Earl Warren: Number 645, John Davis, petitioner versus Mississippi. Mr. Zarr.
Melvyn Zarr: Mr. Chief Justice, may it please the Court. This case is here in writ of certiorari to the Supreme Court of Mississippi to review petitioner's criminal conviction. Petitioner John Davis, a 14-year old Negro boy was convicted of raping an 86-year old white woman for whom he had done yard work and he as sentence to life imprisonment. This Court granted the petitioner's petition for writ of certiorari and forms a purpose to consider whether the police conduct evidence by this case contriving in the Fourth and Fourteenth Amendments of the Constitution of the United States, and if so, whether the product of that illegal police conduct, petitioner's fingerprints was properly admitted into evidence at petitioner's trial. Briefly, the facts of this, starting December 3, 1965, the police of Meridian, Mississippi took into custody for investigation some 65 to 70 Negro boys. Now, what they were investigating was a complaint of rape by an 86-year old white woman, who had reported to the police that she had been attacked in her home by a Negro youth on the evening of December 2nd, apparently around seven o'clock. The nature of her description is uncertain but its quality can be inferred from the number of suspects that appeared to cover. Two partial fingerprints had been found on the outside of a window and a partial palm print that's been found in the inside window sill. On this basis, they drag had begun. The petitioner, a 14-year old Negro boy, who had done yard work for the woman was one of the 65 to 70 Negro boys taken into custody. The petitioner was taken to the police headquarters on December 3rd, questioned, fingerprinted and released. The others apparently went to a similar procedure. Now, it's quite clear from the record that there was no warrant for petitioner's detention. Why? The reason is best capsulized in respondent's brief at page 2 in these terms, I'd like to quote it, “that none of the 65 or 70 who are interrogated or picked up were suspects but were only interrogated and printed by the police in an effort to get leads to establish probable cause to arrest the guilty party.” That was on page 2 of the respondent's brief. Now, at that December 3rd detention, which was the petitioner's first detention, he was fingerprinted and those sets I shall refer to as the first set. They were never analyzed nor introduced in evidence and nothing further has been heard of them. Now, between December 3rd and 7th, he was taken into custody in the words of the police juvenile Officer Keller about four or five times. Officer Keller testified that he was picked up in an attempt to get leads, those are his words, and on at least one occasion the petitioner was taken to the hospital and exhibited to the prosecutor for a “gage to go by on size and color.” However, there was apparently no positive identification even though the record is clear that the petitioner had done some yard work for her recently as two weeks before. The last detention from which the fingerprints that were introduced in the evidence is second set was green was on -- begin on December 12th, again without a warrant. He was driven to Jackson having been picked up by Officer Keller and Chief Bedingfield, kept overnight to the Jackson jail, given a lie detector test the following day and return to the Meridian jail. On December 14th, this second set was taken and sent off to the FBI laboratory in Washington together with the prints of approximately 23 of Negro boys who were still under suspicion at that time. On December 14th, all the record does not show that he was charged with juvenile delinquency for breaking into the woman's home. Three days later, his case was certified by the juvenile judge after hearing to the Circuit Court of Lauderdale County, in which Court he was indicted and tried.
Potter Stewart: What was the -- it was the breaking into the woman's home the same -- the same -- part of the same offense --
Melvyn Zarr: Yes sir.
Potter Stewart: Which is now been tried and convicted?
Melvyn Zarr: Yes sir.
Potter Stewart: I see.
Melvyn Zarr: At the trial, the testimony presented by the State, well, before I get to that, let me first say that preliminarily, petitioner's counsel moved to suppress the introduction of evidence of a second set of fingerprints as violative of his rights into the Fourth and Fourteenth Amendments. After a hearing this motion was denied, the prosecution's case consisted of the woman's testimony, we just capsulized at page 4 and 5 of our brief to the effect that that he had done yard work for her. A description of the attack which is contained and set out in the brief, there was no medical evidence, the second set of fingerprints came in over objection and he was convicted and sentenced to life imprisonment.
William J. Brennan, Jr.: Where was the second set of fingerprints you drawn first?
Melvyn Zarr: I have no idea Your Honor. The testimony in the record when that was asked by Ms. Yang of the detective Scarborough, he merely said that they were very busy and they were just -- they just never got around to setting the first set out.
Potter Stewart: It doesn't make any difference to your argument which set was used?
Melvyn Zarr: No, sir. But except for this. The respondent argues that even assuming for purpose of the argument which he is willing to do that the second detention, that is -- the last detention that is December 12 which he yields at the second set, even assuming that that detention was illegal. This Court should still hold the conviction because on a retrial, this first set which possibly sitting in the file supplies --
Speaker: I got no file --
Melvyn Zarr: Oh, yes sir. Yes, sir. But my point about both --
Speaker: There might not have been any arrest at the first occasion.
Melvyn Zarr: Yes, we contend that there was Your Honor.
Speaker: I know you do but the facts are different.
Melvyn Zarr: Well, Your Honor, the only testimony as to this first detention which we call an arrest that of December 3rd was by officer Griffin on page 6 and officer Thompson on page 6 and 7. He was asked question, “Didn't you have occasion on December 3rd last year to arrest the defendant John Davis?” Answer, “I did.” “Did you tell the Court whether or not you had a warrant for his arrest?” Answer, “I did not.” Question, “you did not have a warrant for his arrest?” Almost the identical testimony was conducted by Mr. Yang and Mr. Thompson, Officer Thompson and that is the only, only evidence in the record about that December 3rd arrest.
Speaker: They didn't take him to the station now to investigate?
Melvyn Zarr: Yes, they did Your Honor.
Speaker: Oh, they did?
Melvyn Zarr: Yes, they did on the -- under December 3rd.
Potter Stewart: Then on December 12 which you did not tell us was the time when the fingerprints were, they were actually used.
Melvyn Zarr: Yes, sir.
Potter Stewart: Where is the testimony about that episode, I mean about the circumstances of the arrest that you quoted now?
Melvyn Zarr: It's scattered throughout the record Your Honor. On page 8, the police officer -- Chief Bedingfield testified here that middle of the page that he went with the petitioner to Jackson on the 12th. On page 10, the -- Officer Keller testifies near the bottom of the page. Question now, “When you picked him up on the 12th, did you have a warrant at that time for his arrest?” The answer, “no.” Few answers previous to that is a testimony of the effect that they in fact did pick him up on the 12th. The Mississippi Supreme Court held that on the 12th, he was arrested. On page 58 of the appendix about 10 lines down the Court says, however on December 12th, the appellant actually was arrested, brought to Jackson and subjected to a lie detector test and of course that's supported by the record. Let me back up for one moment and discuss what the Mississippi Supreme Court held, two things. One, that the detention yielding the prints was not an arrest, this probably based on the mistaken assumption that the prints had been taken as a result of the first detention, those who were introduced in evidence were the product of the first detention. And secondly, apparently alternatively, the print should not be excluded because they are authentic. Now, respondent argues and I better complete this argument that the -- even though -- even assuming argument that the prints, the second set of prints are to be excludable as a result of a -- an illegal arrest. The conviction must yet be affirmed because on and assured retrial, the first set which is presumably lying around some place hasn't been used could be introduced, and therefore to reverse this conviction would be “a useless gesture” quoting from the brief at page 8, to reverse this conviction only to submit the first set of prints to be introduced in evidence at John's retrial. This argument of course assumes that the first detention was legal and we maintain quite the contrary and urge the Court to set at rest the constitutional sides of both sets of prints in order to forestall the necessity of further review by this Court.
Speaker: What if both sets are excludable? What about instilling other set?
Melvyn Zarr: Well Your Honor, we assume that traditional scope obtained principles will apply and it would be free to -- a position would free at some subsequent time as a retrial to challenge a new set of prints as a product of the original obtained.
Speaker: Well, what if a -- what if the police just go around to his house and ask him for his fingerprints and he says, no, and they say, well, we want they anyway and we're going to take them and they get his fingerprints.
Melvyn Zarr: You mean not in this case Your Honor but just some types of set of --
Speaker: No, in this case. Lets say its reverse -- let assume its reversed --
Melvyn Zarr: Yes.
Speaker: Then they say, well, we'll go around and get his fingerprints now and they go around to his house and say give us your fingerprints and he says no --
Melvyn Zarr: Well, would that be under the --
Speaker: And then they take his fingerprints, that's all they do is take his fingerprint.
Melvyn Zarr: Well, I'm going to assume Your Honor that they would have to go to his house, if they were willing to do this legally this time with a warrant and they would depend on what -- on what that warrant was based on. If it fact was based upon her affidavit, Mrs. Key's affidavit, the prosecutor's affidavit and that affidavit was in fact tainted by this prior set of fingerprints, then we would assume a scope obtained principle would apply and that could be excluded but it would depend on what the facts at a later hearing would turn up.
Speaker: Would you say there is no way, no legal way that officers may or the police or investigators may get a set of fingerprints of a suspect until and unless they have probable cause to arrest as long as he objects to it?
Melvyn Zarr: That's right Your Honor and I think that there may be a narrow exception for true voluntary detention. I think that it's possible that one could conceive a situation which is this is an action voluntarily to give his prints in order to eliminate any suspicion of himself but of course this Court's voluntariness test would have to apply. He have to knowingly and freely involuntarily give up his prints and asserting well that they would have to knowingly, knowingly that he could refuse and nothing would happen, that he have to knowingly give up his prints.
Speaker: Didn't this lady identify him at the trial?
Melvyn Zarr: Yes she did Your Honor.
Speaker: And on a sworn testimony that's the man?
Melvyn Zarr: Yes, sir. She was -- said she was pretty sure
Speaker: Do you suppose the warrant could issue on that kind of -- for his arrest now?
Melvyn Zarr: It might very well Your Honor and then we would be free to argue. We contend that that -- the affidavit that led to that warrant was tainted.
Speaker: By what?
Melvyn Zarr: By the fact that he had already been convicted and apparently her testimony was --
Speaker: That's when she testified at the trial?
Melvyn Zarr: Yes, sir. But her testimony at the trial it seems to me Your Honor was influenced very much by what the police had done to him including the statement he confessed at all. I think that her -- we would be free to argue this would be open at retrial I think Your Honor that that was tainted. I'm not sure the Court has to get to into it at this point, it seems to be just sufficient to say that petitioner would be able to argue with some subsequent proceeding that the -- a new set however obtained was tainted.
William J. Brennan, Jr.: I assume that she still live?
Melvyn Zarr: I believe so.
William J. Brennan, Jr.: She'd be 80 by now?
Melvyn Zarr: Just about Your Honor.
Potter Stewart: But you do have what appears to be her positive identification of him made under oath appearing at page 5 of your brief and certainly now, if this conviction was reverse, there would be plenty of probable cause to arrest, wouldn't that be?
Melvyn Zarr: Your Honor, yes and that is what you put your finger on when its essentially fishy about this case. That is her original identification was apparently so fussy that it covered the 65 to 70. At the hospital prior of the 12 and after the 3rd, she wasn't able to identify positively the petitioner and now a year later, she is able to say that she is pretty sure that was Johnny.
Potter Stewart: Now, she says no doubt in mind about it?
Melvyn Zarr: On --
Potter Stewart: Page 5 of your brief.
Melvyn Zarr: Yes, sir, now when she says another point that she's pretty sure.
Potter Stewart: Over yonder in that white shirt, yes sir that's him, no doubt in mind about it.
Melvyn Zarr: And on page 30 of the --
Byron R. White: Well, wasn't she crossed examined about her previous identification or failure to identify?
Melvyn Zarr: No, no she was not. The only testimony --
Byron R. White: She wasn't?
Melvyn Zarr: No, she was not Your Honor. The only testimony about the hospital -- the failure to identify positively at the hospital is by a juvenile Officer Keller on page 51. The question, “did Mrs. Key identify him?” Answer, “Not positively.” Question, “Mr. Keller, did you say that Mrs. Key did not identify the defendant at the hospital?” Answer, “that's right.” That's all what's in the record about that hospital identification.
Thurgood Marshall: I have great problem with your point that if a statement is made under oath that this man is guilty of raping me, the fact that she wasn't sure before makes that statement under oath insufficient of probable cause for one had great problem with that?
Melvyn Zarr: Well, I do too Your Honor.
Thurgood Marshall: It didn't seem to matter though.
Melvyn Zarr: My point Your Honor is this that --
Thurgood Marshall: The point that was asked was on the basis of her testimony. If a new trial is granted, couldn't they get a new set of fingerprints and you said no.
Melvyn Zarr: I was wrong to say they might and my only point was that if there were a new warrant that this Court needs to decide nothing about that at this time. And my only point was that the petitioner would be free to argue with some future time that a new set was tainted, that's all my point was Your Honor.
Byron R. White: How did it -- where is the -- where does it appear on the record about her previous inability to identify the defendant?
Melvyn Zarr: Your Honor, the only testimony that I cited was on page 51 of the appendix where the police juvenile officer in describing one of those detentions between the 3rd and the 12th, he said it was somewhere on the 5th, 6th to 7th, referred to that hospital, short effect.
Byron R. White: And yet she was never crossed examined about that and at the trial?
Melvyn Zarr: That's right sir, she was not.
Byron R. White: Nor was this that the gentleman calls a witness or yes he was -- yeah he was, yeah.
Melvyn Zarr: Now, we assert that the both arrest, the first and the last are illegal, but first, we have to deal with the decision by the court below that although the second detention was an arrest, the first detention was not and why? Well, both times that he was taken into custody, obtained at the station house, interrogated and fingerprinted but the difference the court below holds is at the first time, the police had no intention to charge him with crime but merely wanted to investigate him. There are two answers to this. The first is that there is no testimony about police intention after December 3rd. The only testimony as to the arrest at December 3rd is that which I quoted from earlier page 6 and 7 of the record by the arresting officers. But there's a sharper answer called for in this case and the fact is this. That the fact that the officer had an investigative intent only in taking him to the station on December 3rd does not dispense with the constitutional requirements of obtaining a warrant or under circumstances where a warrant maybe excused with showing of probable cause. To the contrary and this is our central point in the case. To the contrary, the fact that there was an investigative intention only reinforces the legality of the detention. Reinforces the conclusion that there was a violation of constitutional safeguards because you can't get a warrant at least under the law of the land for an investigative arrest and you can't show probable cause or you can't take someone down at the station in order to get probable cause to detain him further.
Potter Stewart: Your argument is entirely based on the Fourth Amendment aspects of the Fourteenth Amendment --
Melvyn Zarr: Yes, sir.
Potter Stewart: Entirely?
Melvyn Zarr: Entirely.
Potter Stewart: Not at all on the Fifth Amendment aspect or the Fourteenth Amendment nor on Generalized Due Process?
Melvyn Zarr: No, Your Honor.
Potter Stewart: Exclusively on the Fourth, on the --
Melvyn Zarr: That's right.
Potter Stewart: -- illegal arrest?
Melvyn Zarr: That was compelled by Schmergel (ph) Your Honor.
Potter Stewart: He -- what else happened during this period of detention?
Melvyn Zarr: Well Your Honor, let me capsulate like go over it again and see if we can narrow it down. It was the arrest at December 3rd, the number of pickups by Keller between the 3rd and the 12th, he said four or five times in an attempt to get leads. And the final detention of December 12th from which he has never been released and that's essentially is it. You want to direct my attention --
Potter Stewart: No, I just wondered, it can be argued I suppose that the -- that these fingerprints were not the -- were not the result of the arrest necessarily. Those were his fingerprints, whenever they had been taken; I just wondered what else happened during this -- at the time his fingerprints were taken, on the 12th. Was he interrogated?
Melvyn Zarr: Well, the given -- he was taken 90 miles, given a lie detector test.
Potter Stewart: That was later?
Melvyn Zarr: Yes.
Potter Stewart: Over at Jackson where he was?
Melvyn Zarr: Right. And then brought back, kept some more at in jail, finally, his prints were taken at the 14th and those were sent off to Washington and those were introduced in evidence, that's what I called the second set. There's a reference in the --
Potter Stewart: In twice, it is the fingerprint of what? 23 or 24 other young Negro's were sent to Washington in connection with this case?
Melvyn Zarr: Yes, Your Honor.
Potter Stewart: As the record shows.
Melvyn Zarr: On the 14th, same day that his were taken, his second set was taken.
Potter Stewart: Had they -- had all those 23 or 24 have been arrested, does the record show?
Melvyn Zarr: Is best one conferred from it. It's a very skimpy record Your Honor. The best that I can tell all those same kind of treatment had been meted out to them. They have been taken to the station house and --
Potter Stewart: Taken over Jackson and given lie detector test?
Melvyn Zarr: No, I don't think --
Potter Stewart: Not that?
Melvyn Zarr: I don't think that, no. Therefore to return to the tread of our argument, the failure to obtain a warrant or to make any attempt to show probable cause for the two arrest is explainable by the fact that this was just for an investigate -- just for investigation. This was an investigative arrest but is not excusable. Now, I turn to the warrant point first. The record is clear that there was no warrant for petitioner's arrest on both on the 3rd and 12th. As I indicated, the police can't get a warrant under the law of the land for such an investigative detention, so that we can understand why no warrant was obtained even though we cannot excuse it. I see my time is running short so I'll skip --
Potter Stewart: What if they -- what if they just had an arrest even though -- what if they just gone through a neighborhood and said we want to take the fingerprints of all the young Negro's on this neighborhood between the ages of 15 and 20?
Melvyn Zarr: Well, Your Honor. I think that under most circumstances, they would actually have to have an arrest warrant in order to take that thing except for the category --
Potter Stewart: Why? My fingerprints were on file, the FBI --
Thurgood Marshall: What about -- what about --
Potter Stewart: Just because I was in the military service.
Thurgood Marshall: -- if the boy refuses to give him voluntarily?
Melvyn Zarr: Well, that I like to stop in freeze bone, they escalate into a situation where he then becomes under greater suspicion but I think that I'm willing to concede that there maybe a very narrow category of cases called voluntary giving of fingerprint cases in which the person actually knows that nothing will happen if he refuses to comply but that's not this case.
Potter Stewart: Well, my question really is, is that your claim at all that taking of his fingerprints as such violated any provision of the constitution.
Melvyn Zarr: Oh no, no, Your Honor. Our contention is grounded upon the fact that --
Potter Stewart: Its only at the time and place when they were taken, he under you say illegal arrest?
Melvyn Zarr: Yes, sir. Our contention --
Potter Stewart: Yes, that you're only trying --
Melvyn Zarr: Is grounded upon the fact that there was illegal police conduct. Outrageously illegal police conduct and the fact that these fingerprints were the product of this illegal police conduct means that -- if the exclusionary rule means anything that these fingerprints should be excluded.
Byron R. White: What should you argue to say a thing that they did go around the neighborhood then say, let me have your fingerprints and he said no, and they wind up getting where they're taking fingerprints right there on the spots where --
Melvyn Zarr: They would have to have a warrant for that kind of --
Byron R. White: Taking involuntary (Inaudible)
Melvyn Zarr: Yes, sir, without a warrant. Yes sir.
Byron R. White: Or without a doubt, without a legal remedy?
Melvyn Zarr: That's right. Unless -- unless Mr. Justice White and here's my point. There's one of this narrow category cases that's really voluntary in giving a fingerprints.
Byron R. White: Well, I know but I called everybody just to go --
Melvyn Zarr: Yes, sure. Let me continue quickly to the point that there was another attempt to show probable cause for either arrest that of December 3rd or December 12th. Again, it was impossible for the police to do so. It's clear from the record that all they want to do is investigate, so of course there was no probable cause. Finally, I come to the court below ruling that fingerprints are excluded from the operation in the exclusionary rule in Fourth -- in the Fourth Amendment and I start with this Court's landmark ruling in Mapp v. Ohio that all of us obtained by searches and seizures are violation of the Constitution is inadmissible in state proceedings. I do want to save some time for rebuttal and so I think I'll stop here. The argument on fingerprints and their subjection to the exclusionary rule as contained in our brief and I'll save the remainder of my time for rebuttal.
Earl Warren: Mr. Lyell.
G. Garland Lyell, Jr.: Mr. Chief Justice, may it please the Court. I'll be as brief as possible because I can see most of the cites of counsel is already of no probable cause appearing in this record for the second arrest and I'm really not concerned with the second arrest and I don't mean to use that word second arrest in the sense that there was first. Well, the state's position is this that there's a heinous crime unsolved. The only leads they've got is two what fingerprints and a palm print in the window sill and the window pane on the victim's home. This has got nothing to do with merits of the Court might be asked to know that Mrs. Key, is a mother of Al and Fred Key who in the turn deserves at the world endurance flight plain record -- plane flight record which still stands, except the light plan of (Inaudible) of 37 days.
Potter Stewart: Is that the question mark? Is that the name of that plane?
G. Garland Lyell, Jr.: I believe it was Your Honor.
Potter Stewart: Yes.
G. Garland Lyell, Jr.: Now, here we have this a crime and the record is slim as to what lead -- led the police to pick this boy up, evidently, he won the first but not the first picked up and interrogated. Now, I'm thriving on a proposition, please the Court, generalized statements from the case like Culombe versus Connecticut which was reversed by other reasons that this was a general inquiry into another unsolved crime and often there -- this is quoted, “often there is little else the police can do than interrogate suspects as an independent part of criminal investigations.” And to further quotes from the opinion and probably the most restrict piece this quote of evidence now from investigations Miranda, “general on the same questioning as to facts surrounding a crime,” in which to emphasis this language. All other general questioning of citizens in the fact finding process is not affected by a vote. And further that fingerprints fall in a different category -- testimony that is presents as held in Schmergel (ph) versus California that it even had taken a bluff over objection was a perfect form as long as it's done in clinical conditions as was done in this case.
Thurgood Marshall: But why still on Miranda? In Miranda also say when a person was then held in restraint?
G. Garland Lyell, Jr.: Mr. Justice Marshall, it's the state's position that in a case of this kind where you got no positive identity and the record is slim as it says to what leads the police could get from Mrs. Key. I believe the original as the Supreme Court record is here and you see pictures in the record of Mrs. Key in the hospital bed and like bruises about the face and I think on that. And it's just my conjecture and her age in having gone through what she had. She was not in a position to give them very much information but suffice to say as our State Supreme Court went along with my argument on that this boy and incidentally was only 14 at the time of this and I'm satisfied because of his youth that he didn't get the death penalty, his youth and the age of the victim.
Thurgood Marshall: But my question was, was he in restraint when the fingerprints were taken?
G. Garland Lyell, Jr.: My answer sir is this. He was in restraint but not under arrest in the legal --
Thurgood Marshall: But doesn't --
G. Garland Lyell, Jr.: -- sense of the word.
Thurgood Marshall: It doesn't restraint, put him under Miranda.
G. Garland Lyell, Jr.: But Miranda has only to do with testimonial evidence, Mr. Justice Marshall.
Thurgood Marshall: Yeah but you had said that this was distinguished from Miranda. I was waiting to get to where you have distinguished.
G. Garland Lyell, Jr.: The distinction is set out in Schmergel (ph) versus California and other cases signing there is.
Potter Stewart: There is no Miranda claim that -- your adversary is not relying one bit on Miranda, Miranda is Fifth Amendment.
Thurgood Marshall: That's right.
G. Garland Lyell, Jr.: I understand that but I'm getting back to the Fourth Amendment on the arrest and it's our position that it was not illegal -- an arrest in the legal sense of the word, that it was part of a fact finding process.
Byron R. White: Do you intend that his appearance which voluntary here --
G. Garland Lyell, Jr.: Mr. Justice White, I wouldn't say it was voluntary, I don't know, that didn't go into that.
Byron R. White: Did they just brought him down here --
G. Garland Lyell, Jr.: The 14-year old boy? I wouldn't say that. I can't say but I wouldn't say this was voluntary. It wasn't developed and confirmed.
Thurgood Marshall: How many did they bring there voluntarily?
G. Garland Lyell, Jr.: Mr. Justice Marshall, I think the record show they interrogated the 26, 27 and nobody remembered for sure and I think they both --
Thurgood Marshall: And they interrogated them all at the precinct?
G. Garland Lyell, Jr.: No, sir.
Thurgood Marshall: Where did they interrogate the other one?
G. Garland Lyell, Jr.: The record doesn't show, apparently home, schools, I just don't have the conjecture.
Thurgood Marshall: Well, why did they bring this one down there?
G. Garland Lyell, Jr.: They brought this one and down 26 were they --
Thurgood Marshall: Was --
G. Garland Lyell, Jr.: The last one in 20 somewhat others --
Thurgood Marshall: For 20 somewhat others --
G. Garland Lyell, Jr.: And --
Thurgood Marshall: -- the police went up to him and said, "Would you mind please coming along with me." Or did they say, "Come on boy?"
G. Garland Lyell, Jr.: It doesn't show.
Thurgood Marshall: What do you think?
G. Garland Lyell, Jr.: Well, Mr. Justice Marshall, at the -- again per conjecture on my part, I know -- I know at least there's no indication in this record that anybody was intimidated. I'm sure that's what you getting at and as a matter of fact, what little it is in the record about the trip to Jackson. I believe the record shows that almost positive that the boy's mother approved but I'm not -- I'm trying to forget the second, the third what I say is the first legal arrest and the trip to Jackson because even though I was there there's been some statement against some old but it was not used in the trial, nothing as a result of his arrest when he was taken to Jackson was used at the trial.
Hugo L. Black: You think the question of whether that was an “arrest” is a crucial indication?
G. Garland Lyell, Jr.: I think it does. I think that's the question Mr. Justice Black.
Hugo L. Black: You think that's the case they have presented?
G. Garland Lyell, Jr.: Then my way of thinking is the question was they arrested when he was first interrogated and printed at police headquarters.
Byron R. White: Well, if the fingerprints -- the fingerprints were used for what?
G. Garland Lyell, Jr.: Well, there again Mr. Justice White --
Byron R. White: You're just saying that they --
G. Garland Lyell, Jr.: I'm saying --
Byron R. White: They did it before.
G. Garland Lyell, Jr.: So, that I'll get them sooner, give them prints that was sort of a clerical error, and officers police department over there at Meridian and its certainly under Chapman versus California, the officer beyond a reasonable doubt.
Earl Warren: We'll raise this whole part. We'll recess now then Mr. Lyell.


Earl Warren: Philip Cardinale, Jr., petitioner, versus Louisiana. Is the other-- is there another counsel to be there? I -- I see, you’re just sitting over one. I thought you--
Preston H. Hufft: Oh, no it’s--
Earl Warren: That makes no difference. It’s alright. Sit where you wish. I just wondered if you had an associate who was to sit in that chair, was all.
Preston H. Hufft: No, sir.
Earl Warren: Alright. Mr. Greenberg, you may proceed with your argument.
Nathan Greenberg: Mr. Chief Justice and may it please the Court. My name is Nathan Greenberg. I’m an attorney from Gretna, Louisiana. I represent the defendant in this case, Philip Cardinale, Jr. who was the petitioner in this Honorable Court for a petition for a writ of certiorari. The petitioner was convicted of the crime of murder in Plaquemine Parish, Louisiana and he was sentenced to death. For his appeal, we originally perfected some-14 Bills of exceptions which we took to the Supreme Court of Louisiana and we are here before Your Honors today on what would probably amount to two of the Bills of exceptions which have been combined together in one The Crux of the issue before Your Honors today is the effect of testimony relative to prior offenses of the accused where the accused has not taken a stand in his behalf and where, actually, we submit that the use of the prior convictions in this case was to show nothing more than a disposition to commit crime which, we submit, would violate the Due Process Clause of the Fourteenth Amendment. Now, the way this developed in this matter was like this. The accused turned himself in, in Tucson, Arizona. And, while he was in custody, he was interrogated by the police there. Now, this was pre-Miranda and subsequent Escobedo. So, the Escobedo rule applies. During the course of his custodial interrogation, the petitioner volunteered that he had previously been convicted of an offense in Louisiana, which offense was actually a crime against nature, that after he served his time in New Orleans Parish Prison, that he went looking for the girl who had charged him with this crime, according to him, allegedly with a gun for the purpose of killing her. Now, he did not find the girl. He did not commit any offense in connection with it, and his statements relative to the prior offense or, generally, that let’s see-- I’ll see if I can read it. During the course of his custodial interrogation in Tucson, Arizona, he referred to a prior conviction occurring in Louisiana, which, prior conviction was for a crime against nature occurring on July 12, 1963 and causing the petitioner to be sentenced to serve three months in a parish prison on March 25, 1964. Petitioner further stated, during the course of his custodial interrogation, that after he served his time in New Orleans Parish Prison, he went looking for his alleged prosecutrix with a gun for the stated purpose of killing her. However, he never did find her and, therefore, no further offense was committed. Now, in essence, what we have here is a situation where this reference to the prior offense serves absolutely no useful purpose, we respectfully submit. The only purpose that this link could possibly serve, we submit, is to try to prejudice the jury to show the jury that this defendant is a bad man. This, of course, is why we’re here before Your Honors today because, here, we had a situation where this could very easily have been separated from the remainder of the statements of the accused. This could very easily have been excluded, notwithstanding the fact that we sought to exclude it from the time it first came up. It came up in the opening statement. It came up in the interrogation of the police officer. It came up in the closing argument by the District Attorney. Notwithstanding the fact that we sought to exclude at each level of the proceedings or each stages of proceeding, it was admitted and it was repeatedly referred to in the closing argument.
Potter Stewart: Did you seek to exclude it on the basis of the United States Constitution or just as a matter of state?
Nathan Greenberg: In the District Court, if Your Honor please, this trial occurred in May of 1966. This was prior to the ruling of Your Honors in the Spencer case and, of course, we’ve picked up the language of the Spencer case which, I believe, was in 1967 as a basis of relying upon the application for the writ to this Court and the wording of the dissenting opinion by Mr. Chief Justice Warren.
Potter Stewart: No, but I’m-- I think you understand my question.
Nathan Greenberg: Yes, sir.
Potter Stewart: Wondering if you-- the time you raised or, in any event, when for the fede-- when you raised any federal question in this case.
Nathan Greenberg: Upon application for the writ.
Potter Stewart: Of certiorari in this Court?
Nathan Greenberg: Yes. In the Trial Court, what had happened was that the states ought to justify the admissibility of the conviction on a basis of propensity or pattern and, of course, we argued to the Court at this time that there was no pattern because the prior offense was crime against nature and this, of course, was murder. And, of course, the only reference to the alleged looking for the prosecutrix with a gun and so forth related to an incomplete offense. Now, we did not succeed in this respect. The state then came in and sought to justify the admissibility of the testimony on a theory that this was a part of the entire confession, and the entire confession as a whole must go in, that Louisiana has such a statute requiring this that the entire confession go in. And, since this defendant said this, regardless of what it was, it must go into evidence. And, of course, we respectfully submit that this should not be so. For example, suppose the defendant made a statement reflecting upon character or integrity of jurors, for example. Should this go in because it’s a part of an alleged confession? Should the prosecution be entitled to use this as an attempt to prejudice the jury against the defendant? We respectfully submit that the issue in this case is quite simple and the issue is to what extent the evidence of prior convictions should be allowed to go in on behalf of the prosecution.
Byron R. White: But, as Mr. Justice Stewart asked you, was the federal question which you raised here decided at all in the lower Courts?
Nathan Greenberg: No, sir, it was not.
Byron R. White: So, there’s been no state decision on any federal question--
Nathan Greenberg: That is correct.
Byron R. White: In this case? Where do we get jurisdiction to hear the case?
Nathan Greenberg: Because of the contention that the constitution was violated with reference to the admissibility of the evidence per se, in other words, the Louisiana Supreme Court held that the confession must be considered as a whole.
Byron R. White: When the case comes here from the state Court, doesn’t our jurisdiction depend on the State Court having decided a federal question?
Nathan Greenberg: The federal question, if Your Honor please, in connection with this matter was not raised in the State Court for the reason that there was no-- in the Trial Court, there was no expression which actually hit this on the button as it did in the dissenting opinion in the Spencer case which came out after this trial in the State Court.
William J. Brennan, Jr.: Well-- but when you got to the State Supreme Court, the error was not assigned and the Bill of Exceptions isn’t constitutional error, was it?
Nathan Greenberg: No, sir, it was not. We originally--
William J. Brennan, Jr.: And the Supreme Court opinion did not treat it on the ground of constitutional error, did it?
Nathan Greenberg: No, sir, it did not. We took the--
William J. Brennan, Jr.: Then, how-- what is the answer to Justice White’s question?
Nathan Greenberg: The issue as to constitutionality was not raised prior to the time of the preparation of the application for the writ to this Court.
William J. Brennan, Jr.: Then do we have any jurisdiction to go through it?
Nathan Greenberg: We submit that the constitutional issue is present, if Your Honor please. This is a question where we have raised a federal question. Perhaps the state may not passed upon up but, even though the state may not have passed upon it, it has been raised in connection with the application for the writ.
Thurgood Marshall: Where in the record is the exact language of the opinion?
Nathan Greenberg: I believe that I refer to it at transcripts, page 496-510.
Thurgood Marshall: Where is it, 496?
Nathan Greenberg: Through 510.
Thurgood Marshall: You don’t have it printed?
Nathan Greenberg: No, in the appendix we refer to the Bill of Exceptions, which, Bill of Exception sets forth the actual reference to-- as to the manner in which it was raised. The-- in the appendix, I can refer Your Honors to that.
William J. Brennan, Jr.: It was cited in the jurisdiction.
Thurgood Marshall: But it doesn’t say anything-- it just says you objected to it.
Nathan Greenberg: Yes, sir, we did.
Thurgood Marshall: Well, in no place did you mention that you object on the grounds that it violates any provision of the constitution.
Nathan Greenberg: Yes, sir. That is correct. We did raise other issues relative to the constitutionality of various other matters in the course of the case, however, not as to this particular--
Thurgood Marshall: Where is that in the Bill of Exception?
Nathan Greenberg: Now, I’m looking at the appendix here and, particularly, the Bill of Exceptions Number 3 which appears at page 9, 10, and 11 of the Bill-- of the appendix, and Bill of Exceptions Number 10 which appears at page 12, 13, and 14.
Thurgood Marshall: Well, i've scanned to 9, 10, 11, and I don’t see the US Constitution anywhere.
Nathan Greenberg: This is--
Thurgood Marshall: Is this from the law?
Nathan Greenberg: Correct, sir.
Thurgood Marshall: Sir?
Nathan Greenberg: This is correct, sir.
Thurgood Marshall: So, you didn’t write it?
Nathan Greenberg: Not in the District Court, no, sir.
Thurgood Marshall: Well, this Bill of Exception is in the Supreme Court, isn’t it?
Nathan Greenberg: No, this Bill of Exceptions was prepared and submitted to the trial judge and then--
Thurgood Marshall: Well, what was submitted to the Supreme Court of Louisiana?
Nathan Greenberg: These Bills of Exceptions.
Thurgood Marshall: And no place in the federal question?
Nathan Greenberg: No, sir, not as to Bill of Exceptions Number 3 and Bill of Exceptions Number 10.
Thurgood Marshall: Well, my answer was no place.
Nathan Greenberg: That is correct. Well, not-- there were-- permit me to say this. We did raise other federal constitutional questions in other Bills, but this was not the basis of the application for the writ.
Earl Warren: But you argued in your briefs or orally that this was unconstitutional under the federal constitution.
Nathan Greenberg: The exact question which was raised in the appellee’s--
Earl Warren: The one you’re arguing now?
Nathan Greenberg: No, sir, we did not.
Earl Warren: Well, do you have any authority to the effect that we have jurisdiction in such a situation?
Nathan Greenberg: Well, if Your Honor please, the issue which we raised herein is one which really developed since the trial of this case. This case was concluded, I believe, on May 5,1966, and the issue which was raised was actually pinpointed in Your Honors’ decision of the Spencer case which was decided by this Honorable Court in 1967. And, insofar as the focusing of attention on this issue was concerned, at that time, the Bills of Exceptions had already been signed, the appeal had been lodged in the State Supreme Court, and there was no way in which the issue could be raised at that time for the very simple reason that, under the state practice and procedure, we have to raise the Bills of Exceptions, the basis of the objections to the admissibility of the evidence, have them signed by the Trial Court, and then we take the appeal. So, there was really, we submit, no way in which we could raise the issue at that time because the matter had already been tried, submitted, and the Trial Court had lost jurisdiction.
Earl Warren: Do you take any comfort out of the opinion of the Court in the Spencer case?
Nathan Greenberg: Yes, sir, we do. This is the entire basis of the application for the writ. We respectfully submit that the opinion in the Spencer case, both majority and dissent, would clearly indicate that the position of the defense in this case was correct that it would be violative of the Due Process Clause. In the Spencer case, in the majority opinion, the majority stated petitioners do not even appear to be arguing that the constitution is infringed if a jury is told of a defendant’s prior crimes. And this, of course, is exactly what happened in this particular case. The Spencer case was a habitual criminal and multiple offender situation out of Texas. And of course, here, we don’t have this case at all because, here, we have a situation where the only thing which is involved here is the question of the defendant’s prior offense coming into evidence where a defendant has not taken the stand, has not sought to offer any character evidence or anything of this type and what, in essence, has occurred is that the prosecution says “Well, since you, Mr. Defendant, made this statement during the course of this confession, we are entitled to bring it into evidence.”
Potter Stewart: Well, what do you get out of that sentence you’ve just read from the majority that would help you?
Nathan Greenberg: We submit that this actually leaves our question open. And, as was pointed out in the dissent, it leaves the question open here and, as was stated in the dissenting opinion-- I have the language quoted in the brief. “While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in Federal Courts as well as decisions by Courts of Appeal and of State Courts suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause and this, of course, is exactly the situations which--
Abe Fortas: But, is that applicable here? I know the state cert-- I think I recall that State Supreme Court did not rely on this point, but it-- isn’t the fact that this prior conviction was part of the story as to the motive, the alleged motive, for the petitioners killing this woman?
Nathan Greenberg: Well, Your Honor is talking about the propensity of pattern-type--
Abe Fortas: I’m not either. I’m talking about motive. Could the-- well, hasn’t then the state alleged that the state said the reason that this petitioner killed this woman was that she had been the prosecutrix in the prior conviction, isn’t that right?
Nathan Greenberg: Yes, sir.
Abe Fortas: Now, how could the state have proved motive? Am I right, too, that State Supreme Court does not rely upon that?
Nathan Greenberg: That’s correct.
Abe Fortas: Now, how could they--
Nathan Greenberg: A different woman here.
Abe Fortas: Sir?
Nathan Greenberg: This was a different woman.
Abe Fortas: This was a different woman?
Nathan Greenberg: Yes, sir.
William J. Brennan, Jr.: Oh, yes.
Nathan Greenberg: Absolutely, a different woman at that time.
Earl Warren: In a different state, wasn’t it?
Nathan Greenberg: No, same state.
Earl Warren: Same state?
Nathan Greenberg: Yes, sir.
Byron R. White: But, here, he’s now been convicted for killing a different woman than the one that he had the-- this alleged motive for killing.
Nathan Greenberg: Yes, sir.
Byron R. White: Yes.
Nathan Greenberg: Yes, sir. In other words, we were placed in a rather anomalous position here where the basis of our application here really occurred while this thing was pending, if Your Honor please-- if Your Honors please, and we have a situation where I must admit in all candid to the Court that the direct matter raised here today was not submitted to either the Trial Court or the Louisiana Supreme Court. However, in our research, we discovered the basis of coming up here on a federal question subsequent to the trial, subsequent to the time that the Bills of Exceptions had been perfected and, of course, subsequent to the time that the brief had been prepared in Louisiana Supreme Court.
Thurgood Marshall: But you still don’t have any authority to afford this.
Nathan Greenberg: We don’t have any authorities to come before Your Honor and say “I know that I can point to such and such a decision” and say this is a basis of it.
Thurgood Marshall: No, I mean, you don’t have the authority to say that you can raised in this Court, for the first time, a federal question that was not raised nor decided nor-- not raised, submitted, nor decided by the State Court.
Nathan Greenberg: I do not. However, if Your Honors want some research on this, we would be glad to check the matter out and submit a supplemental brief in connection with the issue. We came up solely on the basis of the prior offense coming into evidence which we felt was an unconstitutional Act on the part of the prosecution. We raised it in a different vein. There isn’t any question about that. However, it really is a question of approach.
Byron R. White: But, I suppose there remains-- still remains a federal forum you can get this question cited.
Nathan Greenberg: Well, in the event, our rights of appeal would be terminated because we came up here in the normal course of the appellant review. Then, of course, we would have to--
Byron R. White: I’m not--
Nathan Greenberg: Resort to habeas corpus in the Federal Court system to present the issue. In other words, it would be just like a situation where, subsequent to Miranda, for example, a defendant was tried and he didn’t have adequate counsel and then he came in and sought to review it by way of habeas corpus in the Federal Court system.
Potter Stewart: The Louisiana statute that the Court relied on, do you find that sort of a statute in other states?
Nathan Greenberg: The statute in connection with the entirety of a confession?
Potter Stewart: Yes.
Nathan Greenberg: We have not researched this one from a standpoint of other states, but my recollection is that there are some which have a similar statute.
Potter Stewart: Which Louisiana has a different historical background, doesn’t it, in its--
Nathan Greenberg: Not in a criminal law area.
Potter Stewart: Doesn’t it?
Nathan Greenberg: Louisiana has a different historical background from a standpoint of development of the law in the civil law area.
Potter Stewart: Only in the civil law area?
Nathan Greenberg: Yes, sir. However, insofar as the law of crimes is concerned, it’s taken from the common law.
Potter Stewart: That’s interesting. I suppose you’re sure about that?
Nathan Greenberg: Oh Yes, sir, absolutely. Our civil law is based upon the Code of Napoleon which, in turn, is based upon the Code of Justinian. However, in the law of crimes, our law is taken directly from the common law. It is, of course, codified by statute today. We respectfully urge Your Honors’ consideration of the issue which is raised and which was-- as was pointed out and raised for the first time in this application for a writ. We respectfully request the indulgence of the Court for additional time within which to file a supplemental brief to research the issue raised in connection with the matter of jurisdiction. It is, of course, true that the habeas corpus remedies which are available to petitioner have not been utilized. However, we felt that in as much as the time for appeal had not yet run and in as much as the opportunity til-- still presented itself for this case to run began through the course of the appellate review, that we should ask for the application of the writ of certiorari, which we did. And, of course, we realized that we did not raise this constitutional issue in the District Court or in the Supreme Court, but the issues is, nevertheless, existed in one which, we submit, should warrant Your Honors’ attention to the matter. We submit it is a matter of prime importance. It’s a matter which would have great effect in connection with prosecution of criminal cases, not only in Louisiana but in other jurisdictions. What is the effect of prior offenses where the defendant has not taken the stand, has not put the issue of his character or reputation at evidence, and in the course of the confession, the defendant refers to the prior offense and the prosecution brings us out as a part of the confession as a whole. We submit that the evidence which was taken in this case would warrant Your Honors’ taking cognizance of the matter and reversing it.
Potter Stewart: I suppose the purpose of the statute that requires that if any part of the confession is offered by the prosecution, then the entirety must be offered was, at least arguably, to protect the defendant in the case, wasn’t it?
Nathan Greenberg: Well, there isn’t any doubt in my mind, but that this was the intent of the statute. As a matter of fact, we have cited the statute in the brief and, of course, here one phase of the statute is used against us, and this is the statute. Every confession, admission, or declaration sought to be used against anyone must be used in its entirety so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford. So, actually, the exculpatory proviso of the statute is one which really requires the utilization of the confession as a whole and, here, the confession as a whole is being used to show that the defendant is a bad man.
Potter Stewart: Is this a written confession?
Nathan Greenberg: No, sir, it was not. It was an oral confession.
Potter Stewart: When he was arrested in some other state.
Nathan Greenberg: Yes.
Potter Stewart: Oral confession to the law enforcement officers over there, the arresting officers.
Nathan Greenberg: That is correct. We respectfully request Your Honors’ favorable consideration of this matter. Should the Court require or wish supplemental briefs on the issue of jurisdiction, if Your Honors would fix some additional time within which this matter can be raised, we submitted that the matter that we had jurisdiction under the statutory provisions raised.
Potter Stewart: This-- your client is under sentence of death, is he?
Nathan Greenberg: Yes, sir, he is. He’s on death row in Angola State.
Potter Stewart: Suppose you said that Spencer against Texas was a case decided after the trial of this case?
Nathan Greenberg: Yes, sir.
Potter Stewart: Which explains, you say, why you didn’t raise this point as a constitutional point during the course of the trial or the appeals through the Courts of Louisiana. Suppose other cases have subsequently been decided that might affect the constitutional rights of your client now, haven’t they been? I’m thinking particularly of the Witherspoon case. Remember that case?
Nathan Greenberg: Yes, sir.
Potter Stewart: We’ve got that kind of a claim in this case?
Nathan Greenberg: Yes, sir, we do.
Potter Stewart: Just a question. I just-- the purpose of that question is to suggest that maybe an appropriate forum might be a Federal Habeas Corpus Court, the District Court, rather than here where the record is-- it’s where your points were never raised as federal questions.
Nathan Greenberg: May I just state this to the Court, if Your Honor please. I note my time is running out. In as much as a right to review had not been lost because of the laps of time, we sought to come up by way of application for the writ of certiorari and we want to make this abundantly clear to Your Honors that we thought that we should appeal in this fashion rather than go to the--
Byron R. White: Isn’t it also clear, however, that you did raise a good number of federal issues?
Nathan Greenberg: Oh, yes.
Byron R. White: For both the Trial Court and the State Supreme Court.
Nathan Greenberg: Absolutely, sir.
Byron R. White: And had them decided in the State Supreme Court.
Nathan Greenberg: Yes, sir.
Byron R. White: But you didn’t bring any of them here?
Nathan Greenberg: No, sir, not those.
Byron R. White: And it’s-- the only one you brought here was one that you never took to State Court.
Nathan Greenberg: That’s correct. We reserved Bills of Exceptions in connection with this matter, but it was on a state statute.
William J. Brennan, Jr.: And, what’s your ground? I gather, the Fourth and Fifth Amendment questions that you raised, weren’t they?
Nathan Greenberg: That’s correct.
William J. Brennan, Jr.: I gather this is neither.
Nathan Greenberg: No.
Speaker: You must have been surprised if we granted this petition.
Nathan Greenberg: Well, I was hopefully --
Byron R. White: Apparently, we are, too, now.
Potter Stewart: There used to be a requirement before you could go into federal habeas corpus that you must have petitioned for certiorari here, but that hasn’t been true for many years.
Nathan Greenberg: Well, we felt that we should try this anyway because the delays have not expired.
Potter Stewart: Right.
Nathan Greenberg: We thank you for your consideration.
Potter Stewart: And sentenced to death the next day.
Nathan Greenberg: Yes, sir, he had.
Potter Stewart: Stayed with the State Court?
Nathan Greenberg: Yes, sir.
Earl Warren: Very well. Mr. Hufft.
Preston H. Hufft: If Your Honor please, I represent the state in this matter. Before starting out, I’d like to point just one brief comment with respect to Spencer. Spencer was decided in January 23, 1967. We argued this case before the Supreme Court of Louisiana in December 1967 and the opinion was handed down in January 15, 1968, almost a year after Spencer. Now, just to review when --
William J. Brennan, Jr.: What would say-- you mean, that Spencer --
Preston H. Hufft: Spencer was --
William J. Brennan, Jr.: Was available at the time of argument.
Preston H. Hufft: Almost been for a year when we argued the case before the Supreme Court of Louisiana.
William J. Brennan, Jr.: And, Spencer was not relied on--
Preston H. Hufft: No, sir.
William J. Brennan, Jr.: Either in brief or in oral?
Preston H. Hufft: Spencer was not relied on. The only constitutional issues raised, federal questions raised in the state proceedings was one on the question of the search warrants by the que-- of evidence and this Supreme Court that just decided the Warden case which was in point, and the State Supreme Court used that and disposed of the question of the search warrants. He also raised the question with respect to Miranda that this case was instituted prior to Miranda, and the Supreme Court of our state made note of the fact that the Johnson case would apply since we got started before hand and, also, took special note, as we had also briefed, that even if this case had started after Miranda, this case met the test of Miranda. I know that to really picture that the images go into the facts so we’ll see exactly what we’re dealing with here.
Byron R. White: There was also a Schmerber point, wasn’t there?
Preston H. Hufft: Sir?
Byron R. White: A Schmerber point?
Preston H. Hufft: I don’t recall, sir.
Byron R. White: But your Supreme Court relied on Schmerber v. California.
Preston H. Hufft: Yes, well they were-- it’s one of the cases that-- it’s a California case about the drunken driver. They did cite it, sir, in their opinion.
Byron R. White: And had to do with hair and the blood of the victim?
Preston H. Hufft: Right, sir. That, of course, the Warden case came in and we decided on the Warden case to eliminate all questions. That was one of the cases cited, but the Warden case was compelling because we were-- they objected to the fact that we had issued search warrants in order to search for evidence, and we raised the Gouled case and the Warden case came out directly on point and we had no trouble whatsoever, at least our State Court didn’t, disposing of that question. Now, these are the facts of the case. This man lived in Marrero, Louisiana which is a Parish in Jefferson, right across the river from Louisia-- I mean, New Orleans. Plaquemine Parish adjoins Jefferson Parish and also, in a little tip, adjoins New Orleans Parish. This man came across the river from Jefferson Parish, went into the downtown area of New Orleans, picked up this girl in a bar, had-- this is the victim I’m talking about now, had several drinks with her, went from place to place. During the course of the night, one witness identified that the man, the defendant, had stopped in for gas and then sped off and he heard the scream of a woman in the car that helped her out. She was being held in the trunk. It then develops that the defendant was-- admits being at the scene. He admits the fact that he had blood on his hand, his car, his clothes, and the scene at which we found the victim. He rode around town that night, finally fled the State of Louisiana, and we issued a warrant for his arrest. Based on the information, the people who had seen them together at the bars and the nightclubs, the service attendant who recognized him, recognized his car, and so forth and so on. He fled to finally wound up in the State of Arizona in Tucson. One night, just walking down the street in Tucson, he flagged two policemen and said “Take me in, I’ve committed a crime.” They said, “Wait a minute, let us give you your rights” and they gave the man his rights under Escobedo. “In fact, you don’t have to say anything you say it, it can be used against you and you have a right to contact an attorney,” and they took the man in. The man then still didn’t know what his choice, well at least the police didn’t. The police had a difficult time to verify the choice because the man said that he had committed a crime in New Orleans Parish. Well, not knowing to him, he had just crossed the line and had murdered the girl in Plaquemine Parish. So, the police in Tucson didn’t’ really had the opportunity to either check his stories and see why he was wanted. Now, in Tucson, talking to these policemen, in which, our State Court, and the Trial Court also, said it was a very relaxed conversation. He was a man who wanted to get something off of his chest. He’s a man who flagged the policeman down, the man who wanted to talk about something that had occurred, to talk to the policeman who knew nothing about it. And, our Court and the State Supreme Court ruled, of course, the Johnson case was applicable where they said even in the-- over and above the Johnson case, they felt this confession met that comment in the Miranda case, that you don’t have to stop a man when he walks to the police and flags you down and wants to get something off of his chest. So, in this writ, there’s no issue raised whatsoever as to the voluntary nature of this confession and this confession meets all the tests of being voluntary. The only issue arises are the following testimony in which this police officer from Tucson gave the defendant’s confession. Included in that confession, was this comment and I’ll read it for the Court. This is the police officer talking.
Potter Stewart: Where are you in the appendix? What page?
Preston H. Hufft: That’s-- I’m not in the appendix.
Potter Stewart: I see.
Preston H. Hufft: This is on page 5 of my brief, sir.
Potter Stewart: I see. Thank you.
Preston H. Hufft: “Yes, he did. He told me that, several months prior to this taking place, he picked up a woman whom he described is a prostitute downtown in New Orleans.”
Earl Warren: What was the preceding question about that?
Preston H. Hufft: They asked him if wel-- weather or not he had walked in this-- I’ll just put it this way now. During the course of his relating the confession, when the police officer arrived at the point in which he was then going to relate this comment relative to the previous incident, the defense objected and has a long protracted argument. And, after the Court had ruled that this was admissible on the basis that it was part of the confession and under the state statute, it-- the confession had to be used in its entirety and this was admissible. So, this picks up right after the argument in the decision of the trial judge that that question was admissible.
Byron R. White: Was there is a specific question and direct examination that calls for this prior crime?
Preston H. Hufft: There may have been. If I please-- I’m not quite certain. I believe there was a particular question because it has been raised at-- earlier in the preliminary statement, in order to introduce the profession, it had been mentioned in the preliminary statement and an argument had ensued on that basis. This statement had been mentioned when the judge took under the questions whether or not the confession was voluntary, and this comes now for the first time that the jury has heard this actual testimony and I would imagine to say it was in the form of a question, knowing the stopping, so as to make certain that all the arguments are presented thereto.
Thurgood Marshall: Why did you make that?
Preston H. Hufft: Well, sir, we did this-- we-- in the introduction of this evidence, we go on a-- went on a two-pronged attack in so far as the introduction. Number one, we said under the state statute, Title 15450, it says that if you use a confession, the confession must be used in its entirety.
Thurgood Marshall: And do you agree with the type of petition that that is for the protection of the defendant?
Preston H. Hufft: Well, I’ll say this. This is a state statute which does not give the district attorney any discretion for him to say what he shall put in, what he shall not put in. This is meant for the protection of the defendant, yes, sir.
Thurgood Marshall: Well, couldn’t --
Preston H. Hufft: It's meant --
Thurgood Marshall: He waive that protection?
Preston H. Hufft: There is no provision to waive that protection.
Thurgood Marshall: Well, didn’t --
Preston H. Hufft: The --
Thurgood Marshall: He object?
Preston H. Hufft: He objected, yes, sir.
Thurgood Marshall: Well, wasn’t that as far as he could go toward waiving it?
Preston H. Hufft: I suppose he could go toward waiving it, yes, sir, but the state statute --
Thurgood Marshall: Well, my final question is, did it help him?
Preston H. Hufft: The waive -- objection?
Thurgood Marshall: No, I -- didn’t this testimony help the defendant?
Preston H. Hufft: No, sir.
Thurgood Marshall: So, you weren’t helping him, were you?
Preston H. Hufft: No, sir. Well, I’m trying to get over this point, if Your Honor please.
Thurgood Marshall: You were giving the jury -- the theory that this man was the type of man who went around murdering women.
Preston H. Hufft: No, sir. I say this --
Thurgood Marshall: Isn’t that what you did?
Preston H. Hufft: Well, Mr. Justice, I’ll say this. We had two bases upon which we said this testimony was admissible. Were very strong then and very strong now. This testimony was admissible because the law said in the State of Louisiana that, to use the confession, you’ve got to use the confession in its entirety. Secondly, and we argued very strenuously and still do here, that this testimony was appropriate, was admissible because it intended to show motive and intent.
Thurgood Marshall: That --
Preston H. Hufft: This was one of those instances --
Thurgood Marshall: That he made a business of murdering women?
Preston H. Hufft: That’s what I -- when you look at the circumstances--
Thurgood Marshall: Is that what you -- the impression you were giving the jury?
Preston H. Hufft: Well, again, the circumstance is so. When you read his statement in which he says exactly what took place in this prior incident, what took place in a crime in which we’ve charged him, they’re almost identical incidents. And, we show that this man, on the basis that someone would complain against him, and these are his very words I’m going to read you, “would take a gun and kill that person for having complained against him.” And, we say that’s essential.
Thurgood Marshall: So, you’re not leaving -- you’re not relying on the statute.
Preston H. Hufft: Sir, we had two bases. The statute said we had to do it and we also say it’s admissible.
Thurgood Marshall: I see.
Preston H. Hufft: Now, this is the man’s statement, if I get back to it. “Yes, he did. He told me that, several months prior to this taking place, he picked up a woman whom he described as a prostitute downtown in New Orleans, that after having several drinks together, they had intercourse and then, in his statement in his own words, she went down on me. He then said that an argument-- that after an argument that she slapped him and he backed-hand her. Then, he said that, a while later, she signed a complaint against him for backhanding her and that he received the sentence of 90 days. Of which, he did 45. He said that, immediately after getting out of jail from doing the 45 days, that he went out and got a gun and looked for two or three nights for her downtown in the area where he had first seen her with the intention of killing her because she had signed a complaint against him.” Present case, the facts almost identical because we have no witness to say what really happened in that argument view because this victim we have wasn’t quite as fortunate as the first woman. He didn’t find her. The victim we have in the second question was murdered. Now, that was the -- this is the entire statement. That -- what I just read is the entire statement the jury heard with reference to this. We say that, under our statute, we had no alternative. We had to produce he’s statement in its entirety. So, where the lower Court ruled, that’s the way the Supreme Court of Louisiana ruled in a long line of decisions. Now, we don’t --
Earl Warren: May I ask you as a matter of practice in Louisiana where you have a man under interrogation for hours, as happens in all states, do you, in presenting your case to the jury, relate everything that happened in those-- during those hours?
Preston H. Hufft: Yes, sir, I would for this reason, and this is --
Earl Warren: I’m --
Preston H. Hufft: This --
Earl Warren: I’m not asking what you would.
Preston H. Hufft: This we did do in our office --
Earl Warren: I’m asking you, as a practice, if that is done.
Preston H. Hufft: In our area, yes, sir, for this reason. This statute was intended that this man would have the benefit of having the jury hear his confession in the same way he gave it. Now, whatever he may consider to be irrelevant or not, a juror may attest a certain way, too, and one of the reasons for putting this statute in was not to give me, as a prosecutor, the opportunity to ser -- determine what I should withhold, what I should keep in the background or having it with a conference between myself and the defense hits it, you’ve got to tell the jury everything just like the man told it to you. You’ve got to relay all the instances and let the jury draw their own conclusions with respect to this individual’s testi -- confession, and that’s what was done --
Earl Warren: Did you, at the time you took the confession by questioning the review of the man’s life and get all of the sort of things that might have occurred in his life and then attach that to the --
Preston H. Hufft: Well, you see, if Your Honor --
Earl Warren: Confession and introduce it?
Preston H. Hufft: If the Chief Justice would please, this is not that kind of a case. This is a case in Tucson where the man was walking, in which they have no background whatsoever on the man, no opportunity whatsoever to --
Earl Warren: Well, that’s his background.
Preston H. Hufft: This is background to this third lie.
Preston H. Hufft: Yes, but this is not a question for them to ask him questions concerning this. This is something the man volunteered, came up with his own free will, talking to people who had no opportunity even to search back to the term in what they were considering. It’s an entirely different situation, and that question did not arise in this particular instance. Now, we say this information was essential over and above the statute, and we call -- we contend in our brief that he has no comfort whatsoever in Spencer.
Abe Fortas: That so, would you make a distinction between the application of a Louisiana statute to a written confession and to this kind of a situation? That is to say, what happened here is that the petitioner talked to the police in Tucson and told -- I suppose he told them a lot of things. Now, would you make a distinction between -- and then the police officer took the stand in Louisiana and testified.
Preston H. Hufft: Correct, sir.
Abe Fortas: Now, is there a distinction in the application of the Louisiana statute between that kind of situation and a written confession with respect to what is appropriate and what’s not appropriate?
Preston H. Hufft: No, sir, there’s no distinction.
Abe Fortas: As a matter of commonsense, it would seem that maybe you could make such a distinction.
Preston H. Hufft: There is no distinction made in the jurisprudence of the state.
Abe Fortas: Yes, I noticed here that, actually, the state knew about the previous offense and its relationship with this other woman, as appears on page 509 of the typed transcript, that that was elicited by -- from the police officer, the Tucson police officer, by question of the prosecuting attorney.
Preston H. Hufft: Yes, as I said before, if Your Honor please, they had given the background when this was mentioned in the old case in which we had to mention, in order to have it, appear in the trial and use it. When it was mentioned that it was considerable argument as to whether or not this police officer could state this part of the confession, when the confession was heard by the trial judge as to whether or not it was voluntary, argument ensued on this particular point. When the thing was founded presented to the jury, the trial judge had ruled. It went on into the confession and then came this point, and it came at this point with the question where it was stopped on the basis that defendant, again, raised their objection when it was being presented to the jury -- the presence of the jury. He objected three times. And, it was in the course knowing when these objections were coming out and affording the defendant the opportunity --
Abe Fortas: Well I suppose --
Preston H. Hufft: To go ahead and object.
Abe Fortas: Yes, I understand, but I suppose that it’s at least arguable that the question is, what is the confession? Now, when you have a written confession that is a confession, when you have a police officer testifying as to what the defendant told him, I suppose it’s questionable as to what is the -- it’s arguable anyway that, what is the confession within the meaning and intendment of this Louisiana statute? He might have told him all sorts of things that, all lawyers would agree, are not admissible in the course of the conversation between the defendant and the police officer, isn’t that conceivable?
Preston H. Hufft: Well, the theory behind this particular statute, as I view it, sir, is the fact that they don’t give me, as a prosecutor, the discretion to say what I should or should not put in.
Abe Fortas: I understand that but, on the other hand, the question is whether that statute should -- has a different implication with respect to a written confession.
Preston H. Hufft: No, sir, it --
Abe Fortas: Or -- and, with respect to what the policeman says now. Would you take the position that everything, everything that the defendant told the police officer in Tucson is admi-- not only admissible, but has to be received in evidence?
Preston H. Hufft: Correct, sir, it’s part of --
Abe Fortas: Because everything he said is part of the confession, whether it properly relates to this crime or not.
Preston H. Hufft: Correct, sir, that’s what the statute says and that’s the way --
Abe Fortas: Well that’s impossible and, I suppose, that it would be impossible for the police officer to do that and maybe if they taped every word he said, the defendant said, they could do it.
Preston H. Hufft: Of course, if Your Honor please, he doesn’t have to say every word, but of course he has to give the -- a substance under the jurisprudence but he cannot leave out items such as that that he figures to be irrelevant under the state statute.
William J. Brennan, Jr.: No, but after the statute, what it says is it has to be a confession, an admission, or a declaration, and it has to be something that the prosecutor intends to use. And, I gather, the Supreme Court -- your Supreme Court have said here, in any event, that this was, I don’t know whether it’s a confession, admission, or a declaration but in any event, it’s obtained within the four corners of the statute.
Preston H. Hufft: Correct, sir.
William J. Brennan, Jr.: That’s what your Court has said.
Preston H. Hufft: Yes, sir.
William J. Brennan, Jr.: I suppose we’re concluded by that so far as this testimony of the Tucson officer is concerned, aren’t we? That's your -- The statute covers it, right?
Preston H. Hufft: Yes, sir.
Potter Stewart: Can I ask you a question. Did your State Court consider this under the common law rule about it?
Preston H. Hufft: Our State Court, if Your Honor please, considered it under Title 15. This statute --
Potter Stewart: What does it say?
Preston H. Hufft: And also, we have two other statutes which we’ve mentioned with respect to the admissibility of previous offenses when they tend to show motive, mode of operation, guilty, knowledge, and so forth and so on --
Potter Stewart: Did they--
Preston H. Hufft: Within the traditional cases that this Court has recognized.
Potter Stewart: But the Courts considered it at the last --
Preston H. Hufft: No, sir, the Trial Court ruled that it had to come in on the basis that it was part of the confession, and our State Supreme Court did not go. But we briefed both issues, but the State Supreme Court arrived at one issue and said “This is determinative,” and didn’t reach the other question. But, we’ve raised them both times. We argue both of them here on the very same basis. We -- quickly winding up when one -- also, the question of Spencer, we say, does not give any hope or encouragement with respect to the peti -- position of the defendant. Spencer would not entitle him to set the statute aside. He may have a different opinion as to what it should be, but the statute says that is what the -- we should do. It’s a rule of evidence in the State of Louisiana ans on the books for many, many years --
Earl Warren: Finish your sentence.
Preston H. Hufft: It’s been on the books for many, many years. We think it’s an essential part. It is not violative of the Fourteenth Amendment. He relies on the gentle fairness approach, such as they did in Spencer. This is not a Berget case where he has a denial of a specific federal right. There is no specific federal right involved here.
Earl Warren: We’ll recess now, Mr. Hufft.
Preston H. Hufft: Thank you, sir. That the Spencer case applicable in this instance would uphold this statute of the State of Louisiana, and I refer to this particular language in the statute that it would be wholly unjustified, encroached by this Court upon the constitutional powers of the states to promulgate their own rules of evidence to try their own state created crimes in their own State Courts. I also point out that the Berget case was -- this Court decided after the Spencer decision, I take no issue with that case either. The Berget case found that there was a specific federal constitutional right involved. The question of this defendant had been denied the right of counsel in one of his state prosecutions, and that this Court wasn’t going to allow error to be piled on top of an error and allow him to be denied it at a second time and, rightfully so, in the Berget case. We also take the position that even under the minority decision in the Spencer case, that this evidence which we introduced meets the test that this Court was talking about in all of its decisions. This information was essential. This -- under the state law in which this man was being prosecuted, he was charged with murder. Under our State Code, murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. In furtherance of carrying out our responsibility to prove intent as a necessary ingredient of the crime of murder, this evidence was inadmissible. I’ve cited several state cases directly on point in which they deal with the question that when intent is a necessary ingredient of the crime charged, it’s something which goes to the determination of the issue directly before the jury with respect to intent, that it is admissible in a long list of cases in our jurisprudence, and those cases have also been recognized by this Court that they are exceptions to that general rule. We say we fall under it, number one, because it’s our statute. It would not be within the providence of this Court to rewrite that statute under Spencer. Secondly, even if this Court were to say that that statute would be unconstitutional, we say that this evidence is admissible. On the other decisions of this Court and other State Court, on the basis that we were showing motive and intent, and when you look at the brief -- in my brief, if Your Honors please, on page 18, I’ve laid side-by-side the facts in this case in which we charge this man with murder and the facts of the previous incident. He’s come across the river, the same area of town, picks up a girl in the same area, has drinks with her, commits certain acts, one winds up where she complains, he gets a gun and goes out with intent to kill her because she complained of his conduct. And, we say the second girl wasn’t quite so lucky. She was killed before she could complain. Now, we say this draws a definite parallel and this is essential information. It was information that the state was required to put in, in order to prove intent and we carried our responsibility with respect thereto.
Potter Stewart: Your view is under the (Inaudible).
Preston H. Hufft: Yes, sir, that’s our position.
Potter Stewart: Let me ask you this. Your State Courts, taking the other route and a whole other statute and had it turned. Was that statute construed in the same fashion (Inaudible).
Preston H. Hufft: Yes, sir. The statute which says the entire confession must be used in its entirety.
Potter Stewart: Yes?
Preston H. Hufft: Yes, sir. Long line of decisions.
Potter Stewart: Do you think any other than involuntary statements?
Preston H. Hufft: Yes, it’s a general rule with respect to any --
Potter Stewart: All statutes say that?
Preston H. Hufft: Right, sir.
Potter Stewart: It’s construed in this case then that before a county can issue the instruction of that statute, they must consider, in general, the statute with respect to other involuntary statements saying that he wasn’t --
Preston H. Hufft: Yes, if it’s part of the confession, it has to be introduced.
Potter Stewart: You said those other earlier cases in order to dissent from the --
Preston H. Hufft: Well, yes, sir. The -- They start up with Mani case. In fact, the evidence case which was decided by our State Supreme Court just prior to this case, came up to this Court and which were refused, involving the very same principles under 444 and 446 on the intent and also under the use of this statute. Like I said, I didn’t brief the question about whether the case should be here. I didn’t believe it should be, but I just took the position that you had granted it and I was --
Byron R. White: Didn’t you reach that?
Preston H. Hufft: No, sir. It did not. I --
Byron R. White: It didn’t say touch.
Preston H. Hufft: My brief says --
Byron R. White: The constitution is a little late. Do you think that’s true?
Preston H. Hufft: No, sir. What I’m doing, sir, is really answering that which he has inserted in his application in which the application was granted.
Byron R. White: Do you object to our deciding this case under jurisdiction?
Preston H. Hufft: No, sir. I don’t believe it has jurisdiction, sir.
Byron R. White: So, you do object to our deciding this case at all on jurisdiction.
Preston H. Hufft: Yes, sir. I don’t believe it has jurisdiction. I didn’t then and I didn’t brief it on the basis that the writs will be in the --
Byron R. White: Because we’ve (Inaudible).
Preston H. Hufft: Yes, sir, and I just then -- in my brief, I’ve concerned myself with answering the Georgia’s -- and I say, even if you had jurisdiction, I say we answer all of his charges.I’ll make just one quick closing comment, if Your Honors please. Isthat there was some reference --
Earl Warren: How about your brief in opposition in the application for the writ of certiorari?
Preston H. Hufft: I use the same reasoning with perspective that as I did with the other ones, with my brief in this, sir.
Earl Warren: You can, in that situation, say that you didn’t make the cut being a primary matter and not -- Well.
Earl Warren: Before we granted it.
Preston H. Hufft: I say my reasoning then was the same as in that instance. I presumed on the basis when you -- when I was asked or a brief on response to the points, raised by him that the other question was already resolved. Now that’s my -- in that respect.
Earl Warren: How would you think that was resolved by this if all we have was this petition and they’re waiting for you to defy your opposition?
Preston H. Hufft: Well, all I say is that’s the conclusion I reached, and that’s why it’s not mentioned in there, if Your Honor please. I make this argument when we mentioned Witherspoon before. I mentioned it here because some question was raised as to whether or not a state had shifted its position in a question raised about fairness. I know the -- in the Berget place, we were -- the Court says we are not be concerned with the question of good faith, but I wanted to bring up one thing with Witherspoon. We have met the requirements of Witherspoon in this very case which was long before this Court decided Witherspoon. We have a statute similar to Illinois and Louisiana. We had a man who said he was opposed to capital punishment. We questioned the man until he finally reached the point when he said “Well, I couldn’t, under any circumstances,” and we allowed that man go and we did not charge him, and such a juror did serve in this case.
Potter Stewart: Of course, that’s not a question, in that --
Preston H. Hufft: No, sir.
Potter Stewart: A is before us or B if it were, if they were before us, then we could possibly decide without having the warranty --
Preston H. Hufft: Correct sir. I understand. I mentioned that only in question with basis of good faith as the situation goes. I have no further questions. Thank you, Your Honors.
Earl Warren: Mr. Greenberg.
Nathan Greenberg: May it please the Court. I merely would like to call two matters to the Court’s attention. At page 4 and 5 of the appendix, we set forth the chronology of events and, in the bottom of page 4, it indicates that the case was concluded Friday, May 6, that the defendant -- of 1966, the defendant was sentenced to death on July 19, 1966. And, on October 6, 1966, the per curiam on the Bill of Exceptions were signed by the Trial Court. Now, under Louisiana law, the rule which was in existence at that time was that, upon signing of the Bill of Exceptions, a Trial Court is divested of jurisdiction and any Bills filed thereafter and presented to the judge for his signature in per curiam come too late and cannot be considered on appeal. And, this is the decision of State versus Harrell, 228 Louisiana 434, 82 Southern 2nd 701. Now --
Byron R. White: Is it true they even recommended that there’d be admissions to get into a law?
Nathan Greenberg: Yes, sir, absolutely. Now, the law has since been changed in Louisiana. We now have a new Code of Criminal Procedure. However, this case was tried prior to the effective date of the Code of Criminal Procedure. Spencer versus the State of Texas, which focused attention on the issue raised herein, was decided -- or it was rather argued on October 17 and 8, 1966 and was decided January 23, 1967 which, of course, was subsequent to the taking of the appeal, the filing of the Bills of Exceptions, and the rendition of the per curiam by the Trial Court. And, we also wish to call Your Honors’ attention to the decision of O’Conner versus Ohio decided by Your Honors in 1966, 87 Supreme Court 252, 385 US 92, in which case Your Honors actually took jurisdiction of a matter which have not been raised in the Trial Court and held that, since the defendant was not in the position to literally foresee the action which Your Honors were going to take in this particular case --
Potter Stewart: That’s got something to do with the comment rule.
Nathan Greenberg: Yes, sir.
Potter Stewart: You had a comment rule on the defendant’s failure to testify which is --
Nathan Greenberg: Yes, and we respect--
Potter Stewart: Really the Spencer case, it’s more of the Spencer dissent that you rely on, isn’t it?
Nathan Greenberg: Yes, sir. We actually pinpoint the issue in the Spencer dissent which, literally, focused its attention on it. We respectfully urge favorable consideration of our application. Thank you, Your Honors.