Warren E. Burger: Number 72, Coleman and Steven against Alabama. Mr. Tarter, you may proceed whenever you're ready.
Charles Tarter: Mr. Chief Justice, may it please the Court. On July 24, 1966, in the city of Birmingham, Alabama on a dimly lit highway in Jefferson County of Alabama, several black individuals attacked a white man and his wife on the side of the road, while they were fixing a flat on their car. These black individuals fired a pistol twice into the body of the gentleman fixing the car. A passing car coerced the individuals to flee from the scene and on September 29, 1969, approximately 1966 -- I beg your pardon approximately 2 months later, they were arrested. They were interrogated. They were placed in a line up. They were taken before a magistrate for a preliminary hearing. They were arraigned, they were tried, they were convicted just this case has sort his way to this Court. The question is whether or not the preliminary hearing is a critical stage in the proceedings of a criminal case, requiring the presence of counsel. However, the real case here, real issue here if with regard to a poor man being a defendant in a preliminary hearing. The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.” And I suggest to you there weren't not for the fact that these defendants are poor, they would not be here today. The Court has interpreted the Sixth Amendment to mean that counsel is needed at the accusatory stage, at the interrogation, at the lineup, at the arraignment, at the trial, at the appeal, at the probation hearing. But it has excused and ignored the preliminary hearing, which is probably the most single, most important phase of criminal procedure. In my county, these defendants could be tried at the county courthouse without a lawyer at the preliminary hearing. They could walk three blocks down the street and have a lawyer at the preliminary hearing at the federal court. To me that is not equal and exact justice.
Potter Stewart: You got to tell us, I hope -- what's your argument? Just what is the function of a preliminary hearing in your --
Charles Tarter: Yes, Your Honor.
Potter Stewart: -- brief and what happens there?
Charles Tarter: Getting to it right -- in just a moment, if Your Honor please I've listed 17 reasons in my brief. The Court in the past has refused to call the preliminary hearing critical because a plea was not required, in White versus Maryland once again in Pointer versus Texas.
Warren E. Burger: Now, let me clear up one thing from my own situation. At the time the -- an accused or a person goes to preliminary hearing in Alabama, is he then a defendant as any charge been launched against him?
Charles Tarter: Yes, sir. A warrant has obtained after his arrest. He lodged in the city jail, warrant is obtained after his arrest, he had taken over to the county jail. A bond is set by the Sheriff, with the exception of a capital case. And then he has taken forthwith within ten days before magistrate, usually within ten days, before magistrate and there preliminary hearing is held or resemblance of a preliminary hearing without a lawyer.
Potter Stewart: This is -- this is not the same minimal. It was before the Court in Hamilton against Alabama?
Charles Tarter: That's a very confusing case, if Your Honor please --
Potter Stewart: That was an arraignment.
Charles Tarter: -- they called in an arraignment and then the Court talks about a preliminary hearing --
Potter Stewart: But there was in fact an arraignment at the indictment, was it not?
Charles Tarter: It wasn't arraigned.
Potter Stewart: After indictment?
Charles Tarter: Yes, sir.
Potter Stewart: Or information. This is quite different and this is pre indictment.
Charles Tarter: Yes, sir. This is the preliminary hearing, which after preliminary hearing comes the grand jury action, then comes the indictment, then comes the arraignment.
Potter Stewart: Right.
Charles Tarter: Then comes the trial.
Potter Stewart: And was the arraignment that was involved in Hamilton?
Charles Tarter: Yes.
Potter Stewart: All right, thank you.
Charles Tarter: It's understandable however that the Hamilton case is confusing, because of the preliminary -- being called a preliminary hearing and really is not, it's an arraignment, where plea is required. Our statute is very similar to the statute in the case of Pointer versus -- in Texas, in the case of Pointer versus Texas. There the Court said, the preliminary hearing is not a critical stage, because a plea was not required, almost a verbatim statement as within the White case. However, the Court said and I quote from their opinion, “Whether there might be other circumstances making a preliminary hearing, so critical as a defendant, as to call for an appointment of counsel.” At that stage we need not decide on this record and that question we reserve. It is the question which you have decided in -- which you have reserved in Pointer versus Texas that we raise here. To answer Mr. Chief Justice and Mr. Justice Stewart, we would say the -- all for these reasons as to why preliminary hearing is important and encompasses more than simply probably cause or whether or not a plea is required. One, it is the first opportunity that the defendant has to be adequately informed by an allegedly impartial person of that which he is charged. Two, it is the first opportunity to be confronted by those who will testify against him. Three, it is the first opportunity to examine those who will testify against him and have their testimony reduced to writing.
Warren E. Burger: Well, let me ask this if I may interrupt, did you say to examine the witnesses against him? Do you mean by that the witnesses who are produced at the hearing or all witnesses who will be produced at the trial?
Charles Tarter: All other witnesses produced at the hearing and all of the witnesses subpoenaed by the defendant to testify in his own behalf. And any other witnesses that counsel can find the subpoena ought to have present at the preliminary hearing.
Warren E. Burger: In this respect then its parallels of the federal situation?
Charles Tarter: Yes, Your Honor. In the sense that -- in a federal court, obviously the reason why preliminary hearings are not held, numerous preliminary hearing are not held, because of the liberal discovery rules and in the federal court. However, in the state court, there practically no discovery rules whatsoever. When a lawyer is appointed, such as I was in this case. Just before the arraignment, find absolutely nothing about the case, nothing. As a matter of fact, I was appointed the day before the case was arraigned and this was a case of great publicity. They were out for two months, before they were arrested. Newspaper headlines for weeks and days and months, until they were arrested. People were upset. Money was solicited by groups to help pay for the hospital bill and these old things of the victim's and it was a heinous and terrible crime. But the point is that I had nothing -- I couldn't even talk to the witness, until the day the motions were tried before his Honor Judge Gideon, who phoned the direction to the District Attorney.
Warren E. Burger: Well, are you suggesting that the Alabama Statute contemplates that the preliminary hearing is to be a discovery mechanism?
Charles Tarter: It says, if Your Honor please, that it is to determine probable cause and to --
Warren E. Burger: Probable cause for what? To upholding or holding?
Charles Tarter: To bind the defendant over to the grand jury. As Your Honor, is well aware of course probable cause means more than just a brief statement by some individual that an act occurred in a particular venue and jurisdiction.
Byron R. White: Mr. Tarter, what's difference between this preliminary hearing and the 937 Hamilton?
Charles Tarter: In Hamilton, the case was in arraignment and not a preliminary hearing, if Your Honor please. It is confusing, I have --
Byron R. White: When is the arraignment, today? Is it after the preliminary --
Charles Tarter: The arraignment comes after the preliminary hearing and subsequent to the indictment. The arraignment is where the indictment is read to the defendant and a plea is entered at that time. But no lawyer who is ever tried a criminal case in Alabama or anywhere else in a state court, where preliminary hearing is offered. What they're testifying that is not important. It is probably the single most critical stage of all the proceedings. It reduces a trial to a mere formality.
Speaker: Now, I want to ask you this question under you're Alabama procedure, could the state bypass the preliminary hearing 1031 go on right before the grand jury.
Charles Tarter: It could, if Your Honor please. It could do that, however we have introduced into our brief and into the trial of the motion that before his Honor Judge Gibson. That 95% of all cases tried in Jefferson County and -- are taken by way of the preliminary hearing. Very, very few, as a matter I can't even remember one, since I've been practicing law, which is five years, where the case was taken directly to the grand jury without going to the preliminary hearings, just a matter of procedure.
Speaker: But it would be up for the states to do that?
Charles Tarter: They could do it, yes. They could do it, but if they did, of course in populous county, such as Jefferson County, they might be there five years before they ever got to trial. If every case had to go before the grand jury that upon which a warrant is thrown out on a felony, it's just not possible. So, if the preliminary hearing weaves the cases out, so to speak, before they get to the grand jury. Of course, there's 17 reasons listed in my brief, I -- of course have collected manually, read the brief. There's really no need in my -- just reading out of my brief, the 17 points that just first came into my mind, they're on page 11 and page 12, and page 13 of my brief, which list the many, many reasons for preliminary hearing.
Speaker: I've selected the basis that I heard you said in certain points. What do write about that?
Charles Tarter: Discovery is the most emphasis. Motion to suppress many times has been very favorable. The -- in many cases have been dismissed in the preliminary hearing, as a result to motion to suppress. Therefore, the man hasn't had to sit in jail, and hasn't had to -- have his liberty restrained over six months or nine months that it takes to get to the trial and to the merits of the issue. Not to mention the practical aspect of it that you have a good motion to suppress then the state will let it pass for two years, and then eventually it would be dismissed. But your client and I have several of these as many lawyers do rather than the case just being dismissed. But it is the question reserved in Pointers versus Texas that we applied this particular case to. Now --
Potter Stewart: What happens, I'm reading the sections of your statutes, on pages 3 and 4 of your brief. It talks about one of the kind that must be discharged, in Section 139, then Section 140. It talks about what happens if probably cause is shown. It must be discharged on bail, if he could make bail and -- but if a sufficient bail is not give, he must be committed to jail, then what happens?
Charles Tarter: Well, then he awaits the action of the grand jury. Then the grand jury acts and an indictment is presented, then an arraignment is held. And counsel appointed if necessary.
Potter Stewart: And the --
Charles Tarter: And then a plea is entered, and then a trial.
Potter Stewart: Yes, of course the grand jury might not indict him too.
Charles Tarter: Well, that's possible, it is possible.
Potter Stewart: Do you have any practice of charges brought by information in your study?
Charles Tarter: No, just in indictment.
Potter Stewart: Just indictment.
Charles Tarter: Yes, it's possible of course, the grand jury wouldn't indict him, but I suggested that if the grand jury would indict him, it would be dismissed at the preliminary hearing.
Potter Stewart: Well probably, but not always.
Charles Tarter: Well, of course we -- anything is possible, I suppose, but several years trying dozen of criminal cases before the preliminary hearing, both of them that are dismissed or simply dismissed.
Potter Stewart: But don't they -- don't your grand jury sometimes ignore it?
Charles Tarter: Our District Attorney controls the grand jury, if Your Honor please, he's the only one in the grand jury room.
Speaker: You're talking the latter --
Charles Tarter: I beg your pardon.
Speaker: If your talking about the latter.
Charles Tarter: The District Attorney controls the grand jury, he's only one in the grand jury, it's his witnesses that testify before the grand jury. So, I would be shocked and amazed that if the case were dismissed by the preliminary hearing magistrate that the case will be picked up by the grand jury.
Potter Stewart: No, I mean opposite.
Speaker: Or the opposite, just the opposite, both of them would be true.
Speaker: What's the -- or roughly what's the 1502 of time between preliminary hearing and the grand jury action?
Charles Tarter: Anywhere from 30 to 90 days.
Speaker: And is the defendant entitled to bail 1517?
Charles Tarter: Well, that's another question, he is entitled to bail of course. My client is a -- due to the publicity case, had $20,000.00 bond set on both of them at the preliminary hearing without a lawyer, they have been sitting in jail, since July 29th -- I mean since September 29, 1969. Of course, they couldn't make a $200.00 bond, but a $20,000.00 bond on each of them. Of course, they had no counsel at the preliminary hearing. If they have had counsel at the preliminary hearing, this case very well could have been won, if you read my brief carefully.
Byron R. White: Can you tell me why the testimony of the preliminary hearing is then described and what is done with it after it goes to the clerk?
Charles Tarter: That's an unusual thing, Justice Black probably is aware of this. What is over 75 years we've had a statute which requires that the transcript be -- the testimony be transcribed, recorded and certified to the circuit court, it has never been done, ever. It is completely ignored, as a matter of fact I do.
Byron R. White: It's never -- as far as you know, that has never gone to the grand jury?
Charles Tarter: Never gone to the grand jury, and we as defense lawyers pay for Court reporter to go to the preliminary hearing and record the testimony and use it later on, in view of the statute. Their statute offered a corporal punishment, for his -- Honor, failing to record and transcribe this testimony, unfortunately I had never had encourage enough to enforce them. But this is not only true in Alabama, it isn't true in many other states, things such as this being ignored.
Byron R. White: If you want the testimony, you get it, take it yourself.
Charles Tarter: That's right.
Warren E. Burger: If I would give --
Charles Tarter: If I had been there, if I've got appointed at the preliminary hearing, I would have paid for out of my own pocket and had one made in this case, as I did in another case. Now, I represent no group, and I represent no organization. I represent my client, period from the beginning to the end in this Court.
Warren E. Burger: Is that in transcript, when you make that your own instance have official status?
Charles Tarter: Yes, because I bring the Court reporter and testify to its validity, you see. It does not have official status, in the sense that it's a part of the Court record. Only when I introduce an evidence and prove its validity and accuracy. But then --
Byron R. White: Is it done by the court reporter, the official court reporter?
Charles Tarter: Yes, it is. One of official --
Byron R. White: The state ever -- doesn't the state ever record these --
Charles Tarter: No, and they try to get my copy, once get it done. As a matter of fact, let me -- it's really ridiculous and it's a vicious circle, so to speak, but let me give you a primary example of a preliminary hearing, which occurred three weeks ago with permission on the Court.
Warren E. Burger: We'll hear that after lunch.
Charles Tarter: Alright.
Warren E. Burger: You may proceed Mr. Tarter. Mr. Chief Justice, members of the Supreme Court. Over three minutes of my time, the first 20 minutes has expired now, I haven't even gotten to the second point here. However, I was about to tell you a case, I will say it is a preliminarily. The state contends that the preliminary hearing is not critical, counsel is not necessary, you will have a note from my brief that the state always has counsel present at the preliminary hearing. They always have counsel present to represent them and to examine the witnesses at the preliminary hearing. Now, my clients did not have counsel --
Hugo L. Black: They always do?
Charles Tarter: They always do, yes sir.
Hugo L. Black: How long is that --
Charles Tarter: Ever since I can remember, if Your Honor please, of course I can remember back when you were District Attorney, but I believe as a Solicitor. However, Mr. Bettor informed me that it was during his time, as far as he can remember. Now, as I say it is, this case was brought home to me and it's supporters --
Hugo L. Black: If you pardon me this, I think I established it when I was Solicitor, but having attorneys present in riming at the preliminary trial.
Charles Tarter: Defense lawyers, judge?
Hugo L. Black: I -- I think --
Charles Tarter: Defense lawyers or District Attorneys?
Hugo L. Black: The what?
Charles Tarter: Defense lawyers or Solicitors?
Hugo L. Black: Prosecuting Attorney.
Charles Tarter: Prosecuting Attorney, we have two full-time prosecuting attorneys at the preliminary hearing at Birmingham now. As I've said, this case was brought home to me, the importance that it was brought home to me three weeks ago. My client in this case, did not have counsel. Three weeks ago, at a preliminary hearing, which was held some times of a point in the trial, I was present, we examined the witnesses. We record and transcribe the testimony, only two witnesses appear against my client in that particular matter, we recorded it. Subsequent to that, nine months later, when we got the trial of the case, one of the witnesses for the state did not appear. He had a record. He did not appear to testify against the defendant. One witness did, he had forgotten what he said at the preliminary hearing. We had it transcribed and record it. He got up and committed perjury on the witness stand, in an effort to convict the defendants. This is clear, its a matter of record, but with the transcript of the preliminary hearing, my client was found not guilty, only because of the transcript. Without the transcript, he would then in penitentiary today, there's no doubt, no question about it, whatsoever. Getting three experience lawyers, in the city of Birmingham, with about 60 or 70 years total experience, between the 3 of them, testified that in their opinion the preliminary hearing was a critical stage in Alabama. The attorney -- Assistant Attorney General who argued case before the Court of Appeals of Alabama, admitted before the Court of Appeals that the criminal -- that the preliminary hearing in the State of Alabama is a critical stage to the proceedings. He's no longer with the Attorney General's office. Getting on --
Potter Stewart: Mr. Tarter, at the preliminary hearing, which is unfamiliar in jurisdiction rights, there the -- all the prosecution would do would be to make a prima facie case and the magistrate wouldn't even hear from the defense witnesses. I gather from your statute that yours is quite different, because it imposes the duty upon a magistrate, Section 138 to examine all of the witnesses, having any knowledge of any facts relevant to such investigation, whether such witnesses or some of them behalf of the state or the defendant. But since, you've already told as that at least some of these statutes are dead letters. I wonder what the actual practices is in your --
Charles Tarter: The actual practice is to allow the defendant to subpoena witnesses and put them on for himself. And for the state -- the state may put on one or two witnesses. They may have a list of witnesses that they have subpoenaed. If they don't put them on, I do and examine them and get their statement down on a type-written record. Most every lawyer that I know -- This true in many, many parts of the countries that I've been.
Potter Stewart: Even your own witnesses.
Charles Tarter: That I've been to.
Potter Stewart: Even your own witnesses --
Charles Tarter: Even -- well, I may not put on my own witnesses. No, I probably don't.
Potter Stewart: Well, its Section 138 says it's the duty of the magistrate to --
Charles Tarter: Well, he can call him if he wishes to, but I don't subpoena --unless I have an excellent case, if Your Honor please, I don't subpoena witnesses --
Potter Stewart: No, it wouldn't occur.
Charles Tarter: Right.
Potter Stewart: It wouldn't be tactically very --
Charles Tarter: It wouldn't be tactically correct, that's right. I don't put on my witnesses, but I do put on their witnesses if they don't. But my time is up for the 20 minutes, but I haven't gotten to the identification question. But, if you can visualize an answer to your question, the Court in there, the judge and the magistrate attempts, when he does not have a lawyer to try and convince him that he should waive to the grand jury and not examine the witnesses. If you can visualize a magistrate with a prosecutor and the witnesses, and the defendant know nothing about the law, whatsoever. All he can think of is to get out of jail. So, he see if he go to the grand jury, he gets out there much quicker.
Warren E. Burger: Mr. Clark.
David W. Clark: Mr. Chief Justice, may it please the Court. Only matter had been discussed so far and that is the question of preliminary hearing in Alabama. I would like to take issue with my opponent on that. The preliminary hearing in Alabama is one of these things in which an accused may ask for a preliminary hearing. Now, when there is preliminary hearing, the magistrate looks into the matter. First, at the time whenever an offense has been committed and then if the probable cause that the person there committed the offense. And then, if that be so, it is such a matter, which is subject to bail. Now, in the largest cities, right they are in a place that preliminary is used in Alabama. And the reason for that is, these accused want to get out on bail, that's their avenue to get bail in Alabama, is what it amounts to.
Potter Stewart: Doesn't anybody get out on bail, except in the big cities?
David W. Clark: Oh, if they wanted and they can request. That's what it said, they may request a preliminary in any thought of the --
Thurgood Marshall: Well in this case, did the petitioner asked for a preliminary?
David W. Clark: He did ask for preliminary.
Thurgood Marshall: He asked for it.
David W. Clark: I think that is correct sir. He asked for a preliminary hearing and it was had on October 14, 1966.
Thurgood Marshall: The record will show that he asked for it?
David W. Clark: I think that is correct sir.
Thurgood Marshall: But he didn't have a lawyer?
Byron R. White: Without the preliminary hearing?
David W. Clark: You may, you could file a -- and get that and they would say they --
Byron R. White: Was their rule that doesn't have preliminary you can not get --
David W. Clark: It could be said by the judge or the clerk of the Court sometime in the small amount of misdemeanors and so forth, but if a --
Byron R. White: You said that the --
David W. Clark: A serious offense.
Byron R. White: The reason they have under, is to bail.
David W. Clark: Is to get bail in a more serious offense. This one --
Byron R. White: Why -- why is that so?
David W. Clark: To get -- that's the only way they can get it in a most -- the law said to that sir.
Byron R. White: The law says that unless you have a preliminary hearing, no bail?
David W. Clark: No, it sets out the Title 15, Section 138 and 139-40, I think sets out the ways of having a preliminary hearing to set bail.
Potter Stewart: 100 -- 140, on page of 4 of the petitioner's brief, is the one that--
David W. Clark: Yes, sir.
Potter Stewart: Imposes the duty to --
David W. Clark: If it's a bailable offense.
Potter Stewart: The large amounts bail payments --
Warren E. Burger: I thought your friend told us that sheriff occasionally set bail? Is that just in minor offense?
David W. Clark: That's in very minor misdemeanor cases.
Byron R. White: One of the -- what was indicated to -- I want to know that the prosecutor could pick a case directed to the grand jury rather than having a preliminary hearing?
David W. Clark: If the accused does not asked for a preliminary hearing, Your Honor, then, when the grand jury meets, the matter maybe presented to the grand jury, and indictment returned, and then of course, you have the arraignment entry.
Byron R. White: But if the accused said I waived of preliminary hearing, he is also waiving bail?
David W. Clark: In effect, yes sir.
Byron R. White: He is?
David W. Clark: That's right.
Warren E. Burger: Can he secure bail after the indictment, by applying to the Court?
David W. Clark: Yes, sir, he did. Usually, at least going on that when they ask indictment return, the judge sets bail on that.
Potter Stewart: At the time of arraignment?
David W. Clark: No, sir. The time of the arraignment, they register a trial then. The arraignment sir is --
Potter Stewart: Where you plead guilty or not guilty?
David W. Clark: That is correct sir.
Potter Stewart: Or it opposed any other defenses.
David W. Clark: That's correct.
Potter Stewart: An answer to an indictment and then the trial starts two minutes after that in your state?
David W. Clark: No, sir. Not that quickly, but at that time of the arraignment, they could of course, and oppose any pleas they want to put in there in that time.
Thurgood Marshall: Mr. Clark, is there some other reason for the preliminary examination other than bail?
David W. Clark: Well, If thats the -- if Mr. Tarter pointed out, if there has been on offense committee, if this particular person accused is the one who --
Thurgood Marshall: There is something more than just bail.
David W. Clark: Oh, yes. I was about to point out that was one of the things.
Thurgood Marshall: What about protection about reducing all these to writing?
David W. Clark: That is a matter as Mr. Tarter has pointed out that is required in the code and there is a provision that is not done, the magistrate could be fine. Now, that is sometimes done and sometimes it isn't. I mean as far as --
Thurgood Marshall: You mean sometimes it's fine and sometimes --
David W. Clark: No, no I -- as a recording of the preliminary hearing.
Thurgood Marshall: I see. What's the general policy in Birmingham, where these were?
David W. Clark: I think it is just as Mr. Tarter has pointed out that defense attorneys have it done. I do have a case from Birmingham area now, I believe at 2917, the next city, in which a preliminary was had and it was recorded and they used that sometimes to as Mr. Tarter pointed out to impeach a witness.
Thurgood Marshall: But the state didn't provide it.
David W. Clark: No.
Thurgood Marshall: Defense --
David W. Clark: In defense in that case. Now,--
Thurgood Marshall: This defendant couldn't pay it for, you agree on that?
David W. Clark: I don't know this one matches. That is -- at that time, I think Mr. Tarter said he was Court appointed, so I assumed the man did not have money to pay for it. Now, one of the contentions of Mr. Tarter of those 17 contentions, he points out in his brief the reason you should have an attorney is that this matter could be used at the main trail, the evidence had at the preliminary. And I would like to call the Court's attention to that, if the defendants will not represent by the -- by counsel at preliminary, any statements made by them, so would be inadmissible at the trial. Now that's -- appendix page 50 and 69, and record page 74 that was determined three times in the motion to suppress evidence and Mr. Tarter ask those matters.
Warren E. Burger: Give me those pages again.
David W. Clark: Yes, sir. Appendix page 50, 69, and then if Your Honors want to use the big transcript record, page 74.
Potter Stewart: Why was decided by this Court in Pointer against Texas, wasn't it?
David W. Clark: Yes, sir. Well, that was one of the contentions, so that as Mr. Tarter pointed out. But, what I'm saying is that the testimony at the preliminary is only used occasionally to impeach a witness. So, that actually really don't operative. Now, I would like to point out that that is would not be in conflict with the Barber versus Page which Mr. Justice Marshall in that particular case, I think they reach some evidence from a preliminary into the main trial. I would like to call the Court's attention to pages 7 and 8 of my brief in which I actually quoted the Court of Appeals there, because it's well worded, the purpose of the preliminary. I couldn't say it better, I think that covers it, to tell whether an offense has been committed and whether to hold a release the accused and the time of bail in the appropriate cases. Those are the purposes of the preliminary. I would like now if the Court had no further questions to go on this matter of line of this case the Court subsequent to the ruling in Stovall versus Denno, which declare that any confrontations after I believe June 12, 1967 as that Wade versus -- wade and Gilbert decision were not applicable as far as requiring an attorney. This happened prior to Wade or Gilbert. Therefore, this would come up before the Court on the question of whether when at this pretrial lineup, when the defendant did not have counsel, whether based on the totality of the circumstances, the confrontation was such that so suggestive as to a course of misidentification. Now, this gets on the matter of totality of circumstances, which to my way of thinking is just does the evidence supported? Now reading the case over, the transcript -- I noticed that the first 123 pages and I think the appendix have sites those pages. Now, that dealt with a motion to suppress any state once made by the defendants or any statements that the detectives who interrogate defendants would testify to. As well as any identification by case, Casey Frank Reynolds, the prosecuting witness in this case. Now, the state confess the motion as to any confessions or statements made to the detective and any statements made by the defendants in this case. There were two defendants trying to join in the incident. They confessed these motions, so the only thing that the Court overruled was the part about permitting Mr. Reynolds to testify as to identification. Now the -- that brings us really to the merits of the case, which is from record page 123 through 240 in the large record, which I understand the Court in addition to the little appendix we looked at. Briefly, this case was one in which a man and his wife had been to Coleman, Alabama on a Sunday. I believe it was July 24, 1966, they were returning to their home in Bluff Park which is a suburb in Birmingham, they had a flat tire. The man got out to change the flat, while he was crashed over changing the tire, three men came cross, fired a shot, the first hit him in the neck. And then, one grabbed his wife and he said that he was about three feet away from the man who grabbed his wife and he saw his face clearly, that was John Henry Coleman, he identified him at the trial.
Byron R. White: What are you arguing now?
David W. Clark: On the merits of the case, to show that the lineup was alright. I don't know really many ways to show the lineup was properly, except these ways. I want to show that the identification, in Court identification was based on something other than viewing the lineup. Therefore, if the Court will indulge from a minute, I'll go into this. Now, he stated that about this time, another car came by the lights flashed, and these three men ramped across the road and as one, was about ten feet away from him, facing him. He took a pistol and shot him, he said, “I recognize that man who shot me as Ode Stevens and that I saw his face,” and that's in the record. Now, Mr. Casey Frank Stevens was in the hospital for about eight or nine days. They took him to a hospital and forcing his life safe. Now, in September, I believe the 29th, the police brought in several suspects. They called Mr. Reynolds to come and look at the lineup. There is a little discussion about whether they told him that these were or some of the people who shot him or not. He said that he doesn't recall telling him that, but he assumed that that was on the purpose the least would have to call him if he had done nothing, no violation of the law in his part. So, he went down there, they brought these men in the lineup, and I understand the lineup in the Birmingham area, there's a stand about four feet high and the man used the people come by. He was there, by himself and incidentally there were no other prosecuting witnesses there to compare notes as to this one, as the one or what not, the case of Frank Reynolds. Well, the first man he saw, he said, “That's the man who shot me,” identified Ode Stevens. Then they had the other ones lined up, there were six of them. From this lineup, he picked two of the men who had been in the assault, with intent to murder at the night of July the 24th. Now, I would like to call the Court's attention to appendix page 88 and 89. There were six men in this lineup, Ode Stevens, if you will notice was 6'2”, weighed a 173 lbs. They had three men of approximately the six feet arrived in the same weight and size. Now, Coleman on the other hand, was a short man, five foot four and half inches tall. They had three man of his approximate size, one was five foot seven, one was five eight, and goes Coleman. This -- a reason I point that out gentlemen so many cases are reversed, because you might have something like this, the prosecuting witness would say, well he was a bald headed man, so they bring in three or four people. One is bald headed, and the other three have a lot of hair, well he says well that's the one who did it, but what I'm pointing out here is these were the same size and types of people. Now, there is only one possible flow, and I don't think that's a flaw in it. Coleman, one of the defendants had on a hat. Now, there was no testimony at the trial on the motion to suppress as to the fact who caused him to wear this hat, did the police require him to? He wore a hat at the time of the assault, somewhere in the -- we have just to apply common sense, what was his hat is up to and did he wear a hat all the time? Now, or did somebody require to put it on. Now, he testified on the motion to suppress. He testified again on the -- its principle trial I believe -- no where in there did he say, “They forced me to put on a hat.” He had able counsel at this trial 4121, they didn't bring it up. So, it might be assumed that he wore a hat.
Potter Stewart: Where did this lineup take place?
David W. Clark: In Birmingham.
Potter Stewart: Well, in Birmingham, but where?
David W. Clark: And I believe in the city jail.
Potter Stewart: Inside?
David W. Clark: Yes sir, it was inside.
Potter Stewart: Four walls and a roof.
David W. Clark: Yes, as I point out there was -- they're saying about four feet high that they walked across this stage.
Potter Stewart: In a room, inside.
David W. Clark: In a room, yes sir.
Hugo L. Black: What building did you say?
David W. Clark: I believe it was Birmingham jail.
Hugo L. Black: Birmingham jail.
David W. Clark: Yes sir, in Birmingham.
Hugo L. Black: And does the record show, what kind of a hat this was, this man wore?
David W. Clark: No, sir. It didn't say whether it's felt straw or what, I just said a hat. Now --
Potter Stewart: Was it -- does it show that was the same hat that he was wearing at the time of the --
David W. Clark: No sir, if that were (Voice Overlap). He just said he have a hat and it's Mr. (Inaudible), Reynolds said that he had the hat down over his face, so he couldn't see his face and he asked him to move his hat back and followed it, which he did and then, I believe he took it off. And an identification was made, Mr. Reynolds said he thought that was the man as he thought with to make his identification part, that he had to remove his hat back, so he could see his face, that is in the --
Potter Stewart: Move his hat down, down (Voice Overlap)?
David W. Clark: He see, with hat down first, so he had to move his face, so he had him pushed it to back of his head.
Potter Stewart: And at the time of the offense, was he testified he had it down or up?
David W. Clark: Since you mention, it wouldn't -- he said he saw his face at the time that the Coleman grabbed Mr. Reynolds' wife, and he said he was three feet away from him. He said, “I saw his face.” So, I assume the hat was up and enough so he could see the man's face.
Potter Stewart: From where, where these man brought into the lineup from -- from where were they brought?
David W. Clark: They were from the Birmingham area, I think they gave their addresses here.
Potter Stewart: Well, I mean directly, from where -- they came into the lineup, this (Voice Overlap) these petitioners came into the lineup from where? From outside?
David W. Clark: I know that two or three of them were definitely arrested, let's see -- somewhere in the record, there is a evidence that I believe it was Coleman and Hudges were arrested on escape charges from the city. So, they were brought in, they were arrested, I'm definite with that. Whether the other two or three were just people brought in, I believe Robert Steel was also brought in custody.
Potter Stewart: Well, I'm just -- I'm interested in your theory that this man just had a habit of wearing a hat, 24 hours a day, inside, outside, and I just wonder if when they came into the lineup --
David W. Clark: He had a hat on.
Potter Stewart: He had a hat on, where did he come from at that time? From outside or from the jail?
David W. Clark: No, he -- no, he was in the jail, inside at that time.
Potter Stewart: Your suggestion is he just wears a hat all the time.
David W. Clark: Yes, I realized that's unusual, but some people do have few habits a way -- And as I point out, no way does he say, “They made me put a hat on.” Now, he does say in the record, he said, “They made me say certain words.” He says, “They made me say certain words." They made Ode Stevens say certain words, and they made Hudges say certain words, none of the others. Now, that is a variance with the testimony of Mr. Reynolds prosecuting witness, he said that he wanted them to say something and the police would not let in and those people say a word, the people in the lineup. So, he couldn't identify by the words getting into the woods or anything of that nature. Now, I believe Lieutenant Hart, a detective said that he thought all six of them did, but and then I believe another one detective stated that yes, they said that it was after Mr. Reynolds have made the identification. Now, we feel that this lineup was fair, that this prosecuting witness made the identification. He saw the people who had shot him, who were involved in that night. Now, when he came to trial, we appoint this out that he made his identification, he said, “Those are the men, Stevens is the man that shot me that night, and Coleman is the man that was three feet away from me and grab my wife, I saw both of their faces.” So, what I'm pointing out is that the -- in Court identification was not made from what he had seen at the lineup, but rather what he had seen at the time the assault was committed. I feel that on the -- circumstances, that is the real, meaning coconut so to speak is whether or not the identification was based on either some pictures or somebody he saw in the lineup and then he comes into Court and makes an in Court identification of whether it was something separate and apart from the lineup. We maintain here with something separate the border line.
Speaker: What broke up this attemppted to solve --or you attempted to solve?
David W. Clark: As I pointed out that there was a car coming on to this darken road and lights flashed on these people and the three men who were involved in the assault, rushed across the road and got in their car and left. And the person who was driving by stopped and picked up this Casey Frank Reynolds and took him to the hospital. He was shot once in the throat and once in the neck. There's a possibility he could have bled to death, as somebody not stopped.
Hugo L. Black: Where did it occur exactly?
David W. Clark: On the Green Springs Highway, which is I'm saying just off a Highway 31 going towards Bluff Park. This is not a well lighted highway, Your Honor. Probably know and just candid.
Warren E. Burger: In the trial of the case, was there cross examination of the complaining witness as to the source of his identification, whether he recalled the faces from the night of the attack and that typical cross examination of the --
David W. Clark: Yes, sir. I think that was all hand in cross examination. In other words, the defense attorney had every opportunity to cross examination, the Court did not record his cross examination on. I feel that just about covers the matter, my time is getting short here. If the court would like to ask me for further question, I would be glad to answer it.
Warren E. Burger: I think not Mr. Clark, thank you very much.
Charles Tarter: May it please the Court. To answer Mr. Chief Justice's question, with regard to cross examination of the eye witness, it's the first time I ever had an opportunity to see a man in the witness stand that I was not allowed to talk to him anytime before he got on witness stand, at the direction of district attorney. Now --
Hugo L. Black: I didn't quite hear you.
Charles Tarter: I beg your pardon?
Hugo L. Black: I didn't quite hear you.
Charles Tarter: I said that was the first opportunity I ever had to see the man on the witness stand or to talk to him in any fashion, whatsoever at the direction of the district attorney, would not talk to him beyond any circumstances. And I tried most vigorous.
Warren E. Burger: But you did cross examine the --
Charles Tarter: I did cross examine him, but what am I to cross examine him with, if Your Honor please, I had no transcript, I had not prior testimony, no statement. Any defense lawyer it goes into criminal courtroom without a prior statement of witness, could get on the witness stand and my judgment is negligent, and my judgment is uncommon to examine a witness on the witness stand. But I could not do it, because he did not --
Hugo L. Black: But if -- of course many times they have to do it without having a prior statement.
Charles Tarter: Yes, sir. Unfortunately that's true and many times some people are convicted and sentenced to jail as a result of it.
Hugo L. Black: Sometimes.
Charles Tarter: Sometimes, yes sir. With regard to the totality of the circumstances and the lineup being unnecessarily suggested, let's look at that just a moment, about the lineup and whether or not it was unnecessarily suggested. This is in the record, and I hope that the Court will take a careful look at the appendix and at the briefs in this particular case. On at least six different occasions, prior to the lineup, and after viewing mug shots in the sheriff's office, the victims said and I quote, “I don't believe I can identify the people.” He told that the sheriff deputy is this.
Hugo L. Black: What do you say that was?
Charles Tarter: It's in the appendix, if your Honor please, I have it cited numerous time and during the course of my brief. Here's the description that he gave the sheriff deputies, not once but several times. They were all black, they were about the same age, and they were about the same height. Well, the only thing they had in common, was the fact that they were black, because they were not the same age. One was 18, and was 28, a substantial difference in age. One was six feet, two inches tall and the other one was five feet four inches tall. I suggest that there's a substantial difference between six two and five four.
Hugo L. Black: Did you put your client on the stand?
Charles Tarter: During the trial of the case? No, sir. The case was lost before we walk into the courtrooms, so I didn't put in either one of them on the witness stand.
Hugo L. Black: I wonder why it's lost, while your walking into this courtroom?
Charles Tarter: If Your Honor please, the publicity in this case and the fact that we're unable to examine the eye witness in the case, before getting into the courtroom, without any preparation whatsoever, it just -- all we could do was cross examine the eye witness and that was about it. We -- we could not prepare any defense in any way, shape or fashion or form. And as you very well know, of course it was a heinous crime.
Hugo L. Black: What was the defense, not guilty?
Charles Tarter: The defense was not guilty. One of the defendants, John Henry Coleman, I'm confident was not there that night, the other one, Ode Stevens was in fact there that night.
Hugo L. Black: No alibi defense?
Charles Tarter: He was with his mother and with his sister.
Hugo L. Black: Did you put that up?
Charles Tarter: No, sir. I was going on this point and this point from the day that I got into the case to -- I was bound for the Supreme Court of the United States. And I knew that that was my defense, because two calling people on in a case like this, a mother and a sister saying, “Yes, he was at home watching television,” in this case, would have been to say the least feeble. And I had a preliminary hearing, and had been to preliminary hearing, I feel confident it was been substantially different, as it has in many cases.
Potter Stewart: What's the purpose of the preliminary hearing, as I understand it is to ascertain whether or not there's probable cause to bring to -- probable cause to think that an offense has been committed and this is the man who committed,--
Charles Tarter: Yes.
Potter Stewart: -- is that right?
Charles Tarter: Yes, that's correct.
Potter Stewart: And it's just been an adventitious use of -- by defense counsel that sprung out to take advantage of that for their own benefit, it isn't designed really for the purpose of later impeachment or discovery at the -- or particularly for the purposes of getting a transcript with those witnesses to impeach him later, it's purpose simply is to -- is what I stated, is it not?
Charles Tarter: To determine probable cause.
Potter Stewart: Right, that an offense has been committed, and if this is the man who has done it.
Charles Tarter: That is correct, that is the primary --
Potter Stewart: And if so, then his held for the grand jury and march or not bail for the meantime, is that right?
Charles Tarter: That is the primary purpose of it, if Your Honor please.
Potter Stewart: It's the only purpose.
Charles Tarter: What does probable cause consist of, if Your Honor please, probable cause in the motion to suppress, dealing with arrest or search and seizures, an extremely complicated problem, and I'm sure Your Honor would not say that counsel is not necessary in a probable cause situation on a motion to suppress in a confession or in a arrest or in a search and seizure. Probable cause many times consist of far more than it consist of jurisdiction or problems, it consist of venue problems, it consist of identification problems, it consists of confessions of illegal obtained evidence, all of this thing --
Warren E. Burger: But you can move these things later counsel. You can move, following the preliminary hearing motions on all of those subjects, are they not?
Charles Tarter: Yes sir, of course my client remains in jail, until we're able to get --
Potter Stewart: I have not understood your argument to be that if counsel had been there. There would have been any possibility in the world that these man would not have been bound over to the grand jury, I'd understood your argument to be that if counsel had been there, he could have arranged for a transcript of the testimony of the victims, the complaining witnesses to be later at the trial of these people, isn't that your argument.
Charles Tarter: That is correct, it could be, but of course it also possible, I suppose anything is possible, that the could have dismissed them, I don't know what this eye witness would have said at the preliminary hearing, ten days after they were arrested, that's what I'm saying. I'm saying that six months to nine months later, the eye witness said one thing, none of us are clairvoyant, so we can't say what would have happened at the preliminary hearing.
Potter Stewart: And you don't know what did happen, do you?
Charles Tarter: I don't know what did happen at the preliminary hearing. There's no way to know.
Potter Stewart: Now, if you prevail here, there cannot possibly be a retrial and another conviction, can it? Because we cannot turn back the clock, we cannot unring the bell, we cannot now provide counsel at that preliminary hearing many years ago.
Charles Tarter: That's correct.
Potter Stewart: So, this man -- these people have --
Charles Tarter: The same as -- the same as --
Potter Stewart: -- discharge.
Charles Tarter: That's true as in other case, of course, with this Court have decided. There's no other way, I cannot --
Hugo L. Black: What do you have said should be the result?
Charles Tarter: The result --
Hugo L. Black: If this was found, he's entitled to have a lawyer on the preliminary.
Charles Tarter: If he was entitled to have a lawyer in the preliminary hearing, I assert that they should be turned loose.
Hugo L. Black: Is that the only alternative you can suggest?
Charles Tarter: It's the alternative, only alternative I can see, if Your Honor please, there's no way to give us a new and fresh preliminary hearing. If you could, I really would rather, it would be that way. I would give anything in the world, if this Court could give us a new and fresh preliminary hearing. But of course, you cannot do that.
Hugo L. Black: Why not? I just suggested that it could not, but why do you think that?
Charles Tarter: Well, that the testimony is now -- the eye witness is now committed, you see. He's now been -- well, we all know as practicing lawyers that a District Attorney spends a substantial time with the case like this on an eye witness. Now, I'm not saying that he told him to say this, but the power of suggestion is a magnificent thing. And, I'm saying that in this particular case, this witness have said numerous times that he could not identify these people, that he did not believe that he could identify him. He gave a description totally opposite from that of the defendant's.
Hugo L. Black: Did you offer that evidence?
Charles Tarter: Yes, sir. It's in the record. I think, it's in --
Hugo L. Black: You offer that evidence, to show the jury that he had made such statement?
Charles Tarter: Yes, we did. We offered --
Hugo L. Black: Was it admitted?
Charles Tarter: As best as I can recall it was -- I think he denied it. Or he admit it at the motion to suppress and denied it at the trial, as my best judgment. But, the best example to you, with regard to this state, believing in the confidence of the eyewitness. In answer to your question is believe in the Congress -- they took a boy who was out there that night and granted him immunity and put him on the witness stand, in order to support the testimony of the eyewitness, which says to me they didn't have confidence in the eye witnesses testimony either, but they put him on there when they had him just as much did the right, so to speak on the identification, as they did with the petitioners.
Potter Stewart: And that he identified both of these petitioners, as being his colleagues that night?
Charles Tarter: He said that both of them were there and John Hudge, another individual who was in the lineup, Ode Stevens testified -- Ode Stevens, one of the defendants testified at the trial that John Coleman was not there. He testified that Robert Steel, the prosecuting witness granted immunity was in fact there. They were the four that were there, not John Coleman, John Coleman was there, Ode Stevens admitted that he was there. So, John Coleman is either -- is the innocent party, I appreciate the indulgence of the Court.
Hugo L. Black: Was it -- that the stated taken this case before the grand jury, wouldn't have done it that was anything before trial.
Charles Tarter: That's correct, if Your Honor please, they don't do it in 95% of the cases.
Hugo L. Black: And you don't deny that they have the right to do that in Court?
Charles Tarter: I don't deny that they have a right to do it. Once again I say, they do it in 95% of the cases. I assumed if this Court decided that they were entitled to counsel, they could in fact reverse and go take all the cases to the grand jury, but if they did, it would shock everyone, including me.
Hugo L. Black: Could I ask you one more question.
Charles Tarter: Yes, sir.
Hugo L. Black: Apart from what you argue might have been done, at the aid of this event. If the preliminary hearing had been held to counsel, can you point that aid specific prejudice in the record that was altered from preliminary hearing themselves? In other words, what I'm asking you, assuming you prevail on your basic point. Is there any margin for a harmless error rule in this case?
Charles Tarter: I don't think so, if your Honor please, there was the question brought up by Justice Stewart just a moment ago, with regard to the fact that Pointer versus Texas pointed out that if a statement was made at the preliminary hearing, that it could not be used against him at the trial without lawyer, but I suggest to you that here is the point that the Court has failed to see. If a defendant without a lawyer makes a statement at the preliminary hearing, before the magistrate granted, it's not admissible at the trial. But what if he said at the preliminary hearing, “Well, I was at home with my mama and my sister.” And then, okay that's not admissible, but then let's say that, he makes that statement at the trial of the case and the police take the fruits of that statement that he made at the preliminary hearing. The results of the statement that he made at the preliminary and goes out to his mama and his sister and says, “Wait,” or the next day or that afternoon and said, “Was he there? What was he doing, blah, blah” And a full statement from both of them, so they have taken the fruits of what they have said at the preliminary hearing and it would be prejudice. So, I can't see --
Speaker: In your -- it wasn't called by the state, this preliminary hearing --
Charles Tarter: The -- as I understand, the magistrate asked him if -- asked both of them if they wish to make a statement, asked both of them if they wish to testify. Now, whether or not they were advised, they did not have to testify anything they said, as a result of it, it could be used against him and so on and so forth, I don't know.
Potter Stewart: How do you have any -- excuse me.
Warren E. Burger: Did they testify?
Charles Tarter: I believe that they did.
Hugo L. Black: Did what?
Charles Tarter: I believe that they did, there's not anything in the record to indicate I wasn't there, there wasn't no records, so I don't know. But they may not have testified, they may have testified, I don't know, whether they did or not.
Potter Stewart: That was my question, how do you have any idea at all if what did happened at the preliminary hearing.
Charles Tarter: Just the admission by the state that there was a preliminary hearing --
Potter Stewart: But, there was one.
Charles Tarter: And that they were bound over to the grand jury --
Potter Stewart: There was no transcript made.
Charles Tarter: No transcript made, I don't know --
Hugo L. Black: What judge conducted the preliminary?
Charles Tarter: Judge Robert W. Gwen, you recall he used to be in Mr. --
Hugo L. Black: No --
Warren E. Burger: Could he had been called at your earliest stages and asked to testify what had taken place at the preliminary hearing and was any effort made to get his testimony?
Charles Tarter: The petitioners?
Warren E. Burger: Oh, the judge's testimony, about what went on at the preliminary hearing to reconstruct the record.
Charles Tarter: Here's what happened in that Mr. Chief Justice, I attempted to subpoena the judge in the records and the three lawyers to prove what happened at the preliminary hearing, the opinion as to the criticalness of the preliminary hearing. There's -- some refused to allow me to get into it and I was almost --
Hugo L. Black: Refused to let you examine the judge?
Charles Tarter: Refused to let me go into this question of the lawyer appointment, then the critical stage of the preliminary hearing --
Hugo L. Black: Well, did you summon the judge to attempt to prove by him or that had been said or --
Charles Tarter: Yes and Judge Gibson would not let me go into it. I simply proffered --
Hugo L. Black: Is that one of your basis of appeal?
Charles Tarter: No, that's an evidentiary question, and I can't say that that question should be proffered before this Court as to whether or not it's admissible or not admissible. But he did allow me to proffer what I would have offered, if he would have allowed it. Now, that's a ridiculous thing, but that's what happened. I just made a statement in the record that I would have offered the testimony of statistics to show that 95% of all criminal cases come to the preliminary hearing, before going to the grand jury. That there was a preliminary hearing held and that they were bound over to the grand jury.
Warren E. Burger: But this is not the question that we have been pointed out at, at least that I have, the question was, did anyone prevent you from calling the judge who held the preliminary hearing and have that judge testify in a hearing what had taken place.
Charles Tarter: Yes.
Warren E. Burger: Just that one thing.
Charles Tarter: Yes, to answer your question in simple word, yes.
Hugo L. Black: Where is that?
Charles Tarter: They would -- they would not let me go in to --
Hugo L. Black: Where is that in the record? That you summoned the judge and had in there and offered to prove by him, what had happened on the preliminary trial?
Charles Tarter: No I didn't subpoena him, this was all.
Byron R. White: What part didn't have three lawyers?
Charles Tarter: No, neither did I have the three lawyers in the courtroom.
Byron R. White: And they are offered proof, you didn't say you would have prove from the judge and --
Charles Tarter: To be honest with you, I don't recall.
Warren E. Burger: As I read that part of the transcript counsel, you offered to prove by lawyers, the importance and devaluing of the presence of the lawyer at a preliminary hearing and I do not recall that you had anything in your proffer relating to what the judge would say.
Charles Tarter: I don't recall, of Your Honor please, I remember Judge Gwen was there earlier that morning when we're in the motion. And Judge Gibson informed me in his office, he would not let me go into it and wouldn't let me make a statement the following morning about this. Now, whether or not I did, I specifically, to say specifically that I did, I can't recall. I made a long statement in the record, of what I hope to prove, if it had been allowed. I simply do not recall specifically, I know that Judge Gwen is on the same floor, where this was held. I know that he was there, the morning before, but I do not recall whether or not I actually, specifically made the statement.
Warren E. Burger: If at the time from examining this record, anything that shed light on this, you have liberty to call our attention to a specific part of the record, in which it appears and of course, send your friend a copy of whatever you send us.
Charles Tarter: About the judge testifying or not testifying?
Warren E. Burger: Right. Now Mr. Tarter, you acted at the appointment of the court, and we thank you for accepting that appointment for your assistance.
Charles Tarter: Thank you, Your Honor.
Warren E. Burger: Thank you for your submission, gentlemen. The case is submitted.