Rogers v. Richmond – Oral Argument – November 08, 1960

Media for Rogers v. Richmond

Audio Transcription for Oral Argument – November 09, 1960 in Rogers v. Richmond

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Earl Warren:

Number 40, Harold D. Rogers, versus Mark S. Richmond.

Mr. Pollak, you may proceed.

Louis H. Pollak:

May it please the Court.

This habeas corpus proceeding, brings before this Court, a murder conviction and sentence of death which are now six years old.

It is a conviction and death sentence which Judge Smith formally of the District Court in Hartford, and recently elevated to the Court of Appeals for the Second Circuit has twice had occasions to say was obtained in violation of the Due Process Clause of the Fourteenth Amendment.

How then does it come that we are here as petitioners complaining of a failure to grant the writ of habeas corpus?

I submit to the Court that the case is one which raises at the most dramatic and hazardous level of life itself.

The question of the vitality of the constitutional rights protected by the Due Process Clause and of the federal habeas corpus statute designed to vindicate those rights.

This case comes here.

I think this Court knows for the third time.

The first, on a petition for certiorari from the Supreme Court of Errors of Connecticut on direct review.

A petition which was denied, a petition which raised questions of the validity of petitioner’s murder conviction based on contentions that incriminating statements were admitted in evidence against them at trial which were coerced and further that he was twice before each of those incriminating statements were elicited, twice denied access to his already retained counsel.

After the denial of certiorari in 1956, habeas corpus proceedings before Judge Smith were instituted which resulted in a grant of habeas corpus by him, a reversal by the Court of Appeals for the Second Circuit and a denial by this Court of certiorari, a denial however accompanied as this Court will remember by an opinion, a memorandum opinion construing the Court of Appeals’ opinion, an opinion which is at 357 U.S. 220 and which is reprinted at page 14 of our brief.

The case comes here today on a grant of certiorari by this Court last February, a grant to review the Court of Appeals affirmance of Judge Smith’s ultimate reluctant denial of the writ of habeas corpus, a denial of company as I’ve said by his second assertion.

Harold Rogers has been convicted by the State of Connecticut and sentenced to death by the State of Connecticut in defiance of the Fourteenth Amendment.

As the case stands today, it presents to this Court, three issues.

The two initially raised on review, unsuccessful petition for certiorari from the State Supreme Court, the coercive character of the incriminating statements admitted against petitioner, and the questions of denial of counsel.

And third, and this is — at this point perhaps the dominant question in the case, the question of the scope of the inquiry which can be made by the Federal District Court sitting in habeas corpus when that inquiry goes beyond the inquiry already made by the state trier whether in Court or jury which has already considered in some degree the constitutional claims of the applicants.

In this case, the problems involved whether the District Judge is bound by so-called factual findings of the state trier, whether the District Judge may take testimony to amplify whatever light is thrown by the state transcript.

I submit —

Felix Frankfurter:

Mr. Pollak, I don’t want to break in when you get in the mainstream of your argument.

But it would help me a great deal when you come to the crux of your argument, you would state exactly what was before the state court when the appeal came through it with reference to the admissibility of the confession of (Inaudible) confessions —

Louis H. Pollak:

That is the state trial court, Mr. Justice Frankfurter.

Felix Frankfurter:

What — what there was before this — what there was before the state trial court as both he hearing before the judges and the absence of — without the presence of the jury and then what went before the jury.

Then what went up to the Connecticut Supreme Court, what they actually rule, and what is after all the ultimate constitutional question here namely, whether this if is a confession, is that the core of the constitution?

Louis H. Pollak:

I think that is the core of the constitutional question.

Felix Frankfurter:

Because a lot of the things are merely evidentiary considerations with reference to that.

With so much discussion about whether he did or didn’t ask for consul, but not only there, that isn’t a constitutional issue apart from bearing upon the so-called confessions, am I right?

Louis H. Pollak:

Well —

Felix Frankfurter:

I just want to know what the actual undisputed, I hope, is (Inaudible) so that you should agree what it was really that was before the Connecticut Supreme Court on the affirmance of the judgment of which you sought to have had a certiorari here and then what there was before the District Judge the first time, and what there wasn’t, so that we know what the conceded facts are —

Louis H. Pollak:

I certainly will —

Felix Frankfurter:

It’s not the legal significance of any of it but just what the — well I should like to call historic facts.

Louis H. Pollak:

Well —

Felix Frankfurter:

At your good time, but it seems to me, if I may say so at the outset, there is a great deal of confusion in all of five opinion in this case as far as I’m concerned.

Louis H. Pollak:

I think there has been confusion and precisely because of that Mr. Justice that the program I planned for myself involved just your recommendation.

Before I enter into my description of —

Felix Frankfurter:

I expect across your argument, I wanted you to know what —

Louis H. Pollak:

No I — I — I believe —

Felix Frankfurter:

But it’s my understanding of this case, once I realize because I think I do realize that all the five opinions to me are highly unsatisfactory.

Louis H. Pollak:

Well, I will — I will take comfort in — in some of the opinions in Judge Clark’s opinion for instance, but I think there has been a confusion and I will attempt to see if we can eliminate that confusion for this Court because certainly precisely the issue to which Mr. Justice Frankfurter pointed.

Felix Frankfurter:

I don’t take comfort in Justice Clark’s opinion, because I don’t take comfort in an opinion which says that the District Judge has two appellate masters.

As I understand that he has only one appellate master, not this Court.

Louis H. Pollak:

I — I believe Judge Clark was expressing commiseration with Judge Smith for a very natural confusion to which he was subjected by the opinions, all of them which have been the cited opinions, I do believe that that will try to develop that Judge Smith was in error in his construction of what this Court ordered him to do, but I will address myself, Mr. Justice precisely to what you requested and direct myself to.

If I may do it in this sequence, may I say before I begin my description of the course of this case here, that my colleague, Mr. Zeldes who has been concerned with this case, since he was a student at the (Inaudible) Law School four years ago will develop the separate issue of access to counsel, to the extent that that is an issue separate from the denial of counsel as a coercive element in the confessions, which we challenge the validity of.

I will then direct myself to the course of this case from the beginning to how it got here with an attempt to make claim just what was before each tribunal at each stage of the case.

Earl Warren:

We will recess now, Mr. —