Moore v. Illinois

PETITIONER:Moore
RESPONDENT:Illinois
LOCATION:U.S. Court of Appeals for the Second Circuit

DOCKET NO.: 69-5001
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Illinois

CITATION: 408 US 786 (1972)
ARGUED: Jan 18, 1972
DECIDED: Jun 29, 1972

ADVOCATES:
Elmer Gertz – for American Civil Liberties Union, Illinois Division, and Illinois Committee for Abolition of Capital Punishment
James J. Doherty – for petitioner
Thomas J. Immel – for respondent
Willard J. Lassers – for American Civil Liberties Union, Illinois Division, and Illinois Committee for Abolition of Capital Punishment

Facts of the case

Question

Audio Transcription for Oral Argument – January 18, 1972 in Moore v. Illinois

Warren E. Burger:

We will hear arguments next in number 69 – 5001 Moore against Illinois.

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

James J. Doherty:

Mr. Chief Justice, may it please the court.

In the prosecution for murder, the state concealed six items of exonerating evidence and used a weapon that was not connected with the petitioner Moore or the offense, that announced him as a bad man generally and the jury that had been selected in violation of Witherspoon standards found petitioner guilty and fixed his punishment of death.

This case begins at 10 PM on Wednesday, April 25, 1962.

A bartender in Lansing, Illinois ejected a profane customer on this tavern.

At 10:55 PM that customer rushed back in with a twelve gauge shot gun and shot him in the heart and killed him.

Two days later in the nearby Tavern a man known only by the nickname Slick bragged that he had shot the bartender in Lansing.

Trial was held 25 months later.

Two state witnesses identified petitioner Moore as the assailant.

Two of his employers testified that he was at work 50 miles North of Lansing, Illinois in Wilmette Country Club until after midnight.

Where is Lansing?

James J. Doherty:

Lansing is south your honor.

North of Chicago?

James J. Doherty:

Chicago, Riverdale, Dolton, South Holland, Lansing.

About 50 miles south of Chicago?

James J. Doherty:

Well, I do not know your honor.

I would say it about the 27 to 30 miles and a little bit East.

This is far southeast you should not get to (Inaudible) and Wilmette is way North and this was before we had that Dan Ryan Expressway opened up.

You could not have got there 50 miles except by going through small side streets of that, but nothing open, of course the auto drive is open.

Now, opposing those two people that said that he was the assailant, that these employers and verified by the work records, he was paid overtime, worked till after midnight that night.

The most damaging evidence against this man Moore on the testimony of state witness Virgle Sanders.

Virgle Sanders identified the petitioner Moore as a man that he knew, a man that he had seen several times before, but knew only by the nickname Slick.

He testified that on Friday afternoon, 1:30 PM, that is less than 40 hours after this killing, this man Slick was in the Tavern, Ponderosa Tavern and said to him “Hey, Virgle, it’s Open Season on bartenders.

I shot one in the Lansing on last Wednesday night.”

Now five of the concealed items of exonerating evidence involved Virgle Sanders.

They were uncovered in the post conviction hearing that took place on January 1967.

Friday night, I mean Friday afternoon, April 27th at 1:30 PM that is the bragging incident.

Really the voluntary confession of this man Slick that he killed the bartender.

Next day, Saturday, a Lansing police are in that Ponderosa tap in their clock in to a man named William, Leon Thomson.

James J. Doherty:

“Did you hear about it?”

“Oh, yes he heard about it.”

“Can you identify Slick?”

“Yes, I can.”

Monday, April 30, 1962 8:50 PM, Sanders is in the police station of Lansing and he is giving the statement and tells the police that he first met Slick about six months ago.

Now, that would make it.

November 1, 1961 in Wanda and Del’s tavern.

Of course the police would not know the significance of that after six months later but that statement is one of the things that was withheld from the trial lawyers.

Immediately, after getting his statement the Lansing police get their shotguns and automatic weapon and they go and they raid Wanda and Del’s tavern looking for the man called Slick and he was not there.

They talked to the owners.

His name is Delbert Jones.

“Do you know him?”

“Can you identify him?”

“Yes.”

And that is the second thing that these trial lawyers do nothing about it.

That is Jones, Delbert Jones?

James J. Doherty:

That is right.

He can identify it.

Probably hauling around this tavern.

They said “Do you know who is Slick?”

James J. Doherty:

Yes, absolutely.

Didn’t you say do you know Lyman Moore?

James J. Doherty:

No, sir.

The name Lyman Moore does not come in to this yet.

This is only a man known by nickname Slick and that is all.

Now the Lansing police after this raid, let us make at May 1, they have an immediate suspect James E. Watts, James E. “Slick” Watts.

Nobody knows about that until right near to the end of the post conviction hearing when the state brings it out.

And that’s January 1967.

So that is the third thing that was withheld from this trial matter.

They did not know that they had an immediate suspect named James E. “Slick” Watts.

Why do you –James E. Watts has a nickname Slick?

James J. Doherty:

That is right.

That comes right from the Chief of Police.

The Chief of Police testified that he assigned Lieutenant Turbin to look for James E. “Slick” Watts.

Now, where he looked for him, I do not know.

But they have never found him.

Not even to this day as I stand before you now in 1971 or 1972 Excuse me.

That is the third thing.

Now on May 1, 1962, the Lansing police, let’s just recapitulate little bit.

They know three people who all know each other and who all know a man named Slick and that’s Virgle Sanders, William Leon Thompson and Delbert Jones, the owner of Wanda and Del’s.

Six months later, petitioner Moore is arrested and the Lansing police photographed him, take the photograph over to William Leon Thompson’s home.

That ain’t Slick.

It does not resemble him.

Tells that to Lieutenant Turbin Sergeant Bandernerd (ph) and they do not tell that to anybody.

Excuse me, they do.

They tell it to the prosecutors.

They don’t tell it to the defense lawyer.

And right after they took petitioner Moore in to custody they get a report and a kick back sheet from the FBI which shows that petitioner Moore was in a federal penitentiary from February 18, 1957 to March 4, 1962.

Now, you put that together with the statement that he originally gave and what do you find out that it is impossible for him to be the man known as Slick that Sanders first met in Wanda and Del’s owner about November 1, 1961.

Well, was he in prison at the time of the trial?

James J. Doherty:

No, he got out March 4, 1962.

And when was the time?

James J. Doherty:

April 25, 1962.

And the statement had to given after that?

James J. Doherty:

The statement given by Virgle Sanders was given on April 30, 1962 at 8:50 PM. Six months ago and where does that put him?

When I got this on post-conviction I asked Virgle Sanders, “Are you sure that you met this man Slick before Christmas?”

Yes, I do not like this answer like you know two, three months, four months, five months, rough guess, now ought to pin him down and I asked him, “Are you sure it was before Christmas?”

“Oh yes, I am sure.”

And silly repeated, give him a chance to get off the hook, “Are you definite that it was before Christmas?”

“Oh, yes” in this record.

So, this fellow Slick must have been the copy of about a different crime?

James J. Doherty:

No, the man that bragged, the man that voluntarily confessed to this crime is James E. Slick Watts, a man that chief had assigned to look for him and the man that they said at trial was petitioner Moore.

So, at the time of the arrest, they know from the kick back sheet from the FBI that it is impossible for this man to be the man that is in Wanda and Del’s on November 1 and they also in addition to that know that know that William Leon Thompson has already told them that he is not the man.

I understand that at majority everything you told us so far, you telling us as information that was not available to defense counsel at the trial.

James J. Doherty:

That is correct.

And none of this what you are talking about got in to evidence at the prior of trial, is that right?

James J. Doherty:

That is right, got into the post-conviction.

Yes and your argument is that this was information.

Perhaps, exculpatory or nothing of Moore.

Now that the prosecution should have made available to the defense counsel.

James J. Doherty:

That is right.

Even though, and you also telling us defense counsel had no knowledge of any of these things at the time of trial?

James J. Doherty:

It is impossible for him to have knowledge of four things.

No, what I want to know is are you telling us that the defense council had no knowledge of any of this things at the time of trial?

James J. Doherty:

That is right.

This was not developed until January 1967 and the hiring a post-conviction, long after the filed trial was on in the month of May 1964 your honor.

And you tell us earlier that you say the name was Sanders?

James J. Doherty:

Virgle Sander.

It was Virgle Sander’s testimony that identified Moore as Slick who committed this.

James J. Doherty:

That is right, that is right.

Exactly, and that is the most damaging testimony of all.

Warren E. Burger:

William Leon Thompson does not turn up anywhere until the post-conviction hearing.

Is that right?

James J. Doherty:

That is correct your honor and neither is Delbert Jones.

At the post-conviction hearing, we show a picture of James E. Watts to Delbert Jones and William Leon Thompson they both say that Slick.

Warren E. Burger:

And were they both in the tavern at the time of the alleged crime?

James J. Doherty:

No, your honor.

But the different tavern altogether where this confession takes place by a man called Slick.

Different tavern altogether in nearby town.

Warren E. Burger:

Clear up this the tying between those things if you will?

James J. Doherty:

You mean the?

Warren E. Burger:

Between what Thompson said.

James J. Doherty:

Well, they are looking for a man named Slick.

They have an immediate suspect James E “Slick” Watts, the Lansing police, is that right.

Now then, six month later when they arrest petitioner Moore and take his photograph, they take it over to the home of William Leon Thompson.

That is the man they talked, Saturday morning who said, “Yes, I know Slick.

Yes, I can identify Slick” on Saturday morning April 28, 1962.

Now, November 2nd or 3rd they go over his home with the picture of the petitioner Moore.

They say, “Here you are.”

He says, “That is not Slick.

That is not him.”

Now, they did not tell anybody that, they did not tell anybody.

Thurgood Marshall:

This information was in the hands of the prosecutor as contrasted to the police?

James J. Doherty:

Well now, I would say this.

There are two things that the prosecution knew definitely about and one is that incident where William Leon Thompson said, “No, that is not Slick” He does not resemble him.

Lieutenant Turbin testified at a post conviction hearing that he told that to the prosecutors.

He related that event to the prosecutors.

So they certainly have knowledge of that.

There is another thing that we are coming to now that they had knowledge of because it took place right in front of their eyes.

Before we get to anything further, I am not clear about this Sanders testified as per the talk that he was the present in the tavern where they brag that made that I killed somebody in Lansing.

Is that right?

And then, he then identified Moore as that somebody who in that Tavern bragged that he had killed someone in Lansing.

James J. Doherty:

That is right, that is exactly right.

He said, “I know this fellow.

I have seen him a couple of times.

I only knew him by nickname Slick.”

And he said, “Hey, is open season on bartenders.

I shot one in Lansing last Wednesday night.

Now, this is Friday afternoon.

This is 29 hours and 35 minutes later.”

James J. Doherty:

Sure his alibi and his work record alibi covered that but who is going to believe it when the man says “I know him.”

The jury is going to believe who?

They are going to believe this man Sanders.

Now, on post-conviction, when I show photographs to Delbert Jones and Leon Thompson they say, “James E. Watts is the man called Slick.

That is Slick.”

And when I show the situation, “Are you sure it is before Christmas?”

“Yes”, yes, we are sure it is before Christmas.

I say to Sanders, “now look, if you would have known that this man Moore was in the federal penitentiary until March 4, 1962, would you have identified him as the man that you knew as Slick?”

And his answer was “If he is in jail, it would be impossible to be the same man.”

Now, that does not take a great deal of genius for me to that.

If they would had that information the trial lawyers, they could have done the same thing.

They could have impeached Virgle Sanders and Virgle Sanders is a material witness as far as the prosecution is concerned, why is not that evidence, that was withheld that would have destroyed the material.

Did Moore’s attorneys know where he was?

James J. Doherty:

Who?

Yes they did.

They did not attempt to impeach Sanders.

James J. Doherty:

They did not get the statement.

That is what they testified too under all through the post conviction hearing, they did not get that statement 16.

The statement is what had referred to the first meeting on November 1, 1961.

James J. Doherty:

That knows words but yes.

About six months ago.

In other words, when they first interviewed the man, they took a statement about sometime before the trial?

James J. Doherty:

Right.

How long before the trial?

James J. Doherty:

On April 30th 1962 at 8:50 PM and trial is on May 1964 25 months later.

And you had no access to that statement until 1967 as a post-conviction?

James J. Doherty:

I mean afterwards, well, I certainly had found like a discovery on these people.

I got everything in their file.

But you did not have —

James J. Doherty:

They did not have and they testified, and they did not see it, the trial lawyers.

So defense counsel did not know that Sanders had told the police that Sanders has met Slick six months before?

James J. Doherty:

Precisely.

Mr. Doherty, did Moore’s defense lawyers at the trial cross examine Sanders on the length of time he had known the defendant and that sort of thing?

James J. Doherty:

No, your honor, they did not and you know that is dangerous.

They might have developed this on their own I take it had they thought to cross examine.

James J. Doherty:

When a man testifies that he knows this man, that is bad enough about making it worst and driving it deeper in, by enquiring how long did you know.

Well, it is a calculated risk but some would have felt it was —

James J. Doherty:

Well, you see with the information that I have now and I had at post-convictions, then it is sensible cross examination but without information that is the most dangerous thing that I could imagine to ask how long you know.

Warren E. Burger:

Was there anything at the time of trial — now I am putting you in the time of trial, was there anything at the time of trial to bring to the notice of the prosecutors that the six months factor was significant?

None of you really knew that until the post-conviction hearing did you?

James J. Doherty:

Well, the prosecutor testified at post-conviction that he did not remember whether statement 16 from the Lansing police department file was turned over or was in his file.

Now, he never said that he gave it to the trial lawyer, defense lawyers but he said, “I do not recall.

Mr. Doherty, I will ask you this way”.

If it was in my file, than they saw it because I showed them my entire file.

That is how you put it?

Is that your question precisely?

Warren E. Burger:

No, my question does a little beyond that and that is, I will put it in another way.

Until you developed the information about this man being in prison until what time?

James J. Doherty:

March 4, 1962.

Warren E. Burger:

Until that evidence came out, the six months statement did not have any particular significance did it?

James J. Doherty:

Well, in my mind it should have your honor, it should have had particular significance in November 1962 when they are going over and they are talking to William Leon Thompson because by then they have the kick back sheet from the FBI and the FBI shows it and all you have got to do is just look at it.

Six months ago from April it makes it November 1, 1962 when the FBI report shows did not get out until March 4, 1962.

Warren E. Burger:

Whether you are speaking now was the police officers who have the interview rather than the prosecutor are you not?

I am just trying to get the difference of between what was known to the prosecutor and what was known to the police.

We do not know yet whether that is important.

James J. Doherty:

Well, I say that is imputable to the police under the word of Barbee, and that is a law of question.

I have not talked about that.

Let us get to the last thing and that will help a lot.

Here they are now.

They know all these things and yet they do not bring in Virgle Sanders to look at this man.

James J. Doherty:

They do not bring in Delbert Jones.

They just close their eyes for 18 months to the truth.

Your honor, as he told us time and again, a trial is a search for the truth.

They close their eyes to the truth.

When Virgle Sanders first saw petitioner Moore, the day before he testified at the trial he takes a look at it and he says, “The guy that I knew as Slick looked to be about 30 or 40 pound heavier than this guy.”

Now, that was in the presence of the Lansing police officers and the prosecutors and the Lansing police officers said, “Well, you know how those jailhouse beans are.”

That is item five and that is actively encouraging Virgle Sanders to falsely identify the petitioner Moore as the man called Slick and that was in the presence of the prosecutor.

So the prosecutors know now of two things.

They know of that because they were there and they know about William Leon Thompson saying “No, that is not Slick”.

And at the post-conviction hearing —

Do you think the prosecutor knew about Sander’s prior statement when they turned the file, their file over to the defendant trial counsel?

James J. Doherty:

I can’t —

What?

James J. Doherty:

When he turned it over to the defense lawyers that is in dispute.

On the post conviction hearing they said that he did not and when he testified he says I do not remember who was in there.

Well, I know but did the prosecution turn its file over or not at the trial?

James J. Doherty:

I say no.

Well, you say no, but let us assume that that is not right that they did turn that file.

James J. Doherty:

Okay, fine.

The fact is that the Sanders statement was not in the file.

James J. Doherty:

I do not say that, it might have been.

You want to assume that they turned it over?

It might have been.

Perfectly willing to stipulate to that but one thing we know is this that is all that could have been in there, not the other four thing because they were not reported.

Well, I understand that but I am just trying to enquire about this one item.

James J. Doherty:

The statement?

Yes.

James J. Doherty:

I think it was in there.

The prosecution testified that they turned the file over, did not they?

James J. Doherty:

That is what they said, that is what he said, yes but the defense lawyers denied it.

James J. Doherty:

He said he turn it over to one of the defense lawyers.

And what did the Supreme Court – what did the state court fiind?

James J. Doherty:

They said there was no request or suppressed information during trial and the record reflects that the prosecutors showed his entire files to and that is what you are bound by now, that file.

So, they did turn the file over?

James J. Doherty:

I do not say so but the —

The court found it.

James J. Doherty:

That is right, they found it and they found that there was no request during trial for the suppressed information.

Well, there is no independent evidence anywhere that the prosecution knew of the statement by Sanders, is there?

How do you know?

James J. Doherty:

The prosecution knew of the statement.

Or we have to assume they knew of the statement.

Because that was in their file or not?

James J. Doherty:

No, all we got to do is take a look at the way in which he questioned Sanders.

The prosecutor questioned Sanders.

Actually put him on a cross examine, that is what he did.

So, the file did not contain the statement here and it was then deliberately withheld.

James J. Doherty:

I am not going to say that.

I don’t have to be that extravagant your honor.

If you are going to rely on the statement you have to –[Crosstalk]

James J. Doherty:

That is only of five.

I understand that but you are relying on that as part of the trial.

James J. Doherty:

That is right.

And this is not going to — if they did not get it.

They did not.

James J. Doherty:

They testify that they did not and the most that the prosecutor testified to a post-conviction was, well, he does not remember was in there if it was in there, then they got it.

And that is the record before you know.

Mr. Doherty, your time is running, when are you going to get to the gun.

James J. Doherty:

Yes, the gun, very good for the gun.

All right, the gun.

Now, they introduced a 16 gauge gun, bill of particulars, phase two of the abstract.

James J. Doherty:

“What kind of a gun killed this man?”

“12 gauge” answer by the prosecutors that tried his case, a 12 gauge.

They have in their file at all times, a report from the Chicago Scientific Crime Detection Laboratory by Sergeant Benz (ph) that the wadding dug out of his chest that was siezed from 12 gauge-shell.

I have two little pillboxes here and I am telling you, you can put a 16 gauge-shell into a 12 gauge chamber and it is a little danger, it is a little loose, you should not do it but no way in God’s world can you put a 12 gauge-shell in to a 16 gauge.

It is the impossible.

You could not do with the hydraulic press and if you can, I will let you shoot me with it.

Now, that the 12 gauge gun and you know the (Inaudible) had nothing to do with him.

It came from the back seat of the car owned by Barbee, the sort of girl was found under the bed in Barbee’s home.

So therefore, what you got at most is propensity evidence of another and in Spencer versus Texas in the dissenting opinion and all of the authority cited in there they said, “You cannot use propensity evidence.”

They did it.

They denounced this man a bad man generally.

Jim Flemming stood in front of that jury and he said to them, “This is not the gun.”

No, question about the folks this is not the gun.

Now, they say it could be.

But Jim Flemming said this is not the gun.

No question about the folks.

But anybody that is with a man who has this kind of gun and look at those shells, he deserves a death penalty, that is what he told them that and that was wrong, he should not have done that.

Warren E. Burger:

Alright, you could have a little left for rebuttal Mr. Doherty.

Mr. Immel?

Thomas J. Immel:

Mr. Chief Justice, and members of the court.

I would like to say as a prosecutor from the state of Illinois that as the evidence in this case remotely resembled the characterization which has been described to, and my colleague and friend.

I would not have the courage to stand before this court this morning.

Counsel has been involved in this case for considerable length of time and my fair judgment as a attorney he is more than a legend.

And for that reason I am going to take the liberty of restating the facts as I truly think they are reflected in the record.

And I only turn the court to April 25, 1962 when a gentleman who I contend was Lyman Moore and a companion who was a dark haired man wearing a mustache went into a Tavern in Lansing and where the petitioner Lyman Moore was subsequently objected for profane language who returned approximately one hour later and at time later shot gun across the bar and terminated Mr. Bernard Zitek.

Now, not mentioned this morning at all is the fact that two people, one the cocktail waitress Patricia Hill from a distance of six feet observed this whole incident twice.

She observed the ejection, she observed the subsequent shooting an hour later and she said at trial the Lyman Moore was the gun man.

Lyman Moore was the man who ejected an hour earlier.

Another patron of the Tavern, a man by the name of Henley Powell was present in the Tavern at the time that the shooting took place.

He is not able to tell us whether Moore was the man ejected from the Tavern, he may not even have been there at that time but Henley Powell was playing pinochle with a few other gentlemen around the table and his testimony is pertinent in another point here.

Thomas J. Immel:

Playing pinochle, severed the fate of many pinochle players he cannot beat, so he lays his hand down.

He is sitting out of the the hand and he looks toward the door and what does he observe that Lyman Moore, who he identifies at the trial, come through the door carrying a shotgun, walk up to the bar and killed the bartender Mr. Zitek.

Henley Powell pursued Lyman Moore out of the Tavern and was confronted with him in a well lighted street where upon Lyman Moore told Henley Powell according to Mr. Henley Powell “get back or I kill you too.”

Now, these two people were not discussed this morning but this was the state’s case and chief, this was the eyewitness to the killing.

Now, two days later in another Tavern call the Ponderosa Tavern no way related to the Tavern where the killing takes place, Vigle Sanders is having a beer with the gentlemen who he at the time is identifying as Slick and at trial says he knew as Slick and this gentleman says to him, “It is open season on bartenders, I shot one over in Lansing.”

Now, totally unmentioned in any the petitioner’s brief and not mentioned here this morning is, there were a couple of other people there when that conversation took place.

One of whom was the bartender, skinhead Joyce.

Now, skinhead is standing behind the bar and Vigle Sanders approaches him and said, “This gentleman would like to have a ride over to Harvey, can we arrange that?”

And Mr. Skinhead Moore, Joyce rather testifies at trial that, “Yes, he arranged for the ride that Lyman Moore was the man in the bar conversing with Virgle Sanders.

Now, they need to get a ride from Mr. Moore who they contacted, they contacted the owner of Ponderosa who is also in the Tavern at the time and he says, “Can you arrange for a lift for this fellow here?”

And his companion who again by the way is the dark haired man wearing a mustache, same description we have of the companion of Moore at the time he is ejected from the Tavern, okay.

What happens then?

Mr. Fair accommodates these two gentlemen and drives them all the way to Harvey, in the course of which they stopped twice in two different tavern and enjoyed themselves as companions.

Now, Mr. Fair testifies at trial that Lyman Moore is the man that he accommodated and he is the man who is the Ponderosa and he is the man he drove to Harvey.

And that furthermore in the course of their automobile ride and this time his testimony he is referring to them as Moore and Barbee, because they are on the first name basis at this point or second name basis and I knew that.

At this point he says during the course of the automobile ride one of them and it is not clear from the record which said, “If we have to have that trouble with that bartender in Lansing we would be in this spot,” testimony that of Fair, “Well, if we had to have a trouble with the bartender in Lansing we had been alright,” that is what he said.

Now, Mr. Fair was called to testify at trial and he testified that Lyman Moore was the man that went from him from the Ponderosa, after he request of Joyce, the bartender and he is the man that he drove to Harvey.

Now, that tells me that Virgle Sanders statement that Lyman Moore was in Ponderosa with him has been corroborated and that any misidentification or confusion of identities that Virgle Sanders is subsequently trapped with because of his murky recollections of phantom named Slick was yet to be underground by anybody and the police obviously abandoned once they had three, two eyewitnesses to the killing and three witnesses to the brag.

It tells me that Vigle Sanders testimony is accurate, insofar as it purports to reflect the conversation that he had with Lyman Moore and that it is inaccurate insofar as he purports to tell us that Lyman Moore and a fellow by name is Slick are same people, they are not, Slick was a — If Lyman Moore is Slick it is impossible.

Slick is a fellow that this gentleman Sanders met in Wanda and Del’s back in November sometime I suppose in 1961.

Lyman Moore is in the federal penitentiary that time, a bank robbery charge.

Warren E. Burger:

Did the bartender hear the brag?

Thomas J. Immel:

No, he did not know.

Neither one of them testified to the contents of the conversation.

Warren E. Burger:

Neither of whom?

Thomas J. Immel:

Neither Joyce or Mr. Fair who corroborate —

Warren E. Burger:

Only Sanders?

Thomas J. Immel:

Only Sanders testifies as to what was said and that has never been questioned.

Mr. Doherty today is asserting that that statement was simply made by another man not that the statement was not made.

The verbiage of the conversation is beyond dispute.

Thomas J. Immel:

What is undisputed is that who said it, I do not think it is undisputed, I think it is perfectly clear from the records themselves.

As to when and who said it?

Thomas J. Immel:

No, it was said in the Ponderosa Tap and there is no dispute up to that, it was said, two day later on April 27, 1962 no dispute.

Thurgood Marshall:

Did Sanders say that Slick made this brag or did Lyman Moore made it?

Thomas J. Immel:

He said that the man he was in the Ponderosa with who he knew as Slick made it.

Now, the man he was in Ponderosa with was Lyman Moore and Slick was ever there.

Thurgood Marshall:

First of all it could.

Thomas J. Immel:

A man he knew as Slick.

He mixed up Lyman.

He evidently met Slick in Wanda and Del’s and everybody down at Wanda and Del’s seems to know Slick and so there is no reason to believe that this gentleman would have not met Slick down at Wanda and Del’s.

He is simply confused of Slick with Lyman Moore.

And the question is of course then what have we —

Thurgood Marshall:

You have confused me know.

Was Slick and Lyman Moore there?

Thomas J. Immel:

No.

Thurgood Marshall:

There is only one person.

Thomas J. Immel:

One person.

Thurgood Marshall:

You said it is Slick?

Thomas J. Immel:

He says, a fellow he knew as Slick and he looks at Lyman Moore in the court room at the trial says “this man.”

Thurgood Marshall:

No, I am talking about what he reported to the police?

Thomas J. Immel:

Well, he reported to the police, he reports that the fellow by the name — a man he knew as Slick, okay.

Lyman Moore of course at that time is not even arrested, it is months later that Lyman Moore is arrested.

Alright now, I have hope that I have made clear to the court what transpired in the Ponderosa because that has never ever been briefed by petitioner and certainly was not stated here this morning.

He knows two witnesses to that conversation have simply escaped the attention of petitioner and I think that it cast — an unfortunate cast on the entire case.

Now, in October of 1962 some months later, while this fruitless search for this ubiquitous Slick has been going on and he hasn’t turned up, two Chicago policemen, another police department, another jurisdiction are on patrol and they are fired upon or at least shot a fire from 1957 for an automobile.

They approached the automobile and two men plea from the car, it staked out.

The car is search, a 16-gauge sort of shotgun is retrieved from the back seat of the automobile and documents in the car bearing the signature of Jerry Barbee are found.

Okay, the car is staked out and wee hours of the morning, two men come back and attempt and get to get into the car and at that point they are apprehended.

Alright, who is apprehended Lyman Moore and Jerry Barbee.

Two men referred to by name in the testimony of Mr. Fair.

Thomas J. Immel:

Jerry Barbee wears a mustache and has dark hair.

He has never tried for the murder, Bernie Jack (ph), he wasn’t there when it happened.

Okay, interesting thing about this shotgun, very interesting thing about the shotgun recovered from the car.

This arrest in October resulted in two trials for two different charges.

Moore and Barbee went to trial together on an armed robbery charge that took place in July reported opinion in the Illinois Supreme Court affirming the conviction 35 Illinois second cited in our brief this court denied certiori, subsequent litigation of federal courts again wound up in another dismissal or denial of certiori by your honors.

In that case the previous relationship of Lyman Moore with his 16-gauge shotgun is rather clearly outlined that he and Mr. Barbee and the third gentleman staged a broad day like hovering up over a chain store supermarket and the same gun was admitted that that trial would as just said have been a shotgun or not.

In any event, there had been a previous tie up and it had a relevance in another context besides this case.

This gun was used in evidence against the —

Thomas J. Immel:

Use against Mr. Moore twice.

Moore twice for different?

Thomas J. Immel:

Two different crimes.

Unrelated?

Thomas J. Immel:

Two were related to the crimes.

One of which the gun was used and the other which was not?

Thomas J. Immel:

No, it was used in both cases.

No, I mean the gun was use in the commission of the alleged into the commission of the —

Thomas J. Immel:

Could very well have been used in this crime and there are ways I would like to develop.

I have an answer to juries comment about the a bill of particulars and I want to — in any event we are then try to defense of this case which has been characterized by one dissenting justice in the Illinois Supreme Court by the petitioners unimpeached and that is that an alibi provided by two witnesses, the first of whom is a gentleman named Alex Cockstel Harvey or Cockstel Harvey (ph).

He is bartender at a suburban country club and he testifies that the pay records indicate the petitioner was paid for working as a cocktail waiter that night and from that he construes that he must have been there, although he cannot testify and it is determined that he cannot, he actually said, Lyman Moore was there, he did not see him.

At cross examination, he is confronted with the fact that he had previously made a statement to the police that he simply had not seen Lyman Moore that night and I think his testimony is taken for what it is worth, this is worth little but in any event Herbert Anderson the manager of the country club is then called to testify and he tell us that their pay records reflected Lyman Moore, who was paid for that evening and that he did not see Lyman Moore that evening because but he sure he must have been there.

So under veracity of the bookkeeping entry which was not admitted in evidence the books and records were not admitted that is the alibi.

Now, interesting thing about the alibi that ought to be brought to the attention of the court in as much as it is characterized by the defense is unimpeached and the valuable and characterizing in the dissenting opinion in the Illinois Supreme Court which I certainly have cognizance of, as unimpeached.

The same alibi was introduced at the armed robbery trial which I have just referred to.

Three more eyewitnesses, in other words had misidentified Moore there for a grand total of five in this case and three in that.

Establishing, I suppose once and for all, that Lyman Moore is unidentifiable in the state of Illinois but in any event the alibi is presented in Illinois Supreme Court in that case as an answer to the conviction and the Illinois Supreme Court in that decision was unable to reach the conclusion that the alibi was unimpeachable and was willing to leave it as having been a question for the jury to decide.

I simply point that out because the same justice that dissented in this case and wrote the majority opinion in that case is the same judge.

It is different handling in the same testimony in two different cases.

This in fact that did not occur in the same night —

Thomas J. Immel:

No, it was the same —

Then how do you mean the same alibi?

Thomas J. Immel:

The same exact alibi testimony was offered that Lyman Moore had been at work and that the work records which, I mean, I am sorry, it has got different dates but the same testimony that is the work records reflected, he was here, he was paid.

Therefore he must have been here.

Same place?

Thomas J. Immel:

Yes, at the Westmoreland Country Club of Wilmette.

I would simply call the court’s attention to the very last page of the Supreme Court opinion in Illinois in 35 second for that because it is interesting to compare the characterization of unimpeached in that case did not work but it is supposed to persuade here and I do not believe it does.

Now, what transpired at the trial with reference to alleged suppression of evidence is I think hotly disputed in this case.

First of all let me say this in each on every occasion, the state witness was asked on cross examination by the defense, whether he had made a statement to the police, he answered either affirmatively or negatively and when he answered in affirmative, the statement was tendered from the prosecution’s file.

There were three specific instances of that witness Hill, witness Powell and witness Fair, they were all asked that they made statements and they all said yes and the statement are all tendered.

Virgle Sanders was the only one who was not asked by the defense counsel if he made the prior statement.

Now, please picture in real what is going on the court of Illinois in 1962.

The prosecutor does not have the statement in this file.

Testimony of Virgle Sanders has put on by the prosecutors developed in two conversations in the library on the second floor of the criminal court (Inaudible) work.

And on that on the basis of those interviews not any witness statements they were in the prosecutors file.

Virgle Sanders went on at the state witness but in any event.

(Inaudible)

Thomas J. Immel:

The prosecutor’s file was tendered to the defense attorney.

He never discovered it in the file.

The prosecutor had no recollection on being in the file according to his testimony.

He is not considered to know about the statement before at the time —

Thomas J. Immel:

I think the record of his testimony for post conviction hearing must be read to conclude that, he simply did not know about the statement, it’s perfectly clear from the testimony at the trial, perfectly clear I think from Mr. Flemming’s testimony for post-conviction hearing that he put Virgle Sanders on the stand as a state witness based on his conversations with him down in the library where we conduct interviews with potential witnesses in the state in that county.

Now, if the same thing had happened with Virgle Sanders, that it happened with all other witnesses that is at the time of he is cross examined by defense counsel, he would ask the same question of Sanders that he had asked to all other witnesses.

Sanders would have said, “Yes, I gave a statement to the Lansing police” but he was never ask that question at trial and I want to make that perfectly clear.

At the very first instance he was asked that question at the post-conviction hearing he said “yes” and the statement was then tendered, of course it didn’t turn it up in the mean time.

My point is simply this as a prosecutor in Illinois and sitting there if the defense counsel had asked Virgle Sanders “did you give the statement to the police?”

And he said “yes” one of two things would have happened in this case, either the prosecutor would have pulled the statement out of the file if he had it or he would have turned with a horrible grimace on his face that the police man at the table and said, “Where is the statement?”

“I have no statement.

”Neither one of those two things happen because the question was never asked.

So no one ever got put on notice but all his business about the statement and the six months all could have been cleared up, if the routine question always asked and I would simply ask that this did not get asked.

Thurgood Marshall:

But is it routine in Illinois for the prosecutor to ask his witnesses if you made the statement to the police before he was put on the stand.

Thomas J. Immel:

I frequently ask them that and there are others who frequently not ask that.

Thomas J. Immel:

It’s quite conceivable that the question did not get asked.

Thurgood Marshall:

You did not think the prosecutor knew that but how did the prosecutor get them as a witness?

Thomas J. Immel:

How did he get him as a witness?

Thurgood Marshall:

Yes.

Thomas J. Immel:

The brag that took place.

Thurgood Marshall:

And where did prosecutor find it out from?

Thomas J. Immel:

I presume the Lansing police found that out somehow, I do not know, I mean they are in the same community and it’s a small community and I think something like that would certainly have traveled to the great find and by the way bartender got killed here and that travels fast to that – it was a great line I suppose at every level of society and there is one there and I think when a comment like that would be made in the bar two days after afterwards, it found it’s way back to the ears of some police official and followed it up.

Thurgood Marshall:

Likewise whether or not the prosecutor did not get the information from the police.

That is my question.

Thomas J. Immel:

My answer to your question is that there is no way to tell from this record.

I cannot say no and I cannot say yes.

I do know Jim Flemming, if he had a statement in this file he would have given it to him.

Thurgood Marshall:

Which statement?

Thomas J. Immel:

If he had known about it he would have gotten a copy of it.

Thurgood Marshall:

(Inaudible)

Thomas J. Immel:

Well, it was verbal then of course we do not have a problem because this one was a written statement than the verbal.

We presume the man had a conversation with the police because it was the police that got him to the prosecutor.

The prosecutor is always interviewing a man who gets ready for trial he is not at that point interested in knowing about statement that he has made to the police, where he is asking that what happened, we are going into the court argument.

You see I am getting it Your Honor.

It is just not the kind of the new query which is going to go on at that stage for preparing the man for trial.

So I do not think that there is any way we can say from this record that the prosecutor had any kind of prior notice to the statement.

I wish he had, we would not be here today.

(Inaudible)

Thomas J. Immel:

Yes Your Honor, two cases Wilk (ph) and Moses have virtually, incidentally adopted.

Did you, back in 1962?

Thomas J. Immel:

Yes.

Well, I am sorry, Moses, yeah at that time right, I was just getting my dates.

I just wonder since you had the rule, the witness almost seeing that the prosecutor is apparently trying to find out whether the witness is trying to mean, he had made any statement.

Thomas J. Immel:

Yes but you see the thing is he might have said that Virgle Sanders you talk to him, did he made a statement to talk to the police and yes but at the point that this man is the first time we ever know of Virgle Sanders getting together with the prosecutors is in the library in the second floor, the day before he testifies.

Well, my question is really why I should propose, as a routine when they get together in the library with the witnesses he was trying to use and then he might, he is going to use them in some inquiry, whether he had made any statement?

The prosecutor would like to say to him, did you make any statement, did he find any?

Thomas J. Immel:

As frequently as breakdowns, a communication can occur in a larger of an area it is nevertheless surprising and I have even found myself in this position many times, how you will simply take up with the police give you.

They give you a list the statement of witnesses and how easily you slide in to the presumption this is it.

Now, that is a simply of track of life and when you have a heavy trail load.

In a situation you try case but to see your fans, family, although that would have been the case and therefore you are seeking in the near future.

But I am simply stating to the court at this time that the prosecutor had he known about a written statement certainly would have pursued the matter and certainly at that time would have been unnoticed because by that time he has Lyman Moore grab sheets (ph) from the FBI.

He knows that Lyman Moore was in the penitentiary if he has in his hand a written statement from Lyman Moore that says he met the man six months ago, isn’t he certainly got to clear it up before he lets him go on the stand.

It is clear discrepancy, of course the simple answer to it all is that Lyman Moore is not Slick and that he is not the man that Virgle Sanders met in Wanda and Del’s back in November or whenever it was in 1961.

It is a simple mistaken identity situation and to that extent Virgle Sander’s testimony is potentially impeachable as to whether or not he can accurately recall who it was that he talked to in the Ponderosa.

And it is material only on the aggravation or penalty phase of this case, if you will because it was a brag that’s an issue here, that the brag did not take place.

Lyman Moore cannot be nearly as bad a man as you might presume.

And that is why this would naturally be a relevant question but two other people that completely rehabilitate in the course of this trial, any potential impeachment of Virgle Sander’s testimony with reference to who he talked to.

He might have mixed him up with Slick, he might have thought he met him before, and obviously as far I am concerned, I am completely wrong about that.

But then he was talking to Lyman Moore is established beyond any doubt.

Not a reasonable doubt but any doubt.

And the testimony of the people who identified him they are Fair and Joyce, the people who have spotted him in the Ponderosa, a place in there is not impeached in anyway.

He was referred to as I say by name in the testimony of Mr. Fair.

Now, Henley Powell, I would like touch on this.

Henley Powell as you recall, the gentleman was playing cards and he witnesses the shooting.

When the police went out there that night and the officer name Koppitz apparently drew a rough diagram of the premises, that is in the record.

He drew a card table and he placed Mr. Powell at the seat and Mr. Powell said he was identified and he was sitting at the time which would have placed him roughly looking toward you Mr. Justice Blackmun, the door being somewhere over toward my back.

Now, it is the contention of the petitioner that this diagram which has did not come to light until the post-conviction was heard has a devastating effect on the varsity of Henley Powell as a witness and it shows that he purged it himself when he said, he could see what was going on over by the door.

And this to me is an example of attempting to use diminimus to simply defeat due process.

Henley Powell’s testimony was that even playing pinochle sees in the position like through his handout because he could not bid he was looking towards the door when he saw Lyman Moore come in, but he supposed to purge it himself because he was facing and seated and facing at that direction.

Now, this is the kind of critical argument was presented to the highest court in the country.

Mr. Immel do you think he get the —

Thomas J. Immel:

Yes I am.

Do you think you get to the —

Thomas J. Immel:

Yes, I have a comment or two on it.

As to the weapon, it first of all Rule of law, I know that most of the jurisdictions did.

Thomas J. Immel:

Weapons found in the possession or control of the defendant at the time of his arrest are admissible to the circumstances of the arrest for that reason alone at that point.

Okay, these two gentlemen run this car, they fled the car, they tried to get back into the car, at all times, that they were certainly in that car, they were both in constructive possession of that shotgun, at the very least.

And if it was Jerry Barbee’s car, if he was driving and Lyman Moore even had better access to the shotgun.

He kept this inside?

Thomas J. Immel:

Yes, okay but first of all just the circumstances of the arrest, quite independent of the guns relevance to the rest of the case.

Warren E. Burger:

But the arrest was not connected to this murder?

Thomas J. Immel:

The arrest was in connection with what was going on right then.

A shooting had taken of the gun with.

Not this murder?

Thomas J. Immel:

No, for that matter, he was not arrested for the other charge he was tried on either at that time he was arrested based on what had happened, the gun was fired off in the city limit and two men led from the car.

But in any event, as I have described before, sort of shocking had a relevance in another context in another trial.

The general rule in Illinois and most of other jurisdictions has always been, this property would admit any inter-evidence, any weapon which is suitable for the commission of the crime charge, even though it is not the contention of the prosecution that this is the weapon.

Now, there is no question this weapon is similar to the weapon that was used as a shotgun.

The prosecute tendered a bill of particulars and answer goes to bill of particulars on which he said 12-gauge shotgun that is not evidence.

An acute incident happened at trial, the defense attorney tried to call the assistant state attorney to prove that it was 12-gauge shotgun.

This is a record page 763 to 765, the defendant tried to call the state’s attorney to testify and it was a 12-gauge shotgun based on the fact the assistant state’s attorney had filed his bill of particulars.

The assistance states attorney said that if I was called to testify, I would testify on what kind of gun was used.

I would get in to that evidence.

Then a stipulation was entered into with — toward the end of the defense case not the state occasion sheet that if the certain crime like technician were called, he would testify that in his opinion it was 12-gauge shotgun.

He was not there and his qualification are in the record and it is simply stipulation in his opinion.

So there is no real hard evidence as to what the actual gauge of the shotgun ever used.

Now, the state’s attorney made a gratuitous remark in his closing argument to the effect that this probably was not the gun and the rule everywhere in the legal.

Thurgood Marshall:

Mr. Immel, wasn’t it the medical testimony?

Thomas J. Immel:

It was medical testimony of the shotgun that killed the man.

Thurgood Marshall:

Didn’t he say that —

Thomas J. Immel:

No, specifically, Herald Wagner’s (ph) as pathologist testified that he did not try to determine the size.

All he had was the pellets spread throughout the body in Wadding, and he turned the wadding over to the police department, that is the last he saw of it and but then he was made no effort.

Dr. Wagner’s testimony if examined.

Thurgood Marshall:

There is nothing in the record to show what —

Thomas J. Immel:

There is no hard evidence introduced by anybody as to exactly what side the shotgun was.

Thurgood Marshall:

Is there any soft evidence?

Thomas J. Immel:

Yes, a stipulation that in the opinion of the technician, if called to testify he would testify it in his opinion that was 12-gauge shotgun.

That is what we have and we have this bill of particulars which is not evidence in which the prosecutor attempted to slop off as not being his work really.

A good remark that he made in his closing argument which I would like on his bill of particulars, that he is talking about the gun, and of course he is not really as far as I can see, an unclear characterization to say that Lyman Moore is a man who uses shotgun.

He was arrested before and this was the type of the closing argument we had and that the shotgun was a particularly vicious weapon to use and after all it was a shotgun that Lyman Moore killed the bartender with.

I believe I am not going to have an opportunity to address myself to Witherspoon point, I simply rested on the —

Warren E. Burger:

Mr. Blackmun would you like to pursue your Witherspoon question overtime?

Harry A. Blackmun:

At least, I would like one sentence to your attitude on the Witherspoon issue.

Thomas J. Immel:

Let me restrict that sense to the question for the use of Witherspoon in the context of peremptory challenges.

I am not going to tell the court about our position that Witherspoon helps the prosecution.

We do not want to see it go away necessarily because of the fact that about as many cases are going to effect and I think it is a useful tool on the prosecutor’s action.

Certainly, he has not done anything about the rate of death penalty return.

However, there is nothing in the opinion with reference to whether or not Witherspoon forbids the use of prosecution for peremptory challenges to remove people because they could not otherwise has been challenged for cause.

There was an implication in the Anderson opinion from the California Supreme Court that they like inference release of decided that the court by inference has reach this conclusion as this is an improper use of peremptories, my simple statement for the court would be as most unusual way of Rosaline versus Alabama that I could possibly imagine, it could not possible have been in the mind of the court.

In this case had the eight jurors, who are arguably removed for cause and I think, some of them properly were but in any event, my intention would simply be that under present standards and under present techniques on Witherspoon questioning, most of those people would have gone off anyway because when asked the second question, when you could sign the verdict, it would say “yes, our experience teaches us that.

From all across the country in our conversations with prosecutor.

Therefore we still have peremptory challenges to eliminate the rest if that is desire of the prosecutor.

I do not think the jury tried this man would then compose with any differently I think that the opinion of the late justice Black and his dissenting opinion has proved to be rather prophetic, in a sense that the conversations of the juries in not going to do any different.

If Mr. Justice Blackmun had any further questions on Witherspoon, I think I stand on the brief for the rest.

Thank your honor.

Warren E. Burger:

Mr. Doherty?

James J. Doherty:

Mr. Chief Justice may it please your honors?

Warren E. Burger:

You have one minute left but we will enlarge that to two, in the light of the extent of the time.

James J. Doherty:

I did not call Robert Fair because all he said that he looked like one of the man.

When Bill Joyce was called back on the post-conviction by stipulation he testified he sure looks different, looks like a minister’s son.

Warren E. Burger:

What he said?

James J. Doherty:

Now, Virgle Sanders knew of him, so why bring in the people that did know but one fellow told the police that he sure looked different, that is not in the record because you cannot get all of this from the record.

And the gun, it is terribly denigrating to the Chicago Scientific Crime Detection Laboratory, a scientist said it comes from 12-gauge.

All you got to do is buy the shooters bible or sport’s field or anything to find out the differences a great deal, 330 seconds of an inch between the 12-gauge wadding and the 16-gauge wadding.

And it is not a legal argument, it is an argument based on the immutable laws of the universe, the exact science of measurements.

James J. Doherty:

Mr. Anderson stated at trial that his opinion that if Lyman Moore was missing for any length of time, he would have notice him being missing.

He says that these people have been asked to make the statements, asked to make the statements.

There was a written motion for all statements given to the Lansing police.

There was a promise by the prosecutors on page 32 of the record.

We will give them to him when the witness is finishing testifying on direct examination your honor and they did with two.

Pat Hill gave voluntarily.

Henley Powell gave the statement voluntarily but did not fulfill their promise of Virgle Sanders.

Warren E. Burger:

Can you suggest the reason why having asked all the other witnesses if that is the case and not their statements that is Sanders when you characterized as the most damaging witness was not cross examined about having given a statement.

James J. Doherty:

After they got them up to Sanders that after they got done testifying and so when they asked about the statements, they had the statements in their hand that they were cross examining from them and that was after not before and the record makes that clear.

I stand to answer question.

Thank you your honor.

Warren E. Burger:

Thank you Mr. Doherty and Thank you Mr. Immel.

The case is submitted.