JOSEPH v. INDIANA

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Argument of William S. Isham

Chief Justice Earl Warren: Number 8, Don Joseph and Paul Pierce versus the State of Indiana.

Mr.Isham.

Mr. William S. Isham: Isham.

Chief Justice Earl Warren: Mr.Isham.

Pardon me.

Mr. William S. Isham: Mr.Chief Justice --

Chief Justice Earl Warren: Yes.

Mr. William S. Isham: -- members of the Court.

This case covers on here as a result of a partial certiorari being granted on petition resulting from a conviction for murder in the Supreme Court of Indiana.

I have been appointed attorney in forma pauperis by the court.

I think in fairness to all of us and particularly in light of my peculiar employment, I should say this.

Before I start in on some particular aspects of this case, that I am in a truly unique position.

I think I am in a position here representing these men and I -- I apprehend it's my duty to do the best thing for them.

I am in a position where if I succeeded in having this Court today, hold with me, on the proposition that these confessions were improperly admitted because of violating the Due Process Clause, that I would, in effect, defeat the very quickest and most sure way from my clients to get out of prison.

I would simply prolong their long trip there where they've already been for 25 years, because I apprehend the Court would reverse the judgment of the Indiana Supreme Court and remanded for trial again.

Trial again is not going to help these men.

They have been through the trial again, time and again.

I would like, if I may, to briefly give the Court a little outline of the historical facts in this case, which I feel are very pertinent in discussing the question of the confession at a little later stage.

These two men --

Justice John M. Harlan: Could you elaborate that (Inaudible)

Mr. William S. Isham: Well, I -- I think --

Justice John M. Harlan: (Inaudible)

Mr. William S. Isham: Your Honor, they don't want a new trial.

They didn't -- they didn't want a new trial.

They filed a motion for new trial, as I shall point out here, in Indiana because it was the only procedural method to have an exhaustion of their state remedies in order to get under the federal court on a matter of habeas corpus.

And what do the Indiana court do behold?

It granted a new trial.

A judge who had never heard the case, 14 years later, granted a new trial.

Now, the only reason the motion was filed, as I shall point out, is because that is the only way in Indiana that one may have an appellate review of most of his conviction.

Anything relating to the trial itself must be done through the implementation of a motion for a new trial.

Behold the court granted a new trial.

They were then in the dilemma of having to go through a new trial, go through a new trial 17 years after the facts occurred in this.

Justice John M. Harlan: Could you point to your (Inaudible) the titles of limitation are read (Inaudible)

Mr. William S. Isham: No, Your Honor.

I'm -- I'm not saying that.

Permit me to start at the beginning and I think it will clarify itself with it.

To begin with, these men were -- were in an apartment in Indianapolis on February 22nd, a significant day --

Justice Felix Frankfurter: What year?

Mr. William S. Isham: 1935.

No, no.

They weren't -- in 1935, they're -- in December 7th, 1935 they're in an apartment in Indianapolis.

Both of these men were fugitives from justice.

They'd escape from the Indiana penitentiary.

They were young men at the time.

They were fugitives from justice.

Too plainclothes policemen came there without warrant, rap on the door, the door was opened and in a semi-lit room, there was a lot of shooting occurred.

Now, one of the men, the -- or the plainclothesman, one of the men was shot in the belly and died on the 18th of December, that's 11 days afterward.

Both of the two defendants Pierce and -- and Joseph were shot.

Pierce was shot through the chest the bullet going in one side that coming out the other.

David was shot under his left arm and the bullet coming out in his back.

Now that they got away from the police and on the 10th of December at 2:30 a.m., the state police apprehended them.

They were in their underwear.

They were pulled out of bed and were taken to the state police barracks in Indianapolis on the 10th.

They have had no medical attention in the meantime.

They had attempted to put some mercurochrome on their wounds themselves.

Naturally, they were afraid to go to a doctor and -- and exhibit bullet wounds.

So, then on the 10th of December at about 10 o'clock in the morning, after being there all night, they were turned over to the city police of Indianapolis.

Now, the city police -- the city policeman, was a policeman who got shot and who ultimately dies.

They were turned over to his cohorts, his pals in the same police force for questioning.

Now -- now, after a time which I shall go into a more detail in a minute, they signed two writings purporting to be confessions, detailing some factors which laded on them for -- for first degree murder instead of at most, a manslaughter, or assault and battery with intent.

Now -- now then, this case was ultimately tried in -- on February 22nd, 1936 and they were convicted that day of first degree murder.

Immediately they were taken to the Indiana penitentiary.

In Indiana, we have a -- a right to appeal.

Every man has a right to appeal from a criminal conviction as a matter of right.

To appeal, he has to file first a motion for a new trial within 30 days.

At the time this occurrence in 1936, the courts had held if you do not file a motion for a new trial in 30 days, you're out of luck.

You both waived it and the Supreme Court has no jurisdiction to do anything about it to correct it.

Now, that's in 1936.

These men were taken after the prison.

They were put in a solitary confinement up here, the day after they were convicted.

And they went along for a period of days which ate up the 30 days.

They had no opportunity to communicate with anybody.

They were held completely incommunicado --

Justice Felix Frankfurter: They had counsel at the trial?

Mr. William S. Isham: They had counsel at the trial, Your Honor.

He was a pauperis attorney such as I am and he did not file a motion for new trial, which, I think, answers it if you call out a lawyer, I don't.

He didn't file a motion for a new trial.

Justice Hugo L. Black: What was it then?

Mr. William S. Isham: Life conviction for first degree murder.

Now then --

Justice Felix Frankfurter: Have you got capital punishment in Indiana?

Mr. William S. Isham: Yes, we do have, Your Honor.

Justice Felix Frankfurter: But it's on --

Mr. William S. Isham: Yes.

Justice Felix Frankfurter: -- Illegaly.

Mr. William S. Isham: Now then, in 1948, the Supreme Court of Indiana --

Justice Felix Frankfurter: Let me ask you this, on -- on your -- under your practice in a criminal case, it's stipulating a life or a capital case to the motion for a new trial filed as a matter of course, by the opinion of counsel.

Mr. William S. Isham: I never heard of it not being done, Your Honor.

I mean, I think the question answers itself, does it not, if why, of course, anybody where -- where a matter of a man's life is at stake would file a motion for a new trial.

Justice Charles E. Whittaker: (Inaudible)

Mr. William S. Isham: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. William S. Isham: Oh, yes, Your Honor.

I -- I think so and under the circumstances in this case and these men, the defendants, wanted a new trial.

And they tried to get a new trial.

They tried their best to communicate.

They even -- and the evidence in another case which is in -- went through the Supreme Court of Indiana.

Justice Felix Frankfurter: Well I understand that.

Do I understand that the review by the Supreme Court is automatic?

Mr. William S. Isham: It is, Your Honor.

Justice Felix Frankfurter: In -- in cases where there's a life sentence?

Mr. William S. Isham: It's automatic in any case.

Any criminal case providing a motion for a new trial is filed timely and -- and secondly that the appeal is perfected within -- in --

Justice Felix Frankfurter: Will it -- it be more acted in the question?

Mr. William S. Isham: No.

Justice Felix Frankfurter: If there's a motion for a new trial in Indiana and it is denied, then the right of appeal is mandatory --

Mr. William S. Isham: That's right.

Justice Felix Frankfurter: -- in criminal cases.

Mr. William S. Isham: That's right, Your Honor.

Justice Felix Frankfurter: But I misused the term, "by automatic," I think in the Chief Justice's state from the capital case.

There is an automatic review, am I right about that Chief Justice?

Mr. William S. Isham: Yes, it's true.

Justice Felix Frankfurter: That is not the situation --

Mr. William S. Isham: That is not the situation in Indiana.

Justice Felix Frankfurter: In other words, in Indiana, there is this contingency that a motion for a new trial is filed.

Mr. William S. Isham: That's right.

Now, Your Honor, though, modifying that statement, in 1948, for the first time, now that was -- that was 12 years after they -- it was 13 years after they've been in the penitentiary.

The case of -- of Walker against State was decided, which held that under certain circumstances, one might petition the court where the case had been tried at a later date and have a belated motion for a new trial filed which could then be processed into an appeal.

Now --

Justice Felix Frankfurter: No time limit -- without time limit?

Mr. William S. Isham: That's right.

However, that case didn't prescribe pretty well the -- the factors necessary to get that done.

Justice John M. Harlan: That's not been throughout the court?

Mr. William S. Isham: That -- no, Your Honor.

It had not.

In that -- on that story let me say.

That's just one of the evolutionary processes we've been through in Indiana particularly trying to get the Court to recognize that there is a Fourteenth Amendment.

Now, basically --

Justice Hugo L. Black: (Inaudible)

Mr. William S. Isham: I beg your pardon?

Justice Hugo L. Black: In case (Inaudible)

Mr. William S. Isham: Yes, it's case law and basically, the ground for getting a belated motion for a new trial is the allegation of facts under oath which would constitute a violation of the Fourteenth Amendment, either the Due Process Clause or the denial of equal protection.

Justice Felix Frankfurter: That was 1948, did you say?

Mr. William S. Isham: 1948.

Within three months after that case was decided, Your Honor, in this case, a -- a petition was filed for leave to file a belated motion for a new trial in the court below.

The State of Indiana demurred to the petition and the lower court overruled the demurrer.

Then the State of Indiana brought an original action in the Supreme Court of Indiana seeking to get a writ of prohibition, prohibiting that court from passing upon the validity of this petition for filling a belated motion.

That was denied.

Prohibition was denied.

Then the State of Indiana came in after its demurrer to the -- the petition had been ruled upon and asked leave to amend its demurrer which was granted.

They amended the demurrer and the lower court sustained the demurrer.

There was an appeal taken by Joseph in that case to the Supreme Court of Indiana.

And the Court there held, that the demurrer -- that they -- he reversed the case.

And in that case, he cited -- the Supreme Court cited the case of Cochran against Kansas, which was the -- where the appeal papers of a prisoner were suppressed by the State and also cited the case of Dowd, Warden against Cook, which I argued in this Court some seven or eight years ago, involving the same sort of question.

So the thing was sent back to the court again.

And that time the court granted the petition for leave to file a belated motion for a new trial.

Now, that occurred -- that's along 1953.

Now, they've been in there since -- they've been there 18 years.

So, the petition was then -- the motion for a new trial and the belated motion was filed.

Now, it was a formal -- little formal motion and the court sustained the motion granting a new trial on June 29th, 1953.

Now that was -- you see three and 15, that's 18 years after this shooting occurred.

They are then granted the right to have a trial in a State that has a constitutional and statutory requirement that every man has a right to speedy justice, 18 years.

Justice Tom C. Clark: Well, the previous statement of the case isn't withheld by the courts?

Mr. William S. Isham: The -- they are not permitted the filing of the motions for a new trial and they couldn't go ahead with it, you see.

Justice Tom C. Clark: Is the rationale given to the warden for his -- for him to forward or --

Mr. William S. Isham: Your Honor, there is evidence, although not in this case.

It's in another case, which I'll explain about a second.

There is an affidavit of the deputy warden that these men and it was introduced in the case in the Hancock Circuit Court for leave to file a belated motion that these men had tried, they'd even prepared a crude motion for a new trial up there with some guardhouse lawyers and they would let him send it out.

And they've tried to and tried to, until the time it expired and then it was a pure knowledge.

They could do nothing until 1948 when this new rule of law was first announced.

Justice Tom C. Clark: In an attempt to (Inaudible)

Mr. William S. Isham: After the 30 days had expired, no, Your Honor.

Justice Tom C. Clark: Until 1948.

Mr. William S. Isham: Until 1948 and they did that within -- within 60 days on the day that the Supreme Court decision was handed down.

Now, of course, what the position that I have taken in respect to the interest of these men, they've been there, they're bothered to celebrate their silver jubilee in the penitentiary.

And most of his time, they've been there, why?

Because of a violation by the State of Indiana of the equal protection of the laws clause of the Federal Constitution.

Justice John M. Harlan: But that question is not supported.

Mr. William S. Isham: Your Honor, it is not.

It is not and that's why I say I'm in this dilemma.

Actually, this was argued in the Indiana Supreme Court in this very decision.

It is not in the record.

Of course, this is simply the record of evidence in a murder trial.

It wouldn't have been admissible in that case.

However, we sought to have the Court take judicial knowledge of the statements in its own opinions and then they have two other opinions which do setout all these facts.

Justice John M. Harlan: Well it's not for that reason that it was not before us, it's because of the limitation of our writ.

Mr. William S. Isham: Well, that's --

Justice John M. Harlan: He expressly limited the writ --

Mr. William S. Isham: Both -- both that's right.

Justice John M. Harlan: -- to the question of the coerced confession.

Mr. William S. Isham: That's right.

Now, I -- I am sorry I've taken so much time telling you this story, but I do -- I do feel that --

Justice William J. Brennan: How might you completed it (Inaudible) what happened, is that the other part of the grant of belated motion for trial, was there a new trial?

Mr. William S. Isham: Oh, yes.

There was a new trial and jury disagree.

We would try it again and -- and they convicted them of second degree murder.

Justice William J. Brennan: At what sentence (Inaudible)

Mr. William S. Isham: They've got life after they've been there 18 years or --

Justice William J. Brennan: (Inaudible)

Mr. William S. Isham: Oh yes.

Oh yes.

They're up there unbailable and there they are -- now, what I'm saying to this Court is this.

Justice William J. Brennan: (Inaudible)

Mr. William S. Isham: The --

[Laughs]

the provision for a parole is that any man who is in prison and tries to get out on a charge of violating the State, violating the Fourteenth Amendment has no right of parole.

It never paroled one yet and they never will, Your Honor.

Now, that's what these men are up to.

Justice Hugo L. Black: They'll have to do, you mean that's a practice?

Mr. William S. Isham: That's a practice.

That's right.

And it is a universal practice.

Justice Felix Frankfurter: You're and the question that isn't here what you're -- that you're that you're bringing before us is this, that if a state improperly, illegally repeal the violation of the Constitution unduly alleges doing a man a chance, making an appeal, but it's finally granting that appeal that has no choice, but letting them go clear not subjected to another trial.

That's the question --

Mr. William S. Isham: That is right, Your Honor.

That is right.

Justice Felix Frankfurter: The question that is not here, which we're trying to bring here.

Mr. William S. Isham: I would love to bring him here, Your Honor.

I -- I say that it is not here.

Nevertheless, it is part of my problem.

It is very definitely part of my problem because if the Court here follows my reasoning on the question of the inadmissibility of this confession it's going to remand it back for a new trial and we still haven't exhausted our state remedy so we can't get back.

We can't get in to the federal court until that has been done which would probably take two more years.

Now, that's the position I'm in.

Justice Felix Frankfurter: Did you raise before the Indiana Supreme Court to claim that you should go -- that your client should go free and not to have a new trial?

Mr. William S. Isham: Yes, Your Honor, we did.

Justice Felix Frankfurter: Did they deal with that on the merits?

Mr. William S. Isham: They did in the opinion, but they did add this.

And it's -- it's correct, the only basis for my -- I argued this case before the Supreme Court.

The only basis for arguing that before the Supreme Court, mind you this was an appeal from a murder conviction, the third trial, was that the Supreme Court had written two opinions before which they could and should take judicial knowledge in the contents of which and that in doing that, they would then have all the facts before them where they could have released this -- these men.

But they -- they didn't do that --

Justice William J. Brennan: (Inaudible) do I gather that you prevail, you will have to go back for a new trial.

I gather if you prevail here then Indiana could not use these confessions of -- on a new trial, could they?

Mr. William S. Isham: Well --

Justice William J. Brennan: Well if you're prevailing (Voice Overlap) --

Mr. William S. Isham: Not with the preliminary evidence it was at before.

But I don't know of any reason why they couldn't have other evidence showing that --

Justice William J. Brennan: What I'm trying to get at is what's your dilemma?

Mr. William S. Isham: Well, my dilemma is this.

Justice William J. Brennan: Your dilemma -- your dilemma rises if they're convicted the third time in the event we reversed, is that it?

Mr. William S. Isham: If you -- no.

It's just going to delay, Your Honor.

It's going to delay my getting the question which I think is the most meritorious question they have into the lap of the federal courts.

Justice William J. Brennan: Well, why would it have to, if they got back for a new trial and they can't be convicted?

That's the end of it for them.

Justice William J. Brennan: Well, what makes you think they won't be convicted?

Justice William J. Brennan: I have no idea.

I don't quite get what you're getting at.

The dilemma you're --

Mr. William S. Isham: Well -- well, I -- I think that -- I think they would be convicted.

And it would certainly (Voice Overlap) --

Justice William J. Brennan: Wouldn't they be convicted without these confessions?

Mr. William S. Isham: I think these men would be convicted in Indiana --

Justice William J. Brennan: Or could they be -- is there evidence in addition to the confessions upon which they (Voice Overlap) --

Mr. William S. Isham: There is evidence, yes.

There is evidence upon which conviction could be sustained and probably would be sustained.

Justice Felix Frankfurter: My conscience is little (Inaudible) by this non-raise or non-raisable question.

In that the argument we now make would indicate that if they had taken their -- if they -- if the motion for a new trial had been granted and if they -- and if the case had gone up to the Court of Appeals and had a new trial, they would've been convicted again.

Mr. William S. Isham: No, Your Honor.

Now -- now, let's --

Justice Felix Frankfurter: If they -- if there -- if they can be convicted 18 years later, they can certainly can be convicted one year later.

Mr. William S. Isham: Well, now, I -- I cannot follow that reasoning at all.

And -- and it seems to me that where you have a -- where you have constitutional statutory provisions for immediate trial and you give them an 18-year delay in there, due to the fault of the State, they weren't -- they weren't fugitives.

They were in -- they were in custody of the State all that time.

Now then, to simply say why you got that same old trial that you would have got if you'd want in the first instance, that's not the answer, that's the very thing the Indiana Supreme Court said.

And to me -- to me certainly --

Justice Felix Frankfurter: Well that has been --

Mr. William S. Isham: -- it has been logical.

Justice Felix Frankfurter: You are now saying you're dead sure he'd be convicted, tomorrow he can.

That's your dilemma.

Mr. William S. Isham: No.

My dilemma is that if -- if this Court holds that -- that this is to be retried it certainly is another two years stay before we can get in the federal court.

Justice Felix Frankfurter: Because he'd be convicted if the (Voice Overlap) --

Mr. William S. Isham: We're going to have to go through all this again.

Justice Felix Frankfurter: Because -- because you reject Justice Brennan's suggestion that your clients might be acquitted.

Mr. William S. Isham: I don't know.

They might or they might not.

I can't -- I can't escape this fact, Your Honor.

Justice William J. Brennan: If you're surprised and they are acquitted and the event be reversed and your dilemma disappears, doesn't it?

Mr. William S. Isham: No, no.

Oh, no.

Justice William J. Brennan: If they're acquitted?

Mr. William S. Isham: Oh, if they are acquitted.

Justice William J. Brennan: Yes.

Mr. William S. Isham: I -- I didn't understand you.

Well certainly.

Justice William J. Brennan: On a -- on a retrial, if you get under --

Mr. William S. Isham: Certainly.

Certainly.

Justice William J. Brennan: Then -- then your dilemma is gone.

Mr. William S. Isham: Yes, that's right.

Justice Charles E. Whittaker: (Inaudible)

Mr. William S. Isham: Without asking you what to do, I wish you'd affirm this judgment.

I don't want to be put in a position of standing here and saying, "I want the Court to do this."

I don't want to make informal admission because I don't want to have to eat that in some court in the -- in the federal system [Laughs] saying that I waived any rights or I -- I am a stop to assert the rights that I think should be presented here.

They aren't presented by this record; they really aren't.

The fact that these men -- the fact that these men were a -- one man shot a policeman is -- is a fact that is tremendous in -- in my picture of this whole thing.

If ever you're going to shoot anybody, never shoot a policeman.

And here, were the same group of -- of policemen, Indianapolis City police, who were -- who questioned and -- and handled these men getting the -- the confession out of them.

Justice Charles E. Whittaker: (Inaudible)

Mr. William S. Isham: Yes.

Justice Charles E. Whittaker: Did you ask them what you might (Inaudible)

Mr. William S. Isham: Your Honor, we had to do it to exhaust our state remedies before we could get in the federal court on habeas corpus.

As I understand, filing a petition for writ of certiorari and having it denied is now held to be a state remedy which has to be exhausted before you can proceed in the federal system.

Now, there was a time when it wasn't.

Justice William J. Brennan: You -- you rather wish you didn't write to (Inaudible) petition then, though we got four of (Voice Overlap) --

Mr. William S. Isham: It was a very unpersuasive [Laughs] petition, Your Honor.

Very unpersuasive, it was great they liked the motion for a new trial.

Justice William J. Brennan: (Voice Overlap) it got -- it got you here and (Voice Overlap) --

Mr. William S. Isham: It got us here.

Justice Charles E. Whittaker: Now, you think what you have (Inaudible)

Mr. William S. Isham: I am -- no, no, Your Honor, I am not all through.

I shall then immediately file a petition for writ of habeas corpus in the Northern District of Indiana Federal Court.

Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. William S. Isham: Well, I hope, the State goes from there to the Circuit Court of Appeals, because I think there's a very clear violation of the constitutional right here.

I don't think there's any doubt about that.

Justice William O. Douglas: That's a Dowd point?

Mr. William S. Isham: Yes, Your Honor.

If you remember in the -- in the Dowd against Cook case, Judge -- Mr.Justice Black wrote the opinion.

It was admitted that there had been a constitutional violation of -- of the Equal Protection Clause, which kept that man from perfecting an appeal that every other citizen of Indiana had a right to for 17 years.

Now, then, the question that arose, having done that, what is the proper remedy?

And this Court held that if he could get a full and complete review of his initial conviction and if the Supreme Court then affirmed it, why he couldn't have been heard and, of course, he couldn't have been.

He was there for life, it didn't make any difference about a 17-year delay for the affirmance of a conviction, of the initial conviction.

But to grant him a new trial 17 years later, he's been in prison for 17 years.

What facility does he for collecting evidence?

Justice Felix Frankfurter: What you're saying is on the merits, that the Supreme Court put on the record and make the determination, but you can't put the thing from the usual method of putting in fact namely a jury, is that what you're saying?

Mr. William S. Isham: That's a -- that's a pretty --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. William S. Isham: -- concise statement of what I'm saying about that, Your Honor.

Now, I've -- I've used up my time and I haven't once discussed the other thing.

If the Court wishes, I can spend five minutes out of the --

Chief Justice Earl Warren: You concluded, Mr.--

Mr. William S. Isham: Well, I've used up my time.

Chief Justice Earl Warren: No, you have --

Mr. William S. Isham: I have not yet discussed the other question.

Chief Justice Earl Warren: -- you have until the red light comes on.

That would come on in the -- in two or three minutes anyway, but you have until the red light comes on.

Mr. William S. Isham: It's our contention -- it's our contention here that this confession was the type of confession that was talked about in the Watts case.

As a matter of fact, the coat of many colors, the issue of fact, the coat of many colors.

We even have -- we even have one of the parties here, his name is Joseph.

Now, in this case, it must be remembered that these witnesses were testifying as to events which occurred 18 years before they testified.

There was no record made of the first trial at all.

That was not available to them.

It was that kind of evidence.

You have police detectives interrogating, separately, men who were injured, who would have no medical attention for at least three days, who certainly had infected wounds, there's no denial of that.

There's no dispute about that or a shot clear through.

They were being interrogated by the associates of the man who was shot.

Now, it does seem to me that that's a place where the Court could qualify the language of Mr.Justice Frankfurter in the Watts case, that we can't deny, as judges, things we know as men.

Now, I don't care how beautiful the language was about the little Pollyanna talk that they testified they had with these prisoners, but here are associates of the man who was shot along with each of these men separately, both of them wounded, both -- and each instance they -- they had no attorney.

They were not taken before the magistrate as the -- as the Indiana law requires.

They never did get there.

They didn't see a lawyer until after this man died 11 days.

They were held locked up.

They were taken to the hospital immediately after they signed a confession, immediately after.

Now, the evidence shows that the -- the police officers said in interrogating them that they never asked for a lawyer.

That they never complained to me that they were suffering and so forth, they never looked at a wound.

That's the undisputed evidence here.

The police officers never examined one of their wounds.

They know they were shot.

They knew it.

They knew the bullets had gone clear through them.

They said they couldn't do anything about it, so they didn't even look at the wounds.

They stated --

Justice Hugo L. Black: It's undisputed?

Mr. William S. Isham: That's undisputed.

Yes.

Justice John M. Harlan: I thought the testimony was that the doctor had come in before they were interrogated.

Whether it's true or not, I don't know.

Were they paying for him?

Mr. William S. Isham: No, I'm talking about -- maybe you misunderstood me.

I'm talking about the detectives at the detective bureau.

At that time, while they had him they did -- they don't need any doctor there, until he'd signed the confession.

Then they took him over to the hospital immediately after.

Now, there is evidence, Your Honor, that at the state police headquarters, a doctor had looked at these wounds.

That doctor, of course, didn't testify and -- but that's -- that's a disputed question, we'll throw that out.

But the -- the -- the man in charge of the interrogation did not look at the wounds to see how severe they were.

They said they couldn't do anything about it anyway.

They said that they never asked for an attorney, but they also said that they wouldn't have gotten one, if he had asked until they got through their questioning.

Meaning, he'd sign his confession.

They said his parents had never been there to see him and that they could have been if they'd come after they got through interrogating.

And after they got through interrogating, the courts as when they signed the confession.

Now, all that's in the record and is undisputed, and with the picture, the background -- the background of plainclothesman interrogating two men charged for shooting one of their fellow plainclothesman on the Indianapolis police force.

And with these men in the physical condition they were admittedly in, it does seem to me that you have a background where the Court should look into this thing and weigh some of this evidence as it has done in other cases regardless of what the Court is saying.

Now, one of the things here in this case which -- and -- and one of the things which points to the danger of having a trial 18 years afterwards, as this was, all of this is evidence that occurred 18 years after the fact.

Here were men, 75 years old, retired from the police force, testifying about who was there and what the fellow said and what he didn't say 18 years before.

Now, another thing, both of the defendants in that -- that case charged that the -- that the -- the confession was made the following day rather than the day that the police said.

This is admitted that immediately after the confession was signed, they were taken to the hospital, the city hospital, city police city hospital, they were taken over there.

But when this case came for trial, the record of that hospital showing when they were admitted for that treatment, it would seem to me would be rather conclusive about how long they'd have them under surveillance and how long they'd have them under questioning, but that was not brought out.

I assume it was because the long lapse of time had meant disappearance and destruction of the hospital record.

That's just one of the things, some of the guns were missing, no ballistics was available at all and after 18 years, I don't care what you try to do, you can't have anything that bears semblance to a fair trial.

It isn't a trial at all, it's just a mockery.

And that's what these men had.

Justice Potter Stewart: Mr.Isham, before you sit down, may I ask you this.

I -- I wasn't here when this petition for certiorari is considered by the Court.

Did you in the petition include and ask the Court to consider your -- your Dowd point, the point that these men were prevented from taking an appeal?

Mr. William S. Isham: Frankly, I --

Justice Potter Stewart: Or I -- I would --

Mr. William S. Isham: Frankly, I don't know.

I did not prepare the petition.

I had a thing happened in my family I -- I didn't prepare it myself and I don't know.

Justice Potter Stewart: You don't know.

Mr. William S. Isham: As a matter of fact, they never wrote the brief.

Justice Potter Stewart: Does this record, this -- this present record, present that issue as the --

Mr. William S. Isham: The present record does not present that issue as -- as I see it, Your Honor, although I did feel that it present -- it was presented in the Indiana Supreme Court --

Justice Potter Stewart: In the Indiana Supreme Court, if (Voice Overlap) --

Mr. William S. Isham: -- by virtue of their other two opinions.

Justice Potter Stewart: If that -- if that court had taken judicial notice of its other -- of other records before.

Mr. William S. Isham: That's -- well, they actually -- actually they -- they did in their opinion which is in the appendix here.

They -- they decide the question adversely to us and then they go on and say that there's nothing in the record about it, before them.

And actually, in the -- in the transcript of the record before them, was just a murder case, tried 18 years after the murder was committed or what it ever it was.

And there -- there it wouldn't have been admissible in that case, of course.

Justice Potter Stewart: But your point is I -- as I gathered, I'm dense about it, but that -- that is -- is the most important constitutional issue in this case.

Mr. William S. Isham: I feel that that is the most important thing.

Justice Potter Stewart: And that if you were right, it will entitle these people to be free and not tried again at all.

Mr. William S. Isham: That is right.

Justice Potter Stewart: And in order to present that issue, you have to go back to the Indiana courts, if there were a new trial.

Mr. William S. Isham: Oh, yes.

I'd have to go back to Indiana.

Justice Potter Stewart: And that have been in Indiana and then up through the Supreme Court of Indiana and then probably a writ of certiorari here before you could begin --

Mr. William S. Isham: That -- that is right, Your Honor.

Justice Potter Stewart: (Voice Overlap) --

Mr. William S. Isham: And that is the purpose I -- I don't want to correct the feel that -- that I have any positive idea that, of course, that these men were tried again in Indiana they'd be convicted.

I don't think that but -- but I do -- I do mean that when you attempt to evaluate the risk, hear -- hear, a man -- hear a man when they take the witness stand.

They're not men who were just charged with crime, they're men who spent 18 years in the federal -- in the -- in the state penitentiary, which is enough of itself to put a blast on anything they might say.

It's anything they say why it's -- it would have no credence whatever.

And your records lost -- this hospital records.

Now, I think that would be a very important item of evidence to know the day that those men were treated in the hospital because that was the day the confession was signed.

And there is, or was, certainly a -- a hospital record which very clearly indicated that, but it wasn't at the trial and it probably was lost along with things that get lost after so long a period of time.

It just stopped and think back, 18 years ago today, Pearl Harbor, 1941.

What the -- what does -- what does one remember about episodes back in 1941, except things that were just tremendously outstanding?

And -- and that is the -- that's the test that these men are all put to and it does seem to me, Your Honors, that -- that in this -- in this sort of settlement where the evidence is coming 18 years after the fact, and the -- the whole picture taking into consideration that we know how policemen treat men who shoot policemen.

Well, that's the crime -- deal of crime.

Justice John M. Harlan: What do you say as to the Supreme Court's speech, the Supreme Court of Indiana's speech to the point you've been arguing on page 206 of the record where --

Mr. William S. Isham: Yes.

Justice John M. Harlan: -- they considered the contention to say that they confined no prejudice by reason --

Mr. William S. Isham: Yes.

Justice John M. Harlan: -- of the disappearance of any evidence --

Mr. William S. Isham: Yes.

Justice John M. Harlan: -- and no missing witnesses are suggested.

Mr. William S. Isham: Well, I -- I don't believe -- of course, I don't believe, Your Honor, that -- that wasn't in the record, there was no such question presented in the record, you see.

Justice John M. Harlan: Well, it's (Voice Overlap) --

Mr. William S. Isham: And I don't think it's incumbent upon a person who has been the victim of a violation of the Fourteenth Amendment to come in and show how badly he got hurt and the presumption is he didn't get hurt.

I think it would go the other way.

It seems to me it would be the duty of the State to come in and say, "Well, even if we were (Inaudible) for all of these 18 years, still he didn't get hurt, that's virtually what was done of the Cook case.

And in the Cook case, if the -- if they had been able to give him a -- an appeal 18 years afterward of his original conviction, and the Supreme Court affirmed it, why he wasn't hurt because they would've affirmed it one year after his conviction.

But when he was granted a new trial that cast a whole new light on it because other men are entitled to new trials within less than 18 years after the crime of which they're charged.

And that's my feeling about that.

Chief Justice Earl Warren: Well, Mr.Isham, then as I understand it unless there was some possible way of reaching the point you were arguing first, which you -- if you say very frankly, is not before us.

Mr. William S. Isham: That's right.

Chief Justice Earl Warren: Your -- you believe that your clients would be harmed if we -- if we found that these confessions --

Mr. William S. Isham: Confessions were invalid.

Chief Justice Earl Warren: -- were illegally obtained and -- and reverse the case for that reason.

Mr. William S. Isham: I do, Your Honor.

And that's my considered opinion about it and I -- I realize that it's a -- I'm sticking my neck out a long way.

But I -- I believe that and -- while I don't want to be put in a position of formerly --

Chief Justice Earl Warren: No.

Mr. William S. Isham: -- do anything that might embarrass me later, I think, they have a chance to get out and they won't live in there 25 years.

Chief Justice Earl Warren: No -- no intent against it.

Your frankness is commendable and Mr.Isham, we want to thank you for -- for undertaking the defense of these impecunious men and that had long haul and -- and it's comforting to us to know that lawyers will do that --

Mr. William S. Isham: Well, it is very nice to have the Court say that.

Thank you.

Chief Justice Earl Warren: Mr.O'Mahoney.

Argument of Robert M. O'mahoney

Mr. Robert M. O'mahoney: Mr.Chief Justice.

Chief Justice Earl Warren: Mr.O'Mahoney.

Mr. Robert M. O'mahoney: May it please the Honorable Court.

I think I should add my tribute to that of the courts to Mr.Isham's appearance here.

I know that during the course of this proceeding he's had a serious personal loss in his family and yet he has continued his perseverance in this cause and I think that the sincerity and principles are beyond question.

I submit, however, that the essence of his dilemma in his action really is that the question before this Court has already been resolved against him.

The record conclusively resolves it against him and the fact is that these petitioners were not denied their constitutional rights in the courts of the -- of the State of Indiana.

They were not convicted on the basis of coerced confessions.

The confessions that were admitted at their trial in Hancock County, Indiana were not coerced.

Now, Mr.Isham made most of his argument on other points and for that reason I shall, as soon as I can, devote a good deal of time to those points since I think the Court is interested in -- in them, but I think first of all that we should discuss the question which the Court has before it which is the admissibility of the confessions either written or oral.

Chief Justice Earl Warren: Do you think that's all we're interested in, Mr.O'Mahoney?

Mr. Robert M. O'mahoney: Now, first of all, there are three points or four points rather that perhaps we didn't bring out this sufficient clarity in our brief in this cause and I'd like to point those out and the first one is important, I think, particularly because the emphasis of Mr.Isham put on the situation which existed in 1935 in Indiana when these two petitioners where apprehended after having been in a shooting scrape with Indianapolis Police Department officers.

First of all, the officer who was later dead was not dead at any time during these -- when the statements were taken.

Now, that doesn't mean that it wasn't possible for coercion or duress have been used on them because the police officers who were interrogating them were fellow officers of an officer who had been wounded.

But I think it's important because there was not a reason for the hysteria that a death of a fellow officer might have generated, at the time.

Well, this was December the 10th.

The officer was very much alive.

And in fact on December 13th, as the record shows, he identified these petitioners from his hospial bed.

He was in sufficiently good health at that time.

Now, what happened --

Chief Justice Earl Warren: When did he die, Mr.O'Mahoney?

Mr. Robert M. O'mahoney: He died 8th -- December the 18th.

This was five days after he identified --

Chief Justice Earl Warren: Yes.

Mr. Robert M. O'mahoney: -- the petitioners and it was either and I say either, it was either six days or it was eight days after their confessions.

Now, there are some things that are undisputed in this record and there are other things that are disputed and I take issue with my fellow counsel on what those things are.

So, I'm going to start from the beginning.

These two individuals escaped from Michigan City Penitentiary together.

They were in the penitentiary on a 10-year sentences for auto banditry and they are approximately had served half of their sentences.

They were -- they rented an apartment in Indianapolis and on December the 7th, two Indianapolis police officers went to that apartment, knocked on the door and gained entrance.

Now, their dispute is to how they gained entrance, but they did gain entrance and there was a gun battle.

After the gun battle, in which all four participants were wounded, these petitioners made their escape by running out of a backdoor, down a stairway, through an alley and intercepting an automobile being driven by a doctor.

They relieved the doctor of his automobile and drove with his car which included his medical kit to a town near Rushville, Indiana, approximately 50 miles distant from the City of Indianapolis.

There, they remained from December 7th until early on the morning of December 10th, when a squad of State police officers surrounded the house and succeeded in capturing them without any further bloodshed or gun battles.

They were taken from their place of capture to the Rushville State Police Post.

The record doesn't say how long they remained there.

They went from there to the State --

Justice John M. Harlan: (Inaudible)

Mr. Robert M. O'mahoney: This is December 10th, early in the morning, 1:30 --

Justice John M. Harlan: (Inaudible)

Mr. Robert M. O'mahoney: Two days and about a half as they were there the afternoon of December the 7th.

It took -- it takes about an hour, I'd say, an hour and a half.

And they were all -- they're all of the 8th and all of the 9th until the morning of the 10th.

Now, they were taken from the Rushville post to the Indianapolis State Police Headquarters which at that time were located in the basement of the Statehouse.

And there, according to the State's version of what happened, they were held without being talked to by any police officers except the captain who was in charge of the state police until they were attended by the state police physician, Dr. Byrd (ph).

Now, their version is they weren't, but these -- these two versions are directly contradictory.

Dr. Byrd (ph) treated them an hour according to State's version of the case and was paid by them out of money they had on their person when they were captured.

About 8, 8:30 or 9 o'clock that morning, they were turned over by the Indiana State Police to the Indianapolis Police Departmet and were taken then to Indianapolis Police Headquarters.

Now, here the story is diverged diametrically.

According to the State's version of the events, they talked freely about what happened at all times when they came from the Rushville post to the state police headquarters.

There are statements in the record.

There is testimony that they admitted the crime at that time.In fact, were boastful about it, proud of it.

There are statements between the Indianapolis Police Department Headquarters and the Indianapolis State Police Headquarters.

According to the State's version of the events, within a matter of two hours or less, after their arrival on the morning of December 10th at Indianapolis Police Headquarters, they had signed their confessions.

They were then and here we agree, immediately taken to the city hospital.

Now, Mr.Isham raises a question and I think it's a good one as to why weren't the hospital records introduced at this time to show just exactly what the date was.

And I don't think we have to wonder very long about that reason.

The reason that they weren't introduced is because if they had been introduced, they would not have confirmed the petitioner's story.

More than that, why wasn't the testimony of say the attending physician at the city hospital introduced by the petitioners who were well aware, in advance, that they would raise this issue at the trial and who did raised it and who would have a hearing outside the presence of a jury on the question of the admissibility of these confessions and introduced only their own statements at that hearing?

The reason that they didn't introduce it appears in the testimony of the individual concerned.

He did testify as a witness at the trial and he did testify as to this question.

Now, his testimony appears at page 192 or 193 of the printed record.

And I think it pretty well shows why those records weren't introduced.

And apparently, although this is only surmised, they were in existence at the time of this trial.

This is the testimony of Dr. (Inaudible) and he testified that he was the superintendent or the assistant superintendent of the city hospital when these men were brought in the hospital.

He further testified that he was the attending physician when they were brought in the hospital.

He testified that they were brought in the hospital sometime around the morning of December 10th and he testified further and I think this is extremely important, that it was his opinion and this appears at the middle of page 195.

That the physical condition of these two men -- now, this is on December 10th, did not warrant their hospitalization.

They were examined and treated as outpatients at the city hospital.

Now, I submit to you that's the State's version.

Their version is that they were held for all of the 10th, all of the 11th, without proper medical treatment that they were in serious condition, that they were held in cells overnight without food and without water.

That's their version.

There's not a single bit of evidence in the whole record to verify any statement they make along that line.

Justice Felix Frankfurter: (Voice Overlap)

according to the State's version, how many witnesses -- I take that they were all in the state police or Indianapolis State -- State Police or Indianapolis police.

How many, in number, testified that these so-called confessions were of voluntary outpouring (Inaudible)

Mr. Robert M. O'mahoney: Well, the hearing on the confession of Mr. Pierce, which was the first one held, appears at page 56 of the printed record and it contained as well as the testimony of Pierce, the testimony of officers McCarthy, Giles, and Pope, three officers.

Justice Felix Frankfurter: They -- they all testified what --

Mr. Robert M. O'mahoney: They all testified in --

Justice Felix Frankfurter: (Voice Overlap)

but Mr.Isham called thisPollyanna testimony.

I mean --

Mr. Robert M. O'mahoney: Pollyanna, if you will, it was in complete opposition to what the petitioners had said.

Justice Felix Frankfurter: Yes.

Yes, but they testified they were cross-examined.

Mr. Robert M. O'mahoney: They were.

Justice Felix Frankfurter: As against them was Pierce's testimony, diametrically opposite.

Mr. Robert M. O'mahoney: That's right.

Justice Felix Frankfurter: Is it before a court?

Mr. Robert M. O'mahoney: That's right.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Robert M. O'mahoney: Before a court without jury.

Justice Felix Frankfurter: Without jury.

Mr. Robert M. O'mahoney: And after the conclusion of the hearing, while the Court ruled that the confessions were admissible and admitted.

Justice Felix Frankfurter: Was the -- is the practice in your state as it is in some states, but then the matter is also put to the jury?

Mr. Robert M. O'mahoney: No.

The jury, although there is constitutional provision in our State that says the jury determines matters of fact and law, the practice says that the court rules on the admissibility of the confession.

Now, I think that they probably might have been entitled to an instruction on the point of this.

Justice Felix Frankfurter: Whether you believe it or not, what -- what weight you give to it.

Mr. Robert M. O'mahoney: But there is nothing in the record as to whether of such a --

Justice Felix Frankfurter: In any -- the court instructed them that the testimony -- that the confession is admissible as it having been voluntarily and not coerced, is that it?

Mr. Robert M. O'mahoney: I -- I don't know --

Justice Felix Frankfurter: Yes.

Mr. Robert M. O'mahoney: -- they instruct.

That's not in the --

Justice Felix Frankfurter: Any other who reached these witnesses and here -- and the two were -- and Joseph and Pierce, is that right?

Mr. Robert M. O'mahoney: That's right.

On the first hearing, just Pierce, now, this was Pierce's --

Justice Felix Frankfurter: Yes.

Mr. Robert M. O'mahoney: And later, there was only one police officer who testified at the hearing on Joseph's --

Justice Felix Frankfurter: Any -- Joseph against the police officer.

Mr. Robert M. O'mahoney: That's right.

Justice Felix Frankfurter: And the judge --

Mr. Robert M. O'mahoney: In that particular --

Justice Felix Frankfurter: -- who believed -- believed the police officer.

Mr. Robert M. O'mahoney: That's correct.

Justice Felix Frankfurter: And in order --

Mr. Robert M. O'mahoney: Of course in that --

Justice Hugo L. Black: -- to decide -- in order to take Pierce's version and Joseph's version, this Court would have to take judicial notice that the policemen, at least, in Indiana commits perjury when they testified.

Mr. Robert M. O'mahoney: That's correct.

He decides it.

Now, there is something else.

Justice William J. Brennan: (Voice Overlap)

can you tell me a -- a ground to accomplish the new trial was granted?

The evidence to which the record (Voice Overlap) --

Mr. Robert M. O'mahoney: The new trial -- Mr.Isham correctly stated that the new trial was granted on the basis that these men had been denied their Indiana constitutional right to an appeal and they were given a new trial.

Justice William J. Brennan: Yes.

There's nothing to do then with any allegations concerning the confession -- the confession?

Mr. Robert M. O'mahoney: No.

Justice Potter Stewart: Well, I should -- would that follow or I'd say it been denied their right to an appeal wouldn't the appropriate thing to do and then to give them an appeal rather than a new trial.

Mr. Robert M. O'mahoney: Well, our procedure is this.

That if you want to prefect -- perfect an appeal, you file first a motion for a new trial.

Justice Potter Stewart: Yes.

(Voice Overlap) --

Mr. Robert M. O'mahoney: Of course, if you get the new trial, you gotten all, you've gotten by an appeal.

Justice Potter Stewart: Right, so there's no appeal, then.

Mr. Robert M. O'mahoney: And here we're in the similar position.

They weren't in a position they felt to go to the Supreme Court of Indiana.

We've setout the petition for a belated motion for a new trial.

And against -- for from which an adverse ruling on which you may appeal to the Supreme Court of the State.

And this is the procedure that has developed.

Justice Potter Stewart: I understand.

So what --

Mr. Robert M. O'mahoney: (Voice Overlap) --

Justice Potter Stewart: -- what happened has happened, but its -- it just occurred to me that if it is an appeal that they were denied, the appropriate thing might've been for Indiana to review, on appeal, the propriety of -- of their first trial back in 1934 or 1935.

Mr. Robert M. O'mahoney: Well, I think they were faced --

Justice Potter Stewart: However it didn't --

Mr. Robert M. O'mahoney: -- faced with several difficulties, among them, the nonexistence of a transcript.

Justice Potter Stewart: I see.

I see.

Mr. Robert M. O'mahoney: Although that -- I think that was -- had something to do with the trial court's decision that would be necessary --

Justice Potter Stewart: I see.

Mr. Robert M. O'mahoney: -- to grant them a new trial.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert M. O'mahoney: This is correct.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert M. O'mahoney: Eliminating the need for an appeal.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert M. O'mahoney: Now, this question was --

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert M. O'mahoney: Pardon?

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert M. O'mahoney: That's right.

Justice Charles E. Whittaker: Is that right?

Mr. Robert M. O'mahoney: That's right.

Now, this question was raised in their petition for a certiorari.

Justice William J. Brennan: Now, one last question, if I may.

Then, do I understand after the new trial and the new conviction then was there another timely motion for a new trial which was denied resulting in review in the Supreme Court?

Mr. Robert M. O'mahoney: Yes, except this.

There were actually two new trials.

In the second subsequent trial, they got a hung jury.

Justice William J. Brennan: Oh, I see.

Mr. Robert M. O'mahoney: And then they were tried -- a third, they were tried in November of 1953 and that resulted in a hung jury and they were tried again in February 1954 and it is from that, that we --

Justice William J. Brennan: Then there was a motion --

Mr. Robert M. O'mahoney: -- arrived here.

Justice William J. Brennan: -- for a new trial under your practice and then review in the Supreme Court?

Mr. Robert M. O'mahoney: That's right.

Justice William J. Brennan: And it's -- that Supreme Court judgment for this --

Mr. Robert M. O'mahoney: This petition for a certiorari has been granted.

Now, they raised this issue concerning the -- what would happen to them.

The -- the proposition which, I think, if I understand Mr.Isham correctly, is what he would like to contend here but it's for -- gone from contending because of the ruling of the court on the petition for certiorari, they raised the issue of this denial of a right to an appeal.

Because Mr.Isham seems to feel that if that had been -- if that they gone up through the Supreme Court of Indiana, they might somehow rather have gotten to federal court and filed a writ of habeas corpus having then exhausted their state remedy.

And Mr.Isham, I submit, is entranced with that system because it worked for Lawrence Cook, who was a good friend of these two petitioners and has helped them as far as these proceedings are concerned, a great deal.

But, I submit that Mr.Isham misunderstands what this Court did in the Cook case and I don't think -- he doesn't misunderstand the result, but he understands how it was -- misunderstands how it was achieved.

This was raised in that Cook case and I'll -- I'll read just a -- a moment from my reply to the petition for certiorari originally granted or made.

I say in an earlier part of their petition under the heading of questions presented for review, petitioner cites Dowd versus United States ex rel.Cook, which is in 340 U.S.206.

And I say that petitioner seemed to cite the Cook case in support of the contention that unless they were granted an appellate review of their original conviction, they were under the language of the Cook case.

Now this is Mr.Isham's contention, as I understand it here, entitled to an absolute discharge.

This is not the holding of the Cook case and I submit it is not.

The last paragraph of that case as it's decided by this Court is as follows and I quote at page 46 of -- I'm sorry.

I don't -- I don't have the exact page of that citing.

But anyway, the quotation is this, “On remand, the District Court should enter such orders as are appropriate to allow the State, a reasonable time, in which to afford respondent the full appellate review he would have received, but for the suppression of his papers, failing which he shall be discharged.”

What happened was they failed.

They didn't --

Justice William J. Brennan: And what's (Voice Overlap) --

Mr. Robert M. O'mahoney: -- render of an appellate review.

Justice William J. Brennan: -- is their a relationship of some type between these two men and Cook?

Mr. Robert M. O'mahoney: They were fellow inmates --

Justice William J. Brennan: Oh, but not involved in the same crime?

Mr. Robert M. O'mahoney: No, not in the same crime.

But that's -- that did achieve Cook's discharge because of the Supreme Court of Indiana didn't review his case and the ultimate result of it in compliance with the court's order was that he had to be discharged, but had they reviewed his case, the only thing he could have achieved was a new trial.

Justice Hugo L. Black: (Inaudible)

Mr. Robert M. O'mahoney: I don't know, Mr.Justice Black, why they didn't.

Now, I want to say something else in regard to this constitutional issue that they've raised here and I think it's very important and it's this.

Paul Pierce took the witness stand in this case.

Now, I regret we haven't got that in the printed record, but we -- through our own inadvertence didn't do it, but I think Mr.Isham will conceive this is true.

He took the witness stand and admitted that he shot Orville Quinnette, the police officer.

There isn't any question, whatever, about him shooting the man.

And we do have in his printed record his own admission in the statements made in the hearing on the admissibility of his confession that he did shoot Orville Quinnette.

He says that and that appears in here.

Now, the difference between his version of the events and the confession to which these people object and which they say was coerced is the slight one and it's only this.

He says that Quinnette came in the door, pulled a gun and started shooting and that he shot back.

It would seem to mean self-defense.

Now, of course, admittedly at the time these two men were fugitives from justice and escaped prisoners from Indiana State Prison and I don't think his version of the story was believed.

But he admits shooting the man.

There isn't any question about him shooting the man.

And his version from the so-called coerced confession is a slight one, a very slight one.

Justice Potter Stewart: Does that really refer the difference between killing an innocent, isn't it?

The mere fact you shoot and kill somebody, doesn't mean you're guilty of any crime at all like this.

Mr. Robert M. O'mahoney: Well, when taken in context --

Justice Potter Stewart: (Voice Overlap) --

Mr. Robert M. O'mahoney: -- you see when he admitted that he shot Quinnette in his confession.

He wasn't admitting he killed Quinnette.

He only admitted he shot him.

Justice Potter Stewart: But if it really is in self-defense that -- that is --

Mr. Robert M. O'mahoney: That's a defense --

Justice Potter Stewart: (Voice Overlap) --

Mr. Robert M. O'mahoney: -- certainly, a complete defense.

Justice Tom C. Clark: (Inaudible)

Mr. Robert M. O'mahoney: That's right.

Justice Potter Stewart: How about -- did the other man testify, Joseph?

Mr. Robert M. O'mahoney: They both took the witness stand.

Justice Potter Stewart: Is Joseph also at the shooting?

Mr. Robert M. O'mahoney: Well, Joseph didn't actually shoot --

Justice Potter Stewart: (Inaudible)

Mr. Robert M. O'mahoney: -- Quinnette.

Justice Potter Stewart: He was there.

Mr. Robert M. O'mahoney: There is some dispute about whether he shot anybody.

There is a claim that he shot the other officer, Russell Chatham, who testified in that at all.

The -- the petitioners believe that Officer Chatham shot himself.

So that's -- it hardly matters.

I want to say just one other thing and I think that I'm done -- or two other things.

There's been some comment here that leaves inference that there is something defective in the post-conviction remedies in the State of Indiana, and it was said earlier in this Court in another case, the earlier case which was here last week.

While this is not an issue here, I think I should point out that we have post-conviction remedies in Indiana that we believe are adequate.

And that they're available to these petitioners as they are to any others and we are not forced to adopt the Due Process Clause.

We have a Due Process Clause in our own Constitution, which we enforce, I hope, in most cases.

Justice Felix Frankfurter: Mr.O'Mahoney, may I raise a matter that is not an issue here -- not immediately before us in a larger aspect.

At the time of the Watts case which -- of which you know, the Indiana case --

Mr. Robert M. O'mahoney: Yes.

Justice Felix Frankfurter: -- we also had a similar situation coming up from Ohio.

Mr. Robert M. O'mahoney: The -- the Haley case?

Justice Felix Frankfurter: The Haley case, as you know.

And these are not -- these are not edifying the present cases if one would deal with it.

Take the Watts case which was not a very happy record to face.

Nevertheless, one had to face this one dearly.

In Ohio, as a result of the Haley case, I don't know whether generally, that's been, in Ohio, my Brother Stewart would know, but certainly in some of the cities, they introduced the method whereby whenever they (Inaudible) confession like this, a so-called confession, I say so-called (Inaudible) case, you always have some disinterested third person present (Inaudible)

Justice Potter Stewart: As a matter of practice (Inaudible)

Justice Felix Frankfurter: As a matter of practice.

That's been introduced in the Haley case.

Now, I just wonder whether -- whether the law enforcing agencies of Indiana thought about such things.

It's an -- it's -- it seems to me an easy thing, it takes care a lot of this authority --

Mr. Robert M. O'mahoney: It is to my knowledge practiced in some counties.

It depends --

Justice Felix Frankfurter: In Indiana?

It is practiced.

Mr. Robert M. O'mahoney: In -- in some counties, it depends on the prosecuting attorney and I may say that in Indiana, prosecuting attorneys or constitutional officer whereas the Attorney General of the State isn't a -- office that is a creature of statute.

Justice Felix Frankfurter: You don't supervise (Voice Overlap) --

Mr. Robert M. O'mahoney: We have no supervisory power over our prosecutors.

Justice Felix Frankfurter: But -- but that is a practice is some of your counties, isn't it?

Mr. Robert M. O'mahoney: In some of our counties.

I know one specific instance is Vigo County.

I don't know that it's practiced in Marion County which is where this case or cause originated as far as confessions are concerned.

Now, there's one other thing.

The comment was made as to parole and what possibilities a parole are.

Now, I can't speak for the parole authority of the State of Indiana, but I have dealt with the -- our criminal institutions for the past three years.

And it is true that it is a policy while matters are pending in court, that they do not parole men.

Now, this policy is a sound one.

I think if you contemplate it.

And it's sound for this reason, if a man files a petition for writ of habeas corpus in the Federal Court of the Northern District of Indiana alleging that he's being held unconstitutional in one way, the end of the proceeding summarily as far as the State is concerned would be paroling.

Then whatever the question was, it wouldn't come up.

We don't do that.

If he wants to prosecute a writ and says that he's being held unconstitutional, let him prosecute his writ and settle -- settle the issue in court.

After the matter has been settled, one way or another, then the parole authorities can go and can decide whether he's a good parole risk under the circumstances.

Unless the Court has some questions, I --

Chief Justice Earl Warren: Mr.O'Mahoney, you (Inaudible) me expressed appreciation to Mr.Isham for his representation of these indigent defendants.

I want you to know that the Court also appreciates your helpful and very fair representation of the interest of the State of Indiana.

Mr. Robert M. O'mahoney: Thank you.

Chief Justice Earl Warren: We'll adjourn now until noon tomorrow.