Earl Warren: Number 9, Lynumn versus Illinois. Mrs. Lafontant.
Speaker: May it please the Court. Mr. Chief Justice, members of the Court. The petitioner herein was tried and convicted for the unlawful sale and possession of narcotics. And her convictions affirmed by the Illinois Supreme Court. She sought certiorari on the ground that the confession obtained from her by threats and promises was used against her in her trial in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. This Court granted certiorari upon receipt from the Illinois Supreme Court of a certificate that decision of the federal claim refer to in the order of the United States Supreme Court was necessary, was necessary to the judgment rendered by the Illinois Supreme Court. The people's testimony reveals that on January 17th, 1959, an informer, one Zeno, who had been previously convicted of the unlawful sale of narcotics, was again in the custody of Illinois officials for again violating the narcotic laws. He agreed with his arresting officers upon promises of leniency by the said officers to set up an undisclosed third party for the crime of the sale of narcotics, wanting to keep from going to the penitentiary if he possibly could, as will appear on page 21 of the record, this informer took the arresting police officers Bryson's, Sims and Kobar to the apartment building where petitioner resided. Alone, he gained admittance to the apartment. Inside that apartment, there were three people present, namely the petitioner, the informer Zeno, and a visitor. Zeno was out of the presence or sight of the police officers from 10 to 15 minutes. He later emerged from the doorway leading to the apartment, rejoined the arresting officers and handed them a package which contained marijuana. He told them that the petitioner had given it to him, had sold it to him. It is uncontroverted that the arresting officers were not present at the time of the alleged sale, and that they relied upon the word of Zeno that the petitioner sold the narcotics to him. Followed by the police officers, Zeno returned to the petitioner's apartment and then she opened the door, she was arrested. She was grabbed by both her hands and she was told by Officer Sims that she had unlawfully sold narcotics to Zeno. She was then taken back into her apartment, to the bedroom, if you please, flanked by two police officers. In her own behalf, she protested for innocence. Now, while in that bedroom, Officer Sims had adroitly inquired whether petitioner had any children, noticing ad bringing up the fact that there was children's clothing in the bedroom. He also inquired quite adroitly about her subsistence. And he found out that she had two little children ages 3 and 4 that she was receiving state funds in order to help support those children, state funds from what is called Aid to Dependent Children in Illinois or ADC. And then he said at page 35 of the record, “If we take you into the station and charge you with the offense, the ADC would be probably be cut off and you will probably lose custody of your children.” He also said that during that same conversation, he promised to recommend leniency to the state if the petitioner would cooperate. Then and only then, the petitioners said “Yes, I did sell it to him”. This confession of a guilt of the petitioner brought out by Illinois on direct examination of his own witness, we submit was timely objected to on the basis of having -- the confession having been induced by promises of immunity at the trial level. And the objection was preserved by a later motion to strike. And the statement was also made at that time that the objection was made because the confession was made under promises of leniency.
Byron R. White: (Inaudible)
Speaker: At that point –-
Byron R. White: (Inaudible)
Speaker: At that point, the federal ground was not stated in particularity. The only statement was (Voice Overlap) –-
Byron R. White: (Inaudible)
Speaker: No.
Byron R. White: (Inaudible)
Speaker: That's correct, Your Honor.
Potter Stewart: Where does that appear in the record, Mrs. Lafontant?
Speaker: That that appears at page 27 of the record.
Earl Warren: Was it argued at the trial level in constitutional terms?
Speaker: Well, in my interpretation, I would say that it was in that -- the general statement was made that the petitioner had been denied her rights since I understand it because she -- this confession was coerced, in view of the fact that she was threatened with having children taken away from her, that was brought out, but it was not specifically spelled out, that the particular provision of the Due Process Clause of the Fourteenth Amendment was being violated.
Speaker: Was that of any significance in view of the Supreme Court certificate?
Speaker: I would say not, Your Honor. I believe that the Supreme Court certificate -- I would say first that even without the Supreme Court's certificate, by looking at the evidence as a whole that -- it would not beyond -- be beyond the realm of reasonableness to say that the question was actually brought up. But in view of the fact that it was raised very specifically in the Supreme Court's brief, and in view of the fact, the certificate from the Illinois Supreme Court states that it did consider the constitutional question, that he did consider it, and then it was necessary for its decision, I think would render the question moot in the view of all of these.
Speaker: And since you could well-afford to rest on the Supreme Court's certificate on that finding.
Speaker: Well I -- I don't wish to rest upon anything until my half hour is up.
Potter Stewart: Mrs. Lafontant, the certificate in which Mr. Justice Harlan referred on page 80 of the record and it refers to an order of this Court dated November 13, 1961. Is that order in the record?
Speaker: The order itself is not in the record, Your Honor.
Potter Stewart: It says, of the federal claim referred to in the order of this Court. What --
Speaker: Yes, well --
Potter Stewart: How is that federal claim verbalized in this Court's order, do you remember them?
Speaker: The order the Supreme Court of the United States was directed to the Illinois Supreme Court to answer the question whether or not the Illinois Supreme Court had considered pages 66 of petitioner's brief in the Supreme Court and it was quoted that it was unfair to make a promise -- mimic on a promise, coerce a confession and then use that confession as evidence, that's what was substantially. And the Illinois Supreme Court answered and said that it did consider that question, the federal question. I believe I do have a copy of that order in my notes. Now, I -- we submit that the in -- inadmissibility of this confession was presented in the appeal brief just referred to before the Supreme Court of Illinois and again raised with particularity in the petitioner's -- petition for a rehearing. The Attorney General of Illinois argues that the constitutional question was not aptly asserted in accordance with Illinois principles. He ignores the nature of the right claimed by petitioner to have been violated. You well know that a similar question was raised and passed upon by this Court in Brown versus Mississippi, 297 U.S. 276. And it said on the following words, “That contention rest upon the failure of counsel for the accused, who had objected to the admissibility of the confessions to move for their exclusion after they had been introduced and the fact of coercion had been proved. It is a contention which proceeds upon a misconception of the nature of petitioner's complaint. That complaint is not of the commission of mere error but of a wrong so fundamental, that it made the whole proceeding a mere pretense of the trial, and rendered the conviction and sentence wholly void. We're not concerned with a mere question of state practice, or where the counsel assigned the petitioners were competent or mistakenly assumed that their first objections were sufficient.” If the Attorney General of Illinois contends the principles of trials and appellate judicature of a state would be sufficient to withdraw from the consideration of this Court, violation of such substitute rights as here presented, it would be tantamount to giving a state the right to nullify the provisions of the Fourteenth Amendment of the Constitution. Such preemptive rights, we submit, are inconceivable. This Court has long held that the confession obtained by promises of leniency, duress, or coercion when admitted over the objection of the defendant vitiates the whole proceeding and is a denial of the Due Process Clause of Fourteenth Amendment. It is true that in this case we didn't have the gross brutality that we have in the Brown versus Mississippi one. But this Court has also recognized the coercion of the mind is of the same nature and sometimes greater than physical violence. In Spano versus New York, 360 U.S. 315, the investigators extracts the confession from the defendant by having his close friend Bruno urged the defendant to confess. Because Bruno, who was a fledging police officer, stated to Spano, that if he didn't confess, that he would be in a bad spot, and because of a prior phone call in an admission that it had been made to Bruno. And in that case, it was held that the confession was really involuntary. And I know, Chief Justice Warren remembers it and knows in much more thoroughly than I could ever hope to. In Brown versus United States at 168 U.S. 532, there's another instance of a similar case. In this case and when I say a similar case, a case where actual brutality wasn't used. The defendant Brown was induced into incriminating himself after the police officer told him, “Brown said he saw you do the murder. I'm satisfied you do murder. You must have had an accomplice. If so, you should say so and not have the blame of this horrible crime on your shoulders.” And the incriminating statements that were made by Brown in that case were held to be involuntary. And in Rogers versus Richmond, 365 U.S. 534, the confession that the defendant gave was held to be involuntarily merely because the police had threatened to bring his arthritic wife in for interrogation. And there, the Court said, “The attention of the trial judge should have been focused on the question whether the behavior of state law enforcement officials was such as to overbear the petitioner's will to resist and bring about confession not freely self-determined.” I submit that in this case the threat was to what is -- what is dearest for a mother, the custody and the care of her two little children. And I also submit that she had a further inducement and that -- that further inducement was a promise of leniency. Petitioner confessed her guilt, it's true but such a confession should -- could hardly be considered a voluntary one.
Arthur J. Goldberg: (Inaudible)
Speaker: Yes.
Arthur J. Goldberg: (Inaudible)
Speaker: Yes.
Arthur J. Goldberg: (Inaudible)
Speaker: I would say so, Your Honor, yes.
Speaker: Supposing the -- supposing the Illinois Supreme Court are putting another sentence and said, “Having evaluated this record, will you think that despite those representations or promises of leniency, this was a free and voluntary statement.” What would you say to that?
Speaker: Would you repeat that please.
Speaker: Supposing the Supreme Court of Illinois had added another sentence and said that despite these promises that are referred to here, we find this was a voluntary statement.
Speaker: I don't --
Speaker: That her mind was not overborne.
Speaker: Well, I would say, it would make no difference because these facts would definitely disprove that statement. And I would say this that when any promise is made, no matter how slight, that we cannot possibly weigh what influence such a promise would have upon the mind of a person. Now, that's why I had presented these other cases where it was shown, I thought the weakest one possibly was in this Spano case versus New York, where -- not Spano in the -- yes, in the Spano case versus New York where was just the word of a friend say -- by him saying, “I'll get into trouble if you don't confess.” And they say, well that's involuntary. Well certainly, if a person is not close to you, any closer than a friend, if what would come to him, what harm might come to him would make you confess and the Court would hold that that's involuntary, I certainly would say that even if the Supreme Court of Illinois would say, “Well, in spite of the fact that they've said they're going to take her children away from her, and she wouldn't have any funds,” I would say -- they couldn't possibly say that in view of these cases, in view of this Court's prior ruling.
William J. Brennan, Jr.: But even half the Supreme Court said that, that's inconclusive upon us as a conclusion.
Speaker: I would say it is not conclusive upon the Supreme Court of United States, Your Honor, because I don't believe that the Supreme Court of Illinois or of any other state can bring out the right of this Court to look into basic fundamental constitutional issues. And you certainly, this Court would certainly have the right to look into the record, and you could make the determination whether or not the confession was voluntary.
William J. Brennan, Jr.: Is everything that bears on this provided in this record?
Speaker: That's one apology I wished to say -- I wished to make because on the second section of the Spano case and the Rogers versus Richmond case, those two cases are not in the record. I would say mainly because there was no rebuttal brief filed to the Attorney General's brief in which he raised the issue. And now that I am in oral argument, I have added these two cases --
William J. Brennan, Jr.: Well, I don't think --
Speaker: But if you want me to --
William J. Brennan, Jr.: -- I don't think I put myself clearly enough. I mean, on the facts of everything here, that they're on the question of this professional --
Speaker: Yes.
William J. Brennan, Jr.: -- all the facts are here?
Speaker: All of the facts are in the record, Your Honor.
Tom C. Clark: Are there any conflicts in the facts as to the problems of leniency or threats?
Speaker: There is -- there is no dispute whatsoever. The facts that I stated at the opening were the facts as submitted by the State with the exception of my -- of the petitioner's statement that she had denied her guilt. But everything else there, I took out of the record from the State's own case, of Officer Sims, stated that he promised her leniency, he also stated that he -- that probably her children would be taken away. In addition to his own statement, Officer Bryson said he overheard a similar conversation and it that all three of the officers sort of joined in with these promises of leniency.
Tom C. Clark: There's no dispute over the facts then?
Speaker: No dispute over the facts in my opinion.
Byron R. White: Was there any necessity for you to having -- make any motions to suppress -- or prior to trial (Inaudible)
Speaker: A motion to suppress was made prior to trial and a motion to suppress was sustained prior to trial.
Byron R. White: (Inaudible)
Speaker: A motion to -- let me make it clear --
Byron R. White: Or was it the -- we're really talking about the officer's testimony?
Speaker: Yes.
Byron R. White: Are we -- are we talking about the her testimony -- we're talking about --
Speaker: No. We were talking about the officer's testimony. There was no motion made to strike her testimony. Her testimony was only given after a motion to strike the officer's testimony was denied and she was put to the in -- to defend herself. There was no motion to strike her testimony at all. But there was a general motion to suppress as I recall at the very beginning of the trial to suppress all the evidence that had been adduced as a result of an unlawful search.
Byron R. White: And that was clearly sustained?
Speaker: And that was sustained.
Byron R. White: As a result of an unlawful search?
Speaker: That's right.
Byron R. White: They're talking about --
Speaker: The actual confession there was --
Byron R. White: They're talking about a coerced confession?
Speaker: There was no actual motion to suppress the oral confession because as I understand the record, there was no notice that the oral confessions were going to be used prior to the trial. So that motion was not made prior to the trial.
Byron R. White: So otherwise, you would have had to make an issue?
Speaker: I would think so.
Byron R. White: In suppressing the oral confession.
Speaker: I would think so. We have notice.
Tom C. Clark: Was the oral confession made before the search of the room?
Speaker: Yes. The oral confession was made as soon as they went into the bedroom, as I understand the testimony, she was just told that she -- that Zeno had set her up and that she had actually made a sale of narcotics which she denied. At that time, they started a general conversation and there was no mention of the search having been made prior to the oral confession.
Earl Warren: Well, in the record, it was about ten minutes after they came in there, was it not, that they obtained the confession from her?
Speaker: Yes, that's -- they've got it, yes.
Byron R. White: Is there -- there is no hearing, a state court finding (Inaudible) as to whether or not this confession was obtained by (Inaudible) There is no expressed finding one way or another on it.
Speaker: In this particular case, the Illinois Supreme Court said that --
Byron R. White: (Inaudible)
Speaker: Justice Solfisburg, at page 73 of the record states, “A review of the record does indicate, however, that strong suggestions of leniency were made to defendant subsequent to her arrest and prior to her admissions.”
Byron R. White: Well, that doesn't mean to see -- that doesn't mean that the confession was induced by promises of leniency, that there were strong suggestions of --
Speaker: Yes sir.
Byron R. White: -- leniency made, that there is no expressed finding that's obtained by a counsel.
Speaker: No, but I believe that, from his own word, from the wording of the Illinois Supreme Court, however, that you might read between the lines and see that after an arrest and prior to the admission that promises were made, they don't go into what they were, but if they do say, strong promises of leniency.
Byron R. White: Strong suggestions of leniency.
Speaker: Strong suggestions of leniency.
Byron R. White: But there were suggestions of leniency but it didn't resolve what the consequence was.
Speaker: That's right. But I submit that the State's own case tells us what the consequences were and tells us specifically what promises were made and leads it to this Court to determine whether or not they were induced by coercion.
Hugo L. Black: Suppose she had said, “I'm confessing, but I want you to particularly you understand that it's not a result of any promise you made.” What about that?
Speaker: I don't believe it would have made -- it would have made any difference in this matter. I would still -- I would think that the same principle that has been determined that you cannot possibly weigh the amount of influence of a promise that if she raised the question (Voice Overlap) in proper time that it would be --
Hugo L. Black: What if --
Speaker: -- you could (Voice Overlap) involuntary.
Hugo L. Black: -- (Voice Overlap) specifically from that that she didn't make the promise on the count of the inducements. She just wanted to put something over on the State.
Speaker: She wanted to put something over on the State.
Hugo L. Black: She probably put something over on the State. The Court found that she didn't do that on the count of the inducement.
Speaker: I believe that this Court would have the power to look into it --
Hugo L. Black: Have you read --
Speaker: -- and see if the rights are --
Hugo L. Black: -- Shotwell?
Speaker: -- are violated.
Hugo L. Black: Have you read the case of Shotwell that was decided two weeks ago?
Speaker: I haven't read Shotwell that was decided two weeks ago, no.
Speaker: Well, take a look at it.
Potter Stewart: You might find it helpful.
Speaker: Thank you.
Hugo L. Black: I don't think you will.
Speaker: Well, from what you said, I don't think the facts there wouldn't mind ours either, so that it perhaps isn't applicable and shouldn't hurt me. It just hurts me in not being able to respond in your question.
Hugo L. Black: Of course this --
Tom C. Clark: (Inaudible)
Hugo L. Black: -- in that case, the promise was from the Secretary of the Treasury and this one is for police force --
Speaker: That's different --
Speaker: (Inaudible)
Speaker: Quite a different thing.
William J. Brennan, Jr.: That's right.
Tom C. Clark: Don't worry about -- you're not (Inaudible)
Arthur J. Goldberg: There's no question in this case that her oral statements had been made to induce evidence?
Speaker: No question about it at all, flanked by two officers.
Hugo L. Black: Complete what?
Speaker: Flanked by two police officers. There was no question about the fact that she was in police custody, both of her hands were taken.
William J. Brennan, Jr.: She was in her bedroom?
Hugo L. Black: But do you think --
Speaker: And they directed her into her bedroom, yes.
Hugo L. Black: I understand you're basing your argument then on the premise that a mere promise of leniency alone has finally settled that the confession was made that that was induced by the promise.
Speaker: I would go that far, but I don't believe it's necessary to go --
Hugo L. Black: I went that far in Shotwell.
Speaker: Very good.
Hugo L. Black: But the Court didn't.
Speaker: The Court didn't. The second contention of respondent is that the petitioner's conviction does not rest in whole or in part upon petitioners confession and I believe in the discussion that we've had already that that has been covered, but that was the next part of my argument that I was going to -- go into. But the line of cases, with the Spano versus New York case, Malinski versus New York 324 U.S. 401, and Blackburn versus Alabama 361 U.S. 199, this Court has held that a conviction obtained by use of coerced confessions will be set aside even though the evidence apart from the confession might have been sufficient to sustain the verdict. The respondent further advances the theory that involuntary confessions admitted over the objection of the defendant, do not violate the constitutional provision of the Fourteenth Amendment when the personality of the trier of facts have changed from that of the jury to the judge. We submit that the waiver of a jury by the defendant cannot be claimed to be a waiver of the basic constitutional guarantees of the Fourteenth Amendment. In its opinion, the Supreme Court as you've heard stated that strong suggestions of leniency were made. But that after looking at a review of the entire record, the Supreme Court said, “We are convinced that the evidence fully supports the judgment of the trial court.” In the light of Spano line of cases heretofore referred to, we submit that this was error, that the admission of the involuntary confession of petitioner over her objections vitiated the whole proceeding that the finding of the Supreme Court of Illinois that there was evidence in the record to support the conviction does not add sanctity to conduct long adjudication by this Court as reprehensible and a violation of the Due Process Clause. We, therefore, respectfully pray that this Court set aside the judgment of the Supreme Court of Illinois and remand the case to the state court.
Speaker: Does this record show one way or the other as to whether this lady had any prior convictions?
Speaker: Yes, the record is clear that she had never been convicted and certainly had never even been arrested for anything prior to this time. Thank you very much.
Earl Warren: Mr. Wines?
William C. Wines: May it please the Court, Mr. Chief Justice. I begin the argument for Illinois by the unqualified concession that the conversations between the petitioner and the police officer ultimating in her confession were coercive and did deny her due process of law within so far as I know not only every decision of this Court but within the purview of every opinion of any justice in this field with which I am familiar.
William O. Douglas: Is this a confession of error?
William C. Wines: No, by no means, Your Honor. And after I have expatiated a little longer submission, I'm going to state and then earnestly press the thesis on which Illinois asks this Court --
Byron R. White: You don't -- you don't -- you really are stating this thing, (Inaudible) Do you -- do you think you would make the same judgment?
William C. Wines: Yes, Your Honor I did, but in view of the questions from the bench, I thought it might be well to make it orally.
Hugo L. Black: I understood you to say you confessed that the confession was coerced.
William C. Wines: Within the meaning of the Due Process Clause, yes, that it was obtained by violation of the petitioner's constitutional rights under the Fourteenth Amendment. That's my contention.
Speaker: Well then, that ends your case.
William C. Wines: No, Your Honor, because it's my earnest contention that I shall press that counsel for the petitioner, not counsel appointed by the Court, but counsel -- not counsel who represents her here, but counsel in the trial court chose at least compatibly and perhaps in the signal exemplification of the best strategy of advocacy trying this case without a jury instead of effectively trying to have this confession excluded, chose to exploit it in petitioner's behalf. And also that in this case, well -- also that in this case, it affirmatively appears in the record not by inference or innuendo that this petitioner's confession did not re -- I mean this petitioner's conviction on the sentence, did not rest in whole or in part upon this confession. A situation that can't be present in a case that has tried by a jury which has been permitted to hear a confession obtained under circumstances and that, as is the case here, clearly constituted denial of due process of law.
Arthur J. Goldberg: (Inaudible)
William C. Wines: Your Honor, the motion to exclude because no notice was given was not in any way an invocation of the Fourteenth Amendment. And the motion to exclude, suppress wasn't, but even if it had been the Illinois rule is quite clear, very clear that it isn't enough in any case, civil or criminal to make an objection if the Court declines to rule. The Illinois practice is that the point is waived unless counsel explicitly requests a ruling.
Speaker: What's the significance of your standpoint of the Supreme Court certificate that it passed on the question -- in the federal question and necessarily did so?
William C. Wines: Well it did pass on. It did pass on it. And I can assure Your Honors from reading this opinion and from my intimate acquaintance with that Court that they passed on it in this way. They say so, in almost so many words, that they considered the federal question whether this confession was extorted or obtained by du -- duress within the meaning of the Fourteenth Amendment held that it was, and held that it played no part in the trial courts or their Court's conviction. That's the meaning of that certificate, not that it approved this method of getting a confession. Maybe if I can talk in terms of the effect -- and by the way, the counsel is quite correct when in answer to a question from Mr. Justice Brennan she said, “There's no dispute about the objective facts of this confession.” There is as to Zeno's testimony that -- the informer's testimony that she sold him the narcotics which is unqualified accusation in her testimony that she didn't which is an unqualified denial. But the version -- by the way, Mrs. Lafonant's statement to the Court here was exceptionally fair and lucid and accurate and relieves me of the burden of restating the facts, but casts on me a considerable burden of discussing it. Now, the facts --
William J. Brennan, Jr.: Mr. Wines, may I just ask this to what, do I understand what -- what you're telling us about the certificate here that the Supreme Court decision did not rest upon a finding adverse to the federal claim.
William C. Wines: No, and the finding favorable to it.
William J. Brennan, Jr.: Well, let's see. What you're saying is this is not like Irwin and Dowd, like first Irvin --
William C. Wines: Like what?
William J. Brennan, Jr.: First Irwin and Dowd where we found that of two grounds, a state ground and the federal ground, the Supreme Court of Indiana decision, in fact, rested upon a decision of the federal question. Now, what you're telling us here is that we must read the Supreme Court of Illinois opinion although it dealt with the federal question as not resting its decision upon the federal question.
William C. Wines: That's right.
William J. Brennan, Jr.: Because had they rest it, they had reversed this --
William C. Wines: That's correct, exactly.
Hugo L. Black: Would you mind pointing out a part of the opinion of the Court?
William C. Wines: Yes sir. Yes, Your Honor. It's the part of the opinion that it's exactly the same part of the opinion that counsel for petitioner have not read, but I should like to read it again. I'm reading it from page 9 of my brief quote --
Hugo L. Black: What page is it on, on the record?
Potter Stewart: 73.
William C. Wines: 73.
Hugo L. Black: Alright.
William C. Wines: “A review of the record does indicate, however, that strong suggestion of leniency, suggestions of leniency were made to defendant subsequent to her arrest and prior to her admissions. Even in the absence of defendant's statement, there's a clear proof by Zeno and the police officers that the defendant gave a package containing marijuana.”
Potter Stewart: Mr. Wines, now I think I understand the argument that you're making, but I must say it's so ingenious that it --?
William C. Wines: I don't think so Your Honor --
Potter Stewart: -- that it -- I've thought that this is exactly where the error was because it's been clearly held by this Court time after time after time, that when an involuntary confession is introduced in evidence, in a criminal trial against the defendant, there's no -- you can't constitutionally say that that was harmless error and you're making a harmless error argument to us, are you not?
William C. Wines: That has been so very clearly held so many times by this Court that the Supreme Court of Illinois must know and as often as this Court is held, the Supreme Court of Illinois has held it even the oftener.
William J. Brennan, Jr.: That's just what they're saying in these two sentences, isn't it?
William C. Wines: No, (Voice Overlap) no, Your Honor. No, Your Honor. I would like to answer all of these questions in terms of the undisputed facts of this case, and I am not passing the question. I'm trying to lay the factual basis for my argument. These are the undisputed facts, who is the petitioner? Is she a sophisticated, wealthy, gangster or gangstress of the Chicago underworld, equipped with long experience with the Fifth Amendment? Not at all. She is a woman on relief with children three and four years old in a neighborhood that's impoverished that appears almost as a matter of judicial notice from anybody who knows anything about addresses in Chicago. She's accused not of parking violation, but she's undoubtedly, she didn't know what the penalty was, but of a severe crime, the unlawful sale of narcotics which Illinois punishes when she was sentenced in this case, 10 to11 years.
Potter Stewart: What could the maximum sentence have been?
William C. Wines: I don't recall, Your Honor. I'm sorry. I don't remember.
Earl Warren: What's her sentence here?
William C. Wines: Not less than 10 or more than 11 years in the penitentiary. Now --
Potter Stewart: So there's no -- there's no suggestion that she -- that the promise was kept of leniency.
William C. Wines: Oh, no, not by any terms. Now, two police officers came. There's an accusation that she sold narcotics to a confessed peddler who's trying to make a deal for himself as far as I know, he did. Because Illinois is better by keeping its deals with informers and it is with those who confessed. Now, here's this one who's told not just that if she doesn't confess and she is convicted, she'll get as more severe sentence than if she is convicted in spite a denial, or on standing mute. The police didn't stop there with extortion. They indicated to her, the diction is in text -- just intimation, but in texture, its intimidation. They told her in just so many words weren't very new today, that if she didn't confess whether she was convicted or not, she was the one to lose custody to her two children in any way, they did more than that. And her counsel neglected to mention this which is a very serious threat in Chicago. They threatened to take her off what we call ADC which means her Aid to Dependent Children stops, and she gets no checks. And how she feeds them, I wouldn't know, unless of course she then begins some other criminal career than that with which she was accused here. Now, the reason I deal later on and expatiate on the actual circumstances which are a good deal of words than petitioner's counsel, narration would lead is to show that in order to think that this confession rested in any -- that this conviction rested in -- how could this rested in any part or not confession, you would have to say that an experienced judge of a court of general jurisdiction, the Criminal Court of Cook County, not a Justice of the Peace or magistrate. And the unanimous Supreme Court of Illinois including as I think its then the Chief Justice, Mr. Justice Schaefer whose contributions to the law of evidence, he's a distinguished professor of that subject to Northwestern, you can ask Mr. Justice Goldberg about it. You would have to say that men like Mr. Justice Schaefer, Mr. Justice Solfisburg, Mr. Justice Dailey who's been on that Court for very nearly 20 years were oblivious of all Your Honor's decisions on this point, on their own decisions. They've always held that a confession induced by promises of lenity is inadmissible. As far as the Illinois law is concerned, you don't even need the Illinois' Due Process Clause, the common law of rule of evidence that excludes confessions on that. Now --
Speaker: What you're saying is --
William C. Wines: I'm saying that --
Speaker: So bad, this record is so bad that it just can't be so.
William C. Wines: Just precisely and if you're --
Speaker: Well, lead -- lead us over the hill so I could see what -- where --
William C. Wines: I will, very well --
Speaker: -- you'll bring this out.
William C. Wines: Very well, very well. Suppose Your Honors, in the first place, the pronouncements of Your Honors that a confession that where the admitted facts show that an extorted confession was used, a conviction where there's a jury can't rest in whole or in part on that confession, and Your Honors will not exceed.
William J. Brennan, Jr.: When there's a jury?
William C. Wines: That's -- when as a jury and --
William J. Brennan, Jr.: And where there's -- where there's a --
William C. Wines: Then, I say the question is entirely different, and that is the heart of the argument to which I'm coming right now. If there were any difference between cases tried by judges, I mean as far as the effect of coerced confessions are concerned and cases tried by jury, this rule would make no more -- no sense at all because either jurors would know as much as the members of this Court in which case they'd pay no attention to extorted confessions, or the members of this Court would no know more than jurors in which case they wouldn't exclude them, so the rule has to be different for cases.
Byron R. White: Were this the only ground that -- the Supreme Court of Illinois considered the federal question and they kept --
William C. Wines: Yes sir, and I'm as sure as I can be that that's true.
Byron R. White: The (Inaudible) has rejected this --
William C. Wines: Yes.
Byron R. White: I thought it rejected it and you're only -- your only reason is that this is a judgment of the jury.
William C. Wines: No, no, no. They didn't reject the petitioner's contention that the confession was -- was extorted by duress.
William J. Brennan, Jr.: Your point is they agreed that it was.
William C. Wines: Agreed to that it was -- and then --
Byron R. White: But exactly on federal ground, that is the --
William C. Wines: Let's get to certificate.
Byron R. White: No, I get it, except that it was necessary that you think --
William C. Wines: Well, it was necessary because petitioner raised it and it had to do something with it.
Byron R. White: So what did they do with this?
William C. Wines: What I'm saying Your Honor, this is not -- this is not a sophistical argument made to keep an unfortunate descendant, unfortunate woman to the penitentiary for not less than --
Byron R. White: What did they do with it?
William C. Wines: I say that they -- they say just what they say, strong suggestions of leniency or a lenity were made. Now, when they say that in the context of all of Your Honor's decisions, of all of their own decisions, they have to mean that that confession can't be received. If they had gone ahead --
Hugo L. Black: Why didn't they say that if that's what they meant?
William C. Wines: Well, Your Honor --
Hugo L. Black: Hence, gentleman, it seems to me, it would express themselves in their opinion -- I just don't understand that argument.
William C. Wines: Well, Your Honor I can't tell you why a judge did or didn't say anything in this kind of a context, but when they go ahead and say even so, they show that they are paying no attention --
William J. Brennan, Jr.: Well, what --
William C. Wines: -- to this confession.
William J. Brennan, Jr.: -- (Voice Overlap) please, if you don't mind to get back to my question at the moment. I'll assume that they said it. They said this was a coerced confession and it was a confession which was inadmissible under the Fourteenth Amendment. Now, where do we go from there?
William C. Wines: Just --
William J. Brennan, Jr.: They affirmed after all, where -- on what basis?
William C. Wines: On the basis that they had played no part in the conviction below and played no part in the affirmance above.
William J. Brennan, Jr.: They played no part in the conviction that you mean because there was extrinsic evidence independent of the -- of the confession, that's not what I meant though.
William C. Wines: What?
William J. Brennan, Jr.: You have to get over that one, don't you?
Byron R. White: Do you think it's just a harmless error, on what you're arguing?
William C. Wines: Yes, which I think is quite appropriate where there's no jury.
Byron R. White: Alright, so it is this -- this is a -- the harmless error rule ought to apply where there's judges in the jury?
William C. Wines: If it's error.
William J. Brennan, Jr.: What do you mean by that Mr. Wines? We have to assume, even though there's nothing said about it, that the trial judge said to himself, “Of course, I can't take that confession. It's pertained to violation of the Federal Constitution. So I shut it out of my mind and I now decide this case on the rest of the testimonies.” And that when it got to the Supreme Court, the Supreme Court said, “Oh, that trial judge shut that out of his mind and decided this on the other --
William C. Wines: That's --
William J. Brennan, Jr.: -- testimonies.”
William C. Wines: Yes --
Byron R. White: In that situation --
William C. Wines: That's what I mean.
Byron R. White: -- would you say that Justice Schaefer couldn't possibly have done anything else?
William C. Wines: That's right. That's what I think.
Speaker: That don't actually -- the pros of the certificate then, that they were given a certificate that they had passed, necessarily passed on the decision, and they would have said, “No, we didn't pass on that question because neither the trial court nor ourselves paid any attention to the admission.”
William C. Wines: That would not be a correct certification of my real understanding of this opinion. I think that Court did this, they read petitioner's briefs. They saw this confession extorted by promises versus threats, intimations or promises versus intimations of threats. If they didn't know about this Court's rule before, they certainly knew it when petitioners cited Brown against Mississippi, if they had not previously heard of the rule, of course they passed on it. Here it was in no record. Here is a contention by a counsel that the confession was ex -- was extorted or wasn't. Well, if it wasn't extorted, it would be substantive evidence of guilt. So they had to determine whether it was extorted. They must have determined that it was extorted because you can't read these facts --
Byron R. White: Well, why did they --
William C. Wines: -- with any knowledge.
Byron R. White: Why did the trial judges denied the motion to strike the testimony?
William C. Wines: But he didn't.
Byron R. White: At page 40 of the record here, the judge has denied the motion to strike the officer's testimony which contained the confession.
William C. Wines: Oh, I'm sorry.
Byron R. White: So, the motion is practically denied. These -- I don't know why he -- if he was so sure that he went through this mental process of saying, “Yes, we have a confession but it was simply, I can't rely on it.” He would have nailed that there and gone through the normal process of -- of grating the motion to strike.
William C. Wines: Well, I cannot explain why he did not do it that way. I cannot. But I just can't believe that any criminal court judge, a jury yes, and any Supreme Court of Illinois would rest the conviction in whole or in part, on this kind of a confession. It imputes absolute anarchy to a -- the bench. If the facts have been a little closer, then it might not be so clear.But so -- now, petitioner --
Arthur J. Goldberg: (Inaudible)
William C. Wines: It does it on the weight of the evidence too in the criminal case which this Court won't do --
Arthur J. Goldberg: And on the admissibility.
William C. Wines: And on the admissibility.
Arthur J. Goldberg: (Inaudible)
William C. Wines: Your Honor, the Illinois rule is that where a case is tried without a jury, the judge is presumed or considered only competent inadmissible evidence, and the more clearly the evidence is inadmissible, the clearer is the application of that rule.
Potter Stewart: It's not a irrebuttable presumption now, is it?
William C. Wines: Oh, no, no.
Potter Stewart: Because on page 40 that presumption is rebutted. There was a motion to strike the testimony and upon the grounds among others that the evidence was inadmissible and was given under promises of leniency. And the record says the motion to strike was denied.
William C. Wines: But in the Illinois, the mere fact that an objection to competent evidence is overruled when it should be sustained, it doesn't destroy the presumption, never has. Now, it does in the federal courts but not in Illinois. Now, but in the last few minutes, I would like -- I would like to make this point an answer to this question, suppose Your Honors reverse and remand this case, presumably Your Honors won't reverse it outright and set the petitioner free because there is other evidence of guilt. So suppose Your Honors conclude that there ought to be a new trial. Now, if this were a case tried by jury, we'd get a new jury to presumably would've heard nothing about this confession at all and would be free from infection or contamination (Voice Overlap), but what will be the consequence if you reverse this? Any judge who tries this case is going to know about this confession.
Byron R. White: Oh yes, but you don't -- if this -- if this judge hasn't sustained the objection after an offer of proof of what the officer is going to say, had sustained the objection of that point or had granted the motion to strike, I doubt that this case would be here.
William C. Wines: I doubt it, too.
Byron R. White: So that -- what you're about to say is already covered by our present standing.
William C. Wines: Well --
Earl Warren: On remand, Mr. Wines, would -- on remand, would the petitioner be prevented from having a jury?
William C. Wines: I would think so. I would certainly think so.
Earl Warren: I would like to ask just one other -- other question.
William C. Wines: I don't know. I don't know of Illinois law on it.
Earl Warren: What would the average sentence be for the person that -- who had never -- never been arrested before for anything who is caught with making one sale of marijuana?
William C. Wines: I'm sorry Your Honor, I'm completely unable to answer that question. I simply don't know. I don't know one bit more about it than Your Honor has to know. I should -- I don't practice in the criminal courts and in them for over 20 years.
Earl Warren: I just thought you might --
William C. Wines: I just don't, not even from -- I know less about it than I should as a citizen of Chicago. I just don't know so I won't say I do. Now, if I'm wrong, if I'm wrong about this, in my argument and this confession did play was kind of uncommon in this petitioner's conviction, in fact, if I'm wrong, then it isn't as clear to this Court as it is to me that it didn't, then I'm not just here to win the case. This case ought to be reversed and remanded and that I'm authorized after now in my 21st year of practice before this Court for Illinois and I'll make that statement for Illinois. But I'm as sure as I can be that no judge in Illinois gives anybody any 11-year sentences on confessions like this. That's my point. That's my only point --
Earl Warren: I didn't get that last sentence.
William C. Wines: I said I'm as sure as I can be that no judge -- jury, yes, but no judge in Illinois gives anybody sentences like this on the basis of confessions obtained as this confession was. If I'm wrong about that, then Illinois is wrong too, and this is the time to correct it. But I don't think I'm wrong. Thank you.
Arthur J. Goldberg: (Inaudible)
William C. Wines: I don't know anything about it, Your Honor. I have no information on or off the record.
Arthur J. Goldberg: (Inaudible)
William C. Wines: Oh, I think I do know. I think I do know. I assure that they didn't refer to this case. There was a well -- a published difference of opinion in Chicago between a former State's Attorney and a number of judges. The former State's Attorney was in the newspapers and on television accusing a number of judges of undue leniency. The judges and a committee of -- a Bar Association investigated these charges. The judges replied with anarchy. Some thought unseemly energy to unseemly charges that being in my own due but they had nothing to do.I'm as sure as I can be without having read the articles with the Beatrice lines who did not figure at all in this debate. Thank you.
Arthur J. Goldberg: (Inaudible)
William C. Wines: It seems to me a severe sentence and yet there is a -- I do know in general of the sentences in Illinois are quite severe --
Earl Warren: They're quite what?
William C. Wines: -- quite severe in narcotics cases. That's true. I'm indebted to petitioner's counsel's courtesy to say that -- I can't read it. The minimum sentence would be five years and she says it's usual, and as far as I know, I have no reason to dispute her.
Earl Warren: Very well. Anything further Mrs. Lafontant?


Earl Warren: No. 178, National Labor Relations Board, Petitioner, versus United Insurance Company of America. Mr. Manoli.
Dominick L. Manoli: Mr. Chief Justice, may it please the Court. This case here is on a writ of certiorari to the Seventh Circuit. The National Labor Relations Act excludes from the term “employees” and therefore, from the protection that employs have under the statute. It includes from that term any individual having the status of an independent contractor. The board found that the debit agents of the respondent Insurance Company are employees and not independent contractors, and that therefore the company violated the statute when it refused to bargain with the union which the board has certified as the agent’s partly represented. The court below, on the other hand, held that the debit agents were independent contractors and not employees, and that therefore the company was under no obligation to recognize or (Voice Overlap) with the union. The question presented is whether the board properly determined that these agents are employees within the meaning of the Act, and whether the Court below in displacing that judgment with its own judgment has overstepped its reviewing function. I think its not unfair to say that the facts which underlie the dispute, and putting to one side some argumentative shadings that there really is no significant dispute as what the basic facts are that give rise to this controversy in which I think in the final analysis, will govern its disposition. The record here is a very lengthy one and well, I very much regret in giving the Court a rather lengthy summary of the facts. I think that a full understanding of those cases requires a summary of the facts no longer than usual. The company is engaged in the sale of life and health and accident insurance through its district offices located in various states. Every district office has a manager and several assistant managers. Each assistant manager is in-charge of the staff of four or five of these debit agents are involved in this case. The company has a compliment of approximately 3,000 debit agents and involved in these proceedings are approximately 150 of these agents who are attached to the company’s district offices in Baltimore. The company hires the debit agents and assigns them to a particular district office. A debit agent deals mainly with the industrial insurance. This type of insurance, unlike the ordinary or commercial insurance, involves smaller coverage usually a thousand dollars or less, and provides for the payment of premiums on a weekly basis. The agent's job is to collect premiums from the holders of these policies in a relatively concentrated geographic area to prevent the lapsing of policies and the sales of such a new insurance as time allows. He spends most of his time collecting premiums from the policy holders whom he serves. The agents need not have any prior training or experience that are trained by company’s supervisory personnel. The company's supplies them with a so-called, and I might say a misnamed great book which contains detailed and comprehensive instructions how to perform many of their duties, requires them to file weekly and other periodic reports with respect to their premiums collected, the increase or decrease in business, lapses, and so on. The company reviews his reports, requires changes if necessary and approves them and correct. The agents do business in the company's name. The company provides them with the debit book which contains the names of the policy -- names of the policy holders the agent has to serve, the insurance policies, various forms and sales promotion literature. Although the agents may be licensed to sell other company's insurance and sometimes do such sales are infrequent. The terms and conditions under which they operate and the compensation which they received are promulgated unilaterally by the company. Their compensation is based primarily upon a percentage commission of the premiums collected. The agents participate in the company's group insurance and profit sharing pension fund which the company has established for the benefit of employees. They also enjoy what is essentially a vacation pay plan under which the agent may take one or two weeks off, depending on his length of service. They have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory. The agents perform their work primarily away from the company's offices. They do not have regular offices for which they pay rent. Although some set aside workspace in their homes and deduct the maintenance involved for tax purposes. However, they regularly report to the district office once each week in order to turnover premiums collected, to file weekly reports and to attend staff meetings. The agents have no employs. From time to time the assistant manager accompanies an agent on his rounds among the policy holders in his debit. If the agent is ill or absent, his assistant manager services his debit. The agents may fix their own hours of work and workdays but since the company expects him to obtain a high percentage of collections and to avoid policy lapses, and to bring in new business, it is evident that they must be diligent in the performance of their functions.
Speaker: In most of these (Inaudible) other jobs?
Dominick L. Manoli: I just said a moment ago, Your Honor, if they are licensed to sell insurance for some other company, they may sell insurance for some other companies. But apparently, that's -- those sales are minimum, and as far as I know, the record does not show they hold any other jobs in any other capacity.
Speaker: Well, on the contrary (Inaudible)
Dominick L. Manoli: I don't recall that there's anything on the record with respect to that. The company may terminate the relationship at will. Now, the degree of control, which the company exercises over the agents is best perhaps some gap in the words of the company's board's chairman. In a letter read to some of the agents which was critical of the agent's failure to make certain reports of the company, he declared, If any agent believes he has the power to make his own rules and plan of handling the company's business, then that agent should hand his resignation at once. And if we learned that said agent is not going to operate in accordance with the company's plan, then the company would be forced to make the agents final that means dismissal. We would not allow anyone to interfere with us in our successful plan. So much for the facts of this case, let's say it's a little bit lengthy than usual, without having gone into some degree, I think it would be difficult to appreciate what our problem is in this case. As I stated, the very beginning of my discussion, the Labor Act excludes from the definition of employees individuals who have the status of an independent contractor. The statute does not define either terms, either the term employer or the term independent contractor. Congress incorporated this specific exclusion of contractors, independent contractors in the 1947 Amendments.
Byron R. White: This was following the Hearst case in this Court --
Dominick L. Manoli: Yes sir.
Byron R. White: -- on this boys?
Dominick L. Manoli: Yes, sir. And I'll come to Hearst eventually. The -- of course, under the original Wagner Act, the term “employee” impliedly excluded independent contractors. The problem under the old Act, the problem under the new act, has always been where the draw of the line between the employer and employee and an independent contractor. What the test is to govern the -- he has to govern the drawing of that line and this application of that test to specific situations. Now, in the Hearst Case which was decided as Mr. Justice White has pointed out, which was decided by the 1947 Amendment, this Court rejected their contention that in drawing the line between employees and an independent contractors, technical common law standards would apply exclusively. It held instead that employee status or independent contractor status was to be determined upon the basis of the underlying economic realities of the relationship in the light of the policies and purposes of the statute and their effectuation. Congress disapproved of this ruling and in 1947, it expressly excluded in order to carry out the disapproval of the Hearst decision and expressly excluded from the statute of independent contractors from the term “employee -- independent contractors”. And in the legislative history, it made clear its intention that the term employee or independent contractor was to be defined on the basis of general agency principles. Now, I think it's --
Byron R. White: What had Congress indicate -- what it thought about news boys?
Dominick L. Manoli: I should -- the status of those news boys?
Byron R. White: Under their -- under the test?
Dominick L. Manoli: No, they did not, Your Honor. They thought that -- their criticism of this Court's decision was that it left to the board pretty much at large. Pretty much at large or without any standard at all to determine who is going -- who was an employee and who was an independent contractor.
Byron R. White: So I take it that the board's petition for a cert has indicated that this ruling here would be significant as far as news boys are concerned?
Dominick L. Manoli: Yes sir, it would.
Byron R. White: And that you might reach the same result under your present test as --
Dominick L. Manoli: That's right.
Byron R. White: -- as in the Hearst case.
Dominick L. Manoli: Yes, that's right. Indeed, this Court itself in Hearst did not say that those news boys would not have satisfied agency principles. But it took the occasion of that case of course, to deal with the very larger problem of what the proper test would be under the statute. Now, it is trite for me to say that under the -- that these agency principles that are to govern the task of determining who is an employee and who is an independent contractor, it is trite for me to say that they don't furnish us with any simple formula that's going to solve our problem in a very easy fashion. Under those principles, it seems that in large measure, the decision turns upon the scope and extent of control that the person for whom the service is being performed, their control which he exercises or that control which he may exercise over the performance of the job or of the service. Now I think it is common ground among us here at counsel table that in assessing the requisite degree of con -- of this kind of control that no single factor, no single element of the relationship between the person for whom the service is being performed or fellow who is performing this service that no single element is decisive but that all of the elements, their relationship must be taken into account and it is the total situation that governs. Now, the restatement of the law of agency which we all cite incidentally and rely on, we all come -- cite pretty much the same thing but come to different conclusions. The restatement of the law of agency, among the relevant factors which it lists, which are significant for determining that kind of control whether it's employee status or independent contractors, it lists among other things the scope and extent of the control over the details of the work by the person for whom the service is being performed, whether the person who is performing the service is engaged in a distinct occupation or business or whether the work that he is doing is an integral part of the daily business, operations of the person for whom he is performing the service. The continuity of the duration of the relationship between the person for whom the service is performed, fellows performing the service, the method of compensation and I believe that some others listed there. If I may borrow a phrase from a very recent decision of this Court obviously this is an area in which there is going to be an enormous infinite variety of factual situation, and obviously decision as to status is going to call for discretion, for judgment and I might even say for some intuitive judgment. We believe that the board's overall appraisal of the overall situation here is -- as its judgment and its judgment of these -- in agents -- that these debit agents are employees and not independent contractors is wholly reasonable and within the framework of the legal test of this agency principles. In the first place, these agents do have a relatively and continuing relationship with the insurance company. The insurance company unilaterally promulgates the terms and conditions of their service. Three, these agents make no investments in the business and they have no independent business establishment. Four, they have no prior experience or training is -- as it is required in order to have one of these jobs. They assume no risk of profit, no risk of loss, nor the possibility -- and know the posibilty of profit beyond the premiums which they collect upon under insurance. Their work obviously is an integral part of the company's business of selling insurance and servicing its policyholders. The collection of premiums which constitutes the major part of the work which these business agents performed is routine and clerical. The nature of the company's business, the supervision which that business -- which the assistant managers exercise over these debit agents, they're reporting and acquiring -- a kind of requirements which these agents must follow and the diligence in the industry which these agents must demonstrate in order to properly service their debt, all these combined to indicate that these agents have very little leeway in the exercise of any real discretion or any real freedom of action in their performances or functions.
Speaker: Is this relationship a common one under the insurance business?
Dominick L. Manoli: Yes, it is, Your Honor.
Speaker: Among industrial property?
Dominick L. Manoli: Yes, it is. It's a -- there are -- in the early days, the Wagner Act, a number of insurance companies pressed the same issue before the board that these people were not employed or not independent contractors. But the board has uniformly held that these debit agents throughout the industry are employees and the industry has at large measure acquiesced, I think perhaps United is the only holdout. The --
Abe Fortas: Have you had some cases involving insurance agents other than debit agents?
Dominick L. Manoli: (Inaudible)
Abe Fortas: Have you had some cases involving insurance agents other than those who write industrial insurance?
Dominick L. Manoli: I don't recall that the board has had but there are other types of agents obviously were may be quite different from these debit agents, from the debit -- from these debit agents, but I don't recall that the board has had a -- at the moment, I don't recall. It may well have had insurance policy, people selling insurance other than debt -- in debit agents.
Hugo L. Black: No life insurance agents?
Dominick L. Manoli: Sir?
Hugo L. Black: I had an idea that we'd had some life insurance agent cases.
Dominick L. Manoli: Oh, you did but they involved unit questions. We had the Metropolitan Life Insurance cases, oh, cases under the labor board?
Hugo L. Black: Yes?
Dominick L. Manoli: Those were here couple of terms ago and it involved questions of the appropriateness of the unit. There was no issue there as to whether or not the debit agents were employees. Nobody was disputing that the debit agents involved in those cases were employees under the statute.
Hugo L. Black: But there was an issue as to whether insurance, life insurance sales agents were, wasn't it? We didn't have the case of life insurance sales agents?
Dominick L. Manoli: Yes, those cases involved debit agents of insurance companies.
Hugo L. Black: But I call them life insurance agents.
Dominick L. Manoli: Well, these people on the trade are called debit agents. These people whose service is --
Hugo L. Black: Yes, but I was talking about life insurance, the life insurance agents only.
Dominick L. Manoli: There's been no case before this board -- under the labor -- before this Court. Under the Labor Act as to the status of these insurance agents other than this one here Your Honor. The -- now, to be sure, these agents in the sense are on their own. They do work primarily away from the company's district office and apart from reporting weekly to their regional office, except on rare occasions, they do -- they may fix their own hours of work and their workdays. But we submit that the board could recently discount the seeming elements of independence in the context of the entire picture which I submit. The board properly found, reflects a pervasive control and supervision over every aspect of the agent's functions and performance. Now, the company argues that the board in this case and another cases that its judgment in this case and other case at bottom rest upon a continuing adherence to the Hearst Case. I submitted that that argument is ill-found. Of course, in the nature of the problem, in the nature of the problem, they are bound to be common factors which will play a role under both tests. The agency principle test and the Hearst Test in the gray area, and so many this gray area, where's going to be a difference but the two tests may make a difference, in the gray area where one test or the other may dictate a different result. And I suppose it must be acknowledged that the distinction between the two tests, the economic reality, so called economic reality test of Hearst, and the agency principles does not, as Mr. Justice Frankfurter once said in another context does not present a glaringly bright line. But under both test, you do take into account all of the elements of the service relationship. The differences between the two tests that under Hearst in the closed case and I repeat again that that's the only area where these two tests may make a difference. “That in the close case which may fall short under its -- under agency principles of establishing an employee status in that kind of a case, under the Hearst Test, the policies and purposes of the statute and the effectuation of those policies will suffice to tip the scales in favor of finding that that person is an employee. Now, the board has repeatedly acknowledged since 1947 that agency principles do in fact govern its determination of employee's status and I have sought to explain, I believe that this decision in this case does come forth with those -- or with the -- those principles. It seems to me that the real thrust of the company's argument on this leg of the case is that the board has given undue weight to certain factors which are indicative of employee's status and discarded those which the company says -- it says, point the other way. But obviously we are in an area whether there will be differences of judgment as to how much weight is to be given to one factor as against another in arriving at a balanced judgment. But I submit that the board's judgment in this case is vulnerable to attack only if it can be fairly said that the overall evaluation that it is made is unreasonable and not within the general framework of this agency principles. I want to come to the second leg of my argument here and that is -- deal with what the court below has done. We believe that the Court below in displacing the board's judgment of this case as the status of these debit agents has misapplied or misconceived these agency principles, and has over-stepped the proper bounds of its reviewing function. The court below implicitly, if not expressly, and recognized that the company does exercise a substantial degree of supervision and control over these debit agents. But despite the fact that it had said that in determining statutes you look to the total situation. The court below completely neutralized these elements of control and supervision which the company does in fact exercise and which the court below, I think, they in fact does recognize. It completely neutralized those because they are inherent in its business operations. The court says that since business necessity may require some of these controls, some of the supervisions you simply neutralize. The board should not give any weight at all to those particular factors. And then having said that, the court then look at the fact that these employees are under own in the sense that they work away from their district office, that they may select their own hours, and gave that fact a decisive weight. But we submit Your Honors, we submit that there is no rational basis for the court to discount elements of control and supervision which the company does in fact exercise simply because business necessity requires such control and supervision or because they may be inherent in the operation of the company's business. It is -- if those controls do exist, yet that such supervision does exist as would indicate employee status, then it's irrelevant what the reason or the source for those controls may be. They do remain a fact of life, and they should be weighed in the balance in order to determine an overall evaluation whether or not these people are or not employees. Finally, the -- Your Honor, I see there's one more minute left. I have about five more minutes to go. Shall I stop at this point?
Earl Warren: You may stop.
Dominick L. Manoli: Alright sir.
Earl Warren: Very well.