Thomas v. Arizona – Oral Argument – March 04, 1958

Media for Thomas v. Arizona

Audio Transcription for Oral Argument – March 05, 1958 in Thomas v. Arizona

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Earl Warren:

Number 88, Arthur Thomas, Petitioner, versus State of Arizona.

Mr. Morgan.

W. Edward Morgan:

Chief Justice, Members of the Court.

And this case comes before you arising originally in the State of Arizona in a capital case in which the defendant was found guilty of first degree murder and punishment was set to death.

Subsequent to that time, the case was appealed to the State Supreme Court of the State of Arizona.

The Supreme Court affirmed the conviction.

The defendant subsequently, filed an extraordinary motion for new trial which was denied by the lower court, appealed to the State Supreme Court.

The State Supreme Court affirmed the denial by the Superior Court which is our court of first instance.

And the petitioner herein then filed an application for writ of certiorari with the United States Supreme Court, which was not granted.

The petitioner then filed an application for writ of habeas corpus in the United States District Court in Phoenix, Arizona.

And he filed that in two forms, through his counsel.

And was counsel here, today.

The writ was heard on by — with argument and by examination of a — of the transcript of the original trial, eight volumes which had been and more forward into this Court.

The applications for writs of habeas corpus or any one but they were in two forms, were denied by Judge McCollough.

And from that denial, the petitioner obtained a certificate of probable cause from the judge of the District Court and appeal to the Ninth Circuit Court of Appeals, in which the — it was a hearing and the District Court was affirmed and from the affirmation by the Ninth Circuit court of the District Court’s of — denial of writ of habeas corpus, counsel filed a petition for an application for a writ of certiorari and it — it is that — it was on that base that we have before you today.

The — the fundamental — there are two aspects to the — to the application by the petitioner in this case.

And I think the most fundamental one, of course, goes to the admission into evidence in the original trial of a confession of the defendant and the petitioner herein.

The trial court had before it a number of confessions of the petitioner, Arthur Thomas.

Most of them, written, transcribed by secretaries and read and then signed by the petitioner — by the defendant, Arthur Thomas.

The Trial Court heard the — these confessions in an ancillary procedure, that is a procedural side of the — of the presence of the jury and predicated upon the original arrest and the method of the arrest of the defendant, held the confessions to be involuntary.

The circumstances of that arrest were in the nature of a putative lynching.

The testimony which was admitted by the State’s witnesses, including the Sheriff, was that the defendant was found about 30 or 40 miles north of Bisbee, in a small community, a cotton area which had recently been put into cotton production and he was a cotton chopper there and this was his occupation.

He lived with a common-law wife in a — in a housing provided by the owners or the managers of this — of this cotton acreage.

Felix Frankfurter:

You don’t need to or at least to get to (Inaudible) the cotton.

W. Edward Morgan:

It —

Felix Frankfurter:

(Inaudible)

W. Edward Morgan:

I don’t know when you were there, sir.

Its — during the war and just subsequent to the war, they started mining water in that area and pouring it on the ground and raising high grade cotton.

And this area was in — being cleared at this time and being put into production for a long staple Egyptian cotton.

And the defendant in this case, the petitioner here was a itinerant worker.

W. Edward Morgan:

He came from West Texas and was working in the fields, at this time, pulling out roots.

He was discovered, there’s been a — the homicide was discovered in the morning and the Sheriff went out and they searched and they found certain information which indicated that the party they were looking for was the petitioner in this case, Arthur Thomas.

And in the afternoon of the date of discovery of the homicide, they went out with a group of men anywhere from 10 to 11 to 12, maybe more, some on horseback, who collected together, local ranchers who knew the deceased who was a white woman, who ran a small market where her body was found.

And off in the desert, they discovered the defendant and the Sheriff came along and was discovered by one of the Sheriff’s deputies and he was handcuffed and bought out, the other men gathered about and the Sheriff was there with a representative with the State highway patrol, the young man by the name of Harry (Inaudible) and a Sergeant (Inaudible) from the Arizona State highway department, I believe, was there.

And at this point, after the defendant who had not put up any resistance and was handcuffed while he was roped about the neck and there is a conflict then of testimony as to what occurred as it’s shown by the record.

Charles E. Whittaker:

(Inaudible)

W. Edward Morgan:

No, sir.

No.

It was a rancher whom subsequently in the trial, refused to testify on the basis it might tend to incriminate him and claim the Fifth Amendment.

Earl Warren:

(Voice Overlap) officers there at the time?

W. Edward Morgan:

Yes, there were other officers there.

Earl Warren:

They’re over there?

W. Edward Morgan:

Yes, sir.

Yes, Your Honor.

The Sheriff was there.

The Sheriff testified at the trial that he took the rope off the defendant’s neck and said in effect to the man leave this — leave the defendant alone.

The — there was —

Charles E. Whittaker:

(Inaudible)

W. Edward Morgan:

Yes, sir.

And the defendant was on the ground handcuffed and the — there was testimony by Harry (Inaudible), the State highway patrolman which was introduced to the effect that the Sheriff said, “If you don’t tell the truth, I’ll let them go ahead with this.”

The Sheriff denied this under oath.

The Sheriff testified that he took the defendant — he took the rope off the defendant’s neck and immediately took him to his car.

There was other testimony in the record by other parties present that they — that the defendant was moved along for a considerable space with a rope around his neck and in the general directions of a tree.

This — but the uncontradicted portion of this is that the defendant was roped and roped around the neck.

The position of what the Sheriff did or didn’t do is in — is in dispute.

The defendant at that time indicated that a third party, a young boy by the name Ross Lee Cooper was a culpable party and that he was the culpable party.

And he was asked where the — where this Ross Lee Cooper was and he told the Sheriff where he was which only about three miles north in another area where they were clearing land and this other party was picking up routes.

The unofficial posse or group of men, some of them with — the Sheriff said that none of them had any guns, but others testified that they had a rifle and some of the men were on horseback with guns and some were on foot, moved off by horse and by foot and by car north about three miles to look for the other party, Ross Lee Cooper.

The uncontradicted testimony again is that the Ross Lee Cooper was roped and there are some question, as a argument as to terminology, as to whether he was lead across the open field as one would a well-trained dog or whether he was jerked across the field in the — towards where the defendant, Thomas, was standing with the Sheriff.

But it’s uncontradicted that he was roped and brought to where Thomas was at —

Earl Warren:

In the presence of Thomas, Thomas (Voice Overlap) —

W. Edward Morgan:

Within eyesight view of where Thomas was and then the uncontradicted testimony is that when Thomas — when Cooper came up to where Thomas was, both of them were handcuffed and they were again roped.

William J. Brennan, Jr.:

How large you say this unofficial posse was?

W. Edward Morgan:

It varies from somewhere about 10 upwards or maybe 15 or so.

It’s not a very — the area was going outside the record, if the Court please, it’s a — it’s a couple of houses in this area, that’s all.

That’s an inhabitant area.

It was just being — it was a desert which was that being broken into — into cotton lands.

There was a (Inaudible) there and this little market in which the deceased was killed.

Now, this group were men, two of them, we at least know by the record, were acquainted with the deceased who apparently was a very respected white woman who was running — a widow woman, who was a running a store there.

Her body had been viewed by some of them including the Sheriff and she was — had been burned and a pretty grizzly situation.

The testimony was, of course, that everyone acted calmly and cooly and it was not at least bit upset about it.

But the two men were roped and then there are some contradicts, some quibble of words as whether they would jerked to the ground or whether they stumbled over some of the high hillocks to the ground.

But be that as it may, they — were to the ground at least once with a rope around them and there were some dispute as to whether at each particular time the rope was around their necks or whether at one time, it was around part of their neck and part of their body or whether it was around their body.

These were all state witnesses as to — as to — and they contradicted themselves as to the position of the rope.

The — then according to the evidence, the — both defendants were taken north to Willcox to be purportedly brought before a — a magistrate and the evidence within the — that was the sole evidence that they were brought north to Willcox, maybe another 30 or 40 miles north to a small community, Willcox, to be brought before a Justice of Peace by the name of Chastain.

The — when they got to Willcox, the Justice of Peace or the magistrate, and a committee of magistrate was unavailable by a reason that he was out doing his other job of collecting children for the — as a school bus driver.

They did not wait for the — for the Justice Chastain to come back and to hold the arraignment.

They took the two defendants to the local mortuary where the body of the deceased had been removed earlier in the day and they were there introduced to the charred remains of the body.

William J. Brennan, Jr.:

That was the mortuary there nearby or —

W. Edward Morgan:

Yes, without Willcox, they have taken the — it was — the mortuary was in the same community in which they purportedly took the defendants for the purpose of bringing on before the magistrate in accordance with the Arizona mandate, Arizona statute which is similar to the one as I heard yesterday from Arkansas that the defendant shall be, forthwith brought before a committee magistrate, where there has been no warrant for arrest, but where there has been an arrest on basis of information.

Now — but they didn’t wait in — in Willcox according to the record for the return of the Justice Chastain after taking the man to the mortuary.

They took — drove the men back the 70 miles or so to Bisbee and they brought the defendants to the house of the County Attorney, Mr. Polley, who’s here today.

Who was at that time, recovering from a severe injury and was in a body cast and was at home.

And the defendants were brought to — to Mr. Polley’s home and they’re interrogated and it is at that place that the first statement was taken from the defendant which was not a confession but is a — exculpatory statement.

This as pointed out in the appellees and the brief of the respondent’s, this statement was never introduced in evidence, the one that’s in the appendix — in the appendix of the — of the respondent’s brief.

It was marked for identification, I believe.

As I point — I believe it’s pointed out in their brief.

The defendant, Arthur Thomas, the petitioner here was suffering from a hand wound and had been when he was discovered, he was discovered with his hand cut, his thumb, bottom of his thumb and several fingers were cut.

And after spending three hours — now, let’s see, is picked up early in the afternoon and the — about 9 o’clock or maybe 10, he finally was taken after three hours at the County Attorney’s office in the evening, County Attorney’s house.

He was then taken to the hospital for medical treatment.

W. Edward Morgan:

After going to the hospital in which the testimony was — was more of the fact that he was not taken after treatment so much as to find out what was wrong with him, so it could be introduced in evidence subsequently, at least that was testimony of the Sheriff’s office.

His hand was treated and he was taken back to the jail in — in Bisbee.

And there, a — a (Inaudible) of his clothes removed and the pair of shoes were taken off him.

And the next morning, he was taken by the — the following morning, near noontime, he was taken down to the — to the Justice of the Peace in Bisbee, Judge Frazier, at which time he was arraigned in the — in the sense that he was questioned as to whether or not, he wanted a preliminary hearing or not and being charged with — he was charged with the — with a homicide and asked whether or not he wants a preliminary hearing which he had a right under our statutes when he was charged with felony.

I came to the courtroom, barefooted according to the testimony and Judge Frazier exercised little judicial restraint and start acting in our position has then, as a — as an interrogator and as a part of the prosecutor’s office rather than as a judge.

And the defendant’s made statements there that he didn’t want to — that in either trial that he was guilty.

Charles E. Whittaker:

(Inaudible)

W. Edward Morgan:

Or at the exact words are —

William O. Douglas:

I don’t need any lawyer.

W. Edward Morgan:

I don’t need a —

William O. Douglas:

I killed the woman.

W. Edward Morgan:

He — he was then interrogated a little bit further by Judge Frazier who asked him, whether or not he used an axe.

The judge had some interest in this matter.

The examination of Judge Frazier is — it was interesting and that our first examination, we couldn’t — he answered that he had not advised the defendant of his constitutional rights and after a recess and opportunity to discuss the matter with counsel for the State, who came on the stand and — by the way, advised us that he had testified that he had told the defendant that — to have a lawyer and that he needn’t testify if he didn’t feel like it.

It is to that — that was the only — that was the only confession which was admitted into evidence.

Now, there was a confession.

The defendant walked out of Judge Frazier’s courtroom and this is a converted store.

And walked out of there with the — walked out there with the Sheriff barefooted and went to the house of the County Attorney again, Mr. Polley.

And there gave another statement which was reduced the right and that statement was held involuntary by the trial court and not admitted into evidence for the reason of the continuing fear, which the Court felt arose from the original punitive lynching.

William J. Brennan, Jr.:

But you said the intermediate when was admitted?

W. Edward Morgan:

Yes.

The one — the statement before Judge Frazier was admitted into evidence.

William J. Brennan, Jr.:

Is Judge Frazier is the trial judge?

W. Edward Morgan:

He was — he was — no, Judge Frazier was the Justice of Peace in which the defendant was brought before on the — to be charge with the crime and to discover whether and if — for bond to be set and to determine whether or not he desired a preliminary hearing.

William J. Brennan, Jr.:

Now, then there was a different trial judge, of course.

W. Edward Morgan:

Yes, the trial judge is the Superior Court judge.

William J. Brennan, Jr.:

In a different place?

W. Edward Morgan:

Yes.

It’s in a formal courthouse (Voice Overlap) —

William J. Brennan, Jr.:

And he excluded the two statements in the prosecutors.

W. Edward Morgan:

Yes.

William J. Brennan, Jr.:

Was that the present — but admitted this one taken before the local magistrate?

W. Edward Morgan:

I do with three statements on — all together of the — that were obtained by the prosecution.

William J. Brennan, Jr.:

Now, were they all excluded?

W. Edward Morgan:

They were all excluded.

William J. Brennan, Jr.:

The only one admitted was that taken before the local magistrate?

W. Edward Morgan:

Yes.

Tom C. Clark:

Well, that statement is not written.

That was just oral testimony.

W. Edward Morgan:

Just an oral — an oral statement.

Yes, Your Honor.

Felix Frankfurter:

How much time elapsed between his apprehension and these oral (Inaudible)

W. Edward Morgan:

Say somewhere 2 — 3 o’clock in the afternoon of the preceding day to noon of the following day.

Felix Frankfurter:

What does the record show as to the legality of a mob or a question he approves to be, that’s between the approved 2 o’clock of the rest and you (Voice Overlap) —

W. Edward Morgan:

It was —

Felix Frankfurter:

Disclosure (Inaudible)

W. Edward Morgan:

There was no mob — there was no mob after the time of the arrest out in the — out in the farm area.

There was no mob.

Felix Frankfurter:

So that when you arrest, there are two —

W. Edward Morgan:

Two or three, somewhere in that out — in time in the afternoon.

Felix Frankfurter:

You mean by — by car?

W. Edward Morgan:

He was taken by car —

Felix Frankfurter:

If he was just (Inaudible)

W. Edward Morgan:

Oh, Willcox — when he was taken north and then he was brought south again, all 30 miles or so.

Felix Frankfurter:

And during — during his transportation, Justice Frazier supports, where was the last at night.

W. Edward Morgan:

In the county jail in Bisbee.

Felix Frankfurter:

In Bisbee?

W. Edward Morgan:

Yes.

Felix Frankfurter:

But there during — when — when he was allowed to carry there a crowd?

W. Edward Morgan:

No.

Felix Frankfurter:

Nothing in the record?

W. Edward Morgan:

No.

Felix Frankfurter:

During the night, everything was peaceful?

W. Edward Morgan:

Yes, Your Honor.

Felix Frankfurter:

When he was taken from Bisbee prison to county jail last night, is there a mob that morning?

W. Edward Morgan:

No.

Felix Frankfurter:

No — that no — nothing in the record that he was denied food et cetera?

W. Edward Morgan:

No.

Felix Frankfurter:

He was then taken to Judge Frazier?

W. Edward Morgan:

Yes.

Felix Frankfurter:

But you say he was a (Inaudible) store

W. Edward Morgan:

It was a — not in the same —

Felix Frankfurter:

(Voice Overlap) —

W. Edward Morgan:

No.

He walked in accompanied by the Sheriff.

Therefore, they just in with the Sheriff and one other deputy —

Felix Frankfurter:

No suggestion of (Inaudible) put on in violence.

W. Edward Morgan:

No, none, whatsoever.

Felix Frankfurter:

(Inaudible)

W. Edward Morgan:

No, sir.

Felix Frankfurter:

And — and inside — inside the — this improvised courtroom was there milling of people?

W. Edward Morgan:

No.

Felix Frankfurter:

And none after?

W. Edward Morgan:

No.

Felix Frankfurter:

So that whatever he said to Judge Frazier at least didn’t have those compulsive things.

It didn’t have the pressure of (Voice Overlap) —

W. Edward Morgan:

It didn’t have any — I don’t want to tackle with words.

Didn’t have any immediate pressure, if there was any pressure, it was the remembrance of what had occurred out in the — in the field.

William J. Brennan, Jr.:

Well, that’s your position?

W. Edward Morgan:

Yes.

W. Edward Morgan:

In fact, there was no present —

William J. Brennan, Jr.:

No.

But — isn’t that your position —

W. Edward Morgan:

Yes.

William J. Brennan, Jr.:

— that the inadmissibility of this profession.

W. Edward Morgan:

Yes.

William J. Brennan, Jr.:

It was extorted because he could not forget that they tried to sting him up.

W. Edward Morgan:

That’s right, but there was no immediate pressure, in all honesty if your answer.

Felix Frankfurter:

And that found — that found (Inaudible) his apprehension.

How soon is that together, the evidence show (Inaudible)

W. Edward Morgan:

I have no idea from the record itself, no.

The defendant was acquainted —

Felix Frankfurter:

Any reference from the United States, any — you indicate that the judge’s question whether or not, for the judgment is there argument.

Was there any — any threatening remarks and no such — no such reference, remember what happened yesterday?

W. Edward Morgan:

Yes, I was (Inaudible)

Felix Frankfurter:

Pardon me?

W. Edward Morgan:

None, none whatsoever.

No.

The trial court followed the thinking of the — of the counsel, myself, it was counsel in the — in the original trial that have been counsel all the way through.

Felix Frankfurter:

How soon after he got to Judge Frazier, after per curiam was (Inaudible)

W. Edward Morgan:

About — about two days later.

Felix Frankfurter:

Two days later.

W. Edward Morgan:

It already waives his preliminary so the —

Felix Frankfurter:

During those few days with the — with the — the record shows there’s a mob of any kind?

W. Edward Morgan:

No mob.

Felix Frankfurter:

(Inaudible)

W. Edward Morgan:

No mob.

The — the record does not show but I — I went down to make an investigation [Laughs] and if may go off the record, there was no mob.

Felix Frankfurter:

Local paper which cited from the record shows —

W. Edward Morgan:

As far as the record shows, no.

Felix Frankfurter:

(Inaudible)

W. Edward Morgan:

That’s — it was hard for me to answer.

I would think, yes, but that would depend on how you approached it in — Your Honor thinking and in terms of — of a —

Felix Frankfurter:

(Inaudible) in pictures?

W. Edward Morgan:

No — no.

Felix Frankfurter:

Perhaps, the two are more stronger about this (Voice Overlap) —

W. Edward Morgan:

No.

Where do we find the two confessions or written confessions that were excluded by the judge?

Where are they printed?

W. Edward Morgan:

They are not printed in your transcript.

They are in — you have —

In the typewritten record.

W. Edward Morgan:

Yes.

There is in there.

It should be the guide, all the confessions.

If —

William J. Brennan, Jr.:

One last question.

Was there any test — any testimony of the defendant as demeanor in the presence of Judge Frazier?

W. Edward Morgan:

No.

William J. Brennan, Jr.:

In connection with the admission of the confession?

W. Edward Morgan:

Yes.

Judge Frazier, I think, testified as to his demeanor.

William J. Brennan, Jr.:

That he was at ease and that it appear —

W. Edward Morgan:

Yes.

William J. Brennan, Jr.:

They had no protest appear —

W. Edward Morgan:

No.

They don’t protest.

The —

Earl Warren:

We’ll recess now.