Spano v. New York

PETITIONER:Vincent Joseph Spano
RESPONDENT:State of New York
LOCATION:Roosevelt Bar and Tavern

DOCKET NO.: 582
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 360 US 315 (1959)
ARGUED: Apr 27, 1959
DECIDED: Jun 22, 1959
GRANTED: Dec 15, 1958

ADVOCATES:
Herbert S. Siegal – for the petitioner
Irving Anolik – for the respondent

Facts of the case

On January 27, 1957, Vincent Joseph Spano was involved in a bar fight with Frank Palermo, Jr. Palermo knocked Spano to the ground and kicked him in the head multiple times. Later that night, Spano acquired a gun, found Palermo, and killed him. On February 1, 1957, a grand jury indicted Spano for first-degree murder and a warrant was issued for his arrest. Two days later, Spano called Gaspar Bruno, a longtime friend of his who was enrolled in the police academy. During that conversation, Spano told Bruno that Palermo had been beaten up in a fight, he was dazed, and he shot at Palermo. The next day, Spano turned himself in but refused to answer officers’ questions. The police questioned him for several hours before they brought in Spano’s friend Bruno to play on their friendship in order to convince Spano to confess, which he eventually did.

The confession was admitted into evidence at trial, and the jury was instructed to consider it only if it was found to be voluntary. The jury found Spano guilty and sentenced him to death. The New York Court of Appeals affirmed.

Question

Does the admission of Spano’s confession violate the Fourteenth Amendment?

Earl Warren:

Mr. Siegal, you may proceed.

Herbert S. Siegal:

Mr. Chief Justice, may it please the Court.

The petitioner, Vincent Joseph Spano, was convicted of a crime of murder in the first degree in the County Court, Bronx County, New York, was sentenced to death.

The sentence has been stayed.

Certiorari was granted by this Honorable Court on the 15th day of December, 1958.

The Court of Appeals of the State of New York affirmed the judgment of conviction by a vote of 4-to-3.

Now, may it please the Court, briefly the facts are these.

On January 22nd, 1957, the petitioner, Vincent Joseph Spano, was in a bar and grill and had a $10-bill on the counter when the deceased, one Frank Palermo walked in and took the bill off the counter and walked out of the bar.

Vincent Joseph Spano walked out after him, an argument started and Frank Palermo, a former professional fighter gave the petitioner Spano a most vicious beating, punching him down to the ground and kicking him in the head, leaving him in a dazed and bloody condition.

He became violently sick immediately, vomited right in front of him, was taken into the bar.

Someone there washed his bruises.

He went home, walked home, came back and went to the candy store that he was directed to go to by Palermo.

When Palermo gave Spano this beating he said, “This isn’t all.

Bring the rest of the money to this candy store,” designating a certain candy store.

Hugo L. Black:

What did he mean by (Inaudible)

Herbert S. Siegal:

Well, he had made a demand for certain money and all he had gotten, sir, was $10 off the bar.

Hugo L. Black:

Well, you mean (Inaudible) man claiming that he owed it or —

Herbert S. Siegal:

Not that he owed it.

We contend, sir, that it was a matter of tribute, was a matter of extortion.

Palermo directed Spano to go to this designated candy store.

That to anyone in that neighborhood, amongst those people, was known as the headquarters of Palermo and when Spano got in there, as the evidence shows, three gangsters were in the place besides Palermo.

Spano had gone home in his dazed condition, had gotten a gun, had walked to the candy store and at first fired a volley of two shots up near the top of the ceiling, no where’s near or in the direction of Palermo.

The evidence shows that at that time, as the petitioner stated the door behind him closed or opened and he felt someone running towards him from behind, the three in the store closing in on him and it was at that time that he fired a volley of three shots and killed Palermo.

He then, as the evidence showed, left the scene and was missing for a period of about I believe it was 10 days or two weeks, something of that order.

It then developed that Spano got in touch with an attorney named Tobias Russo, a well-known lawyer in Bronx and arranged for Mr. Russo to surrender to the authorities.

In the meantime before the surrender, the District Attorney of Bronx County had presented the evidence that they had before the Grand Jury of Bronx County and obtained an indictment charging this defendant with the crime of murder in the first degree.

Where there eyewitnesses to the murder?

Herbert S. Siegal:

There was one other.

There was one eyewitness, sir, a young boy I think 14 or 15 years of age.

The attorney, Mr. Russo made arrangements with the District Attorney, met the District Attorney in the street in front of the County Court House at or about 7:30 p.m. and there turned over, the petitioner Spano to the District Attorney, Personal Assistant District Attorney, Goldsmith and the county detective and then left.

Herbert S. Siegal:

The testimony shows that the Assistant District Attorney and the police talked the petitioner to a District Attorney’s office.

This was about 7:30 or quarter to 8 p.m.

William J. Brennan, Jr.:

Did the District Attorney have an arrest warrant at that time?

Herbert S. Siegal:

Sir?

William J. Brennan, Jr.:

Did the District Attorney have an arrest warrant?

Herbert S. Siegal:

Well, it was a bench warrant notwithstanding, when the indictment was filed by the Grand Jury and accepted by the Court a bench warrant was issued.

William J. Brennan, Jr.:

Was the arrest made under that?

Herbert S. Siegal:

I would — I would say.

He was surrendered pursuant to the bench warrant and indictment.

The Assistant District Attorney interrogate or attempted to interrogate Spano from 7:30 until 12, or 12 o’clock in the morning and during all that time, Spano said, “I want my attorney.”

The District Attorney knew he had an attorney because only a few moments ago he had been surrendered by his attorney upon arrangement.

The District Attorney, nevertheless, knowing that he had an attorney and being told by Spano, “I have been advised not to make any statement except to give you my name.

I want to consult with my attorney.”

Nevertheless, they continued to interrogate and interrogate.

Had the District Attorney indicated to Spano’s attorney that he intended to interrogate him?

Herbert S. Siegal:

No, sir, not a word, sir.

Had the — Spano’s attorney indicated to the District Attorney that he didn’t expect him to be interrogated, had he given many instructions?

Herbert S. Siegal:

Not to the District Attorney.

Not to District Attorney.

Herbert S. Siegal:

Only to his client.

To his client.

Herbert S. Siegal:

Yes.

All this —

Herbert S. Siegal:

Sir?

William O. Douglas:

— all this questioning took place after the indictment, is that correct?

After the indictment, yes, sir.

Tom C. Clark:

What was the provision of the bench warrant?

What did it require (Voice Overlap) —

Herbert S. Siegal:

Well, the bench warrant, reads as follows, sir.

“You are therefore commanded forthwith to arrest the above name and bring him before that Court to answer the indictment or if the courts have adjourned for the term that you deliver him into the custody of a sheriff of the county of or in the City of New York to the warden of the city prison of the City of New York.

Potter Stewart:

Well, now, was that — was that command complied with?

Herbert S. Siegal:

No, sir.

Potter Stewart:

Why?

Herbert S. Siegal:

They didn’t take him and put him into the city prison.

They took him into the District Attorney’s Office, sir, and questioned him until 12:30 and when they saw at 12:30 in the morning that he’s still persistent, that he —

Potter Stewart:

Were the courts open or was this term?

Herbert S. Siegal:

Well, the Court was open, sir, but may I say this, sir.

The District Attorney is present as a custom in the Bronx that when a man is arrested on a warrant after indictment, no matter what time, he is brought before a county judge even if it’s at his home because they all live right there in the neighborhood.

There wasn’t any — any trouble at all about getting a judge if they wanted him at that hour.

Potter Stewart:

Well, I gather the Court there it was termed time.

The courts were actually sitting during the day.

Herbert S. Siegal:

That is right, the time was not called.

They were actually sitting.

They were going to sit the next morning at 10 o’clock.

Now, sir, after, 12:30, they saw they couldn’t get anywhere, they took the petitioner up to the squad room of a police station and there continued to interrogate him and he there again, asked for his attorney, time and time again.

At time, one of the police officers testified that he couldn’t find the — a lawyer with the said name or telephone number in the telephone book.

At any rate, he never got an attorney.

At any rate, during that time, the District Attorney and the police sent a police officer named Bruno, who was a friend of Spano and to Spano a number of times, to tell him that he, Bruno, was in trouble if he didn’t make — if Spano didn’t make a statement in this case, that his wife was going to have another child.

He might lose his job.

And he insisted that he make a statement.

The reason for that is this.

While the defendant or the petitioner was out before he arranged for the surrender, he called his friend Bruno and told him what had happened and said that Palermo had been on his back and had given him a bad beating and that he was dazed and so forth that he killed him and he wanted advice, that he was going to get a lawyer.

So now, they use this same friend, Bruno, to coerce Spano into making a statement.

They used him for the purpose of having him disregard, if they could, the advice and instructions of his attorney.

The District Attorney all of the time knew that this man was represented by an attorney, knew that there had been an indictment, knew that there was a judicial proceeding pending, yet nevertheless, continued to interrogate and interrogate until sometime around 3:30 a.m., after Bruno had left Spano for a few minutes, Spano said, “All right, let me make a statement.”

They called in a stenographer and they got a statement.

Felix Frankfurter:

May I ask you?

Herbert S. Siegal:

Yes, sir.

Felix Frankfurter:

What were the lengths of time of continuous questioning undisputedly not — not —

Herbert S. Siegal:

Well, what we —

Felix Frankfurter:

— had given answer to which the district — which the — which the District Attorney will have — the District Attorney will have to agree.

That’s what I mean by (Inaudible)

Herbert S. Siegal:

My best opinion, sir, that the undisputed testimony is that it occurred between 7:30 and 12:30, then — that might have taken a half hour to get to the squad room and then from about 1 to 3:30 the next morning.

Felix Frankfurter:

7:30 to 12:30?

Herbert S. Siegal:

Yes, sir.

Felix Frankfurter:

Anyhow?

Herbert S. Siegal:

That’s in the District Attorney’s Office.

Then they took him up to the squad room and they went to —

Felix Frankfurter:

(Inaudible) during those — those four hours (Inaudible)

Herbert S. Siegal:

Well, they say they gave him a cup of coffee or they gave him a sandwich or something during that —

Felix Frankfurter:

The questioning —

Herbert S. Siegal:

— time.

Felix Frankfurter:

— continuous?

Herbert S. Siegal:

Yes, sir.

Felix Frankfurter:

How many people were in the room at the time?

Herbert S. Siegal:

Well, testimony was that they went in and out three ways.

Those three police officers.

The Assistant District Attorney was there all the time.

Felix Frankfurter:

Who did the questioning?

Herbert S. Siegal:

Mr. Goldsmith, the Assistant District Attorney and the police officers.

Felix Frankfurter:

Was the stenographer present or just (Inaudible)

Herbert S. Siegal:

The stenographer was only present, sir, at about 3:30 when they asked him to come in.

There was evidence of a case of a beating but I am not arguing that point now because that was denied and it’s not — it’s a disputed of fact.

It’s not an undisputed fact.

Felix Frankfurter:

How long was the interruption after (Inaudible) which is —

Herbert S. Siegal:

I would say in all about —

Felix Frankfurter:

(Voice Overlap) —

Herbert S. Siegal:

— half hour.

Felix Frankfurter:

Then it lasted until 3 o’clock?

Herbert S. Siegal:

3 o’clock, sir.

Felix Frankfurter:

3 o’clock.

And then was the stenographer called in?

Herbert S. Siegal:

Yes, sir.

Felix Frankfurter:

He was there?

Herbert S. Siegal:

Yes, sir.

Felix Frankfurter:

How long was that (Voice Overlap) —

Herbert S. Siegal:

The exact time, sir, is 3:20 a.m. to 3:30 a.m.

Potter Stewart:

The indictment has been returned a week or so maybe —

Herbert S. Siegal:

Prior, yes, sir.

There was a judicial proceeding pending at the time, when the bench warrant was issued.

He was surrendered pursuant to the indictment of the bench warrant.

Potter Stewart:

In your State that the indictment specifies the degree of the murder charge does it?

Herbert S. Siegal:

Yes, sir.

Potter Stewart:

Is he indicted of the first degree murder?

Herbert S. Siegal:

That’s right, sir.

He was indicted for first degree murder.

Potter Stewart:

First degree murder.

Herbert S. Siegal:

Which as a matter of fact for meditation and deliberation.

Potter Stewart:

And that do I understand he’s been convicted as to a first degree murder?

Herbert S. Siegal:

He has been convicted of first degree murder and sentenced to death.

Is there any indication of physical abuse?

Herbert S. Siegal:

There was, sir, throughout the record but it is not an undisputed fact.

They — the police officers denied it and for that reason I refrain from arguing it here.

Did the admissibility of his confession go to the jury?

Herbert S. Siegal:

Yes, over objection, the admissibility went to the jury but not on the question of the absence of counsel or the demand for counsel.

Well, what I was wondering was whether your position here turns solely on the absence of the counsel or whether you make a broader contention that absence of counsel taken in to consideration that the whole — the whole setting should have excluded his confession —

Herbert S. Siegal:

Absence —

— as a matter of due process?

Herbert S. Siegal:

Absence of counsel, sir, plus the fact that there had been an indictment, plus the fact that there was a bench warrant issue, plus the fact that there was a judicial proceeding in being plus all of the other circumstances.

Do you claim this is a coerced confession?

Herbert S. Siegal:

In — in that light, yes, sir.

Well, I don’t understand what you mean in that light.

Herbert S. Siegal:

Well, it’s a coerced confession.

May I say this.

It’s a coerced confession in the — in the sense or in the language of Judge Desmond of the Court of Appeals in the dissenting opinion.

And may I answer this way, sir?

Well, Judge Desmond said this, “Usually, of course, the test for admissibility of a confession is voluntariness and usually voluntariness is a question of fact for the jury.”

But one of the senses in which the courts used voluntary, a confession or incriminating testimony taken from a defendant without warranting of his rights, during the progress of a criminal cause against them is not voluntary since in such a case the fact is undisputed.

The question is not one for the jury but a constitutional question of due process, an undisputed fact.

Some violations of rights, are too fundamental to be excused by a jury or layman, directly and frankly violated here with two such rights, the right to have the advice of lawyer at every stage of a Court proceeding and the right not to be forced to testify against oneself during such a proceeding.

Now, may it please this Court, I’d like to read just a bit further from Judge Desmond’s opinion.

Now, we accept as evidence a confession extracted during the very course of a judicial proceeding after indictment and surrender on a bench warrant.

When the time for investigation has passed and when the prisoner no longer is a suspect, but now a defendant held on the Court process awaiting trial has retained counsel who has warned him not to give evidence to the public authorities.

A citizen learning that he has been indicted and that a bench warrant is outstanding against him consults an attorney.

The attorney confirming strictly to his professional duty instructs his client forthwith to surrender, arranges for surrender to the representatives of the District Attorney’s Office.

The lawyer accompanies his client to the place of surrender, warns him not to make any statement then leaves his client in the custody of the officers justifiably confident that the client’s rights are safely under the protection of the Court and all of its mandate.

The prosecutor in his brief on this appeal reminds us that Spano’s attorney could have waited until 10 o’clock the next morning and surrendered his client to the County Court.

Of course, he could but as we shall show defendant’s rights and immunity would be no different since whether at 7 p.m. or 10 a.m. the surrender was to the Court in obedience to the process.

Felix Frankfurter:

May I ask you —

Herbert S. Siegal:

Yes, sir.

Felix Frankfurter:

— whether you can think the case would have been different that the same questioning, for the same duration under or the statement you raised on certain circumstances at the same time by the same personnel had been carried on and a confession then secured that Spano have had no lawyer?

Herbert S. Siegal:

I don’t — if he had no lawyer?

Felix Frankfurter:

Suppose that?

Herbert S. Siegal:

I think the situation would have been the same if he demanded a lawyer, if he asked for a lawyer so long as there was a judicial proceeding in there.

Felix Frankfurter:

He was advised that the didn’t have a lawyer or that he was that the confession was involuntary which is —

Herbert S. Siegal:

The confession was involuntary because he was deprived of his right to counsel during a judicial proceeding.

We submit most respectfully that there was a judicial proceeding.

This was a — at a pretrial stage.

He was entitled to a counsel at every stage of the proceedings.

Felix Frankfurter:

So that the questioning itself do you think was not — did not deprive the confession from being voluntary?

Herbert S. Siegal:

Not in that sense if we’re talking about physical coercion.

Felix Frankfurter:

This Court hasn’t restricted coercion, or physical coercion.

Herbert S. Siegal:

But this Court —

Felix Frankfurter:

This Court hasn’t held that you require a beating.

Herbert S. Siegal:

Not of those elements separately but this Court has held I believe in the Crooker case that although in that case, the Court held that it was not a violation of due process to deprive a defendant of counsel but that was at the time of arrest and a — that was at the time of arrest before there was an indictment.

And this Court held I believe that to say that the deprivation of counsel in such a stage would be a violation of due process would hamstring the authorities.

But in this case, there is no such question and we draw that distinction if we may.

We say they have investigated the petitioners’ no more a suspect, he is now a defendant.

There is a formal accusation against him.

It’s pending in the Court.

He surrenders pursuant to that bench warrant.

Therefore, at that time, at the moment of the filing of the indictment, two things happen.

Number one, he has an obligation to defend and number two he has the right to attack and at that moment, he certainly could come into Court.

He is in Court.

There is a judicial proceeding and he could make any kind of a motion that he wanted at that moment.

He is certainly — is entitled to counsel.

Tom C. Clark:

The indictment on which he was tried, was that indictment that had been found prior to this episode?

Herbert S. Siegal:

That is right, sir.

Tom C. Clark:

No superseding indictment?

Herbert S. Siegal:

No superseding indictment.

Hugo L. Black:

Suppose the — the judge had been — and instead of reporting to the District Attorney — the District Attorney has brought in the judge and it’s closed the door, made the same inquiry to the District Attorney in the office, would that change the situation?

Herbert S. Siegal:

It Wouldn’t change.

It would be a violation I would say of due process.

I don’t think if either the judge or the District Attorney or anybody else has the right to question the defendant after the indictment.

Hugo L. Black:

Suppose the judge has done before indictment?

Herbert S. Siegal:

Well (Voice Overlap) it might raise some other questions before indictment.

It might raise some other questions.

But if it was a formal charge laid against the defendant, I still believe that he was entitled to counsel on his demand for a counsel.

Hugo L. Black:

He’d already been indicted.

But suppose the judge after this case had been set on to trial, and he just shuts the door, let the District Attorney ask the big question will that violate the due process?

Herbert S. Siegal:

I would say, sir, definitely.

Hugo L. Black:

In order to get rid of the case?

Herbert S. Siegal:

I would say, sir.

I would say that in this case if the attorney or the petitioner had been sitting in the courtroom with the petitioner at five minutes to ten waiting for the petitioner to be arraigned and before the clerk of the Court had an opportunity to call the petitioner for arraignment, the District Attorney or the police had snatched the petitioner out of the courtroom, and taken him into a side room outside of the hearing and presence of the defendant and question him, that certainly would have been a violation of due process and the District Attorney’s contention that he had a right to question because it was before arraignment, we respectfully submit has no merit because they certainly cannot delay arraignments and say that because the physical act of arraignment didn’t take place, they have a right to question.

We submit most respectfully to this Court that from the moment of that indictment that defendant was in Court when he surrendered pursuant to the bench warrant he was in Court.

He had a right to counsel and that his persistent demands throughout the seven or eight hours of interrogation that he wanted a counsel was a deprivation of due process.

Now, we most respectfully urge this Court to reverse the conviction and sentence of death.

Thank you.

Potter Stewart:

Mr. Siegal, just so I understand you.

Herbert S. Siegal:

Yes, sir.

Potter Stewart:

There was submitted to the jury the issue of whether or not this impression was towards was it not?

Herbert S. Siegal:

Merely under our law of voluntariness in the sense of physical coercion, not on the question of the absence of counsel and not on — after indictment and not on the question of a failure to advise the petitioner of his rights not to answer after indictment, merely on the question of whether it was coercion due to physical beatings.

Potter Stewart:

Physical brutality enforced right and that —

Felix Frankfurter:

That couldn’t be the law of New York any longer (Inaudible) the decisions of this Court.

This Court has not so restricted the requirement of the Due Process Clause.

I do not believe that your Court would say no matter what the Supreme Court of United States had said, “We restrict voluntariness to physical beatings.”

Herbert S. Siegal:

Well, they’ve gone as far as psychological beating.

Felix Frankfurter:

Well, that’s from varying opinions.

Herbert S. Siegal:

Yes, sir.

Potter Stewart:

And that was included in the — in the — suggest to the jury, then?

Herbert S. Siegal:

Yes, sir, Yes, sir.

But the element of the absence of counsel was not included.

Thank you.

Earl Warren:

Mr. Anolik.

Irving Anolik:

Mr. Chief Justice, Justices of the Court.

At the outset, the people respectfully call this Court’s attention to page 2 of the transcript of the record furnished by this Court where the New York Court of Appeals said very clearly, the second full paragraph.

It is clear in the record and the fact that not now seriously challenge that this confession was neither physically nor psychologically coerced.

I think that that is the premise that must be accepted here and I do not believe that petitioner seriously contradicts that fact.

Or we wouldn’t be concluded by that.

Irving Anolik:

Oh, I — I understand that Justice Harlan.

Irving Anolik:

I merely pointed that out because of the last remark just to — there would be no confusion on the record on that point.

Hugo L. Black:

What do you understand they meant by psychologically coerced?

Irving Anolik:

I would say that in view of their citation of a number of decisions by this Court that they had in mind situations such as might have been presented in detention of a defend on duly such as Mallory against United States, things that McNabb against the United States and situations where although no physical beatings were promulgated against the person of defendant that psychologically such pressures that the totality of conduct might have been such that it would have been coerced despite the fact that no physical violence were — were exerted against him.

I think that’s probably what they had in mind.

Hugo L. Black:

Well, did they cite any of — of the cases on which they’ve relied that those witnesses of persons had subjected to long, continuous, consistent questioning although there was no coercion of any — no physical action of any kind.

Are those the cases they’ve allowed them?

Irving Anolik:

Well, the opinion of course they — they cite Mallory against United States.

Hugo L. Black:

That was not one of those (Inaudible)

Irving Anolik:

No, that’s correct.

Hugo L. Black:

That’s related to this unlawful detention —

Irving Anolik:

That’s correct.

Hugo L. Black:

— only.

Irving Anolik:

That’s correct.

The — the cases that they relied upon were Lisenba against California, Stroble against California, Stein against New York, and cases of that sort.

I submit that a perusal of the record, Justice Black, will indicate that there was no psychological coercion even in the sense that this Court has used that term.

Hugo L. Black:

I don’t know they used the word psychological in connection with the cases by — and were subjected to long, continued questioning over a long period of hours out of which emerged the confession?

Irving Anolik:

Well, I’m thinking of situations —

Hugo L. Black:

That — that one way it could be stated but it’s not a little difficulty (Inaudible) psychological?

Irving Anolik:

Well, I don’t recall that this Court has used the term psychological.

I was merely trying to answer your question, Justice Black, as best as I could —

Hugo L. Black:

Yes.

Irving Anolik:

— in view of the circumstances of the case.

May I continue?

Felix Frankfurter:

Well, it — I don’t quite understand what that word means.

In fact they are not now seriously challenged (Inaudible) opinion because Judge Desmond says that the same defendant, the same criminal case held under (Inaudible) same court can be subjected to secret midnight questioning out of the reach of any lawyer until he confesses.

Now, to be — believe the (Inaudible) is held for questioning until he confesses.

Why shouldn’t in the ordinary mode of speaking called that a voluntary confession —

Irving Anolik:

Well —

Felix Frankfurter:

(Inaudible) held subsequent questioning until he confesses that means that not his will but somebody else’s will was operating.

Irving Anolik:

Justice Frankfurter, I respectfully submit that.

Irving Anolik:

That is not, that Justice — Judge Desmond’s words do not reflect accurately what actually occurred.

Felix Frankfurter:

I’m merely suggesting that the vision of opinion was in the Court.

Irving Anolik:

I — I recognize that.

Felix Frankfurter:

For one cannot say it’s completed.

Irving Anolik:

Well, I was merely quoting the language that —

Felix Frankfurter:

Can —

Irving Anolik:

— Justice (Inaudible)

Felix Frankfurter:

Well, you — you were quite within the — the accurate quotation what Judge Fuld said.

My (Inaudible) is not with you — over you, but over Judge (Inaudible)

Irving Anolik:

Yes, sir.

Well, Justice Frankfurter, Justices of the Court, I’d like to point out that at the — at the — at a period before petitioner had surrendered, that is about two or three days after the murder had been perpetrated.

He telephoned one, Anthony Napolitano who was one of the owners of the Roosevelt bar and tavern outside of which this fight between the deceased and him had occurred and he indicated to him that I’m going to give himself up.

This was on the telephone call.

I’m going to get a lawyer.

Then on February 3rd after the indictment which took place February 1st incidentally, but on February 3rd which was a day before he surrendered, he telephoned a childhood friend, a rookie patrolman named, Patrolman Bruno to which my adversary has a verdict and said to him on the telephone, in effect, that I shot at the deceased.

He admitted the shooting of Perlemo and he did not give as much detail but there was no question from the conversation that there was a completed mission that he had shot Perlemo and as a matter of fact in the Court of Appeals of the State of New York at page 60 of the brief there, the — the defendant in that Court, petitioner here admits that there’s no question that he shot Perlemo and that —

Felix Frankfurter:

Mr. Anolik.

Irving Anolik:

Yes, justice?

Felix Frankfurter:

The people who aren’t content to rest on that confession to his childhood friend.

Irving Anolik:

That’s true.

Felix Frankfurter:

He thought it was necessary to introduce this other confession (Voice Overlap).

That confession in the context of the circumstances that gave rise to it.

Irving Anolik:

I recognize that, Justice Frankfurter.

And if I may, when he was surrendered at about 07:15 or 7:30 p.m. on the 4th, there was no judicial proceeding as such upon the indictment at that point.

This questioning was not a judicial proceeding, it was the questioning that might take place when any accused, because we must recognize that an indictment is nothing more than an accusation.

William J. Brennan, Jr.:

What about — what about the bench warrant?

Irving Anolik:

The bench warrant —

William J. Brennan, Jr.:

This — what was done certainly was not an obedience to the — a command to that word as I understood your adversary reading that law.

Irving Anolik:

A perusal of that warrant, Justice Brennan, indicates that it said that if the court had adjourned for the term, it was to be — the petitioner was to be delivered to the warden of city prison.

William J. Brennan, Jr.:

Well, had that adjourned?

Irving Anolik:

No, it had merely recessed for the day.

That court was still in session.

It had not adjourned for the term and consequently it was well defended.

The provisions of that bench warrant not to deliver him to a warden of the city prison.

Now, this defendant was not questioned insistently as a —

William J. Brennan, Jr.:

What is there in the bench warrant?

I don’t have it before me.

What is there in the bench warrant that you are suggesting that that authorizes this kind of interrogation?

Irving Anolik:

No, It didn’t necessarily authorize or forbid this sort of interrogation.

William J. Brennan, Jr.:

Well, what — what was the — what was its command that the court — the in term?

Irving Anolik:

Well, a synopsis of the bench warrant appears on page 2 of the respondent’s brief, New York Code of Crim. Proc. Section 301.

You are therefore commanded forthwith to arrest the above name and bring him before that court to answer the indictment or if the court have adjourned for the term that —

William J. Brennan, Jr.:

Well, if that fail, well, it hasn’t adjourned for the terms — so far.

Irving Anolik:

It did not —

William J. Brennan, Jr.:

(Voice Overlap) to that court to answer the indictment?

That’s right.

Irving Anolik:

It had not adjourned for the term.

William J. Brennan, Jr.:

Well, now, what — does that rather imply or does it — certainly no authority to question in there?

Irving Anolik:

I wouldn’t say so, Justice Brennan.

This is a situation where this man is an accused in the criminal action, this defendant —

William J. Brennan, Jr.:

You mean this could be read and bring in before the Court to answer the indictment unless you want to question and take —

Irving Anolik:

No Justice Brennan, I think it means to bring him at the earliest feasible opportunity which was done here.

There was no delay in arraignment in this case, Justice Brennan.

He was arraigned at the earliest opportunity.

William J. Brennan, Jr.:

I don’t think so.

You got the confession in the middle of the night, or was it?

Irving Anolik:

That — that’s not unusual though, Justice Brennan, for a — a confession to be obtained in the middle of the night.

The confession itself was voluntary.

Felix Frankfurter:

Even though he was (Inaudible) already a defendant in any — the technical sense.

Irving Anolik:

In a technical sense he wasn’t accused, he had been formally indicted, that is true, Justice Frankfurter.

William J. Brennan, Jr.:

A defendant, not an accused.

(Inaudible)

A defendant is an accused, an indictment is an accusation on the laws of the State of New York, as such he wasn’t accused, he was a defendant, that’s correct.

Felix Frankfurter:

I don’t — I haven’t read the (Inaudible) case but what Judge Desmond says about it, there was a distinction of it (Inaudible) by the Court of Appeals between a person who became a material witness who at the time he was questioned was not yet an accused or a defendant, was merely a witness.

And in this case, where the choice was made, that this wasn’t an inquiry by the police to ascertain the guilt of the party, the District Attorney had already committed himself in making the accusation — I mean made the accusations against this person.

Although you’re quite right in saying this wasn’t the traditional inquiry.

There’s another way of saying the District Attorney is in the court but he was already in the status of that of a defendant (Inaudible)

Irving Anolik:

Well, Justice —

Felix Frankfurter:

Isn’t that right?

Irving Anolik:

That’s correct, Justice Frankfurter, for example if this man had not been surrendered or had been apprehended, let’s say in other State even if he was under indictment, will this Court mean that that fact would preclude the police officer — officers would be dispatch to bring him back safe in California.

They could not talk to him even if they —

Felix Frankfurter:

All depends what you mean by talking to him?

Irving Anolik:

Interrogate him.

Felix Frankfurter:

Or then what do you mean by interrogating?

What’s the circumstances were under which there was initiated a confession reserved to convict the man?

Irving Anolik:

I agree — I would agree with you Justice Frankfurter that if the confession —

Felix Frankfurter:

(Inaudible) in the outset, you take concern on the circumstances under which as in this case, one already under indictment, it detained by the prosecutor.

You have series of questions extending over a given time with the circumstances of this case, is that so clearly within or without the decision of this Court if a state can be, admissions, confessions by the defendant not voluntarily use.

Irving Anolik:

Well, this is before the arraignment upon the indictment Justice Frankfurter.

Felix Frankfurter:

It was indicted to the — that is — none of things are (Inaudible) question, what was the — what was the process by which this confession was obtained?

Irving Anolik:

But I don’t —

Felix Frankfurter:

That Judge Desmond is right, that Judge Desmond is right that the — that the record sustained his conclusion that he was detained and questioned until he confess and I’d like you to repeat that it was not gismo but another person will determine to (Inaudible) of inquiry.

Irving Anolik:

But Justice Frankfurter I don’t think the record will support that.

The record here indicates that he was —

Felix Frankfurter:

That’s a different story.

Irving Anolik:

Yes.

Well, the record here indicates he was brought up to the District Attorney’s Office.

There was a casual questioning at about 11 o’clock sandwich was — were brought in, he was well-fed, in fact he ate more than anyone else.

There was —

Felix Frankfurter:

That is not inconsistent with —

Irving Anolik:

No I understand that Mr. Justice Frankfurter.

He was then — after a hiatus of some 45 minutes or — or an hour brought to the 46th Precinct in the Bronx and there this childhood friend of him, of his to whom he had already given an admission as to the shooting was brought in and spoke to him.

And the statement given to the District Attorney following that conversation was substantially consistent with the statement he had given to Patrolman Bruno.

Spano did not confess anything to the police by virtue of their questioning, he adhered to the advice of his attorney.

The record I believe substantiates the fact of Spano did not take the stance so there’s no contest in this record but that it was voluntary in that sense.

Felix Frankfurter:

But we’re not — we’re not here called upon to consider whether what he told his childhood friend was a voluntary explosion of expression (Inaudible)

I don’t see how that’s material even though they were (Inaudible) is the formal, repeated taking down stenographically authenticated testimony or statements that he made if that repetition if you will, for purposes of (Inaudible) more assured conviction of him.

If that second statement was under conditions that debar the conclusion as a matter of law this is voluntary, it doesn’t help me to have a prior statement that was voluntary.

Irving Anolik:

I agree what you there, Justice Frankfurter.

If — if I understand you correctly that the circumstances under which the confession are taken — is taken — is controlling then I would concede that that would be a proper criteria but that is not what the petitioner urges here, the petitioner here urges —

Felix Frankfurter:

That is frequent to countless arguments.

Irving Anolik:

Oh I understand that I’m merely trying to —

Felix Frankfurter:

(Inaudible) what is controlling.

Irving Anolik:

I understand that Justice Frankfurter.

Felix Frankfurter:

In fact is if you’re not controlled by it.

Irving Anolik:

I understand that but his position here is — and the people feel that it is an untenable position in view of this Court’s prior decisions in this Cicenia against Lagay and Crooker against California cases.

The petitioner urges —

There’s no indictment neither those —

Irving Anolik:

That — that is correct Justice Harlan but the very fact of the indictment with nothing more is what petitioner here relies upon as being completely controlling.

He relies in the bench warrant too, does he?

Irving Anolik:

The bench warrant is — he relies upon both.

Now, the record indicates that he did not know an indictment was even outstanding.

He was well-aware that he was sought by the police before the indictment was even handed down against them.

Under New York law it is a misdemeanor to disclose the fact of indictment.

So it is quite probable that he knew nothing of the indictment of such, he merely knew he was wanted and that’s the reason he surrendered.

I think a perusal of record will indicate that.

Hugo L. Black:

What difference would that make?

Irving Anolik:

I don’t think it would make too much difference at all Justice Black.

I merely pointed it out and answer to Justice Brennan’s question.

Hugo L. Black:

He was whatever he knew or thought.

Hugo L. Black:

He was a defendant.

Irving Anolik:

He was a defendant.

Hugo L. Black:

And he was due to be put in jail.

Irving Anolik:

He was due to be put in jail after being arraigned.

Hugo L. Black:

(Voice Overlap) to the District Attorney’s Office.

Irving Anolik:

That’s correct.

He was surrendered in front of the Distinct Attorney’s Office.

Hugo L. Black:

Their — was — was he surrendered for questioning?

Irving Anolik:

I would submit that —

Hugo L. Black:

That the bench warrant, it didn’t say that.

Irving Anolik:

No it didn’t but by the same token it didn’t forbid it.

Hugo L. Black:

Well, ordinarily yes.

Irving Anolik:

For example, Justice Black —

Hugo L. Black:

(Inaudible) taken to jail not to the District Attorney to get evidence.

Irving Anolik:

Justice Black, in Avery against Alabama, the defendant there was apprehended in Pittsburgh.

He had been indicted in 1934, he was apprehended in 1938.

There had been eyewitnesses to the shooting.

The record at folio 18 of Avery against Alabama indicates a statement or admissions were taken from him.

He was under indictment and this Court held provided, he had counsel from arraignment until final judgment is right for the counsel were utterly absurd.

Hugo L. Black:

Was the question raise or brought in —

Irving Anolik:

No, the question —

Hugo L. Black:

(Voice Overlap) the other questions raised in that case?

Irving Anolik:

The question was not specifically raised, but —

Hugo L. Black:

It didn’t even come under it.

Irving Anolik:

That’s correct, but I — I merely point that out that it is not at all unusual for a man who is under indictment, he’s merely an accused in a criminal proceeding to say that the time for investigation ceases with an indictment I think is —

Hugo L. Black:

(Inaudible) I — I don’t know but I’ve never been (Inaudible) where I came from.

Is it customary that people on the indictment to take them first to the Office of the District Attorney to let him question him —

Irving Anolik:

Well —

Hugo L. Black:

— in New York?

Irving Anolik:

Well, Justice Black, it is not too customary to surrender a man in front of the District Attorney’s Office either —

Hugo L. Black:

Well —

Irving Anolik:

— which is what happened here.

Hugo L. Black:

— even if he surrendered in front of the District Attorney’s Office.

I’m just wandering, is that the custom?

Irving Anolik:

I would say that where a man is suspected of being a fugitive as Spano was, was he —

Hugo L. Black:

Well, he’s — he’s not a suspect, he’s indicted.

Irving Anolik:

That’s — well, he’s a suspect.

Hugo L. Black:

But he’s indicted —

Irving Anolik:

That’s correct Justice Black.

Hugo L. Black:

He’s the defendant.

Irving Anolik:

That’s correct.

Hugo L. Black:

He surrendered himself to be arrested.

Irving Anolik:

Correct.

Hugo L. Black:

Is it not — is it customary in New York to take the people who are indicted that way and to take them to jail, take them to the District Attorney’s Office for questioning?

Irving Anolik:

I would — I — I couldn’t —

Hugo L. Black:

(Voice Overlap) I don’t know.

Irving Anolik:

Justice Black I couldn’t answer that category because I’m not that familiar with what is accordant to other cases.

I do know that in situations where indictments have been found, people have been questioned before arraignment.

Hugo L. Black:

Well, has it been taken — is it the custom to take them to the District —

Irving Anolik:

No, they usually would be questioned in the squad room.

This was merely for the sake of convenience he was surrendered in front of the District Attorney’s Office which happens to be in the Bronx Country Building and was taken up there.

He was rented two New York City Police Officers, the District Attorney was present.

This was a prearranged surrender.

It was at 07:10 p.m.

He was taken up there.

He was questioned casually.

He was federal, well fed, then about a quarter to 12, 12 o’clock he was taken to the 46th squad room which had the 46th squad having jurisdiction of the area wherein the crime was committed and he was questioned there again —

Hugo L. Black:

Who — who questioned him there?

Irving Anolik:

Detectives that questioned him there.

The District Attorney was also present.

Irving Anolik:

There’s no indication of an incessant questioning.

Then Patrolman Bruno was called in.Patrolman Bruno spoke to Spano.

Spano then gave what the record will reveal to be a clearly voluntary confession, substantially consistent to that to which he had already given prior to the surrender to Patrolman Bruno.

Now —

Felix Frankfurter:

Are you —

Hugo L. Black:

I just don’t see you leap by the hurdle do you not when you say that the man has been under question for all these hours, at the District Attorney’s Office, begging for a lawyer.

So you leap by the hurdle do you not and say that has to be voluntary.

Irving Anolik:

Justice Black if I may, the record indicates that to only two people according to the record that he’d say, “I want my lawyer,” to Detective Ciccone in the 46th Squad and to Patrolman Bruno, to everyone else according to their own testimony, this is uncontradicted in the record.

He said, “See my lawyer.”

He did not say “I —

Hugo L. Black:

He made that request to a lawyer (Inaudible)

The lawyer was there when he said “I need my lawyer,” wasn’t he?

Irving Anolik:

No, he was not Justice Black.

Hugo L. Black:

The lawyer was never there, he didn’t know —

Irving Anolik:

The lawyer surrendered him to the District Attorney.

Hugo L. Black:

I’m talking about the District Attorney’s lawyer.

Irving Anolik:

Oh, no — the District Attorney did not appear in the record that he said to the District Attorney “I want my lawyer”.

Hugo L. Black:

Well, did he say it while the District Attorney was there?

Irving Anolik:

That does not appear in the record.

Only Detective Ciccone and Patrolman Bruno indicates that he said to them he wanted his lawyer.

There is no evidence in this record, to the best of my recollection I think my recollection is accurate.

That he said to the District Attorney, “I want my Lawyer.”

There’s no evidence of that —

Hugo L. Black:

But isn’t — I thought your emissary told us that the District Attorney or Assistant that (Inaudible) throughout the interrogation while others came in and out of the room.

Irving Anolik:

That does not appear in the record.

Felix Frankfurter:

Does — does it appear from the record?

Mr. Siegal said that the — the interrogation whatever you should make it lasted between (Inaudible) to about (Inaudible)

Irving Anolik:

No, there was —

Felix Frankfurter:

That you challenge that?

Irving Anolik:

Yes, there was a hiatus there of about 45 minutes to an hour because of the fact that they were fed and sandwiches —

Felix Frankfurter:

(Inaudible)

Irving Anolik:

No that was about 11 o’clock p.m. Justice Frankfurter.

Felix Frankfurter:

Does the record give the time?

Irving Anolik:

Definitely, there are testimonies for that and —

Felix Frankfurter:

Are you saying that if we want to reach the record for (Inaudible) of the — what took place that justified with the trial that an interrogation in the District Attorney’s Office one at a time that it isn’t from 07:30 to 12:30 —

Irving Anolik:

That is correct.

Felix Frankfurter:

— from the time that it wasn’t persistent.

One would find that on the whole if you said a little while ago that it was casual.

Irving Anolik:

I think that —

Felix Frankfurter:

And that the preoccupation was in a total to you to getting him to just make a confession.

Irving Anolik:

I would not say that.

I would — the last statement I could not agree with.

I think that they were certainly interested in getting a statement.

What —

Felix Frankfurter:

Did he just — what — what would it be?

Did they discuss that (Inaudible)

Irving Anolik:

Oh no, no.

Felix Frankfurter:

What did they talk about?

Irving Anolik:

For example they asked him about a red mark on his head.

He indicated to them that because of his baldness he suffered from a — a disease.

Later at the trial it indicated from his own doctor that he just — that he suffered from —

Felix Frankfurter:

According to your reading of the record, how many hours is that transaction in the District Attorney’s Office to take place?

Irving Anolik:

I would say from about 7:30 to 11 and perhaps —

Felix Frankfurter:

That can’t be four hours, three and a half hours.

Irving Anolik:

That’s correct.

Felix Frankfurter:

All right (Inaudible)

Irving Anolik:

And then — then there was a meal and thereafter — it is difficult to ascertain whether he was requesting or whether he was just transported to the 46th Squad.

Felix Frankfurter:

But the testimony at the trial in regard to what took place during those hours between 7:30 until 3 whatever the intermission (Inaudible) that the preoccupation of the questioning related to the transaction between other than this unfortunate murder.

Irving Anolik:

I would say that certainly it would be improper of me to say that they were not anxious to get a confession in the sense that they wanted to verify the statement that they had already received from Patrolman Bruno.

Felix Frankfurter:

But you’re saying if we had nothing but that that this would not fall in within — that this would not satisfy, or this would not be condemnable under the Fourteenth Amendment in the light of our case here, correct?

Irving Anolik:

That is correct, Justice Frankfurter, that’s my position.

Felix Frankfurter:

That is your position?

Irving Anolik:

Yes, Justice Frankfurter.

Felix Frankfurter:

So, that reversed on what the record may —

Irving Anolik:

That — that is absolutely —

Felix Frankfurter:

(Inaudible)

Irving Anolik:

Absolutely correct, Justice Frankfurter.

Felix Frankfurter:

Now, what do you say so that then from your point of view, there are really two questions in this case.

One, judged by the criteria of our decisions, for this — on this side or on the other side for inadmissible confession under the Due Process Clause.

Irving Anolik:

Correct.

Felix Frankfurter:

Number two, if this was a capital case then he is entitled to have a lawyer.

That means at some stage and for some purpose number two, order the trial with that protection of the Due Process Clause the protection of a lawyer.

Irving Anolik:

That is correct.

Now, I would say that if I can just hope this one particular point that I think this case raises that was not raised in the Crooker or the Cicenia case — cases that here we have an indictment.

Does the fact of an indictment ipso facto alter the situation so that federal rights are violated by questioning?

Now, we have seen cases, Lisenba against California where a man is taken out of jail and questioned by an invalid court order and yet the — the conviction there was upheld.

We have seen cases about that.

Now, does the fact of an indictment, in fact, I can’t answer this question.

Thus to the best of my knowledge, it’s one of first impression on this Court.

Does an indictment ipso facto endow a man with rights superior to those to which any other accused would be entitled?

Felix Frankfurter:

But Judge Desmond’s opinion indicates one consideration on restraints namely the difference between this case and the (Inaudible) case in your court in the Court of Appeals, namely, where a man is detained as a witness, he does not know and has no reason to know or believe that his state is that of an accused with all the difference that that make in the witness of an accused.

Irving Anolik:

Well —

Felix Frankfurter:

So, that that may be a fact which in the totality of the situation makes a difference.

Irving Anolik:

I —

Felix Frankfurter:

He asked that question merely because if a man goes in and talks to him about, he happened to be a very literate or literate person, we discuss (Inaudible) problem and that’s the reason of indictment, wouldn’t not make or that make — that make an involuntary confession?

Irving Anolik:

The Perez (ph) case, Justice Frankfurter, the — the material witness there was in the custody of the warden of the city prison or with the civil —

Felix Frankfurter:

He was a witness —

Irving Anolik:

— prison rather.

Felix Frankfurter:

He was a witness, clearly.

Irving Anolik:

That’s is correct now —

Felix Frankfurter:

He was not an accused, he did not — he did not stand in the position of a man over whom the (Inaudible) sought of a conviction for murder —

Irving Anolik:

That is correct.

Felix Frankfurter:

— was upon him.

Irving Anolik:

That is correct.

Now, of course, in the Perez (ph) case, we do not have a situation where the man was legally and properly in the custody of the police authorities.

Felix Frankfurter:

But when you say that, when — when I ask you, when a lawyer surrenders a client, charged with murder I suppose that that means nothing more than murder is not a bailable offense I assume in New York.

Is it?

Irving Anolik:

No, it’s not.

Felix Frankfurter:

Very well, he surrendered him because his — his client was not — he can’t get bail and there he simply says he has surrendered his body completely should be put in jail.

But what consequences follow the surrender?

What indications are there beyond that?

Irving Anolik:

Well —

Felix Frankfurter:

But is he not bailable and he doesn’t want to escape, he doesn’t want to be a fugitive and he assessed it that way, surrendered him.

That’s all it means —

Irving Anolik:

That’s correct.

Felix Frankfurter:

— assumedly.

May I involve that?

Irving Anolik:

Well, of course —

Felix Frankfurter:

It doesn’t mean go ahead and pressure him all you please doesn’t it?

Irving Anolik:

No it doesn’t necessarily.

Now, he had to be booked.

He had to be finger printed and photographed.

That is true whether the man is under indictment or not.

He must be arrested on the indictment on the New York Law.

Now, what if this had occurred during that course?

He was detained here for the purpose of booking primarily.

Now it’s true in the District Attorney’s Office since he was surrendered that was convenient to take him there.

I might add this, Justice Frankfurter, that there is a detective squad of the New York City Police Department that has headquarters in the District Attorney’s Office.

It’s true the questioning here happened to take place in the Office of Assistant District Attorney, Goldsmith.

But two New York City detectives to whom he was surrendered were present.

Irving Anolik:

They were then brought to the 46th Squad.

Now the — a petitioner here urges that if there had been no indictment and I believe I translated his intentions and his sentiments correctly.

He would have no quarrel or whatsoever with this situation.

In other words, if 50 people saw Spano shoot Palermo he obviously would be the prime suspect.

Yet, if he had not been indicted petitioner would say that perfectly all right to question them all you want, but if you indict him then you can’t do anything.

Would it be morally correct for the District Attorney here Justice Frankfurter to have withheld an indictment merely to get a statement and then get the indictment when he had all the evidence he needed for it?

Felix Frankfurter:

That I meant for a clause by that kind of analogy for our petitioner.

Irving Anolik:

I — I’m merely urging it, Justice Frankfurter.

I hope that you don’t say —

William J. Brennan, Jr.:

Do we have the record — trial record in this Court?

Irving Anolik:

Oh of course we do.

William J. Brennan, Jr.:

The stenographic form?

Irving Anolik:

No, in — in printed form.

The people supplied me —

William J. Brennan, Jr.:

Oh, I see.

Irving Anolik:

— with some copies and the petitioner.

William J. Brennan, Jr.:

That is in the Attorney’s Office?

Irving Anolik:

Yes, I believe there are 10 copies.

William J. Brennan, Jr.:

Enough for all of us?

Irving Anolik:

I think 10 copies were filed with the Court, if the Court needs any additional we have —

William J. Brennan, Jr.:

There is —

Irving Anolik:

But I believe 10 copies were filed.

William J. Brennan, Jr.:

I take it from what you say there is no dispute between you that at the time this man was surrendered, the District Attorney’s Office knew that he had a lawyer.

Irving Anolik:

No question about it.

William J. Brennan, Jr.:

No question about it that and there is no question that they knew he’s been indicted.

Irving Anolik:

No doubt about that, too.

William J. Brennan, Jr.:

And that he was being surrendered pursuant to a bench warrant issued on the indictment.

There’s no dispute that.

Irving Anolik:

Well, there was — there’d be some question as to whether he knew there was a bench warrant outstanding.

He may have known, he may not have known.

William J. Brennan, Jr.:

Well, he knew he was being surrendered by his lawyer pursuant to an indictment the first time (Voice Overlap)

Irving Anolik:

No, he did not.

There’s no evidence —

William J. Brennan, Jr.:

(Voice Overlap)

Irving Anolik:

— of that whatsoever.

In fact in New York it is a misdemeanor to disclose the fact of indictment prior to a man’s —

William J. Brennan, Jr.:

What did the District Attorney think he was being surrendered for?

Irving Anolik:

Well, Spano himself contact this — now that this — I — I must go — the record to answer that if — if —

William J. Brennan, Jr.:

But doesn’t the record show it?

Irving Anolik:

The record does not specifically show whether he was surrendered pursuant to a bench warrant or not.

There is no testimony on behalf of the — the defendant at all on that —

William J. Brennan, Jr.:

But certainly —

Irving Anolik:

— point.

William J. Brennan, Jr.:

— the District Attorney knew that there was an outstanding —

Irving Anolik:

That is correct, that thought —

William J. Brennan, Jr.:

That — that’s conceded isn’t it?

Irving Anolik:

That’s conceded.

William J. Brennan, Jr.:

That there was an outstanding indictment —

Irving Anolik:

That is —

William J. Brennan, Jr.:

— and the bench warrant was issued on that effect.

Irving Anolik:

Completely conceded.

William J. Brennan, Jr.:

That’s what I was asking you.

Irving Anolik:

No, I thought you meant that the defendant —

William J. Brennan, Jr.:

No, I was asking whether District Attorney —

Irving Anolik:

Oh no question about that, I’m sorry if I gave you the — I didn’t mean to mislead you at all.

William J. Brennan, Jr.:

I may have just spoken to myself.

Irving Anolik:

Right.

Oh no — no doubt about that at all, Justice Brennan.

Hugo L. Black:

When was the confession and this confession to prove?

Irving Anolik:

The day before his surrender of February 3rd at about 9:20 p.m.

Irving Anolik:

He telephoned Bruno whom he had known for a number of years.

Told him what he had done.

Hugo L. Black:

And who is Bruno?

Irving Anolik:

Bruno is a rookie patrolman, a childhood friend of Spano’s.

At that time he was a rookie patrolman in New York City Police Force.

Bruno testified that he admitted the killing “What should I do?” he asked him.

Bruno suggested that he give himself up.

He then indicated to Bruno that he was going to get himself a lawyer and he was going to surrender.

Bruno, pursuant to police regulations I would assume testified.

He immediately called his superiors in the 46th Squad and advised them of the fact of this call and apparently they gave him some further instructions.

That does not appear exactly what the further instructions were.

Felix Frankfurter:

Mr. — Mr. Anolik, in your brief —

Irving Anolik:

Yes.

Felix Frankfurter:

— we have just scanned isn’t it that the uncontradicted evidence clearly revealed that petitioner’s confession was completely voluntary.

That is your position —

Irving Anolik:

That would be my position.

Felix Frankfurter:

— in here.

But you don’t — you don’t — as it was authenticate that.

You simply almost take it for granted and you rely talking on what Justice Brennan said.

But clearly it seems to me that, that’s a vital part of the case — that’s on page —

Irving Anolik:

Yes, I’m — I’m familiar with that, sir.

Felix Frankfurter:

If — if this — if this confession, lawyer or no lawyer, murder or no murder was voluntary, even legal, constitutional the Fourteenth Amendment said, is that qualified?

That that is the only other problem is the denial of access to his lawyer (Inaudible) but you sort of take that for granted?

Irving Anolik:

Well, I don’t think the petitioner even seriously contradicts that.

Potter Stewart:

That issue was submitted to the jury, was it not?

Irving Anolik:

It was fully submitted and as a matter of fact —

Potter Stewart:

The petitioner doesn’t question the instructions under which he was in submitted to the jury, does it?

Irving Anolik:

Not the instructions but he —

Potter Stewart:

And that issue was — were resolved by the jury wasn’t it?

Irving Anolik:

That’s correct.

Felix Frankfurter:

But that is not binding on us.

Irving Anolik:

I —

Felix Frankfurter:

As that document points out.

Irving Anolik:

Justice Frank —

Felix Frankfurter:

It had case after case in which the court and jury left and if the court left an issue of voluntariness to the jury and the jury resolved it against people, State in favor the defendant and this Court has said as a matter of law.

Irving Anolik:

I understand.

Felix Frankfurter:

That’s not an issue that determinable by a jury.

Irving Anolik:

I understand it Justice.

Felix Frankfurter:

And so that’s the question in this case.

Irving Anolik:

I understand that.

Felix Frankfurter:

It may be right on the record but it turns on what the testimony was.

Irving Anolik:

Now —

Felix Frankfurter:

Not merely and — and as you say he didn’t the stand.

Cross-examination also matters —

Irving Anolik:

I understand that.

Felix Frankfurter:

— what the court has brought out.

Irving Anolik:

Now —

Felix Frankfurter:

The ones really would to have read, I don’t know how many pages of testimony to say whether it’s a matter of law.

This was a punishable issue and the jury could so find, if it could so find and it did so find.

Irving Anolik:

That’s correct.

Felix Frankfurter:

But the fact that the jury so find — found as needed it could have sought for.

Irving Anolik:

I — I recognize that, Your Honor, I know that this Court certainly have the duty and the right to make an independent review of the record.

May I point out Justice Frankfurter that from folios 1833 to 2022 of the record.

Felix Frankfurter:

Let me put that down.

Irving Anolik:

1833 to 2022.

Felix Frankfurter:

1833 to 2022?

Irving Anolik:

Of the record, the folios.

There’s an elaborate voir dire conducted by Mr. Siegal here on behalf of the — of the petitioner that’s to whether or not the confession should go into evidence and it was not until that or the confession even went into evidence and then there was instructions —

Felix Frankfurter:

Who — who were the people who were summoned under voir dire?

The policemen or the District Attorney?

Irving Anolik:

I think it was Detective Farrell who was summoned in the voir dire.

Felix Frankfurter:

How about the Assistant District Attorney?

Irving Anolik:

No, he was not called for the stand.

He was available there obviously but he was not called for the stand.

Felix Frankfurter:

He wasn’t —

Irving Anolik:

He — in fact he tried —

Felix Frankfurter:

(Voice Overlap) people to — to ascertain the circumstances under which this questioning took place.

Irving Anolik:

No, he was not called by the people.

In the final analysis, Mr. Chief Justice and Justices of the Court, I think that the focal point of this issue is whether an indictment making a man a defendant it is true but being no more than an accusation of guilt means (1) that investigation — further investigation is precluded and the people contend, it does not mean that because under New York statutory law, less proof is necessary for an indictment then is necessary for a conviction.

(2) Does the fact of an indictment, ipso facto preclude questioning of an accused?

If the answer —

Hugo L. Black:

I don’t — I don’t see how even if your adversary has (Inaudible) I didn’t so understand.

Certainly, Justice Frankfurter said he couldn’t buy or does change his analysis.

Why do you say that — settles it all, just makes all the difference in the world if he’s indicted?

Irving Anolik:

Justice Black —

Hugo L. Black:

(Inaudible) if there was none but can — might — might possibly (Inaudible) if there isn’t.

Irving Anolik:

I didn’t come to number three yet, Justice Black.

Number three would be that if the record itself discloses that not withstanding an indictment and not withstanding the other matters that the confession itself was taken under circumstances, the totality of circumstances that would have rendered it involuntary not withstanding the finding of New York Court, then, of course this Court would — would have a duty to reverse, too.

Felix Frankfurter:

I think the nub — at least for me, the nub of the problem is that one (Inaudible) to Judge Desmond being independent in the case — criminal case held under the process of the same court can — it is now decided being subjected to secret midnight questioning out of reach of any lawyer until he confessed it.

Now, if that is the — if the record sustained that characterization by Judge Desmond it is one thing because this judgment is another thing.

Irving Anolik:

Well, I’ll point out, Justice Frankfurter, that the defendant here was arraigned promptly.

Justice Desmond relies upon or Judge Desmond relies upon cases such as People against McMann and People against 01:00:33 which you will see in this opinion.

William J. Brennan, Jr.:

Im not — every time you — you said that before by which you mean only that he was arraigned at 10 o’clock the following morning.

Irving Anolik:

That’s correct, Justice Brennan.

William J. Brennan, Jr.:

Are you suggesting that to say had not obtained the confession at 3:30 that morning he would have been arraigned at 10 o’clock?

Irving Anolik:

Well, of course, I can’t (Voice Overlap) —

William J. Brennan, Jr.:

And how you could prove it either one — what — what’s the significance in this case that he wasn’t in fact arraigned at 10:00 since they already had the confession at the time of arraignment?

Irving Anolik:

By the same token Justice Brennan, they had — they had a statement from him before he even surrendered.

Felix Frankfurter:

But you didn’t rely on that — I’m (Voice Overlap)

Irving Anolik:

No.

Irving Anolik:

We did not —

Felix Frankfurter:

(Voice Overlap)

Irving Anolik:

No.

that’s correct Justice Frankfurter.

But we didn’t rely on that exclusively.

Felix Frankfurter:

Exclusively.

It doesn’t matter exclusively if — if — and this had been — it wouldn’t be the first time that a District Attorney try to over proved his case.

That’s not unfamiliar to anybody who’s been in District Attorney’s Office or outside of it.

If in fact, although you have all the evidence that was necessary for conviction, who seal of all enterprise are one it was sort to get them all formal and more detailed confession under circumstances characterized by what I have read from Judge Desmond then that confession is not admissible under our decision.

Irving Anolik:

Well —

Felix Frankfurter:

And those terms on to exact facts of circumstances of this case.

Irving Anolik:

Or you can say, Justice Frankfurter that I think a perusal of the record will indicate that Justice Desmond’s — Judge Desmond’s statement is not wise.

I would add this fact that in the case at bar, it is fairly clear, I would say clear beyond doubt that the questioning of Spano was to cover a hiatus.

There were eyewitnesses to a — beating, how severe that beating was, is a matter of dispute.

But there are eyewitnesses to that beating.

Then there was an eyewitness to the actual shooting.

That hiatus between the beating and the shooting was unaccounted for and that is —

Felix Frankfurter:

You mean the statement who is this childhood friend?

Irving Anolik:

That’s correct.

That is —

Felix Frankfurter:

The District Attorney didn’t need tell further evidence to fill in (Inaudible)

Irving Anolik:

No —

Felix Frankfurter:

Is that it?

Irving Anolik:

No, Justice Frankfurter.

Not — I’m saying not.

I’m merely saying that they were probing and attempting to verify certain practice that’d already been brought to their attention.

Felix Frankfurter:

Yes.

But —

Irving Anolik:

They could have found the reverse.

Now, I — I submit that —

Felix Frankfurter:

I must have (Inaudible) the District Attorney must have thought it was relevant to get those items cleared out.

Irving Anolik:

That’s correct.

Felix Frankfurter:

And partly, I suppose it might have been a self-defense — defense.

Irving Anolik:

Could have been.

Felix Frankfurter:

Could have been that?

So, if there were items —

Irving Anolik:

That’s correct.

Felix Frankfurter:

— whether it’s cumulatively or independently necessary that the District Attorney thought it was necessary to make a case.

Irving Anolik:

But there were —

Felix Frankfurter:

(Inaudible)

Irving Anolik:

Yes.

Except that they were not sine qua non.

Felix Frankfurter:

Well, I don’t know but — lawyers have to make judgment —

Irving Anolik:

Sure.

Felix Frankfurter:

— as to what is necessary or desirable for the success of the particular side that needs evidence.

Irving Anolik:

Of course, a District Attorney, Justice Frankfurter, is not a magistrate and as such, I — I think, the Court will concede had not duty.

Felix Frankfurter:

At least, it wouldn’t make any difference if — if there haven’t been the District Attorney but merely police officers by (Inaudible)

Irving Anolik:

I see.

I saw your position.

Was this man’s execution stayed by the Court of Appeals?

Irving Anolik:

Oh, yes.

His execution was stayed until the final determination by this Court.

Hugo L. Black:

You’ve said several times that Justice Desmond’s statement was not correct because to the effect that they kept them there to get a — until they get a confession?

Irving Anolik:

I don’t think it’s warranted —

Felix Frankfurter:

What —

Irving Anolik:

What —

Hugo L. Black:

What possible purpose could they have had in keeping him there and questioning him as they did except to get a confession?

Irving Anolik:

I think that they were seeking to get a confession but he is assuming that they would have kept him there indefinitely, which I don’t think is a fair inference from the record.

Hugo L. Black:

Of course, we have no — no basis on which to prophesy exactly how long they would have kept him.

Irving Anolik:

I think that —

Hugo L. Black:

But your — your problem is I think not to decide that show that Justice Desmond was not right in that but try to show that by the second (Inaudible) the way they did, it doesn’t conflict with our previous opinion as to due process.

Irving Anolik:

I’ve been trying to transmit —

Hugo L. Black:

On the evidence but I — I do not yet see where you have established that Justice Desmond’s statement is incorrect at all.

Irving Anolik:

Well, on the evidence, Justice Black, we have no contradictory evidence whatsoever by the defendant because he did not take the stand.

Incidentally —

Hugo L. Black:

I know he did it, it’s a question of uncontradicted evidence.

Irving Anolik:

Right.

The State, that is the respondent here, questioned this defendant from 7:30 to about 11:00.

There were sandwiches brought up.

Hugo L. Black:

But did they go out to get the sandwiches or they just stayed there while they were questioning him?

Irving Anolik:

Someone went out for sandwiches.

Hugo L. Black:

Did he get out or did he stay there for questioning during at (Voice Overlap) —

Irving Anolik:

He — he stayed there, but the record is not at all clear that he was questioned incessantly.

In other words, there is nothing in the record to indicate incessant — insistent —

Hugo L. Black:

Well, there may not be but what other earthly object that anybody would think about that having in therefore during that time except to question him and keep on questioning?

Irving Anolik:

Except that the — the testimony of Detective Lehrer and some other detectives would indicate that the discussions did not only center about that crime.

There would — there were all — other matters discussed.

Hugo L. Black:

What other matter?

Irving Anolik:

They — they discussed his physical appearance and that they talked — I — I can’t remember —

Hugo L. Black:

But what other subjects did they discuss that didn’t have something to do with — some kind of possible relevance under this crime?

Irving Anolik:

Well, off hand, I couldn’t think of any, Justice Black.

Felix Frankfurter:

Can we agree that he was in the control of the police and the prosecutor, uninterrupted.

I’m not now saying what took place but he was in the control of the police and the prosecutors from 7:30 to 3:00 when his confession was taken down.

Irving Anolik:

That — that would be correct — that would be definitely correct.

Potter Stewart:

What does the record show that finally prevailed upon him to confess at 3 o’clock in the morning?

Irving Anolik:

A — a strong —

Potter Stewart:

His name is Bruno?

Irving Anolik:

Yes, a conversation with Bruno.

Potter Stewart:

And that Bruno was instructed to tell him a certain story that clearly submitted in the record (Voice Overlap) —

Irving Anolik:

No.

Irving Anolik:

Bruno indicated that he was told to give him whatever story that might try to convince him to — to make a statement.

In other words, if you can play upon his sympathy do that but he said his job was never threatened.

Felix Frankfurter:

No, but up to that time the District Attorney’s inquiry had elicited the information to fill in what you called a hiatus, correct?

Irving Anolik:

That’s correct.

He had said nothing, he adhered to his attorney’s advice.

Potter Stewart:

So, what does the record —

Irving Anolik:

The record then indicates that after a conversation with Bruno.

He then —

Potter Stewart:

Conversation about what — what was the report (Inaudible)

Irving Anolik:

The purpose of the conversation was the fact that he had embarrassed Bruno by calling him the day before that Bruno might get into difficulty because of the fact that Spano, an accused murderer had called him the day before and that he would — would appreciate it as a matter of friendship to a confess, to give some statement.

And the statement he gave was substantially consistent with the statement that he read, what he’d given to Bruno.

William J. Brennan, Jr.:

Now, Bruno — Bruno I gather in representing that he — Bruno might be in trouble and that this might have consequences for Bruno’s wife and child and so forth.

He was not telling the truth was he?

Irving Anolik:

I would say, that Bruno was — as I say — shall we — putting it on I would say.

William J. Brennan, Jr.:

He was not telling the truth.

Irving Anolik:

I would say not telling the truth in the sense that —

William J. Brennan, Jr.:

In the sense —

Irving Anolik:

What (Voice Overlap) —

William J. Brennan, Jr.:

that he was not telling the truth.

Irving Anolik:

I’m sorry.

He’s not telling the truth.

Earl Warren:

And Bruno was told — and Bruno was told to play on his sympathy?

Irving Anolik:

Bruno was told, I believe that the record would — would indicate that he was told to play on his sympathy or to use any other —

William J. Brennan, Jr.:

To use the lifelong friendship.

Irving Anolik:

That’s what, use his lifelong friendship to — to see if he could elicit a — a confession from him.

Earl Warren:

And you’re going to say that anything — any other thing —

Irving Anolik:

No.

Earl Warren:

— something you — you used those words to say —

Irving Anolik:

Well, if I did then, Chief Justice, I — I didn’t intend to.

In other words, I think the record indicates that Bruno was not told to get a confession or else.He was told to go in there and talk to him.

Irving Anolik:

See if you can get him to –to say something.

It wasn’t the situation where, “Well, do what you can, you better get it or — or otherwise you’re going to be fired or anything of that sort.”

That was not done.

What page is the matter (Inaudible)

How long have been — how long the District Attorney (Inaudible)

Irving Anolik:

About 3:00 p.m. or 3:00 a.m. in the morning I would say that Bruno —

Forced the answer (Voice Overlap) —

Irving Anolik:

That’s right.

Although that the record will indicate Justice Harlan that Bruno was in the District Attorney’s general offices, although not in the same room with Spano earlier in evening.

He was not called in at that point.

Now, (Inaudible), he’s a member of police force but it was not until around 3:00 a.m.

I think in the morning that he was told to speak to Spano and out following that conversation.

Felix Frankfurter:

Mr. Anolik, I now have these three verse of arguments, could you without wasting your time give me a reference to the page where Bruno’s testimony is to be found, could you do that for me?

Irving Anolik:

I probably can.

Beginning at page — folio 2250, sir.

Felix Frankfurter:

2250.

Thank you very much.

When was this crime committed?

Irving Anolik:

On January 22nd, 1957.

Felix Frankfurter:

And when was the trial?

How (Inaudible)

When was the trial — it’s been known to you.

This must have been a quick trial.

He was a — have been in the member (Inaudible) over five months.

He was a very — very much of a rookie, wasn’t he?

Irving Anolik:

Yes.

He was quite a rookie.

Are there any questions?

The people would —

Felix Frankfurter:

You haven’t dealt with the problem which for you seems to be crucial in this case namely, assuming you’re right about everything concerning the confession.

Felix Frankfurter:

What about the fact that he asked for a lawyer and didn’t get one?Did he ask to see his lawyer or did he — didn’t have access to his lawyer.

What about that?

Irving Anolik:

I would say this but —

Felix Frankfurter:

That’s very important.

This is a murder case.

Irving Anolik:

That’s quite true that this is a murder case.

This man was not just plucked out of the street, Justice Frankfurter as a possible suspect.

He was — an eyewitness had already identified him.

He’d already given a statement to Patrolman Bruno.

And he was questioned.

The Court — this Court has often recognized that and has condemned plucking a man as a possible suspect and hammering away and until they get a confession.

In this case they had a man who they certainly have probable cause to believe had committed this crime.

Felix Frankfurter:

I should think a (Inaudible) all the more reason for seeing that he has the protection of a lawyer.

Irving Anolik:

He had had the advice of an attorney who’s — who turned him over to two police officers in the District Attorney on the street.

Felix Frankfurter:

Well, not only should be incarcerated but he couldn’t be allowed out on bail.

Was there any other purpose for turning him over?

Irving Anolik:

I would say that — that would be —

Felix Frankfurter:

Doesn’t he have — turning him over so that he shouldn’t when he asked to see the lawyer he shouldn’t be — should be disallowed?

Irving Anolik:

Well, there’s nothing in the record to indicate, Justice Frankfurter that there was any agreement that he would not be questioned.

On the contrary, since he was admonished not to say anything, as the New York Court of Appeals recognizes, apparently interrogation was anticipated otherwise why admonish him to say nothing.

Felix Frankfurter:

What from your — your reading of the record, what — does the record show as to a demand by him to see his lawyer to have him present to consult him?

Irving Anolik:

I say this —

Felix Frankfurter:

Was there a denial of such a request?

Irving Anolik:

Detective Ciccone testified that Spano asked to see his lawyer.

He said he then attempted to locate his lawyer’s name in the telephone book and was unsuccessful.

The attorney —

Felix Frankfurter:

Was the lawyer a known member of your bar?

Irving Anolik:

He was known but this was the 46th one.

He was then — he then asked Patrolman —

That was —

What is that?

Irving Anolik:

Pardon me?

What’s the significance of that?

Irving Anolik:

Well, in other words, Detective Ciccone wouldn’t necessarily have known this particular lawyer.

Felix Frankfurter:

Well, he might not have known (Inaudible)

Irving Anolik:

That’s correct, but —

Felix Frankfurter:

Wouldn’t there be a responsibility in — in having him take steps so that he would find out where that lawyer was?

Irving Anolik:

Justice Frankfurter, all I can say is that the record indicates that Detective Ciccone alleges that he attempted to find the name in the telephone book and could not.

So, there’s nothing further —

William J. Brennan, Jr.:

The insisting could certainly do him because he had received Spano from the —

Irving Anolik:

Justice Brennan.

William J. Brennan, Jr.:

The attorney didn’t he?

Irving Anolik:

But that is assuming, Justice Brennan that a direct request was made to the — the Assistant.

But there’s no evidence of that at all.

Felix Frankfurter:

And you — you think that a policeman would ask him — to whom a — an indicted person gives the name of his lawyer, who can’t find it in a telephone maybe because he didn’t get the spelling right, is absurd when taking no further step (Voice Overlap)

Irving Anolik:

No.

I — I think that the — the — I think, the police officer should be reprimanded that —

Felix Frankfurter:

Well, but it could — if it’s a question of getting protection from legal advice, legal advice that the — the suffering or rather the hurt, the denial that’s involved in his right to get a lawyer reduces a State.

Every — every police have the — every prosecutor is part of the State for that purpose?

Irving Anolik:

I would agree.

If the Court, this Court has passed upon similar problems, Justice Frankfurter, not while on indictment was extant, that’s true but certainly this Court has passed on in the Cicenia and the Crooker cases.

Felix Frankfurter:

In the Crooker case, this isn’t the Crooker case.

This is —

Irving Anolik:

I know it’s not.

Felix Frankfurter:

Very different situation.

Seeing the nature — the individual had experienced — it was almost that he was a lawyer himself etcetera — etcetera.

Irving Anolik:

Well, in the Lisenba case, there was a request for counsel and counsel was not furnished.

I believe in Stroble there was a question or there was a request for counsel and counsel was not —

Felix Frankfurter:

But the question of having a counsel whether was if it was taken.

The counsel that was — wasn’t asking for a lawyer.

Felix Frankfurter:

Not denying access to lawyer, what you have got?

Irving Anolik:

Well, of course, in — I believe in — in Lisenba he had a lawyer and the — it was — they took him out on — on May 2nd or something and questioned him —

Felix Frankfurter:

There’s a question there on whether it was or wasn’t a voluntary confession.

Irving Anolik:

That’s correct and I think the same issue would have to be faced here, Justice Frankfurter or that was not —

Earl Warren:

Was this lawyer listed in the telephone booklet?

Irving Anolik:

No, question about it, he was.

Earl Warren:

He was?

Irving Anolik:

It could have been due to a misunderstanding of the pronunciation of the name.

I don’t know but I — I’m not trying to justify Detective Ciccone, Chief Justice Warren.

Make no mistake about that.

I merely say that his testimony stands that he couldn’t locate him.

Hugo L. Black:

What more advice did the lawyer have given if they called him and brought him up to than that which he had already given them and that which the man kept saying, ”My lawyer has told me not to talk.”

Irving Anolik:

I think —

Hugo L. Black:

That all he could (Voice Overlap)

Irving Anolik:

That’s correct.

That’s about all he could have done.

Hugo L. Black:

Well, maybe when you say that the lawyer had admonished him because he anticipated questioning maybe it’d be a little clearer, if you’d say because he feared he would be questioned.

Irving Anolik:

That’s another — another way of putting it, Justice Black.

Felix Frankfurter:

Well, there’s one more thing.

If the lawyer had been present, the lawyer would have interposed his will.

Irving Anolik:

That’s correct.

Felix Frankfurter:

And imposed his will on his client as against the attempted assertion of will by the District Attorney.

Irving Anolik:

That’s quite correct.

Now, of course, in State v. Bump which is a New Jersey decision cited on my brief, the court there indicates where a — a somewhat similar but not identical situation obtained that while an attorney should be present to defend the client an attorney is not necessary to protect the client from his own voluntary statements.

And if this was a voluntary statement, then the people submit no federal right was produced.

Earl Warren:

But for how many hours after — after the District Attorney and the police know that a man has — has a lawyer and know who he is and — and the defendant has protested that his lawyer has told him not to talk and he doesn’t want to talk.

For how many hours can they question him in order to overcome his will in that regard and get the statement that they desire?

Irving Anolik:

Well, I would say that — of course, it’s a difficult question to answer.

I would say that that’s where the significance of a prompt arraignment might come into issue.

If this man had been detained, shall we say until the 6th of February, another full day and then the — the confession obtained.

Irving Anolik:

Then we might say that here they went too far.

But in this case, this — this specific case they arraigned him promptly as soon as the courts reopened that morning.

Earl Warren:

Well, could they have continued to — to interrogate him all night long and then brought him in at 10 o’clock with the same result?

Irving Anolik:

I suppose, it would be conceivable but unlikely in view of the fact they have to have him fingerprinted, booked and photographed before he was brought into that Court and that was done.

Earl Warren:

Yes.

But I mean if they had done — if they had done it, the situation would be the same as far as you can see as long as they arraigned him on time.

Irving Anolik:

I would say that, there again, assuming that the record indicates the confession of itself was voluntary, yes.

I’d have to say that.

Earl Warren:

Even though he was protesting from — from that time on until 10 o’clock in the morning that he didn’t want to talk, that his — his counsel had advised him, not to him, that he wanted to see his lawyer and so forth.

Irving Anolik:

I would say that to be consistent.

I have to say that.

Earl Warren:

Yes.

Irving Anolik:

But may I say this, Mr. Chief Justice Warren, that only two witnesses, Patrolman Bruno and Detective Ciccone ever testified that he asked for his lawyer that —

(Inaudible)

Irving Anolik:

— the other —

Earl Warren:

How many should he have to do when people are coming in and going out of the room?

Should he have to look at every man and tell him —

Irving Anolik:

No.

Earl Warren:

— specifically —

Irving Anolik:

No.

Earl Warren:

Is it not sufficient for him to — to say to whoever is in charge of questioning him that his lawyer has advised him not to talk.

That he doesn’t propose to talk and — and the client should do it.

And then for four or five hours, he — he declines to make a statement for that reason.

Does he have to be meticulous about seeing that he made the same statement to every single one

Irving Anolik:

No.

Earl Warren:

— of the people?

Irving Anolik:

Of course, not.

Earl Warren:

Well, then what — why do you keep (Inaudible)

Irving Anolik:

Well, I — I —

Earl Warren:

— they only said it to two of the detectives who where there.

Irving Anolik:

I — I merely emphasize that from this point of view only, Justice Warren, that there is no direct evidence in this record that that request was made to the District Attorney or to the two detectives to whom he surrendered.

To them it’s true.

They testified, he said, “You’d better see my lawyer about that.”

Now, that — that is what the record says, Justice Warren.

I’m not attempting to characterize it one way or the other.

We’re bound by the record.

There’s no question about that.

Now, if — if this meant that the questioning here, if it was voluntary, the people submit that there’s no reason to invoke the Fourteenth Amendment because an indictment was extant.

If it was not voluntary, of course, there is obviously, a Fourteenth Amendment problem.

What the — now, what is the practice in New York after arraignment where a man was incarcerated waiting — what instructions do the police have as to whether it’s admissible or mandatory or not?

Irving Anolik:

Instructions are not the question at all after that.

Do you say that everything up until arraignment (Inaudible)

Irving Anolik:

Typically, that is what institutes the judicial proceeding.

Section 144 of the Code of Criminal Procedure of New York speaks of judicial proceedings commencing with the filing of an indictment but that section has reference to statutes of limitations.

And in only in that sense that a judicial proceeding start and certainly, I think that this Court will recognize that this interrogation was not a judicial proceeding upon that indictment as the dissent —

Potter Stewart:

That’s precisely — that’s precisely what the petitioner is complaining about.

They said that after indictment what — the only thing that can follow properly under the law and Constitution is an arraignment and the trial which are judicial proceedings.

And he says here that this —

Irving Anolik:

Well —

Potter Stewart:

— after an indictment instead they actually have these proceedings in the backroom of the station house.

Irving Anolik:

Justice Stewart, if an indictment, as I say, precludes any questioning whatsoever, then, of course, my cause is — is lost.

I concede that.

If this Court is prepared to say that the fact of an indictment in a state court precludes any further investigation, any further question then I — I concede that my cause is lost.

But I respectfully submit that this Court is not — is not required to make such a determination in view of its decisions and in view of this record.

Felix Frankfurter:

Mr. — before you sit down.

I’d like to ask you now that I have cast my eye over the pages of Bruno’s testimony and I want to be sure that I haven’t — in my skimpy reading of it misread.

In the first place, there’s testimony by him that Mr. (Inaudible) came at 4:00 a.m. not 3:00 a.m. as both of you have said, but much important than that, he made several efforts to get — what’s his name– Spano as he thought, didn’t he?

Irving Anolik:

Yes, he did.

Felix Frankfurter:

And Spano stood his ground and wouldn’t talk.

Irving Anolik:

That’s correct.

Felix Frankfurter:

And Gannon sent him back again and again.

Irving Anolik:

That — that’s correct.

He sent them back several times.

Felix Frankfurter:

That there was a refusal to talk.

Irving Anolik:

That’s a —

Felix Frankfurter:

That there was an insistence by (Inaudible) friend Bruno to get him to talk.

Irving Anolik:

I — I would say that the —

Felix Frankfurter:

Lieutenant Gannon his superior, this fellow (Inaudible) he was brought down from the academy, wasn’t it?

Irving Anolik:

Well, he happened to live in the neighborhood.

Felix Frankfurter:

Yes.

But he wasn’t part of the police —

Irving Anolik:

Oh, no, no.

Felix Frankfurter:

And somewhere they found out that he’s a great credibility, they got hold of him.

Irving Anolik:

Well — no.

He telephoned him —

Felix Frankfurter:

Just —

Irving Anolik:

— a day before this.

So they knew about this conversation, the day before you see.

Felix Frankfurter:

But he — he stood his ground at the insistence of his boyhood friend, he wouldn’t talk, several times that he says — and at that time he told Lieutenant Gannon that they could get no statement out of this man, is that right?

I did and you went back into the room?

Yes.

At whose direction?

The Lieutenant and come — what it was that he was said (Inaudible) don’t worry etcetera.

(Inaudible) a long course of — or an effort or rather serious continuing effort to have Spano speak freely, is that right?

Irving Anolik:

That’s correct, Justice Frankfurter.

Felix Frankfurter:

And — and he did, he was not forthcoming until to these — these hours in which took place what you’ve said took place.

Irving Anolik:

That’s correct.

Felix Frankfurter:

And finally at 4:00 in the morning if I have to understand you.

Irving Anolik:

Well, the — although the statement of the stenographer indicate an earlier time —

Felix Frankfurter:

All right.

Irving Anolik:

— there’s some —

Felix Frankfurter:

Anyhow —

Irving Anolik:

Yes, sir.

Felix Frankfurter:

— one wouldn’t (Inaudible) about an hour and a half.

Irving Anolik:

No.

I — I —

Felix Frankfurter:

That is the course of events by which eventually this statement came to pass.

Irving Anolik:

That’s correct.

Felix Frankfurter:

That’s what you have just stated?

Irving Anolik:

Yes.

That’s correct.

If there are no further questions Chief Justice, Justices of the Court.

Thank you very much for your indulgence.

Earl Warren:

Mr. Siegal.

Are you finished?

Herbert S. Siegal:

Yes, thank you.