Swenson v. Stidham

PETITIONER:Swenson
RESPONDENT:Stidham
LOCATION:Allegheny County District Court

DOCKET NO.: 71-224
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 409 US 224 (1972)
ARGUED: Oct 11, 1972
DECIDED: Dec 07, 1972

ADVOCATES:
Kenneth M. Romines – for petitioner
Mark M. Hennelly – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – October 11, 1972 in Swenson v. Stidham

Warren E. Burger:

We’ll hear arguments next in Swenson against Stidham, 71-224.

Mr. Romines.

Kenneth M. Romines:

Mr. Chief Justice, may it please the Court.

This case is a habeas corpus case which originated in the Western District of Missouri.

It involves a question concerning Jackson versus Denno and Sims versus Georgia.

In 1955, Mr. Stidham was convicted for the first-degree murder of another inmate in a prison riot at the Missouri State Penitentiary.

The original conviction was affirmed by the Missouri Supreme Court in 1957.

Mr. Stidham filed for collateral review pursuant to Missouri Supreme Court Rule 27.26 that was likewise affirmed.

Second collateral review in 1967 was sought denied by the Circuit Court of Moniteau County, Missouri.

The Missouri Supreme Court reversed and remanded for an evidentiary hearing and reinstated Mr. Stidham’s direct appeal in the spirit of Swenson versus Bosler which required counsel on appeal.

Reaffirmed in 1970, Mr. Stidham sought habeas to the Western District of Missouri through Judge Collinson.

Judge Collinson dismissed five separate grounds it was appealed.

The appeal was dismissed by Mr. Stidham, he tried to reinstate the appeal on the court did not allow the reinstatement.

He filed a second habeas corpus petition before Judge Collinson.

Judge Collinson on relying upon the former opinion denied it and also denied a new issue involving Coleman versus Alabama.

Of the five issues that then went to the Eighth Circuit, four were affirmed, one the Jackson v. Denno issue was found by two-to-one vote to be that the Eighth Circuit held that their review of Missouri case law demonstrated that the Missouri Trial Court had and frequently used the right to submit the question of voluntariness to the jury without a prior determination independently by the judge of voluntariness.

In essence, I feel that the Eighth Circuit clearly has held the Missouri rule as the same as in New York rule.

Under Jackson which was struck down the judge could not exclude a confession, if there were circumstance which indicated testimony on both sides.

He was not entitled to exclude a confession merely because he himself would have found it involuntary.

In essence, he was without judicial power to resolve the conflicting evidence on voluntariness.

This Court held that the defendant had the right at some point to a hearing and a determination on the issue of voluntariness and the Court expressed the opinion not to give the jury the dual function of deciding voluntariness and the factual history did not give the defendant constitutional determination that he was due.

Now because of the way that the Eighth Circuit read the Missouri procedure, we’ve dealt extensively with all cases beginning from 1829 when it became a state.

Hector a slave versus the State all the way through up to the most recent cases.

Basically, I think distilling those cases indicates that the Missouri procedure contemplated a preliminary hearing outside the presence of the jury.

That at that hearing the State had the burden of non-persuasion.

After that hearing, the Court could waive the evidence and find the confession involuntary and refused to let it go to the jury; or the court could find the confession, competent evidence, instruct the jury on their duty to find that the confession was voluntary and instruct on their duty to find that if they find that if they found it was voluntary they then had the second determination to make whether they thought it was true and they believe it.

Now the Eighth Circuit quotes rather deafly I believe with the use of ellipsis from different cases in Missouri as their basic reasons for saying the Missouri procedure was bad.

One of those cases, State versus Bradford at the part in the opinion just before the court gets into what is admittedly equivocal language and it’s pretty difficult to determine exactly what the procedure is, the Missouri Supreme Court said this, “The Court is not obliged to submit the issue of voluntariness of a confession to a jury merely because there were substantial evidence tending to show the confession was voluntary, however much the evidence of its voluntary character is outweigh by the evidence to the contrary.”

Now after that portion follows some equivocal language which the court sets out which indicates that but the better rule is that, if there is a real close question, just let it go to the jury.

Now, the question is what’s that mean and my answer is it’s pretty hard to tell.

Kenneth M. Romines:

I don’t believe it means exactly what the Eighth Circuit say.

I don’t believe that is the exact way the New York procedure worked and the other thing, the other case that leads me to that conclusion is State versus Gibraltar which they also quote, the court there says “that it is not the law that if there be any substantial evidence indicating the confession was voluntary the court must and the emphasis in our brief is the court’s emphasis must refer the question to the jury however much may be outweighed by evidence to the contrary.”

If that were true, the court would be doing no more that always does throughout the trial in ruling on the admissibility of evidence and there would be no need of such preliminary hearings except in the rare instances when such evidence is wholly likely.

Now, here is where the equivocation starts as it happened in the last case.

On the other hand, when there is substantial conflicting evidence and the question is closed.

It is better to refer the underlying issue of voluntariness to the jury than to exclude the confession and they go on with some language about miscarriage of justice if this is not done.

Potter Stewart:

Is the basic issue in this case and the basic question, what was the law of Missouri in 1955 with respect to procedure in handling alleged course confessions?

Kenneth M. Romines:

No sir, to the extent that might be the conclusion to be drawn from my questions, presumably that’s it.

I go one step further and said, “no matter what the law in Missouri might have been in 1955 we have to determine what this judge did on the facts before him.”

That is why I think the Eighth Circuit made a mistake, because if the Eighth Circuit was correct at the judge on the record find said “I make the finding that this confession was voluntary as a matter of law if the Eighth Circuit was correct” no matter that wouldn’t have been a proper finding.

Potter Stewart:

Even though you suggest the judge very clearly had complied in 1955 was what the Jackson against Denno decided many years later, you said the Eighth Circuit would have said, it wouldn’t make any difference because the law of Missouri didn’t require to do that.

Kenneth M. Romines:

Right.

William H. Rehnquist:

Well, Mr. Romines isn’t also perhaps equally a fundamental issue in the case of the proper application of this Court’s holding in Jackson against Denno to whatever in fact happened in the Missouri Trial Court?

Kenneth M. Romines:

Yes sir, that’s what I —

Potter Stewart:

That you say it is the basic issue.

Kenneth M. Romines:

That’s right.

That I believe is a basic issue not necessarily so much what the Missouri procedure may or may not have been.

I meant that might be a nice intellectual inquire but frankly I am concerned that in this particular case that we hold or that the Court holds, that the procedure that this judge used, the words this judge used after the inquiry that was made was sufficient under Jackson versus Denno.

Potter Stewart:

Because that preliminary, that inquiry that what you interesting intellectual inquiry as to what was the law of Missouri in 1955 should I suppose you would agree normally in our judicial process be left for the determination by the United States Court of Appeals for the Eighth Circuit.

Kenneth M. Romines:

I think that’s correct.

Potter Stewart:

We are not in business here to decide what the state law is.

Kenneth M. Romines:

No, in a particular case where the law is perhaps unclear as the Court indicates at least two members of the Court indicated they felt this was, perhaps that is a proper inquiry but I think on the particular reason that we’re here today that that’s not the proper inquiry.

Basically, I guess the most charitable thing, perhaps the worst thing that could be said for all these cases is that a basic general rule could not be established and the early cases up to about 1930 clearly indicate the judge made the decision.

There are some equivocation and some of the cases after that and I think the — especially if you read State versus Laster, you’ll find a case where the attorney comes in and he will not put on any evidence and so there up crops what’s called the prima facie rule which that puts language in the cases that the next time a judge uses, I don’t think the correct factual circumstances.

In this case, Mr. Hennelly who was a vigorous trial lawyer, as I believe, the transcripts will indicate requested of the judge a second judge coming in from another circuit.

The case was being heard on a change of venue, I would say approximately 250 to 300 miles away from the State Penitentiary County that it is in.

He requested testimony on the confession, the hearing outside the presence of a jury that was given.

Now the language we specifically set out in the brief.

The first time that one of the officers gets up to testify about the confession, Mr. Hennelly indicates at this point Your Honor if it please, the defendant moves the court to conduct a preliminary hearing and asks the court to inquire to the voluntariness of the statement and to determine whether the statement was given voluntarily either the oral or the written statement and we ask that the hearing be held outside the jury.

That was done.

Kenneth M. Romines:

Evidence was taken and covers pages 80-85 pages of the transcript.

All the officers testify, the defendants testifies and at the end of that Mr. Hennelly indicates that is all, that is the defendants motion.

Then the court’s language which has, perhaps what’s caused the confusion is now the conclusion of the hearing outside the hearing of the jury the request by the defendant for a hearing upon a statement which has been identified as 1616.

It is the court’s opinion that the matters concerning the statements should be offered in the presence of the jury.

Subject of course to any attacks as to its credibility by the defendant.

The defendant has of course the right to proceed to challenge the voluntariness of the statements and confession even before the jury.

But it is the court’s opinion and upon the evidence that has been offered before the Court and outside the hearing of the jury that the statement is and should be admissible, then he follows with some other non-appropriate language.

Mr. Hennelly merely jumps off and says “in other words, the court is over ruling my motion.”

And request that the court to hold as a matter of law that these statements were involuntary is that right?

The court, “that is right.”

He brings him back in, now of course if you accept what the Eighth Circuit says the law was, that’s — that can be read two ways.

The one way, the way that we say it should be read.

The other way, the way Mr. Hennelly says it should be read to the extent that okay, he is equivocating.

If he was trying to make the decision as well as there is enough evidence here that may be ought not to rule it goes.

I think it’s clear from the judge’s actions here that he is saying “I don’t believe a word Stidham is saying.”

He has decided credibility, that’s what we are talking about in Jackson, has this man ever had the credibility of his voluntariness decided before the jury gets it in that mixed nature of trying to decide whether it is truthful and whether it happened.

Potter Stewart:

Now could I ask the question please.

Let’s assume that Jackson was violated or wasn’t followed or that the procedure that Jackson thinks a trial judge should follow wasn’t followed at the trial, the criminal trial.

The defendant is then not entitled to a new trial necessarily but just to a hearing of the voluntariness of his confession, isn’t true?

Kenneth M. Romines:

That’s correct, Your Honor.

Potter Stewart:

Now after he was convicted he was given another full hearing in the state court, was he not?

Kenneth M. Romines:

That’s true.

Potter Stewart:

And there are no new witnesses called or anything I take it?

Kenneth M. Romines:

No, there was some changing of testimony but —

Potter Stewart:

Changing of testimony but there was a full opportunity for a hearing and the counsel per same for some — for all intensive purposes the case was submitted on practically the same evidence, is that right?

Kenneth M. Romines:

That’s true, Your Honor.

Potter Stewart:

And the state trial judge that was conducting that collateral hearing denied relief?

Kenneth M. Romines:

That’s true.

Potter Stewart:

Now if that were a determination that the confession was voluntary, it really wouldn’t make any difference what the procedure was at the trial would it?

Kenneth M. Romines:

No, it wouldn’t.

Kenneth M. Romines:

The only trouble Your Honor is with what the judge said, we are again hang-up in semantics.

The judge did not say “I view the evidence, I find it voluntary.”

He said “I view the evidence” the judge in 1955 found it voluntary as he should have, so it is not —

Potter Stewart:

So he went on and said there is plenty of evidence to support that.

Kenneth M. Romines:

Right, he did.

Potter Stewart:

Well, if he thought the — if he thought the judge the term that voluntary said there was plenty of evidence to support it, do you think that’s a determination of voluntariness?

Kenneth M. Romines:

I think it certainly is and we argue that, we also have argued that the determination that the Supreme Court made on appeal was sufficient on the judges, on the reinstated appeal.

Potter Stewart:

Yes, yes, because there, the court did say it was voluntary.

Kenneth M. Romines:

Right.

Judge Collinson said it was voluntary.

Potter Stewart:

The trial judge could have —

Thurgood Marshall:

Did the trial judge say it was voluntary or did he say it was not involuntary?

Kenneth M. Romines:

Those words, all of the words in there or Mr. Hennelly’s words, the judge only rules, he did not say voluntary nor not involuntary.

Thurgood Marshall:

That’s right.

Kenneth M. Romines:

He doesn’t say anything.

He says, “I am going to let it go to the jury.”

Mr. Hennelly then says “are you overruling my motion that it is not involuntary as a matter of law?”

He says “Correct, call in the next witness.”

So he actually uses none of the phrases or the magic rubric as Judge Gibson says, he does not indicate that.

Warren E. Burger:

The trial judge could have determined that is a matter of law that it was involuntary, could he not?

Kenneth M. Romines:

He could have.

Warren E. Burger:

And then he would not have admitted it?

Kenneth M. Romines:

That’s correct.

He had that power.

That’s how we distinguish it from the New York rule which as I read some of those cases it seems to indicate that once those conflicting evidence, he didn’t have the power to take it away from the jury.

Warren E. Burger:

Did you say that his words coupled with his actions make it clear that he was ruling, that he regarded the confession as voluntary subject only to the juries right to reexamine that as to credibility and other attacks?

Kenneth M. Romines:

That’s Probably — that’s correct, Your Honor.

William H. Rehnquist:

Mr. Romines, if the case had come here on direct appeal or certiorari from the affirmance on direct appeal by the Supreme Court of Missouri and we have concluded that this colloquy between Mr. Hennelly and the trial judge did not satisfy Denno.

We would have sent it back to the Missouri Courts I suppose for much the same type of hearing that Mr. Stidham obtained in his Missouri habeas proceedings.

Kenneth M. Romines:

That’s true.

Kenneth M. Romines:

I do not think there is any doubt that the Eighth Circuit recognize under Sigler versus Parker that it had to be a determination that while they send it back to the Western District Court, it was only the whole lot case until new proceedings should be instituted in Missouri, which evidently indicates a third collateral attack proceeding in Missouri for Mr. Stidham.

Basically, we make the argument that the Supreme Court on appeal and particularly the judge in St. Louis on the collateral attack hearing on the 27 and 26 have made a sufficient determination under Jackson and on our brief we also indicate and we do not wish to waive those arguments regarding the retroactivity of the cases although it is pretty difficult to plan the phase of Jackson which we apply retroactively to a habeas case.

We believe that it should not apply collaterally standards are not viable at the time of the original appellate review of the court.

Perhaps and I have heard that argument made into two or three other cases in the last couple of days, it is a dog that won’t hunt but we believe that it should hunt.

It’s a problem I have handled in the office three years and I have handled 14,075 petitions responses to show off.

William H. Rehnquist:

14,075 petitions to show cost.

Kenneth M. Romines:

That’s right.

William H. Rehnquist:

To federal habeas?

Kenneth M. Romines:

In three years.

I went through and I didn’t believe it.

The more the docket cards I went through the more the numbers came up.

William H. Rehnquist:

Was it that just the Western District?

Kenneth M. Romines:

That takes in the Western and the Eastern District.

481 of those have been appealed, 84 have been reversed and only one in this case have I had a gut reaction and it’s fairly difficult to tell exactly what it is but it is a lot of little things and I just think there is something wrong and this can go on after this man has had this number of hearings and I think it should it stop.

We also make an argument in the brief.

Where would you stop it?

Kenneth M. Romines:

I would stop it right here.

You’re not denying the function of federal habeas?

Kenneth M. Romines:

No, I am not concerned with that and I will try to deal with the next point.

The other part of our argument was that this man had an original habeas.

It went to the Eighth Circuit, he dismissed his appeal or basically the same issues except for the Coleman v. Alabama issue which he brought up later but he tried to reinstate his appeal.

The Eighth Circuit said no.

That should have been the end of it for Mr. Stidham on this issue.

Now he filed a second habeas corpus in the Western District.

Mr. Collinson denied him relief basing it on his prior decision and also denied him relief on Coleman versus Alabama.

It goes up then the Eighth Circuit and there have been other cases involving the same Missouri procedure which they’ve not felt concerned enough to tell us about in the last few years since Jackson v. Denno.

In this case, two members on that panel decided that the Missouri law was incorrectly being applied.

Thurgood Marshall:

You made the same argument today, I take it?

Kenneth M. Romines:

We did not have oral argument Your Honor.

We opened a summary docket.

Kenneth M. Romines:

I would like to reserve time for rebuttal.

Byron R. White:

Am I correct that Judge Gibson was the only Missouri judge on the panel?

Kenneth M. Romines:

Yes, sir and he was the judge that dissented.

His basis being that Missouri Supreme Court is the one to judge what the law of Missouri was and he was the only Missouri judge on that three-man panel.

Warren E. Burger:

Mr. Hennelly, you may proceed.

Mark M. Hennelly:

Mr. Chief Justice, may it please the Court.

I think it is always an emotional thing to — we would like to do away with as many appeals as possible.

Unfortunately, this is the occupational hazard that the State has to take with respect to innocence and that’s the situation that still a mistaken for almost 20 years.

The question is whether or not we’re going to say to Mr. Stidham the dockets are too loaded.

If we coerce this conviction, confession out of you, it is most unfortunate because we have too much work to do and I don’t think that that is a proper interpretation of the — of any of the laws.

Warren E. Burger:

Am I correct that this is the seventh time that this case has been before for some court?

Mark M. Hennelly:

It’s the seventh time it’s been before some type of court Your Honor and as I again I say that’s the result of this man’s insistence that he was illegally convicted.

We would not be here if Judge Godfrey who heard the case when it came back the second time, if he had done exactly what the court said should have been done.

Let me read what Judge Godfrey did.

Judge Godfrey says “As to paragraph b concerning the averment —

William H. Rehnquist:

Do you have a citation of the record so we could follow along?

Mark M. Hennelly:

Yes, this is on page 26 of our brief at the appendix 686 page 26 of our brief.

“As to subparagraph b concerning the averment of the overwhelming evidence was that the statement was involuntary because of coercion exerted on movement.

This contention was raised and profusely litigated in State versus Stidham and the court finds it is no longer open to question here.

Judge Godfrey made no finding that we ask him to make; if he had we would not have to come here.

Warren E. Burger:

Well did not he go on in the next paragraph and say that it was resolved in the Trial Court in the first instance that you went ahead with this case.

Mark M. Hennelly:

Yes but he went on further than that too Your Honor, I will read the whole thing that he said.

“It should be noted that the evidence concerning the issue of voluntariness was greatly conflicting and was to be resolved by the trial court in the first instance and the jury in the second have been regard to the credibility of the witnesses.”

This issue should now be considered closed.

It should not be considered closed and the court finds it to be so.

In other words all that he did was to put a stamp of approval on what have been illegally done previously.

Warren E. Burger:

What year was he speaking that date isn’t here.

Mark M. Hennelly:

It was two years ago Your Honor.

In other words it was we tried the case the first time in about 1955 and then the sixth appearance was before Judge Godfrey and Judge Godfrey clearly did not make the finding that he should have made as a result of the mandate of his own Supreme Court.

Now, as we understand Jackson v. Denno.

Mark M. Hennelly:

When the trial is over a defendant ought to be able to say to himself “I am satisfied as to the circumstances under which this jury convicted me with respect to a statement and he ought to be able to say “I am satisfied that the court — the court found that it was voluntary” and he ought to be able to be able as a result of Sims v. Georgia to say that that was to be bound with unmistakable clarity.

Harry A. Blackmun:

Mr. Hennelly.

Mark M. Hennelly:

Yes, Your Honor.

Harry A. Blackmun:

On the proceeding page that you quoted from and then quoted another pair of page, 86-85 and I take it this is still the opinion of the Missouri habeas judge.

The last paragraph it says “Movant’s contention at the trial court failed to find specifically that the confession was voluntary.

This Court finds is unattainable since the court found specifically that the confession was not involuntary.”

Now if a court finds specifically that the confession is not involuntary, that’s tantamount to finding a voluntary, isn’t it?

Mark M. Hennelly:

No, Your Honor all that he is doing is restating what the court did in the first instance.

All that he is saying is “I’ve read the decision and I see when I read the decision that the court found that it was involuntary.”

He is not saying that based upon the evidence it was put before me that I now find it that it was involuntary and if he did we’d be dead as far this case is concerned but he didn’t do that.

Harry A. Blackmun:

But he is at least characterizing the finding of the original Missouri trial judges, the finding that it was not involuntary.

Mark M. Hennelly:

No, I don’t think that he is.

I think that what he is doing is going back to and while I realize that an interpretation is to what was the law in Missouri at the time, is only a factor to be considered as to what was in the mind of the late Judge Webber when he made this finding.

I think that all he is doing is saying is at that time they lived up to what the law was in Missouri.

And the fact to the matter is, with respect to the material that Mr. Romines read.

At the time that I asked for the hearing, I asked for a hearing based upon both the oral and the written confession and you will note, if Your Honors will, that when we get down to the colloquy as to are you finding as a matter of law.

We weren’t talking about the States exhibit 16 and 161.

There is no place in this record; there is no court that has ever decided that the oral statements which were objected to and the record says that each instance on the oral statement, there is no finding in any place in this record that the oral statements were voluntary.

Now again, with respect to the statement of the court and my statement you are not finding as a matter of law.

When I say it you are not finding as a matter of law, I am saying that the law as it existed then, it is for that reason that is of some importance is definitely the case law that we have been following Missouri all the time.

And the case law that we have been following in Missouri was chiefly was clearly an opposition to the finding that this Court made in Jackson v. Denno.

It was that if the question was closed, the court did not have to put a stamp of approval on it.

The court didn’t have to make a positive finding, the court passed it on to the jury and as a matter of fact that page 703 of the appendix, that’s exactly what the Supreme Court said.

When we originally tried Stidham and he went up to the Supreme Court for the first time, the Supreme Court says there’s no merit to defendant’s contention that his written confession, his written confession, they do not even worry about the oral statement was coerced and involuntary and was admitted an evidence before the State established that it had been voluntarily given.

The Court conducted a full preliminary hearing on the issue, found the issue for the jury and later after hearing evidence before the jury submitted the issue to the jury for determination.

The testimony was to like affect to each hearing so on and so forth, the last thing it said on the conflicting showing of issue of voluntariness of the confession was for the jury which is totally inconsistent with what this Court has held.

The court should have done with respect to Jackson versus Denno and the Sims case, the court should have made a positive unquestioned finding and quite frankly, if Judge Godfrey when the case went back to him, if he would have done it that would have been the end of it too but to this day, nobody has made that finding except that the Eighth Circuit Court of Appeals has strongly suggested that it was totally involuntary and that it was taken and if we took the uncontradicted testimony that the confession was involuntary and should have been excluded as a matter of law.

Warren E. Burger:

What’s the consequence now of the holding of the Eighth Circuit?

Mark M. Hennelly:

The consequence is that it’s now here —

Warren E. Burger:

Well, other than here?

Mark M. Hennelly:

Well, the consequence —

Warren E. Burger:

If it had not come here, what fashion —

Mark M. Hennelly:

If had not come here and if the State have not applied for cert, it would have gone back for another hearing to determine the voluntariness of the statement and I presume that some other judge realizing that he had to conform with Jackson versus Denno and the Sims case would have said “I have heard this evidence, I find it to be voluntary” and that would have been it.

May I ask Mr. Hennelly, it goes back under the Eighth Circuit’s disposition it goes back to another state court here?

Mark M. Hennelly:

To another state court.

And meanwhile the conviction does not stand vacated pending that hearing?

Mark M. Hennelly:

No, it does not.

It does not, it has not been vacated?

Mark M. Hennelly:

No.

William H. Rehnquist:

Why would you go back for a hearing before Judge Collinson or one of the other judges in the Western District since presumably the petitioner is exhausted as may served?

Mark M. Hennelly:

I don’t know to be quite frank with you judge.

Now I think that we can look at this record —

Well, Mr. Hennelly, can I ask, isn’t the answer to Mr. Justice Rehnquist’s question that if in fact Jackson-Denno was not followed, then the Jackson and Denno remedy is to go back to a state judge and have a state judge not vacating the conviction, have a state judge have a new hearing on the question only in voluntary.

Mark M. Hennelly:

Only in voluntary.

And if he finds it, it was voluntary then the conviction remains under —

Mark M. Hennelly:

That’s right.

If he finds it was involuntary then he sets the convicted free.

Mark M. Hennelly:

We get a new trial and they try it with whatever evidence they have independent of the confession.

Well then I gather on the Jackson-Denno it could not go back to Judge Collinson in the federal district but it had to go back to a state judge.

Mark M. Hennelly:

That’s right.

Warren E. Burger:

What was the date of the indictment?

Mark M. Hennelly:

It was indicted in about November of 1954 Your Honor.

Now —

Warren E. Burger:

Criminal Act presumably within a year of that time, short time?

Mark M. Hennelly:

Yes, see that the riot, it was a penitentiary riot in September of 1954 and he was the — it was first in information issued against them and then they indicted him.

Now it is our contention — I’m sorry.

May I ask one more question Mr. Hennelly, I gather then that how did this case gets back to — Judge Godfrey is a state court judge?

Mark M. Hennelly:

That’s right.

How did it go back to him?

Mark M. Hennelly:

It got back to him because the Supreme Court found, the Missouri Supreme Court found that as a matter of fact he should have a hearing on the post — on the 2726 motion which is our post conviction device to determine whether or not that confession was voluntary together with some other matters.

And your submission is that Judge Godfrey did not in fact make a finding out of the voluntariness?

Mark M. Hennelly:

He did not.

Had he made one then Jackson and Denno you agree would have been satisfied?

Mark M. Hennelly:

Would have been satisfied.

But all he did was go back to — who was the original judge?

Mark M. Hennelly:

It was Judge Webber.

And what — you have pointed out to us at 685 and 686, is Judge Godfrey’s characterization of what happened before Judge Webber, is that right?

Mark M. Hennelly:

In effect he says “I cannot that’s res judicata problem”

That’s what it is?

Mark M. Hennelly:

That’s what it is.

Your submission is that is the characterization of what happened before Judge Webber.

Mark M. Hennelly:

That’s right.

Instead of doing as he should have done both as the Supreme Court required him to do and to satisfy Jackson and Denno make his own independent determination of voluntariness.

Mark M. Hennelly:

That’s right.

The difficulty is that the Supreme Court to the holding here and determine voluntariness.

The judge had the hearing and he said some whatever he says and you appealed again, the Supreme Court in Missouri found no error —

Mark M. Hennelly:

That’s right.

— in his activity.

Apparently, the Court thought that it complied completely with their prior order.

Mark M. Hennelly:

That’s right.

Well, whether it did or not, whatever he found did not entitle anyone to any relief with respect to the confession.

Mark M. Hennelly:

Well Your Honor —

And you still have to deal with the Supreme Court of Missouri after this hearing.

Mark M. Hennelly:

Yes, yes.

You would agree wouldn’t you that once you had a — you will agree that there’s no need for a further hearing.

I mean evidentiary hearing there is full opportunity to put everything in the record that anybody wanted too.

Mark M. Hennelly:

Well, except Your Honor that I can’t recall the case but I understand that one of the cases indicate that another as judge cannot read a record and determine the demeanor of the witness, etcetera.

It may well be that the case could be remanded to Judge Godfrey and ask Judge Godfrey to correct his —

You wouldn’t say for example.

You wouldn’t think for example –- let’s assume the Supreme Court of Missouri have come out in plain words and said “We’ve examined this record. The evidence is overwhelming that the confession was voluntary.”

Mark M. Hennelly:

Yes.

You would say that would be unconstitutional?

I mean that would not be a sufficient —

Mark M. Hennelly:

I don’t think that would conform with Jackson v. Doe, because I think that the trial judge who has the demeanor of the witnesses has the atmosphere of the case. It is he who has to determine whether or not that confession is voluntary.

He is the one who has to do it.

Well in any event —

Thurgood Marshall:

The trial judge who did?

Mark M. Hennelly:

I’m sorry?

Thurgood Marshall:

Did Judge Webber do?

Mark M. Hennelly:

Yes, he is and believe me Judge Webber with all due respect —

Thurgood Marshall:

But you said the only way to settle this would be for him to settle.

Mark M. Hennelly:

No, no I don’t.

I say that you could send it back to another judge who can hear the demeanor of the witnesses now.

Just as I say Judge Godfrey could have done it.

Warren E. Burger:

That is assuming that after 18 years the witness still remember all the details.

Mark M. Hennelly:

Well it was just a year and a half, two years ago that there was a reasonably full hearing after 18 years.

But I think that we are losing sight of what is the main thrust of Stidham’s position in this case and what is suggested by the Eighth Circuit Court of Appeals and that is that this confession should have been thrown out completely.

Let me go back to this, the Supreme Court of Missouri when you appealed after the second, after the hearing before Judge Godfrey.

Mark M. Hennelly:

Yes.

Supreme Court of Missouri said “and finally the court found,” referring to Judge Godfrey, the court found it said “Judge Godfrey found has had the previous court that the oral and written confessions were voluntary.”

Mark M. Hennelly:

Yes.

And needless to add the latter finding is overwhelmingly supported in procedure and factually. The cause meets all the requirements for federal cases.

Now at least the Supreme Court of Missouri disagrees with you as to what Judge Godfrey found and in any event it reads it that way and finds it supportive of the evidence.

Mark M. Hennelly:

Well, I —

Do you say that is not a sufficient satisfaction for Jackson and Denno.

Mark M. Hennelly:

I said that is not sufficient.

No, I don’t and really with all due respect, I think that we have got to realize that Mr. Stidham has his characterized in this and in the Supreme Court opinion is a litigious convict and again that litigiousness is it was a by-product of innocence perhaps.

Warren E. Burger:

I see your table of cases would indicate that.

Mark M. Hennelly:

Yes, he is a litigious, I make no bones about that and when I was first appointed to defend this man.

The first thing that he asked me was to file a motion for a lie detector test.

Mark M. Hennelly:

He has maintained his innocence from the very beginning, that was 18 years ago, he has asked for every kind of relief.

Have you been in this case for 18 years?

Mark M. Hennelly:

Yes, I tried the case in the first instance Your Honor.

At the universal trial?

Mark M. Hennelly:

Yes, I was appointed by the Court and I tried the case 18 years ago and I have been with him for 18 years.

Now, but the real thrust in this case —

You are from Missouri? [Laughter]

Mark M. Hennelly:

The real thrust in this case is whether or not this confession was in fact involuntary.

Now, let us —

William H. Rehnquist:

We certainly did not bring the case in the Supreme Court of United States for a factual determination as to whether this particular confession was involuntary Mr. Hennelly.

Mark M. Hennelly:

Well, I certainly think that it’s a proper place to determine it for once and for all as to whether or not they didn’t violate the Fourteenth Amendment and beating a confession out of this defendant.

William H. Rehnquist:

Well, the Eighth Circuit didn’t make any factual determination.

Mark M. Hennelly:

Well, the Eighth Circuit — I am sorry, Your Honor.

William H. Rehnquist:

All it said was it should go back for a hearing.

Mark M. Hennelly:

The Eighth Circuit also says that if the uncontradicted testimony in this case is true that that confession was involuntary.

Now I say that they should have gone further, they should have said in fact — they should have said it looks like it is involuntary, they should have said as a matter of lie is involuntary and we do not put our stamp of approval on it.

William H. Rehnquist:

You didn’t cross-petition for certiorari did you?

Mark M. Hennelly:

No, I did not and I’ll tell you, Your Honor.

William H. Rehnquist:

Doesn’t that foreclose you from arguing for any relief that Eighth Circuit did not grant you?

Mark M. Hennelly:

I leave it to the court, I don’t think so.

I don’t think so.

But you can argue at least to the extent that it would justify the purpose?

Mark M. Hennelly:

Yes, now with respect to the as to whether or not — even if this Court, even if this Court have satisfied Jackson v. Denno.

If the original court have satisfied Jackson v. Denno, if we tried this court yesterday and this Court and the judge who tried that case as the trial of the facts, if he have found that the confession under this circumstances was in fact voluntary, we would be here today under the Fourteenth Amendment under writ of habeas corpus asking you to find it involuntary for the following reasons.

This is the uncontradicted testimony in this case, the uncontradicted testimony in this case when taken in the light of a long line of cases which this Court has already ruled on Brooks, Close and a number of other cases as follows.

What page is this Mr. Hennelly?

Mark M. Hennelly:

This is on page 3 of my brief.

During the last two months from July 2, 1954 until September 24, Stidham was confined in death row under substantially the same solitary confinement conditions he had previously undergone with the exception he stated that on death row he was not provided with a bunk but slept on a straw tick.

Excuse me.

I am sorry if the Court would turn to page 9, I apologize, page 9, the bottom of page 9.

Mark M. Hennelly:

Prior to giving a statement, Stidham had been confined in solitary confinement for 20 months.

This is the undisputed testimony to the solitary confinement had for the most part been on a cell measuring 5 feet x 7 feet with furnishings consisting of a wash basin, toilet, steel bunk and straw tick and an area infested with cockroaches and rodents and with ventilation so poor that Stidham passed out on several occasions.

And I might tell the Court that in the original trial he told the court that the conditions in that penitentiary were so bad that the FBI had come to investigate it and at the time that we tried the post conviction motion in front of Judge Godfrey he said it again, and during all of that time there has been no attempt made to contradict that testimony.

Warren E. Burger:

As was Judge — Justice Rehnquist suggested you did not cross-petition and we aren’t about to examine the factual basis at this time.

Seven courts now having dealt with these problems in one way or another, your case has got stand or fall on —

Mark M. Hennelly:

On Jackson v. Denno.

Warren E. Burger:

On Jackson-Denno.

Don’t you agree with that?

Mark M. Hennelly:

No, I don’t Your Honor but I have this poor guy for 18 years, so I naturally — I maybe a little bit prejudice but I don’t think so because I will tell you.

The distinguished Judge Gibson who is a fine judge and who made mention of the fact of that the courts are loaded down just as Mr. Romines made mention of the fact that the courts are loaded down.

I will tell you with — in no uncertain terms that if all we do is go back to a trial court and have Judge Godfrey or some other judge listen to this testimony and make the finding that this confession was given voluntarily, then I tell you that your courts will be burdened again because we will take it again through a whole series of steps because of the fact that this particular findings and the way this man was treated so shocks the conscience of anybody who wants to give a man a fair trial that will be back up here again in a couple of years with it and I submit to the Court that the best way to do it is to make that determination today with respect to whether or not the facts on this case constitute a violation of the Fourteenth Amendment and whether or not this confession was involuntary.

Yes.

Warren E. Burger:

Mr. Romines.

Kenneth M. Romines:

I think I told the Court that he was impressive trial lawyer, he is.

Two things I might mention, one on exactly what the Eighth Circuit did with the case.

They sent it back for a hearing in the state court under Sigler versus Parker.

I am not sure that was correct because they did not indicate what new facts there are to be determined.

It looks to me like there is sufficient record on both the original trial and the 27-26 to determine what all the facts were.

I am not convinced as is Mr. Hennelly, some judge perhaps even this court under Boulden versus Holman could not just sit and look at the facts.

I think clearly the Supreme Court of Missouri could take that cold record and on the authority under Boulden versus Holman and Jackson itself say this confession is voluntary.

Now as to what the Eighth Circuit said concerning the testimony, I believe that pages 770 and 771 of the appendix.

The court indicates that they are merely indulging themselves in Procunier versus Ashley which says that “if we were to believe Mr. Stidham’s facts, clearly he would be due some relief.”

They’ve not said they believe him, all they said is that for the purposes of testing whether the five or six allegations he make on their face would grant him relief.

If they were true, we will not apply Procunier, we will send this back, we will not say it was involuntary and we will also not say that it was voluntary.

William H. Rehnquist:

Well, they did also say, didn’t they that we have examined the transcripts and other relevant materials that found several of Stidham’s allegations have not been contradicted in the record.

Kenneth M. Romines:

Right.

William H. Rehnquist:

The majority of this.

Kenneth M. Romines:

They requested a letter from me sometime in early April specifically referring to the fact that they have not had anything to eat or drink and requested transcript references.

I sent what I thought were appropriate transcript references back to him and also some fairly inflammatory argument as to exactly what they wanted.

They were concerned about his testimonies to loss of weight.

Kenneth M. Romines:

He testified that and this is at the 27 and 26 now, he testifies that he lost 25 pounds during a six-day period.

Then he testified that he was not given anything to eat.

Other than that, they did not indicate in their letter for the most two things exactly what these other loose ends are and of course as we have indicated on a footnote you are going to have loose ends in every case that’s tried and certainly it is not the law that you have to present rebuttal testimony to every allegation a man makes before you can determine credibility, and that’s all that I think is basically involved there.

Judge Collinson was able to determine credibility with the same loose ends as were all the other courts.

Thurgood Marshall:

Well, what is there that would give you a right not to believe the facts he said about his cell in death row?

Kenneth M. Romines:

You mean what do I know or what does the record believe?

Thurgood Marshall:

What did the Judge know?

Kenneth M. Romines:

The judge at the case —

Thurgood Marshall:

Why would the judge not accept that as being true?

Kenneth M. Romines:

Okay, one of the officers at the 27 to 26 testified, all of the police officers are high and prominent —

Thurgood Marshall:

Oh!

Then it was contradictory?

Kenneth M. Romines:

Oh, yes, he said that the cell did not contain water but when we went there was a bunk that the man did not look like he was hungry.

He did not show any signs of beating as the doctor indicated he had subjective complaints but nothing objective other than a rugged scar between this finger and this finger of his ring hand.

Thurgood Marshall:

How long was he in solitary?

Kenneth M. Romines:

I believe that the record indicates that he had been there 20 months.

Thurgood Marshall:

20 months?

Kenneth M. Romines:

Right, before escape.

Thurgood Marshall:

And is there any evidence said there weren’t cockroaches in there?

Kenneth M. Romines:

No, there is nothing that indicates there are no cockroaches.

I mean no one was asked of silly question, did you see a cockroach instead of volunteers.

Thurgood Marshall:

Well, that’s on contradiction.

Kenneth M. Romines:

Right.

Thurgood Marshall:

And you have no reason to deny it?

Kenneth M. Romines:

Oh, if I were to bring it, I think the first question I would asks somebody if I could find somebody would be that question but there is nothing in the record that we have here today that indicates that there were no cockroaches, that is right.

William H. Rehnquist:

Well, is the rule in Missouri as it is elsewhere that the finder of fact is entitled to disbelieve an interested witness without the necessity of contradicting testimony if that is the conclusion of the trial of fact that he is not telling the truth?

Kenneth M. Romines:

That is the law, Your Honor.

Now the 20-month period that he was in maximum security.

He was in maximum security for an attempted escape.

Now the record indicates 20 months.

Kenneth M. Romines:

I have not done any independent research that indicates anything different.

Clearly he has been down there for a substantial period of time.

Where this differs from some of the cases involving Missouri, he was not in maximum security looking toward an eventual confession as was the other case.

He was there for a legitimate concern, escape.

In the first few words in the Judge Barrett opinion indicate this man’s name is Slick Stidham and he is not called Slick Stidham because he is straight.

They had even maximum security for an escape, he was not there looking toward anything that is involved in this particular case.

Potter Stewart:

(Inaudible) His claims were having this business of being lifted off the floor by his handcuff, isn’t that it?

Kenneth M. Romines:

That is right, behind his back.

The other prisoner’s business is just in the background?

Kenneth M. Romines:

Right.

The actual brutality and coercion and torture was the being lifted off by his handcuff behind him, is that it?

Kenneth M. Romines:

Right and being beaten with corporal bat.

Right.

Warren E. Burger:

Thank you Mr. Romines.

Mr. Hennelly, you took this case by Court appointment.

Mark M. Hennelly:

Yes, Your Honor.

Warren E. Burger:

Thank you for your assistance to your client and your assistance to the Court.

Mark M. Hennelly:

Thank you.

Warren E. Burger:

The case is submitted.