Earl Warren: Number 383, Howard R. Marshall, Petitioner, versus United States of America. Mr. Knapp, you may proceed.
James W. Knapp: Thank you, Your Honor. I believe I stated last night or last afternoon that the statement by the petitioner was accurate. However, I do not believe that he brought to the Court's attention the questions which the Court put to the jurors on voir dire to ascertain whether or not they could try the case fairly, impartially and without influence. The Court of every one of these jurors asked three basic questions. One, did the newspaper article raised any prejudice in the juror's mind? Was there anything in the article that would influence the juror in considering the case and in rendering his verdict? And lastly, he asked the juror if he was sure that he could try the case, make up his mind on what should be done from the evidence which he heard from the witness stand, and give no consideration whatsoever to the newspaper articles. The answers to these questions satisfied the Court. I believe --
Potter Stewart: (Voice Overlap) would have been a very extraordinary and unusual human being that would have answered yes to any of those questions.
James W. Knapp: Well, there was -- we have in our brief the case of United States versus Montgomery which indicates that it isn't necessarily the answers or the responses which the Court gets but it get -- but that -- it is -- it's the opportunity to observe these jurors to see them as they answer the questions, to hear how they answer them that is important. And in that case, Judge (Inaudible) concluded that although all of the answers had been more or less -- had been favorable there, he nevertheless granted a mistrial. It's a District Court case and it's found in our brief. The citation is 42 F.2d 254. In this -- this newspaper article identified the defendant with another accused, swindler. Described the defendant as a swindler, a jailbird, a disbarred attorney, an ex-convict and a fugitive from justice and gave other damaging details about his career. And three or four of the jurors had read the article. The -- the Court said that, one, the three of the four who read the article stated that they could deal with the case on the evidence but the other one seemed to answer uncertainly and inconclusively. And since one juror had asked another if he had read the article, the judge had the uneasy feeling that the others might also read it. He got that impression from -- from seeing and observing these people. And he said the motion cannot therefore be answered by basing the decision on the letter of the juror's answers to my questions. I must consider the impression which the jurors made on me when they answered these questions and also the nature of the malignancy and infection to which the jurors have been exposed thus taking into account the article itself.
Felix Frankfurter: Would it be -- would it be unfair or unreasonable to suggest that Judge (Inaudible) might have been a more skeptical nature as the trial judge of this case? He was of skeptical nature.
James W. Knapp: Well, I'm -- I -- I couldn't say that, Your Honor. I think that -- that he answered -- that he -- he was faced with this proposition that unless he was sure that this man got a fair trial, he was going to mistrial.
Felix Frankfurter: Have we --
James W. Knapp: He could not be sure from how he observed the jurors.
Felix Frankfurter: -- in this case any basis for the trial court's judgment and the answers the jurors gave him plus also of course what we know that he saw their faces. But do you think the most penetrating observation to penetrate in to the effects of the unconscious?
James W. Knapp: Well, I think here, Your Honor that there were -- remember all of the jurors were interrogated separately and apart from each other. Now, several of them said they had seen the article. They said, “I didn't (Inaudible). I didn't read it too good. I just scanned over it but I did see the article.” Another juror said the same thing, “I glanced at the headline and scanned it as I sometimes do and that was all I saw.” Another juror said, “I didn't really digest either one of them very thoroughly.” And Mrs. (Inaudible) said, “I scanned it over but I couldn't tell you now what the details were.” And some of the jurors also answered indicating that they knew it was their duty to decide this case from the evidence which they received in court and not from outside. And Mrs. (Inaudible) said, “The only thing he told me was that the jury had been selected and so many women and so many men said,” and he said, “I suppose this means you. That is the case you're on and he didn't tell me anything further.” She discussed it with her husband.
Earl Warren: Well, of course that isn't the thing that his complaining about here. It's the real gravamen of those articles. May I ask you this Mr. Knapp, can you, in the case of this kind where a man is accused of illegally dispensing prescription drugs, can you imagine anything that would be more harmful to him than to have -- have it paraded before the jury, that he was a two-time ex-convict, and that he had admitted that he had practiced medicine without a license and had dispensed illegally prescription goods. Can you imagine anything that would be more likely to influence a juror in determining whether a man was guilty in that particular kind of a case?
James W. Knapp: Well, accepting a confession --
Earl Warren: Well, the -- one of them was tantamount to it because I understand that one of the articles said that he had admitted, that he had practiced medicine without a license which in itself is practically the same crime with his choice with here.
James W. Knapp: That's very close to it, Your Honor.
Earl Warren: Very close to it, not --
James W. Knapp: Very close to it (Voice Overlap) --
Earl Warren: It's very, very close to it.
James W. Knapp: The articles did not set forth the -- a matter of time as to when he had committed these offenses and it appears that these offenses were committed in another state. There's no denying that these articles were prejudicial Your Honor, there is no denying that.
Earl Warren: No denying where a prejudicial --
James W. Knapp: Now, we can't get away from the fact that this type of an article would be bound to affect the person. That has to be admitted, it goes without saying except that these jurors, say they can set it aside. And I think that if a person makes a conscious effort to do that and if he has given his word on it then we have to take his word for it. He's the only one who can tell us.
Earl Warren: But these are disciplined minds in -- in this particular field, they're disciplined in other fields to be sure as -- but as jurors, they're not disciplined in keeping such matters after their -- out of their minds when they get into those, into that jury box and I -- it's very difficult for me to imagine anything that would be more prejudicial to a man than to have such statements, read to him or having read them themselves in a case of this kind or maybe if he was charged of something else, there would be a matter of discretion there but this is the very kind of a case that it would be most prejudicial.
James W. Knapp: Well, Your Honor, please, I beg to disagree with you about that because I think that the jury has faith in the jurors. The man who is out there, they take what he says. They take the law from him, they understand that. And they understand when he tells them that you will put this aside, you are not to consider it in determining the guilt or innocence of this man, and can you do this? Can you do this fairly and impartially and tell them that they are to consider only the evidence which they hear from the lips of the witnesses. I think that the average intelligent, honest juror that we have would do just that. As a matter of fact, I would think that he would be inclined to lean over backwards to try to be fair to them. Most jurors are fair people and they do take the instructions of the court to heart. We have cases where they come back and I ask for further instruction because they need to be enlightened. And I -- I think that every fair American juror does his best to abide by the rulings of the court and to put aside things of this nature.
Earl Warren: Well, I --
James W. Knapp: I --
Earl Warren: -- I don't disagree with you on that but they try to do it but human nature is subject to the frailties that we all know about. And if we are not disciplined to do a thing of that kind, there is assurance that we will do it and in this case, you have -- you have practically the testimony of one man on which to convict this defendant. And then in addition to that, you have these newspaper articles and I'm just wondering how it can be said that they wouldn't affect the jury when you yourself say that they are highly prejudicial.
James W. Knapp: We can't get away from that that if considered by the jury, there would be prejudicial. There is no question about that, Your Honor. I admit that.
Earl Warren: Suppose that (Voice Overlap) -- suppose in some way, this evidence -- evidence of that kind or statement of that kind had come into the court room itself.
James W. Knapp: Now --
Earl Warren: I'm not charging -- we won't be charging the prosecution of having blinded in. But it got into the case in some way or other in the court room and suppose all the jurors heard it and the judge said, well, I guess we eliminate that from the case and I instruct you not to pay any attention to it, would you -- would you feel it was the same?
James W. Knapp: If Your Honor please, the petitioner has made that point quite strongly in his brief and his reply brief. After I received his reply brief, I went into the library and look up and I found I think court cases which are not in our brief. And I would like permission to submit them to the court on this very point.
Earl Warren: Are they stronger than the cases you have in your brief?
James W. Knapp: On this -- on this point, the question of it coming in during the trial, I don't think we have any cases particularly in our brief or it's coming in at the trial through the lips of witnesses.
Earl Warren: Well, that's probably because -- that's probably because in most instances the court could grant a mistrial --
James W. Knapp: Well --
Earl Warren: -- because of it and it never would get to a court.
James W. Knapp: -- it may well be but we have some cases where they did not.
Felix Frankfurter: But do those cases hold?
James W. Knapp: The one is --
Felix Frankfurter: What do they hold Mr. --
James W. Knapp: They hold that the matter is one for the discretion of the trial court and that having seen and observed the -- the impropriety, the court was best suited to determine whether or not a mistrial should be granted and that's --
Felix Frankfurter: Is this one of the substantial prejudice? Is that the ground --
James W. Knapp: In other words --
Felix Frankfurter: -- is that the ground in which you go?
James W. Knapp: Pardon me, Your Honor.
Felix Frankfurter: It's a ground that the improper evidence was not prejudicial? That's the ground --
James W. Knapp: Yes.
Felix Frankfurter: -- in light of the rest of the record.
James W. Knapp: That is right.
Earl Warren: But you say this is prejudicial.
James W. Knapp: Well, the court here said that in some of them they say the instructions were adequate to take care of --
Earl Warren: Regardless of whether it was prejudicial or (Voice Overlap) --
James W. Knapp: Well, I think in one case, this Reistroffer case, Your Honor which is found at 258 F.2d 379. One of the witnesses in testifying said about the defendant. He testified through telephone conversation. I says you're nothing but a damn ex-convict. The court promptly constructed the jury to disregard it and admonish the jury there is no proof of the claims made apparently in anger and in argument over the phone. It also stated in the absence of the jury that the court had heard the whole thing, saw the jury and that they regarded the witness with tolerant amusement. The court said that it was one of the inadvertent statements which come in occasionally and there will be no mistrial. The Circuit Court held there was no abuse of discretion by the court in its treatment of what was actually a mere rudeness on the part of the witness. Now we have some other cases which I would --
Charles E. Whittaker: 258 page 379?
James W. Knapp: 258 F.2d, page 379.
Earl Warren: Of course the fact that the jury and the court said there that the jury took the tolerant amusement would probably differentiate it from this case in which you yourself say that this is highly prejudicial.
James W. Knapp: But it still would be prejudicial to know the man was an ex-convict.
Earl Warren: Yes, yes.
James W. Knapp: But my point is that you have to see how these jurors react, Your Honor.
Earl Warren: Yes, yes, yes.
James W. Knapp: And this is exactly what he did here.
Earl Warren: Are there no limits?
James W. Knapp: Well, that wouldn't be exactly this case. I suppose that in anything where we have to determine whether a trial court abused its discretion, there would be limits.
Felix Frankfurter: That's why when -- whether it's profitable as I get your argument, the suggestion is that if the contents of this newspaper articles that's fallen from the lips of a witness and the judge then told the jury, you must not pay any attention to it, this is improper. Your argument suggests that even if it were admit -- if it appeared in court, it wouldn't necessarily call for a mistrial, is that it?
James W. Knapp: That's my argument is that it wouldn't necessarily call for a mistrial or that (Voice Overlap) --
Felix Frankfurter: -- profitable it is that each case depends on the circumstances of the case. We have to -- this Court would have to get on each one of those cases to see whether it would agree or disagree if the case is before it.
James W. Knapp: Well we have --
Felix Frankfurter: Do you think it's very profitable to this line of argument?
James W. Knapp: We have Courts of the Appeals to do that, Your Honor and normally (Voice Overlap) wouldn't come here.
Felix Frankfurter: Well, all I'm saying is the weight of the argument depends on agreement with those courts which in your instances refuse the mistrial because of the intrusion of this inadmissible evidence in order to have any weight. One would have to decide whether those cases are correctly decided they are not having come here for review, isn't that true?
James W. Knapp: Well. Your Honor it's possible that --
Felix Frankfurter: I don't think it's profitable for both of the proceeding that --
James W. Knapp: It's possible that you misconceive my main thrust of our argument is that this is a matter for discretion of the trial court.
Felix Frankfurter: That has to be --
James W. Knapp: And --
Felix Frankfurter: -- your argument. It's a valid argument so far as it's valid.
James W. Knapp: And the defense's argument is that this is automatically a mistrial. Now, we are contending that there are certainly a great many situations and you can imagine all kinds of different methods by which a person might be prejudice by a newspaper article. But our point --
Hugo L. Black: What was the other case (Inaudible)
James W. Knapp: U.S. versus Tomaiolo, T-O-M-A-I-O-L-O 249 F.2d 683 at page 695, Hilliard, H-I-L-L-I-A-R-D versus U.S. 121 F.2d 992 at page 998 and U.S. versus Giallo, G-I-A-L-L-O 206 F.2d 207.
Hugo L. Black: 201?
James W. Knapp: Seven.
Earl Warren: Mr. Knapp, you may -- you may file a memorandum of those cases if you will for the Court.
James W. Knapp: Certainly.
Earl Warren: Mr. Francis do you have any that you want to commit to answer, you may do that.
James W. Knapp: I gave these questions -- these cases to Mr. Francis last night --
Earl Warren: Yes, yes.
James W. Knapp: -- so that he could be prepared to answer them on rebuttal.
Earl Warren: Yes.
Felix Frankfurter: Mr. Knapp, would you agree -- would you agree with what I'm about to say. One should reject a contention that either -- that the introduction of inadmissible evidence though duly advised by the trial court to pay no attention to it, or the appearance of newspaper articles or the reading for having read newspaper articles by jurors does not automatically press on that abstract statement a mere intrusion of inadmissible evidence either directly to the lips of a witness or to the reading of the jurors does not automatically call for a new trial. That's the opposition.
James W. Knapp: That is our position.
Felix Frankfurter: Would you admit also the contrary that the mere -- the mere satisfaction to the mind of a trial judge that inadmissible evidence has been -- has fallen from the lips of witness or has been read in the newspapers does not automatically call for nonreversal of his ruling.
James W. Knapp: Oh we don't -- we contend that (Voice Overlap) --
Felix Frankfurter: Well then get that --
James W. Knapp: (Voice Overlap) --
Felix Frankfurter: -- you agree with both and it turned on to particular -- particular case, does it.
James W. Knapp: Of course it does, Your Honor. And on that we have to defend upon the good sense of the judgment of the trial court in --
Felix Frankfurter: Now, you're being told -- you're being told the second proposition that if the judge contentiously thinks it hasn't or isn't likely to influence the outcome of the trial in the minds of the jurors. You're suggesting -- and automatically that's an end of the matter.
James W. Knapp: Oh he ought not be reversed, Your Honor unless it's clear that he has abused his discretion.Of course all matters of discretion are subject to review for abuse.
Felix Frankfurter: But abuse does not carry with it the moral connotation.
James W. Knapp: No.
Felix Frankfurter: It only means that his judgment is so against the experience of mankind that it isn't an allowable exercise of (Inaudible).
James W. Knapp: That's correct.
Felix Frankfurter: It has nothing to do with abusing the ordinary --
James W. Knapp: That -- that's right.
Felix Frankfurter: -- misconduct.
James W. Knapp: It's legal abuse.
Felix Frankfurter: All right.
James W. Knapp: Now, I submit that this Court in Remmer versus the United States followed essentially this -- this procedure. In that case, if the Court recalls, the cases came up in 1953. During the trial an unnamed person communicated with the juror and remarked that he could profit by bringing in a verdict favorable to the petitioner. The incident was reported to the judge and discussed it with the prosecutor. An FBI investigation was set on for the bureau did investigate and the judge and the prosecutor concluded that the remark was made in just and nothing further was done. Defense counsel learned of this after the verdict and move for a new trial contending that they would have requested a replacement of the juror had they been aware of this occurrence. This Court held that any private communication or contact or tampering directly or indirectly with the juror during a trial about the matter pending before the jury is deemed presumptively prejudicial if not made in pursuance of known rules and instructions and directions of the court with full knowledge of the parties. From the record, the court -- this Court could not know what transpire the sending of an FBI agent into the midst of the trial to investigate a juror was considered conduct which was bound to impress the juror and apt to do so unduly. The trial court -- this Court held that the trial court should not decide and take final action ex parte on such information but should determine the circumstances of the impact thereof upon the juror and whether or not it was prejudicial in a hearing with all interested parties permitted to participate. It was remanded. The trail court held such a hearing but restricted it to whether or not what effect the FBI inquiry would have on the jury. This Court found that the trial courts interpretation of the mandate was too narrow. However, they concluded there was sufficient evidence to permit this Court to decide the issue. Now, in this case, the facts showed that the juror felt that money was involved otherwise why would have the question have been put to him by his acquaintance and a friend of the defendant. The FBI had told him they were interviewing relative to the conversation to see whether there was anything to it or not. He had mentioned to two other jurors that there was a question as to whether he'd been approached and said he had been under a terrific pressure. Now, in applying these facts, the Court remanded it for a new trial. It said it was quite evident from the evidence that he was a disturbed and troubled man from the date of the contact until after the trial and that proper concern for protecting the integrity of the jury system dictated against speculating that the FBI interview dispersed the cloud created by the communication. Moreover, the juror was never certain or never aware of the Government's interpretation of the events to which he was a party. And therefore, they felt that he had been subjected to extraneous influences to which no juror should be subjected. Now, I submit that in this case, this Court has done exactly what we are contending and send it back to the trial judge to find the facts and to get his interpretation. The trial judge miss -- unfortunately misinterpreted the court's mandate. But there were sufficient facts from which this Court then itself could apply the law to the question --
Speaker: What bearing do you think the entrapment offense has on your case? Or let me put it more specifically, assuming once you come to conclusion that there was an issue here as to entrapment that was properly submitted to the jury, what would you say then as to your case?
James W. Knapp: Well, I -- I would think there that even in such case it made no difference, Your Honor because of the instruction on entrapment. In order for this to have operated on the minds of the jury, there would have been something in the instruction concerning the predisposition of the party to commit -- of the defendant to commit the offense. Now, in that instruction -- the entrapment instruction, there was no such instruction with regard to the disposition of the party to commit the offense and in this respect, I would respectfully request the Court to compare the instruction on the entrapment in this case with the instruction which was given in the Sherman case last year, Number 87 at the 1957 term and with the instruction given in the Masciale case. In both of those cases, they went into the question of whether an instructive or whether the defendant was ready and willing without persuasion, was he weighing a promiscuous opportunity to -- to commit the offense. Now, here, no such instruction was given because of the fact that there was no evidence in the case of prior offenses or prior disposition to commit the crime. And so therefore, the Court got the -- the jury got the charge without any charge concerning predisposition and therefore there is nothing upon which this could operate they didn't know about that rule. That's our position with respect to that of course we argue -- we feel that the facts in this case clearly showed that there was no entrapment as a matter of law and that the issue should have been taken away from the jury and never submit it to it. So that therefore he isn't injured in anyway because he couldn't take advantage of an instruction to which he was not entitled. Now, in this case, we have a clear record of questioning of the jurors. We have the juror's own impressions, their own statements of their own as to their mind as to their ability to try this case fairly and impartial. We have the judge's observation of those jurors which he concluded that they would be able to do that. He said all of them satisfied me that they would not be influenced in any way about the item. It should proceed and render a fair and impartial verdict from the evidence and the law in the case. I think the concerns of the jurors was very apparent form their answers and their demeanor while they were here. And I feel very confident in my own mind that the matter having been called to their attention that they will lean over backwards as a matter of fact in consideration of the case and stay away from any extraneous matter they have -- may have read or heard or anything else. He further stated, of course, I propose when the instructions come to reiterate that they should not give any consideration to anything they have read or heard or anything else and should confine their consideration solely to the evidence. Now, we have printed in our brief on page 7, the charge of the jury in its -- to the jury in the court's final instructions. Now, the court said, “Now the arguments of counsel and the remarks of court, the court has made during the course of the trial are not evidence and should not be considered by you as evidence. The evidence that you are to consider in this case is the testimony you have heard from the witness stand and the exhibits which have been admitted into evidence by the court and your deliberation should consider no other circumstances whatsoever and should not go beyond the consideration of the evidence that you have actually heard and the exhibits that you will have opportunity to examine. So they were cautioned again at the end of case about what they were to consider. Now, Your Honor please, this is only one of the numerous incidents in which we have to apply the question of whether there will be prejudice. It may come in at the point when you are picking a jury pretrial publicity. You may have prejudicial publicity at that point. And yet jurors are not automatically withdrawn for cost where they have read or heard pretrial publicity. It's not an automatic rule. They question the jurors. They've argue the jurors to find out whether they can be unbiased and impartial and if voir dire here shows that they can put aside what they have heard, put aside what they read, render a verdict on the basis of what they hear from the lips of the witness, they are acceptable as jurors. We have cases -- we're doing the trial of the case, evidence is improperly admitted and later stricken from the record in all of those cases proper admonition to the jury is considered sufficient particularly where the judge and even there, you don't even voir dire the jurors to find out whether they'd be affected by the -- by what came out in the court.
Hugo L. Black: Would it not depend on, is it not, in each case upon the nature of that material?
James W. Knapp: Of course the nature of the material is highly important, Your Honor. We could -- that is one of the factors to be considered but it is not the only factor. That's not the only factor. We have to rely upon the average intelligent and honest person as a juror. We think that those people can and do put aside extraneous influences. If we get into the matter of -- of what goes on and down and the juries are subconscious, we could never be sure that anyone ever got a fair trial.
Felix Frankfurter: How many days does this trial take from that?
James W. Knapp: This trial took three days, Your Honor.
Felix Frankfurter: Three days.
James W. Knapp: And it --
Felix Frankfurter: Do you think that -- take it in a sum total of one judgment that might make a difference rather to the impact of such charge was washed away in the course of time and --
James W. Knapp: Well, of course that's --
Felix Frankfurter: -- problem of judgment of a particular --
James W. Knapp: That's part of -- that's part of the theory of --
Felix Frankfurter: Particular of months of trial might be one thing if throughout the trial might (Inaudible) three days --
James W. Knapp: That (Voice Overlap) --
Felix Frankfurter: -- suppose that this is the particular question.
James W. Knapp: That might have some bearing on the question as of course in the long trial things that are said at the beginning tend to wear away and be forgotten unless reminded by counsel. But we feel strongly that if you make an automatic rule then we're in the position of having a very difficult time to try any case. This case no one would have imagined -- the jury -- the court said that he had no idea that this case would ever in gender any publicity. He was amazed at it. What could we do? The -- we can try cases of notoriety over and over and over again if jurors are to be excluded merely because they see something prejudicial in the newspapers. Newspaper people are not lawyers. They don't know what is going to be considered as prejudicial and harmful. They are interested in selling news and newspapers. Therefore, these things are printed perhaps even unintentionally on the part of the newspaper.
Felix Frankfurter: Where does this appear in the newspaper, page 27 or page --
James W. Knapp: There is nothing in the record to show that, Your Honor. I -- I don't know. I tried to ascertain that myself.
Felix Frankfurter: Is there a proximity of the --
James W. Knapp: No sir, it is not.
Speaker: Does the record show how long the jury was out?
James W. Knapp: I don't believe that it does at least. I did not notice it in the record. I would hate to say that it does not. The -- further, this case was not a case which was contested on the facts. The court below held that there is no question about the defendant's guilt.
Felix Frankfurter: What was it contested on?
James W. Knapp: As the petitioner pointed out yesterday, it was contested on the questions of law. I believe he gave them -- I was not able to ascertain from the record but he did say it yesterday.
Charles E. Whittaker: Well, if there would be no questions of law in fact you -- you -- if he pleaded guilty, there would be (Inaudible) to do that.
James W. Knapp: I believe that -- that -- Your Honor that petitioner's counsel stated the entrapment was not the sole defense but the only affirmative defense --
Charles E. Whittaker: Yes.
James W. Knapp: -- that there was a question of proof of whether the Government had proved interstate commerce the question of whether the drug was within the meaning of the act and the question of whether the judge was identifiable.
Felix Frankfurter: Mr. Knapp, the defense of entrapment is a question of whether he was self-starter or whether he started and that turns on the rate to be given to the kind of a creature he was, is that true?
James W. Knapp: Well -- but he did not -- not in this case, Your Honor because -- because I don't think there is any doubt that he was a self-starter here. All the agent did was to forward an opportunity to self -- for this man to provide the judge.
Felix Frankfurter: Well, he contested that through cross examination.
James W. Knapp: Well, but his cross examination was not too effective. All it showed was that the man at post is a salesman and that he wore, I believe, some slacks and sport shirt and that he told the man he's going to drive to Dallas and later to Los Angeles. But there was no -- he asked him for some drugs that would keep him awake. The -- he was told that the petitioner -- the petitioner told him to obtain no dose of tablets and take this while driving at Texas and drink coffee.
Earl Warren: Those are illegal, was it not?
James W. Knapp: I understand they are -- this tablet is a tablet that you could buy across the counter without any prescription.
Earl Warren: Yes.
James W. Knapp: And that these tablets here are tablets which are perhaps dangerous to human consumption unless taken under the direction of a physician and that's the difference.
Earl Warren: Yes.
James W. Knapp: And the government agent, Keating said I told Mr. Marshall that I believe they try these similar tablets at least on other occasions they've not produced the desired effect and I'd hope I could get something different and that was the end of it.
Earl Warren: Now, why do you say he was a self-starter?
James W. Knapp: I didn't.
Earl Warren: This is a social -- social event, was it not, then? And this man approached the defendant then -- and told him he is going to make a long trip and he wanted something and the man suggested to him a perfect illegal drug and --
James W. Knapp: And --
Earl Warren: -- he said no he didn't want that. He wanted something stronger --
James W. Knapp: That was the end of it. He didn't say anything else and they talked about going to Dallas and perhaps they looked over in the map then as the agent walked out and walked away, Marshall held him back, he came down and he gave him the capsule and the tablets. In other words, this man just said to him that he wanted something to keep him awake.
Speaker: I suppose that --
James W. Knapp: He didn't even ask for any particular tablet.
Speaker: I suppose that this issue of entrapment having gone to the jury, rightly or wrongly, that the defendant be under some constraint in asking what will be the normal charge and the record as this one would have shown no prior criminal record. It was under some constraint in asking for such a charge in view of this newspaper I presume, wasn't he?
James W. Knapp: Well, I think that -- that he obtained the charge -- exactly the charge he was entitled if he was entitled to a charge of entrapment and certainly there was nothing --
Speaker: I'm assuming that he was entitled of the charge for the moment.
James W. Knapp: Certainly. There was nothing in the case -- in the evidence of the case to suggest that -- that there was any evidence of prior predisposition.
Speaker: No, but I have to think --
James W. Knapp: The question came down --
Speaker: -- counsel would have thought several times knowing that the newspaper articles have gone in to ask the court the charge that they could take in to account the fact on a predisposition --
James W. Knapp: Well --
Speaker: -- that there was no evidence in the record that this man had a criminal record.
James W. Knapp: Well, there wouldn't be any reason for the court to charge or for him to ask that charge on predisposition and certainly even if the newspaper articles haven't been read. I see no profit in that. He got the charge as to whether or not this man had been entrapped whether the Government had induced it. There is nothing to show that the Government has any excuse on the part other than just the only question that the the Government induced it as I get it from this instruction. And therefore, the jury had no knowledge of predisposition as tending to excuse entrapment or inducement if there was such inducement. But we say that here there was no entrapment at all as matter of law.
Earl Warren: But would he be entitled to argue normally that the counsel be entitled to argue that on the question of entrapment, predisposition is an important factor and that there is nothing in this -- there is nothing in this case indicating predisposition. Now, could he -- could he argue that --
James W. Knapp: Your Honor --
Earl Warren: -- if he knew that the jury illegally has gotten evidence to the contrary.
James W. Knapp: Your Honor please, I've failed to see how predisposition argument would have anything to do with the case because there is nothing in there on it.
Earl Warren: Well --
James W. Knapp: The whole question here was, did the Government induced him to commit the offenses.
Earl Warren: Yes.
James W. Knapp: If they induced him, the Government was out of court.
Earl Warren: Well, I know but -- but my --
James W. Knapp: -- forcing the argument about predisposition.
Earl Warren: Well, my recollection is that when a government agent makes the approach to a citizen and himself suggest the illegal act that the question of predisposition to comply with such request is an element in the case.
James W. Knapp: Well, it is if the Government raises the issue. It then becomes -- if the jury finds that there was that inducement then the further question depends upon whether the Government meets the issue and brings in the issue of predisposition then the evidence becomes if he did -- defendant was ready and willing -- it becomes incumbent upon the Government to show predisposition. The Government doesn't show predisposition, we meet right on the issue of inducement and that's where we met here.
Earl Warren: Would it be improper for the -- for the defendant to point out that there is nothing in the record of the case to indicate any predisposition on the part of his client to commit a crime of this and all you got is the unsupported word of the undercover agent who did such and such a thing. Isn't that legitimate argument?
James W. Knapp: Well, of course, Your Honor what the defendant would argue, I could not say.
Earl Warren: No, but is it a legitimate --
James W. Knapp: I presume that he could argue it to the jury as I don't know whether the court would stop him or not. I think that the Government might well object to that argument but of course by the time he got it in --
Earl Warren: No. Well, I was asking you if it wouldn't be a legitimate argument and not that (Voice Overlap) --
James W. Knapp: I don't think its legitimate argument of there is no evidence in on it.
Earl Warren: Well, I --
James W. Knapp: Of course, you get into the question of character and so forth. That's always admissible and at least put it in issue.
Charles E. Whittaker: Wouldn't that be what the defense counsel would be arguing namely the absence of evidence saying to the jury in the absence of evidence you have to assume or may assume that he would not have acted from any (Inaudible) of his own.
James W. Knapp: Well, I don't quite see how that is admissible on the question of entrapment here. As the case -- at the time it went to the jury, I just don't see and cannot understand how it would be admissible -- permissible argument. I don't say that he might not have made it and that the Government may not have objected. But I think if they did, they would have some basis for objecting to that argument. There was no evidence on it. So that I feel that -- the Government feels that he has not been prejudiced on the entrapment certainly for two reasons, one that there was nothing in the instructions upon which this information could operate. Secondly, that we feel there was no entrapment at all as a matter of law. And under that posture, we feel that he wasn't hurt at all on the entrapment issue, he could have not been hurt. I have argued the points involved here, Your Honor and I believe I have some more time but I don't think unless there are some questions the Court has.
Earl Warren: Thank you -- thank you Mr. Knapp. Mr. Francis.
George J. Francis: Mr. Chief Justice Warren, if the Court please. I would like to make a brief reply to several points that the counsel of the Government raised. The counsel for the Government indicates in his statements that the article is prejudicial in itself. Now, on the face of it, now it's hard to examine the mind of a jury especially from a record as brief as this. I've tried to go into that yesterday evening, I would like to call the Court's attention to what the Government counsel referred to as one of the three questions as an indication of how agreeable the jury was to give any answer that would not show that they had prejudiced in their mind. The purpose of that is to show in one instance how ridiculous their position was. The Court asked, most of those who read this one question, was there anything in that articles that would prejudice you against the defendant? Well it would seem to me the obvious answer is yes there is something in that article that would prejudice but I am not prejudiced. But all of them, very flat-footedly said why there is nothing in that article that would prejudice mean. On the face of it, that's an impossible position because reading the article, no person could fail but to see that the article in its very nature was of a prejudicial sort. As to how reliable the jury is again we only have a very brief record. But the Government counsel refers to one party who didn't read the newspaper at all and he is not counted as one of the six who read because her statement was, I scanned it, and therefore in the petitioner's count hypnosis she was omitted. But listen to how reliable the jury is herself at page 44 of the record. Mrs. (Inaudible), the only thing he told me was that the jury has been selected and so many women and so many men and he said I suppose this means you, this is the case you are on and he didn't tell me anything further than that and he knew that I'm not suppose to read newspaper pieces and I glanced at the headlines of it and scanned it. Here, the lady admits that she knows that something is improper and then goes on to state that despite that I went ahead and scanned it. It's her own admission.
Speaker: Are the summations of counsel, were they taken down stenographically?
George J. Francis: Your Honor, I believe they were.
Speaker: Are they in this Court?
George J. Francis: No. As far as I know Your Honor they are not.
Speaker: Did you sum up on the issue of the profit?
George J. Francis: Yes. Counsel and I summed up on behalf of the defendant. I was the only counsel in the Court on behalf of the defendant.
Speaker: There is no objection, I personally would like to see the summations if they're available.
George J. Francis: Certainly. I would hand it on you, Your Honor.
Potter Stewart: Mr. Francis, on that issue. It's true isn't it that the Court of Appeals held that it was error to submit the issue to the jury at all.
Felix Frankfurter: Yes, Your Honor. The Court of Appeals ruled that in their opinion the entrapment issue should not have gone to the jury.
Potter Stewart: No. And you would -- you have made the contention of the Court of Appeals that this was a case of entrapment as a matter of law.
George J. Francis: Yes, further than just that there was an issue of fact.
Potter Stewart: Right. And the Court of Appeals said we disagree with not only as to that but we think the issue should not have been submitted to the jury at all, that's correct, isn't it?
George J. Francis: That's correct, Your Honor.
Potter Stewart: And in your petition for certiorari here, you sought to raise both the question to which you've been addressing yourself in this argument as well as the entrapment question.
George J. Francis: Yes because --
Potter Stewart: And this Court granted a limited ground of certiorari --
George J. Francis: Yes.
Potter Stewart: -- to the one question which --
George J. Francis: Yes, Your Honor.
Potter Stewart: At least in its verbiage, no reference whatsoever to the fact that this involves entrapment. That's true isn't it?
George J. Francis: Yes, Your Honor.
Potter Stewart: Simply your first to eight criminal case.
George J. Francis: That's correct, Your Honor. And of course the issue of entrapment as a matter of law was raised by defendant principally because of the fact that the defendant had no rebuttal evidence.
Tom C. Clark: Mr. Francis, what day of the trial did the article come up.
George J. Francis: The second day, Your Honor. The first day was involved in the examination of the principal witness, the agent. The court recessed after several other witnesses had testified. The next day, these matters came up.
Tom C. Clark: That was 9:30 in the morning.
George J. Francis: Yes, Your Honor.
Tom C. Clark: That was the second day.
George J. Francis: Yes, Your Honor.
Tom C. Clark: Then the case continued -- the verdict is the 30th?
George J. Francis: That's correct, Your Honor.
Tom C. Clark: And that would mean four or five days trial wasn't it? I'm starting to (Voice Overlap) --
George J. Francis: We had one mistrial and then it began over again.
Tom C. Clark: Oh you had a mistrial?
George J. Francis: Then it began again over again and then I believe there were three days of testimony in all although I'm -- I can't be sure and I think we -- we address the jury the fourth day. Now, I -- that's just my recollection.
Tom C. Clark: How long was the jury (Inaudible)
George J. Francis: It's not in the record but I can certainly state.
Tom C. Clark: You were there?
George J. Francis: Yes, Your Honor. They went out to lunch and came back. In other words, closing argument, I opened and closed and I closed about five minutes to 12. The jury went out to lunch and when they came back within minutes they had the bailiff informed the Court that a verdict had been reached.
Felix Frankfurter: Can you tell me, just as a matter of curiosity, how long it took to get the jury -- how long was the voir dire (Inaudible)
George J. Francis: The voir dire, Your Honor, occupied morning.
Felix Frankfurter: Morning. The counsel interrogate or the court, what is your practice out there?
George J. Francis: The practice in them Your Honor is for the court to interrogate and not for counsel.
Felix Frankfurter: And you said morning, what time did the trial began?
George J. Francis: My recollection is that -- my recollection is Your Honor that we had about one hour of the agent's testimony on direct before recess for lunch.
Felix Frankfurter: When does the court come in in Denver -- the District Court, what hour?
George J. Francis: Judge (Inaudible) usually begins approximately 9 to 9:30, Your Honor.
Felix Frankfurter: And -- and the voir dire took what, two hours, an hour or three hours?
George J. Francis: I would say that the voir dire took a period of approximately an hour.
Felix Frankfurter: An hour.
George J. Francis: Judge (Inaudible) the questions being from counsel -- rather from the court are rather quick and short. My time has expired, Your Honors. I would have like to have answered the four cases because they are very materially distinguishable. Thank you very much.
Earl Warren: We'll -- we'll read them. Mr. Francis, before you take your seat, I would just like to thank you on behalf of the Court for having rendered this service to your government and as I conceive it to your profession. We understand that you are appointed to defend this man in the trial court and have carried the case clear through to this Court. We're always indebted to counsel and we always feel comforted when lawyers will come from great distances even to perform such a public service. It's not a noble thing for us to have. Lawyers do that because in every calendar, we usually have some lawyer who doesn't. But it is a noble thing for us to have both a lawyer and his wife sit at the counsel table representing a -- a defendant as -- as you and your wife have done in this case. And we're particularly grateful to you and you can have a feeling of satisfaction regardless about this case as decided from having performed the real public service. And Mr. Knapp, may I thank you also for your very earnest and very capable representation of your government in this case.
James W. Knapp: Mr. Chief Justice --
George J. Francis: Thank you.
James W. Knapp: Yes.
James W. Knapp: -- may I make an inquiry of the Court? The Court suggested that we prepare of memorandum of these cases which we submitted, how long (Voice Overlap) --
Earl Warren: Oh just a list of the cases just their names just the citation, no -- no argument.
James W. Knapp: (Voice Overlap) --
Earl Warren: No argument just the citation that's all. And the same with you Mr. Francis, no argument on them just citations of any cases you may want to submit.
George J. Francis: I only felt was that I could easily distinguish.
Earl Warren: You may if you wish. You may if you wish but I didn't want to put you in that trouble.
George J. Francis: Thank you, Your Honor.
James W. Knapp: Thank you.