Rogers v. Richmond

PETITIONER:Rogers
RESPONDENT:Richmond
LOCATION:Circuit Court of Montgomery County

DOCKET NO.: 40
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 365 US 534 (1961)
ARGUED: Nov 08, 1960 / Nov 09, 1960
DECIDED: Mar 20, 1961

Facts of the case

Question

  • Oral Argument – November 08, 1960
  • Audio Transcription for Oral Argument – November 08, 1960 in Rogers v. Richmond

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

    Earl Warren:

    — Harold D. Rogers, Petitioner, versus Mark S. Richmond, Warden.

    Mr. Pollak, you may continue your arguments.

    Louis H. Pollak:

    May it please the Court.

    When I left this building yesterday evening, after we have just begun this argument, I must confess that for a moment I felt a little disjointed, as if living somewhat of an island.

    I was moving back into the mainstream of a nation which was concerned, not with problems of this kind, but with a national election.

    And — and then as I thought about it a little more, I thought, “Well, perhaps that isn’t so.”

    Perhaps, the two hallmarks of a free nation are the exercise of the ballot, freely and secretly, and a fair trial, and of indication of the rights of every man to equal justice before the law for which this Court sits.

    And so I returned today thinking that our mission here is perhaps more important than it was than I thought it was even yesterday.

    I indicated yesterday that it was my purpose to direct myself to the dominant issue of the scope of the inquiry which the federal judge sitting in habeas corpus is to make when he is faced with an application for the writ and the issue.

    The constitutional issues are issues which have been at least inquired into to some extent in the state courts.

    And that my colleague, Mr. Zeldes, will address himself to the somewhat separable issue of access to counsel as a constitutional right by itself, perhaps as separate from the coercive character of the incriminating statements submitted against petitioner in the state murder trial.

    I am not going to — of necessity, as I describe the events in this case, I will be describing how the incriminating statements were elicited, but I do want to make it clear that it is not my purpose so much to be arguing that constitutional issues of coercion as to make it plain, how they arose and who considered those issues so that this Court can best be acquainted with what bears on the inquiry, which the habeas corpus court should be making and this I hope will in part be responsive to Justice Frankfurter’s very proper inquiry yesterday as to just who said what, to what tribunal, when and what did the State Supreme Court and subsequently, Federal Judge Smith sitting in the District Court have before him.

    John M. Harlan II:

    Could I ask you a question, Mr. Pollak?

    Louis H. Pollak:

    Yes, of course.

    John M. Harlan II:

    Do you conceive that the issue that we have up here simply goes to the question of the scope of the inquiry at this stage?

    Louis H. Pollak:

    No, Mr. Justice.

    I think this case could be disposed of on —

    John M. Harlan II:

    Reach the merits?

    Louis H. Pollak:

    I think — I think it would be entirely appropriate for this Court to reach the merits.

    Felix Frankfurter:

    But the lower court did — the lower court did.

    Louis H. Pollak:

    Yes, the lower court did.

    Felix Frankfurter:

    We got a judgment here saying that no constitutional right was taken, haven’t we?

    Louis H. Pollak:

    We — we have such a judgment.

    I — I think it would be —

    Felix Frankfurter:

    Why it’s not open?

    Why is there any question where they should be opened?

    Louis H. Pollak:

    I — I don’t believe there is, Justice Frankfurter.

    I think the issue could be reached in several ways.

    The issue could be reached on the basis of the record which Judge Smith on the Court of Appeals have held that they are limited to at this phase of the case.

    It could be reached on the basis of the record which Judge Smith addressed himself to at the first habeas corpus hearing, or indeed as Judge Clark dealt with the merits in his dissenting opinion below.

    Louis H. Pollak:

    It seems to me this Court could if it wished, though I don’t urge one course rather than the other on this Court.

    It seems to me this Court could address itself to the merits of the coercion issue on the basis of the state transcript itself.

    But, I —

    Felix Frankfurter:

    I don’t know why we get into the difficulties?

    Maybe I should get into them myself.

    But you’ll get into the federal court on a claim of a denial of a constitutional — federal constitutional right.

    Is it not the way — that — is it not the only basis of getting into the federal court?

    Is it not the only issue that was decided —

    Louis H. Pollak:

    Yes.

    Felix Frankfurter:

    — over the time that this matter was before the federal court?

    Louis H. Pollak:

    Yes, Mr. Justice.

    Felix Frankfurter:

    Now, whether the — the decision was rendered on an adequate basis is a different question, but that is the issue.

    The issue isn’t what — what the scope of judicial review is.

    That may be relevant to determining whether you affirm or reverse or remand what the District Court has now sustained by the Court of Appeals has done.

    But the issue is whether there is a denial of due process.

    Louis H. Pollak:

    I — I agree.

    John M. Harlan II:

    Well, I didn’t intend to stir up a collateral issue, but I prompted my question to this.

    Judge Smith, as I understand it, contrary to what he did at the first hearing, said that he would discharge the writ in this case before us, because he found himself constricted in making findings that he — if free, he would have otherwise made.

    Louis H. Pollak:

    That is correct, Mr. Justice.

    John M. Harlan II:

    Isn’t that right?

    Louis H. Pollak:

    Yes, that is correct.

    Now, if I may take the liberty in response to Justice Frankfurter’s question yesterday afternoon, Mr. Zeldes and I have attempted to facilitate this Court’s understanding of this very confusing record for which I make no apologies.

    It’s an amalgam of Connecticut procedure and the handy work of other attorneys and this is the printed record we have.

    To thread our way through it, Mr. Zeldes has prepared a compilation of what witnesses testified before the state trial judge, what before the jury, which of that testimony went to the State Supreme Court and what are that came before Judge Smith at which phase of the habeas corpus proceeding.

    Necessarily, this has been done in haste and we have only just had opportunity to give a copy to Mr. Ullmann and Mr. Zampano.

    This — this document in — in duplicate form is available.

    If it will be of service to the Court, I would offer it to the Court either now or at the conclusion of the argument that is simply a tabular indication of what witnesses’ testimony was disposed of, in what fashion before, what tribunal at what phase of the case.

    Earl Warren:

    The counsel has been furnished with a copy?

    Louis H. Pollak:

    Counsel has been furnished with a copy of five minutes to 12 —

    Earl Warren:

    Yes.

    Louis H. Pollak:

    — Mr. Chief Justice, and should not be bound by —

    Earl Warren:

    (Voice Overlap) —

    Louis H. Pollak:

    — certain limitation.

    Earl Warren:

    Certainly, then you may.

    It was the clerk (Inaudible)

    Louis H. Pollak:

    To summarize this case in brief as compass, petitioner was arrested in January of 1954 on a charge of attempted robbery.

    Felix Frankfurter:

    What you’re now doing — what you’re about to tell us now is what appeared before the state — at the trial?

    Louis H. Pollak:

    At the trial and I will — I will — but I will attempt Mr. Justice to distinguish as I go forward.

    Felix Frankfurter:

    Alright.

    I hope you will.

    Louis H. Pollak:

    Four days later, having hired an attorney of the late Thomas Robinson, public defender of New Haven, but hire — having hired Mr. Robinson in his private capacity, petitioner appeared before the City Court waived examination when it was bound over to the April term for trial on a robbery charge.

    He remained in custody and two weeks thereafter on January 30th, he was suddenly, on a Saturday, taken without any court order, which would be required under the Connecticut procedure, taken from the county jail to the State Attorney’s Office, Mr. Ullmann’s office, where he was interrogated from approximately noon or 1 o’clock to the completion of the interrogation after midnight.

    Very briefly, he found himself of being interrogated about a charge of murder which related to a murder which had taken place some three months before, two or three months before.

    He found himself at the outset confronted by a gun, which allegedly had been in his custody when arrested and which was now sought to be linked to that murder.

    He at once, according to his testimony before the state trial judge, the preliminary hearing on the admissibility of his statement, at once asked to see his counsel, his already retained lawyer and there is no contradiction by any witness that he did — no contradiction by any witness in the state court proceeding that he did make such a request at once.

    Felix Frankfurter:

    Where is that in the record?

    Louis H. Pollak:

    That is the testimony of petitioner Rogers which begins at page 239 and on 241 if you — Your Honor please.

    In the middle of the page, petitioner testified — I said I wanted — the question, “Who was your lawyer at that time?

    Mr. Robinson and you.”

    Mr. Corsi was doing the examining before the trial Judge Maletz.

    Did you tell Sergeant Mullhern that Mr. Robinson was your lawyer?

    No, he didn’t answer me.

    I didn’t name him.

    I said I wanted to see my lawyer.

    That’s all.”

    And more of the same.

    This is at page 241 of the state record.

    Now, this was testimony to the trial judge.

    This testimony was before the Supreme Court of errors.

    Rogers did not testify before the jury, nor did Rogers testify — I beg your pardon.

    Louis H. Pollak:

    Rogers of course testified before Judge Smith on habeas corpus into the same effect.

    Before Judge Smith, that testimony was contradicted by police officers who were present at that state of the interrogation.

    Felix Frankfurter:

    But you say that before Judge — before Judge Maletz, there was no contradiction of that which you refer on page 241.

    Louis H. Pollak:

    There was no contradiction of that, Your Honor.

    There was contradiction by Chief Eagan, a detective who was present from eight in the evening on who denied that — at that subsequent time, the petitioner asked for his lawyer.

    But there was no contradiction on the state record even though the officers were available in the state trial during the trial.

    There was no contradiction before Judge Maletz of the testimony to which I refer to you.

    Felix Frankfurter:

    But where is captain, if he was a captain, Eagan’s testimony on — as to request for a lawyer by Rogers?

    Louis H. Pollak:

    Mr. Ullman advises me very kindly that it’s page 233.

    Yes, that is correct.

    Under the center of the page, “At any time that he expressed the desire to see his attorney, he did not.”

    Now, at other places, Mr. — Chief Eagan indicated that he had no personal knowledge and could have had no personal knowledge of what transpired before that time.

    Potter Stewart:

    At the time, that there was this —

    Louis H. Pollak:

    Chief Eagan headed the interrogation at 8 o’clock in the evening after it was on — on —

    Potter Stewart:

    (Voice Overlap) 8 p.m.

    Louis H. Pollak:

    Yes.

    Potter Stewart:

    And he’s been there —

    Louis H. Pollak:

    He’s been there.

    Potter Stewart:

    The petitioner has been there.

    Louis H. Pollak:

    Since about 1 o’clock or between 12 and 1.

    The — the record is perhaps little cloudy as to that.

    Charles E. Whittaker:

    This is still at the prosecutor’s office?

    Louis H. Pollak:

    Yes, still in — in Mr. Ullman’s office.

    Mr. Ullman himself wasn’t there, but that was the — that was before him.

    Potter Stewart:

    One other question and perhaps you’ve answered this, so I missed it.

    You began by telling us that at the state proceeding, there was no — no — not of this statement by the petitioner that he had asked to see his lawyer.

    Was there any corroboration on that?

    Louis H. Pollak:

    There was no corroboration, no, Mr. Justice.

    I don’t know in the nature of things how it could have been obtained as the issue was tried out before Judge Smith.

    As I say there, there was denial in the sense that at last the state called the policemen who were interrogating at the time and they denied it and Judge Smith recognized the conflict and said, “It seems to me enormously probable that a man who had retained a lawyer would have asked for him and I tend to believe — I do believe the petitioner.

    Louis H. Pollak:

    I may say, Mr. Justice, that at the trial of the issue before Judge Maletz in the state court at petitioners’ counsel said having elicited Rogers’ testimony and the fact that Chief Eagan could only dispute it with respect to a much later period, said, “I assume that the State will want to introduce witnesses.”

    And the patrolmen were sitting — the officers were sitting in the courtroom, will want to produce witnesses with respect to this proof of period of time and no such witnesses were brought forward.

    Felix Frankfurter:

    Now, am I right that the Connecticut Supreme Court did state explicitly that he didn’t ask that his — his then counsel be called to the jail, but it — but there’s no — but — but it did not reject his testimony to a jury referred on page 241 that he asked for his counsel.

    Louis H. Pollak:

    The Supreme Court did not reject that testimony.

    I find — I think their opinion conceivably is ambiguous, but if I would read it as a —

    Felix Frankfurter:

    But it’s explicit on the point that —

    Louis H. Pollak:

    It is explicit on —

    Felix Frankfurter:

    — that he — there’s no evidence that he didn’t ask his counsel be sent to the jail, the — it’s explicit on that point.

    Louis H. Pollak:

    Yes, but it is —

    Felix Frankfurter:

    It merely states his claim that he didn’t ask — that he asked for counsel.

    He doesn’t reject that.

    Louis H. Pollak:

    That is correct and it seems to me, if I may say so, especially taking in context with Justice O’Sullivan’s dissent that the State Supreme Court assumed that he had in fact asked for his lawyer notwithstanding the one so-called finding which has assumed such enormous importance in this case.

    Judge Maletz says finding to the contrary or finding — we say unsupported by evidence and a finding which, if the Court please, was merely represented the judge’s subscription five months later of an assertion, a summation made to him and submitted to him by the State’s Attorney as part of the appellate process.

    Felix Frankfurter:

    Judge O’Sullivan in his dissent accepts his evidence since there was no contradiction of it.

    He explicitly accepts it, but the Supreme Court, Judge Wynn in his opinion states the claim without rejecting it.

    Louis H. Pollak:

    That is correct.

    Felix Frankfurter:

    But does state explicitly that there is no evidence that he asked — that he have his counsel come to jail.

    Louis H. Pollak:

    On the next day.

    That is true, Mr. Justice.

    And of course, the State Supreme Court did also accept as it must as there’s been no contradiction at any point that on the second day, prior to the hearing before the Coroner, petitioners’ counsel came to the jail to see petitioner and was denied access on order of the Coroner, an order reinforced by a call from the jailer to the State’s Attorney’s Office who said yes —

    William J. Brennan, Jr.:

    (Inaudible) what finding has been encouraged (Inaudible)

    Louis H. Pollak:

    Mr. Justice, I — I don’t recall whether there’s a finding on that.

    There is, as Mr. Zeldes points out, testimony by two of the officers before Judge Smith that they knew that — that petitioner had retained Mr. Robinson.

    I don’t recall though that there’s any finding to that effect.

    Felix Frankfurter:

    May I ask whether under Connecticut procedure, the Supreme Court had restricted to the findings made by the trial judge or may they go to the transcript of the evidence.

    Louis H. Pollak:

    This is a most puzzling question, Mr. Justice.

    I think the answer is — I’m sure the answer is that in many circumstances, they can go to the evidence if the findings are in one sense or another insufficient or inadequate.

    I refer the Court to the primer on appellate procedure in Connecticut, Chief Justice Motley, his work on the subject, Sections 130 and 131 in the case of State versus McCarthy, a capital case some years ago in Connecticut.

    The Connecticut Supreme Court did take occasion to go back to the evidence when troubled by finding and pointed out that it was entitled to do so and should do so especially in a capital case to assure itself for the protection of the interest of the accused in a capital case

    Felix Frankfurter:

    Well, my question was to be — to be made more specific.

    Felix Frankfurter:

    If there is no finding, not that the finding is ambiguous or capable of — of one or another interpretation, but if there is no finding and there is evidence uncontradicted, may this — is the Supreme Court precluded from going to the evidence because there was no finding.

    Louis H. Pollak:

    Mr. Justice, among the other findings, there isn’t is a case which I can give you on that point in Connecticut, but I’m — to the extent that I can understand the Connecticut cases, they would all be consistent with the answer that you would expect that, but of course they could go —

    Felix Frankfurter:

    It should be great if it surprises of any — the Supreme Court made their findings.

    They can’t go to the evidence because there is finding.

    Louis H. Pollak:

    Well, I — I think that’s plain on — well, on the face of Judge Motley excellent summation in his volume on appellate procedure, but I don’t want to mislead you as to saying that I can provide you with a holding of that effect.

    Felix Frankfurter:

    Well, Mr. Ullman will touch the light on that.

    Louis H. Pollak:

    Now, I seem to have — I only have five minutes before I yield to my colleague Mr. Zeldes, so if I may very much compress what comes hereafter.

    Let me merely remind you that before the end of — of the interrogation in the State’s Attorney’s Office, the decisive moment was after Chief Eagan entered, he placed — he — he warned petitioner that he was going to call in petitioner’s wife and put his foster children in custody and preceded to make a phone call directing his — his subordinates to get ready to apprehend Mrs. Rogers and that phone call concededly by his own statement was on a dead telephone.

    It was a fake.

    He said to the judge it was done for the sake — he agreed that it was to make it plain to Rogers the advisability of making a statement.

    To the jury, Chief Eagan went further.

    He acknowledged that it was — that he told Rogers you would be “less than half a man.”

    You let us bring in your wife.

    And an hour went by, the chief began to move as if to phone again and petitioner then began the first incriminating statement.

    The second statement came a day later in the Coroner’s office after the Coroner had made sure, after the Coroner, one, had issued a — his own form of warrant to detain Rogers as a suspect for murder and two, had accompanied that with an order that no one be allowed to see Rogers, and immediately that had impact in the sense of barring Rogers’ attorney who at noon on Sunday came to see Rogers at the jail and was denied admission, a denial confirmed on a phone call by the jailer to Mr. Ullman’s office and the jailer recalled to Mr. Ullman.

    And five hours later, Rogers was taken to the Coroner’s office, interrogated.

    The Coroner says he warned him of his right, assured him of his right to have assistance of counsel.

    He agreed in testimony before the trial court that this was a stop warning.

    The Coroner apparently was free to give that assurance of right to counsel having already taken steps to see to it, steps which had to take an effect that counsel would not get to see petitioner.

    Now, these were the statements that were admitted in evidence against Rogers, which led to his conviction, a conviction sustained by the State Supreme Court.

    The further steps, I think this Court knows, that Judge Smith granted the writ, having before him — taking testimony, both offered by petitioner and by the State without objection on either side and taking all the documentary evidence of the state proceedings that was submitted to him and —

    Felix Frankfurter:

    Submitted by who?

    Louis H. Pollak:

    That was submitted by the petitioner.

    Now, I think —

    Felix Frankfurter:

    Petitioner was the moving party.

    Louis H. Pollak:

    Petitioner was the moving —

    Felix Frankfurter:

    What — what did he submit?

    Louis H. Pollak:

    Now, I — if I’m wrong on this, I’m — I hope and I’m sure that either Mr. Zeldes or Mr. Ullman will — will correct me, but I believe that petitioners submitted to Judge Smith virtually — well, what came before Judge Smith was all of the testimony which was before Judge Maletz with the exception of about four genuinely inconsequential pages, which Judge Clark discusses in his dissent below.

    Felix Frankfurter:

    Petitioner had a copy of the stenographic minutes while they’re in the position of counsel for Rogers, a set of stenographic minute.

    Louis H. Pollak:

    Of the —

    Felix Frankfurter:

    Both of the proceedings he brought, Judge Maletz on the admissibility and the — then the whole trial charges request a test — a testimony.

    Louis H. Pollak:

    I believe there was and I’m — I’m told that it was —

    Felix Frankfurter:

    (Voice Overlap)

    Louis H. Pollak:

    — and almost but not quite complete transcript that was in petitioners’ possession.

    I — I know that —

    Felix Frankfurter:

    Was it made available to you?

    Was the —

    Louis H. Pollak:

    I don’t think there was any problem of access to the — to the state transcript.

    Felix Frankfurter:

    There’s nothing to prevent petitioner to submit the complete stenographic minutes of all proceedings before Judge Maletz in person or at the presiding judge with the jury.

    Louis H. Pollak:

    I believe there was nothing to prevent that.

    I believe that what was submitted, Mr. Justice, was everything that petitioner conceived possibly to bear on the issues and what — and I think the test of this is that when that record was amplified on remand from the Court of Appeals, the only further testimony that came in were these two or three pages of testimony by the jailer and the sheriff as to their procedures in keeping custody of — of the prisoner, letting him out although without court order to Mr. Ullman’s detective and began denying Mr. Corsi, petitioner’s attorney access to and this was the only testimony that was added to the record on remand.

    The only other item being the so-called findings by Judge Maletz, which were not offered to — to Judge Smith.

    Felix Frankfurter:

    Did they go — did they go up to the Supreme Court, those finding?

    Louis H. Pollak:

    The findings did.

    Yes, they did, Mr. Justice.

    Felix Frankfurter:

    Is it appropriate to ask you why those findings were not submitted to Judge Smith?

    Louis H. Pollak:

    It’s certainly appropriate to ask and I have no way of answering responsively except perhaps for the feeling of the — the finding were, if you will, an — an irrelevant, an — an — a virtually irrelevant document as I really think they should be treated to be an assistance in the state process of adjudication, which really throws very little light on anything decided by Judge Maletz since he had made his decision on the confessions five months before.

    I don’t — I don’t say that we would have any objection of that being —

    Felix Frankfurter:

    I don’t have to follow you because you couldn’t answer what the kind of certainty of these (Inaudible) likes to answer questions.

    Whether — whether the Supreme Court of Connecticut is foreclosed or rather restricted to findings that go up to it and now you say that these — those findings are rather irrelevant.

    Louis H. Pollak:

    I think — if Your Honor please, if they are irrelevant to the inquiry to be made by Judge Smith.

    Felix Frankfurter:

    Not — how can they be irrelevant if those findings are part of the basic of what the Supreme Court of the State determines?

    Louis H. Pollak:

    May I — may I put it this way, Mr. Justice.

    They’re not irrelevant in the sense that I would have any objection to their being (Voice Overlap) —

    Felix Frankfurter:

    I’m not talking about your — your — as a matter of grace or generosity.

    I’m talking about the process —

    Louis H. Pollak:

    Yes.

    Felix Frankfurter:

    — which the Supreme — which the — a Federal District Court is called upon May.

    The Federal District Court as I understand it, stating it summarily, is trying the trial as affirmed by the Supreme Court, the highest court of the State.

    That’s what its doing, isn’t it?

    Felix Frankfurter:

    And if it’s trying the trial then that, which is part of the trial process, the procedural process of the State on which the Supreme Court, the highest court of a State act, I don’t see why that isn’t most relevant.

    Louis H. Pollak:

    Well, Mr. Justice, perhaps I misstated myself.

    It’s an entirely proper document, but I think the irrelevance of it, the practical irrelevance of it for the purposes to which Judge Smith on this Court should be directing itself is demonstrated by the fact that the State Supreme Court obviously assumed that the findings with respect to the only — only disputed fact in the whole record, the request for counsel at the first interrogation obviously assumed that those fact “finding” by Judge Maletz was not in any way an obstacle to a determination of petitioner’s legal rights.

    Felix Frankfurter:

    (Voice Overlap) — I assume that that’s the decisive question in the case and for me, the decisive question in the case is whether or not this confession was admissible under the standards laid down by this Court.

    Louis H. Pollak:

    Well, of —

    Felix Frankfurter:

    And the findings of the trial done on that point are among the most relevant things to come before the state court and therefore to be considered by a Federal District Court which is, I repeat, trying the trial below.

    Louis H. Pollak:

    Mr. Justice, I don’t believe we’re in disagreement or perhaps you disagree with me, but I don’t — with all deference think that I disagree with you.

    Felix Frankfurter:

    More important —

    Louis H. Pollak:

    The —

    Felix Frankfurter:

    — for me to agree with you than for me to agree

    [Laughter]

    Louis H. Pollak:

    Yesterday, you instructed counsel that it was his function to disagree with the Court and I — well, push you quite that far, but I — I do think, if Your Honor pleases, that the — the issue as to whether petitioner requested his counsel, though obviously not this positive of (Voice Overlap)

    Felix Frankfurter:

    Minimizing the importance of it, but I’m not saying that the case is here as whether that that is the issue abstractly stated like that.

    Louis H. Pollak:

    Well, I’ve — I’ve already trespassed on my colleague’s time and I will try to return to this in the time that I’m saving for rebuttal, Mr. Justice.

    Earl Warren:

    Mr. Zeldes.

    Jacob D. Zeldes:

    Mr. Chief Justice, in the present posture of this case, great emphasis has been placed on the so-called state court findings of fact.

    Mr. Pollak has already addressed himself to these findings somewhat and I want to add a few comments, if I may.

    I want to emphasize of the outset that these are verbatim adaptions supplied to the trial court in Connecticut under the Connecticut procedure by the State’s Attorney and were filed five months after the trial.

    They are set —

    Felix Frankfurter:

    Did you have — did you have opportunity to comment or propose counter findings?

    Jacob D. Zeldes:

    Yes, Your Honor.

    Under the Connecticut procedure which is outlined in our brief at page 25 in a lengthy footnote, the appellant first files a draft finding.

    The appellee then files a counter finding and the judge takes which portions of these two documents he thinks applicable and prepares a finding for appellate purposes.

    In response to your previous inquiry directed to Professor Pollak that procedure for the correction of the finding in the Supreme Court of Errors is such that one of the standard means for correction is failure to make a finding on material evidence.

    This was not raised in the usual case in Connecticut because the finding with which we are concerned, that so-called findings of underlying facts, what the lower courts consider that to be, were made in the course of a ruling on evidence before the jury.

    And I think, if Your Honor would refer to the footnote of page 25, you would see the basic structure of the Connecticut appellate system, which I don’t feel that we have adequate time to explain the detail at this point.

    Felix Frankfurter:

    And I shall read it.

    Jacob D. Zeldes:

    I do want to emphasize, excuse me —

    Felix Frankfurter:

    I said I shall read it.

    Jacob D. Zeldes:

    I do want to emphasize, however, that under the decisions of all the courts below, the exclusive determination of the constitutional issue must be made on these finding and I think it’s important to emphasize that the — the Court of Appeals has not said that Judge Smith must confine himself to the state court transcript, which was created at the time these confessions were admitted, but he must confine himself exclusively to the findings of facts filed five months after the confessions were admitted.

    Felix Frankfurter:

    Well, if I may interrupt you, because the details of — of what’s happened here, it seems to me vide of any proper disposition of this case by this Court,(Inaudible) the case is very important one on that question.

    How did the fact that the findings made by the trial judge had not been before Judge Smith on the first ground come before the Court of Appeals?

    Jacob D. Zeldes:

    In this fashion, Your Honor, the findings of the state trial judge were never offered by either party at — at the original habeas corpus hearing of August 31st, 1956.

    Neither side offered it.

    I might say that Judge Smith accepted every bit of documentary evidence offered by either party.

    Felix Frankfurter:

    You see I’d find it very difficult to understand why those findings were not in the first instance before Judge Smith.

    Jacob D. Zeldes:

    Well, as Your Honor has pointed out in — in Brown against Allen, the crucial findings we’re dealing with, when we’re dealing with the delicate balance of federal-state relations is the findings relating to historical facts.

    Felix Frankfurter:

    Well, how do the — how do I know I’ve looked at this finding?

    How do I know what these findings contained unless they are before me?

    And how could Judge Smith know what those findings were unless they were before him?

    And as I understand the Court of Appeals if they — you would correct me, if I’m wrong, they thought that he was an important part of the matter out of which the conviction arose, the evidentiary matter, that was not before the habeas corpus judge, isn’t that right?

    Jacob D. Zeldes:

    That is correct, Your Honor, but that I think is important that that is not the sole basis of their remand instructions.

    If that were so, we might not be here today, but they said, “Examine the transcript” and then, “Conclude yourself.”

    And this is under the interpretations of the Court.

    Felix Frankfurter:

    I understand what they did and that’s why we — that’s why we didn’t deny without comment.

    That’s why we interpret it, if you please, what then the duty of Judge Smith was.

    That’s the whole point and that’s why a reference was made as to what a habeas corpus judge is to consider so that what the Court of Appeals did isn’t the definitive or the final thing with reference to the remand, the notation by this Court is denying the Court of Appeals’ decision, is the binding thing.

    Jacob D. Zeldes:

    We concur, Mr. Justice Frankfurter, but we feel that both Judge Smith on remand and the Court of Appeals in their second opinion have ignored the command of this Court.

    Felix Frankfurter:

    You may well be right.

    I’m not addressing myself with that.

    The point on which I would like to put emphasis is that in a habeas corpus proceeding in which they were available as what not to in the many instances in the appendix of Brown and Allen, where there were these formal documents, part of the structure you call it of the Connecticut appellate procedure in criminal cases.

    It seems to me difficult to understand why that was not before Judge Smith and I don’t mind expressing the opinion.

    It probably should’ve been and should be before Judge Smith and the other habeas corpus judge.

    Jacob D. Zeldes:

    I may say this directly to that point, Mr. Justice Frankfurter, it was never offered by the respondent.

    There is no indication whatsoever that Judge Smith would have rejected and I might add also —

    Felix Frankfurter:

    There is — isn’t it the respondents, you — you make this case — the petitioner or whatever you call him, the habeas corpus applicant is the pillar upon whom rest the responsibility of making out a case.

    Jacob D. Zeldes:

    Yes, Your Honor.

    I might also add —

    Felix Frankfurter:

    I — I think I — I may have my own opinion as to what the State should have done, but that doesn’t relief the responsibility of putting before a habeas corpus judge all the available documentation of the trial, the conviction under which you objected.

    Jacob D. Zeldes:

    I may add that he — the state trial — the testimony given before the state trial judge was for — before Judge Smith except for the testimony of two witnesses who testified in person before Judge Smith.

    Jacob D. Zeldes:

    Now, the record on appeal before the Supreme Court of Errors, Mr. Justice Frankfurter, contained these so-called findings with which we are concerned.

    Those are reported in all law library —

    William O. Douglas:

    Mr. Zeldes, do you realize that I don’t know all these case has been argued, but there (Inaudible) yet what cases about.

    The facts that have not been stated, the facts before the state court, the facts before the federal court, the difference between the two.

    This is all highly theoretical argumentations as far as I’m concerned.

    Jacob D. Zeldes:

    Yes, Mr. Justice Douglas.

    Felix Frankfurter:

    I just want to say it doesn’t theoretically, it reaches the very core of the case.

    William O. Douglas:

    Does — does it the facts are important to — or are they?

    Jacob D. Zeldes:

    Yes, the facts are very important.

    Felix Frankfurter:

    But what Mr. Pollak gave us the fact?

    William O. Douglas:

    Well, I see that here a paper, that’s — that — that summarizes a compilation of record experiences, record references, but I haven’t — hasn’t been impressed off from me what the — what is relevant seem — the relevancy of these various facts in the minds of you or Mr. Pollak to the issues before us.

    What are the crucial turning certain facts and circumstances and so on?

    Jacob D. Zeldes:

    The crucial issues in this case, Your Honor, are whether or not there was a denial of petitioner’s constitutional right as to the due process.

    William O. Douglas:

    I understand that, but I mean in terms of the facts of the case–what were — what is the turning point and so on?

    Jacob D. Zeldes:

    The two issues which have been raised throughout this proceeding at all stages are the coercive nature of the confessions and whether or not the denial of counsel in itself, regardless of the voluntary nature of the confession renders the confessions inadmissible.

    My time is somewhat limited.

    I had prepared to — to discuss the right to counsel as it’s affected here.

    I see Mr. Justice Douglas’ interest in the compilation which we have set forth in some reform for this purpose.

    There has been considerable discussion over the last four years since this case has been in the federal court over what testimony Judge Smith heard and what he did not hear and what he should have heard.

    It is our position, if Your Honor please, that the tribunal on August 31st held a habeas corpus hearing.

    Petitioner had requested a hearing, respondent did not object to a hearing.

    Petitioner offered witnesses and respondent offered witnesses.

    The issues were fully litigated before Judge Smith.

    At that point, respondent filed a lengthy affidavit asking Judge Smith to reconsider his opinion that both of these confessions were coerced and I might interject for just a moment to say that this was the first such opinion rendered by Judge Smith in 17 years as a district judge in the district — in the section of the State in which he hears virtually all habeas corpus petitions from the state prison.

    Yet, even when respondent filed his affidavit for rehearing, he never objected to the propriety of the hearing.

    And on appeal to the Court of Appeals for the fist time, respondent objected to this hearing and said Judge Smith should not have heard all of these testimony and the conclusion that both of these confessions were bad on the basis of what Judge Smith heard and saw himself in the federal plenary hearing cannot be considered by the court below.

    And instead, the Court of Appeals went on to shackle Judge Smith to findings filed by the state trial court for appellate purposes.

    I think, Your Honor, that I would urge this Court on the right to counsel point to keep in mind that it’s relevant in two respects, as one of the totality of circumstances surrounding the exaction of the confessions.

    In a long line of cases starting with Brown against Allen which will I — I will not repeat now, this Court had set out the due process limits on the use of challenged confession.

    I urge this Court to consider the denial of counsel also in regard to what five justices of this Court in separate opinions seem to indicate, renders the confessions inadmissible on the basis of the denial of counsel in itself.

    Jacob D. Zeldes:

    I think that since charges were filed against petitioner, although they were charges on another crime, that he is entitled to his absolute right to counsel in a capital case, and that the resulting confession should be held a denial of due process of law.

    John M. Harlan II:

    Haven’t we decided against that contention?

    Jacob D. Zeldes:

    Your Honor, there are five Justices in this Court who have accepted that position, if not, in one opinion.

    Your Honor is correct in saying that it has been rejected by the majority the Court in the Crooker case and in Cicenia versus Lagay.

    But I feel that — reading the opinions of this Court, the Spano concurrence might — Mr. Justice Stewart and Mr. Justice Douglas’ dissent in Crooker indicates that five Justices now feel that the effective way to protect the right to counsel is to invalidate a resulting confession whether or not it is voluntary under the traditional principle set forth in the Spano case.

    Felix Frankfurter:

    The — neither of you has argued whether this confession apart from isolating this factor of counsel is in view of the decision of the Supreme Court of Connecticut violated of our standards of what constitutes a voluntary confession.

    Jacob D. Zeldes:

    We feel, Your Honor, in this regard that Judge Smith’s decision in validating the confessions is not clearly erroneous and that Mr. Ullman had never claimed so for the State.

    To go through the details of the circumstances —

    Felix Frankfurter:

    Why you always — you argued on Judge Smith’s determination.

    What about the Supreme Court of Connecticut on the record of this case?

    Jacob D. Zeldes:

    If Your Honor please, in — in way —

    Felix Frankfurter:

    Do you think they laid down the right standards of what constitutes voluntariness?

    Jacob D. Zeldes:

    The Supreme Court of Errors detailed in our brief used a standard which is in patent conflict with the decision —

    Felix Frankfurter:

    Well, but not a word has been said on that subject until I now elicited that answer by my question.

    Jacob D. Zeldes:

    The — the time is so much short if your — if Mr. Justice —

    Felix Frankfurter:

    Yes, but if you’re right about that, you don’t need anything else, do you?

    Jacob D. Zeldes:

    That is correct, if Your Honor please.

    For this reasons therefore, I respectfully request that this Court reverse the judgment below and remand this decision to Judge Smith with instructions to issue the writ.

    Thank you.

    Earl Warren:

    Mr. Ullman.

    Abraham S. Ullman:

    Mr. Chief Justice, may it please the Court.

    I should like to address myself to the facts went before the state trial court, and the record that was before the Supreme Court of Errors as well as to some of the facts before the District Court in the first hearing.

    I’d like to say at the outset that Judge Smith, in the first decision, determined that the proceedings in the Connecticut trial court and in the Supreme Court were tainted with a lack of due — with a lack of due process.

    He made that finding without ever having looked at the proceedings.

    He did not have before him the transcript testimony nor did he have the findings made by the trial court on these confessions.

    He didn’t have the plaintiffs’ counsel and he didn’t have the confessions themselves, which are most illuminating, in my opinion, as to the condition of the accused when he gave it.

    And when I learned that he hadn’t looked at this record and that was at the conclusion of the hearing, I moot to present all of that before you.

    He did not accept them as counsel plan.

    He did not accept everything.

    He rejected it (Inaudible) and they remarked merely as exhibits for identification.

    Abraham S. Ullman:

    Now, what were some of these facts before the trial court?

    We start off by having as a fact that Rogers was 46 years old, highly intelligent, a brother of a police officer who had have vast experience with the police by reason of that fact as well as by reason of his four previous arrests.

    He had been questioned by police on a number of cases as recently as three weeks prior to this confession.

    He had been arrested on the — January on charges of a contested robbery, breaking and entering and theft.

    And on that date, the murder gun was found in his possession.

    He was questioned and in his first statement to the police, he stated that he wanted that afternoon in a cracking.

    Charles E. Whittaker:

    Was it known —

    Abraham S. Ullman:

    But the following day, he admitted.

    Charles E. Whittaker:

    Was it known at that time that this was the murder gun?

    Abraham S. Ullman:

    We did not know at that time that it was the murder gun.

    You see — please Your Honor, this murder had taken place from West Haven on November 23rd.

    The arrest on January 9th was in New Haven.

    There was no test to the gun made immediately, although orders have been given around the several towns to have guns — all guns checked and it wasn’t until after Rogers was found over the Superior Court that my office entered into the case and that had test made and the report of those test came on Saturday, January 30th to my office.

    So that I say that Rogers told two different stories on — on his interrogations there by the police.

    Finally, in the second, he admitted that he had stolen the gun from a home of his nephew on or about the date of the murder.

    William O. Douglas:

    That was on the 30th of January, was it?

    The 30th of January?

    Abraham S. Ullman:

    The 30th of January —

    William O. Douglas:

    Yes.

    Abraham S. Ullman:

    That was the date —

    William O. Douglas:

    And that was — he’s been held in 21 days?

    Abraham S. Ullman:

    Yes.

    He’s been held on these other unrelated charges of attempted robbery, breaking and entering and theft.

    Charles E. Whittaker:

    And he’s been arrested —

    Abraham S. Ullman:

    And in the meantime had been bound over the Superior Court on those charges —

    (Inaudible)

    Abraham S. Ullman:

    — waiting for trial on those charges in the Superior Court.

    Now, to —

    Potter Stewart:

    Does that mean he’d been indicted on the other charges?

    On the —

    Abraham S. Ullman:

    He was not been indicted —

    Potter Stewart:

    Not been indicted.

    He had waived preliminary examination?

    Abraham S. Ullman:

    Preliminary hearing in the City Court bound over probable cause having been found by the City Court in these several charges.

    Potter Stewart:

    And in due course of indictment have presumably followed.

    Abraham S. Ullman:

    No — no indictment would be required —

    Potter Stewart:

    An information was —

    Abraham S. Ullman:

    Was Connecticut (Voice Overlap) —

    Potter Stewart:

    I see.

    Abraham S. Ullman:

    — and we precede (Inaudible).

    So the — to show that he was in no (Inaudible) of police, I might mention the fact, which is an evidence and which was before the Court, that on the date following the murder, when his nephew charged him with the theft of this gun, he denied.

    And he himself, Rogers, suggested, “Let’s get down to the police and report the gun was stolen.”

    And Rogers went there to the police and made such a report.

    We maintain that Rogers was well aware of his rights, his right to remain silent, his right to counsel, and his right that — that he didn’t have to say anything that might incriminate him.

    Even without a warning and even without counsel, he was fully aware of those rights.

    Now, as to request for counsel, Roger stated from the preliminary hearing that he requested Lieutenant Mulhern asked Lieutenant Mulhern in the afternoon for counsel, for his attorney, and he said that he asked Captain Eagan in the evening for counsel.

    Captain Eagan went on the stand and said that no request for counsel was made by Rogers that evening and the detective is present in the afternoon, had not reported any such request having been made that.

    Lieutenant Mulhern was not presented because he was hospitalized on this particular date.But at any rate, you have there a conflict of testimony.

    Rogers claiming that he has made the request both times, Eagan claiming that he did not make the request of him and that no report of any such request had been made by the officers.

    The court — the trial court was called upon to resolve that conflict and it chose to predict Eagan, as that kind of right to do.

    Charles E. Whittaker:

    Is it your —

    Abraham S. Ullman:

    Now —

    Charles E. Whittaker:

    May I ask you, is it your contention on that score that because of the direct denial by Mr. Eagan though there was none by the other officer that the trial court had the right to find Rogers incredible?

    Abraham S. Ullman:

    That is correct.

    Charles E. Whittaker:

    Is that your point?

    Abraham S. Ullman:

    Yes, that is our claim.

    Charles E. Whittaker:

    And — and the trial court did (Voice Overlap) —

    Abraham S. Ullman:

    Merely —

    Charles E. Whittaker:

    — such claim, did it?

    Abraham S. Ullman:

    — merely because the statement by a witness is not denied categorically, the Court can still choose to disbelief the — the witness.

    Charles E. Whittaker:

    If it has some basis.

    Abraham S. Ullman:

    On the basis of sizing him up, having seen him or having heard him and having known this background that Rogers had.

    Now, as a matter of fact on the hearing before Judge Smith, we presented Lieutenant Mulhern and two other officers who stated definitely that no request was made by Rogers for counsel at any time in the afternoon and that cover the whole day.

    But the findings made by Judge Maletz, the accuse did not at anytime on the day of the question request the presence or assistance of an attorney and we submit that on the evidence and on sizing up the witnesses that Judge Maletz was amply justified in making that broad finding.

    William O. Douglas:

    But Judge Smith did see the Rogers, didn’t he?

    He testified the —

    Abraham S. Ullman:

    Rogers?

    William O. Douglas:

    Rogers.

    Abraham S. Ullman:

    Rogers testified —

    William O. Douglas:

    (Inaudible)

    Abraham S. Ullman:

    — before Judge Smith?

    William O. Douglas:

    Yes.

    Abraham S. Ullman:

    Yes, he did sir.

    William O. Douglas:

    And he — as I read his opinion on page 434, he emphasizes — page 433, that the observation on Rogers on the stand and the judgment as to his credibility as a witness must be resolved before this fact can be resolved, so he differed with the state court on that, didn’t he?

    Abraham S. Ullman:

    Correct.

    William O. Douglas:

    Yes.

    Abraham S. Ullman:

    And he dismissed the testimony of the three officers whom he heard and Captain Eagan whom he didn’t give, by saying that their recollection is that — coincide with their subconscious urges for getting as we think that the subconscious urge of the accused would be far stronger than the — that of four officers.

    William O. Douglas:

    Well, he also thought that — didn’t he, that Smith — Judge Smith that since this man was represented in another proceeding by a lawyer, most assuredly, he would ask for a lawyer in this capitol —

    Abraham S. Ullman:

    He — Judge Smith quoted that it was probable if that (Voice Overlap) —

    William O. Douglas:

    Yes.

    Abraham S. Ullman:

    But we submit that Rogers was amply competent to choose to dispense with counsel.

    We say that he did at that day and he obviously did it the next day when he was reminded by the Coroner in a full and complete fashion of his right to counsel, his right to — to choose not to testify and is the fact that anything that he did say would be used against him.

    Rogers was altogether confident to choose to dispense with counsel as he did on both the cases.

    Earl Warren:

    But did I understand counsel like in saying that the Coroner cooperated with the police in — in holding him incommunicado at the very time that he says he advised him of his right to counsel.

    Abraham S. Ullman:

    If Your Honor please, yes, sir.

    On the day (Inaudible) had first confession to the police.

    The Coroner issued orders to hold Rogers incommunicado.

    He was intending to question.

    He wasn’t able to get to it because of five or six deaths that occurred on that morning and — from a gas explosion, so he didn’t get it until the afternoon.

    Now, petitioner didn’t ask the counsel, but counsel that has been engaged in this other case attempted to see him and was confronted with the fact that the Coroner had issued an order to be held incommunicado.

    Earl Warren:

    Well, he was the man’s lawyer, wasn’t he?

    Abraham S. Ullman:

    It was the lawyer that he — that was representing him in this other case.

    Earl Warren:

    Well, does the authorities determine the extent to which a lawyer can represent a man when he’s in jail?

    Abraham S. Ullman:

    Well, probably not.

    The — he does have a duty to advise him that he’s entitled to counsel and give him an opportunity to get it if he indicates that he wants it.

    There is some provision in the law that witnesses can be held separate while being — while the case is under investigation.

    Earl Warren:

    Is that to the exclusion —

    Abraham S. Ullman:

    The Supreme Court seemed to indicate that that would not permit it.

    Earl Warren:

    Is that to the exclusion of seeing his own counsel?

    Abraham S. Ullman:

    (Inaudible)

    Earl Warren:

    Is that to the exclusion of permitting —

    Abraham S. Ullman:

    The Supreme Court indicated that that was not to the exclusion.

    That it should not have been done.

    Felix Frankfurter:

    Is Rogers of which detain to as witness?

    At what point did he (Inaudible) to do it?

    Abraham S. Ullman:

    Well, by — the order of holding him incommunicado, he was — it was indicated that he was being held as a witness or as a suspect.

    Felix Frankfurter:

    I mean when the — when the police officers — was your office represented while the police officers were there?

    Abraham S. Ullman:

    Yes, sir.

    Felix Frankfurter:

    Well, when the prosecution using that term comprehensive, prosecuting, attending from the plea questioned him from one until about midnight, is that right?

    Abraham S. Ullman:

    2 o’clock —

    Felix Frankfurter:

    2 o’clock.

    Abraham S. Ullman:

    — until —

    Felix Frankfurter:

    Was he then questioned as a detained witness without being a suspect also?

    Abraham S. Ullman:

    He was being questioned as a suspect.

    Felix Frankfurter:

    Suspect, so that (Voice Overlap) —

    Abraham S. Ullman:

    He was being questioned as a suspect because this information as the ballistics had just been received.

    Felix Frankfurter:

    Well, Mr. Ullman, the — the relation of a suspect to his lawyer is something different and that of witness to take about whom there’s no suspicion (Inaudible)

    Abraham S. Ullman:

    That is — that is correct.

    I conceive that the order holding him incommunicado should not have been issued, but I say that that refusal access by counsel, not by any request of — of the prison that he wanted counsel, but the refusal was of really no significance.

    His first confession was already a matter of record and in view of his rejection of counsel, just a few hours later by the Coroner, I say that the refusal of access of the jail that day is of no relevance here.

    Earl Warren:

    Well, how can — how can the authorities hold a man incommunicado and then at the same time give any — any meaning to telling him that he can have counsel?

    Abraham S. Ullman:

    If he elected to have counsel, have being informed of his right to counsel, the counsel would have been procured where the — there would have been an adjournment and opportunity for counsel to appear what have been ordered.

    Earl Warren:

    Well, but he was held incommunicado not only before but after that hearing, wasn’t he?

    Abraham S. Ullman:

    No.

    At the earliest — up to the — the conclusion of the Coroner’s hearing, there was no refusal to counsel then.

    The counsel —

    Earl Warren:

    No, but —

    Abraham S. Ullman:

    — had access —

    Earl Warren:

    — was there any formal abandonment to that order of — of incommunicado?

    Was he told that he was no longer incommunicado?

    Abraham S. Ullman:

    I can’t be sure of that, but it was removed at the conclusion of the Coroner’s testimony —

    Earl Warren:

    Is there —

    Abraham S. Ullman:

    — but I say that there were —

    Earl Warren:

    Where — where do we find — where do we find in the record and a testimony to the effect that the incommunicado was removed?

    Abraham S. Ullman:

    I think in the testimony of the jailer —

    Earl Warren:

    Where?

    I — I don’t — I just like to read it, that’s all.

    Perhaps your associates could find (Voice Overlap) —

    Abraham S. Ullman:

    (Inaudible)

    Earl Warren:

    Let us know.

    That won’t take your time Mr. Ullman.

    Felix Frankfurter:

    You said the jailer — the jailer’s testimony, the memory of Mr. Pollak.

    Abraham S. Ullman:

    I believe it is.

    Felix Frankfurter:

    Mr. Pollak said that some of these things come — the part of the minutes that were not submitted to Judge Smith in the first hearing referred to jailer’s testimony, is that right?

    Abraham S. Ullman:

    That is right.

    Felix Frankfurter:

    If it’s indicated to us either in their brief or your brief, what portions of the trial minute were not submitted to the — to the habeas corpus judge?

    Is that in (Inaudible)

    Abraham S. Ullman:

    The —

    Felix Frankfurter:

    And I was wondering — I asked is — I was wondering whether it pertained to the evidence if you are trying to recall and answer to Chief Justice’s question.

    Abraham S. Ullman:

    On page — now brief on page 8, we indicate the matters, documents, records, specified by Judge Smith on remand, after remand.

    Felix Frankfurter:

    No, my question was different.

    I — I understood Mr. Pollak would say that there were few pages of the original trial minutes which were not included in the submission of trial minutes to the Court, to the — Judge Smith at the first hearing.

    Abraham S. Ullman:

    Well —

    Felix Frankfurter:

    And I was wondering whether —

    Abraham S. Ullman:

    At the first —

    Felix Frankfurter:

    — and he said — and I thought I heard him say “testimony of a jailer.”

    Abraham S. Ullman:

    The — at the — at the first hearing, I believe that all of the testimony on the preliminary hearing were submitted.

    Felix Frankfurter:

    Yes, and also the trial minute.

    Abraham S. Ullman:

    That’s right.

    Of the trial — of the trial minute —

    Felix Frankfurter:

    (Voice Overlap) —

    Abraham S. Ullman:

    — however the findings —

    Felix Frankfurter:

    No, no, but also, I understood Mr Pollak say they were omitted from the documents, from the minutes submitted to Judge Smith at the first hearing, a few pages, he didn’t indicate how many, concerning — and they involved testimony among others of a jailer, I understood him to say that.

    I was wondering whether this testimony, what you’re trying to (Inaudible) and he says to his question was part of the stuff that was not submitted to Judge Smith.

    Abraham S. Ullman:

    I think that the — the large part of the testimony on the preliminary hearing was submitted.

    There were few pages that were not — however, none on the transcript of the evidence aside from that was submitted to Judge Smith.

    Felix Frankfurter:

    Well, then I misunderstood Mr. Pollak.

    I thought he said that all the testimony bearing on the visibility, submitted to Judge Maletz if that’s the name alone, in the absence of the jury was submitted, but part of the testimony before the jury was not submitted, I believe that you were not so.

    Never mind, evidently I am (Inaudible)

    Abraham S. Ullman:

    Well, in answer to — question to Chief Justice at page 50 in the record directly after the cross-examination by Mr. Ullman, directly after the 31st of January, after the Coroner’s hearing was held late afternoon, this order of incommunicado with relief withdrawn.

    The answer, “I don’t remember.”

    “Do you know that on the following day and on many days after which, the counsel were committed and all days after which counsel were committed to talk to Rogers?”

    Answer, it could be.

    Earl Warren:

    Well, now, what does that prove sir?

    Abraham S. Ullman:

    Well, that directly or almost directly after, the conclusion of the Coroner’s hearing on the 31st that this order as to being incommunicado was released.

    Earl Warren:

    You mean the question suggest it, not the answer.

    Abraham S. Ullman:

    That may be — that may — that is quite so.

    Earl Warren:

    The question —

    Abraham S. Ullman:

    I think there may be something else.

    Earl Warren:

    The question I said — is asked and he says, “I don’t remember.”

    Earl Warren:

    And then the question was, “Do you know that on the following day and on many days afterwards the counsel were permitted and all days afterwards counsel were permitted to talk to Rogers.”

    Answer, “It could be.”

    Abraham S. Ullman:

    But that isn’t altogether satisfactory, but there has been no question about that counsel for the defendant had accessed to him directly after the conclusion of the Coroner’s hearing.

    And of course, long before the indictment by the grand jury and of course at all time since the indictment by the grand jury.

    William O. Douglas:

    At the bottom of page 318 of the — this record, there is finding 112 that — where the order to hold him incommunicado was issued and finding 114 that an attorney, Mr. Corsi has to see the accused.

    He was turned away because he was being held incommunicado.

    But these finding — I’ve been able to find in these findings when that order have been — holding him incommunicado was actually withdrawn review —

    Abraham S. Ullman:

    It was withdrawn.

    I can’t find any record as to when it was withdrawn but I know that there has been no claim following the interrogation by the Coroner and as a matter of fact, from the commencement of that — of that interrogation where the Coroner said that he was entitled to counsel, that the counsel would have had access to him.

    William O. Douglas:

    But hundred — finding 114 as I read it on page 318 says, “The counsel was turned away.

    Abraham S. Ullman:

    On that date.

    That was before the (Voice Overlap) —

    William O. Douglas:

    Well, that was after the — after the issuance of the order to hold him incommunicado.

    Abraham S. Ullman:

    Yes.

    That was in morning.

    That order was issued.

    But the (Voice Overlap) —

    William O. Douglas:

    The lawyer was turned away.

    Abraham S. Ullman:

    That’s right.

    Then in the afternoon, there was a hearing before the Coroner when the second confession came, was elicited and at the outset of that, the Coroner informed Rogers of his right to counsel and he refused to avail himself of that right.

    So that I say that it’s a practical proposition of the time that the Coroner announced his right to counsel, counsel could have seen him.

    As to lack of warning, much has been made —

    William O. Douglas:

    Oh, the — the finding as to the release of the order of incommunicado was on finding 128 on page 320.

    Abraham S. Ullman:

    That is correct.

    Felix Frankfurter:

    No.

    Abraham S. Ullman:

    In fact —

    Felix Frankfurter:

    No, no.

    Abraham S. Ullman:

    Questioning —

    Felix Frankfurter:

    No, no, no.

    (Inaudible)

    Abraham S. Ullman:

    In that, well I can’t find the testimony.

    Finding number 128, page 320 indicates that his incommunicado status was released the following day.

    Potter Stewart:

    February 1st.

    Abraham S. Ullman:

    That’s right.

    Now, some reference has been made, the fact that there was no warning given to the accused.

    The testimony of Captain Eagan on page 20 — 101 and again on page 385 indicates that he said that anything — he told Rogers, “Anything you do say, if you say anything cannot be of any benefit to you.

    I can promise you no benefit before the jury.”

    Now that warning was not in the precise language that counsel attempted to get.

    But yet but — and — and counsel for the petitioner “limited portion of Eagan’s testimony where he says he didn’t say in precise words.

    I didn’t tell him he didn’t have to say anything.”

    But I say that these words or words that were understood by Rogers and acted upon by it.

    But in addition to that, before Judge Smith, Rogers testified that he was told by Captain Eagan that he didn’t have to say anything.

    On page 28 of the transcript, we’ll find where Rogers testimony on direct examination by his own attorney, tell me about the telephone calls.

    He went to the telephone?

    No.

    That’s before that.

    What did he say to you?

    You sat down and started talking about the time I was in the country jail on parole from (Inaudible) that he remembered me from them and then he said, “You know the words I didn’t have to say nothing to me — to it.”

    He didn’t force nothing out of me until he started making a telephone call so that we can’t ask for any more qualified witness than Rogers himself that he was in fact told that he didn’t have to say anything.

    Now, as to the threat to which reference has been made, the statement was made by Captain Eagan to Rogers during the course of the questioning that he would have to send for Mrs. Rogers, to find out whether she knew anything of this affair.

    Captain Egan said that during your time of the jail or before, you might have talked to your wife and I’m under a duty to question.

    And I’m going to send for her to question and during the time that I sent for her, I’ll see that the state warrant which were being boarded with Mrs. Rogers are taken care off by a matron.

    Now, Rogers didn’t raise any objection then that my wife is sick.

    My wife is crippled.

    All he said, “She don’t know anything about what I do.”

    That same page, the very next question, he said, “She don’t know anything.

    Why do you want to question her?”

    He didn’t protest that she was sick.

    We claimed that he was fearful merely of what she might say that would be of an incriminating nature — nature.

    Earl Warren:

    Well, was he told that if — if he didn’t confess or didn’t make the statement that his wife would be called?

    Abraham S. Ullman:

    He was told not on those precise words.

    He was told that he would have to send — he wasn’t getting any information from Rogers.

    He had to question Mrs. Rogers to see whether she could throw any light on this transaction.

    And he went to pick up the telephone and when Rogers interposed an objection that she don’t know anything, he was then permitted to consider the matter for an hour and during that time, he considered whether he should say anything and what he should say.

    Earl Warren:

    I thought the counsel said that one of the police officers said to him, “You’re not half a man if you require us to bring her down here.”

    Abraham S. Ullman:

    You’d be less than a man.

    Earl Warren:

    Less than a man.

    Abraham S. Ullman:

    To — that’s right.

    Earl Warren:

    Well, isn’t that something of a — of a — a threat to him that if he doesn’t talk, doesn’t tell what they want that they’re going to bring her down?

    Abraham S. Ullman:

    I submit, if Your Honor please, that that is not a legal threat.

    In other words, I think the police have a right and a duty to interrogate Mrs. Rogers.

    Earl Warren:

    Of course.

    Abraham S. Ullman:

    And I say that that’s not a threat, even if it was preceded by the fact that you’ll be less than a man.

    Felix Frankfurter:

    You’re now — you’re now Mr. Ullman dealing with the quality of — of the statements, as it were I mean, whether the — and I would like to ask you if I may a — a few question, a concession, you ranked one of them.

    The length of this interrogation, you said it was from 1 o’clock, 1 p.m. to 2 a.m.

    Abraham S. Ullman:

    I didn’t say that, if Your Honor please.

    Felix Frankfurter:

    But —

    Abraham S. Ullman:

    I said the interrogation started at 2 o’clock.

    She was brought down to the State’s Attorney’s Office at 1 o’clock.

    No questions were asked to him for an hour because the police were busy —

    Felix Frankfurter:

    2 p.m.–

    Abraham S. Ullman:

    — they were sending the police.

    Felix Frankfurter:

    — 2 p.m. to 2 a.m.

    Abraham S. Ullman:

    2 p.m. and — 2 p.m. in the afternoon.

    And during the course of that —

    Felix Frankfurter:

    Now, how many —

    Abraham S. Ullman:

    — afternoon (Voice Overlap) —

    Felix Frankfurter:

    — hours — how many hours of interrogation followed from 2 p.m. —

    Abraham S. Ullman:

    Well, the interrogation —

    Felix Frankfurter:

    And I — and I would like you to give the answers based on the testimony before Judge Maletz, is that the —

    Abraham S. Ullman:

    Testimony before Judge Maletz indicates that the elapsed time from the start of the questioning until he started to confess was from 2 o’clock until about 10:15 at which time he indicated that he was going to confess that I was drinking that night and a stenographer was sent forth.

    Felix Frankfurter:

    Now, how many —

    Abraham S. Ullman:

    But —

    Felix Frankfurter:

    I beg your pardon?

    Alright.

    Abraham S. Ullman:

    BUt —

    Felix Frankfurter:

    Although, that was sent.

    Abraham S. Ullman:

    — there were intermissions and interruptions during the course of that day.

    The police were going out and checking statements and investigating things of all sorts.

    And long periods of time, Rogers was left alone.

    He was given something to eat and he did eat.

    And again, later on, he was offered something to eat and he turned it down and said, “I will have coffee.”

    Felix Frankfurter:

    Now, he’s going to come to the circumstances of the interrogation?

    It was then intermittently between 2 p.m. and 10:15, is that right?

    Abraham S. Ullman:

    Even Judge Smith recognized that it was intermittent and there wasn’t any of the relentless questioning that (Voice Overlap) —

    Felix Frankfurter:

    Now, how many — how many interrogators were there?

    Abraham S. Ullman:

    How many interrogators?

    I think —

    Felix Frankfurter:

    Beginning at —

    Abraham S. Ullman:

    — but perhaps —

    Felix Frankfurter:

    — 2 o’clock —

    Abraham S. Ullman:

    — during the course of —

    Felix Frankfurter:

    — how many were in the room?

    How many?

    Abraham S. Ullman:

    During the evening, only Captain Eagan.

    Felix Frankfurter:

    No, but —

    Abraham S. Ullman:

    In the afternoon —

    Felix Frankfurter:

    Beginning at 8 o’clock so that — that —

    Abraham S. Ullman:

    A little after 8 o’clock?

    Felix Frankfurter:

    Yes, but from between 2 and 8, how many interrogators?

    Abraham S. Ullman:

    There might have been three, but not all at one time and there wasn’t any of the persistent question on the judge time zone.

    Felix Frankfurter:

    But it — but it did last intermittently from two days, is that right?

    Abraham S. Ullman:

    That is correct.

    Felix Frankfurter:

    And then after that time, he — he did not leave any statement or — or anything that could be called of him saying, is that right?

    Abraham S. Ullman:

    No, except that he did admit — that he knew where the place was and knew the woman.

    Felix Frankfurter:

    Is it all in (Voice Overlap) —

    Abraham S. Ullman:

    And of course he — and of course he had already admitted on January 10th that he had stolen this gun from his nephew’s home, the murder gun.

    Felix Frankfurter:

    (Inaudible) the interrogators were dissatisfied with their interrogation, is that right?

    Abraham S. Ullman:

    They were not satisfied.

    Felix Frankfurter:

    They were dissatisfied and therefore called in the Captain.

    Abraham S. Ullman:

    That’s right.

    Felix Frankfurter:

    So that from 2 to 8, intermittent interrogation by at least three police officers —

    Abraham S. Ullman:

    That is right.

    Felix Frankfurter:

    He yield doesn’t — did not yield the desired proof or he did not bring about a statement that ends up with some in (Inaudible)

    And he took hold of the interrogation from 8 until 10 continuously —

    Abraham S. Ullman:

    I will accept that there was one hour there in which no — which no questions were asked at all.

    He questioned him probably from 8 to 9 then said he’s going to send for his wife, but Rogers indicated that he objected to it, stated objection was that she didn’t know anything.

    He then said, “Well, I’ll give you an hour to consider whether you want to talk to me or whether we should go ahead and question your wife.”

    Felix Frankfurter:

    Is it fair —

    Abraham S. Ullman:

    And so he wasn’t questioned at all during that hour.

    Felix Frankfurter:

    Does it fair to say that he was questioned continuously by Captain Eagan for an hour and that did not produce the statement that Captain Eagan thought he ought to be forthcoming with and then he suggested that he’d bring the influence, it that means word, the influence of his wife and — and some relation, some contact with reference to his adopted children, is that right?

    Abraham S. Ullman:

    They weren’t adopted children.

    Felix Frankfurter:

    Pardon me?

    Abraham S. Ullman:

    They were — they weren’t adopted children.

    Felix Frankfurter:

    It was his owned children?

    Abraham S. Ullman:

    They were fosters, children who are boarded with him as a (Voice Overlap) —

    Felix Frankfurter:

    Of course, (Inaudible) he had warmth the feeling he had a relation with, wasn’t he?

    (Inaudible) counsel, are they?

    Abraham S. Ullman:

    For a few months before this.

    Felix Frankfurter:

    Yes.

    Felix Frankfurter:

    And so —

    Abraham S. Ullman:

    They — they were producing an income bound.

    Felix Frankfurter:

    At all events, he — he was — he made some suggestion of what he would do with his foster children, is that right?

    Abraham S. Ullman:

    Captain Eagan made them.

    Felix Frankfurter:

    Yes.

    Abraham S. Ullman:

    Captain Eagan said that he would not see that the children were taken care of by the matron.

    Earl Warren:

    Where is that testimony, Mr. Ullman?

    Your associates may find it if you wish and you — you may go on and —

    Abraham S. Ullman:

    On page 265, it appears with several instances.

    Earl Warren:

    Yes.

    265.

    Abraham S. Ullman:

    Bottom of that page, on page 199, perhaps even more in detail.

    Earl Warren:

    199?

    Abraham S. Ullman:

    199.

    Earl Warren:

    Thank you.

    Felix Frankfurter:

    Now, the police you indicated a minute ago the — that he talked to them, they went out to try to confirm or to verify what he said, is that right?

    Abraham S. Ullman:

    During the —

    Felix Frankfurter:

    During the question.

    Abraham S. Ullman:

    Yes, sir.

    Felix Frankfurter:

    When it was all over and when they got his signed statement, signed confession and the man who then came up to the Supreme Court of Connecticut, the Supreme Court of Connecticut, what did it — on what ground did it rest the admissibility of the confession as being voluntary?

    Abraham S. Ullman:

    The — the Supreme Court said that the confession was voluntary on the basis of the facts found by the Court and on such portions of the transcript that they consulted.

    Felix Frankfurter:

    Well, try to their opinion, try to the opinion of Judge Wynn because it — it was voluntary.

    The question is whether under these (Inaudible) the question is whether under these and other circumstances of the case that conduct being used to defendant to confess falsely that he have committed the crime.

    Abraham S. Ullman:

    My associated finding discussed that, I might just say.

    Felix Frankfurter:

    Alright, very well.

    Abraham S. Ullman:

    Alright.

    Felix Frankfurter:

    I’ll leave it to him.

    Abraham S. Ullman:

    Very well, thank you.

    And so that — we say that there — that this possibly could be construed to be a threat if his wife in fact was crippled but there isn’t any evidence that she is cripple.

    The only claim made of that was a belated claim at the trial, not on the night when — when Eagan suggested a question to him, that she was sick, not that she was cripple, but that she was sick.

    Abraham S. Ullman:

    Now, that Judge Maletz could see her in court everyday and he could see that there wasn’t any basis for any such claim as that.

    So the evidence is all to the contrary and that was all before Judge Maletz.

    Now, we submit that this threat was not the motivation for the confession.

    Here, this man was confronted with formidable proof of his guilt of this crime already in the hands of the police.

    But he had the murder gun the day of the murder, that he made a false report that it was stolen on the day following the murder.

    He had the murder gun on the night of his arrest and he made these contradictory statements as to how he happened to get it.

    We say that this confession came about by reason of his own self interest.

    He wanted to mitigate the plate that he found himself in and so he decided to make a confession but to blame his act on liquor and upon the victim who could no longer defend herself.

    And his defense with the trial was only in mitigation.

    And the hour that he took to consider what he should do, whether he should confess, he exercised his mental freedom during that hour to confess or deny.

    He made the calculated choice to confess and to invent an excuse in mitigation or explanation of this crime.

    A study of the confessions himself will show that there was no object capitulation here, that this was a carefully considered narrative, 30 pages in length.

    It shows his self-possession and coolness throughout and it’s a dramatic reputation of any claim that he didn’t have a choice to confess or deny.

    Earl Warren:

    Mr. Ullman, if — if the suggestion that they were going to bring his wife down was not used as a threat, why was it that the Captain would use a rules such as making it appear that he was calling the wife when he didn’t actually do it?

    Abraham S. Ullman:

    I suppose because he saw that there was some reluctance on Rogers part to have his wife brought down, presumably his wife might be able to make incriminating statements.

    He wanted to be the one to choose, to decide what line of excuse or explanation he wanted to adopt and he didn’t want his wife to go ahead and to spoil things for him to that extent (Voice Overlap) —

    Earl Warren:

    And therefore, he was — therefore, he was given to understand that if — if he didn’t tell what they wanted to hear that his wife would be brought down.

    Abraham S. Ullman:

    Well, if he didn’t tell, it would be necessary to pursue this investigation further, which would necessarily involve the wife.

    I think perhaps I used my time, Mr. Zampano.

    Earl Warren:

    Mr. Zampano.

    Robert C. Zampano:

    Mr. Chief Justice, may it please the Court.

    I’d like to address myself to the issue of the scope of review taken by Judge Smith throughout these proceedings.

    Felix Frankfurter:

    But before you come to that — because that to me is a different question.

    I thought the District Attorney said — Prosecuting Attorney said that you were to address yourself as to what the basis on which the Connecticut Supreme Court determined whether a confession is voluntary or not.

    Robert C. Zampano:

    Now, I’ll immediately —

    Felix Frankfurter:

    That’s a different question, isn’t it?

    Robert C. Zampano:

    Yes, sir and I’ll immediately go to it.

    It’s our position that the Supreme Court of Errors stated unequivocally that the test of the admissibility of a confession is whether it was voluntary.

    That appears at — at page 222 of the record, said, “Later on in discussing the claims made by the petitioner, the Supreme Court did state that it would depend on the falsity,” as Your Honor quite preferably quoted, but it’s our position that because of the cases that cites therein, that it was obviously referring to a cause of connection.

    In other words, our Supreme Court was saying — I think it’s State versus Alcoa.

    Felix Frankfurter:

    (Inaudible) what about — what do you say about stating in (Inaudible) which it cites, here again the question for the Court, I’m reading — I’m sorry I’ve got the Connecticut report and not the record.

    On page 174, 142 Connecticut.

    Here again, the questions for the Court to decide what or whether this conduct in used to defendant to make an involuntary and hence, untrue statements State against Malm 122 Connecticut, 130, 121 and when I go to State against Malm, there it says in so many words have we arguing practically was corroborated which seems — which is under our standard and are all irrelevant factor of the equation.

    Robert C. Zampano:

    There’s no other way I can answer the — the second portion of your question, except to say that it’s unfortunate use of the words by Judge Wynn.

    Felix Frankfurter:

    Well I don’t —

    Robert C. Zampano:

    But —

    Felix Frankfurter:

    After all, we have no means of knowing what our state court goes on except by the word he refuses.

    Those are the tools of our profession and those are the means by which a court gives the ground for its decisions.

    And when it’s not only uses it says quite, not false, confess false and inside the case State against Malm which says explicitly in that case every item which confirmed, I do not see what other inferences I can draw except that if a confession is confirmed as to its truth, its negatives or at least undermined and qualified any deduction of involuntariness to be drawn in getting it.

    Robert C. Zampano:

    No, sir.

    I admit that the language is unfortunate that —

    Felix Frankfurter:

    But you call it unfortunate.

    To me, it’s — it’s descriptive.

    Robert C. Zampano:

    But well, I — I do think that what the — Judge Wynn was driving at was a cause of connection on the rules and not the test of admissibility of a confession because prior to that, he said the test is and he states it, the test of admissibility is whether it is voluntary and I would also like —

    Felix Frankfurter:

    Well of course he — that is the ultimate judicial listless paper as it was, but what’s contained in the listless paper is what he tells us.

    Namely, it reacts that way if — if it’s false and as I say, he would lie on State against Malm, which is to me as clear as anything can be in good sunlight that in that case, they relied on confirmation of the statement, isn’t that true?

    Robert C. Zampano:

    Yes, sir.

    The rule is without question that the falsity of the document does not enter into the consideration whether it’s voluntary or not.

    Felix Frankfurter:

    The rule in this Court —

    Robert C. Zampano:

    That’s right, this Court, yes, sir.

    Felix Frankfurter:

    But I do not understand.

    I cannot gather that from reading Connecticut cases.

    Robert C. Zampano:

    Well, certainly Judge Maletz applied the proper test and of course that was at the trial level and it’s Judge Maletz’s decision as affirmed by the Supreme Court of Connecticut that Judge Smith was looking into.

    Felix Frankfurter:

    I had supposed it got the highest tribunal in the state in order to — for it to determine when it takes the case, the ground on which the case rest, (Inaudible) if the test were otherwise in Connecticut, they would have found it voluntarily.

    Robert C. Zampano:

    I believe that the test in Connecticut is as this Court wishes it to be, but the unfortunate use of that time by Judge Wynn is just unfortunate, but the test applied by Judge Maletz is a test that should be looked into in which Judge Smith looked into.

    Judge Maletz is the one that decided this confession is voluntary and with respect to the — there was a question asked I believe on the — in the findings going what was before the Supreme Court I believe.

    In these findings, and I like to point out at this time that the findings submitted by the State’s Attorney which is a normal course of our appellate procedure in the five months, there’s no significance.

    There was no counter finding.

    I think there were some suggestions that they might have been.

    There was no counter finding submitted by the attorney before the defendant at the time.

    Robert C. Zampano:

    And the —

    Felix Frankfurter:

    Is the — I do not suppose of what you say.

    The defendant’s counsel if the State gets a verdict and then submits the finding.

    We do not take exceptions.

    The defendant can — it doesn’t take exception but he merely makes counter finding.

    Like you’re telling us now as if there were no proposed counter findings, is that right?

    Robert C. Zampano:

    On the issue of the — at the preliminary hearing, the findings of fact that we were talking about by Judge Maletz I believe that there were no counter findings or exceptions or anything else filed by counsel for the defendant, the State’s Attorney which under his — it was his duty to file — to file findings.

    Our — our appellate practice demands it in the federal court, of course if not so, however, at many times, federal judges suppose a counsel to do that, but in our state court, he had to make findings and the court accepted these findings.

    But the finding of fact was made at the trial when Judge Maletz allowed this confession in.

    Now, we have never disputed, never disputed Judge Smith’s power to reanalyze the historical facts and come up with another conclusion.

    Felix Frankfurter:

    I think you should.

    Robert C. Zampano:

    Well, we believe under the law that Judge Smith could very well, have taken the facts as filed by Judge Maletz, the historical facts and that it was his duty to revalue these facts to come out and see what conclusion he’d arrive at and that is the duty of the federal court.

    Felix Frankfurter:

    But we’ve got to distinguish between what happens and what it means.

    Those are two very different things.

    What objectively happened and what it means, those are very different things.

    And I thought that Brown and Allen meant that there was not to be a reexamination of what happened, but there was to be indeed under the essential constitutional question what it means.

    Robert C. Zampano:

    Exactly, exactly.

    In other words, we have never disputed the Federal District Court’s power to redetermine the constitutional issue.

    All we claimed in the Circuit Court of Appeals and in this Court would claim that Judge Smith and any other federal judge cannot disturb the historical facts unless there’s some reason.

    In other words, we use the word “vital flaw” in state proceedings, exceptional circumstances.

    Judge Smith himself went beyond that and he said, “I must find something in the state record before I can remake.”

    There’s a difference between revalue and remake the historical facts.

    He said, “I must find something in the state record which would warrant me overruling a state trial.”

    So he looked at the state record and he said these issues were fairly and conscientiously tried by an experienced judge.

    And based on the historical facts as found by this experienced judge, he said that his opinion, the confessions were not inadmissible in evidence.

    John M. Harlan II:

    Do you think that Judge Smith, the Court of Appeals took the same view of the comment of this Court and deny certiorari?

    Robert C. Zampano:

    No, sir.

    I believe that Judge Smith went beyond the Court of Appeals decision.

    Judge Smith said this — yes, sir

    John M. Harlan II:

    I’m not taking what this Court said on denial.

    John M. Harlan II:

    Do you think the Court of Appeals took a different view as to what its interpretation was and what our Court in that taken by Judge Smith?

    Robert C. Zampano:

    No.

    I — I think it was the same.

    John M. Harlan II:

    You think were the same?

    Robert C. Zampano:

    Yes, because they quoted with approval, they quote Judge Smith, what Judge Smith say I believe about this Court’s decision and said that he applied a very drawn and liberal scope, and Judge Smith himself I think analyzed it very well.

    I — I think there — there was a problem there in — in determining what the full significance of this Court’s per curiam decision was.

    Professor Pollak gave his view.

    We gave ours and there’s been larger articles written about it and so forth.

    But I — I do think that Judge Smith took a very liberal view of his powers and I think it’s a — it’s a very good view, in — in terms of symbols.

    If the facts A, B and C go to a federal judge and the state trial comes out with conclusion that confession is voluntary based on A, B and C, we say that a federal judge should take A, B and C and see if he arrives at the same conclusion, but he has a perfect right not to.

    If — if Judge Smith took our facts, the historical facts is found by the state trial and said this confession is involuntary, we — we would have had packed our bags and go home —

    Felix Frankfurter:

    That’s the (Inaudible)

    That’s the —

    Robert C. Zampano:

    That’s —

    Felix Frankfurter:

    — function.

    Robert C. Zampano:

    Absolutely.

    Now, if Judge Smith also could have said, “Well, wait a minute, you give me facts A, B and C, but I think fact D should be going into.”

    Fine, he can hold a hearing and hear about fact D.

    Now, if Judge Smith looks at the trial record and says that this — this state proceeding is tainted with prejudice or that the defendant was not given a fair hearing then he could throw out A, B and C.

    He could throw it out and say, “I won’t listen to it.

    I don’t want — I won’t rule on it.

    I’m going to hold a hearing de novo.”

    Now, all we’re saying is that before a federal judge —

    Felix Frankfurter:

    Or if he hasn’t got — or if the trial isn’t documented as in so many (Voice Overlap), isn’t it?

    Robert C. Zampano:

    Of course.

    Yes, that’s correct.

    But — that’s quite correct.

    In this case, of course, the full transcript was there or if there was some — for example, a vital flaw in my opinion is that very instance where the trial, there’s no findings of fact, no historical facts.

    I think a federal judge must, must hear — have a hearing de novo or should have.

    But in our case, he looked at the state trial proceedings and he said the — that there’s no lack of due process.

    Robert C. Zampano:

    So, he says, “I would disagree if I had to hear the same testimony.”

    But he said Judge Maletz is an experienced judge and so am I inferentially, and I should not overrule him just because we have a difference of opinion.

    Felix Frankfurter:

    Let me ask you this question.

    Robert C. Zampano:

    Yes, sir.

    Felix Frankfurter:

    The one that I asked Pollak.

    Under your procedure in Connecticut, is your Supreme Court restricted to the formal findings so that they can travel outside of them, A, as to anything that — as to which there is no findings, or B, may go to the record, the stenographic minute and say, “This finding is not substantiated by the record.

    Robert C. Zampano:

    As to your latter question, the Supreme Court may do that.

    As to your former, I’m not sure where the — the negative come in there, but the Supreme Court has power —

    Felix Frankfurter:

    Well, let me —

    Robert C. Zampano:

    — to —

    Felix Frankfurter:

    Let me be sure that you get my question.

    There are 127 findings —

    Robert C. Zampano:

    That’s right.

    Felix Frankfurter:

    But on a particular point that seems relevant to the total result for the Supreme — for your Supreme Court of Errors, there is no finding, may they go to the record and — and themselves to extract the finding from the evidence?

    Robert C. Zampano:

    Yes, sir.

    Felix Frankfurter:

    Therefore — therefore, the habeas corpus judge in dealing with what you call the historical fact —

    Robert C. Zampano:

    Yes, sir.

    Felix Frankfurter:

    — is not in precinct within the findings.

    He may read the record —

    Robert C. Zampano:

    That’s right.

    Felix Frankfurter:

    — to enlighten the finding.

    Robert C. Zampano:

    That’s right.

    Yes, sir.

    In other words, if he has — using my symbols, he has facts A, B and C and he says to us, “Well, how about fact D?”

    Then at that — and we say, “We have no finding on that, Your Honor.”

    Then at that point, I believe he should hold the area.

    Felix Frankfurter:

    Well, but may he go if he can say, “Well, in reading the record, I can dig out symbol D myself.”

    He can do that.

    Robert C. Zampano:

    Yes, I — I — if the transcript is there.

    I think he should.

    Felix Frankfurter:

    That — because if he does that, he still doesn’t travel outside —

    Robert C. Zampano:

    That’s right.

    Felix Frankfurter:

    — the — the road that the state court had traveled.

    Robert C. Zampano:

    All we object to is that he has a hearing de novo for no reason.

    If he has a reason then — then have a hearing de novo.

    Felix Frankfurter:

    That if he can say, “Gee, there was — here was the testimony of — of the defendant and as I read his testimony, he reads like a truthful man and there were three policemen and they were too slick.

    And yet the trial court took the testimony of the three policemen who rejected that of the two seeming defendants.

    I think I’ll hear those witnesses myself.”

    You say he has no right to do that.

    Robert C. Zampano:

    He has no right do that, unless — unless, looking at the state transcript, he finds that there’s exceptional circumstances.

    For example, it’s not beyond beliefs that state trier could be prejudice against the defendant.

    The judge himself —

    Felix Frankfurter:

    Or he refused to allow the defendant to cross-examine the policemen.

    Robert C. Zampano:

    Right.

    Felix Frankfurter:

    Or he ruled that the policemen’s testimony has great presumptive truth value and therefore, you can’t cross-examine.

    Robert C. Zampano:

    Right.

    And another clear example is this, I think in these instances where the — the defendant takes the stand and at this preliminary hearings and the judge allows a prosecutor go into the merits of the case, well, certainly, the counsel will keep him off the stand if he thought he could be cross-examined that way.

    In that case, I think there’s a vital lawsuit.

    Thank you very much.

    Earl Warren:

    Mr. Pollak.

    Louis H. Pollak:

    May it please the Court.

    There are series of issues I’d like to address myself too quickly.

    Counsel for respondent has said that we filed no counter findings.

    That was not our posture in the state appellate process.

    This is a copy of the findings which were filed, a counter findings were filed by the State’s Attorney.

    We were the appellant and the so-called “comprehensive finding by Judge Maletz contains the appellant’s proposed finding and adapt of course —

    Felix Frankfurter:

    He said he didn’t —

    Louis H. Pollak:

    — Mr. Ullman’s submitted finding.

    Felix Frankfurter:

    — he said he didn’t make counter proposal with reference to the question of counsel.

    Louis H. Pollak:

    Yes, Your Honor.

    Felix Frankfurter:

    Not — not he did say that you may —

    Louis H. Pollak:

    But our — but our proposed finding indicate as the — indicates of the State Supreme Court may claim our view on the matter of counsel.

    With respect to whether the State Supreme Court can go behind the finding, I was remissed.

    I should have pointed this out in my opening affirmative remarks of the McCarthy case to which I referred, 133 Connecticut of 179 was cited for the proposition that resort maybe had to the evidence whereby thus obtaining a full statement of the circumstances a conclusion of error can be avoided, was cited to the State Supreme Court by Mr. Ullman as recently as this last spring in a case which he argued there Connecticut versus Harris.

    A case —

    Felix Frankfurter:

    But I thought they agreed — they agreed to this proposition.

    Louis H. Pollak:

    Well, good.

    I wanted to be sure there was no question on this.

    The Chief Justice inquired when the incommunicado status was lifted and Mr. Justice Douglas discovered the finding relevant to that, I only want to add the Coroner’s own testimony at page 261 that he lifted that status as of the following Monday or maybe Tuesday, a day or two later.

    Coroner — Coroner Corrigan so testified on page 261 of the record.

    Justice Whittaker inquired whether there was a possible finding by Judge Maletz that the petitioner was not entitled to be credited on the issue of request for counsel.

    There was certainly no such finding made by Judge Maletz whether one could speculate that there could be such a supporting finding would be — bring us purely into the area of conjecture.

    Justice Frankfurter, I think in his questions demonstrated better than I can the insufficiency of the Connecticut Supreme Court’s analysis of the admissibility under this Court’s test of a confession.

    They certainly were applying a truthfully test.

    And indeed on page 235 — I beg your pardon, 225 of our record, at the top of that, the Connecticut Supreme Court indicated that it was even up to the jury to determine.

    I point you to the first sentence of page 225 whether the confession was involuntary or untrue, which supports our view that not only at the State Supreme Court level but at the trial level before Judge Maletz and before the jury.

    The issue of truth and falsity was intermixed with the voluntariness issue.

    A point that we have covered at length in our reply brief in which I think tends to show the inadequacy of the state reviewing procedure and the greater and greater momentum behind amplifying the record before Judge Smith.

    Felix Frankfurter:

    Can you — can you refer to the charge to which the Supreme Court referred when it said — questioned that the jury have to decide in this connection with whether the impact of the officer’s conduct on the mind of the defendant was such as — was likely result in an involuntary or untrue statement?

    Would you mind turning to the charge and see the words used by the judge if he tells him to do it?

    Louis H. Pollak:

    I do not recall that the —

    Felix Frankfurter:

    Alright, never mind.

    Louis H. Pollak:

    — that the —

    Felix Frankfurter:

    (Inaudible)

    Louis H. Pollak:

    I do not recall that the judge —

    Felix Frankfurter:

    No, that’s what —

    Louis H. Pollak:

    — put to jury the issue untruthful.

    Felix Frankfurter:

    — I thought he did charge.

    Louis H. Pollak:

    But a — but the argument made to Judge Maletz by Mr. Ullman was implicit — explicit with the — with the factor of truthfulness.

    To the extent that the issue that this Court seeks to address itself to is the facts uncontradicted on the state record.

    Louis H. Pollak:

    I refer this Court to Judge Clark’s succinct summary of those facts on the state record at page 49 of our brief.

    The inadequacy of the state adjudication at the trial and at the appellate level in our view, the inadequacy of that adjudication as to the nature of this coercion — confessions is — is at the greatest weight to the view that when this Court denied certiorari to review directly a decision of a state court sustaining a conviction, it — it is the — it is incumbent on the Federal District Court to which an application for habeas corpus then goes to make that wider inquiry which will illuminate the insufficient state record, and we think this is what Judge Smith did here in this case at his first attempt.

    If — if I may simply in conclusion make two further points.

    Even the Court of Appeals for the Second Circuit in its first view suggested the permissibility that some more testimony might be taken before Judge Smith, testimony which Mr. Ullman conceded, I point you to page 38 of our brief, would go to an issue like the request for counsel, which has obtained such importance.

    Mr. Ullman seemed conceded that on remand before Judge Smith, that — that Judge Smith was entitled to take testimony on such an issue.

    In conclusion, it is our view that Brown versus Allen permits the taking of such testimony that Judge Reed — Justice Reed so said in describing the Speller case as it was processed in this Court and that the judgment therefore below should be reversed with directions from this Court to grant the writ of habeas corpus.

    Earl Warren:

    Mr. Pollak and Mr. Zeldes, before you leave, I — I just want to say to you that we understand you are — you are both appointed by the lower court to represent this defendant and the — the Court appreciates very much you’re doing that as a public service.

    It’s covert to us to know that lawyers will give their time and attention to — to such matters.

    And — and Mr. Ullman and — and your associate, Mr. — Mr. Zampano, I want — the Court thanks you of course for the earnest matter in which you have represented the interest of your State.

    Louis H. Pollak:

    Thank you.