Alexander A. Goldfarb: -- attention to page 24 of the respondent's brief in which he admits, State admits that petitioner was moderately defective and of a classification of middle or high grade moron. But more particularly, it's significant that the state police officers and the State concedes it's new or were told by the petitioner that he was feeble-minded on that day, Saturday, the first day that he took -- they took him into custody. So that they knew that this was a mental defective from the very day they -- they took him into -- under their influence. And further, the State concedes at page 26 that the accused was subjected to extended time for questioning, on page 26 of the third paragraph of the respondent's brief. So there is a concession by the State that there's been at least an extensive period of questioning although it related to other crimes. Now, on that Tuesday when the State had violated the mittimus and not taken the accused back to the Hartford -- back to the Hartford County Jail as directed by Court order, during that entire period, they subjected him to intermittent periods of questioning. And two, when they brought him back to the State Police Barracks that afternoon or early evening, they brought his wife and two minor children, a thirteen-year-old child and a five-year-old child to State Police Headquarters. And as there -- as -- as the state police officer, Lieutenant Rome stated in the record, and this is admitted by the State, "Mr. McDonough interrogating -- cross interrogating Mr. -- Lieutenant Rome, you also testified yesterday, Mr. Rome, the reason you brought Mrs. Culombe to the Headquarters was to use her as another way of getting confession." Lieutenant Rome, "Yes, sir." "And did you expect to use her on Taborsky too?" "If I could," he answered. "If you could, what other means or ways did you use on Taborsky? Did you use his mother?" Answer, "You could interpret it that way," and that was the fact. They used his mother to get a confession from the co-suspect, Joseph Taborsky. Not only that and this is undisputed, the thirteen-year-old minor child had confessed to some private conversation held between her father and the co-suspect Taborsky in their home sometime previous, about a month or two previous. State Police used the confession of that minor child, had the minor thirteen-year-old minor child into disgusting and humiliating episode, confront her father with that very statement, the very confession that she made. And the essence of that statement is at page -- it's in the transcript in which the State does not deny. "You do recall," Mr. McDonough says recalling the thirteen or fourteen-year-old child over to the door and saying, "Honey, tell your father what you told us, don't you?" The answer of the -- of Lieutenant Rome, "I could have said that." In addition to the use of the wife and children, there was the five-year-old child who was also taken to the police headquarters and she was brought there because she was sick. And they claim -- the State claims that the mother didn't want to leave the five-year-old child alone. Nevertheless, the two children were brought to the police station with the mother against her will, Culombe knew this. Culombe knew also that -- that his five-year-old child was sick. This warred -- wore upon him, this depressed him, this demoralized him. And later on that evening or the following day, the five-year-old child had to be dispatched to a hospital from State Police Headquarters. There's no question about this fact because it had the mumps. That was Tuesday. Now, the -- they finished questioning him until about 8:50 that evening. According to the State Police, he was a sorry sight after that. "He had gone through an ordeal," said Sergeant Paige, an ordeal he was subjected through -- to. He was a sorry sight. The following day on Wednesday, Culombe was, again, illegally borrowed from the -- from the Hartford County Jail. He was sent back the previous evening to the jail, eight hours after the Court had directed he'd be sent for with -- forthwith to the jail the previous day. On Wednesday, again, they illegally borrowed him from a Hartford County Jail and the trial judge so found specifically in the course of this trial that he was illegally borrowed so far as the removal from the jail was concerned. And I refer -- respectfully refer Your Honors to page 952 of the record for that reference in which the trial judge found that he was illegally borrowed. Having supported him from the Hartford County Jail, they took him and kept him in his custody until the confession was elicited from him early that -- later that evening or until the morning hours at 12:30 a.m. of Thursday the following day. He was intensively questioned from 1:30 p.m. on Wednesday until the early hours of Thursday morning when he finally signed the confession in which he did -- admitted being present at the time the robbery but denied any killing. Now, the questioning period on Wednesday was about -- was -- was -- and there was an oral confession that Wednesday afternoon to which he had committed -- which he admitted practically the same thing that he did that Wednesday, that following Thursday morning in which four officers were present, O'Brien, Rome, Paige and Murphy. He was questioned previous to that by Rome, Murphy and Paige for about an hour and a half that afternoon and for three hours while driving around on -- on Wednesday afternoon by O'Brien, Rome, Paige and Murphy where he gave his oral confession. He was further questioned by Rome and Officer Remer and Kelly for an -- for half hour to an hour early that evening and for the rest of the evening, he was questioned by Rome, Paige, Matus, O'Brien for a period of four and a half to five hours until about 12:30 or 1 a.m. the following morning on Thursday. Five days after he was taken into custody, he finally confessed, subjected to sustain the prolonged interrogation, illegal procedures by the police, delaying tactics by the police and presently before committee judge, use of the wife and the two -- and the two minor children in order to get a confession. And furthermore, the confession was not in the language of the accused who could neither write nor speak the -- neither read nor write the English language. It is totally in the language of Lieutenant Rome. Lieutenant Rome wouldn't ask him a question, Culombe would answer the question, he would paraphrase the answer, composed it in his own language, in his own syntax, in his own set of structure and we have here the Wednesday night confession, Exhibit Z1 for identification.
John M. Harlan II: (Inaudible)
Alexander A. Goldfarb: Z1 for identification was not used in evidence. It was incorporated by reference in Exhibit Z, the Monday morning confession.
John M. Harlan II: (Inaudible)
Alexander A. Goldfarb: The Wednesday night confession, the first confession to which we've just related all of these circumstances, was not admitted as a full exhibit. It was admitted for purposes of identi -- for identification only but was incorporated by -- by reference verbatim in the Monday confession.
Charles E. Whittaker: When you say it's operated, what do you mean by the use of the word "incorporated," I do not understand what you mean by --
Alexander A. Goldfarb: Exhibit Z -- excuse me.
Charles E. Whittaker: I do not understand what you mean by the use of that word.
Alexander A. Goldfarb: Exhibit Z1 for identification, Mr. Justice Whittaker, contained matters relating to other than the particular crimes involved in this trial. Therefore, the State saw fit to exclude those matters and rewrite that confession and submit it to the accused on Monday 10 -- Monday, March 4th, after his trial counsel had -- after his -- the Court had already appointed his counsel and incorporated only in that Monday confession those matters which pertained exclusively to the New Britain matter, the New Britain crimes as in this instance. They had excluded all other immaterial matters because as -- as the State says, it would be prejudicial to the accused to have admitted that entire confession pertaining to unrelated crimes. At the time the Monday confession was taken, however, and we submit and the -- and the evidence is undisputed, the Court on Thursday had appointed a special public defendant, the Superior Court, Mr. Attorney McDonough to represent him without notifying his court-appointed counsel, without advising him to be present, Lieutenant Rome and another officer -- four office -- another officer went to the Hartford County Jail and approached the accused and told him that -- and told him after the accused had asked them, "Where is my attorney?" He says -- he reassured him to worst to the effect, "It was okayed by -- by your attorney," which was a misrepresentation of fact because his attorney was never even notified of this, was never advised that they intended to take this statement from him on that Monday. In fact, he -- the day previous, he had learned that they have taken the second confession from him on Sunday and he warned the police to remove him from the State Police Barracks and take him to the Hartford County Jail and then specifically instructed Lieutenant Rome to leave him alone and not to bother him. And Lieutenant Rome admitted on the stand that he specifically and explicitly disregarded Attorney McDonough's, the court-appointed counsel's instructions, explicitly disregarded them because he felt he could do better without him, as he said -- and because he felt, as Lieutenant Rome said, he didn't think it was necessary to notify Attorney McDonough of his approaching the accused and asking him for -- for having him sign the statements. So I think clearly, this is the denial of counsel under the Due Process Clause. Certainly, he had a -- a right to counsel after Thursday when he was first accused of a crime, Thursday of that week in -- in a bench warrant which is issued against him. He had a right to counsel after that. The Court recognized it by appointing Attorney McDonough to counsel. I'm not claiming that he had a right to counsel preliminary to Thursday. Before that time, he lacked counsel, he requested it before that time before Thursday but he had a right to counsel because the Court had appointed him on Friday or Saturday of that day. And by the police not notifying Attorney McDonough, and the State concedes they didn't notify him, the State concedes that -- that Attorney McDonough wasn't present at both times when the accused was -- when two or more confessions were elicited the accused, although I think as a matter of right, he was entitled to had his lawyer there at that time. As a matter of constitutional right, nevertheless, he wasn't present and particularly on Monday, they used the deceit comparable to the deceit of the Spano case to secure the confession from the mentally defective tractable accused.
Felix Frankfurter: He had -- he, in fact, had counsel wherein these (Inaudible) events took place but his counsel was not made available to him, although he, himself, had asked from the counsel there. And therefore, I should think correctional (Inaudible) is not that he didn't have counsel.
Alexander A. Goldfarb: He --
Felix Frankfurter: The things were done in the absence of counsel and otherwise, that nullified from your point of view or -- or rendered -- invalid under Due Process Clause, what they extracted from him in these circumstances. But he did have counsel.
Alexander A. Goldfarb: He --
Felix Frankfurter: It wasn't that he was denied counsel.
Alexander A. Goldfarb: He -- he --
Felix Frankfurter: At that time, he did have counsel, didn't he?
Alexander A. Goldfarb: He had counsel on Sunday and Monday. He did not have counsel on -- prior to -- prior to Friday.
Felix Frankfurter: I -- I understand that but -- but some of these confessions were taken after counsel had been appointed, is that right?
Alexander A. Goldfarb: That's correct, Mr. Justice.
Felix Frankfurter: Well, as to those confessions, whatever may be said about it as earlier in this case, he wasn't denied, he had counsel.
Alexander A. Goldfarb: Well, it was a sham --
Felix Frankfurter: (Voice Overlap) --
Alexander A. Goldfarb: -- it was a sham appoint -- until the --
Felix Frankfurter: (Voice Overlap) --
Alexander A. Goldfarb: -- if the appointment of -- counsel -- if the police did not notify his counsel of their intent to secure the confessions from him.
Felix Frankfurter: The appointment wasn't sham but what was done in the absence of counsel in these circumstances --
Alexander A. Goldfarb: Yes.
Felix Frankfurter: -- was an illicit exercise of power.
Alexander A. Goldfarb: Yes.
Felix Frankfurter: Alright.
Alexander A. Goldfarb: That's correct, Mr. Justice. They claim -- the State Police -- the police claimed that he -- they would've afforded him counsel earlier -- earlier to Thursday if he had specified the name of a counsel before that time but he couldn't -- he says he could've picked up the telephone book and called his counsel if he had one, according to Lieutenant Rome. But of course, he can't read the telephone book as I understand it.
Felix Frankfurter: Would you mind explaining when you say, he could've -- he could've picked a counsel. Would you state in a sentence or two but don't take more time if it's -- but don't take your time if it takes more time, is the defendant system, the system by which official, what in other States as in New York when you close by way of assigning counsel -- court-assigned counsel, is that the official mechanism by which the appointment of counsel to indigent defendants is exercised or deployed in Connecticut?
Alexander A. Goldfarb: In Connecticut?
Felix Frankfurter: Now, are these -- as -- as a defendant the right to pick anybody he pleases in Hartford?
Alexander A. Goldfarb: If he is not indigent, he has the right.
Felix Frankfurter: Well, I -- I'm talking -- if he's indigent.
Alexander A. Goldfarb: This is a very unusual case. It was a very unusual circumstance by which special public defenders were appointed in this case because of --
Felix Frankfurter: Well, in other words --
Alexander A. Goldfarb: -- the gravamen of the crimes. I don't think there's any other circumstance. In fact, there was a case which went to the Supreme Court of Errors of Connecticut involving this very point, Your Honor, and the Supreme Court of Connecticut rejected this -- this other party who was also tried at the same time that this trial took place, insisted that he'd be given other special counsel like Taborsky and Culombe but the Court refused it.
Felix Frankfurter: The Court said that the constitutional duty such as it is, at least in capital cases to appoint counsel, is satisfied by outstanding official known as the public defender, is that right?
Alexander A. Goldfarb: Yes. Of course, if the public defender were provided the accused here on Wednesday or the days previous as they are -- as they are -- as they could have done, certainly, in New Britain and certainly, on Thursday before he was remanded by the State Police, the public defender could've represented him there at that time but he wasn't called and because according to custom, the public defender only defends when at the time of trial and not prior to trial in the State of Connecticut.
Felix Frankfurter: Is this the state official as a public defender?
Alexander A. Goldfarb: Yes, he is. He is appointed by the judiciary of the State, as I understand it.
Felix Frankfurter: How much of a -- what -- what is the stand of Connecticut, do you know? How big is that?
Alexander A. Goldfarb: I think he -- he is -- he's--
Felix Frankfurter: Alone?
Alexander A. Goldfarb: Stand alone. And I think he's a practicing lawyer at the same time.
Earl Warren: I wonder if you get back now to the chronological recital --
Alexander A. Goldfarb: Yes.
Earl Warren: -- of these things so we can have it all in order.
Alexander A. Goldfarb: Well, it's difficult to --
Earl Warren: Well, I know it is, I don't blame you. We've -- we break in ourselves but you started then to do it, Justice Frankfurter is asking you. You've done very well to appoint but then you've got sidetracked from it. Would you mind taking it up form that point please?
Alexander A. Goldfarb: Well, as I --
Felix Frankfurter: That's the first, isn't it?
Alexander A. Goldfarb: As understand it, it was only five days, five days after questioning on Wednesday. Where Thursday, he was finally presented before the Superior Court and the Superior Court -- the -- the cat was out of the bag, he had already confessed once orally the day previous and that early morning, he'd already confessed so the State concludes that he was cooperative as a result of that. Well, this was a -- like a whipped dog, a man who had already confessed, he -- he'd given -- he -- he was a sorry sight according to state police.
Felix Frankfurter: Was their -- was their further questioning after Thursday?
Alexander A. Goldfarb: Oh, yes.
Felix Frankfurter: Well, I take it that's what the Chief Justice (Voice Overlap) --
Earl Warren: Yes.
Alexander A. Goldfarb: On --
Earl Warren: Carry through -- carry on.
Alexander A. Goldfarb: -- on Thursday, he was caused to confront Taborsky, a man whom he feared, a man who dominated him in the course of all of his troubles, a man who dominated him in the -- in the perpetration of these crimes, supple and tractable as this petitioner was. Taborsky confronted him at this place immediately -- in immediate fear because this is a man who feared not only his own life in relationship to Taborsky but for the -- for his wife and family because as he testified, Taborsky warned him that if he ever confessed, he would take it out on him and if not him, then certainly his wife and family. So this put him in a state of apprehension by forcing him to confront Taborsky on Thursday of that day. On Friday, as I stated, his counsel was finally appointed by the --
Earl Warren: Is there any extensive interrogation on Thursday?
Alexander A. Goldfarb: They continued to question him on Thursday as -- as my brief points out, Your Honor. I'm not as extensive as it was previous, not as sustained and prolonged. The real sustained and prolonged questioning took place prior to the Wednesday night or early Thursday morning confession. Thereafter, he was completely cooperative of the State as the State rightly said that he was cooperative but they confound his cooperativeness with his simplemindedness. This is a man with an IQ of 60 so he's -- he's going to -- he's going to tell anything he wants. He's already given away the answer to their questions. Now, he's -- on Saturday, he was subjected to a two-hour examination by the States prior --
Earl Warren: Anything on Friday --
Alexander A. Goldfarb: Friday, the Court had appointed his counsel on Friday, Your Honors. And on Friday, there -- we have no evidence of any questioning on Friday. On Saturday, however, a state-appointed doctor, a psychiatrist performed a two-hour examination of Culombe in which they testified they were asking him constant questions for two hours. And he remained in the State Police Headquarters where -- throughout his eight-day of confinement on Saturday. He was restless and nervous according to the police. And finally at 10 o'clock that night, he already admitted to the state policemen, to state guard, his guard, Officer Biersch (ph) that he killed the service station attendants -- attendant which is at variance with his earlier confession in which he said that Taborsky had killed both attendants, both parties to this case.
William J. Brennan, Jr.: This is -- this is the first occasion on which he admitted the murder.
Alexander A. Goldfarb: No, he admitted the murder in the written confession on Wednesday.
William J. Brennan, Jr.: Of -- of which the attendants --
Alexander A. Goldfarb: He did -- this is the first statement in which he admitted having committed --
William J. Brennan, Jr.: That's right.
Alexander A. Goldfarb: -- murder, that is the killing itself. He was previously -- he admitted that he was an accessory. Now, this is the first time, eight days after the -- his original taking into custody in which he admitted that he killed one of the two parties. Now, this is at variance with the two -- the other confession, not of the -- the confession taken Wednesday night but at variance with the confession taken on Monday. Now, the following morning, on Sunday morning, the police of county having heard about this, had the confession typed up in the same manner as the previous confession composed, syntax-wise, grammar-wise in the language of -- in the method of -- of Lieutenant Rome and he was further questioned that afternoon. He was -- that afternoon, they typed up the other statement excluding the immaterial or irrelevant matters of Wednesday previous. In the following morning, Lieutenant Rome and another officer approached Culombe and told him that it was okayed by his attorney. He'd asked them, "What about my attorney," he said and according to Culombe's own statement, he said it was okayed by him. And in reliance on that statement or representation of Culombe, Lieutenant Rome has said, "McDonough knows about," I quote, "McDonough knows about this and I guess it is alright." In reality --
Speaker: (Voice Overlap) --
Alexander A. Goldfarb: -- Culombe's attorney knew nothing about nor approved such an action and for that -- for that matter, it was indirect disregard of attorney McDonough's specific instructions to leave his client alone and not to bother him. And Lieutenant Rome said, "Well, I -- I interpreted not to bothering him as not to interrogating him." And he admitted, Lieutenant Rome admitted that he specifically -- specifically disregarded his instructions. And this is the sorted series of events that occurred in this case. Singly, any one of these factors would be justification for reversal but jointly and communicatively, these factors set forth a situation which is so corrupt with constitutional error, though I think that this Court has no alternative but to reverse this particular judgment and finding of guilt. I would like to reserve additional time --
Earl Warren: You may.
Alexander A. Goldfarb: -- for any reply brief --
Earl Warren: You may.
Alexander A. Goldfarb: -- in my rebuttal to the State.
Earl Warren: You may, Mr. Goldfarb.
Alexander A. Goldfarb: Thank you.
Earl Warren: Mr. LaBelle.
John D. Labelle: Mr. Chief Justice, Mr. Justices, may it please the Court. The indicter once said to the respondent when he got up to make his argument, it looks to me concerned like your only wet field. Now, you tell me why you're not. I hope respectfully, I may be able to suggest to the Court why the respondent is not out in wet field. In 1957, in January and February, there were a lot atrocious killings in the Hartford area happening on weekends. Culombe and Taborsky became prime suspects in that continued investigation. And because of the atmosphere that was going on, on Saturday afternoon, February 23rd, 1957, because the state police feared to let another weekend go, they picked up Taborsky and Culombe as a -- as suspects. Now, when they picked them up, they sent two different state police groups of officers out to get each one of them. One group went to Taborsky's home where his mother lived. Taborsky was living in Brooklyn by the way. They went to his mother's home and they met Taborsky coming out of his mother's house and getting into a car and who was in the car but Culombe. Now, this group of state police officers didn't know that the other group was out to get Culombe. So they said to Taborsky and Culombe, "Will you come down to the State Police Barracks, we want to talk with you," talking to Taborsky now. Taborsky said, "Okay." He got into the car with Culombe and Culombe followed this cruiser and they drove to the State Police Barracks about 2:30 Saturday afternoon. When they got to the State Police Barracks, Taborsky got out and went in and Culombe drove off, the police officers not knowing that Culombe was wanted. Culombe drove straight to his home which was a matter of a few minutes from the State Police Barracks, and when he got there, this other group of state police officers were at Culombe's home. Now, when Culombe got out of his car, he went into the house and he went immediately to the bathroom and the officers could hear metallic noises in the bathroom. Soon, he came out and they asked him to come to police headquarters which he did. Culombe's wife was present at that time and she knew that he went to the police station and as a matter of fact, one of the officers talked to her while Culombe was in the car. They went to the police station and when they got there, Taborsky already being there, the police asked him if they would go around the county to some adjoining towns so victims of some of these holdups that were still alive might view them.
Potter Stewart: Mr. LaBelle, this is a minor point, I'm just curious. What -- what are you trying to suggest if anything by the fact that they heard metallic noises?
John D. Labelle: I'll come to that in a minute --
Potter Stewart: Alright.
John D. Labelle: -- when the evidence comes out --
Potter Stewart: Alright.
John D. Labelle: -- if I might. Later on when they went back there at the night of the confession, the guns were found in the bathroom. What I'm saying is with this incident, the State Police were right in their thinking that they couldn't let it go another weekend because Taborsky and Culombe had the guns in the car when they were picked up getting ready for another one. That will come out when the confession is given. They took them around to these various towns. Now, it is true that Taborsky had a -- a bag with him and in it was some whiskey and nobody knows how much was in the bag and nobody paid any attention to it and as a matter of fact, on the -- at the trial, the first time the officer in charge of that right around at the towns knew about the whiskeys when it came out in the trial. But it has nothing to do with the case. It has nothing to do with the confessions. And they would've stopped them. One of the officers said he did see him but it's just an element that's in here but has nothing to do with it. He did have this bag and it had some whiskey in it. How much? Nobody knows. And when the police officers realized what they were doing with the bag, he had finished -- they had finished what was in it. They never got drunk and nobody claims that. When they came back to the barracks that night after making this tour, in the State Police Barracks, one of the officers, Sergeant Paige and Sergeant Paige is the officer now who was talking mostly to Culombe. He was talking to Culombe about some guns, so Culombe said to him, "I'm a gun collector. I have some guns at home." So they went back to Culombe's house about 8 o'clock that Saturday night and found, I think, eight guns, some boxes of ammunition and three bandanas which they took back to the barracks and brought Culombe back. Now, Mrs. Culombe again was home at that time.When they got back to the barracks about 10 o'clock that night, Lieutenant Rome placed Culombe and Taborsky both under arrest under our statute that you can arrest without a warrant on suspicion of a felony. It is true that the logbook of the state police department made no record, written record of it but that logbook is simply a logbook that the department keeps, it's not the booking book. Where there is a -- an organized police department in the county or State of Connecticut, the State Police, when they make the formal arrest, booked him in the town where the organized police department is and where the crime occurred. So, Saturday night, I don't say that he wasn't questioned, he was. After they got the guns from the home and came back, he was asked some questions. The record isn't clear how long but the questioning was fair questioning. There is no evidence whatsoever of any abuse. He went to bed at about midnight on Saturday night. He was fed, he got slept, there was no problem of -- of denying him of anything and the next day on Sunday, I think it started some time in the afternoon, they asked him some more questions.
Potter Stewart: Is it --
Earl Warren: Before you get to that, may I ask you, what was he arrested for?
John D. Labelle: He was charged -- he was arrested under our statute of suspicion of having convicted -- committed a felony. Now, at that --
Earl Warren: Do you have to name the felony?
John D. Labelle: Yes, the -- he --
Earl Warren: What --
John D. Labelle: The state police officer, Lieutenant Rome told him he was suspected of having committed a murder or murders. Now --
Earl Warren: Do you make no record of that at all when that --
John D. Labelle: He usually does. He said that the state police department in their logbook, usually makes such a record but in this case, he didn't. I don't question that he didn't.
William J. Brennan, Jr.: Well, it wasn't necessarily these particular murders then.
John D. Labelle: Oh, yes.
William J. Brennan, Jr.: But with --
John D. Labelle: The --
William J. Brennan, Jr.: Well, I thought you said that the -- said that the police officer indicated that he was being held under suspicion --
John D. Labelle: Of having --
William J. Brennan, Jr.: --(Voice Overlap) -- a murder or murders.
John D. Labelle: Yes, there are, sir.
William J. Brennan, Jr.: These murders or other murders?
John D. Labelle: These and others.
William J. Brennan, Jr.: How many -- how -- how many murders (Voice Overlap) --
John D. Labelle: Six murders had been committed and about four or five other armed robberies where there were gun dealings.
William J. Brennan, Jr.: And they said that these two were suspected --
John D. Labelle: These two were --
William J. Brennan, Jr.: (Voice Overlap) --
John D. Labelle: These two were -- these two were prime suspects of all of them, of all of them.
Hugo L. Black: You referred to bandana. Was it --
John D. Labelle: They -- three red bandanas of the type that had been used in some of these offenses. Now, a good many of the offenses were committed when there were no victims left, they were dead. There was one or two and that was some of the towns that they took them to where there was victims alive who had been beaten but could not identify the people because they were mashed.
Hugo L. Black: Were the red bandana handkerchiefs?
John D. Labelle: The -- I'm not sure that that is clear because it happened in another county but they took them out there to see if they could identify them but they couldn't because they had been mashed. These bandanas were the type of bandanas that might be used in connection with crime. Now, on Sunday --
Potter Stewart: But is it -- is it clear in the evidence that from the very beginning of the interrogation, the police were aware that this man was feeble-minded and that he's been in a --
John D. Labelle: Yes.
Potter Stewart: -- feeble-minded institution?
John D. Labelle: On the very first day and I -- I admit that. The police knew Taborsky because he had been in states prison on another murder and hadn't been cleared by the Superior -- by the Supreme Court of Connecticut and let loose. They were -- knew Culombe because he had been in prison. He had a prison record. He was a known criminal. And when they started to talk to him on Saturday, he -- they became aware that he could not read or write beyond signing his name and that he had been in a mental hospital. They were aware of that, I don't deny that. And it is a fact that he is a moron. That is not questioned here.
Hugo L. Black: Did he have a vocation?
John D. Labelle: He worked? Yes, that's in the record, Your Honor. He had a job. He was making $80 or $90 a week. He was married, supported a family, had children.
Hugo L. Black: Doing what?
John D. Labelle: He worked in a warehouse, Hartford Despatch & Warehouse Company which was a moving company.
Felix Frankfurter: You mean, had steady employment?
John D. Labelle: Steady employment making -- take home pay of about $85 a week, that's in the record.
Felix Frankfurter: And these criminal activities according to the State's view were done at night, off -- off job, weekends.
John D. Labelle: Weekend at night. That's when most --
Felix Frankfurter: Weekend job.
John D. Labelle: -- of these murders took place. Weekend or every other weekend, there was some kind of a crime. And the -- the atmosphere in the county was such that I think probably they were picked up too soon before they were ready to pick them up by further investigation but they had to do it.
Felix Frankfurter: Let me ask you these, Mr. LaBelle. Has your State -- has Connecticut, the legislative scheme whereby if a man is suspected of being or maybe not responsible, criminally responsible, some procedure is set going to find out?
John D. Labelle: Yes. We have -- we have a statute that provides that either the sheriff or his counsel or the State's Attorney can make a motion to the Court for the appointment of a commission who will examine into his mentality to see whether or not he's capable of standing trial.
Felix Frankfurter: Is that done here?
John D. Labelle: It wasn't done here because the question never was raised. He isn't that bad. He is a moron, he is moderately defective but he is not psychotic in any stretch of the imagination. The --
Felix Frankfurter: Alright.
John D. Labelle: -- state-appointed psychiatrist who examined him for the State, two of them, they appointed a psychiatrist to examine --
Felix Frankfurter: And how -- how does that come to be independent of this state inquire -- state statute allowing --
John D. Labelle: Yes.
Felix Frankfurter: -- inquiries --
John D. Labelle: Yes.
Felix Frankfurter: -- while a man is put to stand trial.
John D. Labelle: Yes, as soon -- as soon as his counsel was appointed, the state-appointed public defenders, special public defenders. They also appointed doctors to examine him for them. Now, let me -- could I write in here and tell you about this public defender system? We have a permanent public defender statute. It's in the appendix to our brief. He is a paid officer of the Court appointed by the judges for two-year term. He is an experienced -- experienced criminal lawyer. He does a great deal of business in Hartford County. He's tried lots of murder cases. In this case where these two men came into court, right away, it was obvious, he couldn't represent both of them. There had to be special counsel appointed. Both of these men who were hardened criminals and experienced said they want a special counsel. And the Superior Court gave them their choice of counsel and they picked two of the best lawyers, criminal lawyers in Hartford County to defend them. And the State gave them those two special public defenders and paid them, and paid them and paid every expense in connection with their trial including their doctors, their psychiatrist, anything they wanted. Now, you asked the question, Justice Frankfurter, "How does this public defender operate?" He has a right to spend whatever money is necessary for investigation purposes. He only has to ask the Superior Court judge for permission to spend it and I don't know that it's ever been denied. He can hire private investigators or anything else. I'm back to Sunday again. Sunday, he -- they were questioned. I don't deny that. But that questioning every single time was fair questioning. There isn't a bit of evidence in this record that he was ever deprived of food, sleep, that he was abused in anyway. Extended but fair questioning during this investigation of these crimes and there were a lot of them.
Felix Frankfurter: Relays the questioners --
John D. Labelle: No, there wasn't. There -- and the record shows that too, Your Honor, and I've mentioned in my brief with the citation of the page. There were not relays of officers. There were no extended questioning in time. And as a matter of fact, when Culombe took the stand on the preliminary examination for the admission of his confession, one of the things he said was that Sergeant Paige treated him well.
Felix Frankfurter: But did you --
John D. Labelle: "As a matter of fact, he treated me like a father."
Felix Frankfurter: It is a fact, is it not, that the question, whatever its colloquy or how sure they participated in by one or more -- that the questioning did extend from -- from Saturday through Thursday?
John D. Labelle: Through Wednesday, Your Honor.
Felix Frankfurter: Through Wednesday.
John D. Labelle: Wednesday. That's correct.
Felix Frankfurter: (Voice Overlap) --
John D. Labelle: I don't question that.
Felix Frankfurter: Well, there were -- there was subsequent question too, wasn't it?
John D. Labelle: I'll come to that --
Felix Frankfurter: But the purpose --
John D. Labelle: -- but not to do with these crimes.
Felix Frankfurter: What's the purposes of the -- of questioning resulting or related to the charge under which this prosecution took place.
John D. Labelle: Yes.
Felix Frankfurter: It extended form Thursday day by day through Wednesday. That is correct, is it not?
John D. Labelle: You -- you understand, Your Honor, that they were talking to him about all of these murders.
Felix Frankfurter: As I understood you, you said -- you -- you indicated there was a cut off day on inquiry about these crimes. Thereafter, they asked about other crimes, is that right?
John D. Labelle: Yes. What happened was, they were questioned about the group of Hartford County crimes that had occurred. On Sunday, I agree, on Monday, on Tuesday until the confession on Wednesday. Now, it so happened when I'll come to the cutoff date. I'll answer you, while we are here. On Thursday, after the confession, the only questioning that occurred was that some New York detectives came up there and talked to Culombe and Taborsky both about some New York murders to see if they were involved in them. It was cursory and apparently, they were not and they went back to New York. Now, that's what the record is about Thursday after Wednesday and there was no any -- any questioning in connection with these particular crimes or the confessions after Wednesday.
John M. Harlan II: Were you the prosecutor in -- in --
John D. Labelle: I was one of them, yes. I was an Assistant State's Attorney at the time of the trial. The State's Attorney and I tried the case. Now, let me talk to you a little about Monday. Now, the questioning by ours isn't brought out clearly and there was -- all you see in the record, how many pages of transcript there is and how long this trial was, so that if there had been anything wrong with this questioning of a substantial nature other than being extended, it certainly would've been brought out by counsel. Now, on Monday --
Felix Frankfurter: You mean -- you mean by that if I -- in order to get it clearly.You mean there wasn't denial of food or water?
John D. Labelle: No, absolutely not.
Felix Frankfurter: Or there was the denial of -- of allowing him to indulge in the or (Inaudible) amenities of life? That's what you mean.
John D. Labelle: Of course, there wasn't any of that and there was no violence. He doesn't even press that claim. There wasn't anybody that -- that gave him the -- the rubber hose or anything like that. That isn't in the case at all. This is fair questioning over an extended period of time. Now, on Monday, they took him to New Britain and they booked him in the Police Court. Now, right here under the statute, they should've booked him for suspicion of murder or charged with -- with one of the crimes. But they didn't, they charged him with the technical charge of breach of the peace. Set upon the $25,000, fingerprinted him and so forth in the New Britain Police Station no. And then -- this is Monday, and then took them back to the State Police Barracks in Hartford.
William J. Brennan, Jr.: Well, that wasn't -- Monday, is that where this cage was that --
John D. Labelle: No, that was in -- this is in the police station itself but --
William J. Brennan, Jr.: Oh, I see.
John D. Labelle: -- not the Court. Now, on Monday, they were questioned again. There's no question about that. But again, there isn't anything in the evidence any place that this questioning was unfair. And it was still an investigation situation. On Tuesday, they took him into Court. Now, this is where your cage comes in. Now, the cage is a -- is a prisoner's pen in the back of the Court where all prisoners are kept in the New Britain Police Court. And in this cage were Taborsky and Culombe and I believe one or two other prisoners who were there for the court session that morning. Now, in this court session, there was no arraignment.
William J. Brennan, Jr.: Is this pen right in the courtroom?
John D. Labelle: Yes. And it's true that there were crowds outside on the street and this was a manner of substantial publicity. No question about that but there's no threat here of any mob violence, no threat of any danger. These were just people who were curious because of the -- of the situation as it existed in Hartford County at the time. Nothing was done through them about it. They simply were there looking as curiosity people and -- and just looking to see what was going on.Now, in Court, the prosecutor asked the Court to continue the case one week. Culombe was not asked to plea, to do anything. He didn't have to say anything and he didn't. Now, if there is any question about photographs in that Court, it occurred before Court opened. During the court session, there wasn't any -- anything like bedroom or anything like that. It was an orderly court procedure that the local prosecutor now asked the judge to continue the matter for one week. After the continuance was -- this was now some time in the middle of the morning, they took him back to Hartford, to the State Police Barracks.
Earl Warren: How about the courtroom crowd, were there people jamming the courtroom and between this --
John D. Labelle: In the sense that they were in the public part of the courtroom.
Earl Warren: And between him and the -- and the Court so he could leave and see the Court?
John D. Labelle: That, I'm not positive of, Your Honor. The record isn't quite clear but this prisoner was not treated in any different way than another prisoner except that he was not taken out of the prisoner's pen and brought up to the bench.
Earl Warren: Well, what's the use of taking him to the pen if -- if he -- if you don't take him up to the judge?
John D. Labelle: In this case, he wasn't presented for arraignment. Nothing was done except the prosecutor asked to continue it.
Felix Frankfurter: How -- what -- what was -- how was he moved into that Court? Who -- who is it --
John D. Labelle: The State --
Felix Frankfurter: -- or why was it that he was brought there?
John D. Labelle: The State Police brought him there for a presentment. That is true.
Felix Frankfurter: Did they -- did they decide to come -- and come to make a presentment?
John D. Labelle: They brought him there because under -- under the holding statute, it says that he shall be brought before a magistrate with the -- with reasonable diligence.
Felix Frankfurter: You said the local prosecutors asked for a reach of continuance.
John D. Labelle: Yes.
Felix Frankfurter: You're the State's Attorney of your -- now, what relations in the local prosecutor --
John D. Labelle: In the --
Felix Frankfurter: What he have to do with this case?
John D. Labelle: We had a municipal court system and where he was booked in New Britain, the local prosecutor handles it for purposes of bind over and in a murder --
Felix Frankfurter: You must --
John D. Labelle: -- case or any other felony --
Felix Frankfurter: (Voice Overlap) -- to instruct him to ask for these just in -- just in --
John D. Labelle: I did not.
Felix Frankfurter: Well, I mean --
John D. Labelle: And our office did not. Now, it's claimed and I think it's probably true that the Sate Police said to the local prosecutor --
Felix Frankfurter: (Voice Overlap) --
John D. Labelle: -- "We'd like some more time." I don't think that that's unfair and -- and I think that's what happened.
Earl Warren: What is -- what is the procedure when -- when a presentment of this kind is -- had in Court?
John D. Labelle: When he comes into the local court?
Earl Warren: Yes.
John D. Labelle: If -- if it's a felony where the sentence may exceed five years, he must be sent to the Superior Court on a blind rule.
Earl Warren: Well, is there any -- is there any -- is there (Voice Overlap) --
John D. Labelle: There can be a hearing --
Earl Warren: -- before him --
John D. Labelle: -- there can be a --
Earl Warren: -- of the advice? Is the judge required to inform him of his rights or anything of that kind asking for you -- as a counsel and each of the counsel?
John D. Labelle: Yes. At -- at the formal bind over hearing, that is done.
Earl Warren: No, I'm talking about -- I'm talking when you bring him in on what you call a presentment, I'm not familiar with your procedure and --
John D. Labelle: When --
Earl Warren: -- I want to know what normally is done in such a (Inaudible).
John D. Labelle: When he's brought in to enter some plea to the charge in the lower court for purposes of bind over, he is advised of his rights if he doesn't have counsel. If he has counsel, counsel may waive hearing and consent to a bind over or may have a hearing in probable cause. That -- that is -- the State has to put on enough evidence to satisfy the Court that there's probable cause to bind him over. Now, the Court, that lower court has no jurisdiction. It's simply a bind over proceeding where the felony is one where the penalty exceeds by years.
Felix Frankfurter: Well, as I understand it, Culombe was in the hands of the police --
John D. Labelle: Yes.
Felix Frankfurter: -- all this time.
John D. Labelle: Yes.
Felix Frankfurter: The police brought him into this bind over court and the local prosecutor prevented the bind over jurisdiction from being exercised because they asked that the thing be put over for a week and they continue to have charges.
John D. Labelle: Yes.
Felix Frankfurter: That's the situation.
John D. Labelle: Yes. Now, on the bind over -- under -- under the continuance, the local court issues a mittimus to put him in jail pending the continuance time. The State Police took him from the Court sometime around noon or whenever it was and took him back to the barracks and they talked to him again that afternoon.
Potter Stewart: Under normal procedure, is it possible to object to a continuance?
John D. Labelle: Yes.
Potter Stewart: And --
John D. Labelle: I suppose so.
Potter Stewart: -- and generally, is the defendant given an opportunity to object to a continuance?
John D. Labelle: Ordinarily where he has counsel, he has a right to object and take the bind over if he -- or if he wants his hearing, I suppose he can.
Potter Stewart: There was no opportunity afforded to this (Voice Overlap) --
John D. Labelle: There's no opportunity afforded at this point. He didn't have counsel and if he didn't ask and I suppose he didn't know. I don't claim that but the point was that none of his rights were impaired so far as getting a fair trial was concerned by anything that happened in that Court.
Felix Frankfurter: But if the preliminary -- let me ask you this question. Once he's bound over, his status as it were changes, doesn't it?
John D. Labelle: Yes, he become --
Felix Frankfurter: Thereafter -- thereafter, the mere investigatorial function of the police ceases and the prosecutorial begin.
John D. Labelle: Right.
Felix Frankfurter: Therefore, if he had -- therefore, that -- that shift of status which may carry where there's an important consequence to him. He's out of the hands of the police and the responsibility there -- thereafter is on your office, is that right?
John D. Labelle: That's right.
Felix Frankfurter: And that was -- that was not brought to past. He was -- he was not given that -- that -- he was not given that change of status without any control on his part or any opportunity to object to it or saying, "I -- why don't you now bind me over?"
John D. Labelle: That -- that's so, I don't --
Felix Frankfurter: That is so, isn't it?
John D. Labelle: I don't deny that.
Felix Frankfurter: Alright.
John D. Labelle: I don't deny that.
Earl Warren: Why wasn't the mittimus followed?
John D. Labelle: It was later that night. They took him to Hartford and talked to him again, I don't deny that. And about 8 o'clock that night, took him to the jail. Now, I'd like to go into that, if I may.
Earl Warren: What time was this in Court happened?
John D. Labelle: I beg your pardon?
Earl Warren: What time was it --
John D. Labelle: The best I can --
Earl Warren: -- when he was in Court?
John D. Labelle: -- the best I can get from the record was sometime around noon. It -- they were brought over there in the morning and I think these proceedings there must have been at somewhere about noon and they took him back to the barracks. Now --
Hugo L. Black: What do you mean by bind over? Bind over to the grand jury, wait the action and then you --
John D. Labelle: Yes, it's -- he becomes the prisoner of the State Attorney's Office and then under -- only in capital cases do we have to indict. We -- in all cases except capital cases, we can start prosecution by information.
Hugo L. Black: You can bind over to await action by the District Attorney?
John D. Labelle: Yes, and in this case, it would've had to be grand jury. It was grand jury. But in -- in capital cases, that's the only ones where we have to have a grand jury. Now, going back again to the same thing, Tuesday afternoon, when they got back to Hartford, Lieutenant Rome, the officer in charge in the investigation, went to see Mrs. Culombe. And this is in the record and it's clear and she testified at the preliminary hearing.
Potter Stewart: Now, what -- where are we now? The time --
John D. Labelle: Tuesday afternoon --
Potter Stewart: Tuesday afternoon.
John D. Labelle: -- or Tuesday evening, sometime.
Potter Stewart: After this --
John D. Labelle: After coming back from New Britain.
Potter Stewart: Right.
John D. Labelle: He went to see Mrs. Culombe and he talked to her. Now, I say right here that talking to the wife of an accused is legitimate avenue of investigation. I don't think there's any question about it. The wife of the accused is one of the first people that he would talk to. He went to talk to her and she was upset. She was mad to think that her husband was involved in this thing. And in the facts of this case, and this comes out. During these murders, a little girl was left in the car in the middle of December when it was a freezing sleeting night. A little 18-month old girl, the daughter of one of these victims was left in the car at the station. All the power was off except the station, they had private power. There was a sleeting freezing night, the night of the murder. And his wife -- Culombe's wife was just mad to think that that little girl had been left there. She could've frozen to death except the bus driver came along and saw her and then went in to the station and found the bodies. So Culombe's wife was mad. So, Sergeant -- Lieutenant Rome said to her, "Do you want to talk to your husband?" She said yes. He said, "Will you come down to the station?" So he went back to the State Police Barracks and that night, sent a policewoman, a nurse -- a state policewoman to pick up Mrs. Culombe and they brought her down to the station and she confronted her husband and said something to him about, "How did you get in to this thing?" And in the course of this, he became upset and she was upset. Now, the children went with her too but the children did not see their father before these confessions. Now, that record is clear. I don't want to be said that we used the children to get the confession out of the father because the record is not clear on that and in fact it says, "They didn't see their father until after he had confessed."
Felix Frankfurter: How old are the children, Mr. LaBelle?
John D. Labelle: Thirteen and eleven, I believe, two little girls. But the mother -- no thirteen and five, excuse me. The mother said, "I didn't want to leave them home." She testified here. Her testimony is in there. Now, let me -- let me say to the Court, here is a very key part of this case. After Culombe was upset and his wife had left him, he went downstairs to the cell and this is about 7:30 at night now, Tuesday night. Sergeant Paige who was conducting the part of this investigation as to Culombe went down to see him and saw that he was upset and stayed only a few minutes and didn't hardly talked to him and left him. Now, you know of the old adage that when they're on the rope, slug on. And right here, if the State Police were using improper tactics, this was the time to put the pressure on. What did he do? He left him. And a few minutes later, they took him to the County Jail and Culombe was not talked to again for 18 hours. Now, I say that's an indication that the State Police here were sure carrying out extended interrogation in a matter that was of some importance to our State but they did not do anything improper with regard to their rights of that man because right then and there where he was upset after talking to his wife, if they put the pressure on, they could -- and after a coerced confession, they could've got it. Now, they picked him up from the jail and they say, borrowed him the next day. That is true. He was in the jail under that adjourned mittimus from the New Britain Court and he was taken there late. I don't deny that, that's true. The next morning, they took him back to the State Police Barracks again to talk to him and they started talking to him about 1:30 on Wednesday afternoon. Now, mind you, they hadn't talked to him or questioned him for 18 hours from about 7:30 the night before until 1:30 Wednesday afternoon. Now, on 1:30 Wednesday afternoon, a man by the name of Detective Murphy came in with Sergeant Paige. The first time he came into the case and in talking to him after about an hour and they were going over this list of crimes and saying, "To you, Arthur, were you there?" And they said to him, "If you -- if you were there, you're -- than rather to lie about it, say you don't want to talk about it but they would take this list of crimes of all these crimes I spoke about and go down the list." A few minutes after they started talking to him, I think about an hour, he said, "I'll tell you where the guns are." And right then is when it started. They got Lieutenant Rome, there was Detective Murphy, Sergeant Paige and they took another officer, Detective O'Brien who was a stenographer. Four state police officers and they got in the car and Culombe said to them, "I'll go and show you where these guns are but I want to go in an unmarked cruiser." Now, mind you, this man was a canny, experienced criminal. He knew what he was doing all the time. Regardless of his mental capacity, I know he was a defective but he knew what he was doing and he said to the State Police, "I'll take you but I want to go in an unmarked cruiser." And the four of them went. Detective O'Brien, the stenographer, was driving. And just when they started, and Culombe only lives a few minutes from the State Police Headquarters, they had only gone a few blocks down the street in front of our courthouse in Hartford when Culombe in the backseat with Lieutenant O'brien started to confess. Excuse me, with Lieutenant Rome, started to confess. They stopped the car, Detective Murphy got into the driver side and took the wheel and started on O'Brien, the stenographer, got on to the passenger side and started taking down in shorthand what Culombe said. Now, what he took down in shorthand is essentially the confession that was committed to writing that night. Now, let me tell you what happened after that.
Felix Frankfurter: Before you move on to that, if this -- if this is the appropriate place that you want to state something and comment on Mr. Goldfarb's remark that the intellectual and mental quality, the illiteracy of this man was such that that which they took down couldn't have come out of his mouth in the form in which speaks his mouth.
John D. Labelle: Well, they did take it out of his mouth. There was a transcript, the shorthand transcript made of what he said in the car.
Felix Frankfurter: Why do you say there's a mark of -- if some are of the contradicts, what one --
John D. Labelle: No.
Felix Frankfurter: -- knows about this firsthand --
John D. Labelle: No.
Felix Frankfurter: -- that his mental capacity couldn't have used grammatical, syntactical locutions. Anything in that?
John D. Labelle: If -- if you look at the record and my brief sets -- spells this out at the preliminary hearing on the confession, Detective O'Brien testified as to what he said in the car. What he said in the car was essentially what is in the written confession which was committed that night. Counsel -- experienced trial counsel had the right to go over Sergeant O'Brien's notes as much as he wanted to on cross-examination. And if you look at the record, and it's mentioned in the pages in my brief, he didn't even go into the cross-examination on the details of that confession.
Hugo L. Black: Is the stenographic transcript in the record?
John D. Labelle: Only what happened on the stand --
Hugo L. Black: In the car.
John D. Labelle: Yes, what happened on the stand, Detective O'Brien testified what he said.
Hugo L. Black: Well, what I meant was, is the stenographic transcript --
John D. Labelle: No.
Hugo L. Black: -- of what was said in the car.
John D. Labelle: No, no.
Hugo L. Black: We don't have that.
John D. Labelle: We don't have that. But he testified orally what was said. Defense counsel said, "Do you have your notes?" The Sergeant O'Brien said yes. And he had passed them to him, the stenographic notes. They -- they said to him something like, "Do you remember what was said?" He said, "Yes, I don't need to refer to my notes, I know what he said." And counsel then didn't go any further with the point. Defense counsel now didn't go any further with the point if there was any question as to what was said in the car orally and what Detective O'Brien testified to on the stand, it could have been brought out.
Felix Frankfurter: In other words, in answer to Justice Black's question, the stenographic notes are not in the record but that they were in existence at the time of the trial is in the record.
John D. Labelle: Yes. It's right there and counsel could have done anything he wanted with reference to him on cross-examination. Now, when they got to Culombe's house, and I come back to the very beginning, Your Honor, when they got into the house, Culombe said, "Go into the bathroom and take out the -- the cabinet, the medicine cabinet, it's screwed, it was a metal one, and down behind the medicine cabinet in the wall, you'll find some guns." They did that. This is the metallic noises on the first day. They found a bag with two or three guns in it and some ammunition, the guns that were in the car on the Saturday afternoon when Taborsky and Culombe were first picked up. Now, when he got to the house, and this is very significant now, if Your Honors please, his wife was there again. And he said to his wife, "I'm making a clean rest of things. I want to get it off my conscience and I'm telling the truth and I'll probably get life and Taborsky will get the chair. Now, right here is the key to this case. Here's a man who made this confession because he wanted to save his neck, not because he was forced but because he knew that his only way out was to get this confession. And the very first day when it happened, he said to his own wife, "I confessed and I may get the chair but I may get life and Taborsky will get the chair. Now that's very significant.
Hugo L. Black: Did he -- did he admit that?
John D. Labelle: I beg your pardon.
Hugo L. Black: Did he admit that in his evidence?
John D. Labelle: Yes, it's in the record.
Hugo L. Black: I -- I mean, did he admit that he told you why --
John D. Labelle: I think so. I don't think that's disputed. Everybody heard it. There were several people there.
Charles E. Whittaker: Her wife testified to that?
John D. Labelle: I don't know that she was asked, Your Honor. I'll -- she only testified in the preliminary hearing by the way. I'll discuss that in a minute if I don't run out of time. Let me go right from here as fast as I can. He then said to him, "I'll show you where the guns are." By the way, in the house, in another room, they found some gun parts, some gun grips, cylinder, cylinder pen, spring and he said, "I'll show you where the guns were that were used in the New Britain murder." That's this trial. He took them to a pond, very close to his house and he said, "The two guns were in the pond." One gun is a strip down on because the parts in my house will fit it. The State Police, several days after the confession now, by dragging that pond with a potato hook and by using an electromagnet found both of those guns. And the gun grips in his house fit the one that was stripped down out of the pond and the numbers inside the gun grip scratch fit the serial number on the barrel of that gun. He pointed to another pond the same afternoon now, mind you, and he said, "There's a raincoat thrown in that pond that we used in the New Britain shootings. We threw it in there because there was splattered blood on it." One of the police officers that Wednesday afternoon went to the pond and found the raincoat, an army raincoat, the kind we had in the service.
Felix Frankfurter: You're now addressing yourself with the fact that there was verification --
John D. Labelle: Yes.
Felix Frankfurter: -- of what he -- of what he confessed, is that it?
John D. Labelle: Yes. Not only that but it was done in voluntary manner.
Felix Frankfurter: Yes. Yes --
John D. Labelle: This raincoat was found, his name was on the collar of it, Culombe and also blood spots on the coat. He took them around and showed them the car they had used, all this is tied up. An Oldsmobile that he had owned at the time was in a used car lot in the other part of Hartford. He took them there and showed them the car and the car could be tied up from evidence the day of the shooting because we had somebody that seen him in this black Oldsmobile when he bought a television set. They went back to the State Police Barracks and he orally made his confession in front of the Commander and Commissioner of State Police and the Major, the executive officer about 6 o'clock at night. Then they went to eat. And after they went to eat about 8 o'clock at night, they sat down and started taking confessions. Now, mind you, he confessed to all of these murders and in taking down the confession, they started about 8 o'clock at night and finished about 12:30 the next morning. Now, when they got to about 11:30 at night, they started on the New Britain murder, putting in writing what he had told them about it and what they knew, what he had said in the car. They finished about 12:30 which would be the 28th. And when -- when they got through with that in the New Britain murder, the same night of the New Britain murder, they had committed another crime, they had shot another man in Hartford before they went to New Britain. And in this last confession, both of those were in it. So, that's Exhibit Z -- Z1 for identification. The confession committed -- committed to writing on the Wednesday night and to 12:30 on Thursday morning with two crimes in it. Sometime later, the following Sunday, the State realized that for everybody's benefit, it would be better to remove that other shooting in Hartford out of that confession. So they took the confession and simply made a copy of it and removed the other affair and they went and asked him to sign it and I'll come to that when I come to Monday.
Potter Stewart: Now, they asked him to sign it, the -- the -- it's clear here that this man could neither read nor write that he could read and write his own name but even -- he sometimes even misspell his own name, misspell it different --
John D. Labelle: Yes.
Potter Stewart: -- from time to time.
John D. Labelle: Yes.
Potter Stewart: What do they -- is it clear that they read this (Voice Overlap) --
John D. Labelle: They read it to him, it's in the record. I set it forth in my brief. They took it up to the jail, he was at the jail. They said, "This is the confession you gave last Wednesday night. It's the same thing except we took out the Lyon matter," and they read it to him. And there isn't any question about counsel claims, deceit or fraud. If Your Honor will look at my argument about it, that the testimony is -- this is Culombe's testimony and it's -- it's very -- I got the page here if I may have just a moment. Page 14 and 15 of the brief.
Potter Stewart: Of your brief?
John D. Labelle: Yes, that's where the factual situation is set up. And when on the argument, if Your Honor please, on page 35 of my brief, at the very top of the page, you'd see the quoted testimony of -- this is now Culombe, this is Culombe.
Felix Frankfurter: What page is that?
John D. Labelle: Page 35, the very top of the page. Now, this is all he testified to about this matter. Now, that's what he claims as deceit. Now, the other testimony is abundantly clear that they said to him, "Culombe, this is," and read it to him, "this is what the confession was, you gave the other night except we've taken out Lyon."
Earl Warren: Well, is this denied where he says, "I believe I said that my attorney didn't want me to sign anything and to let me alone," and he says, "He knows about this and I guess it's alright or something or another."
John D. Labelle: That's Culombe's --
Earl Warren: That is --
John D. Labelle: Culombe --
Earl Warren: -- is that -- is that denied?
John D. Labelle: Yes, it's denied.
Earl Warren: Where?
John D. Labelle: The state police department denied it in such -- the testimony of Lieutenant Rome and I think on page 14 and 15 of my brief, it set forth the pages 491 and 605, excuse me.
Earl Warren: I beg your pardon.
John D. Labelle: Page 506 of the transcript, page 574, 995 and 1009.
Earl Warren: Alright.
John D. Labelle: Page 15 of my brief.
Earl Warren: Yes, but I don't see it quoted there, that isn't quoted there.
John D. Labelle: Middle of the page.
Earl Warren: I beg your pardon.
John D. Labelle: Middle of the page, if you look in Volume 1, page 506 of the record.
Earl Warren: Volume 1, 506?
John D. Labelle: Yes.
Earl Warren: Then let's see what it said.
John D. Labelle: Volume 2, page 574, it said again.
Earl Warren: Well, let's see, who is this on --
John D. Labelle: This is Lieutenant Rome and Detective O'Brien went to the jail. And both of them verified what was done.
Earl Warren: Well, where on -- where on 506 does he -- does he contradict that?
Felix Frankfurter: He couldn't have contradicted on that page, Mr. LaBelle, because his testimony preceded the testimony of the defendant.
John D. Labelle: Oh, I may have the wrong citation, Your Honor.
Felix Frankfurter: Well --
John D. Labelle: I'm sorry. Let me look at 574 if I may.
Felix Frankfurter: But if all that, Mr. LaBelle, you -- if you state this out on this, testimony of officers prior to the testimony of the defendant couldn't contradict, in any explicit terms, what the defendant later said on the stand, they may have given details --
John D. Labelle: Yes.
Felix Frankfurter: -- of the circumstances that in your mind is a -- is an implied contradiction of what he subsequently said but they couldn't have contradicted unless the State later put out an officer.
John D. Labelle: Let me say --
Felix Frankfurter: Or all that you, on cross-examination, brought out something.
John D. Labelle: Let -- let me say that this was in the preliminary hearing when -- when Culombe testified. He did not testify before the jury at all with reference to the confessions.
Felix Frankfurter: Well, was this brought out that even in the preliminary hearing?Was this brought out?
John D. Labelle: On --
Felix Frankfurter: This matter contested?
John D. Labelle: Oh, yes. Only in the sense that Culombe's testimony came out after the police officers and we put on no rebuttal.
Felix Frankfurter: Well, that's what I mean.
John D. Labelle: And what --
Potter Stewart: What you're talking about those, the kind of thing that appears on page 995 that -- and he signed this Z, that is Exhibit Z, without any protest and it was --
John D. Labelle: Yes.
Potter Stewart: So that --
John D. Labelle: Yes, that's what --
Potter Stewart: -- not a direct contradiction of the witness but there's a different version of what happened.
Felix Frankfurter: What --
John D. Labelle: Yes. I -- I agree. That's -- that's what I refer to and that's in my brief and that 506 is wrong, I apologize.
Felix Frankfurter: Well, then and there, you (Inaudible) that he -- he was cooperative and what you -- and you would say that if appellant says he's cooperative, that denies that you put up any protest.
John D. Labelle: Yes.
Felix Frankfurter: But there wasn't.
John D. Labelle: May -- may I try to get to another point that I want to raise. On Thursday, I said that a New York officer came up and talked to him about some crime that had been -- happened in New York and it was dropped without a great deal of -- I don't know how long he was there and what he said, the record isn't clear but he did -- was talked to on Thursday by a New York police officer. Now, on -- on Thursday and this is very significant now, on Thursday morning, a bench warrant by the Superior Court was issued and they were brought in, Taborsky and Culombe both were brought into the Superior Court. And at that time, the Superior Court judge advised him of his rights, and this is all in the record, of his right to counsel and this is where the questioning came up about the public defender. Both of them, Taborsky and Culombe said they wanted to choose their own counsel and they asked for some lawyers by name. And the Court said, "We will get in touch with those lawyers and see if we can get them to take your case." They were advised that they didn't have to say anything, that they could remain silent and that counsel would get in touch with them as soon as the Court could get -- get one that would take the case, particularly, the ones they asked for in this instance, attorney McDonough. They also said and they asked this of Culombe, the State Police, "Culombe, we'd like to ask you some more questions. Do you wish to cooperate with them?" He said in open court in the Superior Court and this is in the record, "I want to cooperate with them in any way I can." In the Court that day, not one word was said about any coercion or abuse --
Earl Warren: He didn't have any lawyers, did he?
John D. Labelle: He said, didn't he spoke himself, Your Honor, in Court. He spoke himself, not one thing was said about any abuse. And when the Court said to him, "Culombe, you don't have to say anything, you don't have to sign anything, you don't have to give any statements." And they -- they asked him, "Do you want to give any information to the State Police? They want to talk to you some more." He said, "I want to cooperate with them in any way that I can." They took him back to the barracks and kept him in the State Police Barracks. He didn't want to go to the jail. This was at his own request. On Friday, his counsel talked to him, McDonough. He was advised not to do or say anything. This is in the record now. Also, on Friday, I believe it was Friday or Saturday morning, I -- I'm not just sure which two psychiatrists examined him for the purpose of mental capacity only and did not go into the details of the offense. Nothing appears in the record about that. They simply were to -- reexamined him for purposes of determining his mental capacity, that's in the record. And what was said and done in the -- in the condition, the mental condition of this man. Now, we come to Saturday and this is another very important thing. This is what I call a second confession. You'll recall this first confession, Exhibit Z1 for identification was when he said he didn't commit the murders, Taborsky shot both of them. And by the way, in all of his confessions, he kept using the name Taborsky. He kept putting the blame on Taborsky. That's what he was trying to do. Taborsky, on the other hand, when he confessed, never mentioned Culombe by name. All he said was the other guy. But Culombe kept mentioning Taborsky's name and this is very significant. At the trial, Taborsky's counsel, this is a joint trial now, Taborsky's counsel said, "I object to that confession because Culombe's confession keeps on naming Taborsky and the State said, "We'll cut out the name." And Culombe's own lawyer got up and objected to taking the name of Taborsky out of Culombe's confession because he was trying at that trial to show that Taborsky was to blame for this. Now, this is in front of the -- without the absence of the jury on the objection but that's exactly what happened and I had made reference to that in my brief.
Felix Frankfurter: Well, a man can write too also that one, at least some people can.
John D. Labelle: Well, he tried to in this case quite a bit, Your Honor. Now, on Saturday night, well, I'm coming to this. Mind you now, since that confession on Wednesday, he hadn't been bothered about the facts of this New Britain case. From Wednesday night or early Thursday morning, 12:30 a.m. on Thursday morning, he wasn't questioned at all with reference to New Britain. He was in his cell on Saturday night at the State Police Barracks. And at 6 o'clock, a strange police officer by the name of Officer Biersch (ph) came into the cellblock and said to -- to Culombe, "Hello Culombe, I'm going to be here to guard you." And he went down to the end of the cellblock and sat down on a chair and started to read a book. That's the extent of the conversation that officer had with Culombe, 6 o'clock at night. And this is a part of this case if the counsel for the petitioner's gloss is over. A few -- at 10 o'clock that night, four hours after this officer was there and said nothing to Culombe other than hello, Culombe called the officer to his cell and he said to him, "I got something on my conscience, I want to tell you what happened in New Britain." Now mind you, after he had counsel, after he had been advised by his counsel and had been told not to sign or say anything, this is that morning. He called his officer over at 10 o'clock and said, "There's something on my conscience is bothering me, I want to tell you about it." And he gave the confession which is Exhibit EE where he said he is the one who killed this gas station attendant himself and not Taborsky. Now, I say to you, this second confession goes back to the original confession because this is the kind of evidence that you find out to determine whether that first confession was coerced. This is a good indication that that first confession was voluntary because here he is after he has been advised by his counsel and told by his counsel not to do or say anything, he go voluntarily to a strange police officer, confesses again.
Felix Frankfurter: On the assumption -- merely on the assumption, Mr. LaBelle, that the first confession had been the product of question. Assume that's the purpose of what I'm going to put you in the minutes, now that is something. It might be argued that the momentum of that question continued until he could discharge the most of the indictment there, couldn't it?
John D. Labelle: Yes, it could. It could, Your Honor, but I don't think it applies because he had his counsel. He was brought into the Superior Court and advised him in Court. He -- special counsel was assigned to him, his counsel advised him. He wasn't interrogated for a period of some two or three days, he hadn't been bothered about this case and yet voluntarily to a strange police officer who had nothing to do with the investigation. He calls him over and said, "I want to tell you something to clear my conscience." Again I say the motivation for this confession, the first one and the second one was a motivation because he thought he could save himself from the electric chair. That's what he was confessing for.
John M. Harlan II: Who pictures the penalty in Connecticut reformatory?
John D. Labelle: We and under our system, the jury can recommend life imprisonment without benefit of parole under our mercy statute.
John M. Harlan II: Had this man been tried for murder before?
John D. Labelle: Not for murder but felony. He'd been in State's prison. He had been in the State's prison and reformatories both in Massachusetts and I think he was in the Connecticut reformatory but he wasn't State's prison in our state, the record is in that and I refer to it in my transcript.
Potter Stewart: He could have been -- have been tried and tried -- convicted of murder.
John D. Labelle: Yes and -- and spent several years in death row until finally, on a new -- he was let go and -- and his -- his brother was the chief witness in that case and he went insane and he finally asserted that there was a question whether he was sane at the time of the testimony, this is the brother-in-law. Taborsky was let go. Now, I say to the Court in all candor. I'm not trying to gloss over what happened here. These things did happen. He's a moron, that's not the police's fault. But the Fourteenth Amendment affords due process not only to an accused. The State has some due process coming to it, society, the victims and the families of these murders do and it's a question of weighing here their respective rights that all parties are entitled to. Now, the State of Connecticut is not desirous of convicting any innocent man and we're certainly not desirous of getting a conviction on coerced testimony. We don't want that but I say in all fairness here if you will remember. When you look at these facts and that second confession goes back to the first and I think it shows an intention on his part to cooperate. He even said of his wife in the very first instance, "I'm making a clean arrest of this because I want to cooperate and I'll get the chair -- I'll get life and Taborsky will get the chair." All that is in there. And I say to the Court, this is a hard case, I'm aware of that. It's hard for everybody. It was hard for the police. Those police officers are not professional men. They have to play this thing as they see it at that time. We look at it as Monday morning quarterbacks, looking back, looking back. And sure, I can see now where I might have done something here a little differently. And if I were state's attorney, I very well might. We're striving -- we always strive in our business at least for a perfection in the administration of justice. A higher perfection than we expect in any other walk of life. But in this case, we did the best we could under the circumstances and I say that he was treated fairly, there isn't one I own of evidence about it. Now, one other thing if I might, well, I think of it just before I quit. I think, Justice Whittaker, you asked something about the -- the wording of this statement. And in his reply brief and in his argument he had said, "Where the State when it's prepared by the phrases of the police officers and put together that you can supply an intent." In this case, the intent doesn't mean a thing because this is a felony murder, so that that argument about the police department supplying some intent in the wording of that confession, doesn't amount to anything because in this case, the intent is there because it's a felony murder, you don't have to show premeditation. You don't have to show any intent to get first degree murder out of this. So when he makes this argument about the phrasing of this confession, it doesn't apply to a felony murder. Under our statute, if the murder is perpetrated in the commission of a felony, it's automatically first degree murder.
Potter Stewart: You might have a good deal to do though, Mr. LaBelle, as a practical manner with the recommendation of the jury, might it not?
John D. Labelle: It might, Your Honor. It might. But let may say this by the way and there's one other argument I want to make. Here's the man when he got -- we had a long hearing on the admission of the confessions without the -- without the jury, and he called the witnesses and took the stand himself. Now, I say, this is very important. When he took the stand, he told about the things that are supposed to happen to him and a good deal of the testimony relied upon by the petitioner here is his own even though he claims on the other hand that he's a moron. He likes to take his testimony but he claims he's a moron on the other hand. In any event, before the jury, after they come back, after the confessions were admitted under the Connecticut procedure, he didn't take the stand before the jury nor did he call any witnesses. In fact, every time that he -- the State's witnesses were cross-examined, we have to go through the procedure twice by putting in the evidence relating to the confessions, all he showed at that time again, riding two horses, cooperation. He was trying to get that jury to give him life. He was playing for cooperation again at that time and I say that's an inconsistent position with the position he takes here today claiming coerced confessions. That's an inconsistent position that this Court must take into consideration. I think that's important and I think that -- that indicates that he's trying to right -- play both sides of the street.
Felix Frankfurter: Well, he's been consistent in -- in challenging the voluntariness of the confession, wasn't he?
John D. Labelle: Until -- not before the jury, Your Honor, never did before the jury.
Felix Frankfurter: You mean the -- for the first time in the Supreme Court -- your Supreme Court?
John D. Labelle: Yes, on the basis of the preliminary hearing only without the jury. Now, I don't say that he can't raise the question of voluntariness.
Felix Frankfurter: I'm not saying that. All I'm saying is that this isn't brought up here for that purpose.
John D. Labelle: Oh, no, no. He raised it in the -- in the Supreme Court, in our Supreme Court.
Felix Frankfurter: But not -- but not before the -- not before the jury?
John D. Labelle: No, he didn't take the -- he took the stand --
Felix Frankfurter: I don't know but -- but wasn't the question of voluntariness put to the jury --
John D. Labelle: Yes.
Felix Frankfurter: -- after the judge admitted it?
John D. Labelle: Oh, yes. In the charge -- in the charge, yes.
Felix Frankfurter: So that the question was in the trial.
John D. Labelle: Oh, yes, but not his testimony nor did he call witnesses.
Felix Frankfurter: I understand --
John D. Labelle: And I only raised that because he's -- it's an inconsistent position from the position here now.
Potter Stewart: So it's a matter of trial tactics.
John D. Labelle: Sir, yes.
Potter Stewart: And he has been entirely consistent in wanting to avoid being electrocuted.
John D. Labelle: Oh, yes. No question about that.
Felix Frankfurter: But he's also been --
John D. Labelle: No question --
Felix Frankfurter: -- he's also been consistent against the permissibility of this confession being considered by the jury so that a man who challenges the first makes relevant or sets the first makes of a confession and challenge it on the basis of how the confession was produced without calling witnesses of his own.
John D. Labelle: Oh, yes. I understand that. I -- I agree to that, Your Honor. Certainly. By the way, he did take the stand himself before the jury, you know, but only for a limited purpose, only about his mental background and then he stopped. And then nothing was asked about the crime itself. He wasn't even cross-examined about it.
Charles E. Whittaker: Then you remember that the arguments in the cross-examinations were subject to criminal (Inaudible) direct?
John D. Labelle: We were in this instance. Yes, Your Honor. That didn't stop us of course from arguing to the jury, that where he does take the stand and doesn't deny the crime that an inference maybe drawn.
John M. Harlan II: Could -- could I ask you a question about your Connecticut rule where it confers that the first confession was raised. Do you follow what is called the New York rule and the orthodox rule?
John D. Labelle: We follow what was called the orthodox rule. Now --
John M. Harlan II: In other words, the validity of your confession is determined by the Court and the only thing --
John D. Labelle: Insofar as confidence --
John M. Harlan II: And -- insofar as confidence.
John D. Labelle: Yes.
John M. Harlan II: And the only issue that's left to the jury is the weight to be given to it.
John D. Labelle: Credibility.
John M. Harlan II: Credibility.
John D. Labelle: Yes.
John M. Harlan II: They don't --
John D. Labelle: Except --
John M. Harlan II: -- they don't pass again on the truth of the confession on the --
John D. Labelle: The voluntariness of it?
John M. Harlan II: -- voluntariness.
John D. Labelle: That's in our charge. It's in my brief, Your Honor and I think what Connecticut does is -- may I answer, my time is up.
Earl Warren: Yes, just go ahead. Go ahead (Inaudible)
John D. Labelle: I think what Connecticut does is -- where we have orders call, I think in the books and overabundance of caution. That after the trial court in the preliminary hearing passes upon the competency of the evidence, which in -- and it's admitted, then we go through the whole procedure again about the admissibility -- about the obtaining of the confessions and offering them. In the charge to the jury, our court and then this case, and it appears in most of our cases as far as I can ascertain, we charge again that this confession maybe rejected completely if the jury finds it to have been obtained by involuntary means.
John M. Harlan II: Even though the judges rule to the contrary.
John D. Labelle: Right. I call -- I think that's called --
John M. Harlan II: That's the New York --
John D. Labelle: -- that's probably the Massachusetts rule.
John M. Harlan II: That's the New York rule. We call it the New York rule.
John D. Labelle: Well, in the New York, you hear -- have your hearing in the presence of the -- your preliminary hearing is in the presence of the jury.
John M. Harlan II: Both.
John D. Labelle: Both.
Charles E. Whittaker: At least that was in the charge in this case --
John D. Labelle: Yes.
Charles E. Whittaker: -- that's shown in record Volume 3 at page 1469 (Inaudible)
John D. Labelle: Yes, I refer to that in my brief. I think that's again significant here. I -- I've mentioned it in my brief and I go -- I mentioned the Stein case and so on, the Stein rule. I don't claim in the Stein rule, and this is for Justice Frankfurter, I don't claim in the -- that the Stein case says that we should do away with our rule, this Court's rule of automatic reversal if the first confession is coerced. I don't claim that but I do think that the -- where --
Felix Frankfurter: You don't have to accept that I take it.
John D. Labelle: I do it -- I think this, where you get a second confession like we have here that that is so strong, a second confession and under the circumstances in which it was given that it refers back to the person under the rule in Haley.
Felix Frankfurter: Well, that gets down to evaluating the nature of the original confession in the light of all the relevant circumstances.
John D. Labelle: Yes.
Felix Frankfurter: Then you laid great deal of stress and one can see why you would on the circumstances of calling in the (Inaudible) thing, I want to address my -- I want to bear my prayers. That's your point (Voice Overlap) --
John D. Labelle: Yes. Again, after counsel, well, I can't -- after he --
Tom C. Clark: I wanted to ask you a question on the (Inaudible) when the judge is considered in this (Inaudible) do you -- is there a judge instead of (Inaudible)
John D. Labelle: No, only voluntariness. Our rule is a voluntary --
Tom C. Clark: (Inaudible)
John D. Labelle: Question of voluntariness.
Tom C. Clark: Well, is not a simple word.
John D. Labelle: That's right.
Felix Frankfurter: Well, when you make that answer, did you examine all the cases in your State?
John D. Labelle: Well --
Felix Frankfurter: Didn't you state --
John D. Labelle: I --
Felix Frankfurter: -- state in Willis?
John D. Labelle: I -- I have quoted something in Willis. I know -- I know you have before you State versus Rogers where the question has been raised whether we apply it through falsity test.
Felix Frankfurter: Well, you do -- you do in four cases beginning with 1898 down to Lorain in 1954, truth -- truth is an ingredient in those decisions, isn't it?
John D. Labelle: Well, I think that some of our decisions say so. I --
Felix Frankfurter: Well, that's what I'm saying to you.
John D. Labelle: Yes, I agree. I agree and I'm aware of the cases, Your Honor.
Hugo L. Black: (Inaudible)
John D. Labelle: I've always believed and I can see that there is a question. I've always believed it was a question of whether it's voluntary.
Felix Frankfurter: But how can you tell what you rule you follow if the Court says truth is an element? How can you tell what rule you follow?
John D. Labelle: In this case, the charge was about truth or falsity too.
Felix Frankfurter: Well, in this -- maybe in this case but you can't see what the rule is in another case --
John D. Labelle: I understand --
Felix Frankfurter: -- where they talk about truth and where the trial judge included truth as an ingredient, can you?
John D. Labelle: That's correct.
Felix Frankfurter: And therefore, at least four of those cases were 1898.
John D. Labelle: I -- I agree.
Tom C. Clark: (Voice Overlap) in this case.
John D. Labelle: In this case --
Tom C. Clark: The Supreme Court of Error.
John D. Labelle: In this case, said it was a voluntary rule when the opinion --
Tom C. Clark: But page is it cited?
John D. Labelle: I -- I believe --
Tom C. Clark: (Inaudible)
John D. Labelle: I call Your Honors' attention to Volume 4 of the transcript of the record.
Speaker: (Inaudible)
John D. Labelle: Yes, page 67, Your Honor, of Volume 4. They cited Costelli, Palko, Zukauskas, Malm, again, Rogers, I'm aware --
Tom C. Clark: (Inaudible)
Felix Frankfurter: And -- and --
Tom C. Clark: (Inaudible)
Felix Frankfurter: What about Palko?
John D. Labelle: Palko?
Felix Frankfurter: Yes. Palko is talking about the case? What about Lorain, what about Willis?
John D. Labelle: Lorain --
Felix Frankfurter: They --
John D. Labelle: -- I know it's in there.
Felix Frankfurter: -- they all cite -- talk about truth?
John D. Labelle: I think you're right.
Felix Frankfurter: Alright.
John D. Labelle: I don't question that.
Felix Frankfurter: So the question is whether -- but there isn't any set of rules that you can speak of a set of rule that in a particular case, they may not have referred to the truth ingredient, in some others they do. In this case, they didn't, in Rogers they did.
John D. Labelle: I think in this case, he also, in his charge mentioned truth or falsity --
Felix Frankfurter: Yes.
John D. Labelle: -- but of course, in this case, there wasn't before the jury the question of voluntariness, it wasn't pressed but it was mentioned in the charge.
Felix Frankfurter: And throughout your cases, they are all (Inaudible) the answers.
John D. Labelle: Well, somewhat. I can't do anything about that today, Your Honor --
Felix Frankfurter: No --
John D. Labelle: -- if I'm out with you because of that, then I'm out there.
Felix Frankfurter: You're not [Laughter] --
Tom C. Clark: You're State's Attorney.
John D. Labelle: I'm the State's Attorney. I should --
Tom C. Clark: (Inaudible)
John D. Labelle: Hartford County.
Tom C. Clark: Hartford.
John D. Labelle: We have a state's attorney for each county.
Felix Frankfurter: You aren't being held responsible for what a few or does or doesn't do --
John D. Labelle: Right.
Felix Frankfurter: -- you merely were utilized to elicit what it does, doesn't it?
John D. Labelle: That's correct. Thank you.
Earl Warren: Very well, Mr. LaBelle. Mr. Goldfarb.
Alexander A. Goldfarb: If Your Honors please, I think in my reply brief, I have disposed of the issue of the question of the orthodox rule versus the New York or New York rule as Justice Harlan has spoken of. There's no question that this came up. This question, I believe, came up in the argument of the Rogers case before this very Court last month and it was the position of the State's Attorney for Fairfield County at least that Connecticut describes to the orthodox rule. And whether or not Mr. LaBelle subscribes to it, I do know that the -- the Circuit Court of Appeals of the Second Circuit in the Rogers case at 252 F.2nd 807 and again at 271 F.2d 364 in the appeal of the Rogers case, has reaffirmed the fact that the Connecticut subscribes to the orthodox rule.
Felix Frankfurter: I don't think the best way of finding out what Connecticut does is to take the whole series of Connecticut cases instead of quoting what county attorneys or state attorneys or the Court of Appeals for the Second Circuit says.
Alexander A. Goldfarb: No question about that, Mr. Frankfurter -- Mr. Justice Frankfurter. And for that matter, the Supreme Court of Errors in this very case stated what is the orthodox rule, at page 67, and it quotes the State versus Lorain case which -- which is the orthodox case in this matter. So, that I think the Stein case has no application whatsoever to this particular case. I think the instruction of the trial judge to the jury pertaining to the allocation of responsibility of whether the trial judge has the -- sustained the application -- allocation responsibility as to voluntariness and truth, was clearly an error and it should've been accepted to. But unfortunately, I was not the trial counsel at that time. It was an erroneous instruction and they have been comments on -- on this by Mr. Zeldes and the Connecticut Bar General. Mr. Zeldes, I think, was one of the co-counsel in the Rogers case and appeared before this Court last month. And Connecticut Bar General article is an enlightening one concerning this very issue. There is confusion among trial judges in the -- in the Connecticut courts pertaining to this very issue of whether or not Connecticut's discretion (Voice Overlap) --
William J. Brennan, Jr.: What's -- what's the record to that? Could you give it to me, that article?
Alexander A. Goldfarb: I have a copy of it here, Your Honor. Connecticut (Inaudible) -- I quoted in my reply brief, Your Honor. 30 Connecticut Bar General 221, Zeldes, the Rogers Opinion, confusion in the -- in the involuntary confession area. And there's also a law review article by, I believe, by Professor Meltzer in the 24 University of Chicago Law Review which is a critique of this Court's Stein opinion. Now, my worthy brother has recited to no end concerning matters pertaining to --
Earl Warren: You are quite finished from that time.
Alexander A. Goldfarb: -- matters pertaining to facts going to the credibility of the confession which Mr. Justice Frankfurter well pointed out that all of the corroborating evidence pertaining to the -- these confessions are well taken. But they have nothing whatsoever to do with the voluntariness of the confession. I think there has been confusion on the part of the State's Attorney presenting his case -- in presenting what facts are pertinent to the credibility of the confession which is the exclusive province of the jury to determine and what factors are pertinent to the question of -- the voluntariness confession which is -- it is his burden to prove and not mine which is the responsibility that the trial judge determined in his preliminary hearing. We claim that the trial judge in finding that these confessions were voluntary committed grave error that the facts which we have recited, the facts of the mental defectiveness, the factors and the elements of the use of the wife and the two children, the factors as to the delay in presentment, the factor as to the prolonged and intensive and extensive investigation and interrogation, rather, the factor as to the -- the language used here clearly that we -- we quoted from the police officer's testimony here in the -- in -- in the record as to how each of these confessions were taken. The language was clearly that are Rome's. He would paraphrase the incoherent phrasing of Culombe and it would -- it was his language. All -- all this Court has to do is to take the three confessions which are a matter of record and compare it with the -- with the incoherent, altering, inept language and testimony of the accused on the witness stand and you have the answer to this case.
Hugo L. Black: Why do we not have it the transcript of this? The statement was made at their own stenographic transcript?
Alexander A. Goldfarb: So far as I know, I believe it was recited. That it is -- I take exception to the statement made by my worthy brother that that was not presented into the record because Officer -- Detective O'Brien did testify in this case and did testify as to the oral confession taken that Wednesday afternoon.
Hugo L. Black: Well, he used the stenographic report that was made up in the car, in the record.
Alexander A. Goldfarb: We have -- actually, the stenographic report is an exhibit in this case.
Hugo L. Black: It is.
Alexander A. Goldfarb: Yes. It's an exhibit and full exhibit in this case. I believe that it's -- it is somewhere in the -- among the exhibits we have transferred in many of the -- of the exhibits in this case. And I respectfully invite this Court's attention --
Hugo L. Black: You're -- you're confident of that.
Alexander A. Goldfarb: Yes. The exhibit is in here because I have reviewed these exhibits all day yesterday. I spent -- reviewing these exhibits.
Felix Frankfurter: But you -- are you saying that from the face of it, we can tell it wasn't -- couldn't have been his -- his --
Alexander A. Goldfarb: It is obviously not his. You read -- you read the testimony of -- of the accused.
Felix Frankfurter: That -- but that's what you're saying.
Alexander A. Goldfarb: Yes.
Felix Frankfurter: That -- reading it --
Alexander A. Goldfarb: And reading these confessions --
Felix Frankfurter: -- reading it, one would notice it is more or less fabricated, is that --
Alexander A. Goldfarb: Impeccable, flawless language, coherent, integrated and clearly the language of the accused on the witness stand is anything but integrated. This is a moron we're dealing with. The man with an IQ of 60 who has never written or -- or read a -- a book in his life, probably, can't read or write.
Potter Stewart: Mr. Goldfarb, you're not seriously suggesting, are you, that these confessions were fabricated, if you use my Brother Frankfurter's words.
Alexander A. Goldfarb: I would go to the extent of fact that --
Potter Stewart: Doesn't the record show that they were written in the language of somebody else but that they were read over to him and that -- that he --
Alexander A. Goldfarb: Because they're not fabricated in that sense but they are --
Potter Stewart: -- and that he's saying -- after having them read over to him.
Alexander A. Goldfarb: They are not accurate reproductions of what he's saying there.
Potter Stewart: They're not invented by somebody.
Alexander A. Goldfarb: They're invented but they're not fabricated. I wouldn't claim fabrication here. I do claim that they are not in the words --
Potter Stewart: Yes.
Alexander A. Goldfarb: -- about the Culombe --
Potter Stewart: (Voice Overlap) --
Alexander A. Goldfarb: -- which are not pertinent to the possible degree of crime to which he's confessing which Judge Smith in his memorandum of decisions, Federal Judge Smith who is now Circuit Court of Appeals judge, stated very eloquently in his decision of State against Reed, United States against Reed in which he points out, this is an element of coercion. I'm not claiming this is a -- as any other thing but an element of coercion.
Felix Frankfurter: Well, are you suggesting that -- that the language, as such literary grace, that only Connecticut police could've (Inaudible)
Alexander A. Goldfarb: Yes. As I say, at page 7 of Judge -- of Judge Smith's decision, "Statements elicited during questioning are bound to be colored to some extent by the purpose of the questioner who inevitably leaves the witness in the absence of court control. This coloring is compounded where the statement is not taken down stenographically but written out as a narrative in language supplied by the questioner." The very factual situation here which Judge Smith reversed the conviction in this case, where the state of mind of the defendant is an issue in -- in the case as it was -- as it is in our case.
Felix Frankfurter: (Inaudible) the police gave.
Alexander A. Goldfarb: "This wording of his account of the crime is a vital importance," says Judge Smith. The jury in Reed's case was charged and then it could bring a verdict of guilty, a murder in the first degree with or without recommendation of life imprisonment, merit on the second degree, manslaughter or not guilty with the confession and evidence have brought in a verdict of guilt in the first degree carrying the mandatory death sentence. Had counsel been available to Reed, he might have advised Reed of a danger to went on trial for his life on charges such as were faced by Reed of adopting the language of another in a statement signed by him.
Felix Frankfurter: Well, I'm little confused. As I understood the State Attorney, the policeman at the wheel, when it became necessary to utilize his stenographic skills, took the passenger's place and left the wheel and then took down what was spoken, is that right?
Alexander A. Goldfarb: No. In this case, they -- they elicited answers to questions --
Felix Frankfurter: I don't argue that whether they were elicited or whether they volunteered but the clerk -- the fact that when he began to talk, as I understood it unless you tell me I'm wrong, the officer who was brought along as a stenographer took down what he said, is that true or not?
Alexander A. Goldfarb: No, it is not true. What happened Wednesday afternoon --
Felix Frankfurter: I'm not talking about Wednesday, I'm talking about Tuesday.
Alexander A. Goldfarb: No, it is not true. That is not true and the record proves it and I -- my references is to the record indicate that they were paraphrasing. He would -- he would get an answer from Culombe and put it in his own words and composed it in his own words.
Felix Frankfurter: But there -- but he -- does he take that down with the stenographic hieroglyphics?
Alexander A. Goldfarb: No, it wasn't a verbatim reproduction.
Felix Frankfurter: How do you know? How do I know?
Alexander A. Goldfarb: This was the testimony of the police in this case.
Felix Frankfurter: Well, but what I -- you haven't answered my question or rather you didn't take into minor question I put. Did this officer with his book write out words in -- in ordinary and full language of the dictation, make them symbol -- symbolic notes?
Alexander A. Goldfarb: There was no officer present at the time of the other confessions. The officer is on the --
Felix Frankfurter: I'm not talking about the other confession. I am talking about the time when -- when he was present and when he shifted from the seat of a driver to a passenger so he should be free to take it down, was there such an episode?
Alexander A. Goldfarb: Yes, there was such an --
Felix Frankfurter: Now --
Alexander A. Goldfarb: -- episode.
Felix Frankfurter: -- what I want to know is, did he write words out or did he write signs, even if he's wrote down something contemporaneously?
Alexander A. Goldfarb: Yes, we have a -- we have that in exhibit. I do not know whether the -- the stenographic notes are verbatim -- is a verbatim reproduction.
Felix Frankfurter: Was there a cross-examination as to what he took down and what they meant?
Alexander A. Goldfarb: Yes, there was.
Felix Frankfurter: And -- and I -- is your argument now resting that this was made up, the language was made up based on anything in the record whereby the officer who took down what -- his name -- Culombe said. That he took down not what he said but his own phrasing. Was there any such examination of him?
Alexander A. Goldfarb: I believe there was such an examination but the more -- more deliberate examination when -- was as to the written confessions.
Felix Frankfurter: Well, I'm not talking about that. I want to know its bearing on whether that which he originally uttered in the car on Tuesday was written down either in spelled out words or from symbols as uttered by Culombe or whether they were the transliteration of the -- or the paraphrasings or the rephrasings of the stenographer. Now, was there a testimony on that, is there?
Alexander A. Goldfarb: I am not sure, Your Honor.
Felix Frankfurter: Alright.
Alexander A. Goldfarb: I would have to refer to the record. I frankly do not know that -- the answer to that question at this time. I do know there was some cross-examination of the officer who took stenographic notes and those stenographic notes are on exhibit. I do not know whether the stenographic notes are verbatim reproduction of what was stated by the petitioner.
Felix Frankfurter: Well, but that would be -- that to me, would seems to be relevant on what you so strenuously urging that this is beyond the tense of this particular limited equipment.
Alexander A. Goldfarb: Well, I'm referring, of course, to the written confessions when I stated the -- that particular proposition, Your Honor.
Hugo L. Black: But I'd like to be clear, we thought -- I was interested from the beginning about the stenographic notes taken in the car and I understood you to tell me that we would find them here as an exhibit.
Alexander A. Goldfarb: Yes.
Earl Warren: Now, may I ask you as one --
Hugo L. Black: (Voice Overlap) counsel for the State said different.
Earl Warren: May I ask just one question further. If the notes, the stenographic notes are there, is there a transcription of them?
Alexander A. Goldfarb: No. I don't believe there's a transcription of those notes. However, I think that the officer who took those notes did testify pertaining to the statement that he took on the stenographic notes.
Earl Warren: Yes, but it's so understood but --
John M. Harlan II: What is the exhibit number in the record of the stenographic notes?
Alexander A. Goldfarb: Pardon, Your Honor.
Earl Warren: Yes, go ahead.
Charles E. Whittaker: How could you put notes (Inaudible) notes in without transcribing it?
Earl Warren: Life photograph, I guess.
Alexander A. Goldfarb: Oh, I'm sorry, this is a -- this is the stenographic notebook which I assumed was the -- this is the interrogation of Joseph Taborsky. I'm -- I'm confused, if Your Honors please, I believe this is the stenographic note concerning the interrogation of Joseph Taborsky but not of the accused. Now, it may contain -- it may contain his notes, stated March 1st, 1957 at 6:30 pm. This is the State's exhibit concerning Joseph Taborsky. I'm -- I'm sorry --
Earl Warren: May -- maybe Mr. LaBelle could help us in that.
Alexander A. Goldfarb: (Inaudible) 63 Your Honor of Volume 2 of the transcript. And you have it all. It's here. This is Detective O'Brien being examined. "Yes, sir." "And can you tell us substantially what did take place, what was said?" "You mean the entire conversation?" He said. "Substantially, without reading your notes, have you (Inaudible) transcript of the notes." "No, sir, I have it here." "You've got them in shorthand?" "But you haven't transcribed it, have you?" "No, sir, I haven't read the typewritten transcript." "But have you reviewed it?" Well, that was available to cross-examination and having him read on cross-examination, probably the stenographic notes.
John M. Harlan II: The notes themselves are not in the record.
Alexander A. Goldfarb: The notes themselves were not transcribed or made in exhibit. But they were available in the officers and on the witness stand for him to be -- to have it cross-examined. I would like to make one further statement concerning, if I may --
Earl Warren: You may.
Alexander A. Goldfarb: -- Your Honor, concerning the so-called cooperativeness and the kindly treatment that Sergeant Paige was supposed to have a fatherly treatment that is claimed by the State in this case. Now, I'm rather familiar with the Korean War tactics of the war prisoners and I know somewhat about the Pavlovian theory of -- uses of -- ways by which sophisticated ways of confusing a prisoner. Now, there are -- it was used during the Korean War whereby one person would be subjected to adverse oppressive measures by one person, then he would -- should be shuttled back again to one who is kindly and fatherly and who -- who would act as a father, confess it to that one person. I think that is what happened in this case. We had Lieutenant Rome who subjected the petitioner to oppressive, stern, forceful measures and then afterwards, he was shuttled back -- shuttled forward to Sergeant Paige, his immediate assistant, who would treat him kindly, solicitously, benignly. And this, of course, confounded the accused. It's a very sophisticated devise by which to exasperate, depress and wear down an accused prisoner. And this was done in Korea, it is done in the Pavlovian technique of causing breakdowns and mice and it's -- it's -- it was done in this case because every time, every time that Culombe had been subjected to these oppressive measures, he would find Sergeant Paige on the scene to confess to, to tell him his troubles, to -- to -- seeking him succor for his anxiety. And I think that was the -- the so-called Mutt and Jeff technique, the two men operating together in a system. And you wearing down the petitioner in this case, subtle for justice and city as -- as any other devise be it physical abuse or force.
Earl Warren: Mr --
Alexander A. Goldfarb: Thank you.
Earl Warren: -- Goldfarb, well -- well, this Court did not assign you to -- to represent this petitioner, I understand from the argument that you were assigned by the court -- courts below and that you have acted without compensation and I want to express to you the appreciation of the Court because we always appreciate the willingness of lawyers to undertake these hard cases and for indigent defendants, so we appreciate it very much. And Mr. LaBelle, I want to say to you that -- that we appreciate the very -- very earnest and very frank manner in which you have represented your State.
Alexander A. Goldfarb: (Voice Overlap) --
Earl Warren: And I think now that in as much as -- we only have 10 minutes more, it would not serve any purpose to start this next -- this next case in view of our long -- our long recess. And did you have something more to say?
Alexander A. Goldfarb: Yes, if Your Honor pleases, I should like to make reference now. I should like to cite and make particular commendation to Mrs. Graham Howard and Ms. -- and Thomas Williams of the Yale Law School Public Defenders Committee who assisted me so ably and resourcefully in having of this case.
Earl Warren: Very well.
Alexander A. Goldfarb: Thank you.
Earl Warren: We'll recess now.