Thomas v. Arizona

PETITIONER:Thomas
RESPONDENT:Arizona
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 88
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 356 US 390 (1958)
ARGUED: Mar 04, 1958 / Mar 05, 1958
DECIDED: May 19, 1958

Facts of the case

Question

  • Oral Argument – March 04, 1958
  • Audio Transcription for Oral Argument – March 04, 1958 in Thomas v. Arizona

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

    W. Edward Morgan:

    — I think an answer to the question of Mr. Justice Frankfurter yesterday regarding the attitude of the counsel — the publicity regarding the arrest of the defendant in this case.I think it might be pertinent to remark that counsel at the time, felt it was so flamboyant and tending to bring the defendants into hate in this community that a motion for change of venue was — was brought by counsel at the time the trial was denied.

    The — I think it should be pointed out also in addition to the confessions that the arrest took place on March 17th and the last confession obtained from the defendant was on April 1st, which was in the — while the defendant was still in the Cochise County jail at Bisbee, and that this confession was also ruled by the trial judge as being inadmissible — as being involuntary by reason of the original incidents of his arrest and this was a considerable time.

    In a connection with the —

    Felix Frankfurter:

    May I — may I stop —

    W. Edward Morgan:

    Excuse me, sir.

    Felix Frankfurter:

    — you long enough to — have you elucidate this last statement, were those — you said they were excluded because of the incidents connected with the time of his arrest.

    W. Edward Morgan:

    Yes.

    Felix Frankfurter:

    I don’t quite understand that.

    W. Edward Morgan:

    The — the roping —

    Felix Frankfurter:

    Well —

    W. Edward Morgan:

    — if the Court please.

    Felix Frankfurter:

    — if later confessions — these were later, were they not?

    W. Edward Morgan:

    Yes.

    Felix Frankfurter:

    If later confessions were excluded by the trial court because of the continuing, disturbing, undermining influence of the incident at the time of his arrest, how did he differentiate admitting to the judge orally, which was earlier in time than the confessions which he excluded?

    W. Edward Morgan:

    His distinction set forth in his — we ask the trial judge that a direct question, we ask him why he did this.

    He said I — if counsel wants to know the answer, the answer is that I feel that he was in the — he was in the courtroom and he was in the presence of the — of the man who had saved him, that is the Sheriff Jack Howard who had saved him from this — from the posse.

    There is, I think, maybe a more fundamental reason and that is that the trial judge did not have the testimony of the state highway patrolman Harry Selchow at the time he made his ruling on the — at the time of the ancillary hearing.

    The — that testimony of the state —

    Felix Frankfurter:

    Ancillary hearing was a hearing —

    W. Edward Morgan:

    Outside of the (Voice Overlap) —

    Felix Frankfurter:

    — in the (Voice Overlap) —

    W. Edward Morgan:

    — of the — of the jury.

    Felix Frankfurter:

    Yes.

    But wasn’t the matter again put before the jury?

    W. Edward Morgan:

    Yes, it was.

    And at that time, for the first time, who was given the testimony of the state highway patrolman Harry Selchow.

    We had released the witness Harry Selchow to give testimony in a murder case in Tucson in the federal court upon three hours notice to return.

    And in the proceedings aside from the jury, we came to a point very rapidly, very unexpectedly, the judge ruled on the confessions and we didn’t have an opportunity to bring back Sergeant Selchow nor did we know what his testimony was going to be.

    Felix Frankfurter:

    How much time elapsed between the ruling of the court in chambers and the submission of the evidence to the jury?

    W. Edward Morgan:

    Oh, about two or three days.

    Felix Frankfurter:

    Did you — did —

    W. Edward Morgan:

    Two days, at least, before we got to the point of our putting on our case.

    Felix Frankfurter:

    Well, did this — was this witness then available?

    W. Edward Morgan:

    Yes, but we didn’t know what he was testifying.

    We took a chance when we put him on the stand.We did not know what he would testify to.

    Felix Frankfurter:

    But after he testified, the matter was then before the Court.

    W. Edward Morgan:

    The matter was already before the jury.[Laughs]

    Felix Frankfurter:

    Why?

    W. Edward Morgan:

    The jury had heard what had happened.

    The court had admitted the confession to the jury.

    Felix Frankfurter:

    What I’m — my — my inquiry is why, if you deemed that so relevant, it wouldn’t have changed the court’s judgment on the validity of the admission —

    W. Edward Morgan:

    We ask —

    Felix Frankfurter:

    — and that all of weaknesses of telling a jury not to tend what they heard, at least, he could’ve made that correction.

    W. Edward Morgan:

    It could have I think he was in error or not.

    Felix Frankfurter:

    Well, I can too?

    (Inaudible)

    W. Edward Morgan:

    Yes, we — we made a motion for mistrial.

    William J. Brennan, Jr.:

    After the officer (Inaudible)

    W. Edward Morgan:

    And we, of course, made a motion for a new trail after it even been submitted to the jury.

    William J. Brennan, Jr.:

    What was that the officer testified?

    W. Edward Morgan:

    The officer testified that the Sheriff — that the Sheriff stated to — that the Sheriff said to the defendant, Arthur Thomas, at the time of his arrest, while a rope was around his neck, yet the exact words (Inaudible)

    Is that in the start in record?

    W. Edward Morgan:

    Yes, it’s in your printed record.

    William J. Brennan, Jr.:

    Does the Sheriff suppose would save?

    W. Edward Morgan:

    According to the Sheriff —

    William J. Brennan, Jr.:

    Well, I know, but you said earlier that they were present before the magistrate, I think, you said.

    W. Edward Morgan:

    Yes.

    William J. Brennan, Jr.:

    The Sheriff who had saved —

    W. Edward Morgan:

    Well, I — I —

    William J. Brennan, Jr.:

    (Voice Overlap) —

    W. Edward Morgan:

    — said the Sheriff quotes who claim to have saved the defendant.

    His words were to the affect of, “If you don’t tell the truth, I will let them go ahead.

    I will let them go ahead with this thing.”

    The Sheriff’s words, “Sheriff, according to Officer Selchow who testified before the jury and his words were the — at the time that the — Arthur Thomas was first arrested, his words were to the effect, “If you don’t tell the — if you don’t go ahead and tell them, I will let them go ahead with this.”

    What page is that on?

    W. Edward Morgan:

    Pardon me.

    If I can — and I admit he was — excuse me.

    You see it’s — it’s in here appended to my brief, I think maybe appended to my brief.

    (Inaudible) in your brief.

    W. Edward Morgan:

    Yes.

    Felix Frankfurter:

    Mr. Morgan, this — this matter, it seems to me — to me, at least, so crucial that I’d like to ask, if I may, one or two questions so that when the Attorney General put the State’s case, you will be able to deal with it.

    You will deal with it.

    Let’s see if I understand this.

    There was an oral disclosure by Thomas in this — in this informal courthouse.

    W. Edward Morgan:

    Yes, sir.

    Felix Frankfurter:

    And what he there said was admitted.

    W. Edward Morgan:

    Yes.

    Felix Frankfurter:

    And that admission was first in chambers before the judge and the preliminary I think, and then the matter was right before the jury and left for the jury.

    W. Edward Morgan:

    Yes, sir.

    Felix Frankfurter:

    There were subsequently two so-called confessions, is that right?

    W. Edward Morgan:

    At least two.

    Felix Frankfurter:

    At least two.

    W. Edward Morgan:

    Yes.

    Felix Frankfurter:

    Both of which were excluded by the trial judge on the ground, as I understand it, that the — that the subverting, the coercing effect of his experience at the time of arrest continued and operated to make what his — that make his confession involuntary, is that right?

    W. Edward Morgan:

    Yes, Your Honor.

    Felix Frankfurter:

    That’s your position.

    Now, if you’ll be good enough to tell me how much time elapsed between the arrest, the time of the arrest and the two confessions that were excluded?

    W. Edward Morgan:

    Well, one in the two that were excluded, the arrest was on the 17th in the afternoon.

    The first confession which was excluded was taken in the following afternoon on the — around 1 o’clock of the following afternoon at the County Attorney’s home, that was about 20 minutes after the oral statement.

    Felix Frankfurter:

    In the meantime, you talked to the local judge?

    W. Edward Morgan:

    Yes, he talked to the local —

    Felix Frankfurter:

    In the morning.

    W. Edward Morgan:

    In the morning around 12 o’clock.

    Felix Frankfurter:

    And then he went to the — to the prosecutor (Voice Overlap) —

    W. Edward Morgan:

    Within about 20 minutes.

    Felix Frankfurter:

    Yes.

    And that was excluded.

    W. Edward Morgan:

    That was excluded.

    Felix Frankfurter:

    Now, when was the second?

    W. Edward Morgan:

    On April 1st, approximately April 1st was a — there was a confession which had been previously transcribed and was — to which was taken up to the defendant when he was in jail by Mr. Percy Boudin.

    And he was asked to read it and initial it, and this was after counsel had been appointed in the case.

    Felix Frankfurter:

    Well, April was — when was —

    W. Edward Morgan:

    This is March.

    Felix Frankfurter:

    (Inaudible) 18 to what month, I (Voice Overlap) —

    W. Edward Morgan:

    March, sir.

    Felix Frankfurter:

    Pardon.

    March?

    W. Edward Morgan:

    March.

    Felix Frankfurter:

    So that this was nearly two weeks —

    W. Edward Morgan:

    15 days —

    Felix Frankfurter:

    15 days.

    W. Edward Morgan:

    — two weeks, 15 days.

    Felix Frankfurter:

    Yes.

    And one final question, as I understand it, the court was explicit in excluding the March 18 and the April 1st confession on the ground that the — that the — what shall I call it, the destructive influence of the circumstances of his arrest continued their invalidating cause of those two dates, is that right?

    W. Edward Morgan:

    Yes, sir.

    Yes, Your Honor, Mr. Justice Frankfurter.

    Felix Frankfurter:

    I’m sure the Attorney General will deal with that.

    W. Edward Morgan:

    There are — there are two things further on that, of course, the — there is testimony and there were pictures introduced showing the — the rope burns on both the necks of the other party, Rose Lee Cooper, the other boy who was roped.

    And there were pictures introduced of the rope burns on the neck of defendant, Arthur Thomas, showing the large welts from where the rope which according to some of the Sheriff’s officers had been around their neck, left the mark around his neck.

    In addition, a — there was testimony that is late as four days after the time of his arrest and certainly after the time of his appearance in the Justice Court, he was still suffering pain from the cuts and wounds in his hands, in his hand.

    Charles E. Whittaker:

    You told us yesterday, I believe, how that happened, did you, Mr. Morgan, this injury in his hand would have anything to do with the — with the case?

    W. Edward Morgan:

    Yes, very definitely.

    It was evidence of his guilts in the case.

    Charles E. Whittaker:

    Because of what?

    W. Edward Morgan:

    Because of the fact that a — the way that the hand was cut mimicked the cuts that were found in a bloody glove which was found on the premises of the defendant.

    Earl Warren:

    Now, may I — I am not clearly just what was — were said by this officer who was called.

    Now, is this the testimony you refer to on — on the top of — of page — well, the bottom of page 24, by Mr. Morgan.

    Question, Mr. Howard came up and what did he do, if anything?

    Now Mr. Howard, is who, the Sheriff?

    W. Edward Morgan:

    Yes, sir.

    Earl Warren:

    Answer, he knelt down beside Mr. Thomas and he talked to him and asked him why he had killed the woman.

    He said, “No I didn’t, the other boy did.”

    Mr. Howard said, “We have your blood from the store, we have your shoes and we have tracked you from the store, then what happened, if anything.”

    Answer, “Then Mr. Howard said, you are under arrest and Mr. Thomas stood up and I put the handcuffs on him.”

    Question, “And then what happened, if anything?

    Somewhere from behind me a rope was thrown over Mr. Thomas’ neck and he was pulled back into me and we stumbled a little bit and I had to hold of the rope and then — then Mr. Howard came around me and I said, “Jack this is no way to handle this.”

    Mr. Howard went on to the rope and took hold of it, at that point he says, “Will you tell the truth or I will let them go ahead and do this or I’ll go ahead and let them use this?”

    That is the —

    W. Edward Morgan:

    That is the pertinent testimony.

    Earl Warren:

    And that was the Sheriff that he was talking about.

    W. Edward Morgan:

    Yes.

    Earl Warren:

    And he was a highway patrolman.

    He was a highway patrolman, the man who gave a testimony.

    W. Edward Morgan:

    That’s right, Your Honor, Mr. Chief Justice.

    Earl Warren:

    And that — that witness you say, you were deprived of — of using at the side hearing before the — before the Court because he was excused to — to be a witness at — at another case in the federal court with instructions to came — come back.

    W. Edward Morgan:

    Yes (Voice Overlap) —

    Earl Warren:

    And he came back a couple of hours after the judge made his ruling.

    W. Edward Morgan:

    I presume he came back the next day, if the Court please.

    Earl Warren:

    Well, the — yes (Voice Overlap) —

    W. Edward Morgan:

    And we didn’t recognize that — we couldn’t make an offer of proof because of we — as we laid before a Federal District Court and as we have laid before this Court.

    W. Edward Morgan:

    Officer Selchow refused upon two occasions, upon my original investigation in the case and subsequently, he refused at the time of our release of him.

    As a witness, he was called — he was put on the information as a state’s witness.

    And we discussed it with him at that time and then he refused to tell us what his testimony would be.

    Said, “I am not at liberty to tell you what I will testify to.”

    And when we called Officer Selchow as a rebuttal witness, we did it as an act of desperation and as a guess — as to what he would testify.

    We did not know what his testimony was going to be.

    Earl Warren:

    Is that in the record that — that portion of him — that portion of him refusing to tell you what (Voice Overlap) —

    W. Edward Morgan:

    (Voice Overlap) it’s not in the record, it is not in the record.

    It is not in the record at any place that I know of.

    The — it was —

    Earl Warren:

    On your motion for a new trial or on your motion for a mistrial was that brought out?

    W. Edward Morgan:

    No, it was not, we did not bring it out either in the state courts because, be off the record, if I — if I say why [Laughs] —

    Earl Warren:

    Well, you didn’t.

    That’s (Inaudible)

    W. Edward Morgan:

    We did not do it.

    Earl Warren:

    All right, you may proceed Mr. — all right, you finished your —

    W. Edward Morgan:

    I’ve used my time up —

    Earl Warren:

    Yes.

    W. Edward Morgan:

    I had the red light.

    Earl Warren:

    Yes, all — all right.

    Mr. — no, he’s got some more time.

    Mr. Polley.

    Wesley E. Polley:

    May it please the Court.

    At the outset, I would like to say on behalf on the State of Arizona that the State is just as interested as is this Court in seeing that its criminal processes and procedures aren’t designed in such a way as to deny due process nor administered is such as a way as to deny due process to any person no matter who that person maybe.

    Now, this case depends to a great extent, upon facts and facts alone.

    It is here on habeas corpus.

    We have shown in our brief why we believe that petitioner wasn’t entitled to a hearing before the District Court.

    We will not go into that on this argument.

    We further believe under the rules of this Court that the —

    Charles E. Whittaker:

    (Inaudible)

    Wesley E. Polley:

    Yes, Your Honor.

    Charles E. Whittaker:

    Of — of some kind of a hearing before the District Court.

    Wesley E. Polley:

    There was a petition filed in the State of Arizona.

    It was invited to file opposition to that petition.

    There was no testimony taken.

    It was simply — we might say battle of affidavits.

    Charles E. Whittaker:

    When you filed a transcript of the testimony.

    Wesley E. Polley:

    The transcript —

    Charles E. Whittaker:

    They filed the transcript.

    Wesley E. Polley:

    The — the State filed a response and attached to that response was an affidavit of the County Attorney.

    The admission against interest which was taken by the County Attorney, all of the transcripts of the testimony and of the lower court that is the Superior Court, all — all of the briefs in the Supreme Court of Arizona on both sides.

    Now, under the rulings of this Court, I believe that the Court will examine the evidence in this light.

    It will not review disputed questions of fact and substitute its own decision thereon for that of the state jury and the state courts.

    (2) This Court will review the undisputed questions of — the undisputed facts and will apply its own independent legal judgment to those facts and the law as which defines due process.

    Now, on that basis I will attempt to state the undisputed facts to the Court and just a fair as way as I can possibly do.

    I will leave out nothing which might be unfavorable to the State and I will leave out nothing which would be favorable to the State.

    I will state nothing that is not supported by the record.

    First, the petitioner, Arthur Thomas, is a Negro, 27 years old, male, a very — a quite large man, over six feet tall.

    He is of normal intelligence.

    His education progressed into high school.

    He served in the United States Navy, but it doesn’t appear how many years although we know that he was there in 1942, when he was in the brig and he was there in 1946 when he was in the brig.

    He had been in jail as a juvenile.

    He had been in prison twice on felonies.

    Earl Warren:

    Convicted you mean?

    Wesley E. Polley:

    Convicted and actually served time.

    One — or the last time, I believe, was for a felony in the State of Texas.

    He received a five-year sentence and serve 14 months of it.

    Now, when he was arrested, there is no doubt that a rope was thrown around his neck by two irresponsible people who were no part of the official Sheriff’s posse.

    The State of Arizona, I will confess, is not proud of that fact.

    However, we do not believe that that fact should be exaggerated and over-emphasized and magnetized to where the entire picture is clearly thrown out of focus.

    Wesley E. Polley:

    The undisputed evidence is that the Sheriff, himself, did take the rope off in each instance.

    Now, it is the claim of the petitioner that the confession which was actually introduced in evidence was the product of the fear created by the throwing of this rope.

    We would point out to the Court that the time this rope was thrown, at the time that the controverted facts state, the Sheriff said, “If you don’t tell the truth I will let them use this.”

    That it wasn’t — it didn’t create such a furious to cause him to confess because he didn’t confess.

    He said that he didn’t do it, but he knew he did and he pointed out a 17 year old Negro boy as the person who had actually committed the crime.

    Felix Frankfurter:

    Did you say his statement — purported statement of the Sheriff is controverted?

    Wesley E. Polley:

    It is controverted, if the Court please, as to whether or not the Sheriff made the statement is controverted by every witness who testified — who was there with the exception of the highway patrolman.

    In other words, it’s the word of highway patrolman against all of these other people.

    Where does the costoversion appear?

    Wesley E. Polley:

    In — in the record, if the Court please.

    I mean in the typewritten record or is it in —

    Wesley E. Polley:

    In the typewritten record, if the Court please.

    You have to go to that.

    Wesley E. Polley:

    Yes.

    (Voice Overlap) very little of this record here.

    Wesley E. Polley:

    That — that is true, if the Court please.

    That in order to properly present this question, we decided that if we made it a part of the written record, we would have to print practically the entire eight volumes, because all of these circumstances in one way or another have a bearing upon those questions.

    To facilitate matters, could you leave with the clerk after argument, if the Chief Justice approves, just the notations of pages on the record where this stuff is controverted.

    Wesley E. Polley:

    We believe, Your Honor, that that —

    Or the — isn’t the briefs?

    Wesley E. Polley:

    — depends on the briefs.

    Is it — all right.

    Felix Frankfurter:

    Is the — the printed record was that by agreement of the two sides or that you determined this?

    Your Honor, I can’t answer that.

    I am simply a Special Assistant of the Attorney General, and we think to argue this case, that — that I got into it after the — the record was formulated.

    But on this —

    Earl Warren:

    May I ask, is Mr. Morgan the assigned counsel, was he assigned by the court to represent him, you represent him all the way through as assigned counsel?

    Wesley E. Polley:

    Yes, Your Honor.

    Earl Warren:

    Well —

    Charles E. Whittaker:

    What is the answer —

    Earl Warren:

    What — what was the answer, Mr. Morgan?

    W. Edward Morgan:

    Well I have — I was assigned in the state court, but not in any of the fields of the federal court.

    Earl Warren:

    Yes.

    But by reason as assignment, you carried it all the way through, is that what I mean?

    W. Edward Morgan:

    Yes, sir.

    Earl Warren:

    Yes.

    Hugo L. Black:

    Mr. Polley, did you say you got into this case after the trial?

    Wesley E. Polley:

    No, Your Honor.

    I was the County Attorney who will — involved in the case, I tried it the Superior Court.

    But I did not choose to run for County Attorney that I went into private practice one year ago, but I have been retained by the State with the sole purpose of arguing this case, but I didn’t.

    I participated in writing the brief, but I didn’t to get into the case at the time that the — the — arrangement made for the record.

    Felix Frankfurter:

    Could we — could we — in the interest of the entire (Inaudible) knowing that Mr. Morgan has been retained after the case got into the federal courts, or did he just carried on the litigation now, out of interest, which is it?

    Wesley E. Polley:

    Out of interest, sir.

    Felix Frankfurter:

    All right.

    That’s what I’m looking —

    Hugo L. Black:

    But Mr. Polley on the — on your brief that appears in the appendix, the statement of Arthur Thomas taken, was that in your home?

    Wesley E. Polley:

    That was taken in my home.

    Yes, Your Honor.

    Hugo L. Black:

    Is that the one that was excluded?

    Wesley E. Polley:

    That one was never offered.

    Hugo L. Black:

    That one was not offered.

    Wesley E. Polley:

    Yes.

    Hugo L. Black:

    What was the purpose in putting it here as an appendix?

    Wesley E. Polley:

    The purpose in putting it here, if the Court please, was that it was made a part of the record before the District Court.

    It was attached to my affidavit.

    Hugo L. Black:

    The federal court.

    Wesley E. Polley:

    The Federal District Court.

    Yes, sir.

    To show that there couldn’t have been too much fear in the heart and mind of Arthur Thomas at the time that he made the statement before Judge Frazier, because he had absolutely denied any guilt to me, deny it before.

    Hugo L. Black:

    And on the 17th (Voice Overlap) —

    Wesley E. Polley:

    It was on the 17th.

    Hugo L. Black:

    And was on the 18th that he made the statement to the judge?

    Wesley E. Polley:

    Yes, Your Honor.

    Hugo L. Black:

    That’s the one which in controverted —

    Wesley E. Polley:

    Yes.

    Hugo L. Black:

    — introduced.

    Wesley E. Polley:

    Now, to get —

    Earl Warren:

    Now, Mr. Polley, may I ask another and just to get oriented.

    I’d like to get the order of this proof about what happened at the time of the arrest.

    Now, I like to know how this testimony was controverted.

    Did the — did the witnesses for the State just testify what happened and then — and then this officer for — of the highway patrol came along and testified to something that no one had ever testified about before without any rebuttal to that?

    Did they leave the stand or did — did the Sheriff thereafter, take the stand and say that, “I did not, I did not say to this man, “Will you tell the truth or I will let them go ahead and do this?”

    Or did he just let his testimony stand as to what he generally did at the time of the arrest.

    Wesley E. Polley:

    I will explain that, if the Court please in this way.

    That in the auxiliary hearing which was the one held outside the presence of the jury for the purpose of — of the judge making up his mind whether it should be admitted or not, the State put on all of the officers who were present at that time in order to lay the foundation.

    Mr. Morgan cross-examined those officers.

    Earl Warren:

    You left one off.

    Wesley E. Polley:

    Who was that?

    Earl Warren:

    That highway patrolman.

    Wesley E. Polley:

    That is correct.

    Yes, Your Honor.

    Earl Warren:

    Well then, you didn’t put them all.

    Wesley E. Polley:

    All — all of the county officers, I will correct myself.

    Felix Frankfurter:

    All of the, what?

    Earl Warren:

    All of the county officers.

    Wesley E. Polley:

    Yes, sir.

    We also put on a — probably the only unbiased witness who was there, that was (Inaudible) Byrd, a storekeeper who was there at all of the time that these ropings were supposed to have happened.

    He testified that he was there.

    He was there under circumstances were he could have heard everything that was said that he didn’t hear Sheriff Howard say anything like that.

    He didn’t hear any other person to say anything like that.

    Wesley E. Polley:

    The Deputy Sheriffs who were there, testified to exactly the same thing.

    Charles E. Whittaker:

    No, wait a minute, I’m getting lost.

    You say that was in the hearing before the Court, at Chambers?

    Wesley E. Polley:

    Yes, Your Honor.

    Charles E. Whittaker:

    Well how had there been an issue about what Officer Selchow was going to say if he hadn’t testified?

    At that time, Officer Selchow had not had testified, had he?

    Wesley E. Polley:

    No, Your Honor.

    Charles E. Whittaker:

    Well, then, how could there have been rebuttal testimony offered before the court in chambers on the matter that Selchow later testified about.

    I don’t understand this argument.

    Wesley E. Polley:

    There was no doubt about the fact that this issue was going to be raised.

    The court —

    Charles E. Whittaker:

    Well you anticipated it.

    Wesley E. Polley:

    Yes, Your Honor.

    Charles E. Whittaker:

    That wasn’t —

    Wesley E. Polley:

    That it — in fact, to the — there —

    Earl Warren:

    You anticipated that this officer was going to testify the way he did?

    Wesley E. Polley:

    No, Your Honor.

    Earl Warren:

    Did you know that at the time?

    Wesley E. Polley:

    No.

    We anticipated that this question was going to be raised.

    Felix Frankfurter:

    What is this question when you say, this question —

    Wesley E. Polley:

    The question about —

    Felix Frankfurter:

    Would you please identify the question.

    Wesley E. Polley:

    The — the question as to the involuntary nature of the —

    Felix Frankfurter:

    The general issue.

    Wesley E. Polley:

    Yes.

    And that is why the foundation was being laid in respect to all of the confessions not this one, especially.

    Hugo L. Black:

    Is that the practice in Arizona to raise — to — when you offer a confession, before you offer confessions to produce proof to show a prima facie case of voluntariness?

    Wesley E. Polley:

    Under the law of Arizona, if the Court please, it is left to the discretion of the court.

    He can hear that preliminary evidence in the absence of the jury or he can go ahead and require that the foundation be laid in the presence of the jury.

    Wesley E. Polley:

    In this case, the court, in an abundance of caution, required the State to lay its foundation in the absence of the jury, first.

    Felix Frankfurter:

    Did you — you made an offer of proof.

    You said, Your Honor we’re indicated — you’re going to introduce the confession.

    Is that it?

    Wesley E. Polley:

    That’s correct, yes.

    Felix Frankfurter:

    And then — and then the other side did something or didn’t something and the Court of its own motion says, “He better adjourn to my chambers.

    We will see with its vountariness.”

    Wesley E. Polley:

    I think that it’s fair to say that everybody agreed that there should be a preliminary hearing.

    But —

    Hugo L. Black:

    You made one statement of it.

    You said all that officers testified in the county office, did the Sheriff testified?

    Wesley E. Polley:

    The Sheriff testified.

    I believe two Deputy Sheriffs, who were there in that particular time testified and this storekeeper testified.

    Hugo L. Black:

    And what did the Sheriff say about it?

    Wesley E. Polley:

    The Sheriff said that he did not say any such thing and that he —

    Felix Frankfurter:

    Well, this it — was that a reply to a question for Mr. Morgan.

    Wesley E. Polley:

    It was —

    Felix Frankfurter:

    How did he come to deny, if there is no evidence as yet that he had said it?

    Wesley E. Polley:

    Mr. Morgan brought the matter out in the cross-examination of each one of these state witnesses.

    Charles E. Whittaker:

    Well, you say brought the matter out, you mean he’s right into it?

    Wesley E. Polley:

    Yes, Your Honor.

    So is the record stands before this Court, the patrolman testified that the Sheriff made this threat.

    The other witnesses testified, that is the other three or four who testified, that Sheriff Howard, himself, did not make the threat and further that no one made a threat in their presence.

    Earl Warren:

    That testimony all came though before the highway patrolman testified?

    Wesley E. Polley:

    Yes, Your Honor.

    Earl Warren:

    Yes.

    That’s all I would —

    William O. Douglas:

    Now, this — this conflict in the testimony of the highway patrolman and the other officers, does — was resolved by then the state court.

    Wesley E. Polley:

    It was resolved by the state court in favor of the State.

    William O. Douglas:

    But in the federal court, the petitioner was not allowed to have a hearing on that issue though?

    Wesley E. Polley:

    I don’t believe, if the Court please, that any application was ever made to the federal court for additional testimony concerning this particular issue.

    William O. Douglas:

    (Inaudible) in the federal court was to both parties rested upon what took place in the state court.

    Wesley E. Polley:

    I won’t say that because I don’t know exactly what Mr. Morgan did.

    I do know that — that — the District Court determined that he could make a fair evaluation of the question by a review of the state record.

    Hugo L. Black:

    Did he — was after this hearing on this point before the judge in Chambers, was the same evidence introduced on the trial before the jury?

    Wesley E. Polley:

    You mean — if the Court please, the same foundation evidence?

    Hugo L. Black:

    Yes.

    Wesley E. Polley:

    Substantially the same foundation evidence, yes, Your Honor.

    Hugo L. Black:

    Did the county officers testify there, including the Sheriff?

    Wesley E. Polley:

    Yes, Your Honor.

    Hugo L. Black:

    On that point?

    Wesley E. Polley:

    On that point.

    I’m — I’m safe in saying that.

    Hugo L. Black:

    Were they cross-examined on that point?

    Wesley E. Polley:

    Yes, Your Honor.

    Hugo L. Black:

    And did the highway patrolman testified there?

    Wesley E. Polley:

    He testified there before the jury and he was cross-examined on that point?

    Hugo L. Black:

    The State cross-examined him?

    Wesley E. Polley:

    Yes.

    Hugo L. Black:

    And the defendant’s lawyer cross-examined to the others?

    Wesley E. Polley:

    Yes, Your Honor.

    Hugo L. Black:

    And there was a shut dispute between them as to that statement?

    Wesley E. Polley:

    There was a violent dispute as to that statement.

    Hugo L. Black:

    Was that submitted to the jury?

    Wesley E. Polley:

    It was under the instructions which were copied from the Lyons case.

    It was approved by this Court and were in — I believe the instruction was improved upon in favor of the defendant.

    Felix Frankfurter:

    You mean the specific — was there an instructional with reference to this specific issue of the conflict regarding the exact — for the substantial offerings of the Sheriff?

    Or — or was the general question that the jury must determine whether the thing is voluntary or not?

    Wesley E. Polley:

    It would be the general question, if the Court please —

    Felix Frankfurter:

    But —

    Wesley E. Polley:

    — under the Constitution of Arizona.

    The Court couldn’t comment upon the evidence.

    Felix Frankfurter:

    No.

    But — but could it put that issue.

    He couldn’t comment on it.

    But could it put that issue that it’s for you to decide who is telling — who is accurate or truthful whatever the phrase is?

    Wesley E. Polley:

    I don’t believe it was that specific.

    It simply told the jury —

    Felix Frankfurter:

    It’s all in for these general — general charges to jury, do you?

    Wesley E. Polley:

    No, the — this — this instruction can’t be termed the general instruction.

    (Inaudible)

    Wesley E. Polley:

    You find on page 25 of the printed record, if the Court please.

    Felix Frankfurter:

    That’s what I meant by general, namely, it wasn’t directed during this specific item of evidence.

    Wesley E. Polley:

    No, Your Honor.

    Felix Frankfurter:

    And you — you rather indicated that that might — that all events is not the practice.

    It might be very dubious as to propriety.

    Wesley E. Polley:

    Under the Constitution of Arizona that the Court may not comment upon the evidence or singleout any — any evidence in its instructions.

    Felix Frankfurter:

    In answer to a question by my Brother, Douglas, you indicated — you did not know whether that or I think you said that the particular issue as to the right — as to what it is the Sheriff really said, was not put to the federal court for its determination.

    Is that the specific question?

    Is that what you said?

    Wesley E. Polley:

    No, Your —

    Felix Frankfurter:

    Well, you didn’t know whether —

    Wesley E. Polley:

    I didn’t make my point clear.

    The — the question of whether the Sheriff made this thing or whether he didn’t, certainly was put to the District Court.

    Felix Frankfurter:

    The Federal District Court?

    Wesley E. Polley:

    Yes, yes.

    Felix Frankfurter:

    And — and specifically or as part of the general request that there be a hearing?

    Wesley E. Polley:

    But as part of — of — that was the main.

    Felix Frankfurter:

    It would be included in the request in the petition for habeas corpus that there’d be a hearing.

    Wesley E. Polley:

    Yes.

    Felix Frankfurter:

    Yes, but — but that wasn’t singled, forgive me.

    That wasn’t singledout as something on which the petitioner, nor if he had a right, he’d have a hearing in the federal courts.

    Wesley E. Polley:

    No.

    Felix Frankfurter:

    (Voice Overlap) understood you.

    Wesley E. Polley:

    Now, if I might briefly run through the other events in the chronological order, I think that — that I can orient the Court as to actually what happened in this series of events or after this, the — the incident we’re talking about that the petitioner saw the other Negro boy, Cooper, later cross a field where he was apprehended to the Sheriff’s car with a rope of the same car (Inaudible) around his waste.

    He also saw the Sheriff take the rope off and admonished the cop ranchers to desist.

    Hugo L. Black:

    Who saw — who saw them?

    Wesley E. Polley:

    Well — the petitioner and no doubt about that.

    Hugo L. Black:

    He said that?

    Wesley E. Polley:

    All —

    Hugo L. Black:

    Are you talking about his testimony, or —

    Wesley E. Polley:

    No, Your Honor.

    I’m — I’m just now giving ultimate facts as which I have claimed to undisputed facts that it is the — the result of all the witnesses’ testimony that —

    Earl Warren:

    Was that — was that testimony in the trial?

    Wesley E. Polley:

    Yes, Your Honor.

    All of this testimony that —

    Earl Warren:

    Who gave — who gave that testimony?

    Wesley E. Polley:

    The various officers involved.

    There — there was no attempt to hide anything.

    The officers told the story exactly as it happened.

    All that I —

    Earl Warren:

    Somebody must hid something, if the — whether it was the highway patrolman or the Sheriff, if one said, “If you don’t talk, I’m going to — I’m going to let him do this to you.”

    And the other said that nothing of that kind who said somebody was — was concealing something —

    Wesley E. Polley:

    I have no —

    Earl Warren:

    — who it is, I don’t — I don’t say.

    Wesley E. Polley:

    I have no doubt of that, if the Court please though.

    Our deputies say that they did not hear that, that they heard no one say that.

    Felix Frankfurter:

    Well, right there, when you say that they did not hear, thing that sometimes said that people in the immediate relation to the utterance may not have heard it.

    That merely means the fellow says, “I didn’t hear it”.

    And he didn’t hear it, non constat.

    Felix Frankfurter:

    It wasn’t said.

    Is that true?

    Wesley E. Polley:

    That’s correct.

    That is the —

    Felix Frankfurter:

    Now, was there anything — the reason — is there anything in the evidence that indicates a better advantage of the — of the — this patrolman?

    What was the (Voice Overlap) —

    Wesley E. Polley:

    Highway patrolman?

    Felix Frankfurter:

    Pardon me?

    Wesley E. Polley:

    The highway patrolman.

    Felix Frankfurter:

    That the highway patrolman was better placed to hear everything the Sheriff said than the other witnesses.

    Wesley E. Polley:

    I don’t believe so, if the Court please.

    This storekeeper who had no interest in the matter, one way or another, testified that he was within 10 feet of where this conversation was suppose to have been taken place in an angry tone of voice and he testified that he heard nothing.

    Earl Warren:

    He didn’t —

    Felix Frankfurter:

    But the Sheriff — the Sheriff, himself —

    Wesley E. Polley:

    The Sheriff, himself —

    Felix Frankfurter:

    — denied it.

    Wesley E. Polley:

    — denied it, flatly.

    What you see —

    Felix Frankfurter:

    Then there was — there was a group around of — how many — how many county officials did you put on, six, five?

    Wesley E. Polley:

    About six, yes.

    Felix Frankfurter:

    Six and they were all in the vicinity of the Sheriff.

    And they were all more or less, equally well placed to hear what was said if it was said.

    Wesley E. Polley:

    No, Your Honor.

    That — that wasn’t the way that it happened.

    Felix Frankfurter:

    Well, that’s why — that’s why a conflict of having testified to something being said or not said, may not involve perjury or conscious concealment, may involve hearing, may involve all sorts of things.

    Wesley E. Polley:

    The Court must remember, this man was apprehended about 300 yards off of the county road in a (Inaudible) under a big pile of tumbleweeds.

    He was found first, by Officer Brashear who well were to him and called to this grocer (Inaudible) Byrd, to come over.

    These other officers were scattered out over an area of maybe 500 or 600 yards, so, each of them got to the scene at different times.

    Now, at the time this conversation was suppose to have been held, they’re certainly were present, Arthur Thomas, the Sheriff, the highway patrolman, Deputy Sheriff Brashear and Deputy Sheriff (Inaudible), but no doubt about that and they were all in comparable position where they would have heard anything had it been said.

    Felix Frankfurter:

    Was Thomas, himself, the witness in Chambers on the (Voice Overlap) —

    Wesley E. Polley:

    Thomas himself (Voice Overlap) —

    Felix Frankfurter:

    — investigation?

    Wesley E. Polley:

    He was not a witness in Chambers.

    They didn’t ask that — that he’ll be put on in the absence of the jury.

    They didn’t even ask that he’d be put on under limited cross-examination.

    William O. Douglas:

    Coming back to my question, counsel on — on the petitioner’s brief at page 17, near at the bottom.

    It appears that he did — that his complaint here is that he didn’t have a hearing on these issues in the District Court —

    Wesley E. Polley:

    No, Your Honor.

    William O. Douglas:

    At the bottom of page 17, the petitioner’s brief in this (Voice Overlap) —

    Wesley E. Polley:

    Yes, I — I know what the — that page.

    William O. Douglas:

    Submitted that the District Court erred and not granting the defendant the right of his opinion and bring forward the witness to show how the defendant’s rights have been violated.

    Earl Warren:

    Did the petitioner ask for that?

    William O. Douglas:

    The petitioner asked for that, in his petition and he listed a series of witnesses who he wanted to call that each of those witnesses had testified in the Superior Court with the exception of one Major Dorsey who according to the application, it doesn’t appear as to what he could testify to.

    Certainly, he wasn’t there.

    The —

    Hugo L. Black:

    You admit, as I gather it, that he’s in there to have this — by a proper hearing on this question on the voluntariness in connection with the Sheriff’s statement that you arrest him on the fact that the court below, as I gather that the court looked at the record and read the evidence that it was — it was not necessary for them to heat the witnesses the second or time on this issue.

    Wesley E. Polley:

    That is correct.

    Yes, Your Honor.

    Hugo L. Black:

    That’s your case?

    Wesley E. Polley:

    That is my contention.

    Hugo L. Black:

    You, of course, claim that the jury and the court were right in the first place that you say whether so or not, that there shouldn’t be a new trial of that issue in the District Court, although it was asked.

    Wesley E. Polley:

    I believe that under the rule of Brown versus Allen there was sufficient in the record to be reviewed by the federal court for that court to make up its independent determination as to whether or not the due process have been violated and apparently that was the — the Judge McCulloch’s holding and also the — the holding of the Ninth Circuit Court.

    Now, if the Court would permit me, I would like to run through the subsequent events which I believe are very, very immaterial.

    As I say, after Thomas, the petitioner was apprehended and he said that this other Negro boy, Cooper, had actually committed the murder, then, the party went to another field which was two or three miles from the first field where Cooper was apprehended.

    Now, I believe that’s a fair statement of the evidence that he — that Cooper was out in this field about some witnesses say a half a mile from the road where the Sheriff’s car was left, (Inaudible) the Sheriff went over there unarmed.

    He got Cooper and the same cop rancher was accompanying the Sheriff.

    He threw a rope around Cooper, around his waste and he was laid back to his car.The rope was taken off of Cooper by the Sheriff.

    Then, while the two of them were standing together, the same cop rancher.

    Earl Warren:

    Or as it taken off of him when — when it was thrown around him or after he gotten into his car?

    Wesley E. Polley:

    No.

    Wesley E. Polley:

    It — it was taken off — I believe the testimony was that he was laid about 50 feet towards the car and then the rope was taken off.

    And while Cooper and Thomas were standing there being questioned, a rope was thrown around the two of them, there is a conflict as to whether or not, they were jerked off their feet or not.

    Some witnesses say that they were.

    Some witnesses say that they weren’t.

    However —

    Charles E. Whittaker:

    (Inaudible)

    Wesley E. Polley:

    Either than one or another one.

    There were two cop rancher involved, if the Court please.

    There are only two men on horses.

    Now, at that time that the evidence is uncontradicted, that the Sheriff got mad at the cop rancher which certainly took considerable time in doing and admonished that there would be no more of this.

    And from that time on, there wasn’t.

    Earl Warren:

    I understood you to say that this was not a part of — that these cop ranchers were not a part of the Sheriff’s posse.

    How does it happen — how does it happen that they were there at the time they arrested the second man three miles away if they weren’t in the official party?

    You said only this man and the Sheriff went there to the place where the second boy was apprehended.

    How does it come that the two were there if he wasn’t there with the Sheriff?

    Wesley E. Polley:

    He was there if the Court please, with the Sheriff in the sense that he tagged along and went along, but there was no official posse ever selected.

    That is true that these two men were — were there on horses.

    They — they were helping go through this large field to following these tracks which lead to the finding of — of Thomas to begin with.

    Earl Warren:

    At the instance of the Sheriff?

    Wesley E. Polley:

    It doesn’t appear whether that he asked them or not.

    However, we concede that they were there with his acquiescence.

    Now, as to whether or not those incidents caused fear in the mind of Thomas, it must be admitted.

    He didn’t confess at that time.

    Hugo L. Black:

    How long was it after that — confessed?

    Wesley E. Polley:

    He confessed the next day.

    Charles E. Whittaker:

    (Inaudible)

    Wesley E. Polley:

    That night, about 7 o’clock.

    Charles E. Whittaker:

    (Inaudible)

    Wesley E. Polley:

    He denied guilt at that time and — and still insisted that this young 17 year old boy was the murderer.

    Charles E. Whittaker:

    (Inaudible)

    Wesley E. Polley:

    The circumstances the next day is that — that he got up.

    The Sheriff — the night before, if the Court please, his upright questioning, he was taken to the hospital where his hand was dressed and where he made no complaints whatsoever, about any roping incident or about any damage to his neck.

    He was taken to jail and his clothes were taken from him because we wanted to use them as evidence.

    His — he — overalls were replaced with ordinary jail coveralls.

    His shoes could not be placed for the simple reason that the Sheriff had no shoes large enough to fit this man.

    The next morning, he was taken to the Justice of the Peace, Judge Frazier, the magistrate for arraignment.

    The record shows that he was barefooted.

    Now, he was barefooted for the simple reason that they still couldn’t find the pair of shoes, big enough to fit the man.

    When the Sheriff, it must be conceded, took him from the jail down to the lower justice court which by the way isn’t any converted store.

    It’s an office building, the Justice Court building which has been made for 20 or 30 years.

    The Sheriff took him there in an automobile by himself and believe it or not that the evidence shows that the Sheriff had a gun but he — it was in the seat between him and the petitioner.

    When he got to the Justice Court, the petitioner was taken into the Justice Court.

    There were two men in the Justice Court who were transacting business with the Justice.

    He was doing some notary work or something like that which took five or 10 minutes.

    When the work was finished, the next order of business was the arraignment of Arthur Thomas.

    The Justice Court or the judge asked him if that was his name and he said, “Yes.”

    The Justice then read the complaint to him, told him that he had a right to — to employ an attorney and that he could either wave his preliminary hearing or if he didn’t want to wave the preliminary hearing, one would be held.

    And it was then out of the clearest sky with no prompting from anyone that the petitioner said, “I don’t need a lawyer.

    I’m guilty.

    I killed a woman.”

    Is that the first —

    Wesley E. Polley:

    That was the first confession.

    Hugo L. Black:

    What page is that on?

    Wesley E. Polley:

    We — we’ll find that, if the Court please.

    Charles E. Whittaker:

    (Inaudible)

    Wesley E. Polley:

    Yes, that — that is —

    Hugo L. Black:

    Page what?

    Felix Frankfurter:

    This is in the —

    Charles E. Whittaker:

    (Inaudible)

    Felix Frankfurter:

    — opinion.

    Hugo L. Black:

    Yes.

    Earl Warren:

    Isn’t — isn’t that in the defendant’s records?

    Wesley E. Polley:

    I don’t believe so, Your Honor.

    Felix Frankfurter:

    I think it’s fair to say that what we have is by designation and cross-designation of counsel.

    What — the record we have is as before by agreement of counsel.

    That’s right, isn’t it?

    Wesley E. Polley:

    As I’ve said, Your Honor, I can’t answer that because I wasn’t —

    Felix Frankfurter:

    My — that isn’t the information I asked (Inaudible).

    That’s correct, isn’t it?

    Wesley E. Polley:

    Yes, Your Honor.

    Now, I must hurry, if the Court please.

    My time is growing short.

    That after the two men were put in the automobile, they were taken to Willcox at a distance of about 15 miles to the nearest Justice of the Peace, for — the Justice was out driving a school bus, so the party then went to the mortuary for the purpose of taking a picture of the deceased.

    The photographer was riding with the Sheriff that I don’t think it’s a fair inference from the testimony that — that the petitioner was taken there to view the remains.

    It was simply with the Sheriff and this photographer.He certainly was enforced to — to view the remains.

    The party was then taken to Bisbee.

    They got there approximately 6:30 in the afternoon after the local Justice office had closed.

    They were brought to my house for this simple reason that I was in the stretcher and it was more convenient to interview them there than it was for me to be loaded into an ambulance and taken to the courthouse.

    I questioned each of the Negroes.

    They were in my house approximately two and a half to three hours.

    I questioned them each for about an hour.

    Hugo L. Black:

    What date was that?

    Wesley E. Polley:

    That was the afternoon of the apprehension on March the 17th.

    Hugo L. Black:

    That’s the day before the confessions of the —

    Wesley E. Polley:

    The day before, yes, Your Honor.

    Then, the — the other hour in the three was taken up in getting a court reporter down there.

    The petitioner gave me his statement was an accusation against the other boy and which we have attached to our brief as an appendix.

    At that time, before I started taking this statement or in — in the first portion of the statement, I advised him is this.

    “Now, you know that I’m the County Attorney of this county here and all of these gentlemen around here are either Deputy Sheriffs or Deputy County Attorneys.

    I want to ask you about this occurrence and Kansas Settlement.

    Wesley E. Polley:

    I am not going to make you any promises if you do talk to me and I’m not going to make you any threats, if you don’t talk to me.

    Whatever I ask you, I want you to tell me freely and I want you to tell me the truth.”

    Then, he started telling me that the other boy done it.

    Later, when we were finishing up —

    Earl Warren:

    Now, this wasn’t in the trial was it?

    Wesley E. Polley:

    Pardon?

    Earl Warren:

    This wasn’t used in the trial was it?

    Wesley E. Polley:

    No, Your Honor.

    It was marked for identification, but it was never used.

    Earl Warren:

    But you — you did attach that to — to the record in the —

    Wesley E. Polley:

    District Court —

    Earl Warren:

    — federal court.

    Wesley E. Polley:

    In the federal court and it was considered by Judge McCulloch in the federal court.

    Now, again on page 30 of the appendix to our brief, I stated this to him.

    Question, “Well, I’m going to let you go now for a little while.

    Now, everything that you have told me has been the truth hasn’t it?”

    Question, “And you swear to God that it is the truth?”

    Answer, “Yes, sir.”

    Question, “And everything you told me, you have voluntarily told me haven’t you?”

    Question, “And you understand like I told you when we started that I’m not making you any promises if you do talk to me.

    I’m not making you any promises if you don’t talk and I’m not making you any threats if you don’t talk, you understand that?”

    Question, “And you understand that when you started, you didn’t have to talk to me unless you wanted to — to, do you understand that?”

    Answer, “Yes.”

    Now, after that was taken, he was taken back to the jail.

    The next day, if the Court please, which — no, the day after that on the 20th, that I again questioned him in the courthouse, in — in my office in the presence of a different set of officers altogether, Sheriff Howard or none of the officers involved in his arrest were there.

    Present was Percy Bowden, the Chief of Police of Douglas and a — I mean who was also a Deputy United States Marshall.

    At that time that Arthur Thomas was shown the transcript of the statement that he had made me at my home and he read it and initialled it.

    I then proceeded to question him again in the presence of these officers.

    Going into the matter much more in detail as to how the crime was committed, he gave me that willingly as the — the evidence shows.

    Not only willingly that he talked to me, but he assisted me in explaining how the thing had happened by marking a big diagram with crayons, different colored crayons as we went along.

    Wesley E. Polley:

    That was testified too, without contradiction.

    Then, 11 days after that, on April 1st after this statement had been typed up, it was given to the Deputy United States Marshall who went up into the jail and interviewed Thomas in the fingerprint room of the Sheriff’s office, not in any cell or anywhere else.

    He told Thomas why he was there that he wanted him to read each and every page of this statement if it was the truth to initial it.

    If it wasn’t the truth and not to initial it, that Thomas went ahead and took approximately an hour, read each page, initialled it as he went along and then signed the last page.

    Now, on the question of whether or not that Thomas was in fear of the Sheriff himself, I would like to read the Court’s — this part of the transcript.

    Question, were the unused confession — conceded confession for the the District Court, United States Disctrict Court —

    Wesley E. Polley:

    No.

    That they were, Your Honor.

    (Voice Overlap) printed record.

    Wesley E. Polley:

    They’re not in the printed record and unfortunately, they’re not before this Court.

    I thought that they were.

    However, the testimony shows generally what each of them consisted of.

    And the testimony shows conclusively that the man was advised of his rights at the beginning of each statement and again at the end of each statement.

    Now —

    Earl Warren:

    Now, those were both offered in evidence, were they?

    Wesley E. Polley:

    Your Honor, that — they were presented to the Court while we were laying this foundation.

    Earl Warren:

    For the purpose of introducing it?

    Wesley E. Polley:

    For the purpose of the court making up his mind as to whether or not, the testimony should be put to the jury.

    Earl Warren:

    Yes.

    Felix Frankfurter:

    This — this laying the foundation was all a single proceeding as you indicated?

    Wesley E. Polley:

    Yes.

    Yes, for all of the confessions.

    Felix Frankfurter:

    Yes.

    Wesley E. Polley:

    That we weren’t even finished laying our foundation when the court came back from Phoenix over a weekend and while Mr. Morgan was making a motion for a mistrial on something else.

    The court said, “Mr. Morgan, I am going to deny your motion for a mistrial, but I’ve been thinking about these confessions and I’m not going to let them in.”

    Well, it never been even offered at that time.We never had an opportunity to argue the matter to the court.

    We — I sincerely believe that the —

    Earl Warren:

    Do you contest — you contest the finding on the court that these were involuntary?

    Wesley E. Polley:

    I certainly do, if the Court please.

    Charles E. Whittaker:

    The court actually made (Inaudible)

    Wesley E. Polley:

    The Court actually made this is what I would like to — to — this is what the court actually said.

    It appears on page 2063 of the record in the Superior Court.

    The court — well, the court feels this way about it.

    Oh, before that on — on the page before Mr. Morgan had just gotten through arguing his motion for a mistrial, The court, “Do you have something Mr. Polley?”

    Mr. Polley, “Nothing except that we — we resist the motion, if the court please, which resists other motion.”

    The Court — well, the Court —

    Earl Warren:

    (Voice Overlap) the motion would came as a result of the testimony that I would (Voice Overlap) —

    Wesley E. Polley:

    No, Your Honor.

    It was — it was another motion all together.

    It was a motion for a mistrial on one of the many, many numerous grounds that were urged.

    The Court said this, “Well, the court feels this way about it.

    I have read your authorities on voluntary and involuntary confessions.”

    Felix Frankfurter:

    But I’m — I feel this way about it, that I followed you up at the time that you read this, namely that there was a motion for a new trial on an unrelated issue which you resisted and the court decided against it.

    Wesley E. Polley:

    No, Your Honor.

    This was a motion for a mistrial.

    Felix Frankfurter:

    Yes, I understand that.

    Wesley E. Polley:

    Yes.

    Felix Frankfurter:

    A motion by Mr. Morgan for mistrial on an unrelated issue, another issue unrelated to our problem.

    Wesley E. Polley:

    That’s right.

    Felix Frankfurter:

    And then, you now read — the Court went on his — on the Court voluntarily and that —

    Wesley E. Polley:

    That is correct.

    Felix Frankfurter:

    — I feel this way about, it — was there no antecedent to this, it.

    What is the “it” refer to?

    I feel this way about “it”?

    Wesley E. Polley:

    About the whole question, I imagine, if the Court please, that I — I reiterate to the Court.

    We haven’t completed putting our foundation testimony when the Court, out of a clear sky, made this statement and without taking the time of the Court to read it.

    It appears on page 2063 of the Superior Court record.

    Felix Frankfurter:

    Now, what is the answer to Justice Whittaker’s question whether there was a finding of facts by the trial court that these confessions were involuntary and therefore to be excluded?

    Wesley E. Polley:

    There is no finding of fact to that (Voice Overlap) —

    Felix Frankfurter:

    Do you mind reading what he does say about it?

    Wesley E. Polley:

    Yes, I — I’ll read it.

    Well, the Court —

    Felix Frankfurter:

    Well the reason — the reason that it’s important is —

    Hugo L. Black:

    That the District (Voice Overlap) —

    Felix Frankfurter:

    — we are — we are bound by — we certainly would be bound by a finding of the trial court and we couldn’t here say it included that he was wrong and not admitting this and therefore he was right in defeating what he did admit, could we?

    He couldn’t here say, he was wrong could he?

    Wesley E. Polley:

    I believe under the circumstances of this case, it’s possible the Court was right in excluding the confession to the —

    Felix Frankfurter:

    Well, whether it’s right or wrong, we can’t say will — what’s suppose (Inaudible) who would have been bound by the finding of fact of a trial court.

    If a finding of fact is at its — in favor of the defendant, we can’t say here that was an improper ruling, can we?

    Wesley E. Polley:

    I believe in the Stroble case that that was done, if the Court please.

    Felix Frankfurter:

    We said the — we might find the trial court was in error in disregarding the Fourteenth Amendment, but we could hardly say the trial court was in error in dealing to the Fourteenth Amendment.

    Wesley E. Polley:

    In the Stroble case, if the Court please, this Court’s decision had the effect of overruling the Supreme Court of California, which held or which assumed that a confession was — was involuntary and didn’t admit it.

    When this Court reviewed it, this Court held that the — that the excluded confession was actually voluntary and should’ve been admitted.

    Earl Warren:

    Would you mind reading to us what the trial court said at the time that excluded this confession please.

    Wesley E. Polley:

    “I have read your authorities on voluntary and involuntary confessions and I have studied the citations carefully.

    And I have studied the exhibits in relation to those and the court recognizes the fact that the friends and neighbors of the deceased might well have been highly unjustifiably incensed on finding her slain body.

    Many others might well have felt the same way.

    However, neither good morals nor the Constitutions of the United States and of the State of Arizona will tolerate an individual or a group taking the law into their own hands.

    There are countries where confessions are extorted by devious and improper methods that run countered to our American way of life or of our Constitution.

    Our ancestors gave us the Bill of Rights and the law of due process and to scuttle this time honored in sacred laws will be to invite anarchy and dictatorship.

    The Court will not, in any way, honor any confession cured by an underthreat of attempted lynching.

    Under such circumstances, a confession is not voluntary and its credibility is doubtful, then therefore barred by our Constitution and the Court therefore feels and he — he ruled.”

    Now —

    Earl Warren:

    Now, go ahead.

    Let’s hear the rest of it.

    Let’s see what he says.

    Wesley E. Polley:

    “I have been studying the matter.

    Counsel brought this matter to a hearing before —

    Earl Warren:

    Are you — are you going right on from where you —

    Wesley E. Polley:

    Yes, Your Honor.

    Earl Warren:

    — you were?

    All right.

    Wesley E. Polley:

    I have been studying the matter.

    Counsel brought this matter to a head before the Court intended saying any more about it, but since counsel has, I am going to sustain counsel’s objection to the introduction of State’s Exhibits 51 and 53 because they are confessions and they are obtained having been procured by threat of lynch and the Court does not propose to be a party in any ways to any attempt of lynching, and I will deny the motion for mistrial.

    That takes away the confession that you say that Percy Bowden secured and it takes away Number 51.

    I believe 53 was the one that was under the influence of Percy Bowden.

    Now, the Percy Bowden incident, Mr. Morgan was asking for a mistrial upon the grounds that Percy Bowden had taken this last confession to Thomas in jail and had him initial it after counsel was appointed.

    That was the matter that was before the Court.

    Now, the — the important thing about what I just read, if the Court please, where this — Judge Jennings mentions threat of attempted lynching.

    At that time, there wasn’t one word in the record about any attempted lynching.

    Apparently, that Judge Jennings have been reading the newspapers also.

    There wasn’t anything in the record to that effect.

    Earl Warren:

    Well, you mean — you mean that this was — this was before the hearing that he held and it’s Chambers on the admissibility of this — of these confessions?

    Wesley E. Polley:

    This ruling, if the Court please, was made during the time we were holding these preliminary hearings and before we had completed them.

    Earl Warren:

    Well, but did you go on and complete them after this (Voice Overlap) —

    Wesley E. Polley:

    No, Your Honor.

    Earl Warren:

    Well, I thought you just said a little while ago to us that the — in that — in that hearing, it was denied that there was any such thing happened as the highway patrolman stated.

    Wesley E. Polley:

    It was denied by the officers on cross-examination.

    No affirmative evidence was in the record as to any attempt or any threat of lynching had ever occurred.

    Earl Warren:

    Well, there was evidence in there, wasn’t there that — that a rope has been thrown over him?

    Wesley E. Polley:

    There was that evidence, yes, Your Honor.

    Earl Warren:

    (Voice Overlap) pretty good evidence isn’t it, if a man’s got a rope around his neck and someone’s pulling at it.

    Wesley E. Polley:

    Not under the circumstances of this, if the Court please.

    Now, my time is almost up.

    Could I pass to one more subject as to whether or not these — or that Thomas was actually injured or the defendant put on a newspaper reporter who was a very belligerent witness insofar as the State is concerned.

    He went to the prison on either the 18th — I’m not — or to the jail, on either the 18th or the 19th of March to take a picture of the petitioner and to look for any marks or bruises which might be on his body.

    He took a picture of him and that was introduced in evidence.

    On cross-examination, he was asked.

    Question, “And the picture you published in connection with the story?”

    Answer, “Yes, sir.”

    Wesley E. Polley:

    Question, “And the footnote to the picture stated this, did it not?”

    “The six-foot negro agreed with Howard’s statement that he had saved the farmworker’s life.”

    Answer, “That is exactly what I just finished saying.”

    So, there is no doubt that on the 18th that the petitioner did concede that if Howard had any part in his roping at all, it was as his benefactor and nothing else.

    Now, insofar as the marks are concerned, this is what — this appears on page 1943 of the Superior Court transcript.

    Question, “And when — where were those marks?”

    Answer, “He had one mark on the — a very small minor abrasion on the left side of his neck and he had a larger abrasion about a quarter of an inch long on the right side of his neck.”

    Now, those were the extent of the injuries.

    Now, Mr. Pidgeon would like to say a few words to the Court upon the evidence in the record other than this confession.

    I would simply call the Court’s attention to the fact that under the ruling of this Court, itself, in the Lisenba case, in the Lyons case, in the Gallegos case and in the Stroble case that physical abuse, itself, even though admitted, isn’t sufficient to make a confession involuntary.Unless that it is going further and shown that the physical abuse did create some inducement or some fear which actually produced the confession.

    In this case, we submit that it had nothing whatsoever to do with it.

    We deplore that it happened.

    We do not believe that it is sufficient to upset the conviction of the state court.

    Harold Burton:

    Well, may I —

    Earl Warren:

    Well, Mr. Polley — oh, pardon me.

    Go ahead.

    Harold Burton:

    May I ask you one question?

    How do you reconcile the fact that at the — confessions before the magistrate that he was not (Inaudible) by — by fear and yet in a subsequent confession, it is held to be (Inaudible)

    Wesley E. Polley:

    I do not believe that Judge Jennings ruled on that particular thing.

    I think Judge Jennings in an outburst of — of indignation as to the — brought on by the fact that this roping had actually happened, said in short, “I am not going to permit the State to use this confession after that happened.”

    I don’t think that there was any question in his mind as to whether there was fear or whether there wasn’t fear.

    We have no opportunity to argue the time sequence of these various confessions and I’m certain that Judge Jennings never realized it.

    That is, I reiterate, we haven’t finished our foundation.

    We had never offered a single one of these confessions at the time that he ruled out the ones that he did.

    Earl Warren:

    Well, then — then you accepted a finding of the Court that — that the — the confession against the defendant is admissible.

    You — you say that that’s all right, but you contest the finding of the trial court that the others are not?

    Wesley E. Polley:

    I do, Your Honor, and under the authority of the Stroble case.

    Earl Warren:

    Now, let me ask — let me ask you this.

    If there was or if we should conclude that there is a finding by the Court in the record that those subsequent confessions were involuntary by reason of the so-called lynching effort that was made at the time he was arrested.

    If we conceive that there was a finding of that kind by the — by the Court, do you believe that we can sustain the admitting of a confession that was given between the time of the so-called lynching episode and the time of the confessions that were excluded?

    Wesley E. Polley:

    I sincerely believe so, Your Honor.

    Earl Warren:

    And — and would you mind elaborating on that.

    Tell us what your reasoning is on that score.

    Wesley E. Polley:

    Well, the simple reason that it may have been Judge Jennings’ idea that after the confession was made to Judge Frazier in the sanctity of this Court where there was no mob present, no anything, or it couldn’t reasonably be — be believed that any harm was going to come to the defendant.

    That that confession was admissible while a later confession given to me in my home in the presence of these officers and a later confession given to me in my office in the presence of officers, although different ones, that there was a sufficient change of circumstances as of — of this Court has well emphasized in the Lyons case.

    Earl Warren:

    Was there any challenge as to the conditions under which you personally took the statements from the defendant?

    Wesley E. Polley:

    None whatsoever.

    Earl Warren:

    Then — then why do you say that the judge probably based it upon that when there was no evidence to that effect?

    Wesley E. Polley:

    I think that the judge ruled prematurely.

    Earl Warren:

    I beg pardon?

    Wesley E. Polley:

    I think that — that Judge Jennings ruled prematurely without a — a careful consideration of the facts.

    Earl Warren:

    Do you think there that we should say that — that the judge acted prematurely and without — without consideration for the facts, words against you, but on the other hand that he acted properly when he acted for you?

    Wesley E. Polley:

    I must be consistent.

    I believe that each of the confessions was admissible and all that I ask is that the Court examined the facts under the light of the decisions on the Haley case and the Malinski case, considered the undisputed facts and then way those undisputed facts against the law of due process.

    I think that I’m confident if that is done that this conviction will be upheld.

    Earl Warren:

    How about the Leyra case?

    Wesley E. Polley:

    I do not believe that the Leyra case has anything to do with this case upon the merits that there is — is — a mere reading of that case is revolting.

    Earl Warren:

    Is what?

    Wesley E. Polley:

    Is revolting.

    That is the facts in that case is to what was done with the defendant in that case by going back to the — the various reports in — in the state courts and the — the report in this — from this Court that that man, there was every advantage taken on the man.

    It was done in that case where he was questioned for hour after hour after hour without proper care where he was — they knew that he was sick.

    That is the officer’s did.

    So, he asked for a doctor and they brought in a doctor who he thought was a doctor, but he wasn’t a doctor.

    He was a state agent and by the use of the confidential relationship between this doctor and the patient, where the — the doctor, he didn’t exactly threatened him, but he offered all the inducements in the world that he wasn’t — he stated to him, “You’re not more than guilty.

    That it’ll be better if you would go ahead and tell us what happened.

    Now, why don’t you tell us what happened, and so forth.”

    That — that —

    Earl Warren:

    Yes.

    My point was on the merits of the case of the extent of the — of the coercion used, put on the question of subsequent — subsequent confessions that one was — if one was bad, those that followed it were bad.

    Wesley E. Polley:

    In the — the distinction, if the Court please, is that in the Leyra case, all of the confessions were secured within a period of five hours.

    Wesley E. Polley:

    There was certainly no change of circumstances.

    I — I believe that the effect of promises of leniency are much more far reaching and continue much longer than — than threats of violence.

    If — if Thomas in this case, had any idea that he was going to suffer physical punishment if he didn’t confess from what happened out there at the time of his arrest, I think that they were dispelled when I advised him of his rights and when he still didn’t confess when he was put back in the — the custody of the Sheriff and he still didn’t suffer any abuse when even the next morning, he went to the Justice Court that no abuse was offered to him that — I simply can’t see why, if there was any fear that it wasn’t broken at the time that I talked to him.

    Earl Warren:

    But your trial court didn’t think so.

    Wesley E. Polley:

    He did with — with — in connection with the confession which was admitted and I — I don’t wish to be a repetition — repetitious but I don’t believe that the trial court’s ruling on the other confession was — was seriously considered.

    Could I ask you one question?

    When the State or the magistrate — testify in the magistrate, Justice of the Peace was admitted, the first confession, there was an objection made to it by Mr. Morgan?

    Wesley E. Polley:

    When it was first admitted before the jury.

    That’s what I’m talking about.

    Wesley E. Polley:

    There was no objection until the statement was in evidence.

    Yes.

    Wesley E. Polley:

    They objected to upon improper grounds.

    What was the objection then?

    Wesley E. Polley:

    He objected on the ground practically every amendment except the Fourteenth.

    Well, I don’t care about that particularly, which is general as that, but was there any argument made by Mr. Morgan at the time that statement was admitted that in view of the court’s exclusion of the subsequent confessions that was — the ourt had no business admitting this earliest testimony of the magistrate?

    Wesley E. Polley:

    Yes, Your Honor.

    He didn’t make — he made that argument?

    Wesley E. Polley:

    Yes.

    What did — what did the court say to him?

    Wesley E. Polley:

    The court made practically the same argument that I have made here that there was sufficient change of circumstances to where the one did necessarily control the other.

    What, the court said that?

    Wesley E. Polley:

    Yes.

    Or rather finds out.

    I just strike the heart of it, it seems to me.

    Wesley E. Polley:

    I can tell the Court where it is.

    It — it is right after Selchow testified.

    See, after — after the highway patrolman testified that Mr. Morgan made a motion for a mistrial at that time when this matter was thoroughly argued to the Court.

    But Mr. Pidgeon, informed we don’t have that volume, that it would be —

    Well, that’s a pretty vital — so far as the record, so far as I’m concerned and I’d like to see it.

    Well, without taking up the time of the Court, perhaps, with the permission of the Chief Justice, you’d release that reference to the clerk.

    Earl Warren:

    Will you that?

    Will you do that please?

    Wesley E. Polley:

    I will do so.

    Earl Warren:

    Your time has expired, Mr. Polley, but I see Mr. Pidgeon has been sitting there anxious to — to say something in this — in this matter.

    You mentioned that he did.

    Could you in two or three minutes make your point Mr. — Mr. Pidgeon?

    We’ll be glad to hear from you if you — you would.

    John G. Pidgeon:

    Well, if it please the Court, I want to make two points.

    One is when we talk about habeas corpus itself.

    And in this particular case, we believe that the District Court Judge, the United States federal judge, was correct in denying this application for habeas corpus on the grounds that the remedies had not been exhausted.

    Now, if I understand correctly, Rule 22 (1) of this Court provides that you have 90 days from the final hearing in the State Supreme Court within which to file certiorari appear.

    In this particular case, the appeal was decided in Arizona on October 18, 1954.

    A rehearing was denied on November 16th, 1954.

    It is the State’s contention that the 90 days commenced to run when that rehearing was denied.

    However, it wasn’t until October 24th, 1955, about 11 months later that certiorari was applied for for the first time in this Court.

    In the meantime, it is true there had been an application for a new trial in the trial court on the grounds of newly discovered evidence that no point that was brought up in the trial was brought up in that particular application for a new trial on the ground of newly discovered evidence.

    But it wasn’t until after that matter had been applied for in the Superior Court and decided by the Supreme Court of Arizona and a rehearing denied that certiorari was for the first time applied for here.

    Felix Frankfurter:

    Was that —

    John G. Pidgeon:

    It was in —

    Felix Frankfurter:

    Was it applied for within the 90 days from the final disposition in your Supreme Court?

    John G. Pidgeon:

    Within 90 days after the denial of this motion for a new trial.

    Yes, Your Honor, it was.

    But that was on an entirely different ground, on entirely new points than where decided in the first Arizona Supreme Court decision.

    Felix Frankfurter:

    (Voice Overlap) from the different ground, but was —

    John G. Pidgeon:

    It’s the same case.

    Felix Frankfurter:

    Was the aim the same thing namely to set aside that judgment as invalidly secure?

    John G. Pidgeon:

    No.

    It was to have a new trial on two grounds.

    Felix Frankfurter:

    What?

    John G. Pidgeon:

    They had some —

    Felix Frankfurter:

    That required that the — that the judgment, the sentence of death —

    John G. Pidgeon:

    Yes.

    Felix Frankfurter:

    (Voice Overlap) nullified and that he have a new trial, all-in-one litigation?

    John G. Pidgeon:

    Yes, Justice Frankfurter.

    William O. Douglas:

    What’s the relevance in that here as to take this purpose of the federal —

    John G. Pidgeon:

    Well, it’s my understanding from Brown versus Allen and Darr versus Burford that in order to apply for habeas corpus that you must exhaust your state remedies.

    Now, in order to exhaust your state remedies, you must use them.

    In order to use them, you must make a timely application for certiorari to this Court.

    Felix Frankfurter:

    Did you take part in the —

    John G. Pidgeon:

    Trial?

    Felix Frankfurter:

    — motion for new trial, motion for a new trial on this new evidence?

    John G. Pidgeon:

    Yes.

    Felix Frankfurter:

    Well, why is that?

    That was a proceeding that was still going on under the remedies available under your state law and therefore, I should think Mr. Morgan that he was in the case as well advised not to file the petition for certiorari here until that supplementary proceeding in your state court was — was completed.

    Am I wrong about that?

    John G. Pidgeon:

    You have — it might be very true, but that’s not my position.

    Felix Frankfurter:

    And therefore — therefore, my question to you, if the petition which this Court or if the petition which was filed on October 24th, 1955 was within the 90 days of the final disposition of everything that was open under Arizona procedure, he is quite within our rule.

    John G. Pidgeon:

    Well —

    Felix Frankfurter:

    And — and the petition for certiorari having been denied, he then was entitled to bring his petition for his application for habeas corpus and indeed, he couldn’t have brought it before, could he?

    He had to come here under Darr and Burford.

    John G. Pidgeon:

    Yes, he did.

    Felix Frankfurter:

    And therefore, I should think it was all according to (Inaudible)

    John G. Pidgeon:

    But he —

    He could consider it.

    John G. Pidgeon:

    That’s right.

    Felix Frankfurter:

    Well, but all terms —

    John G. Pidgeon:

    If that is —

    Felix Frankfurter:

    — that all terms whether he came here within 90 days of the last stage of Arizona procedure.

    Charles E. Whittaker:

    Under your procedure, an appeal is allowed from the judgment and also a separate appeal is allowed from the order on a subsequent motion for a new trial.

    That was done in this case (Inaudible)

    John G. Pidgeon:

    Yes, Mr. Justice Whittaker.

    Charles E. Whittaker:

    That’s a little peculiar to me.

    I’ve never heard of procedure like that, but let me ask this question.

    Is it your position that a petition for certiorari must have been filed insofar as it — to sought review of the judgment of guilty within the 60 days after affirmance by the Supreme Court of — of Arizona of the judgment of guilty?

    John G. Pidgeon:

    Yes, Your Honor, at 90 days.

    Charles E. Whittaker:

    90 days and that the motion for a new trial which was a separate appeal was a separate proceeding, is that what you’re saying?

    John G. Pidgeon:

    Yes, Your Honor.

    He can file a motion for a new trial on the grounds of newly discovered evidence tomorrow, if he wants to.

    Felix Frankfurter:

    But, Mr. Pidgeon, if — if Mr. Morgan had filed a petition for certiorari in this Court after the disposition of the main trial in your Supreme Court and there has been pending a motion for a new trial under Arizona law, I should think you would’ve said to this Court, “Those — this is a premature petition for certiorari because non-concept, the motion for a new trial is that you might be granted in this Arizona court?”

    And therefore, the questions on which you’re asked this rather petition, would become nonexistent, isn’t that true?

    John G. Pidgeon:

    That’s possibly true, but if we follow that —

    Felix Frankfurter:

    Would it be possible because this Court certainly wouldn’t grant a petition for certiorari in a capital case when there is before —

    John G. Pidgeon:

    If we do it, yes, sir.

    Felix Frankfurter:

    There is before the — some lower court in Arizona, a motion for a new trial in that very case and I shouldn’t think we wouldn’t speculate whether we knew it or not, I assume counsel’s duty would be to tell the court.

    William O. Douglas:

    Did he file (Inaudible) come to our attention that there’s a motion for a new trial?

    Felix Frankfurter:

    That isn’t the secret among lawyers who filed motions or prosecutors against whom it is filed, is it?

    John G. Pidgeon:

    No, it’s no secret, pardon me?

    Well then the rule requiring that 90-day — to file your petition for certiorari within 90 days —

    Felix Frankfurter:

    Doesn’t begin to run until the whole procedure which is opened by a state law is completed.

    John G. Pidgeon:

    And — and that can be done at anytime.

    Felix Frankfurter:

    What?

    John G. Pidgeon:

    That can be done at anytime, as he files his new motions for a new trial.

    Felix Frankfurter:

    Well, that all depends on state procedure for the state allows such a motion forever.

    And the case isn’t closed, but there is, in fact, an exercise of that power to file a motion for new trial.

    There’s no case for this Court, non-concept, the State wouldn’t take care of it.

    John G. Pidgeon:

    Well, the Court understands my position and —

    Earl Warren:

    Yes, I — I think — I think we do, Mr. Pidgeon.

    John G. Pidgeon:

    — right or wrong.

    Earl Warren:

    [Laughs]

    John G. Pidgeon:

    The second matter — the Court will bare with me for just a few moments —

    Earl Warren:

    Yes.

    John G. Pidgeon:

    — is the fact that the other evidence outside of this particular oral confession to the Court does show is sufficient in and of itself to show that this man was guilty of the crime of which he was charged.

    William O. Douglas:

    Is — that’s Stroble, as I remember, that that being irrelevant, the confession was involuntary.

    John G. Pidgeon:

    Yes, if this Court says from a matter of the uncontradicted evidence that’s involuntary, that is true.

    But if, as in the Stein case, where it is questionable, and I certainly think that that is, at least, the case here that it is questionable whether this was involuntary or not, that if there is sufficient evidence otherwise, then the decision should stand if it’s submitted in — in the right way.

    Now, as far as I’m concerned in this particular case, the confession which was admitted to the jury was voluntary and there’s no question of that.

    Now, Mr. Polley has argued that, but in the event that it is questionable, then I believe that the rule of the Stein case applies that it was submitted to the jury under a proper instruction and that there is sufficient evidence with which to convict and therefore, they’re not entitled to their habeas corpus.

    But rather than take up the Court’s time, those facts do appear in the brief, the other facts.

    Earl Warren:

    Thank you.

    Thank you, Mr. Pidgeon.

    John G. Pidgeon:

    Thank you for the additional time.

    Earl Warren:

    Thank you.

    Mr. — you have some time for rebuttal, Mr. —

    W. Edward Morgan:

    Mr. Chief Justice.

    I like to point out to you the record and give you the notation of it in the state transcript at page 2137 about the — the very important witness, Mr. Byrd who was unconcerned with the case and therefore, was the only person who gave accurate testimony as to what happened at the roping.

    And particularly with reference to the purported statement of the Sheriff, Mr. Jack Howard, at page 2136 of the state transcript — 2137, he continues to say — I — on 2136 —

    Earl Warren:

    Who says?

    W. Edward Morgan:

    This is the witness, Mr. Byrd.

    Who — (Inaudible) Byrd who was referred to by —

    Earl Warren:

    That’s the merchant?

    W. Edward Morgan:

    Yes, this is the merchant.

    Earl Warren:

    All right.

    W. Edward Morgan:

    This is the independent witness and regarding the statement of the Sheriff.

    And I asked him at 2136, “Did you hear Jack Howard tell the man, you murdered that woman out there, didn’t you?

    You heard that part of it, didn’t you?”

    Answer, “No, I didn’t.

    I, after Jack Howard, told him he was under arrest and told him to get up, I turned around and walked away and I couldn’t — I wasn’t paying any attention to what was said.”

    This was — remember, if the Court please, that all of the witnesses who testified in the — in this ancillary procedure outside the presence of the jury where officers holding their political job under the Sheriff.

    No tenure, they’re just employees of the Sheriff.

    Felix Frankfurter:

    Mr. Morgan.

    W. Edward Morgan:

    Yes.

    Felix Frankfurter:

    May I ask you this —

    W. Edward Morgan:

    Yes, sir.

    Felix Frankfurter:

    — assuming that on — of course, in every respect of — of intention to be accurate to counsel in this case, would you say that one could really form a fair estimate of what took place without reading at least that part of the record?

    W. Edward Morgan:

    I don’t — I don’t believe so.

    I think you have to read the transcript.

    I can’t see how you get around.

    We wanted the transcript printed in full and I felt the cause —

    May I ask —

    W. Edward Morgan:

    — proceeding in forma pauperis and felt terribly bad about —

    Earl Warren:

    May I — would — would you go — start again and tell us what you’re just telling us, about you wanted the whole transcript.

    W. Edward Morgan:

    Well I — I —

    Earl Warren:

    Go from there.

    Tell us (Voice Overlap) —

    W. Edward Morgan:

    Well, we felt that we would need the entire transcript, but in good conscience to this Court, where the Court was paying for the transcript [Laughs] it was — we just didn’t feel that we could invite —

    Earl Warren:

    I see.

    W. Edward Morgan:

    — this court to the expense and this trial took 18 —