RECK v. PATE

Print this transcript Transcript: 

Argument of Donald Page Moore

Chief Justice Earl Warren: Number 181, Emil Reck, Petitioner, versus Frank J. Pate, Warden.

Mr. Moore.

Mr. Donald Page Moore: Mr. Chief Justice, may I have please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals or the Seventh Circuit.

That court affirmed an order of the United States District Court to the Northern District of Illinois, quashing a writ of habeas corpus and remanding the petitioner here to the custody of Warden of the Illinois State Penitentiary at Joliet, Illinois, where petitioner was then and is now confined.

Petitioner is confined in the State Penitentiary, pursuant to a judgment of conviction of the crime of murder, which was imposed upon him after a trial before a judge and jury in the Criminal Court of Cook County in 1936.

At his trial, petitioner contested the admissibility of two confessions which were introduced into evidence against him.

Timely motion was made to suppress these confessions invoking with Federal Constitution.

It was overruled.

The confessions were received in evidence.

Petitioner was convicted and sentenced to 199 years in the penitentiary.

Petitioner was unable to appeal his conviction because he had no money to purchase a transcript of the testimony at his murder trial.

Thereafter, when the Illinois Post-Conviction Hearing Act was adopted following this Court's decision in Marino against Ragen, petitioner filed a petition for a post-conviction hearing under that Act, received a hearing, additional testimony was taken, some transcripts where then written up at state expense.

After hearing the post-conviction judge denied relief.

I might add that in the post-conviction hearing the Due Process Clause of the Fourteenth Amendment was explicitly invoked as a ground for the petitioner's prayer that his conviction be set aside, because coerced confession were used against him.

On writ of error proceedings in the Supreme Court of Illinois, full hearing was -- had briefs and arguments.

All of the federal constitutional claims, which are now here, were raised there.

Relief was denied on the merits of the federal constitutional question.

There was then a petition for certiorari timely filed in this Court.

The petition was denied and the order of denial read that the petition for certiorari is denied without prejudice to the right of petitioner to apply for a writ of habeas corpus in an appropriate U.S. District Court.

The petition for habeas corpus in the Northern District of Illinois followed.

The district judge received into evidence all of the transcripts of the state court proceedings in the post-conviction hearing case and in the original murder trial.

Both sides rested.

The district judge ultimately decided that by the present day standards announced by this Court in such cases as Watts against Indiana, Haley against Ohio, Chambers against Florida, petitioner's confessions were obtained in a manner which violated due process, but since none of those cases were on the books in 1936, the rules of those cases were not applicable to petitioner's case and petitioner was remanded to the custody of the Warden.

On appeal, the Court of Appeals ignored the District Court's theory.

It held that by any standards, the confessions were voluntary and affirmed.

This Court granted the petition for certiorari on June 27th of 1960, gave us leave to proceed in forma pauperis.

We have no printed record, but our proceeding upon the original papers pursuant to the instructions of the clerk of this Court.

The facts --

Justice Felix Frankfurter: Mr. Moore, may I cover you to state however briefly but -- but adequately, on the basis of what material -- what materials were before the district judge, on the basis of which he concluded what he did and therefore that was the only basis on which the Court of Appeals acted, I take it.

Mr. Donald Page Moore: No, Your Honor.

That is the only basis in the record.

The Court of Appeals acted on the same record, that the district judge did.

Justice Felix Frankfurter: That's what I'm thought about.

Now what was -- what was before the District Court after the trial court, the Supreme Court of Illinois got through with the case and it got into the federal court according to the qualification of our or the --

Mr. Donald Page Moore: Yes, Your Honor.

Justice Felix Frankfurter: -- suggestion of our denial of certiorari?

Mr. Donald Page Moore: Yes, Your Honor.

100% of the testimony and proceedings in the courts of Illinois, all the testimony at petitioner's trial, all the testimony at --

Justice Felix Frankfurter: I thought there was no record.

He couldn't get, but there was a record, but he couldn't get it.

Mr. Donald Page Moore: Your Honor, the record has been assembled by slow and painful stages.

Justice Felix Frankfurter: Of the trial.

Mr. Donald Page Moore: Of the trial.

Justice Felix Frankfurter: And you're not quarrelling regarding the verity of the record that would be -- that was produced, however made up before the Federal District Court?

Mr. Donald Page Moore: That we are not.

It's stipulated by both of the parties in writing in the record at page, I believe, it's page 67 of the blue bound transcript and record, which is before your eyes, in writing that these are the true, correct, complete and authentic records of all of the proceedings in the courts of Illinois.

Justice Felix Frankfurter: Now, was anything in addition before the -- any new testimony taken?

Mr. Donald Page Moore: Your Honor, there -- there was no oral testimony before the District Court.

Justice Felix Frankfurter: Was there a request for it and denied?

Mr. Donald Page Moore: No, Your Honor.

Justice Felix Frankfurter: And did you stand, were you counsel before the --

Mr. Donald Page Moore: Yes, Your Honor.

Justice Felix Frankfurter: Did you stand on the record as satisfactorily assembled?

Mr. Donald Page Moore: I did, Your Honor.

Justice Felix Frankfurter: So that we have here a case of a disposition of the matter before the -- the federal habeas corpus court on the basis and the exclusive basis on what was before the trial court and the Supreme Court of Illinois.

Mr. Donald Page Moore: Not quite, Your Honor.

There is one qualification here.

At the post-conviction hearing of the petitioner, the post conviction-judge said that he was going -- first he ordered the transcript of petitioner's entire murder trial written up at state expense.

The states attorney of Cook County came in and this is in the record and said, “We're not going to do it.”

And the post-conviction judge, Judge Genalli then said, “Well, you only have to write up part of it.”

And after many weeks had passed in which he kept reiterating his order, the state's attorney of Cook County did provide us with the pretrial, the transcript of the proceedings prior to the admission of petitioner's confession in evidence at his murder trial, but refused to give us the proceedings that were had after the trial judge admitted the confessions at the murder trial.

Justice Felix Frankfurter: And if there was no proceeding before the judge in camera --

Mr. Donald Page Moore: That is correct, Your Honor.

Justice Felix Frankfurter: -- part of the jury's presence on the admissibility of the confession.

Mr. Donald Page Moore: That is correct, Your Honor.

And we got that transcript, but the post-conviction judge refused to give us the transcript of what happened after the confessions came into evidence.

We assigned this as error before the post-conviction judge, invoking the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

That is a refusal to give us a transcript and this theory of ours was rejected.

We assigned it again as error in the Illinois Supreme Court, again it was rejected.

They did not even advert to this contention in their opinion.

We assigned it again as error in the petition for certiorari which we filed here and of course that was that.

Later on, after the Griffin against Illinois was decided, the Illinois Supreme Court adopted a rule, giving everybody a free transcript, if he was indigent and imprisoned and acting under that rule, we finally got the 1500 some odd pages of testimony that had gone in at the murder trial, subsequent to the time that the confessions were received in evidence.

So that -- and it was these 1500 pages plus the record that had gone up through the courts of Illinois originally which went into evidence before the federal district judge, so that we now have every word.

Justice Felix Frankfurter: But -- but on the question of admissibility --

Mr. Donald Page Moore: Yes, Your Honor.

Justice Felix Frankfurter: The thing and the only thing, but the -- from your point of view the -- the adequate thing that was before the Federal habeas corpus District Court was the true record of the trial in its entirety.

Mr. Donald Page Moore: And the testimony at the post-conviction hearing also.

Justice Felix Frankfurter: Oh!

Did that go into the merits?

Mr. Donald Page Moore: It did, Your Honor.

Justice Felix Frankfurter: Were the -- was the new testimony regarding the confession claimed?

Mr. Donald Page Moore: Yes, Your Honor.

Justice Felix Frankfurter: So --

Mr. Donald Page Moore: Some of the police officers changed their story --

Justice Felix Frankfurter: But in all events -- all events we have here at case in which you seek review on the basis on which the District Court acted --

Mr. Donald Page Moore: Yes.

Justice Felix Frankfurter: -- as affirmed by the Court of Appeals --

Mr. Donald Page Moore: Yes, Your Honor.

Justice Felix Frankfurter: -- and you make no claim as to the procedural aspects before the Federal District Court.

Mr. Donald Page Moore: That is correct, Your Honor.

Justice Felix Frankfurter: Now, I understand.

Mr. Donald Page Moore: The circumstances under which petitioner's confession was secured are uncontroverted, except in certain details upon which we do not rely in urging that his confession was the product of psychological coercion forbidden by the Due Process Clause of the Fourteenth Amendment.

Petitioner was 19 years old at the time of his arrest, some three months after the murder of the Chicago physician, Dr. Peacock.

Petitioner had a history of institutionalization in institutions for the mentally-defective.

He had been repeatedly examined throughout his life by psychiatrists and psychologists who had tested his intelligence and scored it as anywhere from the low of 49 IQ to a high of approximately 70.

He was 16 years old when he dropped out of school.

He was still in the 7th grade.

Petitioner was known --

Chief Justice Earl Warren: What classification does 49 put in then?

Mr. Donald Page Moore: Your Honor, I'm not sure what the adjective whether this makes him a moron or an imbecile or what a psychologist would say.

If the average intelligence is 100, I guess it makes him half as intelligent as an average person at his age.

The only psychiatrist who testified at the trial and for whose qualifications both sides vouched was the director of the behaviour clinic of the Criminal Court of Cook County testified that the 19 year old defendant had the intelligence of a child of 10 to 11 years of age.

That testimony is uncontroverted.

None of these facts are controverted.

I take it the respondent concedes this.

This 19 year old feeble-minded boy with the intelligence of a 10 year old child was arrested on a Wednesday morning at 11 a.m. by police officers.

He was taken into a Chicago police station, the North Avenue Police Station, held in a second floor room for five to six minutes by two police officers.

Taken downstairs, put in a police van, taken to a second police station, held isolated in the cell there for approximately two hours, returned then by police van at approximately 1:15 p.m. to the North Avenue Police Station, where his interrogation commenced.

The first afternoon he was interrogated by two officers for a period of approximately five and one half hours.

He was fed one sandwich, one bottle of milk, nothing else, returned that evening to still another station of the Chicago police department, spent the night there.

The following morning, Thursday morning at 10 a.m., he was brought back to the North Police -- the North Avenue Police Station and he's second day of interrogation commenced.

This interrogation was largely conducted and I emphasize that these facts are established almost entirely by the testimony of persecution witnesses.

In each and every of the 300 and some odd footnotes to our brief where we cite to the original transcript of record, we have identified who testified to the facts that are stated in the text and on whose behalf and the Court will know that time after time after time, it's the State's witnesses who are testifying to these facts.

Officer Riley led the interrogation, although three or four other police officers participated in the second day of interrogation.

Officer Riley testified without contradiction on behalf of the State that he had a list of every crime that had been committed in the North Avenue Police District in his hand and it was this list that he was referring to as he would question the petitioner.

Officer Riley then volunteered from the stand that there was no purpose in this questioning.

After this purposeless questioning from the list of every crime in the district had gone on for some six or seven hours according to the police testimony, Reck was taken to still another police station, the Shakespeare Police Station, held there briefly, then taken downtown to the central police headquarters where the Detective Bureau is and placed in a lineup.

Reck's testimony is that Thursday night, he was so sick that he could remember nothing that took place.

All we know about what happened direct Thursday night is what I have just told you.

The State made no effort to explain what was being done with Reck, Thursday night.

The only scrap of testimony we have is that he went down for the show up and that he was not returned to the police station where he had been held that night.

Captain O'Connell testified to that, that's it.

The record is a blank until approximately 1 p.m. on the third day of petitioner's interrogation when the questioning resumed.

This is Friday, March 27th, 1936 in the North Avenue Police Station.

Several officers participated in the questioning in the middle of the afternoon.

An Assistant State's Attorney came down to help out.

We have located at least five individuals by name and time who were participating in the interrogation on Friday afternoon.

By Friday evening at approximately 7 p.m., a very large number of civilians had assembled in the North Avenue Police Station.

One officer called them a big crowd.

Officer Sergeant Aitken described them as 100 or more individuals.

Justice Charles E. Whittaker: Is that after the other two boys had confessed?

Mr. Donald Page Moore: No, Your Honor.

Justice Charles E. Whittaker: Had this man, Reck, been interrogated about the Peacock murder prior to Friday afternoon?

Mr. Donald Page Moore: He had not, Your Honor.

Justice Charles E. Whittaker: Had he been interrogated about the Peacock murder until the confederates confessed?

Mr. Donald Page Moore: They began interrogating Reck and the other boys I believe, at approximately the same time, although the boys were separated within the police station and in different rooms.

This is my inference.

The record is not explicit on that particular point.

At least 100 civilians were in the North Avenue Police Station at around 7 p.m.

Reck was being exhibited up on the second floor to these civilians.

At some point after 7 p.m. Reck fainted and was carried to a bench and then people put him on a stretcher, took him downstairs to the street, loaded him into a police van and away they went to the County Hospital where a -- an intern gave him an examination.

They could not find no marks or bruises on his body, concluded that he was not fit for the hospital, to use the intern's words, and rejected him to use another word of the intern whereupon, Reck was loaded back into the wagon, back to North Avenue, placed back in the show up.

He became ill, police officer, Officer Riley, stated on the trial that he became concerned about Reck and that he wanted Reck to rest.

And so he said, “I took him into an unfurnished handball court in the rear of the police station, second floor and I put him in there and I closed the door and I kept all of these civilians away from him because I wanted him to rest.”

Unfortunately, a Sergeant Aitken in charge of the Peacock murder investigation and two other police officers got around Sergeant Riley somehow and entered the handball court within a matter of one or two or three or four minutes after Reck was placed in there to rest and Sergeant Aitken and the officers began questioning Reck specifically about the Peacock murder.

Now, this was at somewhere between 8 o'clock and 9 p.m. on the third night of his interrogation.

This was the first interrogation about the Peacock case.

Shortly thereafter, a police officer went to the door of the handball court and called to a Dr. Abraham who was standing by and said -- must've said something like, “You'd better come in here.

We -- we have a problem.”

Dr. Abraham walked into the handball court where Reck had been resting with --

Justice Potter Stewart: I am interested in this handball court.

Is a handball court a normal accoutrement of a police station in Chicago?

Mr. Donald Page Moore: If -- not in frequently such facilities are found, although they are not always used for handball.

They're used for general gymnasium purposes.

Sir?

Justice William J. Brennan: You say it wasn't used for handball here?

Mr. Donald Page Moore: Well, I think that might get into the area of controverted facts, Your Honor and --

Justice William J. Brennan: No, that when this lad --

Justice Potter Stewart: At least for Mr. Reck.

Mr. Donald Page Moore: It was not being used so far as we know for that purpose.

Justice William J. Brennan: We can have to say they belong (Inaudible)

Mr. Donald Page Moore: That's correct, Your Honor.

Justice Potter Stewart: This is a -- as a -- an enclosed windowless room like a squash court or what?

Mr. Donald Page Moore: That is correct, Your Honor.

No furniture entered except for a bench that they brought in at one point to let Reck rest on it.

That was -- but that was later.

We're still on the point where Reck is in his third illness of the evening when Dr. Abraham comes into the handball court.

He sees Reck standing.

Reck's shirt is unbuttoned.

Its tail is outside of his pants.

His pants, the fly to his pants is unbuttoned.

Reck's hand is rubbing his abdomen.

Reck's face is ashen according to Dr. Abraham who testified for the State, when he testified to these facts.

Reck appeared very nervous.

Reck was permitted to sit down.

When he sat down according to Dr. Abraham, he got his color back in his face, but then other individuals came in to interrogate Reck.

He was told to stand up and in Dr. Abraham's phrase, “The color went away from him again.”

Dr. Abraham was then for some reason or other, had to leave the handball court.

The door closed and the interrogation resumed.

Some time thereafter, Dr. Abraham was again called to the handball court just prior to the time that Dr. Abraham had been called to the handball court, according to uncontradicted police testimony, Reck began to look ill.

He bent over.

He vomited from his mouth.

He vomited a quantity of blood.

It seemed to come out of his mouth all in a rush.

He bled for two or three minutes.

When Dr. Abraham entered the handball court, he saw Reck lying on the floor.

He saw a pool of blood on the floor beside Reck.

The pool of blood was approximately one foot in diameter.

Its color was a bright red, to use Dr. Abraham's phrase.

Reck was placed in a stretcher, carried out of the station, back to the County Hospital.

Morphine and two other drugs were administered to him there.

He was kept in a guarded hospital room all that night.

I might add that in the preceding three days, his father had come to the police station twice and that night he came to the hospital and police guards turned him away from his son and would not permit him to see his son.

The next morning at 9:30, Reck informed the doctors and it's uncontroverted that he did in fact inform the doctors that the police had been beating him in the stomach for a period of two and half days or so prior to this.

This was some eight or nine hours before he confessed to the Peacock murder.

He had seen no lawyer.

He had had no contact with his family.

There is nothing in the record to indicate that he'd heard of this Court's decision in Brown against Mississippi and knew the legal significance of such a beating so far as getting suppressed or confession that he haven't made yet.

Nevertheless, it is uncontradicted that he told the officers he was being beaten.

It is of course contradicted, his testimony that he was in fact beaten as contradicted by the officers.

9:30, Saturday morning, the fourth day of his interrogation commenced when he was placed the car of Captain Harry O'Connell of the Chicago police department, Commander of the North Avenue Station.

Captain O'Connell testified.

He was taken out of the hospital in a wheelchair, placed in O'Connell's car.

O'Connell got in the car, started back to the police station and while they were in the car, the interrogation resumed.

Back to the handball court for some four or five or six hours according to Captain O'Connell down to the State's Attorney's Office at about 2 to 3 o'clock p.m., several more hours of interrogation, Reck ultimately confessed.

He confessed in a joint confession in which some 65 times he said, “Yes.”

or “Yes, sir.”

And on a few occasion volunteered a little information, Reck's answers are set out in our brief.

The following day, he made another confession if -- was a reiteration of the joint confession.

He was not brought to court and arraigned until the following Thursday, which was the ninth day of detention, thus in brief, are the facts which led to the confessions which we claimed are coerced.

Justice John M. Harlan: How were the confessions taken down?

Was it --

Mr. Donald Page Moore: The confessions were taken down in each instance by a shorthand reporter of the State's Attorney's Office.

That shorthand reporter testified as to the first confession that Reck made, but when Reck was brought into the room, “I could his face.

His face was ashen.

He looked sick not well, just sick looking.”

He, “walked weakly.”

That was the testimony of the State's witness who was employed by the State's Attorney's Office to take Reck's confession, Mr. Issacson.

Justice Charles E. Whittaker: Mr. Moore, was there any other explanation than the possible beatings for his bleeding and his illness?

Mr. Donald Page Moore: Yes, Your Honor.

Sergeant Andrew Aitken who was in charge of the -- the handball court incidence, testified that a Dr. Abraham had told him Aitken, that Reck “Merely suffered a nerve reaction.”

Dr. Abraham although he testified twice at the trial never testified that Reck suffered merely a nerve reaction and Sergeant Aitken never did explain how the nerve reaction caused the vomiting of the blood.

I might only add that Sergeant Aitken, who vividly described the vomiting of blood at the post-conviction hearing in 1952, absolutely denied that he ever saw Reck vomit blood at the murder trial in 1936 and therefore, I think it's reasonable to suggest that Sergeant Aitken's credibility is somewhat questionable in this case.

Chief Justice Earl Warren: Is there any -- anything in the record other than the testimony of Reck that would indicate that he might have been beaten?

Mr. Donald Page Moore: Yes, Your Honor.

Reck's testimony is corroborated by three other witnesses.

Four men were convicted of the Peacock murder.

Two of them are on guilty pleas.

Their names were Nash and Goeth.

Nash and Goeth, after they have pleaded guilty and been sentenced and sent down to the penitentiary, were brought back to testify at the murder trial.

They had already been sentenced and convicted.

Nash and Goeth swore outside the presence of the jury on a preliminary hearing to test the admissibility of the confessions that they saw Reck taken into this handball court, that the door close, that they heard screams and they heard Reck crying and shouting out, “Don't, don't, don't.

Please don't do it anymore.”

That they then -- the door opened.

They saw Reck faint and saw him carried out of there.

Michael Livingston, who was a codefendant with Reck and of course had the interest of the defendant in testifying because he was indicted for the murder too and had not yet been sentenced, also corroborated Reck's testimony.

This was denied by all of the police officers.

Chief Justice Earl Warren: Mr. Wines.

Argument of William C. Wines

Mr. William C. Wines: Mr. Chief Justice, may it please Your Honors.

I shall argue this case on behalf of the Warden and Illinois in full recognition that this Court will make its own appraisal, at least from the uncontradicted facts in the record as to whether the two confessions admitted into petitioner's trial were voluntary or were the product of coercion.

On the other hand, I'm spared the necessity for discussing any question whether this Court should weigh conflicting testimony in the trial court by the very candid opening three lines of the reply brief in which, if I may read them, petitioner says, “Respondents,” that's we, “Urges that this Court should not weigh disputed testimony in deciding whether petitioner's confessions were the product of psychological coercion.

Petitioner agrees -- show that there is not even an attempt to impose upon this Court the burden of as saying contradictory testimony.”

Now, if the Court please, with those observations, I should like if I may again have the indulgence of the Chief Justice to read not of course as authoritative on this Court because the language that I would read would beg and not answer the question that's before the Court, if I were to read it as conclusive, but I should like to read from the opinion of the Court of Appeals, the language of that Court, Judge Duffy dissenting of course, “That besides the ultimate question that petitioner presses upon this Court on this certiorari.

I -- the transcript is not printed in this case, but I am reading from page 21 of the State's blue bound printed brief and the citation is 254 F.2d 253.

The court says, “Invoking the aid of the Fourteenth Amendment of the Constitution of United States, Reck now contends that his confessions were the product of coercion, citing his lengthy detention incommunicado and the illness which developed during that period of time.”

This is the language that distills the essence of the court's holding.

We are convinced, however, that the evidence proves that none of the treatment which he, that's a petitioner, received while he was being detained prior to Saturday afternoon produced produthe confessions by Reck while he became ill when Captain Aitken on Friday night probing they accused him of the Peacock killing.

His rugged determination to seem nothing to reveal the -- involvement in that affair had prevented the authorities from obtaining any incriminatory admission from him in regard to the crime until Saturday afternoon in the office of the State's Attorney.

Until then Reck, the strong man of the group had stood fast and on this occasion was only the realization that Goeth and Nash had confessed the Peacock killing and had implicated him and had in the presence of Crowley, the Assistant Prosecutor at that time, called upon Reck to tell holding Crowley, the truth about it.

“You know you were there and you know we are not lying about it.”

That is not quoting Crowley, that's the other boys that Reck realized that quoting from this Court's opinion in Stein against New York, “The dance was over and the time had come to pay the business and the ball's rotations.”

That Your Honors did not regard those sentences as conclusive as quite evident from the fact that certiorari has been granted and my argument will be addressed to supporting that conclusion by two of the three judges of United States Court of Appeals for the Seventh Circuit.

Before addressing the evidence, I think it is of more than passing importance to remind Your Honors that reviewing cases from 50 states and the federal jurisdictions, it escapes Your Honors' memory that the Supreme Court of Illinois, unlike many reviewing courts, will reverse a case even though there is no error in the record of any kind, even though there is sufficient evidence standing alone to sustain the conviction, if that court, weighing for itself though to be sure upon a printed or typewritten record, finds that there is not sufficient evidence to sustain a conviction beyond all reasonable doubt.

That is not the criterion of appellate reviewing criminal cases in many jurisdictions, but the Supreme Court of Illinois regularly and repeatedly reverses convictions for no other reason and that of it isn't convinced that there's sufficient evidence to support the conviction as a pure question of fact.

Justice Potter Stewart: Of course that -- that interesting fact about the Illinois appellate procedure doesn't have very much to do with this case, doesn't it?

Mr. William C. Wines: No, except --

Justice Potter Stewart: Because that's if this confession was properly admissible it's why surely, this confession was of sufficient evidence to support the conviction.

It's a detailed confession of the -- to the crime of which he was charged, isn't it?

Mr. William C. Wines: That's correct, Your Honor, but the question whether it was a product of coercion or voluntary is also a question of fact.

I mentioned this --

Justice Potter Stewart: But anything to do about sufficiency of the evidence though to support the indictment, whether or not the confession was voluntary.

Mr. William C. Wines: I -- well, if the --

Justice Potter Stewart: That's a separate question and the different question -- the -- different from -- from sufficiency of the evidence questions.

Mr. William C. Wines: I think not, Your Honor.

I -- I -- with the utmost difference and respect for Your Honor and the Court, I submit that although question of the voluntary character of a confession is a very different question from the question of the guilt of the defendant.

And those who did not know that before certainly know it since Your Honors' decision in the Rogers case of the 20th of this month, I do submit I mention this only for the purpose of showing that Supreme Court of Illinois when it held that this confession was voluntary and not coerced, expressed its own independent “judgment” on that question of fact.

And that was a question of fact which if resolved against the State would exclude this confession and vitiate this -- this conviction.

Justice Potter Stewart: Mr. Wines while we're on Illinois practice, I should know, but I don't -- what the -- what the practice is in the trial court when the claim is made that a confession was -- is inadmissible?

Now is this something that's decided preliminarily by the judge --

Mr. William C. Wines: Yes, yes.

Unlike what I believe is the New York practice.

I -- I shouldn't guess about that particularly when I'm not asked, but at least in Illinois when it is claimed -- well even if it isn't claimed, that a confession is involuntary, the court first hears evidence.

He normally doesn't hear it in chambers.

He hears it in open court.

Justice William J. Brennan: You mean as part of the --

Mr. William C. Wines: But the jury is excluded.

Justice William J. Brennan: No, but as part of its case in Illinois, does the State have the burden of --

Mr. William C. Wines: Burden of -- of convincing the judge first outside --

Justice William J. Brennan: -- proving that they -- no, but it -- it has the burden that's part of its case, I gather.

And proving that the confession is voluntary.

Mr. William C. Wines: Proving it twice, Your Honor.

Justice William J. Brennan: And that -- I know, but it has to prove that's a part of the State's case whether or not, the question of voluntariness is raised --

Mr. William C. Wines: Yes.

Justice William J. Brennan: -- is that it?

And the burden is measured I take it, by the same standard beyond a reasonable doubt.

Mr. William C. Wines: Oh, yes.

Justice William J. Brennan: And this has to be done I gather, both before the trial judge and again before the jury?

Mr. William C. Wines: That is correct.

Justice William J. Brennan: Do they repeat the performance or is it all -- evidence taken once?

Mr. William C. Wines: Repeat at -- no, it's done this way, Your Honor.

The jury is first excluded.

The judge and everybody else remains in the courtroom.

It's part of the public trial.

Newspaper reporters if there are such, audience, counsel, court stenographer, anyone who cares to be there.

The State then puts on the witnesses first, before there's any objection who testifies that as to the circumstances under which the confession was taken.

They are subject to cross-examination at that time, outside the presence of the jury.

If the judge believes that the confession was voluntary, I'm not absolutely certain whether he has to be convinced beyond a reasonable doubt, but the jury does when they hear it.

If he believes that it's involuntary, he just says, “Objection sustained.

Go ahead without this confession or you can't draft the directed verdict.

Justice Potter Stewart: Now at that point at that hearing before the judge, can the defendant testify without --

Mr. William C. Wines: Yes, oh yes and does.

Justice Potter Stewart: Can he testify without waiving any future privilege against this point --

Mr. William C. Wines: My understanding is that he can, but I don't have the authorities at hand, but I think so, Your Honor.

Justice Potter Stewart: Now did the defendant testify in this case?

Mr. William C. Wines: Yes.

Justice Potter Stewart: At that stage?

Mr. William C. Wines: My assumption is yes.

Now, then after the judge has had this trial, if he thinks the confession is relevant, the jury is then brought back into the courtroom.

It is not a matter of reading the stenographic transcript or playing back a tape recording.

The question of voluntariness is then tried de novo before the jury.

The same witnesses testify.

If they testify differently, they testify differently, but they testify.

They testify for the State.

Of course, the defendant on that occasion doesn't testify at that time, but he does if he takes the stand when -- and the jury is instructed that the burden is upon the proof, upon the State to prove the voluntary character of the confession.

Justice William J. Brennan: And not merely is credibility but also the voluntary character, is that it?

Both credibility --

Mr. William C. Wines: Oh, yes.

Justice William J. Brennan: -- both credibility of the confession and its voluntariness, go to the jury?

Mr. William C. Wines: Yes, yes.

Without any doubt or question and petitioner doesn't suggest that any other practice was pursued.

Justice Potter Stewart: And what is the jury instructed to do in the event that they find that the confession was involuntary?

Mr. William C. Wines: My recollection is that they're instructed to disregard it.

Justice Potter Stewart: How?

Mr. William C. Wines: By not find the defendant not guilty even though he is guilty.

You could have a case where the proof of guilt was demonstratively clear without a confession and yet there was clearly an extorted confession and I know of no authority for instructing the Illinois jury that they have to reward the defendant by an acquittal, nor have I ever heard of a special interrogatory, nor have I ever heard of one being refused because they never have heard of ones being requested.

Now --

Justice Felix Frankfurter: Mr. Wines.

Mr. William C. Wines: Yes.

Justice Felix Frankfurter: You contest this dispute?

Mr. William C. Wines: Yes, Your Honor.

Justice Felix Frankfurter: Did I correctly understand Mr. Moore to say that when the case came before the Supreme Court of Illinois, the record before it was merely the records before the trial judge outside the --

Mr. William C. Wines: No, Your Honor misunderstood it.

Is that -- my understanding --

Justice Felix Frankfurter: And I still think that --

Mr. William C. Wines: (Voice Overlap) complete transcript --

Justice Felix Frankfurter: As I understood him (Voice Overlap) question.

As I understood him, they were given even on the post -- post-conviction proceedings, they only had the record before -- on the question of (Voice Overlap) --

Mr. William C. Wines: Oh, I'm sorry -- I'm sorry, Your Honor.

I think that --

Justice Felix Frankfurter: Well they -- it would be strange if they'd the record before -- they wouldn't have had at the post-conviction proceedings.

As I understood it, the case went up merely on the admissibility -- on the record of admissibility.

Mr. William C. Wines: I think that -- yes, yes.

I am sorry.

Justice Felix Frankfurter: And therefore, the reason I raise this question, therefore, whatever else may be true of the -- of the strength of your argument, that there was a finding by the Supreme Court of Illinois which do I correctly understand like the Supreme Court of Appeals in New York examines the fact to the murder case?

Mr. William C. Wines: Yes, yes.

Oh, yes.

Justice Felix Frankfurter: And therefore you a right to argue that the Supreme Court made an independent examination of voluntariness.

Mr. William C. Wines: Yes -- yes.

Justice Felix Frankfurter: But if it be true, like Mr. Moore led me to believe that Mr. Moore understands the fact to be -- I didn't mean to make any invidious remark of course, if it be a fact that there was before the Supreme Court of Illinois on the question of voluntariness merely the proceeding on the initial proceedings for admissibility, then they couldn't have passed or didn't pass -- or passed inadequately, on the total thing that appeared after the confession again was made an issue at the trial.

Mr. William C. Wines: Well, now --

Justice Felix Frankfurter: I don't know -- that's a question of fact, Mr. Wines and we ought not to -- there ought not to be conflict among us lawyers whether in fact the finding of voluntariness by the Supreme Court of Illinois was on the basis of the total record that was before the District Court in this case, before the Court of Appeals in this case and it's now before this Court.

Chief Justice Earl Warren: Perhaps you could do that during the -- during the recess, Mr. Wines, between you and Mr. Moore.

You might --

Mr. William C. Wines: Yes I'm very anxious to check my own records.

Chief Justice Earl Warren: -- you might be able to agree on --

Justice Felix Frankfurter: If it was extended, would -- would qualify --

Mr. William C. Wines: Oh, of course.

Justice Felix Frankfurter: -- I think, in a significant way --

Mr. William C. Wines: Of course.

Justice Felix Frankfurter: -- the reach of the -- of the de novo determination by the Supreme Court of -- of Illinois.

Mr. William C. Wines: That is correct.

My recollection is as is Mr. Moore's that the Supreme Court of Illinois did not make a de novo determination of voluntariness, but did it only upon the evidence preliminary.

Justice Felix Frankfurter: Well, then therefore that determination was on a limited record, so far as the present posture of the case exists.

Mr. William C. Wines: That is correct.

Justice Felix Frankfurter: All right.

Mr. William C. Wines: Now the United States Court of Appeals however, very conscientiously canvassed this case and in one way, I think the Petitioner suffers in this case because he has in Mr. Moore, such a good lawyer.

Every fact that could passively be brought out in petitioner's favor has been brought out by Mr. Moore in his really superlatively good briefs in the District Court and the Court of Appeals and in this Court, without any distortion or unfairness to the State.

It's a remarkably good job and the Court of Appeals had the benefit of the always emphatically expressed views of that court's senior judge, Judge Duffy, in his dissenting opinion.

So these questions have been canvassed.

Now, the fact is as appears from the language that I read to you, that this defendant made two confessions.

He was -- although the psychiatrist says he cried easily, he very resolutely withstood this questioning until he was confronted by the admissions of three other boys that they were guilty.

Then he immediately, not after long and really torture confessed.

This illness according the State's evidence, came on him not after torture, but as soon as the -- Dr. Peacock's murder was mentioned.

Dr. Peacock, a physician, had been summoned by telephone calls saying that a child was ill.

Dr. Peacock was a pediatrician.

The address was a dark one and he was beaten to death.

These boys were arrested for bicycle thefts.

Suspicion turned upon them and it wasn't until three of them confessed and implicated this defendant that he confessed.

In that case, other facts are reminiscent although not identical with the Stein case.

Stein was older, but the facts were different.

Justice Potter Stewart: We're all -- we're all for these kinds of teenagers, this (Inaudible) was 1953.

Mr. William C. Wines: Yes, I think they were.

You remember --

Justice Potter Stewart: All about (Inaudible)

Mr. William C. Wines: And may have passed 20.

Justice Potter Stewart: But there was no --

Mr. William C. Wines: No, no -- no older -- no fake and leading a gang of a -- of a child criminals at all.

And --

Justice Charles E. Whittaker: One of the boys was 19 and one was 17.

Mr. William C. Wines: Thank you.

Chief Justice Earl Warren: Mr. Wines, you -- you spoke of the careful canvassing of the various courts.

Mr. William C. Wines: Yes.

Chief Justice Earl Warren: Judge Campbell, the -- the district judge as I recall it said that according to present day standards that this was coerced and was a violation of -- of due process.

Do you challenge that?

Mr. William C. Wines: Yes.

We assign error -- we argue in this brief that the district -- that although the District Court's judgment is in our favor, the findings upon which it rests are clearly erroneous.

We challenge it in just so many words and in just so many terms and the Court of Appeals took that view although it didn't express it.

Judge Campbell's opinion is a -- one of the most honest, forthright and self-revelatory documents that I have ever seen in the form of a judge's opinion.

I shall discuss it a little more after the noon recess.

Suffice it to say at the moment that he does find no physical coercion.

He finds the psychological coercion that would have offended this Court's constitutional norms as uttered --

Chief Justice Earl Warren: Finish it.

Mr. William C. Wines: -- later in decisions after this case.

I should like to discuss Judge Campbell's opinion later.