Townsend v. Sain

PETITIONER:Charles Townsend
RESPONDENT:Frank G. Sain, Sheriff of Cook County, Illinois
LOCATION:James Wah Toy’s Laundry

DOCKET NO.: 8
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 372 US 293 (1963)
ARGUED: Feb 19, 1962
REARGUED: Oct 08, 1962 / Oct 09, 1962
DECIDED: Mar 18, 1963

ADVOCATES:
Edward J. Hladis – argued and reargued for the respondents
George N. Leighton – argued and reargued for the petitioner

Facts of the case

The Chicago police arrested and detained Frank Townsend, a drug addict, in connection with a murder. After several hours of questioning, Townsend began going into withdrawal and asked for a doctor. A doctor gave him a medicine Townsend alleges was a “truth serum.” While under the influence of the medication, Townsend confessed to the murder. Townsend alleged that the medicine caused his confession and, therefore, was not admissible at trial. Defendants disputed most of the facts surrounding the confession. The Criminal Court of Cook County, Illinois admitted the confession at a trial by jury. The jury found Townsend guilty and sentenced him to death. The Supreme Court of Illinois affirmed the conviction.

Townsend subsequently petitioned for a writ of habeas corpus in the District Court for the Northern District of Illinois. The District Court denied the writ without a hearing. The Court of Appeals for the Seventh Circuit affirmed on the ground that the District Court’s inquiry should be limited to undisputed portions of the record.

Question

Is a Federal court required to hold an evidentiary hearing to determine issues of fact in order to rule on the writ of habeas corpus?

Earl Warren:

Mr. Hladis or — had you concluded your opening arguments (Inaudible) or you may continue if you please.

George N. Leighton:

Thank you Your Honor.

I have — had portion of the time remaining to me now, so I can take another additional 12 minutes.

Earl Warren:

Yes.

George N. Leighton:

To conclude the argument for the petitioner if Your Honor please, I wish to emphasize that the position of the petitioner is that before the District Court, the attorneys for the respondents had upon remandment of this course, filed a motion to dismiss the petition again and the case never got beyond argument on that motion, and that motion was sustained by the district judge by his memorandum order from which the appeal was taken so that at no time was the petitioner allowed the opportunity which is ordinary available at a trial of an issue to make a formal offer of proof.

Now we take the position that the district judge heard in dismissing the petition and not performing the functions which Your Honors have said is the inherent duty of a district judge on Federal Habeas Corpus, to have made his own independent determination of the question whether the federal constitutional questions which the petitioner had urged in the District Court had been fairly considered and determined by the state courts.

Now, I wish you to also go back to question which has been asked of me about the position of the petitioner with regard to the effect of this drug.

It is the petitioner’s position that the vice of what occurred to him was that while he was given a drug by a police doctor, he was also at the same time, while still under the influence of this drug, subjected to the interrogation that resulted in the confession used in this trial.

The courts below have failed to distinguish between the propriety of the medication and the propriety of the interrogation, while the medication may well be in the mind to some people, some doctors had been proper that the interrogation accompanied at the same time while he was under the influence of this police injected drug, is what creates the vice.

Now, the petitioner can only point to the fair inferences in the record that this was the intended result by the state officers involved.

It is true, we have no one who could testify that Officer Cagney, when he saw the doctor, talked to the doctor and said “Give him a drug that will produce confession” is true, but it is considered judgment of pharmacologist, the people who have dealt with the therapeutic and the physiological results of hyoscine, criminologists have spoken on the subject, medical men have spoken on the subject that this drug has properties which injected in therapeutic doses produced the state of mind of ejecting in incriminatory confessions and in fact that is one of the uses of the drug.

Now, it occurred to me to say, if Your Honors please that fair minds would agree that if man were being wheeled into operating room with proper therapeutic doses of chloroform and other means of easing his pains, that is not the time to discuss with him the disposition of his property.

Most people would argue I’m sure that a will signed by man who was about to be taken into an operating room is not a valid exercise of testamentary power.

So that while the medication might have been proper under the circumstances, it is the accompanying interrogation with the resulting confession, that raises the question here.

Potter Stewart:

Is this case in which the record shows that he confessed to good many, other offenses?

George N. Leighton:

That’s right Your Honor.

Potter Stewart:

And some — at least on one of which he was found not guilty and couple other were — couple of others were (Inaudible) and —

George N. Leighton:

That’s right Your Honor.

Potter Stewart:

And —

George N. Leighton:

That’s right.

Now, may I just answer Your Honor’s question that are very important that I’m sorry I won’t be able to dwell upon it.

I urged that question before the District Judge.

I asked for an opportunity to introduce in evidence the fact that on January 4, when they had a coroner’s hearing which I have sometimes describe that Charlie Townsend day because that’s what they had that day.

It was hearings on Charlie Townsend cases, they had inquest into four deaths, one with the death of Johnny Stinson.

In and around, Charlie Townsend were later found items of property of this deceased.

They took a confession from Townsend, at the same time, they took this one.

The case was tried.

Townsend was acquitted because Townsend adequately explained evidently the presence of these articles.

There was another inquest in which the — another confession was taken at the same time, this one was taken.

The inquest reports are now before Your Honors as part of the additional answer of the respondents.

George N. Leighton:

In that inquest concerning death to this man, he was testified by the sister of the deceased that when the deceased was found and his sister asked him, “What happen to you Willis?”

Willis Thompson said it was just one of those things.

It was an accident.

When the doctor questioned him and when the police questioned Thompson, Thompson said I had an accident.

And as I have argued in the reply to the additional, to try best to judicial answer, I don’t’ know how in this earth can an accident be made into murder, just because the petitioner while he was under the influence of a drug admitted something about the murder and you can look at the confession.

The confession is not even admission to be having to do with it.

Am I wrong in thinking that when those documents were coroner’s documents, inquest documents were offered by the state at the trial, they were objected to by the petitioner?

George N. Leighton:

Those are — those documents themselves never were offered Your Honor.

What was done was to bring by inference in the trial that at the inquest, they were other crimes involved.

As Your Honor can well understand, a defense lawyer who’s defending a man for one murder where the issue is question of guilt, he would by every instinct in the lawyer object to such.

It is a different question, if Your Honor please, in a habeas corpus case.

In the habeas corpus, the guilt of the defendant is not involved.

The petitioner is not on trial.

It is the constitutional question in the habeas corpus case.

I thought it relevant to show that when he gave this serious of six confessions, one he was found not guilty, one man who was killed said that he had an accident, the third one if may I call Your Honor’s attention to the fact that the officer was asked by the deputy coroner to sit down because he said you’re trying to make his man admit something he didn’t do and he said to the coroner, “What are we going to do?

We have to clean up these records somehow.”

And I say to Your Honors that what they were trying to do was to start off the New Year with a clean slate and they were using this petitioner as a mop to clean up unsolved murders and felonies in their particular police district.

Felix Frankfurter:

That wasn’t the issue, the issue on which that were tended at the trial and the issue that was tended at the post-conviction proceedings, the same — or at the habeas corpus, the same issue as a matter of law namely whether or not the confession was validly admissible?

George N. Leighton:

That is true Your Honor.

Felix Frankfurter:

Therefore, the tender of what you call the fact against the document was directed to the — to the issue the same issue in different proceedings that concerned at the same problem?

George N. Leighton:

That’s right Your Honor.

Felix Frankfurter:

And so I don’t quite follow what you’re saying that when the state offered these at the trial, they were excluded by the — on the defendant’s motion as being harmful, but then on habeas corpus that which was excluded and might have been — might have helped the state’s case can now be the basis for saying that the conviction was unconstitutionally obtained.

I don’t understand that.

George N. Leighton:

Well, that’s because Your Honor it happens at the two different judges were deciding.

In the habeas corpus case, the Judge who — have heard this additional confessions was not going to have anything to do with deciding the guilt of the defendant.

That’s the reason.

Felix Frankfurter:

(Voice Overlap) He had to decide the same thing namely, whether a confession was so crucial to the conviction was validly introduced?

George N. Leighton:

That’s right.

Felix Frankfurter:

And if — if — if those coroner proceedings were improperly admissible in the trial for — or some conceivable advantage to the prosecution, I don’t see how you can have a constitutional right of having a different trial on the same issue in a federal court.

George N. Leighton:

Well because it happens that the two judges were functioning in slightly different positions.

George N. Leighton:

That’s the only reason.

Felix Frankfurter:

In relation to the same problem namely, whether a conviction based on a confession was a sustainable conviction.

George N. Leighton:

That is true Your Honor.

There is no — but the whole point arises you see is in the some fortunate posture in which the issues arise.

Felix Frankfurter:

Yes, but that otherwise — otherwise, you’d have some trial tactic at the trial in the state court in which the defendant takes the position, which he then thinks the admission or exclusion of evidence as far his benefit, he’s convicted and then we’ll have another trial in the federal court when he thinks for that purpose, it’s his advantage to introduce something that he himself kept out.

George N. Leighton:

Except that in the post-conviction proceeding Your Honor, we made the same offer and we could have been heard there and they wouldn’t — they wouldn’t hear the petitioner in that case (Voice Overlap)

Felix Frankfurter:

That’s because it was excluded — it’s offered and excluded at the trial.

George N. Leighton:

Well, may I make it clear Your Honor that the confessions themselves never were offered.

Felix Frankfurter:

No but the fact of — not the confession themselves but the basis for putting in the fact that there will be —

George N. Leighton:

That’s right.

Now, just to touch the point again Your Honor, may I call your attention to fact so that we may not mislead.

I think it fair to say that in the hearing before Judge Butler on the motion to suppressed, there was enough of that evidence that is on that evidence before the Judge of the presence of the jury.

There was enough said so that the Judge knew that at that coroner inquest, there was more than one particular crime involved.

I think that’s fair.

Now, may I just conclude now with this final thought if I may Your Honor?

One of the most persuasive facets of this record is the fact that when Rudolph Janega, the Assistant State’s Attorney began questioning this petitioner, he had to stop because the petitioner could not answer the question.

The record is without impeachment from the testimony of the prosecution witnesses that as the doctor was being led out one door, the petitioner was being led into the other room where Janega was waiting.

We now know from the pet — respondents themselves that at ten minutes after ten, they took the first confession.

I invite Your Honor’s attention to the confession in question, particularly the question that was asked by this interrogator after Townsend was asked, “What did you take from the pocket of this man?”

He said, “Money.”

“What else,” indicating to anyone who fairly reads that confession, that the interrogator knew enough facts either prior interrogation of this petitioner or from some of the source that was something else.

There is another crucial point involved in this confession that this wallet of this deceased was allegedly found at the street called 37th Place.

When Mr. Janega asked this petitioner, “Where were you on the night in question,” and he said, “36th Street.”

Another question was put to him plainly indicating that Mr. Janega knew that the wallet was found on 37th Place by correcting him.

He offered the suggestion of 37th Place.

You can read the confession and see it.

Now, strangely enough, this wretch, this man who couldn’t answer questions, no sooner had he been giving this drug when he exaggerated six incriminatory confessions which are now part of the record which Your Honor thought sufficient to ask the respondents to file with you as answers to the — to the habeas corpus petition.

And the only thing that could have brought this miraculous result was this drug, this powerful mydriatic that paralyzes the eye muscles as described by this petitioner, that separates the connection between the central nervous system and the organs of the human body and thus subdues the will to an interrogator who wants answers incriminatory as shown by the experience of police systems, the world over.

And on these grounds, we say that this confession was involuntary and as Your Honor said recently whether it was the result of professional incompetence or official malice, the right impinged upon is just as sensitive whether it’s intent or would be the consequence which follows when a confession is taken to take human life.

Earl Warren:

Mr. Hladis.

Edward J. Hladis:

Mr. Chief Justice and may it please the Court.

Mr. Chief Justice, before I begin my argument I would like permission of the Court to correct and with my apologies, a clerical error on page 37 of our brief.

It is the fifth last line of the second paragraph, the sentence beginning, “beginning about 11:15 and it reads am, it should read pm.”

I’ve discussed this with Mr. Leighton and he agrees that such is the fact.

Earl Warren:

Just where did you say it is Mr. Hladis?

Edward J. Hladis:

The fifth last line of the second full paragraph on page 37 and the line should read beginning about 11:15 pm.

Earl Warren:

PM.

Edward J. Hladis:

PM.

Earl Warren:

Very well.

Edward J. Hladis:

Gentlemen as the respondents view this controversy as is been presented by the petitioner’s petition for writ of certiorari as well as his brief, it is our view that it is — it is resolved into two issues, the immediate issue whether Judge Igoe, the United States District Court Judge in Chicago, abused his discretion, when in accordance of the mandate of Brown versus Allen, he determined that the issue was raised by the petition where the habeas corpus had been fully and fairly raised in the state court proceedings, having explored there, and that the petitioner was accorded fair treatment and due process and accordingly it was unnecessary to continue any further with the cause.

That lead us to the more fundamental issue, and that is whether on the basis of that state record there, which we frankly admit is the only thing that we can advance in the State of Illinois in support of our claim that this petitioner in this particular controversy was treated fairly by the authorities.

I think that the last question which was propounded by Justice Frankfurter, a question which relates to the use of the coroner’s minutes at this time when during the trial of the proceeding in the trial court, when they were sought to be used by the state for purposes of an impeachment, able defense counsel objected vigorously.

I think that question focuses the attention of everybody upon a difficulty which is present in the proceeding here.

The defendant took the stand at the trial, did he?

Edward J. Hladis:

Oh yes, twice.

As distinguished from the suppression?

Edward J. Hladis:

Oh!

He took it on the suppression and also before the jury, yes sir.

So he was subject to unrestricted cross-examination?

Edward J. Hladis:

That’s right.

The explosion came at the time on the – on the motion to suppress during the preliminary hearing which is outside the presence of the jury.

As the case has been posed here, and with all due respect for a very good friend and opposing counsel, the only breach which the petitioner advances here in this Court between the federal judicial system and the Illinois system is the judgment of conviction.

As we read his petition, as we read his brief, he would just as soon present this case on a sort of a priori basis with little or no regard for the record as it was made down below.

Coming to what we consider is the first and the immediate issue, the question as to whether Judge Igoe acted properly when he proceeded no further with any hearing, but relied after an extensive investigation analysis of the state court record upon the findings of the state court.

We call the Court’s attention of course to the landmark case of Brown versus Allen which is explored thoroughly.

The function of a trial district judge and which has laid down the limitations and a formula so to speak of procedure.

We also call attention to a case which came out of our own state, Jennings v. Ragan, which correct and justifiably so, which corrected a procedure which had grown up there of the trial courts relying strictly upon the opinion rather than upon the record.

So that now, the district judge is bound before he makes any determination, without further hearing of a federal petition for habeas corpus, is bound to make his own independent analysis and investigation of the state court record.

And if he should find upon that investigation that there is no vital flaw, that all issues raised in the federal petition for habeas corpus were fully raised, were fully explored and fairly explored by the trial — by the Illinois or state court trial system as well as the courts of review then he is entitled as a matter of law to dismiss the federal petition for writ of habeas corpus without further hearing.

Felix Frankfurter:

That depends on the allegations in the — in the application for habeas corpus, doesn’t it?

Edward J. Hladis:

Well yes it does except this and I will lead back into the last question which you asked Mr. Leighton.

If the allegations of the federal petition for writ of habeas corpus should advance matters which were either present in the trial court record and were not exploited or which could have been made available thereby changing — a change in trial technique or trial strategy, then I respectfully submit that in view the very sensitive relationship between our federal and state governments and particularly in the field of criminal law and the administration thereof, that a man should not be allowed to change or to adopt a new trial strategy on the federal level, because after all, as I see it Your Honor, the federal statute empowers a federal court to review a state court judgment from the standpoint as to whether or not he has been denied due process of law.

Felix Frankfurter:

But again — one — this Court, or District Court rather again answered your — the question you just put unless he examines, unless he puts the file for CDs alongside of the allegations in the application for habeas corpus and finds out whether or not and if so why allegations made in the applications for habeas corpus were not canvassed, if they were not canvassed in the trial court and the state court, otherwise you can’t tell, can you?

Edward J. Hladis:

Well, that is right.

Felix Frankfurter:

I mean the District Court must examine and see what happened in the trial court in order to find out where there anything is open for him to consider?

Edward J. Hladis:

That’s correct.

Coming back now to a conclusion of our first point and that is under question as to whether Judge Igoe acted properly, we submit respectfully that he did and that a fair analysis of the state court record will show that the petitioner herein, Charles Townsend was accorded due process of law.

That comes to — come — bring us the fundamental question in this entire controversy and the question as it revolves about the admission of state’s Exhibit 2 which is the written confession in question.

At the very offset during the course of Mr. Leighton’s argument, a series of questions were directed toward him on the possibility of Mr. Leighton’s claim that there was some collusion between the State’s Attorney, the court reporter, the police officers and the doctors to bring about a condition in this particular petitioner which will unable him to confess to a series of crimes.

I think it’s only fair to the court particularly since the question was asked several times, although I am familiar with the practice, as a policy I can explain why the State’s Attorney as well as the court reporter were present, that is now the matter of record.

Now, if I may go in to that, I’ll be glad to explain that.

In Cook County, Illinois, the State’s Attorney is staffed by 120 assistants and about 110 of those assistants are assigned to what is known as night duty.

Felix Frankfurter:

How many did you say?

Edward J. Hladis:

There are 120 assistants roughly and about 110 are assigned to what is known as night duty and for almost four years I was assigned likewise and I know what it is.

Felix Frankfurter:

When do they sleep?

Edward J. Hladis:

I beg pardon.

Felix Frankfurter:

When do they sleep?

Edward J. Hladis:

That’s a good question sometime and the County and primary the city is divided into two.

And for as you gentleman may know or may not know, the dividing line in Chicago is Madison Street for north and south, and State Street for east and west, so they take Madison Street and cut it right down the line.

And it so happens that the police districts which are about 40, 42 in number, just about divide about equally and the crime rate just about divide equally.

Well, as a matter of policy which has existed in the Chicago — in the Cook County State’s Attorney’s office for years regardless of which type of administration was in office, in cases of all homicide and aggravated assaults, police are not, police are not to take confessions, written confessions.

Now, how does that come about?

A man is arrested and he is interrogated by the police.

As soon as an admission is made, it is then the police officer’s function to call the States Attorney’s office in the west side of criminal division where there’s a man in attendance all the time and he says, “We have John Doe here.

He has confessed to the homicide happening and so and so.”

The next step is for the Sergeant at the desk at the office to call whichever of two men are on duty and that call can come in at anytime and he says, “Call the 29th District, call the 36th District and talk to Lieutenant” so and so they have so and so.

And the assistant is under certain responsibilities too because he immediately calls and of course his first question is, whether the man is able to talk, is he sober, has he given a statement?

In other words, care has always been taken so that the State’s Attorney would not become involved in any manner or whatsoever in police investigation.

In other words, the man is ready to give a statement.

When the assistant ascertains that that happens then it is his duty to call his office back and get one of the court reporters, now they have four, they are employed regularly, so that means court reporters are out every fourth night.

Edward J. Hladis:

Now, that is the reason that Mr. Janega and Mr. Matsuoka, the court reporter worked at the 29th District because as Officer Corcoran testified before the gentleman became ill in this case, he had made an oral admission to the Boone murder and it so happened then that the State’s Attorney was notified and Mr. — it was Mr. Janega’s turn and he went out.

Was that admission before he’d been — any drugs have been administered?

Edward J. Hladis:

Yes sir, that is right.

What page is that at the record, do you know or never mind if you don’t.

I’ll find it, never mind.

Edward J. Hladis:

Corcoran is the man that testified to it sir and I might add that cautionary instructions were given on that confession.

I might add also as perhaps this Court knows already that no attack, no attack had been made in the Illinois court of review on the giving of any instructions even though they had all been spread in the abstract of the record.

And the first construction of the two which relates to the oral admission says definitely that an oral admission has been made in this case and admitted and then the caution is given as to how it is to be considered.

Never any objection made to that confession —

Charles E. Whittaker:

Would you mind stating again the name of the witness.

Edward J. Hladis:

Corcoran.

Charles E. Whittaker:

Cagney?

Edward J. Hladis:

Corcoran, Officer Corcoran.

Felix Frankfurter:

But plainly, the state wasn’t contended to rest on that oral confession or admission?

Edward J. Hladis:

No.

Felix Frankfurter:

And therefore the vice or virtue of the written confession is essential to the case?

Edward J. Hladis:

That is correct.

Earl Warren:

Could you tell us what that admission was and when was relation to calling the doctor please?

Edward J. Hladis:

Well, the record shows that Mr. Janega was called about 8:35.

That admission must have come sometime between 8:00 and 8:30 because as I remember the record, Mr. Janega arrived about 9:05 which is just about correct, because I have to know the gentleman lives and how far yet to travel and at the time that he arrived, the doctor had not yet arrived, because Mr. Janega saw the petitioner suffering from the throes of the withdraw symptom and primary (Inaudible) area.

So that would be roughly 45 minutes before the doctor arrived.

Earl Warren:

Was that — that was while he was suffering these intense withdrawal pains?

Edward J. Hladis:

The record is not too clear on that sir.

They were talking to him.

Earl Warren:

He was being questioned?

Edward J. Hladis:

That’s correct.

They were talking to him.

The night shift came back on and then they brought — had him brought over from the other station back to the second district.

They began talking to him about 8:00 in the evening, and then all of the sudden, the withdrawal shut in and he got this intense stomach cramps and pains which — which are consistent with that problem and he told them that he couldn’t — couldn’t say any further and he asked for help.

William J. Brennan, Jr.:

(Inaudible)

Edward J. Hladis:

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

Edward J. Hladis:

I have that worked out to in my brief.

I’m looking for that annotation.

I’m also looking for the annotation Officer Corcoran’s testimony.

That is correct, he returned about 8:30 record V90-100, that’s I’m reading from page 35 on my brief sir.

William J. Brennan, Jr.:

Well, now what (Inaudible)

Edward J. Hladis:

I beg your pardon sir.

William J. Brennan, Jr.:

When was this oral admission was made, was it after he returned —

Edward J. Hladis:

Oh yes, they were assigned to that case.

William J. Brennan, Jr.:

Well then this — is that to say then that the oral admission must have been made after 8:30?

Edward J. Hladis:

After 8:30, yes.

William J. Brennan, Jr.:

But Mr. — your associate was not called at 8:35?

Edward J. Hladis:

I beg pardon.

William J. Brennan, Jr.:

The —

Edward J. Hladis:

He was called about 8:35 according to his memorandum to his superior.

It’s dated January 4, 1955, 8:35 pm on January 1, 1954.

William J. Brennan, Jr.:

Yeah.

Edward J. Hladis:

And he would need at least a half hour to travel a distance from his home to the 29th district place.

William J. Brennan, Jr.:

Well I thought you told us that the practice was not to call one of the attorneys until it was clear that the suspect was ready to talk.

Edward J. Hladis:

That is correct, except that the — the attorney and the assistant judges from himself whether the man is in a position to talk or what he says is worth taking.

If it’s still in the area of police investigation, the assistant has the discretion refuse to come out of that time.

William J. Brennan, Jr.:

What I’m trying to get clear is, if the oral admission was not made until after 8:30, then almost simultaneously the State’s Attorney must have been telephoned and told about this, is that it?

Edward J. Hladis:

Well, we have a five-minute period during which time Mr. Townsend must have made the oral admission and it must have been categorical enough because Mr. Janega informed his superiors that he left or he received the call at 8:35 and left.

Earl Warren:

What was the admission that he made Mr. Hladis?

Edward J. Hladis:

That he had committed the Boone murder.

Earl Warren:

That he committed the —

Edward J. Hladis:

That’s the — I believe that substantial what the record means to.

Tom C. Clark:

Where is all this in the record?

George N. Leighton:

May I assist, it’s on page — you’ll find the testimony of (Voice Overlap) —

Earl Warren:

You may.

George N. Leighton:

— page 649 to page 651 of the type written record.

Tom C. Clark:

(Inaudible)

George N. Leighton:

649 to 651.

Tom C. Clark:

Thank you.

Edward J. Hladis:

That’s C — there’s volume C Your Honors 649-652, Mr. — Officer Corcoran testified.

Now, coming back to the chronology of events here, we have the arrest of this gentleman during the early hours of January 1, 1954 and it is undisputed in the record at sometime around midnight or shortly thereafter, he had taken a shot of narcotics in order to satisfy his habit.

The state’s testimony is that during those early hours —

Felix Frankfurter:

Just by way of curiosity —

Edward J. Hladis:

Yes sir.

Felix Frankfurter:

— people held in a condition and which he was given access to narcotics, although he carried on his person, is he allowed to?

I’m just curious.

You say he took another shot of narcotic (Voice Overlap)

Edward J. Hladis:

But before he’s arrested.

Felix Frankfurter:

Beforehand —

Edward J. Hladis:

Before he is arrested.

Yes, it was some two to two and a half hours before he was arrested.

From the record, I always say it perhaps around stroke at midnight when that happened.

According to the State’s testimony, he was talked to or spoken with for about half hour, statistical information was secured.

There were general questions about crimes in the area.

His testimony is, otherwise, he claims that there was interrogation there for period about an hour and a half to two hours.

It is undisputed that as of 5:00 in the morning, he was taken from the second district to a district few miles away.

I might add at this point that that happens quite often in City of Chicago because some police districts have better facilities than the others.

You’ll note it from this record that while he was held at the second district, he was held in the woman’s cell.

It was vacant of course at that time, but the areas — in some of the police district, the areas were quite limited and they don’t have much working space.

Nobody talked to him except by his own testimony, he was asked one question by the keeper at the second police station that was if he wanted food and he refused it.

And then in the evening of January 1, 1954 when a squad of a four men namely Cagney, Fitzgerald, Corcoran, and Martin — Martin returned to work and would have been assigned to the series of cases.

He was returned to the second district and thereabout 8:30, the interrogation began.

As I stated before, Office Corcoran testified the fact he made his oral admission and Mr. Janega was called.

He arrived about 9:05.

Edward J. Hladis:

Before Mr. Janega arrived, this gentleman, Mr. Townsend, already began — began to suffer his withdrawal problems and he made a request for help and then help was secured and there was no doubt that Dr. Mansfield is a police surgeon.

He attached to headquarters 1121 South State Street.

A suggestion is made here that — that Mr. Cagney selected the police surgeon.

Well, Mr. Cagney had no other choice.

He has no authority.

He has no budget available to call any doctor.

He must rely upon the medical help that is offered by the police department.

And according to Mr. — Dr. Mansfield’s own testimony, he’d been active since 1940 and apparently been doing quite a bit of work.

Dr. Mansfield came and a gentleman had been told, he diagnosed the case as withdrawal symptoms which arise under the fact that narcotics have left, in the case of an addict, have left the system, the human body and the person needs to more narcotics and he goes into these intense pains.

He gave him a treatment, 1/230 of hyoscine and a 1/8 grain of phenobarbital.

Now, a suggestion or more than a suggestion has been made here by opposing counsel that Dr. Mansfield contradicted himself, but he spoke of grains on emotion the preliminary hearing then he spoke of grams when they were before the jury.

That’s the first time I’ve ever heard that distinction made during the eight years of this case has been in court proceedings.

Hugo L. Black:

Do you know what would have happened if they given him the amount of this medicine that is necessary to (Inaudible) that he was given?

I believe it is about 18 times about —

Edward J. Hladis:

That is correct.

Hugo L. Black:

— the normal dose 16.

Felix Frankfurter:

16.

Edward J. Hladis:

That is correct.

Hugo L. Black:

16 at one time.

Edward J. Hladis:

Mr. Justice Black, I tried to catch up on some pharmacology on this but I haven’t caught up with that much as I — I can give you an answer that rapidly as to what the effects would be.

But I dare say that it might be radical, dare say that it would be radical at 16 times because by — according to the petitioner’s own medical authorities, the therapeutic dose is six tenths of a milligram up to a little bit over one.

Now, that’s a therapeutic dose, and not a toxic dose and I would say that 16 times 1/230th would exceed by far the therapeutic dose.

And of course, hyoscine perhaps is just like any other drug if it’s given in excess just like commercial aspirin can bring on the toxic effect.

Now, coming back to counsel’s observation of the claimed discrepancy between Dr. Mansfield’s testimony in their preliminary hearing as against the jury the jury — their hearing before the jury, I have examined rather thoroughly and as carefully as I can and I respectfully suggest that that’s a typographical error and the reason that I say it is, if you examine Dr. Proctor’s testimony on rebuttal before the jury and the questions as they were propounded by counsel for the defendant in that trial never once that he speak of grams, he spoke of grains all the time.

Felix Frankfurter:

Can you tell — tell us whether in the application to habeas corpus before Judge Igoe, a specific allegation was made that there was administered to the applicant, counsel by a state or a city doctor, the dosage which would have that you call these radical effects.

Edward J. Hladis:

No.

Felix Frankfurter:

Is this issue adverted to, however, indirectly but sufficient — sufficiently so to indicate that’s an issue raised namely for one reason or another, the state official, the state doctor administered a toxic producing drug, is that in the application?

Edward J. Hladis:

No, that is —

Felix Frankfurter:

The habeas corpus before Judge Igoe.

Edward J. Hladis:

That is not Your Honor.

Felix Frankfurter:

If you read it as carefully as any human being could, would it be alluded to the fact that that issue is sought to be canvassed by new testimony?

Edward J. Hladis:

As far as I can determine, no reference has been made to those issue at all and I might say — I might — and I think it’s consistent with counsel’s argument here today, that counsel is very adroitly avoided any issue of dosage.

And they sort move down an area of attempting to convince this Court that the administration of the drug, regardless of the amount, regardless of the dosage per se vitiates the confession.

Well, of course that raises problems too.

Felix Frankfurter:

Well that is cheap play, isn’t that right?

Edward J. Hladis:

That is right.

Aspirin is a drug too.

Felix Frankfurter:

That’s the ground on which that Justice Schaffer dissented.

Edward J. Hladis:

That is right.

Felix Frankfurter:

That’s been an issue in the case from the time it got, certainly as far as the record before me goes, it’s been before Supreme Court Illinois in whatever it was 1958.

Tom C. Clark:

That’s a normal dose.

Edward J. Hladis:

I beg pardon.

Tom C. Clark:

That’s a normal dose on 16 to one.

Felix Frankfurter:

No, no, no.

No, there was no question of dosage before this —

Edward J. Hladis:

He makes no issue of dosage at all.

Felix Frankfurter:

(Voice Overlap) indicated that.

Edward J. Hladis:

That’s right, and I think that’s a fair —

Felix Frankfurter:

Along by years, Supreme Court of Illinois has affirmed this conviction, on March 20, 1957.

Edward J. Hladis:

Well of course that raises the question before this Court.

I mean of we pursue the petitioners argument to its conclusion.

Felix Frankfurter:

If he’s right about this, if it should — should be so, assuming having no thought of — but I’m stating, making a prophecy, I haven’t view on it, assuming this conviction or assuming that there was an affirmance, that he’s right on this issue, he could start all over again in the District Court, the U.S. District Court saying that in fact that now he found out that what he hadn’t known before for one reason or another that a toxic producing dosage was administered.

I suppose that can be raised along as (Inaudible)

Edward J. Hladis:

Yes, it could be.

Felix Frankfurter:

Well, the state would have to answer and then —

Edward J. Hladis:

Whether it should be or not —

Felix Frankfurter:

I’m not suggesting.

I’m not commenting litigation.

Edward J. Hladis:

That’s right.

Felix Frankfurter:

I have the opposite in this.

Edward J. Hladis:

There’s no doubt about it that it could be raised, but I think the approach and the argument would be the same that it’s been made to this Court if I remember correctly, since the first petition writ of certiorari was filed.

If you go back to the October term in 1957 when the first petition was filed, you will find that the argument, the materials advanced, the medical authorities are practically identical with those which are quoted in today’s brief.

And if you examine the record and particularly Doctor Proctor’s testimony, the toxicologist, you’ll find that he’d made reference to the identical authorities which are being advanced in today’s controversy.

So that the benefit of that knowledge at least, the benefit of that knowledge was presented in all that it’s asked, makes to the trial court, not only when the question of competency came up before Judge Walker Butler outside the presence — presence of the jury but when the question of credibility came up in the presence of the jury.

I’d like to make just one more remark about the question of dosage and the argument as we see it has been leveled primarily at the use of the hyoscine scopolamine.

Judging from the counsel or the petitioner’s own medical authorities which he advances in his brief.

As I said before, the normal adult therapeutic dose was somewhere five-tenths to sixth tenths of a milligram up to an over one.

Here, we have less, less than 2900 of a milligram which is almost half or I say half of the normal dose.

Now, the — there have been several questions raised as the possibility of what would happen if this case got back or if it should go back whether there could be a hearing.

Since the conviction was affirmed on writ of error in the State of Illinois and the petition writ of certiorari was denied here with one Justice dissenting, there’s been only one claim that has kept this petitioner alive and has kept his litigation continuing and that is the claim that the trial court was not appraised of the fact that hyoscine was the same as scopolamine and that in fact was used by foreign authorities for truth serum purposes.

Mr. Justice Frankfurter alluded to the order on the writ of error after the post-conviction proceeding wherein that order refers specifically to the point in the state court record and Dr. Hoffman was testifying at that time wherein he said that scopolamine and hyoscine are the same.

However, you examine the cross-examination of Dr. Mansfield from the very beginning, you will know that Mr. Branion knew what he was talking about and Mr. Branion was defense counsel, a man who is today, even today in the pleadings in this Court characterized as able defense attorney.

He knew when he was talking about and he examined Dr. Mansfield thoroughly on questions of truth serum.

That question was presented to the Illinois courts and very thoroughly.

Potter Stewart:

This is the same drug that called a “twilight sleeps”?

Edward J. Hladis:

I think it can be use for that purpose, yes.

Felix Frankfurter:

(Inaudible)

Edward J. Hladis:

I beg your pardon.

Felix Frankfurter:

That is the problem (Inaudible)

Edward J. Hladis:

The dramatic qualities have a reason out of — from scopolamine, from the extensive use of the drug by the Nazi’s during — during the World War II purposes.

They used it in very excessive dosage for truth serum purposes and very famous movie has been making around with that quite evident.

Of course our position is that we are far below, far below the lethal dose, the normal therapeutic dose in all condition (Inaudible).

I’d like to make two more observations Your Honors and — and I will close.

Potter Stewart:

You talked about — you talked several times about a normal therapeutic dose.

Therapeutically used this — this drug is used for the alleviation of withdrawal symptoms of narcotics, is that it?

Edward J. Hladis:

It is a recogni — it is a recognized treatment for withdrawal.

It’s used for other areas and I’m going to get into that very shortly.

Potter Stewart:

Are there — are there —

Edward J. Hladis:

Yes.

Potter Stewart:

But how about the normal dose for — for the purpose of — the truth serum purpose which is a different purpose from a therapeutic purpose?

Edward J. Hladis:

I — I examine Mr. Leighton’s authorities — medical authorities and journals very carefully and while all the authorities do not mention that is used there, even though as they do, do not tell you how much you need for a truth serum purpose, in other words to knock a person into a medic state so that he will begin to tell you things which are non-voluntary.

I couldn’t find anything in my research as to how much is used or needed in order to bring about that state.

Felix Frankfurter:

Did you answer Justice Brennan — Justice Stewart’s question that this is a conventional means of therapy for alleviating withdrawal pain?

Edward J. Hladis:

No.

It is a recognized —

Felix Frankfurter:

Well, recognized but —

Edward J. Hladis:

Yes.

Felix Frankfurter:

— but the most recognized.

Edward J. Hladis:

That right.

Felix Frankfurter:

The most recognized and certainly, is the dosage — is the grain dosage recognized as the appropriate dosage —

Edward J. Hladis:

I found —

Felix Frankfurter:

— with that purpose?

Edward J. Hladis:

I found nothing which would prescribe as to what dosage should be used in order to achieve the — the — to the alleviation of the pain of withdrawal symptoms.

Felix Frankfurter:

You mean this is entirely oral knowledge on the part of doctors?

Edward J. Hladis:

I beg your pardon?

Felix Frankfurter:

That this is — Dr. — what’s his name Mansfield?

That Dr. Mansfield —

Edward J. Hladis:

Yes, Dr. —

Felix Frankfurter:

— gave a dosage which he thought adequate according — on the basis of his experience, no (Inaudible) has nothing about it?

Edward J. Hladis:

Yes the —

Felix Frankfurter:

No medical treaters?

Edward J. Hladis:

Find the author of modern drug encyclopedia and therapeutic index refers to hyoscine or scopolamine is being a recognized treatment —

Felix Frankfurter:

But the —

Edward J. Hladis:

— for the withdrawal symptom but he does not prescribe the dosage.

No, he doesn’t.

Felix Frankfurter:

But — but on the question of dosage, the propriety — the medical propriety of the dosage given for this purpose as against truth of visitation canvassed at the trial?

Edward J. Hladis:

I would say that it was, yes.

Felix Frankfurter:

Well, then —

Edward J. Hladis:

Dr. Mansfield was cross-examined very thoroughly on that question and Dr. Proctor, the toxicologist from Loyola University who testified on behalf of the defendant, was allowed to answer very extensely — extensively a hypothetical question which went into these areas.

Felix Frankfurter:

Well, did — did the Loyola expert indicate that this dosage was not a therapeutic dosage but illicit — not an illicit but a truth evoking dosage?

Edward J. Hladis:

What the Loyola expert said was that — he thought that the injection or the dosage of the hyoscine was normal and he thought that the —

Felix Frankfurter:

Normal for the purpose of therapy?

Edward J. Hladis:

No, he just said the normal dosage —

Felix Frankfurter:

Normal?

Edward J. Hladis:

— normal adult dosage and he thought that the injection, the phenobarbital was below normal and on the basis of the hypothetical question which of course related to this defendant, he thought that that would create an amnetic condition, create amnesia.

Felix Frankfurter:

Because of the physiological constitution of Townsend, is that it?

Edward J. Hladis:

That is correct.

And of course —

Felix Frankfurter:

Now there was an examination and cross-examination of this at the trial?

Edward J. Hladis:

Oh, yes.

Felix Frankfurter:

On the suppression issue (Voice Overlap)

Edward J. Hladis:

Oh, yes, both the suppression and on the —

Felix Frankfurter:

And on the main trial?

Edward J. Hladis:

And on the main trial, you see because in Illinois Your Honors, you probably remember we have the suppression first, the competency then you go to the jury on the question of credibility.

Felix Frankfurter:

This is all canvassed at both decisions?

Edward J. Hladis:

Oh, yes.

Felix Frankfurter:

Were you — the — you take part of the hearing before the Supreme Court on appeal.

Are you in that date?

Edward J. Hladis:

No, sir.

I didn’t have it.

Felix Frankfurter:

Have you looked at the briefs before the Supreme Court?

Edward J. Hladis:

I looked at them —

Felix Frankfurter:

All I want to know is whether this issue was raised before the Supreme Court in which your Court decided that it is with Justice Schaffer finding that the administration of this as such rather than the — that was the dosage factor, or (Inaudible) an issue before that Court?

Edward J. Hladis:

As I read the opinion of the per curiam which is the majority representing five men, my reaction to it is that it is, that it has been canvassed and they did consider it and it’s well to remember that it can escape one when you begin reading a decision.

A petition for rehearing had been granted in that case, that is the second opinion, the one that now appears in (Voice Overlap) Illinois second.

Felix Frankfurter:

But they — they first disposed it on per covered on opinion I gather, wasn’t it?

Edward J. Hladis:

No, I doubt very much.

Felix Frankfurter:

There is no opinion — no first opinion in the books, isn’t it?

Edward J. Hladis:

That’s right that that it’s a — it’s a matter practice, sir because if a petition rehearing is granted, the first is not printed but it is the second which is printed.

Hugo L. Black:

Is this hyoscine commonly known or called the truth serum?

Edward J. Hladis:

No, no, it’s called the hyoscine scopolamine.

Hugo L. Black:

Is it called that in criminal investigation?

Edward J. Hladis:

I believe oppo — I believe opposing counsel is referred to one article, one law review article which refers to the use of that drug for truth serum purposes.

Hugo L. Black:

What is the truth serum (Inaudible) What is used, do you know?(Voice Overlap)

Edward J. Hladis:

Sodium pentathol is one that is used.

Hugo L. Black:

Pardon?

Edward J. Hladis:

Sodium pentathol is a truth serum.

Hugo L. Black:

That’s one?

Edward J. Hladis:

That is one, yes.

Hugo L. Black:

Is it used — what are purposes that hyoscine used for that you know off?

Edward J. Hladis:

The two use —

Hugo L. Black:

Can it be used in child birth?

Felix Frankfurter:

Yes.

Edward J. Hladis:

Yes, there — it’s used by eye doctors for the purposes of developing a cycloplegia —

Felix Frankfurter:

What does that mean in English?

Edward J. Hladis:

I beg your pardon?

Felix Frankfurter:

What does that mean in English?

Edward J. Hladis:

As you move objects particularly close, your eye, the side, the ciliary muscles they called it, have the facility of focusing rapidly, in other words so you don’t have to wait a while.

Now, the problem is when you’re go into an eye doctor for an examination, the distance doesn’t bother him, it’s to keep that eye stable while he’s working on you so they have medication prepared which has hyoscine in it, the function of which is to paralyze those two muscles on the side to stop that accommodation and that’s the reason after nine examinations, you have vomits for a few hours and the problem is this.

You cannot see close but you can see far.

Now, going back to this case —

Hugo L. Black:

What’s the purpose of its use in child birth (Inaudible)

Edward J. Hladis:

I went over rather hurriedly, sir and I — I don’t — I — I don’t want to venture an opinion as to what its use is.

Hugo L. Black:

Pain reliever?

Edward J. Hladis:

It would be in something in that area but I’m not too positive of that.

Now, another area that is used is in preanesthetic treatment.

The — the medical books tell you that hyoscine operates immediately, immediately at the — the very threshold.

Here, in the salivary glands and that is why hyoscine is used in medication for preanesthesia to dry up these glands here to prevent the flooding of your lungs while you’re under a long period of surgery.

The medical books tell us that.

Those are advanced for the petitioner.

Edward J. Hladis:

Dr. Proctor testified to that.

Now, what did Mr. Townsend said.

He never complained.

Now, here is a person, mind you that is claiming that a drug was given to such an extent that it affected the nervous system to the point of rendering in — incapable of voluntary action.

We have these two factors which become operative almost immediately and still, he said nothing about the drying of the throat or the drying of the lips or the mouth.

And when he came to his testimony as to how he saw, he testified that he had trouble with his vision.

What was his problem?

He couldn’t see far.

He saw close alright, but not far which was the exact contrary, the exact opposite as to what this drug should do.

Potter Stewart:

Well, that’s really — your probing too much.

Now, because you do conceive that this drug was administered, don’t you?

Edward J. Hladis:

Oh, yes.

Potter Stewart:

And what you’re saying now would show that it hadn’t been administered at all.

Edward J. Hladis:

Not necessarily.

Potter Stewart:

Just that the dosage was very small?

Edward J. Hladis:

That is right.

Potter Stewart:

That’s your point.

Edward J. Hladis:

That is right.

Felix Frankfurter:

I notice — looking at your table — the book you cite, the authorities, citations.

I find no reference to any of the literature and I knew about it but many years ago even then, there was already a large body of literature dealing with criminal investigations including the various drugs that are used etcetera, etcetera.

Was that covered in Chicago in the Northwestern University in (Inaudible)

Edward J. Hladis:

Yes, right in (Inaudible).

Felix Frankfurter:

He got a book on criminal investigation, are there books that deal with this problem?

Edward J. Hladis:

They do in the general area, Mr. Justice Frankfurter and I gave a lot of thought as to how —

Felix Frankfurter:

This is the — this — under — at least relatively recently, there’s a much heavier literature on the continent in England than there is with us.

But now, several institutions, they got professors of what called forensic medicine dealing with these problems.

Now, they thought these problems or haven’t they been examined which —

Edward J. Hladis:

They have not been examined and for this reason.

As I was going to tell you just a minute ago sir, I gave a lot of thought to the question as to how far we would go in our exposition of the matter.

Then we thought and we finally reached a conclusion that on the basis of the petition and the argument as it was made by the petitioner that we were dealing actually here for the question of fact as it was presented by the state court record.

Edward J. Hladis:

In —

Felix Frankfurter:

Yes, but — but in effect, what Mr. Leighton, he will correct me if I misinterpret him, in effect, Mr. Leighton says that we may take judicial notice which we — we may inform ourselves by sources other than human testimony at the trial or any of the proceedings that we may inform ourselves on the basis of scientific data with a lot of books, we’ve established that, would be recognized that the effect of this drug is essentially to put the human being to sleep.

As I understand it, that his position, isn’t it?

Edward J. Hladis:

I would —

Felix Frankfurter:

Sufficiently — sufficiently to sleep so that what emanates from the mouth, hasn’t the attendant mind behind it.

Edward J. Hladis:

I would — with your permission I would withdraw the adverb essentially or not even substitute primarily like I will concede that even on the basis pr perhaps the authorities advanced by Mr. Leighton that that condition can be induced with a cer — with sufficient doses.

There’s no doubt about it.

Felix Frankfurter:

Oh, certainly.

Edward J. Hladis:

But of course, it is our position that no —

Felix Frankfurter:

Even so as — so as toxic quality with the treatment of these many dosages.

Edward J. Hladis:

That’s right.

Felix Frankfurter:

So that’s talking about poison, doesn’t say much.

And what you’re — are you saying then that — that granting that this drug has potentialities of sustaining the claim he makes, the potentialities turned into reality only on proof that the dosage was of such a quantity that it did have that effect.

That’s your position, isn’t it?

But if — if it was given with a truth serum, it was given with a dosage that would have this paralyzing — mentally paralyzing or will paralyzing effect then the confession is (Inaudible) and what you say is that, if I follow you, that this issue was canvassed in state courts and — and the — there’s no basis on this record for finding it.

Edward J. Hladis:

That’s right.

Your Honor, if that —

Felix Frankfurter:

That’s why you say he goes beyond that and you say that this Court may — may as to the matter of judicial notice find and conclude that the effect of this drug is inescapably to paralyze the will or freedom of the words.

Edward J. Hladis:

Well, the evidence is to the contrary to trial and as to your second question, Your Honor, if that were the case, I assure you, we would not be here this morning because no confession would have been taken in that condition existed at that time.

In other words, if the dosage had been so great as to paralyze the — the man’s mental abilities.

Felix Frankfurter:

The issue — the issue really is that — I — I feel that my job is to go and look up all the books on toxicology, forensic medicine, etcetera, etcetera and find out what is their basis for my concluding that in fact, this drug cannot be administered, that there isn’t an innocent dosage of this drug so far as keeping the will and the mind free.

That’s really what the issue is intended means.

Now, what about, it hasn’t been dealt with, there were subsequent confessions.

How long — how long — assuming the drug does operate, the way Mr. Leighton contended operates, how long is that such a numbing effect lasts?

Edward J. Hladis:

According the defendant’s or petitioner’s own tes — witness, five to eight hours.

Felix Frankfurter:

Five to eight hours.

Now, were there confessions after that?

Edward J. Hladis:

Well, he signed a written confession the following afternoon about 1:00 which would bring us in 1, 12, 13 hours later, that was on Saturday, sometime, he was taken over at one this happen in the afternoon at State’s Attorney’s Office and then the following Monday, at the coroner’s inquest, he admitted the Boone murder orally.

Felix Frankfurter:

If the — the state claim — what is the state’s provision as to the independent validity of those confessions?

Edward J. Hladis:

We say they are valid.

Felix Frankfurter:

What?

Edward J. Hladis:

We say they are valid as we say the written the confession is valid.

Felix Frankfurter:

Yes, but assuming — assuming the first confession was invalid, can the subsequent confessions, pieces of paper amounting to confessors so far as the words go, can they have testimony of validity considering the fact that they were reproductions of the original, for the purposes of my question, original invalid confessions?

Edward J. Hladis:

As to the confessions — or let me put this way, as to the act of signing the confession on Saturday afternoon, the one that was taken to previous Friday, some 13, 14 hours after the drug had been administered, I say that that would be admissible, for this reason, that it was not a mere act of signing.

The evidence at the trial will show that Mr. Townsend was given a copy of the confession and he followed as the confession was read aloud to him and he followed it page-by-page and signed it.

And by the testimony of his own witness, the drug, if it had any detrimental, any radical effects had already spent itself we say —

Felix Frankfurter:

But he was confronted with something that he confessed to, that what was if you please, extorted from him by virtue of this drug which was an illegal intrusion into his rights.

And therefore, he is already even confronted with something that might be used against him (Inaudible) what Court will decide, so (Inaudible) to say that — that that considered adoption of the earlier confession even if dependant act on his part admissible as such.

Edward J. Hladis:

Expect this, Your Honor, if that — that might be true if there were just a mere of act of signing, but the fact that you take the petitioner through and explore every area of the confession, if he didn’t remember having given that confession the night before, he could always say, “Why?

This isn’t mine.

I never did this” and refuse to sign it, but in spite of that, he did sign it.

Felix Frankfurter:

Was he — was he cross-examined as to the circumstances — regarding the circumstances of this second piece of paper where the signature is acknowledged?

Edward J. Hladis:

Yes. Yes.

Felix Frankfurter:

What was his testimony as to the circumstances under which he signed, this being twelve or thirteen hours after the effect of the drug was drawn?

Edward J. Hladis:

His testimony was that he felt much better, but he was still oozy that in general is his — is his testimony, but he remembers being taken over the State’s Attorney’s Office and, he — he felt oozy.

I might add, and of course, it’s brought out in our brief on his question of amnesia, during the first trial, the Stinson trial, the petitioner had testified that he remembered, the assistant taking the confession from him, the signed statement on Friday night whereas in the second trial, he may have — made a claim that he didn’t remember anything and, of course, that was brought up by way of impeachment.

Lest you gentlemen, may wonder precisely why you — you have a taking of the confession in the one night and assigning the following day, gentlemen, there — there’s — it’s a matter of mechanics.

The court reporter has no typewriter with him, and he has to go to the office the first thing in the morning and he transcribed his notes and that is the usual manner and that’s why signing will take place sometime a day later.

You have to give him time to transcribe.

Felix Frankfurter:

So this was merely a — a transcription from the stenographic notes, is that it?

Edward J. Hladis:

That is correct.

Yes.

That was the oral — the confession that was given and it was (Inaudible) the writing.

And — it is a matter of practice.

We take the man through it again, step-by-step and make sure he understands it.

Earl Warren:

Mr. Hladis, what — what is your response to Mr. Leighton’s argument on these other murders that he was supposed to have committed?

Edward J. Hladis:

Well, on the Stinson murder, I think it’s fair to say that everybody was surprised and particularly defense counsel because the coroner’s inquest record is here.

They not only had the petitioner’s statement, they had the coat of the decedent, they had the watch of the decedent and the shoes of the decedent which that — Townsend had sold to somebody else and they wound up, one on the pawnshop and — all were recovered.

In spite of that, the man was acquitted.

I think it’s — it’s an interesting commentary in the face of that evidence, a man can still — he’s given a fair trial and if there — there’s a feeling among the jury that he wasn’t proven beyond a reasonable doubt for some reason or other, he will be acquitted.

Edward J. Hladis:

On Thompson, no statement was taken at all.

Earl Warren:

No what?

Edward J. Hladis:

No statement was taken on the Thompson death at all and the reason that it wasn’t taken was that the Assistant State’s Attorney experienced the same problem with Thompson on Friday night that the coroner did the following Monday.

All he could say is, “I could have.

I could have done it but I don’t remember.”

And the Thompson inquest, if I remember correctly, is the one wherein he admitted that he had slugged, if you will, at least 10 people with a brick as he came up usually from behind and then attack them.

The Johnson — Johnson as the gentleman, who was struck, got up — he was found outside, got up stairs to his flat and was taken to (Inaudible) and then eventually to Cook County where he died.

He is the gentleman that had stopped off for drink and all he would say, “It was just one of those things.

It was an accident.”

We don’t know.

We don’t know because Mr. Johnson is not here whether he saw his assailant.

I have tied to analyze the coroner’s pathological report and as I get it, the — the blow must have come in this area here, happened in the evening or in the dark and to use a vernacular, it might be just one of those cases where a person did not know what hit him that brought his attack.

A statement was given on that as to how valuable the statement would be if it were admitted, how valuable — valuable it would be for the purposes of trial, I don’t know.

There were two additional statements were given.

Those are here, also, in support of the additional answer, those are the statements of Mr. Martin, the laundryman, and Mr. Anagnost, the insurance man.

Mr. Anagnost is the man who remember who was at the police station on Friday night and they had to show-up.

And there’s no doubt, he identified the wrong person.

And there’s been a quarrel in this record as to whether some of the cops began drumming the insurance man and telling him, “Well, you talked — you identified the wrong man” and that’s been denied. However, the Anagnost statement was the first statement that was taken at which time Mr. Townsend admitted that he had assaulted him and robbed him of some $110, I believe.

Mr. Anagnost was an insurance man of the Metropolitan Insurance Company.

The important thing about it is that Mr. Anagnost was brought in to the room there and Townsend identified him and Mr. Anagnost never denied when that statement was being taken that you’ve got the wrong man.

Those, Mr. Chief Justice, are my explanations.

I — as I’ve said before, the — the strongest case by far was the Stinson case and still it’s — did not come about that way.

Earl Warren:

May I ask this, I don’t know if that bears at all, but you said there were some 10 people who were hit with a brick in this way.

Did any of them positively identify this man as the one who — who had struck him?

I don’t know that it’s material but —

Edward J. Hladis:

I don’t know —

Earl Warren:

— why don’t — why don’t — don’t bother.

Edward J. Hladis:

Anagnost is the closest in the sense that he did not deny when he was brought in.

Now, there maybe records back.

There were going back to 1954, Your Honor —

Earl Warren:

Yes, yes.

Edward J. Hladis:

— and they’re — and maybe Martin was brought in.

I do not know.

Earl Warren:

Question probably shouldn’t had been answered at all, so it’s alright.

So it’s alright.

Edward J. Hladis:

Oh, that’s quite alright.

Well, thank you very much, gentlemen.

The questions that were asking, I’m sure the issue would have been explored very thoroughly.

Earl Warren:

Mr. Leighton.

George N. Leighton:

Mr. Chief Justice, may it please the Court.

I’d like to clarify the question concerning office of Corcoran’s testimony.

It has been gone into, I’ll touch upon that briefly.

Earl Warren:

Mr. Leighton, may I ask just one question and —

George N. Leighton:

Yes, Your Honor.

Earl Warren:

— I will — I’ll try not to bother you the rest of your — rest of your time.

As I understand that the theory of your case is that — that this so called normal dose, if it — if it was a normal dose, has he test — doctor testified at one time in the — in the proceedings was in and off itself sufficient to destroy this man’s resistance to — to question.

Now, if we accept that as a fact, what would 16 times that dose do to — to him, and his mind?

George N. Leighton:

Your Honor, as I understand it, it would have produced the kind of amnesia condition which he himself described as I understand from the pharmaceutical —

Earl Warren:

It — it would not have been — it would not have been 16 times, that normal dose would not have been enough to kill him or to paralyze him or to — to make him entirely non-compos?

George N. Leighton:

It would not have done that, Your Honor.

Earl Warren:

It would not have done that?

George N. Leighton:

Not from my knowledge of the subject.

Hugo L. Black:

Does the evidence show that?

George N. Leighton:

Well, if Your Honor please —

Hugo L. Black:

In one way or the other?

George N. Leighton:

— there is in the record, luckily, for us, there is in the record, in the typewritten proceedings in the district — in the trial court, there is, luckily, on pages — I like to find it exactly, at the last part of the typewritten record, there was a tender of proof made concerning the effects of hyoscine and the therapeutic dose.

And those pages are pages 1187 to pages 1191 and the therapeutic dose of hyoscine is given there and incidentally —

Earl Warren:

Who — who’s testifying?

Who’s testifying that?

George N. Leighton:

That was a ca — in the instance in which this — the defense attorney, Mr. Branion, read out of a book he had in his hands which is — was considered by him as being authoritative.

Earl Warren:

Yes.

George N. Leighton:

I find that portion of the record consistent with the authorities that we relied upon concerning this drug and I might say to Your Honors that according to my research, the outstanding pharmaceutical authority in this field is Goodman & Gilmore.

We have cited that and my inquire —

Hugo L. Black:

What was the name?

George N. Leighton:

Goodman —

Hugo L. Black:

Lukeman?

George N. Leighton:

Goodman & Gilman and the name of the book is “The Pharmacological Basis of Therapeutics.”

I am advised by doctors and pharmacologists that Goodman & Gilman is considered the bible of pharmacologists and doctors in this particular field.

And they give a very nice description of the effects of hyoscine, its history, its use and how it’s been used both in therapy and in criminal investigation and this portion of the record is consistent with Goodman & Gilman.

It’s consistent with the other authorities we’ve cited and relied upon, the British Pharmacopoeia, the epiphany of — of Pharmacopoeia of the United States, (Inaudible) Henry, “The Plant Alkaloids” and other which appear in the index to our brief.

I found it necessary to add an appendix to this brief, which, I think, is an answer to a question of Mr. Justice Frankfurter.

There is a vast amount of literature on the use of hyoscine and scopolamine in criminal investigation both in this country and in Europe.

And that appendix appears on pages 33, 35 of our brief and it is by no means exhaustive.

Scopolamine has been used in taking confessions from persons in arrest beginning around 1922.

And the article which is most informative on this subject is an article that appears in the 18th Texas State Law of General Medicine, page 231, published in 1922 which gives the experience of a doctor in Texas whose name escapes me right at this moment but who was the origin — who really originated the idea of the use of hyoscine and scopolamine in criminal investigations.

It was he who discovered that upon the injection of a sufficient dose of hyoscine to a woman in the birth stage, she lost contact with the actual functions of the ovary muscles and other portions of the female body that gave birth to children and it put her in what was then colloquially described as “twilight sleep” so as to aid the birth process without pain.

That use had been discontinued medically because it has other deleterious effects on women and — and that has been the history of the drug in that regard.

Now, if Your Honors please, I was going to go back to officer Corcoran’s testimony.

And I wish —

William O. Douglas:

Some — some of the literatures shows very slow degree of success of getting a confession.

George N. Leighton:

That is true because the — the success — to me, there was successful, if Your Honor please, it also had other effects.

The — the drug had other effects.

For example, in some cases, it would put the subject into delirium and the presence of pain and many other physiological factors were important.

It isn’t — it hasn’t been successful but there was an intensive investigation and experiment into this field and it was thought at the time, they had an answer to criminal investigation.

There were some people who thought it was really the answer to the whole subject.

William O. Douglas:

I do know that the French used quite extensively.

George N. Leighton:

The French used it and we cite (Inaudible)

William O. Douglas:

Yes.

George N. Leighton:

— drugs under mind.

William O. Douglas:

That — that work says if the French courts have not admitted any confessions obtained —

George N. Leighton:

That’s right.

William O. Douglas:

Is that — is that true?

George N. Leighton:

That’s fairly correct.

They experiment a great deal about it. (Inaudible) Gagnieur, the judicial views of psych — psychoanalysis and — Psychonarcosis in France, extensive literature on the subject and the use of the word “truth serum” came out of this — this period of — of history of the drug.

Potter Stewart:

Wasn’t it true — doesn’t the — doesn’t some of this clinical scientific material show that — that far from eliciting the truth, it often elicits delusionary telling?

George N. Leighton:

That’s right, Your Honor.

That’s the reason why the experiment thought to be unreliable.

Potter Stewart:

Right.

George N. Leighton:

And it would produce halluci — it produces hallucinations in the subject —

Potter Stewart:

Correct.

George N. Leighton:

— so that the product was not reliable.

Now, I did want to touch upon Officer Corcoran, if I may, Your Honor.

Earl Warren:

Yes.

Go ahead, (Voice Overlap)

George N. Leighton:

I think it’s important.

I called Your Honors’ the fact this trial to two parts, the hearing to suppress and before the jury.

Officer Corcoran testified on the hearing to suppress then his testimony appears in the typewritten record on pages 465 and to the end of this cross-examination on page 495 of the typewritten record and I invite Your Honors’ attention to significant fact at no time did he say anything about hearing Townsend make an admission.

It wasn’t until he testified in the case in chief that suddenly, quite surprising to the defense counsel and it’s in the record, on pages 644 onward, that he, for the first time, mentioned that he heard Townsend say to Cagney, “Not that I killed Jack Boone.”

He heard Cagney — he’s heard Townsend say to Cagney that he — he struck a man in a passageway on 38th Street in Michigan.

For the first time before the jury, Corcoran testified.

Now, Your Honors, I submit either that he had never heard that testimony or someone thought of the ingenious notion of not saying anything about it to advise defense counsel and then put him on as the first witness in chief and that’s what they did to testify to this alleged admission.

Now, Mr. Hladis’ penology of event is somewhat contradictory because according to Corcoran’s own testimony, this happened after the shot.

According to Cagney’s short aft — was — was had after 8:30.

Janega says, he received a call at 8:35.

So, according to Corcoran, at the time that he heard this petitioner say this, Janega already had been asked to come to the station.

Earl Warren:

What — what was that, he already what?

George N. Leighton:

Janega already had been asked to come to the station at the time that — that Corcoran heard this alleged admission.

Earl Warren:

Yes, yes.

George N. Leighton:

You see.

Now, so that — and — and significantly, Officer Cagney who was carrying the bulk of this investigation and I invite Your Honors’ attention to all of Cagney’s testimony, at no time does Officer Cagney say that he heard this petition to make an oral admission.

George N. Leighton:

Now, I had several other points that I want to cover and I — I regret the — the inability to touch upon it promptly, but, with regard to Dr. Proctor’s testimony, Dr. Proctor’s testimony was, and he is an expert, an expert pharmacologist, he answered the — the hypothetical question to the effect that this dose, which this doctor gave this man, taken into account his condition as a narcotic addict, his pain, his suffering that that amount of drug would have produced the condition which this petitioner described and would have been amnesiac with regard to his remembrance exactly what happened and would have had the effect of reducing his capacity to resist interrogation.

Now, I think Your Honor — Your Honors have understood the point.

Felix Frankfurter:

Mr. Leighton, have you availed of those briefs that were submitted to the Supreme Court of Illinois limitations are?

George N. Leighton:

I have one bound copy.

I would be very happy to make that —

Felix Frankfurter:

(Inaudible) file with the clerk (Inaudible)

George N. Leighton:

I — I will do so.

In view of this — this question, Mr. Chief Justice, may I request to the Court an opportunity to file a supplemental memorandum which will include the pages which are asked, I believe, by Mr. Justice Harlan and would be very short and I could do it very promptly and I have the means of duplicating its sufficient copies to distribute to the Court, a supplemental memorandum following oral argument if I may.

Earl Warren:

You may and you may supply any such memorandum which you may desire Mr. Leighton.

George N. Leighton:

And that will include, as Mr. Hladis kindly reminded me, to include a request that I correct also a page in the petitioner’s brief where, unfortunately, the same — typographical error occurs with regard to gram and grain on page 21 and I’ll do that by way of the memorandum.

Earl Warren:

Very well.

George N. Leighton:

Thank you and I thank the Court.

Earl Warren:

Mr. Leighton, do I — I understand you took this case by assignment from a court.

George N. Leighton:

I did, Your Honor.

Earl Warren:

Well, I — I would thank you on behalf of the — of the Court for the public service that you rendered to this indigent defendant.

We’re always comforted by the fact that lawyers are willing to undertake such assignments and, Mr. Hladis, I want to thank you —

George N. Leighton:

Thank you.

Earl Warren:

— for the very frank manner in which you have dealt with the Court and for the vigorous manner in which you have supported the judgment to be heard in the state courts.

Edward J. Hladis:

Thank you very much, Mr. Chief Justice.

George N. Leighton:

Thank you.

Edward J. Hladis:

First time of that the privilege to be before this Court and I certainly appreciate your courtesy.

Earl Warren:

Very well.

Edward J. Hladis:

Thank you, thank you.