Schneble v. Florida – Oral Argument – January 18, 1972

Media for Schneble v. Florida

Audio Transcription for Oral Argument – January 17, 1972 in Schneble v. Florida

del

Warren E. Burger:

Continue whenever you are ready.

Clyde B. Wells:

Mr. Chief Justice, may it please the Court.

Continuing where we left off yesterday afternoon into the case of Schneble versus Florida, I would like to point out to the Court the development of my background on the case.

That at the time the defendant Schneble or petitioner Schneble was taken back over to the Court of Record of Palm Beach County for a resentencing, he at that time requested the services of a public defendant as evident by the deposition you have in the record, but because — apparently because the public defendant determined that he was only charged with vagrancy at that time, the services were not made available to him.

I want to further point out to the Court that neither the petitioner nor his co-defendant were taken before a Committing Magistrate on the charge of murder or unlawful homicide, until July 23 or thereafter, even though they were arrested on July 4 immediately.

Although, I know that that in and off itself is not favorable to their — the charges against them, and certainly it is a circumstance to be considered in looking at the overall circumstances of this case.

William J. Brennan, Jr.:

Mr. Wells, this grant of certiorari is limited, isn’t it to —

Clyde B. Wells:

Yes sir.

William J. Brennan, Jr.:

— whether the conviction was in violation of Bruton?

Clyde B. Wells:

Yes sir —

William J. Brennan, Jr.:

How do the facts that you were reciting bear on that issue?

Clyde B. Wells:

It’s not directly on the issue, Justice Brennan but on the overall background, I am trying to just give you an overall background of the case for this (Inaudible)

William J. Brennan, Jr.:

But the question is as I understand it — what happened, his co-defendant — they were not tried together, were they?

Clyde B. Wells:

Yes sir, they were jointly tried.

William J. Brennan, Jr.:

I see, they were jointly tried and handed — and his co-defendant’s confession, as well as, Schneble’s own confession.

Clyde B. Wells:

Yes sir.

William J. Brennan, Jr.:

Were admitted, isn’t that it?

Clyde B. Wells:

I would not characterize the co-defendant as a confession for whatever statement were made —

William J. Brennan, Jr.:

His statement was testified to —

Clyde B. Wells:

Yeah.

William J. Brennan, Jr.:

— and that statement by a police officer, wasn’t it?

Clyde B. Wells:

Yes sir —

William J. Brennan, Jr.:

And that statement implicated Schneble?

Clyde B. Wells:

Yes sir.

William J. Brennan, Jr.:

And the co-defendant did not take a stand and therefore not cross examined?

Clyde B. Wells:

That is correct.

William J. Brennan, Jr.:

And on that basis, you are claiming a violation of rules, isn’t it?

Clyde B. Wells:

Yeah.

William J. Brennan, Jr.:

I don’t know if you can get to that question?

Clyde B. Wells:

Alright.

Warren E. Burger:

Tell us specifically what statements were testified to by the officer that you consider are the violation of rules?

Clyde B. Wells:

We had as to the defendant Snell, the co-defendant as I said, he made no outright confession such as we have with the petitioner Schneble, but from the beginning of their arrest by trooper Maddock (ph), the highway patrolman, trooper Maddock was allowed freely to testify about the statements made to him by the defendant Snell relating to the absence of a driving license, statement as to the car that defendant Snell was in possession of, statements as to the gun that he had in his possession and throughout Maddock’s testimony, sprinkled with statements made by the co-defendant Snell, Maddock being the highway patrolmen that arrested them initially on the faulty taillight charge or pit stopped them for that —

Byron R. White:

Mr. Wells the statement place him at (Inaudible)

Clyde B. Wells:

Yes, well certain of them did and certain of –they were inconsistent statements.

One started off he said, he picked him up or the hitchhiker and later on, he told some officers that they had left all in together but they were — Snell made inconsistent statements through various people.

Byron R. White:

He made the statement, what did he say to (Inaudible) this charge?

Clyde B. Wells:

He told one of the officers and that was lieutenant Yates of the Palm Beach Sheriff Department that Schneble was riding in the back seat of the car —

Byron R. White:

Was that (Inaudible)

Clyde B. Wells:

Yes sir and I pointed out that these statements were allowed in the evidence without the trial judge even giving the jury any cautionary instructions about they were not to be used against the defendant Schneble.

Byron R. White:

But none of that happened (Inaudible) as a matter of fact, Snell played a long way to (Inaudible)

Clyde B. Wells:

No sir, I wouldn’t say that.

The statement to lieutenant Yates indicated that, I mean, he didn’t deny the crime.

Lieutenant Yates testified that he asked him, did you and Schneble or did Schneble killed?

He didn’t even respond.

Of course, the absence of a response in my opinion would be an admission that there was — that she had been killed.

And then he asked for the seating arrangement and he was told the seating arrangement by the defendant Snell and Snell went further and said, “You will — when you find the body you’ll find a polyethylene cord, same(Inaudible)

Byron R. White:

Was Snell (Inaudible)

Clyde B. Wells:

Snell was reversed on Bruton.

You want Bruton to be part of your contention?

Clyde B. Wells:

No sir, it was not — I contended my client made an involuntary statement but the court didn’t entertain that.

Byron R. White:

(Inaudible)

Clyde B. Wells:

Yes.

Byron R. White:

And apparently (Inaudible)

Clyde B. Wells:

Well, when the first time this case came up, both cases were reversed and sent back to the Florida Supreme Court.

Byron R. White:

(Inaudible)

Clyde B. Wells:

Yes, sir and sent back to the Florida Supreme Court.

I don’t believe it was vacated.

They were just sent back to Florida Supreme Court for further proceeding in light of Bruton.

The Florida Supreme Court then reconsidered the cases and vacated the judgment asked to Snell, affirmed to Schneble and from that we took certain facts up here.

William J. Brennan, Jr.:

As I understand it has — Schneble, Bruton (Inaudible).

William J. Brennan, Jr.:

The Florida Supreme Court held that Bruton didn’t apply because Schneble’s own confession was not unconstitutionally admitted, was that right?

Clyde B. Wells:

Yes sir, that well —

William J. Brennan, Jr.:

Now, why did the Florida Supreme Court say that Snell was entitled to a reversal based on Bruton?

Clyde B. Wells:

Because Schneble made more statements, he talked more.

William J. Brennan, Jr.:

You mean he implicated Snell?

Clyde B. Wells:

Yes sir.

Well, he implicated — yes sir he implicated both of them and our contend that Snell did also.

But —

William J. Brennan, Jr.:

That was Snell implicating Schneble as well as Schneble implicating Snell?

Clyde B. Wells:

Yes, that he was put more on Schneble and he did most of the talking.

They got the gist of the story out of Schneble.

William J. Brennan, Jr.:

Do I correctly read the petition of the Florida Supreme Court in holding that Scheneble was not entitled to the benefit of Bruton not because Snell hadn’t sufficiently implicated him, but rather because Scheneble’s own confession was not an unconstitutional —

Clyde B. Wells:

Well, probably that it was a holding, I mean that was a rationale.

I didn’t understand it to mean that.

I think, they just found that Snell didn’t make any statements —

William J. Brennan, Jr.:

Implicating the —

Clyde B. Wells:

Sufficiently strong to implicate or that Schneble’s own confession standing alone would have been sufficient.

But —

William J. Brennan, Jr.:

They didn’t turn it on harmless error, they never reached the question?

Clyde B. Wells:

No, no they did not.

Because it’s my position that although the statements made by a defendant Snell were not as strong as those made by the defendant Schneble, they stood as collaborating testimony and certainly without that collaboration, the state would have been in a much weaker position and my client would have been in a much stronger position.

Of course, we had the testimony of the officers indicating that they would have recommended some kind of a deal for my client for his co-operation, but the jury didn’t find that which is evident to mean that they made my client stand in the same shoes as the defendant Snell.

So certainly, we’d have to say that my client was prejudiced by the very presence of Snell, by his appearance, his statements, he demeanor.

All of these things had a bearing on it and would have entitled him to the protection of the Bruton decision.

There is just no question but that this gave the state a much stronger case to have both of them standing together.

I think, this is quite evident for the fact is they were separately embodied and on the motion of the state, they were tried jointly which indicated to me that they felt like that case would be much stronger against each of the defendant’s by having them jointly tried.

William H. Rehnquist:

Mr. Wells, did you try the case for the defendant in the —

Clyde B. Wells:

Yes.

William H. Rehnquist:

In your argument to the jury, how did you treat your client’s confession?

Clyde B. Wells:

I treated it is as a coerced confession and I dwelt at length on the time that was consumed in securing it, and the credibility that should be given to it as a result of that, and I urged the jury to consider it as an involuntary confession.

Clyde B. Wells:

The judge ruled that it was admissible for the jury’s considerations, and therefore the jury had to determine whether or not he was coerced or not, and so the thrust of my argument was on that basis that it was coerced confession and subject to undue influence because of some of these things that I have mentioned to you yesterday afternoon.

Warren E. Burger:

But the jury did not agree with you on that —

Clyde B. Wells:

Obviously.

Byron R. White:

How did (Inaudible)

Clyde B. Wells:

Sir.

Byron R. White:

How did you treat Snell’s statement?

Clyde B. Wells:

I was not arguing Snell’s case.

Byron R. White:

Well I know you weren’t but you were — that you were — I suppose if you thought that Snell’s confession which was introduced, implicated or harmed your client, you’d have said something on that?

Clyde B. Wells:

Well, I don’t recall any comments that I made on the defendant’s Snell’s statement at that time because defendant Snell was represented by counsel and of course, I was primarily pleading to — for my own man, and to to try to get him off with his life, basically that’s what my argument was.

I aimed that when I made it to the jury.

Of course, I treated it as I recall that each one should stand on his own feet and the jury should measure them separately, not collectively.

William H. Rehnquist:

Did the prosecutor in his summation to the jury urge Snell’s admissions as a part of his case against your client?

Clyde B. Wells:

I specifically recall him mentioning the statement to lieutenant Yates about the positions in the car, I think he mentioned the route they took and the polyethylene cord and would be found with the body and do not overlook the obvious.

I recall a prosecutor making a strong point of that, but now the extent beyond that to which he went I am not sufficiently refreshed to tell you.

William J. Brennan, Jr.:

Wasn’t Mr. Schneble had one point the fact that he had strangled the lady who was sitting in the front seat, while he pressed and he mingled in the backseat, strangled with this cord, was it is something about that?

Clyde B. Wells:

Yes sir, that’s true.

That was yes to the statement that he did that in —

William J. Brennan, Jr.:

And was now told (Inaudible) he confirms the fact, Snell did that Schneble was sitting in the backseat, is that it?

Clyde B. Wells:

Yes, sir and Schneble also told them that, he strangled with a cord and then that defendant Snell took pistol and shot her in her head.

Now there was further testimony from, I believe it was expert Leslie Smith, ballistic expert to testify that the gun that was taken off the defendant’s Snell was the murder — was probable, highly probable, that was his testimony, he could not positively identify it, but he said it was highly probable, the reason he couldn’t possibly test that was because —

William J. Brennan, Jr.:

But as far as there is any (Inaudible) it is that Yates saying that Snell had put Schneble in the backseat, confirmed the story that Schneble himself would kill her, that from the backseat he had leaned over and strangled the lady sitting in front of him.

Clyde B. Wells:

Yes, sir and further.

William J. Brennan, Jr.:

And if there is anything you (Inaudible) the point?

Clyde B. Wells:

Well —

William J. Brennan, Jr.:

It’s because that was admitted?

Clyde B. Wells:

That is the strongest, but Justice Brennan I don’t concede that that is the only way that (Inaudible) would apply, because he also told lieutenant Yates about the route they had taken from New Orleans, that Schneble was in the car from New Orleans along with the girl.

He also told them that —

Byron R. White:

Is that the only way that you remember they were placed together in the same car through Schneble’s submission which is confirmed by Snell, that they were together in the car?

Clyde B. Wells:

Yes, sir.

Now there were some weak testimony from New Orleans but the girl that saw — the girl with these two boys, but she didn’t see them leave, so I think that I am correct in saying that the only testimony connecting or putting them two in the car was from the two defendant’s saying.

Byron R. White:

Well, now is it the Florida rule that a man can be convicted on his own confession, must it be — have some kind of corroboration?

Clyde B. Wells:

No sir.

There has to be proof of the corpus delicti independent of the statement which we contend would not be there without the statement of the —

Byron R. White:

Of Snell?

Clyde B. Wells:

Of Schneble and/or Snell, yes sir, one or the other.

Of course you can’t use the confession of the defendant in proving the corpus delicti.

It’s got to be proven independently.

So I say that you cannot in this case use the testimony of the defendant Snell either —

Byron R. White:

What do you mean by corpus delicti?

Clyde B. Wells:

Sir?

Byron R. White:

What do you mean by that?

Clyde B. Wells:

That a crime was committed by the criminal agency of another, that’s generally what I have been — there has been a crime committed and it was by the criminal agency of another and without the statement of these two defendants, either or both of them —

Byron R. White:

You say that without — let’s assume that Snell’s testimony had been ruled inadmissible wholly.

Well, let’s assume they have been tried separately and no attempt was made to introduce Snell’s testimony against Schneble.

Could there be a verdict against Schneble?

Clyde B. Wells:

It is my position that in that situation there never would have been a corpus delicti proven and that they never have gotten to the — they never would have gotten to the confession stage, they never would have gotten it and therefore there could not have been a conviction.

Byron R. White:

I don’t know.

I suppose I could have still been able to use contention against his as long as he was involved in it?

Clyde B. Wells:

Not without proving a corpus delicti independent of this thing.

Byron R. White:

Oh, I understand that now.

Clyde B. Wells:

But you see without his statement, there would have been no body.

Byron R. White:

Well, without whose statement?

Clyde B. Wells:

Without defendant Schneble’s statement.

Byron R. White:

Well, I agree with that, but let’s assume that you introduce Schneble’s testimony or his confession, it’s ruled voluntary and admissible.

Could the state lose its case without Snell’s admission?

Clyde B. Wells:

Because I keep going back to this corpus delicti and because of that requirement I would say no, they could not have done.

Because — I would say that they would not have gotten to the confession of Schneble, had it not been for the allowing of the statement to the court.

Byron R. White:

What’s your position? If they were tried together, I suppose that the reason for introducing Snell’s statement, is it perfectly obvious they were introduced against him at least?

Clyde B. Wells:

They were introduced to both to corroborate each other and the strengthen the position of the state, that’s my position.

Byron R. White:

Did you request that Snell’s statement not be used against Schneble?

Clyde B. Wells:

No sir, and I’ll tell you why.

By the time we had gotten to the part where we had argued till we were blue in the face, we had the jury out, we had taken extensive testimony on Schneble, his testimony —

Byron R. White:

Well, wasn’t that — wasn’t that the standard rule in Florida to form groups or (Inaudible) the admissions of the co-defendant should only be used against him?

Clyde B. Wells:

Yes, that’s correct and there —

Byron R. White:

So, (Inaudible) if you thought those were damaging, it looks to me like you would have objected to the introduction of prejudice against Schneble or at least that part of the instruction?

Clyde B. Wells:

My comparison — I have taken the position that these limiting instructions are not — have never been introduced.

Byron R. White:

Well, that’s what Bruton said?

Clyde B. Wells:

Yes, and therefore I saw no reason to suggest that. I would like to take five minutes for rebuttal.

Warren E. Burger:

Very well, Mr. Wells.

Mr. Georgieff.

George R. Georgieff:

May it please the Court.

I was hearing some of the questions from the bench, I am tempted to truly cavalierly, but I don’t mean to do that at all.

We’ve heard a long recitation here.

I suspect it talks around much of what he should be saying very positively, if he is going to demonstrate a Bruton violation.

As I understand the Court’s order, that’s exactly what we’re here for.

It makes reference to a series of pages of testimony wherein your supposed to find this implicating testimony that did so much harm to Schneble.

I have three pages over here and there are some 40 odd pages to which he makes reference.

I read it again last night and if it’s there, then thing for you would do is of course reverse it.

But if you find anything in there that implicates Schneble in anyway, I got these line to heed it.

Byron R. White:

Well, did the — did Snell’s admissions at least ties the two men together with the crime?

George R. Georgieff:

No.

Byron R. White:

He didn’t even mention Schneble.

George R. Georgieff:

No, he sure did not.

Byron R. White:

He didn’t say he was sitting in the backseat?

George R. Georgieff:

No.

Now I’ll tell you this.

Obviously, during the course of the trial it developed somewhere along the line that these two men were in the car, but it didn’t come from that you see.

It came from Schneble’s confession.

Not only did he confess in great detail, but he took them to where the body was.

William H. Rehnquist:

Weren’t they together in the car when they were first arrested by Florida Highway Patrol?

George R. Georgieff:

Oh!

Yes.

No question about that, that’s correct, sure they are and obviously all you got to do is have Maddock’s testimony to put him in the automobile.

What they did was they took a route from New Orleans along the coast, all the way down to Key West, approximately, I would say 11, 12 maybe 1300 miles.

Somewhere along the way, this woman was killed, she was dumped in Hillsborough County in the greater Tampa.

They went on down to Key West, came back up, were picked up in West Palm and that’s when this series of events occurred.

So you have nothing from Snell.

By the way, here in the (Inaudible), well sure of that, his nick name is Lucky.

He didn’t tell them anything.

No complicity on his part, not on Schneble’s part, none whatsoever.

This is what he said.

When you find this body — if and when you find this body, you will find a polyethylene cord and don’t overlook the obvious.

Now I don’t know what that’s supposed to do to Schneble, but he hadn’t already done himself.

Now as I understood Bruton and I think everybody else does, there wasn’t any questions, I represented the state, when you remanded this matter to the Florida Supreme Court and the position I am taking here is a position I took there.

We agree that Snell suffered under Schneble’s confession.

He did not take the stand, there was no cross-examination, but a clear Bruton violation.

He put Snell in the bag just as pretty, as you please.

William J. Brennan, Jr.:

Well, what was the ground — I don’t have the opinion here, neither of you cite the — where we can find it, and I recall reading the last spring.

I thought the Florida Supreme Court while finding that Snell was entitled to the benefit of Bruton, held that Schneble was not on some ground related to the validity of one of the other confessions.

Do you recall what I am —

George R. Georgieff:

Well, I do not quite dicta, Mr. Justice Brennan.

It really, and I hope they forgive me, it really has no place in this.

They reversed —

William J. Brennan, Jr.:

All I am trying to say —

George R. Georgieff:

They do say that.

If you would like I will read it for you.

William J. Brennan, Jr.:

As I recall that opinion, they do not rest it on what you are now arguing or which you had already argued before that court mainly that nothing that was testified to by Yates or anything else is the Snell’s statement in anyway prejudiced Schneble?

George R. Georgieff:

Right.

William J. Brennan, Jr.:

That’s what you are telling us?

George R. Georgieff:

Sure.

William J. Brennan, Jr.:

Yeah, yeah.

Now what I am suggesting is I don’t recall that Florida Supreme Court rested the Bruton point to Schneble on that ground, did it?

George R. Georgieff:

Well, yes they did.

Now the part that you may recall is really six lines, let me read it to you.

I am reading from this slip opinion.

“In as much if there was no prior unconstitutional confession by Schneble, as in Bruton, and Schneble’s confession was found to be admissible, we again affirm conviction in Schneble v. State and hold that conclusion not inconsistent with Bruton.

The authority cited by the Supreme Court of United States, it is so ordered.”

So yes, they do, and no, they don’t.

William J. Brennan, Jr.:

Well, my difficulty with that is that I just — I had trouble reading into that.

Now that what they are saying is if Schneble is not entitled to the benefit of Bruton because nothing said by Snell in anyway is implicated or prejudiced Schneble

George R. Georgieff:

Well, I do to, but perhaps not as much as do you.

Yeah, I was there and I remember what the argument was, that’s no good to you because you don’t have it written, I understand that.

And yes, put cold the way it is here today.

You have the transcript from the first proceeding, by the way before you.

You can read it as many times as you like and unless you have some sort of magic, you just can’t find any implication in there.

Now whatever the reason, let’s assume they have reached this reason or rather this result for the wrong reason.

If their result is correct, it really doesn’t make any difference.

William J. Brennan, Jr.:

Well, in any event I gather what the state is arguing to us today, is if we look at the record we’ll conclude ourselves that nothing testified to in the way of statement by Snell, in anyway implicated or prejudiced with Schneble, is that it?

George R. Georgieff:

Well, I hope when the internalizing —

William J. Brennan, Jr.:

That’s your submission.

George R. Georgieff:

Yes sir, exactly.

William H. Rehnquist:

Mr. Georgieff?

George R. Georgieff:

Yes sir.

William H. Rehnquist:

Doesn’t Snell’s statement that Schneble was in the back seat at least tend to corroborate Schneble’s own confession to the crime?

George R. Georgieff:

Well, to begin with Mr. Justice Rehnquist, he didn’t say that.

William H. Rehnquist:

He didn’t say?

George R. Georgieff:

No.

All he said was — well, actually all he said that’s not true.

Among other things he said, you’ll find that my fingerprints are only in the front seat.

Now either by casting out nines, eliminations, whichever way you want, if they were found together the presumption has to follow I suppose, that the other person was in the back seat.

George R. Georgieff:

But he never mentioned his name so conceivably there could have been somebody else in there don’t you think.

Now I don’t know if we can reach back geographically and both historically and determine that because they were found in the car in West Palm that on their trip, that Schneble was physically in the back seat.

If he was, they didn’t find that out from Snell, they didn’t found out anything from him.

Byron R. White:

Let’s assume that Lieutenant Yates testified that Snell told him that Schneble had occupied the rear seat of the automobile and that he Snell, had occupied the driver’s seat, does that fit?

Let’s assume that — is that — would you suppose that, that’s what verify Schneble’s confession as to where he was sitting?

George R. Georgieff:

No, as a matter of fact, it collides with it.

Byron R. White:

Did Schneble say he was sitting in the back seat?

George R. Georgieff:

But he was sitting in the front.

Byron R. White:

Well, then it contradicts Schneble?

George R. Georgieff:

I say that’s colllidable statement you see.

Snell is a —

Byron R. White:

Did Schneble say that he wrangled from the front to the back seat?

George R. Georgieff:

As I recall he did.

No, no, no, did you say it from the backseat?

No, I think he said he reached over from the front and did it.

That’s my recollection of it, please don’t hold me to it.

I haven’t gone into the explicit details of Schneble’s confession because of the organic position I took based on your request here.

But my recollection is if there was a reach over in the strangulation of this woman.

Now corpus delicti in Florida three things in a murder prosecution, that there is a dead body, that it has an identity, and that it was the result of the criminal agency of another.

Now that darn sure didn’t come from Snell.

No way, as I read anything to which others say he testified to them or gave a statement —

Potter Stewart:

Wasn’t there a testimony that Schneble had been a hitchhiker?

George R. Georgieff:

Oh!

Yes.

Potter Stewart:

And that came from whom?

George R. Georgieff:

From the officer who testified that after the scene, when they picked them up on this alleged — well as a matter of fact, they did have a light violation when they were stooped and probably the testimony will reveal that there was some confusion as to allegedly misunderstanding what the officer purported them to do when he stopped them.

Potter Stewart:

I am asking about the hitchhiker?

George R. Georgieff:

Alright now, then the officer testified that Schneble told him that he was a hitchhiker and been picked up by this man on his way out of the Keys as I understand.

Potter Stewart:

So that —

George R. Georgieff:

That came from Schneble, never from Snell.

Potter Stewart:

Right.

And Snell’s statement testified to at trial was — made it clear that Schneble had not been a hitchhiker and that Schneble had been along on the ride all the way from New Orleans, is that right?

George R. Georgieff:

Well, now I don’t know that it makes it clear that he wasn’t a hitchhiker, he doesn’t mention the man’s name at all, don’t you see.

Potter Stewart:

Because the point is that Schneble was a hitchhiker who got on the automobile only after the murder and then committed than it would make quite a different —

George R. Georgieff:

Oh!

I would think that it would Mr. Justice —

Potter Stewart:

Snell’s statement put Schneble in the car?

George R. Georgieff:

No I understand, if that were the case, I would agree that there is at least something here that ought to be examined at least more closely, but that isn’t so.

You see Snell never [Voice Overlap]

Potter Stewart:

[Voice Overlap]

George R. Georgieff:

Like what?

Potter Stewart:

What is it so, I thought you just [Voice Overlap] there was evidence that he dealt with it — he was a hitchhiker, picked up after the murder was committed?

George R. Georgieff:

But that came from Schneble you see.

Potter Stewart:

Alright.

George R. Georgieff:

Now we are talking about what Snell says, to put him under Bruton, I tell you there is nothing.

Potter Stewart:

That put Schneble in the car?

George R. Georgieff:

No.

Potter Stewart:

From New Orleans?

George R. Georgieff:

No, no, I means yes whichever applies.

Potter Stewart:

Alright there is nothing?

George R. Georgieff:

That’s correct.

Potter Stewart:

Right.

George R. Georgieff:

Because you see there is an individual in the car but never mentions him by name.

And I say, that if you are going to find out that it was Schneble, you are going to have to surmise that going back from West Palm to Key West all the way back up Florida’s Gulf Coast, and New Orleans you are going to have to place Schneble in there, based on Snell’s testimony, and you cannot do it.

Because he denied any complicity himself and he certainly never mentioned Schneble.

All he said was, if and when you find his body don’t overlook the obvious and there will be a polyethylene cord.

Now what does that mean, not a great deal to me if any.

William O. Douglas:

Mr. George, you happen to have the citations of the opinion of Florida Supreme Court on remand which had 215 Southern 2nd —

George R. Georgieff:

I think that’s correct Mr. Justice Douglas, right.

Now I was reading from the slip opinion which I have in my file.

William H. Rehnquist:

Mr. Georgieff.

George R. Georgieff:

Yes sir.

William H. Rehnquist:

Was the girl’s body eventually located and viewed by someone other than either Schneble or Snell?

George R. Georgieff:

Yes.

William H. Rehnquist:

So the testimony as to the existence to the dead body did not depend simply on someone reciting what Snell had told them?

George R. Georgieff:

No, it did not.

And we contended in the court that we did then — I suppose we (Inaudible) again I have funny feeling that it will and that Chief Justice will remember (Inaudible) with the Miranda Warnings and were no infections here with regard to in excess of one, in which Mr. Wells mentioned something about nobody being taken before a magistrate, but the Miranda Warnings were properly given at every occasion to all these men.

You got everything out of Schneble, you got nothing out out of Snell.

I really have met a lot to figure how Snell’s alleged statements could ever put Schneble —

Thurgood Marshall:

Georgieff?

George R. Georgieff:

Yes sir.

Thurgood Marshall:

Is there anything in this record where Snell gave any hint that the man that is in the car, when they were picked up with the bad taillight was the same person who had ripped him all along without naming him?

George R. Georgieff:

Well, I guess —

Thurgood Marshall:

[Voice Overlap] stretch it little bit.

George R. Georgieff:

In my view, you would — I hesitate to say no.

I would like to but you would have to stretch with a great deal.

You would have to engage in a little bit of activity in order to reach one before you could start on the other.

As I read it, no, as others may read it, of course he could conceivably come up with that.

But as I understand Bruton, if we are talking about the spectrum of not being able to cross-examine, what in the name of heaven do they cross-examine and about have anything to do with the crime.

If that’s the touchstone of Bruton and I think it was, then where do we have anything.

Let’s assume that everything that’s in the record is ironclad true.

What would you examine him about?

I don’t know how articulated a lawyer could be, what could he say to him?

Are you sure you took this route down here?

Like what difference does it make as to the criminal involved.

Now, they might say well, are you sure Mr. Schneble was in the car?

Thurgood Marshall:

What about that piece of rope somebody might — I would assume defense counsel will be afraid to get into that, but you don’t know what it means, I don’t know what it means.

George R. Georgieff:

Not more than you sir.

Thurgood Marshall:

Yeah.

I mean somebody could cross examine on that (Inaudible)

George R. Georgieff:

Well, I don’t know how much.

I guess that turns a great deal on strategy and wisdom.

We could speculate for a long time on many things that could occur and yet it occurs to me that if Bruton is to mean anything, it has to mean that when you deprive a man of a situation in a joint a trial where you cannot cross-examine an individual, then you have done something to him which he can’t possibly avoid even by a jury instruction, which by the way we understand are a little less than compelling in most instances and that’s why you reach your conclusion.

But in the last analysis, when the Court got what it did from you on remand, it occurs to me that they treated it as it should be treated, a disaster as to Snell, and really nothing as to Schneble because there was no connection between anything that he said and the crime which involved Schneble or indeed himself and I think that the matter either should be sent back as improvidently granted or affirmed as is.

Thank you.

Warren E. Burger:

Thank you Mr. Georgieff.

Mr. Wells, do you have anything further?

Clyde B. Wells:

Yes.

Justice Rehnquist, you asked question about the body and I would like to point out that, that those who viewed the body would view it as a result of the confession and therefore would be the fruits of the confession and could not be considered as part of the corpus delicti in my position of the case.

Thurgood Marshall:

Mr. Wells, where in the record is this statement that Snell said that Schneble was in the back seat of the car?

Clyde B. Wells:

I have that in my hand, I was going to read it to the Court before it would permit.

This is Lieutenant Yates testifying.

Byron R. White:

What page, is it transcript 409?

Clyde B. Wells:

Page 409, yes.

And he was talking to — Lieutenant Yates was questioning Snell, that what did you say in response to that?

During the time, that time he told me that I had during the previous interview painted a hypothetical picture of what had happened.

I asked him what he meant by this.

He said, that during the processing of the automobile that there was a piece of polyethylene line that had been found in this automobile and he said, if and when they find this body, look for a piece of polyethylene line and don’t overlook the obvious.

Did he later stated where each of these people had been riding, that was Lieutenant Yates question.

Answer, yes sir.

He stated that if they processed this automobile for fingerprints, that they would not find his prints present anywhere in the automobile, except in the drivers area, that Schneble had occupied the rear seat of the automobile and he had occupied the driver’s seat.

Now that is where he made the mistake, to put them in the back seat, (Inaudible) than that.

Potter Stewart:

And he used the name Schneble as you [Voice Overlap]

Clyde B. Wells:

Yes sir, Lieutenant Yates used the name Schneble as – quoting Snell.

Mr. Georgieff indicated that in Schneble’s confession, he never admitted he was in the back seat.

But on page 280 of the transcript you will find that he did admit that he was in the back seat and he answer to a question, after they went for a walk on the beach talking about Snell and to the victim.

He said, they came down the road and when they stopped, Snell dropped the plastic cord into his lap and motioned with his hand and he said at that point, he put the cord around her neck and started to squeeze.

Now I have got the impression, down the road in the automobile.

He said, he pulled as hard as he could and held as long as he could, but she was a good fat woman and gave out and he relaxed.

So, I feel like there is other places in the testimony where Schneble admitted he was in the back seat, but that points out for the purpose of argument what I am trying to show you.

Clyde B. Wells:

Now I would further say that the corroboration of the defendant Snell’s testimony is the main trust of this Bruton argument in this case, that I am here on today.

Not yet these two things that I have pointed out to you, but the whole bit from start to finish, the testimony of the trooper, the testimony of the FBI agent Kellogg where he is quoting Snell — trooper Maddock is quoting Snell, Lieutenant Yates is quoting Snell, all of these things corroborate the testimony, the confession that’s given by the petitioner Schneble.

I also want to point out to you that I feel that this harm that’s done in these situations is the reason for the rule in Bruton.

It was also the reason for the Criminal Rule 14 of the Federal Rule of Criminal Procedures which I recognize is not binding on the state of Florida, but they are inductive of the opinion that exist with regard to what constitution violation of a person’s rights.

And so when you put these two cases together, put them in the same (Inaudible) and require, — understand together, fall together, certainly there is no way that you can say that the defendant Schneble was not prejudiced by the defendant’s Snell presence in that courtroom, being tried in the joint trial.

And although it’s a matter of degree I concede that it is a matter of degree but certainly he was prejudiced by Snell’s presence there, just the same as Snell was prejudiced by Schneble’s presence there.

And we are arguing about the question of degree and that should not be the controlling factor because if Schneble would have come out of there on his own with a life sentence whereas by standing with Snell, he got the death sentence, then he has been prejudiced in this instance because otherwise he’d be walking out with his life not in jeopardy as he stands today.

Has Snell been retried?

Clyde B. Wells:

No, well, he entered a plea to a manslaughter was given five years and time to — credit for time served and he’s on the streets now, he’s out.

Thank you, Your Honor.

Warren E. Burger:

Thank you, Mr. Wells, thank you, Mr. Georgieff.

The case is submitted.