Earl Warren: -- 47, Ernest Triplett, Petitioner, versus the State of Iowa. Mr. Tacy.
Thomas O. Tacy: Chief Justice Warren, Honorable Justices of this Court, may it please the Court. This seemed to the petitioner to be a case where in the factual situation is infinitely more important than the legal situation. In other words, the petitioner does not propose to spend a great deal of time on the legal questions involved here unless something new is raised by the respondent concerning the law. I think it's conceded by both sides that this Court has the right in certiorari to review de novo the entire proceedings in a state court in a criminal case and to determine and make an independent determination as to whether the Fourteenth Amendment has been violated in due process of law, denied to the accused. The -- without going to an extended argument now about the law, the recent decisions and the past decisions going back many years indicate that there should be no question about this proposition. And now, to the facts of this case. On August 31st, 1954, a little boy by the name of Jimmy Bremmers disappeared from his home, Sioux City, Iowa. And about 29 days later, his body was found after extended search in a pasture about 6 miles from Sioux City out on a winding country road. It happened at this time that Mr. Ernest Triplett who is the petitioner in this case was soliciting music lessons from parents in the vicinity where Jimmy Bremmers lived on the night he disappeared and on other occasions. Now, a neighbor out in that vicinity called the Police Department in Sioux City and said there was a music salesman out here soliciting music lessons the night Jimmy disappeared. And on that suspicion alone, Ernest Triplett was requested or his employer was requested to have Mr. Triplett wait for the police because they want to question him. Now, this request for Mr. Triplett to wait at his employer's office, the Flood Music Company in Sioux City for the police came in about 9:30. Mr. Flood testified as he didn't appear nervous at all. He said, “Yes, I'll wait for them.” He waited for them until 1:30 in the afternoon, went out and got his lunch and came back. And then about 1:30 in the afternoon, they came to get him. And Detective Dennison and Matousec, Sioux City Police, took him into custody where as the record shows here, he was detained without a warrant for a total of 20 or 21 days by the police and that interval of detention was interrupted twice by sending him down to the state hospital for mental treatment at Cherokee, Iowa near Sioux City. Now, the first instance he was sent down there by the request, he says detective -- one of the detectives in Sioux City and that was on September 15th, 1954.
Speaker: Does the record show whether he had any prior medical history before this?
Thomas O. Tacy: He had none and no record of any felonies. His record was clear as to any felony or any mental trouble. Then after he --
Hugo L. Black: Why do you say it is felony?
Thomas O. Tacy: What is it?
Hugo L. Black: Do you emphasize felony?
Thomas O. Tacy: Well, I say that but no record of any -- of any --
Hugo L. Black: You mean any crime or offense or --
Thomas O. Tacy: Oh, I -- I believe --
Hugo L. Black: I don't know what you were --
Thomas O. Tacy: Might have been that he would -- had been arrested for some minor offense like being drunk or something like that, but no, no major crime. No sex crime.
Hugo L. Black: I was just trying to find out what --
Thomas O. Tacy: No sex crime. No -- no other felony.
William J. Brennan, Jr.: Well, what -- what was he sent in the institution before, for treatment or for diagnosis?
Thomas O. Tacy: Well, the -- the officers said that he was sent down there for -- first, for treatment at his request. However, he --
William J. Brennan, Jr.: Right there, as treatment for what?
Thomas O. Tacy: Well, they said that -- that he should -- that it was a treatment for an old case of syphilis. Now, he denies that that he requested that. He says the officer has requested it and made out the application for him and he signed it. Be that as it may, he was brought back from the institution later.
William O. Douglas: (Voice Overlap) you said he went to a mental institution?
Thomas O. Tacy: Yes, sir.
William O. Douglas: For treatment for (Inaudible)
Thomas O. Tacy: Well, that's -- that's what the record shows. He says he went down there because he could rest better on the beds down there, he thought, than on the steel mattress, steel mesh in the jail of Sioux City. Now, the question here -- the whole question here is whether this confession which was obtained and I want to make this a little bit short now at the present time. This confession was obtained when he was taken to the mental hospital for the second time. Now, after he was been jailed and questioned practically everyday for 20 days in the Sioux City Jail without being taken before a magistrate and there was one in the same building down the hall, the detectives admit that they questioned him everyday. And when asked that when he reiterated over and over that he wasn't guilty, he wouldn't take no for an answer, and they said, “No.” And the defendant testified, the accused testified. That after he reached a certain point, that he didn't deny anything further, he -- and this is his language -- and showed you the character of the education or lack of the man. He testifies there wasn't no use to deny nothing. “You tell him and they would turn right around and shove it back in your mouth.” That's his language in the record here, both in the briefs and in the -- in the record itself.
Charles E. Whittaker: (Inaudible) once does a man is confined, going on (Inaudible) free to walkout.
Thomas O. Tacy: Oh, he was confined. And the record shows he was under custody -- the custody of the police all the time. I brought that out very carefully. It's in the record, sir, that he -- he never at any time could leave. That's admitted in the record.
Earl Warren: Did he -- was he offered -- was he told of his right to counsel and did either he or his -- his family endeavor to get counsel for him, do you know?
Thomas O. Tacy: No, he was a long ways from his family, it seemed. He had a brother in Oregon who is a preacher but he wasn't out there. And he testifies he was trying to earn enough money in the music solicitation business to go up where his brother was. But now, he was visited. We'll, get this now. He was visited after he was 29 days either in police custody, 20 days and in the hospital a part of the time. He was approached by Stanley Corbett who was then the President of the Sioux City Bar Association and Stanley Corbett asked him if he wanted a lawyer. And his reply was that he wasn't guilty of anything.He didn't know that he wanted a lawyer.
Charles E. Whittaker: That's why I ask you the questions.
Thomas O. Tacy: Yes.
Charles E. Whittaker: I understood Mr. Corbett testified, and he went to see this (Inaudible) that he -- that he told him, all through that that was held against his will. The department of police solved the murder. That's why I'm asking the question.
Thomas O. Tacy: That is what Mr. Corbett testified to. Mr. Triplett testified he didn't, remember that. But also, Mr. Triplett testified the reason he didn't want to get out on the street now was that the -- a detective --
Charles E. Whittaker: Well, he -- he, the accused, took --
Hugo L. Black: He didn't want to get out on the street.
Thomas O. Tacy: Well, the reason why he said that Mr. -- a detective in Sioux City, the record will show his name, told him that it would not be good for him to get out on the street and let the public get a hold of him because what they want to do to you. Now, that's in the record and it is uncontradicted. And the detective who is supposed to have told him that was in the courtroom and so was the prosecutor and it isn't denied in the record.
Charles E. Whittaker: Well, is that consistent with that he is being detained against his will. The -- that implies to me he was free to get out on the street but they didn't (Voice Overlap) --
Thomas O. Tacy: No, the -- no, the -- Your Honor. The implication there is that this detective that told him it wouldn't be safe for him on the street and the only thing that Stanley Corbett a lawyer, he was suggesting, was whether he wanted a lawyer. Now, he wasn't advised to his rights to a lawyer and, Your -- Your Honor, I take -- we take this position. Those men are not in position to set themselves up as a magistrate and decide whether this man wants a lawyer or not. They're holding him there against the Iowa statute which is similar to the statutes of other states that they must take him before a magistrate without unnecessary delay and they're not doing that. They're holding him there. Now, he -- he testifies that he was afraid there. That is that Mr. -- the detective had told him what would happen if he got on the street. Now, here's something significant, Your Honor. You'll find all through the record, in the -- in the brief and argument quoting the record that this man was not free to go. He was always under police custody and was under arrest without a warrant all this time. He was not free to go. You will find that in the record. And when this confession was taken, here was the circumstance. Stanley Corbett visited him on October the 1st. Then, according to the respondent's version of the defendant's testimony, he was then taken to the state mental hospital. Then, now here's what happened after Stanley Corbett offered legal help. The man was taken to the Commission on Insanity in Sioux City and committed to the state mental hospital again, and only three days elapsed before they got this confession from him. And when this confession which is the gist of this case, whether it was voluntary or not, is the gist of this case, this confession was taken from him. Now, on the 6th of October -- so between the 1st of October and the 5th of October, they took him to Sioux City and having him committed to Cherokee again where the lawyer couldn't have done anything if he'd wanted to. And on the 6th of October now, five days after Stanley Corbett offered to help; his confession was gotten from him by chief of -- not chief detective but rather the psychiatrist within the -- the same hospital by the name of Dr.Azordegan.
Felix Frankfurter: Mr. Tacy, may I ask whether the -- the stenographic record is close as the circumstances of -- under which Mr. Corbett made this offer or --
Thomas O. Tacy: He'd --
Felix Frankfurter: -- proposed having all we have in the record that I have before me, is that several lawyers would be glad to offer their services. How did that -- does the record, the stenographic record show how he came to make this visit and make such an offer?
Thomas O. Tacy: Yes, sir. It -- according --
Felix Frankfurter: That may there -- that may there shed some light on what this (Voice Overlap) --
Thomas O. Tacy: According to Mr. Corbett's testimony --
Hugo L. Black: He was President of the Bar Association --
Thomas O. Tacy: He was the president of the local bar association and some of the bars suggested that --
Felix Frankfurter: Yes, but how did that come about? That isn't a normal thing unless it's normal in Iowa?
Thomas O. Tacy: It isn't normal in Iowa. It is --
Felix Frankfurter: Well now, how did that come about?
Thomas O. Tacy: I -- I do not know, sir.
Felix Frankfurter: And the record doesn't shed any light?
Thomas O. Tacy: The record doesn't show. He just went and asked him if he wanted a lawyer and said some of the --
Felix Frankfurter: There must have been some antecedent something to stimulate the persons of the bar association to say --
Thomas O. Tacy: Well, he said some of the other lawyer had suggested.
Felix Frankfurter: If you want to get habeas corpus, there are members of the bar ready to serve you.
Thomas O. Tacy: I --
Felix Frankfurter: It pleases to read it but it --
Thomas O. Tacy: Yes.
Felix Frankfurter: -- it also a stirs inquiry.
Thomas O. Tacy: We might also inquire, Your Honor, why Mr. Corbett didn't insist on having him arraigned when he'd already been held 29 days without arraignment at that time if he was there to protect him.
Hugo L. Black: We'll, I -- I'd like to ask because I'm interested in that. We need to know all the facts.
Thomas O. Tacy: Yes.
Hugo L. Black: The statement of counsel for the State is that Mr. Corbett wanted the presence of bar association, told him he was -- and wanted to find out if he's being held against his will, and if so, they want to offer service but they couldn't have any right to keep him. Is that what he testified?
Thomas O. Tacy: Mr. Corbett you mean?
Hugo L. Black: Yes.
Thomas O. Tacy: He testified that he offered him -- he said that he --
Hugo L. Black: Did he say Mr. Corbett advised him that he was being held against his will, he was entitled to seek a writ of habeas corpus and advised those agent would furnish him counsel. Mr. Corbett testified, he said he was not held against his will. He wanted to help the police solve the murder.
Thomas O. Tacy: They told him they bar association would furnish him counsel but he said he did not want to leave the jail or the hospital whichever place he might be. Is that the testimony?
Thomas O. Tacy: He -- I think that is Mr. Corbett's testimony. Yes.
Charles E. Whittaker: He has disputed it?
Thomas O. Tacy: Yes. Yes, Mr. --
Charles E. Whittaker: What was (Inaudible)
Thomas O. Tacy: What is it?
Felix Frankfurter: Except now, that was disputed (Inaudible)
Thomas O. Tacy: Well, that's disputed. Now, Mr. Triplett says he doesn't remember saying that to Mr. Corbett or Mr. Corbett saying that to him. But he also says that he was under this fear of mob violence and that is not disputed in the record. Now, the question in my mind is, Your Honor. Could these people, even Mr. Corbett, and could these detectives set themselves up as magistrates and decide whether or not this man wanted a lawyer. His rights to due process would be to take him before a magistrate where all his rights would be explained to him by a magistrate not by some president or some bar association. I --
Felix Frankfurter: The source of my curiosity is that, that what actually the details of Mr. Corbett's testimony, as in for the minute.
Thomas O. Tacy: Yes.
Felix Frankfurter: They shed light on the conditions under which the petitioner was then and confined.
Thomas O. Tacy: Yes.
Felix Frankfurter: I didn't mean to suggest that he could be a private judiciary and I don't think there's any such suggestion.
Thomas O. Tacy: No.
Tom C. Clark: What charge was he arraigned on?
Thomas O. Tacy: He was arraigned on first degree murder.
Tom C. Clark: You mean that say, he was arraigned, and to what charge (Inaudible)
Thomas O. Tacy: Well, they arrested him for the -- evidently for the murder of Jimmy Bremmers. So, they had to arrest him for it and he was taken in without a warrant.
William J. Brennan, Jr.: Well, had the boy's body been found when Mr. -- the bar association president visited, Mr. Triplett?
Thomas O. Tacy: The -- the boy's body had been found I believe on the -- but Mr. Corbett didn't know about that at the time. I don't believe that he knew. I think the record will show that.
Tom C. Clark: When was the boy's body found with reference to the date of the arrest?
Thomas O. Tacy: The date of the arrest, well, it's found 29 days later. Yes.
Hugo L. Black: That's in --
Thomas O. Tacy: And now, the --
Hugo L. Black: -- about six days after Mr. Corbett saw him in the jail.
Thomas O. Tacy: Yes, that's right and then they immediately took Mr. Triplett from the jail and took him out into the country where the boy's body was found and showed him a blanket covered body and -- and such as that. Now, there is one thing I want to call the Court's attention to and I want to save a little of my time for rebuttal if necessary. The reason they held this man is expressed in one sentence by William Dennison, the man who arrested him, and I asked him on cross-examination, “Why didn't you take this man before a magistrate as the law requires you to do before you got the confession instead of afterwards hold him in for some 20 days in the police custody?” He said "Because I still thought he was guilty." Now, they can say what the police about why they held him but that's the testimony of the chief detectives under whose custody was because he still thought he was guilty. I'd like to save the rest of my time.
Felix Frankfurter: But you're not -- your position isn't that the mere days of detention without arraignment violates -- is a deprivation --
Thomas O. Tacy: No.
Felix Frankfurter: -- of the Fourteenth Amendment. That's not your position.
Thomas O. Tacy: No, that is not, sir. But the way that the confession was gotten in the insane hospital after he's committed there and Dr.Azordegan promised him a job at the hospital work to do and let him out in a couple of years if he confessed. Now, that's uncontradicted in the record, we you understand.
Felix Frankfurter: What you're saying is the totality of the circumstance.
Thomas O. Tacy: That's right. The whole totality of it, I think violates every concept of the due process of law.
Charles E. Whittaker: May I ask you? What you claim about saying that is uncontradicted in the record. Do you mean the testimony with respect to what the doctor said --
Thomas O. Tacy: That's right.
Charles E. Whittaker: -- in at the hospital.
Thomas O. Tacy: That's right. The doctor was not available for some reason. They gave a lot of reasons but they didn't -- it was all hearsay.
Speaker: Of course --
Felix Frankfurter: What is it hearsay that he was physically unavailable?
Thomas O. Tacy: They said -- no, they didn't say that by direct testimony. They asked Bill Sanguin who was a -- a tenant at the hospital where Dr. Azordegan was and he said he heard a report that he was overseas. Then they asked the accused himself on cross examination, “Haven't you been advised that Dr.Azordegan is overseas?” and Triplett answered, “No, I haven't been advised. I heard it a minute ago." Now, there's all we got in there. They didn't call the superintendent to know why there was two doctors left at the hospital right after this thing happened. This confession taken in the hospital was taken without the knowledge or consent of the superintendent by the way. And we have our suspicion --
Speaker: Was that recorded? It was a tape recording, wasn't it?
Thomas O. Tacy: Yes, sir. A tape recording.
Speaker: Where -- where is the -- where is it in the record?
Thomas O. Tacy: It's on page -- in -- in the record, the -- that's the page -- the confession 40 -- 40 to 49. Yes, I'd like to save a little of my time.
Earl Warren: You may -- you may Mr. --
Thomas O. Tacy: How much time do I have, Chief Justice, do you know?
Earl Warren: I beg your pardon?
Thomas O. Tacy: Do you know how much time I have?
Earl Warren: The clerk will advise you with it.
Thomas O. Tacy: Yes, all right.
Earl Warren: Mr. Forrest.
Freeman H. Forrest: Chief Justice, Associate Justices, may it please the Court. This Court has recently interested itself in a number of cases similar to the one now before it. The gist of these cases, that is those cases which pertain to state criminal prosecutions, has been to determine -- for this Court to determine whether or not and a confession obtained in the period of custody was obtained in such a manner as to violate the -- the petitioners or the defendants rights under the Fourteenth Amendment, that is whether or not the -- the confession was obtained by physical or mental coercion. The test as recently reaffirmed in the Payne case on Monday remains. It's the contrasting of the pressures that are applied to the person confessing as opposed to his power to resist. That question as pointed out by the respondents certainly can -- or by the petitioner can certainly best be answered by a close examination into the facts. I'd like to talk first about the general fact background and later, more particularly about some of the specific testimony given by both police officers, the trial court and specially the defendant himself. The general facts in chronological order went about as follows. On August 31, the lad disappeared. At that time, the defendant was employed as a door-to-door solicitor and salesman on behalf of the Flood Music Company in Sioux City. He was operating in the neighborhood in which the boy lived and from which he disappeared on the day that he did disappear. When the disappearance of the boy became generally known, a search was instituted. Also, word was passed to the police, to the Sioux City Police and thereupon on September 2nd, took him to the police station. Shortly after he got to the police station, a private detective in Sioux City by the name of Matousec appeared and asked for a permission to question Triplett. This was granted and there is no showing in the record that he was kept or in any way, inhibited from seeing the defendant. Matousec's testimony was that he attempted to elicit information as to the crime by suggesting to the defendant that he would procure counsel for him, and this is substantiated by the defendant's testimony. At that --
Earl Warren: Isn't it before he was taken into custody, Mr. Forrest?
Freeman H. Forrest: No, sir. This was -- this was immediately after he was taken.
Earl Warren: Yes.
Freeman H. Forrest: The first few days after he was taken into custody.
Earl Warren: Yes.
Freeman H. Forrest: I am sorry that I do not enjoy the same circumstance as the petitioner for the -- that the petitioner's counsel does and that he tried the case in the lower court and I did not get it until it came to the United States Supreme Court. But I'm -- I feel confident that the record will bare -- bare out that in the first few days of his custody, he was approached by Matousec and refused Matousec's in effect offer of counsel. On September 15th, he volunteered to go to and was taken to the Cherokee Mental Health Institute for observation. This is the wording of the record, “For observation and treatment of syphilis.”
William J. Brennan, Jr.: Can you tell me what -- why has he gone to the mental health institute?
Freeman H. Forrest: This is a question I cannot answer, Justice.
Hugo L. Black: So they're frequently -- it affects the mind.
Felix Frankfurter: Certainly.
Hugo L. Black: The disease, they've had it suspected with that theoretically affecting his mind?
Freeman H. Forrest: Perhaps it may have, Justice Black. And I do not -- I just don't know. I'm not that well acquainted with the trial court situation which was in 1954. While there, the body of Jimmy Bremmers was located. The defendant was brought back from the mental health institute, taken to a place on the highway adjacent to the field in which the body lay. The roadway there is considerably below the --it's -- in other words, it's a cut in a hill. The defendant without instructions from anyone walked diagonally directly up bank. I believe he went across to a point outside the fence, pointed to the body and said, what is that? There was some evidence that he turned pale at the time that he did that. After he viewed the body, he was returned to the Sioux City Police Station, kept there for a few more days. It was at this time that the visit of the then Sioux City Bar Association President Stanley Corbett took place. Mr. Corbett came in, asked to see the defendant. Again, there was no inhibition. He was allowed to see him. And at that time, he -- in substance, what he asked him was, "Are you being held against your will?" And he said, he was not being held against his will because he wanted to help the police solve the murder. He was also asked or offered counsel to take his choice of counsel in the Sioux City area. This, he steadfastly refused as he had done previously. I should probably point out also that detective Dennison testified that on numerous occasions, three or four times in the period between 2 and 15th of September. The first period of incarceration or custody that he asked him about -- if he wanted an attorney and he steadfastly refused the services of an attorney.
Speaker: How old a man was Triplett?
Freeman H. Forrest: I'm -- thank you. Counsel for petitioner informs me that he was 52. I was going to say that I'm sure that he was middle-aged.
Hugo L. Black: In reading the confession, the language seems to be a little confusing. What's your response to that?
Freeman H. Forrest: I don't know in what you mean -- in what way do you mean it's peculiar, Justice?
Hugo L. Black: Well, the way the questions were asked.
Freeman H. Forrest: Well, of course, Azordegan, the doctor, the psychiatrist to obtain the confession was an Iranian.
Hugo L. Black: Well, I see. He was -- he didn't speak English well.
Freeman H. Forrest: Not very well. No, sir.
Hugo L. Black: And was he a psychiatrist?
Freeman H. Forrest: Yes, sir.
Hugo L. Black: Was he sent to the psychiatrist from the beginning, Triplett?
Freeman H. Forrest: From the beginning of his --
Hugo L. Black: When they sent him to the hospital, did they send him to the psychiatrist?
Freeman H. Forrest: Well, I -- I do not know the answer to that.
Felix Frankfurter: It is a mental hospital?
Hugo L. Black: This was a mental hospital.
Freeman H. Forrest: Yes, sir. He was in a mental hospital. Azordegan was a staff psychiatrist --
Hugo L. Black: This man -- this particularly was a psychiatrist.
Freeman H. Forrest: Yes, sir. Corbett's testimony was that he was not being held against his will and that he steadfastly refused the offer of services of counsel in the Sioux City area. The defendant then was returned again at his own request to the Cherokee Institution, the mental health institute, and it was on this period that the confession was obtained. As near as I can gather from what is in the record, what happened was that the mental institute people who help people down there called the Sioux City Police, had them come down. They test -- the Sioux City Police testified that they did not know a confession was to be gotten that afternoon. When they got there, they were taken in a room, there were three or four police -- two -- two police officers present. Azordegan, the psychiatrist, who -- whose voice you will hear on Exhibit P which is with the Court. The -- of course the petitioner and one Bill saying when a staff -- a member of the staff at the mental health institute who operated the tape recording machine.He made his confession and the trial was then had on the merits. Now, since that --
Earl Warren: Mr. Forrest there were --
Freeman H. Forrest: Yes, sir.
Earl Warren: -- there were some statements made by counsel to the effect that a detective told him that it wouldn't be well for him to get out that the -- the crowd might do something to him. Do you -- do you -- would you mind giving us your recollection of that phase of the case?
Freeman H. Forrest: The State's reaction to that, you realize that -- that this is uncorroborated testimony on the part of the defendant.
Earl Warren: Well, I don't know what it is at all, would you tell me your -- your version of that.
Freeman H. Forrest: The -- the defended himself, when he took the stand insisted that one of the police officers told him, I believe it was one of the police officers, told him that -- inferred to him, I don't think the language is exactly mob actions but inferred to him that if he got out of the police station, there would be dire consequences. Now, in connection with that I intended to take it up a little later but I'll take it up --
Earl Warren: Well, no, no. Take it up in your own time please.
Freeman H. Forrest: Well, I'll just have to deal with it right now, Justice.
Earl Warren: Anytime.
Freeman H. Forrest: The --
Charles E. Whittaker: (Inaudible)
Freeman H. Forrest: Yes, sir.
Charles E. Whittaker: (Inaudible)
Freeman H. Forrest: Well, on the one hand, that points again to the volunteer nature of his custody and on the other hand, Mr. Gibbons was certainly available to the petitioner for cross-examination.
Earl Warren: But what do you mean that -- what do you mean? Did the -- did the State put him on and have him deny it?
Freeman H. Forrest: The State did not do that (Voice Overlap) --
Earl Warren: How could he cross examine him?
Freeman H. Forrest: Was the statement made, I guess, the statement was made subsequent to -- well, they could have -- surely, he could have been recalled. Well, I'd like to concede that point.
Earl Warren: All right. Proceed.
Felix Frankfurter: Can you -- can you give the dates between Mr. Corbett's visit and the testimony which has just been referred to, Mr. Corbett?
Freeman H. Forrest: Mr. Corbett's visit took place on October 1.
Felix Frankfurter: That's what -- all right. And this was -- Mr. Corbett testified as to his talk with the petitioner --
Freeman H. Forrest: Yes, sir.
Felix Frankfurter: -- as of October 1?
Freeman H. Forrest: Yes, sir.
Felix Frankfurter: There were two talks as I looked at the stenographic minutes. Mr. Corbett had two -- two interviews according to the minutes. He was recalled, he was put on the (Voice Overlap) --
Freeman H. Forrest: Oh yes, sir.
Felix Frankfurter: Now, whenever that was. You could say that's October 1st, and when was the trial, the date of the trial?
Freeman H. Forrest: I would have to refer to counsel for the petition.
Speaker: Would you care to do that.
Thomas O. Tacy: I'll state that. That the trial was held the 30th in June.
Felix Frankfurter: The next year -- the next year?
Thomas O. Tacy: The next year of this confession of the statement, October.
Felix Frankfurter: All right.
Freeman H. Forrest: The man was arrested in January and the trial held the next June 6th.
Freeman H. Forrest: Now, since the test as to whether or not this, the confession that was admitted for the evidence violates the petitioner's rights under the Fourteenth Amendment is whether -- is -- involves looking at the pressures that were applied to him with respect to his ability to withstand those pressures. I would like to go at -- into some detail into the facts which -- most of which I have set out on pages 4, 5 and 6 I believe of -- well 4 through 10 of the State's brief beginning with Police Officer Dennison. He testified that Mr. Triplett wasn't kept when he was in custody. He slept regularly, was not interviewed for any sustained period of time that he said, quote, "I want to go along with you boys, I want to cooperate with you." That Triplett volunteered to go to the Mental Health Instituted Charity. Now, the volunteering on those things I think is better brought out by the fact that the petitioner does not contend that he was in custody any of the time that he was in the mental health institute.
Hugo L. Black: Why does he content that he went to the hospital?
Freeman H. Forrest: I don't think there's a contention by the -- by the petitioner as to why he went there.
Hugo L. Black: And you think the statement to which --
Freeman H. Forrest: The State contends that he went there voluntarily, that they offered to take him there.
Hugo L. Black: No, taking that for what?
Freeman H. Forrest: For the -- the purposes of --
Hugo L. Black: The treatment of a venereal disease?
Freeman H. Forrest: Yes, sir.
Hugo L. Black: And was there another hospital in town where they had doctors who treated venereal diseases?
Freeman H. Forrest: Well, I'm sure that there would be.
Hugo L. Black: What -- is there any explanation as to why they took him to these particular place (Voice Overlap) --
Freeman H. Forrest: The only -- the only explanation that I can offer to you, Justices, that which appears in the petitioner's brief. He makes a reference to a petition -- petition for insanity against the petitioner. Is that not correct, Mr. Tacy?
Thomas O. Tacy: (Inaudible)
Freeman H. Forrest: He alludes to some civil procedure taken prior to trial. There is no further reference to it in the petitioner's brief. There is no reference to it in the trial court record. I think I should also point out this. That under the Iowa statute, I believe it's 783.3, the Court is required to stop the trial and have a trial on the insanity issue if any evidence is presented to it either on its own motion or on the part of either party as to insanity of the defendant.
Hugo L. Black: Is there anything --
Freeman H. Forrest: This was not done.
Hugo L. Black: Is there anything in the record which refused the statement of the petitioner attributed to him by Mr. Corbett who said that he was willing to go to the hospital and helped them all he could. He went there because they -- they asked him to go and offered to give him treatment for his venereal disease which he had. He went there for that purpose and was treated and was going back and they had said they'll treat him again for the venereal disease.
Freeman H. Forrest: Now, your question?
Hugo L. Black: Is there anything in the record which refused that statement made by the defendant to Mr. Corbett. Does the record show as you read it that he was led to believe that he was sent to that hospital, at the mental hospital, for the treatment of his venereal disease from which he was then accused the suspect?
Freeman H. Forrest: Well, certainly, it does show that whether it shows that he was sent there for other reasons, I don't think so, specially in view of the counsel's statement that the petitioner [Laughs] there to go down there because he would rather sleep on a mattress than on the steel bed that was given to him in the Sioux City, which incidentally the record shows he was given a mattress after a few days.
Speaker: But it's rather the fields of my way of thinking and the reason I ask you, the theory from my way of thinking, that they send a man telling him they're going to treat him for venereal disease and send him to a psychiatrist, well there, gets the confession from him. Is there anything to refuse the idea that that's what happened?
Freeman H. Forrest: I think that he knew he was going there for observation as well as --
Speaker: The observation of what?
Freeman H. Forrest: Presumably homosexual tendencies.
Speaker: Well, is there anything in the record that shows that?
Freeman H. Forrest: No, sir. I wish there were.
William J. Brennan, Jr.: Does Iowa have a statute for treating a sexual-type offenses?
Freeman H. Forrest: Yes, sir.
Hugo L. Black: Is this the institution? Is this the state institutional integrity?
Freeman H. Forrest: Yes, sir.
William J. Brennan, Jr.: Well, is very -- to treat venereal diagnosis whatever it may be, is that where it's treated?
Freeman H. Forrest: It is one of those institutions where that treatment and diagnosis may be made.
William J. Brennan, Jr.: There are more than one?
Freeman H. Forrest: Yes, sir.
William J. Brennan, Jr.: I mean, how -- how -- Is it on voluntary commission as the --
Freeman H. Forrest: The State contends that this was voluntarily on the basis --
William J. Brennan, Jr.: What's -- what's the statute that would handle voluntary commission or is there some system for involuntary commission for treatment --
Freeman H. Forrest: Well, we have both. The Court may -- there -- there are civil proceedings, there are -- there are summary proceedings by a Court in a criminal case and there are -- in other words, he can be both --
William J. Brennan, Jr.: Well, is there anything in this record to indicate that this commitment was for that purpose whether voluntary or involuntary other than what Mr. Justice Black has referred to?
Freeman H. Forrest: No, I think not. I think the -- the only statement that he was sent there for observation and treatment of syphilis.
Hugo L. Black: Where is the statement he was sent there for observation?
Freeman H. Forrest: I don't think I can put my finger on it this minute if --
Hugo L. Black: As to that, maybe your associate can find it. I'd rather (Inaudible)
Freeman H. Forrest: Thank you.
Earl Warren: Mr. Forrest, you -- you said he went -- when he went to the hospital, he went there of his own free choice. Now, when you say choice, do you mean the choice between staying in jail or going to the hospital, or do you mean the choice between going to the hospital and having his free will?Does the record show which -- which kind of a choice he had? I just want it because it could be one thing if they -- if he could have his freedom and -- or go to the hospital be quite another. If -- if his only choice was between sleeping in a cell on -- on an iron bed or going to -- to a hospital or he could sleep in a -- in a regular bed. Now, does the record show what kind of a choice he was given?
Freeman H. Forrest: Perhaps I should first point out that the record shows that he got a mattress after a few days.
Earl Warren: I beg your pardon.
Freeman H. Forrest: I'd say perhaps I should first point out that he -- the record shows he did get a mattress after a few days but be that as it may. The only thing in the record without going outside the record are the implications to be -- to be taken from the record. In other words the petitioner makes no allegation to that effect. The fact that the trial court did not stop the trial and hold a criminal proceeding. Do I -- if I understood your question correctly --
Earl Warren: Well, I don't think -- I don't think so because you're not answering it. You -- you told us that during -- during the time he was under arrest --
Freeman H. Forrest: Yes, sir.
Earl Warren: -- or before arraignment that he went twice to the state hospital.
Freeman H. Forrest: This is true.
Earl Warren: You told us also that he went there of his own choice.
Freeman H. Forrest: Yes, sir.
Earl Warren: Now, I asked you what choice he exercised. Did he exercise the choice just between remaining in a -- in a cell under arrest where he had to sleep on an iron bed or go to the hospital or did he have his choice of going to the hospital or having his freedom?
Freeman H. Forrest: I think he had his choice of going to the hospital, certainly. Whether he had his choice of freedom, I am not certain.
Earl Warren: Well, as -- a choice has got to be between two things at least, doesn't it?
Freeman H. Forrest: Well, of course our contention is --
Earl Warren: Is the choice --
Freeman H. Forrest: -- that -- that his choice was also that he stay in prison. That's what he asked to do.
Earl Warren: All right, then -- then we get at this way then. Do you -- is it your position that he was not under restraint when he was in the jail?
Freeman H. Forrest: Well, if I answer yes to that, I have nothing in the record to substantiate me except the implication, the necessary implication. The record and the fact that the petitioner insist that he was held 20 days, well of course, the actual period of custody was even longer than 20 days when you add in those periods of custody if you want to call it that in the mental health institute.
Earl Warren: All right.
Freeman H. Forrest: He does not choose to add those periods. I think that's --
Earl Warren: All right.
Freeman H. Forrest: -- indicative of the fact that he had a choice whether he was going down there and that he did not contend that he was at that time in custody.
Earl Warren: Well, let me ask you this. Was the defendant under arrest at that time? When he took him to the jail, was he under arrest?
Freeman H. Forrest: Yes, sir.
Earl Warren: I beg your pardon?
Freeman H. Forrest: Yes, sir.
Earl Warren: All right. How long did he remain under arrest before he -- he went -- was taken for a magistrate?
Freeman H. Forrest: Well, 20 days.
Earl Warren: Was -- was the -- did he go before a magistrate 20 days after he was taken into custody?
Freeman H. Forrest: No, sir. This is deducting --
Earl Warren: All right, all right.
Freeman H. Forrest: -- and -- and he -- he has deducted it himself. He says (Voice Overlap) --
Earl Warren: Well, I was not talking about him deducting and I'm talking about the -- the theory of the State in this --
Freeman H. Forrest: Yes, sir.
Earl Warren: -- in this matter. Was -- it's your position that he went to the -- to the hospital of his own free will. When they finished with him at the hospital, was he operating under his own free will to go where he wanted?
Freeman H. Forrest: No, sir. He was --
Earl Warren: He was taken under arrest?
Freeman H. Forrest: Yes, sir.
Earl Warren: And the same thing happened the second time.
Freeman H. Forrest: Yes, sir.
Earl Warren: Now, do you want us to conclude from that that he was not under arrest while he was in the hospital?
Freeman H. Forrest: Yes, sir.
Earl Warren: I beg your pardon?
Freeman H. Forrest: Yes, sir.
Earl Warren: All right. Where do you base it on in the record?
Freeman H. Forrest: The testimony to the effect that he volunteered to go there, the fact that he, in his own petition says, “I was held 14 days one time and six days the second,” and that's 20 days.
Earl Warren: Didn't he say -- didn't he say though in the record that the reason he went there was because he'd rather have a decent place to sleep and sleep in a -- in a bed rather than in the cot or whatever it was, in the cell in the jail. Wasn't that the reason he gave?
Freeman H. Forrest: Sir?
Earl Warren: All right, proceed then.
Freeman H. Forrest: Dennison, Officer Dennison testified that when Triplett was in custody, he slept regularly, was not interviewed for any sustained period of time. That he could not easily be led in the discussions in the questioning of him. That he was of normal mentality. Triplett -- that Triplett volunteered to go to the mental health institute for observation and treatment of syphilis, record page 97. On three or four occasions, he asked Triplett if he wanted a lawyer and the defendant said he did not want any lawyer. That there were never any promises or threats made. That he did not expect a confession the day he went to the mental health institute. During the time that he was in custody, his treatment generally speaking was good. This was affirmed by the statement of Gibson -- of Harry -- of Chief Detective Harry Gibbons. A Sioux City Bar Association President said in effect at Mr. Triplett, that he informed Mr. Triplett if he was being held against his will to seek a writ of habeas corpus and that he would give assistance of counsel for him, and that Triplett insisted that he did not want to leave the jail or the hospital whichever place he might be stating he had no other place to go and that he wanted to stay there and work for Mr. Gibbons in attempting to solve this murder. Chief of Police Russell White testified that he was normal with respect to mentality and alertness and probably he's a harder person to interrogate as I have ever encountered. He's very alert. I don't think anybody during my time of being with him and listening to him ever was ahead of Erny Triplett on interrogation. That he never made any promises or threats to the defendant and that no one did in his presence. And that Triplett was of average intelligence, exceedingly alert and his mind was not easily led or swayed.
Earl Warren: Well, wouldn't that indicate that there was no particular reason for taking him to a mental hospital for treatment?
Freeman H. Forrest: Yes, sir. The only other evidence that I know of is what the -- the petitioner has asserted that there was this other proceeding challenging the sanity of the man. But he makes no further reference to it and there is none on the record as to the outcome of that proceeding.
Earl Warren: Did -- did he say that was during these -- these days or what he calls “unlawful detention”?
Freeman H. Forrest: He said that it followed immediately the visit of Corbett.
Earl Warren: But he's been to the state hospital before that, hasn't he?
Freeman H. Forrest: Yes, sir.
Earl Warren: Well, why did they take him to a state hospital for? I understood you to say that the inference -- there was -- in the record was, there's no testimony but there was an inference that they had sent him there not only for treatment for syphilis --
Freeman H. Forrest: Yes, sir.
Earl Warren: -- but that it was also for -- for observation.
Freeman H. Forrest: Testimony of Officer Dennison.
Earl Warren: Well, I -- I thought you just read us some testimony saying that there's no question about his mentality. It was very clear, it was very sharp.
Freeman H. Forrest: Well, of course. I don't think that there is any necessarily correlation between his intelligence in the state of his sanity. I mean, I think --
Earl Warren: Well, what you said is -- I understood him to say his mind was very clear, very sharp. And so -- well, that to me has something to do with a man's mental condition --
Freeman H. Forrest: Yes, sir.
Earl Warren: -- if his mind is clear.
Freeman H. Forrest: But might -- but he might very well have a homosexual tendency without affecting the clearness of his mind.
Earl Warren: Well yes.I supposed that's true. Well, what's in the record, you are going to point to something in the record for me, will you? I -- I saw you look towards the record. I thought you were going to --
Freeman H. Forrest: No, sir.
Earl Warren: -- point out something. All right, proceed.
Freeman H. Forrest: Since I am so short on time, I want to go to the very heart of our argument.
Speaker: Can I ask you one question?
Freeman H. Forrest: Yes, sir.
Speaker: Is this mental hospital a state institution?
Freeman H. Forrest: Yes, sir.
Speaker: Is there any other state institution in the vicinity there or non-mental hospital?
Freeman H. Forrest: No.
Earl Warren: Is there a local hospital, county hospital or city hospital?
Freeman H. Forrest: City hospital.
Hugo L. Black: In the city.
Freeman H. Forrest: Yes, sir.
William J. Brennan, Jr.: And this -- does this state hospital have something comparable to a prison ward or something like that on the security or --
Freeman H. Forrest: Well, I'm sure it has a security ward.
William J. Brennan, Jr.: Well, does it appear whether he was housed in the security ward?
Freeman H. Forrest: It -- it does not appear that he was housed in a security ward.
William J. Brennan, Jr.: Does it appear where he was housed?
Freeman H. Forrest: No, sir. You have considered a number of factors previously as the kind of pressure that when exerted on a certain personality, are sufficient to have violated the petitioner's rights under the Fourteenth Amendment. Among those are age, comparative youth as you had in the Fikes case, education, you had in the Fikes case, mentality, you had in the Fikes case again. But contrary to this, we have a 52-year old white man. The Flood's testimony, that is, the people who employed him was that he was alert and active and a good salesman for them. The testimony of the police was that he was alert. Certainly his own testimony bears out the fact that he was articulate. There is no problem on legality of arrest which you considered in Chambers versus Florida. No problem on conditions of incarceration as in the Watts case.
Earl Warren: Now, wait a minute. No -- no question on the problem on -- on the --
Freeman H. Forrest: There is a question --
Earl Warren: -- and thus, if a man was arrested and held for 20 odd days without being taken to --
Freeman H. Forrest: Yes, sir.
Earl Warren: -- a magistrate, there's no problem there.
Freeman H. Forrest: This is a question of delay of arraignment as in my classification. In other words, the conditions at the time of his arrest were not violent in any way, shape or form. That's what I meant to refer. There was no period to prolong questioning. Certainly, the record that the trial court made on page 16 verifies that there was no physical violence. There was no deprivation of food and rest. Triplett himself admitted he was given coffee and so forth. There were no relays of long -- long relays of police officers, no emotional exhaustion that's shown in the record. Triplett bragged about the fact that he was able to wear out the -- his questioners. Counsel and friends were certainly admitted to see him. He refused to take advantage or to use them in any way. He was certainly --
Felix Frankfurter: Was that appeal affirmative of what you've just stated?
Freeman H. Forrest: Yes, sir.
Felix Frankfurter: I'm not questioning it. I'm just pointing it out.
Freeman H. Forrest: [laughs] He was warned of his -- certainly, warned of his right to counsel.
Earl Warren: But his friends were free to come and see him at anytime, you say?
Freeman H. Forrest: No, Matousec was allowed to walk in. He was a completely disinterested person. He was certainly not --
Earl Warren: Matousec --
Freeman H. Forrest: He was -- witness Matousec was the private detective who visited him the first few days.
Earl Warren: In his custody?
Felix Frankfurter: Apparently, this -- he did this all on his own. Didn't he, Matousec?
Freeman H. Forrest: Yes, sir. He was subsequently employed by the defense counsel. So that what we have is a lengthy delay. The State does not -- does not deny that the delay was lengthy. It does not deny that it was unlawful. 758.1 of the Colorado requires that he be taken forth with two magistrates. What you have held in Stein, you have held in Alliance, that delay in arraignment alone is not sufficient. That there must be something to -- to make a composite and we do not think the State's position is that there is no composite available here. All there was, was the delay. Additionally, we feel that the pressures that were exerted against this defendant as opposed to the kind of a defendant he was, and I do feel I must allude briefly to some of his testimony. For example, “The only voluntary statement I made to seeing Jimmy Bremmers was that I -- that I saw some children playing in a nice yard but I thought one of them might have been him but I gave them a fabulous story on that. I gave them a fabulous story on that other.” Question, Mr. Triplett, “Do you have any reason why should -- why that you, under serious questioning for day after day that you were out rather easily?” Answer, “Well, I wouldn't say that I wore out too easily. I put a few of the big boys to sleep down there in the desk after I got on the desk. After I got down to Cherokee, they appeared to take this tape recording. I got the same amount of sleep there.” “That's right, I'm denying everything I told the police. Now if you want the truth, have doubts there.” “Are you lying now or when you talked to the police?” “I'm sworn in here. You're not going to get me for perjury”. We think that this shows the kind of a personality that it's going to take considerable pressure to be exerted on to take it to have deprived of him his -- of him -- him of his rights and we feel further that the only pressure that was exerted was this half-hearted almost voluntary custody of 20 days. Thank you.
Earl Warren: Mr. Tacy.
Thomas O. Tacy: May it please the Court. If the Court's endowed about under what circumstances the accused went to Cherokee State Mental Hospital the first time on page 75 of the record. Triplett was asked, it -- bottom of page 74 of the record. “Did you not request to go to Cherokee Mental Hospital?” He answers, “The request was made to Mr. Gibbons.” Gibbons said, “I'll let you write the letter.” He says, “You can or is your arm cramped this morning? And I will tell you what to put in that letter.” And he says, “Put it in there so, so at your own request, signed.” “Would you call that your own request or would you call it the request of Mr. Gibbons?” That's the circumstances on which you first went positive. Now --
Felix Frankfurter: Well, the next question answered though?
Thomas O. Tacy: Yes. Yes, “Did you want to go to Cherokee?” Answer, “Do I want to lay in a good bed or lay on steel.”
Felix Frankfurter: That is what he said to Mr. Corbett.
Thomas O. Tacy: Yes. No, no, that's what he said to -- in cross-examination.
Felix Frankfurter: That's -- I understand that --
Freeman H. Forrest: Yes.
Felix Frankfurter: -- but that's what he says to the president of the bar association.
Thomas O. Tacy: You mean in their interchange by this --
Felix Frankfurter: Yes.
Thomas O. Tacy: -- he said that.
Felix Frankfurter: What?
Thomas O. Tacy: You mean he said that in the interchange of conversation between him and Mr. Corbett.
Felix Frankfurter: Yes. Did he say that?
Thomas O. Tacy: No, he didn't say that.
Felix Frankfurter: That's my point.
Thomas O. Tacy: No, he didn't. He said that -- that he hadn't done anything and he thought they were going to turn him loose. That's his testimony.
Felix Frankfurter: No, but as to why he went and his attitude towards his going to the Cherokee State Mental Hospital.
Thomas O. Tacy: Well, Mr. Corbett --
Felix Frankfurter: (Voice Overlap) Corbett.
Thomas O. Tacy: Mr. Corbett came --
Felix Frankfurter: Not this that he wanted to lie in a better bed.
Thomas O. Tacy: Now, Mr. Corbett came to see him after he's been in custody 29 days. Then as soon as Mr. Corbett offered him assistance, and I draw an inference from this which possibly I am allowed to draw. They took him -- according to the record here, they took him immediately to Sioux City before the Insane Commission and had him committed to the Cherokee State Mental Hospital for observation in what is known as the -- as the observation ward.
Felix Frankfurter: Now, you've just said something. Is that in the record that he was before some -- some -- with some state procedure --
Thomas O. Tacy: Yes.
Felix Frankfurter: -- if anything?
Thomas O. Tacy: That's right. He --
Felix Frankfurter: Even then there's a best of reasons for having -- for having taken him to the Cherokee Hospital for mental diseases rather than some city hospital of ordinary general diseases.
Thomas O. Tacy: Yes. Well, he -- he was -- he signed -- he signed an application that time that they request the officers, they put an X for him to sign and he signed it that he's inflicted with his -- he's inflicted --
William J. Brennan, Jr.: Is that application in the record, Mr. Tacy?
Thomas O. Tacy: No, it is not in the record, sir. This record is not too complete.
Hugo L. Black: But it was shown in the record.
Thomas O. Tacy: What is it?
Hugo L. Black: Of what you've just told us in that record. They permitted him -- where is the evidence in the record?
Thomas O. Tacy: I -- I think, sir that that is -- if that is in the record that -- I think it's -- I think the State referred to that in their -- I believe in their -- they say -- they say as soon as Mr. Corbett's interview, he may say he was then taken to the State Mental Hospital. That's all we have here. That he was then taken.
Felix Frankfurter: But you -- you've indicated a little while ago that --
Thomas O. Tacy: Well --
Felix Frankfurter: -- some procedure that for some presumably good reason, the authorities thought there ought to be some entirely be mistaken his -- into his mental health. Isn't that what you said a minute ago?
Thomas O. Tacy: Yes, I believe I did, Your Honor.
Earl Warren: Well, was that before or after he first went to a mental hospital?
Thomas O. Tacy: Now that -- the statement I made was when Corbett came to see him after 29 days of detention partly in the hospital and partly in the office of the -- or rather the police station in Sioux City.
Earl Warren: Now, you mean he made -- he made -- these proceedings started after that?
Thomas O. Tacy: After Corbett visited.
Earl Warren: Yes.
Thomas O. Tacy: Yes, sir.
Earl Warren: Corbett visited him --
Thomas O. Tacy: Yes.
Earl Warren: -- 29 days after he was arrested.
Thomas O. Tacy: Yes. And instead of giving Corbett time to do something, they took him right down there and the fourth day got this confession.
Felix Frankfurter: Well, but Corbett didn't go there to do something. He went there --
Thomas O. Tacy: To find out.
Felix Frankfurter: -- not what I've read in the testimony.
Thomas O. Tacy: Yes, sir.
Felix Frankfurter: Evidently some -- if I may so, commendable members of the Sioux City Bar --
Thomas O. Tacy: Yes, very much so.
Felix Frankfurter: They must present, I assume, there was alot about this in the newspapers.
Thomas O. Tacy: Yes, sir.
Earl Warren: And then some members of the Bar talked to their president, Mr. Corbett and said, “Well, this fellow, have we got lawyer for the other lawyer?” And evidently induced Mr. Corbett to see him.
Thomas O. Tacy: That's right.
Felix Frankfurter: Not to offer himself as a lawyer he disavowed that completely and you accepted that disavowed. What he said to the Bar, members of the Bar that he want a lawyer. Isn't that right?
Thomas O. Tacy: That is right, sir.
Felix Frankfurter: And from all, not only the testimony but you're -- of what you think of Mr. Corbett, makes one attached verity to what he testified.
Thomas O. Tacy: I consider Mr. Corbett a very reputable member of the Bar. His intentions were good. But I say that when he had a suspicion that this man's rights were being invaded, due process denied him, I think it was his duty if he was going to give the man any advice. I think it was his duty to tell the officers to arraign him right there. There were some (Voice Overlap) --
Felix Frankfurter: May I suggest that he replied to your questions by saying he concluded after talking with Triplett.
Thomas O. Tacy: Yes.
Felix Frankfurter: On Triplett's statement that his rights were not being interfered with.
Thomas O. Tacy: He wasn't being held against his will. That's -- yes, he concluded that.
Felix Frankfurter: I mean, did you ask him that question?
Thomas O. Tacy: Yes, sir. And he --
Felix Frankfurter: And he has very clearly answered. He says, “No, I didn't think that,” he didn't say there was a violation of disregarding the local statute of proper arraignment.”
Thomas O. Tacy: Yes.
Felix Frankfurter: But he did not think that he's right. So that is -- it isn't fair for us, I don't think we can infer that here is a friend of the Bar Association --
Thomas O. Tacy: Oh, no.
Felix Frankfurter: -- because I tried to open that it is the rights of the Board that were being violated and paid no attention to it.
Thomas O. Tacy: No, I don't think that.
Felix Frankfurter: Isn't that what it seems to be the testimony.
Thomas O. Tacy: I don't -- I don't think that. I would like to refer now briefly --
Earl Warren: Now, may I ask.
Thomas O. Tacy: Yes.
Earl Warren: Well, let me get the sequence in mind if I -- if I can? Where -- where was Mr. Triplett when -- when this gentleman came to see him, the president of the bar association?
Thomas O. Tacy: He was in a jail cell.
Earl Warren: He was in his jail cell. Had he ever been to the state hospital before that?
Thomas O. Tacy: He had been there on the 15th of September and stayed a little while. That's the time that he said he wanted to -- he'd like to sleep on a better --
Earl Warren: Yes.
Thomas O. Tacy: -- bed.
Earl Warren: Yes.
Thomas O. Tacy: And then when Mr. Corbett interviewed him, it was 15 days later. That is the 1st of October.
Earl Warren: Yes.
Thomas O. Tacy: Then immediately, he was taken to the state hospital again to put through the screening center and to be examined, and then the fourth day now, after Mr. Corbett interviewed him, they had that confession out of him down there on the 6th of October.
Earl Warren: All right. Now, what I want to know is when -- when did this proceeding, legal proceeding and have him examined as his excite -- apparently whatever it was in that hospital admission.
Thomas O. Tacy: Right after Corbett visited.
Earl Warren: Right after Corbett visited.
Thomas O. Tacy: The State's brief -- the State's --
Felix Frankfurter: Now, isn't any of these in the record, Mr. Tacey?
Thomas O. Tacy: Yes, it is in the record, sir. I think I --
Felix Frankfurter: I mean in the stenographic minutes?
Thomas O. Tacy: It's in the -- yes, it's in the stenographic minute. It's in the reporter's transcript, certainly.
Felix Frankfurter: That's what I'm talking about.
Thomas O. Tacy: Oh yes, that's all in the reporter's transcript.
Hugo L. Black: You've got what we call Exhibits K and KI. The State refers to that in page -- page where we would find --
Thomas O. Tacy: I think so, sir.
Hugo L. Black: -- statement at the middle in his handwriting.
Thomas O. Tacy: Yes. You will find all of that in the -- yes.
Hugo L. Black: Exhibit K and KI --
Thomas O. Tacy: That's right.
Hugo L. Black: -- but I do not find them in the printed record.
Thomas O. Tacy: No, that's right. And they are in the reporter's transcript which we called the -- the transcript of the record.
William J. Brennan, Jr.: Now, let me get this clear if I may. This -- is that -- is that K or whatever it is, is that an application which initiates a procedure under your State's sexual psychopath statute. Is that it?
Thomas O. Tacy: No, it is not sir. It is under -- it's under the regular insanity statute. Just plain insanity, that's what it says. That the -- the applicants or those who apply it for them is afflicted with insanity.
William J. Brennan, Jr.: It has nothing to do with --
Thomas O. Tacy: No. Not with the --
William J. Brennan, Jr.: -- being a sexual psychopath as such.
Thomas O. Tacy: No, and I -- I don't believe that sexual psychopathic statute in Iowa is very recent. I don't know whether it's even as in existence and -- but there was nothing about that. It was plain insanity. Now, I want to say just -- if I can say one more word now.
Earl Warren: You may.
Thomas O. Tacy: That here is a confession that was extorted from this man in an insane hospital when there had been no finding made as to why he was down there or whether he couldn't -- should have been sent down there and it as under circumstances that couldn't have been carried on in a court of law. It wasn't a voluntary confession. It was a grueling cross-examination by four different people. One attendant in the hospital had him in charge, one detective and two doctors got part in it. There was no voluntary expression on his part. There's nothing that came from his own mind, he so testified.
Felix Frankfurter: Well, there's many -- it wouldn't make any difference to your -- that's a hypothetic question here.
Thomas O. Tacy: Yes.
Felix Frankfurter: Suppose this is exactly the same confession, word per word, every other circumstance is saying had been made in a (Inaudible) mind local hospital rather than in Cherokee, would your position be any different?
Thomas O. Tacy: Oh, I don't believe it would, sir. I don't believe it would.
Earl Warren: Very well.


Earl Warren: Number 410, American Airlines, Incorporated versus North American Airlines, Incorporated. Mr. Westwood, you may proceed.
Howard C. Westwood: May it please the Court. At the Court's rising yesterday, I just referred to the one issue that remains in the case at this stage. That is whether the findings of the Civil Aeronautics Board make out a case of violation of Section 411 of the Civil Aeronautics Act because of the respondent's use of the name North American. The lower court held that the findings did not make out such a case. First, the Court pointed out that there was no finding that the respondent had adopted the North American name with the intent to deceive the public or that it had palmed itself off as American Airlines. Now, as to that, later in the Court's opinion, it relied on and indeed quoted the dictum of Mr. Justice McReynolds in the Gratz case to the effect that in order to make out a Section 5 case under the Trade Commission Act, it was necessary that there be a showing of fraud or bad faith or something of that nature. The respondent in its brief here, unlike its argument pressed to the lower court, agrees with us that the Gratz dictum no longer represents the law. Indeed that dictum was long since repudiated if it ever meant what had been attributed to it and a showing of fraud or something of that nature is not necessary in order to make out a Section 5 case under the Trade Commission Act and a fortiori under Section 411 of the Civil Aeronautics Act. The next point that was emphasized by the lower court with respect to deficiency in the Court's -- in the Board's findings is that there had been no finding to the effect that American Airlines had actually lost business to North American as a result of the name similarity. As to that, we respectfully suggest that the Court was in error, that the absence of any such finding is not a flaw. Certainly, since the Wheeler-Lea amendment to Section 5 of the Trade Commission Act in 1938, the substance of which was incorporated in Section 411 of the Civil Aeronautics Act, a finding of injury of that nature to a competitor is not necessary to establish a case of unfair or deceptive practice or unfair method of competition.
Felix Frankfurter: Mr. Westwood, before you sit down I take it you will deal with the question that's implied in your remark a minute ago a fortiori to the Civil Aeronautics Act implying of course that the scope and gamut of -- of outlaw -- of the criteria of outlaw activity is not identical to a difference and in favor of the Civil Aeronautics Board. Will you deal with that (Voice Overlap) --
Howard C. Westwood: Yes, I'll -- I'll come to that immediately. The Civil --
Felix Frankfurter: (Inaudible)
Howard C. Westwood: Well, no, that -- that's all right. I might as well talk about it now. This Section 411, while it -- its wording is very similar in substance to the wording of Section 5 of the Trade Commission Act, does appear in a context which is quite different, we suggest, from that of Section 5 of the Trade Commission Act. That is a particular section in a comprehensive regulatory statute addressed to a -- the problems of a particular segment of industry, that is common carriers by air, in which there is very complete and very elaborate administrative regulation of service, of routes, of rates and so forth, in which there is a special statement or declaration of policy set forth to guide the administrative agency given special responsibility for the administration of that statute. Now, in that context, we suggest that not only is Section 411 as broad in its -- in its conferring of power on the agency as is Section 5 of the Trade Commission Act. But by virtue of the fact that the Section is a part of a pattern giving special administrative powers to the Board, the scope of Section 411 may indeed be broader than Section 5 depending upon the expertise of the agency in working out its -- the application of the legislative standard there appearing to the particular problems of the industry. Now, the -- the next point and this is my -- my final point that the lower court emphasized was that absent the findings of loss of business by a competitor, findings as to fraud et cetera, the Klesner case decided by this Court under the Trade Commission Act, meant that the lower court -- that the lower court was able itself to determine what is to or in the public interest. And it arrived at the determination that the findings made by the Board, despite the fact that they had been specifically addressed to and had spelled out its conception of the public interest that those findings failed in the Court's judgment to show a case in the public interest. Your Honors will recall that under Section 411 it is provided and again this is somewhat similar to Section 5 of the Trade Commission Act that the Board is to institute a proceeding, is to proceed when it considers such action to be in the interest of the public. Now, the -- the flaw as we see it in the reasoning of the lower court is that it applied the Klesner case to mean that it could substitute its judgment for that of the agency as to what is in the public interest. Now, we have discussed at some length in our briefs the Klesner case, we've debated what its present significance may be, suffice it to say here simply this that whatever the significance of the Klesner case may be today under Section 5 of the Trade Commission Act, certainly under Section 411, appearing in the context in which it appears, it would be most unwise and we suggest contrary to accepted canons of statutory construction to apply that case so as to give a Court of Appeals warrant to substitute its judgment for that of the agency, and that the public interest issue under Section 411 should be treated no differently from the public interest issue under other sections of the Civil Aeronautics Act. And as this Court decided in the National Broadcasting case involving the Federal Communications Act, a pattern of administrative regulations somewhat similar to the Civil Aeronautics Act, the public interest issue has been delegated by the Congress to the agency and its determination and not a court's is to control.
Felix Frankfurter: Before you sit down I have to ask you a question, Mr. Westwood, and I think I can make it concrete because there's a great danger of getting off from the vagueness in here and not on what (Inaudible) at least what I'm doing. I can make it concrete by referring to a bill that's just been introduced into the House of Congress similar to our Federal State Commission which calls for the establishment of a court to determine when a contract in the state of trade is in the public interest, that's the phrase in this English legislation and that is made without any (Inaudible) is now gone, without any -- isn't answered by it, a matter for judicial determination. What I want to know is this, is public interest in 411, let alone the Federal Trade Commission, 411, is the issue of public interest one, which is without qualification a matter for judicial determination or is public interest a criterion and guide for determination for application by the -- by the Commission subject to criteria which must be satisfied by them. Now, that makes all the difference in the world to me whether the Court is to determine it.
Howard C. Westwood: Well --
Felix Frankfurter: De novo as it were, what is public interest or whether it be an issue to say like other delegated authorities, if you apply the wrong criterion in discharging your authority.
Howard C. Westwood: It is the latter in my opinion, Your Honor, and actually I don't believe the Klesner case was meant to -- to decide that the public interest issue in that context would be the former. But in any event, under Section --
Felix Frankfurter: I would have the greatest trouble if it was that because by whether it's important to be guided whether it is or it isn't in the public interest.
Howard C. Westwood: That's correct, that's correct.
Felix Frankfurter: Now, what is the difficulty? What -- what then is your -- where do you think the court below, that's the -- the Court of Appeals for the district, had gone wrong from your point of view?
Howard C. Westwood: Well, the Court of -- the Court of Appeals for the district obviously was very much affected by the feeling that in order to -- in order to have a -- what I'll call a Section 5 violation, which it transposed to 411, there should be a finding of something akin to fraud and it was obviously --
Felix Frankfurter: That's merely --
Howard C. Westwood: -- influenced by the Gratz dictum and that's just wrong.
Felix Frankfurter: Yes.
Howard C. Westwood: All right. Now, next, it proceeds and its opinion is not all together clear, it meant to -- perhaps it meant to decide nothing else than that, absent fraud, clearly the case falls. But of course as a matter of logic, it did decide something else because it held, citing the Klesner case, that there must be a public interest and then it simply said negatively there is no public interest here unless the record show something more than the record does show. Now, I can construe that to mean only that the Court itself was determining what is in the public interest and that it regarded the findings of the Civil Aeronautics Board which spell it out in very considerable detail, what the Board felt to be in the public interest. It -- it felt that those findings were not to be taken by the Court as the appropriate definition but that its -- its own conception --
Felix Frankfurter: Well, you can --
Howard C. Westwood: -- was to be taken.
Felix Frankfurter: I suppose we can all agree that negatively speaking, the public interest is not satisfied, it's the effect of what's been complained of is exhausted by merely one person and doesn't travel or one -- one individual or one enterprise and doesn't travel outside, although one -- one insist such as a monopolistic airline, it might be a public interest and go the distance in discharging a function beyond its own proper forum.
Howard C. Westwood: Yes, I think that's --
Felix Frankfurter: Then I --
Howard C. Westwood: -- I think that's --
Felix Frankfurter: -- take it that's one of the troubles in the Klesner case that we're dealing with.
Howard C. Westwood: Well, if the Klesner case -- actually, in the Klesner case, the Trade Commission, except in its initial resolution in a kind of a formal way, didn't even address itself in its findings and in the opinion that it entered there, as I recall it to the public interest issue. And when this Court looked at the situation, there was not, on the basis of the findings in the Klesner case, anything to indicate that the Commission, the Trade Commission was moved by any consideration other than the general community interest in the vindication of private rights, that is the settlement of this little squabble that was going on between the shade shops. Now, that's what the Klesner case decided, that -- that there must be something more than that and that's all it decided. Now, here, I shan't go through the findings in detail, the Court can read them there, abundantly disclose that the Board was -- the Civil Aeronautics Board was moved by a concern as to the impact of this confusion on the traveling public over a very important air transport route which was not insubstantial and the Court -- the Board specifically found that it was -- that it was extensive in its impact and which would have very harmful results, not to the interest of American Airlines that is not what moved the Board, but that it would have very harmful results to the traveling public. Now, that satisfies any --
Speaker: The impression I got from the Court of Appeals' opinion was that because you were -- you had a -- naturally had an interest in this as a result of any relief you got, therefore, the matter is not a matter of public interest but rather than a subject of private litigation between you and North American Airlines.
Howard C. Westwood: I -- I think there -- I --
Speaker: So far as I can get anything out of the opinion, that was the underlying philosophy in it.
Howard C. Westwood: I -- I think that -- that was -- did move the -- the Court and of course as to that, there are many types of unfair practices or unfair methods of competition which have an impact on private interest.
Stanley Reed: How did -- how did you bring the Section 411 in this case?
Howard C. Westwood: Your Honor, the -- there was a procedure which I didn't go into yesterday.
Stanley Reed: As I understand it, there was a procedure whereby airplane companies have been -- a habit of getting a license in one name and operating (Voice Overlap) --
Howard C. Westwood: That -- that's right.
Stanley Reed: And then it was the Board who required that that should be equalized in some way so that they have their license and the name at the same time or get (Voice Overlap) --
Howard C. Westwood: Yes, Your Honor, and then they --
Stanley Reed: And North American applied for that permission (Voice Overlap) --
Howard C. Westwood: That -- that's right.
Stanley Reed: -- in order to justify it.
Howard C. Westwood: What -- yes, sir.
Stanley Reed: And they -- they applied for permission, they used the name North American and you objected?
Howard C. Westwood: That's right, Your Honor.
Stanley Reed: And then did you file some pleading or something saying this is unfair or --
Howard C. Westwood: Yes, Your Honor. It's -- they --
Stanley Reed: Basing it on 411.
Howard C. Westwood: Yes. You see the Board had said when it set up this procedure with respect to changes of names, the Board had said, "Now, if a name is already in use, despite the fact that it wasn't the name in which the authorization had been issued, we won't interfere with it unless we find that there is after notice and hearing that Section 411 is violated." So that when the application was made, we filed our memorandum complaining as to the use of the name and invoking Section 411, supporting affidavits, the Board considered the matter and instituted a 411 proceeding.
Stanley Reed: Well, if -- if you -- if you should enforce it in your point of view lose here, you'd still have your right of action against the company or --
Howard C. Westwood: You mean private right of action?
Stanley Reed: Yes.
Howard C. Westwood: Yes. Yes, it's -- as I suppose any competitor has a private right of action where there is some matter that might be of concern to the Federal Trade Commission in many cases certainly.
Earl Warren: Mr. Derenberg.
Walter J. Derenberg: May it please the Court. When this case was before the hearing examiner, he handed down a decision in which he said this case finds no question in the Board's decisions, therefore, one must look for guidance to the decisions of the Court in the application of unfair trade practices as set forth under Section 5 of the Federal State Commission Act. We agree that this case is unprecedented. The Court mentioned it and so did the lower court. There is no precedent for administrative action depriving a person of its lawful views of its trade name as was done in this case. I may say that while this is the first case of this kind, we hope that it may be the last case under Section 411 or under Section 5 of the Federal State Commission Act if such an attempt be made. We all agree that the law of the case is to be found in this Court's decision in the Klesner case. I have been proud for the last 20 years in teaching law students at New York University then I came around to Mr Justice Brandeis' decision in that case. It established said two things, two very fundamental things, one was that there has to be a specific and substantial public interest before an administrative agency, be it the Commission or the Board, would have jurisdiction. And the other was of course that the question of public interest is reviewable by the Court. My brother in their main brief and in their reply brief, and I may say we only got the reply brief on Saturday and we could not actually reply to it, go to this length of suggesting to this Court several times that the Civil Aeronautics Board is better equipped to decide the issue of likelihood of confusion between two trademarks or two trade names than was the Civil -- than would be a civil court and if I may say it would be this Court. They talk about the administrative experience, the administrative skill as a better judgment that administrative boards may have in determining issues involving air transportation. This, Your Honors, is not such an issue. What is involved in this case and how did it arise? Part of it was answered by -- to Mr. Justice Reed's question. We lawfully adopted this name North American Airlines. There was no regulation then that we had to get permission to do so. Subsequently, this economic regulation was passed, we applied for permission to use the name and from thereon American Airlines took over. They filed a service mark certificate issued by the Patent Office showing that they got a service mark registration based on five years exclusive use of the trademark American Airlines with the disclaimer, of course, of the word airlines which was granted. I suppose it should have been granted, although there were other airlines, Pan-American, All American also in using the word "American" that that is certainly not an issue in this case. Then they, from thereon, conducted this case. They -- all the witnesses which we heard were their witnesses, the lower court found that the Board produced no witness whatsoever. Although, in their economic regulation they said they had -- had many complaints about other types of confusion, nothing was produced before the Board. When the case was appealed, the Government filed a perfunctory brief, the main brief was offered by American Airlines. When the Court of Appeals, a very distinguished lower court, unanimously reversed the Board's findings based not only on the Klesner -- Klesner case but also on the findings that there was no substantial confusion. As a matter of fact, Judge Danaher used confusion in quotation marks. The Government did not apply for certiorari in this Court, it was only the -- the then intervener who applied here and who is here today. The name of the case now is American Airlines versus North American Airlines, not Civil Aeronautics Board. In other words, what we have here is a -- the type of controversy no different than -- for instance, Mr. Justice Minton had -- when the question was whether Sunkist on bread was confusing to Sunkist on raisin or the type of question that was before the Second Circuit when Mr. Justice Harlan was there about Clorets and some other similar name for chewing gum. It is true that the air transportation involves a million dollar industry but basically the question is the same. We have nothing else here except is American Airlines likely to be -- cause confusion with North American Airlines and more likely so than confused with Pan-American Airlines or the All American Airlines or any other.
Felix Frankfurter: Is -- is the suggestion that no question of confusion is within the competence of the Aeronautics Board?
Walter J. Derenberg: No -- no --
Felix Frankfurter: No question of confusion?
Walter J. Derenberg: I would say no question of -- of likelihood of confusion between the names --
Felix Frankfurter: Well, I'm not talking about evidence --
Walter J. Derenberg: -- between the names of --
Felix Frankfurter: But the issue of confusion you say is outside the competence of 411 before the -- before the Board?
Walter J. Derenberg: Yes, I would say that.
Felix Frankfurter: That's your argument?
Walter J. Derenberg: Yes, I would say that.
Felix Frankfurter: All right.
Walter J. Derenberg: And that was what this Court said in the Klesner case too. And I have -- I want to say this at this point that I have never found a single decision by this Court throwing any doubt on the Klesner ruling. I want to mention that the Wheeler–Lea Act had nothing to do with the public interest issue. The dictum of the Gratz case to which was -- to which reference was made here simply said that the Federal Trade Commission was limited to that type of unfair competition for which there had been common law remedies. And we admit, I at least admit, that that narrow scope is not true today but there -- there was nothing in our brief or say anywhere else that there should not be actual proof of deception. I want to invite the Court's attention to the further language in the hearing officers at this issue which was affirmed by the Board and it begins at page 190. This I believe and suggest strikingly shows that this Board and certainly the hearing examiner did not have that expert knowledge that is required to decide complicated questions of unfair competition and trademark infringement. That is what Judge Danaher said below, he said he could not believe that Congress intended to remove all that from the jurisdiction of the civil court and have the Civil Aeronautics Board pass on issues of trademark infringement. Your Honors will find some very startling statements made here on page 191 of the casebook. The hearing examiner refers to a statute of unfair competition, giving American Airlines a property right. There is no such statute to my knowledge, at least to a federal statute. In page 194, they said that they have a guide in the word "American" regardless of whether other people may also have used the word "American" as part of their name. Most important on page 197, there is the one language on which the lower court relied and which we rely, there is no evidence that North American adopted its name with intent to deceive the public or trade upon the goodwill and business reputation of American or that American has been injured by such operation. Judge Danaher went even further putting the word confusion in quotes.He said there was no evidence of passing of -- no -- no evidence of actual confusion in quotation mark, "No evidence that North American advertising was intended to or did entice American's passengers to fly North American." The only question of -- and all before the Court is whether there is confusion between the two naked names. And you -- I might call attention to the fact that neither the hearing examiner nor the Board quoted one single Federal Trade Commission case in point because there are not any Federal Trade Commission cases in point. All the so-called trade name and trademark cases on which my opponent relies and which are quoted in their brief in -- particularly in their reply brief deal with actual misrepresentations. And if Your Honors will look at those cases, one involves the word Atlantic Packing Company for someone who's not a packer, one oil milling company, famous decision by this Court that there was no mill, one rejuvenescence for a cosmetic which did not rejuvenate, one a violation of Robinson-Patman Act, one a question of monopoly. There is not a single case involving an issue of likelihood of confusion between two trade names. The only one that I have found that approaches this situation is the Remington case where as it said there, a court did enjoin the use of the famous trademark Remington on closely related products. In that case, it was the identical name that was used and the Court found evidence of fraud and deception. I thought I should mention these cases because the petitioner in their reply brief relies on some of them. The Gimbel case, they use the word woolen for a product that was not wool, of course that is deception, of course that's a misrepresentation but that is entirely different from the kind of trade name or trademark dispute which we have here. The -- the hearing examiner and the Board misunderstood the law as we know it and as this Court has applied it in trademark cases that unfair competition in at least in three respects. We all know today that there's a difference between what we call strong and weak names. If somebody takes a name like American, he cannot acquire exclusive rights anywhere beyond the very narrow scope in which he may have built up a secondary meaning. We have quoted in our brief several cases even involving the word "American," a California case between the American Automobile Association and an -- American Automobile Owners Association where the Supreme Court of California held that if you have no better term to use than American Association or American Express or American Company and you cannot rely on too broad a scope of protection. But apart from that, you have -- Your Honors will have to consider the product involved or the servitude involved, there is no indication that the Board looked into it, they don't cite a single case. Take the railroad industry or the shipping industry for instance, there is Red Star, there is Blue Star, there is White Star, they all compete with each other. In the -- in -- in railroads, you have Union Pacific, Southern Pacific, Western Pacific, Northern Pacific, no one claims that he's the only ones to use the word Pacific. In our air transportation, we have Pan-American Airways, they fly from here to Mexico and we have American Airways, we have Northwest and we Western, we have Northeast and we have Eastern, you just cannot apply to straight -- attest to those cases. I think the public is educated enough even those of us who don't travel as far that some of Yours Honor have to know the difference between these various air transportation facility. There is no indication in the Board's decision that that point was considered. On this question of -- of reviewability of the public interest, the -- my brother mentioned this Court's decision in one of the broadcasting cases, they referred to it in their reply brief, I think the short answer to that is a subsequent decision by this Court in the Federal Communications Commission versus RCA where the Court speaking, to whom Mr. Justice Frankfurter made this statement, "Congress has charged the courts with the responsibility of saying whether the Commission has fairly exercised its discretion within the vaguish, penumbral bounds expressed by the standard of public interest. It is our responsibility to say whether the Commission has been guided by proper considerations in bringing the deposit of its experience, the disciplined feel of the expert, to bear on applications for licenses in the public interest." The lower court towards the end of its decision made this statement, "Against the foregoing background, that is the lack of public interest and the lack of confusion, that is relevant confusion, we all are confused at least to the absentminded professors are, I have been at the wrong counter quite frequently and I have been told will you please go over there, you are at the wrong counter here, that isn't anything unusual. But what American Airlines did is -- the evidence they submitted, they asked their own employees to make a record everytime a wrong telephone call came in, everytime somebody came to the wrong counter they would make a record for the purpose of this case so that they could be prove that there was confusion. Judge Danaher, the lower court believed and I submit he was right in suggesting that that is not the type of specific and substantial confusion that has to be defined that that is in the public interest and a previous decision.
Speaker: Mr. Derenberg --
Walter J. Derenberg: I think this --
Speaker: -- I going to ask you a question. Assuming that the standard of proof in this case, the evidence in this case had been -- has satisfied you in all respects had -- had this been an unfair competition suit, American Airlines would have been entitled to a relief, would that make any difference as to whether the -- this was within the competence of the Federal Trade Commission or the Civil Aeronautics Board?
Walter J. Derenberg: Well, my view is that this would not be -- that would -- this would under no circumstance --
Speaker: Under no circumstance.
Walter J. Derenberg: -- could be in the competence of the Civil Aeronautics Board. I have been working in unfair competition and trademark all my life and I feel that the question of American Airlines versus North American Airlines or Pan-American Airlines should be argued before the patent officer and before equity courts. And this Court in -- in the famous Eastman Kodak decision said this -- this much at the very end, the Commission, this was the Federal Trade Commission, exercises only the administrative functions delegated to it by the Act and not judicial power. It has not been delegated the authority of the court of equity.
Stanley Reed: But you have to -- you have to determine what -- what is the authority delegated for 411, don't you?
Walter J. Derenberg: Yes, and if Your Honor will study the legislative history and the statement by Commissioner Eastman and others you will find that everyone has agreed that the scope of the Section was to be identical, almost identical with Section 5 of the Federal Trade Commission Act and Judge Danaher points out below that the type of unfair trade practices that they had in mind involved these ticket agents, involving priority questions, involving typical aeronautical issues but not questions of trademark infringement or unfair competition. That is why I believe that this case has -- is significant which goes beyond the narrow issue involved here. I think at this time, at least I hope at this time that we can teach law classes that we don't only have the Klesner case but we -- we would like to have another ruling by this Court that matters of this sort involving private disputes, involving issues of name infringement and trademark infringement should not come within that administrative absolutism to which Mr. Justice Frankfurter referred in one of his recent decisions.I respectfully submit that the lower court's decision was eminently sound and that its judgment should be upheld.
Felix Frankfurter: I hope -- I hope that your classes don't think because the case is dated 1929 it needs to be freshened up.
Walter J. Derenberg: Well, they haven't so far but -- [Laughter] -- I'm only mentioning that because it has been suggested that this Klesner decision has been revitalized and denaturalized in the mean time.
Howard C. Westwood: One word only, the principal argument of the respondent seems to be that the issue of confusion as to a particular class of cases should be beyond the scope of Section 5 or Section 411. I would only point that in a great mass of cases under Section 5 and potentially under Section 411. The issue of confusion is very much present and is the critical issue in the case.