Phillips v. New York

PETITIONER:Phillips
RESPONDENT:New York
LOCATION:Superior Court of Bibb County

DOCKET NO.: 497
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 362 US 456 (1960)
ARGUED: Apr 18, 1960
DECIDED: Apr 25, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1960 in Phillips v. New York

Earl Warren:

Number 497, Willard H. Phillips, Petitioner, versus Joseph — versus New York.

Mr. Schober.

Henry W. Schober:

If it please the Court.

This matter is here on certiorari issued by this Court to the Court of Appeals of the State of New York.

To review a judgment of affirmance entered by that Court, affirming a judgment of conviction entered in the County Court of Nassau County for the State of New York convicting the defendant of the felony murder of one Sunday Graham.

The question that we raised and upon which we are here is whether a confession obtained from the petitioner was secured in violation of due process as accorded to him and guaranteed to him under those provisions of the Fourteenth Amendment.

In considering and approaching that question, we feel that we should bring before this Court those factual circumstances which are conceded by the respondent to have existed with regard to the development of the investigation and ultimate securing of the confession and which are undisputed in the record.

In approaching this problem and giving some of the background of the crime itself and of the investigation that was conducted, may I call attention first to the fact that the respondent Phillips, a male Negro of the — of the age of approximately 42 years have had prior conflicts with the law.

He had been convicted on a prior occasion in this very country, the Country of Nassau of the crime of attempted rape by violence.

He was sentenced to imprisonment for that crime and having been released on parole, he was later again apprehended, charged with a violation of his parole for the commission of a sexual offense upon a young white girl.

And upon the charge for violation of parole in that instance, he was recommitted for a period of time.

The petitioner Phillips had sometime prior to the commission of the crime charged here been married to one Manita Graham (ph).

They had been divorced but they had continued an illicit relationship between them subsequent to time of their divorce.

Mrs. Graham had adopted Sunday Graham who was approximately eight years of age upon the time — about the time of her unfortunate demise.

Now, on May 12, 1958, Sunday Graham was last seen leaving the school which she was attending.

She was dressed in a school uniform and was seen by one of her playmates to enter an automobile driven by a male Negro, a car of a type kind that was owned by Phillips and driven by one who is dressed in clothing such as that which had been possessed by Phillips at that time.

Once she did not — when Sunday did not return to her home, Mrs. Graham, at about 5:30 in the evening of that day, made report to the police.

And she gave them the information concerning a prior marriage to the petitioner and stated also to the police that petitioner had followed her within a short period of time prior to the disappearance of Sunday and had expressed certain threats to it.

But Mrs. Graham had asked Phillips to get out of her life, and he stated to her in return that if he did get out of her life, he would not get out alone and that she would be sorry.

About 10:15 on the evening of the day of Sunday’s disappearance, the local police precinct in the village of Hempstead, Nassau County communicated with the precinct of the country police that had jurisdiction over that location.

And at about 10:20 on that evening, the country police officers were given a description of a missing girl, the location of the school at which she had been attending and the other information such as I have just mentioned to this Court.

The following morning, the country police spoke to the classmate of Sunday who had seen her entering the automobile.

They obtained the information from that classmate, Kathy Mullen (ph) concerning the place at which the automobile was seen, the person driving and the fact that Sunday attended.

At 11 a.m. because of the information that had been obtained by the police concerning Phillips’ background in relationship with Mrs. Graham and Sunday, visited Phillips’ home in Hempstead, searched his rooms and took clothes from him that he had been wearing and that were in his apartment and also had him identified through them the automobile which he owned.

They questioned him concerning Sunday Graham and his — and her disappearance and then requested that he accompany them, the police, to their local police precinct some distance away and beyond the place where police headquarters of the county are located.

They arrived at the local police precinct at about 1:15 in the afternoon of the day.

And at that time, the interrogation concerning this disappearance of Sunday Graham began.

You claimed that he was under arrest at this time or did he went over there voluntarily?

Henry W. Schober:

The record would seem to indicate that he accompanied them voluntarily, sir.

But we say that whether he was under arrest or whether he had gone voluntarily, that the fact of his going and the circumstances that took place from that point on are to be considered in connection with the ultimate determination to be made by this Court on the question that we say is presented here.

Henry W. Schober:

But we do — we do say that so far as the police officers are concerned, they expressly testified that it was not until some time later that Phillips was actually placed under arrest.

The testimony in substance on that score being that he was requested to stay.

That he could have left had he indicated his desire to do so.

That he would not have been restrained in his leaving.

And that it was only after the violated dead body of this young girl was found that he would’ve had difficulty in leaving.

We say that these two is a plot of the totality of circumstances such as this Court has referred to in determining the effect of all of the things that have occurred here.

Felix Frankfurter:

Well —

Potter Stewart:

Until the — until the body was found, there was, of course, no way to know there was any crime committed.

That’s —

Henry W. Schober:

That’s right, sir.

There is no question about that but we say that whether or not a crime had in fact been committed prior to that time or whether there was knowledge of the commission of that crime, it becomes immaterial when you now currently consider all of the things that went before, after and immediately at the time that a confession was ultimately obtained.

Felix Frankfurter:

In answer to Mr. Justice Harlan’s question, you were speaking of the time when it wasn’t known that violence had been committed.

Henry W. Schober:

Yes, sir.

Felix Frankfurter:

(Voice Overlap) to what — what — in this Court?

Henry W. Schober:

It is true that there was an interrogation that took place with regard to Phillips, questioning of Phillips that took place prior to the time when it became known to the police that a murder had in fact occurred.

Felix Frankfurter:

So that the police —

Henry W. Schober:

That time —

Felix Frankfurter:

— the police officer at that time was trying to find out where this missing girl.

Henry W. Schober:

That’s right, sir.

That’s right.

And that questioning concerning the missing girl took place between 1:15 in the afternoon of that day and sometime at about 3 o’clock when an exculpatory statement, a complete denial by the petitioner was obtained by the police, reduced to writing and signed by him.

It was 4 o’clock in the afternoon of that day that the dead body was found, found who have been violated and was found to bare the clothing and all the other identifying material that indicated that this was the body of Sunday Graham.

Felix Frankfurter:

But the exculpation by him was not exculpation of any charge or innuendo of a charge of murder, was it, as to whether he had any knowledge of the girl?

Henry W. Schober:

Exactly, sir.

But the exculpation at the same time indicated the presence by the petitioner at about the place where the missing girl was last seen alive with his automobile at that particular location.

And we say that these two are circumstances which eventually we — I intend to refer this Court to in a determination as to whether or not the police were in a position to make a charge of the commission of crime.

Felix Frankfurter:

I didn’t mean to question even by implication, your submission that — that — to tell if the circumstances should be considered.

I merely wanted to be sure that you agreed that up to 4 o’clock what the police did was the conventional inquiry into the facts of a complaint that had been made him.

Henry W. Schober:

I will say this to Your Honor that while I make the concession that what they did was in connection with the investigation of a missing person as distinguished following investigation of a crime actually known to have been committed.

Whether or not it is the conventional investigation, we say, is to be determined from this and the other circumstances —

Felix Frankfurter:

No, but —

Henry W. Schober:

— appearing in the rush.

Felix Frankfurter:

— should cutting off at 4 — up to 4 o’clock, is there anything that you complained of up to that time?

I’m not suggesting you’re not entitled then to look at the whole sequence of the events but up to the — up to what to — up to — what to — what took place up to 4 o’clock?

Judge by itself in isolation for the moment, is there anything that you complaint of?

Henry W. Schober:

Judge by itself and in isolation or — at this particular moment, we say that there is no complaint directly urged with regard to the police activity —

Felix Frankfurter:

That’s all I meant by (Voice Overlap) —

Henry W. Schober:

— to that extent.

Felix Frankfurter:

I mean if — if the girl had turned off or if such a complaint is made to the appropriate police, I suppose, it’s necessary to make an inquiry to — into the — into a missing girl, and up to that time, they did what — I — I take it, police are entitled and indeed under duty, bound to make.

Henry W. Schober:

We —

Felix Frankfurter:

Is that right?

Henry W. Schober:

— we say exactly that, sir, that as of that time, there was someone missing and they were bound to make an investigation.

Immediately after 4 o’clock and while information had been received concerning the finding of the violated dead body of this young girl, the questioning was resumed.

As the particular officer who was examined on this score stated, “Phillips was not questioned continually but on and off,” but he says also that Phillips continued in his denials of any complicity in the trial.

Now, that — his statements were entirely exculpatory.

That questioning continued from 4 o’clock until 6:30 p.m. of that day.

Felix Frankfurter:

From 4 o’clock to when?

Henry W. Schober:

6:30.

Felix Frankfurter:

Now, does the evidence, the undisputed evidence up to the number of people or the relayed in which this question was taken place, what is your view of the record?

Henry W. Schober:

We say that the undisputed testimony in the record given solely by police officers themselves is that not only did Detective Rouffet (ph), the one who began the investigation, interrogate Phillips, but that he was joined then by a Lieutenant Carn (ph), a Captain Kloss (ph) a — and a Detective Diggs (ph).

And that they were occasions when Diggs in particular was left alone with the petitioner Phillips.

Felix Frankfurter:

Where they in there collectively or individually in succession?

Henry W. Schober:

So far as — so far as Rouffet’s testimony is concerned at this particular time, it would indicate, we say, as we read the record, that not only was Rouffet there but that Captain Kloss, Lieutenant Carn and Detective Diggs were all together during the course of the questioning.

Felix Frankfurter:

Wasn’t — wasn’t the Captain (Inaudible) who Phillips knew?

Henry W. Schober:

No, this was a Lieutenant (Inaudible).

This comes shortly after —

Felix Frankfurter:

That he did introduce himself, didn’t he, to him?

Henry W. Schober:

Lieutenant (Inaudible) did, yes, sir.

Felix Frankfurter:

No, I’m not talking about prior to the captain, didn’t the captain stay in there only for a little time within — isn’t that the evidence?

Henry W. Schober:

I don’t recall that to be, sir — so, sir.

Henry W. Schober:

I am not in a position to give Your Honor direct answer.

But my recollection is that Captain Carn.

Felix Frankfurter:

Not Captain (Inaudible) I’m talking about —

Henry W. Schober:

Oh, Captain Kloss.

Well, that Captain Kloss did stay in for a short time and left but he returned to the later period of time again, sir.

Now, at 6:30 p.m., this group investigation, this group interrogation ended according to Detective Rouffet.

Felix Frankfurter:

Well, it’s nothing to address you but these things are — one has to go to creep along.

When you say group investigation, the evidence is not very clear whether three or four or five or two or one or in there any defined length of time, is that right?

Henry W. Schober:

That is right, sir.

And that’s throughout the entire state of the record would appear except that there are times when Detective Rouffet indicates even later on in the evening that more than himself and Detective Stock (ph) and others were in the room and took part in the questioning.

But I — I do have to say that there is no clear statement in the record that there was a — a marathon of interrogation here, where one after the other participated but rather a statement only that he was continued to be questioned while these people were there.

Felix Frankfurter:

What you call a marathon what we’ve called in conations as no relay of — of officers infringing on, is that right?

Henry W. Schober:

Well, we — we say that the record doesn’t demonstrate that there was no such relay.

Felix Frankfurter:

I understand that.

Henry W. Schober:

The record rather, we say, demonstrates the inference that there was but there is no clear statement in the record —

Felix Frankfurter:

One has —

Henry W. Schober:

— on that score.

Felix Frankfurter:

— one has to read and draw his inference from it.

Henry W. Schober:

Exactly, sir.

Now, at 6:30 p.m., Detective Stock arrived at the precinct and at that time, stated to Phillips, the petitioner, that they were going to perform certain tests and examination upon him.

And he described the examinations and tests as being those where they would examine his clothing, take the parings of his finger nail for microscopic examination and that they would wash his privates.

Shortly after that, a physician, Dr. (Inaudible) and Lieutenant Pribell (ph) arrived and Inspector Pribell arrived at the station house for the purpose of conducting that examination.

Pribell was acquainted with Phillips, had been prior to the time of his arrival at the station house.

Dr. (Inaudible) says in substance that when they approach Phillips for the purpose of having this examination conducted, yet Phillips was reluctant that he said that he wanted advice about it, that he didn’t think that the police had the right to conduct such an examination.

And Inspector Pribell then requested that the others leave the room and leave him alone with Phillips so that he could discuss the matter with him privately.

The record would indicate that that private discussion took approximately 10 minutes and at the end of it, the other detectives and Dr. (Inaudible) were again re-invited to enter the room.

When they did, Phillips was still reluctant to undertake the examination or have it conducted with regard to his personal or his clothing.

And it was only at that point that — that Inspector Pribell in his discussions with Phillips, told Phillips that he would drink some of the solution with which he intended to conduct the washing of Phillips’ personal.

And having invited, he stated to Phillips that after all, it was not harmful to his personal, and the testimony would seem to indicate that at that time, Phillips stated to the doctor, the inspector and the others that he would undergo that physical examination and the other tests

Felix Frankfurter:

You told us previously that he could have his own — his own doctor.

Henry W. Schober:

That’s right, sir.

And he stated to them at that time that he didn’t think that they had the right to conduct the examination.

Felix Frankfurter:

Well —

Henry W. Schober:

But —

Felix Frankfurter:

— the examinations were negative, weren’t they?

Henry W. Schober:

The examinations were negative.

William O. Douglas:

I — I didn’t see how that — all this — what you’ve said so far helped you very much.

Henry W. Schober:

Well, we say that it helps only to the degree that it required that his clothing be removed from him and it required him to subject his person to the examinations by the positions and taking along with the other continued examination that was conducted by the police, we say that it indicated clearly the purposes and the extent to which the police intended to go in order to ultimately obtain incriminatory statements from the petitioner.

Felix Frankfurter:

Well, they — if they offered him that his own physician or any physician or a friend physician could make these tests that would indicate the limit of how far they were intending to go, doesn’t it?

Henry W. Schober:

That would seem to indicate such a limit, sir.

There’s no doubt about that.

But by the same token, when the — when the — the offer was first made and then the — the discussion continue by a person who wanted to speak to Phillips alone and by a person who had been acquainted with Phillips on — for some time prior, we say that this would indicate a circumstance that could — will raise question concerning the activity by the police at that particular time.

Earl Warren:

And what — what was that particular time?

Henry W. Schober:

That particular time was 7 o’clock in the evening, approximately 7 to 8 p.m.

By 8 p.m., the entire — the entire examination had been completed.

The tests were — the result of the test was not known to the police until sometime thereafter.

Now, after the examination had been made and the test taken, a Stock Detective Stock left for dinner.

Detective Rouffet remained with Phillips and stated that while he did not interrogate Phillips, he may have spoken with him.

That Phillips was seated in a chair at that time.

It was about 9 o’clock in the evening when Captain Kloss arrived and he and Stock again, had returned from dinner, he and again interrogated Phillips for about an hour continuing down to 10 p.m. on that day.

Rouffet joined then that examination also, so that this is one of the times when there were more than one in the examination.

It was about 10:30 in the evening when it was learned that Mrs. Graham, the foster mother of the violated child was in the station house and although the detectives state that they asked Phillips whether he would speak to Mrs. Graham and he gave his consent to that, they arrange so that Mrs. Graham and Phillips would be in an adjourning room with the door open so that he could be observed in his actions while the conversation continued.

It was in about 11 o’clock of the evening of that day that notification was given to the official court reporter.

Felix Frankfurter:

Before you go into that, may I ask this, this conversation between Phillips and Mrs. Graham, what significance do you attach to that?

Henry W. Schober:

Well, we say that here was a man who was subjected to an interview with the woman whose child had been destroyed.

Felix Frankfurter:

You just — you just said a minute ago that he was asked whether he wants to see her.

Henry W. Schober:

Exactly.

Felix Frankfurter:

Now, you say he’s subject to.

Henry W. Schober:

Maybe, in Your Honors’ mind I made a poor choice of words, but there is no question but that the request — the — the question was first put to Phillips whether he would speak to Mrs. Graham.

Felix Frankfurter:

Well, reading it, it seems to me quite — I — I thought —

Henry W. Schober:

Well, we —

Felix Frankfurter:

— what one makes of it because in view of the relationship of the parties, namely, Graham and Phillips, and the — the non-production of evidence or Justice Douglas had just entered what was discovered up to that time was objectively neutral or negative.

I don’t know what significance one can attach to that —

Henry W. Schober:

Except —

Felix Frankfurter:

— if — if one would — I would draw one inference, if he had been forced on him an irate, anguish, frustrate mother of a violated child is one thing but you asked if he wants to see Mrs. Graham that no suggestion of any — that his consent was to his on that respond, is there?

Henry W. Schober:

There is no — there is no other testimony on that score whatsoever.

Nor was there any testimony concerning the state in which Mrs. Graham was at that particular moment.

Felix Frankfurter:

That’s why I say so far as one can tell it, it — I don’t know what inference to draw from it.

Henry W. Schober:

Except that we say — we say to this Court that under that — having in mind, the fact that there was this — this dispute between the petitioner and Mrs. Graham that there was the expressed threat by petitioner against Mrs. Graham.

That there was this high up —

Felix Frankfurter:

But at that time, it wasn’t known that there was this threat.

This threat came out on the trial later and as I understand it, you — no credence should be attached to it.

Henry W. Schober:

We don’t say that there shouldn’t be any credence attached to it to this degree.

That certainly we feel, we feel that this was information that the detectives must have had since they — they received from Mrs. Graham.

The description —

Felix Frankfurter:

That would be — that would be relevant if they had forced Mrs. Graham on.

But the question I’m putting to you is all we have from the record is that he was asked to draw (Inaudible) as voluntarily and as — as could make — should be because I’m asking you a question and he suggest, “I’d like to see it.”

Henry W. Schober:

Well, I — I appreciate — I appreciate Your Honor’s statements on that score.

I have to admit that we have a different view —

Felix Frankfurter:

Well, then, I have no other knowledge than what I really record.

Therefore, I’m asking you questions.

Henry W. Schober:

I — I say to Your Honor in all — in all candor that I have nothing else on that point that I can offer from the record.

I say that at 11 o’clock, notice was given by the authorities to the official court reporter to the effect that they would desire his services at the police station or at the — the police officers in connection with this investigation that he should hold himself in readiness.

That he was not required at that particular time.

And there was sometime after that, that Mrs. Graham’s brother was brought in and the record is — has force information in this connection as it is with regard to Mrs. Graham.

But it would seem to indicate that thereto inquiry that was made of Phillips as to whether or not he would speak to Maddox and that then, Maddox and Phillips met in this adjacent room on the — the same physical circumstances at least.

Maddox apparently spoke to Phillips until approximately 1:15 on the morning of May 14 and after Maddox left, Detective Rouffet resumed the question — his questioning of Phillips.

Stock also questioned Phillips along with Lieutenant Cummings.

Felix Frankfurter:

May I ask you this?

Did anything come out at the trial, be it on the record of court as to what took place in the talks between Phillips and Mrs. Graham in later Mr. (Inaudible)

Henry W. Schober:

No, sir, no, sir.

They say — stated between — at about 1:15, Rouffet resumed his interrogation with Phillips and so did Stock along with Lieutenant Cummings.

It was about 1:30 a.m. that Rouffet left the police precinct and in his own language, he stated that he was a very tired man.

Now, in this Court too I feel that I must state to this Court that the record would indicate that Rouffet had been working on the investigation since the prior evening of May 12.

I don’t want to give the impression that Rouffet was awake only during a portion of the period.

But there is some reference to the fact that he had been working on the investigation since the evening of May 12.

Rouffet stated though that at that time, Phillips was a sleepy man.

But at 1:30, Cummings and Stock continued their questioning of Phillips and continued until about 2:30 o’clock at that morning.

It was at that time Phillips’ story remaining the same that it would determine that he should be removed from the third precinct, the local police precinct to police headquarters in Mineola.

And it was shortly after 3 a.m. in the morning that they arrived at the police headquarters.

There, they were met by the chief of police who went over the entire examination and questioning of Phillips all over again.

Present at that time were Inspector Lita, Lieutenant Cummings who had been with Phillips before and of course, Detective Stock.

Felix Frankfurter:

Mr. Schober, may I ask you, if you would be good enough to summarize what you conceive to be whereas the evidence in the procession of the police, up to that hour pointing to guilt or innocence.

Henry W. Schober:

Yes, sir.

I think that we have done that and set forth particularly in our reply brief beginning at page 4.

But we say there that as of that time, as a matter of fact, we start with approximately 4:45 on that afternoon, but we say that as of midnight of May 13, the police knew, of course, of the fact that Sunday Graham was missing and the circumstances under which she was last observed.

They had the description of her clothing.

And by midnight of May 13, they had an identification of the body, and they have had an examination by the — by Dr. (Inaudible) at the morgue.

They had the information concerning the acquaintance and the relationship between Manita Graham and Phillips on the prior occasions.

They had the information, we say, in spite of what Mr. Justice Frankfurter implied about before.

We say that they had the information concerning the threats made by Phillips upon Manita Graham.

They had —

Felix Frankfurter:

I don’t deny it but I just like to know who gave that information.

Henry W. Schober:

The information we say is indicated in Detective Rouffet’s statement to the effect that he received the information from Manita Graham.

As a result of which he went to see Phillips and arrived —

Felix Frankfurter:

Did he — did she — did he testified that she told them on the afternoon of the 13th that — that Phillips had made such a threat?

Henry W. Schober:

No, there is no direct testimony in that regard, sir.

Felix Frankfurter:

He did see her, he saw the mother —

Henry W. Schober:

Yes, sir.

Felix Frankfurter:

— he saw the mother of the child.

Henry W. Schober:

That’s right, sir.

Felix Frankfurter:

But that’s all that we know that he had.

Henry W. Schober:

Except that I think — I think we can draw of a clear inference, sir, that they also knew of the relationship and the circumstances that existed between them.

Felix Frankfurter:

But — but there is no (Voice Overlap) —

Henry W. Schober:

No direct, no direct testimony on —

Felix Frankfurter:

There’s no intimation that she then thought that he was the murderer, is there, that the mother saw it?

Henry W. Schober:

There is no testimony on that score at all.

Felix Frankfurter:

There is no any indication.

Henry W. Schober:

That’s right, sir.

That’s right.

William O. Douglas:

Is there any question here, at this time, as to the correctness of the charge on the voluntary character of the confession?

Henry W. Schober:

We raised the question, sir, but this Court did not permit certiorari on that — on that issue.

William O. Douglas:

That’s out of this (Voice Overlap) —

Henry W. Schober:

I would — I would assume so from the order of this Court on certiorari.

We say that it is — it is again another element to be considered in the light of this totality of circumstances even though the question of the instructions relates solely to what happened judicially after the arrest and after the confession had been obtained and at the conclusion of the trial itself.

But continuing, as of midnight on the evening of May 13, they knew by Phillips’ admissions that he had been in the neighborhood where Sunday Graham was last seen entering an automobile driven by a person of his description and an automobile of the — of the kind and description owned by Phillips.

They had the — they had the information to the effect that there were peanut shells that were in Phillips’ automobile and which had been found in the hair of the body of the dead girl.

They had the information concerning the finding of blood beneath the body and had obtained from Phillips’ home, his underclothing on which there were bloodstains although the ultimate testimony given by the experts — by — by the experts who submitted to analysis was to the effect that while the stains were a blood, it could not be determined whether it was human blood or other.

Felix Frankfurter:

Was that known — was that known up to — at — at midnight (Voice Overlap) —

Henry W. Schober:

Yes, sir, that the record —

Felix Frankfurter:

— so that the — the results were negative not only as to the bloodstains under the — at this person but also the bloodstain that they found on a — on an (Inaudible) is that right?

Henry W. Schober:

Well, we say that the — so far as the bloodstains are concern, it wasn’t a negative finding, it was merely a finding —

Felix Frankfurter:

There was a — but there was a bloodstain but no identification —

Henry W. Schober:

Exactly.

Felix Frankfurter:

(Inaudible) to the extent that it was human blood.

Henry W. Schober:

That’s right, sir.

But there was — there was a fact that although they could not matched peanut shells the one from the other that they found peanut shells in the hair of — in the hair of the victim and on the floor of Phillips’ car, we say that under those circumstances, with — with the background that they had of association with the information that they had concerning disappearance with the admissions that they had by Phillips as — as to being in the neighborhood where the disappearance took — took place and as to the — the fact of the peanut shells and the blood, and we say that you must bare in mind that so far as the blood is concern, the prosecutor in the examination that he conducted leading up to the confession would indicate that there was a direct claim by him and by the police that this was the blood of the victim.

We say that while the proof would seem to be that they had not verified that fact at that time, then it was used by the police and the prosecutor to further their interrogation of the —

Felix Frankfurter:

You mean — you mean they said explicitly that “We found blood on one of your garment, that is identifiable, coming from the body of this said girl”?

Henry W. Schober:

Didn’t — he didn’t say it in that — in that fashion, sir, but he said Phillips — in substance he said, “Phillips, you know that we found some based — blood on your — on your shorts.”

Felix Frankfurter:

Well, that should — that comes at a little — if you’re going to read from the examinations by the District Attorney, that’s a little later, isn’t it?

Henry W. Schober:

This is — this is the examination by the District Attorney at the —

Felix Frankfurter:

That’s not —

Henry W. Schober:

— conclusion of the police investigation, sir.

Felix Frankfurter:

Now, as to the negative finding of — of the washing, that is rather significant in view of what they knew the fact that they had found that the child had been violated, isn’t that right?

The — they did — they had made that findings by that time.

Henry W. Schober:

That’s right, sir.

And it is significant at least to the extent that something that might have some information that might have existed to connect someone with the commission of the crime was not there.

Felix Frankfurter:

Really negative in that sense.

They found no evidence.

Henry W. Schober:

Yes, sir.

Felix Frankfurter:

The test disclosed nothing.

Henry W. Schober:

That’s right, sir.

Potter Stewart:

Was it shown that the police officers knew about Phillips’ criminal record at the time they first asked him to come down or in anytime during his interrogation?

Henry W. Schober:

No, but the record does not demonstrate that, sir, but the record does show that this was a crime.

This conviction was for a crime committed in that county.

We say that the police certainly are chargeable with the knowledge and notice of the conviction that took place at the hands of their own department, if you will.

Potter Stewart:

Conviction was in that — had been in that county, is it not?

Henry W. Schober:

Yes, sir.

And the violation for which he was returned to prison was committed in that county.

Potter Stewart:

How long — how many years before?

Henry W. Schober:

The conviction itself took place, as I — as I recall approximately 1946, approximately —

Potter Stewart:

12 years.

Henry W. Schober:

I’m sorry.

Approximately 12 years prior to the crime for which he was ultimately convicted here.

Potter Stewart:

And then he violated probation.

Henry W. Schober:

Yes, sir.

Potter Stewart:

And that had been, what, three or four years before?

Henry W. Schober:

Oh, that would have been considerably more than three or four years prior to the commission of this very crime.

It would have undoubtedly been some time about five years, five or six years prior to the commission of this crime.

Potter Stewart:

But except from what we might have heard as to their knowledge, there’s no affirmative showing that they knew previous criminal record on this record.

Henry W. Schober:

No, but there is affirmatively in the record, the fact that Inspector Pribell knew and was acquainted with Phillips prior to this occasion.

Even there, sir, I have to state that that there isn’t any testimony in the record as to whether or not Pribell had that information.

Felix Frankfurter:

You spoke of only one prior conviction.

Henry W. Schober:

Yes.

Felix Frankfurter:

Was there two?

Wasn’t there —

Henry W. Schober:

No.

One was the conviction of crime itself and the other was the adjudication that he was in violation of his parole.

Felix Frankfurter:

No, but wasn’t there an earlier instance or is that just brought out, an earlier of he filing a charge or in this —

Henry W. Schober:

That was the one for which he was charged with violation of his parole and returned on the original sentence for which he —

Felix Frankfurter:

But there are two separate instances —

Henry W. Schober:

Two separate instances.

Felix Frankfurter:

— of the — of general sex offenses.

Henry W. Schober:

That’s right.

One was of an — of a very young girl and the other was of a young lady.

Charles E. Whittaker:

What education, if I may ask, did this petitioner have?

Henry W. Schober:

My recollection of the record is that he had — his education extended just to the primary grades that he had not — that he had not gone ahead and as a matter of fact, his testimony and substances to the effect that his — his uncle — that his parents having turned him over to grandparents, that he was not unable to complete his high school training.

There is indication of the fact that he did attend high school for a period of time but he had actually accomplished the completion only of his elementary training.

So that there’ll be no question, sir.

I — I do definitely state again, he did attend high school.

I — I don’t want to have at felt that I am misstating.

I know that he did not complete his high school education.

Felix Frankfurter:

And had ambition even to go to college.

Henry W. Schober:

He did, sir.

That’s what the record would indicate.

As a matter of fact, the record — so far as the testimony given by psychiatrist would indicate that he have a high intelligence quotient, but that he was subject to certain personality disorders.

We say that those things is being subject to the personality disorder of things that or is a thing that must be considered in determining the extent to which he could resist the actions of the police.

After he had been taken to police headquarters and after Chief Panell (ph) had gone over his entire story again with him, he was interrogated for about an hour according to Detective Stock and at that time an Inspector Lita, Lieutenant Cummings, Stock and Chief Panell were all present.

Now, the Assistant District Attorney was at police headquarters at that time but did not enter the room or the location where the examination of Phillips was being conducted at — at that particular moment.

Henry W. Schober:

And there were — was an occasion then when the detectives in the main spoke to Assistant District Attorney (Inaudible) the — the ultimate prosecutor of the case.

And there is no clear indication of the person or persons with whom Phillips was left on that — at that time.

In any event, it was at about 4:15 a.m. of May 14 that the request was forwarded to the report (Inaudible) to come to the police station for the purpose of taking a statement.

And it was about 4:30 that the Assistant District Attorney (Inaudible) first on — to question Phillips and continued examining him and interrogating him until 5:10 in the morning at which time the first break in Phillips story came along.

Now, this was not the time when Mr. (Inaudible) stated to Phillips that they had found blood on his underclothing and inquired Phillips at that time of his knowledge concerning Sunday Graham.

It was then also that Phillips stated to Mr. (Inaudible) that he was sorry and then asked that the — the police officers be brought in to him so that he could shake their hands.

That he did.

The examination continued.

The complete confession was obtained from him.

But we say that the confession itself must be read in the light of the prior interrogation and of Phillips’ statement, not disputed or anywise answered, that he had been subjected to brainwash.

That he was parroted what had been told to him by the police officers and that he was taking the easy way out of the continued interrogation and questioning.

We say that reading that it will be seen that his answers in effect state that the factual matter included by the Assistant District Attorney in his questions were as good as any factual matters that Phillips himself might state in his answers and that — in that fashion, we say that it’s — he’s born out that he was accepting the version that was given to him by others, stating that his mind was a blank concerning the occurrence, he was merely repeating what others had told him concerning a claim occurrence.

We say that — considering the fact that he had been awake since some 6 o’clock was 6:15 on the morning of May 13 that he had no sleep, no food, nothing to drink, nothing to smoke and in spite of the fact that the respondent points out that on six occasions, there were request, I withdraw that, that on four occasions, there were requests made to him as to whether he desired food and on two others, their food was offered to be brought to him that nevertheless, here was a man who did not have sleep, rest, food or drink and that these are circumstances to be considered in — during the inferences concerning the state of mind in which he was as the result of the questioning which began at 1:15 of the afternoon before, his state of mind and his ability to resist or retain and keep his position.

We say that under those circumstances viewed in that light, there can be no determination that this was the result of his freedom of choice that he had any freedom of will in the matter but that actually what was occurring that was — that he had been subjected completely to the will of his detainers and that when viewed in the light of the statements by Officer Rouffet, who said that they kept him for the purpose of extracting a confession from him that this was clear proof that what they —

Felix Frankfurter:

In part.

He said in part.

Henry W. Schober:

That’s right, sir.

But in part included, included the intent to extract the confession —

Felix Frankfurter:

In part.

Henry W. Schober:

— for him — from him and Detective Stock who claimed that his detention was merely for the purpose of continuing their investigation said nothing further concerning any reason for his continued detention on that score.

The fact still remains, we say, that the information that they had at 4 o’clock was the same information that they had at midnight and the same information that they had the following morning at the time that he was booked and arraigned except for the confession that they had rung from his lips by virtue of this continued examination.

We say that the delay in arraignment while of itself and we’re mindful of the decisions of this Court concerning delay in state prosecutions of arraignment, we say that the delay in arraignment can be used by this Court and considered by it in determining.

Again, this totally of circumstances concerning the activities of the police and their express intent in that regard.

We say that viewed under those circumstances and in that light that we are entitled to take the police at face value and that when Detective Rouffet said that one of the reasons is that they wanted to extract a confession from him that were entitled to view all the other circumstances in the light of that concession.

And that being so, that there are sufficient undisputed conceded facts in this record from which the inexorable conclusion must be that this was not a free, voluntary, uncoerced statement by the — by the petitioner but was rather a compelled one, that its introduction know by his objection during the course of the trial was improper and constituted a denial of his rights.

We say that under those circumstances, we ask for a — a reversal at the hands of this Court.

Charles E. Whittaker:

May I ask you, sir?

Is there any evidence that he was beaten or threatened or punished physically?

Henry W. Schober:

As a — there is evidence but it’s to the contrary.

There are — there is testimony by the police, by Detectives Rouffet and by — Detectives Rouffet and Stock to the effect that he was not beaten nor did they hear any threats expressed to him while they were present.

Henry W. Schober:

Now, we point out to this Court that there were a number of police officers who saw and were in Phillips presence or in — who had him in their custody on occasions when Stock and Rouffet were not present so that any denial by them in that regard is to be taken as a denial only of circumstances occurring while they were there.

On the other hand, there — there are the statements by Phillips, the petitioner, were on cross-examination, and we say that this cross-examination is to be viewed to in the light of the record as it stands at that time, who stated that he was pushed around and forced to do different things, that he was brainwashed, that he barely parroted what others suggested to him because it was the easiest way out, that he wasn’t able to resist.

Now, this is the sum total of testimony concerning physical force or violence used against him, sir.

Felix Frankfurter:

Is there anything brought out on his direct examination, I gather lengthy, in which then a claim was made on direct that he was touched by anybody?

Henry W. Schober:

No, sir.

There is no such claim made during the course of his direct examination but we say to — we say that that too must be born out in the light of the manner in which his defense was conducted after a point of time in the trial of this case.

The record demonstrates clearly that at the outset and at the opening to the jury at the beginning of the trial, the counsel for the defendant stated that he was going to demonstrate that Phillips was beaten, that in his confession was extorted from him.

There was no such direct examination at the time that Phillips took the stance.

Felix Frankfurter:

Was the — was the jury told that they would be put back before it is approved?(Voice Overlap) —

Henry W. Schober:

They were told that — they were told that —

Felix Frankfurter:

— physical violence?

Henry W. Schober:

— in the — in the opening remarks to the jurors, sir.

As a matter of fact, I think, there, the — the reference itself was that he — that counsel would call 36 witnesses to demonstrate that but the —

Felix Frankfurter:

(Inaudible) are not always vindicated.

I —

Henry W. Schober:

I think that, Your Honor, that — that when this Court examines that portion of the record, it will find that there must have been something that affected counsel for the defendant as a result of which, we say, that the defendant’s right to a full and complete examination concerning the facts of this matter was not accorded to him but this is not an issue for this Court.

We merely say that it is a matter that is to be taken into account for it.

Felix Frankfurter:

I’m bound to say that the summing up by counsel for the defendant could hardly be more effective considering what he has to deal with on the record, at least that’s where it struck one reader anyhow.

Henry W. Schober:

If Your Honor is in effect asking me for a comment on that score, I — I will let you —

Felix Frankfurter:

You’ve made a comment a minute ago.

Henry W. Schober:

I —

Felix Frankfurter:

And I thought made it appropriate for me to make a counter comment.

Henry W. Schober:

Well, I — I still again —

Felix Frankfurter:

Awfully easy to look back and see how someone else would have tried a case.

Henry W. Schober:

That is true, sir.

That is true, but at the same time, at the same time, we must acknowledge that the things concerning the examination of this defendant appear in this record.

Felix Frankfurter:

Yes.

Henry W. Schober:

And that while there are other things that may have been designed and that maybe there was much to be designed in the examination whether from the petitioner’s point of view or from a professional point of view, we say, we are not entitled to raise at this time except that the whole record maybe viewed in its entirety.

Earl Warren:

Mr. Heneghan.

Joseph I. Heneghan:

Your Honors, you’ve just enjoyed a — an extraordinarily fair statement of the facts in the record from Mr. Schober as to the basic facts in his presentation, I have no quarrel.Some of the inferences that he draws principally in his briefs more or so than here on the argument this afternoon, I do quarrel.

Joseph I. Heneghan:

What I’d like to do was confine my argument just to the facts in the case.

I believe from the comments that were made from the bench, some of the points that were covered in the respondent’s brief as to the length of the questioning as to a murder investigation, as already been observed by the Court, through the petitioner was with the police at the third precinct in Williston Park from 1:15 in the afternoon until 3 a.m. the following morning when he was moved to police headquarters, but it was not until sometime between 4 or 5 o’clock when there was positive identification of the body of Sunday Graham that the police were conducting a murder investigation.

Up to that time, Detective Rouffet had been carrying on this all by himself if there were — if there was any overzealousness by the police, it was Rouffet who, starting the night before, gave up his sleep, searching around Hempstead, looking for this little girl to reunite her with her family, and he was the one almost unaided that questioned the petitioner.

And it was very intimate questioning up until the time of the discovery of the body.

Now, during the argument and in the briefs for the petitioner, Mr. Schober points out that from Hempstead where the child was found — was supposed to come home from school, the petitioner was leaving.

The police came, took him from Hempstead to East Williston and in the petitioner’s brief they say, the reason is not explained in the record.

Quite simply, the precinct which has geographical jurisdiction over the village of Hempstead is physically located in East Williston.

Why the police brought this petitioner to East Williston, was because they had — that was the only facility available for conducting this local investigation into a missing child.

The petitioner also complains that the record fail to explain why at 3 a.m. in the depth of the night, he was moved to police headquarters.

There is no explanation on the record other than the chief of detectives had his base of operations in headquarters and didn’t go out to all the 28 police departments and 8 precincts of the county police.

Felix Frankfurter:

What is the police — 28 police department?

What is the police department there?

Joseph I. Heneghan:

There are 28 separate police departments in the county, Your Honor.

Felix Frankfurter:

Oh, I know.

What is the police — police station?

What is the police department in that sense?

Joseph I. Heneghan:

Well, some of the departments are quite small.

They are nothing —

Felix Frankfurter:

(Voice Overlap) —

Joseph I. Heneghan:

— more than uniform patrol groups but some of the departments like the county police have seven or eight precincts maybe 150 or 200 men in each precinct.

Felix Frankfurter:

Is the department a functional division of (Voice Overlap) —

Joseph I. Heneghan:

A functional division —

Felix Frankfurter:

I see.

Joseph I. Heneghan:

— and with independent authority.

Even the questioning that started with respect to the murder investigation, there was no questioning until Stock came back from dinner, even that questioning with respect to the murder investigation.

Felix Frankfurter:

About 10 o’clock?

When was that?

Joseph I. Heneghan:

About 9 o’clock, Your Honor.

Felix Frankfurter:

9 o’clock.

Joseph I. Heneghan:

The testimony of Rouffet is not too clear.

Joseph I. Heneghan:

He says that he did not question the petitioner while Stock was at dinner.

Simply, the record shows, Stock was from the Homicide Bureau, Rouffet was a precinct detective who was not immediately concerned with investigations of homicides.

Felix Frankfurter:

They were — the — when — through the inference that they were rather waiting for the return from these tests, isn’t that right?

Joseph I. Heneghan:

I don’t believe so, Your Honor.

I don’t know whether or not inspect — the record is silent as to —

Felix Frankfurter:

Yes.

Joseph I. Heneghan:

— whether Inspector — when Inspector Pribell finished these test.

Felix Frankfurter:

I thought it was — I thought (Inaudible) what is his name?

Joseph I. Heneghan:

Dr. (Inaudible)

Felix Frankfurter:

I thought he testified that by 8 o’clock, they had it, didn’t they?

Joseph I. Heneghan:

By 8 o’clock they had taken the samples but then —

Felix Frankfurter:

And they have to have these arguments (Inaudible)

Joseph I. Heneghan:

That is right, Your Honor.

Now, I don’t honestly know when those tests were — the results of those tests were known to the police.

They were all run out by Inspector Pribell and I would imagine that at the minimum, it took several hours for him to make the necessary laboratory analysis but then he —

Charles E. Whittaker:

All were negative, were they?

Joseph I. Heneghan:

All were negative, Your Honor.

The fingernail scrapings, all 10 fingers were negative for blood, the seminal stain was absolutely negative and the test conducted as for the underclothing showed that Inspector Pribell could not identify it in the laboratory as being blood or — or human blood or even what type of human blood it was.

That was the testimony on the trial.

In that connection, Pribell also testified that the purpose of these tests and these were not unique.

There were equally designed to exonerate as well as to inculpate the petitioner, even the questioning of this petitioner as a suspect in a murder investigation wasn’t continued, once it had started at 9 o’clock.

We have the interruptions when he conversed privately and apparently from the testimony in the record, none of the detectives overheard what was the private conversation between the petitioner and his former wife, his paramour until four days previously, Mrs. Graham, neither did they overhear the private conversation between the petitioner and Mrs. Graham’s brother.

Now, these conversations varied from about 15 to 30 minuets in length.

Felix Frankfurter:

Mr. Heneghan, you said a minute ago that the murder investigation didn’t begin or until about 9 o’clock, is that right?

Joseph I. Heneghan:

Well, I would say the questioning —

Felix Frankfurter:

Questioning, that the —

Joseph I. Heneghan:

— in a murder investigation.

Felix Frankfurter:

Didn’t begin until 9, the fact that there was murder to be investigated was clear at 5.

Joseph I. Heneghan:

That is true, Your Honor.

Felix Frankfurter:

And how do you account for the hours between 5 or 9?

Joseph I. Heneghan:

The record — the testimony of both Detectives Stock the homicide squad and Inspector Pribell show that once the body was located, they proceeded to the scene of the crime.

Now, the petitioner in his reply brief says, for example, that blood was seen under the body at 4 o’clock.

In police procedure, the body wasn’t touched until the squad from headquarters and the laboratory technicians arrived at the scene.

The record doesn’t show when that took place, but it was sometime after Pribell or Stock arrived at the scene.

The local police — there is no testimony that a local police moved the body.

Felix Frankfurter:

The body was found about at 5 o’clock, petitioner —

Joseph I. Heneghan:

And they were — the body was discovered by a railroad worker around 4 o’clock.

There was no identification until positive —

Felix Frankfurter:

No.

But it wasn’t — but it wasn’t until 5 that the police got to it, is that right?

Joseph I. Heneghan:

It was until sometime after 5 apparently, that Stock and Pribell arrived at the scene.

Felix Frankfurter:

And then — then they took the body, an investigation — an autopsy was made of the body, wasn’t there?

Joseph I. Heneghan:

Yes.

I don’t know but just when that took place.

Felix Frankfurter:

And then there were also various samples of necessary evidence to make test of the child’s body or what had taken place there, wasn’t it?

Joseph I. Heneghan:

Yes.

There were, Your Honor.

Felix Frankfurter:

Well, I suppose that accounts to intervening time?

Joseph I. Heneghan:

Well, there, again, the record isn’t clear as to —

Felix Frankfurter:

But I say that probably account, one can’t tell.

Joseph I. Heneghan:

You can’t tell —

Felix Frankfurter:

There isn’t a timetable in the record, is there?

Joseph I. Heneghan:

No, there is not Your Honor.

Felix Frankfurter:

I mean there is an — a timetable to be worked out to the record.

Joseph I. Heneghan:

Yes.

It’s possible to work out a timetable for much —

Felix Frankfurter:

Approximately.

Joseph I. Heneghan:

— but not for all.

Felix Frankfurter:

Yes.

Joseph I. Heneghan:

I believe — I was talking about the interruptions or the lapses in the questioning of the petitioner as a suspect in a murder.

Joseph I. Heneghan:

After they arrived at police headquarters and Chief Panell had sent out the sandwiches and coffee for everybody, he questioned the petitioner for approximately an hour, following that —

Earl Warren:

What time was that please?

Joseph I. Heneghan:

That must — sometime between 3:30 and 4:30 apparently was the questioning conducted by the chief of detectives.

Earl Warren:

They are not — they knew nothing of the body at that time.

Joseph I. Heneghan:

Yes they did, Your Honor.

This is 3:30 and 4:30 a.m.

Earl Warren:

Oh, a.m.

Joseph I. Heneghan:

A.m.

Earl Warren:

Oh, yes.

At Mineola?

Joseph I. Heneghan:

At Mineola.

Earl Warren:

Oh yes.

Joseph I. Heneghan:

Before the questioning commence by the Assistant District Attorney, it was a further period during which the petitioner wasn’t questioned at all, following the questioning by Chief Panell.

What we have here basically is the question before the Court.

Why did he confess at all?

He was a — I understood that he was a high school graduate, the way I read the record.

He was a high school graduate, a man with admittedly superior mental prowess, a man moreover with considerable experience with the police.

In 1947, when he was arrested for that rape at a night point, he resisted all efforts to confess, took the stand in 1947 and swore innocence.

He was a man who had spent 10 years at (Inaudible), one of the best postgraduate legal institutions we have today.

Felix Frankfurter:

In a —

Joseph I. Heneghan:

Yet —

Felix Frankfurter:

— particular field of law only.

Joseph I. Heneghan:

And in several fields, Your Honor.

At any rate, he didn’t — the feeling of the respondents, it wasn’t the suction process of interrogation as the petition would have us understand on this brief that was responsible for it.

When he was told by Assistant District Attorney that blood had been found — that Sunday Graham’s blood was found on his underclothing, that was the point at which he knew that the jig was up.

Felix Frankfurter:

What was the justification for saying that way?

Joseph I. Heneghan:

This, of course, is not again, not explained in the record.

All I can — is — it was an assumption of the Assistant District Attorney.

It was probably a misunderstanding of the information that had been communicated to him by the police during that conference just before he started a talk or have a dialogue with Phillips.

Felix Frankfurter:

How does —

Joseph I. Heneghan:

The blood apparently, visual inspection, showed what appeared to be bloodstains.

The Assistant D.A. and all of the police assumed it was Sunday Graham’s blood.

Felix Frankfurter:

Mr. Heneghan, how does, as a matter of practice, the procedure in — in your county?

Who — who — how does the District Attorney get into such a murder investigation, does the chief of police determines when the time has come?

Joseph I. Heneghan:

The chief of detectives, the —

Felix Frankfurter:

Chief of detectives.

Joseph I. Heneghan:

— the Assistant District Attorneys are invited on occasion to participate in the questioning but only after the police have run out and exhausted their own resources.

In practice, these Q & A’s are taken in the event that there is an indictment might be return to ascertain whether or not, there is some proof of lying by a defendant who makes in a main and exculpatory statement.

Felix Frankfurter:

Is there anything in the record to show when this — during his office was alerted?

Joseph I. Heneghan:

Sometime earlier that evening prior to 11 p.m.

Felix Frankfurter:

Unless when the court stenographer was told to hold himself to readiness.

Joseph I. Heneghan:

Yes.

Felix Frankfurter:

Was the — was the District Attorney give an order to stand?

Joseph I. Heneghan:

The record is silent as to when the District Attorney’s office was first notified.

Felix Frankfurter:

That’s what I thought.

I think you just said around 11 o’clock.

I —

Joseph I. Heneghan:

I said sometime prior to 11 o’clock, Your Honor.

I don’t know just when it was and the record does not mention.

Earl Warren:

Mr. Heneghan, there are some question raised as to the fairness of the District Attorney in saying that they found Sunday’s blood on his under — underclothing, was there — is there any doubt as to whether the District Attorney at that time knew that — that blood was found on there?

Joseph I. Heneghan:

Well, as I say, Your Honor, visual inspection by —

Earl Warren:

Yes.

Joseph I. Heneghan:

— the police —

Earl Warren:

Yes.

Joseph I. Heneghan:

— had shown what —

Earl Warren:

Yes.

Joseph I. Heneghan:

— appeared to be bloodstains.

Earl Warren:

Yes.

So if there — so if there was any — any misrepresentation on his part, it went no further than to — to make the assumption that what the police had told him was bloodstains on — on the underclothing of the defendant was Sunday’s blood.

Joseph I. Heneghan:

That is true.

Earl Warren:

That — that’s the only thing that could be wrong with it.

Is that right?

Joseph I. Heneghan:

That is true.

That’s the only thing that —

Felix Frankfurter:

Was there any point —

Joseph I. Heneghan:

— could be wrong.

Now, I want to go one step further on this.

Felix Frankfurter:

Was there any —

Joseph I. Heneghan:

Laboratory examination was never able to established one way or the other whether or not this was Sunday’s blood —

Earl Warren:

Yes.

Joseph I. Heneghan:

— but apparently from its effect on the petitioner, he know whose blood it was.

Felix Frankfurter:

Was there any suggestion that the trial that — that Phillips was overreached by this statement and was it claimed that the trial of this statement was conscious false on the part of the District Attorney.

Joseph I. Heneghan:

Yes.

In this sense, Your Honor, in arguing at the close of the People’s case, the attorney — the trial counsel, the attorney who led for the defense, argued most vehemently that this confession should be excluded and that the indictment should be dismissed because of this misrepresentation.

Felix Frankfurter:

But I mean in — in — on the witness stand —

Joseph I. Heneghan:

No, Your Honor.

Felix Frankfurter:

— was it — was the — the claim made through question and answer before the jury, that the defendant has been overreached by — by a consciously false statement?

Joseph I. Heneghan:

None whatever, Your Honor, none whatever.

Well, returning to the principle question which is, why did he confess?

Up to this point, and we must bear in mind that this question and answer statement that was taken by the Assistant District Attorney was not interrupted for any reason.

It was not a situation where he continued its exculpatory statement, then there was an interruption, the Assistant D.A. left the room, a half hour or an hour passed and then when he came back, he was agreed to already to confess.

The early — but this was one statement.

The early part of this statement is remarkable.

Phillips in addition of being intelligent is an extremely articulate individual with a mask of almost total recall of specific detail.

This part of his question and answer statement that he was — gave to the Assistant District Attorney was almost exactly the same as he had given earlier before the discovery of the body to Detective Rouffet and that he gave license numbers, names of people he met, detailers involved, itinerary had taken the day of the crime, so as to place himself far away from the location of the school or the corner near the school were Sunday had been picked up.

Incidentally, the description that was furnished by Sunday’s classmate could have fit anyone of thousands and thousands of Negro men in the village of Hempstead to say nothing of the rest to the County of Nassau.

But here was this statement going along until the moment when he is confronted by the one thing that he couldn’t lie away from.

Up to that, the statement was a tissue of lies.

There was — this was the one thing that when he was confronted with it, he realized that he could not lie away from.

At that point, here is a man — we have this word in the suggestion, of course, in the briefs now that he was beaten and kicked around.

Joseph I. Heneghan:

Here was the man who — when he is confronted by that, calls the — asked the Assistant District Attorney call in those police officers.

Why?

The point, the matters, “He kicked me, he beat me,” no, to shake hands with them.

In their reply brief — in the reply brief, the petitioner says, “Well, these put up evidence on number of things,” the shaking of the hands, evidence that he was finally so overcome, so overborne that it was significant of the fact that he was giving in capitulating.

We can assume all kinds of things as to why he shook hands with these officers.

He might have been congratulating among their appointments or promotions, that was beside the point.

If this was the man who on cross-examine — while being pressed on cross-examination and tried to wiggle out of the Assistant D.A.’s questions as to why his testimony deferred from the answers he gave in his question and answer statement that he was beaten, would he shake hands with him?

We say it’s inconceivable.

Further, the record shows that the police exceeded to his request to call in a priest.

He was Catholic.

The little girl and her mother — the entire family was Catholic.

He was — the police called in a priest right away.

They brought in Manita Graham and Curtis Maddox again.

They arraign them at the very first opportunity at 10 a.m.

Following the arraignment, Phillips voluntarily agreed with them to go out and visit the scenes of the crime.

Now, is this — is this conceivable that a man who claims for the first time on his trial that he was beaten?

After arraignment before a judge would thereafter voluntarily, drive around the county with the police?

Is it conceivable that if a police had beaten him or had laid a finger on him, they would have brought in his former wife, a priest or arraignment before a court where he could make prompt complaint?

No complaint was made.

There was no complaint made when he was placed in a detention cell.

In fact, there was no issue raised at the trial.

Felix Frankfurter:

When were — when were the two counsels who defended him at the trial appointed?

Joseph I. Heneghan:

Not until after the indictment had been returned.

The practice in New York is to assign counsel after indictment and not before.

The preliminary arraignment before the magistrate is merely to advise him of all his rights under the statute to fix bail if it’s a case where a bail maybe fixed and to conduct an examination if requested by the defendant.

New York practice is in all arrest prior to indictment.

The defendant is entitled to an examination, confrontation of the witnesses and they must take the stand and spell out by their testimony and they are subject to cross-examination whether or not basis exist for holding him for the action of the grand jury, and that basis is there must be proof that a crime has been committed and unless be reasonable cause to believe that defendant under arrest has committed it and unless the people produced that proof within 48 hours and no adjournment is permitted under New York practice unless that proof is produced within 48 hours, the Court must order the release of the defendant.

Felix Frankfurter:

Counsel therefore — the indictment is filed, the counsel appointed in a capital case.

Joseph I. Heneghan:

Usually — in a capital case?

Felix Frankfurter:

This case.

Felix Frankfurter:

This kind of case.

Joseph I. Heneghan:

Within several days, Your Honor.

Felix Frankfurter:

Was that true in this case?

Joseph I. Heneghan:

I believe so, but I am not certain.

It’s —

Felix Frankfurter:

What’s the average time?

Joseph I. Heneghan:

Usually, in non — in all non capital cases, they are appointed immediately upon the arraignment.

As soon as the defendant is arraigned on the indictment, counsel is assigned in all felony cases in the — in Nassau County today.

Counsels are assigned every defendant unless they indicate that they intend to retain counsel.

Earl Warren:

Mr. Heneghan, may I ask?

Is the entire conversation between the District Attorney and the petitioner in the record (Voice Overlap) —

Joseph I. Heneghan:

Everything, Your Honor.

Earl Warren:

It’s all in there.

Joseph I. Heneghan:

In fact, on cross-examination of this court reporter who has been a court reporter for over 50 years, this was a fact — question that was asked by the petitioner’s trial counsel.

That was the whole break in the trial.

Up to that point, the petitioner’s trial counsel had been making statements which seemed to indicate that he planned to bring out 36 witnesses to prove that he had been assaulted, largely police witnesses, we have to assume.

However, when he asked the court stenographer, the court reporter, whether or not these transcripts had everything that was said and whether or not it was a fact that Phillips — that the report and the Assistant District Attorney did not come in to Phillips presence until after he’d agreed to confess, upon receiving a negative answer from the court reporter, the whole thrust of the offense changed from that point forward in the trial.

There was not another word read as to any violence because examination of the transcript shows that the Assistant District Attorney talked with the petitioner for almost an hour before he broke out and confessed and the testimony of the court reporter, in fact the testimony of Phillips himself is that that transcript omitted nothing, everything was put into that transcript by this court reporter.

Earl Warren:

For almost an hour, his statement was exculpatory and — and then it changed when the District Attorney mentioned the blood?

Joseph I. Heneghan:

That is right, Your Honor.

Felix Frankfurter:

That’s Exhibit 28, isn’t it?

Exhibit 28 is the one that gives you the — the —

Joseph I. Heneghan:

That is right.

Felix Frankfurter:

— to the answer (Voice Overlap) —

Joseph I. Heneghan:

That is right, Your Honor

Felix Frankfurter:

— type of questions.

Earl Warren:

We’ll recess now, Mr. —