Earl Warren: No. 65, Robert D. Watkins, appellant versus J.F. Conway. Mr. Vance?
William G. Vance: Mr. Chief Justice, and may it please the Court. The central issue to be resolved in this case is the constitutionality of Georgia Code Section 3-701. This statute provides for the enforcement of statute of limitations against foreign judgments, that is out-of-state judgments, for five years. In other words, after five years you no longer have a right to enforce an out-of-state judgment in the State of Georgia. At the same time, under Georgia law, a domestic judgment is enforceable and remains enforceable for a period of ten years. We submit this discrimination in favor of domestic judgments and against out-of-state judgments is unconstitutional and violates both the Full Faith and Credit Clause and the Equal Protection Clause of the United States Constitution. Now, we do not argue the Georgia cannot enact any statute of limitations against the enforcement of foreign judgments. We are only arguing that it cannot enact a statute of limitations which discriminates in favor of its own judgments and against out-of-state judgments. This is our sole argument. Now, with respect to the Full Faith and Credit Clause, this Court has said in Milwaukee --
Speaker: Your question with respect to the Georgia judgment [Inaudible].
William G. Vance: Yes, sir.
Speaker: [Inaudible]
William G. Vance: No sir the way it works is for seven years, the holder of a Georgia judgment can just sit on his hands and he didn't levy on that time. If he does levy, then the judgment is renewed for another seven-year period, but assuming that he does not do anything with this judgment for seven years then he has an additional three-year period after that within which to bring a suit on that judgment to revive it. So, he loses all his rights to that judgment after 10 years. He still has an enforceable right for a period of 10 years although he loses his right to levy after seven.
Speaker: In case of the foreign judgment [Inaudible]
William G. Vance: He has no right to levy.
Speaker: [Inaudible]
William G. Vance: He has to sue, but the critical question is how long can the holder of a judgment sit on his hands before he loses his rights. That's a critical question.
Speaker: How long is the statute on the books?
William G. Vance: It's been on the book since prior to 1836, Your Honor, and I'm not sure when it was enacted, but it's been on the books for very long time. With respect to the Full Faith and Credit Clauses, Court has said in Milwaukee County case, the very purpose of the Full Faith and Credit Clause was to alter the status of the several states as independent foreign sovereignties, each predate no obligations in credit – created under the laws by the judicial proceedings of the others and to make them integral parts of a single nation through out which a remedy upon a just obligation may be demanded as right respective of the state of origin. We submit that if the statute is in question is allowed to be enforced in favor of domestic judgments then no longer do we have a central nation but we have a nation of individual sovereignties with respect to this Full Faith and Credit Clause.
Abe Fortas: This one is a procedure in Georgia on foreign judgments?
William G. Vance: You have to bring suit on the foreign judgment to -- in effect turn it into a Georgia judgment. After you serve the defendant, it turns it into a Georgia judgment and I'd like to point out that if you can keep a judgment enforced indefinitely once you have a Georgia judgment, if you levy on it within the seven-year period, you can keep it enforced for indefinite period of time for a thousand years. A foreign judgment by attorney -- by bringing suit within the five-year period, you could keep it enforced indefinitely. The only question is: how long do you have before you loss your rights; you loss your rights on a foreign judgment after five years if you do nothing at all. On a Georgia judgment, if you do nothing at all, you loss it after ten years.
Abe Fortas: What's the Georgia law with respect to the nature of the proceeding in which, as you put it, convert the foreign judgment into a Georgia judgment, what sort of issues can be raised?
William G. Vance: Well, it's just a common-law action which you file suit on the Florida judgment in this case. The only issues that can be raised are lack of jurisdiction or any defense that would have been good to Florida to that judgment, they would all return that judgment after there had been a judgment. Those are the only issues that could be raised at that time.
Abe Fortas: Does the fact that you have that proceeding in relation to levying a permanent judgment supply any rationale or adequate basis for the distinction in terms of time?
William G. Vance: No, sir. We submit that it does not at all. We submit that you have it – the same thing you have a foreign -- you have a judgment, one of them is foreign and one of this domestic, we submit that it is rational for Georgia to require more astringent procedural requirements with relation to the enforcement of the foreign judgment because it's not on record in Georgia; there has to be some way of proving it's in Georgia. And so, it's rationale for them to require these additional requirements in effect requiring us to file suit on the judgment, but just because they can distinguish in this manner, it doesn't mean they can go further and effect more severe limitations as to time against us. That's our contention.
Speaker: In this statute [Inaudible]
William G. Vance: There are quite a few states who'd have this type of set up where they allow different period of limitation, Your Honor.
Speaker: [Inaudible]
William G. Vance: Yes, sir, very common, very common.
Speaker: [Inaudible]
William G. Vance: No, sir. I have not compiled it on the reason that I'm aware because there's a quite a few state Supreme Court judgments upholding the constitutionality of this provision under the Full Faith and Credit Clause but in none of these was a question of discrimination presented. All these cases just can any statute of limitations be applied and none of them brought up the question of whether discriminatory provision as in this case. But they are discriminatory since nobody have ever brought one of them before as I can determine. We submit that the cases of Hughes v. Fetter and Wells v. Simonds Abrasive decided in 1951 and 1953 read together, in fact demand a finding in this case that Full Faith and Credit has been violated. In Hughes, the plaintiff brought suit in Wisconsin on a wrongful death action for an injury or death occurring in Illinois. The Wisconsin Courts construed that wrongful death statute as applying only to death occurring in Wisconsin and also creating a policy against the enforcement of out-of-state wrongful death acts. They therefore refused to enforce the Illinois wrongful death act although all the parties were Wisconsin residents involved. This Court reversed the Wisconsin Supreme Court and stated that Full Faith and Credit required Wisconsin to enforce the Illinois wrongful death action. They found that there was no strong policy against wrongful death as evidenced by the fact that they allowed an action in Wisconsin and for that reason, they required them to enforce the Wrongful Death Act to the Illinois. Now, the reasoning of Hughes weren't too clear, at least to me, until the Wells case was decided subsequently. In that case, you had a situation where Alabama plaintiff was bringing a wrongful death action in Pennsylvania approximately one and a half years after the death of the decedent. Pennsylvania had one year statute of limitations whereas the Alabama wrongful death statute where the accident occurred out a two-year proviso in there. The plaintiff claimed that the – under Hughes, the two-year proviso must go with the statute and must be enforced in Pennsylvania. This Court refused to follow Hughes to that extent because of the fact they stated that Pennsylvania applied her one-year statute of limitations both to domestic causes of action and to foreign causes of action. I'd like to read to you this language from Wells because, I think, it's most significant language with respect to this case. The Court says here, “A decision in Hughes v. Fetter does not call for a change in the well-established rule that the forum state is permitted to apply its own period of limitation”. The crucial factor in that case was that the foreign laid an uneven hand on causes of action arising within and without the forum state. Causes of action arising in sister states were discriminated against. Here, Pennsylvania applies a one-year limitation to all wrongful death actions wherever they may arise. In other words, if Pennsylvania had a one-year limitation for out-of-state causes of action and a two-year limitation for its own, then clearly, in Wells by would not have been allowed to apply that statute of limitations, but here, they applied a one-year statute to all causes of action. We submit that Georgia has discriminated as was contemplated in Wells. They have applied a five-year statute against foreign judgment on a ten-year statute against their own. Now, Hughes and Wells both dealt that with ordinary causes of action and I don't think it's questioned that the enforcement of Full Faith and Credit Clause has been much more stringent with respect to judgments rather than causes of action. It's been much more astringent provisions and cases were much stronger with respect to judgments and a rightly so. So, for this reason, if this rule applied in Hughes and Wells to ordinary causes of action, it certainly would apply to judgments because judgments are given so much greater protection under the Full Faith and Credit Clause. Now, I would like to point out that this very same statute has been before this Court in 1836 in M'Elmoyle v. Cohen. In that case, the Supreme Court held that the statute did not violate Full Faith and Credit but in that case, the question of discrimination was not presented to the Court. Now, all that was held in that case, we submit that was that a reasonable statute of limitations can be applied to the foreign judgment. This case went off on the procedural -- the fact that the Court said the procedural limitations could be placed on the enforcement of judgments whereas the merits of a judgment could not be attacked. Later cases have subsequently restricted this procedural rule to affect to able to say that only procedural limitations can only be placed on the enforcement of foreign judgments if they do not discriminate, I think, the fact that this procedural rule has been so limited as brought out by the Kenney case where a statute of limit -- there was a statute construed as depriving the forum state of jurisdiction of a right to enforce the judgment from another state with respect to a wrongful death action. The Supreme Court held in that case that the forum state could not get around its constitutional obligation by a mere device of withdrawing jurisdiction. And in the Hughes case, it was once again announced that this device could not be used. In Hughes, it was stated, it's well settled, that this Wisconsin cannot escape its constitutional obligations by the simple device of removing jurisdiction from Courts otherwise, competence by Court. Hughes, of course meant that what courts otherwise dealt with this type of cause of action, they would have to deal with it, with respect to out-of-state causes of action as well as in-state causes of action. In the Wells case, M'Elmoyle was cited. It was cited for the proposition that the state may apply its own statute of limitations. But Wells, of course, went on to say that states may not discriminate with respect to statute of limitations. So that affectively limited M'Elmoyle in that case.
Speaker: [Inaudible]
William G. Vance: Oh! No, sir, I would not question that at all. I don't have any complaint with that and I think that would be perfectly valid.
Speaker: Your argument really is [Inaudible]
William G. Vance: Well, I think on the Hughes and Wells, we certainly have Full Faith and Credit justification for following, but we certainly think that Equal Protection applies just as well. We think both of these doctrines would apply. But if you find that Equal Protection as in viewed in Full Faith and Credit apply now. But I think, Full Faith and Credit has definite Equal Protection concepts at least under the Hughes and the Wells case. If you read those two cases, it's been in Full Faith and Credit Clauses which they were expressly decided. We do, however, have definite equal protection argument and we think that both -- that's really the same argument as far as the discrimination point but we think both clauses apply, that's basically -- With respect to the Equal Protection clause, we believe that there has been a purposeful and systematic discrimination in this case against the foreign judgments and in favor of domestic judgments. To justify this classification, there must be some -- the class discriminated against must be the subject of a classification based upon reasonable differences between the favored and the disfavored classes. The only difference here is we have a foreign judgment rather than a domestic judgment. Now, there are certain times that you can discriminate because something is foreign rather than domestic. For instance, the filing of court costs, many times a foreign plaintiff is required to file additional court costs because he is a foreign plaintiff. Now this has a rationale reason or rationale reason can be assigned for it in that if he ultimately has to pay the court costs they don't have to go out the jurisdiction to collect them which would be extremely difficult. Here, there's no rationale reason for applying a longer period against foreign judgment over or requiring shorter period against foreign judgments than domestic judgments. No reason can be assigned. We think that the cases clearly show, a few cases on this point that discrimination based merely on the fact that something occurs on it or is related to an out-of-state as opposed an in-state where there's no rational reason for this discrimination is invalid or –
Abe Fortas: I suppose that is really the question whether there is a reason for the distinction?
William G. Vance: Well, under the Equal Protection clause, yes, sir that that would be a question whether there is a reason and we can find no reason.
Abe Fortas: Is there -- does Georgia have any different statute of limitations for the enforcement of domestic judgments or is that just one overall that applies to all kinds of judgments?
William G. Vance: As I was saying, Your Honor, there's a five-year statute limitations against out-of-state judgments. Now with domestic judgments, the rule is that once you acquire the judgment –
Abe Fortas: I understand that but does it apply to all judgments and there's no special (voice overlap).
William G. Vance: That's right. That applies to all Georgia domestic judgments.
Abe Fortas: I see. There are no special statutes differentiating among types of judgments?
William G. Vance: That's correct.
Abe Fortas: Thank you.
Speaker: [Inaudible]
William G. Vance: Well, Your Honor, of course, I contend that it would but the reason --
Speaker: [Inaudible]
William G. Vance: The reason, I think, that it would be irrational would be because of the fact – I think you would have to interrelate with Full Faith and Credit Clause with the Equal Protection Clause with respect to that question, but the Full Faith and Credit Clause provides for what is an adequate record in the act of Congress under the Full Faith Credit Clause. And, it doesn't seem to me that they could say, for purposes of the Equal Protection that this was not an adequate record if you don't comply with the requirements of the Full Faith and Credit Clause for use this as a basis for distinction under the Equal Protection. That would be my answer to that. I just don't think that they could use that as a basis for distinction when you have complied with the requirements listed by Congress under the --
Speaker: [Inaudible]
William G. Vance: Well, I think the reason as far as the Rose it's pretty well revealed by the M'Elmoyle case is that first, they didn't have any statute of limitations against foreign judgments and of course domestic judgments lapsed after 20 years with the presumption of payment. Then they decided they had to something about foreign judgment so they enacted a separate statute of limitations with respect to them. It didn't necessarily relate to two and, of course, this was before the Equal Protection clause and that was even inexistent as far as that was concerned. The concepts of Equal Protection weren't really enunciated at the time of the enactment of these statutes. There's just one case under the Equal Protection Clause that I would like to discuss and that's the Power Manufacturing case and in that case, a suit was brought against a foreign corporation which had one office in Arkansas, but suit was brought in another county other than the office of the county in which it had its one office. Now, under the Arkansas venue statutes, foreign corporations could be sued in any county whereas domestic corporations could only be sued on the counties in which they did business. The defendant in that case objected to that statute on the grounds that it violated the equal protection. This Court held that the statute did violate the Equal Protection because there was no reasonable basis for distinguishing between the foreign and the domestic corporation in that situation. The reason behind the statue was obvious. It was just to sue in the county of the residents, was just to allow -- was purposes of considerations or convenience and economy. There was no reason bear for distinguishing between the foreign and the domestic corporation. And we submit that there's no real reason here for distinguishing between the foreign and the domestic corporation.
Abe Fortas: You don't make any contention that a five-year period of limitations standing alone is unreasonable?
William G. Vance: No, sir. You have to look at it in the light of the problem and the domestic enforcement statutes. Now we feel like we would be banned by M'Elmoyle which is a 1936 case if that was the case and we don't feel that has been overruled by later decisions or any implication that it would be overruled.
Speaker: [Inaudible]
William G. Vance: Sir?
Speaker: [Inaudible]
William G. Vance: I think its pertinent because it deals the same statute but we don't believe the same question was brought up in M'Elmoyle that would bring it up here.
Speaker: [Inaudible]
William G. Vance: Yes, sir.
Speaker: [Inaudible]
William G. Vance: Well, it's based on the Full Faith and Credit Clause and the Equal Protection clause. We submit that M'Elmoyle did not --
Speaker: [Inaudible]
William G. Vance: I don't believe so, Your Honor, because I don't think it really dealt with the issue of discrimination although it recognize--
William J. Brennan, Jr.: [Inaudible]
William G. Vance: Your Honor, I realize that language is in there but I believe they will face with the question of whether any statute of limitations could be enforced against foreign judgments. Now, in order to answer this question, yes, they said: “Well, the states can put a limitation on their own judgments”.
William J. Brennan, Jr.: May a state do you think, say you can't recover from a foreign judgment and the state shall reduce it to a foreign judgment?
William G. Vance: SYes, sir, I think so.
William J. Brennan, Jr.: If they may go that far, why then they (Voice overlap) can't fix the time?
William G. Vance: The state -- let me put it this way. The state can put procedural limitations on the enforcement of foreign judgments as long as they do not discriminate.
William J. Brennan, Jr.: Does my question -- my question was, you have a Florida judgment. May Georgia say, “That will not be enforced”. May they say it in face of the Full Faith and Credit Clause, that judgment will not be enforced in Georgia until it's been reduced to a Georgia judgment.
William G. Vance: Yes, sir because I don't believe these affects the substance of the right. It's just like the area rule of dealing with statute of limitations. That really was a substantive measure. They are just requiring a little bit more astringent procedure. They are really not denied any of their rights. They just have to go through a little bit longer procedure but they still (voice overlap) have not lost any right.
William J. Brennan, Jr.: If a state may do that in the face of the Full Faith and Credit Clause, I don't understand why they can't say, and you must do it within two years or three years or five years at the time that you get a foreign judgment?
William G. Vance: It's my feeling Your Honor that in one case you are denying substantive rights because five versus ten and in the other you are saying that you have to go through a little bit different procedure and it may be a little bit more difficult but you can do that. It's not -- this is not something that is impossible for you to do.
William J. Brennan, Jr.: Well, do I understand your Georgia system is this -- it's not the M'Elmoyle involves this very statute, didn't it?
William G. Vance: Yes, sir.
William J. Brennan, Jr.: In fact, the statute will be very old one; it was here 1839. Do I understand the way your system works, if one gets a Georgia judgment, if he levies within seven years, then the judgment survives?
William G. Vance: That's correct.
William J. Brennan, Jr.: If he fails within seven years to levy, then he must provided by what, an original suit on the Georgia judgment within the remaining three years?
William G. Vance: That's correct, sir, just like the suit on the foreign judgment at that point. It would be the same type of suit.
William J. Brennan, Jr.: And then the case of a foreign judgment, he has to bring this action on that judgment within five years then he gets Georgia judgment?
William G. Vance: That's correct.
William J. Brennan, Jr.: To which then I guess the same things attaches. In seven years, he must do it and if he doesn't then within three years he has to start another suit, is that it?
William G. Vance: That's correct. As I pointed out, you can keep alive the judgment indefinitely by taking certain action. May be one of them, can or, Your Honor, be able to keep alive indefinitely. The only question is this, how long can you sit on your hands before you loss our rights to the enforcement of the judgment and that's basically the question.
Speaker: If you look at the period now for domestic judgment to bring [Inaudible]
William G. Vance: Yes, sir. That' correct. If you only –
Speaker: [Inaudible]
William G. Vance: If you only look at that period, but the question --
Speaker: [Inaudible]
William G. Vance: Yes, sir, I think it is because the foreign judgment is not of record in the State of Georgia. There has to be some method of making it up in the record of Georgia. Now with Federal judgments, they will just allow you to file it on the record, but with out-of-state judgments, you have to come in and file suit. I don't think it's unreasonable to require the out of state judgments to do this. It doesn't really deny the substantive right whereas if I wait to seven years, I've lost my substantive right to enforce that judgment with -- after four years, I can still enforce my out-of-state judgment even though I have to go a little bit more stringent procedure to do it, if it is an out-of-state judgment. Now, on domestic judgment, I had really lost anything substantive wheras I have with foregin judgments under the statute of limitations discriminations.
Earl Warren: Mr. McFarland?
Martin McFarland: Mr. Chief Justice and may it please the Court. In respect of this case, the facts are quite brief and I would like to allude to the facts briefly and that is to say this. Prior to 1952, Conway, the appellee, operated a trucking business in Florida. One of his agents had a wreck. In 1952, he was sued; a verdict was obtained in 1952 on the personsla injuries. That verdict was allowed to stand until October 1955. There was no judgment entered on the verdict for some three years. I say that that is sadly indolence on the appellant here. Then, they waited another period from 1955 until 1960, more than five years before they proceeded to bring suit on the Florida judgment. That is some eight years, I would say, of indolence, but nevertheless, they didn't bring their suit. And in answer to Mr. Justice Fortas' question, “What is the procedure”? This suit consisted of one page, a one-page petition with procex, merely alleging the parties, that Conway was a resident of Georgia, that he had obtained the judgment in Florida for X dollars, wherefore and prayed for of the Georgia judgment. They waited five years, more than five years to do this, but they did it. At that time, we then, by virtue of this code Section 3-701 which is now the question, we filed a plea of statute of limitations as provided by this section. Motion for summary judgment was brought. The superior court of Fulton County, Georgia granted the motion for summary judgment. The appellant appealed it to the Supreme Court of Georgia. The Supreme Court of Georgia upheld the constitutionality of our statute and hence, the appellant is here. I would like to say this briefly that is, as far as the U.S. cases are concerned in Beacon versus Harwood, 20 Harwood page 22, Sherman versus Cutsley in Illinois, Make versus Meek, Iowa, Talyor versus Joe in Louisiana, Little versus McVeigh, New Jersey and Pear versus Gibb, South Carolina, Praia versus Moore from Texas. This principle of law was held in each of those cases and I have the page citations cited in my brief. “Full and Faith Credit to be given judgments of other states is not voilated by reasonable period of limitation upon the bringing of said suits”. Then of course, I consider these landmark cases, the Great Western Telegraph versus Purdy in 162 U.S. page 329, Metcalf versus City of Watertown, 153 U.S. of 671. As I cited in my brief, it is well-established that a statute limiting the time within which an action may be brought on a judgment of the court of a sister state, does not voilate the Full Faith and Credit Clause of the federal constitution. So we have those recent holdings as a guideline. Then, of course, we cite in our brief additional cases. For instance, Randoff versus King, a 104 federal cases 11560 and various other cases, including a case from Tennessee which is (Inaudible). And (Inaudible) actually antedated the McElmoyle versus Cohen, 38 US, page 312 and there this principle of law was adhered to as I set forth in the brief. The contention that the statute of limitations as to a suit on a foreign judgment violated the Full Faith and Credit Clause of the federal constitution has been expressly overruled. So, we have a number of the authoritiries that our definite guidelines so far as the issue raised in his question no. 1 as cited in his brief.
William J. Brennan, Jr.: Mr. McFarland, do you know whether the 10-year statute was on the books in Georgia at the time M'Elmoyle was decided in 1839?
Martin McFarland: Mr. Justice Brennan, I can't positively say but I would -- my best judgment leads me to believe that it is tremendously old statute.
William J. Brennan, Jr.: Just like the five-year old?
Martin McFarland: Yes, just like the five years. Now, then we come to this juncture of the case. Certainly, the forum state can apply its own statute of limitations as to a foreign judgment. Now, in this M'Elmoyle case versus Cohen, the Court in making this holding based its reasoning that the statute of limitations was a plea to the remedy. It was not a plea to the merits. It is a procedural proposition and consequently, would bar the cause of action. Now, my brother, he cites the Wells cases and the Simons cases, but that is an entirely different proposition and I so argued on my brief. He's talking about there about a case involving the merits as to whether or not they would have the right to bring a tort action. Here, this is entirely different. We're talking about a procedural matter, a question going to the remedy not merits. Now, I think that so far as the holdings of this court, the holdings of the many cases throughout the several states that has the effect of the fact that it is not violated by the Full Faith and Credit, defer the fact that we do have the right as a state to impose a period of limitation upon foreign judgments as a class. There's no disfavouring there. It applies to all such foreign judgments, none excluding. Now, in getting into the question about the period of limitations, I have set forth in my brief and quote the exact code sections of our law respecting the statute of limitations so that there be no question about them. Insofar as domestic judgments are concerned, if we have a Georgia domestic judgment, the period of limitation is seven years period. Now, after that period of seven years, this judgment becomes dormant. I will further say that during this period, anytime within three years, the judgment holder can then bring a petition or writ of scire facias and in this three-year dormant period, may revive his dormant seven-year old judgment for an additional three-year period. Now, getting away from that proposition so far as the domestic judgment is concerned, let's take the Georgia judgment of seven years. If this holder of the judgment causes it to be levied and an entry of the sheriff made upon the Georgia judgment and placed upon the general execution docket, then that state of facts would revive the judgment for seven years without the necessity of bringing the writ of scire facias.
William J. Brennan, Jr.: In the scire facias, is that an administrative proceeding? It's not the original action, is it?
Martin McFarland: It is not an irrational proceeding, Mr. Justice Brennan --
William J. Brennan, Jr.: Is it an adverary proceeding?
Martin McFarland: Yes, it's an ancillary proceeding.
William J. Brennan, Jr.: No, is it an adversary proceeding?
Martin McFarland: Oh! Yes, sir. It is an adversary proceeding in this respect. It must be done by a petition in process and served upon the defendant in five days or the defendant in judgment.
William J. Brennan, Jr.: Well, what kind of defense from the defendant?
Martin McFarland: I would assume that technically it would be such defenses that would be only as to a judgment such as fraud in his procurement and things of those natures. Now, then so much for the periods of limitation our domestic judgments. Now, as to all foreign judgments, our statute provides a reasonable period of time: five years. I called to the Court's attention as I have cited in the brief the case of (Inaudible). This case arose from the state of Mississippi and this Court held that to be unconstitutional and the reason and justly so. The period of limitation on foreign judgments in the State of Mississippi is cited in the (Inaudible) case was merely three months. Certainly, it should have been declared unconstitutional because the time was certainly not reasonable. But we submit that the five-year period as to all such foreign judgments is certainly reasonable. Here, we have an indolent appellant that is wasted eight years and the only thing they do now is seek to attack our code section as being unconstitutional unquestionably as we are again our brief by reason of that indolence. So we say that here we have a question of procedure. Here we have a question of remedy and not a question of merits. So then, would it not be proper to ask the question insofar as this state statute is concerned? Is it reasonable in character? Is five years a reasonable time? We contend vigorously that it is. Take for instance this proposition. I cited in the motion to affirm the fact that in Florida from whence this judgment comes, Florida limitation period on domestic judgments is 20 years. Their period of limitation on foreign judgments is seven years. Now, even taken by their own state, Georgia from a presented standpoint is far more magnanimous in its period of time than Florida. That's five as compared to seven. So, we say this. We say that our code section of five years is reasonable. It certainly affords a period of time, a reasonable period of time in which the appellant to bring such a suit. We say this that the appellant in his brief has stated, surely you have the right to pass such a statute that has been no question raised – pointed out in my brother's brief wherein the statute of five years is unreasonable, no; that the state of Georgia has no right to pass such a statute. I might say in closing that these particular statutes are very common throughout the nation and justly so, so that a man may know where his plea stands so far as his rights are concerned and his responsibilities and in these numbers of states of the union in which I have cited wherein it is not violative of the Full Faith and Credit, we say that it is not discriminatory nor has the appellant pointed in any particular phase wherein it is discriminatory and we, therefore, ask this Honorable Court to declare this code section constitutional.
Earl Warren: Mr. Vance?
William G. Vance: I'd like to first point out, Your Honors, that all the cases cited by the appellee in his brief and in the argument do not involve cases where any discrimination was alleged. All they hold is that a statute of limitation may be enacted against foreign judgments. We do not question that proposition. We have no argument to that proposition. I would like to point out, I think there might have been a little confusion only as to that -- while this is an Equal Protection case, it is also Full Faith and Credit case and we think we have a very good Full Faith and Credit case here.
William J. Brennan, Jr.: Mr. M'Elmoyle I notice from your adversary brief that apparently, this 10-year statute was a section in the Act of 1823 CAB 498, is that be right?
Martin McFarland: Yes, Your Honor but under the M'Elmoyle case, I believe –
William J. Brennan, Jr.: But at the time M'Elmoyle was decided then, both the statutes were --
William G. Vance: Well, it's even worse than that as far as it goes. I think in M'Elmoyle, they said that there was a 20-year presumption against domestic judgments at that time. So it was 20 instead of ten (Voice overlap).
William J. Brennan, Jr.: -- that is presumption of payment?
William G. Vance: That's correct. That's what they discussed in this. So it did exist in the M'Elmoyle but I don't just believe that was an issue there. It was not raised. If you look at the argument --
William J. Brennan, Jr.: Well, obviously the Equal Protection question could not have been raised because Fourteenth Amendment didn't come on the books till 30 years later?
William G. Vance: That's correct, Your Honor, but even though this was recognized, if you look at the argument of counsel in the -- prior to the opinion it's clear that this point was not argued and that really was not considered in that context by the Court as being an argument to vitiate the statute. If you read –
William J. Brennan, Jr.: Well, of course, Metcalf folded extensively from M'Elmoyle and Metcalf was decided in this Court in 1893; that was after the Fourteenth Amendment. And certainly, if I read this opinion of Chief Justice Fuller accurately, he seems think well of what Justice Wayde in said M'Elmoyle --
William G. Vance: Well, Your Honor, if you read the Metcalf opinion, you will note that that was dealing with federal judgments (voice overlap) out-of-state judgment and the Court felt constrained to overrule a prior Wisconsin Supreme Court case interpreting its own statute so there would be no discrimination between the period of time for federal judgment as opposed to --
William J. Brennan, Jr.: Well, there was the federal judgment in Georgia versus a Georgia judgment, that's really what it was?
William G. Vance: Yes, sir. As federal versus domestic in that case and the supremacy clause was involved rather than the Full Faith and Credit Clause but I think the same considerations of policy were involved. And there, the Court went on to overrule a Wisconsin court's interpretation of its own statute in order not to rule the period of limitation unconstitutional. I'd like to point out that Professor Carrie, who is probably the expert on Full Faith and Credit probably the most renown authority has felt that Hughes v. Fetter and Wells v. Simonds Abrasive were really Equal Protection cases and should have been decided on the Equal Protection Clause rather than Full Faith and Credit Clause. Of course, Equal Protection was not raised in those two cases so it was not discussed by the case. But he felt that this case was proper rather than Full Faith and Credit cases and should -- by the same token if the same reasoning applies with respect to that statute.
Earl Warren: Very well.


Earl Warren: Number 49, United States, Petitioner, versus Virginia Electric and Power Company. Mr. Morton.
Perry W. Morton: Mr. Chief Justice, may it please the Court. This condemnation case at an earlier stage was here once before in your October 1955 term. An earlier judgment against the United States in favor of this respondent was then vacated by you and the case was remanded for further consideration in the light of the case of the United States versus Twin City Power Company that you had decided the week before. It was in the Twin City case that you held that when the United States builds a water project on a navigable stream and condemns riparian land for that purpose, any element of value arising from the availability of the land for water power purposes must be excluded in the fixing of compensation. But of course in Twin City, you held that after excluding water power value, enhancement of the land due to water's power site value, there would still be an obligation of the Government which we readily recognize in this case to pay for any other values which might be inherent in the fee type. Now, while I will summarize the facts of the present case in a moment, I wish to emphasize at the threshold certain very important factual differences which are these. In Twin City, the bulk of the land which the Government condemned in fee was held by Twin City in fee. But in the present case, the Government made a settlement fully satisfactory to the owner in fee simple and the respondent power company held only a flowage easement, an easement to plug related to the development of the water power of this navigable stream. And so it is that in the present case, the basic question in the Government's view is whether the Government is required to pay this power company respondent any compensation for the frustration of a flowage easement it owned once upon a time over land riparian to an interstate navigable stream.
Felix Frankfurter: When you say "once upon a time," did it have that interest --
Perry W. Morton: It had a piece of paper --
Felix Frankfurter: -- at the time of condem -- up to the time of condemnation?
Perry W. Morton: The paper was still on record Your Honor. I'll develop the refinements of that at -- a little later. We say that we do not have to pay any compensation where the only value such flowage easement could possibly have was directly dependent, necessarily dependent upon a permission which the Government has the constitutional power under the Commerce Clause to grant or withhold and which it had never granted. Now, the essential facts, beyond dispute as far as the issues before the Court at this time, are concerned are these, the Dan River is the principal tributary of the Roanoke River and is a navigable stream. In 1944, Congress authorized the construction of the Buggs Island reservoir now known on has the John H. Kerr Dam and Reservoir on the Roanoke River in Virginia and North Carolina as a multipurpose project for navigation, flood control, and the development of water power. That is the project involved in this case. You may be familiar with it from your 1953 consideration of the case of Chapman versus Federal Power Commission in which you approved the license issued by the Federal Power Commission to this very same respondent to construct the Roanoke rapid site, so far of this downstream of the eleven possible sites on the Roanoke Basin, whereas this is the Buggs Island project referred to in that case as the highest upstream and was of course built by the Government. Now, this congressional decision to build this project made in 1944 is just as immune from judiciary reexamination as was the same decision in Twin City which involved exactly the same authorizing act of the Congress. On the execution of the authority given by this Act, the Government required and condemned a flowage easement over considerable areas of land, the project extends for miles, which would be flooded behind this dam. This is in the very upper reaches of the reservoir area, which would be flooded behind this dam permanently or intermittently including 1840 acres of a 7400-acre tract, commonly known as the Falkland estate owned by a Mrs. Williams who is not a party to this controversy. This respondent power company, theretofore, owned easements which for the purpose of this argument at least, would have aggregately on their face permitted it to flood permanently for water power development purposes as against Mrs. Williams and her granddaughters, a total of 1540 acres of the same 1840 acres which the Government condemned its flowage easement of. Now, respondent's easements on this 1540 acres would allow flooding just to put two or three figures in your minds, up to contour elevation, 321 feet mean sea level whereas the easement which the Government acquired is to flood the Williams' land permanently or intermittently up to contour 330 feet mean sea level as required in the operation of the Government project as constructed. As a result of correspondence initiated by the attorney for Mrs. Williams, the fee owner more than two years prior to the commencement of this case, the Government accepted from Mrs. Williams an option for the purchase of a flowage easement over the entire 1840 acres previously mentioned for a consideration of $1 and other valuable considerations the receipt and sufficiency of which were thereby acknowledged. This preliminary correspondence shows that the landowner urged the Government to accept only a flowage easement instead of acquiring the entire fee simple title as it had in Twin City. Because the Falkland Estate and I might say it was the general policy to acquire the fee-simple title but we were urged to grant -- to take only a flowage easement because the Falkland Estate and now I want to pick out excerpts from the attorney's letter, that's the entire 7400 acres, had long "been devoted exclusively to conservation of wild life and is a well-known game preserve which would be badly cut up," said the attorney if the Government took the entire fee-simple title whereas leaving the fee-simple title in the property -- to the property in the landowners would he said, "Go a long way in alleviating the difficulty." Well, this option eventually exercised -- executed rather by the landowner and accepted by the Government reserved to the landowner "all such rights", and “privileges as may be used and enjoyed without interfering with the interest of the United States and was made subject only to" and I continue quote "such water flowage, riparian and other rights if any, which the Virginia Electric and Power Company has in or to or rather on is the word, the above described lands.” The option further contained an express provision that the Government might at its election, acquire the title to the rights described in the option agreement by condemnation instead of by deed and that in the event of condemnation, the landowner would accept the considerations explicit and implicit in the option arrangement as full compensation. Exercising this election, the Government instituted this condemnation case in 1952 and the record is specific at several points that the landowner has continuously disclaimed any interest whatsoever in any further compensation or consideration. And so the controversy here presented, is and always has been strictly between the Government and this power company. Now, the case was first tried in January, 1954 and a judgment was then entered for $61,600 in favor of the power company.
Felix Frankfurter: Would it interrupt your --
Perry W. Morton: Yes, sir.
Felix Frankfurter: -- course of your argument if I asked whether in any proceedings, between the United States and the owner of the condemned land, with the outstanding flowage interest of the respondents here, whatever that is that may have been deemed to be ever made its appearance in the process by which the imminent domain transaction is completed.
Perry W. Morton: The complaint simply describes and the declaration of taking to at the earliest part of the record. The nature of the estate which the Government wanted that is to flow permanently or intermittently and so on and so on and so on over certain described parcels which were set out in appendix to the complaint by a full legal description. And the -- the parties are then named as parties having an interest or a possible interest in the property. I would recall to you perhaps the 93-acre case, the Illinois Aircraft case about two years ago now in which you said of course that the mere jointer of a party, the mere bringing of a domain proceeding against a party is not necessarily a recognition of an interest that that party may have. This forum may be tested to determine the existence of such an interest.
Earl Warren: We'll recess now Mr. --


Earl Warren: Number 161, Arthur Culombe versus -- Petitioner, versus Connecticut. Mr. Goldfarb.
Alexander A. Goldfarb: Honorable Members of this Court, I am the special public defender appointed by the Superior Court of Hartford County one year after the trial of this case. Petitioner, Your Honors please, is under sentence of death for the crime of murder in the first-degree on two counts, committed in the course of a robbery. He seeks reversal of the judgement by a writ of certiorari to the Supreme Court of Errors of the State of Connecticut which affirmed the conviction. The petitioner is raising the issues in this case, involved the admission of three written confessions and one oral confession which were taken as follows, one on Wednesday, February 27th, five days after his apprehension and custody. Another, Sunday, taken March 3rd, nine days after his apprehension and three days after he was formally charged with murder and third, the third one taken on Monday, March 4, 10 days after his apprehension and four days after he was formally charged with murder. An oral confession was taken on Wednesday afternoon, February 27th, the day that he gave the first written confession, in the afternoon. He gave the oral confession in the afternoon and the written confession late that evening or in the early morning hours of Thursday, February 28th. We claim that these confessions, all of them, were coerced and involuntary and the latter two, namely the ones that were pro -- procured on Sunday and Monday were not only coerced and involuntary, but were procured in denial of counsel in violation of the Due Process Clause of the Fourteenth Amendment. The undisputed facts supporting these contentions are unequivocally and amply set forth in the record and are particularly outlined in our brief on a day-by-day analysis as stated in pages 4 through 17 of our brief. It should be noted and it is very noteworthy that when the question of voluntariness is an issue in a court in the State of Connecticut, it is incumbent upon the State to prove that the confession was not involuntary. In other words, the burden of proof is not upon the defendant to prove voluntariness, but upon the State to prove they were not involuntary. I think it is well to consider, in considering all of the elements of coercion in this case and this case is a classic one, if I have ever saw one, Members of this Court, that we are dealing here essentially with a mental defective, a man who has the mentality of a nine to a nine and a half year old child with an IQ of 60, with the history of being confined in two state mental institutions, the Bridgewater State Hospital and the Wrentham State Hospital of Massachusetts when he was 17, a man who has been classified as a moron when he was 33 at the time of this crime and classified as an imbecile when he was 17, when he was first confined in the Bridgewater -- Bridgewater State Hospital. A man whom the state psychiatrist conceded as a moron of a low grade or middle grade caliber and a man who, according to Bertram P.Ibelle, the clinical psychologist in this case, stated as follows. All testing is consistent and indicative that this is clearly a feeble-minded individual, whose adjustment, both personal and social, could at best be marginal. His performance is that of a middle grade moron and he can be properly labeled moderately defective. In addition to being settled with deficient mental equipment with which he must try to cope with life's problems. Mr. Culombe is also possessed of that character defect so frequently found in individuals of low intellectual caliber, namely he is enormously suggestible. Thus, lacking in the capacity for sufficient critical judgment, his manner of thinking, his pattern of living and his way of behaving can all be easily influenced by those persons closest to him. When the influences are benign, he gets along. When the opposite obtains, he is in trouble.
John M. Harlan II: Where was that testimony given before --
Alexander A. Goldfarb: This is -- this was given at the course of a trial by the clinical psychologist, Dr. Bertram P.Ibelle. A copy of this examination by Dr. Ibelle was made at a formal exhibit in this -- in this case, Your Honor --
John M. Harlan II: Was it before --
Alexander A. Goldfarb: -- and this --
John M. Harlan II: Was it --
Alexander A. Goldfarb: -- this Court may review this exhibit.
John M. Harlan II: Was it before the jury or before the judge --
Alexander A. Goldfarb: Yes. It was read to the jury.
John M. Harlan II: How?
Alexander A. Goldfarb: This is an exhibit and the jury reviewed this at the course of this trial. In addition to the fact that we are dealing here with a feeble-minded individual, Arthur Culombe is an illiterate. At the age of 16, he was still in the third grade. He was in the third grade for a period of six years in the special class. And he progressed no further than that. His mother stated in testimony in this case that he was mental according to her -- the -- the pediatrician or the baby doctor, he was mental from the very beginning and I -- I recall, if I may, her statement, "But he was a child, because he used to have these crying spells, he couldn't sleep, then when he got older, he would stand up in his crib and scream and pull his hair and would go in a tantrum and throw himself on his stomach in the crib and I would call the doctor in the night and the doctor told me, he was mental. He had a mental illness." And this is at page 1211 of the record, if Your Honor pleases -- if Your Honors please. In dealing here with a man of this type, we are now confronted with the various cause of conduct of the police in the handling of this case, which sets forth the situation of aggravated circumstance that reminds me of the Florida case, the Chambers versus Florida, the Fikes case, cases of lesser aggravated circumstance have been reversed by this Court. And we have set forth these facts, beginning at page 4 of our brief. First, Arthur Culombe was taken into custody, Saturday, February 23rd, at the State Police. He was taken for a ride by three policemen through the County of Hartford and Coventry and Rocky Hill and various places around Hartford for purposes of identification. After four or five hours of questioning in the car, he was returned to the State Police Barracks, State Police Headquarters. There, he was further questioned. Further, he was again taken back to his house where he was confronted with his wife and children. And then he was sent back into the private car of the police where the Sergeant Paige talked with the -- with his wife while her husband was waiting outside to be carried back to the police barracks. When he was returned to the police barracks that evening at 8 p.m., he was again questioned by -- by Lieutenant Rome, who was the chief protagonist, who was the leader of the -- of this group of mass relay questioners. Lieutenant Rome questioned him further and at 10 o'clock that evening -- evening, placed him under arrest without a warrant, under our felony statute.
Felix Frankfurter: Would it -- would it interfere with your own notion of developing this case, if you stated chronologically the periods during which he was questioned, in your point of view, unjustifiably, those who are present during such questioning and any other attendant condition, all incontestable evidence --
Alexander A. Goldfarb: Yes.
Felix Frankfurter: -- all, not in controversy, other conditions such as violence, if any, denial of food, if any, denial of rest, just -- just so that one can get it without -- in a way that your opponent would -- that your adversary would say, "Yes, I can't contradict if those are the facts."
Alexander A. Goldfarb: These -- the facts that I have recited are uncontradicted, Mr. Justice Frankfurter.
Felix Frankfurter: I'm not questioning, I'm just saying --
Alexander A. Goldfarb: I have said this --
Felix Frankfurter: -- you do in order one by one so that I can make a tally of the total and of the circumstances and the number of engaged and who they were.
Alexander A. Goldfarb: On Saturday, we have ascertained and this is a sketchy record, the record is not complete, if Your Honors please.
Felix Frankfurter: Meaning by that, what, if --
Alexander A. Goldfarb: The --
Felix Frankfurter: We haven't got forth --
Alexander A. Goldfarb: It isn't -- it isn't --
Felix Frankfurter: -- was it recorded or it wasn't recorded with?
Alexander A. Goldfarb: It was -- it isn't clear in the record as to the exact amounts of time, the precise number of hours that he was questioned. We can approximate it --
Felix Frankfurter: But the record turn -- but the record is a -- is an accurate transcription of what was -- what the place in the courtroom, is it not?
Alexander A. Goldfarb: Yes, it is.
Felix Frankfurter: What you say is -- what -- what appears in the record is subject to unclear inference.
Alexander A. Goldfarb: Yes, yes, Mr. Justice. On Saturday afternoon, they were questioned for -- he was questioned for two to three and a half hours by Officers Paige, Griffin and Moran and it was that time, they were going in the police car and they have a bottle of whiskey with them, which the police permitted the other suspect Taborsky and Mr. Culombe to drink from. (Voice Overlap)
Felix Frankfurter: When -- when you say it isn't clear, you mean one can't tell whether it's two hours or three hours or other one can tell it was two hours? (Voice Overlap) --
Alexander A. Goldfarb: One can't tell whether it's two or three hours, we could only infer.
Felix Frankfurter: Well, one can -- can one tell that it's true rather half (Inaudible)
Alexander A. Goldfarb: Oh, yes.
Felix Frankfurter: Alright.
Alexander A. Goldfarb: Oh, yes. There's no question about that because they were riding around in the car for a certain period of time --
Felix Frankfurter: Alright.
Alexander A. Goldfarb: -- whether or not, they were to -- were -- were questioning Culombe, the particular petitioner at this time, throughout that period, it cannot be ascertained but it may be reasonably inferred that he was questioned together with the co-suspect here, Mr. Taborsky.
William J. Brennan, Jr.: What do you say about the whiskey?
Alexander A. Goldfarb: There was a bottle of whiskey which Mr. Taborsky was permitted to have and co-suspect here. He brought it with him in the back of the car and the -- the three policemen permitted both Mr. Taborsky and the petitioner to share that bottle of whiskey while they were being questioned and taken about in that car during that afternoon.
John M. Harlan II: (Inaudible) they drink (Inaudible)
Alexander A. Goldfarb: I don't think the record is clear but I -- it maybe reasonably inferred that they drank the entire bottle.
Hugo L. Black: (Inaudible)
Alexander A. Goldfarb: I think it was a large bottle, quart size.
Potter Stewart: The policemen, of course, didn't furnish this too --
Alexander A. Goldfarb: No, it was --
Potter Stewart: Taborsky had it when he was frisked up.
Alexander A. Goldfarb: -- Taborsky had it with him and they did not remove it from his possession. They've permitted him to -- permitted both of the suspects to -- to imbibe the liquid.
Potter Stewart: Yes.
Tom C. Clark: (Inaudible)
Alexander A. Goldfarb: That was throughout a period of two to three and a half hours while they were going around in the car that afternoon in Rocky Hill and Coventry in the County of Hartford.
Tom C. Clark: (Inaudible)
Alexander A. Goldfarb: Pardon?
Tom C. Clark: (Inaudible)
Alexander A. Goldfarb: Yes. At -- they were later taken -- after Culombe was later taken to Headquarters where he was further questioned by Rome that evening after they returned from their trip in the county. He was questioned for a period of an hour and a half to two hours that evening by Lieutenant Rome. He was also questioned by Sergeant Paige, Rome's immediate assistant, over one hour that evening.
William J. Brennan, Jr.: In addition, you mean?
Alexander A. Goldfarb: In addition to these three and a half -- two to three and half hours of questioning in the afternoon. He was also questioned for a period of one to three hours by other police.
Tom C. Clark: When?
Alexander A. Goldfarb: That evening. They were not able to --
William J. Brennan, Jr.: (Voice Overlap) are these different time periods that evening or (Voice Overlap) --
Alexander A. Goldfarb: They're overlapping -- overlapping because the other co-suspect Taborsky was also questioned at the same time. And they were questioning him back and forth in different rooms, one officer would come out of one room, the -- and then come to Culombe and then check the other way.
William J. Brennan, Jr.: What was he saying?
Alexander A. Goldfarb: It was a cross relay system.
William J. Brennan, Jr.: What hour of that evening did the questioning of Culombe begin and what hour that evening did it start?
Alexander A. Goldfarb: Well, he was returned to Headquarters about 6 o'clock. They had -- he had dinner with the state policemen and they questioned him during that time, also during the dinner. And then he was returned to Headquarters and he was questioned intermittently throughout that evening until midnight when he finally went to bed.
William J. Brennan, Jr.: (Voice Overlap) --
Alexander A. Goldfarb: I'm trying to answer Mr. Justice Frankfurter's question in giving a precise detailed breakdown of the questioning. So far as we are concerned and we take this position that he was intermittently questioned from 2:30 that afternoon to 12 midnight for a period of approximately nine hours. The precise number of hours that each particular officer questioned them, we're not able to ascertain from the record. He was formally arrested according to Lieutenant Rome at 10 p.m. that evening without a warrant, although the state police log, which is the ordinary means by which we have an objective record of such an arrest, without a warrant, makes no mention of any arrest of Arthur Culombe or the co-suspect in this case. It is absolutely silent of any arrest of the petitioner in this case, so that we have no objective record, other than the statement of Lieutenant Rome, of the exact time of arrest or whether or not, in fact, Arthur Culombe was arrested in this case without a warrant.
Tom C. Clark: He's picked up at 2:30?
Alexander A. Goldfarb: 2:30 that afternoon.
Tom C. Clark: I could say that up to midnight.
Alexander A. Goldfarb: Until midnight. It -- intermittent hours, whether or not that was continuos, I am not able to state and probably, it was not continuos because the co-suspect was also questioned. But I think that it is fair to say that close to nine hours of questioning that day.
Tom C. Clark: But he was arrested 10 o'clock that evening (Inaudible)
Alexander A. Goldfarb: He was arrested -- he was arrested 10 o'clock that evening at the State Police Barracks where he was continuously held throughout that evening after he was returned from the trip and from his house, where he was taken by Sergent Rome.
Tom C. Clark: (Inaudible)
Alexander A. Goldfarb: He was placed in custody of the police, under the influence of the police. He was formally arrested according to Lieutenant Rome at 10 p.m. that evening in the State Supreme Court and it was finding of the trial judge so held.
Tom C. Clark: Did he charge (Inaudible)
Alexander A. Goldfarb: He was formally arrested on the suspicion of felony, Your Honor.
Tom C. Clark: He has filed a complaint (Inaudible)
Alexander A. Goldfarb: No, they filed no compliant. There was no complaint filed. All there was is "we hereby arrest you."
Tom C. Clark: They had booked him.
Alexander A. Goldfarb: There wasn't even a booking. There's no record of any arrest at10 p.m. that evening.
William J. Brennan, Jr.: But all has been is based, I gather, on oral testimony (Voice Overlap) --
Alexander A. Goldfarb: Oral testimony --
William J. Brennan, Jr.: -- that hour he was arrested.
Alexander A. Goldfarb: He was arrested that hour, although, as I say, there's no objective evidence of that fact.
William J. Brennan, Jr.: Do they say in what manner they did it, they state, "Well, you are under arrest," what was the --
Alexander A. Goldfarb: No, that was never clarified and the record merely stated that he was arrested at 10 p.m. that evening.
Tom C. Clark: What happened to his co-defendant?
Alexander A. Goldfarb: Pardon?
Tom C. Clark: What happened to his co-defendant?
Alexander A. Goldfarb: The co-defendant has since been electrocuted. May -- May, last year, he was electrocuted. He refused to appeal his case, contrary to the advice of his counsel.
Felix Frankfurter: You mean, he didn't appeal to the -- your Supreme Court?
Alexander A. Goldfarb: He did not want to appeal to the Supreme Court.
Felix Frankfurter: (Voice Overlap)
Alexander A. Goldfarb: He did appeal to the --
Felix Frankfurter: Yes.
Alexander A. Goldfarb: -- Supreme Court of Errors but he did not want to. It was against his -- his counsel, as I understand, was --
Felix Frankfurter: He was represented before your Court, was he not?
Alexander A. Goldfarb: He was represented --
Felix Frankfurter: And -- and his case was adjudicated before your Court.
Alexander A. Goldfarb: Yes. And -- but as I understand, he did not want to take any appeal to the Supreme Court of Errors in the State of Connecticut. He has a death wish according to his psychiatrist, and he wanted to die and the State let him die.
Felix Frankfurter: He's appeal automatic in Connecticut or (Inaudible)
Alexander A. Goldfarb: No. Actually, his counsel, and I think he's present in the courtroom today, wanted to take an appeal to this Court on certiorari but he was against it. His client did not want to take an appeal by certiorari and wanted to die and he was electrocuted last May.
Tom C. Clark: He has provided counsel.
Alexander A. Goldfarb: He had also counsel special -- special public defender appointed by the Superior Court. He had -- he had -- the special public defender was appointed the Superior Court as was Mr. McDonough and I was for Arthur Culombe. He was appointed by the Superior Court. The reason being that both defendants here were involved in a -- allegedly involved in a series of many crimes and it was felt and neither of which wanted to have the public defender represent them, neither of whom wanted the public defender represent them and therefore, the court, recognizing the gravity of these crimes, appointed special public defenders to represent them. I am representing the petitioner here.
William J. Brennan, Jr.: Which might -- this special public defender, is that different from counsel assigns especially with the (Inaudible) case or is it the public office especially --
Alexander A. Goldfarb: No, it is not a public office, it -- there is a public office of public defender in the State of Connecticut but apparently, he did not want the public defender who is the official functionary of this office to represent him.
William J. Brennan, Jr.: Well, this is what I would understand in my home state then merely as assigned counsel.
Alexander A. Goldfarb: Yes, in -- in effect, it is assigned counsel and -- but -- however, we referred -- we were referred to special public defenders because this was the expressed wish -- expressed wish of the petitioner -- the clients involved. They did not want the public attorney to represent them.
Felix Frankfurter: You were not -- were you -- did you defend them at the trial?
Alexander A. Goldfarb: No, Mr. McDonough, Attorney McDonough defended him. But Attorney McDonough had brought me in as assistant counsel on matters of constitutional questions of law, which I assisted in. I was present about 10% of the trial proceeding. The trial took about two and a half to three months in total. The venue -- the --
Felix Frankfurter: Two and a half to three months?
Alexander A. Goldfarb: Two and a half to three months, five weeks of which was spent in gathering a jury. And at one time, they were discharged on mass, the jury panel because of a defective arraignment.
Felix Frankfurter: Did this case arise a great deal of publicity?
Alexander A. Goldfarb: Yes.
Felix Frankfurter: Is that the gravamen of the difficulty in --
Alexander A. Goldfarb: Precisely.
Felix Frankfurter: -- selecting the jury?
Alexander A. Goldfarb: Precisely. And this is -- this has a great deal to do with the manner in which the police handled the petitioner in this case.
Tom C. Clark: Well, (Inaudible) is not here and the jury is not (Inaudible)
Alexander A. Goldfarb: Pardon?
Tom C. Clark: Stated the -- the jury had actually passed in this case is not the plan to have (Inaudible)
Alexander A. Goldfarb: No, no. We -- we did --
Felix Frankfurter: Is it -- is it open to use by way of description so one can understand these things better humanly? What does the -- what you mean by your remark that that becomes a great deal for the way in which the police examined? You just said (Voice Overlap) --
Alexander A. Goldfarb: Well, that is the -- the gravamen of the crimes there. You see, they were referred to as the mad dog killers in the press throughout the -- throughout the State. And the public was aroused as evidenced by the mobs which had gathered outside of the New Britain courtroom, New Britain Police Station. And the New Britain courtroom on Tuesday, which placed Arthur Culombe in tremendous fear, that matters he testified. There were some references made that this is a lynch mob and -- and the people in New Britain were aroused by this because this is where the scenes of the two murders took place.
Felix Frankfurter: You finish -- you -- you covered Saturday, Mr. Goldfarb --
Alexander A. Goldfarb: Yes.
Felix Frankfurter: -- and you were interrupted by me and (Inaudible)
Alexander A. Goldfarb: Sunday is a rather -- difficult to ascertain the particular times. They are difficult to determine according to the transcript involved. However, we do know the particular officers who did question the petitioner on that day. He was questioned the afternoon by Sergent Paige for undeterminable period of time. He was questioned also by Rome during that -- Lieutenant Rome, during the -- during that afternoon and by a Hartford detective during that afternoon. And he was questioned again in the later part of the afternoon, the evening by Detective Paige.
Earl Warren: It was still on Saturday (Voice Overlap) --
Alexander A. Goldfarb: This is on Sunday --
Earl Warren: On Sunday.
Alexander A. Goldfarb: -- Mr Justice -- Chief Justice.
William J. Brennan, Jr.: And what's the elapsed time?
Alexander A. Goldfarb: Approximately -- well, it was intermittently, we would say, for a period of two to three hours that he was questioned during that day.
William J. Brennan, Jr.: Well, that's the argument but beginning at what hour and ending at what hour?
Alexander A. Goldfarb: The record doesn't indicate that sometime in the afternoon and evening.
Felix Frankfurter: To -- to what this indeterminacy of -- of beginning and end or -- or duration? To what witnesses were these time periods established?
Alexander A. Goldfarb: Through the police themselves?
Felix Frankfurter: Though the police themselves.
Alexander A. Goldfarb: Yes, the State --
Felix Frankfurter: And they weren't held down or perhaps that they couldn't remember the exact time.
Alexander A. Goldfarb: Yes. And there were some confusion as to what days we were talking about in the course of the cross-examination by Attorney McDonough and Attorney Burke who represented the co-suspect. Now, on Monday, petitioner, we claim, was questioned for a period at least, four to seven hours. He was brought upstairs from his cell at State Police Headquarters and mind you, gentlemen, he is still confined at the State Police Barracks. He has not been taken to any jail. He's still under the influence and domination of the police. At that day, he was promised counsel by Lieutenant Rome, promised counsel for his appearance in -- supposedly his appearance that day in some -- in -- in New Britain court. But apparently, they did not get -- have time to take him to New Britain court that day because they were fingerprinting him all afternoon, taking pictures and photographs were being taken of him by reporters in New Britain at that time when he was finally taken to New Britain.
Felix Frankfurter: You mean, reporters are allowed into -- was this a police barracks?
Alexander A. Goldfarb: It's -- this New Britain -- this is New Britain Police Station we're talking about now.
Felix Frankfurter: And the afternoon is spent in part in having photographs taken?
Alexander A. Goldfarb: Yes. And the State Police admit that they had delayed in presenting him that day because they wanted further time to question him. So they didn't present him until the following day, Tuesday, before the New Britain Police Court, which is a mockery of court procedure. He was neither arraigned, he was not spoken to by the judge, he was placed in a cage at the rear of the police station on Tuesday -- of the court on Tuesday. His vision was obscured, his hearing -- he was unable to hear what the judge had said. And he wasn't -- there was no -- there was no formal complaint issued, so far as I understand, other than a breach of peace and technical charge of breach of the peace and he was placed on $25,000 bond.
Potter Stewart: Now, this was a preliminary hearing as it's called in some States or this was a committee magistrate?
Alexander A. Goldfarb: Committee magistrate, yes.
Potter Stewart: And then what's he do? Bind him over to a grand jury?
Alexander A. Goldfarb: He was -- was not bound over. The case has continued for one week of that day. He was held on a technical -- technical charge of breach of the peace at $25,000 bond and then --
Potter Stewart: What became -- he'd been arrested at 10 o'clock in the first day, quite in the wrong (Voice Overlap) --
Alexander A. Goldfarb: He was -- he was arrested -- he was arrested with felony charge but felony charge was never prosecuted in the county. They put him on -- placed him on a specious charge of breach of peace and he was to be held at $25,000 bond. But more significantly, the Court issued a mittimus stating and directing that he'd be taken immediately forthwith to the Hartford County Jail and this mittimus is a matter of record here. We pointed down as a matter of evidence, which this Court may review. The mittimus directed that he'd be sent to the Hartford County Jail, which it was not done. Instead of taking him to the Hartford County Jail, they took him back to State Police Barracks and questioned him further until that early evening for at least a period of eight hours. And then --
Earl Warren: Would you mind telling us -- would you mind telling us just what happened in that courtroom? What the surroundings were, what -- how many people in the courtroom, where he was and where the judge was?
Alexander A. Goldfarb: The courtroom was mobbed with people. He was placed in a -- an iron cage in the rear of the courtroom, he and the co-suspect. His vision was obscured. There were people standing in front of that cage. He -- they're rumbling photographs and flashbulbs and television cameras, according to his statement were -- were talking pictures of him. He was like a monkey in a cage. And he was treated like an animal there and there was no -- he didn't hear what was going on. There were some private conversation going on between the prosecutor and Lieutenant Rome and the other State Police. And the judge, according to him, was mumbling some words, which he didn't understand what's going on. And he -- he was completely inaudible to him and all he found out later on was that -- that he was being held on a breach of peace charge, technical charge of breach of peace at $25,000 bond. And that's all that we know. The record is not -- is specific as to issue --
John M. Harlan II: Was there an issue of fact as to these conditions which you're describing or is that all conceded?
Alexander A. Goldfarb: Well, it's conceded there were mobs of people there. It's conceded that some pictures were taken by the State. They -- they had -- the State has admitted there were people there, meleeing all over the court. And I -- I don't know whether or not, they are conceding that television cameras were there but they had certainly flashbulbs, a couple of flashbulbs, according to Lieutenant Rome. He minimizes the effect of it -- of all of these but we -- we consider it a mockery of court procedure. Certainly --
Earl Warren: Was it con -- conceded that he was in a cage in the back of the room --
Alexander A. Goldfarb: Yes.
Earl Warren: -- and that there were innumerable people between him and the judge --
Alexander A. Goldfarb: That is undisputed.
Earl Warren: -- while the so-called proceeding was going on?
Alexander A. Goldfarb: That is undisputed, Your Honor.
Hugo L. Black: Was it portable? I don't understand it.
Alexander A. Goldfarb: Pardon?
Hugo L. Black: Portable cage (Inaudible)
Alexander A. Goldfarb: It was the usual cage where they confine prisoners who were recalcitrant, I assume. I -- I don't know -- I don't think it's portable. I think it's --
William J. Brennan, Jr.: I think it's a piece of equipment common (Voice Overlap) --
Alexander A. Goldfarb: I think it's a fixture of the -- of the premises.
Tom C. Clark: Permanent cage?
Alexander A. Goldfarb: Yes, it's a permanent cage.
Felix Frankfurter: You mean all defendants, all defendants in capital basis?
Alexander A. Goldfarb: No.
Felix Frankfurter: Pardon me.
Alexander A. Goldfarb: I'm not familiar within the New Britain Police Court, Your Honor. I practice law in the City of Hartford. I've never practiced before the New Britain Police Court and I --
William J. Brennan, Jr.: I think you have such a case in the Court.
Alexander A. Goldfarb: There is a -- well, in -- in the Hartford Police Court, there is an adjoining room where one is confined.
William J. Brennan, Jr.: Well, I gather from what you describe, this is the cage in the courtroom, itself.
Alexander A. Goldfarb: In the courtroom itself, yes. There is in the Superior Court a bronze cage, a metal cage. In the Superior Court, the Higher Court, where prisoners are confined, is called the pen, the prisoner's pen.
Felix Frankfurter: Well, when a trial proceeds, what is the length of trial of the court, Superior Court, isn't it?
Alexander A. Goldfarb: The trial court here is the Superior Court.
Felix Frankfurter: Superior Court.
Alexander A. Goldfarb: This is a lower court, a minor court.
Felix Frankfurter: I understand that. What I want to know, whether it is the practice in Connecticut, in Hartford as part of Connecticut, that a defendant when the trial is on, sits -- is confined within the cage.
Alexander A. Goldfarb: No, that is not the practice. In fact, the -- the practices that the defendant appear at a table, to stand before a table, before the bench --
Felix Frankfurter: Would he -- would he --
Alexander A. Goldfarb: -- that he not be separated from the bench by any sort of artificial means such as a cage as in this instance.
Felix Frankfurter: And he's near enough, his counsel so he can confer with him --
Alexander A. Goldfarb: Precisely.
Felix Frankfurter: -- with perhaps a guard or two behind him.
Alexander A. Goldfarb: Yes, there was no counsel in this case provided him, nor were his constitutional rights, nor was he warned of his constitutional rights by the trial judge. He didn't know what was going on.
William J. Brennan, Jr.: Is he -- was he in a cage during the trial period (Inaudible)
Alexander A. Goldfarb: No, he was not. He was sitting with his counsel and myself in back of him.
Potter Stewart: This proceeding that you're talking about really, technically, he, purportedly, had nothing to do with the murder prosecution as was on the breach of the peace.
Alexander A. Goldfarb: No. That's correct, Your Honor.
Charles E. Whittaker: And the case wasn't tried, as I understand (Inaudible)
Alexander A. Goldfarb: Yes.
Charles E. Whittaker: (Inaudible)
Alexander A. Goldfarb: There was nothing that went -- that transpired, at least that he could hear.
Charles E. Whittaker: You're not saying to us that during some arraignment there, he was kept locked up in jail or in a cage.
Alexander A. Goldfarb: Well, I wouldn't call it an arraignment, Your Honor. I would call it an -- an abortive presentment.
Charles E. Whittaker: And nothing happened with the (Voice Overlap) --
Alexander A. Goldfarb: Nothing transpired.
Felix Frankfurter: But was there -- after this proceeding in this Police Court, was there questioning shorty thereafter?
Alexander A. Goldfarb: Oh, yes, he was in -- he was removed from the Police Court, instead of being directed taken to the Hartford County Jail, where the mittimus directed that he be taken to forthwith, he was questioned for a period of eight hours.
Felix Frankfurter: After the proceedings in this Police Court had ceased, is that it?
Alexander A. Goldfarb: Yes.
Felix Frankfurter: So then I gather from the -- what you are putting before the Court is that the conditions under which he was appearing in that Police Court, in the context of what preceded and what followed, that -- that is relevant, has bearing upon the voluntariness of his confession.
Alexander A. Goldfarb: Precisely. Precisely, Your Honor. This is one of the factors which -- this is one of the further evidences of the kind of police methods that were used in this case, the kind of police activity.
Alexander A. Goldfarb: We'll recess now, Mr. Goldfard.