Earl Warren: Number 705, George William Bruton, petitioner versus United States. Mr. Reardon?
Daniel P. Reardon, Jr.: Mr. Chief Justice and may it please the Court. The question presented herein is whether or not the petitioner, George William Bruton was substantially prejudiced when his jury heard an implicating admission illegally and unconstitutionally obtained from his co-defendant one William James Evans. The two men were jointly tried with the robbery of a postal contract station. The robbery occurred on April 16, 1965 in South St. Louis on South Kingshighway. William too and the evidence disclose two Negroes entered the Robinson Jewelry Store. Mr. Robinson was repairing watches in the rear of the store while an employee by the name of Ms. Miller was attending to other business behind the desk. She approached the two men as they entered and began to wait on the man later identified as Evans, William James Evans and showed him some engagement rings, subsequently showed him some watches. While displaying the watches for Mr. Evans, Evans displayed a revolver and she looked back to the front of the store, wherein the second Negro later identified as Bruton was also displaying a revolver. She was ordered to the rear of the jewelry store where Mr. Robinson -- where she and Mr. Robinson were bound and order lie face down. The evidence disclosed that she, Ms. Miller observed Mr. Bruton for a period of some two minutes. The evidence further disclose that she had seen the co-defendant Mr. Evans in the store that it was a store that normally catered to White individuals and to see a Negro was something extraordinary, that she had seen Mr. Evans on some eight or ten prior occasions. She had never seen the individual identified as Bruton prior to the two minutes during the course of the robbery. The robbery produced among other things $30.00 in postal contract funds. The individuals left the Robinson Jewelry Store on Good Friday, April 16, 1965 and the evidence thereafter concerning the investigation switches until the following year. Again on Good Friday, this time April the eight of 1966 wherein Mr. Evans was placed in a line up by the St. Louis Police Department and identified by both Ms. Miller and Mr. Robinson as having been one of the perpetrators of the robbery. He was then questioned on several occasions on that particular day, April 8, 1965 by Detective Farmer. He denied involvement in the postal contract station robbery. As a matter of fact, Mr. Evans at that time was a prisoner of the State of Missouri being held in the city jail, awaiting a trial for armed robbery for the robbery of the Western Union station. He is a matter of fact at that time and to the knowledge of Detective Farmer had an employed attorney by the name of Alfred Harris. Detective Farmer learned this on April 4, 1966, four days before the line up that occurred on April the 8th. After several series of questionings, Mr. Evans, the co-defendant admitted and gave to Detective Farmer what he termed confidential information wherein he admitted having perpetrated the robbery of the Robinson Jewelry Store and also implicated Mr. Bruton. There was no warning given him with regard to his constitutional rights. Mr. Harris, his employed attorney as of prior to April the 8th was not informed with regard to the interview that took place. But in any event, the scene now switches to April the 11th. Mr. Evans, the co-defendant was transported back to the city jail. He remained a prisoner of the State of Missouri but on April the 11th, Detective Farmer had summoned and brought with him a postal inspector by the name of James Thorn. Mr. Thorn then administered a constitutional warning to Mr. Evans in the presence of Detective Farmer and obtained from Mr. Evans an admission that he had in fact perpetrated the robbery of the Robinson Jewelry Store. This admission was adduced in the trial. This admission did not implicate Bruton. Now then Detective Farmer with his confidential information which did involve Mr. Bruton finally arrested this petitioner, petitioner Bruton on April the 25th and summoned Ms. Miller to the police headquarters to view Mr. Bruton the petitioner in a line up. Now Bruton had previously been placed in a lineup and viewed by Ms. Miller in November or December of 1965 and she at that time failed to identify Mr. Bruton. Mr. Robinson was not brought to the lineup of April the 25th because he did not see the second man allegedly Bruton. In any event, Ms. Miller was able on the second occasion to identify Bruton and he was charged with this offense, the robbery of the postal contract station. Now then on May the 4th following the charge against Bruton, Inspector Thorn again returned to the city jail, again advised Evans as to his constitutional rights and on this occasion, the second interview by Mr. Thorn, he obtain from Evans an admission wherein Evans implicated Bruton. This admission together with the first admission was objected to prior to the trial in a motion to suppress. Some question was raised in the Eight Circuit as to why a severance was not requested. In any event, I did not in behalf of petitioner Bruton request a severance and my research since the time of this Eight Circuit argument reveals that since I have been I have been admitted to the Bar, since 1955 and until Mr. Bruton went to trial in the eastern district of Missouri and the eastern division, no severance had been granted to any defendant. But be that as it may, the Eight Circuit did in fact hold that the Evans admissions were poisonous and reversed this -- the case as to Evans alone and then relying upon this Court's opinion in the Delli Paoli case affirmed the conviction as to Mr. Bruton. Mr. Evans was in fact retried and found not guilty. The Eight Circuit noted in its opinion that the evidence with regard to Mr. Evans, the identifying evidence, it was much stronger or was stronger. It was in fact when two witnesses identified Mr. Evans rather than one when each of the two witnesses that identified Mr. Evans claims that they had seen him prior to the April 16, 1965 date in this jewelry store. But in any event, the decision as to Mr. Bruton was affirmed relying on Delli Paoli saying that the jury -- presuming that the jury could in fact follow the Court's instructions. As a matter of fact, it was argued to the jury jewelry that the only purpose in the world of Mr. Thorn, the postal inspector had in making a second visit to city jail after he had the Evans admission. The only purpose of the second visit to the city jail was to prejudice Mr. Bruton, was to corroborate the weak identification case against Mr. Bruton and this in fact he was able to do. The Eight Circuit's reliance on Delli Paoli I submit is ill founded for two principal reasons. Number one in the Delli Paoli case, the court reviewed as a matter of fact the evidence and found the evidence against that defendant was very strong. The evidence against Bruton suggest -- I suggest weak at best. The second and more important reason why Delli Paoli is improperly relied upon; there was no question as to the admissibility of the admission in the Delli Paoli case. In this case, the admission of Mr. Evans or the two admissions had been in fact declared unconstitutionally obtained, unconstitutionally obtained in violation of the Westover case which followed and was decided along with the Miranda decision at about the time or just shortly prior to the time this --
William J. Brennan, Jr.: And you're not asking to overrule Delli?
Daniel P. Reardon, Jr.: I don't believe that it is necessary to overrule Delli Paoli. I think that the proper rule of law Your Honor is announced in the Fahey versus Connecticut decision of this Court wherein the question is raised that must be passed upon us whether or not there is a reasonable possibility that this defendant Bruton was in fact prejudiced by this illegally obtained admission.
William J. Brennan, Jr.: Well, I gather the -- when you say legally obtained, it -- quality, it's perfectly fine evidence, isn't it? It resulted in a reversal only because one of the rules which is in force through the exclusionary rule had been violated, isn't it?
Daniel P. Reardon, Jr.: That's correct.
William J. Brennan, Jr.: There's no question as to your clients co-defendant was highly proof of evidence --
Daniel P. Reardon, Jr.: That's correct.
William J. Brennan, Jr.: His own admission.
Daniel P. Reardon, Jr.: His own admission but it was prejudicial of course also to my defendant despite that --
William J. Brennan, Jr.: Well, I know that's why I'm asking you. If it is, is it anymore or less so or anymore so because his co-defendant obtained the reversal on the ground of the evidence, the admission from him had been illegally obtained. I don't understand why you just don't ask us to overrule Delli Paoli?
Daniel P. Reardon, Jr.: I don't think that it is necessary in order to obtain another trial for us to -- for this defendant.
William J. Brennan, Jr.: Well, I have difficulty understanding that.
Daniel P. Reardon, Jr.: I think that the Delli Paoli rule is improper. I think that it is very difficult in a joint trial in the federal court where you represent an individual that he has made no admission and you expect that you --
William J. Brennan, Jr.: I rather stopped at you myself if --
Daniel P. Reardon, Jr.: That's correct.
Byron R. White: But this is really your objection to the confession to his setting as to the co-defendant?
Daniel P. Reardon, Jr.: That's correct and --
Byron R. White: You wouldn't have any objection to the confession unless it mentioned your client?
Daniel P. Reardon, Jr.: Well, if it --
Byron R. White: If Evans' confession hadn't mentioned your client why Evans' reversal wouldn't be a ground to reversing your client's case?
Daniel P. Reardon, Jr.: No. If all we had is the admission of Evans that he -- Evans perpetrated the robbery then I would have -- no complaint.
Byron R. White: The reason for requiring the Court to instruct the jury about the -- to use this evidence is that hearsay and admissible against your client?
Daniel P. Reardon, Jr.: That's correct.
Byron R. White: That's a basic reason for objection of Delli Paoli in this case?
Daniel P. Reardon, Jr.: That's correct and I think --
Byron R. White: And you're saying that when you have an objectionable hearsay that gets before the jury, it's just -- it isn't sufficient for the Court to instruct the jury to disregard it?
Daniel P. Reardon, Jr.: That is true and in this factual situation indeed --
Byron R. White: I don't know why you wouldn't argue that Delli Paoli should be overruled and indeed that any case I would suppose you would say that the rule ought to apply to all instances where objectionable hearsay is to the jury?
Daniel P. Reardon, Jr.: I don't think that it is necessary in this factual situation because I think the case here is weak.
Byron R. White: You mean you don't -- you think this rule wouldn't have any implications in all the situations?
Daniel P. Reardon, Jr.: I'm quite sure that they are highly important in other situation.
Byron R. White: Like Delli Paoli?
Daniel P. Reardon, Jr.: Well, I think the case can be distinguished from Delli Paoli--
William J. Brennan, Jr.: Well, it can --
Byron R. White: Well it can in the name of the case.
William J. Brennan, Jr.: It can in the sense that it was held that his own admission was improperly admitted against your co-defendant but I really don't see how that makes a distinction which would make attainable to suggest that if we go with you, that doesn't overrule Delli Paoli? It seems to me it must.
Daniel P. Reardon, Jr.: I think that a defendant in the role that Bruton had here is not sufficiently protected by an instruction or the instructions that this Court had given which are -- were not objected to and are proper. I think that it is impossible to remove the prejudice in the trial of the case and I think it is recognized best, not necessarily by lawyers and judges but by Bruton himself when I explained to him his rights of appeal in forma pauperis and he said, I would like a new trial rather than serve for 25 years obviously. But he said, if the next trial is with evidence, he said forget it because he felt of course the admission was damning.
Earl Warren: Do you agree then with the position of the government?
Daniel P. Reardon, Jr.: No. In the brief, they say that it's the Solicitor General points out the rule in Delli Paoli is good, but this case places too much strain upon it. I came here of course representing George William Bruton and seeking for him a new trial but I don't think as a matter of fact that the rule in Delli Paoli is correct. I don't think -- I think it places far too great of burden upon 12 individuals tried and true, if they were to give you a fair and impartial trial if they are exposed an admission of a co-defendant.
Earl Warren: In sum it's your position that Delli Paoli is a bad law and it should be overruled, but it is necessary to rule that part to have your client's conviction reversed?
Daniel P. Reardon, Jr.: That's correct.
Earl Warren: And therefore you attempt to [Inaudible] isn't it?
Daniel P. Reardon, Jr.: That's correct.
Earl Warren: I see.
Potter Stewart: At least two other Court of Appeals have done that, haven't they?
Daniel P. Reardon, Jr.: Yes.
Potter Stewart: I guess I have been reading Judge Friendly's opinion in the Bozza case and Judge Smith's opinion in the same court in Floyd against Wilkins and Judge Skelly Wright's opinion in Greenwell --
Daniel P. Reardon, Jr.: That's correct.
Potter Stewart: All of them faced with Delli Paoli and all three of those judgments reversed convictions under situation similar to yours pointing out that Delli Paoli stands for no inflexible rule at all.
Daniel P. Reardon, Jr.: That's correct.
Potter Stewart: Either that this is always permissible or never permissible, but Delli Paoli just was decided on the facts of that case. That's at least what these other Court of Appeals have --
Daniel P. Reardon, Jr.: Yes. That's correct. The Bozza case or of course each of those case are cited in my brief but certainly had the Eight Circuit been of the same persuasion as the author of the Bozza opinion, I doubt that we would not be here.
Potter Stewart: On that basis even if the Court were not willing to overrule Delli Paoli to the extent that it held that this was sometimes permissible, you would still prevail if the Second Circuit in the District Court's approach were adopted -- District of Columbia's approach --
Daniel P. Reardon, Jr.: That is correct. The matter was not argued as a matter of fact before the Eight Circuit. It was the Eight Circuit first opportunity to review the Miranda holdings and as a matter of fact, I had briefed that portion of the case and of course had the decision reversed for the wrong client is the best that I could gather as far as Bruton is concerned.
Abe Fortas: Well, actually this is arguably anyway a stronger case for reversal than Greenwell and Bozza and so on because here, you have the fact which is not present in the other cases that the confession was held inadmissible on the appeal and was in Greenwell?
Daniel P. Reardon, Jr.: It was in Greenwell and -- but not in Bozza. I think that this is a stronger situation of then certainly then in the Bozza decision because there, it was an admission that gave devastating corroboration to the testimony of an accomplice. Here, I think this is a stronger situation.
Earl Warren: Very well. Mr. Solicitor General.
Erwin N. Griswold: May it please the Court. My situation here is a somewhat unusual one. I join with Mr. Reardon in seeking a reversal of the judgment below. My objective, however, is to do what I can to make sure that that be on what I regard is the proper ground and somewhat narrow one and not on the broader ground in which has been suggested by the bench though it was not included in the petitioner's brief that Delli Paoli be overruled. We believe that the Delli Paoli rule is a sound one and we understand the Delli Paoli rule to be simply that. There is no requirement that there always be a separate trial when several persons are indicted and sought to be tried at the same time. Each case --
Potter Stewart: And one of them -- and at least one of them has confessed?
Erwin N. Griswold: And at least one of them has confessed. I would put that in, in order to narrow it to the particular circumstance. I would point out that as recently as two years ago, the Court amended the rules of this Court, Rule 8 which allows joint trials. These are the rules of criminal procedure and it was not amended. Rule 14 which provides for motions for separate trials was amended by adding a paragraph or adding a sentence which reads in ruling on a motion by a defendant for severance, the Court may order the attorney for the government to deliver to the Court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial. As of that time, the Court did not see fit to change the rule so as to provide that there must be separate trials if there is a confession by one defendant. We recognize of course that the application of the rule of Delli Paoli is a matter of some difficulty and that it is addressed to the sound judgment and discretion of the district judge. We think that in this case under the circumstances as they have finally worked out, that it is not appropriate to seek to support the conviction of Bruton obtained in this case. There are a number of reasons for that. One is the fact that the other evidence against Bruton was rather slim. He was not identified by one of the witnesses who did identify Evans. He was identified by another witness, but that witness had failed to identify him in a lineup some months before he was arrested and there are some aspects of the testimony of that witness which lead one to think that the suggestion which came from seeing him in custody may have had some unconscious I am sure influence on her testimony. We have then the fact that the confession of Evans was held to be inadmissible as to him, a factor which was not present in Delli Paoli and which I --
Potter Stewart: You would agree Mr. Solicitor General I suppose that that in logic doesn't really --
Erwin N. Griswold: I agree that logically, it makes no difference. I think that we are in an area where maybe logic chopping may not be exactly what should be done. And when I add to all of this, the fact that thereafter Evans was retried and this was not known when the government's brief in opposition was filed in this case, Evans was thereafter retried and on the evidence which was available against him without the confession he was acquitted and at this point which is the point when I first came to consider the case, I found that more than I felt I could conscientiously undertake to do to say that pure logic must prevail. We must go through this confession. It could not of that any bearing with respect to Bruton and though his co-defendant is now completely discharged from this offense, nevertheless the conviction against Bruton must stand. What I would have felt if the evidence against Bruton had been really strong, if there had been numerous eyewitnesses and fingerprints and an article of his clothing had been found at the scene or something like that, I do not know. It is an element in my thought here that the other evidence against Bruton was in this case rather slim. I know that the Eight Circuit Court of Appeals has reviewed that evidence and found it sufficient, but they did point out in a Footnote in their opinion that in making that review, they took it most strongly in favor of the government and it is not clear to me that that is an appropriate way to deal with that evidence in the particular facts of this case.
Earl Warren: Well, generally if logic doesn't lead us to that conclusion, is it just expediency in the prosecution the cases that does lead us to that conclusion, your conclusion?
Erwin N. Griswold: Expedience in the prosecution of cases?
Earl Warren: -- wise to make it easier to convict people by trying them jointly where one confesses and in his confession he names the other?
Erwin N. Griswold: Mr. Chief Justice, I don't think that it is just a matter of expediency in getting confessions, in getting convictions which leads to the desirability of trying a number of people at once. In my preparation for this case, I have gotten out the brief which the government filed in the Delli Paoli case. Perhaps we should have reprinted it for this purpose, but as there was no suggestion in the petitioner's brief that Delli Paoli should be overruled, I did not think it appropriate for us to face a full dress reconsideration of Delli Paoli. But I would call the attention of the Court to the brief which was filed in that case and which of course is available in the Court's records, number 33 in the 1956 term and I note among other things that the government did not dare call for any fixed or absolute rule that there can always be joint trials in cases like this. All it sought was that there should not be a fixed and absolute rule that there cannot be joint trials --
Potter Stewart: That's number 3 in the 1956 term?
Erwin N. Griswold: Number 33 in 1956 term.
Potter Stewart: And is that Delli Paoli itself, no?
Erwin N. Griswold: That is Delli Paoli.
Potter Stewart: That is Delli Paoli.
William J. Brennan, Jr.: Mr. Solicitor General, I take it whether there shall or shall not be a joint trial is perhaps entirely in the discretion of the United States attorney, is it? If the United States attorney asks that there would be severance, I gather ordinarily a trial judge would allow it, wouldn't he?
Erwin N. Griswold: As far as I understand it, the counsel for any defendant can also ask --
William J. Brennan, Jr.: Yes. I'm just -- and even -- surely, part of this problem can be handled by methods which don't require that there would be a severance. Isn't it possible where the government is going to use a confession against one which happens to implicate the other by Jank statute like procedures to keep from the jury the portions which implicate the co-defendant?
Erwin N. Griswold: Mr. Justice, in some cases, I think that is possible. I may say that that is another element in this particular case as I mentioned in our brief. It would have been easy here with proper forethought and foresight to have instructed this post office inspector now because you will recall this was an oral confession. Now, when you recite this confession, talk only about Evans and don't say anything about Bruton. As a matter of fact, Bruton is only mentioned only once in the second of the two statements and I wonder where the Eight Circuit Court of Appeals why counsel thought it's necessary or desirable to bring in the second interview.
William J. Brennan, Jr.: Well, what I'm trying to suggest is I don't see why necessarily overruling Delli Paoli means the end of joint trials. You still have joint trials and handle the prejudice that this kind of problem presents to the mentioned co-defendant easily enough. You just suggested one yourself, it could have been done here.
Erwin N. Griswold: It could have been done here. There are other cases of which I think Delli Paoli was one where the reference to the other persons is so interwoven into the --
William J. Brennan, Jr.: Well then may I suggest, I don't know why that doesn't present to the United States Attorney then a choice, is he going to try them jointly if he needs that confession so badly in its complete form or in that kind of situation if he must then ask for severance? I don't see any difference about it.
Erwin N. Griswold: I think its -- Mr. Justice, I think it's more complicated.
William J. Brennan, Jr.: I see. Well, that's what I'm trying to get at.
Erwin N. Griswold: In the brief in the Delli Paoli case, the government said that such trials remain a proper and necessary measure of counteracting the equally serious problems intrinsic, in separate and successive trials of joint defendants. Now, in the first place, you can have cases with a large number of defendants. We have recently had a trial which is well known and I will only refer to it as 17 defendants in Philadelphia and Mississippi. It seems a little odd to think that that should have been 17 separate trials. Even if you're dealing only with four or five persons, the risk that if you have to have separate trials that reports of it will get into the newspapers and that the jurors in the second and third and fourth trial will have heard various things which have happened at the first trial of such that risk is very serious. A conscientious prosecutor might well feel that in fairness to all the defendants, they must be tried once and not segregate them. You can say oh well changes of venue and delays of nine months between the trial would take care of it, but five times nine months spreads it over three years which doesn't sound like a very sensible way. Then there's a -- before I come to the most important one, there is simply a matter of extents to the defendants, the persons who are tried fourth and fifth or sixteenth or seventeenth will have to monitor and observe each of the --
William J. Brennan, Jr.: But isn't this sometimes to Mr. Solicitor General -- it seems to me at least and many of the records that come here. So often United States attorneys, I think this maybe an instance over try a case. What do they need the admission on this case for it all?
Erwin N. Griswold: I agree Mr. Justice. I wish they hadn't brought it in. I think --
William J. Brennan, Jr.: Well, if the rule is that Delli Paoli is overruled, I suggest that maybe we will have to give some more thought this sort.
Erwin N. Griswold: I know that it is easy in my position to second guess the man who were on the firing line. I can understand the desire to make available all the evidence you have.
Abe Fortas: Mr. Solicitor General, I would like to see what I quite understand your position. Let's take a case where a confession of one co-defendant is admitted in a -- at a trial and that confession names the other co-defendant and involves him, identifies him as a participant in the crime. Now, would you say that that standing alone is or is not objectionable?
Erwin N. Griswold: That standing alone is not sufficient to warrant a new trial.
Abe Fortas: Alright.
Erwin N. Griswold: I have change your question a little bit. You said objectionable and I confess or I concede that it raises intellectual problems.
Abe Fortas: Objectionable in a technical sense.
Erwin N. Griswold: I do not think that that alone without further facts which show that on balance, this had an appreciable effect in the conclusion reached in the trial that it should be sufficient to establish a new trial.
Abe Fortas: Well, what is this? Is this a kind of a no prejudicial error rule that you're talking about or totality of the circumstances or what do we look at?
Erwin N. Griswold: I think Mr. Justice that it may be analogous to the no prejudicial error rule which I think if you look at it, it's logically hard to defend in a particular case. You can prove that this wasn't the thing that finally put it across in the jury's mind.
Abe Fortas: A trial judge may not know until a whole -- until all of the evidence is in whether he did the right thing or didn't do the right thing in permitting this confession to -- in permitting the trial to go forward with the -- without severance in view of the use of the confession. He won't know that until the very --
Erwin N. Griswold: And I would suggest that the --
Abe Fortas: -- is that right?
Erwin N. Griswold: -- the prosecutor may not know that either. Witnesses don't always turn out to say what he hopes or thinks they will and until everything is in, he is in no position finally to evaluate whether this should have been done. Now, I have held out to the last what seems to me to be the most serious problem in this matter. If joint defendants in this situation must be tried separately, there will be a great deal of objecting among the parties among to who is to be tried first. The defendant who has confessed might well think, well, I ought to be tried first and very likely, I will be convicted because of the confession. There's no objection to the use of the confession in my case and the ordinary case which doesn't have the Miranda and other aspects that this particular one had. Now then if I am convicted which is very likely to happen and then I can talk with the prosecutor about testifying in the following trials and they may not make any bargain with me, but it might just turn out that I would come out better. I might even be able to get the judge to differ sentencing until all of the cases had been tried. Let me point out that in this very case when -- if as and when this case goes back to be retried as to Bruton, Evans is as far as I can see available as a witness in the trial of Bruton.
William J. Brennan, Jr.: Probably compellable, isn't it?
Erwin N. Griswold: And compellable to testify, he has been acquitted. He has no privilege against self incrimination with respect to this case. From all that we know, he was an eyewitness of the transaction and he and Ms. Miller together should be an ample evidence to persuade the jury in the next trial.
Abe Fortas: Forgive me for asking you to take your time to ask you one more question. Is there any information as to how frequent this is that is to say, let's take -- you mentioned the 17 defendants in Philadelphia and Mississippi but that did not involved any confession problem, did it?
Erwin N. Griswold: I believe it did Mr. Justice.
Abe Fortas: Oh it did? Do we have any information or is any information available as to how frequently trials of more than one defendants involve the use of confessions?
Erwin N. Griswold: I have no such information Mr. Justice. My experience over the past four months would lead me to think that there are many great joint trials. I do not know how many of them involved the use of confessions which are admissible against one and not against another, confessions or statements made during the course of the conspiracy are admissible against all defendants.
Abe Fortas: Of course, that's kind of the key question I think because at least in terms of an assessment of this problem because if we're talking about most trial when we confront the confession problem, we're talking about most trials in which there are co-defendants that's one thing if we're talking about a small percentage of them that's another thing.
Erwin N. Griswold: Well, may I say Mr. Justice. Logically I don't see that it makes any difference.
Abe Fortas: I said that you have been talking logically.
Erwin N. Griswold: No, I appreciate that. I think that this is a very practical question in which conceptions of fairness and expediency and by expediency I mean not only to the government but also to the defendants and to the courts are -
Abe Fortas: Because if you want to take this up logically, I think we're going to have to unwind the great deal of your argument?
Erwin N. Griswold: I agree. On the other hand, if we take this up logically then the conviction or the judgment sustaining Bruton's conviction apparently should be affirmed, a result that I have not felt that I could urge upon this Court. My impression would be but I have no facts that this not happen very often, but that on the other hand, it is not a rare thing which happens only extremely occasionally. I think it happens often enough to be a significant matter and when it does happen however, all of the other facts differ. I think if we get a case as Delli Paoli was where the other evidence against the defendant named was overwhelming where the evidence was presented quite separately with very specific instructions by the court at the time it was presented and also in the chart that there is much to be said for the result which was actually reached in the Delli Paoli case. And let me point out too that if the Court starts down the road of saying that instructions are not enough, juries simply cannot keep these things separated and act in accordance with the instructions that a good many other problems will arise. That would seem to me and I think that any evidence that got into the record that was inadmissible, any hearsay which the witness blurted out and the court stopped the witness and then instructed the jury who will disregard the answer to that question.
Abe Fortas: Well, that is your position here. You're saying that in this particular case instruction disregard the confession is not enough. Precisely, your submission to the fact --
Erwin N. Griswold: No Mr. Justice, I am saying that in all of the circumstances of this case --
Abe Fortas: Yes but in all of the circumstances, this is the key operative point. You are saying that where all of the circumstances were in it, we may discount the potential effectiveness of this kind of instruction of the jury.
Erwin N. Griswold: I'm trying to say Mr. Justice that even though such an instruction is given, it may not be enough in the actual facts to satisfy the court that the instruction was actually effective. I am trying to suggest that it would be unfortunate to have a rule that never could hand instruction be effective to cancel out negative make irrelevant the admission of inappropriate or inadmissible evidence. We have --
Earl Warren: Is there any stopping point? Is there any dividing line that you could express in words between those that are and those that are not admissible?
Erwin N. Griswold: No Mr. Justice except in terms of the usual function which courts performed in criminal and in civil cases of overlooking the whole transaction and trying to see that justice has been done. In this case as I have said, the other evidence is thin. The other defendant has been tried again and he has been acquitted and at that point, I find myself on two slender --
William J. Brennan, Jr.: Well, is that to suggest perhaps that the mere comment itself against this background of very slim evidence is more likely you convict then if nothing whatever it has been said about?
Erwin N. Griswold: Well, I think Mr. Justice that you could have had a case that even if I could see the writing of an opinion in this case that even if the evidence against Evans had been admissible that there should have been a reversal against Bruton on the ground that the other evidence against him was slim and under the Delli Paoli rule the reference to Bruton on the whole was one which should not have been allowed.
William J. Brennan, Jr.: And the judge's emphasis on telling the jury to forget it only drove --
Erwin N. Griswold: Well, that's a kind of dilemma. That's the dilemma which you get into with respect to the failure of the defendant to testify or the privilege against self incrimination and if we carry that out to its logical extreme, it's impossible to try anyone which I had not suppose was -- what we were coming to. At any rate in this case, when Evans is not only reversed but is retried and acquitted. When the other evidence with respect to Bruton, it seems to me to be very thin recognizing fully that the matter is for the decision by this Court that confession of error is in no sense binding on the Court, but also having my own responsibility to perform here. I have concluded that our duty is to recommend to the Court that this judgment should be reversed and a new trial granted, but I would urge that it not be on the ground that the appellee should be overruled.
Earl Warren: Mr. Reardon.
Daniel P. Reardon, Jr.: Mr. Chief Justice, I have nothing further.
Earl Warren: I beg your pardon.
Daniel P. Reardon, Jr.: I have nothing further.
Earl Warren: Mr. Reardon, I understand that you were appointed by the Court of Appeals of the Eight Circuit and I want to say to you that the Court considers that that is a real public service that is performed by lawyers in those circumstances and we feel comforted when the lawyers will undertake that to move forward for the public good. And Mr. Solicitor General the Court appreciates the fair and humane approach that you have made too for this case. Thank you both.