thurgood Marshall:

So how does this confession help you on that point?

J. Robert Olian:

Well, in this case, he is saying in effect that he did drive it into river whereas at the trial I think it goes more of the question of credibility.

At the trial what he said was he blank out; he does not remember what happened, as far as his story of what happened.

Here he says, yes I did drive into the river.

Again, I think this is equivocal, but I think it raises some question about credibility of his own story of what took place and I think that is important in terms of the facts that were presented at this trial because there are constant discrepancies in terms of the stories that were told and I think there are constant considerations here of credibility.

I would like to talk about those considerations somewhat further.

Again, that is equivocal as a confession, but it does disagree with the story that he told he blanked out that he does not remember what happened.

So how does this is interpreted is not totally clear.

And far as the facts in this case go, there are number of things, it was stated by the petitioner and he was questioned almost daily.

A couple of these questioning periods had to do with cases which were another jurisdictions that are asked when you hold him for investigation?

They came down, they did interrogate him.

The longest questioning period was one where the — it was either Polk, Florida or Mississippi, I feel which one of the two came down questioning for six hours about another alleged crime.

Now, they asked him at the state hearing and this quite important and it is in our brief, they said to him, you were not questioned between the 4th and 11th?

Now you notice, they are saying constant questioning, long questioning, great deal of psychological coercion and pressure and this kind of thing.

The petitioner was asked, you were not questioned between the 4th and the 11th?

He answered, I could have been.

The Court: Not could have been, were you or were you not.

You were there, you know about it.

J. Robert Olian:

You are the only one that can tell us and it is in the petitioner from the 4th day to the 11th, I believe that I was questioned, I mean, I was trying to think.

I believe, I was questioned sometimes during the time from the 4th to the 11th and on it goes, he can identify three periods Your Honor, the longest period being roughly one-and-a-half hours during this time that he was held for questioning.

So this matter of constant questioning in terms of all the confessions, now this goes to the Holmes and McClure confession which is not the one which is a primary basis for the petition here.

He says — the petitioner claims well, he was asked to write to his wife’s family.

This has to be clarified.

He apparently has another wife.

Minnie is not his real wife as far we can tell and he would said no, I could not, I could not, I was not even allowed to write to her.

I think if you look at the appendix, you will find three pages later where he say, yes, I did write her.

He said I was not even given stationery, three pages later, he said yes, I did write to her.

Now, another point as far as facts goes, the petitioner points out this is a common type of policy.

I think it is also worth pointing out that in the record, John Tyler took the stand.

He said, I was asked by the petitioner where I could get in his own words a good insurance.

I think it is also very important to know that the petitioner was unable to sustain and so very effectively, in fact one witness took the stand, told him how he hacked the suit for $2.00 because he was short of cash yet he managed to keep up the payments on these insurance policies.

Now, with that in mind, I would like to get to the issues in terms of the structure of our brief.

First of all as we pointed out in our brief and rely for the Langford confession, if there is any error at all which we deny and I like to get to this in more details in a moment, but if there is any error at all it is clearly harmless error.

First, we still have the Holmes and McClure confession.

Potter Stewart:

Was that the matter that the Court of Appeals never reached, is that not correct?

J. Robert Olian:

That is correct Your Honor.

That was never brought up to that Court and I think that as we pointed in our brief that the cases by this Court have said if you do not raise that in your petition that perhaps should not be considered by this Court.

But —

Potter Stewart:

No, no, you are not a petitioner.

J. Robert Olian:

No, I am —

Potter Stewart:

You could do whatever you want to support the judgment.

J. Robert Olian:

Right.

No, I was talking about from the petitioner’s side.

Potter Stewart:

Well, he is not going to bring up the point to this harmless error, would he?

J. Robert Olian:

No, I was not referring to that point, Your Honor.

He was not bringing up this other confession.

Potter Stewart:

Well, I am talking about what you are just beginning to address yourself to the proposition that this was harmless error, the admission of this confession even if the error was harmless, is that what you are going to say?

J. Robert Olian:

Yes.

Potter Stewart:

That is the question, that is an issue that the Court of Appeal and the District Court did not reach, is that not correct?

J. Robert Olian:

Yes.

As far as the evidence was involved, we have the confession.

We have the evidence.

Part of the evidence goes in this case there is — that was overwhelming proof of guilt.

I will just go through some of these facts very quickly because they are not all in the appendix.

It is a very long record, but we did cite these facts in our brief.

First of all, his car was purchased nine hours before this accident took place.

I told you about the insurance.

Much of this insurance will only pay in case of accident.

It will not pay in case of natural death.

There is a lot of testimony about his relationship toward the deceased, Minnie Claybon that he does not particularly care for her that he has written to others how he was coming to a great deal of money which would further his boxing career.

If you look at the record on page 150 to 152, it tells us some important things about the scene of the accident.

It was well lit.

There was good weather.

Utmost, there was one space with estimates ranging from 15 to 25 feet of opening.

The rest was a solid line of both, so that if someone lost control of the car, the odds I am getting in that particular 15 to 20 foot opening certainly were not very great and Your Honors this is particularly important in this trial.

The back windows in this car were closed.

The deceased was sitting on the back seat.

The back doors could not be opened.

They were latched closed.

Now, the previous owner of the car was asked about the car and what he testified to was this.

Those ornaments had never kept the back doors closed, that the doors freely opened.

That at the time of the accident, the police officers pointed out that when they removed the car from the Miami River, they had to use tools to get those doors open.

At that trial, they pointed out that there was no evidence of any scratches or anything else on these chrome ornaments which indicated that they were forced closed by the collision, by going into the water at that time.

Warren E. Burger:

I take it, what you are arguing in effect is that this conviction might have been obtained without the use of the confession?

J. Robert Olian:

Yes, Your Honor.

Warren E. Burger:

In other words, it is harmless error in that sense?

J. Robert Olian:

Yes, Your Honor.

I think that is also true when you coprolite with the confession to Holmes and McClure which was at no point in the Federal Courts raised in or on that particular regard.

J. Robert Olian:

Now, I think that confession is particularly important and I think two things ought to be noticed, not only about that confession which I think adds to the harmless error argument but the confession to Langford.

I think when you examine this trial transcript, you find a tremendous concern of the trial judge for a fair trial.

A meticulous examination of all the parties involved, he used that procedure which was proscribed by this Court in Jackson v. Doe.

They went into all the details and great detail and decided that it was admissible.

It was not until then that it was turned over to the jury.

Warren E. Burger:

In your view, how many of these confessions were put in?

It was all of the material relating to his admissions and confessions?

J. Robert Olian:

Yes, Your Honor.

Warren E. Burger:

You began with the last one.

J. Robert Olian:

Your Honor the Holmes and McClure was put in and put in detail and the Langford testimony was put in and put in detail.

Although, the petitioner suggested that the Langford was the most important, I think if you examine the transcript, examine the length of the trial you discover that very clearly both of these confessions were put into evidence with great force.

So the Holmes and McClure confession is just important.

Your Honors, I think that if you also examine in relation to the Holmes and McClure confession and the other confession, the instructions of the judge to the jury, you find again evidence of this very meticulous concern that he cautioned him that as to the reconsidering whether or not the confessions were voluntary and he told them, they could disregard them entirely if they so desired.

I think that what also was important as some of the evidence of other —

Thurgood Marshall:

Are there any suggestions particularly as to the police in his testimony?

J. Robert Olian:

Specifically —

Thurgood Marshall:

Or is just general as to all?

J. Robert Olian:

Your Honor, I think he did not separate the two confessions as he talked about confessions and their voluntariness.

Thurgood Marshall:

What I mean, as he as a layman, would he not think that his talk with the policeman was voluntary?

J. Robert Olian:

Well, I do not think that — yes inherently he would think so.

They examined this thoroughly outside the presence of the jury and they submitted to the jury with these cautionary instructions, I do not think it is a layman thing it seems.

Thurgood Marshall:

Why did the state kept it less then?

What was the reason there?

J. Robert Olian:

Mr. Justice I had —

Thurgood Marshall:

(Voice Overlap) I have this in few parts.

One, why did he get it and then why did you use it?

J. Robert Olian:

Mr. Justice I have no idea.

This trial took place in 1958 and I think the total atmosphere at that time was quite different.

What they did, I think what their motives were impossible to decide at this time.

I think as a matter of law however, I do feel that these factors were effectively handled at trial and that is the point that I am trying —

Byron R. White:

Mr. Olian, did you call our attention to any cases here in this Court where admitting an inadmissible confession had been held to be a harmless error?

J. Robert Olian:

Your Honor, I cited Harrington and Chapman and I think that they talked about the proposition here that (Voice Overlap).

Byron R. White:

No, what Chapman — do you think either one of them held that an involuntary confession could be admitted then be held to be harmless error?

J. Robert Olian:

Your Honor, first of all I am not saying it is involuntary.

Byron R. White:

I know but your proposition is that even if it were, these confessions were inadmissible, it was harmless error, do you admit them?

J. Robert Olian:

Your Honor, I would make a distinction.

Byron R. White:

I mean, you would not have to be arguing harmless error, if they were voluntary?

J. Robert Olian:

Well, I would make a distinction it seems to me in terms of the case law between a coerced confession and a confession which violates his right.

Byron R. White:

I see.

J. Robert Olian:

And I think it has to be one or the other.

Byron R. White:

I see, now would you say, let us assume the confession was involuntary —

J. Robert Olian:

In the sense of the coercion?

Byron R. White:

Yes.

J. Robert Olian:

Then I would not be arguing harmless error in that kind.

Byron R. White:

I see.

But if is just a confession that is taken without the presence of counsel?

J. Robert Olian:

Yes, I think harmless error applies in that context.

Potter Stewart:

Would you know any –-

(Inaudible) to apply every action?

J. Robert Olian:

Well, that is not the issue which I have gotten to.

Yes, but you would not have to argue harmless error unless Massiah were retroactive?

J. Robert Olian:

That is correct, Your Honor.

Byron R. White:

So, if Massiah is retroactive, you nevertheless would say that the confession taken in violation of the Massiah could be admitted if it were —

J. Robert Olian:

Yes Mr.

Byron R. White:

If admitted, it could be held as harmless error?

J. Robert Olian:

Yes, Mr. Justice.

Potter Stewart:

Now, do you have any precedent for that proposition?

J. Robert Olian:

Well —

Potter Stewart:

Or for the proposition that the admission of — the wrongful admission, the erroneous admission of any extrajudicial confession can ever be harmless error?

J. Robert Olian:

Your Honor, I said that in our brief we say that Harrington and Chapman —

Potter Stewart:

That is not an extrajudicial confession.

J. Robert Olian:

Well, it is not exactly the same, but we do have confessions which were inadmissible.

Potter Stewart:

My question is do you know of any case in this Court that has held that the admission in violation of the constitution of an extrajudicial confession could ever be harmless error?

Byron R. White:

Any Miranda case for example?

J. Robert Olian:

Any Mir — No, I am sorry Your Honor.

I did not cite any.

Potter Stewart:

But you know of any?

Do you know of any?

J. Robert Olian:

Of hand, I do not know.

I am sorry.

Has this Court not and have other courts often commented on the fact that confession by its very nature is so devastating a piece of evidence that this cannot be disregarded?

J. Robert Olian:

Your Honor, my reading of the case which suggested to me that way we only found that a confession was coerced in the sense of psychological and physical and a like, that is true.

I do not feel that in terms of a Massiah type situation that that rule should be applied.

I do not think it is the same kind of thing.

I think what we are talking about is a situation and again, I am not granting that Massiah governs this.

I am not granting that Massiah should be granted retroactively, but it seems to me that abridgment of that Sixth Amendment right under those circumstances should not automatically result in a reversal.

I think in that context, yes, the Harmless Error Doctrine in that context should apply.

That is how I read the case that the petitioner is primarily relying upon how I read the case of this Court and that is what I am urging.

I think perhaps, I ought to turn to the question of Massiah in retroactivity.

I suggest in my brief and I would get to this quickly as far as the facts go that I do not feel it is desirable to extend Massiah and I think that particularly we pointed out that in this case, what you have is the situation where every prisoner volunteered his information to a total stranger, I think it is a distinction worth considering because I think if Massiah —

Thurgood Marshall:

How could you get to this volunteer?

Is that the word you just used?

J. Robert Olian:

I might have Mr. Justice.

Thurgood Marshall:

Do you really mean that?

J. Robert Olian:

Yes, I do.

I do.

I think if you will —

Thurgood Marshall:

On the basis of this Court?

J. Robert Olian:

Mr. Justice, we are talking about the statements to Officer Langford now who is put in the cell.

Thurgood Marshall:

Yes.

J. Robert Olian:

And in that case, I think if you look at what the petitioner said at the trial he said, he did no not even talk to the man. Now later in his petition, now he turns around and says, Oh! Yes, he elicited a confession from me but at the trial —

Thurgood Marshall:

How many days was it?

J. Robert Olian:

It was a matter of hours.

Thurgood Marshall:

A matter of whole day?

J. Robert Olian:

Oh! It was more than a day, yes, but it was something like —

Thurgood Marshall:

Well if he volunteered, why did it take that long for him to volunteer?

J. Robert Olian:

Well, what I am saying —

Thurgood Marshall:

You do not really mean he volunteered?

J. Robert Olian:

Mr. Justice, what I mean in this situation is that what happened in that cell did not amend what the first coerced confession.

What did he do?

He asked —

Thurgood Marshall:

Well, suppose when he was first arrested, the police questioned him in when they first picked him up and then questioned him again later in the afternoon and then the next morning, woke him up in the middle of the night and questioned him and then woke him up again in the middle of the night and questioned him, would you think that would be coercive?

J. Robert Olian:

Mr. Justice, there are cases —

Thurgood Marshall:

Do you consider that to be coercive?

J. Robert Olian:

Mr. Justice, there are cases that this Court has ruled down which come close to the fact what you are talking about which this Court has said are coercion.

Thurgood Marshall:

Well, now the only difference is that in my hypothetical, the man knew he was police and in this case he did not know he was a police, are there any other differences?

J. Robert Olian:

Yes, Mr. Justice I think there are a lot of differences.

I think what has happened here is that is he in the cell and he has asking some questions.

He made some absurd accusations.

He said what kind of psychological inducement was there?

Well, he shared his oatmeal in the morning.

He let him steal some candy bars and a few times he said, Boy, I acted crazy!

Now, I do not think that that is psychological coercion on the petitioner.

As far as the petitioner goes, he said in his own testimony at the trial, no, he did not wake me up at all.

Officer Langford said, I woke him up about twice, once or twice.

Thurgood Marshall:

My point in this question is, how do explain Mr. Langford’s statement that “he broke down?”

J. Robert Olian:

Your Honor, I do not think we have to examine each word that meticulously why he used those particular words, I do not know.

But I think if you view the facts even as Officer Langford told those facts that it does not come close to any of the cases that this Court has ruled that confession was coerced.

There is no constant questioning by a large number of officers for hours on end in the odd hours of the morning.

Officer Langford said, well, he woke up a couple of times.

J. Robert Olian:

He woke up easily, but he did not question, he did not constantly interrogate him.

He was in the cell and occasionally as Langford tells that the petitioner even denies it as Langford tells it. He says well, I got back to the subject.

Again, I accused him of all kinds of things and he said I acted crazy, but I do not think that this case in any sense compares to the cases where this Court has ruled that a confession was coerced.

Potter Stewart:

Did it get compared as to the Massiah case?

J. Robert Olian:

Mr. Justice, I think it comes much closer to —

Potter Stewart:

Which it did not have anything to do with whether or not a confession was (Inaudible)?

J. Robert Olian:

Right, it does not.

Potter Stewart:

Quite contrary to what (Voice Overlap)

J. Robert Olian:

He does not, I think right.

I think those two issues have to be kept very clear than it comes much closer to Massiah.

I think we have urged in our brief that Massiah should not be extended because the implications of it are that, for example you could have a situation where you say well, the guard in the jail has said to another prisoner, ask him if he killed him and he says, yes, I killed him, the guard, and you say well the guard cannot come into Court.

Potter Stewart:

My question is, do you think that this comes within the Massiah case, quite apart from whether Massiah is retroactive, that after all is the basic issue in this case?

J. Robert Olian:

Mr. Justice, as I suggested I think it comes closer to Massiah than to coercion.

I do not think Massiah should necessarily govern.

Well you contended in your brief that Massiah is distinguishable?

J. Robert Olian:

Yes, Your Honor that is correct.

I contend it is distinguishable and the point I am trying to make I do no think Massiah should be extended beyond its facts and I set forth irrational.

I think perhaps the most important issue —

Potter Stewart:

You know the McLeod case from Ohio?

J. Robert Olian:

Yes, I do.

In that particular case, however, Mr. Justice, there it was a — there was nothing in what this Court said to indicate the position of this Court.

Potter Stewart:

No, I am just taking about your claim that Massiah should not be extended beyond its own facts. It has been extended at least to the facts of the McLeod case, is it not?

J. Robert Olian:

Mr. Justice it has, but I would urge that it should not be extended anymore than that is necessary.

Potter Stewart:

Beyond Massiah and McLeod?

J. Robert Olian:

Yes.

Potter Stewart:

Do you know what the facts were in the McLeod case?

J. Robert Olian:

I have them here somewhere, but at the moment I cannot recall.

Warren E. Burger:

Well, Mr. Olian no matter how much we undertake or you undertake I should say, to rationalize the officer in the cell, to start the fact is — the fact is that that is what he was put there for?

J. Robert Olian:

Yes.

Warren E. Burger:

And he stayed there, what 24 hours?

J. Robert Olian:

It was more than that, 36 to 40 hours something.

Warren E. Burger:

For 48 hours, he stayed there 48 hours and got what he went in for?

J. Robert Olian:

Yes.

Warren E. Burger:

After the man had a lawyer?

J. Robert Olian:

Correct.

I would like to point to the other issues that I think that we have been talking about.

I think if all of these, I have been presenting these arguments as even as I think perhaps I have not made clear to the Court.

I do feel that if you feel that this case is governed by Massiah, even in view what I have told you before that Massiah should not be declared retroactively.

Up to this point, the Fourth Circuit has said Massiah should not be declared retroactively.

Now, the petitioner suggests, well, that this would be a normal application.

I do not think that in modern criminal law, retroactivity is a normal application and I think that the decision of this — the decisions of this Court have made that absolutely clear.

You stated the factors that are important.

You stated that as the combination of those factors and you ruled in a number of cases on whether a particular decision should be retroactive or not.

And it seems to me that the same rationale was governed in the Johnson case, the same rationale which governed in fact in Linkletter applied in this particular case.

We talked about the purpose to be served.

The purpose to be served in this particular case is to deter the police from interrogating when a lawyer is not present.

Now, that purpose has already been solved by Massiah.

To make Massiah retroactive has nothing additional to the utility, to the practical outcome of that particular decision.

Potter Stewart:

Has Massiah overruled any previous decision?

As Mapp did and which would — you have mentioned Linkletter, but did Massiah?

J. Robert Olian:

I do not think it did, Mr. Justice.

I did not feel personally reading the cases of this Court.

I do not feel and I did not feel and I still do not feel that that single explicit point is telling one way or the other.

I think the rationale —

Potter Stewart:

It has to do with reliance?

J. Robert Olian:

Yes.

Yes, the prior history, prior reliance.

It gets to two different doctrines which have been stated by this Court.

I do not think that specific collection alone should tell, it should be telling in terms of the final outcome of this case.

I do feel that the rationale is clear or not.

J. Robert Olian:

Again, it is a combination of all these factors.

I think the decisions in Johnson, the decision in Linkletter make it clear enough that the purpose, first of all, the purpose would not be served by making it retroactive.

Secondly, that in this type of situation, in the Massiah situation, Massiah, the confession that was elicited in Massiah was not one that was believed to be coerced.

It was not of those beliefs to be unreliable.

In fact, there was believed to be all too reliable and so the basis for getting rid of that kind of evidence by making the rule retroactive again is not necessary in this particular situation.

We are not talking about right to counsel at trial which so infuses the entire trial with possibilities of error that you have to make it retroactive, protect the right of the individual.

Third, —

Thurgood Marshall:

But Massiah specifically said that this is true since Powell against Alabama?

J. Robert Olian:

Mr. Justice, I think there are some distinctions there.

Thurgood Marshall:

Right, that is on page 205.

This yields no more than reflects the constitutional principle established long ago as Powell v. Alabama and then it quotes in trial.

J. Robert Olian:

Your Honor, I feel that what we are talking about in those two decisions are distinguishable.

In the broad sense, they are talking about right to counsel, but Massiah is very specific and Massiah is talking about a situation where he is in custody.

He is released and they have this set up with an informer.

Powell —

Potter Stewart:

And he has been indicted?

J. Robert Olian:

And he has been indicted.

Potter Stewart:

And he has a lawyer?

J. Robert Olian:

Yes.

In this particular situation, what we are talking — in Powell, what we were talking about was the right to have an appointed lawyer in a capital case and I do not think that although they talk about the Sixth Amendment guarantees in the broad context, I do not think that is actually the same.

And again, in terms of the three criteria set up by this Court, I do no think, I do not see in terms of the decisions on Miranda and Escobedo, I do not see any of the possibility logically but to make Massiah not retroactive.

The third factor is the strain on the judicial system and here I think in one of those two decisions which I was just referring to, this Court pointed out the problems related to hearings on evidence long destroyed and hearings based on memories that are deemed by time.

Potter Stewart:

How common do you think — how common a practice of this do you suppose before Massiah?

J. Robert Olian:

Mr. Justice, I —

Potter Stewart:

Going out to your point as to the strain on the judicial system?

J. Robert Olian:

Mr. Justice in Johnson and in Young versus the United States in the Fifth Circuit, there are comments to the effect that these were common practices and I think that there is enough —

Potter Stewart:

(Voice Overlap) and after the man has been indicted and after he has a lawyer, will the government deliberately to get at him and interrogate him further?

J. Robert Olian:

Mr. Justice, it is also be hard to get statistics on that.

Potter Stewart:

I ask this only because I just rely on my own recollection.

I do not remember that since the trial, we had a single — that this question has arisen here.

J. Robert Olian:

No, Your Honor this trial —

Potter Stewart:

The retroactively of Massiah and that is the reason that suggest to me that this is a very rare practice I would hope?

J. Robert Olian:

Well, the other — well, those two cases suggest it is not a rare practice.

Secondly, — Oh! My time has expired.

Warren E. Burger:

You may answer the question of course.

J. Robert Olian:

Secondly, I think that one of the problems in this particular type of situation is that whether or not there is a great deal of reliance.

A lot of petitioners are going to be sitting there and thinking well, what I can say is that this kind of whatever you want to call it, duplicity or deception was practiced on me.

Now, let us go and get an evidentiary hearing.

How are those claims going to be solved?

The reason that they are going to do that is obvious.

They cannot get Miranda and Escobedo applied retroactively so that they will say, well I will change my story so that it falls within the aegis of Massiah and therefore can get an evidentiary hearing and perhaps get a new trial and get it to Smith.

Potter Stewart:

I like to change the story, let us say, they denied the right to guarantee by Powell against Alabama or by Gideon against Wainwright?

J. Robert Olian:

Well, that is true Mr. Justice, but those are things which can easily be established in one way or another by the record.

This type of situation cannot so easily be established by the record.

He could say well —

Thurgood Marshall:

It was in this case?

J. Robert Olian:

It was in this case —

(Voice Overlap)

J. Robert Olian:

Well, what I am getting at is that within the board preview of the Massiah, a prisoner could say, well, at the time I was questioned this policeman told me, he was someone else not a policemen, but someone else.

Now I realize —

Potter Stewart:

The record would show that, would it not at the trial whether or not a policeman interrogated an end, after he had been indicted and after a lawyer, after he had a lawyer and then further testified at that man’s trial on behalf of prosecution and the record will show that —

J. Robert Olian:

Mr. Justice, I think that record would show that in 1970 or 1971 but we are talking about a case which took place before Massiah and those records would not have raised this issue of deception it seems to me because I do not think it as ever clear at that time and this Court points it out in Johnson —

Potter Stewart:

If there is any cross-examination at all with prosecution witness it would have been brought out in circumstances under which —

J. Robert Olian:

Well, they may have Your Honor, but not as a constitutional right which was —

Potter Stewart:

But the facts would be in the record?

J. Robert Olian:

Yes, it is possible.

It is possible, but not always.

We read many records everyday.

Thurgood Marshall:

Well, we do not have any problems if the record is like this?

J. Robert Olian:

Mr. Justice, I think you still have some problems because there are —

Thurgood Marshall:

I mean you got that problem?

J. Robert Olian:

Not that problem, but you still have problems.

Thurgood Marshall:

That is on the case right now?

J. Robert Olian:

Yes, Mr. Justice we are talking about the broad application of this rule and I am trying to suggest that consistent with standard set forth by this Court Massiah should not be applied retroactively and I have been trying to suggest why it should not be.

Warren E. Burger:

Thank you, Mr. Olian.

J. Robert Olian:

Thank you.

Warren E. Burger:

Do you have anything further Mr. Rutledge?

Neil P. Rutledge:

No, Your Honor.

Warren E. Burger:

Mr. Rutledge, you acted at the request of the Court and by appointment of the Court and we wish to thank you for your assistance to us and of course assistance to the client you represented.

Neil P. Rutledge:

Thank You, Your Honor.

Warren E. Burger:

The case is submitted.