Earl Warren: Number 12, Robert Mack Bell et al., Petitioners, versus Maryland. Mr. Greenberg.
Jack Greenberg: May it please the Court. This case is here on writ of certiorari to the Court of Appeals of Maryland. Petitioners have been convicted of violating Article 27, Section 577 of the Public General Laws of Maryland, the trespass statute which is the same statute that -- that was read to you by Mr. Rauh and was the statute that was involved in the Glen Echo case. They were indicted on a two count indictment, which appears on page 6 of the record stating that the petitioner unlawfully did enter upon and cross over the land premises and private property of a certain corporation in the State to with Hooper Food Company, Inc., a corporation, after having been dully notified by Albert Warfel, an agent, not to do so. Second count of the indictment charges that they entered this property which was then and they are posted against trespassers. They were found guilty on Count One, fine $10 and caused the fine being suspended. They were acquitted on Count Two. Petitioners claim that their convictions violate the Equal Protection Clause of the Fourteenth Amendment and that the criminal proceedings and judgment enforced racial segregation against them. They also claim that the judgments below violate the Due Process Clause of the Fourteenth Amendment in that there was no evidence to sustain the conviction under the indictment and statute which have just been read. Or if it were to be held that there was sufficient evidence, the indictment statute did not give them fair notice required by the Due Process Clause.
William J. Brennan, Jr.: Was that question raised in the state court?
Jack Greenberg: It was raised, I believe, sufficiently to present it here particularly in terms of the free speech argument and I think vagueness argument and free speech argument are really different ways of saying the same thing in a case such as this.
William J. Brennan, Jr.: Well, is that, Mr. Greenberg, you say it was not raised in terms?
Jack Greenberg: It was not raised in terms but I think it was raised sufficiently to be here as in Wright against Georgia and other cases where free speech and vagueness in a case such these are intimately linked. But --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: I -- I go along with that. I think we argued it first. I don't want to be said that we're adopting it. It appears at length in our certiorari petition and in our brief.
Potter Stewart: He's adopting your argument position?
Jack Greenberg: Well, I would let him characterize it. But it -- it is an argument upon which we rely. However, we will not argue it orally because this is the only argument the Solicitor makes and I suppose this is the one that he will be arguing orally. The facts of the case are in many respects similar to the facts of the other cases which have just been argued. June 17th, 1960, a group of 15 to 18 Negro students among whom where the petitioners who numbered a dozen, entered the lobby of Hooper's restaurant in Baltimore, they were met by the hostess at the door or rather within the restaurant, beyond the door and she stated, "I am sorry but we haven't integrated as yet." The restaurant manager, Mr. Warfel, whose name appears in the indictment, came up at this point and began to talk to the petitioners. He testified that he told them it was company policy that we haven't integrated the restaurant. And then he said in the process of translating the company policy, the group broke. They've brushed by us and sat at various tables in the restaurant and after they were seated, they proceeded to hedge (Inaudible) which is explained as then spreading out and sitting at various other tables in the restaurant. The owner of the corporation operating the restaurant arrived and instructed Warfel to call the police. When the police arrived, the petitioners were seated at various tables, some upstairs, which was a restaurant, and downstairs, which was a cafeteria and grill. Warfel read the Maryland Code to the petitioners. Clerks and waitresses took down their names and then Mr. Hooper went to the magistrate to obtain warrants. There is no question that they were refused service and an effort was made to eject them from the restaurant solely on the basis of their color. Hooper made it clear that he agreed with the petitioners' objective. He testified that, "I go on record as I favor what you people are trying to do." He also said, "I told Mr. (Inaudible), who was one of the petitioners here, that I felt personally that it was an insult to human dignity. I sympathize with it and also told them that my customers govern my policy." Petitioners' equal protection argument in this case is presented in three parts and it's essentially the same, the petitioners have made in the -- in the cases preceding this one that is that we submit that the arrest and conviction here served only to enforce the racially discriminatory decision of the owner and then consequently, under Shelley against Kraemer, which was argued at length by Mr. Rauh and other cases holding similarly. The State has participated to some significant -- significant extent in enforcing and encouraging racial segregation and that such state action is forbidden by the Fourteenth Amendment. We wholly urge such an argument upon the Court but in view of the fact that it has been argued at length previously, we will prefer to concentrate in this oral argument upon other aspects of the question. Petitioners submit -- submit also as in the other cases that the choice of the proprietor was not an authentically private decision but as -- is abundantly demonstrated by the record was influenced by the custom of the community. In fact, this -- in this case, it is more clear that in any other because Mr. Hooper said that, "I wholly believe in what you're trying to do. I completely agree with you and sympathize you but my choice is influenced by the community." This choice of the community in turn, we submit, was to some significant extent and that is the terms of burden to a significant degree. And we submit that in this case, the significant has been influenced by historic pattern of Maryland laws which had the purpose of sustaining a segregated society. I think it should be recognized that upon these convictions occurred, Maryland had not, in the sense that has been suggested here, turned the corner and started enacting public accommodations, legislations and so forth. At this time, the Maryland was a State without laws of that sort. And we say that under such circumstances, the very least, state action should be held to have a role in state custom unless something to the contrary, something contrary to common experience to show. We say that it is beyond belief that a State such as Maryland, which although its policy is now in the process of change, has not helped to create and shape the existing state, what, segregation custom. Well, for many years, it has had a statutory policy of requiring racial segregation in many institutions of public life. This is not the charge, the present regime in the State with wrong doing but rather simply to recognize that state responsibility for a custom having once attached, continuous to play a role in what occurs in life. And to this extent, we submit, the State continuous or at least at the time of this conviction certainly did continue to be involved to a significant degree in the manifestation of the custom which it had helped to create, shape and perpetuate. It maybe that -- that a simple analogy would -- the -- instructive or descriptive it's -- as if one has poisoned the well and then later repented and sought to cleans it. Nevertheless, some of the residue of the poison remains and members of the public drink it. All we're saying is that the man who poisoned the well is, to some significant degree, involved in the owners that has before and those who drank the water even though he has repented and made efforts to undo what he did.
Potter Stewart: I suppose this is a silly question. It's already been made in the previous case and that is whether customs produce laws or laws produce customs.
Jack Greenberg: I think both occur obviously. Customs produce laws and laws produce customs but to the extent that laws produced or shaped customs, the State is significantly involved in them.
Potter Stewart: Generally speaking, that laws reflect the -- the mores of the community that they rather than create them.
Jack Greenberg: Well, I think sometimes they do, sometimes they represent either the enlightened or unenlightened views of the community leaders who are either ahead or behind of the community. I -- I think it depends on the law and the situation. Sometimes one and sometimes the other but I think it is beyond doubt that the -- once the law is on the books, it then plays a role in influencing and -- and educating, encouraging and shaping figure (Voice Overlap) --
Potter Stewart: Now, there's no law of any kind here directly affecting this restaurant, was it?
Jack Greenberg: Not in the segregation sense, no (Voice Overlap) --
Potter Stewart: That's (Voice Overlap). The -- the laws you have collected in footnote --
Jack Greenberg: It's on page 30 --
Potter Stewart: -- in page 31 and page 32, what you been able to find, I suppose (Voice Overlap) --
Jack Greenberg: That's correct.
Potter Stewart: And now as I understand it, Maryland has a -- a law looking at a way requiring non-discrimination.
Jack Greenberg: Covering some of the county of the State.
Potter Stewart: In -- in some of the county.
Jack Greenberg: Yes. And Baltimore has an ordinance also, this has happened since these convictions. In addition to the custom argument already argued, petitioners would urge upon the Court other fundamental considerations that is that in this case, as in the other cases at bar, the State has upheld the claim of the proprietor, in this case, called the property right against the claim of the petitioners for equal treatment. The Criminal Court of the City of Baltimore has held as a matter of Maryland law, in the absence of appropriate legislation forbidding racial discrimination, the operators of privately owned restaurants, even though generally open to the public, may discriminate against persons of another color or race however if you're unjust such a policy maybe deemed to be. And the Maryland Court of Appeals has held in the context of the racial issue in this case that private citizens retained the right to choose their guests or customers and furthermore, that this and maybe enforced by the criminal law of the State. Now, we submit that this is not the neutral declaration of a common law that always was and emanated from nowhere but rather the expression of a ranking of values on behalf of the State which in the terms of Erie, we quoted in our brief that there is no transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute. And Justice Holmes, as a number of times written in the same effect as quoted in Erie and -- and in our brief. But the law of property of a State and its ranking of property claims as again -- against others is, we submit, subject to the requirements of the Fourteenth Amendment. It's held in Marsh against Alabama and Shelley against Kraemer, that property rights must be created and for subject to the Fourteenth Amendment. We submit that the values of the Fourteenth Amendment by the nature of their constitutional position are dominant. The State denies equal protection of the laws when it ranks above these values, the claim of a proprietor open to the public and licensed by the State for the purpose of being open to the public, the right to exclude some persons from his establishment so in the grounds of race.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, I would say that the Fourteenth Amendment, Mapp against Ohio, Mr. Justice Harlan's opinion in Poe against Ullman and other cases indicate that there is a constitutional right of privacy which in the -- the case of a private home, I would submit , would be dominate against something of this sort. I think the public place can make no such claim and in fact is so thoroughly regulated that -- that it's not the same sort of situation.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, I think if it were a genuinely private club, yes. It -- it would partake of the privacy protection if it were a -- a sham, a -- a place open to the public under the name of the club and there have been cases under public accommodations statutes to this effect and when it's been found to be a club it has been held to would have the right to make choices of this sort no matter how reprehensible. And when it's been found to be a place that's going under the name of a club just to be able to discriminate the state commission that you said you can't do that. And I think it would be the same kind of result.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: A bind cooperative?
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, I would think -- again, I -- I am not too familiar with the operation of -- of that type of -- of an operation. I just wouldn't know. I think it would depend upon how genuinely public or private it was. I just don't know. I once belonged to a cooperative grocery store and as far as I can tell, it's like any other grocery store and I don't think that it should be permitted to discriminate. On the other hand, if there were some element of privacy in it, it might be different. The church case we discussed early this morning would involve considerations of First Amendment rights of religion. And again, I don't feel that it's -- it's necessary to argue how something like that would come out at the time like this. I think that the values to the -- the considerations to be taken into account are -- are fairly clear. It is the position of petitioners that the extent that this ranking is in the form of the application of state power or refusal to act to protect the Negro citizen in this claim of equal service. The State has as much responsibility as if it has affirmatively sanctioned the exclusion in terms of -- of positive legislation. State inaction in various circumstances has been held to deny equal protection of the laws and burden the failure of the State to insist upon a non-discrimination clause and at least would play a role in the decision was held to -- was so characterized. Terry against Adams, of course, was a case in which in most views, the State did nothing and thereby, state action in the constitutional sense appeared. Various cases in the Court of Appeals to the Catlett and the Lynch case cited in our briefs take the issue and deem the civil rights cases themselves. This Court assumed that the States were living up to their responsibilities in taking the affirmative action necessary to protect the Negro citizens and only in view of this, was the judgment of the Court rendered as it was. The form that the state protection would have to take is not an issue at this point. The only thing petitioners submit is that a fortiori, certainly, a criminal conviction cannot be imposed under these circumstances. The principle argument made against this type of position is that the logic leads too far that -- that there is no state responsibility here because it would lead to an absurd result in the -- in the case of a club or a church or a home. I notice no one -- everybody gives the case in terms of little boy asking for cigarettes or somebody been thrown out of a home or somebody being thrown out of the church was the case we have here. It's a case of a place fully opened to the public, fully subject to regulation. Indeed, due process of law is not taken away from such a property owner when a state requires to serve Negroes. I would submit due process of law would be taken away from a home owner if he were required to have a guest in his home no matter what the race. And we submit that these reductio ad absurdum arguments are self-defeating because by being so far removed from the type of case that we have at hand here. They indicate type of case we have at hand is one surely within the protections of the Fourteenth Amendment.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: No, I would not. In fact, I have -- that's my case. I have a case involving not a lunch counter but a restaurant, that's correct, yes.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Yes, I would say the State has an affirmative responsibility to protect and form that would take is -- involves other questions but certainly, a fortiori, we can't have an arrest and a conviction and -- and we would submit that for these reasons, the conviction in this case should be reversed.
Mr. Attorney General: Mr. Chief Justice, may it please the Court. The facts in this case are certainly different, we believe, and -- from the other cases presented here particularly on the application of the trespass statute. For here, there was a warning given. The petitioners have perhaps crossed over the manner giving the warning but it's perfectly clear from the testimony of the leader of the group (Inaudible) in the record that they were not permitted to seek themselves in the restaurant due to the statement of the hostess that they had not integrated yet. And the trial court took this into consideration, if you will note the opinion of Judge Burns in the court below where he noted that they were refused seats in this restaurant. The physical layout of the restaurant is perhaps important to the Court's decision here in that there was a lobby. The petitioners entered the restaurant through a revolving door and came into a room known or referred to in the record as the lobby. At the end of the lobby, arms of the door there are four steps. At the top of these steps, the hostess was stationed. And it is the common practice in this restaurant for the hostess to see all customers coming into the dinning area. There is a fence separating the dining room and the lobby in this restaurant. Now, the Maryland trespass statute not only prohibits entry but it prohibits crossing over. These petitioners crossed over a portion of the premises -- of the restaurant premises after being warned not to do so. Not only did they enter the dining area and go downstairs after warning, they crossed over a portion of the premises. And this is precisely what the Maryland statute prohibits. The -- there's another element in this case which is of significance, we believe, and that is that the police refused to arrest the petitioners. The polices were called by the owner some time after the petitioners had entered the restaurant and after the owner and the manager of the restaurant had, at length, conversed with the leader of the group to try to persuade them to leave peaceably. He explained his policy to them. He stated that he was segregating, refusing service simply because his customers did not want to eat with Negroes. That is the only reason he gave. The police were called by the owner after he could not persuade these persons to leave and when the police arrived, they refused to even read the trespass statute. This was done by the restaurant manager himself. The police took no part whatsoever in the goings on in the restaurant itself. The owner had to go all the way down to the police station to swear out warrants. He went down to police station and the -- the magistrate apparently called or was called, it's not clear from the record which by the petitioners and they made arrangements to voluntarily come down to the court the following Monday on their own recognizance. There was no custody taken. There was no arrest. The State in this situation is certainly a neutral party. Now, we feel that under the facts and circumstances of this case that this Court is faced with a square decision on whether state criminal trespass conviction of Negroes protesting racial segregation policy in a private restaurant, in a private building constitutes state action proscribed by the Equal Protection Clause of Fourteenth Amendment where neither local laws nor custom requires segregation. Now, the mere recitation of -- did statutes does not, in our view, constitute any state custom on the part of the State of Maryland. As far back as 1960, Chief Judge Thompson of the United States District Court in the District of Maryland in a case in which custom was a factual matter before the court decided in Slack versus Atlantic White Tower. That as far back as 1957, there was no custom of segregation in -- in Maryland. Furthermore, there is no evidence before the Court in support of the petitioners' contention that there was such a custom. On the other hand, the petitioners' leader admitted that on a previous occasion or on several previous occasions, in the same general area, in the same community, they had sat and had been served in restaurants. This is certainly very damaging admission on the part of the chief witness for the defendant, the petitioner says in this case if they had been served in other restaurants in the community. Certainly, this negates any community custom of segregation. There's no other evidence to the contrary either. The owner in this case would not be penalized in anyway because he admitted Negroes. There would be no state action that could be taken to forcing to admit Negroes. He had no contract with any other restaurant owners. He -- the -- there was no state law, there was no state policy, there was no state action on any -- in any respect that could compel the restaurant owner here to segregate his facility. On the question of licensing, in Maryland, there's no difference between the licensing of a club in which persons are excluded and a restaurant except where the facility, no matter what it maybe, is operated without profit to the operators. And this is the only distinction made in the licensing statute which is Section 8 (a) of Article 56 of the Maryland Code. The health statute which involves the regulation by the State on the grounds of sanitation etcetera, applies to all facilities whether they'd be country clubs, private eating clubs, whatever they may be.
Speaker: (Inaudible)
Mr. Attorney General: Yes, in that case there was a -- a rat infestation in the home and the -- this Court ruled that where there was evidence outside the home that there was such a rat infestation but a health inspector could enter the house. Now, the Maryland statute certainly isn't directed at sit-in demonstrations or segregated facilities or neither this sort of thing. And as a matter of fact, there was a prior case in Maryland Court of Appeals in which the statute was tried to be applied. It was -- it was overruled by the Court but in Krause versus Maryland, the Court stated that the statute at the least would've been applicable if notice had been given in a case where there's a repossession of an automobile in a man's property. The only question involved there was that whether there was a notice given and the Court there found there was no such notice. The owner wasn't there at the time and that the people went on the property and the only forewarning they had was that he had leaned on the car. The -- all trespassers, regardless of their race, color, sex, color of hair or what -- whatever manner that they -- or whatever characteristics they have that the owner of private property in Maryland that wishes to call into play to forbid their entry are equally guilty under the Maryland trespass statute. If a woman wants to go into a stag bar and the owner doesn't wish to let her enter, I don't think that she could call upon the Fourteenth Amendment in this situation. The Fourteenth Amendment says nothing about race or color. It merely says a State shall not deny equal protection. In fact this Court, in Brown versus Board of Education said that after an exhaustive study of the debates in Congress and other materials available at the time the Fourteenth Amendment was passed, the time the civil rights bills were enacted that this Court could not determine with any certainty what the Fourteenth Amendment was aiming at. That was stated in the -- a unanimous opinion of this Court in Brown versus Board of Education.So I think that the remarks of Mr. Justice Goldberg in this regard that the Fourteenth Amendment and the Thirteenth Amendment must be read together is not quite the meaning which was given to the Fourteenth Amendment by this Court on that occasion nor --
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: No, they -- they certainly had something to do with Negro rights but that is not the only thing that they had to do -- deal with.
Arthur J. Goldberg: This is the argument involved in (Inaudible)
Mr. Attorney General: I'm not saying that they are not applicable and in fact, it's -- it's perfectly clear that they're applicable to the Negro situation that the example that was cited by Mr. Justice Goldberg, I believe was the civil rights cases and I think that the discussion there as in the slaughterhouse cases was on the privileges and immunities.
Arthur J. Goldberg: (Inaudible) It's not "restrictuity".
Mr. Attorney General: The Fifteenth Amendment, again in your theory in Smith versus Allwright, does state that the -- the right to vote shall not be denied on the grounds of race or color and that's clearly such case. The Fourteenth Amendment includes a -- a whole bundle of rights. This Court has used it to enforce the rights of the First Amendment -- Fifth Amendment and other Amendments of the Constitution. It's not simply a protection due to the expression that's been used in some of the cases, the badge of slavery. The Amendment just hasn't been determined to be that in all the cases. Now, it can hardly be said here than that the State compelled or coerced or mandated or commanded the discrimination. If the court to -- the State here had no connection whatsoever with the decision of this owner to segregate his particular restaurant nor were rights that are constitutionally protected denied to the petitioners. Now, in the civil rights cases, it was made clear that there must be an abrogation or denial of rights for which the State alone could be held responsible. This was a fundamental wrong that was intended to be a remedy. The distinction that can be applied to Shelley versus Kraemer here, I think, should be looked down in the light of some other situations. For instance, where there is a -- a will in which there is a testamentary clause which prohibits the -- a share of the State can go to one of my sons who marries out of the Hebrew faith, such was the case in Gordon versus Gordon which came up to this Court after Massachusetts had stated that such a discriminatory clause in the will which was given effect by the courts of the Massachusetts was perfectly valid. This Court denied certiorari in that case and another situation, the Girard Trustees case which came up to this Court from the courts of Pennsylvania. In that case, it was held that there was no prohibited state action when the provisions and the testamentary instrument, there, the will of Girard, set up a trust to be exercised in the first instance when the case came up before this Court by the City of Philadelphia. Thrown out on those grounds kept -- court in Pennsylvania then appointed individual trustees which continued the discriminatory policy of this Girard College which was set up under the trust. When the case again came before this Court on certiorari, the Court denied certiorari. Now, it's hard to -- to look at those cases or it's hard to justify the results in those cases with the result sought by the petitioners here on the grounds of state action. Another case is the Black versus Cutter Lab in which there was a discriminatory provision in a collective bargaining agreement which actually was decided in this Court not to be a grounds of state action. There are other examples that perhaps could be raised. Now, several cases have been mentioned to this Court as -- today, which I think deserve a little comment, and one is Marsh versus Alabama that -- and comparing that with Terry, for instance, to find that some positive action on the part of the stage called for. First, it should be born in mind that these cases involve rights that were reserved by other Amendments of Constitution. In the Terry case, it was the Fifteenth Amendment which certainly has a -- a definite connection with the racial issue to the words of Amendment itself and perhaps calls for a stronger state action. The other involves the First Amendment. And here, we don't have any such thing that here, the -- the parties that came on to the property and -- were refused service didn't have any rights to be there. Now, the mere denial of the rights by the failure to give them redress, certainly, shouldn't amount to state action. I don't think the court has ever gone that far.
Earl Warren: Did they have a right to go in the café and so they were told (Inaudible)
Mr. Attorney General: Well, that's a question -- yes, I believe that's so.
Earl Warren: (Inaudible)
Mr. Attorney General: They were inside the -- they were inside the door.
Earl Warren: (Inaudible)
Mr. Attorney General: At the steps where the hostess was located.
Earl Warren: What did say (Inaudible) that was in the record.
Mr. Attorney General: What did who say?
Earl Warren: What do they know about (Inaudible) at that time?
Mr. Attorney General: They were told weren't segregate -- weren't integrated yet.
Earl Warren: They weren't integrated (Inaudible)
Mr. Attorney General: And they were refused --
Earl Warren: (Inaudible)
Mr. Attorney General: They were refused to be seated at that time.
Earl Warren: I beg your pardon.
Mr. Attorney General: They're -- they were not permitted to be seated.
Earl Warren: (Inaudible)
Mr. Attorney General: But the question is --
Earl Warren: (Inaudible)
Mr. Attorney General: No, but they disregarded what the hostess said and they crossed over to where the seats were.
Earl Warren: (Inaudible)
Mr. Attorney General: They all came in the same door.
Earl Warren: They didn't but they weren't all there. (Inaudible)
Mr. Attorney General: I think according to the record, they were cross testimony --
Earl Warren: (Inaudible)
Mr. Attorney General: Your -- Your Honor, probably, you're speaking of the testimony of the owner about a previous incident in the restaurant where some of the people went into the bar. In this case, they all came in the same door into the lobby.
Earl Warren: (Inaudible)
Mr. Attorney General: No, sir.
Earl Warren: (Inaudible)
Mr. Attorney General: They all came in the same door and they congregated in the -- in the lobby. After the refusal to let them be seated, part of them pushed by the hostess and reseated in the dining room at various tables and the others went down the steps to a grill which is in the basement but they had been warned prior to doing this. And this is evident from the -- their own leaders' testimony, pages 42 and 43.
Earl Warren: Who had warned them?
Mr. Attorney General: The -- both the hostess and the manager had warned them.
Earl Warren: By saying, "You have to leave the premises"?
Mr. Attorney General: Yes, sir.
Earl Warren: That means that they were prohibited from being on the (Inaudible)
Mr. Attorney General: I think it was understood to me in that, yes sir.
Earl Warren: (Inaudible)
Mr. Attorney General: Yes, sir.
Earl Warren: So that's what I'm trying to (Inaudible)
Mr. Attorney General: That's right.
Earl Warren: (Inaudible)
Mr. Attorney General: That's right. And one of the -- one of the petitioners, if -- if I remember correctly in the record, says that they were refused seats. And another point, he says that they knew that they're going to be arrested. This is part of their technique of demonstrating in this restaurant. It could be said that they had actual intent to be arrested in this case as part of their technique for -- for the --
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: I believe in this case, it would your crossing over, it could be entry too, either one.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: No, they weren't. There was another --
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: That's right.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: That's right.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: Oh, very definitely.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: Simply because -- there's another Maryland statute, Section 576, I believe it is, which says there were signs are posted and there is entry. Then that's the crime. Now, it would be --
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: There were no signs, no, sir. But whether the -- the actual crime took place at the street or at the -- inside the lobby doesn't particularly matter here as long as the facts show that there was a crime committed, and merely moving out to the street doesn't help I think. On the question of vagueness, certainly, this Court's decision in Alford versus United States is far more difficult to understand than what the Maryland Court of Appeals did in this case. Now, the Maryland Court of Appeals found that there was a crime committed if a statute was violated whereas in -- in Alford and this is the first instance that anyone had come up under this situation, in Alford, there was a statute which prevented the construction or the building of a fire near a forest in the public domain, that's all the statute said and the man was convicted for building a fires -- a fire near the forest. Now, he was the first one to come before this Court or any court in which the -- an appellate court anyway, determined what that statute meant. And the Court upheld the conviction. Now, certainly Maryland statute is not only clear, words are easy to understand but there was without a doubt a -- a warning not to enter the particular parts of the restaurant where the petitioners went after which they entered and crossed over of those portions.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: I'm not aware of that case, Your Honor.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: I think that perhaps in that case, you have a -- a little bit different construction of -- of the wording. Isn't that a case where there -- there was a -- an agency which determined what the words were.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: I see.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: Yes, sir.
Arthur J. Goldberg: (Inaudible)
Mr. Attorney General: I appreciate your suggestion. Well, in -- in summary, I would say that if the basis of constitutionality of such conviction is neutrality part of the States which, under the decisions of this Court for the past hundred years, appears to be the standard, then the State of Maryland cannot be held responsible for this conviction. If anything this -- the officers of the State here discouraged the owner from bringing the case even in the court, they required him to go down the police station which in a number of cases, I wouldn't even do. There was no evidence at all that the police said any forewarning of the -- the incident that took place or there was any state encouragement of the -- the segregation policies of the restaurant. They had no ownership rights in the building or the -- or the -- of the restaurant itself. There was no one in this -- in the state employee that was working there. All the mitigating factors that -- that seem to valid this Court in -- in rendering its decisions in this field are absent in this case. And it doesn't seem to be an easy way to -- to reach a decision one way or the other on the primary constitutional issue raised. Therefore, the State of Maryland respectfully submits that the judgment below should be affirmed.


Earl Warren: Number 702, Ronald L.Johnson, Petitioner, versus Massachusetts. Mr. Harrington, --
John M. Harrington, Jr.: Mr.--
Earl Warren: -- did you want to get some of your records or you could go right ahead, that's alright.
John M. Harrington, Jr.: Mr. Chief Justice and may it please the Court. This case comes here on certiorari to review a judgment of the Supreme Judicial Court of Massachusetts. By that judgment, the Supreme Judicial Court affirmed the judgment of the trial court which imposed the death penalty on Ronald Johnson, the petitioner here. The trial court imposed the death penalty following Johnson's conviction by a jury of first degree murder. The issues which this case brings here arise out of the use at trial of a question and answer statement amounting to a confession which was used over objection. Those issues -- first, as to whether on the facts which are undisputed that confession could've been determined to be voluntary or conversely must be declared to be involuntary. And the other issues which arise with respect to that confession, I would respect to the procedures used by the Massachusetts Courts with respect to that confession. Addressing myself first to the first issue I mentioned, the facts which are undisputed are as follows: the petitioner Johnson was taken into custody at approximately 9:30 PM on the evening of August 1st, 1963. Immediately prior to his being taken into custody he had been the object of a pursuit. The shooting for which he was subsequently indicted had occurred at approximately 9:00 PM of that evening. Johnson was pursued in the car which he was driving by several -- by succession indeed of police vehicles. And the car he was driving was then in a collision with a bus. Johnson emerged from that car on foot and after a relatively brief foot pursuit he was apprehended under a porch and brought by policemen to a police box and that's in a police car to the local station house in the District of Boston known as Roxbury. There, Johnson was booked and he was booked amid circumstances which the trial judge found were attended by confusion, turmoil and strain. He was plainly injured at the time, there's no question that he was bleeding on the head and around the neck at the time he was booked. He was then placed --
Potter Stewart: Supposed -- is there any question but that the -- his condition at that time was a result of the collision with the bus?
John M. Harrington, Jr.: I don't know. He -- there was a collision with a bus. He emerged from the car which was badly damaged, no question to that, but I don't know as to -- I make no contention either way on this, I -- but I don't know and I don't think it was clear in the record. It merely was perfectly clear that he was bleeding and was injured at that time. He was placed in a cell and he was given some first aid, this at the local station house. And at the local station house occurred the first of several confrontations.
William J. Brennan, Jr.: This is how long after he was booked?
John M. Harrington, Jr.: Oh, the record is not entirely clear on this but it would've been inevitable between 9 -- he was booked at 9:35. He was taken into custody at 9:30; he was booked at 9:35 on suspicion of murder. He was taken down to the police headquarters which is five miles away, sometime around midnight, so that, the first of these confrontations, there maybe a record time on it but I'm not going to take the time to search it out, it was in this interlude.
William J. Brennan, Jr.: Meanwhile, the medical attention he received, you say first aid?
John M. Harrington, Jr.: Essentially first aid, a doctor --
William J. Brennan, Jr.: (Inaudible)
John M. Harrington, Jr.: A doctor. A doctor and a -- the cut was cleaned off and a -- some -- a bandage put on it. And then this confrontation was conducted by a Lieutenant Donovan who was the officer in-charged of these proceedings throughout the rest of the night. And it consisted of being a -- Johnson being identified by a witness and a little colloquy of an equivocal nature and it be -- that colloquy being recorded by a police stenographer who was there, who was not identified to Johnson as such. I state at this point that it's perfectly clear and there's no dispute about this that at no time during the evening up until this question and answer confession which occurred at 6 o'clock, had at no time in the custody of the police was Johnson warned that he might be silent, that anything he would -- said would be used against him or that -- as a matter of fact, I'd better put it in the words of the trial court who was -- said it quite plainly on his -- on some findings which appear at page 2 -- 329 of the record. No police officer told the defendant at any time from the time he was taken into custody at the rear of 20 Fernwood Road until he had completed his statement to Lieutenant Donovan that he had the right to remain silent or the right to refuse to answer any questions put to him by the police or that anything he said to the police might or could be used against him. So, that is clear as throughout the evening. After -- at some point after this confrontation as --
Potter Stewart: And this was August 1st, 1963?
John M. Harrington, Jr.: August 1st, 1963 prior of course to the Escobedo decision and prior to the -- of course, obviously the Miranda ruling. The -- Johnson was then taken on approximately midnight to police headquarters. And there he was placed in several lineups throughout the evening. He was by himself. There were -- as the record shows a very large number of policemen been involved in these proceedings of the order of -- that at least 50 and to --
William J. Brennan, Jr.: What time was this first conversation, that was around midnight?
John M. Harrington, Jr.: That was somewhat before midnight, it's actually Station 10.
William J. Brennan, Jr.: Now, and when did he -- these lineups?
John M. Harrington, Jr.: Then the line ups are between midnight and 4:30.
William J. Brennan, Jr.: And then the final statement was 6:00 in the morning?
John M. Harrington, Jr.: Right. That is correct Mr. Justice Brennan. And the procedure -- there's just no dispute about this that the procedure in the lineups wasn't on a number of occasions, a witness would confront Johnson and say something to him, Johnson would make some sort of an equivocal reply. It would be taken down on this -- there was another stenographer, they were two of them who testified in this regard. And it would be taken down and the stenographer was not unidentified to just in these confrontations.
William J. Brennan, Jr.: How many of these lineups?
John M. Harrington, Jr.: Well, the trial judge found they were four. I found two on the record but I can say that because Mr. Concannon, my brother has said to the trial judge found they were four. They were -- of that order. And some might -- there might have been three. There was a little confusion about that if they had -- there could've been four. You could say they were two but in any event it was of that order. And the witnesses who identified Johnson or some of the witnesses who identified Johnson and there were several, testified that a -- as he appeared in the lineup, blood appeared on various parts of his body, some on his head, some on his legs, his clothing was tattered and torn. So that -- it's perfectly clear that without dispute that through the evening there was still observation of bleeding and bruise, some injury. With respect to the injury it's also clear that two weeks after the confession, Johnson was operated on for a condition called a Subdural Hematoma which is a collection of blood between the dura and the brain and that condition was relieved. And the record goes as five but no further than -- that it was that condition was consistent with having been there two weeks. Which goes takes it back to the time of this confession. Then at 6 o'clock in the morning, approximately, in a room in police headquarters, the statement was taken by a police stenographer, the only persons present were policemen. And the statement was in question and answers form and as I believe will be apparent upon the slightest reading of it. It is a catalog of the prima facie elements of each of the crimes so which Johnson was indicted four days later to wit -- murder in the first degree, armed robbery while masked, assault and battery with a dangerous weapon, carrying of a revolver without a license and carrying of a revolver in a vehicle without a license. And the Q & A goes right down each of the elements goes through the license and all of that. It further appears that Johnson was an unemployed man of -- with an IQ that was taken by the state in the proceedings under the so-called Briggs Law. With an IQ of 86 and education that pitted out somewhere when he was 16 years old, he certainly didn't get beyond the eight grade, he might have been still on the sixth grade in special classes. The -- his answers to the examining people are not entirely clear but at 16 he quit school and he was either on a special eight grade or a sixth grade, one of the two. I think I urged Your Honors that on this recitation of the facts, the facts very largely speak for themselves. Here, we plainly have a citizen who was injured, was disadvantaged in this intellect, in his education who was the subject of a process which to use the colloquial terms, box him in by the confrontations in the interrogations. And then in our atmosphere it is unquestionably police dominated and without warning advice or counsel or friend or adviser, he gives a question and answer statement which is a catalog of the prima facie elements of these crimes. Quite plainly, this was in no sense an attempt to find out what had happened. It was a procedure to wrap up the case. The trial judge found that at the time of the confession, Johnson was the prime suspect in the felonious homicide of James B. O'Leary who was the victim of the shooting. Now the -- I am not going to contend --
William O. Douglas: Counsel, did you -- were you at the trial of his (Voice Overlap) --
John M. Harrington, Jr.: No I was not.
William O. Douglas: Yes, --
John M. Harrington, Jr.: I came into this case shortly prior to a motion for a new trial which was filed following the decision in Escobedo. My appointment --
William O. Douglas: But then at these points you're mentioning were raised at his trial, weren't they by his counsel?
John M. Harrington, Jr.: Well, the -- there was an objection to this confession and I will come to that if I may --
William O. Douglas: In your own time?
John M. Harrington, Jr.: In a moment Your Honor. By -- but there was an objection it came in clearly over objection, there's no question of that. But not -- the objection was not as I will point out, not based on all of these reasons I assert. But it is perfectly quite plain that each of these items that I speak of have their reflections in decided cases of this Court which have held confessions to be as a matter of law and upon review by this Court involuntary. Those cases reflect -- it has been said a number of values which come together. And I urge that the very statement of the facts in this case shows that this is a case which reflects all of those values which have caused this Court to proscribe the use of a confession in these circumstances. It seems to me a curious use of language to call an act performed and I -- by act I mean the confession performed in these circumstances by such a person, taking them all together. I suggest that as a curious use of language to call it voluntary. And that -- the cases of this Court and the doctrines which those cases exemplify call upon this Court upon its review of these facts not in dispute to declare that this confession was involuntary unless infected the conviction with a fatal invalidity.
Speaker: And you --
John M. Harrington, Jr.: I don't --
Speaker: Can you put your finger on any police conduct to support, to accommodate the argument that you're making that you regard as significant as during on the -- of his intentions?
John M. Harrington, Jr.: Well, yes very much so. A part from the dominance I put my finger very strongly on the practice of having Johnson confronted by a witness and the response being -- and then a response which is equivocal. The law of Massachusetts being that a person in custody of course, his silence cannot be used against him. His denial cannot be used against him, but an equivocal statement can be used against him. Its -- in a response such as this which appears on the record. If he was a long way from the car, how did he spot me? This -- a response to the officer in the light of an identification. Now, that's has its echo in a very old case which Your Honors may well remember in Brown versus the United States that make who was called in and that was the -- a lead of course as we all know, like lead case for the federal courts. If he was standing on that place on the deck, how did he see me? And those are the -- that is I suggest the purpose of that kind of a confrontation recorded mind you, recorded not surreptitiously. The evidence indicates that the reporter was -- police reporter was there with a notebook --
Speaker: But you're not complaining about the identification as such if the --
John M. Harrington, Jr.: What I'm complaining about not -- I'm not complaining about the fact that the witness identified but what I am complaining about on Mr. Johnson's behalf is that that procedure where Johnson without counsel, without advise, an ignorant man was put in that position where -- whether or not he came through with the Q & A at 6 o'clock. A lot of mileage had been made. Before 6 o'clock on that man without a Q & A and it was all down there that this was not idle conversation. It's perfectly obvious that the police were doing an efficient wrap up job here. They didn't have the stenographer their to treasure the pros, I mean they had a reason for it and what I suggest is that that police action not of itself but with all these other factors. For instance, in Spano this Court gave considerable weight to the undeviating purpose of the officers to produce the confession. The -- there and Spano was -- is the lead one but there are other cases where the -- where it's perfectly plain that the police were proceeding to a wrap up procedure was a factor which this Court gave weight in all the circumstances on the question of whether this Court would deem the confessions to be invalid. Now, I hope -- I'd like not to tell you on this point fundamental as it is to my position because I now want to come to the procedures which I -- which are quite a separate point and do not in any sense depend nor does the point I have just made depend on them. My first point is that the courts in Massachusetts never in their procedure gave consideration to this issue with the range of criteria which this Court requires. I don't need to argue that this Court has said that these items I have argued about of the mental and educational condition of the defendant, his injuries, his custodial isolation, his warnings or lack of warning, are the criteria which must be considered on this question. I don't think I need to argue either that the courts below must pay he to the criteria set down by this Court in making that determination. I scarcely need to argue that in this case, the Massachusetts Courts did not give consideration to that broad range of criteria, to that increasingly meticulous test which -- as was said in one of the recent cases of this Court. I'll come to the reason why, which is my third point, but I thought that an orderly presentation would require establishing this point that they did not first. It is perfectly clear from the record that the trial court at the trial itself did not -- considered only one aspect and that appears and I can only do this -- I can do this best by reading it at page 189 where the trial justice said to the then defense counsel, the contention of the defendant as I understand it is that, and there's a typographical error, is that the statement was involuntarily given because of physical force applied to the defendant by the police so that the statement was coerced from him. That is the position as I understand it that the defendant takes is that correct Mr. Colloquo (ph)? Mr. Colloquo (ph): "That is correct Your Honor". This was said at the conclusion of a voir dire out of the presence of the jury where there had been testimony by Mr. Johnson that he was beaten by the police and testimony by a succession of policemen who were present that they had not beaten Mr. Johnson. On that point, there is the sharpest conflict of testimony. At the con -- and after getting the defendant's contention with that position at the end of the voir dire and indeed it's been also about at the beginning of the voir dire. The Court said, "I am not satisfied from the evidence that it was not freely and competently given and therefore I rule that it is admissible". So that obviously at the trial that on the sole focus of the question of voluntariness was whether or not there was a physical beating. Then, on the motion for new trial which was after the Escobedo case, the determination of that and it was in a sense a non-determination, the motion was denied where their remark by the trial judge at the questions raised were more -- were in any event more properly, those decided by the Supreme Court but the focus of the Court's attention, by the Supreme Judicial Court of Massachusetts, I misspoke myself. The focus of the Court's contention was plainly on the counsel question and not the voluntariness question as such. I think this appears perfectly plainly and here again, I can do no better than read from the record. I really couldn't paraphrase as well and there's a sentence which appears in the record at page 329. I find his willingness to talk to Lieutenant Donovan at this time, in 6:00, was not a waiver of any right in quotes. He had to remain silent and to refuse to talk to the police at that time or to be cautioned by the police at that time of such "rights” if it should be determined that in the circumstances he had any one or all of such "rights". And the focus is quite plainly on the relationship of warning rights and counsel. In that posture of events the case was appealed to the Supreme Judicial Court which essentially said that the determination of the voluntariness of the confession was one of fact and the trial judge had so determined and that essentially was it. They said also that the -- it was incumbent upon counsel below at the trial to have raised the other contentions with respect to involuntariness that were then raised before them. And then he said that in any event when the trial judge and it was of course the trial judge who heard the motion for new trial in accordance with the Massachusetts unusual practice that in any event he must have had all these factors in mind when he denied the motion for the new trial. I suggest that in the light of the judge's meticulous findings, rulings and orders after the motion for a new trial which I've been reading from that that is really not quite wrong. Now, the -- this tunnel vision of the Massachusetts Courts with respect to the criteria to be considered on the voluntary issue in this case is I suggest accounted for by the rule which was plainly applied by the Massachusetts Court and fourth, rightly stated to be the role in the opinion of the Supreme Judicial Court. And that rule which was applied and which was enunciated is that the burden of proof of showing involuntariness is upon the defendant. That statement follows the assertion which has been variously phrased that the confession when introduced is prima facie voluntary or as presumptively voluntary, that of course explains the double negative in the judge's ruling which I explained and given that rule which this judge as a Massachusetts judge was bound to follow. It follows that it was entirely proper for him to query closely trial counsel as to the precise ground of involuntariness in this spectrum or in this criteria of (Voice Overlap) --
Thurgood Marshall: Well, didn't he do that? I thought I heard you read the judge to say --
John M. Harrington, Jr.: He did --
Thurgood Marshall: -- “the only thing is brutality” and the trial lawyers said, “Yes, that is the only point”?
John M. Harrington, Jr.: You're quite right, this is the point I'm making. That the judge did that as a Massachusetts trial judge but I -- my point is -- the point which I urged is that he should do that. Should not be constitutionally sanctioned by this Court because he does that, because the -- under the Massachusetts rule which I asked at least -- of this rule applied in Massachusetts which I have here now asking to be stricken down, is that the confession, even as -- in this case a -- an in custody confession is presumed to be voluntary or is prima facie voluntary with the burden on the defendant. Now, what I'm suggesting --
Thurgood Marshall: Well, would you (Voice Overlap) --
John M. Harrington, Jr.: -- what I'm urging is that the burden is the wrong way around.
Thurgood Marshall: Would you recognize the burden of going forward to be on the defendant?
John M. Harrington, Jr.: I think it's perfectly clear that the burden of going forward and the burden of proof are both in the mass -- under the cases enunciated in Massachusetts.
Thurgood Marshall: I'm not talking about ma -- I'm talking about, would you be satisfied with that rule in Massachusetts that the burden of going forward is on the defendant?
John M. Harrington, Jr.: No Your Honor I think that the cases of this Court --
Thurgood Marshall: Do you think if the defendant puts nothing and -- the confession goes out?
John M. Harrington, Jr.: Yes I do, Your Honor. And I suggest that that is the teaching to be derived from the cases of this Court and I say that for several reasons --
Thurgood Marshall: You then say that trial counsel represented the defendant cannot limit that?
John M. Harrington, Jr.: I should -- I would say Your Honor, the trial counsel representing a defendant could stipulate that the confession make a -- a written stipulation or a stipulation in an honorable court that a confession was voluntary or that he could waive I suppose. Well, a stipulation would be what I would suggest but if he makes the objection --
Thurgood Marshall: But he can say that the only objection we are making to this confession is that it was obtained as a result of brutality. That's the only objection we make to it. Then at a later date he raises four other points.
John M. Harrington, Jr.: But I suggest that if he raises any question with respect to it's being a voluntary confession that the -- if he objects at all, the burden should be on the prosecution as it is in the federal courts. And as it is in all but seven as I understand the law of the 50 states that the burden is the Government's to show that the confession was voluntary not the other way around that it is for the defendant to show that it is involuntary. I suggest that this should be -- did I urge that this be the constitutional rule? Not nearly as a manner that a majority rule is better than a minority rule are not because this is solely because this case demonstrates the problems which I've created for a defendant when the rule as is the Massachusetts' rule is stated. I don't urge it --
William J. Brennan, Jr.: May I ask you another question?
John M. Harrington, Jr.: Yes.
William J. Brennan, Jr.: I mean, on your submission what happens at the trial? The state wants to offer a question.
John M. Harrington, Jr.: Right.
William J. Brennan, Jr.: Of course, outside the presence of the jury.
John M. Harrington, Jr.: I would --
William J. Brennan, Jr.: Assuming there's no waiver now.
John M. Harrington, Jr.: They object. They say this is involuntary.
William J. Brennan, Jr.: This is -- they offered is an objection?
John M. Harrington, Jr.: Right.
William J. Brennan, Jr.: Then what would the state do, it comes in and it doesn't have to offer then and their proofs how the confession was taken, is that it?
John M. Harrington, Jr.: That is my position.
William J. Brennan, Jr.: Without the aid of any presumption?
John M. Harrington, Jr.: Without the aid of any presumption.
William J. Brennan, Jr.: And then if after it's put in its proofs how the confession was taken if that would satisfy a finding that it was voluntary then it's up to the defendant that I take it to offer proofs to set up a conflict in that respects so that ultimately that maybe the basis of a finding that it's involuntary, is that it?
John M. Harrington, Jr.: Precisely.
William J. Brennan, Jr.: I'm speaking how they -- that's -- this way the procedure would work.
John M. Harrington, Jr.: I would say that that procedure should be the procedure out of the hearing of the jury and I would go further and say --
William J. Brennan, Jr.: Well now, what happens now -- what happened in this case for example? Was just that the confession was offered and then the state left the defendant go ahead otherwise it would've been received, is that it?
John M. Harrington, Jr.: That's right.
William J. Brennan, Jr.: Because on the bases of the presumption?
John M. Harrington, Jr.: On the bases of the presumption of the prima facie it would come in. And so in this case the defendant because he was the only witness who could take the stand and as the record shows the defendant then was put on to stand out of the hearing of the jury and he testified as to these series of (Voice Overlap) --
William J. Brennan, Jr.: And then it was after that that the officers talk about (Voice Overlap) --
John M. Harrington, Jr.: And then after that the officers came in and severally testified that what he -- then of course, it was consisted with that the assistant attorney or the District Attorney would try and cross examine Johnson.
William J. Brennan, Jr.: Have we had any case that touched on the presumption or the question of presumption?
John M. Harrington, Jr.: I think --
William J. Brennan, Jr.: What about Rogers and Richmond?
John M. Harrington, Jr.: Well, Rogers and Richmond was where the criteria were held to be incorrect because what the Connecticut Court had down there was say that the determination of voluntariness was really related to truthfulness.
William J. Brennan, Jr.: Yes.
John M. Harrington, Jr.: And this Court had said, that cannot be because that is an improper criterion.
William J. Brennan, Jr.: Well, do you know of any case of ours where we (Voice Overlap) --
John M. Harrington, Jr.: Now, -- well, I suggest that there are.I suggest that there are foreshadowing's of what I asked today in the cases. Certainly in Miranda, the burdens with -- the burden with respect to the requirements there of warning, an opportunity for counsel had been in the squarest fashion placed upon the prosecution. I also suggest that this burden is in a sense foreshadowed in Miranda where it says that the procedural requirements of the confession are the same in the federal and the state procedure in Footnote 33 and the federal procedure are just as plain as they ever since Graham that there the burden is on the Federal Government. Now, I think this is --
William J. Brennan, Jr.: Now, has that -- and that's been in the context of looking on the of course, confession as a privilege problems, isn't it? Bram viewed the question of voluntariness in terms of the privilege against self-incrimination.
John M. Harrington, Jr.: Well, I think that the reading of Bram which is a long case is one that carries with it, as I remember it carries with it some Fifth Amendment implications and I think it also -- Bram could fairly be stated to said to derive from the -- perhaps a parallel it's even better than parallel almost an on and on evidentiary development which had existed in the English common law and indeed in this country. In fact in my own state, the cases are on the turn of the century if you said to a man, you better confess, you better owe that, well because if you said, you would confess that clearly spoil it. If you said to him, you better own that was an involuntary confession if you said to him, you better tell the truth it made it a closed question.
Earl Warren: We'll recess now.