MARSHALL v. UNITED STATES

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Argument of George J. Francis

Chief Justice Earl Warren: Number 383, Howard R. Marshall, Petitioner, versus United States of America.

Mr. Francis.

Mr. George J. Francis: Mr. Chief Justice Warren, if the Court please.

The case before this Honorable Court this afternoon involves a rather simple point which came up in a criminal trial which I've been appointed by the Court to defend the defendant.

The salient point before this Honorable Court is whether or not the reading by jurors during the course of trial, that is to say after the trial has commenced, whether the reading by jurors of newspaper articles which set forth a defamatory matter about the criminal defendant which defamatory matter includes statements as to previous criminal convictions, includes statements that the defendant's wife had been involved in similar charges, tried and convicted in the same court and sentenced to jail, include statements that the defendant had prescribed restricted drugs for a -- at that time well known senior who shortly thereafter died and few other statements.

The case rose under a charge that the defendant was guilty of indiscriminate dispensing of drugs without prescription, the drug being commonly known as Dexedrine.

The defendant never took a stand.

The defendant did not present testimony of his own but rather relied upon cross-examination of the Government's witnesses in an attempt to challenge the burden of proof that was been on the Government.

In a very few words, the testimony was predominantly that of the government agent who testified that after having been introduced socially to the defendant, he approached him on two occasions -- approached the defendant on two occasions, concealing his identity and announcing to him that he had a long automobile trip to make.

One from Denver, Colorado to Dallas, Texas in one evening and two, this is on subsequent occasion, a drive by automobile from Denver to California.

The government agent requested stay-awake pills as he termed them and after some discussion on the initial approach to the defendant when the defendant recommended no dose and coffee to keep him awake, the government agent did received according to the testimony the dextro amphetamine sulfate, commonly termed Dexedrine.

As I have stated, the defendant did not take a stand, he did not present evidence.

He did not submit witnesses of his own.

However, through cross-examination of the plaintiff's witnesses predominantly the government agent rather close cross-examination and very careful cross-examination, the trial court grant an instruction to the defendant on entrapment.

The issue of entrapment was submitted to the jury as an issue of fact.

The Government after they had rested their case and having realize that an instruction on entrapment was to be given based upon only the Government's case sought to reopen for permission to submit further testimony on rebuttal.

That is to say that they had grounds that would justify the entrapment.

The Court considered the implication rather unusual because of the fact that a rebuttal was being asked for where the defendant had not presented the case.

However, the Court refused rebuttal on the grounds that the evidence that the Government was seeking to introduce was actually not relevant that is to say the Court was saying you have not shown me that this defendant was engaged in similar dispensing of drugs in this relevant period.

Entrapment instruction was given and rebuttal was not had.

Then in a few words is the summoned substance of the case.

The matters of which the petitioner complains of here rose after the first day of trial.

After the government agent and a few others had testified, the Court recessed.

The next morning, defendant's counsel namely myself having observed several newspapers in the jury room itself and having been informed that the --

Justice Felix Frankfurter: You mean the door of the jury room is open for you to see what's in there?

Mr. George J. Francis: Yes, Your Honor.

The door of the jury room -- the jury room in the Denver courthouse is directly across the corner from the court room itself.

Justice Felix Frankfurter: The jury was separated during the trial?

Mr. George J. Francis: The jury was separated during the trial.

Justice Felix Frankfurter: And they would be going in there just for smoking or whatnot?

Mr. George J. Francis: They would be going there for such instances.

In this instance, Your Honor, the court had not yet convened that morning.

Justice Felix Frankfurter: They were in there collecting --

Mr. George J. Francis: Yes, sir, they were collecting that morning.

And defendant's counsel requested that the jurors be interrogated for the purpose of determining whether or not the newspaper articles had been read.

The court granted the request of defendant's counsel.

And on individual interrogation of the jurors, it was discovered that 6 of the 12 had read one or the other of the newspaper articles at pages 52 and 53 of the record.

The newspaper articles themselves are set forth.

If I may read portions of those two articles, the one article in which four had read stated first the matters about what had happened during the course of trial in the previous date.

Then at the bottom, the last two paragraphs, the newspaper articles stated Marshall has a record of two previous felony convictions.

In 1953, while serving a forgery sentence in the State Penitentiary at McAlester, Oklahoma, Marshall testified before a state legislative committee studying new drug laws for Oklahoma.

At that time, he told the committee that although he had only a high school education, he practiced medicine with a $25 diploma he received through the mails.

He told in detail of the ease in which he wrote the past prescriptions for dangerous drugs.

The other newspaper article, The Denver Post which is an afternoon and evening paper, stated in part, “The defendant was Howard R.(Tobey) Marshall, once identified before a committee of the Oklahoma Legislature as a man who acted as a physician and prescribed restricted drugs for Hank Williams before the country singer's death in December, 1953.

Marshall was arrested with his wife, Edith Every Marshall, 56, in June, 1956.

She was convicted on the drug charges in Federal District Court here in November and was sentenced to 60 days in jail.

Records show that Marshall once served a term in the Oklahoma penitentiary for forgery.

There is no evidence he is a doctor, court attaches said."

The request of the defendant's counsel, the jurors being brought in to determine whether or not they have read the articles and it's being determined that a number of them have through rather torturous at least on what I considered in my part rather delicate attempt to examine several of the jurors, not all.

And under interrogation from the Government attorneys and from the District Court itself, the jurors all stated very firmly that they had not been prejudiced by the reading and that they could continue with the course of trial.

The defendant's counsel made a motion from mistrial at the termination of examination of the jurors and that motion for mistrial was denied, the Court stating that in effect, it felt that the jurors through their demeanor and because of their statements were not prejudiced and could continue with the course of the trial.

Justice Hugo L. Black: The judge at that stage known (Inaudible)

Mr. George J. Francis: The Court, Your Honor had sensed the entrapment issue.

The record will show that on my cross-examination of the Government's witness, I began to ask the person in trial.

How was he dressed?

Were you lying about where you were going?

And the precise page is not in my mind but this was the first day of trial.

The Government counsel got up to limit the scope of my cross-examination stating that he is trying to drive that and the Court did not permit Government's counsel to go beyond that, stating, well, this was within this scope of cross-examination and that what would develop were developed.

I had not stated to the Court --

Justice John M. Harlan: You're applying with prejudice, I take it as a phase where you rely very heavily on the fact that this is in a context of an entrapment of defendant.

Mr. George J. Francis: Your Honor, I do not actually premise the position of this defendant on the fact that there was entrapment.

I would be here or rather the defendant would be here and the same argument would be made today if an entrapment had not been an issue to the -- to the jury.

Justice John M. Harlan: You might not have been here whether you like it --

Mr. George J. Francis: I would have made -- I would have filed the petition to let it stay.

The -- of course of the entrapment was part of it but the other point was that matters which could not have been introduced under these circumstances.

That is to say the defendant never having taking the stand, those matters could never have been introduced.

And there is authority to defect that -- the introduction of previous criminal activity or previous convictions if brought to the attention of the jury during the course of trial.

Our grounds for mistrial --

Justice Potter Stewart: Mr. Francis.

Mr. George J. Francis: Yes, sir.

Justice Potter Stewart: You stated as I understood you that after learning about the -- these newspapers in the jury room that morning on the second day of trial, you first of all ask permission to interrogate some of the jurors and did so, did I --

Mr. George J. Francis: Yes, Your Honor.

Justice Potter Stewart: Does that appear on the record?

I've just been informed.

Mr. George J. Francis: At page 27 --

Justice Potter Stewart: I don't know --

Mr. George J. Francis: -- in chambers.

“Mr. Francis, there was a matter I wanted to bring up before Court opens.”

That is that there are two articles in the newspapers.

One, in yesterday afternoon's Denver Post and the other in this morning's news.

Both of which described the past criminal record of this defendant.

I noticed when I came in this morning as I walked by the jury room, the jurors had several rocky mountain and we're huddling around reading it.

I would like to determine whether or not the jurors have been reading the articles in question.

I believe the Court has admonished them not to do so.

The Court: I saw the articles and where did the information coming from?

And at that point, the Government concedes to having spoken to newspapers but only as to matters that had gone on in open courts.

Justice Potter Stewart: Mr. Brown is the Assistant United States Attorney.

Mr. George J. Francis: Yes, Your Honor and Mr. Parrell (ph) and Mr. Hardy, all three represented the Government.

Justice Potter Stewart: And then the -- and then the Court proceeds to interrogate some members of the panel, does he -- of the jury?

Mr. George J. Francis: Yes, Your Honor.

The Court and then the counsel likewise asked questions.

I believe I asked on two occasions perhaps three.

Justice Potter Stewart: Where is that?

I can't see it.

I can't find that.

Mr. George J. Francis: I'm sorry, Your Honor.

The interrogation of the jurors, Your Honor begins at page 39 and goes to 51.

All 12 jurors were brought in.

Justice Potter Stewart: I see now.

It's in the supplemental --

Mr. George J. Francis: Yes, Your Honor.

Justice Potter Stewart: Thank you very much.

Mr. George J. Francis: Now, this Court as far as defendant has been able to determine -- has never passed upon this issue.

The Circuit Court here deemed the matter within the discretion of the trail court although the Circuit Court opinion in the instance -- instant case conceded that there might be instances so shocking that a mistrial would have to be declared as a matter of course citing the Sheppard case and one or two others.

The dissent by Justice Murray relied on the fact that entrapment was an issue and that it would be hard to rely upon the defense of entrapment that no jury could consider the defense of entrapment with these newspaper articles in mind.

And secondly, Judge Murray states that these matters being inadmissible, they were quote "ineradicably prejudicial".

In other words, that was the type of prejudice in his opinion that could not be raised.

Justice John M. Harlan: You don't think much of Judge Murray's argument though I've gathered the way you're arguing --

Mr. George J. Francis: Your Honor, I was -- I was very pleased with the dissenting opinion and I felt that the position of entrapment was well taken as well as the position that this was ineradicably prejudicial.

Judge Murray does rely more on the entrapment notion although he also says that trial by newspaper is not tolerable.

He takes that position and he also takes -- states in any event he would reverse.

Justice John M. Harlan: The only thing that differentiates this case of ordinary situation where a newspaper gets into a jury room and shouldn't have got in there and then the judges instructs the jury and admonishes them and it's a very grievous case, we leave that sort of thing normally to a jury -- to the judge but you've got a special kind of a case here.

At least it seems to me you had where -- because of the defense which you interpose.

That's why I'm so surprise that you throw it down.

Mr. George J. Francis: No, Your Honor.

I'm not abandoning it.

I'm trying to perhaps carry water on both shoulders but I certainly rely on the notion that in fact it was one of the matters involved as well as the fact that here were matters ineradicably prejudicial which should not had come.

Justice Charles E. Whittaker: Well, is the Tenth Circuit right in saying that such was the soul defense entrapment?

Mr. George J. Francis: I do not believe that that is the correct statement, Your Honor.

I would differ with the statement of the majority for this reason.

The burden of proof of course was on the Government and the Government would have had to prove a number of items.

One, that the drug had traveled into interstate commerce and that was under heavy attack.

Two, that the drug was identifiable and that was under heavy attack.

Three, that this was a drug within the meaning of the statute because in this type of case, it is not enough to say that Dexedrine is a restricted drug but proof must be offered by experts that this type of drug is a drug within the meaning of the statute.

The -- the Court is correct if it wishes to state it this way, Your Honor that entrapment in -- in effect was the only affirmative defense, if I've answered the Court's question --

Justice Charles E. Whittaker: Yes.

Justice Felix Frankfurter: -- seems to find fortification from the fact that he put up no defense, doesn't he?

Mr. George J. Francis: He does, Your Honor and --

Justice Felix Frankfurter: What's the theory of that?

Mr. George J. Francis: I assume that -- and I take issue with it that this man is guilty.

It's the only way I can read it.

This man is guilty since he offered no defense and I would quarrel with that.

Justice Felix Frankfurter: That is out of question.

The claim that the jury -- wasn't justified in finding him guilty on the Government's own case, doesn't it?

Mr. George J. Francis: Yes, Your Honor.

The --

Justice Felix Frankfurter: In other words, if the defense rest on the claim of inadequacy of the Government case --

Mr. George J. Francis: Yes, Your Honor.

Justice Felix Frankfurter: -- that implies that the defendant agrees to the strength of the Government's case.

Mr. George J. Francis: That would be the implication.

Justice Felix Frankfurter: That was the way I read it and yet it's a good -- Judge Lewis couldn't have met that, could he?

I don't know what else he could have met but that's what he said.

Mr. George J. Francis: He -- I think he must admit that he does rely on the -- I believe the pronunciation is (Inaudible) case saying that, well, when the evidence of guilt is overwhelming or something that thick --

Justice Felix Frankfurter: Well if -- evidence of guilt maybe overwhelming but not because the defendant didn't put in any defense.

Mr. George J. Francis: Yes, Your Honor.

The failure to make a defense or the failure of the defendant to take a stand was certainly not a concession that the Government's case was right or we would never been in court.

Justice Felix Frankfurter: I should --

Mr. George J. Francis: The defendant would simply have entered a plea of guilty and then forgot the whole matter.

Justice Felix Frankfurter: I should think one because of the argument that when he doesn't take a stand and although the trial judges admonishes the jury, they must not draw any instance from that fact, it becomes -- all the part of the jury not to draw an instance in that effect.

It may get according through -- from the Denver Post.

Mr. George J. Francis: Well, it does.

That position does militate, it seems to me against the position of a defendant who does not take a stand.

Justice Felix Frankfurter: I know that the jury might be well -- we know why he didn't take the stand.

We read it in this morning's paper.

Mr. George J. Francis: The position of the defendant actually is that without being able let say they eavesdrop on the jury that is what most likely or probably happens.

At least that is an arguable position the defendant takes.

Unknown Speaker: (Inaudible)

Mr. George J. Francis: It's never been determined by this Court.

Justice Felix Frankfurter: You don't mean that, do you?

Mr. George J. Francis: I certainly mean it.

Justice Felix Frankfurter: What about Holt?

Mr. George J. Francis: Holt case, I believe Your Honor is probably one of the most misunderstood cases in this field at least in my opinion.

I had originally read the Holt case and as I had in the Maddox and the Maddox case gave me a feeling of relation for a while until I found out that they ruled on another grounds but the Holt case should be studied very carefully.

The Holt case comes up on this notion that the jurors and attorney for the defendant submits an affidavit in which he states “Several jurors have told me that they read newspapers with articles in them pertaining to the case.”

Now, the lower court avoids the difficulty that the Maddox trial court, judge entered into where in Maddox, the trial court refused to consider affidavits and this Court said “Well now, you failed to exercise a discretion.”

And therefore that was reversible error in failing to consider.

The trial court in Holt states that he considers the affidavits and nonetheless rules against the defendant.

Justice William J. Brennan: (Inaudible)

Mr. George J. Francis: Pardon?

Justice William J. Brennan: (Inaudible)

Mr. George J. Francis: Perhaps the trial court does it but I don't believe --

Justice William J. Brennan: (Inaudible)

Mr. George J. Francis: No, Your Honor.

Actually, what trial court did and only yesterday I had the chance or check the record in the Holt case.

The affidavit of the attorney for the defendant in the Holt case stated that he had interrogated two jurors who stated to him that they had read several articles in the Seattle newspapers.

And the defendant -- the counsel for the defendant now is making the affidavit and he states “I don't know which newspaper articles were read.”

If perhaps all of them are read and he requests the trial court in the Holt case to subpoena the two jurors to make the determination.

And the trial court refuses to do that.

The trial court refuses to bring in the jurors to determine whether or not they had read specific newspaper articles.

Then the Government in their briefs in that case as well, at page 74 of their briefs states “But the affiant was unable to learn from this jurors which articles relating to the trial they had read or whether they had read all of them”.

The court treated this affidavit as stating the truth and refused to permit counter affidavits to be filed.

It therefore was not made to appear that a single one of the articles of which complaint is made was ever seen by either of the jurors during the progress of the trial.

Consequently, plaintiff is in error, is in no attitude to raise a question whether or not a reading of such articles by a juror would constitute a reversible error.

Justice Felix Frankfurter: But the opinion of this Court, assume that they had read and --

Mr. George J. Francis: Your Honor --

Justice Felix Frankfurter: -- the decision was made on that basis, wasn't it?

Mr. George J. Francis: I beg to differ with you, Your Honor.

Justice Holmes states that the trial court might assume that but this Court, Justice Holmes said, could not make that assumption if it were to grant a new trial.

And then Justice Holmes goes on to state, it may be assumed, he says, in effect and this is set forth in defendant's reply brief, It may be assumed that they saw something of the public prints.

Justice William J. Brennan: Now, what about the (Inaudible)

Mr. George J. Francis: Pardon.

Justice William J. Brennan: I guess we're looking at the same thing that the court did not make that assumption (Inaudible)

There's a probability that the jurors were allowed to set -- see something (Inaudible) maybe assumed that they did so.

Mr. George J. Francis: Yes.

And the assumption is this gets down to a very razor like analysis, Your Honor but I think I'm right.

Justice William J. Brennan: (Inaudible)

Mr. George J. Francis: For the purpose of passing on the permission to separate, we'll see something of the public prints is so obvious.

Now, the McHenry case which --

Justice William J. Brennan: (Inaudible) and maybe assume it did so in this case related to separate -- that they did separate and not that they commit mistakes?

Mr. George J. Francis: He means this Your Honor that it is assumed that people will read newspapers but not that they read this article.

The Circuit Court in the -- the McHenry case so states --

Justice Felix Frankfurter: Let me ask you this -- I've (Inaudible) for the briefs and the records that I --

Mr. George J. Francis: Yes, Your Honor.

Justice Felix Frankfurter: -- but you'll give me the answer before I can get it.

In the Holt case, one of the articles which presumably or actually the jury read during their separation of this prejudicial character in principle or comparably prejudicial as the articles which you claim were in this (Inaudible) --

Mr. George J. Francis: I would say that they were.

Justice Felix Frankfurter: They were?

Mr. George J. Francis: The Government's brief does not so indicate but my very hurried reading yesterday of what was set forth in the record indicated to me that there were rather sensational matters that were contained in the newspapers.

Justice Felix Frankfurter: Well, now let me ask you this about Holt.

Was the attack there by counsel for Holt, did he make an independent point of prejudice to the mere facts of separation and the susceptibility of that to disturbing conduct by that -- would that made an -- an attack?

Mr. George J. Francis: I believe that that was the basis of the -- the appeal.

The decision states the -- the defendant is up on three points.

One point precisely is that the jury was permitted to separate --

Justice Felix Frankfurter: And that in it of itself is error particularly in a capital case.

Mr. George J. Francis: Exactly, Your Honor and that --

Justice Felix Frankfurter: The argument -- if I follow you is -- am I agreeing to the whole -- according to your view that the real problem and the difficulty in Holt was that the trial judge allowed the jury in the capital state to separate which Mr. Justice Holmes' facts and then later the court's opinion, doesn't try in the ground for reversal and that if jurors separates, inevitably, they will leave the public prints.

Mr. George J. Francis: Exactly, that could be my interpretation.

Justice Felix Frankfurter: -- the fact they had read extremely for the different areas.

Mr. George J. Francis: That would be my -- I think that would be my very firm position on the Holt case.

Justice Felix Frankfurter: What is the first opinion which Mr. Justice Holmes in the middle of the case but that's certainly one would not get.

I thought I knew that -- one would not get it from that opinion --

Mr. George J. Francis: And that is why Your Honor --

Justice Felix Frankfurter: (Inaudible)

Mr. George J. Francis: And that is why, Your Honor, I would say that when Justice Holmes, and this is a misquoted statement, if the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present date is a misquoted statement, because what he means there is that we can't assume prejudice if we assume they read the public prints.

Justice Felix Frankfurter: But you haven't -- you have to clear another (Inaudible)

Mr. George J. Francis: Yes, Your Honor.

Justice Felix Frankfurter: Namely, it will take up a disconnection to another matter and not accept thereto, but made one of the grounds to demand a new trial or some of these alleged consequences, because they also involve the question, “How far the jury may lawfully be trusted to do their duty when the judges satisfy that they are worthy of the trust.”

That's the point of Mr. Justice Harlan's question.

Mr. George J. Francis: I see.

Justice Felix Frankfurter: (Inaudible)

Mr. George J. Francis: Yes.

Well, the --

Justice Felix Frankfurter: That's the real --

Mr. George J. Francis: -- the instruction --

Justice Felix Frankfurter: -- that opinion for me.

Mr. George J. Francis: I see.

Justice Felix Frankfurter: I'm not -- I'm saying that -- that I believe is really was the governing thought and the opinion of Mr. Justice Holmes.

Mr. George J. Francis: The court -- the court's instruction was that when being separated, they would not read matters.

They would not discuss the case with anyone.

And the court is then saying -- this Court is then saying, “We believe” or rather the trial court is saying, “I believe that the -- the jurors abided by that.”

Justice Felix Frankfurter: You come back to your -- your -- prior -- what to discuss before this namely, you make -- you make this to mean that when the judge -- the trial judge allows the jury to separate, that presupposes the trust -- their good sense of sturdiness although exposed, could they be not to be influenced by any rubbish they seize.

Mr. George J. Francis: Not to see it, Your Honor.

Justice Felix Frankfurter: Not even see it.

Mr. George J. Francis: He trusts that they will not look at it because he refuses --

Justice Felix Frankfurter: But later (Inaudible) he later assumed that they did see it.

Mr. George J. Francis: He assumes that they saw something of the public prints.

Justice Felix Frankfurter: You mean they saw the paper but --

Mr. George J. Francis: But they did not.

Justice Felix Frankfurter: (Voice Overlap) they avoided looking at the thing that bore on the trials.

They must be wonderful jurors.

Mr. George J. Francis: I would say that they show great strength.

Justice Felix Frankfurter: (Voice Overlap) great strength.

Mr. George J. Francis: But the McHenry case Your Honor states --

Justice Felix Frankfurter: You referred to that (Inaudible) is that this Court?

Mr. George J. Francis: The Circuit Court of the District of Columbia which is in -- on page 3 of the reply brief of this defendant.

At page 764, the Circuit Court there says, referring to the Holt case.

The court remarked that where jurors were permitted to separate, it was assume -- safe to assume that they saw something of the public press.

And the question was whether or not under this assumption, error had been committed in failing to keep the jury in the custody of the Marshall.

There was no proof that any of them had read it, referring to the facts in that case.

We may assume that they saw something of the public press as was said in the Holt case, but not that they saw any particular article in a particular newspaper.

The near opportunity to see it raises no presumption that it was seen and I think that is what Justice Holmes meant when he said that the opportunity for prejudice or corruption is not enough.

Justice Potter Stewart: Was that in McHenry case you're just --

Mr. George J. Francis: McHenry --

Justice Potter Stewart: -- referring?

Mr. George J. Francis: -- case, Your Honor.

Justice Potter Stewart: In the District of Columbia Court of Appeals.

Mr. George J. Francis: Yes, Your Honor.

And further justification can be found in that.

And that, of all the cases that the Government cites on pages 18 and 19 of their brief, not one cites the whole case to that effect.

In other words, we would expect that the Circuit Courts would have rushed to cite the whole case and say, “Well now, this is a matter of discretionary with the trial court.”

See Holt versus the United States, 218 United States page 245, 250, 251, but they don't do that.

Three cases mentioned it, but in a different connection.

One as to the discretion of the trial court in denying a motion for new trial and the second, the discretion of the trial court in withdrawing a juror which was a matter that hit -- been handled by the Holt case namely that a juror was not withdrawn and that was an error alleged by the defendant.

But the juror was not withdrawn, not because of the reading of the newspaper but because of something else.

And if I may elucidate just a little more on the Holt decision, Justice Holmes says, “The judge did not reject the affidavit,” but decided against the motion on the assumption that more than it ventured to allege was true.

And I submit the rational explanation of that that more than it ventured to allege was true was simply this.

The affidavit ventured to allege that cert -- that newspaper articles had been read, but he -- the affiant couldn't say which ones, hoping that he could somehow induce the trial court to get the jurors in court and find out which ones.

More than it ventured to allege means that it ventures to allege that certain -- that articles were read without being able to say in the affidavit which ones and the court would not assume that the detrimental ones were the ones that had been read.

Actually, the Holt case came up because until that point, he was doubtful whether or not a jury was permitted to separate in a capital case.

And the Holt case or the Federal Circuits disposed of that question by saying that it was permissible in capital cases to permit the jury to separate and that the court had discretion to permit the jury to separate.

In this instance, it did not abuse its discretion in permitting the jury to separate nor did it abuse its discretion for denying a motion for new trial, the grounds of which was that the court had permitted the jury to separate.

Justice Felix Frankfurter: Now, have that in cases in the lower courts, in the District Courts went up to the Court of Appeals involving uncontested or accepted uncontested claim or accepted claims that in fact the jury had read prejudicial materials of the press bearing on matters that were not and could not have been introduced as evidence that such conduct by the jury had been called to the trial court's attention that he examined the jurors as to the influence is pending that such elicit articles had upon them and that he had concluded after subsequent examination of the jurors that they were untreated and not infected by anything they read of -- of matters that did not as to which there was no evidence within the jury room.

Mr. George J. Francis: Yes.

Justice Felix Frankfurter: Are there such cases?

There must have been --

Mr. George J. Francis: There are quite a few cases.

Justice Felix Frankfurter: And what are they?

Tell us.

Have you collected them?

Are they available?

Mr. George J. Francis: They are submitted partially in both briefs, Your Honor.

They are also submitted in one of the ALRs that is cited in the brief, 31 ALR Second.

They're collected at length.

Justice Felix Frankfurter: What is that?

Mr. George J. Francis: 31 ALR Second --

Justice Felix Frankfurter: Where can I find the complete -- the most comprehensive collection from that note?

Mr. George J. Francis: I would say 31 ALR Second, Your Honor.

Justice Felix Frankfurter: What page, do you know?

Of course, that would be (Inaudible).

Mr. George J. Francis: Page 417.

Justice Felix Frankfurter: Will you -- can you precipitate (Inaudible) those cases into a state and what they show?

Mr. George J. Francis: They are cases on both sides.

Some which state that general prejudicial items are not grounds for new trial unless a juror admits to prejudice.

I might add as a footnote here.

I have never read one case on either side in which a juror admitted prejudice, not one case.

Justice Felix Frankfurter: Are there any case -- is there any case in which the ingredient of entrapment was in the case?

Mr. George J. Francis: None that I found, Your Honor.

But the cases run from where there are mere comments on the course of trial and motion for new trial is not denied.

There are cases where mere comments which are not prejudicial on their face are still considered grounds for new trial.

We have this fact that not one case that I have been able to find outside of the Riley case which is cited in both briefs in which a past criminal record was read by a jury.

All of those cases except the Riley case granted new trial or mistrial.

Justice Felix Frankfurter: This is in the Court of Appeals or in the trial court?

Is that --

Mr. George J. Francis: They are state court decisions and two federal district court.

Justice Felix Frankfurter: Do the Courts of Appeals predominantly go on the ground that they would not overrule the judgment of the trial court who has seen the jurors and examine and felt their qualities that they would be unmoved by this (Inaudible)

Mr. George J. Francis: I believe that that is the predominant --

Justice Felix Frankfurter: That is the predominant.

Mr. George J. Francis: -- position that the --

Justice Felix Frankfurter: Great difference to the judgment of a conscientious and competent trial judge, is that it?

Mr. George J. Francis: Based upon statements made to him by jurors who are under somewhat of addressed.

Justice Felix Frankfurter: Well, you don't have to say that.

You simply challenge the psychological capacity of a man to be dead sure what does and doesn't interest him.

Mr. George J. Francis: If I might comment on that Your Honor as my time is running out.

There has been statements by judges that a juror's statement that he is not influenced should be considered in light of the fact that he has committed an impropriety and naturally he is most hesitant therefore to go very far.

In other words, he is placed in the -- the -- the position of having to defend an impropriety.

Justice Felix Frankfurter: Let me put this problem to you Mr. Francis, you couldn't listen -- you couldn't talk to a more sympathetic judge on this matter.

But let me put to you this difficulty.

If it would be accepted as what it's been called one aspect of the American way of life that a newspaper didn't print all these stuff and if it would be further accepted that you can't reach the newspapers not to do that and it would be further accepted that accepting capital cases, it would be on the whole wrong to confine the jury during the trial except in the case of our defendant with the notorious jury bribing propensity.

How can you insulate the jurors, the scattered jurors from somehow rather breathing the air of the daily papers when they go home to their families and somebody stops them on the street, how can you -- how can you insulate the jurors, how can you keep them so -- so intact from the (Inaudible) so that you unsettle a trial because they can keep immune from what the source of the evil you cannot reach as I'm told you can.

Mr. George J. Francis: Well, Your Honor I suppose several methods of approach.

One might be that -- this Honorable Court might be a little more strict as to the violations by newspapers that is to say by citations for contempt, because it's an interference with the jury trial in this instance and the contempt cases, this Honorable Court has ruled upon our cases triable to a court not to a jury and therefore contempt cases might be broaden or made more liberal where the jury is involved.

Justice Charles E. Whittaker: What you're really arguing in this connection is the rule allowing separation (Inaudible)

Mr. George J. Francis: Well, I think that the separation of the jury is not the only method of solving the problem, Your Honor.

I had -- I made a brief mention in the brief -- in my brief, “Why not just cite the newspaper in who committed the offense?”

And hold the hearing and then state, “Well, we find that your -- your conduct although not in contempt of this Court deprive this person of a new trial and we have all this additional cost for new -- for the old trial and we're going to tax those costs to you.

After all, it's nothing, but advertising for you and it's no more than a cost of advertising.

Justice Felix Frankfurter: You said you're going to give several considerations.

That's one or two -- yes, that's two.

Mr. George J. Francis: I would say that the -- there is no real practical guarantee that these matters not come from to a jury's attention except by enclosing the jury.

That I would say but that you can try to curb the influence of media communication either through a tightening of the contempt citations or taxing for costs.

Practically, that would be it.

Justice Charles E. Whittaker: (Inaudible)

Mr. George J. Francis: Well, Your Honor if they are permitted to roam the street --

Justice Charles E. Whittaker: No, even if you take them to a hotel.

Mr. George J. Francis: Yes, Your Honor there is that danger.

Justice Charles E. Whittaker: (Inaudible)

Mr. George J. Francis: Yes, but --

Justice Charles E. Whittaker: They go back and forth from the courthouse to the hotel and they see headlines on paper (Inaudible)

Mr. George J. Francis: But may I comment on that, Your Honor?

Perhaps we are worrying too much as to an imposition on the freedom to publish which will -- which is not involved here.

What is involved here is that actually a man may have been deprived of a pretrial and then it has nothing to do with pre-press anymore than as if I had typed this information as a third person and slipped it into the pockets of the jurors during the course of trial.

The net effect is still that my client has been deprived of the right that the jury listened only to what is presented in open courts.

Justice Felix Frankfurter: But you're also suggesting that a few contempt citations and money fine might reduce if not all together might -- if not eliminate all the other headlines reduce the size of the type.

Mr. George J. Francis: Yes, Your Honor, I would.

Unknown Speaker: (Inaudible)

Mr. George J. Francis: Well, I might quibble on that --

Unknown Speaker: (Inaudible)

Mr. George J. Francis: Actually, for all intention purposes in Denver, there is the Denver Post in the Rocky Mountain News.

Unknown Speaker: Do you have radio stations?

Mr. George J. Francis: We have radio stations but those are monitored out of Denver for the most part.

Justice John M. Harlan: Could I ask you a question before you sit down.

Is there anymore of the charge printed on what appears on page 38 or --

Mr. George J. Francis: No, Your Honor.

Justice John M. Harlan: -- in other ordes that the entire charge on --

Mr. George J. Francis: On entrapment?

Justice John M. Harlan: -- the of entrapment, yes.

Mr. George J. Francis: Yes, Your Honor.

Justice John M. Harlan: It is.

And there's nothing you said in there as to what bearing if any of bad criminal record he might have had.

Mr. George J. Francis: No, there was no reference made to that point at all.

Now --

Justice Charles E. Whittaker: (Inaudible)

Mr. George J. Francis: No, Your Honor.

Justice Charles E. Whittaker: Or did you complained as I understand it about the charge to the jury on (Inaudible)

Mr. George J. Francis: No, Your Honor.

But if I might just reduce one point which is of interest, we assume that -- we have to assume for all sorts of reasons I suppose that the jury listened to the trial court and that it becomes important because the trial court it says their demeanor indicates to me that they're not going to violate anything.

But notice and this was a matter in a -- that I noticed only after reading the brief -- the record several times.

On page 40 of the record, the court --

Justice Charles E. Whittaker: (Inaudible)

Mr. George J. Francis: 40, Your Honor.

The court states to the second juror.

Now, this is the second juror who has been brought in to chambers.

Mr. Parrell (ph) who's the Government Attorney says, “I wonder whether or not the court would want to instruct each juror not to discuss the article or its contents as they go back.”

And the court says, “Yes, I think that is proper, but I thought I would give them that in a general instruction not to give consideration to that.”

But of course, he's talking to the juror now.

You shouldn't discuss among yourselves anything about this article.

Now, the ninth juror walks into chambers --number nine which is seven jurors later at page 48.

And she says she hasn't discussed -- she hasn't read these articles, but she says -- the court says, “Has anyone talked to you about either one of the items?”

Mrs. Bush: No.

The Court: No one has mentioned it to you?

Mrs. Bush: No, sir.

The Court: No one said that there was a piece in the blank.

Mrs. Bush: They have been chatting in the room where the jurors are now since they had been called in here.

So, that reflects upon how the juror listens to that.

It is Justice Frank has stated in his dissent in the Leviton case.

It's like telling a boy to go sit in a corner and not think of a white elephant.

Justice Hugo L. Black: She said that no one told her anything about the article (Inaudible)

Mr. George J. Francis: She states that the article was being mentioned.

Justice Hugo L. Black: But she said, “People were chatting.”

Mr. George J. Francis: Yes, Your Honor.

Justice Hugo L. Black: But then she said that no one told her anything about it.

Mr. George J. Francis: Not what was in it, but how far can we go beyond that.

Thank you.

Chief Justice Earl Warren: Mr. Knapp.

Argument of James W. Knapp

Mr. James W. Knapp: May it please the Court.

There are one or two items in the factual situation that I would like to bring out before the Court that I don't believe my colleague has pointed out quite as emphatically as we would desire.

The first is that these articles were not a default of the prosecutor of the government or any of the prosecuting officials.

That was the first thing it was inquired into.

The attorneys made their statement to the court and apparently from the record, the information was obtained by the reporter probably from some correspondent in Oklahoma or from an article in the Coronet magazine.

So that issue is not at all present here and I mentioned that because in some of the cases that are cited on this point, you do find that the prosecuting officials or the sheriff or police have been giving information to the -- to the newspapers and we feel that that is entirely different proposition from the one at bar.

The second point is that --

Chief Justice Earl Warren: What difference would that make as to the effect that it had on the -- on the jury or the effect that it would have on the -- on the defendant's liberty whether the prosecution gave it or not?

Would not consider any punishment of prosecution here, but what we're interested in is -- is what effect did this have on -- on the jury and what difference would it make if it was bootlegged in some way or whether they told them directly?

Mr. James W. Knapp: If it appeared in the papers that the information came from the police or from the prosecutor, it might make a little difference in the minds of the jurors.

Chief Justice Earl Warren: Oh, you mean if the article stated that.

Mr. James W. Knapp: Yes, sir.

Chief Justice Earl Warren: Oh, yes.

Yes.

I -- yes, I understand that.

We'll adjourn now Mr. --

Print this transcript Transcript: 

Argument of James W. Knapp

Chief Justice Earl Warren: Number 383, Howard R. Marshall, Petitioner, versus United States of America.

Mr. Knapp, you may proceed.

Mr. 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 --

Justice Potter Stewart: (Voice Overlap) would have been a very extraordinary and unusual human being that would have answered yes to any of those questions.

Mr. 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.

Justice 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.

Mr. 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.

Justice Felix Frankfurter: Have we --

Mr. James W. Knapp: He could not be sure from how he observed the jurors.

Justice 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?

Mr. 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.

Chief Justice 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?

Mr. James W. Knapp: Well, accepting a confession --

Chief Justice 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.

Mr. James W. Knapp: That's very close to it, Your Honor.

Chief Justice Earl Warren: Very close to it, not --

Mr. James W. Knapp: Very close to it (Voice Overlap) --

Chief Justice Earl Warren: It's very, very close to it.

Mr. 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.

Chief Justice Earl Warren: No denying where a prejudicial --

Mr. 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.

Chief Justice 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.

Mr. 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.

Chief Justice Earl Warren: Well, I --

Mr. James W. Knapp: I --

Chief Justice 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.

Mr. 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.

Chief Justice 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.

Mr. James W. Knapp: Now --

Chief Justice 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?

Mr. 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.

Chief Justice Earl Warren: Are they stronger than the cases you have in your brief?

Mr. 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.

Chief Justice Earl Warren: Well, that's probably because -- that's probably because in most instances the court could grant a mistrial --

Mr. James W. Knapp: Well --

Chief Justice Earl Warren: -- because of it and it never would get to a court.

Mr. James W. Knapp: -- it may well be but we have some cases where they did not.

Justice Felix Frankfurter: But do those cases hold?

Mr. James W. Knapp: The one is --

Justice Felix Frankfurter: What do they hold Mr. --

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 --

Justice Felix Frankfurter: Is this one of the substantial prejudice?

Is that the ground --

Mr. James W. Knapp: In other words --

Justice Felix Frankfurter: -- is that the ground in which you go?

Mr. James W. Knapp: Pardon me, Your Honor.

Justice Felix Frankfurter: It's a ground that the improper evidence was not prejudicial?

That's the ground --

Mr. James W. Knapp: Yes.

Justice Felix Frankfurter: -- in light of the rest of the record.

Mr. James W. Knapp: That is right.

Chief Justice Earl Warren: But you say this is prejudicial.

Mr. James W. Knapp: Well, the court here said that in some of them they say the instructions were adequate to take care of --

Chief Justice Earl Warren: Regardless of whether it was prejudicial or (Voice Overlap) --

Mr. 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 --

Justice Charles E. Whittaker: 258 page 379?

Mr. James W. Knapp: 258 F.2d, page 379.

Chief Justice 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.

Mr. James W. Knapp: But it still would be prejudicial to know the man was an ex-convict.

Chief Justice Earl Warren: Yes, yes.

Mr. James W. Knapp: But my point is that you have to see how these jurors react, Your Honor.

Chief Justice Earl Warren: Yes, yes, yes.

Mr. James W. Knapp: And this is exactly what he did here.

Chief Justice Earl Warren: Are there no limits?

Mr. 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.

Justice 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?

Mr. James W. Knapp: That's my argument is that it wouldn't necessarily call for a mistrial or that (Voice Overlap) --

Justice 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.

Mr. James W. Knapp: Well we have --

Justice Felix Frankfurter: Do you think it's very profitable to this line of argument?

Mr. James W. Knapp: We have Courts of the Appeals to do that, Your Honor and normally (Voice Overlap) wouldn't come here.

Justice 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?

Mr. James W. Knapp: Well.

Your Honor it's possible that --

Justice Felix Frankfurter: I don't think it's profitable for both of the proceeding that --

Mr. 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.

Justice Felix Frankfurter: That has to be --

Mr. James W. Knapp: And --

Justice Felix Frankfurter: -- your argument.

It's a valid argument so far as it's valid.

Mr. 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 --

Justice Hugo L. Black: What was the other case (Inaudible)

Mr. 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.

Justice Hugo L. Black: 201?

Mr. James W. Knapp: Seven.

Chief Justice Earl Warren: Mr. Knapp, you may -- you may file a memorandum of those cases if you will for the Court.

Mr. James W. Knapp: Certainly.

Chief Justice Earl Warren: Mr. Francis do you have any that you want to commit to answer, you may do that.

Mr. James W. Knapp: I gave these questions -- these cases to Mr. Francis last night --

Chief Justice Earl Warren: Yes, yes.

Mr. James W. Knapp: -- so that he could be prepared to answer them on rebuttal.

Chief Justice Earl Warren: Yes.

Justice 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.

Mr. James W. Knapp: That is our position.

Justice 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.

Mr. James W. Knapp: Oh we don't -- we contend that (Voice Overlap) --

Justice Felix Frankfurter: Well then get that --

Mr. James W. Knapp: (Voice Overlap) --

Justice Felix Frankfurter: -- you agree with both and it turned on to particular -- particular case, does it.

Mr. 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 --

Justice 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.

Mr. 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.

Justice Felix Frankfurter: But abuse does not carry with it the moral connotation.

Mr. James W. Knapp: No.

Justice Felix Frankfurter: It only means that his judgment is so against the experience of mankind that it isn't an allowable exercise of (Inaudible).

Mr. James W. Knapp: That's correct.

Justice Felix Frankfurter: It has nothing to do with abusing the ordinary --

Mr. James W. Knapp: That -- that's right.

Justice Felix Frankfurter: -- misconduct.

Mr. James W. Knapp: It's legal abuse.

Justice Felix Frankfurter: All right.

Mr. 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 --

Justice John M. Harlan: 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?

Mr. 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.

Justice Hugo L. Black: Would it not depend on, is it not, in each case upon the nature of that material?

Mr. 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.

Justice Felix Frankfurter: How many days does this trial take from that?

Mr. James W. Knapp: This trial took three days, Your Honor.

Justice Felix Frankfurter: Three days.

Mr. James W. Knapp: And it --

Justice 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 --

Mr. James W. Knapp: Well, of course that's --

Justice Felix Frankfurter: -- problem of judgment of a particular --

Mr. James W. Knapp: That's part of -- that's part of the theory of --

Justice Felix Frankfurter: Particular of months of trial might be one thing if throughout the trial might (Inaudible) three days --

Mr. James W. Knapp: That (Voice Overlap) --

Justice Felix Frankfurter: -- suppose that this is the particular question.

Mr. 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.

Justice Felix Frankfurter: Where does this appear in the newspaper, page 27 or page --

Mr. 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.

Justice Felix Frankfurter: Is there a proximity of the --

Mr. James W. Knapp: No sir, it is not.

Justice John M. Harlan: Does the record show how long the jury was out?

Mr. 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.

Justice Felix Frankfurter: What was it contested on?

Mr. 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.

Justice 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.

Mr. 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 --

Justice Charles E. Whittaker: Yes.

Mr. 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.

Justice 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?

Mr. 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.

Justice Felix Frankfurter: Well, he contested that through cross examination.

Mr. 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.

Chief Justice Earl Warren: Those are illegal, was it not?

Mr. James W. Knapp: I understand they are -- this tablet is a tablet that you could buy across the counter without any prescription.

Chief Justice Earl Warren: Yes.

Mr. 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.

Chief Justice Earl Warren: Yes.

Mr. 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.

Chief Justice Earl Warren: Now, why do you say he was a self-starter?

Mr. James W. Knapp: I didn't.

Chief Justice 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 --

Mr. James W. Knapp: And --

Chief Justice Earl Warren: -- he said no he didn't want that.

He wanted something stronger --

Mr. 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.

Justice John M. Harlan: I suppose that --

Mr. James W. Knapp: He didn't even ask for any particular tablet.

Justice John M. Harlan: 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?

Mr. 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 --

Justice John M. Harlan: I'm assuming that he was entitled of the charge for the moment.

Mr. 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.

Justice John M. Harlan: No, but I have to think --

Mr. James W. Knapp: The question came down --

Justice John M. Harlan: -- 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 --

Mr. James W. Knapp: Well --

Justice John M. Harlan: -- that there was no evidence in the record that this man had a criminal record.

Mr. 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.

Chief Justice 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 --

Mr. James W. Knapp: Your Honor --

Chief Justice Earl Warren: -- if he knew that the jury illegally has gotten evidence to the contrary.

Mr. 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.

Chief Justice Earl Warren: Well --

Mr. James W. Knapp: The whole question here was, did the Government induced him to commit the offenses.

Chief Justice Earl Warren: Yes.

Mr. James W. Knapp: If they induced him, the Government was out of court.

Chief Justice Earl Warren: Well, I know but -- but my --

Mr. James W. Knapp: -- forcing the argument about predisposition.

Chief Justice 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.

Mr. 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.

Chief Justice 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?

Mr. James W. Knapp: Well, of course, Your Honor what the defendant would argue, I could not say.

Chief Justice Earl Warren: No, but is it a legitimate --

Mr. 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 --

Chief Justice Earl Warren: No.

Well, I was asking you if it wouldn't be a legitimate argument and not that (Voice Overlap) --

Mr. James W. Knapp: I don't think its legitimate argument of there is no evidence in on it.

Chief Justice Earl Warren: Well, I --

Mr. 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.

Justice 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.

Mr. 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.

Chief Justice Earl Warren: Thank you -- thank you Mr. Knapp.

Mr. Francis.

Argument of George J. Francis

Mr. 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.

Justice John M. Harlan: Are the summations of counsel, were they taken down stenographically?

Mr. George J. Francis: Your Honor, I believe they were.

Justice John M. Harlan: Are they in this Court?

Mr. George J. Francis: No.

As far as I know Your Honor they are not.

Justice John M. Harlan: Did you sum up on the issue of the profit?

Mr. 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.

Justice John M. Harlan: There is no objection, I personally would like to see the summations if they're available.

Mr. George J. Francis: Certainly.

I would hand it on you, Your Honor.

Justice 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.

Justice Felix Frankfurter: Yes, Your Honor.

The Court of Appeals ruled that in their opinion the entrapment issue should not have gone to the jury.

Justice 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.

Mr. George J. Francis: Yes, further than just that there was an issue of fact.

Justice 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?

Mr. George J. Francis: That's correct, Your Honor.

Justice 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.

Mr. George J. Francis: Yes because --

Justice Potter Stewart: And this Court granted a limited ground of certiorari --

Mr. George J. Francis: Yes.

Justice Potter Stewart: -- to the one question which --

Mr. George J. Francis: Yes, Your Honor.

Justice Potter Stewart: At least in its verbiage, no reference whatsoever to the fact that this involves entrapment.

That's true isn't it?

Mr. George J. Francis: Yes, Your Honor.

Justice Potter Stewart: Simply your first to eight criminal case.

Mr. 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.

Justice Tom C. Clark: Mr. Francis, what day of the trial did the article come up.

Mr. 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.

Justice Tom C. Clark: That was 9:30 in the morning.

Mr. George J. Francis: Yes, Your Honor.

Justice Tom C. Clark: That was the second day.

Mr. George J. Francis: Yes, Your Honor.

Justice Tom C. Clark: Then the case continued -- the verdict is the 30th?

Mr. George J. Francis: That's correct, Your Honor.

Justice Tom C. Clark: And that would mean four or five days trial wasn't it?

I'm starting to (Voice Overlap) --

Mr. George J. Francis: We had one mistrial and then it began over again.

Justice Tom C. Clark: Oh you had a mistrial?

Mr. 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.

Justice Tom C. Clark: How long was the jury (Inaudible)

Mr. George J. Francis: It's not in the record but I can certainly state.

Justice Tom C. Clark: You were there?

Mr. 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.

Justice 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)

Mr. George J. Francis: The voir dire, Your Honor, occupied morning.

Justice Felix Frankfurter: Morning.

The counsel interrogate or the court, what is your practice out there?

Mr. George J. Francis: The practice in them Your Honor is for the court to interrogate and not for counsel.

Justice Felix Frankfurter: And you said morning, what time did the trial began?

Mr. 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.

Justice Felix Frankfurter: When does the court come in in Denver -- the District Court, what hour?

Mr. George J. Francis: Judge (Inaudible) usually begins approximately 9 to 9:30, Your Honor.

Justice Felix Frankfurter: And -- and the voir dire took what, two hours, an hour or three hours?

Mr. George J. Francis: I would say that the voir dire took a period of approximately an hour.

Justice Felix Frankfurter: An hour.

Mr. 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.

Chief Justice 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.

Rebuttal of James W. Knapp

Mr. James W. Knapp: Mr. Chief Justice --

Rebuttal of George J. Francis

Mr. George J. Francis: Thank you.

Rebuttal of James W. Knapp

Mr. James W. Knapp: Yes.

Mr. 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) --

Chief Justice Earl Warren: Oh just a list of the cases just their names just the citation, no -- no argument.

Mr. James W. Knapp: (Voice Overlap) --

Chief Justice 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.

Rebuttal of George J. Francis

Mr. George J. Francis: I only felt was that I could easily distinguish.

Chief Justice Earl Warren: You may if you wish.

You may if you wish but I didn't want to put you in that trouble.

Mr. George J. Francis: Thank you, Your Honor.

Rebuttal of James W. Knapp

Mr. James W. Knapp: Thank you.