Sims v. Georgia – Oral Argument – December 07, 1966

Media for Sims v. Georgia

Audio Transcription for Oral Argument – December 06, 1966 in Sims v. Georgia

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Earl Warren:

Number 251, Isaac Sims, Jr. petitioner versus Georgia.

Mr. Greenberg, you may continue your argument.

Jack Greenberg:

Mr. Chief Justice and may it please the Court.

When the argument concluded yesterday, I was discussing the confession issue and had just completed describing the background and the – what this petitioner is like which is one of the things that this Court examines in going to the question of whether a confession is coerced and I was doing that in connection with the State Supreme Court’s treatment of Jackson v. Denno and in which the State Supreme Court said among other things in distinguishing Jackson v. Denno from this case that there was no issue of voluntariness to be tried and we submit that in the contrary that there was indeed an issue and that that issue could be resolved in favor of the petitioner on uncontradicted testimony.

I pointed out that this petitioner was indigent.

He was ignorant that he finished the third grade only at age 17 or 18 that he could not read or write except his name and he didn’t know the year that he was born.

He knew that his father was dead and did not know when he’d died and so forth and I’ve read from the record colloquy with the petitioner which indicated his inability to understand even ordinary common phrases including a good number that had been attributed to him in the so called confession.

Now, this is the man of whom we’re talking and I now like to say what happened to him and shortly following arrest, he was taken to the office of Dr. Jackson for examination and his alleged statement said that there were bloodstains on his clothing and Dr. Jackson helped remove this clothing from him.

There is some dispute about the vigor with which Dr. Jackson did this but no dispute at all that Dr. Jackson played a part in removing his clothing.

He was brought there by state police and there were seven or eight state troopers on the premises at that time and they were in uniform wearing guns and I’d now like to read a few lines from the record.

Question, “What happened to you Isaac?”

“Well, Dr. Jackson some one knocked me down and kick me over my eyelid and busted my eye on the right side.”

“Did anything else happen to you?”

“And he grabbed me by my private and dragged me on the floor.”

“Did he drag you by your private on the floor?”

“Yes sir.”

“Did it hurt you a lot?”

“Yes sir, pretty bad.”

Now, I’d like to point out that this particular statement is never contradicted and was never gone into cross-examination and it was something that was repeated at a subsequent state of the proceedings later on in the record.

Neither Jackson or any of the seven or eight police officers who are present and presumably were available to the state and indeed Dr. Jackson testified, he was available to the state beyond doubt, ever contradicted with this particular charge.

[Inaudible]

Jack Greenberg:

Yes.

Did he attempt it?

Jack Greenberg:

He denied some aspects of what, I’d like to go into his testimony in a moment, denied some aspects of what Sims said and I submit in a very equivocal way but never discussed this particular aspect of it and this was subsequent —

Byron R. White:

Are you saying that we must skip to the resolution of some factual matters here or are you arguing that the courts below failed to follow any procedure which Jackson has supposedly established for the resolution of these facts.

Jack Greenberg:

I’m urging both Mr. Justice White.

I say that they —

Byron R. White:

And then what about the procedure?

Are you going to talk anymore about that?

Jack Greenberg:

Yes.

Jack Greenberg:

I plan to discuss it in a moment.

If you like I could do it right now.

Byron R. White:

Well, I just wondered if this evidence you’re talking about came up – I suppose on the motion to suppress, isn’t it?

Jack Greenberg:

Yes, and some of it came up during the trial also.

Byron R. White:

But nevertheless, there was a hearing on the voluntariness of the confessions for this trial —

Jack Greenberg:

That’s correct.

Byron R. White:

-– by the judge.

Jack Greenberg:

Yes.

Byron R. White:

And the petitioner and the witnesses for the state testify at that time.

Jack Greenberg:

That’s correct.

Byron R. White:

And the judge denied most of this threat.

Jack Greenberg:

Right.

Byron R. White:

He didn’t make the specific timing of the fact but he ruled.

Jack Greenberg:

He just said, I deny.

Byron R. White:

Now, so far, there’s nothing wrong and there’s no noncompliance Jackson v. Denno?

Jack Greenberg:

Well, I would say that there is with some diffidence that I would say there’s noncompliance with Jackson v. Denno.

As I understand Jackson v. Denno, it requires some sort of a finding of voluntariness and there was no finding.

If we are to read the Georgia cases and the opinion of the State Supreme Court, Georgia has persisted in following the law that it had followed prior to Jackson v. Denno which is admissibility upon prima facie killer.

Byron R. White:

And let’s just assume that you took the same rule in Jackson against Denno and pick up Townsend v. Sain, when you have a ruling you might assume in some circumstances that is some reason to suspect the court applies the right standard.

There’s no necessity to make a specific findings.

Is there some evidence here and I take it you say that there is, this is what I really want to get to.

What is the standard that you think the court applied and that you say the court applied —

Jack Greenberg:

Or have no doubt.

Byron R. White:

-– validate this finding.

Jack Greenberg:

I have no doubt of the standard which the court applied was that it admitted the evidence upon a prima facie showing of voluntariness and that prima facie showing consisted of responses to the so called statutory questions which is a few pro forma questions, was he threatened, was he put into fear?

Byron R. White:

What do you refer to show that this is the standard to be applied – that he applied in the facie showing.

Jack Greenberg:

The judge himself – the judge himself does not state the standard he applies but all of the Georgia cases are compatible with what the judge did and that is just merely admit the testimony upon a prima facie showing.

Now the judge didn’t give a charge to the jury on what the standard of admissibility should be for the jury and that is once more the traditional pre Jackson v. Denno, Georgia charge – that’s in page 3 –-

Byron R. White:

Jackson against Denno didn’t have anything to do with standards – it had to do with the procedures.

Jack Greenberg:

Yes.

Byron R. White:

It has something to do with what the law was – that’s what voluntariness was.

Jack Greenberg:

But the procedure involves certain standards, whether or not the testimony should be admitted upon finding a voluntariness or whether or not the testimony should be admitted upon a prima facie showing even though there might be a conflict of the evidence in which evidence of course might in fact be overwhelming.

On page 312 of the record of the charge, the jury and that of — is an indication of the standard of admissibility which the trial judge used, but the State Supreme Court opinion does not indicate for a moment and neither does brief of the state.

Byron R. White:

Let’s take the charge.

Now, what’s wrong with the charge?

Jack Greenberg:

To make a confession admissible, it must have been made freely and voluntarily without being induced by another by the slightest hope of benefit with a remotest fear of injury.

Byron R. White:

Well, that’s unexceptionable so far I suppose.

Jack Greenberg:

Well, but the court —

Byron R. White:

I think it’s not complete enough.

Jack Greenberg:

Pardon me?

Byron R. White:

You just think it doesn’t go far?

Jack Greenberg:

Well, to the extent that that’s an indication of what the court had in his mind which nowhere he indicated.

We think that that does not embody the standards which this Court has set down on Rogers v. Richmond and Wan versus United States.

Byron R. White:

How is it bad?

Jack Greenberg:

Well, it does not take into account for example who this petitioner was and entire background and circumstances surrounding the confession.

Byron R. White:

Well, it doesn’t exclude.

Jack Greenberg:

Well, it doesn’t exclude them but it does not point out that there are certain essential elements of the confession, circumstances surrounding the confession which this Court described in some detail on Rogers v. Richmond and Wan versus United States.

Abe Fortas:

What about the next sentence?

What about the next sentence on 312?

Jack Greenberg:

If the jury should believe that a confession was induced by another — by the slightest hope of benefit or the remotest fear of injury then in that event so forth.

We submit that nevertheless that does not take into account, the total surrounding circumstances, who this petitioner was, his ignorance, his lack of education, there’s no counsel present, he was not given an opportunity to make a telephone call and so forth.

But I think that the key — the essential holding of the State Supreme Court must be read in the light of what the prior Georgia law is, which is at no point repudiated, at no point amended and indeed reasserted in the opinion of the court, the cases are cited, the Jackson v. Denno standard is denounced, the brief of the state reasserts that the prior law is essentially still in effect but they say that Jackson v. Denno would not to apply to this case because Georgia Law is different than New York Law and they purport to distinguish Georgia Law from New York Law in three essentials on page 337 of the record.

When we read that opinion, we note a total absence of any consideration therein of the Georgia statute which provides that a conviction cannot rest upon a confession alone but the confession must be collaborated.

Now the requirement of collaboration was also present in New York Law at the time Jackson was decided.

They purport to distinguish the Georgia cases from the New York cases on the ground.

This Court did not take into account in Jackson v. Denno, a Georgia statute requiring as an indispensable foundation to the introduction of an alleged confession, a showing that was freely and voluntarily made and that it was not induced by another by the slightest fear of punishment or the remotest of reward and that was also to New York.

Or of Georgia Law investing the trial judge with unquestionable power to review the case after conviction and to set the verdict aside if he is not satisfied with it and that’s also true New York — corroboration point as well — I might point out to the corroboration point that there is some serious doubt whether there is any corroboration in the sense that was required in the charge of the jury of linking this petitioner with the crime.

For example, the clothing was taken from him and it’s never been heard from since, but that is —

Abe Fortas:

Mr. Greenberg, what – do you think that statement made by the petitioner through the [Inaudible] before he was turned over to the police custody, is relevant to the confession problem or the Jackson v. Denno problem.

Jack Greenberg:

No, I don’t think so Mr. Justice Fortas because this Court is held in a number of cases that if an involuntary confession is admitted into evidence, the mere fact that there may be other evidence which would tend to sustain a conviction or corroborate the confession, does not save the judgment from being reversed.

Abe Fortas:

This was a confession from the fact and the admission made his turpentine workers.

Jack Greenberg:

Yes, it was.

There’s some evidence to establish at the first trial and they’ve never testified anything in this sort but nevertheless they did in this occasion.

Abe Fortas:

Well, that’s a record before us.

Jack Greenberg:

Yes, that’s correct but —

Abe Fortas:

And it’s undisputed really, isn’t it?

Jack Greenberg:

Well, I think that’s correct.

I think this Court and well, it’s undisputed except in the sense the petitioner denied having committed a crime but I think this Court in many cases, at least in a number of cases, has considered a series of confessions some of which were objected to and some of which weren’t.

And when the court has found that one of the confessions is involuntary and does not meet the constitutional standards, the conviction has been reversed and so, I don’t think that that would save the judgment.

William J. Brennan, Jr.:

May I ask Mr. Greenberg, there were of course no findings that a [Inaudible] denied with a motion.

Jack Greenberg:

That’s correct.

William J. Brennan, Jr.:

Are you contending that Jackson against Denno goes far as to say that there must be such findings and explicit statement that I find [Inaudible]

Jack Greenberg:

Well, that’s my understanding of it.

Now, of course what the court did has to be read in the light of the Georgia Law, if the Georgia Law was such that the judge could admit it only if he found it voluntary, I don’t know to what extent we would hang off on the particular verbal formulation that the judge used.

William J. Brennan, Jr.:

Was that mostly — after we have decided [Inaudible]

Jack Greenberg:

Yes.

Jackson v. Denno was June 22nd.

William J. Brennan, Jr.:

[Inaudible]

Jack Greenberg:

Yes.

In fact, there was a reference to the decision of this Court of June 22nd.

William J. Brennan, Jr.:

And that’s suppose [Inaudible] the proceedings acceptable of the [Inaudible] incidences of the judge knowing of Jackson against Denno or indeed when he denied the motion to suppress and he denied it [Inaudible]

Jack Greenberg:

I don’t think so.

William J. Brennan, Jr.:

Jackson against Denno would [Inaudible] found that it was voluntary.

Jack Greenberg:

I don’t think so — well, I don’t think so.

I don’t think the State Supreme Court thought so.

I think that —

William J. Brennan, Jr.:

[Inaudible] Jackson against Denno.

Jack Greenberg:

Yes, but I think the State Supreme — I think that there has to be some indication.

Best of all of course, I think there would be something explicit and even.

William J. Brennan, Jr.:

[Inaudible]

Jack Greenberg:

Well, I imagine that that might be expressed in a variety of ways but it has to be expressed in some way and certainly if he had made the tale findings, that would be unexceptionable.

But he just said, I deny the motion.

Should I deny the motion and —

William J. Brennan, Jr.:

Do you think that’s enough?

Jack Greenberg:

Well, I don’t — I would think that might be enough if the law of the state and the State Supreme Court indicated that that meant — that there was a finding and it was voluntary.

But the law of the state is not that at all. The law of the state —

Yeah, but you have to assume that the law — that the trial judge was not following the constitutional standards as announced by this Court.

You have to assume that that it would follow the law Georgia – and rule of voluntariness applied in here.

You have to assume that.

Jack Greenberg:

Well, I think it’s a proper assumption in the light of the opinion of the State Supreme Court which says that we are not following Jackson v. Denno because our — we have a number of provisions in Georgia Law which distinguish our case from Jackson v. Denno.

Byron R. White:

[Inaudible]

Jack Greenberg:

Well, they said it wasn’t applicable to the case but there’s —

Byron R. White:

[Inaudible]

Jack Greenberg:

Well, they said it wasn’t — they said it wasn’t applicable for several reasons.

First, they said that there was no conflict of testimony.

They said that this confession was clearly voluntary.

Byron R. White:

What makes you think [Inaudible]

Jack Greenberg:

And secondly, they said that Georgia requires a prima facie showing, requires corroboration and the judge — and a motion for new trial can overrule the verdict.

And a view of that they said, we don’t have to do what Jackson v. Denno says you have to do because we’re in a different kind of situation but actually Georgia tend to see the Jackson v. Denno.

Georgia is in the New York category.

I don’t think there’s any doubt about that and —

William J. Brennan, Jr.:

[Inaudible]

Jack Greenberg:

If you find that the Georgia Trial Court and the Georgia Supreme Court indeed complied with the Jackson v. Denno then —

William J. Brennan, Jr.:

[Inaudible]

Jack Greenberg:

Well, if the trial just complied with Jackson v. Denno then I don’t think you could reverse on Jackson v. Denno and if —

William J. Brennan, Jr.:

[Inaudible]

Jack Greenberg:

That’s correct but I think what the State Supreme Court says sheds light on whether he did or did not comply with Jackson v. Denno.

But even if you didn’t find that, I would think that on the uncontradicted evidence of what happened to this petitioner under these circumstances, I would submit that the Court — the Court should advice whether there were or were not a Jackson v. Denno under the —

William J. Brennan, Jr.:

[Inaudible]

Jack Greenberg:

That’s right, yes.

Jack Greenberg:

I was describing the uncontradicted testimony of what had occurred in Dr. Jackson’s office and I might — some of the decisions of this Court do go into the types of denials and whether or not there is contradiction in the evidence, and I think it’s useful to look at what the testimony of Dr. Jackson was here because I think his testimony carries with it at certain unequivocal indication of what happened in this office even though it could be able to count in terms of denials.

He was asked who put — how did Sims get to cut over his eye in relating to Sims’ charge that Dr. Jackson kicked him in the office and Dr. Jackson says, “I don’t know who put it there.”

And he was asked if the officers did and he said, “You’ll have to ask the officers.”

“I’m asking you Dr. Jackson.

I’m asking you whether or not the officers were beating the defendant.”

Answer, “I will say that I wasn’t there all the time.”

“He didn’t have the cut over his eye when he came into your office, did he?”

“I didn’t see him until after he got in.”

“And when you first saw him in your office, he didn’t have it?”

“I couldn’t see it.

He was sort of slumped over sort of falling around like — anything could have happened to him.”

This is what the doctor says about what happened in the office.

“Was Sims kicked?”

“I don’t know that he was.

I don’t know whether he was knocked down or fell down.”

“Did you find him on the floor?

”And he says, “Well, Sims just sort of fell on the floor.”

“He sort of fell?

Where were you standing of the time he sort of fell?”

“I was standing on my feet.”

“Were you standing near him?”

“Very close.”

“Were you standing as close as I am to you or closer?”

“Probably a little closer.”

“Where you could touch him?”

“I think he could touch me.”

“And you could touch him?”

“Yes.”

But through all these — and Dr. Jackson’s — Dr. Jackson’s testimony throughout the trial, even though he was equivocal on this and I submit that this equivocation indicates something, nevertheless, even using the standard that this Court has in case that requires uncontradicted testimony, there is no testimony at all that Sims was dragged around the room by his genitals, and I think very instructive that when the Solicitor was cross examining Sims on what occurred to him that day, he asserted very rapidly around what happened in Dr. Jackson’s office.

He went through that day step by step by step but Dr. Jackson’s office was sort of sandwiched into a sentence and he went from Toledo to Waycross and there was no examination of that even on cross-examination.

Jack Greenberg:

Now, we submit that in the Pikes (ph) case, Mr. Justice Frankfurter pointed out a standard and we feel should apply to this case.

There is quote on page 37 of our brief, which is that, it is common ground that if this record had disclosed an admission by the police of one truncheon blow on the head of the petitioner, a confession following such a blow would be inadmissible.

In the Stein case, quote in the brief also, essentially, the same standard of state.

Its slight evident, even inquisitive testimony that defendants injury occurred during the period of detention or at the hands of the police or failure by the prosecution’s to meet the charge with all the reasonably available evidence might well have tipped the scales of decision below.

He even hear it without force if there were any evidence whatever to connect the admitted injuries with the event of a period of interrogation but there is no such word in the record.

Now, I would like to say that on the Jackson v. Denno point that Sims’ charge and Sims’ statement about what happened to him in the office at the pretrial hearing was at no point contradicted.

So far as the evidence on that is concerned on the pretrial hearing when the trial judge ruled, all he had was Sims’ testimony about being kicked and dragged around the floor in the doctor’s office and at that point, we didn’t even have Dr. Jackson’s testimony in denial.

Dr. Jackson testified for the first time on these questions during the trial.

Now, the State Supreme Court as I pointed out —

Earl Warren:

Did he testify there, did he testify fully about this matter that he say he evaded –?

Jack Greenberg:

No, that’s the testimony I was describing.

That is Dr. Jackson’s only testimony about what occurred in his office.

Did the police said — you’ll have to ask the police, I wasn’t in there all the time.

Anything could have happened to him.

He use to sort of falling all over and so —

Byron R. White:

Mr. Greenberg, did the state have no testimony at all of the motion to suppress?

Jack Greenberg:

The state had testimony of a Deputy Sheriff in which he mrerly went into what the court has referred to as the statutory question.

Did you offer him anything?

And this was all testimony that related to what occurred in the jail.

Did you put him in fear?

Did you promise him anything that sort of stuff?

That is here in the record on page 113 as I say that is just the statutory questions.

Earl Warren:

Did the petitioner claim that there was any mistreatment at the jail?

Jack Greenberg:

No.

Earl Warren:

He didn’t know?

Jack Greenberg:

Well, he said, they brought him down, they interrogate him, they scolded him, I don’t know what he might have meant by that, but at that point, he said he was in terrible pain and he was — this petitioner as I have stated, but on the Jackson v. Denno point, I think it’s crucial that as of the time, the court ruled upon that.

He had the petitioner’s statement about the brutally inflicted upon him.

He had evidence of who this petitioner was and he had statements of the state that at — at the jail, there was a — he was asked the so called statutory question and the State Supreme Court at no point here, makes an effort to demonstrate that the Jackson v. Denno standards complied with.

All the state says as well, it was — we have other rules of law here which don’t require this to be done and in any event, if there was error, it was harmless error.

Now, I’d like to make reference also to the argument that we make that the state did not follow the standards set down by this Court for judging the voluntariness of the confession.

Jack Greenberg:

Those standards I think have stated that quite an early date in Wan against United States, and in that case, Mr. Justice Brandeis wrote —

Earl Warren:

[Inaudible]

Jack Greenberg:

The Court of Appeals appears to have held the prisoner’s statement is admissible on the ground that a confession made by one competent to act is to be deemed voluntary as a matter of law if it was not induced by a promise or a threat, that was only the standard that Georgia has used.

And Mr. Justice Brandeis went on to say, “A confession is voluntary in law if and only if it was in fact voluntarily made.

A confession obtained by compulsion must be excluded.”

And in Rogers v. Richmond, the court went on to elaborate on this and indicated that corroboration was not evidence of the voluntariness of the confession and yet, the Supreme Court of Georgia relies upon what the trial court refers to as statutory question on page 211 in qualifying the admissibility of a statement.

The judge says, we’ll ask him the statutory questions and he’s asked, did anybody offer him anything?

Was he threatened?

Was he promised?

The modus sphere of injury, the judge says admissible and we submit that these are not the standards which this Court has set down and not the standards by which a confession should be reviewed and certainly not the standard of corroboration.

Abe Fortas:

Mr. Greenberg, without a reference to that, just talking about this is a procedure of matter, do you – precisely in what respects did the judge fail to follow the Jackson against Denno procedure?

This procedure now and not standards applied?

Jack Greenberg:

The judge never stated nor in any other way indicated implicitly or explicitly that he had found this confession to be voluntary.

Abe Fortas:

Well, he denied the motion.

Jack Greenberg:

He denied the motion but if a denial of the motion under Georgia standards of this sort is complied to Jackson v. Denno, Jackson v. Denno is meaningless.

Abe Fortas:

What I’m trying to get at is precisely what is a procedure as a matter of fact from the standards.

You think that the court fail — is the fact that the court — the judge merely denied this and didn’t make any findings?

Is that what you’re objecting –?

Jack Greenberg:

The judge denied this and did not make any findings and did so under a rule of law that previously existed in Georgia and has been reaffirmed in the opinion of this Court which holds that a confession is admissible upon a prima facie showing of admissibility and consequently under the Georgia Law, this judge held the confession admissible.

Abe Fortas:

You’re assuming that because what you state to be George Law, but as I think what brother White asked a little while ago, there’s nothing in this transcript that would indicate whether the — that the judge felt that there was a prima facie showing here or whether you found that made a finding of fact that the confession was voluntary.

Jack Greenberg:

That is correct in terms of what the judge said, but in terms of what he did, he was here on a record in which there was overwhelming evidence that — what Isaac Sims said happened to him, uncontradicted evidence Isaac Sims said happened to him, did happen.

Now, the State Supreme Court then passing upon whether the confession should have been admitted says in effect that this confession is admissible not upon, not necessarily upon a finding of voluntariness which would be Jackson v. Denno, this confession is admissible because there was a prima facie showing the voluntariness and it says this because at no point, it disavows it’s previous cases and in fact said that its procedure is distinguishable from the procedure in Jackson v. Denno because it has certain other rules of law.

Abe Fortas:

It could be a really different one, perhaps I really –

Jack Greenberg:

I would like to reserve the balance of my time.

Earl Warren:

Mr. Solicitor General?

Dewey Hayes:

Mr. Chief Justice, may it please the Court.

I would like to answer in response to some questions that has just been presented to the Court, but I would like to state it this time with the Court’s permission that my argument will be brief, Mr. Freeman Leverett will argue procedural on the questions.

Back to Justice White’s question, the Sheriff along with the Deputy Sheriff, along with the petitioner, testified in the motion to suppress and the Supreme Court judge ruled after hearing the testimony from those people.

Byron R. White:

[Inaudible]

Dewey Hayes:

Yes sir.

Byron R. White:

I would think that Jackson v. Denno [Inaudible] the petitioner said, the [Inaudible] but in Georgia Law [Inaudible]

Dewey Hayes:

Your Honor, in response to that, the trial judge was familiar Denno versus Jackson.

He did follow the rule.

Now, the proposition here as far as I’m concern was not or whether not it was followed in the Court back then in Charlton County, it is that the counsel here today doesn’t understand that it was followed.

It was followed and we followed the procedure — it was followed.

Byron R. White:

[Inaudible] there was no state evidence — no state evidence on [Inaudible]

Dewey Hayes:

The testimony of Dr. Jackson —

Byron R. White:

[Inaudible] but I don’t claim the [Inaudible].

I was brutalized but not [Inaudible]

Dewey Hayes:

Yes sir.

Byron R. White:

[Inaudible] and here is what happened to Dr. Jackson, [Inaudible] said that there was no brutality [Inaudible]

Dewey Hayes:

Well, yeah.

That’s not exactly what happened though.

They —

Byron R. White:

[Inaudible]

Dewey Hayes:

I would say.

Byron R. White:

The judge then ruled [Inaudible]

Dewey Hayes:

I would say following the rule into this Court that what could have happened, what didn’t happened but what could have happened, what allegedly happened in Dr. Jackson’s office, some seven hour prior to that time in Folkston, Georgia, that was some 35 or 40 miles away from Waycross, it could have had no effect on what happened in Waycross, Georgia as I said some 30 or 40 miles away from there in a different county and a different court house with a different set of officers, it could have no connection in this case because this Court as I understand had ruled that If you have different officers and different place and a different time —

Byron R. White:

[Inaudible]

Dewey Hayes:

There’s no testimony —

Byron R. White:

I know but you are saying whatever happened in [Inaudible]

Dewey Hayes:

Our contention is that there’s nothing happened in Dr. Jackson’s office.

Earl Warren:

Does the record show that?

Dewey Hayes:

Yes sir.

Earl Warren:

Your testimony?

Dewey Hayes:

Yes sir.

Earl Warren:

Who testified?

Dewey Hayes:

Dr. Jackson.

Earl Warren:

What did he say?

Did he deny it?

Dewey Hayes:

Yes sir, he denied it.

Earl Warren:

Would you show us the record please, where is that?

Dewey Hayes:

Counselors — he’s previously read it You Honor, correctly read.

Earl Warren:

Nothing more specific than that?

Dewey Hayes:

Your Honor now, Dr. Jackson testified, he was on the stand and counsel told the defendant had a full right to cross examining and if he had believed or if he had a reason to think that Dr. Jackson or anyone had mistreated the defendant in Dr. Jackson’s office, he could have cross examined Dr. Jackson.

He could have asked him any question that he saw fit, he could have —

Byron R. White:

This is significant only at the time [Inaudible] we are talking about now Jackson v. Denno and what the judge could have ruled on the [Inaudible] he haven’t heard the word about [Inaudible].

I’m just wondering on how to [Inaudible] that really resolve a claim that I could rule out the doctor’s office and therefore my confession is voluntary [Inaudible] How can you resolve that obligation [Inaudible] you have only [Inaudible]

Dewey Hayes:

I do not recall an exact testimony of everything but there was state’s testimony there and the state’s testimony was that he was not brutalized in Dr. Jackson’s office.

Earl Warren:

Now, where can we get that from the record please?

Could you point it out to us?

Dewey Hayes:

Mr. Chief Justice, I can’t point it out in the record.

Earl Warren:

Haven’t you read the record?

Dewey Hayes:

Yes sir.

Earl Warren:

Well then why couldn’t you point it out?

Dewey Hayes:

I don’t recall everything in the record.

I apologize if I’ve said something wrong, but I do not recall it.

I cannot recall everything in the record.

Byron R. White:

Can you recall any testimony on the motion to suppress any thing [Inaudible]

Dewey Hayes:

Your Honor, I do not recall actually.

Earl Warren:

Well then I suppose you were entitled to take it there was no testimony of the state to the contrary, are we not?

Dewey Hayes:

The only testimony I remember Your Honor was a Sheriff, Sheriff Robert Lee, the deputy sheriff Jones and the petitioner.

Earl Warren:

Were either of those at the doctor’s office?

Dewey Hayes:

No sir, they were not.

But Dr. Jackson testify at the trial and they had a right to cross examine, they did cross examine and brought out anything they wish to bring out.

Byron R. White:

Dr. Jackson actually testified [Inaudible]

Dewey Hayes:

At the trial.

There was an objection of the confession.

Byron R. White:

Overruled?

Dewey Hayes:

Yes sir.

Byron R. White:

On the testimony — [Inaudible]

Dewey Hayes:

Now, well —

Byron R. White:

[Inaudible]

Dewey Hayes:

Your Honor, on the confession, the jury was excluded, but the jury was not excluded during Dr. Jackson’s testimony.

Byron R. White:

And that this testimony [Inaudible]

Dewey Hayes:

As I recall, the confession was first.

Byron R. White:

[Inaudible]

Dewey Hayes:

I’m not paused if I had to —

Byron R. White:

You can’t say it [Inaudible] prior to the testimony [Inaudible]

Dewey Hayes:

You Honor, I do not recall which witness was first.

In the composition of our jury, the question has been raised about how this jury was composed.

Now of course we have a jury panel who makes up a list.

These jurors to try this case was selected from this and 99 jurors were called to try the petitioner in this case.

Out of the 99 jurors that were called, actually, nine of those people were called.

On the Grand Jury that indicted actually Sims actually at least one member of the Grand Jury that indicted the defendant was colored and at least three or four of these nine of the 99 called that term of court was on the panel of 48 that the defendant was tried from which means that in Charlton County, Georgia, you do have a fair representation of old people on the jury.

This jury, the Grand Jury and the Petit Jury was legally composed and he received a proper trial in Charlton County.

With the Court’s permission, I would like to relinquish the rest of the time to Mr. Freeman Leverett.

Earl Warren:

Mr. Leverett.

E. Freeman Leverett:

Mr. Chief Justice and may it please the Court.

I would like to answer one or two questions first that were posed and then present my remarks.

The question that Mr. Harlan, Justice Harlan asked yesterday about the statistics, those statistics were not put in the record but they’re all found at page 29 of the brief of respondent.

With respect to the question of the Chief Justice the denial by Dr. Jackson that he kicked or that he struck the petitioner is found at pages 204 to 205 of the record as I will point out later, there was no denial or affirmation of the other part of the charge of mistreatment concerning the dragging incident, but he was not asked either on direct on cross about that.

As far as the procedure on the confession, Dr. Jackson testified first and that’s in page 189 of the record.

He was called by the state for the purpose of testifying to the condition of the victim.

He was not called by the state in connection with any confession issue.

He was called solely to testify as to the condition of the victim as he found it when he examined him and also to identify some pictures that he took showing her condition.

The question of what happened in his office was gotten into on cross-examination by counsel for petitioner.

Sheriff Lee and Mr. Dudley Jones, the Deputy Sheriff, testified later in the case and on the question of the confession and the incriminating admissions at pages 208 and 222 of the record, they had previously testified to substantially the same thing on the motion to suppress the confession which was filed prior to the trial.

Byron R. White:

[Inaudible]

E. Freeman Leverett:

Not with regard to the doctor, no sir.

Byron R. White:

How can [Inaudible] do you think he could say [Inaudible]

E. Freeman Leverett:

I think the letter would be true Mr. Justice White for this reason, for a number of reasons.

Number one, the separation as to time, personnel involved, location, the fact that the petitioner himself testified under oath at the trial that he was not scared that the confession was read to him, that he signed it because it was right.

Byron R. White:

Did he say whether [Inaudible] or not [Inaudible]

E. Freeman Leverett:

Yes sir, which that is our position.

Byron R. White:

[Inaudible]

E. Freeman Leverett:

That is correct sir.

Byron R. White:

[Inaudible]

E. Freeman Leverett:

That is correct sir.

William J. Brennan, Jr.:

May I ask [Inaudible]

E. Freeman Leverett:

No sir.

William J. Brennan, Jr.:

[Inaudible]

E. Freeman Leverett:

No sir.

What happened Mr. Justice Brennan, the motion to suppress was filed prior to trial.

William J. Brennan, Jr.:

Yes.

E. Freeman Leverett:

The court held a complete hearing on that before whatever struck the jury or put the person in jeopardy.

William J. Brennan, Jr.:

[Inaudible]

E. Freeman Leverett:

It started out to be — it started out to be and then counsel for petitioner withdrew his request.

This came up and the state started to put the testimony of Sheriff Lee as I recall at this point and the counsel for petitioner initially objected and said, well, he thinks that in order to comply with Jackson versus Denno that another complete hearing must be held during the course of the trial, and the judge started to do that and then he said, “No, I have already done that this morning, so I will withdraw that request.

William J. Brennan, Jr.:

[Inaudible] I don’t know whether a proceeding would follow [Inaudible] that this Court must make the decision [Inaudible] before the hearing.

[Inaudible]

E. Freeman Leverett:

Yes.

William J. Brennan, Jr.:

[Inaudible]

E. Freeman Leverett:

Well, of course, there is no way to psychoanalyze the judge at this time but our position is that the decision was followed as I hope to show momentarily.

William J. Brennan, Jr.:

[Inaudible]

E. Freeman Leverett:

That’s alright sir.

I think it should be pointed out that there were three confessions or at least incriminating admissions involved in this case.

The first was a testimony of Author Lee Walker, a Negro laborer to the effect that he saw the petitioner approximately two hours after the crime before he had been arrested or before he had been confronted by anyone in authority at which time, the petitioner spontaneously stated to him that he had attacked that white woman.

This incriminating admission was admitted without objection.

It’s not challenged here, the petitioner’s counsel elicited the same thing on the cross-examination.

E. Freeman Leverett:

Secondly, there was —

Potter Stewart:

It wasn’t spontaneous was it?

It was an answer to a question.

E. Freeman Leverett:

It was an answer to a question at to where he’d been and he said, he’d been playing dice somewhere and he asked him, “Did you attack that white woman?”

He said, “Yes,” but the petitioner himself testified at the trial that during this conversation that he was threatened or mistreated anyway when this confrontation took place with these Negro employees.

The second was the written confession taken at Worth county jail at approximately 10:30 p.m. the night following the crime.

The third was a written confession–

Abe Fortas:

What hour was that statement of the [Inaudible] do you remember?

E. Freeman Leverett:

What is that sir?

Abe Fortas:

At what hour did he make the statement of the [Inaudible] —

E. Freeman Leverett:

It was around three to three — somewhere between 3:00 and 3:30 Mr. Justice Fortas.

The third was a written confession that was taken on the day of the crime was read to the petitioner on the Monday, following the Saturday of the crime when he was arrested by Agent Cornelius of the GBI at which time the petitioner acknowledged that it was true.

A motion to suppress this written confession was filed prior to trial.

All of the evidence relating to this other than perhaps Dr. Jackson’s testimony was heard at this time, including the sworn testimony of the petitioner himself.

The same substantial of the same evidence was abused on the motion to suppress that later went in before the jury except for the fact that the petitioner was not subjected to cross-examination before the jury because he did not elect to be sworn.

He made an unsworn statement and the state on the however unique rule of the unsworned statement.

The state has no right to cross-examine an accused on his unsworn statement and in fact, if the state had made a motion to do so or had attempted to do so, the presence of the jury, it would be a ground for mistrial.

We have a combination now.

Some of us hope that eventually we’ll get read of it but it lingers on.

William J. Brennan, Jr.:

But we held [Inaudible]

E. Freeman Leverett:

Yes sir, you held that it was a denial of counsel for the judge to refuse to permit the —

William J. Brennan, Jr.:

[Inaudible]

E. Freeman Leverett:

He has right to take a stand and the Supreme Court of Georgia has held that if he takes the stand as a witness, he can be questioned but that if he simply elects to take the — to make the unsworn statement, he can be — things can be suggested but he is not entitle to questions as it would be on the stand.

Now, at the trial, the petitioner renewed his motion to exclude this confession.

It was admitted with respect to the republication of the written confession on Monday following the offense.

The counsel for petitioner initially objected to this testimony on the ground that the proper foundation had not been laid.

The counsel for the state there upon proceeded to make, to lay the foundation and this time, the testimony was admitted without objection and that’s at page 239 of the record.

They made a motion for a new trial preserved the objection to the original written confession introduced during the trial.

The Bill of exceptions was signed overruling the motion to suppress but in no way on the record, is there any challenge against the — what I refer to is spontaneous declaration to the turpentine workers nor to the republication of the written confession on the Monday following.

The written confession of April the 13th is attacked primarily on the ground that the procedure utilized by the courts below did not meet the requirements of Jackson versus Denno in providing a fair hearing in which both the underlying factual issues and the voluntariness of the confession should be determined.

E. Freeman Leverett:

The first response that we make to this is that such a hearing was held.

Petitioner’s counsel assisted in affording it by filing the motion to suppress.

A full hearing was held, the testimony of the petitioner under oath, the testimony of the two officers that had anything at all to do with the confession.

This has never been done before in Georgia on a confession.

The procedure in Georgia has universally been for an opposite to take the stand, and the court to swear him, for the counsel for the state to ask him, “Did you have a conversation with the accused concerning him whether or not he committed the crime?”

“Yes.”

“Before he — you had this conversation, did you make any promises to him?

Did you make any threats or hold out any hope of reward or inducement?”

And then after those — and those questions or — were pounded in the presence of the jury, the jury is not excluded and the court does not in the past hear all of the evidence relating to the confession but only the foundation questions from the particular witness who was then testifying.

So this was a distinct departure from the Georgia law, a procedure that had been hitherto followed in our state.

But the only thing as I see it which the trial court here did not do which perhaps it should have or could have done, and I am not certain in reading the decisions of this Court in Jackson versus Denno, as well as Boles versus Stevenson that it is necessary for the court, for the trial judge to read into the record an explicit finding of fact on the question of voluntariness.

That was not done here.

We take the position that regardless of whether it was or it wasn’t done that it’s harmless because in view that we take of the evidence relative to the confession, it was not in conflict and that it required a finding of voluntariness.

Now in this respect, the undisputed evidence shows the following.

The offense occurred around 10 o’clock in the morning, Saturday, April the 13th on a country road near St. George in Charlton County.

Following the assault, the accused left the scene of the crime, his car wouldn’t run and he walked down the road in the direction toward a Negro settlement referred to as Toledo.

About 2:00 or 3:00 p.m. later that date, these two Negro laborers noticed petitioner upon being asked whether he had attacked that White woman, petitioner replied that he had.

This statement was made before petitioner had ever been taken into custody, before he had been confronted by anyone in authority.

As petitioner started to leave, one of these workers effectuated a citizen’s arrest, turned him over to a Mr. Stokes around 3:30 who in turn delivered him to Sgt. Sims and trooper Peacock.

These officers carried petitioner to Dr. Jackson’s office in Folkston for the purpose of examining his clothes to determine the presence of any miniscule strains of having been established that the victim was in the last days of the month of period at the time of the assault.

Petitioner testified while he — while he was at the doctor’s office, the doctor knocked him down, kicked him and dragged him over the floor.

On the other end, Dr. Jackson denied that he was kicked or beaten.

There was no questions propounded to Dr. Jackson by either the state of the petitioner as — or as a dragging is concerned –

Abe Fortas:

He didn’t quite then said that, did he, that the doctor certainly denied that he, the doctor —

E. Freeman Leverett:

Yes sir.

Abe Fortas:

– kicked him, but he did not, as I read the record, he did not deny that —

E. Freeman Leverett:

No sir.

Abe Fortas:

Somebody else might —

E. Freeman Leverett:

No, he said he was not present at all times.

However —

Abe Fortas:

But he also said that he found him on the floor?

E. Freeman Leverett:

Right, but the petitioner said that —

Abe Fortas:

Assaulted and kicked him.

E. Freeman Leverett:

The petitioner said —

Abe Fortas:

In all premise, you have — don’t you have to say that the only thing that the doctor said was that he himself didn’t kick him or knock him down?

E. Freeman Leverett:

Yes sir, that is correct.

I might state this also, Mr. Justice Fortas, the petitioner himself testified that the only person that he tried to tie in on this was Dr. Jackson.

He did not at any time say any police officers did anything wrong to him.

In out of view of this, this Court has in a number of decisions held at — with the mere fact that at some previous stage of a prisoner’s arrest or incarceration that there may have been some physical abuse that that does not invalidate as a matter of law any confession subsequently obtained and in fact, this Court has held in a number of cases as a matter of law that it did not.

The Stein Case for example there was undisputed, that the prisoners did have some marks on them indicating some brutality, but the Stein Case specifically used the word “concurrently with” so we think that the mere fact that at one point, the prisoner may have been involved in a scuffle does not certainly under the circumstances of this case where the petitioner himself admits that he was not mistreated in the jail, that these officers were nice, that they were friendly, that they are — statement was read to him, that he —

Byron R. White:

You were — you were [Inaudible] would you say — would you say that in examining this case and deciding, you must assume and accept the truth of the petitioner’s allegations as to what happened in the doctor’s office?

E. Freeman Leverett:

There is no evidence to the — contradictory to the dragging incident.

Byron R. White:

So we accept that?

Do we or not?

E. Freeman Leverett:

Under the rules of evidence as I recall, that would be — that would be a matter to which there is no evidence in conflict, unless the petitioner’s testimony is impeached.

Byron R. White:

But you say at least of Georgia, the Court of Georgia rule.

The trial judge, since there was no contrary evidence, he should have said, “This did happen in the doctor’s office but” —

E. Freeman Leverett:

That’s correct.

Byron R. White:

– that leaves the question of whether it was [Voice Overlap] and overall, I find the confession voluntary.

E. Freeman Leverett:

That would be my evaluation.

Byron R. White:

Duress to follow the same course.

E. Freeman Leverett:

That is correct.

I might point out that there’s no evidence whatever that the petitioner was subjected to any interrogation.

The whole context and atmosphere of this incident in the doctor’s office was not related to confessions.

It was related solely to examination of his person to determine the presence of blood on his clothes.

He was taken from there approximately 30 miles away.

He was turned over to entirely different officers.

He himself did not say that any officers had ever mistreated him.

And all the mistreatment allegations that he makes in his testimony would direct you to a Dr. Jackson.

At some time around 6:30 p.m. after he had been in the jail about 30 minutes in Worth County, Deputy Dudley Jones happened to be putting a prisoner on the third floor, petitioner recognizing him as a deputy sheriff that he had known previously in Charlton County, called him and inquired, “Mr. Dudley, are you working here?”

E. Freeman Leverett:

Deputy Jones answered in the affirmative and asked the petitioner through the bars what he was doing there, at which the petitioner replied that he had gotten in trouble with a White woman.

The deputy then asked him if he wished to make a statement.

He stated that he would.

He’d like to talk to the sheriff.

At the trial, petitioner admitted talking to Deputy Jones and stated that he was treated nice and that no effort was made to beat him or to say anything to him, that’s page 138-139.

About 10:30 that same night after Sheriff Lee had come to the jail, petitioner was brought downstairs in the presence of Mr. Jones and the sheriff, the constable and the chief of police, the statement, a written confession that he’s primarily attacked in this case was taken.

Now, petitioner testified under oath on the motion to suppress and as I say, he could not have testified to these facts at the trial because the state did not have the right to examine but only the motion to suppress he testified that the officers talked nice to him, that he wasn’t beaten or threatened, that he wasn’t afraid of Deputy Jones.

He was friendly to him, that he recalls the sheriff telling him that anything he said could be used against him, that he wasn’t scared, that the statement was read to him and that he signed it because it was right.

Abe Fortas:

Now, this doctor was telling something that wasn’t true, there must have been some invisible force in the doctor’s office that tripped up the petitioner and threw him to the floor, that sort of thing, is that right?

E. Freeman Leverett:

Well, there is a conflict in the testimony.

Abe Fortas:

Yes sir, [Attempt to Laughter] I would say so.

Byron R. White:

And you just said that we could assume that the — what happened that — what he said happened at the doctor’s office happened?

E. Freeman Leverett:

Well, I think that Mr. Justice Fortas had reference to the fact that he wasn’t knocked down or something.

It’s also undisputed that this procedure of taking this statement at night at the jail took not more than 15 to 30 minutes.

There was no persistent questioning, there was no protracted questioning.

It was taken on the same day that he was arrested approximately seven hours after his arrest.

As far as the testimony about being advised that he had a right to see a lawyer, the petitioner did not deny that.

He said that he could not recall on that issue one way or another.

That’s at page 137 and 140.

Also, contrary to the brief, what he said in the brief of petitioner, there was a testimony that he was advised that he did not have to make a statement and that’s at page 104 of the record.

Therefore, what we have is this that the petitioner confessed initially after having been in jail an hour or so or at least it was incriminating admission, during a casual conversation, he was in the cell and the officer was on the outside which he called to the officer himself.

The written confession was given approximately four hours later.

Interrogation lasting about 30 minutes at the most.

In his own testimony at the trial, the petitioner slipped up after stating that the sheriff had called him and asked him about signing a confession.

He first said that he didn’t remember signing it but then he immediately corrected himself and said that he didn’t know what he was signing, that’s at pages 135 and page 248.

On cross-examination, he admitted that the statement was read to him and that he signed it because it was right, that’s on page 141.

It’s not the slightest evidence that we submit that this confessions made in the jail were anything but voluntary.

To hold otherwise you have to disregard the petitioner’s own testimony.

So therefore we say that even assuming arguendo that your decision in Jackson does require that the trial judge make an explicit statement into the record as to his findings of fact that in any such failure here was harmless.

William J. Brennan, Jr.:

Incidentally, this colloquy you and I were talking about earlier, did that happened after the doctor testified at that trial?

E. Freeman Leverett:

Which colloquy was that Mr. Justice?

William J. Brennan, Jr.:

This is on 225 — 226 where an attempt to redo the motion to suppress and then abandoned —

E. Freeman Leverett:

That was after Dr. Jackson’s —

William J. Brennan, Jr.:

After he —

E. Freeman Leverett:

I believe that’s right sir because as I recall Dr. Jackson testified first and I believe I stated that in reference to — Yes, Dr. Jackson testified first in page 189 and the objection, the colloquy that we discussed previously came up in connection with Sheriff Lee’s testimony which begins I believe at 222.

William J. Brennan, Jr.:

We don’t have any indication here why the judge was willing to have a redo of the motion to suppress, do we?

E. Freeman Leverett:

No sir.

I think out of the abundance of caution, he wanted to —

William J. Brennan, Jr.:

If the defense wanted he was going to allow it?

E. Freeman Leverett:

How’s that —

William J. Brennan, Jr.:

If the defense wanted it, he was gong to allow it?

E. Freeman Leverett:

That’s right sir, he withdrew it at that point.

We further submit that the same testimony refutes the contention of the petitioner that the confession was involuntary as a matter of law because it was secured by the coercive circumstance.

Now the fact if the trial judge also submitted this confession to the jury, does invalidate it if the previous determination by the trial judge was itself sufficient.

The Georgia Supreme Court has held perhaps along the lines of the — by Mr. Justice Black’s dissent in Jackson that the issue as to the voluntariness of a confession is one of the fact issues of a case as to which the accused is entitled as a matter of right under our state constitution to a jury trial.

Under the Georgia law, there’s no such thing as a directed verdict of guilt to a permeable case and we have a statute that we call the door mat that strictly prohibits the trial judge from communing in extent upon what has or has not been proven.

Consequently, at the juncture of this confession, the trial judge was prohibited either from failing to submit it to the jury with appropriate instructions or else from spading to the jury his opinion is to what he had found and this is where I think the Supreme Court of Georgia got [Inaudible].

The Supreme Court of Georgia’s decision, page 338 of the record, seems to and what I consider, I hope my interpretation is correct to confuse what this Court held in Jackson versus Denno.

The Supreme Court of Georgia seems to be saying or assuming that Jackson versus Denno requires that the trial judge advise the jury of his independent determination.

I do not so — I do not construe Jackson versus Denno to do that.

I think that that’s necessarily implied in the opinion insofar as you expressly approved the Massachusetts rule under which the issue is determined by both the judge and the jury and that is what we submit that the trial judge did here.

Of course whether or not there was a compliance with Jackson versus Denno, is a federal question for this Court and not for the Supreme Court of Georgia to decide.

Supreme Court of Georgia seem to assume except for the undisputed evidence aspect of it that would not have been in compliance with Jackson versus Denno except for these three factors that Mr. Greenberg touched on which I won’t not deal with.

That brings me to the challenge as to the standards that were used to determine voluntariness.

The charge complaint of essentially was a code section that’s been the law of Georgia many years.

The judge instructed the jury that they were not to consider the confession that it was to be received with caution that a confession alone uncorroborated by other evidence will not just file conviction.

To make a confession admissible, it must have been made freely and voluntarily without being induced by the slightest hope of benefit or the modus fear of injury.

That charge if anything we submit is more complete than just a simple test of voluntariness that this Court enunciated in the Gallegos versus Nebraska decision.

We submit that the charge did not limit the jury to considering just mere direct threats and open promises.

The court — this Court has not yet held that a State Court must give a trial jury, a resume of it’s holdings and all of the factual circumstances, the myriad situations that ever risen and tell them that they may consider all of that.

E. Freeman Leverett:

That has never been held and in fact you held just to the contrary in Lyons versus Oklahoma which has held at the question as to how specific a charge to the jury on an issue of confession must be primarily a question for the State Courts.

Rogers versus Richmond, that does not hold anything to the contrary and simply holds it where it is seen that the trial judge both in his determination and in his instructions to the jury, considered the probable reliability of the confession as one element in determining it’s voluntariness if that was erroneous as a matter of federal law.

The specific question raised by Mr. Justice Brennan about the implications to be drawn from a denial of the overruling of the motion to suppress would be precluded against petitioner in the Culombe case at 367 U.S. of 603 – 604 if that is still the law.

We next wish to address a few remarks to the contention as far as Escobedo was concerned.

We think that this case is distinguishable from Escobedo.

Here, the petitioner was expressly told that he was entitled to a lawyer and he said he didn’t want one.

He testified himself at the trial under oath that he remembers the sheriff telling him that anything he said could be used against him and not only that he never requested a counsel, he expressly declined it.

He was also told that he didn’t have to make a statement as I previously stated and that’s on page 104.

The evidence does show that he had only a third grade education but if you read his testimony as a whole other than you get to the places where the manufactured testimony about can you define or do you know what is meant by constitutional rights about being advised about your rights, he responded very well to the questions.

He handled himself in a perfect manner that indicated he knew what is going on.

Now in Escobedo of course, there the accused requested counsel and it was specifically denied and following that a confession was taken that is not to this case.

As far as the jury selection procedures, we think that the evidence shows this that even assuming that this evidence as to the prior jury list had come in and had been admitted and even assuming that it had created — carried the burden at most evidence of prior jury list can establish as a prima facie case.

It cannot conclusively establish discrimination as to this particular jury.

It creates a prima facie case shifting the burden to the state to go forward.

We think the evidence here shows that there had been a revision just prior to the trial of this case in the Spring of 1964.

There was one Negro on the 19 men Grand Jury.

There were nine Negroes on the 99 summoned for the Traverse jury and at least four of these nine were put upon the petitioner in this case.

He so alleges at page 321 in his amended motion for new trial and the trial judge certified that which thereby established that as a fact and this is between – stated that only three were put upon him but they allege in their motion that four and that’s been approved.

Georgia law as we will deal further in the Whitus case, I do not oppose to argue the issue about the tax digest in this case because the same thing comes up in the Whitus case, but Georgia law limits jury service to tax payers.

In this respect, the Negroes constituted 20% of the tax payers in Charlton County with 411 Negroes to 1548 White people, but of the 691 non-White persons in Charlton County, 25 years of age or older, 302 were functionally illiterate according the census bureau.

We think that the Negro representation on the jury here compares favorably with that it was upheld in Swain versus Alabama and Brown versus Allen and then regardless of whether the trial judge did or not err in excluding this evidence, the most that it would have done would have established the prima facie case in that the evidence as to this particular box — that we submit, overcame in such a prima facie showing.

Earl Warren:

Mr. Greenberg.

Jack Greenberg:

May it please the Court, just a word on the jury point, there has been — that has been stated to the Court for the first time, some facts which certainly do not appear on the record about numbers of Negroes on the panel and so forth and on the Grand Jury and we rest upon what the record in these case is.

The state certainly had within its power to establish the facts if they were otherwise at the trial and I think what we have here is this record.

Hugo L. Black:

Now, you use the facts that they have given?

Jack Greenberg:

That there were nine — the only information I have Mr. Justice Black is from the record in which five were identified and now the nine — I have to dispute it because I have no reason to believe it’s true.

I went down and I made an independent count and I might find it’s none but —

Hugo L. Black:

The Court at various times has the supplemented the record on appeal?

Jack Greenberg:

Well, I think at the very least that there should be an opportunity to have a further hearing on this.

Indeed, I just feel that on this record, I have to believe what the record tells me and I have no reason to believe that there are nine.

Jack Greenberg:

The first we’ve heard about none was at this time.

If there’s any doubt about the standard that the Supreme Court of Georgia used, I submit that the Court to look at the top of page 336 of the record on the Jackson v. Denno point.

And the Supreme Court of Georgia makes quite clear 336 that it is adhering to its prior standard.

It examines the fact and says, the related facts made a prima facie showing that the statement was freely and voluntarily made and admissible into evidence.

Now, I don’t know what more one would need to be persuaded that Georgia is using and it cites the old cases.

The jury —

Potter Stewart:

What page is it?

Jack Greenberg:

336.

Potter Stewart:

336.

Jack Greenberg:

The first sentence and the first full paragraph that Georgia is using the prima facie standard and not the finding of voluntary standard.

And indeed on 337, in it’s distinguishing of the cases it makes quite clear that there is no finding that the Jackson procedure was followed, but rather there are reasons why it didn’t have to be followed.

In the middle of 337, about a third of the way down the first bullet paragraph, did we think that the Jackson case applied to this case, we would unhesitatingly follow it which to me contains an implication that they are not following it and then they give some reasons why they’re not following it and that because Georgia has some certain legal doctrines which make it rather different than New York, and so I don’t think that there’s any doubt at all that neither the trial judge and certainly that State Supreme Court in assessing what the trial judge did believe that they were doing either explicitly or implicitly what Jackson requires.

Now, there is some allegation —

William J. Brennan, Jr.:

What about that statement of the defense counsel at page 226?

Jack Greenberg:

Your Honor as I read that, that’s one of those — sometimes confusing statements one sees in trial records — people think on their feet and he apparently said, “Well, let’s have a hearing and now, I guess we had it and I’m not sure we never had it” and then things just kind of drifted off and I think it’s really not conclusive as to any —

William J. Brennan, Jr.:

Well, it is clear at least admissive — he appreciated what the Jackson and Denno ruling was?

Jack Greenberg:

Oh yes, and then there was an objection later on and the motion for a new trial about Jackson v. Denno.

Now, much is made of the fact that the prisoner was treated in a friendly manner at the jail and in fact, he had nothing to eat and it was about eight hours since he had eaten.

He was in what now is uncontradicted.

He had to be in extremely severe pain as a result of what happened to him.

No one is any longer denying that.

The fact that the jailers asserted that they treated him in a friendly way, I think it proves nothing.

This Court in the Miranda case for example, took note of the so called Mutt and Jeff technique of interrogation in which some people treat the prisoner in a brutal manner and then some people come up and treat him in a friendly manner and the friendly treatment in it of itself, we submit proves nothing.

We submit that this case is virtually to the extent that you could find two cases that involve parallel sets of facts on all force with Fikes against Alabama.

Here, both petitioners were approximately the same age.

Both had third grade education.

Both were of extremely limited mentality.

Both were arrested by civilians to follow the parallel further.

Neither was arraigned or taken to a magistrate before the confession.

Each of them was allegedly advised of some legal rights.

Jack Greenberg:

Sims saw no friend, relative or counsel, Fikes saw his employer.

The Fikes record contains no evidence of physical brutality although the Fikes record did involve a time period of several days before the confession.

This record involved somewhat slighter time period but now — but contained uncontradicted evidence of physical brutality inflicted on the petitioner shortly before the alleged confession and we submit that the proper procedure was not followed as required by the Jackson case, but then any event on uncontradicted evidence on this record, the conviction below should be reversed because the confession was coerced as a matter of law.

Abe Fortas:

Mr. Greenberg, what do you make of this testimony with respect to the statement on Monday in which this testimony to the effect of —

Jack Greenberg:

Mr. Cornelius.

Abe Fortas:

That’s right.

Jack Greenberg:

Well, that was part of the same transaction. It was the reaffirmation of the original confession.

This was at or about a time when a warrant had been issued against him and he was as denoted in Georgia law an accused and he still had no counsel.

Abe Fortas:

What do you make of it on the Jackson and Denno confession point, that is to say that the confession was given on Saturday.

On Monday, according to his testimony, the petitioner said that the confession was true.

There’s no contradiction to that and there are no inflicting testimony, nothing in the record as I remember it except of this testimony of officer Cornelius that there was — that he read the written statement to the prisoner on Monday and that the prisoner said — confirmed it.

Jack Greenberg:

Well —

Abe Fortas:

What effect does that have in your judgment on the problem of voluntariness?

Jack Greenberg:

I don’t think it has any effect.

I would think that the momentum of the conditions that led to the first confession certainly carried on shortly thereafter a period of several days thereafter he was brought back in handcuffs to Folkston where the crime has supposed to have occurred.

Abe Fortas:

Suppose this occurred a week after the written statement was taken and —

Jack Greenberg:

I would say that it —

Abe Fortas:

There’s nothing in the record except that he was in jail and then a week later an officer visits him in jail and raised the statement for him and he says, “Yes, that’s right.

I did it” and I suppose those were the facts, what about them?

That —

Jack Greenberg:

Well, I would say that by a week later, he certainly should have had counsel, friends or someone advising him or assisting him.

By this time, a warrant had been issued against him.

Some of the protections are suggested or required by the Messiah case for example should have been made available to him and — but in any event, there are numerous cases in this Court in which the defendants give a whole series of confessions and this Court has held upon a finding that one of them was coerced that it was adequate grounds for reversal.

Abe Fortas:

Have you got such cases cited in your brief?

Jack Greenberg:

I think —

Abe Fortas:

Similar to this?

Jack Greenberg:

I think we do Your Honor but it would be rather simple to supply them because there are a number of — I’ll check it again.

I can’t recall it at the moment but if not we will submit it to the Court.

Earl Warren:

Mr. Hayes, Mr. Justice Black would like to ask you another question.

Hugo L. Black:

Mr. Hayes, what was your statement about the number of the jurors — the nine jurors?

Dewey Hayes:

Your Honor, we had 99 jurors called.

Of those jurors as a matter of fact, nine were colored.

Now on the Grand Jury —

Hugo L. Black:

Does record show that fact?

Dewey Hayes:

Does the record show that fact?

Hugo L. Black:

Yes.

Dewey Hayes:

That was in the brief — I’m sorry.

Hugo L. Black:

In the brief?

Dewey Hayes:

Your Honor —

Hugo L. Black:

Well, does the record show it — the record in the court down there — that there were nine colored men on that jury?

Dewey Hayes:

The record shows the names of nine people which were colored.

As I recall, the record has the names of jurors and out of those 99, nine of them was actually colored.

Hugo L. Black:

But now you say that but does the record show it?

Dewey Hayes:

The record only shows names.

Hugo L. Black:

It does not show that they were colored?

Dewey Hayes:

The record does show according to their contentions that four colored were on the panel of 48 that was put on this defendant to be tried.

The record probably shows that at least one member of the grand jury panel was colored but now actually in the record, they ask the clerk of the court to pull out the ones that they knew were colored and he named five people that he remembered as to being colored but actually the clerk didn’t remember all of them.

Byron R. White:

But the record does show that?

Dewey Hayes:

No sir.

Byron R. White:

But it wouldn’t do any good for us to – at the record because it wouldn’t show it.

We therefore have to go on the basis of the file, do we not?

Dewey Hayes:

We could supplement the record and show them that it was true, there were nine.

We could do that because that is true.

Byron R. White:

Perhaps we would have another hearing to supplement that because somebody may not believe you.

Dewey Hayes:

But as I stated, he had asked the clerk as I recall about how many were colored they had and —

Byron R. White:

Yes but that’s in the record, isn’t it?

Dewey Hayes:

Yes sir.

Byron R. White:

The testimony — they asked the clerk of the court.

Dewey Hayes:

And the clerk said, he recall five that he knew was colored.

Hugo L. Black:

But that would require a new hearing.

Hugo L. Black:

We then have to go along — if the record – do we not, we can’t send — if you have to see a record that show it then you could obtain it and then it might be —

Dewey Hayes:

By that record.

Hugo L. Black:

But not by new record.

Dewey Hayes:

But as I said, the records thus show without question that four of the panel of 48 was colored.

Hugo L. Black:

Yes, he reached to that – alright, thank you.

Jack Greenberg:

May I add just one point You Honor and that is that there was a statement made that prior to Jackson v. Denno, there had not been these pre-trial hearings on the confession and the counsel in Georgia informs me that this is not the case that Mr. Moore himself for many years before Jackson v. Denno would try the confession issue separately under the old Georgia rule before the trial.