Rideau v. Louisiana

PETITIONER:Rideau
RESPONDENT:Louisiana
LOCATION:Beaumont Mills

DOCKET NO.: 630
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 723 (1963)
ARGUED: Apr 29, 1963
DECIDED: Jun 03, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – April 29, 1963 in Rideau v. Louisiana

Earl Warren:

Number 630, Wilbert Rideau, Petitioner, versus Louisiana.

Mr. Sievert.

Fred H. Sievert, Jr.:

Mr. Chief Justice, may it please the Court.

If on February 17, 1961, you are in the City of Lake Charles or the surrounding areas, in the late afternoon and you had your TV set on, you saw something which probably you had never seen before and probably may never see again.

We saw a 19-year old colored boy in the custody of the Sheriff of Calcasieu Parish confessing by sound and by this picture to the commission of three heinous crimes: murder, aggravated kidnapping and armed robbery.

That young colored boy is the petitioner before Your Honors.

The day before in Lake Charles in the late evening, a bank was robbed, three tellers kidnapped and taken out of town, shot, and one of them murdered with a knife.

The petitioner was picked up two or three hours later, he then thereafter made oral admissions, a written confession and the following morning, in the Sheriff’s office, this boy who had up to that time had been without counsel, without friends, without anyone to lean on, was made the participant as well as the record shows without his knowledge of what was happening in this movie, at which time a sound track was made by the local and only television station in Lake Charles.

And that film which lasted for 20 minutes wherein this petitioner confessed to the commission of these crimes which shown on the 17th to approximately 24,000 people, was shown on February 18, the following day to approximately 53,000 people and was shown on February the 19th to approximately 29,000 people.

Does the record show whether the film was made at the procurement, the instigation of the public authorities?

Fred H. Sievert, Jr.:

If the Court please, the record doesn’t show specifically.

We think, if the Court please, that the result, the prejudice that resulted is the same.

We have no proof —

No.

I realized that, but what I was wondering was, is this an instance of imaginative newspaperman doing this or is it a more sinister thing of the district attorney or the police contriving it?

Fred H. Sievert, Jr.:

Your Honor, I have no proof to the matter.

I think it was a — it was a very hot news item.

I think everybody became overexuberant perhaps about the quick capture and that sort of thing.

But I think that the phrases that resulted was nevertheless (Inaudible).

Yes, I understand that.

Byron R. White:

Does the record show that he did or did not know about the — the television, the movie made?

Fred H. Sievert, Jr.:

It doesn’t show either way.

As far as the record is concerned, he was sitting —

Byron R. White:

(Inaudible)

Fred H. Sievert, Jr.:

Well, as far as I remember, the film, it is in evidence, I think the film which show the equipment by whether or not this boy who I think was an 8th grade and knew what sound equipment was and whether this was merely part of police routine which he was not familiar with or not, of course I don’t know.

The record doesn’t show, if the Court please, that he voluntarily submitted to this or that he knew what was happening or that he gave them authority or okay, they’re convicting him in the eyes of the public before he was even arraigned.

Byron R. White:

But it didn’t showed he was — that it practically showed that he was aware (Inaudible)

Fred H. Sievert, Jr.:

No, Your Honor, it doesn’t.

Earl Warren:

Where did this television take place?

Fred H. Sievert, Jr.:

It was in the Sheriff’s office, Mr. Chief Justice.

Fred H. Sievert, Jr.:

At the time, the Sheriff was shown on the film.

He also interviewed a state troop who apprehended this petitioner the night before.

It lasted for approximately 20 minutes.

The Sheriff would do most of the talking.

He’d say one out, “Wilbert, didn’t you — then you threw the knife here?”

And the petitioner would say, “Yes” and shake his head and he said, “Well now, you don’t know why you did these crimes?”

And then the petitioner would say — shake his head and say, “Yes.”

So —

William J. Brennan, Jr.:

Was it taken in the community where he was tried?

Fred H. Sievert, Jr.:

Yes, Your Honor.

In the Sheriff’s office of Calcasieu Parish and that is the Parish seat, Lake Charles’ Parish seat in our area.

Earl Warren:

But could it possibly have been done without the confinements of the Sheriff?

Fred H. Sievert, Jr.:

Oh, the Sheriff had to know about it?

If the Court —

Earl Warren:

He had it permitted.

Fred H. Sievert, Jr.:

He had it —

Earl Warren:

He was in his office.

Fred H. Sievert, Jr.:

He participated in it.

Earl Warren:

Participated there.

Fred H. Sievert, Jr.:

Now, I think in answering to Mr. Justice Harlan’s question where the — as I appreciated his question was this designed with the purpose of prejudicing this boy, I can’t say that.

That was the purpose.

Fred H. Sievert, Jr.:

But obviously the Sheriff knew about it because he must have arranged it.

He permitted it in his premises where no one could have gone without his permission.

And of course, all during this time, this boy had no counsel.

The record doesn’t show that any time he had anyone to lean on which is another point that we have raised.

And again all of these, before arraignment, before indictment in fact, this took place February the 16th, to go on further, the boy was arraigned on March 1, 1961.

That time, not only had they had all admissions, a confession in writing, the following day the TV film, then the FBI took the confession.

Two weeks later, he was indicted by the grand jury and arraigned —

William J. Brennan, Jr.:

Did he have counsel at arraignment?

Fred H. Sievert, Jr.:

No, Your Honor, and we specifically raised that.

Fred H. Sievert, Jr.:

He was arraigned on three counts and one indictment murder, aggravated kidnapping to which he plead not guilty.

To the third count, which was armed robbery with which was a felony murder in the context of all of these facts, he plead guilty.

The only thing left —

William J. Brennan, Jr.:

Is that the arraignment you mean?

Fred H. Sievert, Jr.:

This was at the arraignment as yet he did not have counsel.

Mr. Leithead and myself were not appointed until after this boy had plead guilty.

William J. Brennan, Jr.:

How come he — was he asked how he plead — pleaded?

Fred H. Sievert, Jr.:

They asked him, what we are you — what were pleas, we were not (Voice Overlap) —

William J. Brennan, Jr.:

That’s the practice?

That’s the practice.

Fred H. Sievert, Jr.:

That’s the practice.

To call the — they accused before the boy asked him how he — the indictment is read, how does he plead.

And of course, he plead not guilty to the first two and then guilty to the third.

Why?

That was permitted since what was involved was a felony murder, of course we don’t know and we have raised it.

So —

Arthur J. Goldberg:

Mr. Sievert, did you just (Inaudible)

Fred H. Sievert, Jr.:

Yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Fred H. Sievert, Jr.:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Fred H. Sievert, Jr.:

If the Court please, the trial began on April the 10th, it was completed on April the 17th.

Arthur J. Goldberg:

(Inaudible)

Fred H. Sievert, Jr.:

Yes sir.

Oh, was less than 59 days as I calculated.

We had a boy charged, indicted, and sentenced to death.

Arthur J. Goldberg:

(Inaudible)

Fred H. Sievert, Jr.:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Fred H. Sievert, Jr.:

Yes, sir.

Arthur J. Goldberg:

That motion was denied?

Fred H. Sievert, Jr.:

That motion was denied and we of course reserved our — it was argued in our court and it was one of the bases of our coming at this Court for a writ.

In addition to the fact, and we have also raised that this boy being allowed to plead guilty without counsel.

We also raised the question of these purported confessions which went into evidence.

Now, if the Court please, this record may not be as complete.

On this matter, we raised that and quite candidly it was not one of the four points raised in our application.

We asked the Court though to consider it under Rule 23 since we think it encompasses something properly under the — or one of the four points that we did raise, in which the writ was granted.

William J. Brennan, Jr.:

Which of this — to have a plea, you mean at the arraignment?

Fred H. Sievert, Jr.:

No sir, the question of our not having a complete record.

William J. Brennan, Jr.:

Oh, I beg your pardon.

Fred H. Sievert, Jr.:

Now, in fairness to the state, we got us a complete record as was permitted.

Mr. Leithead and I without any apology were civil lawyers.

We don’t normally practice law.

We were appointed by the trial court in Lake Charles to defend the petitioner.

So, consequently, as Your Honors know, in a civil practice, a record is being made and you rely on your record.

In this case, as in criminal cases in Louisiana, if you’re questioning a witness on his voir dire examination and then you challenge him at the end and the judge says, “Well, I won’t grant the challenge.”

You accept, you reserve your — through his ruling, you reserve a bill, then everything stops.

And then the attorney for the accused and the district attorney attempt to reconstruct what was said.

So that if perhaps this record is not as complete as it should be, that is the reason and we did argue and raise that point in the lower court.

Now —

What was — is the record typewritten here?

Fred H. Sievert, Jr.:

Yes sir, Your Honor.

It’s about 700 pages, but actually it’s a lot of exhibits and pleadings and the like.

There’s — there is several hundred pages of testimony which was taken when we argued our motions for change of venue and a sanity hearing and the like.

Now, one point which I think will be raised by the State on this matter of not having counsel at the time of arraignment under our law, the judge may permit an accused to withdraw pleas for the purposes of filing motions.

That was done in this case, but we would say to Your Honors even though we were aware of the Hamilton case and the case that Your Honor, Mr. Chief Justice read a procurement opinion in today, I think it was on Docket Number 600.

Nevertheless, even if we must for some reason in this case point to prejudice, we think this, the boy’s plea of guilty to the armed robbery which was a series, one series of transactions, one crime was aired in the newspaper so that consequently he was at a critical time without the benefit of counsel.

So later when we withdrew those pleas and we said we now enter pleas of not guilty and not guilty by reason of insanity such pleas became mere lawyer’s pleas.

And —

William J. Brennan, Jr.:

Well, that was substantively for what happened in the merits, namely, the admission of the plea and —

Fred H. Sievert, Jr.:

Yes.

William J. Brennan, Jr.:

— the actual admission in evidence.

Fred H. Sievert, Jr.:

Yes sir.

If we must point to something, we point to that.

Now, if the Court please, on our change of venue when that was overruled and we went to trial, it took a number of days to select a jury.

This petitioner was required, if the Court please, to submit his life to a jury of 12 persons, three of whom had seen this entire TV film who have heard the defendant confess, who had seen the petitioner’s face as this man confessed.

Now, if the Court please, if you’re starting off with three people against you and I don’t challenge the sincerity of those jurors who sat on the case, but we think, if the Court please, that it’s not within our human understanding and everyday experience for a district judge to say to those three people, “Now, can you remove from your mind this 20-minute film that you saw this boy confessing.”

We don’t think that that conforms with reasons, if the Court please.

Did —

Fred H. Sievert, Jr.:

We —

Did the boy took the stand at the trial?

Fred H. Sievert, Jr.:

No, if the Court please, he didn’t.

Arthur J. Goldberg:

Were there jurors challenged?

Fred H. Sievert, Jr.:

We challenged them for a cause — we challenged them for cause, we then challenged them peremptorily, the court informed us that our peremptory challenge has had been exhausted and we had.

So that gentlemen is basically our case.

I don’t know what else I can say.

I couldn’t begin post to this Court cases on what is due process under the Fourteenth Amendment.

We have cited some cases in our brief which we feel come as close and which would a form basis of what we have said in our brief and what we’ve argued.

If — unless the Court would have any questions, I’d be willing to submit it asking the Court to save me one or two minutes for rebuttal.

Byron R. White:

Wasn’t your argument on the lack of counsel point at arraignment.

You’re saying that he had no counsel in arraignment.

Have the boy pleaded guilty, the plea was with the fact that he had pleaded, was publicized in the newspapers, and so what?

Fred H. Sievert, Jr.:

Well, it was publicized in the newspapers so that when we withdrew after being appointed that plea of guilty, and we then entered for him pleas of not guilty and not guilty by reason of insanity then that was aired on the newspaper and that’s very similar to the Maryland case where the jury knew of that, knew of that fact.

Byron R. White:

Yes, but the — in the Maryland case, it was introduced into evidence before the jury that was actually trying the case.

Fred H. Sievert, Jr.:

Well, to be can —

Byron R. White:

And you’re making the same kind of an argument here that you make about the television show that this really was the general community prejudice and entered into the fact, he couldn’t get a fair trial in this community.

Fred H. Sievert, Jr.:

Yes sir and Your Honor, I’d have — I’d be less than candid if I — see, we don’t have a type of record we would have if this were a civil case.

It’s possible and this is entirely outside the record but it’s possible that one or more of those jurors had seen this plea of guilty which — in the newspaper.

Byron R. White:

But it doesn’t show that they did.

It doesn’t show —

Fred H. Sievert, Jr.:

No, sir.

William J. Brennan, Jr.:

It doesn’t show like — likely into the — in the case of the television where the record does show that some of the jurors have seen the television program.

Fred H. Sievert, Jr.:

No sir, it doesn’t.

But the record does show that those three did see the television program.

Byron R. White:

But none of them — the record doesn’t show that any of them, read or heard the plea of guilty.

Fred H. Sievert, Jr.:

I have — no sir, it does not.

I might mention and then I will — I’ll close, we also challenge — we can’t find any case where two police officers even though considered to be special deputies were allowed to sit on a petty jury in the parish where they hold their commissions and decide a case such as this.

We have not been able to find any case.

So here, this petitioner was faced with three people who couldn’t possibly wipe out of their minds his guilt before the first witness was called, without an attorney at the time of arraignment.

And at this time, it was critical because of the subsequent newspaper publicity and he was forced to take two other jurors who call themselves, who actually held Deputy Sheriffs Commissions although of a special nature.

Thank you.

Earl Warren:

Were they challenged?

Fred H. Sievert, Jr.:

We challenged them also, if the Court please.

Earl Warren:

And you did use all your peremptory —

Fred H. Sievert, Jr.:

Used all our peremptory challenges and challenged those five persons and actually, one additional person which we haven’t discussed here, five that we have challenged in which we preserved both in the — in our State Supreme Court and in our writ here.

Thank you.

Earl Warren:

Mr. Salter.

Frank Salter:

Mr. Chief Justice, may it please the Court.

With reference to the question of appointment of counsel in this particular matter, I would like to direct the Court’s attention to the fact that as of the time of the arraignment, prior to the appointment of able counsel, the defendant entered a plea of not guilty to the crime of murder which is the only crime for which he has been tried and convicted.

This crime of robbery, armed robbery which he had entered a plea of guilty to, in which plea the Court permitted to be withdrawn along with all other pleas has never been to trial Your Honor, only the charge of the murder.

Earl Warren:

But it’s been before the public.

Frank Salter:

Yes.

Now, on this question of appointment of counsel, as both counsel agree, the arraignment was set aside on — as it is permitted to be done under Louisiana law.

And the defendant was arraigned again with the assistance of counsel.

We take the position that this case differs from Hamilton, David Hamilton versus Alabama.

And that under Alabama law, an arraignment cannot be set aside once a man has been arraigned, there are certain rights that are irretrievably lost.

That is not the situation under Louisiana law.

(Inaudible)

Frank Salter:

No sir, none whatsoever.

And then this particular — that is the law of Louisiana and in this particular case, he was permitted to withdraw those pleas.

Frank Salter:

In other words, that arraignment was set aside as if that it never occurred.

Now, Your Honor, the question is on that particular point itself, are we to be permitted to correct if it is a mistake, a mistake as we did in this case at that time with reference to the arraignment and counsel are — does the law deny us the right to correct it at the time we did and require us to go on through trial through all of the appellate procedures within our state and through the Supreme Court and then go back and correct it on that particular point.

They have had this defendant as able counsel.

Now, with reference to their question number three with the Court’s indulgence, I am skipping around on their question.

Earl Warren:

No, (Voice Overlap) — in your own language —

Frank Salter:

I’ll discuss their question number two first.

Earl Warren:

In your own language, Mr. Salter.

Frank Salter:

With reference to their question as to the oral and written confessions, this crime was committed at approximately 7 p.m.

Within an hour or two, the defendant was arrested driving one of the victim’s automobile down the highway with the suitcase full of the $14,091 that he’d gotten from the bank when he robbed it and kidnapped them at gunpoint and took them out and lined them up, started shooting at them.

The oral confession at which defense counsel alleged with certain statements made by this defendant on the ride back from highway Louisiana close to the point of capture to Lake Charles, some distance of ten miles.

Those oral confessions, Your Honor, the record will reflect were in the nature of spontaneous confessions.

They were not the result of an interrogation.

They were not a question and answer confession.

While riding back with the Sheriff and another deputy, he makes certain admissions of a spontaneous nature.

Was that before — were those before or after the television soundtrack?

Frank Salter:

Sir, this was within two hours after the offense was committed.

Now, the television didn’t take place until the next day.

He was captured in riding back, these oral confessions.

Upon the return to Lake Charles that night, he was taken into the Sheriff’s office where he again and in more detail, orally confessed and that confession was reduced to writing and signed by him.

Now, the people present during that confession were myself, two FBI agents, the Sheriff, two or three deputies, the defendant, all in a rather large room.

That was a narrative type confession, Your Honor.

As matter of fact, the record reflects that one question was asked that defendant at the time this confession was taken.

He’s been brought into the jail from the car after being transported in from the point of capture.

He sat down on a chair and he was given a cigarette and the record’s going to reflect now the question that was asked, “Wilbert, do you want to tell us about it?”

That’s the interrogation.

Arthur J. Goldberg:

Mr. Salter, have you tried (Inaudible)

Frank Salter:

Your Honor, he was not at that point advised of any right to counsel.

He made no request for counsel.

His mother was sitting out in the waiting room with his brother.

As to whether there’d been any conversation between them, I do not know but she knew he was there.

Frank Salter:

Of course, now this case on the question of confession and counsel can be distinguished and it’s distinguishable from Spano versus New York in this regard.

Byron R. White:

(Inaudible)

Frank Salter:

He was advised, that’s set forth in page 7 of the brief, Your Honor, that he didn’t have to say anything that anything he said could be held against him —

Byron R. White:

And could the counsel —

Frank Salter:

— and could be used against him in trial.

Byron R. White:

The counsel — his right to counsel wasn’t (Voice Overlap) —

Frank Salter:

Was not discussed in any regard.

As I say Your Honor, this — these two confessions, the oral on the road back from capture to the jail and the oral at the jail that resulted in being reduced to writing of a spontaneous nature in a narrative type confession not the result of interrogation.

And this — this is further distinguished from the Spano case with regard to counsel in this respect.

In Spano versus New York, the defendant had already been indicted as the Court said the crime had already been solved.

The defendant had already been indicted.

He had been there with his lawyer and his lawyer said, “Don’t talk.”

And then they interrogated him in shifts for eight hours.

In addition to that, he used a supposed friend on the Police Department lulled him into (Inaudible) Security.

Whereas here, there’d been no indictment, the confessions were in a nature of spontaneous narrative type confessions taken in the course of the search for the person who had committed the crime before any indictment.

Arthur J. Goldberg:

(Inaudible)

Frank Salter:

What paragraph, if you mind —

Arthur J. Goldberg:

(Inaudible)

Frank Salter:

Your Honor, it is not my position that he was advised the right to counsel.

Arthur J. Goldberg:

But what about the (Inaudible)

Frank Salter:

He was advised as of the time that I was present with reference to the statement but not of — not with reference to counsel —

Arthur J. Goldberg:

(Inaudible)

Frank Salter:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Byron R. White:

Is that in the record or not?

Frank Salter:

Well, Your Honor, it’s —

Byron R. White:

Could you give a record citation for (Voice Overlap)?

Frank Salter:

Let me see.

Arthur J. Goldberg:

The petitioner gave this record citation part at page 68, quoted this one.

Byron R. White:

And how about you — how about —

Frank Salter:

That is the area in which it’s covered, Your Honor, the — page transcript citation given by the petitioner in this Court.

Now, —

Byron R. White:

Well, is there some conflict between the two of you as to whether they — whether he was or wasn’t advised about his right to remain silent or the fact that anything he said might be used against him?

Frank Salter:

With reference to the spontaneous oral confession made coming back to the jail, I have — I cannot state one way or another whether he’s advised —

William J. Brennan, Jr.:

And the record doesn’t (Voice Overlap) —

Frank Salter:

— Your Honor.

The record will not show that whether he was advised of anything at that time.

Byron R. White:

But then in the office?

Frank Salter:

In the office — I take the position that he was advised not of a right to counsel.

Byron R. White:

No, I understand that.

Frank Salter:

But that what he said could be used against him.

Byron R. White:

And that he did, didn’t he and that he — remain silent.

Then a little bit of — I know that’s your position — well, is it your position also that record shows that, does it?

Frank Salter:

As I remember the record, it does Your Honor.

William J. Brennan, Jr.:

Well, that’s what —

Byron R. White:

There must be a conflict between the two of you.

Frank Salter:

With reference — with reference —

William J. Brennan, Jr.:

You rely on the finding or is it a finding?

I don’t know.

You’ve quoted page 7 from the opinion, I gather, of the Supreme Court of Louisiana, don’t you?

Frank Salter:

Yes, sir.

William J. Brennan, Jr.:

And certainly that Court said in any event that he had been advised that he didn’t have to make a statement.

Frank Salter:

That’s correct, Your Honor.

William J. Brennan, Jr.:

You said — the original record is here, isn’t it?

Frank Salter:

Yes sir, along with this television soundtrack with a statement that proceeded.

Your Honor, with reference to the television, of course they — it bears upon this case from the standpoint of whether or not a fair and impartial juror and jury and trial could be had.

But for that question, it would be of no moment to this Court but it’s — because it’s only in that way that it brings into play the constitutional question of whether or not he was able to obtain a fair jury and a fair and impartial trial.

Now, after this television film had been taken on the day following the two confessions and had been shown on three different occasions, defense counsel moved for a change of venue alleging that the bias and prejudice caused by this television would prevent obtaining a fair and impartial jury which could give the defendant a fair and impartial trial.

The State takes the position that this defendant could and did get a fair and impartial trial by a fair and impartial jury.

On the question of motion for change of venue, 29 witnesses appeared and testified.

Frank Salter:

Their testimony is in the record which is in this Court.

24 of those 29 witnesses were of the opinion that he could obtain a fair and impartial trial.

Hugo L. Black:

What is the population of your county?

Frank Salter:

I would estimate approximately 150,000 people.

Now, Your Honor with reference to figures though, this television station serves more than that parish or county.

It serves a much wider area.

Earl Warren:

Were you present at the television appearance?

Frank Salter:

No, sir.

Now —

William O. Douglas:

You said, 29 on the panel called?

Frank Salter:

There were 29 witnesses called.

Earl Warren:

Jurors, you mean?

William O. Douglas:

You mean jurors?

Frank Salter:

No sir.

29 witnesses called to — on the — to establish in evidence on the motion for a change of venue.

A hearing was held on that.

Earl Warren:

I see.

William O. Douglas:

29 and 24 said that —

Frank Salter:

That he could obtain a fair and impartial trial.

Now, that is shown in the record.

All of their testimony is in the record.

And —

Potter Stewart:

What kind of — what kind of witnesses were these?

Just a —

Frank Salter:

Whatever witnesses the State desired to call or whatever witnesses the defense counsel desired to call.

As a matter of fact, defense counsel hired a private investigator to go out among the public to ask certain questions to determine whether in their opinion he could get a fair and impartial trial.

As a result of their investigator’s efforts, they called some of those people they talked to.

Potter Stewart:

This was opinion evidence given by citizens of the community, is that it?

Frank Salter:

Yes, sir.

Potter Stewart:

Or was it evidence by the citizens that I couldn’t as a juror give him a fair and impartial trial, was it?

Frank Salter:

It was — it was what they felt like they could do and what they felt in their opinion of the citizens in the community could do.

Earl Warren:

Were the 24 witnesses called by the — called by the State and the five witnesses called by the defense?

Frank Salter:

Well, no sir.

As a matter of fact, I called some of the defense witnesses myself but they neglected the call.

Earl Warren:

They what?

Frank Salter:

That they did not call — that they’re subpoenaed but did not call.

Earl Warren:

Well, were the 24 though who testified that he could get a fair trial were those — the ones located and subpoenaed by the State?

Frank Salter:

I don’t remember the exact number, Your Honor.

Earl Warren:

But I thought you said there were 24 —

Frank Salter:

There were 29 who testified at the hearing.

I do not recall how many of them were state witnesses and how many were defense witness.

But the total figure that testified at the hearing on a motion for change of venue was 29, five of them said he could not get a fair trial, 24 of whom said that he could.

Now, I do remember then the record will reflect that defense counsel’s investigator, I put him on the stand and he testified that he talked to no less than 31 people.

But yet, I believe the record will reflect, well, five of them testified he couldn’t get a fair trial and he — in his — in the record, it shows their investigator talked to 31 people which indicates —

Earl Warren:

I suppose — I suppose though it wouldn’t be a very popular thing in that community after that television appearance for a citizen to take the stand and testify in his behalf that he couldn’t get a fair trial in that county.

Frank Salter:

Well —

Earl Warren:

Would it?

Frank Salter:

Your Honor, that’s a matter of conjuncture.

Earl Warren:

Well, it’s a —

Frank Salter:

Well, let me say this —

Earl Warren:

I only say it because you’ve tell us there were 24 —

Frank Salter:

Alright sir.

Earl Warren:

— who had said that he could get a fair trial and five has said that he couldn’t.

Frank Salter:

Who believed that he could.

Now, of course, I would presume and believe that the proof of the footing is in the aiding.

When it came time for trial, the record will reflect that approximately what 120 to 130, I believe, prospective jurors were examined on voir dire, Your Honor.

That’s the — oh, that’s the maximum number required to obtain a jury.

This case is quite different from — I believe it was Irving — Irvin versus Dowd, the case set Your Honor well.

In that case, from the first place, the newspapers and other media printed the defendant’s prior record.

Nothing like that was done here.

Frank Salter:

They had cartoons of electric chairs and things of that nature.

Editorial opinion and comment in that case whereas in the Rideau case, nothing but straight news reporting.

In that case, mob violence, the burning of homes, the Court having to enforce and put into effect strict rules of procedure in order to preserve the safety of the people in that community, nothing like that in this case.

William J. Brennan, Jr.:

How long after the last showing of this motion picture was the jury drawing?

Frank Salter:

Trial began on April the 10th.

I believe the last showing of this was probably on or about the 20th.

William J. Brennan, Jr.:

Of what?

Frank Salter:

Of February.

William J. Brennan, Jr.:

Of February?

Frank Salter:

Yes, sir.

William J. Brennan, Jr.:

Almost two months?

Frank Salter:

Yes sir, almost two months.

Potter Stewart:

Under your practice, how many peremptory challenges does each side get in a murder case?

Frank Salter:

12.

Potter Stewart:

Each side gets the same amount —

Frank Salter:

Yes.

Potter Stewart:

— of 12?

Frank Salter:

Each side gets same amount, 12 for the jury and then one for the alternative.

Potter Stewart:

And each side exhausted its peremptories, did it?

Frank Salter:

Yes sir.

Potter Stewart:

And how many, how many causes this — how many challenges for cause were allowed?

Frank Salter:

I do not have the figure available, Your Honor, but there was something like a 120 to a 150 jurors, prospective jurors, examined on voir dire before obtaining the whole panel.

Potter Stewart:

Before you got — before you got a panel, including one alternative?

Frank Salter:

Yes sir, so — say, with 30 — well, let’s I say a 150, although there had to be a good number of those who were challenged because on the basis of conscientious scruples against capital punishment —

Potter Stewart:

We don’t have a —

Frank Salter:

— and many other things.

Potter Stewart:

We don’t have any record of the voir dire, do we?

Frank Salter:

The only record of the voir dire is in connection with those particular challenges where the Court overruled the defendant’s motion for challenge and they reserved the bill of exception.

Potter Stewart:

Challenge for a cause?

Frank Salter:

Yes, sir.

Potter Stewart:

That includes this two Deputy Sheriffs and the three people who saw the television.

Frank Salter:

Yes sir.

Your Honor, I would like to cover very quickly this two Deputy Sheriffs.

In many, many communities, if not all, some good citizen who want some form of identification, so maybe he’ll get a little friendly treatment from the police officer driving down the highway will go into the Sheriff’s office and say, “Sheriff, I’d like to have a commission.

And so if he is a person that the Sheriff feels is of good character and he can — that sort of thing.

He will say, “Here is your commission, it’s an honorary commission.

No pay, no duty, no nothing.”

Honorary.

Arthur J. Goldberg:

(Inaudible)

Frank Salter:

Yes, sir.

And those of a two tight men that defense counsel is talking about 100%.

Are we to assume —

(Voice Overlap)

Frank Salter:

— that people like that can’t be fair and impartial?

William O. Douglas:

But they — do they carry arms?

Frank Salter:

No, sir.

These two men are strictly honorary as justice says, like the Kentucky Colonel.

Earl Warren:

Aren’t they permitted to carry arms by reason of being a Deputy Sheriff, isn’t that why most of them get it?

Frank Salter:

Well, Your Honor, under our law anyone can carry arms —

Earl Warren:

Concealed arms?

Frank Salter:

— so long as they’re not concealed on their person.

Earl Warren:

Concealed?

Frank Salter:

Well, no, not concealed.

Earl Warren:

Yes, but can’t — can a Deputy Sheriff, Special Deputy Sheriff do that in your state?

Frank Salter:

Oh, yes sir.

Earl Warren:

But he does have some connection and you say that he —

Frank Salter:

Well —

Earl Warren:

He is a Deputy Sheriff because he likes to get some favors from the police.

Like he is speeding or something and gets a favor from them.

I suppose, if you testified against him, why those favors wouldn’t be forthcoming, would they?

Frank Salter:

Well, Your Honor, I think there that we would have to assume something outside of the record and assume something very sinister outside of the record.

Earl Warren:

Well, maybe it’s a little sinister to say he is entitled to some consideration for driving down the road against the law, might be some sinister in that too.

Frank Salter:

Well, that will be my error from straying from the facts of this case.

I’m sure that the record though in this case will reflect that these two men and it is on the record, were honorary deputies, no duties, no remuneration, no relationship of employer-employee and nothing whatsoever to show a prejudice on their part or part in allegation.

Earl Warren:

Are there case officers under your statute?

Frank Salter:

Under our statute?

Earl Warren:

Yes.

Frank Salter:

I suppose you could say that they would be, yes sir.

Earl Warren:

I thought so.

Frank Salter:

In other words, I suppose if it came down to a question of an arrest, they would be placed on the position of a police officer as opposed to the citizen’s arrest.

Yes, sir.

Thank you, Your Honor.

Earl Warren:

Very well.

Frank Salter:

If the Court please, unless any member of the Court would have any questions, petitioner is willing to submit the (Inaudible)

Earl Warren:

If there are no questions, we’ll adjourn.