BLACKBURN v. ALABAMA

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Argument of Truman Hobbs

Chief Justice Earl Warren: Number 50, Jesse Blackburn, versus -- Petitioner, versus Alabama.

Mr. Hobbs.

Mr. Truman Hobbs: Mr. Chief Justice, Honorable Associate Justices of the Court.

11 years ago, Jesse Blackburn, a young Negro, been a young Negro, was taken into custody by the State of Alabama on the charge of robbery.

He has been continuously held in the custody of Alabama from that date to this.

The first five years, he was detained in an insane asylum in the State of Alabama under the adjudication by the Circuit Court of Colbert County, that he was insane.

For the last six years, he has been detained in prison in Alabama on an adjudication by the Circuit Court of Colbert County that he was not insane.

If this seems arbitrary and inconsistent, we think the facts will abundantly show that it is just that.

Petitioner was before this Court at the 1956 term, seeking the reversal of his conviction on the ground that the confession upon which his conviction was predicated was involuntary and hence denied him the due process of law guaranteed to all persons under the Fourteenth Amendment of our Constitution.

This Court vacated the judgment of conviction and remanded the case to the Courts of Alabama because of uncertainty in the record as to whether the Courts of Alabama had passed upon petitioner's constitutional rights.

The opinion of the Court of Appeal which is set out in the record, makes abundantly clear at this point, that the Courts of Alabama have passed upon the constitutional rights of the petitioner under the Fourteenth Amendment and have rejected his contentions under that Section of the Constitution.

The conviction and sentence imposed by the Circuit Court of Colbert County on petitioner was to 20 years imprisonment.

The facts concerning the weight that this confession was obtained, came entirely from the Deputy Sheriff who procured the confession.

This was necessarily so because petitioner was -- Jesse Blackburn was unable to recall any of the events leading up to his arrest, his confinement in prison and indeed for some months or years after he was committed to the insane asylum in Alabama.

The medical records of this petitioner reveal that, he had already had a determination by medical doctors, was apart of his record, that he did suffer recurrently from prolonged period of amnesia.

Whether this was the reason that at the trial, he couldn't recall of whether it was the treatment given him in the hospital in Alabama which as you know, with respect to schizophrenic, frequently include shock treatment whether that was the reason he couldn't recall any of this circumstances, we don't know, but the fact remains that the sole testimony did come from the Deputy Sheriff.

Justice Potter Stewart: Would you think that they found that there is a regional confinement to the asylum was upon a formal adjudication of insanity?

Mr. Truman Hobbs: Yes, sir.

Justice Potter Stewart: Not just that interim two judge -- two doctors business or something --

Mr. Truman Hobbs: There was, Your Honor.

That the -- the Circuit judge in Colbert County had it -- his attention -- called to the fact that it was ground for believing Blackburn was insane.

He then called two local doctors in.

They examined him and -- and indicated that they agree with the conclusion that there was probable ground for believing he was insane.

And then there was a three – three-doctor board that passed on his sanity, and this board was unanimously of the opinion that he was insane.

Following this determination by the three-man-board, there was a formal adjudication by the Circuit Court that he was insane and he was then transmitted to Mt. Vernon, the insane hospital, in Alabama and he was forcibly detained there, as is shown by the fact that he escape and was --

Justice William J. Brennan: I have to -- what was the procedure by which, as I understand it, five years later, it was determined that he was now sane enough to stand in trial?

Mr. Truman Hobbs: The doctors, the hospital -- the insane hospital of Alabama in which he was committed, set to the Circuit Court of Colbert County in a memorandum to the effect that in the opinion of the -- authorities that were holding him, he was now sufficiently restored his sanity to stand trial.

Justice William J. Brennan: That was the extent of remedy?

Mr. Truman Hobbs: Yes, sir.

Justice William J. Brennan: May I ask, was the adjudication, the original adjudication and the adjudication of insanity, as of the date of the commission of the alleged crime?

Mr. Truman Hobbs: Let me -- let me refer to that in the record.

At page 38 of the record, there is the order of the Court of Colbert County, committing Jesse Blackburn to the Alabama State Hospital for observation and report.

Now, that is what brought in to operation in this three-man-board.

On page 44 of the record, is the formal adjudication by the Circuit Court of Colbert County that Jesse Blackburn be --

Justice William J. Brennan: 40, 41?

Mr. Truman Hobbs: -- placed and detained in the asylum until restored to his sanity.

Justice William J. Brennan: But, what I have in mind Mr. Hobbs was, I notice that in 38, the Court says, it's of the opinion that there's reasonable ground to believe that the defendant was insane either at the time of the commission of such offense or at the present time.

My question was, whether the adjudication improved in the adjudication that he was insane at the time of the commission of the offense?

Mr. Truman Hobbs: Well, the determination by the three-man sanity board, determined, if you look at the bottom of page 41, that is from the report of the three-man medical board, they said, “It is the opinion of each of us and our opinion jointly and collectively that the said Jesse Blackburn at the time of his admission to State Hospital on July 29, 1938 was insane and incompetent.

During his stay in the hospital, he is continued to exhibit abnormal thinking and abnormal behavior and it's our opinion that he is presently insane.

From a study of his case and using information from several other mental hospitals where he was formally -- where he was formally been treated, it is our further opinion that he was insane at the time of the commission of the crime but which he was charged.

Justice William J. Brennan: Thank you.

Mr. Truman Hobbs: Then, it was on the basis of that determination by the medical board appointed by the Circuit Court of Colbert County that the Circuit Court entered this formal adjudication committing him to the insane asylum of Alabama and he remained there as I say --

Justice John M. Harlan: Four years before he was tried?

Mr. Truman Hobbs: Some -- something more than four years, yes.

Justice John M. Harlan: And insanity at the time of the offense, I gather was pleaded as a defense, when he was tried?

Mr. Truman Hobbs: There were two pleas, not guilty and not guilty by reason of insanity.

Justice John M. Harlan: And the -- the second was submitted to the jury that --

Mr. Truman Hobbs: Yes sir, both.

Justice Charles E. Whittaker: Under the law, may I ask the bringing the adjudication of Mr. Blackburn (Inaudible) the Circuit Court?

Mr. Truman Hobbs: Yes, sir.

Justice Charles E. Whittaker: It was determined more than the (Inaudible) of that fact that it wasn't that?

Mr. Truman Hobbs: I would think that, that would be -- I would think that that would be a sufficient determination for placing someone in detention, that he was insane at that time, the order of the -- the candid, I don't know but the answer to your question is, how much of a -- how much of a scope -- how much scope the order must take.

But, this order does not go beyond determination that he is insane, yes.

Now, the concern it is --

Justice Potter Stewart: One other question, Mr. Hobbs --

Mr. Truman Hobbs: Yes.

Justice Potter Stewart: -- before you proceed.

You told us that, at his trial, the only evidence as to the circumstances surrounding the contention that he made was given by the Sheriff -- the Deputy Sheriff for the reason that he, the petitioner, was unable to remember.

Then you told us I think that during this period of his confinement in the insane asylum, I'm not -- this is my question, did you tell us the record shows that he was given shock treatments there or did you simply call our attention to the fact that it's well known and this is often given to cases of schizophrenia?

Mr. Truman Hobbs: A little bit of both, I think, Your Honor.

And I don't know that it would be entirely accurate to say, the record reveals that he was given shock treatment.

The record does show however, that he was -- he gave us his reason for fleeing the hospital in Mt. Vernon, the fact that they were coming in to give him shock treatment.

And he was later caught and brought back to the Mt. Vernon Hospital and I think, it's a fair inference that it is not revealed whether that was a first time they sought to give him that -- if -- the doctor was taking his history after he was apprehended.

And he, it's all set out in the record there that at that time he gave his reason for the escape that he -- that they were trying to give him shock treatment and he didn't want it.

Justice William J. Brennan: And what you told us it's all that the record show that whether or not he's actually (Voice overlap)

Mr. Truman Hobbs: Yes -- yes.

Now, under the Deputy Sheriff's testimony, he said that, he began his question of Jesse Blackburn at about one o'clock in the afternoon.

That this questioning continued in -- uninterruptedly until six o'clock in the afternoon and they stopped then about an hour for supper.

And then the questioning was resumed after supper and continued in the words of the Deputy Sheriff until 10 or 11 o'clock at night.

So, we have under the testimony of the Deputy Sheriff, five hours was sustained grilling of interruption for supper and then the continuation which lasted several more hours.

This questioning was carried on in a room about the size of a closet, four feet by six feet or six feet by eight feet.

The Deputy Sheriff was there the entire time and two other law enforcement officers were coming in and out and were joining in the questioning from time to time.

Now, such a confession obtained after nine or 10 hours of -- almost constant grilling by relays of law enforcement officers would be a doubtful validity we submit, even if Jesse Blackburn were facing abnormal will a normal man.

That was somewhat a paraphrase of the statement in the Haley case, Haley against State of Ohio, where the petitioner had been grilled for some five hours straight and was a 15-year old boy and the Court went on to after making a remark that that five hours of sustain grilling would be doubtful validity more of a (Inaudible) years and normal faculties, it then went on say it, certainly was not enough for a person of, only 15 years of age.

Well, of course here, the disability is an incapacity of Jesse Blackburn were incomparably greater than the youth in the Haley case because Jesse Blackburn has spent his entire adult life in an insane asylum, eight years at the time of his trial.

He had -- he started off, we've picked up his trail in the army and he was surveyed out in the army as a permanent mental defective and was transferred to a Government insane hospital.

In 1944, the Government hospital, appraised him at 50% mentally defective.

In 1946, the Government hospital appraised him, as a 100% mentally defective.

It was sometime, in 1948, that he was temporarily released from the hospital in the custody of his sister and while on this -- away from hospital on this temporarily release, that he came to Alabama to attend the funeral of his brother.

It was --

Justice Charles E. Whittaker: (Inaudible)

Mr. Truman Hobbs: Chicago I believe, Illinois, somewhere in Illinois.

Justice John M. Harlan: Was there evidence in the record that he had (Inaudible)

Mr. Truman Hobbs: Yes sir.

The testimony of -- the cross examination of the three medical doctors on the insanity board, talks principally in terms of a -- has he had lose (Inaudible), has he had -- has had been coherent from time to time, they answer those questions that yes, to the effect that he had.

Although Doctor Tarwater, who was superintendent of all the mental hospitals in Alabama, stated that for several months, after he was placed in the custody of the insane asylum, that he had no -- that he was irrational all the time for several months.

Justice John M. Harlan: Or anything linking that to general offenses of all the others, the period of the professionals?

Mr. Truman Hobbs: Well, the -- he left -- he left this mental hospital in Illinois with a determination that he was 100% mentally defective.

He was picked up in Alabama in late April or early May 1948.

His confession was obtained on May 8, 1948.

The doctors took him into custody, in July, approximately two months after his confession and Doctor Tarwater testified that for months after they took him into their custody that he had no rational (Inaudible) at all.

It -- the evidence of Blackburn's insanity is not only revealed by the history of his confinement prior to his arrest, it is also shown by the events that took place immediately following his arrest.

The jailer, who generally is not too sensitive to mental illnesses of -- of his guest, determined that -- that he seemed a little bit crazy to him.

He was the one that called it to the attention of the Circuit judge.

Every person that has ever examined this man, there were seven doctors that had been appointed by the State of Alabama to examine him, everyone one of them has concluded, that he was insane.

Justice Potter Stewart: Mr. Hobbs, can you tell us as the record show, I couldn't see that it did.

Just when it was that the jailer noticed the symptoms of insanity with relation to the time that the confession had been given?

Mr. Truman Hobbs: Your Honor, it's correct.

The record really doesn't show them.

We know that the confession was May 8.

We know that, between May 8 and July 26, the trial Judge had appointed local doctors who had come in and had examined him twice they said, we don't know what lapse of time there was in their visits.

So, we can say that it was, could have been too long a period of time after the confession but --

Justice William J. Brennan: But it doesn't show whether there was a matter of hours?

Mr. Truman Hobbs: No, sir it doesn't.

Well, I think -- I think he does say, the jailer himself says that he was asked a cross examination, if he didn't notice his derangement of short time thereafter and he said, well it was some period of time there.

But, it could have been more than it -- the way the law moves, it would had have been fairly short lived thereafter because we find these orders from the Circuit judge with respect to it, within a period of that two months.

Justice Potter Stewart: If you prefer my reading that (Inaudible)

Mr. Truman Hobbs: Yes sir -- No sir.

Justice Potter Stewart: -- sometimes, shortly or (Inaudible)

Mr. Truman Hobbs: This -- this sanity board which was convened, as we've stated read from this opinion was unanimous that Blackburn was insane at the time they examined him and was -- in their opinion insane at the time the crime was committed.

So, that goes back and covers of course the period of the confession itself.

We mentioned that Blackburn after he was put in Mt. Vernon, that he escaped and the State Alabama had him reexamined after his escape as to his sanity.

Two doctors again, at the appointment of the State Alabama examined him and they were unanimously of the opinion, the two of them that he was insane.

That diagnosis appears at page 154 of the record.

Their diagnosis is schizophrenic, reaction, paranoid type, insane, incompetent and should be place on an insane hospital.

That's at first full paragraph on page 154 of the record.

Based on this diagnosis of the medical doctors, the Circuit Court of Mobile County formerly adjudicated Jesse Blackburn insane and that appears in the record.

So, we have it as I say the determination by seven doctors appointed by the State of Alabama, that this man was insane.

He went to the -- was kept in the hospital for some four and half years, the mental hospital on the basis of that determination.

This was the phase, the adjudication of sanity that this man had ever had and it was the one that sent him out to prison for 20 years, on the basis of this solely as, I think it's fair to say on the basis of this confession, which he gave at the time when all medical opinion agreed that he was insane.

Justice Charles E. Whittaker: Mr. Hobbs, I don't understand the opinion.

You said, this was the first adjudication he had ever had of his insanity.

Mr. Truman Hobbs: Yes, sir.

Justice Charles E. Whittaker: What adjudication are you referring to, the one but, jury in the criminal case?

Mr. Truman Hobbs: Yes.

Justice Charles E. Whittaker: There never was, as I understood, a separate hearing to determine sanity in the ordinary sense.

Mr. Truman Hobbs: No sir.

The -- the jury -- the plea of not guilty by reason of insanity --

Justice Charles E. Whittaker: I understand now.

Mr. Truman Hobbs: -- and they -- they said he was and that's the only time anybody -- no medical opinion has ever suggested that he was insane with the exception of the testimony of Dr. Richards, which we'll reach in a moment.

Justice William J. Brennan: Well, Mr. Hobbs, I guess -- I gather -- I correctly understand you, before to say that, the reason on Alabama procedure which after there has been an adjudication of insanity there may then be a redetermination and an adjudication of sanity?

In other words, I think you told me that, he stood trial on the basis of certification of some doctors of the mental hospital that he was now sane.

Mr. Truman Hobbs: Yes.

Justice William J. Brennan: But -- but there has been no formal determination of sanity and --

Mr. Truman Hobbs: None other than that.

Justice William J. Brennan: And there is no procedure now none of those?

Mr. Truman Hobbs: No, sir.

Justice John M. Harlan: There is no procedure in Alabama for a decree of restoration to sanity?

Mr. Truman Hobbs: Well, yes sir.

The -- the petitioner can seek the restoration in the civil rights and so forth.

I meant that in this case, the procedure which was followed and I take it, it would be the only procedure that would be required under the order of the Circuit Court, the doctors who had him in his custody certify that he is able to stand trial and I think, -- I think that would be -- would be sufficient because they were the ones that -- which the order of committing him into the custody was originally predicated.

Justice William J. Brennan: But they were not, were they, the same doctors who made the formal report, that you referred us to?

Mr. Truman Hobbs: I believe, they were, I believe they were, the same doctors.

Justice Charles E. Whittaker: Well, may I ask you this, Mr. Hobbs?

This is troubling me, as a matter of law if you have a judgment of a state court, a judging the man to be of unsound mind that judgment stands, does it not, until it's vacated by legal proceedings and resulting in a judgment to the contrary?

Mr. Truman Hobbs: Well, the judgment of the Circuit Court, committed him to the insane asylum until he was restored to sanity --

Justice Charles E. Whittaker: Alright.

Mr. Truman Hobbs: And the -- and there is this order of the -- or directive or memorandum, whatever character you wish to -- whatever way you want to describe it, it said he was now restored to sanity.

Justice Charles E. Whittaker: But that just the ex parte statement of the doctor, isn't it?

Mr. Truman Hobbs: Well, it is --

Justice Charles E. Whittaker: No judgment.

Mr. Truman Hobbs: It -- it -- whether the Circuit Court should have been formally in an order base on that ex parte statement of the doctor, I don't know, the record doesn't reveal that there was ever any formal second action taken by the Circuit Court of Colbert County.

Justice Charles E. Whittaker: It would just seem to me that they would not be able to ignore the existence of a final judgment determining insanity so long at it stands that fact is determined, isn't it?

Mr. Truman Hobbs: Well, that -- the formal order does not go -- does not go further than to say that, he was -- wait a minute, it's a -- I've -- I've misled the Court.

If you look at page 6 of the record, there is an order to remove defendant back to Colbert County Alabama Jail to stand trial.

Justice Charles E. Whittaker: Record 6?

Mr. Truman Hobbs: Yes, sir.

Justice Charles E. Whittaker: There is no (Inaudible)

Mr. Truman Hobbs: I'm -- I'm just trying to -- look at this order, no sir, it doesn't.

Justice Tom C. Clark: You had an adjudication against it, is that right?

Mr. Truman Hobbs: Yes, sir.

Justice Tom C. Clark: Was that -- an opinion never had any adjudication, I mean --

Mr. Truman Hobbs: Other than the -- other than the action of the jury, yes.

Justice Tom C. Clark: That's the sanity (Inaudible)

Mr. Truman Hobbs: Yes, sir.

Justice Potter Stewart: Well, you do have something roughly equivalent to adjudication as -- corpus to stand trial in the order mention on page 7 carrying over on page 8.

Page 8 says, "It now appears to the Court that under date of October 7, 1952, the hospital certified to the Court as the opinion on the members and staff that Blackburn is presently mentally competent and should be returned in the custody of this Court."

Mr. Truman Hobbs: That's -- that's --

Justice Potter Stewart: Do that extent of this, you have -- you have such a -- certification.

Justice William J. Brennan: But Mr. Hobbs, perhaps the same question Justice Whittaker asked you, of whether it was an adjudication of insanity as of the time of the offense or as of the time of adjudication, isn't there still outstanding without being vacated a formal Court adjudication of insanity?

Mr. Truman Hobbs: Unless you would regard the order directing the return of the defendant –-

Justice William J. Brennan: This is what appears at 7 and 8, isn't it?

Mr. Truman Hobbs: Yes, sir.

So far as I know, that's the only --

Justice William J. Brennan: And that doesn't saying anything about -- nothing at the side?

Mr. Truman Hobbs: Nothing.

Justice Tom C. Clark: The previous (Inaudible)

Mr. Truman Hobbs: Yes -- yes.

Justice Charles E. Whittaker: And makes no effort to conform with judicial or procedural due process.

No notice service hearing?

Mr. Truman Hobbs: As far as I know, there was none, Your Honor.

Justice Potter Stewart: Our issue here is that -- did not either this man's mental condition at the time of the trial or his mental condition at the time of the commission of the alleged offense.

It is rather his condition at the time that the confession was elicited from him, isn't it?

Mr. Truman Hobbs: Yes -- yes.

Justice Charles E. Whittaker: Well, isn't it more or if there's a judgment outstanding saying that the man was insane, until that judgment set aside under your law, you cannot trial an insane man, can you?

Mr. Truman Hobbs: No.

Justice Charles E. Whittaker: He's not fit for trial, that's the law, isn't it right?

Mr. Truman Hobbs: I think, as I understood Mr. Justice Stewart's question, it was to the -- to the scope of the inquiry that we have brought here.

Justice Potter Stewart: That's right.

Mr. Truman Hobbs: Now, of -- the other point is certainly involved in the, and -- and challenges anybody that is concerned with whether this man got due process.

In answer to Justice Stewart, I have to say that the question that we have presented does not go to that, doesn't go as far as --

Justice William J. Brennan: Now that suggests that you don't have the Fourteenth Amendment question before us on the premise that there is an outstanding form for adjudication of insanity, with was that outstanding in the time of the trial?

Mr. Truman Hobbs: Well, I -- I think that -- that in reviewing the -- the background of this the entire matter, all of these things can be weighed the Court.

But the -- the point that was specifically brought here related to the confession and determined whether the confession is -- is -- was voluntarily and so forth.

I suppose all of these things, the Court sought and so forth, are proper for consideration by this Court.

Justice Charles E. Whittaker: But wouldn't we have to, as a matter of fact if we found that this -- the record show the judgment declaring a man insane and that it was still outstanding.

If we were confronted with that situation even after a plea of guilty on the 2255 motion, would have to set aside, as the illegal, wouldn't we?

In other words, wouldn't we have to notice this as plain error whether raised or not?

Justice Felix Frankfurter: How could we tell what took place with reference to that judgment if the issue wasn't raised, wasn't passed on, wasn't contested, wasn't even raised here?

How can we assume that that -- that that was an adjudication still outstanding and there is nothing in the record to give us any light on it.

Mr. Truman Hobbs: Well, I might -- I might say this --

Justice Charles E. Whittaker: Well, may I say, and before you do it if I may, that's my understanding that a legal situation such as the judgment at least one shown too had been rendered is presumed to continue until the contrary appears.

Justice Felix Frankfurter: And we think it was validated on ground of the Fourteenth Amendment, the state action – the plea wasn't put in issue?

Mr. Truman Hobbs: I – I am frank to say I don't know the answer to that question.[Laughter]

The -- the -- I don't think --

Justice William J. Brennan: Well, you have to Mr. Hobbs --

Mr. Truman Hobbs: I think this --

Justice Felix Frankfurter: I should think the answer is pretty plain that we don't reverse the state court for the violation of the Fourteenth Amendment when the violation hasn't been charged, hasn't been canvassed, hasn't been passed on.

Justice Charles E. Whittaker: But it shows in the record as a matter of law.

Justice Felix Frankfurter: We don't know what other things there might be in the record because it introduces -- there were not being relevant?

Mr. Truman Hobbs: One reason that I can give as a little enlightenment as I'm able to give on this Court is, that I didn't participate at all in any of the State proceedings and what -- what transpired there with respect to this order as I -- I am frank to say, I don't know.

I think I have it but the Court wont need to reach that question in this case because I believe that the matter surrounding this confession violates -- violates decision of this Court.

So clearly, that you won't need to -- to reach the matter of -- of that order.

Justice Felix Frankfurter: And that's what you base your petition on?

Mr. Truman Hobbs: Yes.

Justice Felix Frankfurter: And that's what you base your argument on?

Mr. Truman Hobbs: Well --

Justice Felix Frankfurter: That's what you ask an adjudication on?

Mr. Truman Hobbs: On -- the -- on relating to this confession and all the matters that surround this confession.

Justice Felix Frankfurter: It's all over -- it sounded anywhere on this room?

Mr. Truman Hobbs: Sir?

Justice Felix Frankfurter: This (Inaudible) is sound as anybody in this room you would make the claim on which you came here, namely that the confession was obtained under the circumstances that invalidate the submission.

Mr. Truman Hobbs: That's right.

Justice Charles E. Whittaker: I don't understand, you're giving up any points however though that deprived of his constitutional right to liberty.

Mr. Truman Hobbs: I'm saying that I would be here irrespective of -- of the order of the -- of absence of an order restoring him to sanity.

I -- I would be here anyway on this record contending that his confession was a violation of due process of law.

Justice Felix Frankfurter: Maybe you'll -- maybe – there maybe many reasons why you didn't raise it, or why it wasn't raised, maybe that is still not an adjudicated issue in this Court that a State can execute an insane person.

I express my opinion, but the Court hasn't.

Mr. Truman Hobbs: Well, and -- and in Alabama, I know that they -- they treated this as an order by the Court for the restoration of -- restore this man to his civil rights.

I'm sure it proceeded on that basis.

Whether there -- whether there was a denial of due process because there wasn't a formal hearing and re-adjudication, I don't know, I think all of those factors are --

Justice John M. Harlan: Your position is you got plenty to talk about on this contention.

Mr. Truman Hobbs: Yes, sir.

Justice John M. Harlan: Now, why don't you tell us about that?

Mr. Truman Hobbs: Thank you, sir.

Thank you.

Now, It -- it's our position that it would have been improper to have convicted this insane person on a statement obtained from him at the time that all medical opinion agreed that he was insane, even if there had not been the prolonged questioning.

In Watts against Indiana, Justice Frankfurter and his opinion referred to something that it was at least as old as 1824, which says, "The law will not suffer prisoner to be made the deluded instrument of his own conviction."

If that statement hasn't got meaning in this case, we don't know in what type of case it could be given meaning.

The law will not permit the trial of an insane prisoner.

Alabama recognized this fact.

Therefore, they sent this man off for four and half years but they bring him back and try him on the basis of confession which was obtained when he had no counsel, when he was not represented by anybody and again, at the time when all the medical opinion agreed that he was insane.

At least he'd been standing trial when he was insane, he would have the protection of the Court.

Justice Charles E. Whittaker: I can't resist asking you again, why he had to come in at this trial and prove for an existing judgment already established, namely his insanity?

Mr. Truman Hobbs: Well, I don't know how to answer the question, Your Honor.

The -- the -- it would certainly appear to me as it does to you that that should not -- that there should have been some adjudication of that question and I would have thought that, based on all the medical testimony before that Court that the adjudication could not have been otherwise been that he was mentally insane, but --

Justice Charles E. Whittaker: So long as that judgment stood.

Mr. Truman Hobbs: Yes sir.

Well, he and in it -- I'm suggesting -- I don't see how the judgment could have been set aside out, but that -- that was not done.

Justice Felix Frankfurter: I can -- and formerly speculate about that so we have started to go on.

I suppose you're welcome and hope you will?[Laughter]

Mr. Truman Hobbs: Yes, sir.

I wouldn't object any of it and for that thought.

Now, whether that -- whether this prolonged questioning of nine or 10 hours is sufficient to invalidate the confession or whether petitioner's insanity standing alone would void his confession, this Court need not decide because as this Court has recently affirmed in Thomas against Arizona, in each instance our inquiry must weigh the circumstances of pressure against the power of resistance of the person's confession.

This was the rule in Haley against Ohio and Spano against New York, in Fikes against Alabama.

If we might for just a minute compare the -- the facts of this case with the facts in the Fikes case, in Fikes, the questioning that led up to the confession was never longer than two or three hours at the time.

And all of it was during the normal hours.

In our case, Blackburn was questioned for five hours without interruption, stopped for an hour for supper and it was resumed for another four hours.

The questioning was terminated at 10 or 11 o'clock at night.

Justice Felix Frankfurter: How many did the questioning, Mr. Hobbs?

Mr. Truman Hobbs: There were three according to the Deputy Sheriff.

Justice Felix Frankfurter: Is that simply or continuously?

Mr. Truman Hobbs: He said that he stayed in the room the whole time.

The other officers were coming in and out and that they from time to time asked questions.

Justice Felix Frankfurter: But the burden enabling (Inaudible) his time, was it?

He did most of the questioning?

Mr. Truman Hobbs: He did the most of the questions, yes.

He said, he remained there throughout the questioning.

Justice Felix Frankfurter: Did you say the room was the size of a closet?

Mr. Truman Hobbs: According to him and the Deputy Sheriff, it was four feet by six feet or six feet by eight feet.

Justice William J. Brennan: (Inaudible)

Mr. Truman Hobbs: That didn't fit.

Justice Felix Frankfurter: What -- I wasn't -- but I don't -- what -- what was the hour of day?

Mr. Truman Hobbs: Started one o'clock in the afternoon and concluded at 11 -- 10 or 11 o'clock at night.

Justice Felix Frankfurter: One to six then?

Mr. Truman Hobbs: One to six.

Justice Felix Frankfurter: And then with an interruption of an hour?

Mr. Truman Hobbs: Yes.

Justice Felix Frankfurter: And then, from seven to 11?

Mr. Truman Hobbs: 10 or 11, yes, sir.

Justice William J. Brennan: What was the (Inaudible)

Mr. Truman Hobbs: Well, there were three -- three officers that participated in the questioning.

The Deputy Sheriff said he remained there throughout that these other officers were coming in and out and that they joined in the questioning.

Justice John M. Harlan: The confession, according to record?

Mr. Truman Hobbs: Yes, sir.

Justice John M. Harlan: What page?

Mr. Truman Hobbs: It starts at page 93.

Justice William J. Brennan: All the hand writing of the questioning officer?

Mr. Truman Hobbs: Yes.

There is no contention that it was in question and answer form, it's narrative, it's paragraphed.

Now, in the Fikes also, this Court took notice of the fact that Fikes was an uneducated person and of low mentality but of course here, the incapacity is infinitely greater than in the case of Fikes.

In Fikes, the said matter of significance, it was noted by this Court was that Fikes had had at the most one previous experience with the criminal processes.

So far, it appears in this record, Jesse Blackburn had no previous experiences with the law and it's difficult to see how he could have since he had been the insane asylum since he was led out of the army.

So, the three -- three of the matters that were of greater significance to this Court in Fikes are all present here and into a much greater degree.

In Spano against New York, this Court said, “the limits of constitutional due process in any case depends upon the weighing of circumstances of pressure against the power of resistance to the person confessing.

What would be overpowering to the weak of will of man might be utterly ineffective against and experience criminal.”

So, when applying the test of Fikes, Spano, Haley and Thomas cases, we must consider the character of Blackburn's derangement.

He was a schizophrenic, paranoid type, a 100% mentally disabled.

In Grave's, Attorney's Texas, book of medicine --

Justice Potter Stewart: Mr. Hobbs, what does that mean 100% or -- or 50%, that in terms of a --

Mr. Truman Hobbs: The determination by the Government --

Justice Potter Stewart: -- the disability payments, isn't it?

Mr. Truman Hobbs: It's -- it's not set out in that context in the medical report.

He was first adjudicated 50% mentally disabled and then a 100% mentally disabled and I -- he was in the Government hospital during the whole period of time, so I don't -- I doubt if there could have been any question about his being totally disabled from the standpoint of working that --

Justice Potter Stewart: I guess it was a kind of strange expression to me in this context and I thought that -- (Voice overlap)

Mr. Truman Hobbs: Those are the hospital records from Illinois which --

Justice Potter Stewart: Matters of administrational payments?

Mr. Truman Hobbs: Yes.

Now, Grave referring to schizophrenia said, “if the victim of even simple schizophrenia “is driven,” the patient breaks down to the same effect, is smooth in his law of insanity,” also, Grave states, “should the patient apparently recover from schizophrenia, stoppage of progress is all that occurs with residual changes, permanent in character.”

Now --

Justice Felix Frankfurter: What of -- What are the dates -- What are the dates of those text books?

Mr. Truman Hobbs: I don't -- I'm sorry, I don't have date here.

Justice Felix Frankfurter: I hear about a -- I hear in the deal of the changes taking place if the schizophrenic treatment as a result of therapeutic improvement.

I don't know whether those are anymore (Inaudible) than what you read?

Mr. Truman Hobbs: Well, I'm -- I'm sorry to say, I just don't know what the -- what the date of these texts are.

This, I think this is a third edition text of Grave's from which I'm quoting but, I don't know the date at.

Now, we may say, what was the power of resistance of this schizophrenic, to nine hours of virtually uninterrupted questioning?

Such a confession could in no way be treated as voluntary as this Court has given meaning to that word.

But, how did the Court of Appeals in Alabama seek to avoid the impact of this Court's decisions?

Well, first the Court of Appeals failed to mention any of the decisions upon which petitioner relied.

It never purported to apply the test which this Court has laid down in those cases.

Second, if found in the alleged conflict in the testimony of the doctors, who were appointed by the State of Alabama on this original sanity board and held that the trial court could appropriately have given greater weight to the testimony of one of the doctors than to the other two doctors on that sanity board.

But, again, referring to the report on the basis of which Blackburn was adjudged insane and committed to the hospital for some four and half years, look at page 76 of the record, the last paragraph there.

There is the statement by all three of the doctors, Dr. Richards on whom the Court of Appeals relied and the other two doctors, it is the opinion of each of us and our opinion jointly and collectively, that the said Jesse Blackburn at the time of his admission to the Circuit hospital was insane and incompetent.

And also, that it's their opinion that he was insane at the time of the offense of which he was charged.

So, we -- and not only that, but in the same deposition which the Court of Appeals suggests, it finds substantial conflict.

Dr. Richards was asked the question whether he still conformed to the opinions which was stated in this order and he stated that he did at page 77 of the record.

What Dr. Richards said on cross examination after affirming his view as stated in this report that Blackburn was insane when he first examined him and insane in his opinion at the time of the offense, he said at page 81 of the record, that Jesse Blackburn was up on the terminal wall and he was such a nuisance until I didn't see him often.

Dr. Harry looked after him mainly.

Then he asked him, “was he normal?”

He said, “Yes, he was normal all the time.”

Asking if he had psychotic episodes and he says, “None.”

And then they say, at the bottom of page 83, state in ordinary lay language, what a psychotic episode is, they said he couldn't answer that.

Then, he was asked, “is it not the fact, Dr. Richards from your observation of Jesse Blackburn that he at times has lucid intervals and he answered at the bottom of page 82 of the record, “I do not think so.”

So, that here's the Doctor that the State of Alabama is relying on for this substantial conflict in the record.

And I submit that if Dr. Richards' testimony stood alone, that it would not overcome the presumption which is the law on Alabama that a confession is presumptively involuntary because he is the man that says, that he doesn't think this fellow ever had lucid interval in his life.

He can confirms that he gets -- that the man was insane when he first examined him and was insane when he committed the crime and -- it would -- the Court of Appeals states that it -- that the -- Richards' testimony was in hopeless conflict to the testimony of the other doctors.

I submit that in all candor Dr. Richards' testimony was in hopeless conflict with Dr. Richards' testimony and that it could in no way overcome the presumption that this man was insane.

Justice Charles E. Whittaker: Mr. Hobbs, would you bother if I ask you now, Is there any other evidence than the confession linking this petitioner to this crime?

Mr. Truman Hobbs: I think it's fair to say there isn't, Your Honor.

I think, it's fair to say that it -- I don't -- there is nothing that even puts him at the scene.

The only -- only other evidence relates to his being in Alabama and -- and that nobody identified him as being at the scene of the crime, I don't believe that there would be any question but that his conviction was predicated almost solely on his confession.

Justice Hugo L. Black: Was he near the automobile --

Mr. Truman Hobbs: There was evidence, You Honor that an automobile – a Buick automobile of a general type of description was there.

I don't think it was identified by a license number or anything else and to be honest about it, I think the automobile was not his.

It belonged --

Justice Hugo L. Black: Not his.

What I meant was the evidence that identified the so called maroon automobile that was near there as to one who was driving?

Mr. Truman Hobbs: Well, I don't believe he was --

Justice Hugo L. Black: That -- the he --

Mr. Truman Hobbs: He come -- he had been a passenger of the car that his come down there, it was owned by another man and that man had driven it to Alabama and there was this general description of a maroon automobile at the scene.

But, I don't believe that the conviction could have been predicated on information as loose as that.

Justice Hugo L. Black: Anything besides that?

Mr. Truman Hobbs: I know of nothing else.

Now, the Court had before it of course, the trial court and the Court of Appeals much more than merely conflict in the depositions of these three doctors.

The Court had before it, the opinion of the local doctors which it had reported, which said he was probably insane.

It had before its own order, adjudicating Blackburn insane and committing him to an insane asylum permanently until restored to sanity.

Justice Charles E. Whittaker: On which that – (Inaudible) insane.

Mr. Truman Hobbs: Yes, sir.

Yes, sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. Truman Hobbs: Yes -- yes.

It had before him the order of the Circuit Court of Mobile which had adjudicated him, insane.

It had before him the knowledge which is shown in the record of petitioner's previous commitments to insane institutions.

And it had before him also the knowledge that it took some four years or more of treatment in an insane institution in Alabama before the persons having him in custody could state in their opinion he was sufficiently restored to sanity to stand in trial.

We think, it is ironic -- ironic in this case that the minimum protection which the Court of Alabama -- which the Courts of Alabama accorded petitioner that is send him off to -- to the insane asylum for some four and half years, could well have been the basis on which this final adjudication about the jury rested.

It's as though we have -- it's as though the question before the jury was whether a man with that offence and the State of Alabama send him off for four and half years and fattened him up, and brought him back and then the jury is supposed to pass on the question of whether he was sane four and half years ago.

His insanity was so apparent.

There, when he was originally supposed to have come up for trial that even the jailer noted it.

And of course, we've said all the doctors noted it.

But they send him off for four and half years and then brought him back and call the medical doctors in, certainly we can assume his condition was substantially improved and stated that it was improved and it was on the basis of that opportunity for the jury to observe him, that the jury brought in this verdict that the -- he was mentally competent.

As Justice Frankfurter stated in his opinion in Malinski against New York, the Fourteenth Amendment expresses a demand for civilized standards of law.

Reluctantly, I must state that in my opinion, the State of Alabama has not met this demand with respect to Jesse Blackburn.

And I earnestly say to this Court, to release this man who has been in the custody of State of Alabama for some 11 years at this time.

Justice Charles E. Whittaker: (Inaudible)

Mr. Truman Hobbs: I hope sir that he had go back to the mental hospital that he's overly from and has overly now for 11 years in hospital in Illinois which under -- to whose care the army committed him when it put him out of the army.

Justice Felix Frankfurter: Mr. Hobbs, you say to release, you want this Court to release this man?

Mr. Truman Hobbs: Well --

Justice Felix Frankfurter: Is that --

Mr. Truman Hobbs: I -- I don't know Your Honor whether they were --

Justice Felix Frankfurter: Just the release?

Mr. Truman Hobbs: Alabama could perhaps retry him --

Justice Felix Frankfurter: Well, I should suppose so.

I suppose that the usual thing in conformity with this at opinion that -- then make it under state law for retrial, I think we --

Mr. Truman Hobbs: Yes, yes.

Well, I've --

Justice Felix Frankfurter: Isn't that right?

Mr. Truman Hobbs: I think you're right, sir.

Chief Justice Earl Warren: Mr. Gish, you may proceed.

Argument of Paul T. Gish, Jr.

Mr. Paul T. Gish, Jr.: Mr. Chief Justice, Honorable Associate Justices.

First of all before I get into my formal argument, I would like to discuss some of the points that had been raised in Mr. Hobbs' argument.

It is our position that there never was a judicial determination of insanity in this case.

The only judicial determination was that made by the jury when they convicted him of this crime.

Now, the procedure and the petitioner tends an adjudication if a statutory procedure in Alabama by which the trial judge if he has reason to do so, may have a prisoner examined by physicians.

If those physicians are of opinion that the prisoner maybe insane or if they feel that there is probable cause to believe that he is insane, they shall inform the judge.

Then the judge may under our statute, Title 15, Section 428 Alabama Code 40, he may send this prisoner to be examined at the Alabama State Hospital, the insane hospital.

Then still under this statutory procedure, a commission maybe appointed as was appointed in this case and may make a report to the circuit judge as to their opinion concerning the mental condition of the prisoner.

Now, this old procedure as I have stated is statutory.

There is no adjudication involved except there are -- is a statutory provision for these orders to be made by the Court ordering the petitioner sent to the insane hospital and ordering him back for trial.

Now, for Supreme Court of Alabama, in the case of Benton against State 1872 has held that this procedure -- procedure is not a judicial determination.

Chief Justice Earl Warren: Is this in your brief -- this case cited in your brief that --

Mr. Paul T. Gish, Jr.: I believe so, yes sir.

The admissibility in that case, in Blackburn case, the admissibility of this report into evidence was the point and hopefully the report was not admissible as the Court stated in the absence that it was not a judicial determination and was mere hearsay.

Justice William J. Brennan: What's the catch of that case against --

Mr. Paul T. Gish, Jr.: Benton.

Justice William J. Brennan: B-e-n-t-o-n.

Mr. Paul T. Gish, Jr.: B-e-n-t-o-n against State, it's at 1872, 428.

Now, as I have just stated, the report of the lunacy commission are now the decisions are not admissible into evidence.

Now, the report is included in the record here because in answer to their position the report was a test as an exhibit to the answers to interrogatory.

That is the only way we to have it adjudged and had the benefit of the report as the matter of record.

Mr. Hobbs had mentioned the fact that the only evidence on voir dire as to the condition under which the confession was given was stated by the Deputy Sheriff that here is the only evidence.

And that is true yet it only came to in chief that the defendant did testify this was after the confession had been ruled admissible.

The defendant then both -- the jury took the stand and testified that he was insane at that time and then he didn't remember anything about the questioning of the answers which he gave.

I'm merely bringing that out to point out that there was nothing to prevent this defendant from taking that position on voir dire.

And while introducing that evidence at the time he now claim -- claims that his right of the protection of due process were violated and I have been handling the case that would given the jury to over (Inaudible) the only evidence introduced by the petitioner on voir dire was the two doctors' definition who strongly stated that the petitioner was insane.

Then, our own propositions that one other point, the petitioner admits that that was relay questioning or sustained questioning of this petitioner.

Now, I haven't seen a case of this Court under these circumstances under eight or nine hour questioning with a break of -- with the answers and the statement being taken out in long hand by Deputy Sheriff who to say the least was not an accomplished ground.

I have never seen a case of this Court which held that under those circumstances that the length of the questioning would render him voluntarily confession.

There is also an intimation that this petitioner was questioned by more than one law enforcement officer.

I believe the record will show that the answer of the Deputy Sheriff was to the effect that I'd -- in the questioning out was there all attack that is out with question on cross examination was anyone else there.

It takes years the Sheriff and another Deputy were in and out.

Did they questioned the petitioner, his answer was that they may have but the import of the whole thing as I read the record, wouldn't this man's standing was conducting this investigation was questioning further here that that these other gentlemen were not.

I believe it was Mr. Justice Harlan had asked Mr. Hobbs about lucid intervals, about the doctor's testimony concerning that.

All three doctors, who made up this commission, testified that Blackburn did have lucid intervals.

Dr. Richards' deposition shows that he was of the opinion, that the man was not -- but the other two doctor's answers revealed that they also think that at least some other time that his mind, was normal.

Dr. Rowe says that during his stay in State Hospital, he was -- his mind was more normal than abnormal.

A question has been asked concerning the other evidence connecting this petitioner with the crime.

And I agree with Mr. Hobbs that it would be difficult if not impossible to convict this man of the other evidence the State has shown.

However, there was more evidence than -- than Mr. Hobbs stated.

In addition to the Buick automobile, maroon in color which was seen by the rolling store at the time the crime was in Illinois (Inaudible).

It was shown that, some one or two days before the crime was committed that the operator of this rolling store stopped at a house at which the petitioner was staying and that questions were asked by the petitioner and by his friend concerning the trips, concerning the number of times that the rolling store passed that way and that the -- and when the rolling store would be back again.

Now in the confession itself, the petitioner states that he and his friends from Illinois didn't have the money to get back to Illinois and that they robbed the rolling store for that purpose to obtain those cars.

Now, after this Court remanded this case to the Court of Appeals of Alabama that Court treated of the petitioner's claim as being two-fold.

They said that the petitioner claims his confession was obtained by sustained questioning.

Second, that the petitioner claims that he was insane at the time he confessed.

On the first proposition concerning his sustained questioning as we've already discussed the entire evidence in that regard was the evidence of the Deputy Sheriff to obtain the confession.

The Court of Appeals held that the circumstances surrounding of the giving of the confession, did not amount to those coercions that this Court has held violate the process and we take that of course on no conflict in the evidence in that regard.

There was only one man to testify in that regard.

The Court of Appeals held that nine hours of questioning with an hour of break during that time (Inaudible) on the statement by the person who was doing that job in wrong hands that it was not an accomplice scribe, did not file for a due process.

Now, as in the order for --

Justice Potter Stewart: The one witness you referred to, was the Deputy Sheriff?

Mr. Paul T. Gish, Jr.: Yes.

It was the Deputy Sheriff.

Justice Potter Stewart: It also was described?

Mr. Paul T. Gish, Jr.: Yes, sir.

And I said that he was not an accomplice (Inaudible) had glean that from raging the --

Justice Potter Stewart: I mean, that's the car in the words and then --

Mr. Paul T. Gish, Jr.: That's right -- uncharged and I imagine one in for us were either in the word from his -- the manner in which his statement (Inaudible).

Now on the other point that is discussed by the Court of Appeals in its opinion on the claim filed by the petitioner that he was insane at the time of the confession, the Court of Appeals had pointed out by Mr. Hobbs, said that there is conflict of evidence in the record in this regard.

They're being in conflict of evidence, the Court Appeals held into -- in the absence of the trial judge who had witnesses and the petitioner before was in a better position to decide in that coercion than with the Court of Appeals.

The Court of Appeals states it as problem.

They say, “When confession are admitted on the controverted questions of fact, this Court will not revise the rulings of the lower court admitting now unless if he can manifest the wrong, leaving a vast discretion with the trial judge.”

Now, that statement is, I submit sentimental to the statement of this Court in Lisenba against California where this Court held that if it will accept defining of the local court on controverted questions of fact, unless such findings are not supported by evidence and would of -- and the acceptance of -- to find it was worthy, worthy on -- then it didn't -- law with due process.

Now, as to the conflict in the evidence of these doctors as I've stated their reports in only in the evidence as an exhibit to their depositions, all three doctors of the commission are answered interrogatory definitely, Dr. Tarwater is the -- he, in of the Alabama State Hospital system.

He stated, he was a member on this commission and he stated that he (Inaudible) this petitioner approximately four or five times.

That was during the period of about four years.

He stated that, about two and a half hours would cover the entire period of his observation of the petitioner and yet, he is given test on morning which is more strongly of the three to the effect that this man is insane.

Dr. Rowe whose title I believe is assistant director of the State Hospital system in fact the he in of the hospital where the petitioner was held.

In other way, he is more of an administrative man than he is a resident doctor.

He states that in his petition, about twice a week and then some of his observations were merely seeing on general ward around.

Dr. Richards was a resident physician testified that the petitioner was known, and his answer showed that he didn't see the petitioner “often” with that -- that's the only -- he didn't say, “I didn't see him often.”

I don't know whether that means off for the week or off (Inaudible) often a year.

Chief Justice Earl Warren: Mr. Gish, the -- did they took the Doctor -- Dr. Richards testify as to when he first saw this man or formed the opinion that he was -- he was normal?

That is how close to the time he was committed to the institution?

Mr. Paul T. Gish, Jr.: He testified at first -- is on page 80.

Chief Justice Earl Warren: 80?

Mr. Paul T. Gish, Jr.: Of -- let me see this -- On page 81 I believe.

I -- and in interrogatory number one at the top of page 81, the doctor Richards stated that during that period of time he personally observed Jesse Blackburn from the time he came in until the time he left this hospital.

And then interrogatory number two, give the time from the beginning of the observation of Jesse Blackburn and that they he would last see him observed by you about three and half years.

So, the doctor has stated that he observed the petitioner during his whole stay at the State Hospital.

Now, on page -- pages 82 and 83 of the record are the answers to in our inventories on cross examination under which, it is our opinion that Dr. Richards is stating that this petitioner was seen during his entire stay and he states categorically that his mental condition was normal on April 19th, 1948 which was the date of the crime and that his mental condition was good.

On May 8, 1948 which was the date of the confession.

Justice Charles E. Whittaker: Mr. Gish.

Mr. Paul T. Gish, Jr.: Yes?

Justice Charles E. Whittaker: May I ask you a few questions?

In reference to record 44, do -- where this particular language is saying, it also appears to the Court, this is the Colbert County Circuit Court --

Mr. Paul T. Gish, Jr.: Yes, sir.

Justice Charles E. Whittaker: -- that said prisoner has been declared insane by the Circuit Court of Mobile County on the alleged offense committed in that jurisdiction and the Circuit -- Circuit Court judge of that jurisdiction ordered the prisoner returned back to State Hospital from which institution he had escaped and while on escape, is alleged to have committed another offense namely this one.

Now, therefore, it's ordered and adjudged and decreed that the prisoner be (Inaudible) by permanently committed to the Alabama State Hospital at Mt. Vernon where he must remain until restored in his right mind et cetera.

Do you understand that those -- neither of them are adjudications of insanity?

Mr. Paul T. Gish, Jr.: It is our position sir, that these are -- are commitments to the Alabama -- excuse me sir, you want me to answer you --

Chief Justice Earl Warren: You may answer after the recess.

Mr. Paul T. Gish, Jr.: Alright.

Print this transcript Transcript: 

Argument of Paul T. Gish, Jr.

Chief Justice Earl Warren: Mr. Gish, you may continue.

Mr. Paul T. Gish, Jr.: Thank you, sir.

Mr. Justice Whittaker, before the recess you had asked -- just asked me a question concerning exhibit C.

It's found on page 44 of the record.

Your question concerned the recital in this exhibit, that this man, Blackburn had been declared insane by the Circuit Court of Mobile County.

As I understand, this procedure in the State of Alabama, the prisoner is found after examination by usually the local doctors and they report to the trial judge, and the trial judge then may under our statute which is Title 15, Section 420 (a) through the court order of Alabama in 1940.

Justice Charles E. Whittaker: Does it have to do merely with the district trial in criminal (Voice Overlap) --

Mr. Paul T. Gish, Jr.: It does, sir, it does.

It --

Justice Charles E. Whittaker: Then you could understand this is not to be an adjudication of insanity.

Mr. Paul T. Gish, Jr.: It has been so held in Benton against State, 187 So. 2d. 428 and now, Mr. Chief Justice, I find during recess that I was in error for stating to you the then case is in my brief, it is not.

Chief Justice Earl Warren: I took a memo of -- memorandum of it.

So, it's all right, Benton versus State.

Mr. Paul T. Gish, Jr.: Yes.

Chief Justice Earl Warren: Yes.

And the citation, I did not get.

Mr. Paul T. Gish, Jr.: 187 So. 2d. 428.

Chief Justice Earl Warren: 187 So. 2d.

Mr. Paul T. Gish, Jr.: 428.

Chief Justice Earl Warren: 428.

Mr. Paul T. Gish, Jr.: Yes, sir.

Chief Justice Earl Warren: Thank you.

Mr. Paul T. Gish, Jr.: All right.

Then in another case, in our Supreme Court -- oh, I beg your pardon, this is in our Court of Appeals, the Court held that the testimony of the doctors who made up the lunacy commission may be received in evidence without violation of due process of law.

Now, that case is Hunt against State in 277 So. 2d. 186.

Now, that, you see, is a procedure that was followed here.

The report of the lunacy commission could not be received in evidence because our court held that it was hearsay.

However, the testimony of the doctors following the lunacy commission could be received into evidence and would present any definite issue of fault.

Now, I believe it was Mr. Hobbs that if we only look to the formal report laid by the commission, this man would undoubtedly be insane in all the evidence.

However, we have one doctor, Dr. Richards, as I've stated who I submit the -- of his evidence of the -- of his answers are to the effect that this man was normal (Inaudible) he was in hospital was normal on the days of the trial, and he was normal on the date that he gave his confession.

Now, since there is that conflict as between the doctors or among the doctors on the commission and since we have the testimony of the deputy sheriff who --whose testimony is in conflict with saying this man was insane.

And since this man was before the trial court, I submit that this opinion of the Court of Appeals about Blackburn is -- is squarely based that they are right when they say that the trial court was in a better position, and they want to decide this matter and since the evidence was conflicting, then they would leave that was the trial judge entirely.

On the basis of this argument, and the brief file by the State of Alabama, we respectfully submit that this case should be affirmed by this Honorable Court.

Thank you.

Argument of Truman Hobbs

Mr. Truman Hobbs: If I may reply to just one of two things that --

Chief Justice Earl Warren: Yes, yes, Mr. Hobbs.

Mr. Truman Hobbs: -- Mr. Gish has commented upon.

First that I had an opportunity at recess, Mr. Justice Frankfurter to look to the date of this volume I was quoted.

I believe we find it, it wasn't 1900.

It is 1958.

Justice Felix Frankfurter: Third edition?

Mr. Truman Hobbs: Third edition, yes.

And the statement that appears substantially in the form of -- I've got in my brief, if driven the patient breaks down with respect to schizophrenia and also the statement, "Should the patient apparently recover," stoppage progress is all that occurs with residual changes permanently encountered.

Justice Potter Stewart: Those were not offered in evidence in this case.

Mr. Truman Hobbs: No, sir.

They've been cited in both in my brief both this time and in 1956.

Justice Felix Frankfurter: I didn't mean to put the burden on you working out normally among all the writers on the subject.

Mr. Truman Hobbs: [Laughter] I appreciate that.

Mr. Gish has mentioned the fact that some of Alabama cases say that these reports, medical reports, are not admissible in evidence.

I think he made it clear, as I'm sure he intended to do, that they are properly introduced and were properly introduced in evidence in this case.

The case to which he refers is one where the statements were offered without any testimony of the doctors along with it.

In this case, the report was -- of the sanity commission was offered at -- in -- in the process of the deposition of the doctors.

And they identified it as their wake and each of them confirmed it including Dr. Richards.

He was specifically asked if that report was his and if he confirmed the statements that were made therein.

And he said that he did.

So the report is they must be a part of the record in this case.

Mr. Gish has referred several times to the fact while his nine-hour interrogation was going on, that the Deputy Sheriff was writing out the confession.

Of course, I think the evidence was showed that actually, the confession was signed the next morning.

It was not -- not signed that night although apparently, it was substantially completed that night.

But I plead guilty for southerners to talking slowly but I don't think there's any indication that southerners necessarily right slowly and I don't believe this nine-hour interrogation was very much of it was consumed in the -- the writing by the Deputy Sheriff of this report which wasn't signed until the next morning.

There's been -- it's an argument in -- in respondent's brief and he alludes to adhere about the limited information that was given to the trial court on voir dire.

Now, that omits the fact that in the course of these depositions, the course of the depositions of these doctors, they were given the -- the Court was given the -- the sanity -- the order of the sanity commission, the recommendations about the insanity of Jesse Blackburn.

It -- it was given again on -- on voir dire and if it needed its recollection refreshed its own order committing this patient to the insane hospital which order reflected the fact that this man had been institutionalized for mental illness on prior occasions and so forth.

I think it's fair to say that substantially everything that would be before this Court except the detailed information in the veteran hospital came in on voir dire.

Mr. Gish is correct in stating that the petitioner did not take the stand in connection with voir dire.

But all this information about his previous insanity was certainly available to the Court at the time that the Court made -- the trial judge made the determination that this confession was voluntary.

And in conclusion, let me get just point out that Alabama is standing here in the position of saying that Dr. Richards said the testimony that creates this conflict and that is the testimony to which he must assign credibility, if that'd be true, Alabama is in the unquestionable position of having kept the same man in the insane asylum for four and a half years on the determination by Dr. Richards that he was insane.

And yet, he comes here and asks that this man be declared sane on the basis of the testimony of the same Dr. Richards.

We humbly request that this Court grant Jesse Blackburn the due process of law for which he pleads and that this action below be reversed.