Earl Warren: Number 323, United States of America versus Earl D. Handy. Mr. Margiotti.
Charles J. Margiotti: Yes, Your Honor. Please Your Honorable Court. This is an appeal from the Third Circuit of Pennsylvania in which a decision of board of three -- by a decision board of three, a decision of the District Court refusing the petitioner a writ of habeas corpus. I'll the give the Court some history of the case only as it pertains this particular matter because the killing in the case occurred in December of 1947, the particular petition giving rise to this appeal was not filed until April of 1951 and prior to that time means -- other -- other appeals have been taken to the Supreme Court, the matter had come to this Court too, under the (Inaudible) case and there's no necessity in going into that history unless the Court is interested and if it'd be hard -- had the -- for I'll answer any particular question that is asked. So, I'll begin particularly with the filing of the petition. A petition was filed before his Honor, Judge Murphy of the Middle District to Pennsylvania at Scranton. The Commonwealth of Pennsylvania although served with the copy of the petition, did not file an answer. In that petition, for the first time were raised three important questions, all based upon the fact that was claimed by the petitioner that he had been deprived of a fair and impartial trial in violation of -- of the Due Process Clause of the Fourteenth Amendment. Now, those facts were not facts that appeared on the record at the time. The Court had a transcript of the proceeding of the trial. But there was nothing before the Court on the very questions that were raised of the petition. As I said, the Commonwealth filed no answer to that petition and fixed the -- the judge fixed the date for a hearing or for argument rather, and I was required to go from Pittsburg to Scranton by automobile, encountered an unexpected detour that took me a little more time.I was late 20 minutes. When I got to Court I found that the judge had decided the case and had -- had denied the writ without any answer filed on the part of the Commonwealth to the various allegations of the petition. And then after -- and he wrote an opinion. And after the opinion was filed, about a week or two after the opinion was filed, the Commonwealth filed an answer, nunc pro tunc, in connection with the petition. There was an appeal taken to the Circuit Court of Appeals. On that occasion by a decision of four-to-three, the case was remanded to the same judge to hear the facts on issues raised by the averments of the petition, although, denied by the Commonwealth. And so, we proceeded to a hearing before his Honor, Judge Murphy, the same judge, which lasted about eight days in which much testimony was taken. At the time the first petition was filed, it was contended by us by the petitioner that the defendant had received an unfair trial in this regard. That he was not, while he had counsel, although counsel had been employed by his father, that counsel paid no attention to the case and interviewed of about a half hour. And that -- that he did not prepare the defense, didn't introduce any defense, told the defendant he was not required, not going to take the witness stand and he made the decision for the defendant although it was necessary for him to go on. Didn't introduce any character evidence, evidence was available. And didn't introduce any psychiatric test upon that question was involved. So, we raised the question at the -- the trial was a sham trial with no defense at all. We also raised the question, he was tried in a -- a -- an atmosphere of his theory and that he could possibly get a fair trial under the circumstances. And furthermore, that a judge who had tried two codefendants on the case, Judge Boyer, had been guilty of such misconduct as to deprive the defendant and petitioner of a fair and impartial trial. Well, then that case was disposed of by the Circuit Court. They returned us to the same judge to present the facts. They eliminated the question of the ability of the trial lawyer, the defense lawyer, as to whether or not he really gave to this defendant a -- a fair trial himself, now, whether he had -- act as a lawyer should do on his behalf. Now, the only reason I'm quoting that is because, while they eliminated that question, we took out all evidence on that question at the hearing before Judge Murphy. And yet in the opinion that followed from which we have appealed, they refer several times to the fact that the defendant had a good trial lawyer. That his lawyer didn't do this and his lawyer didn't do that. And so, in one instance, when we raised the question, we're told we can't raise it. And when we don't raise it they say he was a good lawyer. And so he's out of the question. I am only calling that to your attention because that question may arise during the course of this argument. And we confined ourselves to the two questions which is, of course, that it was the mandate of the Circuit Court required us to follow. And that was first, whether there was such a -- such a -- such prejudice to us to do the exterior in the community that deprived the defendant of an unfair -- of a fair trial. And second, the misconduct if any of the so-called -- of the so-called misconduct of Judge Boyer who had tried the previous case. And so, the evidence was presented around these two questions. Now, in order to make my position clear, I'll give you only a short statement of the facts just enough to know what the killing, how the killing occurred. The defendant was 22 years of age up until the time he admit. Three other defendants had borne a very good reputation and had been a good boy. He was a son of a tipstaff of a court in Philadelphia, Judge Brack's tipstaff and he had been mentally afflicted and had some mere trouble, but he met with this bad company. And they engaged in some robberies, several of them, maybe 10 or 15. I don't remember the exact number prior to this particular one. On this occasion while he was at home, asleep, they went awakened him and he went with his companions to the scene of the killings. Now, what happened there was that they went in to an inn called the Feasterville Inn -- Feasterville's Inn. There they held up a bartender and rifled the cash register. There were some shots fired on the inside but nobody was killed. And -- although someone died years later beyond the statute of limitations. However, I have pointed the year and the day afterwards whether he died as the result of the shot or not, I don't know. But that's not involved in the case. But as the four were leaving the Feasterville Inn, the Zeitz, the leader of the organization, driving the automobile with his one hand on the car and the other, he fired a shot out the window and he shot at a bystander named Kelly and killed him. The defendant was in the car at the time. Now, he had participated in the robbery and participated, of course, getting away from there, that's what he was doing at the time. And under the law of Pennsylvania, a killing that occurs in perpetration of robbery, is murder of the first agree. And furthermore, the jury hearing the case has the duty to fix the penalty if they find a person guilty of murder in the first degree, either a death or life imprisonment. And --
Earl Warren: Does the record show whether this defendant did any shooting that night?
Charles J. Margiotti: The record so far as, I think, that is someone -- some witness testified that he was supposed to have shot into the floor or shot in the direction of somebody. But you mean in the inn -- it -- at the inn, not outside the inn, no.
Earl Warren: Either in the killing of the man or in the shooting of the -- of the man in the -- in the bar he held up.
Charles J. Margiotti: No, he did not shoot at the man at the bar. The record does -- does not show that he shot at anybody.
Earl Warren: Did he do any shooting on that occasion?
Charles J. Margiotti: Well, I -- I know you're asking -- asking me that question. I know from talking to him that he told me, he shot into the floor.
Speaker: (Inaudible)
Charles J. Margiotti: But that, I don't know whether that's in the record or not. I don't think it is. Because he didn't take the stand and that's what he would have said if he have taken the stand.
Earl Warren: What was he shooting for?
Charles J. Margiotti: Fright -- frightening other bystanders who were going toward them to stop them from coming toward -- but he did not shoot at any individual and he was not -- did not shoot the man that was killed. At least the person whom he's tried. Now, furthermore, in Pennsylvania where four -- where two or more persons are charged with murder, indicted with murder, they have -- the right of severance is given to them as a matter of right to the question of discretion in the Court at all, a matter of right just to protect the defendant. In this particular case, our question came up. The judge expressed the opinion that he hoped that they wouldn't ask for such a severance because it would cause the county an awful lot of money and to take a lot of time, and said so in open Court at the time the matter was heard. But at any rate, it was insisted that there was a severance. And so there was severance granted and the defendant obtained a trial by himself. So, they put the first persons, call for trial, were two, Foster and Zeitz. Now, Zeitz is the man who fired the shot and the four, of course, Foster did not fire any shots at all but he was in-company with. And they were tried together. And immediately thereafter, bear in mind, not a week or two afterwards, but the very next trial there, after the result of the first case, this defendant was put on trial. That the trial terminated on Friday. They couldn't try him on Saturday or Sunday, but they put up on trial on Monday morning, June the 4th. June 4th was the date and he -- when the trial began -- or June the 7th, pardon me. Now, the -- we showed at the time of the -- in our hearing to show our prejudice and feeling. We showed evidence from publications of newspapers both daily and weekly newspapers. Bucks County is a county that has small communities in it. Doylestown, I believe, is the largest but Doylestown and Bristol are probably the largest towns in it. And most of the county is rural. And there are numerous -- there are several daily papers, the one daily paper of several weekly papers. But the Philadelphia Metropolitan paper, the county is next to Philadelphia, circulate quite freely in Bucks -- in Bucks County. Now, we showed by publication that there was much publicity. That the people of the county had become indignant over this killing. And I can understand it because of the nature of the crime. And that they referred to them as bandits and trigger-happy boys and thugs. They were boastful and they were callous. They were holdup men. They were gangsters. They particularly referred to them as being Philadelphians and they had not business crossing county lines and coming into Bucks County where decent people lived. They were hard boiled and many statements of that kind. And then, there were many editorials calling to the attention of the -- of the people, the duty of jurors in cases of this type, what they were required to do. And showing that in many instances jurors were with these and would not perform their duty. And complementing jurors who did perform their duty. And there were -- there were radio -- radio statements and television shows for the put on and there were in addition to -- to this publicity we called --
Earl Warren: What do you mean by television shows? What do you mean television shows?
Charles J. Margiotti: Well, they'd put television pictures of -- pieces of pictures of the individuals or some television accounts of the --
Earl Warren: Accounts.
Charles J. Margiotti: And that's what I mean. I didn't mean of the particular case. That --
Speaker: (Inaudible)
Charles J. Margiotti: No, they did not, Your Honor. And that's one of the things I complain about the other lawyer. And they say, why didn't he ask for a change of venue.
Speaker: (Inaudible)
Charles J. Margiotti: What's that Your Honor?
Speaker: (Inaudible)
Charles J. Margiotti: Well, I think he should have been under the circumstances just as Your Honor apparently is asking questions. The -- and as the -- the majority opinion here says that they should. Substantially that too, and I'll come to that, Your Honor. Now, the -- the judge who tried the case of Foster and Zeitz issued at the conclusion of the trial and was charged, told the jury that in his opinion the evidence warranted the death penalty, murder of the first degree and the death penalty. That was his -- his conclusion, his -- his opinion but of course at the end left the finding to the jury. And the --
Speaker: This -- this is at the first trial?
Charles J. Margiotti: First -- this trial of Foster and Zeitz. And that was published, Your Honor. That was published just before our trial began. In addition to that, and this is very, very serious, when the jury returned its verdict on Friday, the judge in open court praised the jury. Now, he told the jury that he couldn't see how they could have rendered any other kind of a verdict and it was a proper verdict. Now, what made matters worse, the daily paper published to that -- that community. In headlines and big headlines heralded the story, "Judge Praises Death Verdict." I call that to your attention in order to show that this was part of Judge Boyer's conduct. This is the beginning of something that I'm going to follow up with because it involves his participating in the trial of the petitioner. And that's the reason it's important. Now, the Philadelphia -- the Philadelphia Bulletin on June the 8th, which is the second day of the Darcy trial that -- which was the day when the jury was finally selected issued a -- wrote a -- carried an article complimenting the -- the jury of Doylestown in Bucks County for having rendered a verdict of murder of the first degree and showed it was an -- vindication for women being on the jury because there were some women on the jury.
Felix Frankfurter: Mr. Margiotti, I assuming you know you have only an hour for you whole argument --
Charles J. Margiotti: Yes, sir.
Felix Frankfurter: -- and I would like to know if you could tell us on what you rely for a reversal in this case because that's the proceeding, isn't it?
Charles J. Margiotti: Yes, Your Honor.
Felix Frankfurter: Now, what is it?
Charles J. Margiotti: I am relying on reversal --
Felix Frankfurter: Is that --
Charles J. Margiotti: -- in this case, the -- on the fact that the -- on the totality of the evidence involved in the case, a reading of the two opinions, the majority opinion and the minority opinions. The minority opinions, which are very strong, one by Judge Kalodner and one by Judge Biggs, the Chief Judge. Both -- both expressions, I think, a reading of those two opinions.
Felix Frankfurter: Is that all we have to do then?
Charles J. Margiotti: It's -- it's more important than listening to all our arguments. I think you can get it right from those two opinions, and I mean that.
Felix Frankfurter: Now, apart from those --
Charles J. Margiotti: Except one thing.
Felix Frankfurter: -- well, apart from those when you said the totality, you mean that the whole trial --
Charles J. Margiotti: I mean --
Felix Frankfurter: -- and we have to understand it?
Charles J. Margiotti: I mean the entire picture.
Felix Frankfurter: You've go to be a little more specific.
Charles J. Margiotti: I mean the entire --
Felix Frankfurter: You really mean -- you mean this is what will give the chance to put as an evidence of the cross-examination, all those speeches?
Charles J. Margiotti: No. I -- I don't mean --
Felix Frankfurter: (Voice Overlap) --
Charles J. Margiotti: I don't mean that I mean --
Felix Frankfurter: (Inaudible)
Charles J. Margiotti: I mean -- I mean this -- this question of the -- of the publicity, the prejudice that existed. That plus the conduct of the judge.
Felix Frankfurter: Well that the main reliance of the defendant is on the latter, isn't it?
Charles J. Margiotti: No question about that.
Felix Frankfurter: Well, is that true of your case?
Charles J. Margiotti: No question.
Felix Frankfurter: Do you want, or you think?
Charles J. Margiotti: I -- I do, principally, Your Honor, I think you're right.
Felix Frankfurter: Well, I'm just right or wrong, I'm -- I'm just (Voice Overlap) --
Charles J. Margiotti: No, I mean as to what -- when you asked me whether this is true in my case. I meant to say that. See that's what I meant with that answer. I think that's correct but I'm -- I'm about (Voice Overlap) --
Felix Frankfurter: All I'm suggesting since your time is short, you better not be (Voice Overlap) --
Charles J. Margiotti: Well, I - I'm going --
Felix Frankfurter: -- on the certainty as to what it is your claiming, and what your answers are.
Charles J. Margiotti: I'm satisfied that I'm going to get to it and get to it in plenty of time, Your Honor.
Felix Frankfurter: All right.
Charles J. Margiotti: And now, in addition to all these, we called numerous witnesses, preachers and businessmen and doctors and others, people in all walks of life to testify that they've heard in the community that the testimony, that the -- the men ought to be hanged. That they should be hangup like rats. That they should be -- they should not receive any -- any trial at all. That they ought to shot and all sorts of expressions of that kind. Now, there was no contradiction as to the publicity. There was no contradiction as to these statements by -- that appeared in the newspaper about the trial judge. And there was no contradiction of the witnesses who testified. The Commonwealth relied simply on the question that all this did not amount to something that they -- they -- did not amount to some violence that we had not shown. That there were gatherings of persons who were armed or who had threatened to go to the jail or go to the courtroom and raise a disturbance. And we haven't showed any disturbance. And that's the only answer there was to all that.
Earl Warren: Well --
Charles J. Margiotti: Now --
Earl Warren: -- what -- what do we --
Charles J. Margiotti: -- we go to the --
Earl Warren: -- what did the District Court that heard this habeas corpus proceeding find on those questions if (Voice Overlap) --
Charles J. Margiotti: Well, Your Honor please. The best answer to that will be in the opinions, now and I'll come to that and everything. Because this -- there's a lot. There are four volumes here and a lot of time could be taken up but I think I'll go right to the findings of the majority opinion. And I think probably that's -- that's the best thing for us.
Earl Warren: Did the District Court make any findings?
Charles J. Margiotti: Oh, yes.
Earl Warren: Well, what did it find on this? What -- we're -- we're bound somewhat, are we not by the findings of the District Court?
Charles J. Margiotti: Just what I've said. The -- the -- they'd found -- absolutely said that the -- there was no hostility. That there was no -- no threats of violence and that there were no mobs. That there were no gatherings. There was no violence exhibited and based his opinion on that.
Earl Warren: Did he not mention any of the other things --
Charles J. Margiotti: Not at all.
Earl Warren: -- as you mentioned or say?
Charles J. Margiotti: Now -- now, here --
Earl Warren: Did he find out whether the trial was fair or not in -- in his opinion?
Charles J. Margiotti: What's that, Your Honor?
Earl Warren: Did he find whether the trial was fair or not?
Charles J. Margiotti: Oh, he found the trial was fair. He found the trial was fair even without the Commonwealth filing an answer, Your Honor, because in the first opinion when we had alleged the same things, -- where is this? Oh, here. Now, here's the -- like I call your attention, Your Honor, to page 1248, Volume 4 of the -- of petitioner's transcript of the record. He said that the -- the Circuit's or the Court says, "That most it indicates that during two weeks" and, of course, we contend that all these feeling became more intense because it published all the testimony of the case during the other trial, and was done during, just immediately before the defendant was put on trial. That -- that most it indicates that during the two weeks, immediately preceding the relator trial, the community in general, had experienced a revival and quickening of interest in the homicide attended by many expressions of indignations against its perpetrators. But it does not appear that feeling ran so high that hostility towards the relator was so intense and so general as to make it seem incredible that the search for a satisfactory jury would yield 12 persons as open minded about this case as the juries here claimed to have been. The situation certainly would have justified a decision to wait a while before trying the relator and I've asked, Your Honor, Judge -- Judge Minton and -- or else to try him in another community if, Justice Minton pardon me, if trial immediately after conviction of his confederates was deemed important. We may be persuaded that in the circumstances it would have been wise to take such precautions. If not convinced, the failure to follow up that the wiser course was a denial of the absence of a fair trial. Now, that -- that was what the -- what the majority of the -- the majority opinion said on that question. And the -- Judge Kalodner didn't refer to that at all in his dissenting opinion and Judge Biggs -- and Judge Biggs' opinion he said which is not very long but very short into the point, said Darcy was tried -- Darcy was tried -- Darcy's trial was so distorted by circumstances both in and out of the courtroom has to result in the fundamental -- in fundamental unfairness. The brutal crime committed by Darcy, Foster, Zeitz and Capone had angered the citizens of Bucks County by editorials, new stories and comments. The press prejudiced Darcy's case and prejudiced the minds of the citizens that were against them. I cannot believe that all members of the jury remained uninfluenced by these publications. So, Darcy had been granted a separate trial. The service was worthless when it was proceeded with only three days after the -- that this proceeding was only three days after the other trial. Now, then that's what was said on the question of publicity. Now, comes the question of the conduct of the judge. And that is probably the most important thing in this case. Judge Boyer, by the way in that -- in that county, they do not wear robes. At least they weren't at that time. There were two judges, Judge Boyer had tried the Foster-Zeitz case and Judge Keller was trying the defendant. And the -- Judge -- Judge Boyer was a well respected citizen. He'd been elected twice. He'd been District Attorney of the County. He'd been appointed District Attorney and elected District Attorney and he's a pretty well known citizen there. Undoubtedly, he carried a great deal of weight. Now, his statements about the guilt of the defendants and particularly where you have a question of the -- the death penalty being warranted in both whether the -- whether the individual fired the shot and where the individual, the other defendant did not fire the shot and we were trying -- they were trying the case at the time of a defendant who had fired no shot. That would have some bearing, we believe, on -- on the jury if they knew the -- the judge's feelings. However, here's what occurred. The judge during the Darcy case, entered the courtroom and he sat on the bench with the trial judge. Now, several times and engaged in whispered conversations. Nobody could tell what they were whispering about. And I contend that that's far worse because the jury could imagine almost anything under those circumstances. Whispered conversations, on one occasion, he participated in a ruling and that's part of the record. It's referred to in the record. He -- he sat then, participated in the ruling. It was a side bar matter and Mr. Achey, who was trying the case for the defendant, objected his conduct and to his participating. And he said, and it's interesting to note that his language was, "I don't mind trying this case against one judge but," and then he was cutoff. And Judge Boyer said, "Well, we judges -- we're not required to obtain counsel's permission to confer among ourselves. We're not required to have your permission to do that." And he remained on the bench. And he came on the bench during the trial of this case --
Earl Warren: Was that from the presence of the jury?
Charles J. Margiotti: That was definitely in the presence of the jury and Your Honor the record so -- so shows for the jury is sitting by although this is somewhere like where those pilars are. The jury didn't (Voice Overlap) --
Earl Warren: I thought I -- I thought I read in there that it was a -- it was a matter away from the jury --
Charles J. Margiotti: No, Your Honor.
Earl Warren: -- and that the jury could not possibly hear what was said --
Charles J. Margiotti: Your Honor, it --
Earl Warren: -- and --
Charles J. Margiotti: -- was right at the bench sidebar, in Pennsylvania it's called the -- is referred to -- means a -- a ruling or an action of the Court which counsel participate in, in low tones of voices so that the jury don't hear what's going on but it's in the presence of the jury.
Earl Warren: Mr. Margiotti, the thing -- one thing that's bothering me, all of these things were known apparently to or must have been known to the defendant and his counsel during the trial of the case. Did they raise these questions on appeal?
Charles J. Margiotti: Your Honor, they were not raised on appeal until the petition --
Earl Warren: Why?
Charles J. Margiotti: -- was filed.
Earl Warren: Why not?
Charles J. Margiotti: I -- I don't know.
Earl Warren: Shouldn't they appeal?
Charles J. Margiotti: -- I was not counsel at that time.
Earl Warren: Shouldn't --
Charles J. Margiotti: I didn't get into that case until -- until this petition was filed until shortly before this --
Earl Warren: If they were done in open Court and were known to the defendant and his counsel, should they not had been raised on appeal?
Charles J. Margiotti: It seems to me they should have -- someone should have raised these questions. They should have done it. But I'm not responsible to the fact that they didn't raise them, Your Honor.
Earl Warren: Well, if they -- if they did -- did they make objection in the courtroom?
Charles J. Margiotti: Well, Mr. Achey is dead. And we took the position that Mr. Achey wasn't -- did not try this case properly. And I don't like to argue that question because that's not before us. But we raised that --
Speaker: (Inaudible)
Charles J. Margiotti: (Inaudible) That's the reason I referred to him a little while ago.
Earl Warren: I thought -- I thought I read in one of the briefs that the lawyer who was present chancellor of the bar of that State represented this defendant on his appeal.
Charles J. Margiotti: He did, that was Mr. McBride and a very fine lawyer whom I know person and know favorably.
Earl Warren: Well, why wouldn't --
Charles J. Margiotti: A very good lawyer.
Earl Warren: Why wouldn't he --
Charles J. Margiotti: But he --
Earl Warren: -- raise those (Voice Overlap) --
Charles J. Margiotti: -- he asked of that question. He said he didn't look into it and that it was not called to his attention by Mr. Achey who had tried the case. And the questions he raised is what he found on the record and what Mr. Achey called to his attention. And this was not called to his attention by Mr. Achey. Well, that's -- that's the reason, Your Honor. And -- but they were raised just as soon as -- soon as I get into the case. I had it investigated along that line, raised just as soon as they possibly could raise them and there is no question about that there were plenty of notice.
Earl Warren: How long is that after the conviction?
Charles J. Margiotti: Well, -- the case was tried in -- I don't know the -- the killing occurred in 1947. I found the petitioner the day before my birthday so that means that I didn't have -- it was April the 3rd, almost fell on April 1st but it didn't. [Laughs]
Earl Warren: But what year?
Charles J. Margiotti: What? 1951.
Earl Warren: 1951?
Charles J. Margiotti: 1951. The case was retried in 1948.
Earl Warren: 1948?
Charles J. Margiotti: Yes.
Earl Warren: Three years.
Charles J. Margiotti: Now -- now then, this judge not only participated in this particular ruling but he came on the bench several times, several sessions. And it's the -- the test, the record is full of testimony. That he remained there from 10 or 15 minutes to half hour or an hour and at times would occupy a seat opposite to where the jury over in that side and over here on this side, there was a place with some chairs over there where he was in full view of the jury. And he sat right there, had a night session even. And they so -- they so find in the decision -- in the opinions of the -- of the Circuit Court. So, I'm -- I'm quoting from them in addition to their testimony. And in full view and, of course, I take it that the -- the justice, Judge Hasty who rendered the majority opinion said that he didn't think that -- that the judge had done any harm. And until -- unless he had done some harm, there was a -- there's no reason why that that conduct would come within the prohibition of the Due Process Clause, they say. And Judge Kalodner take -- takes the -- but that he said, if there had been evidence of a note passing, it was our contention that a note had passed at the end of the charge from the judge to the District Attorney. Had the District Attorney after receiving this note that this was all in the presence of the jury, stood up before the Court and raised some objection to the Court's charge at that time. We had to take and met. That was our position. That they said if there's -- if there after the lower court had found that as fact, that would have been different. We've been considered and would have brought it within the prohibition of the Due Process Clause. Judge Kalodner in writing the minority opinion says, that there was enough in the record itself up to that time to show he'd done something that was wrong, called attention to the -- turn to the publications of his opinion. He's praising the jury that the death penalty which was the right thing to do just before this trial occurred. How, his standing in the community, how they would look to him and how they'll be -- how would they -- they'd be influenced by it. The fact that he came into court, sat on the bench. They would look at him and watch him for some help or guidance just like they were the judge himself who's trying the case. And that he participated in the trial. And that was a prejudicial act in the presence of the jury, irrespective of -- of the note passing incident. That -- but I claim that the evidence was so strong on the note passing incident that should have been found in our favor and I'll come to that. And so, if you look in the --
Speaker: What did you say? (Inaudible)
Charles J. Margiotti: -- on page -- on page -- may I call your attention to page 1133 (a) which is a map introduced by the Commonwealth to show the -- what the -- how the room was constituted. It will show where Judge Boyer sat at night. Or when he -- one night when he came in, that was Friday night before the charge. His name is -- is written there at the chair. And you'll observe the jury box is -- is to the very left, right opposite that. And -- but across, everything else that appears in the courtroom of a -- except benches. And on page -- and as an examination of page 1 -- 1121, that gives you a picture of the -- no -- it gives you a picture that shows the jury box and shows the chair where Judge Boyer sat on Friday night. And it's our contention that he sat there during the charge on page 1121 (a). And now, we called, Your Honor, three witnesses. Miss Ford, who is sitting on the bench, eight feet away from Judge Boyer, Miss Gordon, not related to any of the parties, but friendly to Miss Ford and Miss -- and Joe Darcy a brother of the -- the petitioner and (Inaudible) a sister of the petitioner. I -- three of them testified. The two women Gordon and Ford testified. And while they were seated there, at the end of the charge, they observed that Biester, the District Attorney was seated alongside of the judge, not had his usual place which was the Commonwealth's table but alongside of Judge Boyer. They observed him, give -- raise his hand, Judge Boyer lays his hand and pass a note to Mr. Biester, whereupon, Mr. Biester read it and he proceeded from that direction, made his way to the bench at the end of the charge and at that time made some comment or some objection to the Court about the charge which I'll refer to later.
Speaker: Is Judge Boyer still alive?
Charles J. Margiotti: He's -- he's dead.
Speaker: When did he die?
Charles J. Margiotti: I am not from that county, Your Honor --
Speaker: (Voice Overlap) --
Charles J. Margiotti: -- and I imagine --
Speaker: Was he available to testify at these -- the hearings on the petition?
Charles J. Margiotti: I don't think so.
Speaker: (Inaudible)
Charles J. Margiotti: But at least, here's the gentleman -- the District Attorney doesn't know. I don't either.
Speaker: Then don't bother to answer that.
Charles J. Margiotti: All right. But he died prior to this hearing, Your Honor. I can tell you that. At least that's what I was told. Now then, these two -- these two -- these witnesses testified that that had occurred.
Earl Warren: Well, didn't the District Court find against you on that?
Charles J. Margiotti: He -- the Court did and I take the position, Your Honor, on that point that where the evidence is not uncontradicted and there's no and it's reasonable, not unreasonable and it does not come from a corrupt source and there's no other circumstance to show that it's not worthy of belief that the District -- that -- that the Court is bound by that testimony because of some controversy.
Earl Warren: Well, did the District Attorney have to say about the --
Charles J. Margiotti: Well, I tell you what the District Attorney had to say about it. The District Attorney, who is now a judge, testified when came to this situation, I do not recollect whether it occurred or not. And he also testified that when was he certain, he would say it was certain and he was not certain he was going to say I didn't recollect. That was the District Attorney. And he's the judge.
Earl Warren: It's about all anyone could say, isn't it?
Charles J. Margiotti: I don't think so, Your Honor, that those things don't happen everyday. I've tried cases for many, many years. I've never had a judge or anybody pass or of the matter, a judge pass me a note about a judge's charge. And if it did, it'd be impressed upon my mind because it doesn't happen now everytime I go into Court. That -- that would be an impressive matter. It seems to me that if you would hand me a note now, Your Honor, I'd remember it for a long, long time.
Earl Warren: [Laughter] Yes.
Charles J. Margiotti: Well, that's what he said and the --
Earl Warren: But the judge -- but the judge found that -- that your allegation was not found incidentally.
Charles J. Margiotti: That's correct. He found out, Your Honor, but he said because it was contradicted. But it wasn't contradicted. I say that, that was not a contradiction because that's non-negative testimony --
Speaker: (Inaudible)
Charles J. Margiotti: Well that's our position there. Then in addition to that, we call Joe Darcy who is a brother of the petitioner, who said the same testimony except the fact that he had observed that the judge had leaned over, his table in front of them and written out the note. The other two witnesses had not observed that, which in my mind was evidence that they were telling the truth. And then, recall the sister, Mrs.Hackman, who sat a little further away. She hadn't observed that incident at all. And that she didn't testify to anything worthwhile. Now, the thing that's important too, Your Honor is this, when this judge testified to this, and Biester testified, he didn't recollect, I asked them whether or not he did get up and whether they did get before the Court. And he said they did. I asked them if the Court had anything -- had asked them if he had admitted anything from his charge to call his attention. And that Mr. Achey had said, "None, Your Honor," and that he remained silent. He said he did. I said, "Well when did you make up your mind that you were going to do what you did do." All he says, "I can't tell this, I can't rationalize my memory." Well, I said, "Let's see now, you -- you objected to what was said concerning second degree and first degree murder in flight or unintentional killing," "Yes." Well, I said, "When would you make up your mind to make an objection of that kind?" Why, he says immediately after I heard her. Well, he had heard it long before that because it came long before that as is shown in our record -- please turn to that page -- and we have showed, pointed out in the record. And if he had that in his mind, that's when he would have done it just at time the judge made the mistake. Or if he didn't do it then when the judge said, "Do you have anything to say?" He would have gotten up and he would have then made his objection because that was his first opportunity to speak without interrupting the Court. In place of that when the Court asked him, he had nothing to say. He said, nothing at all but just sat there. Now, the day after that he got up and made his objection. Now, something had to happen. A nod, a prod, a touching of the foot, a touching of the arm, something had to happen that calls to that lawyer's attention to get up there and make that objection. And so you have that further fact to consider as to whether or not this -- this testimony should have been received by the Court and he should have rendered it. He'd found the facts as we claim them to find them. And I think that by reading the record as a whole, Your Honor, as you go along, reading the record and questions that were asked by Judge Murphy, keeping in mind that he's the same judge, that in this case after I make it a charge that we did in our petition originally, that he rendered a decision against us and denied the writ without even an opportunity to be heard. And it was the same judge that was -- that made -- made the -- made the decision here, as reading the record and observing very, very carefully what the -- his -- his demeanor and his questions that he asked. It may give you some idea of whether what he had in mind, I don't know. And I'm not saying that he acted improperly, but I wish to merely call those matters to your attention because they're in the record. So that there -- there couldn't be -- I'm just calling to my attention, Your Honor, that at this time I have about 15 minutes left, is that right?
Earl Warren: I think so about that, yes.
Charles J. Margiotti: Could I, with your permission, Your Honor, refrain from proceeding further and reserve these 13 minutes --
Earl Warren: You -- you may.
Charles J. Margiotti: -- for rebuttal?
Earl Warren: You may.
Charles J. Margiotti: Thank you very much.
Earl Warren: Could you proceed for the few moments we have left Mr. --
Frank Lawley, Jr.: Permission of the Court. But first, I'd like to answer the question --
Earl Warren: Mr. Lawley.
Frank Lawley, Jr.: Yes.
Earl Warren: Yes, sir.
Frank Lawley, Jr.: Thank you, sir. I'd first like to answer the question asked by the Chief Justice, concerning whether the defendant, David Darcy, fired any shots. We have printed, in -- beginning on page 6 of our brief, the facts of the crime as recited by the District Court. At the top of page 7, the District Judge states that during the course of the robbery, Darcy fired two shots and then engaged in a scuffle with two -- two patrons in the bar. After -- after the conspirators left the Feasterville Tavern, they continued on to another tavern and committed another robbery the same night. They were apprehended about 1:00 o'clock in the morning by the Philadelphia police. At that trial, the defendant was represented by Webster Achey and on appeal was represented by Mr. Thomas D.McBride present chancellor of the Philadelphia Bar who is present in court today. In the petition for writ of habeas corpus that was filed in the District Court a continuance was granted to permit counsel time to file a petition in the Supreme Court of Pennsylvania in order to exhaust state remedies. The petition was filed in the Supreme Court of Pennsylvania making the same allegations as here made and it was denied on April the 10th. This Court later denied certiorari. Then the case was referred back to the District Court and the District Judge refused without opinion. On appeal, the Court of Appeals reversed and the hearing was held. I would like to state that we can find no evidence in this record as to the defense reasons who are not testifying and the doctor and so on as related by Mr. Margiotti. And there's no evidence in this record as to the defendant's reputation to the fact that he was mentally afflicted or had ear trouble. There were two persons shot inside --
Felix Frankfurter: May I ask if you forgive me for interrupting you.
Frank Lawley, Jr.: Yes, sir.
Felix Frankfurter: You referred a minute ago to the -- the affirmance in your Supreme Court on April 10th, 1951, is that right?
Frank Lawley, Jr.: Yes, sir. That --
Felix Frankfurter: I find in reading that report about the criticism about judge -- that you've judged in an alleged comment of Judge Boyer was before with your Supreme Court that they did consider it on the merit --
Frank Lawley, Jr.: Yes, sir.
Felix Frankfurter: -- did not suggest that the -- that the objection to that was too late to dispose of it on the merit.
Frank Lawley, Jr.: Yes, sir.
Felix Frankfurter: Is that correct?
Frank Lawley, Jr.: Yes, sir.
Felix Frankfurter: Is it not? That your Supreme Court did entertain that objection --
Frank Lawley, Jr.: Yes.
Felix Frankfurter: -- from that appeal?
Frank Lawley, Jr.: Yes, sir.
Earl Warren: We'll -- we'll adjourn now, Mr. --