Warren E. Burger: First in No. 96, Picard against Connor. Mr. Irwin, you may proceed whenever you are ready.
John J. Irwin, Jr.: Mr. Chief Justice and may it please the Court. I would respectfully ask that five minutes of the time allotted to me for argument be reserved for a rebuttal. This case is here on the Commonwealth’s petition for certiorari. The Court of law found that a Massachusetts charging procedure that permitted a grand jury to indict with a fictitious name and permitted a Court thereafter to substitute a true name was in fact violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
Warren E. Burger: Is that the only issue in the case?
John J. Irwin, Jr.: That to me is the overriding issue, the Commonwealth takes the position that in addition to the Equal Protection argument, there is also an exhaustion argument, and there is also a question of whether or not a purely state procedural Statute should be the subject matter of the review by way of a petition for a writ of habeas corpus. But in answer to your question Mr. Chief Justice, I would say that the overriding argument that we want to make and stress upon the Court is the Equal Protection argument. The Suffolk County grand jury and the Commonwealth of Massachusetts on August 4th 1965, returned a first degree murder indictment charging two people. They charged, one Donald Landry, which in fact was a true name, and it also charged that a John Doe was also accused, guilty of the murder of one Robert Davis. The defendant or the respondent here, James J. Connor, was later on August 9th 1965 on a motion under General Laws Chapter 277, Section 19, filed by the prosecutor was named on the Court docket as the true named defendant and the John Doe indictment was changed to read, James J. Connor. The defendant seasonably objected to that on the ground that he had an absolute constitutional right to be indicted in his own name. That as far as the record indicates was his sole basis for objection at that particular time. That motion was directed to Chief Justice Tauro of the Massachusetts Superior Court, who is presently the Chief Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts. The Chief Justice was asked under the provisions of General Laws Chapter 277, Section 19 which reads as follows to make the substitution: "If the name of an accused person is unknown to the grand jury, he may be described by a fictitious name or by any other practicable description, with an allegation that his real name is unknown. An indictment of the defendant by a fictitious or erroneous name shall not be ground for abatement; but if at any subsequent stage of the proceedings, his true name is discovered, it shall be entered on the record and may be used in the subsequent proceedings, with a reference to the fact that he was indicted by the name or description mentioned in the indictment."
William J. Brennan, Jr.: Where are you reading from?
John J. Irwin, Jr.: From the Commonwealth’s brief Mr. Justice Brennan, page 3.
William J. Brennan, Jr.: --what I meant by that was is that a Statute or—
John J. Irwin, Jr.: Yes, General Laws Chapter 277, Section 19.
William J. Brennan, Jr.: Since I interrupted you, may I ask that the Court of Appeals by law, turned this on cases of -- I gather here, Supreme Judicial Court that indictments are amendable only with respect to matters of form and as to matters of substance as to minor details or other sense of formalities, is that the law?
John J. Irwin, Jr.: Yes it is, if Your Honor please.
William J. Brennan, Jr.: And does this thing turn on whether this amendment was an amendment in minor detail or in the sense of formality?
John J. Irwin, Jr.: Well, we would suggest that this case does not necessarily turn on that issue in view of this particular statute. I would suggest that those particular decisions return by direct themselves to matters other than the change of name. If Your Honor please.
William J. Brennan, Jr.: In other words, your position is that whatever maybe, by statute, indictments are also amendable in the particular that we have involved.
John J. Irwin, Jr.: Right, in the fictitious name situation or an erroneous name situation.
William J. Brennan, Jr.: Does the appellant present the issue whether that statute is Constitutional?
John J. Irwin, Jr.: Yes, it does.
Potter Stewart: And the Court in the holding, in reversing the conviction not relied entirely, as I read the opinion, on the Equal Protection clause.
John J. Irwin, Jr.: Yes. Yes they do.
Potter Stewart: Not on Due Process?
John J. Irwin, Jr.: No. They do not, Mr. Justice Stewart. The Court pursuant to a hearing that apparently at least on the record appears to have been un-transcribed, Justice Tauro on presentment of this particular motion under General Laws Chapter 277, Section 19 by the prosecutor on August 10th of 1965, audit the following entry made on the record. And I am reading this entry from the Commonwealth’s brief or the petitioner’s brief, which is on page 14 and I quote “Tauro, CJ having determined that the true name of John Doe --
Warren E. Burger: Now, where did Tauro say this?
John J. Irwin, Jr.: On the docket entry, if Your Honor please.
Warren E. Burger: Docket entry?
John J. Irwin, Jr.: Mr. Chief Justice, yes.
Speaker: Response to a motion?
John J. Irwin, Jr.: Yes.
Speaker: By the District Attorney?
John J. Irwin, Jr.: He made this by the District Attorney; he made this entry on the docket. And it read as follows: “The Court --
William J. Brennan, Jr.: Do we have that in the appendix?
John J. Irwin, Jr.: Yes it is in the appendix although I do not have the -- I think it is page 59 Mr. Justice Brennan. It says that “The Court having determined that the true name of John Doe has been discovered to be James J. Connor, orders the name of James J. Connor to be entered on the record.”
William J. Brennan, Jr.: You said I will find it at page 59.
John J. Irwin, Jr.: Thereafter, the defendant along with others were tried in the Superior Court of the Commonwealth of Massachusetts and convicted. They appealed, of course, their conviction to the Supreme Judicial Court of the Commonwealth.
Warren E. Burger: Would you raise your voice a little bit Mr. Irwin?
John J. Irwin, Jr.: Yes I will Mr. Chief Justice.
Warren E. Burger: The acoustics (ph) are not very good in this room.
John J. Irwin, Jr.: They appealed their conviction to the Supreme Judicial Court of the Commonwealth. And the Supreme Judicial Court of the Commonwealth was again asked to confront itself or decide the issue raised by this particular Statute, 277, Section 19. The Court there reaffirmed its prior decision in the Commonwealth v. Gedzium. There the Court suggested that this alternative charging procedure was in fact a valid state interest, a valid state procedure and was in fact in conformity with all of the constitutional requirements placed upon procedural statutes and that the particular statute itself in no way violated Equal Protections of the law, because it required the Court to stand between the accused and the prosecutor before this particular change on the indictment could be made. And it seems to me that the Court below makes a significant argument and puts significant stress on a fact that this type of statute would allow a prosecutor to arbitrarily or for some other unworthy reason substitute the name of a person not otherwise meant to be inserted. The Court in the Gedzium case said, and I think this is significant with reference to the Equal Protection argument, the Court said that the trial justice before he allows a motion under this statute must make “the requisite findings” and also, must make an independent determination that no defendant is injured by such substitution. We have to assume then that the Massachusetts Court itself through its construction of General Laws Chapter 277, Section 19 has imposed upon the Court a burden of finding cause or probable cause that the person, whose name is ought to be substituted for that of John Doe, must be in fact be the one that the grand jury intended. And that no injustice is done to him by such substitution. We respectfully suggest that their construction placed on that statute by the Massachusetts Court corrects any possible infirmity with reference to the Equal Protection Clause of the Constitution of the United States.
Speaker: On what does the Trial Judge act in making that determination? Do they have a hearing or --
John J. Irwin, Jr.: What he has done in this instance and here again we have to -- the Commonwealth has to make an analogy between the grand jury function and the function of the Court. The grand jury function in Massachusetts is conducted of course in secret. It is Ex parte; the prosecutor does not of right have the ability to be present at their deliberations. They can conduct their deliberations without him and traditionally the Massachusetts grand jury has the power to call upon the Court to assist it in the performance of his duty and to serve as its agent for advise to the grand jury and if need be for protection of the grand jury. So, our argument is that this particular statute, as it has been construed, empowers the Court or the Trial Justice to whom this motion is presented to place himself in the capacity as an agent for the grand jury. And then, to conduct this hearing Ex parte to hear whatever evidence he feels is required, under the Gedzium case, to make the requisite findings.
William J. Brennan, Jr.: What fact did Chief Justice Tauro knew here?
John J. Irwin, Jr.: That we do not know Mr. Justice Brennan, because the preceding was un-transcribed and how the Chief Justice reached the decision with reference to this particular amendment has never been litigated. And, there again getting back to argument of exhaustion as we make reference to it in our brief and I intend into my argument, it seems to me that that particular issue could have been litigated on the question of exhaustion in sending the case back to the State Court.
William J. Brennan, Jr.: Perhaps I misunderstood you about what you said, the ruling in Gedzium is that there must be this determination that in fact the person, whose name is now to be substituted, is the person that the grand jury intended to indict. Is that right? And you said that under Gedzium that determination must be made by the -- Trial Justice has to make the amendment. Is that correct?
John J. Irwin, Jr.: That is right.
William J. Brennan, Jr.: But nothing, Gedzium did not prescribed any procedure --
John J. Irwin, Jr.: No it did not. If Your Honor please, the language is that they assumed that the Court, before allowing this motion as any other motion, will find that there is the requisite findings and find “That there is no injustice done to any defendant.”
William J. Brennan, Jr.: Then, who assumed this? Your case say --
John J. Irwin, Jr.: The Gedzium, the Gedzium case.
William J. Brennan, Jr.: Is that an assumption? That is the presumption of regularity in that respect?
John J. Irwin, Jr.: Right and that the Court will act with the fact in mind, that a defendant, before his name can be substituted, is entitled to a finding of cause. It does not in any way --
William J. Brennan, Jr.: (Voice Overlap) that the grand jury intended to indict that very person.
John J. Irwin, Jr.: Yes.
William J. Brennan, Jr.: That cause?
John J. Irwin, Jr.: Yes it is, Mr. Justice Brennan. We recognized of course, that if a state confers a benefit, such as Massachusetts does with reference to indictment procedure to the extent that generally speaking everybody is indicted in their true name, we recognized that once we do confer that benefit, that we must do it with an even hand and we must do it equally. However, we do insist that Equal Protection does not prevent differences in treatment provided that the differences are not applied arbitrarily and provided that they do in fact serve a valid state purpose. In this particular situation, we respectfully suggest to the Court that the Massachusetts system of criminal justice has a very decided valid interest in empowering grand juries to return indictments even in no situations where they do not know the true name of the person whom they are accusing. It seems to me that it is a valid state interest that a grand jury serve that function, that it bring to the attention of the public that in fact there was a person maybe among others or maybe alone who they know committed a crime and that even though they do not have that evidence, they want the public to be aware that this person in fact did commit this crime even though he is only identified as John Doe. So, that those people who are responsible for the investigation and the prosecution of crime will not be in a position to discontinue their efforts to locate and eventually prosecute that particular individual.
Thurgood Marshall: Mr. Irwin I have no trouble with the locating, police can do that without the indictment. Am I right?
John J. Irwin, Jr.: I am sorry Mr. Justice Marshall I did not understand.
Thurgood Marshall: You say, to locate the man, well the police can do that without an indictment?
John J. Irwin, Jr.: Yes they can.
Thurgood Marshall: Well now, what does the Trial Judge know was the basis for the grand jury saying that John Doe committed that crime?
John J. Irwin, Jr.: We do not know. Because of course, in this particular situation we assumed --
Thurgood Marshall: Well, suppose if John Doe and Mary do not turn up, would that still be good?
John J. Irwin, Jr.: Would the indictment still be good?
Thurgood Marshall: Well, suppose the indictment of John Doe who committed the crime of burglary may pick up Mary Brown. Could they substitute her?
John J. Irwin, Jr.: No. I would say they could not.
Thurgood Marshall: Why not?
John J. Irwin, Jr.: Because I would say that the appropriate way of describing any individual would be, if it happened to be a female, would be a Mary Doe or Jane Doe, obviously making a query that the person was a female.
Thurgood Marshall: So, Massachusetts does have some sense of identification?
John J. Irwin, Jr.: To a certain extent? Yes it does if Your Honor please.
Thurgood Marshall: But not to identification of this person?
John J. Irwin, Jr.: Right.
Thurgood Marshall: Would it be possible that the information that was presented to the grand jury that resulted in John Doe was erroneous?
John J. Irwin, Jr.: I would concede that it is possible that it might be erroneous.
Thurgood Marshall: Would it be possible that the evidence that will prosecute against by the Trial Justice would be erroneous?
John J. Irwin, Jr.: Yes it would be possible.
Thurgood Marshall: You do not have any Equal Protection problem?
John J. Irwin, Jr.: Well, I would respectfully suggest to the Court that traditionally, the type of evidence that is presented to the grand jury is not a matter for our inquiry and I would say Costello v.The United States. I think the Court is well aware that the grand jury is able to receive heresay evidence, is able to receive virtually any type of evidence. And we do not look behind the sufficiency of an indictment by a way of examining what evidence was necessarily presented to a grand jury for the purpose of producing the indictment.
Thurgood Marshall: I hope you do not assume my silence means I agree with you.
John J. Irwin, Jr.: No, I do not Mr. Justice Marshall.
William J. Brennan, Jr.: Mr. Irwin I suppose that the issue is whether this particular individual is the one whom the grand jury intended to indict, would not the grand jury had to have some kind of evidence that the perpetrator or the murderer was a man 5’7”, black hair or something of that effect, so that you could say that yes obviously they did not have his name, but this is the individual that satisfies that description?
John J. Irwin, Jr.: Yes, Mr. Justice Brennan. I think that your point is well taken. I think that it obviously it troubles me, but it seems that the evidence that has been presented to the grand jury is something that we just cannot necessarily look behind all of these times. I think that the Court below put great stress on the fact that had there been a more adequate description of the defendant, such as you just suggested that it would have been easier to the Court to find that this was not violative of the Equal Protection Clause and that the Court below would not necessarily have had the misgivings that they did have about this particular case.
William J. Brennan, Jr.: What I have in mind was that, how could Chief Justice Tauro conclude that this is the man that the grand jury intended to indict? Unless he at least, had some idea of what the person looked like that the grand jury had in mind. How could he?
John J. Irwin, Jr.: Well, again and this is probably not a very satisfactory answer, I would suggest that the record is bound with reference to what evidence was before Chief Justice Tauro thought --
William J. Brennan, Jr.: That was before the grand jury.
John J. Irwin, Jr.: Yes it is. And again as I suggest, this is probably not a very satisfactory answer, but I would represent that the law has been explicit that where the grand jury speaks, we assume that what the grand jury has done is sufficient. We do not look to the sufficiency of it. And therefore --
William J. Brennan, Jr.: No, we do. I thought the issue here was whether Chief Justice Tauro complied with what you tell us as the requirement of the Supreme Judicial Court decisions that he must be satisfied that the person whose name is now to be put on the indictment is the person whom the grand jury intended to indict. Is that what --
John J. Irwin, Jr.: Yes it is Mr. Justice Brennan.
William J. Brennan, Jr.: But, I do not see on this record how we can know one way or the other what he did.
John J. Irwin, Jr.: Well, this is again the reason why we suggest that the “exhaustion of remedy” would have been more appropriate. It seems to me that the very point that you make required the Court below on the comity theory and on the exhaustion of remedies doctrine to remand this case to the State Court for the appropriate procedures, to determine exactly what you have said. It seems to me that we have to take the position in advancing an argument before this Court that the Judge in making this determination is in fact an agent of the grand jury. And once he sets down on paper that he is satisfied that the true name is that of James J. Connor, the respondent, where in an analogous situation where we would be trying to examine why a grand jury indicted him. And it would seem to me that the suggestion that you made points out the argument that we make in our brief with reference to the exhaustion situation.
William J. Brennan, Jr.: The Court below did consider exhaustion and rejected, did it not?
John J. Irwin, Jr.: Yes, very, very summarily.
William J. Brennan, Jr.: But, that was what grounds?
John J. Irwin, Jr.: I think it was a suggestion that the controlling legal principles were before the Court and therefore that the Court, sue sponte could have raised the federal issue and therefore there is no exhaustion situation before the Court below.
Warren E. Burger: As I read the opinion of the First Circuit, it was an attitude that it did not make any difference, but the proceedings and procedures were in the Massachusetts Courts it was constitutionally permissible. That is why at least I read, that is why you did not send it back the Massachusetts State Courts to let them say what they had done.
John J. Irwin, Jr.: Exactly. And Mr. Chief Justice I would suggest to the Court that we of course, do not agree at all with that particular conclusion by that Court. As a matter of fact, it is interesting to note in the decision below that the Court does not in anyway discuss the fact that the Court, the Massachusetts Trial Court, stands between the prosecutor and the accused with reference to making this substitution. And I think had the Court had recognized that, it would in fact recognize that at least part of its Equal Protections objection would be dissipated and that if there was a further problem with reference to it, the situation that Justice Brennan suggests would be appropriate to exhaust the matter in a State Court.
Warren E. Burger: Would you think there might be some Due Process problems if it developed? This is a hypothetical, if it develops, that the Judge made this amendment to the indictment solely because the District Attorney of Massachusetts came in and said this is our man, nothing more.
John J. Irwin, Jr.: Yes. Mr. Chief Justice I would suggest that there could be a Due Process problem at that particular point.
Thurgood Marshall: Mr. Irwin, the petition for certiorari, I mean for habeas corpus is alleged, is that on page 19? It says that all the prosecutors said it gives a direct quote. Is that correct or not?
John J. Irwin, Jr.: Yes, but that was only when the respondent and his counsel were present. This particular matter was initially heard by the Chief Justice on the motion Ex parte.
Thurgood Marshall: Without the defendant being present?
John J. Irwin, Jr.: That is right.
Thurgood Marshall: And then when the party challenged it with his lawyer?
John J. Irwin, Jr.: When he raised his objection on his amendment.
Thurgood Marshall: Nothing was done except the statement that we now know who it is?
John J. Irwin, Jr.: That is right.
Thurgood Marshall: That is all?
John J. Irwin, Jr.: That is right. And I think it is significant to point out though that there was again, this is in connection with our argument that the Justice on the 277, 19 serves as an agent for the grand jury. I think it is significant to point out that there was a prior hearing even though it was Ex parte.
Thurgood Marshall: I have great trouble with this Judge being an agent who served for the grand jury, I have a big problem. Why would the -- in Massachusetts is it not true that the judge impanels to grand jury?
John J. Irwin, Jr.: He instructs and he impanels the grand jury.
Thurgood Marshall: How could he be an agent of what he had impaneled?
John J. Irwin, Jr.: Well, he is to this extent that the Massachusetts grand jury has available to it. The Justices of the Superior Court, not only for their advice with reference to the proceedings, they are conducting, but also for their assistance, for the Court’s assistance in the event that the grand jury needs them. So, I would suggest that at least on that analogy that they are serving in this capacity as an agent for the grand jury.
Thurgood Marshall: Where is the record in this case that there was a hearing held Ex parte or otherwise?
John J. Irwin, Jr.: The appendix shows that there was a hearing held on August 9th 1965, where the prosecutor presented this motion and that apparent --
Thurgood Marshall: Well, you said that there was a hearing before that. You said that there was an Ex parte hearing before the motion. I thought that is what you said.
John J. Irwin, Jr.: Before the arraignment Mr. Justice Marshall. The arraignment was subject -- subsequent to the time of the substitution of the name.
Thurgood Marshall: Is there anything that the record could show that the Judge ever heard anything from prosecutor Ex parte?
John J. Irwin, Jr.: No there was not, because the record is bound with reference to that. But the docket, the Court docket indicates that a motion was presented by the prosecutor to the Chief Justice on August 9th.
Thurgood Marshall: That is what is on page 19? Is that a correct statement on page 19 of the case, in the petition of habeas corpus, Is that an accurate statement?
John J. Irwin, Jr.: That is accurate to this extent that at the arraignment, at the arraignment the defendant through his counsel raised an objection to the substitution of his name. And at that particular time the Court made that appropriate remark.
Thurgood Marshall: And that is all that the prosecutor said?
John J. Irwin, Jr.: That is all.
Thurgood Marshall: That they had found out that John Doe is James J. Connor.
John J. Irwin, Jr.: That is all that was said at the arraignment. And I think the Chief Justice’s comment was that this was not an uncommon procedure.
Byron R. White: Mr. John J. Irwin, Jr., does a, or has a formal indictment ever been returned against Mr. Connor?
John J. Irwin, Jr.: No it has not Mr. Justice White.
Byron R. White: You do not have this practice in Massachusetts, that when the identity is determined, perhaps a subsequent indictment?
John J. Irwin, Jr.: No, but I would not want the Court to conclude from that but that is not feasible or practicable. I would assume that it can be and has been done in the past.
Byron R. White: Is there any limitations, problem lurking in the background here? This is a murder charge is not it?
John J. Irwin, Jr.: Yes it is.
Warren E. Burger: Do you have Statute limitations on that?
John J. Irwin, Jr.: No we do not, Mr. Chief Justice. I think of that Mr. Chief Justice, quite.
Speaker: Do I understand Mr. John J. Irwin, Jr. that your position is that in any event this petitioner never submitted this Equal Protection claim to any Massachusetts Court?
John J. Irwin, Jr.: That is exactly correct.
Speaker: And for the first time it was raised in the federal habeas procedure?
John J. Irwin, Jr.: Exactly, exactly.
Byron R. White: He raised some federal constitutional ground, but never specifically any claim with the Equal Protection Clause?
John J. Irwin, Jr.: Never Mr. Justice White.
Potter Stewart: Mr. Irwin do you know how many other States have this procedure, if any?
John J. Irwin, Jr.: I would assume that they are very few; I do not know exactly Mr. Justice Stewart. I do know that a great many States in an--in page 20 of our brief we make some reference to it, but I would assume that probably 35 States use the information procedure, so I would assume that maybe somewhere between 14 and 15 have a variation of --
Potter Stewart: of the John Doe indictment?
John J. Irwin, Jr.: Yes.
Byron R. White: Do I understand you do not use the information procedure in Massachusetts?
John J. Irwin, Jr.: We do not Mr. Justice White.
Potter Stewart: I suppose there could be a John Doe information?
John J. Irwin, Jr.: I would suggest that there could be, yes.
Potter Stewart: But you have not -- you just do not know how many States have this John Doe?
John J. Irwin, Jr.: No I do not Mr. Justice Stewart.
Warren E. Burger: Can a man be charged in Massachusetts on a capital charge, a murder charge without a grand jury?
John J. Irwin, Jr.: No, we cannot Mr. Chief Justice.
Potter Stewart: You have indictments generally for all felonies do you not?
John J. Irwin, Jr.: Yes we do Mr. Justice Stewart. In summary, then I would just like to conclude by stating that the Commonwealth for the reasons that it has asserted in its brief and in its argument before the Court feels that the Court below if it thought that there was indeed an Equal Protection problem should have under the comity doctrine and the exhaustion doctrine refer the case back to the State Court, so that the State Court for the first time would be able to view its statute with reference to whether or not it was a valid state procedure in light of the constitutional claims made under the Equal Protection Clause of the Fourteenth Amendment.
Warren E. Burger: Very well Mr. Irwin. Mr. Twohig?
James J. Twohig: Mr. Chief Justice may it please the Court. In this case involving a homicide that occurred in the early morning hours of May 1st 1965. The indictment was handed down by a Grand Jury but that was in session during the entire summer of 1965, and I believe was even in session during May 1965 and throughout August 1965. On August 4th of Wednesday, I believe, this particular indictment was handed down and the indictment besides naming a man named Donald Landry, also stated that another man was involved, John Doe and that they had no description of this man and no other man. And, that is the way the indictment read and I believe it is stated in full on page 74 of the appendix. This information was attested under oath by the Grand Jury and signed by the foreman. On August 6th, two days after this so called indictment of John Doe, which is not a fictitious name in my belief under the Massachusetts Statute, in my belief that statute is intended to indicate a man who was known to the police only by a nickname, a part of the name or a fictitious or assumed name.
Warren E. Burger: But,there are a lot of people who commit criminal act whose identity is not known for quite some time?
James J. Twohig: Not even any name, Your Honor, I will agree to that, but in those cases, the statute provides that there shall be a practicable description before indictment.
Speaker: Do you mean by that a certain height, color -- (Voice Overlap)
James J. Twohig: Yes and in this case, Connor was five feet seven, had black hair and was a very slight built, but there was no description of any kind in this indictment. All the Grand Jury did was to indicate that it did not know any way of identifying the second man involved in the homicide. Now, on August 6th, Landry’s wife was moving from her apartment in Boston and some friends had gone there to help her. Connor and his girlfriend were at that apartment. Connor was arrested when the police visited the apartment with another man of about the same description. This other man had been in jail on May 1st, so Connor was held and this was in fact stated to Connor by one of the policeman. I have made this statement in Open Court and there has never been any denial. Connor was then taken to police head quarters in Boston and thereafter on the 9th of August, the following Monday I, in response to a telephone call on behalf of Connor, went to Suffolk Superior Court for the purpose of representing Connor. It was not known at that time when the case was called that I was in the Courtroom, but it was called and I presented myself to the Court. I have supplied the Court with a copy of that session. Shortly after the Court recognized me, the Assistant District Attorney in-charge of the case and Mr. Irwin was not there. The Attorney General’s Offices had nothing to do with this case until it was in the federal Courts, but the Assistant District Attorney presented a motion for an amendment to the indictment. The only information of evidence or anything of any kind that the Court ever had was a bold statement by the prosecutor. Since the indictment has been returned, we and he did not identify who he meant by we, we have ascertained the name of the defendant, we did not know it at the time of indictment. Those statements were made as to any other means of identification. I objected to this, although I was taken by surprise and accepted to the allowance of the amendment and went to it in detail stating that there was no indication that Connor was the man intended, to be indicted by the Grand Jury or indeed that they ever intended to indict any specific person. And the consequently the indictment had no application to Connor what so ever.
Speaker: Mr. Twohig, is there a transcript of that hearing?
James J. Twohig: I have supplied one to the Court you Honor. It is not in the appendix, no Your Honor. It is with -- the voluminous record of the free trial proceedings and the evidence in the case. The amendment was allowed, now the amendment was not sanctioned by the Gedzium case. The procedure in the Gedzium case was in accordance with what the Gedzium case said the statute intended. The procedure in the Gedzium case was that the amendment was not to apply, there was not to be any amendment that the indictment was in effect secret and could not be touched, and this is in accordance with the decision in Commonwealth versus Maher (ph) in Massachusetts which I believe has never been overruled and which states that no amendment can be made to an indictment in an capitol case. The Gedzium case said that when the true name of the man accused in the indictment under the name of John Doe is discovered, it can be entered in the record and there after the defendant will be referred to by that name and that is what the statute says, which Mr. Irwin has just read. But, that presupposes that John Doe is actually a fictitious name and that no other practicable description is necessary and I submit that the statute does not mean that, but even if it did it would be unconstitutional, because it would deprive the defendant, not only of Equal Protection, but also of Due Process.
Warren E. Burger: What would you do Mr. Twohig about an accused to the indicted under this statute by the John Doe identification? And there after when he is apprehended, he refuses to give any name of any kind and they are unable to find his true name and can he frustrate the process or what would be the next step under this Massachusetts statute?
James J. Twohig: He can be tried under the practicable description Your Honor in the name of John Doe. But, there must be under the statute a practicable description. He must have been indicted by some identification by the Grand Jury.
Warren E. Burger: By practicable description, you mean again approximately five feet, seven and approximately a hundred and forty pounds and approximately forty years of age something of that kind?
James J. Twohig: Something of that kind, or by photographs, or by fingerprints, or by some birthmark. Some description of any kind --
Warren E. Burger: Well, by the time of that Grand Jury there maybe no way of getting either a photograph or a fingerprint.(Voice Overlap)
James J. Twohig: And in such a case the culprit would never been discovered, I suppose, but in this particular --
Warren E. Burger: Now, I am assuming Mr. Twohig just to get this illustration. I am assuming that after the indictment by this process, he is apprehended and identified and the witnesses who testified before the Grand Jury. Identify him as the person that they were speaking about to the Grand Jury, but the name is not disclosed and he refuses, he stands on Fifth Amendment grounds to refuse to give his name.
James J. Twohig: They do not need it, the witnesses can go before the Grand Jury, again Your Honor and they can identify the man as the man whom they failed to identify before.
Warren E. Burger: I have not made myself clear. In my hypothetical -- they have identified him, they said he was five foot seven, approximately forty years of age, black hair, swarthy complexion and they saw him shoot someone with a pistol and run and that is all. He has not been apprehended at the time there, before the Grand Jury has described these events, there is a dead person and the Grand Jury returns to John Doe indictment. Now, when he is there after apprehended, he is identified in custody by the same witnesses who had testified to the Grand Jury. Who again say that this is the man we were talking about, so you have a clear identification for indictment purposes, I suppose you would agree?
James J. Twohig: Yes.
Speaker: Now, you say they must to go back to the Grand Jury again and do what?
James J. Twohig: No, they do not have to go back this time, because they had previously identified him by a practicable description.
Speaker: How do you go ahead under this statute with the trial then?
James J. Twohig: You go ahead with the indictment as it stands, because it cannot be amended on the Massachusetts law, in my opinion.
Speaker: He is tried as John Doe.
James J. Twohig: John Doe and the description. Yes Your Honor.
Speaker: If the statute does not say John Doe and the description, it says he maybe described by a fictitious name or by any other practicable description.
James J. Twohig: Yes Your Honor.
Speaker: But we are not -- we are dealing here with a constitutional question not with the statute.
James J. Twohig: No.
Speaker: Mr. Twohig, did you have any method of reviewing the amendment after it was allowed of your objection on the state law?
James J. Twohig: On many occasions I brought up the question of the illegality, I claimed it was illegal and unconstitutional.
Speaker: But, I take it you could appeal the allowance of the amendment over your objection without first going to trial, is that it?
James J. Twohig: That is it Your Honor, because how you tried that --
Speaker: Do we have the trial proceedings, are they towards --
James J. Twohig: I have furnished a copy of them to the clerk.
Speaker: There is a complete record?
James J. Twohig: The complete record is here.
Speaker: Well, were there any witnesses who testified at the trial, who identified Connor as one of the --
James J. Twohig: Yes and I am coming to that.
Speaker: And, when you get it, would you say to whether any of the said they had also identified it before the Grand Jury?
James J. Twohig: They said they had not Your Honor.
Speaker: Well, whether this Betty Moore (ph) that was her name changed her story. She told one story, first to the Grand Jury and then she changed it.
James J. Twohig: Yes, she had testified twice Your Honor before the Grand Jury and this is my impression that she said, she gave different stories this time, but at no occasion had she identified Connor although she had known Connor for several years.
Speaker: Well, because of the hold of (Inaudible) employment.
James J. Twohig: No, before that. No of that, because of the hold-up, Connor was not involved in the hold-up. Connor was -- I believe in jail at the time of the holdup and release the day of the hold up. But, two days later he became eligible to be charged in the murder by virtue of being at large. The two witnesses did not identify Connor before the Grand Jury and that was their testimony at the trial and since one of them admitted at the trial in order to testify the trial that she committed perjury on the occasions when she testified before the Grand Jury, although this Grand Jury was the same one, still in session. At the time when Connor was brought before the Court it was impractical for the prosecutor to go back to the Grand Jury with the same two identifying witnesses for some reason and that is a reason. And it was on that ground that I asked repeatedly for the Grand Jury minutes, because if there were any evidence in that transcript that was favorable to Connor, I felt that I was entitled to have it as stated in Brady (ph) and Maryland (ph). The identification must have been favorable to Connor if any there were, and I do not believe there was any before the grand jury, but there might have been other evidence that they gave relating to the events of the robbery, two days before the murder. And, relating to the events that night before the murder or the homicide or whatever it was. There might have been something there which was favorable to Connor and I believe that I was entitled to have that and I was denied that of course, repeatedly right up to time and during trial. The Court then, having adopted the amendment on the Thirteenth, there was another action taken by the Court, this time without any information whatsoever. It was just brought to the attention of the clerk. I suppose the statute had been read more carefully in the meantime by the prosecutor. That an entry should be made in the record in accordance with the statute to the effect, that the true name of the man indicted was James J. Connor and in fact, the copy of the amendment which was served upon Connor, when he was in jail after appearing in the Court on the Thirteenth contained his name. Now, the indictment of course handed down by the Grand Jury did not contain his name. That was not the indictment, which was served upon in the jail. So, in my view not only the Constitution of Massachusetts and the Constitution of United States were violated by this procedure, but the law itself, statutory law of Massachusetts was violated and he was denied Due Process. On the grounds, I suppose stated in Gedzium that when a miscreant conceals his identity during the commission of a crime, he has no right to complain if he is arrested on the general warrant. This is of course, contrary to all the previous traditions of the Commonwealth of Massachusetts and to the history, the judicial history that preceded establishment of the Commonwealth.
Speaker: Of course, we are not concerned here with whether or not the statutory or common law of Massachusetts is violated in this case. It was determined by the Supreme Judicial Court of Massachusetts that it was not and this was in conformity with the law Massachusetts and we accept that. We are concerned with here is only a federal constitution question that alone.
James J. Twohig: Now, the federal questions were also presented to the Massachusetts Supreme Judicial Court and I have reviewed the presentation of these questions in my brief.
Speaker: Where do we find in your brief that you specifically rested on the federal constitutional grounds of Equal Protection that I think you are pointing?
James J. Twohig: Page 21 Your Honor.
Speaker: Page 21 of your brief or the transcript (Voice Overlap)?
James J. Twohig: My brief, yes. In the second paragraph, I said the constitutional and legal issues arising out of the indictment and arrest were also fully argued in Connor’s brief and in the Supreme Judicial Court, pages 10 to 14 as to probably cause. The absolute limitation on material indictments, two indictments in serious cases, the nullity of the indictment as an the indictment in blank and the warrant as a general warrant. All involving the violation of Connor’s rights under -- I will skip the Massachusetts laws, under the Fifth and Fourteenth Amendments to the Constitution of the United States. I might also say at this time that I believe that the Sixth Amendment was involved. These issues were of course, also stated and argued in the United States District Court at length and I have the citation there.
Speaker: I noticed that the Supreme Judicial Court opinion dealing with this indictment issue, does not treat, at least in Equal Protection of the Fourteenth Amendment terms that is --
James J. Twohig: No, they did not Your Honor, although I raised the Fourteenth Amendment at that time and I believe, I mentioned the equal protection in my brief couple of times. I did not stress it or emphasize it, due process was my main reliance, but the Fourteenth Amendment in its entirely was also relied --
Speaker: In your brief, included in the --
James J. Twohig: I believe, yes. I have supplied the copy of my brief to the Court, but I have another copy here, which I will give to the Court and the court could collect in case, I did not do that.
Speaker: Mr. Justice Clark's dissenting opinion in the Supreme Judicial Court of Massachusetts seems to rely on the State Constitution, on the Article 12 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts, is that where you read it?
James J. Twohig: Yes, yes it does.
Speaker: I do not see any reference to the Federal Constitution.
James J. Twohig: I did not get that Your Honor.
Speaker: I do not see in his dissenting opinion any reference to the Constitution of the United States.
James J. Twohig: No, I do not believe there was, but I believe that the Constitution of the United States was nevertheless violated Your Honor. The Second Court pointed out clearly to me, what I had failed to emphasize, although I had mentioned it and that and that was that Equal Protection was also involved. But, I do believe, nevertheless that Due Process also was involved here. The procedure then, that was authorized in Gedzium was thus expanded and elaborated upon. In this particular case, to include something that had never been applied to any other defendant in Massachusetts and clearly in violations, his federal constitutional rights. The case then proceeded and I continued to protest from time to time about the indictment. I asked for the Grand Jury minutes and in order that I would get some information, which would enable me to ask for an evidentiary hearing, as to whether or not the Grand Jury had been intending to indict Conner as some other person. I asked for the Grand Jury minutes also on several other grounds to prepare my case for inconsistent statements, to prepare for cross examination, but I was principally concerned with the question that whether or not Conner should ever have been brought to trial, forced to respond to a charge of murder in first degree. That was my objective in asking for the Grand Jury minutes primarily. I was denied the Grand Jury minutes. I think I must have asked for them formally at least a dozen times. They were kept from me on pretext after pretext. I have stated these pretext in the brief on page 25. No -- and it continues for several pages there after.
Speaker: Mr. Twohig, for a second, just in case we do not have your brief in the Supreme Judicial Court, you said you have a copy here?
James J. Twohig: I have Your Honor.
Speaker: Be sure to leave it with the Court.
James J. Twohig: I will Your Honor. May I say Your Honor that the one that I have is marked in pencil and I apologize for that --
Speaker: We will read them.
James J. Twohig: Alright. The Grand Jury minutes who withheld from me, me at any rate, although they were -- I think several constitutional grounds in which I was entitled to them. And, this policy of secrecy and the withholding of evidence material to the defense was applied to the matter of interviewing the two identifying witnesses. I have never even seen the identifying witnesses up to the time of trial, except on one occasion when I visited the Court House back in -- I believe the end of August, 1965 when I saw a girl in conference, the door opened and inadvertently I saw this girl in conference with several police officers and the Assistant District Attorney in charge of the case, whom at the trial, six or seven months later I recognized, as a material witness. They had her there at that time.
Speaker: That was the witness, Moore?
James J. Twohig: Betty Moore, a very attractive young lady, tall, slim, dark and one that was easy to recognize later on. This witness and the other witness also a striking young man, his name was Ronald Haze (ph) were both withheld from any conversations with me or with any of the Counsel for the three called defendants.
Speaker: Did you make a demand?
James J. Twohig: Yes Your Honor, several demands. And --
Speaker: I thought the witness Moore was made available to you and that when you began asking her about a testimony for the Grand Jury, the counsel for the Commonwealth objected and that then the interrogation was concluded I thought, I saw that in the record. Am I mistaken?
James J. Twohig: No, Your Honor, just before the trial. She was presented to the Court and the last hearing before the trial, I think.
Speaker: So, she was made available to you?
James J. Twohig: No Your Honor. She was not. She was put on the stand in open Court.
Speaker: Before the trial?
James J. Twohig: Before the Trial. And, the Judge instructed her that she did not have to say anything if she did not want to, that she was entitled to counsel and so on and he asked her if she wanted to say anything other the name and address and she gave the name and that was all she would say, we were never allowed to question her. The attorney, I recall now -- the attorney for one of the other defendants was given an opportunity to see her in the District Attorney’s Office before that and when he started to ask her questions, the Prosecutor intervened with the statements that she did not have to answer any questions if she did not want to and that he was not to ask her anything about what she said before the Grand Jury. And, the conference exploded in an argument and nothing was elicited from her there. We have maintained all of us, four counsels that we never had an opportunity to talk to these witnesses. We did not consider that incident in Court an opportunity to discuss the case with the witness. I believe that she was advised not to talk to us. The case was replete with irregularities. There were answers to specifications of two of the other defendants. My own specifications, I had no quarrel with other than that they were not responsive and that I got no answers to anything that I tried to get about the information I considered material in the Grand Jury minutes.
Warren E. Burger: Now, did you direct these points to the constitutional issue, Mr. Twohig?
James J. Twohig: Yes, I do Your Honor, the full and fair trial. It has been the contention; one of the minor contentions I believe of the prosecution offices, that we had a jury trial and I think that has been intimated in the decisions that you always have the jury trial as final protection. But, we did not have a full and fair trial, Your Honor. And, I believe that, that is fundamental thing, which involves the Constitution of the United States and the protection that provides to every defendant. So, I regard it as being involved in the constitutional issue, Your Honor. I do not think that in any way the rights of the defendant Connor were respected under the Constitution of the United States, under the Fifth, the Sixth or the Fourteenth Amendments. That he was denied Equal Protection and that he was denied Due Process.
Warren E. Burger: Thank you Mr. Twohig. Mr. Irwin, I will give you three more minutes.
John J. Irwin, Jr.: Mr. Chief Justice and members of the Court. By way of a rebuttal I would only reiterate that it is the Commonwealth’s position that the constitutional matter before this Court on this hearing is whether or not that the respondent, James J. Connor, was deprived of any constitutional guarantee, especially the Equal Protection of the Fourteenth Amendment of the Constitution. With respect to the argument that was made by the respondent, through his counsel, I respectfully suggest that a reading of the Commonwealth v. Doherty case that is cited in the brief, with the dissents will indicate that the Massachusetts Supreme Court was not presented with the constitutional argument. And, that the Justices in deciding that case were concerned solely with determining whether or not Hurtado v. California was still strong enough to support the doctrine of Jones v. Robbins in the Commonwealth of Massachusetts and no other issue. And, getting back to the position that the Commonwealth takes in its brief, in its argument, I would respectfully suggest to the Court that this particular vehicle, General Laws Chapter 277, Section 19 is strictly a procedural vehicle, by which a Grand Jury which has a valid interest in seeing to it that they are on occasion, John Doe indictment retained has the power to indict somebody and then, later require a substitution on the “showing of cause.” It seems to me that in that situation, that if the Court wanted to determine whether or not there had been an Equal Protection violation, that the proper thing to do would be to remand the case to the State of Court -- the appropriate State Court for hearings consistent with those particular claims. Thank you Mr. Chief Justice.
Warren E. Burger: Thank you Mr. Irwin, thank you Mr. Twohig. The case is submitted.