Warren E. Burger: Next case is number 127, Monks against New Jersey. Mr. Amsterdam, you may proceed whenever you're ready.
Anthony G. Armsterdam: Mr. Chief Justice, may it please the Court. The principal question presented in this case is one that is entirely familiar to the Court. It is the question which this Court has wrestled with frequently, for better than 35 years, whether in a state criminal proceeding or in this instance a juvenile delinquency proceeding resulting in a sentence of life imprisonment, a defendant's confession was inadmissible in evidence because involuntarily obtained by the police. This case arises prior to the cutoff date of Escobedo and of Miranda.
Speaker: You make no Miranda argument, do you?
Anthony G. Armsterdam: There is no Miranda argument Mr. Justice Harlan at all in this case.
Speaker: Thank you.
Anthony G. Armsterdam: The issue of admissibility of the confession is entirely the traditional one of voluntariness and for that reason it turns on all of the factual circumstances of the case. It is for that reason that in our brief I have tried you set forth in all of the detail that the Court might wish, the exact factual circumstances under which the confession was obtained. As I understand the state's position, in its brief, it initially asserts that it agrees with all of petitioner's factual statements. However, in the argument portion of its brief, it does make certain factual assertions with which we are in disagreement. There are half dozen of those and I mean to advert to them specifically in my presentation because I think the most important aspect of this case is the facts. We begin with what is clearly a major factor in the case and that is the petitioner's age. At the time of his detention, interrogation and confession, he was a 15-year old, to be exact, 15 years and four months old. The state of course does not contest that, but it does make three factual assertions in that regard which I wish to bring to the Court's attention. First, it characterizes the petitioner as above average, and indicates that he had an intelligence beyond his mere age. The state sights nothing in the record for either these propositions. The Court will find nothing in the record to support either of these propositions and as I take it, it is an inference of the respondent to run from nothing other than the fact that the petitioner managed the hold out for a goodly time under sustained police questioning. The second factual matter raised by the state in connection with the petitioner's individual characteristics is that he was as the state puts it, court wise or already placed in its brief a hardened juvenile criminal. Again, the record shows no such thing. The facts in this regard are set forth in our brief at page 46 in the footnote 59. The trial record here shows only that the petitioner previous to this detention and interrogation had been a probationer of the juvenile Court. It does not show what caused him to be a probationer of juvenile Court and it does not show what context, if any, he had had with the police incident to becoming a probationer for juvenile Court. There are however psychiatric reports in this record, one of which we advert to in that footnote which shows that as of a time three months prior to his detention, the only run ins that he had had with the police were a minor pilfering incidents, stealing flashlight and jacket from a car, a broken window incident and some misconduct at school. In reviewing the record for this argument, I notice that I omitted from that footnote that the same diagnostic report also indicates a charge of waywardness, whatever that may be, some time prior to 1953 when he would have been 11 or 12. Again, no indication is to whether he had dealings with the police in that connection and for the sake of completeness, I simply want to bring to the Court's attention that there's another psychiatric report made later after his present juvenile commitment in which under Sodium Amatol interviews and a Methedrine interview at the state diagnostic center. The petitioner also adverted to two additional contacts with the police, however, this came out under Amatol. It is quite unclear what these contacts were and there is no objective verification of this Amatol material. In any event, he hardly has shown by this record to be a hardened juvenile criminal. Finally, the state says that the petitioner was and I quote “familiar with the ability to take refuge in silence.” That is a carefully phrased statement to the extent that it seems to assert that there is anything in this record showing that the petitioner knew anything about his privilege against self-incrimination or his right to resist police questioning. It is again totally unfounded in the record. The only material cited by the state to support it is a statement that at one time the petitioner was in fact totally silent during five minutes of particularly sustained police questioning. No indication that he knew of his right to maintain and retain that silence. So, I think what we end up with in terms of the personality in nature of this petitioner is that he was simply a 15-year old boy. I cannot honestly claim that there is anything in the record indicating that he is subnormal, but I think there is certainly nothing in the record to indicate that he is super normal in any regard. We turn then to what happened to this 15-year old boy. First, it is undisputed that prior to the interrogation which lead to his confessions he was detained without access to friends, family, or an attorney for a 10-day period. Now, I am quick to admit that this detention has none of the aggravating trappings, that have sometimes attached the cases coming to this Court, no shuttling around from police station to police station in that sort of thing. He was simply detained in the juvenile home and he was questioned by the police on four occasions; one, immediately after his arrest then several days later after an intervening weekend when the police detention on him focused in connection with these cases, then as soon as a lie detector expert could be gotten and finally, several days later on the day in which he confessed. The important thing however, about that detention, there are I think two important things about the detention. First, it shows a very considerable callousness on the part of the police and the juvenile authorities and indicates that they were far more concern with their investigation than they were with this 15-year old's welfare and that of his family. He had been away from home prior to his arrest. His mother had called the police and had called the juvenile authorities and she had made continuing inquiries of them and had been assured that as soon as he was picked up he would be brought home. In fact, when he was picked up, he was detained for 10 full days and his mother never learned that he was in custody until the newspapers printed that he had confessed. Now, the state suggests and here is the fourth matter on which we are in factual disagreement that the reason why Monks never saw his parents during this period was that he didn't want them. Again, the record has absolutely no support for this proposition. It seems to be an inference from the fact that at the time of his arrest he was living away from home. However, as I have indicated, his mother had made steps to find him both through the police and through the juvenile authorities. They knew that very well and never got into touch with her, but if it were so that Monks was so far from his parents that he felt that not even that, not even his mother and his father could be called to help him in this situation. It seems to me that speaks not strength and not a factor which supported this boy in his ordeal with the police, but rather the converse. Passing from that aspect of the continued detention to another --
Warren E. Burger: If this is a good breaking point for you Mr. Amsterdam, we'll --
Anthony G. Armsterdam: It is Mr. Chief Justice I think.
Warren E. Burger: -- suspend now. You may continue.
Anthony G. Armsterdam: Thank you, Mr. Chief Justice. If the Court please, prior to the recess I had noted the petitioner's 10-day detention prior to the interrogation that produced this confession. The most important result of that 10-day detention is that in fact and to petitioner's appearance, he as completely subject to the will of the police throughout that period. He was not being detained for some fixed time after which he would appear in Court. In fact and as far as he knew the police could hold him and question him whenever they pleased until he confessed.
Warren E. Burger: Let me get that time sequence clearer in my mind now Mr. Amsterdam. He was in a juvenile detention home at this period?
Anthony G. Armsterdam: He was in a juvenile detention home for this 10-day period.
Warren E. Burger: Now, the -- our police -- does the record show whether the police are regularly stationed there or whether they came intermittently and left to just talk with him?
Anthony G. Armsterdam: They -- there is no indication that they are regularly stationed there. When he was arrested and before he was taken to the juvenile home he was questioned for several hours by the police. Indeed, he was questioned from 1 am when he was arrested till noon the following day.
Warren E. Burger: I just want to be sure we didn't have a 10-day police station detention and then --
Anthony G. Armsterdam: No, we do not.
Warren E. Burger: What happened?
Anthony G. Armsterdam: We have only two days of police interrogation in the intervening period after the first police interrogation and prior to the day of his confession.
William J. Brennan, Jr.: Does it appear why they picked him up Mr. Armsterdam?
Anthony G. Armsterdam: Yes, he was arrested in connection with two unrelated purse snatchings to which he admitted immediately. However, he was being held from all appearances for questioning on these offenses because the police officers had their attention called immediately to a similarity of modus between the crimes. And on the Monday following the Saturday of his arrest, they began to question him on these two particular offenses. They applied to the juvenile Court for leave to do so, they were granted leave to do so and they began to do so. Now, here we come to perhaps one additional factual matter in which we're in disagreement with the state because we believe that the implication to him was obvious, that he simply had no right to refuse to answer police questions and that the police would persevere in holding him and questioning him until he broke and confessed. The state asserts in its brief that the police in fact gave petitioner warnings of his right to remain silent at one point. The state citation to support that assertion refers entirely to a warning given after the petitioner had been questioned on three days and during 12 hours on the 3rd day without any warning or caution of any sort from the police at any time. It is undisputed that he was never given any warning throughout the interrogation until he had twice orally confessed to the offenses. At that point and just prior to the formal transcription of statements, he was told we are going to ask you to make a voluntary statement which you may make or you may not make as you please and that is the sum total of the warnings on this record. I want to make absolutely clear that he did not know and was not told at any time anything contrary to the clear indication presented by the police continual questioning that he simply was going to have to answer. Now, I come then to the final critical date and time is very important. At 7 am he was up, before 7 am he was up because he had breakfast at 7. At, 10 am police questioning began. The confessions were completed and signed at 1 am the following day, 15 full hours after the interrogation began. Now, during this time, he was -- no, for one minute out of the presence of two or three police officers except when he was being interrogated by a polygraph operator, never, during these 15 hours did he see or speak to anybody other than his interrogators. The actual amount of direct interrogation of questioning of him is unclear as it always is in these cases, but by the police admissions, the minimum possible time that he could have been under direct questioning was six and a half or seven hours. And that account of the time leaves several unexplained gaps in the day as is invariable with testimony regarding to these -- regarding matters of this sort. What is very important is that this record makes clear as no other record I have ever seen in this Court, what was going on throughout the 15 hours because it is misleading to imagine that only six and a half of that or seven of that involved investigation or interrogation? The point is that throughout the entire 15-hour period he was subject to the stresses and pressures of the interrogative process. While he was not being questioned, he was being confronted with his friends who were brought in to say that he had made admissions to them. They were undergoing polygraph testing while he waited outside the room to see what the result of that testing would be. He was driven around to the scene of the offenses. He was told to sit and wait while the police officers left him, went across the room and in his presence discussed what they were going to do next. All of this time he was undergoing ongoing process of police interrogation. So that the 15 hours I think have to be seen as a block under which this 15 year old boy was subjected to the interrogative process and all of its pressures. What is equally important is that he persisted from the very beginning in denying these offenses. This is not one of these threshold confessions by anyone. The inquiry here is whether he voluntarily confessed, whether he willfully confessed. Now, for two days of questioning he did not. For 12 hours in the third day of questioning he did not. He confessed --
Speaker: Would you eliminate the confession, it's about the date or mere judgment with the record that -- though enough to convict him apart from his confession?
Anthony G. Armsterdam: There is nothing, not only not enough Mr. Justice Harlan, there is no evidence literally pointing to his guilt other than his confessions, absolutely none. Now, --
Potter Stewart: We never had a case I guess, have we, in which the person interrogated has had assigned to him by the juvenile Court somebody like this man Jermalowics.
Anthony G. Armsterdam: Never, and that is the one --
Potter Stewart: Probation officer, all the time?
Anthony G. Armsterdam: And that is the one legal wrinkle and that makes this case different from any other --
Potter Stewart: It's now a wrinkle, is it?
Anthony G. Armsterdam: That's in --
Potter Stewart: There in -- we haven't had a case involving the --
Anthony G. Armsterdam: No, Mr. Justice Stewart, not that I know of. I mean to come to that because I think that is nub of this case.
Byron R. White: Mr. Amsterdam, didn't -- you say no other evidence, what about his admissions to his friends?
Anthony G. Armsterdam: They relate to the Wise affair which is an affair that's not now an issue because the -- there are two charges here, its so called Wise affair and the Giambra affair. The Wise affair, he's already fully served all the time, he can legally under New Jersey law, the only thing that is in contention here is Giambra. Now, with regard to Giambra, there is one other confession, that is a confession or an admission rather made to not a friend but an inmate in the juvenile home following and clearly derivative of all the confessions that are in contention here. One could not find on this record that that confession was not derivative of these. If these confessions fall that admission clearly must fall.
Byron R. White: Now, why do you say that?
Anthony G. Armsterdam: Because of his testimony; he was explicitly asked on cross examination by the District Attorney, well, why did you tell Covan in the receiving home that had done it. He said, I've been denying it all along, I admitted it to them and the cat was out of the bag. I then admitted it to everybody.
Byron R. White: But it doesn't necessary follow that any admission following a coerced confession, is always coerced?
Anthony G. Armsterdam: Mr. Justice White, I think that the clear implication of this Court's holding in Robinson v. Tennessee adopting Mr. Justice Harlan's opinion in Darwin is that the state at least has the burden after a first involuntary confession is given of showing that the subsequent confession is not tainted by it and is not involuntary. No such showing is possible or could be made on this record. I do not assert that it could not be made. I assert that on this record it is not made. Now, what actually went on in the course of the police questioning --
Warren E. Burger: Before you go on Mr. Amsterdam, let me see if I could clear up another matter. Was there anything in the description given by this woman before her death, before she died that links him up with the attack? She said it was a man on a brown leather -- dark leather jacket, was -- any follow up on that?
Anthony G. Armsterdam: This might follow up. Again, all of these matters here are detailed in the appendix to the petitioner's brief. The follow up is simply this, that petitioner did in fact have a black leather jacket. The victim's description was a man, and this is a 15 year old boy, in a -- now, it's unclear what she said. The officer first said she said dark leather jacket but then remembered that somebody had said she said brown leather jacket, Monk's jacket was black and the jacket was equally tainted by the confession. The jacket was disclosed immediately following the confession under Wong Sun, there would be no question whatever that the jacket would fall so that the only follow up again derives immediately from the confession. When I speak of there being no independent evidence of quilt, I mean no independent of this, both the telling admission and the jacket fall with this confession, but in any event, the probative value of the defendant having a black jacket and the victim saying that she was hurt by a man with the dark jacket is virtually no. Now, what in fact happened throughout the course of this interrogation was that the defendant simply refused, resisted any efforts to get him to talk. He was during this 15 hours subjected to confrontations by friends in connection with the Wise matter, put on a lie detector nine times, was confronted with a prior admission in the Wise matter being knew that it was snowing on the day the Wise offense and was subjected to every kind of blandishment by the police that you can't fool God type of questioning, that you will feel better for it, the sit me corner and search your conscience type of thing and as I say on and off questioning by the police and then the lie detector and back to the police and back to the lie detector. Now, I come to Mr. Justice Stewart's question about the probation officer because I think that this case would so clearly be a case of coerced confession, it wouldn't even be up here, if it weren't for the probation officer. What the Court below, both Court's below seem to have done is to rely exclusively on the presence of the probation officer to distinguish this case from Haley, and as I read the respondent's brief almost exclusive reliance is placed on the probation officer there too. So, the question narrows down to this, whether where the interrogation itself which the probation officer was present at and did not stop, clearly makes a case of coercion under Haley, whether his mere presence doing nothing changes the result and somehow makes the confession voluntary. Now in that regard, I have several specific factual points. One; the probation officer was simply not there during the critical times. Although, he had been instructed by the Court to be present when the petitioner was interrogated by the officers, he seems to have construed this as not including the polygraph operator. With the result that the three and a half hours of interrogation that went on, on the 26th alone, the critical day alone by the polygraph operator during one of which he finally broke and started to make the confession the Giambra confession, these were sessions where the probation officer was not present. When he finally did break, who was brought in? Not the probation officer, but the investigating detective and he then proceeded to make his initial confession to the detective again out of the presence of the probation officer.
Potter Stewart: Where was Chester Jermalowics during this time?
Anthony G. Armsterdam: Pardon me?
Potter Stewart: Where was Chester Jermalowics?
Anthony G. Armsterdam: Why?
Potter Stewart: Where was he?
Anthony G. Armsterdam: Whe -- where?
Potter Stewart: Yes, he'd been directed by the Court as we know to be present, where was he?
Anthony G. Armsterdam: I simply assume that he didn't regard the polygraph operator as a detective. I can't understand why he wasn't present.
Potter Stewart: And the record doesn't show where he was?
Anthony G. Armsterdam: Oh, I'm sorry, he was in the next room, as he says. That is this -- the questioning went on in what appears to be in a small room, in any room to the grand jury. He was in the next room. No indication as to whether one could hear and in fact the door was closed so one would suppose that he couldn't hear in and was not supporting by his presence, the petitioner in any way. Now, the respondent states that the state Courts below made what the respondent calls express findings that the probation officer's presence was a restraining influence on the police. Let me make that very clear. The state Courts below made no such express findings and could not on this record have done so. What the state courts did was simply to rely on the fact that he was assigned by the Court and was sometimes there as making his confession voluntary. It made no findings that he had any impact on the police and indeed no findings of that sort could be made because he never said a word, never stopped the police from doing anything, never interjected, there's no testimony by the police that they regarded him as a restraining influence in short, he was simply there. More importantly, the petitioner was never told that he was there to protect him. He knew that he was a probation officer but a juvenile's view of a juvenile probation officer clearly allies him with the police and there was no suggestion communicated to Monks that he was there in protective role. In addition to that, I think this point is exceedingly important. That when it came to trial, the probation officer was not a supportive or a friendly figure. He was hostile to the petitioner, he was heedless of the facts dealing the circumstances of the confession. He admitted he didn't listen to any of the details of the questioning or the answers. He simply regarded his own role, protection of himself as what was important.
Thurgood Marshall: Is there anything in the record as to whether or not he told the petitioner he was there to help him or, did he tell the petitioner anything?
Anthony G. Armsterdam: The only thing he told the petitioner was that if he did ought to say so. He did not tell the petitioner anything. The petitioner admitted --
Thurgood Marshall: Did he say that I'm here in place of your parents and to do what I can for you or anything like that?
Anthony G. Armsterdam: Absolutely not. The only thing in the record is this. At one point there is a leading question by the court as to whether the petitioner does not know that these juvenile probation officers are there to help juveniles and the petitioner says yes I know that. But if it wasn't this probation officer or anything else, now that is simply the juvenile court mistake. I think this Court need attach no significance to it. It certainly doesn't communicate helping him in what way and the respondent in this court asserts that he was not there to help and support in refusing to answer questions or assert his privilege if he felt like it. The respondent rightly points out that we have great concerns for the probation officer's role here. We think that he was heedless at the least of his role and possibly mendacious. And I say that not quite comparing his testimony with that of the petitioner, but by comparing his testimony with that of the police officers who sometimes testified that he was under interrogation three or four times as long as the probation officer admitted. And by comparing his own testimony internally which shows total heedlessness of any protective role. The question then Mr. Justice Stewart I think is that not whether any protective figure may prevent a confession from being involuntary, but whether the presence of a figure who does nothing make to stop clearly towards a police questioning, who is not known to the petitioner and to be there in a protective role and who serves no function as an impartial observer in any way, prevents and otherwise coerced confession from being found coerced, we submit that it does not.
Speaker: If you have any time left on rebuttal, I hope you use it to address yourself to your notice point in connection with the hands set.
Anthony G. Armsterdam: I will do that Mr. Justice Harlan.
Warren E. Burger: Mr. Kreiger.
Archibald Kreiger: Mr. Chief Justice, may it please the Court. If the prefatory statement made today by counsel was all that there was to this case, I am frank to say here and now that the state would confess error. But he very adroitly and I'm sure very skillfully has kept the most important, distinctive, significant fact of this entire case for the last factor and only when questioning by the court has brought it forth. The most significant fact in this case and which makes this case different from any others was anticipated by Justice Stewart when he said have this Court ever decided a question involving a juvenile where the confession was made in the presence of a court assigned representative and counsel evaded it and said so far as he knows, no. I would like to call to the Court's attention the fact that since I have written this brief, I've made further research and I would like to help the Court on this -- in this connection. In my brief at page 7, I referred to the New York statute which provides for the notification of a parent or other representative before a juvenile who has been arrested may be interrogated I have found that there is a similar statute in Arizona. It is ARS, Title 8, Section 221 and construed by the Arizona Supreme Court in 1966 in 420 Pacific 2nd 281, where the Court held that when a juvenile is arrested it is the duty of the arresting officer to notify the probation office at once and a probation officer is assigned to him and stays with him and the Arizona Supreme Court has held that this rule does not prevent the police from questioning a juvenile, it only prevents them from subjecting the juvenile to formal interrogation without permission of the person appointed and that it is consistent with the rehabilitative process of the juvenile court and to see that he is prevented from overzealous pressure. Without such a statute in New Jersey, the juvenile court judge in this case, in 1957, made such an order and I would like to give the Court very briefly the chronological factors in this case which I regret to say counsel did not give the Court and they are these. This juvenile was arrested on February 16th by the Patterson police. He was taken to the police station and I might say a prohibitive practice under New Jersey law but notwithstanding, the juvenile confessed.
Potter Stewart: And he was a 15-years and four months old?
Archibald Kreiger: That's right.
Potter Stewart: How big was he?
Archibald Kreiger: Well, Justice Stewart, I --
Potter Stewart: Does the record ever show them?
Archibald Kreiger: I never saw him, I don't know him. I only know --
Potter Stewart: And it's -- one of the witnesses referred to -- her assailant as a man?
Archibald Kreiger: Yes.
Potter Stewart: And the petitioner's brief talks about him as a child, what do you know about it?
Archibald Kreiger: Well, I'm sorry I can -- I cannot help you on that sir.
Hugo L. Black: You mean the old record doesn't show his size?
Archibald Kreiger: Pardon?
Hugo L. Black: You mean that no reference to his size in the entire record?
Archibald Kreiger: No, no, there is none sir. When arrested on February 16th, he immediately admitted several purse snatchings and admitted the method by which he had concealed these purses by burying them in the yard of a certain house where he used to frequent for other purposes. The police immediately went to the scene and dug up and uncovered these purses. He was immediately sent to the children's shelter where juveniles are detained and when these facts came to light, the prosecutors office at the same county noted some similarity between the modus operandi and these cases and the two unsolved crimes in 1956, the Wise affair in February and the Giambra murder in November.
Thurgood Marshall: Mr. Kreiger, were his parents there? Was his mother in Patterson?
Archibald Kreiger: Yes, indeed.
Thurgood Marshall: When was she notified?
Archibald Kreiger: She was notified on February the 27th or the 28th after the confession have been obtained.
Thurgood Marshall: Why not before?
Archibald Kreiger: Well, she was not notified before for reasons I cannot give you, but I have set out --
Thurgood Marshall: Don't you feel any duty to give them reason for it?
Archibald Kreiger: Well, the only explanation sir I can give is this, that there was an estrangement between the juvenile and his parents. The record does --
Thurgood Marshall: Is that a reason for not telling the parent?
Archibald Kreiger: The juvenile never requested it, never manifested any interest in his parents, in fact he had run away from home, he was sleeping in the cellar of a friend of his and in abandoned cars.
Thurgood Marshall: Oh, you said he waved the right to notify his parents?
Archibald Kreiger: I wouldn't put it in legal terms Justice Marshall, but I'm saying --
Thurgood Marshall: But don't you feel that the state had an obligation before they questioned this boy for 10 days to notify his parents what they were doing?
Archibald Kreiger: Well, I would like to first point out that the state did not question him for 10 days.
Thurgood Marshall: Well, the state held him for 10 days.
Archibald Kreiger: He had been held -- he had been held for the unrelated purse snatching, that was his original detention.
Thurgood Marshall: He was held for 10 days without notifying his parents or anyone that knew anything about him, am I correct?
Archibald Kreiger: That is true.
Thurgood Marshall: Why?
Archibald Kreiger: Why?
Thurgood Marshall: You can't give a reason, can you?
Archibald Kreiger: I can't, no I can't, but the record --
Thurgood Marshall: But you want us -- you want us to uphold his conviction?
Archibald Kreiger: The record indicates -- the record indicates that this juvenile never manifested an interest. He never asked the superintendent at the shelter to call his parents or advise them of where he was. He -- he was estranged from his parents.
Thurgood Marshall: Did you ever tell him he had the right to have his parents?
Archibald Kreiger: Well, no.
Thurgood Marshall: Is it in the record?
Archibald Kreiger: The protection --
Thurgood Marshall: What --
Archibald Kreiger: -- that the judge Shamick of the juvenile Court have afforded this juvenile by providing for interrogation only in the presence of the probation officer.
Thurgood Marshall: Did he know that probation officer was there to protect him?
Archibald Kreiger: Yes sir, he did.
Thurgood Marshall: How? Where is that in the record?
Archibald Kreiger: He was told -- he was told by the probation officer that --
Thurgood Marshall: What page is it?
Archibald Kreiger: Let me see if I can find it sir.
Thurgood Marshall: Let me get it later, go ahead.
Archibald Kreiger: Yes, I will get it and I will -- I'll supply it to you.
Thurgood Marshall: Sure.
Archibald Kreiger: On February 18th, prosecutor's office, after noting similarity between the purse snatchings for which he had been arrested on the 16th decided to interrogate this juvenile and being in the shelter they applied to the judge of the juvenile court for permission to interrogate him. The judge granted permission on condition that such interrogation take place only and at all times in the presence of a probation officer Mr. Chester Jermalowics. On February the 18th in the presence of Chester Jermalowics at the children shelter, this juvenile was interrogated and he made a slip of the tongue in which he said, they mentioned something to him about, did you ever engage in any purse snatchings on 31st street, 32nd street, 28th street and they enumerated this east side section of Patterson. And when it came to 31st street, which is where the Wise assault took place, he says, “Oh”, he says, “I have an alibi for that one.” No one asked him or even mentioned anything about Wise. And then when they came to Wall Avenue which was in back of Saint Theresa's church where bingo games were held quite often and where the victim Giambra was going the evening when she was assaulted and later died, he said, “Oh”, he says, “that girl, I read about that in the paper, I had nothing to do with that.” Well, with that as a starting point, the prosecutor's detectives said to him, Willy, would you submit to a lie detector test? And this juvenile, age 15 said why certainly he says, they are fake, they don't prove anything even when they -- you submit to them. Very well, and that's all the interrogation that took place that day. On the 21st, three days later, arrangements were made for the polygraph operator to interrogate this juvenile and the interrogation took place in an anteroom of the grand jury in the Courthouse in Patterson. The tests were submitted, not lengthy, and immediately after he was taken back by the probation officer to the children's shelter. And the polygraph operator advised the detectives who were handling this case, don't ask him or pursue any further interrogation and there was no further interrogation. In the mean time, prosecutor's office pursued their own independent investigation and they came up with the names of a few of his friends and associates. Two of them, one was named Aug and the other one was named Stafford. They interrogated them and they found out from them that this Monks had a day or two after the Wise assault which took place at East 31st street --
Potter Stewart: And that had taken place about a year earlier, hadn't it?
Archibald Kreiger: That's right.
Potter Stewart: When this fellow was 14 years old, would that be correct?
Archibald Kreiger: That's right, that's right sir -- boasted to one of his friends that he had committed that assault and he had received something like $30.00 that she had in her purse.
Potter Stewart: Were those the people who frequented the candy store?
Archibald Kreiger: Yes, yes, yes. Now, what made the Wise case interesting and which gave the police the indication that this young man was connected with this assault was that on the evening of the assault, it had been snowing and immediately after this girl had been assaulted and was unconscious, the police came to the scene and there were footprints that led from the place of the assault to a house two-and-a-half blocks away on 15th avenue and the footprints led in the back door of that particular house. During the period of investigation in 57, when this young man was not being interrogated, the police found out that young Monks frequented this place with his friends, where they would go to smoke a cigarette and do other little things of that sort, in privacy and in fact, the confession indicates that this was the place, the backyard of which he had buried the purses that he had snatched. Well, on that next occasion of interrogation, the lie detector operator was present and --
William J. Brennan, Jr.: Incidentally, was he a police officer?
Archibald Kreiger: Pardon?
William J. Brennan, Jr.: Was he a police officer?
Archibald Kreiger: No, he isn't.
William J. Brennan, Jr.: Employed by the police department?
Archibald Kreiger: No, he is Mr. Arthur who is associated with the Reid Associates who are lie detector operators. I think they have offices in Chicago and New York. Incidentally, Mr. Reid is coauthor with professor Inbau on a lie detection and interrogation, one of the books cited by the former Chief Justice Warren in Miranda. On the 26th of February, which was the next occasion, Mr. Jermalowics went to the children's shelter in the morning of that day, I think around 10 o'clock or so. He picked up Mr. Monks and he brought him to the Courthouse and it is true that he was interrogated a little bit, not too much. He was again subjected to lie detector tests not quite a few but a minute, two minutes, five minutes, nothing extensive, nothing to wear out this young man or to use the language that this Court has used quite often in these -- only in these two juvenile cases that I know of. Hailey and Gallegos. There was nothing in this case and this record doesn't show the slightest, callous disregard of the right of this juvenile and bear in mind that in 1957, the criminal law annunciated by this Court was not what it is today. In fact, we claim --
Thurgood Marshall: When was Hailey --
Archibald Kreiger: Pardon?
Thurgood Marshall: When was Hailey decided?
Archibald Kreiger: Hailey was 48, 1948.
Thurgood Marshall: I thought so, I thought it was before 457?
Archibald Kreiger: Yes, but I see and I have stated, there is the only similarity between Hailey and this case is that they were both 15 years of age, because in this case we claim and the record shows unless you disagree with methods that the methods of the police in the interrogation of this juvenile were fair, reasonable, penetrating, and with an attempt to find out whether this young man was involved in this heinous offense of murder. Nothing wrong about that, a fair instrumentality in criminal investigation. We state that the purpose of this probation officer were several. First of all, to allow interrogation, and to prevent overzealous pressure, to see to it that the interrogation was fair and that he was not tired, deprived of refreshment, rest or relief. The right to interrogate this juvenile granted by the juvenile court did not require that the probation officer act as his counsel, tell him what questions to answer, and what questions what not to answer. The fact is, that during a particular law when the proceedings, when the detectives went to the other part of the room and were conferring about things and trying to piece together various things that had already been developed, the probation officer sat alone with this juvenile and he said to him Willie, he says, I don't want you to say anything to these police officers unless it's the truth and I don't want you to worry about this because let your conscience be your guide. I see nothing wrong about this kind of advise to a juvenile from a probation officer because bear in mind that even up until the first decision of this term -- of this Court -- by this Court in this recent case involving the Nebraska statute on juveniles as to whether there was a right of trial by jury which this Court did not deem necessary to decide, Justice Douglas in his opinion said that the juvenile Court is still setup for the purpose of rehabilitation and has not yet become a Court for the trial of juvenile criminals and in 1957, the viewpoint whether good, bad or indifferent was clearly consistent with that policy. Now, what else was this probation officer designed to do?
Potter Stewart: What were the circumstances under which the court appointed this probation officer to accompany the petitioner?
Archibald Kreiger: An application was made by the prosecutor's detectives to interrogate this juvenile because he was in custody at the juvenile -- at the children's shelter.
Potter Stewart: So that the prosecutor's detectives had to apply to a judge or to a court --
Archibald Kreiger: Yes, sir.
Potter Stewart: -- for permission --
Archibald Kreiger: Permission.
Potter Stewart: -- to interrogate this juvenile who is in the juvenile center?
Archibald Kreiger: And the court granted permission providing that the probation officer was present at all times during interrogation. Now, much has been made by petitioner --
Thurgood Marshall: Is it correct that he was there for the purpose only to see that the boy was not brow beaten or exhausted in any way?
Archibald Kreiger: Well, that's true.
Thurgood Marshall: Well, that's what the officer said.
Archibald Kreiger: That's what the officer said.
Thurgood Marshall: And he wasn't there to advise him of his rights?
Archibald Kreiger: Precisely.
Thurgood Marshall: And he wasn't there to aid and comfort him? He is just to make sure they didn't beat his brains out?
Archibald Kreiger: Well, they didn't beat his brains out Justice Marshall. There isn't a word in this record expressly or by fair inference.
Thurgood Marshall: I agree with you fully, but my whole point is, this is his testimony that he was only deceived that he wasn't brow beaten. There was nothing to say to him that he shouldn't be questioned for a long periods of time. This man is not trained in the law at all. He has a degree in pharmacy. This man does advice in this work.
Archibald Kreiger: And he was a probation officer for 15 years, assigned to the --
Thurgood Marshall: A degree in pharmacy to advise this fellow of his legal rights?
Archibald Kreiger: But how about his experience as a probation officer and handling the juveniles for 15 years --
Thurgood Marshall: Do they have any of the --
Archibald Kreiger: -- which gave him great competence in the understanding of the probation process.
Thurgood Marshall: But he had no time to tell this boy that you don't have to take that lie detector test?
Archibald Kreiger: He didn't advise this boy, he was not there as his counsel.
Thurgood Marshall: If he take -- but didn't you just say he told him that you be good and get this out of your chest and all, you call that counseling?
Archibald Kreiger: Tell him to tell them -- to tell the truth.
Byron R. White: That is not counseling.
Archibald Kreiger: I don't call that counseling.
Byron R. White: [Inaudible]
Archibald Kreiger: I don't call that counsel.
Byron R. White: What is it?
Archibald Kreiger: Because gentlemen, if this young man had a lawyer, this juvenile would never have uttered a word and this would have been and remained an unsolved offense because I don't still think that a juvenile should receive the advise or the same kind of advise that a mature person should receive when it comes and bearing in mind his future development. For whatever it's worth, in a case cited in my brief, Chief Justice Weintraub of the New Jersey Supreme Court wrote a concurring opinion in this Carlo, we call it state in the interest of Carlo, cited in my brief, where he stated that when in comes to juveniles and the advise should he receive it would be incongruous for his parent if he is present at the time of police interrogation to advise this young juvenile not to talk, to remain silent because among things in the development of character and personality as Chief Justice Weintraub said is the lesson which a juvenile must learn early to face the music and he didn't think and he stated in his viewpoint in dealing with a juvenile that the same kind of advise should be handed to a juvenile as would be given to a mature person, bearing in mind the fundamental difference between the juvenile and rehabilitation process and the process of the criminal law and they are still distinct.
William J. Brennan, Jr.: What goes on in New Jersey now when they arrest a juvenile?
Archibald Kreiger: I didn't get that.
William J. Brennan, Jr.: What goes on in New Jersey now when they arrest a juvenile? If he had been arrested today would he had been given the Miranda?
Archibald Kreiger: The Miranda, he gets the Miranda warning, he does sir, he does.
Hugo L. Black: He gets what?
Archibald Kreiger: He gets the warnings required by Miranda.
Byron R. White: And he also doesn't testify in the proceeding unless he wants to, does he?
Archibald Kreiger: That's true.
Byron R. White: And that didn't used to be so?
Archibald Kreiger: That's true sir.
Byron R. White: And so, the Gault decided that, didn't it? The Gault made that much difference?
Archibald Kreiger: That's true, that's true. I don't think that Gault has so overshadowed the entire juvenile process that it has, as Justice Douglas said, converted the juvenile court into a trial for juvenile criminals. I don't think that has yet happened, whether it will or not, the future will determine that factor. The -- the fact is --
William J. Brennan, Jr.: Well, I thought you said it was a matter of interrogation that if you tell him he is entitled of counsel now and he said I want one you have to appoint one, wouldn't you?
Archibald Kreiger: That's right. He gets me, he gets one.
William J. Brennan, Jr.: I see.
Archibald Kreiger: The fact is in our judgment that most of the argument of the petitioner in this case has been what I would choose to describe an inflation of the significance of what are not such serious matters or as the phrase has once been, there has been an abundant resort to labels in this case. Labeling everything that has happened here as being of a terrible nature and trying to put them all together and to come up with the phrase, a callous disregard of the rights of this particular accused in order to justify and finally come up with the description that there was an involuntary or a coerced confession. I submit gentlemen that what has been happening here by the petitioner's description of the various acts that are in this record and that are lively -- likely as well to be innocent and free from the terrible connotations placed upon them was the imposition of what one of the former justices of these Court referred to as the tyranny of labels. We think that in this case, the presence of the probation officer, the overall conduct of the police in their interrogation which was fair, reasonable, humane, inhuman and civilized did not add up to such a destruction of the will or such an overbearing of the ability of this juvenile to withstand the interrogation as to constitute an enforced coerced or wrung out confession. We think that on the total record and on the totality of all the circumstances taken together without fragmentation or isolation that in this case, there was no callous disregard of the rights of this juvenile, but that there was a fair, reasonable, and decent regard for his rights and that this confession in this case was voluntary and should be sustained.
Speaker: Is this [Inaudible] provided?
Archibald Kreiger: Yes, he is, and I might say this Justice Harlan, he has come up for parole three or four times and he has been turned down on the basis of poor adjustment and I can also say this, this record has facts in here that are a little cloudy as to why a 1957 adjudication finally came before the appellant division in New Jersey in 1968 and I think you're entitled to know why. In the first place there were two court reporters in this case. Immediately after the adjudication of delinquency, one of them was called to the service and immediately sent overseas. So for three years there was an inability to get the part of the transcript prepared which this reporter had taken. And we have in New Jersey, an appeal -- a notice of appeal have been filed and we have in New Jersey a practice where periodically the clerk issues a show cause for a dismissal of cases which have not been prosecuted as the rules require and I know I was in the office on each of these occasions. This young man would be consulted and would consult his Counsel, would go and see him at the board and town reformatory where he had been committed originally. And he would say to his counsel I don't want to go through with this appeal yet but see if you can hold it off because I'm coming up for parole and I don't want this to interfere with my parole. Well, the court wouldn't dismiss the appeal, would accept this. Before you know it time runs by. In 1967, he was transferred from the board and town reformatory to state's prison which I call the post graduate elevation where he undoubtedly met jail house lawyers and who aided and assisted him in filing pro se in the appellant division in August 1968, an application to revive the appeal which had been suspended and to proceed and it was granted. Counsel is assigned, case was argued, appellant division decided it and so it went and here we are.
Byron R. White: Can I ask you, absent on any investigation of the Wise and Giambra affairs and he had just been -- had just admitted those other purse snatching which he had just admitted, what would have been the normal course of dealing with him? Would he have been detained until those charges were heard by the juvenile judge or would he have been --
Archibald Kreiger: Well, as a matter of fact what happened Justice White is that on March 20th he was committed by the judge of the juvenile court for the purse snatching for which he was arrested on February the 16th, the board and town reformatory, for an indefinite term. And it was while he was in board and town and after he had -- their complaint had been filed against him for Wise and Giambra, in December he was brought from Board and Town Reformatory to the Courthouse that sheltered --
Byron R. White: Or would he normally have been detained on those other charges?
Archibald Kreiger: Under New Jersey law, he would be detained for such period as in the judgment of the board of managers at Board and Town Reformatory thought him to be ready to be rehabilitated.
Byron R. White: No, what I mean -- when a juvenile is charged with -- he's arrested and charged with the purse snatching and he admits it.
Archibald Kreiger: Yes, Your Honor.
Byron R. White: Between then and the time of the hearing, the delinquency hearing, what happens to him?
Archibald Kreiger: He is detained at the Children's Shelter or he may be released in the custody of his parents or he may be released --
Byron R. White: But why was this young man detained?
Archibald Kreiger: Why he was detained after February 16th is because on March the 8th this -- or March the 2nd or 3rd, the complaints were filed in Wise and Giambra and Counsel was assigned to him.
Byron R. White: But why was he detained during these 10 days?
Archibald Kreiger: Just as a matter of -- for --
Byron R. White: I mean if there haven't been any investigations of Wise and Giambra, would he have been detained?
Archibald Kreiger: By that I don't know sir. It all depends upon -- it all depends upon the judge of the juvenile court and the state of their calendar and the circumstances and he might have been detained because of his prior involvement in other juvenile offenses where he had been involved and likewise, it might had been made against him by his parents for having runaway from home so that this young man was not the ideal youngster for release to the streets. Thank you.
William J. Brennan, Jr.: Mr. Kreiger before you sit down, what does life mean in New Jersey now?
Archibald Kreiger: Well, life in New Jersey means you are eligible for parole after 13 and a half years and he has practically served that. Although in this --
William J. Brennan, Jr.: And ordinarily I gather you are released, aren't you?
Archibald Kreiger: In this instance as a juvenile -- as a juvenile, he was eligible for parole before 13 and a half years. In fact as I say, he has been up for a parole set up as much as I know four times.
William J. Brennan, Jr.: You're suggesting that the chances are that he can in fact, he'll not serve more than about 13 and a half years, is that it?
Archibald Kreiger: That's my best judgment, that's my best judgment.
Byron R. White: And Giambra is the only thing in issue here, he has served his Wise's time --
Archibald Kreiger: Yes, indeed.
Byron R. White: -- of five years?
Archibald Kreiger: Under the 1958 Act which was held retroactive even though he was adjudicated in 1957 because it was beneficial to the juvenile and not harmful, because for the first time it did away for indeterminate sentences in the case of juveniles and provided for fixed terms not to exceed age 21 except in homicide.
Warren E. Burger: But Mr. Kreiger --
Archibald Kreiger: If the Court cares for argument on the second point dealing with the question as to the validity of the life sentence, otherwise, I would rely upon my brief in the argument contained in the --
Warren E. Burger: We'll take that on your brief.
Archibald Kreiger: Thank you.
Hugo L. Black: May I ask you if the record show somewhere the number of times this young man had been arrested and what had happened to him or is there anything in there about that?
Archibald Kreiger: Justice Black I'm sure -- you will find that in the trial transcript that's on file with the clerk of the Court because this appendix was an abridged matter.
Hugo L. Black: Was what?
Archibald Kreiger: Was abridged by agreement between me and counsel for the petitioner, but the facts concerning his prior involvement are in the transcript of the entire trial which is on file with the clerk.
Hugo L. Black: On file with our clerk?
Archibald Kreiger: Your clerk.
Warren E. Burger: Thank you, Mr. Kreiger. Mr. Amsterdam, you have about three minutes and I believe Justice Harlan had a question pending for you.
Anthony G. Armsterdam: If I may just advert briefly into the questions the Court ask in the statements of Mr. Kreiger, I have five very short factual matters and I'll get to Mr. Justice Harlan's question's aspect. First with regard to Mr. Justice White's question. Mr. Kreiger stated initially that during the 10 days, the boy was being held on those other purse snatching, he then admitted in effect that that was not so. There was nothing in the record that will support the contention that he was being held in connection with other purse snatchings. The record states nothing --
Byron R. White: But he was arrested for them?
Anthony G. Armsterdam: He was arrested for those, that's right.
Byron R. White: He was taken and then he was detained at this very period?
Anthony G. Armsterdam: He was taken into custody, correct, but as Mr. Kreiger has stated, New Jersey law would leave unclear whether he should be released under that situation and the clear implication here is that he was held because he was being investigated for the Wise and Giambra matters. Secondly, Mr. Kreiger's statement that the boy was estranged from his family and that that explains to Mr. Justice Marshall why the mother wasn't called. The mother had contacted the police two or three times, the juvenile authorities more asking that this boy be brought home when he was picked up and both the police and the juvenile authorities knew that and the parents were not contacted. Third, in response to Mr. Justice Marshall's question about whether he was told about the probation officer's role. Mr. Kreiger has said that he will file something responsive to that, I think the Court will find at pages 200 and 201 of the appendix all that there is. It supports my statement that he knew that the probation officer was a probation officer, had been assigned to “Stay with him” and that's it. Finally, -- no, two more points. First, Mr. Kreiger's statement as to what the probation officer told the boy. This is on page 90 of the appendix and this is supposed to be good probation officer advice. I took advantage of one of the respects in questioning, one of these episodes to ask the boy that if he really knew anything about these offenses that he should unburden himself and search his conscience and that he would feel much better if he told it because he would have to live with it the rest of his life, the sort of counseling I would give any boy in the juvenile Court. That's the support and assistance of the probation officer. Finally, with respect to Mr. Justice Black's question. I think Mr. Justice Black that you will not find in the record, the original record any indication of a number of prior incidents of this boy. The record only shows that he was a probationer of the juvenile court at the time that he was picked up here. It shows nothing about the number, frequency, reasons for his being in probation. There is no such thing in this record. Now, if I may --
Potter Stewart: And in response to question, the record shows he was five feet eight inches tall.
Anthony G. Armsterdam: Pardon me?
Potter Stewart: In response to my question the record shows he was five feet eight inches tall.
Anthony G. Armsterdam: I believe that that's right.
Potter Stewart: That's what he said he was about.
Anthony G. Armsterdam: I believe that's correct. Now, if I may speak very briefly having only a minute left to Mr. Justice Harlan's point. We think that the sentencing question is a fairly straight forward application in respect in Patterson with one wrinkle. There is no doubt that when this boy's maximum sentence was determined subsequent to his original trial that a finding was made which was neither required nor in fact made at the original juvenile trial, which was that he was adjudicated a delinquent on the basis of an offense which would be first degree murder. That involves findings not made at the time of the trial, within the meaning of Speck, a new fact. Under New Jersey law, evidence is admissible going to that fact, such as evidence of diminished capacity, in this case psychiatric evidence which was not put in by his counsel as it should not have been at the original trial since it didn't matter what degree of homicide. He was found guilty of as a juvenile prior to the new statute. Now, the only question therefore is whether or not Speck applies if the new finding of fact is required not by antecedent legislation, but by subsequent legislation which state law chooses to make retroactive. As far as I can see that makes no difference whatever. It is the state of New Jersey which has chosen to said that a differentiation between two classes of people should be made, those who have been found guilty of first degree of homicide and those who have lesser degrees. The difference is critical. The difference in this case was the difference between six years in prison, this boy would have been released sever years ago, and a life sentence, that fact is a critical fact it was not an issue. The state has put it in issue by the new legislation and we think that the petitioner had the right to hearing on it.
Potter Stewart: What was the juvenile proceeding in which he was found to be a delinquent? What was his defense?
Anthony G. Armsterdam: The juvenile delinquency? The charges were --
Potter Stewart: No, I didn't say offense. I said how did he defend the charge or the -- what did he have to say about the question of whether or not he was delinquent at that procedure?
Anthony G. Armsterdam: Not guilty, I didn't do it, but that went --
Potter Stewart: Did he have an alibi? Did he say he was somewhere else?
Anthony G. Armsterdam: Yes, an alibi that's correct. However I want to make very clear that I disagree with the state entirely that that is inconsistent with diminished capacity because you don't have to admit anything to show the juvenile judge or your jury what the nature of the defendant is. It's not like the defense of consent in a rape case which isn't consistent with alibi. To simply show the Court that they're dealing with a juvenile who may be defective, retarded. Remember, the court here ordered psychiatric treatment for this boy when it originally committed him, simply tells the court that if he did do it which he says he didn't do that he hasn't got the capacity to be guilty of first degree murder. No inconsistency there, any good trial there could present those two facts.
Potter Stewart: Well, that's my question and second -- my second question about that proceeding is what was the burden of proof required to show his delinquency in that proceeding under New Jersey law?
Anthony G. Armsterdam: In the initial proceeding --
Potter Stewart: In which he was found to be delinquent?
Anthony G. Armsterdam: I must admit I do not know the answer to that question. Perhaps Mr. Kreiger could enlighten you.
Potter Stewart: Whether it was a --
Anthony G. Armsterdam: No issue has been made of this below and --
Potter Stewart: Was it the duty of the state to prove his delinquency beyond a reasonable doubt?
Anthony G. Armsterdam: I have -- All I can say is to that I'll be glad to find it out and submit unless Mr. Kreiger knows the answer to that question, submit it to the Court and write it. No issue of it having been made below, I do not know the answer to that question.
Warren E. Burger: Thank you Mr. Amsterdam, Mr. Kreiger. The case is submitted.