Williams v. Oklahoma – Oral Argument – January 21, 1959 (Part 1)

Media for Williams v. Oklahoma

Audio Transcription for Oral Argument – January 21, 1959 (Part 2) in Williams v. Oklahoma

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Earl Warren:

Number 124, Edward Leon Williams, Petitioner, versus the State of Oklahoma.

Mr. Attorney General:

Please the Court, may I make a motion?

Earl Warren:

Yes indeed, sir.

Mr. Attorney General:

I move that Mr. John A. Ladner, Jr., of the Tulsa, Oklahoma Bar be permitted to argue this case for the petitioner pro hac vice.

Earl Warren:

Mr. Ladner may be so admitted.

Mr. Attorney General:

Thank you.

Earl Warren:

Mr. Ladner, you may proceed with your argument.

John A. Ladner, Jr.:

May it please the Court.

This case is in this Court by a writ of certiorari to the Criminal Court of Appeals of the State of Oklahoma.

The defendant — the petitioner in this case, Edward Leon Williams, was charged in Muskogee County, Oklahoma of the murder of Tommy Cooke.

The murder was — have taken place on June 17th, 1956.On November the 19th of 1956, the petitioner here pled guilty and received a life sentence to the charge of murder in Muskogee County.

Then — then on December 17th of 1956, approximately, in other words 30 days after the plea of guilty in Muskogee County where he received life for the murder, the County Attorney of Tulsa County had the petitioner brought to Tulsa County and there he was charged with two other crimes.

He was charged with armed robbery and he was charged with kidnapping.

The kidnapping was of this same victim namely Tommy Cooke.

The kidnapping took place also on June the 17th, 1956.

The robbery with firearms was of another victim and there is no appeal to this Court on the robbery with firearms.

We are concerned here with the kidnapping prosecution.

On January the 30th, 1957 the petitioner entered a plea of guilty to both of the charges, both the armed robbery and the kidnapping.

At that time a long statement was made by the County Attorney and which was set forth in full in the record of this case.

This is of course an appeal from a sentence which was entered by the Court, not by a jury and entered on a plea of guilty.

At the same time the petitioner through his counsel entered the record of the trial judge in Muskogee County who had handled the previous murder conviction of this same Tommy Cooke, this was done of course purposely.

And the record of the Muskogee judge is set forth in full in the record before this Court from the point that the petitioner entered his plea of guilty in Muskogee County.

And I call that to the Court’s attention because it indicates in there why the trial judge in Muskogee County gave this petitioner a life sentence for the murder of this Tommy Robert Cooke.

Now, I should also add that the petitioner was represented by two public defenders myself and Mr. Fred Woodson, we were both assigned to the case in about the 1st of January, 1957.

He had already been arraigned and was then before the District Court.

On February the 1st, the Court sentenced the petitioner to 50 years for the armed robbery, and as I’ve mentioned that was of another victim, but the armed robbery occurred on June the 16th, just one day before this kidnapping that we are appealing on and the murder.

Charles E. Whittaker:

One day before?

John A. Ladner, Jr.:

Yes, Your Honor, one day before.

He received 50 years for the armed robbery.

Then the Court sentenced the man, petitioner-defendant, to death for the kidnapping.

John A. Ladner, Jr.:

This was on the recommendation of the County Attorney of Tulsa County.

Following that — actually I should also add this that I did not represent the man at these hearings.

You will note in the record that Mr. Fred Woodson, the other public defendant represented the petitioner during the actual hearing before the Court, however, naturally we discussed the case thoroughly and I felt that we were doing the right thing.

Following the death sentence we gave notice of appeal, filed a motion for trial, which was overruled.

We appealed to the Criminal Court of Appeals, Oklahoma, briefs were filed and oral argument was heard.

Was the 50 year sentence, death sentence imposed at the same time?

John A. Ladner, Jr.:

Yes, sir, Your Honor.

The truth of the matter is, the record will show clearly that the information on the kidnapping and the information on the armed robbery and the hearings on both, while the information were separate, the hearings were combined.

It — you can’t distinguish actually between what’s being said about the armed robbery and what’s being said about the kidnapping.

And for that matter, the whole gory mess of the murder has gone through again at the kidnapping hearing.

You’ve stated a few sentences, what the reasons were that you’re referring to, (Inaudible) of the murder charge?

John A. Ladner, Jr.:

Yes, Your Honor.

(Inaudible)

John A. Ladner, Jr.:

In the record the — the sentence, that was by Judge Carroll in Muskogee County, everything that he said and everything that the Court reporter took down following the entering of the plea of guilty in Muskogee County is reflected in the record here.

He recites in there for instance that he held a hearing on a motion to quash, at which time evidence was presented.

And —

Charles E. Whittaker:

(Inaudible)

John A. Ladner, Jr.:

I beg your pardon, sir.

Charles E. Whittaker:

A motion to quash, that’s —

John A. Ladner, Jr.:

To quash the information, yes, sir, to quash the evidence of the murder.

Charles E. Whittaker:

To dismiss for (Inaudible) of evidence.

John A. Ladner, Jr.:

Yes, sir.

But the Court apparently overruled that.

I do not — that is not in the record.

In other words, our point in introducing the record of what was said in Muskogee County was simply to let the trial court in Tulsa County know why a life sentence had been imposed for the murder.

And also give him some foundation or precedent or realizing that that was the solemn judicial determination of a coordinate trial judge.

Earl Warren:

I think Justice Harlan’s question was what did the judge in this Muskogee County give — say as a reason for his — for giving a life sentence instead of a death sentence.

John A. Ladner, Jr.:

I beg your pardon.

Earl Warren:

Is it (Inaudible)

John A. Ladner, Jr.:

Your Honor, the reasons given, there were about three or four reasons.

John A. Ladner, Jr.:

For one — for one thing and I will concede this, the trial judge was operating or proceeding under the mistaken notion that there had never been in the State of Oklahoma a sentence of death for murder on a plea of guilty.

Now he is wrong about death, I’ll concede that point, there have been some three or four cases where on a plea of guilty, the death sentence has been given for the murder but he also recites some other reasons.

For one thing in Oklahoma, we have a statute prohibiting a man being handcuffed in the presence of the jury.

At one point during the proceedings the selection of the jury and they were having a very difficult time in paneling a jury.

At one point during the selection of the jury, the man was apparently handcuffed in the presence of the jury.

He recites that as one reason in addition to, as I say, the mistaken —

That was after a trial under the first sentence.

John A. Ladner, Jr.:

There was — there was no trial.

They had proceeded along with the impaneling of the jury in anticipation of the trial.

I see.

John A. Ladner, Jr.:

Then the man enters his plea of guilty and —

Charles E. Whittaker:

(Inaudible)

John A. Ladner, Jr.:

Of not guilty, yes, sir, yes, Your Honor, that’s true.

That’s true.

Earl Warren:

So what difference does it make if he was handcuffed before a jury, if the jury didn’t act and he pled guilty?

John A. Ladner, Jr.:

Well, I — I’m weighing of course only to the extent that I can what the trial judge’s reasons were.

Earl Warren:

Oh, yes.

All right.

Go right ahead and finish the plea.

John A. Ladner, Jr.:

And the other reason that he gave was in view of the fact that this defendant, there were two confessions alleged here.

Now, I have never seen the long confession.

There was apparently a long confession made, telling in detail how these two or three crimes came about.

As I say, I have never seen those confessions.

But the trial judge down there who heard the motion to quash these confessions and the evidence against this man, tells and recites that there were two confessions alleged, one of which he says was destroyed and he has never seen.

The other one, there was testimony that it was gained only after the petitioner was beaten.

Those are the reasons essentially that the trial judge recites for giving this man the life sentence.

And may I make this as clear as possible, the trial judge in Muskogee County recites in there, that I am — he said in effect, “I maybe criticized for what I am about to do.”

But he felt and I am — I admire courage of that kind.

That regardless of what the popular outcry might be, that he was doing the right thing.

No error in that proceeding on the murder conviction is appointed to anywhere by the State of Oklahoma then or now.

John A. Ladner, Jr.:

The only error apparently in that proceeding existed in the minds of — in the mind rather of the prosecutor of Tulsa County.

And the error that he felt was that this man should have received the death penalty for that murder.

So he brings it back, and starts all over again.

Hugo L. Black:

Is the record on page 22 to page 25 show all the reasons given by the judge for giving that —

John A. Ladner, Jr.:

Yes.

Hugo L. Black:

— life sentence instead of death?

Page 22 to 25, District Court of Muskogee County.

John A. Ladner, Jr.:

Your Honor, that is the entire proceeding on November 19, 1956 from the time that Mr. Williams, the petitioner, enters his plea of guilty.

That shows all of the reasons that the Court gave for giving a life sentence.

Hugo L. Black:

Well, what happened to that sentence?

John A. Ladner, Jr.:

He was sent to McAlester to start serving it and he — McAlester is the state penitentiary in the State of Oklahoma.

Hugo L. Black:

It’s never been upset?

John A. Ladner, Jr.:

Oh, no sir.

Hugo L. Black:

Still in existence.

John A. Ladner, Jr.:

Yes, Your Honor, that is true.

He will serve that sentence.

He had — that sentence had begun.

He had started to execute that life sentence.

And as I say, then approximately 30 days after he went down there or 30 days after he was sentenced in the murder, he was brought back to Tulsa County.

Hugo L. Black:

Go back to Tulsa?

John A. Ladner, Jr.:

That’s right.

And then faced with these two other charges, the armed robbery, which was of another victim, I point that, and we do not appeal from that, he received 50 years for that charge, and this kidnapping for which he received the death penalty, which —

Hugo L. Black:

Was another plea of guilty?

John A. Ladner, Jr.:

They were both pleas of guilty.

Hugo L. Black:

What — did the defendant set up the fact that he had already been punished?

John A. Ladner, Jr.:

If at that —

Hugo L. Black:

Given a life sentence.

John A. Ladner, Jr.:

At that time Your Honor a plea of double jeopardy or double punishment was not entered, but on the motion for new trial it was entered.

And the Criminal Court of Appeals of the State of Oklahoma considered that fact as well as of course denial of due process under the Fourteenth Amendment, which was brought into the issue.

Hugo L. Black:

Is that your point here?

John A. Ladner, Jr.:

Yes, sir.

Yes, Your Honor it is —

Hugo L. Black:

That having been sentenced to life for the crime.

Then, one county he could not be violating due process to trial and sentence him to death.

John A. Ladner, Jr.:

Your Honor, it violates the fundamental fairness that is required and that this Court has set forth in more than one opinion, that is required under the Fourteenth Amendment and I will — I will elaborate on that point, I hope to elaborate on that point at some little length.

I should add this too before we get into the merits of this.

On December 1, 1957 the Criminal Court of Appeals of the State of Oklahoma, which is a three justice court rendered a two-to-one decision in which there was a very strong dissenting opinion written which is set forth in the record.

The opinions are starting at page — starting at page 39.

And along with that, there is a dissenting opinion —

Hugo L. Black:

Why do you say 39?

There’s a syllabus count in your state?

John A. Ladner, Jr.:

Yes, sir.

That is — that is also under the rulings of our Supreme Court that that’s part of the law.

On page 30 —

Charles E. Whittaker:

(Inaudible)

John A. Ladner, Jr.:

No, sir.

You — the law can be taken from any part of the case.

Of course, the — the head notes put there by the publisher are not part of it.

Charles E. Whittaker:

No.

But most parts (Inaudible)

John A. Ladner, Jr.:

The syllabus is written by the Court, Your Honor.

Along with this opinion you will find the dissenting opinion of Justice Nix starting at page 50, in which he mentions that he — double jeopardy and along with — there is no question of what they discussed and are considering the due process in the Fourteenth Amendment.

We intended that they should.

Now of course this — this opinion, two-to-one opinion here affirmed the trial court’s death sentence, therefore I filed a petition for rehearing, which was orally argued and in which they again by a two-to-one decision affirmed, again the trial court.

However, this time the other justice affirming also wrote a special concurring opinion which is set forth in here.

I think —

Page 68?

John A. Ladner, Jr.:

Starting at page — actually at — that’s right, at page 68, in conjunction with the order again affirming their earlier holding and overruling our first petition for rehearing.

A second petition for rehearing was filed following that special concurring opinion and following their — affirming the pervious holding.

Now, I should also add this that the petitioner in this case has of course been in death row as it’s called of the penitentiary of the State of Oklahoma, since — approximately February 1, 1957, when this sentence was entered.

John A. Ladner, Jr.:

And I should also add that the other public defender and myself of course are on the private practice of law and we are here on forma pauperis.

And also it should be added that the County Attorney of Tulsa County who prosecuted this case is now the Governor of the State of Oklahoma.

I say further in regard to the facts that are set forth by the County Attorney in this case, and I will return to this, but those facts that are set forth there, I’d like to be able to say one way or another as to their correctness but I cannot.

I do not know all of the minute detail of how this happened.

I —

Hugo L. Black:

So, what are you referring to?

What affidavits?

Where is it printed?

John A. Ladner, Jr.:

That is on page — the County Attorney’s statement starts on about page — it starts on page 10 of the record, labeled under statement of facts on behalf of the State read by Mr. Edmonson.

As you note there, he says therefore we have typed up a brief statement of the facts concerning both of these crimes and the actions of this defendant, and the facts and circumstances that would be admissible in Court on the trial of either of these cases, and rather than reading the entire thing, I’ll make reference to it.

Well, the judge asked him to read the entire thing.

But I call also to your attention that this is an ex parte statement by the County Attorney, it’s unsworn, un-vouched for and he does not even name the source of the statement.

And yet consistently through the statement, not once but many times, the County Attorney says, Williams admitted, by Williams’ own statement.

William said this and William says that.

Well now as a matter of fact I don’t know where he got that idea, because if he ever talked to Williams in person I am not aware of it

Hugo L. Black:

What was this affidavit used for?

John A. Ladner, Jr.:

If it — if it please the Court, this was not an affidavit.

The man was not —

Hugo L. Black:

What was the statement used for —

John A. Ladner, Jr.:

In the sentencing hearing, the —

Hugo L. Black:

In Muskogee or —

John A. Ladner, Jr.:

No, no.

This is Tulsa County.

Let me make myself clear again.

The statement made by the County Attorney which is noted on pages 10 through about 20, 10 through 21, in which he cites cases and urges the death penalty for the kidnapping.

That is in the sentence hearing in Tulsa County on both the armed robbery and on the kidnapping.

As you will note, the Court is considering them both at the same time.

And we can’t complain about that too much because at the time Mr. Woodson did not object that.

Now —

Hugo L. Black:

What complaints do you think its — just isn’t — not customary for the prosecuting attorney to make statements from the judge in the time of sentencing and for the defendant’s attorney could make a statement?

John A. Ladner, Jr.:

Your Honor, I — I feel this way about it.

Considering the gravity and the awful finality of a death sentence, I certainly would not want to be faced with an ex parte statement by the County Attorney upon which my death penalty is going to be affected.

I think the if the County Attorney have these admissions and these confessions as he says he has, it would have taken about a brief moment to say, Your Honor, I have the confessions here and I introduce them into evidence and let them become a part of the record.

Instead, he makes a long ex parte unsworn, un-vouched for, unverified in any respect, a statement.

He goes through the awful details of this murder again including the fact that the gun was held say six inches from the back of a man’s head, including the fact that the angle of the bullet is such and such, including every thing that he possibly can about this murder.

Now, I have a great deal of respect for the courts of this country and our trial courts in our own locality notwithstanding but they are human beings, they are subject to error.

William J. Brennan, Jr.:

(Voice Overlap)

there’d be — perhaps the judge couldn’t but do I read correctly at page 13, the Court know this of course merely a statement, that is in response to the objection as implying the Court recognized it was ex parte and that he wasn’t accepting it as fact, is that so or not?

John A. Ladner, Jr.:

Well, I am not sure what Your Honor has reference to in —

William J. Brennan, Jr.:

In page 13, when one of these objections was made —

John A. Ladner, Jr.:

That’s right.

William J. Brennan, Jr.:

— by Mr. Edmonson?

John A. Ladner, Jr.:

No, they were made, may it please the Court, they were made by Mr. Woodson.

Mr. Woodson, the other public defender —

William J. Brennan, Jr.:

Yes.

John A. Ladner, Jr.:

— of course is objecting to this ex parte statement.

William J. Brennan, Jr.:

Yes.

But what’s the judge mean (Inaudible)

No, this is of course merely a statement.

John A. Ladner, Jr.:

Well, if it please the Court, it’s one thing to say that well, I recognize that this is an ex parte statement and I am considering it as such.

And it’s another thing to let the record show that you — that you must have considered it more than just an ex parte statement.

Not only did you consider it but you were moved by it, moved to commit the error of making the death penalty in a —

William J. Brennan, Jr.:

Is that anywhere up here that —

John A. Ladner, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

— a judge was in fact moved —

John A. Ladner, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

— by that statement?

John A. Ladner, Jr.:

I believe that in reading what the Court in the time of sentencing, which is at page — I had it marked in my brief here, I can find it a little easier.

Yes.

I have it marked in my brief at page 25 and I note in my brief that it comes from the record at page 29.

John A. Ladner, Jr.:

I have in the middle of my brief at page 25 there a quotation from the trial judge at the sentencing or the kidnapping, the main portion of which, of course he can — he tells how he’s given hours of consideration the facts which have been alleged and so on, then he says —

William J. Brennan, Jr.:

Well, what about that statement in which you admitted were part of this crime that you have committed in Tulsa County?

He’s addressing himself I gather to the (Inaudible)

John A. Ladner, Jr.:

Of course there has been some allegation made and that’s another point and of course I have to cover.

But there’s been the allegation made that you see — the trial court asked the petitioner, “now,” he says, “You’ve heard the County Attorney’s statement, is there any correction that you want to make?

Is there any — ” Then in the record the petitioner tries to correct some of the errors and then frankly he does not go any further.

The Court finally then says, “Well, are those statements true?”

The man says, “Yes, sir.”

Now, he says, “Yes — ”

Earl Warren:

Statement of the prosecutor?

John A. Ladner, Jr.:

I beg your pardon, sir?

Earl Warren:

Statement of the prosecutor?

John A. Ladner, Jr.:

Yes.

However, I call to the Court’s attention this, that statement of the prosecutor covers some 10 pages or so of the record.

It’s a long statement.

It’s liberally loaded with inflammatory prejudicial language.

When this petitioner said, “Yes, sir,” in answer to the categorical question, is it true and correct, he made that answer with the understanding that objections had been entered and certainly they were entered by his counsel to this statement.

Also, I call this Court’s attention to the fact that certainly we did not mean to waive the objection as entered and very definitely we did not mean to waive this man’s life away by the mere answering of that question.

This Court has —

Potter Stewart:

Mr. Ladner aren’t you — or are you or aren’t you faced with the difficulty that your Oklahoma Court of Criminal Appeals held that as a matter of state law this was a compliance with Title 2, Section 973 of your statutes because of the waiver of the provisions of Section 974 and if that is a matter of the law of Oklahoma as to how these matters can get before the sentencing court?

John A. Ladner, Jr.:

Your Honor, I am — I’m glad that that was approached.

May I back up a little bit.

I fully contend that the Criminal Court of Appeals of Oklahoma has probably misconstrued that statute.

Potter Stewart:

But isn’t that a matter of state law?

I mean, how —

John A. Ladner, Jr.:

I’m unable to say yes or no to that because I am not sure what this Court has held, that’s the truth of matter.

I go —

Felix Frankfurter:

What Justice Stewart is suggesting is — isn’t that Oklahoma law for our purposes?

John A. Ladner, Jr.:

Isn’t it binding on this Court, in other words.

[Laughs]

John A. Ladner, Jr.:

Well, —

Potter Stewart:

Even if the Oklahoma Court in your opinion other —

John A. Ladner, Jr.:

There’d be (Voice Overlap) —

Potter Stewart:

— Oklahoma lawyers’ opinion is wrong in its construction of statute, isn’t that still binding or not?

John A. Ladner, Jr.:

Let me back up to this extent.

If you go back to Yick Wo versus Hopkins, many years ago the ordinance there under construction was construed by the California Supreme Court and the case was considered there and held that the trial court in California was correct.

This Court on appeal says that all right if — best discretion say that we should be bound by what they say about the ordinance.

But it does not bind this Court from reconsidering the ordinance as it has been administered.

And when an ordinance or a statute of a state has been so misconstrued and so mal-administered —

Felix Frankfurter:

Well, they’re very different things Mr. Ladner —

John A. Ladner, Jr.:

Sir?

Felix Frankfurter:

— of the — between a construction of a statute —

John A. Ladner, Jr.:

And the administration of a statute —

Felix Frankfurter:

And — and the truth that was offered in Yick Wo that although on the face of it, it was a fair statute in the sense that it didn’t discriminate against Chinese laundrymen.

That’s an old recollection of service.

There’s a great deal of difference what this Court said in Yick Wo is that no matter how fairly it’s written, it’s (Inaudible) often that in fact this statute was only construed against Chinese laundrymen and no other laundrymen.

John A. Ladner, Jr.:

I am —

Felix Frankfurter:

That isn’t a disregard of the construction of the statute.

That’s proving a federal claim that although the statute on the face is all right, in enforcement it’s all wrong, those are very different things.

This Court in Yick Wo didn’t say we did agree with California Court as to what it meant.

John A. Ladner, Jr.:

All right, if the —

Felix Frankfurter:

We disagreed with the California Court in saying that despite this demonstration in fact you can just look at the statute and be bind what happens under it.

John A. Ladner, Jr.:

Well, I am trying to indicate, of course perhaps I am not being successful.

But I am trying to indicate here, that the procedure used under the statute, even if this Court feels or assuming that we are bound here by the construction of the Oklahoma Criminal Court of Appeals, I am trying to indicate and I think that the doctrine of Yick Wo versus Hopkins is broad enough to say particularly when it’s considered with many of these recent Illinois cases which have come down from this Court, concerning the names of which escaped me.

But for instance the one where we said here that the procedure of a State which did not grant an appellate record and so on to a pauper —

Hugo L. Black:

(Inaudible)

John A. Ladner, Jr.:

I believe that is the case, is a violation of the due process of the United States of America.

Potter Stewart:

Well, what you are saying then are — are you, is that if this is what this statute means, if what the Oklahoma Court has said this statute means, if that’s the law of Oklahoma then you are telling us that that’s unconstitutional.

That that — that that law, that state law violates the federal constitution, is that it?

John A. Ladner, Jr.:

I’m — I don’t want this — I’m not asking this Court to pass on the constitutionality of the statutes of the State of Oklahoma.

Potter Stewart:

Well, as so construed, I mean, isn’t (Voice Overlap) —

John A. Ladner, Jr.:

As so construed and applied, Your Honor.

Potter Stewart:

Yes.

John A. Ladner, Jr.:

As applied —

Felix Frankfurter:

In this particular case?

John A. Ladner, Jr.:

In this — I’m only asking this Court to pass on this case.

Felix Frankfurter:

What do you say is the particular (Voice Overlap) —

Potter Stewart:

That’s — that’s different.

Felix Frankfurter:

Then you must find the variation between this particular case and the norm of a conventional application of that statute in other cases in Oklahoma.

Because when you say you don’t ask this Court to construe the statute as unconstitutional, you must find an element of discrimination.

John A. Ladner, Jr.:

Well, I — if it please the Court, my — my element of discrimination is the long ex parte hearsay statement which even though this Court says it can be done, may I call the Court’s attention to some cases which you have cited in which I am in — couldn’t agree with more at my brief, page 38 and 39, the case of Williams versus New York there indicated, I quote from that case, “Leaving a sentencing judge free to avail himself of out of court of information in making such a faithful choice of sentence does secure to him a broad discretionary power, one susceptible of abuse”, of abuse in another words.

Now, this is not an improper turn signal case, this is not a case of a — of a second degree burglary or such as that.

We’re talking about a capital punishment case.

The Court has made distinction before in capital punishment cases, Bute versus Illinois, you held that you must have counsel in any capital case and how much more true that must be where a capital punishment is actually inflicted.

Now, one could easily ask, of course then do we want to make a distinction between the fact that this is a capital case and it might not have been a capital case, would we still have appealed, I can’t pass on that.

But I know the man’s life isn’t — is going to be taken here, except for the fact that the procedures used, and I want to make this perfectly clear.

I come to this Court not under the mistaken idea of the Fifth Amendment.

I come here, we are here by virtue of the Fourteenth Amendment due process clause which this Court in Palko versus Connecticut and many others has held that there must be fundamental fairness, justice.

Now, how has that defined the rights of — of people, of individuals within a State, rights which are basic to a free society?

That is the problem.

This case has two aspects then, is this a repeated arbitrary concerted attempt by the State of Oklahoma to achieve the death penalty for a crime taking in — and keeping in mind the fact that the man has entered a plea of guilty.

He’s been sentenced for the ultimate crime.

And I don’t — I have never seen any dissertation on it but I doubt if we can have very much a difference of opinion about the fact that murder in its awfulness is probably the ultimate crime that be — that can be committed by man.

If we take the ultimate crime, then prosecute for every crime which is part of that transaction simply because we feel that some error and I don’t mean an error of law, I simply mean an error of judgment on the part of the trial court in Muskogee County, if one could say that.

Frankly, I don’t feel there was any error on the part of that trial judge in Muskogee County.

I think he was doing what he considered his solemn duty and regardless of public criticism.

And believe me, this case as you can well imagine raised an awful lot of human cry as people have always done for in effect crucify the man throughout the State.

Now, this judge knew of that, still he gives him a life sentence.

Now in the minds of certain other people including the broad populace of our fine state, that wasn’t good enough.

Let’s start all over again, isn’t there some other crime or crimes that we can bring against him?

John A. Ladner, Jr.:

We’ll try it again.

Murder is a capital offense in Oklahoma.

Kidnapping carries from 10 years to death in Oklahoma.

Charles E. Whittaker:

(Inaudible)

John A. Ladner, Jr.:

Your Honor, it’s set forth in my brief at page two, Oklahoma statutes 1951, Title 21, Section 745.

I also set forth there for the Court’s information Section 701 of the same title, which defines murder in the State of Oklahoma.

Also the statutes which our Criminal Court of Appeals construed about the sentencing procedure are also set forth.

Your — your Court of Criminal Appeals doesn’t have power to reduce the sentence, does it?

John A. Ladner, Jr.:

It does, Your Honor.

It does.

John A. Ladner, Jr.:

The statute allows our Court to reduce or modify sentences, their answer to that — to our plea on that basis was, that this Court won’t extend mercy, that’s for the Governor.

Well, I do want to call this to your attention.

The Pardon and Parole Board will not very likely be extending any mercy in this case seeing as how the man who prosecuted is now the Governor.

Potter Stewart:

So that your Court does have power to (Voice Overlap) —

John A. Ladner, Jr.:

To reduce and modify, yes, sir, Your Honor, that’s true.

Potter Stewart:

I referred otherwise from paragraph seven of the syllabus, but I was mistaken.

Well, —

John A. Ladner, Jr.:

No.

They — they merely meant that they wouldn’t extend mercy.

That — they’re drawing the fine line of distinction there between what is mercy and what is actually a justifiable modification of a sentence.

Charles E. Whittaker:

(Inaudible)

John A. Ladner, Jr.:

That is exactly my contention Your Honor.

Charles E. Whittaker:

(Inaudible)

John A. Ladner, Jr.:

It is on that basis Your Honor and may we read just a little further there.

It is the Court’s opinion that there has never been in the history of Tulsa County a more brutal vicious crime committed, this crime to which you have pled guilty here.

Well, that’s just not so.

What he was thinking of is the murder.

What he had in his mind during this entire sentencing was the murder.

The — the fact of the matter is that this is in my humble judgment of thinly, thinly disguised repeated prosecution again for the murder.

Charles E. Whittaker:

(Inaudible) do you dispute that under your law, kidnapping and murder are two separate crimes?

John A. Ladner, Jr.:

By definition in the statute, Your Honor.

Charles E. Whittaker:

And that each (Inaudible)

John A. Ladner, Jr.:

Of course if — if I can see that fact, I concede myself in effect into a corner perhaps.

Charles E. Whittaker:

(Inaudible) whether or not in imposing a second (Inaudible) the Court would have a right to — take into consideration a penalty for a crime, the first crime that had already received its own sentence?

John A. Ladner, Jr.:

Well, I would say that in a hypothetical case it may be possible to prosecute a man under our law for these various criminal offenses, but I say it is a violation of due process to do so purely on the basis of the ultimate crime and to again sentence the man for the ultimate crime which is what they are doing here.

The maximum ever given in our state before for kidnapping was 30 years.

If you average, there are only five previous cases and incidentally each one of those cases, I have cited them in my brief, each one of those cases was decided since we amended our statute which was in about 1935 following the Lindbergh Act.

Each one of those cases, one of them in particular, the defendant had a previous record of a couple of murders and another armed robbery.

Charles E. Whittaker:

(Inaudible)

John A. Ladner, Jr.:

No, sir.

That was in the federal court.

I have — incidentally, I have tried to limit myself here to state court cases.

I — I certainly don’t want to get off on constructions of acts of Congress and such, and we have none here unfortunately.

That case that I have referenced to is Norris versus the State of Oklahoma.

The jury — jury gave him 30 years in that case.

Now, I admit we have inflation in everything but we ought not to have inflation in the — in the sentences that we give a man so that what was 30 years sometime back is now a death penalty.

In any event, our kidnapping statute and the legislature had this in mind when they enacted it, allows from 10 years to death.

And they didn’t mean that per se the statute or any time you have a kidnapping case that it has to be a death penalty.

I have cited many cases in my brief even early cases that point out the fundamental unfairness of this case.

As I say, the case has two aspects.

I think on the basis of the arbitrary attempt, the concerted effort by the State of Oklahoma to make sure that this man gets the death penalty and therefore brings a repeated prosecution is a violation of due process in its most fundamental sense.

Hugo L. Black:

May I ask you the — what you have here, (Inaudible) a murder was committed in Muskogee County.

The victim was Cooke.

John A. Ladner, Jr.:

That is correct.

Hugo L. Black:

Cooke had been kidnapped in Tulsa County.

John A. Ladner, Jr.:

Starting in Tulsa County.

Hugo L. Black:

And that — in the kidnapping, he was killed.

John A. Ladner, Jr.:

That’s right.

Hugo L. Black:

He pled guilty to murderer and was given life in Muskogee.

John A. Ladner, Jr.:

Yes, sir.

Hugo L. Black:

He is charged that — they had a right to charge him, did they not, for kidnapping and robbery.

These were in —

John A. Ladner, Jr.:

Under the definition —

Hugo L. Black:

— Tulsa?

John A. Ladner, Jr.:

Under the statutory definitions, two distinct crimes by virtue of the statutes were committed.

Hugo L. Black:

This Court has passed on this question similarly before in Hoag versus New Jersey which I will get to here in —

But your compliant is, isn’t it that after he pleaded guilty and the Court then considering it, took into consideration not merely the kidnapping but the murder.

John A. Ladner, Jr.:

All over again.

Hugo L. Black:

And he also took into consideration the fact that he had been embarked as he set up on a career of crime since he was a very young man, series of hijacking, robbery, was found, resulting and ending up in murder and kidnapping.

I suppose he had not considered the murder, would you say that was — without that the province of the Court had violated due process for them to consider the prior crimes that had been committed in fixing the sentence.

John A. Ladner, Jr.:

I am glad that that — it’s another point I need to make.

I naturally recognize the value of considering prior convictions in sentencing a man.

I don’t condone crime.

I do know that the Court has the right to consider prior crimes.

I’ve heard it done.

I have represented people where it has been done.

But the way it’s done, the Court will ask, does this man have any past record?

Now the FBI report or some other evidence usually particularly in a serious case, considering the gravity of a capital case for instance, ordinarily a County Attorney or someone else, or the court custodian of records will come forth and say, this man in 1952 was convicted of second degree burglary, he served two years in the state penitentiary of Missouri or wherever it might have been.

But he doesn’t — suppose the man had been convicted once before of a murder, the Court in considering prior convictions, does that give the Court the right to say, “Well now, let me see what were the circumstances of the murder, let me judge again.”

William J. Brennan, Jr.:

Have you read out — have you read out a case of Williams against New York.

John A. Ladner, Jr.:

Yes, sir.

I have it cited in my brief.

Hugo L. Black:

What application do you — what consideration should this be given in this case?

Felix Frankfurter:

Adding that in the Williams case we said that you may sentence on ex parte undisclosed information as under the case.

John A. Ladner, Jr.:

Your — Your Honor’s memory is correct, I believe to that — to that extent except there is one other factor that I would like to distinguish that case on, and that is that the report was requested by the Court there and under a statutory procedure which authorized and encouraged the courts to consider the past record.

But it was made by an officer of the Court, not a prosecutor.

It was made as you recall by a probation worker and this Court said, “Probation workers making reports of their investigation have not been trained to prosecute but to aid offenders.”

Now, I say that’s entirely different from a allowing prosecuting attorneys in coming forward and giving all of the gory details of every crime that they can find on records to make sure they — that they have judge, that they mislead the judge frankly into the error of giving this man a sentence that the prosecutor personally wants.

Felix Frankfurter:

Relatively, probation, the whole probation system all these experts advices is relative reason thing though it began in Massachusetts as I recall over a 100 odd years ago, why a shoemaker was interested in this problem.

But do you think in — before we had the — this probation system, courts would get their information from the prosecutor.

Felix Frankfurter:

And you are suggesting that as a matter of constitutional law and the due process clause, it makes a difference that the information comes through the judge from this system of probation that they should rather than from a prosecutor.

That’s true, isn’t it, that you learn a distinction?

John A. Ladner, Jr.:

In that particular case yes, Your Honor.

William J. Brennan, Jr.:

Mr. Ladner —

Excuse me.

William J. Brennan, Jr.:

Mr. Ladner, if petitioner had not pleaded guilty but had gone to trial and had been convicted that had gone to trial on the kidnapping indictment or information, who would have fixed the sentence, the jury or the judge?

John A. Ladner, Jr.:

They have, Your Honor, in Oklahoma procedure, the jury can’t fix the sentence.

If they cannot arrive at the sentence then it can be left to the judge.

William J. Brennan, Jr.:

Well, now in fixing the sentence would all this information has been before them or would it have got into the —

John A. Ladner, Jr.:

Before the jury?

William J. Brennan, Jr.:

(Inaudible)

John A. Ladner, Jr.:

Before the jury?

Of course that gets to the fundamental problem that we had in Ciucci versus Illinois as to whether or not you can introduce any evidence you want to at any crime as part of the same transaction.

I know this and had we gone to trial on this kidnapping I would have objected, seriously objected to the introduction of the gory details of this murder all over again.

When you consider this kidnapping if you want to break these things down into their separate elements and convicting say along the way he also carried a concealed weapon and you want to convict him apparently a concealed weapon.

Felix Frankfurter:

You mean, you would have — you would have objected to it if it had been — if they’d put — been put before the jury.

John A. Ladner, Jr.:

That’s right, Your Honor.

Felix Frankfurter:

Well, that’s a very different thing, isn’t it?

Because those are the —

John A. Ladner, Jr.:

Well, I was — I was merely trying to answer the Court’s question here as to what would have happened during the course of the trial.

I — I say that this is a different thing, but I say that this discretion that we want to allow these trial judges is subject to abuse.

I — it’s subject to error and mistake.

And one other thing please, I do not wish to base my whole case on the fact that this County Attorney came in and made this long statement as incredible as I think it is, that we allow a man to receive the death penalty based on that kind of a statement.

I wouldn’t want it and I don’t think anyone in this Court would want that were our places exchanged.

Charles E. Whittaker:

(Inaudible)

Potter Stewart:

No, it is not.

John A. Ladner, Jr.:

No, I say — I’m glad you raised that because I want to say that I do not base my whole case, I do not want to attach an over importance on that.

Potter Stewart:

In other words, you’re suggesting that laying aside all of the ex parte statement of the prosecutor, the mere fact that he was given murder or rather given death by the judge, who basically I suppose you would concede, could take traditional notice of the fact that this fellow had been indicted for murder and had been sentence to life imprisonment.

The mere fact that he took that into account would be a violation of due process, is that it?

John A. Ladner, Jr.:

The mere fact that he — this is what the — Your Honor means is this, I — I believe that he could — he could have considered that this man had also committed a murder and that he received a life sentence.

John A. Ladner, Jr.:

Not only could he have done that but he was duty bound to do that, and also consider that it was the part of the same transaction that a coordinate trial judge had given the man the life sentence.

Potter Stewart:

Well, let me put it this way, if there were nothing in this record, except the fact that the sentencing judge was aware of the fact that he had committed a murder, had pleaded guilty to it, and had been sentenced to life imprisonment and nevertheless had given the death penalty as he did, would you be here?

John A. Ladner, Jr.:

I doubt it Your Honor, because we need something.

Potter Stewart:

I don’t think so, in the (Voice Overlap) —

John A. Ladner, Jr.:

In the Ciucci versus Illinois — Ciucci I guess it is.

Felix Frankfurter:

Ciucci —

Earl Warren:

Ciucci, yes.

John A. Ladner, Jr.:

Ciucci.

I — well, in any event, in that case this — this Court in a divided opinion did say that if we could find something that announced the determined purpose to prosecute the petitioner until the death sentence was obtained, then that would be another matter.

And two of the justices who were on the affirming side of the case, of the split decision said that if there were matters in the record set forth, that is if established would require a ruling that fundamental and fairness existed, then they would — they might consider it otherwise, and that’s why I’m here.

Because I think there is fundamental unfairness, not — not in just one respect, not in just this statement, I mean in examining the record as a whole, starting with the basic proposition of how illogical, how fundamentally unsound it is to give a man a life sentence for murder, turn right around, and give him the death for the kidnapping of the same victim.

Potter Stewart:

Isn’t your —

Earl Warren:

Mr. Ladner —

Potter Stewart:

Isn’t your — excuse me.

Earl Warren:

I was going to ask you this Mr. Ladner, suppose this man had been charged in Muskogee with — Muskogee with murder, kidnapping and robbery, could he have been convicted and sentenced on all three?

John A. Ladner, Jr.:

I — I believe that the venue or the jurisdiction of the Court would make no difference.

Earl Warren:

Well, let’s assume that the kidnapping had occurred in Muskogee County.

John A. Ladner, Jr.:

I think the same application would apply here.

Let me make one other —

Earl Warren:

Now, what do you mean by that, that they could or they could not?

John A. Ladner, Jr.:

That — that they — that they could not, because if they did it the way they did it here, and that is let’s go through one proceeding and see how we do, then if we miss it there, I mean we’re talking not about legal errors on the record.

Earl Warren:

Yes.

John A. Ladner, Jr.:

We’re taking about so-called mistakes because we want the death penalty, then we’ll try it all over again on the kidnapping, then we’ll try it all over again say on an armed robbery or whatever else there might have been, no it can’t be done that way and every case —

Earl Warren:

Now, is that under state law or is that under — does that violate the constitutional rights, which do you rely on?

John A. Ladner, Jr.:

I rely on the fact that that violates our constitutional rights.

I am not sure.

The State of Oklahoma has used, I believe in my own judgment, conflicting language about that, because they have said that they will go by what name is attached to a crime, they used the word eo nomine.

They look through the thing and that’s what I’m trying to do here, let’s look through this kidnapping and see what it really does amount to.

The whole thing amounts to another prosecution for murder, on that basis Mr. Chief Justice Warren, that is want I’m saying is not fair.

Now, if under our procedure as was done in the Hoag versus New Jersey, we could have in one indictment set forth all of these crimes and had one trial, one trail free from error which is of course another consideration that this Court has used more than once.

John A. Ladner, Jr.:

A trial free from error that’s all that we’ve said here, that if the State, all we’re trying to do is get the state a trial free from error.

And the — the Court said in Hoag versus New Jersey that there was an unexpected turn of events.

We cannot say and I’m quoting the Court, “We cannot say that after such an expected turn of events, the State’s decision to try petitioner for Yeager — for the Yeager robbery was so arbitrary or lacking in justification that it amounted to a denial of those concepts constituting the very essence of a scheme of ordered justice which is due process.

And you cite Brock versus North Carolina, which I also cite and quote from in my brief.

Earl Warren:

May I ask you one other question?

Suppose in Tulsa County, the man had been charged first with kidnapping and then later he went down to Muskogee and got himself indicted and very promptly pled guilty and — and was sentenced to life imprisonment.

Would that under your state law have divested the Court in — in the Tulsa County from trying him for the — for the kidnapping?

John A. Ladner, Jr.:

Now, if it please the Court.

You — you are indicating a situation where the — there was no kidnapping prosecution first or was there was a kidnapping prosecution?

Earl Warren:

The kidnapping prosecution was started first —

John A. Ladner, Jr.:

I see.

Earl Warren:

— in Tulsa.

And thereafter he was — he was charged with murder down in Muskogee County and he stepped right up and pled guilty and got life imprisonment there.

Would the — would the Court be divested to jurisdiction in Tulsa on that kidnapping case?

John A. Ladner, Jr.:

Well, as a practical matter of course I’m trying to look at things as a practical matter, and I’m not trying to sidestep the question, but I — I’m quite sure of this, first of all Tulsa County would have never allowed Muskogee to come up there and get him, but had they allowed them to do that, and he had gone to Muskogee County, and —

Earl Warren:

They might have —

John A. Ladner, Jr.:

— had pled guilty to the —

Earl Warren:

They might have caught him in — in Muskogee County.

He might have been indicted for kidnapping in —

John A. Ladner, Jr.:

Oh, I —

Earl Warren:

— in Tulsa.

He might have been caught in Muskogee, so you won’t have that — you won’t have to worry about getting him.

John A. Ladner, Jr.:

All right.

In that case, I think the same theory would have to apply, namely that he could not — if he is — if he is — if the sentence is entered in Muskogee County for the murder, in other words the ultimate crime where — not — not the crime of lesser magnitude, but the ultimate crime, then to turn around and even charge him again, regardless of the time that the charges are filed, which one might precede the other, the fact that Muskogee got him first, sentenced him first, would be conclusive on the — on the Tulsa Court.

Earl Warren:

Do we any authority for the fact that kidnapping is the kind of crime that merges in murder if the murder is committed?

John A. Ladner, Jr.:

Well, this Court has used the language of merger in Prince versus United States, construing the federal statute there and I think to this extent, I believe I’m sure that I quote Prince versus New York in there, to this extent, where the breaking and entering, as I recall the bank, and then the robbery.

The Court went along with the idea that the intent was the same and here it was the same, the reason for the kidnapping presumably, and the reason for the murder was to escape capture.

And of course, attach whatever intent you must to it, I don’t know whether it was in — just how it was.

But in any event, I think that there is authority for saying that there is a merger.

And I have seen the use of the word merger in many criminal cases.

John A. Ladner, Jr.:

I believe also the doctrine of res judicata applies and I cite that in my brief.

If it pleases the Court, I would like to reserve some time —

Earl Warren:

You may reserve the rest of your time.

John A. Ladner, Jr.:

For rebuttal, I don’t how —

Earl Warren:

Yes.

Attorney General Williamson.

Mac Q. Williamson:

Mr. Chief Justice.

Got a frog in my throat, excuse me please.

Earl Warren:

Many of us have.

Mac Q. Williamson:

Mr. Chief Justice, Your Honors.

That is what (Inaudible) applies here, although not on the count of the type of this case that we’re privileged to come back here again.

We have here as my young friend from Tulsa has so aptly expressed a criminal prosecution in the courts of Eastern Oklahoma for three high felonies, where they’re — if I may allude to it, a one man crime wave and it struck me that it might be highly appropriate that in order that the Court obtain and retain a correct perspective of what happened, that I would try to be of help, dividing time with my associate and assistant in Oklahoma City, Mr. Sam Lattimore.

And so with the permission of the Court I would like to launch into the events that happened chronologically.

I would like to do so if it please the Court after the fashion perhaps of a newspaper man who answers questions, how, who, what and when, and I believe once the rather march so to speak has been established in the minds of Court together, with the happening at each stop on the route, that with my assistant will have appropriate law to cover the points involved.

Earl Warren:

General, just as a matter of general information may I ask you do have a county defender’s — public defender’s office in Oklahoma or is public defender a name that you give to lawyer’s society?

Mac Q. Williamson:

Your Honor, may I say this —

Earl Warren:

I assume that because we have public defender system in our State.

Mac Q. Williamson:

Yes, sir.

Earl Warren:

There are very few states that do and I — I was —

Mac Q. Williamson:

That’s really the take off point on my route of march that I was about to launch on.

I was about to say to this Court, that the State of Oklahoma as provided by two special legislative acts, the office and position of a public defender in the two major metropolitan counties of the state, that would be Oklahoma County and Tulsa County.

Those counties have rather large and populous cities and those counties have public defenders.

No other counties have.

Earl Warren:

Is — is that — is that jurisdiction just county wide?

Mac Q. Williamson:

Yes sir, on the basis of population and valuation, classification setting them apart —

Earl Warren:

Yes.

John A. Ladner, Jr.:

— in a separate class from all of the counties in creating the offices.

Earl Warren:

Yes.

I’ll tell you what raises my curiosity, I — I noticed that Mr. Williams or Mr. Ladner in it — is (Inaudible) as being from Tulsa, Oklahoma and I understood from him that he represented the defendant as — at Muskogee, is that right?

Or, you were not there at that one?

John A. Ladner, Jr.:

No, sir.

Earl Warren:

Only the second one?

John A. Ladner, Jr.:

Only in Tulsa.

Earl Warren:

Yes, I beg your pardon.

I — I misunderstood you.

Mac Q. Williamson:

Now, it’s my understanding and I think the record will bear me out, that this man who is dubbed here, Edward Leon Williams, but who like many men both of good and bad repute has a nickname, his name is Pete Williams, I think that’s correct.

And I have been accustomed in the few days I have looked at the case to call him Pete, however his name is Edward Leon Williams and I would like with permission of the Court to introduce by mapping out the route of march of misconduct of this Edward Leon Williams, so that this Court may know what was in the minds of the trial judges of Tulsa County upon two criminal charges and of Muskogee County upon the murder charge.

Now, these things were emblazoned in the newspapers, public newspapers of the State.

And thus this crime spree began in the wee hours of a Saturday morning in Tulsa.

Tulsa City, I would say of 300,000 people, am I right?

Maybe a little wrong, Oklahoma City is about 400,000.

These are the two cities.

Oklahoma City is not mentioned or mixed up in this route of march that I am going to delineate.

And in Tulsa, at 1 o’clock in the morning on Friday the 16th of June, this young man comes upon the scene.

I say young, he is 27 years of age at the time he was arraigned, and he was about 20, between 25 and 26 at the time he showed up at a filling station, an all night filling station in Tulsa at 1 o’clock in the morning.

At South Park, Tulsa he showed up in his car, a Pontiac or somebody’s car he was driving and he ordered the tank filled and the attendant at 1 o’clock in the morning filled the tank and the young man as a method of payment, reached in the seat of his car and pulled out a .38 pistol and told the young man in no uncertain terms that he wanted — he had got the gasoline, that he wanted the money and he took $30 from this young tenant there in the morning and drove away.

And then he somehow or other somebody must have known something because the law, the police, the city police of Tulsa came upon him perhaps two or three hours later and there ensued an automobile chase in the Southeastern part of Tulsa, this was after daylight, the stick up was 1 o’clock in the morning.

And the chase was on.

And this fellow wrecked his Pontiac car in his anxiety and in his speed to elude the local police, he wrecked it and here is the thing that happened at the wreck.

Somehow or other he got away from the wreck and entered a concrete culvert, evidently under a street down there in Southeast Tulsa and made his escape by crawling through a concrete culvert and thus upon the other side of the road or railroad or whatever it was eluding the police.

And he stayed ahead, he doesn’t come upon the scene then, that was Saturday.

He comes upon the scene then Sunday evening in Tulsa, at 5:30 in the evening.

When he is standing at a stoplight, an operating stoplight after a place, a corner in the metropolitan section of Tulsa, which is known as Third and Cheyenne Street, a stoplight was operating, cars were passing to and fro.

This fellow with the pistol and the one successful hold up saw a car, approached and stopped — the stoplight.

He went out, opened the door, and introduced and reinforced by his .38 pistol, he took a seat by the side of this total stranger who happened to be a young ministerial student.

And if I maybe pardoned for this — for this statement, if Your Honors please, I have never — I can’t imagine two men of more singularly different strides being thrown together as were these two people forcibly when this man had introduced himself, entered the car, and the car sped away.

And the hijacker, the same fellow, required this young ministerial student to drive southeast and he got out in the country as rapidly as possible because it’s obvious that he is wanted for at least one hijacking and had one run away from the police.

And so he required this young man to drive from Tulsa in a southeasterly direction.

This whole thing, the site of this whole thing is in Eastern Oklahoma, Tulsa is in a little bit northeastern, Muskogee is about 65 miles southeast of Tulsa, still in the eastern part of the State.

They drove in the Muskogee direction.

Mac Q. Williamson:

And by the time that they got about seven or eight miles northwest of the metropolis or the local metropolis of Muskogee, town of about 70,000 people.

Why, this fellow — this fellow Leon Pete Williams was in country which he knew.

And so, he drove there to this wooded area, partially settled area about 10 miles northwest of Muskogee and he even picked out a dead end dirt road out from country.

He drove up this dead end road, made his driver get out of the car and the driver with his hands up, and where we get this information if Your Honors please, its Leon Pete Williams telling.

The driver, the man he was about to kill with his hands up to his head stood there and received in the back of his head, behind his right ear one bullet that passed him from life to death.

Potter Stewart:

This — General Williamson, you said something that isn’t quite clear to me, you say where we get this information is from the petitioner himself.

Well now —

Mac Q. Williamson:

Yes.

Potter Stewart:

In fact it’s contained in the statement of the prosecuting attorney, is it not?

Mac Q. Williamson:

Exactly.

Now, I was going to elaborate, I will say it now, that this information which I’m trying to furnish to the — this Court comes from the County Attorney’s statement who got his information from Pete Williams who admitted in this record that everything he said was true.

Potter Stewart:

Oh, and how and where did he get the information from petitioner, is that appear?

Mac Q. Williamson:

Well, it doesn’t appear, of course the Court will understand that this Leon Williams, I shall call him Pete with the permission of the Court, that’s his name, one of them.

And Pete Williams as you understand was in jail, I assume he is in jail, wherein I didn’t see him, wasn’t he Mr.– wasn’t Pete Williams in jail?

John A. Ladner, Jr.:

I — I saw him — he was in jail in Tulsa.

Mac Q. Williamson:

He was — yes.

Your client.

Potter Stewart:

Well, he’s under a life sentence at the time (Inaudible)

Mac Q. Williamson:

Yes.

So, well I’m sure of course he was there on two or three different occasions.

Excuse me — on two or three different occasion.

I mean by that in the course of the weeks that’s passed.

Now, he was taken of course to Muskogee first and I want to arrive at that as we go on our route march here in a minute.

Potter Stewart:

But, I’m still interest in making this route march as to how and where this information was imported by Williams to the county prosecuting attorney, does that appear in any?

Mac Q. Williamson:

Well, it appears out of — not within a great particularity.

But it was admitted, Williams’ admission appears in the record here —

Potter Stewart:

Yes.

Mac Q. Williamson:

— where he knows, he heard the whole thing read, the statement of the County Attorney and that he I think merely said he furnished part of it.

Potter Stewart:

I have in mind the — I have in mind General Williamson that there is some indication in the record that it — when they were getting ready for the first jury trial in Muskogee, which ended in the withdrawal of the not guilty plea and a plea of guilty and a life sentence, that the trial court there said that there were two confessions, one of which had been — had been lost or disappeared.

And that therefore even the trial court had no idea of what was contained in it.

Potter Stewart:

And that with respect to the other confession there was some question as to whether or not it had been coerced.

Mac Q. Williamson:

Well —

Potter Stewart:

That’s the only indication in the record that I can see that Williams imparted this information in any way.

Mac Q. Williamson:

Well, actually Your Honor the Court I think will understand there in pursuance of my duties to Oklahoma City I was never around the District Court of Tulsa or the jail —

Potter Stewart:

I understand, I can — you know the record better than I do and I thought perhaps you could point something.

Mac Q. Williamson:

Yes, sir.

I — I feel sure that — that Mr. Leon Williams’ admission in this record that he knew and had heard the County Attorney’s statement and that the things the County Attorney said therein were true.

That’s on page 28 and 29.

Potter Stewart:

Yes, sir.

And it’s again found Mr.– if Your Honor please, on page — just a restatement, I believe it’s on page 77, 75 to 77.

I mean it’s perhaps a little bit more in detail there.

Well, may I go there and ahead, I’ll try to reach that in further detail as we go on.

Now, this — this man Leon Williams when he took the young Baptist minister and drove him to a secluded spot or had him to drive to this spot some eight or 10 miles from the City of Muskogee and took him out and shot him down, we got that information from this man.

He was later apprehended.

However, after he had performed some more of his acts in disregard of law, he — he drove from this point of death there in the Baptist minister’s old mobile convertible.

He drove up farther, I believe it was Talihina, a little Indian town there, that’s on beyond Muskogee, on a general direction toward the Arkansas line.

He seemed to know, very acquainted around Talihina, he got there, I don’t know just what hour in the day time, but he took this trusty pistol and pulled another, hijacked him in the little town of Talihina, when he held up a fellow that he had worked for as I understand it and charged $1000 for dropping in on him with a pistol.

Then he — I believe the officers got after him around — I think the record will show that, that they got after him, that he abandoned this car of the young preacher’s and took to the woods, that’s a heavily wooded section, Southeast Oklahoma.

And that he finally came out of the woods on foot and worked his way into the town of Wilburton, Oklahoma, which is a county seat in a rural county just maybe 40 miles from the Arkansas line.

He paid somebody $30 to take him from the brush where he’d been hiding to Wilburton.

At Wilburton he boarded a bus, a commercial bus for — bound for Fort Smith, Arkansas.

And actually the officers were not far behind.

It was on that bus, on his way eastward out of Oklahoma toward Arkansas, that he was placed under arrest by state highwaymen.

State highway patrolmen arrested him and it wasn’t — but a very short time until he voluntarily agreed to go back with the officers to the Muskogee Country.

He stopped on the way and showed them where he had hid his .38 pistol and of course the .38 pistol was found in the body of this young minister, Tommy Cooke, was found, and the statements was made by this young man.

He — he of course was lodged in the Muskogee County Jail as I understand it.

The record apparently shows that and he was charged with murder.

And it’s — the record would show that he pled not guilty first and that he stood for trial that I believe the jury was impaneled and sworn and at the trial of Leon Williams here on a charge of murder proceeded.

And during this trial that something happened, where he decided to change his plea perhaps as it might be said in the middle of the trial.

He changed his plea from not guilty to guilty.

Potter Stewart:

And of course the judge as understood it, the judge, the jury and — and probably with a wait of two days accepted his plea of guilty to the charge of murder.

And the district judge there, Judge E. J. Carroll upon the arrival of the day for sentencing did sentence Leon Williams in the District Court at Muskogee, that is the first time now that he had been charged and stood trial on this (Inaudible).

He was given by Judge Carroll a sentence of life in a state penitentiary.

And then he was sent to McAlester in accordance with that sentence and then stalled in the penitentiary, and authorities of Tulsa County did not know the machinery by which they got control of this prisoner, but I know they did, I don’t know that but I don’t know what — from a Mr.– my friend here Mr. Ladner would know all about that.

Anyhow, the man was turned over to Tulsa County and it was then that the young County Attorney of Tulsa County began to get acquainted with this fellow Leon Williams.

The attorney there, the County Attorney filed two charges against him as a result of this 48 hours trips that we just took with him awhile ago, which started out with hijacking in the filling station and then would later on kidnapping the young Baptist preacher and taking him out of the county and killing him.

Well, the County Attorney filed the charges against this man, Williams, after they recovered the — had gotten hold of him in the county jail at Tulsa.

The County Attorney filed a hijacking or robbery charge against him.

That is where he has robbed the all night station, took $30 of the young fellow and threatened to blow his head off so he didn’t stay in the — this filling station until he got away.

Any how the other charge was the kidnapping charge.

Now bear in mind, if Your Honors please, in the mean time when this kidnapping charge was filed the murder charge had already been filed at Muskogee and he had been given life for that.

But nevertheless County Attorney still — had filed a kidnapping and they went ahead and Williams thought it over I presume maybe talked to his lawyers, there are two public defenders I believe that’s right maybe in Tulsa County.

And Mr. Fred Woods is one and the gentleman far here is the other one.

Anyhow, that for some reason which was sufficient and to himself, as Leon Williams entered pleas of guilty both to the $30 midnight filling station hijacking and to the kidnapping charge of taking the young Baptist minister.

He had before entering those pleas had — had an opportunity to confer and had conferred with the public defenders office?

Mac Q. Williamson:

Oh, yes.

If Your Honor please, the record is replete —

Potter Stewart:

Yes.

Mac Q. Williamson:

— with that.

I mean, there’s just be — not the slightest question.

As — but what he had, the advise of the public defenders.

And so those pleas were entered on the two Tulsa County charges on or about the 30th, am I right on that, 30th of January, 1957?

Is that correct?

John A. Ladner, Jr.:

That’s the (Inaudible)

Mac Q. Williamson:

Thank you.

(Inaudible) studies this case a great deal longer than I have but I’ll kind of stay in the record.

All right, on the 30th of January these — this man entered pleas of guilty to kidnapping and to robbery with firearms, both of them capital offenses.

The man and this round that we have gone on, occupying some 48, some 60 hours to 72 hours, he had committed three capital crimes, murder, kidnapping, robbery with firearm.

And having pled guilty to the last two, the authorities at Tulsa began to move in on him and he was given a time for sentencing, I don’t recall.

The Court was very liberal and very thoughtful about it and gave him several days.

Mac Q. Williamson:

And in the mean time, the statement which is really one of bones of contention in this lawsuit and which is — appears in full in the record, beginning at page 10 as I have it and going perhaps page 19 — 18.

Now that is the controversy of the statement and the Court would bear in mind that with the murder — with the murder penalty already assessed, interwoven as it was with and as a climax to the kidnapping that here comes this subject of kidnapping on.

And the County Attorney after the plea of guilty was permitted by the district judge to read a rather lengthy statement that the County Attorney had typed and which the man Williams agreed to tell the truth.

And so this statement here by the County Attorney is very truthful.

I mean, it goes into the many records of the happenings of the moment, current happenings and it also, if Your Honors please, takes up what we lawyers call and officers of the law call, the rap sheet of an individual of poor reputation.

He has a rap sheet and the rap sheet is the record of his convictions about over the country in the various courts and the organizations in Washington, the FBI, are very good bookkeepers on keeping these rap sheets current.

And so, with permission of the Court, I want to show what the evidence shows that constitutes the record of this young man in which the young man himself verifies that this is the truth.

Mr. Edmondson by the way, I believe the Court understands that since January 12th, he’s incidentally been the new Governor of Oklahoma.

He was the County Attorney at this trial.

Mr. Edmondson According to the record of the FBI in Washington the defendant started his first criminal act for which there is a record on October 16 1944.

And this was 1956, he had 12 years experience at that time, at the time of the murder.

October 16, 1944 Long Beach, California, where he is arrested for grand theft, automobile and burglary and released to Juvenile Bureau.

January 22, 1945, Williams was arrested in Tulsa for automobile theft.

And on August 1, 1945, was released the United State Marshal for prosecution of violations of the Dyer Act.

Earl Warren:

Mr. General, is this — do this go to this — in the question of the reasonableness of the — of the sentence of death or does this bear on some legal problem —

Mac Q. Williamson:

Well —

Earl Warren:

— that you’re willing to discuss —

Mac Q. Williamson:

If Your Honor please, I have — I’m quite clear that it bears, it’s what the trial court, the sentencing court knew, he took this into consideration —

Earl Warren:

Yes.

Mac Q. Williamson:

— and it goes to show that this young man was in this business practically all his life.

Earl Warren:

Well, I think that’s not the question hardly that even it’s in there, it’s the legal question that we were interested in.

Mac Q. Williamson:

Correct.

Earl Warren:

I think if it wasn’t for these legal problems that are raised by — by Mr. Ladner, that there would be no question about whether this was adequate punishment for a crime of kidnapping, robbery, and murder so we’re — unless it has some legal significance —

Mac Q. Williamson:

Well —

Earl Warren:

— I think that we might go and get into some of the legal problems involved here because that’s what we must decide.

Mac Q. Williamson:

It is significant only that it adds as much fuel to flames that already burning to show that the man was wicked, malevolent, knave.

Earl Warren:

Yes.

Mac Q. Williamson:

And the Court had that in mind —

Earl Warren:

Yes.

Mac Q. Williamson:

— when he gave him the death penalty —

Earl Warren:

Well, I think —

Mac Q. Williamson:

— among other things.

Earl Warren:

I think — I think even Mr. Ladner would — would concede that if it were not for the legal problems there are involved in here that the ones he had raised, that the crime was one that was punishable by death under the Oklahoma Law.

Mac Q. Williamson:

Yes.

Well, that and that only is the reason, there are several other items on the rap sheets and I’m purposely willing to waive them because it’s rather evident that he was not a good citizen.

That’s an understatement.

Now, if Your Honors please, I think we might pay some little attention to the Edmondson statement by hitting two or three of the high points.

The record, page 11 — page 11, I shall not read but 10,11,12, and 13 go into specific detail, all admitted by this petitioner as being true to the effect that he has participated in the activities I have gone over.

Now — actually, Judge Webb, Judge Webb was the District — trial district judge at Tulsa who accepted the two pleas of guilty on kidnapping and the hijacking case.

Judge Webb was very technically careful and the record will show and there will be no contest on that.

To make it clear that he wanted this — this defendant to be assured of his extra time that he would be allowed to think this over before he entered the plea.

And the judge of his own volition after the plea was entered with full warning and knowledge of his rights, the judge granted him an additional two days extra before he imposed the sentence.

And then went ahead and with the receipt of the seven or eight page statement from the County Attorney proceeded to pronounce sentence of death for the kidnapping which of course began on the streets of Tulsa and wound up in the lonely field area about — via Muskogee.

He was just given death for that.

The County Attorney made this long statement and actually Mr. Woodson who was the other public defender along with Mr. Ladner was — was active in this case in the trial court.

And Mr. Woodson objected to some of the statements of the County Attorney.

And in the light of the fact that they were going into angles that — all Mr. Woodson said had already been covered by the filing of a charge of murder and the sentencing of the man to life imprisonment.

Anyhow these — these case were — were interwoven.

The Tulsa kidnapping case was completely interwoven with the murder case at Muskogee, in that the murder case was the final act, the end of the road of kidnapping.

Now, it’s our contention that both Judge Webb who was the District Court Judge at Tulsa and Judge Carroll our very experienced judges and that they like all other state district judges in Oklahoma, had a right which has become a tradition in Oklahoma for judges who are called upon to sentence men who have pled guilty.

Our judges traditionally understand and our people understand that a judge had the right to call upon the prosecutors or the sheriff or anybody else that who is an officer of the Court there who might know something about this man or this party whose plea of guilty has just been received.

It’s standard operating procedure in Oklahoma for judges to want to know something about the nature and character and the type of person who had just pled guilty to a violation of the law.

And so, Mr. Woodson made no outcry at all.

He — he was representing Leon Williams when this seven or eight page statement of the County Attorney was read.

He did object to some of the questions.

He finally agreed that some of them were — that he thought were all right or he agreed at least to proceed, I have them marked here where Mr. Woodson on one occasion said — it’s on page 11 of the record, counsel for Edwards said, all right to the Court who was hearing the County Attorney’s statement.

He — they didn’t oppose this thing with a vigor that lasted all through the hearing and culminated with a motion, at the conclusion of this hearing which he had a right to make, if he’d wanted to make it, a motion to strike the County Attorney’s statement from the record.

Now, in the — he understand the custom there that judges are supposed to have enough balance to take statements from the County Attorneys of our State and then to use them appropriately in pronouncing a sensible and logical, and just sentence on a plea of guilty.

Potter Stewart:

General Williamson, whatever may have been done in the trial court, as I understand the basic argument here by Mr. Ladner, it’s not that it was improper or inappropriate for the sentencing judge to consider petitioner’s prior record or to consider the background and surrounding circumstances of the offense for which he was being sentenced, the kidnapping or the fact that it was done and — or what happened at the conclusion of the kidnapping.

The basic argument, as I understand it, is that where the depravation of a constitutional right lies in this case is that the State of Oklahoma not satisfied with the fact that this petitioner was sentenced to only life imprisonment for murder the first time, in fact and in effect went after him a second time, with vengeance determined upon seeing to it that he be sentenced to death, that’s the basic argument that he makes in his brief, not that — that it was improper for the sentencing judge to consider surrounding circumstances, because obviously it’s not.

Mac Q. Williamson:

Well, as I — as I understand the argument —

Potter Stewart:

I wonder what you have to say to — in answer to that basic, more basic argument.

Mac Q. Williamson:

I — I agree entirely, that is the basic argument and of course actually one has to be — as I see that argument it’s not supported by the record.

It is supported by the record to a certain extent and that is that there was some considerable information given the judge at Tulsa about the murder case over at Muskogee, not a great deal, but they were some in them.

But the fact that here the State comes up with malevolent purpose and design and says we’re going after him again.

We didn’t get enough that time.

There’s none of that in the record.

That all arises in the imagination of some of the folks who are highly interested in this case and I guess I would have a sort of imagination too if I were interested on the other side.

But — but so far as being any evidence to support this malevolent or stealthy or vicious purpose of the State to go out and seek further and more and heavier impositions on this fellow, I don’t know where the line, is that anywhere in the record.

Supposing the judge in the Tulsa case had said —

Mac Q. Williamson:

Pardon?

Supposing the judge in the Tulsa case, the second sentencing, the kidnapping charge, because I don’t agree (Inaudible) since I have the right to sentence him again on the kidnapping charge, and since kidnapping charge authorizes a death penalty (Inaudible) exercise by authority to impose the death penalty, isn’t that an implication?

Mac Q. Williamson:

Well, you would have a different case if the judge spoke of to that effect or even if he handed it privately to that effect.

But still, if Your Honor please, that isn’t in the record.

I mean, in order to get this situation in to the slaughter, the channel of a malevolent purpose of state officials to help take this man’s life —

Of course —

Mac Q. Williamson:

— you’ve got to imagine something.

(Inaudible)

Potter Stewart:

That’s –it didn’t mean to suggest that malevolence is necessary, if you do have a clear case of double jeopardy, there can be double jeopardy without any malevolence at all of course, can’t they?

Mac Q. Williamson:

Yes, I quite agree.

Potter Stewart:

So malevolence is not —

Mac Q. Williamson:

And the —

Potter Stewart:

— essential to a constitutional depravation.

You — you do have in — also in your state constitution a guarantee against double jeopardy, don’t you?

Mac Q. Williamson:

Yes, we do, that’s true, that’s the fact.

Now, we also have decisions of the Court there that persons can be — can be tried and convicted for one of the segments of an entire all encompassing crime, just for the same reason that we have a federal law which prohibits people from taking mail bags.

Hugo L. Black:

You don’t mean by that, I suppose that Muskogee could’ve tried him for kidnapping, because he was there — kidnapped in that part of the time and then the other county could have tried — Tulsa could have tried him for kidnapping because part of it took place there.

Mac Q. Williamson:

Well —

Hugo L. Black:

You don’t think he could have been tried —

Mac Q. Williamson:

No.

Hugo L. Black:

— twice for kidnapping?

Mac Q. Williamson:

No, no, not at all.

He could’ve been tried once for that offence and that offence was perhaps one of the essential elements that finally led to murder.

Had there been no kidnapping, there’d been no murder.

Hugo L. Black:

What you say is, he was tried for murder in one county and given life.

Tried for kidnapping in the other one, they had a right to give him death and they took into consideration the kind of life he’d led including the murder he committed, that’s your concerns, isn’t it?

Mac Q. Williamson:

Sir, that’s our construction, if Your Honor please, and it’s that (Inaudible) because we — our Criminal Court of Appeals studied this matter very carefully.

It upheld the — the laws of our State which provide and permit that sort of prosecution

Hugo L. Black:

I want to be sure about one thing, as I understand the record, he was brought in on the basis he pleaded guilty.

At that time, 30th of January, at that time the prosecuting attorney wanted to make a statement and did, stated all these facts, brought back on February the 1st, the judge asked him if he heard all that and understood it all, and if he had any corrections to make.

He did make one or two corrections, didn’t he?

And he asked him if the rest were true, and he said it was.

Was it — is that — am I right about those two dates (Inaudible)

Mac Q. Williamson:

That’s right.

Yes, I think Your Honor is correct.

Hugo L. Black:

And was counsel there at both times?

Mac Q. Williamson:

Yes, sir, they were.

And the — the date was changed.

It was — was put forward from January 30, 1957 to February 1st, there are two days as an intervention there.

Hugo L. Black:

I understood that the judge, as I recall it, asked him if he had time and considered it.

Mac Q. Williamson:

Yes.

That’s correct.

And he had given him that time to study it over.

Now, if Your Honor please, I have lost track of my time, I wonder if I can be advised by somebody.

Have we used 45?

Earl Warren:

You have 15 minutes left.

Mac Q. Williamson:

Of the hour?

Earl Warren:

Yes, sir.

Mac Q. Williamson:

Well, I desire to waive in favor of Mr. Lattimore.

Earl Warren:

Very well.

Sam H. Lattimore:

If the Court please.

Earl Warren:

Mr. Lattimore.

Sam H. Lattimore:

May I first just to express commendation of Mr. Ladner as a public prosecutor — a public defender in Oklahoma.

He had absolutely no duty to perform after the trial in the trial court.

And yet he and Mr. Woodson brought the matter to the Criminal Court of Appeals and then he brought on up here.

It certainly is a shining proof of the fact that in Oklahoma at least, our public defenders are uninfluenced by the fact that they are employed and paid by the State and that they don’t have any official duty after the trial in the trial court.

We are proud of our public defender type.

May I first answer a question that’s been asked with reference to the venue in this case on what could have been done in Muskogee County and Tulsa County?

This defendant could have been prosecuted for kidnapping in Muskogee County, because according to our statute, the venue, in kidnapping cases is wherever the kidnapping originated, where he was taken or in any county through which he is carried, or in any county into which he is brought.

So that there were — both counties would have had jurisdiction and the county which tried him first on the subject would have ended the possibility of prosecuting him for the kidnapping.

If he had been charged with that in Muskogee County and they tried him on it, that would have been the end of any jurisdiction in Tulsa County.

So far as the murder was concerned however Muskogee County was the only one that did have venue.

That occurred in Muskogee County.

Tulsa County could not have prosecuted him for murder.

In the kidnapping charge, there is no reference to the murder, no reference to the death of the victim.

We have two kidnapping statutes.

One of them applies where the kidnapping is simply for the purpose of detention.

The other, this one, applies where the kidnapping is for the purpose of extortion; money, property, or thing of value or advantage.

It has been held to include a kidnapping for the purpose of rape.

It might be held to include also the purpose of kidnapping for taking a man’s life.

However, that was not charged in the information in this case.

Earl Warren:

The — with robbery?

Sam H. Lattimore:

Sir?

Earl Warren:

Include robbery?

Sam H. Lattimore:

Extortion for the purpose of taking a —

Earl Warren:

Yes, yes.

Sam H. Lattimore:

— thing of value —

Earl Warren:

Yes.

Sam H. Lattimore:

— or advantage.

And the one of the crimes that was immediately committed in further — pursuant to that kidnapping was his robbery of his victim.

Sam H. Lattimore:

Now, that was charged in Tulsa County and there isn’t any contention here that the fact that he was charged with and pled guilty with the crime of robbery in Tulsa County was any bar to his prosecution for the kidnapping.

And if the principle for which they contend were true then he couldn’t have been prosecuted for both the kidnapping and robbery in Tulsa County for one would have been barred with the other.

Now, in our own opinion in this case, I’m using a typewritten copy and I can’t give you the page.

It is further urged, the crime of kidnapping merged into the crime of murder, now in that connection there, I call attention to a parallel — I can’t present you a case where a man was charged and tried both for kidnapping and for murder, this isn’t in — the one I present to you.

But we do have parallels in principle.

For instance, the conspiracy statute, a man is charged with conspiracy and he may also be charged with and convicted of the things that are done pursuant to the conspiracy because the Court has held that they are separate and distinct crimes and our Court did it in Burns case.

They’re not the same and that one does not merge in the other and that a man maybe prosecuted for both.

In this particular instance, the Court says it has further urged the crime of kidnapping merged into the crime of murder.

Neither of these contentions are talking about two others have been made just about it.

Earl Warren:

We’ll recess now, Mr. Lattimore.