Warren E. Burger: We’ll hear arguments in number 44, Precunier against Atchley. Mr. Granucci, you may proceed whenever you’re ready.
Robert R. Granucci: Mr. Chief Justice and may it please the Court. This is another chapter, and we hope the final chapter, in a story of a criminal prosecution that commenced in 1958. This case comes here after the United States District Court in a decision affirmed by the Court of Appeals for the Ninth Circuit, ordered the State of California to hold a new hearing in the State Courts on the question of whether Atchley’s confession was voluntarily given, which confession was introduced to this trial over objection and a lengthy hearing at the trial. The question have been reviewed and affirmed by Unite-- by a unanimous opinion of the Supreme Court of California and the decisions of the State Courts which were, adverse to Atchley, brought to this Court. I think the issue that is really presented today is whether a State Supreme Court decision on the merits of a federal claim in a criminal case can be given a presumption of correctness in Federal Habeas Corpus proceedings. Now, if the answer to that question is in the negative, then the state appellate review of federal constitutional claims in criminal cases is an utter waste of time for everyone concerned, and State Appellate Courts would be well advised to relegate criminal defendants to the Criminal Courts for the immediate litigation of their constitutional arguments. Now, by way of procedural background, Atchley was convicted of murder in January 1959, after a jury trial in the Superior Court for Butte County, California. Because he was sentenced to death, and incidentally that sentence was subsequently commuted to life imprisonment and then commuted again to allow him the possibility of parole for which he is presently eligible, his appeal to the California State Supreme Court was automatic. That Court affirmed the conviction in a unanimous opinion authored by then Associate Justice Traynor, to which we will refer in some detail later. Suffice to say at this point, the principal issue raised by Atchley on his state appeal was whether his confession was voluntarily made. The California Supreme Court concluded that it was. Atchley then came to this Court on a petition for writ of certiorari, which was granted. Briefs were filed. The record was filed and the case was argued but after hearing argument and examining the record of the state proceedings, this Court dismissed the writ as improvidently granted. Shortly thereafter, Atchley filed a petition for writ of habeas corpus in the District Court for the Northern District of California. This was denied summarily, and the denial was affirmed by the Court of Appeals for the Ninth Circuit. In 1967, Atchley filed a second petition for a writ of habeas corpus in the Federal Court for the Northern District of California. That petition challenged the admission into evidence of a tape recorded confession which he had given to his friend, an insurance agent, one Ray Travers, the same issue that had been presented to the California Supreme Court. The District Court granted the writ. It did not say that Atchley’s confession was involuntary. Indeed, the Court admitted that it could not say that Atchley’s confession was involuntary. The District Court avoided the necessity of passing on that issue by holding that the procedure followed in the State Trial Court was not fully adequate to achieve a reliable determination that Atchley’s confession was voluntary. By the order of the District Court, we are relegated to the State Courts for a further hearing on this issue with the possibility of further appeals in the State and Federal Courts, and Atchley loses again. We say that the District Court erred in refusing to apply the presumption of correctness contained in Title 28 United States Code Section 2254 (d) which was enacted in 1956. The Trial Court re-- the District Court refused to apply the presumption for two reasons. One, the District Court concluded that a clear-cut determination of voluntariness did not appear on the State Court record. Secondly, the District Court stated that the Trial Court had applied an erroneous legal standard. We respectfully submit that the District Court was wrong for three distinct reasons. First, there was a definite ruling on the merits of Atchley’s constitutional claim in both the Trial Court and the California Supreme Court. The District Court totally ignored the independent review of the California Supreme Court, focused its attention on the Trial Court. It was wrong in both instances. First of all, as regard to Trial Court, I point out that California is a jurisdiction that adheres to the Massachusetts or Humane Rule in determining the admissibility of confessions. That is to say, the question of voluntariness is one that is to be determined, first of all, by the trial judge and, if the trial judge finds the confession voluntarily made, the confession is again submitted-- is submitted to the jury for a second albeit redundant determination of the voluntariness question. This Court, in Jackson versus Denno and the concurring opinion of Mr. Justice Black, has indeed recognized that California does follow the Massachusetts or Humane Rule. Now, Atchley had a ruling on the voluntariness of his confession when the Trial Court, over objection, allowed the confession to go to the jury on the issue of guilt. While the Trial Court did not give detail and specific instructions on the question of voluntariness to the jury, this is unnecessary for purposes of federal review, because all that Jackson d-- versus Denno requires is that the trial judge make a determination. When that is done, the question of whether to submit the matter to the jury for a second determination is solely one of state law. So, there were complaints with Jackson versus Denno in the Trial Court and there was also a definite ruling on the merits by the California Supreme Court. That Court exercised the power of independent review and found the confession voluntary. Now, the District Court, we submit, erred in holding that the material facts were not fully developed. Each of the alleged inadequacies relied on by the District Court in the development of the facts can be answered by an examination of the straight-- state trial record and the opinion of the California Supreme Court. First of all, the fact that Atchley was trying to contact a particular attorney in San Jose, and this is a point that the District Court said wasn’t sufficiently explored, well this was brought out in the trial record. It was considered by the California Supreme Court. In this case, the record also showed that Atchley was not an indigent. He was a man who ran a used car business, speculated in small parcels of property. He had an access to-- he had access to the telephone while he was under arrest, and he had retained local attorneys to carry on some civil litigation in connection with his business activities. In any event, Atchley spontaneously confessed to a third party, and that is why, even if there was a clear-cut showing of denial of counsel, it would have little, if any, weight under these circumstances. California Supreme Court also considered the point and, moreover, Escobedo, which was a first decision by this Court to specifically make a request for counsel and the denial thereof determinative in a confession case, Escobedo is not retroactively applied. The second point that the District Court said was inadequately developed was Travers’ concealment from Atchley of his motives for having a second conversation. Now, I would point out, although it’s spelled out in great detail in the briefs, I would point out for the illumination of the Court at this point that there were two conversations. About two days after he was arrested, Mr. Atchley called his insurance agent, one Ray Travers. He called him down to the jail to talk about the circumstances of his insurance, the changes that resulted from his condition of arrest. Now at that time, spontaneously, without any involvement of law enforcement, Atchley admitted to Travers that he had fired the shots that killed his wife. Travers reported this to the police. The police asked Travers if he would go back and get a second statement from Atchley that they would tape record. He agreed to do so because, and this appears in the record, he had told Atchley that he was coming back to get further information in any event. Now, it’s a second of these statements-- the second statement that was tape recorded, that was at issue here. In any event, the Supreme Court reviewed this matter of deception and held that this would not make a statement involuntary because it was not the sort of deception that would be likely to produce an untrustworthy statement. Third, the District Court said that the fact that Atchley did not know that the conversation would be recorded, that this wasn’t adequately developed, but it was in the record. It was considered by the California Supreme Court, and Atchley’s lack of knowledge of this point would hardly put on any pressure on him to confess. Finally-- no, fourth, what the officers said to Travers, again, this was relied on by the District Court, but this wasn’t material to Atchley’s state of mind. There’s no question that Travers was acting on behalf of law enforcement at the time the second confession was given. We don’t deny that at all. Fifth evidence of his mental condition, says the District Court, was not adequately developed. But, Atchley did not offer evidence of his state of mind at the time he made the confession. His offer of proof is the state of mind at his trial when only to the time of the shooting. The District Court also said that Atchley should’ve been allowed to develop proof of his education, his limited background. Well, the Trial Court, when the prosecution objected to this t-- the proof of this nature, overruled the prosecution objection and allowed defense counsel to proceed. However, the reason this point wasn’t developed is that defense counsel went on to another line of inquiry, and that appears at 147.
Warren E. Burger: Did Mr. Travers testify to the conversations which he had at the first visit in the cell block?
Robert R. Granucci: He did, Your Honor.
Warren E. Burger: Did he testify to the second also?
Robert R. Granucci: He testified to the second, and the tape recording of the second conversation was played to the jury. Since the commencement of this proceeding in the Federal Court, Atchley has never specifically suggested any additional evidence that was not already contained in the Trial Court record. Indeed, he has abundantly documented his argument that his statement was involuntary as a matter of law, with citations to testimony in the record of the state trial proceedings. Now, we must respectfully submit that this is a very tepid case that Congress had in mind when it enacted Title 28 United States Code Section 2254 (d).
Potter Stewart: When was that section enacted?
Robert R. Granucci: November 2, 1966, Your Honor.
Potter Stewart: What problems arose from that?
Robert R. Granucci: Your Honor, I am convinced that it was dissatisfaction with this Court’s decisions in Faye versus Noya and Townsend versus Sain, and the great expansion of the use of habeas corpus in the federal district courts to mount collateral attack on state criminal convictions.
Potter Stewart: Did-- have you looked at the legislative history of that provision?
Robert R. Granucci: Yes, Your Honor.
Potter Stewart: Did it come through the judicial conference of the United States?
Robert R. Granucci: I believe it did ,Your Honor.
Potter Stewart: Was it approved?
Robert R. Granucci: I believe it did. I think there was some modification though. I think that, at one point in the judicial conference, it was suggested that federal habeas corpus cases be tried by three-judge Federal Courts and this proposal was specifically deleted in the legislation as it was passed by Congress for the reason that it was felt that the three-judge Court requirement would pose an undue burden on the federal judiciary. Your Honor, the legislative history is cited in our brief. It is relatively short. The committee reports are relatively short, and we respectfully commend them to Your Honors’ attention.
William J. Brennan, Jr.: I don’t understand your observation that you thought the amendment to 2254 (d) reflected some congressional dissatisfaction with Townsend and Sain. How can you say that when 2254 (d) enacts all of the standards for review laid down in Townsend and Sain?
Robert R. Granucci: Mr. Justice Brennan.
William J. Brennan, Jr.: It’s not a congressional acceptance of it?
Robert R. Granucci: Mr. Justice Brennan, it’s been suggested that 2254 (d) is a codification of Townsend versus Sain.
William J. Brennan, Jr.: Well, it uses the identical language.
Robert R. Granucci: No, it doesn’t, Your Honor.
William J. Brennan, Jr.: It doesn’t?
Robert R. Granucci: In fact, the only thing that those two sections have in common is that criteria are present. First of all--
William J. Brennan, Jr.: Are the criteria any different from those laid down in Townsend and Sain?
Robert R. Granucci: Yes, Your Honor. For one thing, the sixth criteria in Townsend versus Sain, namely that the Federal Court, whenever he feels he ought to, can grant a hearing. That was specifically deleted. Also specifically deleted was a provision in Townsend versus Sain which allowed federal habe-- the Federal Habeas Court to grant a hearing on substantial allegations of newly discovered evidence. Now, this one was deleted and it’s interesting to note.
William J. Brennan, Jr.: Deleted or omitted?
Robert R. Granucci: Omitted, Your Honor.
William J. Brennan, Jr.: That would be the better--
Robert R. Granucci: It’s interesting to note though, that, contemporaneously, Congress amended 2244 which involved subsequent hearings on federal.
Byron R. White: 2255.
Robert R. Granucci: Excuse me. 2244 relating to subsequent hearings in Federal Courts after a hearing in a Federal Court on the merits or after a hearing in this Court after the grant of a writ of certiorari in determination on the merits, and those provisions contain mention of newly discovered evidence as a ground for a grant of a further hearing, but it’s not contained in 2254 (d). I think that’s significant. Second big difference between Townsend versus Sain in 2254 (d) is this. That under Townsend versus Sain, where the criteria were satisfied, the Federal District Court was permitted, authorized if you will, to accept the State Court finding vers-- findings of fact. Under the statute, the Federal District Court is required to accept the findings of fact. In other words, it turns-- the section, if you will, turns the authorization of Townsend versus Sain into an actual requirement. Also, the petitioner is given the burden of showing that the criteria for the adequacy of State Courts hearings are not present. A second further distinction is that 3354 (d) changed the burden of proof in habeas corpus cases. Now, traditionally, as in all civil cases, the burden of proof in a habeas corpus case was on the petitioner, but it was proof by a preponderance of the evidence only. 2254 (d) says that where the criteria are satisfied, proof must be made by clear and convincing evidence, obviously, a higher standard of proof. We think the District Court erred for the further reason that it totally ignored, in its order, the effect of the independent review afforded actually by the California Supreme Court. Just as this Court does in confession cases, the Appellate Courts of the State of California afford independent review in confession cases. Therefore, the decision of the California Supreme Court should have been afforded a presumption of correctness separate and apart from that given the Trial Court. Now, we think it’s quite reasonable, given the policy behind Section 2254 (d), to apply it to the opinions of State Appellate Courts when they consider claims on the merits. Obviously, 2254 (d) refers to “a determination after the hearing on the merits of a factual issue, and while this section obviously contemplates a determination by a trial judge after a hearing, it ought not to be confined to that meaning. There are two additional interpretations to which the section is reasonably susceptible. First, the determination may refer to the decision of an Appellate Court--
William J. Brennan, Jr.: Mr. Granucci, may I just interrupt you there with some question. I gather, under 2244, if when this case was here on direct review back in 366, we sustained the Supreme Court of California. Then, 2250-- 2244’s amendment would have precluded what happened here on federal habeas, would it not? Now, I--
Robert R. Granucci: Yes, Your Honor.
William J. Brennan, Jr.: Well, I don’t find that, in your brief, you’ve argued that our disposition back in 366 was tantamount to sustaining the Supreme Court of California.
Robert R. Granucci: We have--
William J. Brennan, Jr.: What we said there was, after hearing oral argument and fully examining the record, we conclude that the totality of circumstances, as the record makes the manifest, did not warrant bringing the case here. Accordingly, the writ is dismissed. Now, as to some reason, you haven’t argued that that was a substance sustaining the Supreme Court of California?
Robert R. Granucci: Your Honor, I wish I could’ve argued that in the District Court.
William J. Brennan, Jr.: Well, I--
Robert R. Granucci: The reason I couldn’t is because--
William J. Brennan, Jr.: Why can’t you argue it here?
Robert R. Granucci: It’s a denial of certiorari, Your Honor.
William J. Brennan, Jr.: No, it’s not.
Robert R. Granucci: It’s not a ruling on the merits.
William J. Brennan, Jr.: We dismissed the writ. We didn’t deny it. We granted the writ. We didn’t deny certiorari.
Robert R. Granucci: I’ve always understood, Your Honor, that a dismissal of certiorari, after hearing, argument is a denial of hearing.
William J. Brennan, Jr.: We didn’t dismiss it as improvidently granted. We didn’t say that.
Robert R. Granucci: I think that’s fairly-- I think that’s fairly apparent from Your Honor’s language.
William J. Brennan, Jr.: Well, in any event, if we construe this as having passed on the merits and reverse on that ground, are you going to be offended?[Attempt to Laughter]
Robert R. Granucci: Your Honor, I could never be offended by winning a case in the United States Supreme Court. Idon’t think--
William J. Brennan, Jr.: I’m just surprised you haven’t argued it. You don’t say a word about it in your brief.
Robert R. Granucci: Your Honor--
Potter Stewart: Somewhere in your brief you do say, I think that this is a little bit more than a simple denial of certiorari.
Robert R. Granucci: It is--
Potter Stewart: I can’t find it here, but I read it yesterday, I think.
Robert R. Granucci: Yes, Your Honor. It’s a little bit than a simple denial, but in the light of Faye versus Noya, in the light of 2244 which talks about a determination on the merits, I didn’t feel I could conscientiously argue that it was. Particularly, when the point that I’m seeking to present to this Court has much more important implications for federal state relations--
William J. Brennan, Jr.: You don’t really want to win this case then. You want us to review Faye and Noya and Townsend and Sain, that’s what you’re after.
Robert R. Granucci: I would like both, Your Honor.
William J. Brennan, Jr.: Yes, I see.
Robert R. Granucci: I would like both and, if I can’t have both, I will take one.
William H. Rehnquist: You may not get either.[Laughter]
Robert R. Granucci: That is always a risk. In any event, we think that the determination mentioned in 2254 (d) can refer to determinations by State Appellate Courts which pass upon the merits of federal questions. Now, in the years just past, this Court has taken many steps to extend state appellate review to state prisoners. Beginning in Griffin versus Illinois in which it provided transcripts, the proceeding through Douglas versus California in which it made the appointment of counsel mandatory, in culminating in Anders versus California in which it stated that counsel on the state appeal must prevent-- present every non-frivolous claim, this Court has proceeded to compel the states to set up meaningful appellate procedure for the review of the merits of federal claims. How can this Court now, by refusing to apply the presumption of correctness to the state appellate decision, say that state appellate decisions are meaningless when this Court itself has said that the state must provide meaningful appellate review? There are compelling reasons, we think, for extending the presumption of correctness to state appellate decisions. First of all, we think most respectfully, that Faye versus Noya underestimated the great importance of finality in the criminal law. We think that State Court decisions, where full procedural fairness has been afforded up and down the line, ought to be given finality. Perhaps a most important reason is to strengthen public confidence in the administration of justice. Nothing erodes that confidence as much as the constant litigation and re-litigation and re-litigation again of claims in the Federal Courts by state prisoners. Extending the presumption of state appellate decisions will encourage State Appellate Courts to review federal claims on the merits. I think that every commentator who has considered the matter has concluded that federal claims should be considered on the merits as soon as possible after the trial has been completed.
Potter Stewart: Well, in doing the trials as well.
Robert R. Granucci: In doing the trial, too.
Warren E. Burger: Whenever-- at the first opportunity that they’re raised, that’s--
Robert R. Granucci: At the first opportunity that they’re fairly raised. Your Honor, I think also that what the District Court did here that was wrong was reviewing this state trial record in the microscopic examination illuminated by the glare of hindsight. If we--
William J. Brennan, Jr.: I gather the District Court and the Court of Appeals did nothing that we haven’t already done. Is that right?
Robert R. Granucci: I--
William J. Brennan, Jr.: Because they acted only on the same record that was before us.
Robert R. Granucci: That’s correct.
William J. Brennan, Jr.: By which we heard oral argument which we are fully examining.
Robert R. Granucci: That’s correct, Mr. Justice Brennan.
William J. Brennan, Jr.: And I still get back to my original question. I don’t understand why-- well, yes, I guess I do.[Laughter]
Robert R. Granucci: Because we didn’t think it was a ruling.
William J. Brennan, Jr.: Yes, I know.
Robert R. Granucci: We didn’t think the decision in this Court was a ruling on the merits.
William J. Brennan, Jr.: Yes, if you prefer to look at it that way.
Robert R. Granucci: Now, with the permission of the Court, I’d like to reserve the remainder of my time to rebut counsel.
Warren E. Burger: Very well, Mr. Granucci. Mr. Legge.
Charles A. Legge: May it please the Court, Mr. Chief Justice. The apparent major thrust of the state’s argument is really that the Courts of Appeal of a state should substitute their appellate processes for the federal habeas corpus review of the facts which had been required by this Court and also required by Congress. The question of whether a Federal Court should exceed to the decisions of the state in the same way as it would its own fact finding processes. I think the answer to whether it should is a resounding “no, it should not.” Federal appellate review-- correction, state appellate review cannot constitute a substitute for a review of the facts by the Federal Courts.
William J. Brennan, Jr.: Well, I’ve put to you. Didn’t we review the facts from this case?
Charles A. Legge: I do not believe you did, Your Honor.
William J. Brennan, Jr.: And we say we did? I thought you said we did.
Charles A. Legge: The ruling of the Court, I believe--
William J. Brennan, Jr.: Not the ruling. Didn’t we say we have?
Charles A. Legge: You said the--
William J. Brennan, Jr.: After hearing oral argument and fully examining the record, we conclude that the totality of circumstances, as the record makes the manifest, didn’t warrant brining the case here. Didn’t we say that we had fully examined the record?
Charles A. Legge: Yes, those words were there, Your Honor, but I must say that the relief granted by this Court to what the dismissal of the certiorari petition as improvidently granted has in many--
William J. Brennan, Jr.: We didn’t say the “improvidently granted.”
Charles A. Legge: Well, I believe that was a construction of the Court.
William J. Brennan, Jr.: Who’s Court? That was the construction of the District Court in this case.
Charles A. Legge: Yes, but it seems to me that you’ve wrestled with this question in the Rogers case, and have gone into the question of when and where this Court must pass upon the merits of a decision and when and where it may rule a certiorari is improvidently granted. And, it seems to me that the only rule we can gather, that the Bar can gather from those cases, that if you’ve got four, you’ve got certiorari and you can dismiss the certiorari as being improvidently granted, but that does not constitute a ruin upon the merits of the case. Now, we also note Your Honor, but of course, since that case was first before this Court, we have had the decisions of Jackson v. Denno. We’ve had decisions of Escobedo. We’ve had decisions of Miranda.
William J. Brennan, Jr.: Yes, but I’m right, am I not, Mr. Legge, that the decisions here in habeas were only on the State Court record.
Charles A. Legge: That’s quite correct, yes.
William J. Brennan, Jr.: Just the same record that we had before us.
Charles A. Legge: Yes, that’s quite correct because you granted the remedy that the District Court granted was “let’s have a hearing. Let’s determine the facts.” Now, I--
William J. Brennan, Jr.: They didn’t have a hearing. I mean, they had no evidentiary hearing.
Charles A. Legge: No, this is what the District Court granted.
William J. Brennan, Jr.: What happened in the District Court that hadn’t already happened here in the way of argument?
Charles A. Legge: In the way of argument, Your Honor?
William J. Brennan, Jr.: Yes, are they different?
Charles A. Legge: I can’t say that. I can’t. We do not represent the council before this Court. We were rec-- we were appointed in 1967 so I can’t say what was done, but I do wish to simply conclude my response to your question were a mere statement that we do not believe that the decision of this Court in a prior review of this matter constituted a ruling upon the merits of it. Now, if I may return, that the states may not--
Warren E. Burger: On the merits of the voluntariness? Are you narrowing it to that?
Charles A. Legge: I’m-- merits of any of it. This Court decided that, as a matter of policy or a matter of total review, that the granting of certiorari had been improvident and it reversed that grant of certiorari.
Byron R. White: Were the questions-- I know the record was the same when it was here before, as it is now, but were the questions pressed by the petitioner when it was here before the same--
Charles A. Legge: I cannot answer the question, Mr. Justice White, because we did not represent him in that prior.
Byron R. White: You never looked-- you haven’t looked at the--
Charles A. Legge: I have made an attempt to do so.
Byron R. White: Petition for certiorari?
Charles A. Legge: Yes, we do find that there are questions presented of voluntariness.
Byron R. White: Well, are there any questions raised in this proceeding and by habeas corpus petition that were not raised?
Charles A. Legge: Certainly.
Byron R. White: What?
Charles A. Legge: Certainly.
Byron R. White: What?
Charles A. Legge: The denial of counsel, the Jackson v. Denno case, and the application of Miranda and Escobedo retroactively back to the time of his confession. Now those are, of course, matters that were brought before the District Court that were not before this Court the first time.
Byron R. White: New legal issues were raised--
Charles A. Legge: Yes, Your Honor.
Byron R. White: This petition for habeas corpus?
Charles A. Legge: Yes, Your Honor.
Byron R. White: On the same factual record?
Charles A. Legge: On the same factual record, yes.
William J. Brennan, Jr.: But, I gather, the standard of voluntariness under our Johnson decision was the pre-Miranda, pre-Escobedo standard, wasn’t it?
Charles A. Legge: This Court has said that, in evaluating the voluntariness of a confession, that Escobedo and Miranda are retroactive.
William J. Brennan, Jr.: No, you mean relevant that there was no counsel when he sought, but wasn’t that always the case on voluntariness cases before Miranda and Escobedo?
Charles A. Legge: I’m sorry, always the case on what?
William J. Brennan, Jr.: Wasn’t-- weren’t those relevant considerations: councilman, vice, the recent title of counsel?
Charles A. Legge: They may have been.
William J. Brennan, Jr.: Even before we decided Miranda and Escobedo?
Charles A. Legge: They may have been, but certainly sharpened by Miranda and sharpened by Escobedo. Now Your Honor, if I may return to what I believe is the state’s main thrust here and that is that they want federal appellate-- state appellate review to have a dignity of fact finding as required by this Court and required by Congress in the chapter dealing with habeas corpus. I do not believe that state appellate review can ever perform the function of the fact finding that’s required by this Court and required by Congress. The first point is this. In state appellate review, you have a principle of substantial evidence. Now, the states says it’s an initial review, but it is still an initial review based with a substantial evidence rule, and I cite for that a 1970 case by the California Supreme Court that defines the scope of its appellate review of confession cases. This is People versus Randall cited in 1 Cal 3rd 948, and I wish to quote from page 954 of that opinion just very briefly. “on this appeal, we accept the version of the events which is most favorable to the people, to the extent it is supported by record, and confine our review beyond such testimony to facts which are uncontradicted by the people. I submit, Your Honors, that by any proper definition, that is a substantial evidence rule, and that substantial evidence rule had its impact in this case. Because of Your Honors’ review, the language of the State Court opinion, you will find that the facts are essentially the facts that were stated in the recorded confession. Now, appellate review statement--
Warren E. Burger: How-- were-- do you suggest they were different from the facts which Travers testified to independently?
Charles A. Legge: There were material differences that were referred to in the brief, Your Honor. However, I am here to state the point in comparing state appellate review versus a fact finding process which we-- what believe is required on habeas corpus. That, this is an example of how it works that, the state picks up in its opinion those facts which are most favorable to the people, assuming of course that there had been a conviction. Now, you combine that substantial evidence rule with a harmless error rule on appeal, and this is exactly what happened to Mr. Atchley in this case. The California Supreme Court says he didn’t have a lawyer. That was error for the judge to stop that testimony, but it was harmless error. So, you have a substantial evidence rule, you have a harmless error rule, and of course you have the fact also that the Appellate Courts have no facility for taking evidence. So--
Warren E. Burger: Let me see if I get-- I’m not sure I understand the thrust of your argument. Let me project this into an assumption that this case went back, the remedy-- if we agreed with you that the new trial would be the remedy.
Charles A. Legge: Yes.
Warren E. Burger: Would you suggest that Travers could not testify at that new trial?
Charles A. Legge: No, I wouldn’t suggest that at all, Your Honor. I am responding to the state’s contention that the State of California’s appellate review on direct appeal from a conviction forecloses us from raising these fact finding determinations in the District Court. That’s what I’m replying to and what I’m stating are the reasons why state appellate review can be no substitute for a fact finding process. I believe this Court has said the same thing. In Jackson against Denno, it said when facts are important, appellate review is an inadequate substitute for a Trial Court hearing. So, what I think we have is this, Your Honor. If there is going to be examination into the constitutionality of convictions, there has to be the fact finding process so that matters that are extraneous to the record can be brought in so that they can be a value, so their constitutional significance can be weighed, and I don’t believe that the state court-- appellate opinion could ever satisfy that function.
Warren E. Burger: What kind of extraneous facts are you-- do you have in mind?
Charles A. Legge: You mean in our case or hypothetically?
Warren E. Burger: This case.
Charles A. Legge: In this case, Your Honor, the facts that we would bring in would be the facts which were admitted from evidence by the State Court. For example, the fact of no lawyer. For example, testimony between Mr. Travers who obtained the recording with the state police officer. Facts pertaining to Mr. Atchley’s mental and physical condition, facts which were not brought forth in the record and which should’ve been brought forth in the record and on a new evidentiary hearing will be brought forth in the record. To broaden it up a little bit beyond this case, to respond to Your Honor’s question in that matter, take the classic search and seizure case where a defendant objects that certain evidence used at his trial was improperly obtained in violation of the Fourth Amendment. Of course, that kind of saying would very rarely ever be in the transcript of a State Court hearing. You could only develop that kind of saying in a vast majority of cases by having the hearing into factual determinations made by a Federal Court. Now, Your Honors, we have here in this case the coming together of really three fundamental rights which the Court has long protected. These are the problems surrounding confessions, the right of an accused to an attorney and the right of an accused to a fair hearing on whatever merits, on whatever issues he raises in connection with this trial on the merits. Now, this case-- this Court has devoted a great deal of time and attention in past decisions to its confession cases. It’s expressed itself time and again the importance of confession cases to the administration of justice, and it has also gone to the point of making its confession cases retroactive, which is significant. With respect to the right to an attorney, some references were made by the state’s attorney to whether Mr. Atchley had access to one or not. We believe that the record is patently clear and, in fact, undenied that he requested a lawyer and did not receive one. I’m reading from 189-190 of the record. Question: How many times did you ask for a lawyer, would you say? Answer: I would say I asked for a lawyer 10 times. Question: And you asked how many people? Answer: Well, everyone that I talked to, I still ask them for a lawyer. Referring to page 206 of the transcript where Mr. Atchley is under examination by the state’s attorney. Mr. Atchley says this, “as I said, I asked for counsel about 8 or 10 times when I got down here where I can tell the truth and nothing but the truth, and New Orleans wouldn’t give me one.” Now, there is no--
Thurgood Marshall: Was he indigent?
Charles A. Legge: Pardon me, Your Honor?
Thurgood Marshall: Did he ever claim indigence?
Charles A. Legge: He was represented in the trial of his case by a Court-appointed attorney.
Thurgood Marshall: Did he claim indigence at the time that he asked-- did he asked for an appointed lawyer?
Charles A. Legge: He asked for-- yes, he asked to have-- he asked the police to provide him with a lawyer.
Thurgood Marshall: And, did he give any reason for it?
Charles A. Legge: For what, Your Honor?
Thurgood Marshall: Well, he’s supposed to be a millionaire.
Charles A. Legge: Well, the record doesn’t say, Your Honor.
Thurgood Marshall: It doesn’t show one way or the other, does it?
Charles A. Legge: It doesn’t say, no. But, certainly, I think you can state this, that when he asks repeatedly, when there is testimony in the record that he didn’t get it, and when he is represented at the trial of his case by Court-appointed counsel, I think it’s undeniably clear.
Thurgood Marshall: It’s what?
Charles A. Legge: It’s undeniably clear that the man was asking for a lawyer to be appointed for him.
Thurgood Marshall: But it’s not undeniably clear that he needed it, that he didn’t have money.
Charles A. Legge: Well, the record can say--
Thurgood Marshall: I understand the Deputy Attorney General to say that this man had property.
Charles A. Legge: Well, the record, I don’t believe, Your Honor, contains any language to the effect of whether he did or did not, but I would say this. That it is this evidence that was blocked by the Trial Court. The Trial Court did not permit any testimony to be introduced on the subject of an attorney because the Trial Court says this--
Thurgood Marshall: The state said that’s harmless error.
Charles A. Legge: Yes, and the Trial Court says you can’t even hear it.
Thurgood Marshall: Well, what’s your answer to that?
Charles A. Legge: My answer to that is it is not a harmless error.
Thurgood Marshall: Why?
Charles A. Legge: Because of Escobedo and Miranda. These are very valid, very important constitutional rights which have been applied retroactively in confession situations. You have here the coming together of two rights, protection for involuntary confession and the right to a lawyer. In fact, we think that that coming to clear-- together is so clear that this Court should rule that the confession is involuntary as a matter of law but, at the very least, we should be entitled to that evidentiary hearing where the evidence blocked by the Trial Court as to the circumstances surrounding the need for a lawyer, questions that Mr. Justice Mar--
Thurgood Marshall: Well, on the question that we should do it as a matter of law, on the basis of that, I get back to Mr. Justice Brennan’s point. The Court had the opportunity to that. It passed it up.
Charles A. Legge: Well, it may have done so. It may have passed up the opportunity. We don’t think we’re foreclosed from asking this Court to do it.
Potter Stewart: I had not understood that either Miranda or Escobedo had been applied retroactively.
Charles A. Legge: They have been ret--applied retroactively, Your Honor, to the subject of confessions. We have cite these cases on page 14 of our brief. They have Darwin against Connecticut, Johnson against New Jersey, and Davis against North Carolina. The Courts hold--
Potter Stewart: Isn’t it Johnson against New Jersey, held that there-- Miranda was to be applied retroactively? I’m not-- so understood--
Charles A. Legge: Retroactively to the relevance and to the substance of whether a confession is or is not voluntary.
Byron R. White: That is always the truth.
Charles A. Legge: Well, it may have always been the rule. The case certainly states the rule. I need not argue whether it had been that rule or not before.
Potter Stewart: This-- excuse me, the circumstances surrounding this man’s, what you call, his confession, it actually wasn’t quite that. In this case, was in the era of Crooker against California.
Charles A. Legge: I’m not-- I’m sorry.
Potter Stewart: And Chiconia against New Jersey.
Charles A. Legge: I can’t respond to these specific cases, Your Honor.
Potter Stewart: Involving situations very much like Escobedo in which this Court affirmed the convictions.
Charles A. Legge: I can’t respond to the cases, Your Honor, because we-- neither the state nor I have considered them in our briefs here.
Warren E. Burger: Does your case depend upon whether you have to make out ultimately that the statements made to Travers before they were recorded constituted a confession legally?
Charles A. Legge: No, I do not believe so, Your Honor, because what Mr. Travers did not directly testify in this record to what Mr. Atchley told him, and I assume that what Your Honor is saying is this, that suppose the recorded confession were just lifted from the transcript and placed aside and you had left was Travers’ oral testimony, would that be a confession? And, it would not, Your Honor. I’m satisfied that the-- all they used Travers for was to lay the foundation, the evidentiary foundation, for the introduction of the confession.
Warren E. Burger: What about the defendant’s testimony added to the defendant’s testimony?
Charles A. Legge: Well, with the defendant’s testimony following after the confession, that is after the confession is played to the jury, you have a circumstance, Your Honor, where “What can he do?” “What can he say?” Now, the decisions of this Court, many, many of them say that regardless of other evidence, regardless of how many other confessions there may be, regardless of independent evidence of guilt, that if there is an involuntary confession, the conviction is improper. Now, I would certainly say, Your Honor, that there is nothing in the defendants testimony here in trial to constitute a confession.
Warren E. Burger: Your-- although, the ultimate relief you want is a new trial, of course.
Charles A. Legge: The ultimate-- the best ultimate relief we can get, Your Honor, is a new trial.
Warren E. Burger: Now, the criminal acts here took place when, 1958?
Charles A. Legge: 1958 or 1959.
Warren E. Burger: 1959. It was tried in 1959 originally.
Charles A. Legge: I believe so, 1958 or 1959.
Warren E. Burger: So, we’d be trying this case, if it were retried, sometime in 12 years or 13 years.
Charles A. Legge: That’s quite true, Your Honor. That’s quite true, but I don’t think that the mere passage of time should have the effect of eliminating constitutional violations. We have-- this Court has a certain control over that also in connection with the decisions which it decides to make retroactive and those which it does not make retroactive. And, it is declared that it is Johnson v.-- or it’s Jackson v. Denno decisions are going to be retroactive in their application. So, we think once the Court has said that, that just passage of years, the number of years that have passed is not enough to eliminate the existence of a right. Your Honor, I would reply to one further argument made by the state, and that is in connection with the Jackson versus Denno principle. The state makes the argument that the trial judge’s near admission of this confession into evidence constituted enough of a ruling upon the subject of voluntariness to satisfy the requirements of Jackson v. Denno. We would first point out, Your Honors, that the introduction of the confession into evidence was not enough in the Sims case, Sims against Georgia, was not enough in Boles against Stevenson, and was not enough in Parker versus Sigler to constitute rulings by the trial judge. It’s sort of a fortiori to the Boles versus Stevenson decision because, at that decision, the procedure followed in that is a so-called orthodox procedure where the jury has no function in finding voluntariness at all. I would also cite to the Court, in that regard, that Sims required unmistakable clarity of a ruling by the trial judge. Now here, however, the argument-- the decision in ruling made by the trial judge was all tied in with the evidence-- with 20 pages of evidentiary material and, we submit, could only be confusing at the utmost when admitted into evidence before the jury. Now, Your Honors, there’s another element to the case which we think is significant and is important, and that is the inducement underlying this confession. There is the fact that the reason why Mr. Travers was talking to Mr. Atchley was that he needed facts for purposes of insurance coverage set on page 100, and this is a portion of the transcribed conversation between Travers and Atchley. Mr. Travers says, “Boy oh boy, you got your cigarettes. I got to write this up to the company. We got to think of the children. I want this information.” And then, he proceeds with his interrogation of Mr. Atchley. Again, on page 102 of the record, Tarvers says “I say, 100% as far as the policy. I am almost positive.” So, this Court has said many times that a confession cannot be the product of any inducement at all, and I think here, Your Honor, that the inducement is very specific, “insurance money.” Now, what consequences should flow from all of this?
Warren E. Burger: Do you say that page 102 material is from the recording?
Charles A. Legge: Yes, page 102 and page 100 of the-- what I just quoted are from the recoding of the conversation, that is the so-called confession that is in dispute here. The consequences, Your Honor, that we think should flow from all of these are this. We, first of all, respectfully submit that because of the denial of counsel in this case, that this confession should be determined to be involuntary as a matter of law and that Mr. Atchley should be accorded a new trial. We believe that the Court has come close to this, if not actually doing it, in its decisions in the Greenwald and Darwin case, and we believe that it has in fact done it in the Massiah decision. The Spano decision, of course, is quite relevant to it too. We feel that when these two interests of protecting against involuntary confessions with the right to counsel come together that that, in it of itself, should be enough for a confession to be involuntary as a matter of law. In addition, of course, to the absence of an attorney, as we point out in our brief, there are numerous other factors involved in this confession. He was not being advised of his rights, the inducement of the insurance money, his personal intelligence, or I should say lack of intelligence and capacity to resist, and the other factors mentioned. Now, at the very least, Your Honors, because of the procedural inequities in that the State Court hearing on a confession, we believe that the District Court should be affirmed and that Atchley should be given the evidentiary hearing which the District Court said he should have. So we believe, Your Honors, that confession is either involuntary as a matter of law and should result in a new trial or, at the very least, that Mr. Atchley should be given the evidentiary hearing in the State Courts that was awarded to him by the District Court.
William O. Douglas: Is the state judge who originally tried this case in New York City?
Charles A. Legge: I understand that he is deceased, Your Honor.
William O. Douglas: This-- even on your second alternative, it’d have to have a reappraiser or you so think the Court or the judge did not try the case.
Charles A. Legge: It would, but I think, Your Honor, that that is what the habeas corpus statute requires anyway, and I think that’s what this Court’s decision in Faye against Noya and Townsend against Sain are requiring.
William O. Douglas: Where’s it shown that it’s necessary to dispose of question? Have you looked into this case enough that if you prevail on your first theory and you got a new trial, could this case be retried?
Charles A. Legge: Could this case be retried? Well--
William O. Douglas: Witnesses are available on both sides.
Charles A. Legge: Are you-- well--
William O. Douglas: Or perhaps that’s an unfair question to ask you, if you’re concerned with it.
Charles A. Legge: Well, I can say this, and the state’s attorney will have an opportunity to reply to what I say in the event if what I say about their advice to me is inaccurate. Of course, as the case proceeds, Your Honors, we all discuss, counsels discuss. How can we move the case? Is there some together alternative besides proceeding along with the litigation? One of the suggested alternatives, well, what’s going to happen with the case? If we have the evidentiary hearing, are the witnesses available? If we have the retrial, are there witnesses available? I have been advised by one of the state’s attorneys that Mr. Travers is still available. Mr. Travers would, of course, be probably the key witness other than the defendant in this case. I believe he is available. As to the availability of the other witnesses, I simply can’t answer for it. Thank you, Your Honor.
Warren E. Burger: Thank you, Mr. Legge. You have about three minutes left, Mr. Granucci.
Robert R. Granucci: Thank you, Your Honor. I’ll use them briefly to reply to counsel’s argument. He lays heavy stress on alleged inducements. This was, I think, dispositively answered by the California Supreme Court in its opinion on the original appeal. Moreover, the recorded conversation demonstrates--
Warren E. Burger: Where are you reading from?
Robert R. Granucci: I’m reading from--
Warren E. Burger: What page?
Robert R. Granucci: Page 32 of our petition for a writ of certiorari. The California Supreme Court opinion, I believe, is also reproduced in the appendix, but I can’t find it now.
Warren E. Burger: This is good enough.
Robert R. Granucci: Moreover, the recorded conversation demonstrates that Travers referred to the insurance policy to explain why he was asking questions and not as an inducement for any particular answers. The Trial Court listened to the tape in chambers before ruling on its admissibility. Now, as far as the counsel point, of course, if Johnson versus New Jersey means anything, it means that Escobedo and Miranda are not retroactive. Moreover, the counsel point was considered as a circumstance by the California Supreme Court in assessing the voluntariness of a confession. Now, counsel argues that state appellate review is not comparable to federal habeas corpus because of the substantial evidence rule. I would answer this. That, in a state appellate practice, the substantial evidence rule does not come into play at all until there has been an original determination of procedural fairness. In other words, where the procedural fairness of the hearing itself is challenged, counsel-confrontation, that sort of thing, where those things are challenged, substantial evidence can’t be determined until the procedural questions are answered and this is roughly analogous to what Congress has provided in 2254 (d). In other words, state hearings are to be given finality where the State Courts have afforded substantial procedural fairness. It was a step in the direction of what Professor Bator proposed in his law review article which we cite and refer to in our briefs. We think it ought to be adopted by this Court. I would respectfully submit that, in the ultimate, the ultimate determination is this. We live in a federal system. This case gives the Court an opportunity to show that federalism is a two-way street. State Courts are required to apply federal law. State judges are sworn to uphold the constitution. The obligation of the states to apply the constitution ought to call forth from this Court a corresponding grant of confidence in the State Courts to apply it correctly. I think, from an examination of the California Supreme Court opinion here, it’s obvious that the constitution was correctly applied in this case, and we respectfully submit the matter.
Warren E. Burger: Thank you. Thank you, Gentlemen. The case is submitted.