BALDONADO v. CALIFORNIA

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Argument of A. L. Wirin

Chief Justice Earl Warren: Augustine Baldonado, Petitioner, versus California, Number 186, Luis Estrada Moya, Petitioner, versus California, and Number 187, Elizabeth Ann Duncan, Petitioner, versus California.

Mr. Wirin.

Mr. A. L. Wirin: Mr. Chief Justice, may it please the Court.

In these consolidated petitions, each of the petitioners were charged with murder, in the Ventura County in California.

Each of them was sentenced to the death sentence and are presently under death sentence.

The petitioner Duncan pleaded not guilty to the charge.

In brief would the theory of the prosecution was that she had conspired with the remaining, with the other two defendants to murder her daughter-in-law, the wife of her son, the young lawyer in Santa Barbara because of the -- of jealousy, because he had married this girl.

In any event, she pleaded not guilty and she was convicted by a jury and thereafter under the procedure in California which is to the effect that one who is convicted in a capital case may then have a trial by jury as to -- as to what the sentence maybe, either life imprisonment or death.

She was given the death sentence.

Justice Potter Stewart: It's the same jury always, isn't it?

Mr. A. L. Wirin: Same jury.

With respect to the other two petitioners, while in custody, they made confessions.

In a moment, I shall tell Your Honors the circumstances of the release of the confessions by the District Attorney, but in any event, they made confessions that they -- to the effect that they had been employed by Mrs. Duncan to murder her daughter-in-law and thereafter, they pleaded guilty, but they were entitled to a trial by a jury as to what sentence should be imposed.

Justice Felix Frankfurter: I didn't hear.

Mr. A. L. Wirin: Till they pleaded guilty --

Justice Felix Frankfurter: Yes but they were --

Mr. A. L. Wirin: But they were -- they were entitled under California procedure to a trial by Court or jury and they selected a jury as to what sentence should be imposed, either the death sentence or life imprisonment, and they were given death sentences.

This Court in the grant of certiorari, a number of issues were raised in the petitions, limited the issues to two, and I shall paraphrase them summarily.

The first issue which -- to which this Court limited certiorari was whether or not the conduct of the District Attorney and the resulting publicity in the community in Ventura, I'm of course paraphrasing the Court's order, the Court's orders are in -- are in the record, if Your Honor -- Your Honors have page reference, in any event the first issue is whether as -- as indicated by this Court, was whether the conduct of the District Attorney and the resulting publicity as well as other accompanying circumstances deprived the petitioners of a fair trial and a due process under the Constitution of the Fourteenth Amendment.

This Court also indicated another issue and that is whether or not the presence of three jurors who finally remained on the panel which tried one of the defendants who when they arrived in the jury box as been not -- as then prospective jurors and venire admitted that they believe the defendant guilty whether or not their continued presence upon -- they be selected as jurors and their continued presence as members of the jury violate the right of fair trial guaranteed by Due Process Clause of the Fourteenth Amendment.

Justice Charles E. Whittaker: You say –-

Chief Justice Earl Warren: That was the Duncan case, wasn't it?

Mr. A. L. Wirin: That's it.

Yes Your Honor.

Justice Charles E. Whittaker: That was my question, which one?

Mr. A. L. Wirin: Yes, yes.

The second issue applies only to the Duncan case.

The first issue applies to all of the three cases.

I shall address myself entirely to the first issue, first of the two issues and I shall be followed by Mr. Warner who will address himself to the second issue which applies exclusively to the Duncan case and then it is our plan with Your Honors permission to have Mr. Henson make the rebuttal argument in -- in all of the cases.

Chief Justice Earl Warren: May I ask this, Mr. Wirin?

Mr. A. L. Wirin: Yes, Your Honor.

Chief Justice Earl Warren: Is it your position that the -- what happened in the Duncan trial as to the jurors has any bearing at all on the other two cases?

Mr. A. L. Wirin: Well, it is our position that what happened in the Duncan trial as to the rulings of the Court and the conduct of the District Attorney in connection with that case has the bearing upon all of the cases.

On the other hand, it is probable that the precise question as to whether or not, there were three jurors in the Duncan case who had an express whether -- expressed an opinion.

That is limited in the Duncan case but let me qualify it further.

It's our contention that there were jurors in both the Baldonado and Moya cases as well as in the Duncan case, who have formed the opinions as the result of the publicity, there's the (Inaudible) District Attorney and who remained on the jury so that these defendants also were denied a fair trial.

Justice Charles E. Whittaker: But is that question here with respect to the others?

Mr. A. L. Wirin: It is with respect to the others only in this limited context, and that is whether or not under all of the circumstances, the others, Baldonado and Moya received the kind of trial which the Due Process Clause accords every person particularly in the Capital case.

So to that narrow extent and only to that narrow extent is it in the case.

The thrust or the gravamen of the argument with respect to the other two petitioners would also apply to Mrs. Duncan is the conduct of the District Attorney and the resulting publicity and with respect to that, but I want to primarily, not entirely, address myself and proceed to -- to make my presentation.

Justice Charles E. Whittaker: (Inaudible)

Mr. A. L. Wirin: Sequence of the trial was as follows.

Mrs. Duncan was tried first both thrust on guilty and then the death sentence was imposed.

Baldonado was tried second and the last of the trio was Moya.

I shall I think I'm reasonably certain in my argument, have some occasion to refer specifically to the dates because and I may say to you at this point then I won't say it later, because it is our contention that the prejudicial effects of the statements made to the press by the District Attorney continued in their impact throughout a reasonably long period and continued through the trials of Baldonado and Moya.

And in that respect, it is our position that the cases to be distinguished from a case which I argued before, some of Your Honors some time ago, the Strobel case in which there was -- once they had been by a prosecutor, Justice Clark wrote the opinion, Justice Frankfurter, and Justices Black, and Douglas dissented, be that as it may.

In that case there was one statement by a prosecutor made a long time prior to the trial and this Court took the view that the impact of that improper statement had dissipated prior to the actual trial.

In our -- it is our contention in this case that that is not so, but on the contrary, the impact continued probably because of the nature and the quality of the statements made by the prosecutor to the press and largely because he continued to make statements which were prejudicial and inflammatory throughout the three proceedings.

Justice Felix Frankfurter: Mr. Wirin.

Mr. A. L. Wirin: Yes Your Honor.

Justice Felix Frankfurter: I need some indictment.

I don't understand your answer to the Chief Justice's question --

Mr. A. L. Wirin: Yes Your Honor.

Justice Felix Frankfurter: -- namely, the interrelation of these three cases.

These are three cases against three individuals, each of whom was tried separately.

Mr. A. L. Wirin: That's correct, Your Honor.

Justice Tom C. Clark: In each case we have a separate record.

Is that right?

Mr. A. L. Wirin: Yes.

That is correct, Your Honor except --

Justice Felix Frankfurter: Now, was there any -- was there in the cases subsequent to Mrs. Duncan's trial either in Moya or Baldonado, was there any stipulation that evidence introduced in the earlier trial should be deemed as though introduced in the succeeding trials or were these trials absolutely separate?

The argument – the suggestions you last made or the observations that a -- that a conduct may continue over a period of time is irrelevant to my question.

Mr. A. L. Wirin: Yes.

May I --

Justice Felix Frankfurter: My question is whether three cases separately tried before separate juries here on separate records should be judged independent, each record being an autonomous proceeding and therefore your answer to the Chief Justice is not clear to me when you said it has some connection.

What is the connection?

Mr. A. L. Wirin: Alright.

In the first place to answer your -- Your Honor's specific question, it is true that the cases are here on three separate documents which are denominated rec -- separate records in each case.

However, with respect to the motion for change of venue which was made and it is largely in connection with the rejection or the denial of the motion for change of venue, a motion suggesting prejudice in the community.

In connection with the motion for change of venue, I think it is accurate to say that all of the petitioners relied upon the same -- some immaterial --

Justice Felix Frankfurter: But separately introduced in each trial.

Mr. A. L. Wirin: But -- but separately introduced --

Justice Felix Frankfurter: Or -- or by stipulation agreed to --

Mr. A. L. Wirin: Yes, Your Honor.

Justice Felix Frankfurter: -- to carry over, wasn't it?

Mr. A. L. Wirin: Quite -- quite so.

Separate -- there was -- they were by -- both by stipulation and they were by stipulation incorporated in each of the cases.

Justice Felix Frankfurter: Let me ask you this.

Mr. A. L. Wirin: Yes.

Justice Felix Frankfurter: Put in short reverses.

Mr. A. L. Wirin: What is the exception?

Justice Felix Frankfurter: What I -- what I want to know, could I judge each one of these trials by merely looking at the record of each one of these trials?

Mr. A. L. Wirin: I believe so.

Justice Felix Frankfurter: Well then -- then there's no connection between the (Voice Overlap)

Mr. A. L. Wirin: Well except that -- except Your Honor that some of the material --

Justice Felix Frankfurter: I don't care about the material.

I want to know whether each record presents an autonomous record of the cases which must be decided by this Court.

Mr. A. L. Wirin: I would answer Your Honor's question.

Chief Justice Earl Warren: Now I -- I'm just a little confused now because you said there was some kind of a stipulation concerning these things carrying over this.

Mr. A. L. Wirin: When I say --

Chief Justice Earl Warren: Where is that stipulation in the record?

Mr. A. L. Wirin: Well may I just say to Your Honor that the identical material --

Chief Justice Earl Warren: Well that's not a stipulation.

If there is a stipulation in the record, I will --

Mr. A. L. Wirin: Well, the identical material appears --

Chief Justice Earl Warren: I beg your pardon.

Mr. A. L. Wirin: The identical material upon which their motion for change of venue was relied upon appears for instance in the Baldonado record and in the Moya record.

Baldonado's counsel having adopted the material which are -- which was presented in the -- in the Moya record.

So to that extent while the records are separate, some of the material is duplicative in that it was physically incorporated in the other record.

Chief Justice Earl Warren: Well I was just talking to your -- your stipulation as you said.

There was no -- there was no stipulation.

Mr. A. L. Wirin: Well, the stipulation was -- might maybe deem to be -- this maybe deem to be so, namely, that portions of the record in one case maybe deem to be considered in the other case.

Justice Felix Frankfurter: Well that's just a physical way of dealing with the materials in each record.

Mr. A. L. Wirin: But I'm entirely content to answer Mr. Justice Frankfurter's question by saying that we are content that each case be considered upon the record of that case and move along then to the --

Justice William J. Brennan: Well Mr. Wirin --

Mr. A. L. Wirin: Yes Your Honor.

Justice William J. Brennan: Moya and Baldonado first pleaded guilty, did they not?

Mr. A. L. Wirin: They did Your Honor.

Justice William J. Brennan: And then Mrs. Duncan was tried and she was -- there were witnesses against her, were there not?

Mr. A. L. Wirin: That is true, Your Honor.

Justice William J. Brennan: And her trial, her first trial was on guilt or innocence.

Mr. A. L. Wirin: That's correct Your Honor.

Justice William J. Brennan: Then followed as I understand it before the same jury that determined her guilt another trial as to sentence.

Mr. A. L. Wirin: That is correct, sir.

Justice William J. Brennan: And how long after the determination by that jury of the death sentence for her was the Baldonado trial?

Mr. A. L. Wirin: Well, Mrs. Duncan was sentenced on April the 3rd.

Baldonado's trial began on April the 6th.

Justice William J. Brennan: Now this was, of course, not a trial or guilt or innocence, he pleaded guilty, it was only to determine sentence, wasn't it?

Mr. A. L. Wirin: That's right.

That is true.

Justice William J. Brennan: On April 6.

Mr. A. L. Wirin: On April 6.

Three days thereafter.

Justice William J. Brennan: How long did --

Mr. A. L. Wirin: And included about -- and took three days and concluded on April 9.

Justice William J. Brennan: And then Moya?

Mr. A. L. Wirin: Moya's trial began on April 20th about 10 days thereafter although there were some proceedings in connection with Moya between April 9th and April 20th.

So that it is our contention that quite immediately one after the other, these cases were tried though of course conceded that the issues in the Baldonado and Moya cases were different, the issue was different from one of the issue which was in the Duncan case maybe of guilt or innocence.

Justice William J. Brennan: Now was -- was it common to all four proceedings, the question of the prosecutor's conduct?

Mr. A. L. Wirin: Indeed.

Justice William J. Brennan: That was common -- that was also an issue in the trial of Mrs. Duncan on guilt or innocence.

Mr. A. L. Wirin: It was raised indeed.

Justice William J. Brennan: But the materials in all four cases regarding prosecutor's conduct was the same?

Mr. A. L. Wirin: Well I think I maybe --

Justice Felix Frankfurter: But I think if you -- if I may interrupt or intervene, I think we'd all save time if you told us what the facts were, you see them relevant to the issues.

Mr. A. L. Wirin: Well good, good Your Honor.

May I just say -- may I just make one qualification if I may because I don't' want to misstate anything.

I think it is probable that the Duncan record differs in some respect on the issue of change of venue, from the record in the Moya and Baldonado cases, but as to those cases, the record is identical because of the operation.

Now I --

Chief Justice Earl Warren: Now one other -- one other thing.

You said that she was sentenced on the -- on the 8th of April, did you?

Mr. A. L. Wirin: 3rd

Chief Justice Earl Warren: 3rd of April and the trial of -- of the --

Mr. A. L. Wirin: Baldonado began three days thereafter.

Chief Justice Earl Warren: Thereafter --

Mr. A. L. Wirin: On -- on the penalty.

Chief Justice Earl Warren: Yes, but when was her -- when was her second trial completed?

Was it -- was it completed before --

Mr. A. L. Wirin: Yes.

Yes it was.

Chief Justice Earl Warren: It was completed before either trial, before the trial of Baldonado?

Mr. A. L. Wirin: It was.

Chief Justice Earl Warren: Yes.

Mr. A. L. Wirin: But it is our contention that after her trial was concluded, there were still statements pertaining to the involvement of all of the three defendants, including the remaining two by the District Attorney.

So we think that the critical dates or critical date is not when she was convicted but what transpired during this -- this entire proceeding and I'm prepared now to state what took place, what's the conduct of the District Attorney and what the presence of the mass media did about it?

Chief Justice Earl Warren: Well do you contend that what he said after the second verdict was in on Mrs. Duncan that that affected her trial?

Mr. A. L. Wirin: No, not at all.

Chief Justice Earl Warren: Not at all.

Mr. A. L. Wirin: No.

Chief Justice Earl Warren: Very well.

Mr. A. L. Wirin: Merely our contention that it affected the trials which dealt which followed thereafter.

Chief Justice Earl Warren: Yes.

Mr. A. L. Wirin: And if I will answer Your Honor's question, the (Inaudible) Moya from our point of view was the -- the victim or the subject of the cumulative effect of numerous statements made by the District Attorney first in the Duncan case and then to the Baldonado case and I have occasion also to refer in -- in passing to some of the rulings made by the trial court and the publicity given to them which we think was also prejudicial.

Chief Justice Earl Warren: Well on the rulings of the trial court, wasn't that determined in the Supreme Court of California?

Mr. A. L. Wirin: Well, when I say the rulings I am referring to, for instance, a statement made by the judge.

I'm referring to two things.

First, the statement made by a judge which according to the record was publicized widely in -- in the local press that, and I am paraphrasing it, that the suggestion that the citizens of Ventura County could not give a fair trial to these defendants was an insult to their integrity and insult to their integrity and we see that kind of a statement, I am not talking about rulings, I said rulings I misspoke myself, the kind of a statement made publicly obviously made -- may have had prejudicial effect with respect to all of the defendants who by that time hadn't been tried at all.

Moreover to answer Your Honor's question, affirmed.

When the jury returned its verdict in the Duncan case, he made a statement which appeared in the local press as a matter of utmost importance.

Generally commending, I'm not sure about the precise word now, the verdict in the -- in the Duncan case.

And moreover, when shortly thereafter, the after sentence was imposed, Baldonado was tried and the jury found him guilty after having been out purely, through imposed death sentence, after having deliberated on the matter less than two hours.

The judge said to the jury and to the public and thence to the press, he complimented the jury and he congratulated them upon their courage.

Now we think that kind of a thing may -- maybe a factor in having influenced the jury which three days thereafter was going to determine whether to send -- to send to gas chamber the third of these defendants, namely, Mr. Moya.

But however, the major point of our -- of our complaint is the matter of, if I'll use a shorthand phrase of trial by newspaper, but that's not an accurate phrase in this case because what all of these petitioners object to is not trial by newspaper (Inaudible) to trial by fair court and jury, but trial by prosecutor in the newspapers.

And hence the problems which this Court had in Bridges and the Times cases and other cases to determine one point at what point a newspaper opens against the law by virtue of publications which have a tendency to do affect the administration of justice.

That is not an issue in this case.

The issue in this case is whether or not the State of California through one of its agencies, namely the District Attorney of Ventura County, intentionally or otherwise, it makes much difference, resorted to the press and made prejudicial and inflammatory statements to the press, calculated the prejudice the community against these defendants as the result of which conduct by the District Attorney, these defendants did not get in Ventura County in California that kind of fair trial which the Due Process Clause of the Fourteenth Amendment accords to all.

And so I turn then with the expectation of giving Your Honors some specific details or certainly not all of them because the statements by the District Attorney and law enforcement officers on this control are very many.

They are outlined in our briefs and needless to say, I do not have the time and shouldn't take the time to outline them all.

But I do want to indicate some of them to give Your Honor some examples of -- of the following.

Let me -- before I come to that, let's make a further argument or conclusion or state my own opinion and then I shall develop the facts.

As we understand it, the Constitution accords to all the right to one trial and to a fair one.

We think in this case these defendants, these petitioners, received two trials, neither of which was fair.

The first trial was in the public press, a trial in which the District Attorney acted as prosecutor and the second trial was before a court and jury which we think was only a trial in -- in really no more than in form, a trial which merely registered or recorded the verdict which had already been reached by the community from which the jurors who tried these defendants were selected and that therefore, though I hope I'm not overstating it, that what happened in these cases was that the verdict had already been sealed against these defendants in the community and the court proceeding was merely the form of -- of opening up the verdict --

Justice John M. Harlan: If you don't mind I suggest to you, I think you help us a lot more if you could guide us through what you consider to be the controlling thing instead of characterizing them all.

Mr. A. L. Wirin: Your Honor it's quite, I'm sure Your Honor is quite right.

Chief Justice Earl Warren: And Mr. Wirin also I -- I -- in these cases while they're consolidated are listed as Baldonado and Moya and Duncan.

Now I hope you are going to discuss them separately and not -- and not bring them all together so that we have to decide all the issues as to one case because there are some very different situations in these three cases.

Are you going to do that for us?

Mr. A. L. Wirin: I hope so.

Chief Justice Earl Warren: So who you want to start with, Baldonado?

Mr. A. L. Wirin: I'm going to start with Duncan.

Well because -- because --

Justice Felix Frankfurter: You hope so.

You say you hope so.

I assume that means you determined to do so and that it's clear in your own mind that they are three separate cases.

If -- instead of clearing your own mind, you wouldn't possibly make it clear to us.

Mr. A. L. Wirin: Well, the reason I said I hope so is I have so often failed in carrying out my -- my intention.

Moreover, I must also make this --

Justice Felix Frankfurter: You didn't emphasize what the intention should be.

Mr. A. L. Wirin: I understand, but I must -- must say to Your Honors, nonetheless at this point that with respect to the defendants Moya and Baldonado, they rely upon the statements made against them and about them made by the District Attorney which statements were filed in the Duncan case as also to Mrs. Duncan to be sure once the Duncan case is through then she can no longer rely upon any conduct by the District Attorney and Baldonado and Moya can.

And when Baldonado's case is through, he cannot rely upon statements made by the District Attorney but Moya can and I shall attempt to distinguish between these three situations as they go along.

Your Honors, we have a attached as an appendix to the brief in the Baldonado case for the convenience of the Court two of the statements made by the District Attorney which we consider the most prejudicial and the most unfair.

One is in Appendix A which had and that's in two sheets and the other is Appendix B.

Your Honors will (Voice Overlap)

Chief Justice Earl Warren: That's in your brief and Duncan –

Mr. A. L. Wirin: Baldonado brief --

Chief Justice Earl Warren: Oh! Baldonado! Yes.

Mr. A. L. Wirin: And the Government printer was good enough to make an offset copy of --

Chief Justice Earl Warren: Yes.

Yes, I see.

Mr. A. L. Wirin: Now Your Honors will note the -- the headline, I can't refer to it except because of course the prosecutor is not responsible for -- for headlines.

She doesn't write -- like headlines of any newspapers, but Your Honors will note that under this headline which is at larger type as I've ever seen in this -- in this paper, the District Attorney has quoted in the extreme right hand column, extendedly –

Unknown Speaker: (Inaudible)

Mr. A. L. Wirin: He has quoted as same and he's going to present the case to the grand jury.

We don't think that's extremely prejudicial.

We do think that a statement made by him which is after the -- the second fold on the right hand column to the effect that Mrs. Duncan had previously tried to hire the killing of her son's wife and a direct quotation attributed to him, which he has never denied.

This is not the first time Mrs. Duncan tried to have her killed.

We think this was an entirely improper statement by a District Attorney at a time when these defendants having him been charged with any crime although they have been arrested and were under a suspicion.

We think moreover that it was improper and incidentally this case does not involve the conduc -- the misconduct of the District Attorney in any direct way.

This is not a contempt proceeding against the District Attorney.

The narrow question which Your Honors have to face is whether the conduct of the District Attorney deprived these defendants of a fair trial.

We think it did for the District Attorney to make public to the press and to -- and to this community a comparatively small community of about 170 to 180,000 people in their county, essentially a rural community.

We think it was depriving these defendants of the fair trial to which they -- they were entitled and which trial they were made to have for the District Attorney to release the confession of one of the defendants all together.

Justice Felix Frankfurter: Well where is that?

Where is that release of the confession?

Mr. A. L. Wirin: Well we think it's clear Your Honor from a reading of the story that the District Attorney comments on the confession.

It is further clear that at that time --

Justice Felix Frankfurter: I just -- I just want to see it with my own eyes.

Where is it, Mr. Wirin?

Fact is so much powerful that speeches about it.

Mr. A. L. Wirin: Well You Honor, the best I can do and say to Your Honor that the story recites that officers said that Mrs. Duncan was told certain things and then officers undertake to summarize the confession which -- which was made by -- by this defendant.

Moreover refer --

Justice Felix Frankfurter: Wait a minute.

You just said you very well know Mr. Wirin and nobody is more sympathetic with scrutinizing the conduct of prosecutors than I am, but I'd like to know – have the facts before I do that.

Now you said the District Attorney released the confession there.

Where in print do I find that?

Mr. A. L. Wirin: Would Your Honor bear with me a moment?

Justice Felix Frankfurter: I bear with you.

All -- all you want me to bear with you, I'm simply asking you to make good on your statements.

Mr. A. L. Wirin: May I -- may I give that direct reference to Your Honor a little -- little bit later if necessary through other counsel.

Justice Felix Frankfurter: Alright.

Mr. A. L. Wirin: To the effect that the District Attorney made public this confession.

Justice Felix Frankfurter: But I thought it was apparently it's not in this sheet.

Mr. A. L. Wirin: Well it isn't as clear as I should like it.

Justice Potter Stewart: It is summarized beginning at the bottom --

Mr. A. L. Wirin: It is -- it is summarized, the defendant was in custody.

The confession could have been given to the press only by the law enforcement officers of whom the District Attorney was in charge, but Your Honor, let me -- let me back away from that and let me give Your Honor a little bit later a direct reference to the District Attorney having made this confession public.

Justice Felix Frankfurter: I hope you entirely face it like an issue.

Mr. A. L. Wirin: Now then -- but Your Honor, we object not quite as much to the release of the confession as we do to the statement given to the press by the District Attorney, at the same time that this confession was made public no matter who made it public.

Under a headline again for which he is not responsible on the left hand side, DA urges death term in killing and according to this story, which has never been denied by the District Attorney, he issued a formal statement to the press.

He, the prosecutor, he is under obligation to accord these defendants of fair trial.

Before their trial had even began, talks about the killing as in the second paragraph, the brutal calculated revolting killing for hire, makes the decisions for hire of all, of over Duncan and then he goes on and on and in the last paragraph, and in the last paragraph of this statement made by the District Attorney.

He says, “I hope the people of this State rise up against the propaganda, double in connection with capital punishment and they must demand so and so.

Now we think --

Justice Felix Frankfurter: Am I right, am I right in reading that statement whatever I might think of this, am I right that in that statement, there's no reference direct or most oblique to any of these defendants?

Is that correct?

Mr. A. L. Wirin: I -- yes.

I think Your Honor that is --

Justice Felix Frankfurter: Well you could say yes or no to that, can't you?

Mr. A. L. Wirin: Well I was going to say, I think it's --

Justice Felix Frankfurter: You take time.

Mr. A. L. Wirin: I think it is not entirely correct for this reason Your Honor.

I think that in the reading what appears under this general -- under this main banner, you should read this statement by the District Attorney in the context of the confession which had been made public.

And I think that it is a reasonable -- first that it is a reasonable inference that the District Attorney who is quoted in one context --

Justice Felix Frankfurter: But he has been quoted, he has been -- you see that's my difficulty.

You say the District Attorney released the confession.

Then when I ask you where is it you say, “Well will you bear with me, I'll tell you about that later.”

Then you refer to a statement in which there is no reference to any defendant and you say it isn't true that there is no reference because that must be read in context with the right hand column which however you agree doesn't sufficiently made clear that the District Attorney released it.

Mr. A. L. Wirin: Mr. Justice Frankfurter, if you will bear with me and you said you would, you will discover that in this -- that the District Attorney is quoted in quotation mark –

Justice Felix Frankfurter: Yes, but –

Mr. A. L. Wirin: -- as having said -- as having said, this is not the first time Mrs. Duncan tried to have her killed.

So in part --

Justice Felix Frankfurter: But I was talking about the confession.

Is there any reference in the right hand column that the District Attorney whose name was what was it –

Mr. A. L. Wirin: Jackson –

Justice Felix Frankfurter: -- that he released it.

I'm not denying the fact.

I'm merely denying that I don't find that in this column.

Mr. A. L. Wirin: I am saying to Your Honor that with respect to the question as to whether he released it, I hope to demonstrate that to you (Voice Overlap)

Justice Felix Frankfurter: Very well, but then you make -- then you got to make that statement carry more than it is barely capable of carrying.

Mr. A. L. Wirin: That is quite true, Mr. Justice Frankfurter, but -- but, Mr. Justice Frankfurter, while it is true that the statement which the District Attorney gave to the press on the death penalty does not mention any of these defendants by name.

He is talking about the only offense which is involved in this matter, he's talking about the brutal killing by hirebales by Duncan.

Justice Felix Frankfurter: Perhaps, I will accomplish my prefaces best by not asking you any further question which you will lay bear all the facts.

Mr. A. L. Wirin: Well I know.

I think I know.

I'm glad to answer any question.

Justice Felix Frankfurter: I know you are but I don't think you can get much proper.

Mr. A. L. Wirin: Now we think another statement made by the District Attorney, which appears in Appendix B to that --

Chief Justice Earl Warren: Now that's all -- that's all that you have in mind so far as this particular exhibit is concerned, what have told?

Mr. A. L. Wirin: That's all I have in mind as to that exhibit is concerned with the qualification that I am claiming that it is part of a persistent continuing program and plan by the District Attorney to make statements concerning these cases to the press prior to and during the trials which said statements adversely affected such defendants as -- as where they were after tried.

Chief Justice Earl Warren: The same -- on the same page is a picture of the shallow grave in which they found the murdered young woman, is it?

Mr. A. L. Wirin: That is true, Your Honor.

Chief Justice Earl Warren: Yes.

You object to that?

Mr. A. L. Wirin: No.

I don't object to anything that a newspaper prints.

I'm objecting to what the District Attorney hands out to a newspaper to print in connection with the guilt of the defendants.

Chief Justice Earl Warren: Very well.

Mr. A. L. Wirin: Now the other statement I'm calling Your Honors' attention is a statement attributed to the District Attorney which he has never denied and this is at a time also prior to that trial, it is Appendix B to our -- to our -- to the brief and in it, well, he makes an argument.

He refers to the three persons who had been arraigned.

So obviously, he was --

Justice William O. Douglas: What is the time interval?

You've given us -- the first one was one statement, (Voice Overlap)

Mr. A. L. Wirin: That was September 22nd.

This next statement is on December 30.

Justice William O. Douglas: This is --

Mr. A. L. Wirin: Eight days after.

Justice William O. Douglas: Eight days later.

Mr. A. L. Wirin: Yes.

In the meantime as our briefs indicate particularly in the Moya brief, every single day between the 22nd of the 30th, Mr. Gustafson made some statement about the -- about the evidence and about the case.

Justice Felix Frankfurter: Where are they?

Are they in the record?

Mr. A. L. Wirin: They are -- they are in two places.

First they are in the record, in the form --

Justice Felix Frankfurter: Well just give me -- can't you refer to the page?

I have the greatest possible interest in this case, Mr. Wirin.

You well know from my prior writings.

All I want to do is to be satisfied that you make out your case if you got a case.

Mr. A. L. Wirin: Alright.

Justice William O. Douglas: Those are the only two you mentioned in --

Mr. A. L. Wirin: Yes.

Those are the only two in the Baldonado.

The Moya brief is much fuller Your Honor and contains numerous other statements which do not appear in the Baldonado brief, and if I may turn to the Moya brief --

Justice Felix Frankfurter: Well now were all these other statements entered before the Court in each case?

Mr. A. L. Wirin: They were in the Moya and Baldonado cases.

Justice Felix Frankfurter: In each case, they were these statements on the basis of which you felt you did not have your client and you have a fair trial within each record.

Mr. A. L. Wirin: Some of -- some of these were not in the Duncan record, but were in the Moya and Baldonado records although the two statements which I have just called up Your Honors' attention were in the -- in all of the records.

But now this --

Chief Justice Earl Warren: So you rely, in the Duncan case you rely on these two statements and these alone.

Mr. A. L. Wirin: I would -- I would answer that yes.

Now that in the Moya brief, we have references to the Moya record with respect to the further statements made by the District Attorney.

Justice Felix Frankfurter: May I -- may I, before you move on, pursue Chief Justice's question.

If you rely on merely on those two statements in the Duncan record, then you cannot say that there was a persistent course of conduct by the District Attorney.

Isn't that so?

If you only -- if you -- you just answered Chief Justice -- Chief Justice that these are the only two things in the Duncan record.

Well, then your statement that there was a persistent course of conduct can't apply the Duncan.

Mr. A. L. Wirin: I would make that concession.

Justice Felix Frankfurter: Well, but it's very vital to that case, isn't it?

To me it makes a lot of difference whether District Attorney talks all the time over that the judge what he did once or twice.

One who betrays the state of mind and the other may betray a lapse.

Mr. A. L. Wirin: In any event let me say that in the Moya record, there are references to numerous other statements made by the District Attorney in the record in the Moya record at the various page of references.

They are found in the Moya brief at pages 8 to 11 and the record references appear there.

With respect to Moya and Baldonado, the District Attorney not only made various statements, some of which I've already called Your Honor's attention, but after he had argued the case to the jury, he deemed it appropriate to issue a formal release to the press explaining that when he made some remarks about some of the other judges in the course of which to the jury, he had said that he was ashamed of their conduct.

He made a formal release to the press that he had misspoken himself and all he intended to say was that he had regretted the conduct of these other judges rather than being ashamed of it.

The --

Chief Justice Earl Warren: Who said that?

Mr. A. L. Wirin: The District Attorney.

Chief Justice Earl Warren: When was that?

Mr. A. L. Wirin: This was after his argument in the Duncan case.

He made the statement.

I am merely citing that as an example, that the District Attorney was of the view that it was entirely proper for him to make such statements as he -- as that occurred to him in connection with the trial -- with the trial of the case or what happened in the case.

The newspaper -- local newspapers were thought that when the jury verdict came in, in the Duncan case, he hailed the verdict and we think that must have had some effect upon the jurors who were thereafter selected to determine the sentences, to be imposed on Moya and Baldonado.

Now with respect to Moya and Baldonado, then I --

Chief Justice Earl Warren: Well wouldn't the -- wouldn't the record at the trial itself convey that same impression just as strongly if the District Attorney in the trial of the Duncan case urged the jury to render the -- to inflict the death penalty and the jury did, it would be a natural assumption whether he said it or not that he was satisfied with the verdict, wouldn't they?

And what -- what difference would that make to the public?

Mr. A. L. Wirin: Well I'll merely answer Your Honor's two foldedly that I want to use my colleagues.

In the first place, we think the District Attorney in common fairness may not try his case twice.

He may not tell the public from which a jury is selected, what his evidence is going to be, and may not make statements which are prejudicial against the defendants first in the public press and then repeat them before -- before the jury.

In other words, if (Inaudible) tries the case once, and it entitled to try his case in the public -- at a public trial rather than public press.

Moreover, whenever a District Attorney makes a statement before a court in jury, the defendant is there.

He is represented by counsel, and the defendants' counsel have -- have some opportunity to meet that statement and to refute it.

In this instance, when the District Attorney resorts to the public casting and results to the press to try his case, the defendants in this instance most of the statement he has (Inaudible) not even represented by counsel.

A seriously disadvantage and what happens is as it happened in this case the community makes up its mind with respect to the guilt or innocence or the quantum of sentence to be imposed before members of that community reach the jury box and then the jury box -- and then the jurors and the jury box are disposed as most human beings are to accord to or to adhere to in the opinion and judgment which they had theretofore made from reading the statements of the District Attorney.

Chief Justice Earl Warren: Mr. Wirin, I notice in the Appendix A to the respondent's brief in the Moya -- Moya case, where we have so many items of news, the Government lists, according to the record, 69 statements that counsel for the defense gave to the press concerning the evidence and other matters in the -- in the case.

Do you think that bears upon the situation at all?

Mr. A. L. Wirin: Well I think this Your Honor.

In the first place, it's easier for me to answer this question of the counsel because I was not one of the counsels in the case.

But in any event, it is -- it is their position as I understand it, that when they came into the case, such prejudicial statements have been made by the District Attorney against -- against these defendants.

The day he felt as a matter of elementary self defense to accord their defendants, the mode to come of a fair hearing ultimately that they should make some reply.

This is particularly true.

Mr. Henson will tell Your Honors about a recording of which he arranged to have played of the defendant Moya.

Moreover Your Honor, while the list in the appendix by the Attorney General is a long one, the import of the statements made by counsel for the defendants is that they were nominal and inconsequential statements not at all comparing or contrasting to the vigorous and prejudicial statements made by the District Attorney and finally --

Chief Justice Earl Warren: I know this one in there where counsel says that the prosecution was solely for the purpose of politics and that the District Attorney intended to climb to higher office over the dead body of the defendant Duncan.

You think that is provocative?

Mr. A. L. Wirin: I think that's a -- I think that's a -- an overly strong statement.

Actually as we indicate in our brief, we're going outside the record as has the Attorney General.

Mr. Gustafson did run for -- for office immediately after these cases.

But I think that's an improper statement.

Chief Justice Earl Warren: (Voice Overlap)

Mr. A. L. Wirin: Oh, three or five six months, I'm sure.

Justice Felix Frankfurter: Same year you mean.

Mr. A. L. Wirin: Same year.

Now --

Justice Potter Stewart: Did he win?

Mr. A. L. Wirin: He didn't.

The sole for a second thought in the community tried.

One final word to Your Honor; in any event, in any event, even -- even if counsel for the defendants made the improper statements, the more evidence that the defendants whose rights after all are the ones who are -- rights are at issue and those lives are in stake, in any event, any misconduct by the prosecutor is not a tone for compensated by comparable misconduct even by counsel for the defendants.

Chief Justice Earl Warren: I -- I agree with you on that, but there's one other thing that struck me in -- in here.

As I understand from the briefs, the defendant Baldonado -- Baldonado through discovery proceedings acquired the tape --

Mr. A. L. Wirin: That's correct, sir.

Chief Justice Earl Warren: That prosecutor had taken on his confession.

Mr. A. L. Wirin: That's correct Your Honor.

Chief Justice Earl Warren: And that he, the defendant, gave that tape to the broadcasting companies to be broadcasted.

Mr. A. L. Wirin: That's correct Your Honor.

Chief Justice Earl Warren: And that he himself went on the air in order to reassert --

Mr. A. L. Wirin: Just the recording, I think.

Chief Justice Earl Warren: -- recording to reassert his -- his confession of guilt and how he had beaten -- beaten and strangled this unfortunate young woman there.

Do you think that the statement of the District Attorney compares in any respect with -- with that so far as influence on the public is concerned?

Mr. A. L. Wirin: Yes.

The District Attorney as we contend issued a statement to the press calling for -- as to -- as to the nature of that confession, calling from that confession the most horrendous features advantageous to the prosecution and harmful to the defendant.

And as explained in the reply brief which the defendant Moya filed, his Court appointed counsel was of the view that when the District Attorney distorted the confession and painted this defendant in this horrendous role that if the public or the entire confession as it was actually given, it would dilute or mitigated some part of the prejudice which the District Attorney had created in making the confession public.

Later on, I shall keep my promise to Justice Frankfurter to demonstrate the District Attorney made this confession public.

Justice Felix Frankfurter: May I ask you this question about the prison system for either of the State or the -- of this county?

This tape recording that the person that gave or allowed to be made was done while he was in prison, I think.

Mr. A. L. Wirin: Indeed, by the District Attorney.

Justice Felix Frankfurter: Pardon me.

Mr. A. L. Wirin: By the -- by the personal officials.

Justice Felix Frankfurter: I was going to ask you, he would have to get -- he would have to be authorized to do this to receive reporters have a reception and have the TV people in and all that, that would require the consent of the prison authority, wouldn't it?

Mr. A. L. Wirin: Well he was -- he was in county jail.

Justice Felix Frankfurter: What county jail?

Mr. A. L. Wirin: The prison county jail, the District Attorney pretty much has a large authority over --

Justice Felix Frankfurter: Well it's a matter of just -- you know we deal about civil liberties as a matter of civil liberty.

Suppose all of that were denied to a person confined in the county jail, could he claim any right either under the California law or the Fourteenth Amendment or anything to be allowed to receive reporters and talk to them, make a good case for himself --

Mr. A. L. Wirin: The facts have not been made clear by me, let me do so.

What happened was that the District Attorney or the law enforcement officers secured a recording in prison from this defendant.

This was taken ex parte and in camera.

The Attorney --

Justice Felix Frankfurter: But the propriety of that is not an issue here.

Mr. A. L. Wirin: We have not challenged that.

Justice Felix Frankfurter: All right.

Mr. A. L. Wirin: The Attorney for -- the Court appointed Attorney, Mr. Henson for this defendant knew about this recording because it was reported, in the press there was a recording.

So he secured a copy of the recording through discovery proceeding and then he arranged for this recording made by the prison officials to be played over the -- over the radio.

In other words -- in other words, the -- he arranged himself and never saw.

Justice Felix Frankfurter: He arranged meaning the authorities had to give him permission to do that.

Mr. A. L. Wirin: Well no, he secured a Court order and to examine and to secure access to the State recording.

Justice Felix Frankfurter: Yes, but he -- could he have been blocked in doing that?

The original recording was it that, that you now tell us, was at the behest of the State, is that right?

Mr. A. L. Wirin: That's true.

Justice Felix Frankfurter: And that counsel knew that there was going to be such recording?

Mr. A. L. Wirin: Of course not.

He did when he read in the papers that there had been one.

And then he thought --

Justice Felix Frankfurter: And that's not brought an issue here?

Mr. A. L. Wirin: No.

Justice Felix Frankfurter: The more I listen to this case, the stranger it gets.

Chief Justice Earl Warren: Well Mr. Wirin, I notice also in your brief you complain because there was photography permitted in the courtroom.

Mr. A. L. Wirin: Yes sir.

Chief Justice Earl Warren: Now as I read the brief of the State, that was done at the request of the defendant and over the objection of the District Attorney.

Mr. A. L. Wirin: Your Honor --

Chief Justice Earl Warren: Is that true?

Mr. A. L. Wirin: I think the District Attorney consented.

Both sides consented I think that is.

Chief Justice Earl Warren: I read the brief of the Government to say that the -- that the District Attorney objected to it and that the -- and that the defense requested it.

Now is that -- did the defense request this photography in the courtroom?

Mr. A. L. Wirin: First as to the role of the District Attorney, my recollection know what took place was that the District Attorney said, “I object to it unless the defendant consents.”

Alright, now the defendant did consent, I'm talking now about the defendant Duncan.

So there's no question that was asked to defendant Duncan.

She is in no position to object to the photography or the news reel, TV recordings which were made of that trial.

But Your Honor, immediately after Mrs. Duncan was sentenced, Baldonado came on for trial for his life as did Moya thereafter.

Neither they nor their counsel consented to these photographs or these new -- or these TV reportings and yet they were the victims of it.

So far as the --

Chief Justice Earl Warren: Were there any objections to it?

Mr. A. L. Wirin: I can't be sure, Mr. Henson perhaps will answer Your Honors question more directly.

Chief Justice Earl Warren: Very well.

Mr. Warner.

Argument of Arthur Warner

Mr. Arthur Warner: Yes sir.

I'm sorry sir, Mr. Chief Justice and Members of the Court.

Chief Justice Earl Warren: You represent which one?

Mr. Arthur Warner: I represent Mrs. Duncan with respect to -- and my discussion will be limited to (Voice Overlap)

Chief Justice Earl Warren: I didn't see your name on her -- on her brief.

Mr. Arthur Warner: I believe it is, sir.

Chief Justice Earl Warren: Oh is it?

Mr. Arthur Warner: Yes Your Honor.

Both the (Inaudible) brief and reply brief.

Second --

Chief Justice Earl Warren: I was looking at the brief, the brief that was filed March 18, 1961.

I see Mr. Wirin, Mr. Dutch, Mr. (Inaudible), and Mr. Rosa.

Justice William J. Brennan: That's another case.

Mr. Arthur Warner: That's another case, I believe Your Honor.

Chief Justice Earl Warren: Oh Baldonado.

I beg your pardon, sir.

I beg your pardon.

Mr. Arthur Warner: I'm in second position on the other.

Chief Justice Earl Warren: Yes.

Yes, excuse me.

Mr. Arthur Warner: Now -- because of the dissipation of the time, I'm going to be relatively brief and I'm going to devote the remarks to following proposition, the petitioner's right to a fair trial was denied by the manner in which the constituency of the jury was established.

I'm going to start with Your Honors' permission by reading from pages 6 and 7 of the reply opposing brief, part of the examination of voir dire.

Justice Hugo L. Black: What brief is that?

Mr. Arthur Warner: The petitioner's closing brief in Duncan, 187.

I -- ordinarily I wouldn't read it to the Court that's in there but I think it sets the stage.

It establishes the moot of the trial court's mental process as an overruling the challenges for cause which later will be referred to in this short discussion.

Now during this examination, this lady, juror Dodge, stated that she believed the defendant to be guilty and that she would require evidence to remove that opinion.

Then the examination concluded, the end of it was as follows.

The Court, you don't mean to say that you would require the defendant to prove anything, do you?

The defendant is not required to prove anything under the law.

This respective juror - I realized that Judge Blackstat, yes.

The Court - But you said, I go, that's the Court language, that you would need some testimony from the defendant.

Mr. Gustafson, the District Attorney - Your Honor, the question she answered was that she would need some evidence to remove her opinion.

The juror - Opinion.

The Court - But she indicated at one time that she would require some evidence from the defendant to remove that opinion, didn't you?

The prospective juror - That's right.

I said that.

The Court - You did that, didn't you?

The prospective juror - I said that.

The Court - You still feel that way.

The prospective juror - Yes sir.

Now it appears --

Justice William O. Douglas: Well that (Voice Overlap) that didn't serve.

Mr. Arthur Warner: She didn't sit.

Mr. Arthur Warner: That's right.

No but that's not -- that isn't the --

Justice William O. Douglas: What's the relevancy of this thing?

Mr. Arthur Warner: Because the reason, the mental processes of the trial court in excusing this juror makes one skeptical as to how this trial court applied the law with respect to the rest of the juror that's in this case and this is what I'm going to point out to the Court with its permission.

Immediately upon the termination of this voir dire examination, the Court stated as follows.

This is the last challenge.

If he had to use a challenge on this juror, it would be his last challenge.

I think I will allow this challenge.

Chief Justice Earl Warren: Was that an act of harshness or an act -- act of liberality towards the defendant?

Mr. Arthur Warner: I don't know.

I have my opinion.

I believe -- well I better not state what I believe.

Chief Justice Earl Warren: But he did.

He did --

Mr. Arthur Warner: Excu --

Chief Justice Earl Warren: Excuse her for a cause.

Mr. Arthur Warner: Yes.

But the reason for it is not because this juror was obviously disqualified from serving constitutionally because she was unable to accept a hypothesis or any hypothesis that included a presumption of innocence for the defendant and she was unable to -- to disabuse her mind of the fact that the defendant was required to produce evidence to establish her innocence.

Now with her hypothesis, it didn't or doesn't require a metal giant to realize that this juror, without any argument, was constitutionally disqualified from serving on any case let alone a capital case.

But the --

Justice Hugo L. Black: How does that prove that any other juror was?

Mr. Arthur Warner: I beg your pardon, sir.

Justice Hugo L. Black: Well your problem is, isn't it, on this point to show that jurors were kept on like that, not to some jurors who let of.

Mr. Arthur Warner: Yes.

Justice Hugo L. Black: Whatever the reason --

Mr. Arthur Warner: I'm going to establish that but in order to establish here Your Honor, I must indicate the mental processes of the court because I --

Justice Hugo L. Black: We did -- I suppose what we need to decide if you use mental processes, the jurors were left on there like that --

Mr. Arthur Warner: Alright.

Justice Hugo L. Black: -- not what the Court thought about it.

Mr. Arthur Warner: Alright.

Well, perhaps I --

Justice Felix Frankfurter: You have -- your point would have some validity with me if you could turn to other portions of the record in which the judge made a similar disclosure or even a disclosure of an ambiguity of his mind as to what is required of jurors?

Mr. Arthur Warner: Not objectively but I can give you the hypothesis with separate --

Justice Felix Frankfurter: I don't -- I don't care about hypothesis because I -- really, I have to act on what's in this record and such reasoning –

Mr. Arthur Warner: That's right –

Justice Felix Frankfurter: -- as legitimately flows there from.

Mr. Arthur Warner: That's what I intend to do.

Justice Felix Frankfurter: Now are there any things in which legitimately there flows the judge allowed jurors to remain or may defendant needlessly to exercise his preemptory challenges in keeping people off.

It's the judge who should have thrown off.

Mr. Arthur Warner: I -- that's exactly what I have on my finger on right now.

Justice Felix Frankfurter: Alright.

Mr. Arthur Warner: -- literally, on this piece of paper.

I am now going to concern myself with four jurors, named, Porter, Barice, Sabadra and Flynn.

Now (Inaudible) the testimony on voir dire, this is what happened.

With respect to juror Porter, as a result of discussions with specific people, 20, 15, or 20 people, and from what he read, he believed that the petitioner, that Mrs. Duncan was guilty, that the opinion was such, that the evidence, that evidence would be required to overcome it.

And that if his wife or a member of his family were on trial for the same offense, he wouldn't trust the fate of his wife or member of the family with jurors or to the judgment of jurors who were in the same frame of mind if he -- that he was.

Now undoubtedly, that juror was uncon -- or constitutionally disqualified from sitting, both under the so-called rehabilitation statute to which reference is made in the -- both briefs, and under the federal criteria established by decisions of this Court going back many years, I don't have to press that point at all.

Now with juror Sabadra, the second of the four jurors, practically the same hypothesis existed with the additional fact that outside of the courtroom she had expressed her opinion of guilt and that becomes material and important because of the criteria this Court and these cases to which I just referred well at the rehabilitation statute of California.

Juror Flynn had indicated his belief of the defendant's guilt from discussions with persons from what he had read.

He believed the defendant to be guilty.

He had discussed the case with many people, possibly some of them might have been witnesses or potential witnesses.

The same hypothesis exists with juror Barice.

Now these jurors had entered the box with opinions as to the defendant's guilt.

On initial examination, they maintained those opinions.

They stated there -- a close reading or a close analysis of the voir dire examination would indicate the solidity or practical -- practically a solidity of feeling.

It was -- it was solified -- solidified in their minds.

Now the District Attorney apparently under the guise of rehabilitation under Section 1076 of the California Penal Code posed some questions to these four jurors.

The questions were leading questions and not only were they leading questions but they were framed in such manner that if the answers were not given as suggested the juror would hold themselves out to be an irresponsible and unmoral citizen.

And I have set forth on pages 32 and 33 and 34 and 35 of the opening brief, the type of question that the District Attorney had propounded to allude to obtain a declaration from these witnesses under the Section 1076 that they could sit impartially and decide the case pursuant to the instructions of the Court.

Chief Justice Earl Warren: Were those questions -- were those questions objected to as misconduct?

Mr. Arthur Warner: No.

Chief Justice Earl Warren: Why -- why if they were so designed, would they not be objected to?

Mr. Arthur Warner: Well I do -- I fail to see how any particular question set forth on these pages by itself would amount to misconduct merely asking the juror by -- they may -- there may have been objection of us being leading --

Chief Justice Earl Warren: No.

you were talking about the type of questions and the inference that would flow from them and the unfair position that put the juror -- prospective juror and then making his answer.

Now if that is true, why wouldn't they be objected to on the trial?

Mr. Arthur Warner: Because the District Attorney in this case was a very competent and clever man.

Chief Justice Earl Warren: Were not they the attorneys for the other side?

Mr. Arthur Warner: But the attorneys on the other side had a different standard of conduct.

I'll explain it that way.

Chief Justice Earl Warren: Well, if that's your answer, it's different.

Justice Felix Frankfurter: Mr. Warner may I ask you this?

When the voir dire examination was completed, there were objections to the retention of these prospective jurors as jurors, is that right?

Mr. Arthur Warner: That's right.

Justice Felix Frankfurter: Could you refer me to the record in which the basis of the objection is stated or was it merely of an unexplained objection?

Mr. Arthur Warner: The record is replete.

Chief Justice Earl Warren: Now are you referring to the four who were -- who were taken off?

Justice Felix Frankfurter: You are talking about four –

Mr. Arthur Warner: Yes, these four.

I believe the brief -- the brief.(Voice Overlap)

Justice Charles E. Whittaker: -- maybe stricken by the defendant.

Did any of these four jurors sit in the trial of this case?

Mr. Arthur Warner: They did not, Your Honor.

Justice Felix Frankfurter: Alright.

Mr. Arthur Warner: Now --

Justice Felix Frankfurter: Are these -- are you -- I'm sorry, I misunderstood, it's all my fault.

Are you getting these instances as -- as validation of your statement to me that you're going to show me other instances disclosing the state of mind of the Court.

Mr. Arthur Warner: It well --

Justice Felix Frankfurter: They don't do that, do they?

Mr. Arthur Warner: Yes because the Court had overruled petitioner's objection for Court.

Justice Felix Frankfurter: The first one that you read, where he excused the Court somebody who said that the defendant would have to, in effect, at least (Inaudible) prove his innocence, none of these four illustrate that point, do they?

Mr. Arthur Warner: Well the judge made no comment about these, but the -- the --

Justice Felix Frankfurter: You maybe right, if he made no comment on that, each these four up to the other the first one seems so bad --

Mr. Arthur Warner: Well the -- the -- the trial court made a finding as to these four jurors.

Justice Felix Frankfurter: What is the finding?

Mr. Arthur Warner: That they were qualified to sit.

Now --

Chief Justice Earl Warren: And you used the peremptory on them?

Mr. Arthur Warner: Yes.

The defendant, the petitioner on this case, the defendant was required to utilize four of her preemptory challenges to excuse these jurors from the box who should have undeniably been excused for cause.

Justice Felix Frankfurter: It brings me to, for me, the crucial question in the case, was the conduct of the trial judge in not excusing for cause, jurors as to whom the preemptory challenges had to be utilized such that he was -- he had exhausted or she had exhausted the preemptory or preemptory of preemptive challenges and therefore which prejudiced in that way

Mr. Arthur Warner: Yes.

That's what we -- they seek to establish in our briefs that because she was wrongfully deprived of four, at least, four preemptory challenges with respect to this group of four, she was unable to deal with three other jurors who were permitted to remain in the jury box.

Justice Felix Frankfurter: Does the record if I go to the record which is -- which I have not done, if I go to the record as I shall, will I find that the defendants lawyer then said, “We have no more preemptive challenges but I would like to have them, if I had them to get rid of A, B, and C, but I can't because Your Honor misruled in this rule in not allowing us and compelling us to use preemptive challenges when you should have been discharged them for cause.

Mr. Arthur Warner: In those words --

Justice Felix Frankfurter: Does the record – do I find that in the record?

Mr. Arthur Warner: The record -- the record and -- will not contain those words but will contain a situation from which that is definitely spelled out.

Justice Felix Frankfurter: Alright.

Mr. Arthur Warner: Now --

Justice Felix Frankfurter: (Voice Overlap) as my word, I can have it in the lawyer's word.

Chief Justice Earl Warren: Alright.

May I ask you this, Mr. Warner?

Did you raise that before the Supreme Court of California?

Mr. Arthur Warner: Yes we did, sir.

Chief Justice Earl Warren: What did the Supreme Court hold?

Mr. Arthur Warner: Well the Supreme Court made a finding as to the four jurors just the four jurors said nothing about these three jurors who sat and the Supreme Court of California using a favored expression that some state courts held that the trial court did not abuse its discretion in overruling the objections for cause to the four jurors that we have just discussed.

Chief Justice Earl Warren: But that's a finding, isn't it?

Mr. Arthur Warner: Well it is a finding that is not borne out by the record and it is a finding in defiance and in derogation of these holdings of the California Supreme Court and appellate court decisions over a period of 80 years.

Because for a period of 80 years, the California courts have held that where a prospective juror has an opinion and that opinion is based partly or entirely upon sources other than general circulating reading material or common rumor, he cannot be rehabilitated, he's a disqualified juror, he's not a juror that constitutionally sit.

And the Supreme Court has gone further and stated that where it is unclear whether this juror had predicated his opinion partly upon sources other than general rumor or common circulating reading material, when that hypothesis is not clear, then he cannot be qualified because this Section 1076 which permits a so-called rehabilitation is in derogation of the common law under which, of course, no juror who has expressed an opinion at any time can be qualified or rehabilitated.

Chief Justice Earl Warren: You have to go further so far as I'm concerned.

Not merely that for all I know accepting your statement of it that the Supreme Court of California disregarded its own precedents or reference to the rehabilitation of prospective jurors.

Here you have to go further and you have to make out a case that the defendant had to exercise territory challenges needlessly in the acceptance in the case of jurors who patently were disqualified, incapable of giving a fair trial so that if they could be -- if the defendant had allowed those jurors to sit, he would have had loaded dice in the jury box because the fact that this was outside or in defiance of, if you please, of local state court rule which about, which I know nothing is enough to make it violative of due process, is it?

Mr. Arthur Warner: Now merely the violation, no.

The -- inconsistent rulings by state court, it doesn't give rise to denial of due process.

They can reverse their position and then --

Justice Felix Frankfurter: You have to -- you have to show that according to California law, he was allowed -- she was allowed how many preemptors?

Mr. Arthur Warner: Supposedly 20.

Justice Felix Frankfurter: 20, all right.

Mr. Arthur Warner: Actually she -- by -- by rule of the court, she was granted 16, she was denied the equal protection of the law.

Justice Felix Frankfurter: But suppose you say she's allowed 20 but she wasn't allowed to exercise them at the risk of having on the jury patently biased jurors.

You've got to establish that.

Mr. Arthur Warner: We have in our brief, Your Honor.

Chief Justice Earl Warren: Now may I ask you, Mr. Warner.

When -- when was this issue first raised?

Mr. Arthur Warner: The -- which one Your Honor?

Chief Justice Earl Warren: This one you're talking about -- about now.

Mr. Arthur Warner: In California in the appellate court, the first appellate court that was hit with this brief in this argument and that was the Supreme Court.

It was a direct appeal from the --

Chief Justice Earl Warren: You raised it in your opening brief in the Supreme Court?

Mr. Arthur Warner: No, partially in the opening brief and partially on the reply brief.

Chief Justice Earl Warren: How partially did you raise it in the -- in the opening brief?

Mr. Arthur Warner: In this manner, we emphasized and delineated the facts concerning the four jurors that they were constitutionally unfit, that preemptory challenges have to be utilized which shouldn't have been utilized that the petitioner was deprived the four -- four such challenges needlessly and therefore, she was prejudiced.

She -- then in the reply brief, after the Attorney General had denied that the denial of these preemptory challenges had constituted a prejudice in the reply brief, we continued by showing the -- the circumstances of the proceeding of these three jurors, their mental processes, their disqualification, and their -- the petitioner's inability to deal with these jurors because of the wrongful deprivation of four preemptory challenges.

Chief Justice Earl Warren: Yes.

Alright now let me ask you this, Mr. Warner?

Did you raise -- did you raise that issue on the motion for a new trial in this very Court?

Mr. Arthur Warner: Yes sir.

Chief Justice Earl Warren: You did?

Mr. Arthur Warner: I believe we did.

I -- I --

Chief Justice Earl Warren: I -- reading the briefs I understood you did not.

Mr. Arthur Warner: Well --

Chief Justice Earl Warren: Now I don't want to argue with you because you know the record and I don't.

Mr. Arthur Warner: I just recall.

I just recalled.

Chief Justice Earl Warren: You want to know -- you want to know whether you raised it in the -- in the trial court or not on your motion for a new trial.

Mr. Arthur Warner: On a motion for a new trial generally, that was set forth the denial of due process under the Fourteenth Amendment and the particulars of the argument as I purported to give them here and perhaps in a feeble manner, were not set forth in detail, but the -- the result or the conclusion that I arrived at here was set forth in the motion for a new trial.

Chief Justice Earl Warren: Alright.

Now let -- now let me ask you this as to anyone of the 12 jurors who sat in her case, did you object during the trial?

Mr. Arthur Warner: No.

Chief Justice Earl Warren: You did not object to the sitting –

Mr. Arthur Warner: Oh -- to any of the 12 sitting, no.

There was no objection.

If Your Honor means by a challenge for cause --

Chief Justice Earl Warren: I mean just what I say.

I mean did you object -- did you object to the sitting of any single juror who sat in the case of Mrs. Duncan.

Mr. Arthur Warner: By overt acts, yes, not by a specific challenge for cost.

Chief Justice Earl Warren: What do you mean by overt act?

Mr. Arthur Warner: Because immediately upon the acceptance of the jury by the District Attorney, counsel for the petitioner or Mrs. Duncan moved for a change of venue.

He refused to okay the jury in plain language.

He didn't accept it.

Chief Justice Earl Warren: Well now let's -- let's find that in the record.

So we just find which you did raise.

I'm -- I think I --

Mr. Arthur Warner: Alright, on page 673, Your Honor.

Chief Justice Earl Warren: 673, alright.

Mr. Arthur Warner: Beginning -- perhaps, either 10 lines in the bottom.

Mr. Gustafson passed for cause and continued it down.

Chief Justice Earl Warren: No,wait a minute, wait a minute, 673?

Mr. Arthur Warner: 72 -- 672 Your Honor.

Chief Justice Earl Warren: Oh 672.

Mr. Arthur Warner: I didn't mean to say 673.

Chief Justice Earl Warren: Alright, passed for cause.

The Court - Alright the preemptory is with the people, Mr. Gustafson, I accept that Your Honor.

Mr. Solomon, Your Honor, before the jurist one may counsel for its events.

Yes and the following proceedings were held.

Now tell me in there what -- what was said to -- to challenge any single juror who sat in that case.

Mr. Arthur Warner: Well not any single but practically all of them and I'm going to quote the following language.

At this time Your Honor, I want to renew my motion for removal, change of venue to another county upon the grounds that as it is apparent from the voir dire examination of the jurors who have been examined, the perspective jurors who have been examined for the last one and a half days that my client cannot receive a fair and impartial trial in this county.

Then he goes on to say, “I think it is apparent from the voir dire examination that the vast majority of perspective jurors who have been called on this jury box and have been examined on voir dire have formed an opinion adverse to Elizabeth Duncan.

Now that includes everybody that was examined.

That includes the people sitting in the box and the people who were not sitting on the box Your Honor and this overt act of Mr. Sullivan, of defense counsel, in refusing to accept the jury and made immediately moving for a change of venue is more significant than words that may come from his mouth that we challenge for cause or something equivalent.

Chief Justice Earl Warren: Now you merely state that in such general terms, but the court, after you had stated that in those very general terms and not attacking any particular juror said this.

Do you want to argue the motion for a change of venue?

Mr. Sullivan, that's counsel for the defendant, I take it, I'm -- I am just arguing it here now.

The Court - Do you want to argue it further in the absence of the jury?

Mr. Sullivan - No.

I'm going to submit it to Your Honor.

I don't want to go into any extensive argument.

You've heard the voir dire examination of all these jurors.

The only thing I could say Your Honor is that I haven't read yesterday's transcript to the voir dire examination.

Perhaps if I have some time to go through it, I might pick out some additional things but I think that perhaps Your Honor recalls the tender of the absence that we receive, then both of you say well it's -- it's submitted.

Mr. Arthur Warner: Yeah.

Well, the -- of course upon the -- the completion of the jury and upon the exhaustion of 20 preemptory challenges, defense counsel was no position in the presence of the jury to -- to issue a challenge for cause.

He would have prejudiced his client.

Chief Justice Earl Warren: But you were outside of the presence of the jury when you were arguing this matter.

Why couldn't you say to the -- why couldn't you say to the Court then?

Now Your Honor, we have been deprived to four preemptory challenges and we think that that's unfair.

We think it's a violation of the Constitution and we think we're entitled four more preemptory challenges.

Why couldn't you say that to the judge?

Mr. Arthur Warner: Well the -- the --

Chief Justice Earl Warren: You said you didn't want to say it.

Mr. Arthur Warner: Well -- no, no, Your Honor, may I point this out?

That -- that the counsel, all through this record has proceeded on the basis that he was using preemptory challenges when he did -- he shouldn't have.

Justice William J. Brennan: Well then he say so, it's 673 before the judge, in the middle of the page.

Therefore, he left us with some six.

For preemptory challenges, he said the usual 20 because in effect, we had to use our preemptories on jurors whom we felt might believe the voir dire examination discloses a bias and prejudice against in this respect and then that's your point.

He raised it there, didn't he?

Mr. Arthur Warner: Yes, I believe he did.

Thank you Your Honor.

Justice William J. Brennan: I believe he did.

Mr. Arthur Warner: Yes he did.

Justice William J. Brennan: All right.

Thank you.

Chief Justice Earl Warren: Well I wish you could (Inaudible)

Justice Tom C. Clark: I -- I think also right above that he raised the point you're talking about right now, the last three sentences to pull that.

Right away you stop.

Chief Justice Earl Warren: Now on the motion for a new trial, did you, where did you raise it there?

Mr. Arthur Warner: I will have to leave that --

Chief Justice Earl Warren: Well it's alright.

You go ahead.

You go ahead.

Justice William O. Douglas: Where did you raise it as a federal question?

Where did you --

Mr. Arthur Warner: First time Your Honor.

That would be in the trial court.

Justice William O. Douglas: I say where – I know where in the trial court?

Mr. Arthur Warner: Well in a motion for a new trial.

Justice William O. Douglas: Did you raise -- I see you raise this point that you only had six preemptory challenges, you said that the usual 20 because you had to use your preemptories on people who use that were disqualified for cause but where did you make that into a federal question?

Mr. Arthur Warner: Page -- co-counsel just directed my attention to page 80 of the record.

Justice William O. Douglas: Page 80?

Mr. Arthur Warner: Yes, in the Duncan case Number 187.

Justice Hugo L. Black: Page what number?

Mr. Arthur Warner: 8 -- 8 -- 80 Your Honor.

And the -- under paragraph 15, the second paragraph under number --

Chief Justice Earl Warren: What is it -- what is this motion that you make here?

What is this?

Mr. Arthur Warner: I believe it is a motion for a new trial.

Chief Justice Earl Warren: That's a motion for a new trial.

Mr. Arthur Warner: Yes sir.

Justice William O. Douglas: Well you just -- that motion just speaks generally that she's been denied due process.

Mr. Arthur Warner: Yes.

I -- I don't suspect that trial practice in the Court when things are done hurriedly that you specifically set forth niceties of argument.

The general procedure is to preserve the record by a general objection under the applicable constitutional provision and that's been done here.

Justice William O. Douglas: Yes but this is broad enough to -- to include every -- everything.

I don't know if we've gone so far as to leave it up to under broad catchall to without any specification as to the manner in which --

Mr. Arthur Warner: Well, out of context yes but in context, in connection with the -- with the arrest -- with the allegation and the motion and for defense arguments, it's apparent that this part of the Fourteenth Amendment contemplated the matter of the jurors.

Chief Justice Earl Warren: Why wouldn't it apply just as much for instance to your -- your item eight where you say the -- the Court erred in refusing each and every instruction offered by the defendant and refused by the Court.

Do you intend to apply to that also that he misdirected the jury on matters of law?

Does your -- your --

Mr. Arthur Warner: Well, I don't think -- I don't think we purport to make that a federal question his refusal to instruct.

Chief Justice Earl Warren: How do we know -- how do we know what you -- what you intended to make federal question and how would the Court know what you intended to make a federal question of if you weren't more specific than that?

Mr. Arthur Warner: Well, as I stated to Mr. Justice Douglas, out of context I had no answer but in context, the proceedings that -- the matters that preceded and the matters that succeeded this, it's apparent that the only matter involved as far as due process was concerned at that time was a matter of a selection of the jurors.

I -- I think it's well established practice and Your Honor knows from the California practice that you usually state that set forth statutory grounds and under those statutory grounds you can later expand and include the things in a more definite manner.

Now I -- I think that's a proof procedure and I think that in taking this in (Inaudible) or proposing it or considering in context, there's no other interpretation as susceptible except that everybody knew as a practical -- practical matter that we were talking about the manner in which the jurors were selected.

I believe that unless there are any pertinent questions, I believe I overstepped --

Justice William O. Douglas: Well you're also talking about the District Attorney's statements on the press I suppose too?

Mr. Arthur Warner: No.

I have nothing to do with that question.

Justice William O. Douglas: Well I say this objection would run to that too, wouldn't it?

Mr. Arthur Warner: Yes.

It probably would.

It probably would.

So unless this Court wants to make further inquiry of me, I would -- a deference to the co-counsel (Voice Overlap) an issue to retire.

Justice John M. Harlan: I would like to ask you a question, if may.

The Supreme Court whatever you did or didn't do below, the Supreme Court of California dealt with your claim that you're making, is it not?

Mr. Arthur Warner: Not entirely.

It omitted, it didn't make --

Justice John M. Harlan: Or it dealt with your claim that by reason of the improper denial of your challenges for cause as you claim it, on these four jurors, you had been foreclosed from exercising preemptory challenges on the last three --

Mr. Arthur Warner: That's right.

Justice John M. Harlan: -- which you otherwise would had?

That's the essence of your claim, is it not?

Mr. Arthur Warner: That's right.

Justice John M. Harlan: As I read the Supreme Court's opinion, it dealt with that claim.

Mr. Arthur Warner: Yes sir.

Justice John M. Harlan: It doesn't say whether it dealt with it as a matter of state law or whether it dealt with it as a matter of federal claim on your part, what did you contend in your brief on appeal?

Mr. Arthur Warner: I believe we contended generally although not as much as --

Justice John M. Harlan: Have you got your brief here?

Mr. Arthur Warner: Yes.

Justice John M. Harlan: Would you be willing to leave them with the clerk?

Mr. Arthur Warner: I've just been instructed or advised that they have been filed.

Justice John M. Harlan: Is this Court?

Mr. Arthur Warner: Yes sir with the Court reporter.

Justice John M. Harlan: Thank you.

Mr. Arthur Warner: Thank you.

Chief Justice Earl Warren: Very well.

Mr. Henson.

Argument of Burt M. Henson

Mr. Burt M. Henson: With my extent of (Inaudible)

Chief Justice Earl Warren: Yes you may.

You may use it in that -- in that manner.

Argument of William E. James

Mr. William E. James: Mr. Chief Justice, Associate Justices --

Chief Justice Earl Warren: You may continue Mr. James.

Mr. William E. James: Thank you Your Honor.

I will address myself first to the first question to which this matter was limited upon the order granting certiorari and that was whether the petitioners and that's all three of the petitioners' rights to a fair trial, guaranteed by the Due Process Clause of the Fourteenth Amendment was violated by the conduct of the District Attorney, the resulting publicity, and the other circumstances attending to this trial.

It is our position that the conduct of the District Attorney actually was never an issue in the trial below.

That the issue in the trial below on the motions for change of venue related to the newspaper publicity and the question that the Court was faced with and which our Supreme Court was faced was were these defense denied that fair trial, the right to an impartial jury as a result of newspaper publicity.

And it was presented to the trial courts, and it was presented to the Supreme Court on the basis of affidavits and newspaper exhibits that were presented to the trial court on the various motions for change of venue.

And it --

Justice Felix Frankfurter: The opening -- the opening statement of the Supreme Court, your Supreme Court's opinion on page 143 of the Duncan record, defendant places particular emphasis on newspaper report of statements made by the District Attorney to investigate.

Mr. William E. James: That's right.

Newspaper reports of statements made by the District Attorney.

Justice Felix Frankfurter: Made by the District Attorney.

Mr. William E. James: And the other, yes Your Honor.

Justice Felix Frankfurter: Doesn't that mean that the relation of the District Attorney to those statements is in the case?

Mr. William E. James: Yes.

The newspaper publicity was an important thing.

The District Attorn --

Justice Felix Frankfurter: The newspaper reports made by the District Attorney, not newspaper reports.

Mr. William E. James: I think the opinion of our Supreme Court referred to the District Attorney was reported there as saying or it is -- it was stated in the press that the District Attorney said this and this.

The Supreme Court for the State of California was very careful --

Justice Felix Frankfurter: Does your Supreme Court -- does your Supreme Court -- I haven't read this opinion since we granted certiorari before you granted the petition, it was nearly a year ago.

Does your Supreme Court completely -- does your Supreme Court find on the record that the statements which are attributed by the press or part thereof to District Attorney were in fact not made by him?

Mr. William E. James: No.

It -- it merely said other statements which the District Attorney was reported to -- was reported to have made where that he had evidence of this was not the first time defendants sought to hire someone to (Inaudible) and he goes on and release certain --

Justice Felix Frankfurter: I just -- I just want to call the reach of your suggestion that this issue was not in the case.

Mr. William E. James: It was in the case insofar as the newspaper publicity might have deprived these defendants for the theory --

Justice Felix Frankfurter: And not for the (Inaudible) of the District Attorney to that publicity.

Mr. William E. James: Only insofar as the District Attorney admitted making one statement, he -- before the Supreme Court denied most of those statements.

Justice Felix Frankfurter: I'm not implying it if he wants to be solidity of his response to the (Inaudible), but his relation to the publicity certainly was considered by your Supreme Court?

Mr. William E. James: That's right.

Yes Your Honor, it certainly was.

But whether the District Attorney made it and of course the Supreme Court of California wasn't concerned with any disciplinary proceedings whether the District Attorney made those statements or didn't.

He denied most of those statements and it was acknowledged by the Supreme Court.

He did admit some of those statements and I'm going to go through the various exhibits that were presented to the trial court because I think it's important the entire exhibits, I believe are before this Court.

They should be before this Court.

Justice Felix Frankfurter: Couldn't it be more helpful at least to one member of the Court and by doing just that.

Mr. William E. James: Well I hope I will be in the next few minutes Your Honor because I think it is important.

The charge before this Court is that there was content of the District Attorney which deprived these defendants of a right to which they were entitled and that was a fair and impartial trial before a fair and impartial jury in Ventura County.

And this was the issue that head be to decide it and the court, the trial court in California in Ventura County had this before it.

And maybe in response to some of the questions presented by the Court to Mr. Wirin before I go into these exhibits, I might clarify for the Court's purposes in considering this argument just when these matters were presented and by which of these petitioners.

Now the first motion for a change of venue was made by defendant Moya on January the 13th, 1959.

It was joined in at that time by defendant Baldonado.

At that time, certain newspaper exhibits to which I'll make reference, all of those exhibits were from December 15, through I believe it was either the second or the seventh of January.

It was prior to the 13th of January.

And then --

Justice Felix Frankfurter: Had there been an indictment filed?

Mr. William E. James: The indictment was filed on December 26, 1958 against charging all three of these defendants with the murder of Olga Duncan.

This matter was argued on behalf of these two defendants on January the 13th, 1959 and denied by the trial judge on January 15th.

At that time, the trial judge allowed or permitted the defendants to renew their motion, he stated he was permitting them to renew their motion prior to their trials.

The trial at that time of these defendants and it's turned out of Elizabeth Duncan was scheduled for February the 16th.

Now on February the 16th, Duncan, the petitioner Duncan made her first motion for a change of venue.

And in that motion for a change of venue, she incorporated by reference the newspaper exhibits that had been presented to the Court on January the 13th.

And she likewise appended to her application an exhibit to which I'll make reference which contained certain news releases that were in the Ventura Star Free Press and the Oxnard Press Courier from the period of January the 12th through approximately the period February the 2nd, 1959.

And these were the exhibits before the trial court.

These were the basis upon which the trial court ruled on the motion for change of venue.

Now thereafter, after the jury was selected and it only took about four days to select the jury, they only interrogated 83 prospective jurors in the Duncan case which wasn't much for a capital case, petitioner Duncan, through her counsel, made another change motion for a change of venue.

There was nothing additional presented and the argument was merely proforma and it's recorded in the transcript before this Court and we have made reference to it in our briefs.

Now the --

Justice Potter Stewart: Mr. James --

Mr. William E. James: Yes.

Justice Potter Stewart: In response to one of these motions, Judge Blackstock made quite a -- unusual response about indicating his impression that the motion was reflecting upon the honor and integrity of the citizens of the county where his judge -- where can I find that in the record, I've read it, I can't find it now?

Mr. William E. James: It is contained in the transcript of the Duncan case as I recall, rather it's contained in the transcript of all three cases if I am not recall on -- the exact sequence was I, it is a said commentary and integrity, decency and humanity and the people of Ventura County to say that the defendants whose very lives maybe at stake cannot receive the fair and impartial trial in this County.

Now we have put in our brief and it occurred, this appeared in the press I think on the date of the denial either the 15th of January, 1959 or the 16th of January.

Justice Potter Stewart: This was a superior court judge county --

Mr. William E. James: This was the superior court judge likewise --

Justice Potter Stewart: (Voice Overlap) officials are appointed these judges --

Mr. William E. James: He was initially appointed in 1946 by the then governor and our Chief Justice and he was reelected in 1954, reelected in 1948 and then 1954 as I recall.

Justice Potter Stewart: So it is an elective officer for six terms just six years.

Mr. William E. James: It's a six-year term for our superior court judges.

Now the counsel tells me that the statement that to which you made reference, Mr. Justice Stewart is in the record at page transcript 137 of the Moya transcript.

Justice Potter Stewart: Moya, where is it?

Mr. William E. James: After that, it -- it --

Justice Felix Frankfurter: May I -- may I -- you would or is it out of place in your orderly scheme of things, you would help me at least if you could refer to precisely the newspaper exhibit on the basis on which Duncan for the first time claimed newspaper inflammatory articles as the basis for seeking of change of venue.

Mr. William E. James: Yes, I will.

Your Honor, if I may just make a brief reply to Justice Stewart's question, following that article which is appearing on page 137 of the Moya transcript, the judge wrote a statement which was published in both the Ventura County, Star Free Press and the Oxnard Press Courier which he said I want to break any false impression which might have been created by reason of a statement made by me in an order denying a motion for a change of venue in the case of People versus Elizabeth Ann Duncan, Luis Estrada Moya and Augustine Baldonado.

Then he says the statement I'm referring to reads as follows and it is as I have read to you.

The judge then continues I his statement which was published in these two newspapers.

By making this statement, I intended in no way whatsoever to suggest that Burt Henson, Counsel for defendant Luis Moya and John Danch, Counsel for defendant Augustine Baldonado were attacking the integrity, decency, or humanity of the people of Ventura County.

Justice William J. Brennan: This is also on the record, Mr. James?

Mr. William E. James: As I recall they did not make this exhibit of January the 17th an exhibit in the --

Justice William J. Brennan: Do I correctly read that page 136 of the Moya record --

Mr. William E. James: 137 of the Moya record.

Justice William J. Brennan: Is this an opinion?

It looks as though it's --

Mr. William E. James: It was just a ruling, I believe of the Court.

Justice William J. Brennan: I mean it's not written out.

I know this is an order and so forth and then goes on with quoted paragraphs down to the end till the top of 138 ending up done this 15th day of January Charles and Blacksock, judges of superior court --

Mr. William E. James: I think it was an order made on the ruling on the --

Justice William J. Brennan: -- an order which it could be stated.

Mr. William E. James: -- motion for change of venue.

Justice Felix Frankfurter: Now this -- this is valid he's been affected from page 138 in substance he said the same thing.

Mr. William E. James: Yes he said in substance but he made a statement which was published in the papers so there was no mistake.

He was merely telling counsel that he felt at that time the people of Ventura County were capable of having a jury that could give these defendants a fair and impartial trial and he was willing to let the matter go to a selection of the jury which wasn't the fixed place for at least a month and then as far as the Duncan case for a month and as far as Baldonado and Moya for a number of months.

So the judge retracted the statement but he did.

Now as I was stating the petitioner Baldonado never renewed his motion for a change of venue which was made along with Moya on January 13th.

He went to trial solely on issue of penalty on April the 6th.

Moya did renew the application for change of venue prior to the trial which is scheduled on April 20th.

That motion was made on April the 16th, 1959 and at that time, additional newspaper exhibits were presented to the trial judge to serve as the basis for the ruling of that Court on the motion for a change of venue.

And I think that we will perhaps serve everyone's purpose if we refer directly to those exhibits which I understand are in the possession of the Court.

They were before the trial court.

They were the sole basis of this claim made by these petitioners in the trial court both in at the trial level and on appeal, automatic appeal to the State Supreme Court.

Now perhaps it would serve some purpose to point out some preliminary matters since this point -- this first point is directed to what they say the conduct of a District Attorney the resulting publicity and in other circumstances attending to crime.

The case starts as far as the newspaper publicity is concerned on about November the 17th, 1958 in Santa Barbara County when there is a missing person's report.

Olga Duncan who was the wife of Frank Duncan, the son of the petitioner, Elizabeth Duncan, she was the daughter-in-law of Elizabeth Duncan.

She disappeared under mysterious circumstances.

And the news media in Santa Barbara County and outside the Santa Barbara County was disseminating information concerned and it was a matter of great interest, of great news value.

And so there was a series of reports both in the Santa Barbara paper, in the Ventura, the Oxnard papers and the Los Angeles papers and other papers.

Justice Hugo L. Black: Did you say he disappeared to Ventu --

Mr. William E. James: From Santa Barbara.

Justice Hugo L. Black: From Santa Barbara.

Mr. William E. James: Yes Your Honor.

Justice Hugo L. Black: Was she living there then?

Mr. William E. James: She was living there.

These petitioners with the possible exception of Baldonado were actually not residents of Ventura County.

The victim was not a resident of Ventura County.

She was a resident of Santa Barbara as was her husband, Frank Duncan, as was her mother-in-law, the petitioner Elizabeth Duncan.

Moya was also a resident of that County.

Now this is where the news was first emanating.

The District Attorney of Ventura County or rather of Santa Barbara County made certain statements in regard to her disappearance.

The papers published some report that the police had stopped the excavation of a street in front or the repaving of the street in front of where she resided, and that there was a possibility that they might recover her body.

In the course of this time, a fact came to light that there had been a fake annulment proceedings instituted by petitioner Duncan posing as her daughter-in-law Olga Duncan in Ventura County and an attorney in Ventura County had suggested it to Frank Duncan.

The facts came out that at later time --

Justice Hugo L. Black: Are those adjoining counties?

Mr. William E. James: They were adjoining counties, north and west of Ventura, Santa Barbara County.

The annulment proceeding was instituted in Ventura County.

Elizabeth Duncan posing as her daughter-in-law and a Ralph Winterstein posing as the son of Elizabeth Duncan, Frank Duncan in this annulment proceedings and this made a blood of publicity and there was a lot of speculation in the various papers in regard to it.

And so the first newspaper exhibit that was presented on the motion for a change of venue by defendants Moya and joined in by Baldonado went in later by incorporation by reference in the implication of petitioner Duncan was what is Exhibit Number 15 which was an issue of the Ventura County Star Free Press on Monday, December 15th.

And in this case, it is merely stated woman held in disappearance, mother-in-law is key figure and it relates the occurrences that I have already referred to in Santa Barbara County.

Justice John M. Harlan: Was Mrs. Duncan prosecuted this what you call fake annulment?

Mr. William E. James: Yes Your Honor.

She was and that the next exhibit is a Los Angeles Herald Express which is Exhibit Number 33 which was an issue of the Herald Express of Los Angeles on December 15th with a caption, jailed lawyer's mother as wife disappears.

A fake annulment proceeding, a prosecution for the fraudulent annulment was instituted in Ventura County against Elizabeth Duncan and her codefendant and she was convicted of it and she is presently under a sentence in the State of California.

Justice Felix Frankfurter: When was this – this case?

Mr. William E. James: Pardon.

Justice Felix Frankfurter: The year of this.

Mr. William E. James: This was in 19 -- late 1958.

Chief Justice Earl Warren: With relation to this her indictment in this case, when was she tried and convicted of that -- of that crime?

Mr. William E. James: It was, as I understand it prior to the prosecution of this case.

This charge was initiated first.

They had not at this time found the body of Olga Duncan.

So there was no prosecution pending for murder.

Ventura County was not involved in the murder case, it was involved only insofar as there had been a false annulment proceedings instituted in Ventura County.

Justice Felix Frankfurter: It must have been after this -- this newspaper published.

It must have been after somebody disclosed --

Mr. William E. James: Yes.

Yes.

Justice Felix Frankfurter: It must have been after early November.

Mr. William E. James: That's -- that's correct Your Honor.

The matter came to life after Olga Duncan disappeared.

Her disappearance was in November 17th.

Now in what is Exhibit 1180 before this Court, Ventura County Star Free Press of the Tuesday, December 16th, there is a statement of a caption fake annulment charge jails three, nurse is missing, and therein it has related that officers desperately are seeking new leads today in the disappearance of a beautiful Santa Barbara nurse on November 17 and are holding a man on suspicion of kidnapping and her mother-in-law on charges of faking an annulment then relates it, investigators from Ventura County, District Attorney's office, the Santa Barbara police, the Federal Bureau of Investigation are all seeking added information on --

Chief Justice Earl Warren: What date is that?

Mr. William E. James: This is our date of December 16th.

It is prior to the finding of the body, prior to the confession of defendant Baldonado and obviously prior to the indictment.

It is one of the exhibits that were presented to the Court on the motion for a change of venue.

There it is also --

Justice Potter Stewart: Does that identify the man being held for kidnapping?

Mr. William E. James: Yes it says, held in Santa Barbara are Augustine Baldonado, 25 of (Inaudible).

He was booked on suspicion of kidnapping but officers have yet not revealed anything fails that is alleged connection with the missing wife also in custody in Santa Barbara for questioning as Luis Estrada Moya.

Justice Potter Stewart: So these two --

Mr. William E. James: 22 and also in this exhibit is a statement lawyer's query is tipped off in annulment quiz, and it recites how an attorney, Helen Hamann's the Ventura was the innocent attorney who affected the annulment proceedings without knowing that the participants, the principles --

Justice Felix Frankfurter: He was there with Mrs. Duncan's lawyer in these annulment proceedings?

Mr. William E. James: He -- he purportedly got an annulment for Olga Duncan by means of the presence of Elizabeth Duncan testifying in Court.

Justice Felix Frankfurter: Well was he -- he the counsel of Elizabeth Duncan, he must have been?

Mr. William E. James: Well he -- he actually represented Elizabeth Duncan.

He thought he was representing all of the Duncan.

Justice Felix Frankfurter: I understand that.

Mr. William E. James: But she was the one who obtained the annulment proceedings, Olga knew nothing about this.

Justice Tom C. Clark: What date was that?

Mr. William E. James: This was the Exhibit --

Justice Tom C. Clark: What date was that?

Did they file the annulment proceeding.

Mr. William E. James: The annulment proceedings as I recall were filed in Ventura on about August the seventh of 1958.

Frank Duncan had married Olga Duncan, the victim sometime in June.

I believe the record may show June the 20th.

Chief Justice Earl Warren: Mr. James during the luncheon recess would you and counsel agree on the date that the petitioner in this case was convicted of this fraud events.

Mr. William E. James: Yes, of course.

Chief Justice Earl Warren: Then let us know at that time.

We'll recess now.

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Argument of William E. James

Chief Justice Earl Warren: -- you may continue.

Mr. William E. James: Thank you Your Honor.

At the recess, Your Honor asked if I would ascertain the date of the --

Chief Justice Earl Warren: Yes.

Mr. William E. James: -- sentencing on the fake annulment proceeding that I have confirmed it with counsel and it's agreed that on April the 3rd or at least the date that petitioner Duncan was sentenced on the murder charge.

She entered pleas to -- pleas of guilty to two counts in the fake annulment proceedings and was sentenced accordingly on that date.

Chief Justice Earl Warren: Yes.

Mr. William E. James: That was after the trial and after the sentence in the murder case, April the 3rd, 1959.

Justice Tom C. Clark: Third?

Mr. William E. James: Third.

Thank you.

Now, I will proceed in regard to these exhibits.

As you recall, we've examined the exhibits that are -- were before the Court on the motion for change of venue made by petitioner Moya, joined in by petitioner Baldonado on January the 13th, 1959.

Among the exhibits was the Oxnard Press Courier.

A town in the Ventura County close to the City of Ventura in which on the front pages headline, or rather not headline, the picture of petitioner Duncan and it states, "Daughter-in-law, missing impersonation jails woman."

This continued in the other exhibits that were before the Court, Exhibit Number 12, which was the Ventura County Star Free Press of December 17th, related authorities fear attractive nurse foul play victim.

And the story is -- commences authorities in Santa Barbara now are convinced that all the Duncan attractive three-year-old nurse and wife of Attorney Frank Duncan met with foul play.

And it continues, gives the facts which the news media obtained which it reported in the public press.

Justice Hugo L. Black: May I ask you, do you have a brief in the Duncan case also?

Mr. William E. James: Yes, Your Honor.

We filed a brief in the Duncan case, in the Baldonado case and the Moya case, separate briefs in all three cases.

On December 18th, the next day, and this is all prior to the finding of -- of the victim's body, Olga Duncan in the Ventura County Star Free Press which is Exhibit Number 13 before the trial court is the headline "Ex-convict sought for rolling Duncan fake annulment".

DA says man post as lawyer and it has a picture of Ralph Winterstein who is the codefendant with petitioner Duncan in the fake annulment proceedings.

On the succeeding dates --

Chief Justice Earl Warren: Did he plead guilty too?

Mr. William E. James: As I recall, yes.

And he testified in the trial of Elizabeth Duncan which occurred from February the 20th to the 16th of March.

On December 19th, Exhibit Number 14, the Ventura County Star Free Press, there is a story on the front page, "Chase of the Fake Annulment."

She witness gives DA valuable information and a story is placed in the paper, they're concerning this fake annulment proceeding.

Then on the succeeding day, Saturday, December 20th, there is the report in the Ventura County Star Free Press, December 20th Exhibit 15 (a), kidnapped murder charges filed in case of missing nurse, mother-in-law, two men held.

Justice Felix Frankfurter: Are the original exhibits filed with our clerk, Mr. James?

Mr. William E. James: I certainly hope so and I will make an effort to ascertain if -- if they are -- I will ascertain if they are and if they're not, I'll make an effort to have the original exhibits lodge with the Court because I don't see how the Court can consider this matter without examining these exhibits and that's why I have taken the time to go through these particular exhibits because this is one of the issues that's -- before the Court, it was the issue before the trial court and it was obviously the issue when the Supreme Court reviewed the ruling of the trial court on the question of whether there should have been a change of venue in this case because of the publicity (Voice Overlap) --

Justice Felix Frankfurter: Have you purported to go through all the exhibits before the trial court under the motion to change the venue?

Mr. William E. James: I will if the Court --

Justice Felix Frankfurter: No, no, no.

I'm asking whether you have and thus far, are you planning to do that or --

Mr. William E. James: Yes, I'm planning to do it unless the Court wishes me to stop.

Justice Hugo L. Black: Were those the ones that you've just referred to or there's more?

Mr. William E. James: There are quite few more, Your Honor.

These are --

Justice Hugo L. Black: Am I wrong -- am I wrong in thinking it was reference to these all of them but one related to the fake trial case?

Mr. William E. James: No, these were exhibits which were before the Court on Moya's application for change of venue made on January the 13th.

Justice Hugo L. Black: I understand that but --

Mr. William E. James: So far there's been (Voice Overlap) --

Justice Hugo L. Black: -- was the subject to fake trial?

Mr. William E. James: Yes.

That was the only news item relating to the Duncan proceeding.

Obviously at this time, there was no body found.

There was no Duncan case as such because the authorities were searching for the body of all the Duncan --

Justice Hugo L. Black: That motion --

Mr. William E. James: -- unraveled at the time was this fake annulment.

Justice Hugo L. Black: In other words, that motion would may pertain in the venue on the ground that the publicity in connection with the other (Voice Overlap) --

Mr. William E. James: Yes.

These are exhibits that were --

Justice Hugo L. Black: -- that was all prejudice to public if you couldn't have that trial.

Justice Felix Frankfurter: Well, but you haven't finish the --

Mr. William E. James: No, I haven't finished them yet.

Justice Felix Frankfurter: Later exhibits bring in the other matter, don't they?

Mr. William E. James: Yes.

Justice William J. Brennan: Well Mr. James, the last one made reference to the kidnapped and murdering?

Mr. William E. James: Yes.

Justice William J. Brennan: This before the body was found.

Mr. William E. James: Yes, this is before the body was found.

Justice William J. Brennan: Well, why -- were the three of them arrested?

Mr. William E. James: The three of them were under arrest beginning December 12th, Mrs. Duncan on the fake annulment proceedings, Moya as a parole violator and petitioner Baldonado on a charge of failure to support.

Justice Felix Frankfurter: Would she remain detained after December 12th on the fake annulment charge?

Mr. William E. James: Yes, sir.

Justice Felix Frankfurter: Isn't that a bailable offense?

Mr. William E. James: Yes.

And --

Justice Felix Frankfurter: With no -- did she make no effort to bail?

Mr. William E. James: Yes.

She knew --

Justice Felix Frankfurter: And that was denied?

Mr. William E. James: Bail was set at $50,000 as I recall and on motion of Attorney Frank Duncan, it was reduced.

And I believe it was reduced to $5000.

Justice Felix Frankfurter: Alright, so thank you.

$50,000 seemed to be pretty stiff for fake annulments.

Mr. William E. James: Well, the -- the authorities were then looking for a body -- was there a question --

Justice William J. Brennan: (Inaudible) $5000.

Mr. William E. James: I don't believe so.

It's my recollection she did not.

Justice William J. Brennan: Well, I'm -- I'm not quite clear with -- that last exhibit you referred to.

What happen if she -- were they -- the three of them charged at this time before the body was found?

Mr. William E. James: Yes, Your Honor.

In this particular exhibit which I -- it is 15 (a), it relates the weird Olga Duncan disappearance case took an important turn late yesterday in Santa Barbara, when her mother-in-law and two men were charged with conspiracy to commit murder and kidnapping.

Justice Felix Frankfurter: What's the date?

When was -- when --

Mr. William E. James: This is the date of December 20th.

This is Saturday, December 20th, 1958.

Justice Felix Frankfurter: So they were charged with conspiracy to murder and (Voice Overlap) this --

Mr. William E. James: In -- in Santa Barbara County, not Ventura County.

Justice Felix Frankfurter: Yes.

Justice William J. Brennan: Before the finding of the body (Voice Overlap) --

Mr. William E. James: Before the finding of the body.

Justice William J. Brennan: (Voice Overlap) -- December 22nd, wasn't it?

Mr. William E. James: The finding of the body was on the 21st.

Justice William J. Brennan: 21st.

Mr. William E. James: -- next day Sunday.

This is Saturday, December 20th, the body had not been found, however, in -- in joining county of Santa Barbara, those conspiracy charges were filed.

Justice Felix Frankfurter: I'm a little mixed up Mr. James.

Mr. William E. James: Yes, sir.

Justice Felix Frankfurter: You said she was -- she was -- the day was fixed at $50,000 on the fake annulment charge.

That charge preceded the charge in Santa Barbara County for conspiracy for murder.

Mr. William E. James: Yes Your Honor.

Justice Felix Frankfurter: When was the reduction from $50,000 to $5000?

Because after December, what was it, 16, she was under a murder charge, a conspiracy with murder?

Mr. William E. James: After the -- early after the 19th, she was under conspiracy charge in Santa Barbara.

Justice Felix Frankfurter: Well, there -- that -- that wouldn't be bailable, would it or wouldn't it?

Mr. William E. James: Ordinarily not.

Justice Felix Frankfurter: Not.

After all, I'm -- what's the relation of the $5000 reduced fail to that charge, must have preceded I suppose.

Mr. William E. James: He proceeded as I recall.

Justice Felix Frankfurter: Must have, must have.

Mr. William E. James: The newspaper exhibits, as I remember, detail the attempt to reduce the bail.

Justice Felix Frankfurter: None of these exhibits that you summarized thus far by -- affidavits by --

Mr. William E. James: Moya.

Justice Felix Frankfurter: All the affidavits by Moya were not annexed to the motion on behalf of Mrs. Duncan, were they?

Mr. William E. James: They were referred by reference as I recall, and Mrs. Duncan's application had additionally certain excerpts from the Ventura County Star Free Press and the Oxnard Press Courier succeeding January 7th when the --

Justice Felix Frankfurter: After he's under indictment, after she was under indictment for a murder.

Mr. William E. James: Yes.

She was under indictment for murder as of December 26.

Justice Felix Frankfurter: You're going to go on and state when it come to her case with particularity exactly what was the basis of the motion for change of venue and her case.

Mr. William E. James: Yes.

Justice Felix Frankfurter: And all the exhibits that were introduced at any time in connection with Mrs. Duncan after the indictment on December 26.

Mr. William E. James: Yes, Your Honor.

Now, on December 21st, the body was found, Baldonado confessed and he led the authorities to a part of Ventura County which was a remote part and the body was found in a shallow grave.

Now, this was reported in the press --

Justice William J. Brennan: What did -- the body was found or Baldonado confessed then they (Voice Overlap) --

Mr. William E. James: Baldonado confessed and took the authorities to where the body was found.

Justice William J. Brennan: And where did he confess?

Mr. William E. James: He confessed, as I recall, in Ventura.

Justice William J. Brennan: And this, after the indictment for conspiracy murder in Santa Barbara?

Mr. William E. James: After -- after the con -- an indictment for conspiracy.

Justice William J. Brennan: The same day apparently though.

Mr. William E. James: It was the succeeding day --

Justice William J. Brennan: Succeeding day.

Mr. William E. James: -- or the Saturday paper reported the filing of the conspiracy charge in Santa Barbara Friday, and Sunday he confessed and led the authorities to the crime, and Exhibit Number 30 which is the -- an issue of the Los Angeles Times of December 22nd contains two articles relating to this matter.

One, relates, body and missing bride on earth may have been buried alive, man confesses, points to grave, contains a story of the confession of finding of the body, a picture of the victim as well as one of the defendants.

Also, in the same issue of the Los Angeles Times, is a little chronology which is captioned police reconstruct kidnap murder events.

Now, this is police reconstruct the kidnap murder event.

So far, there's certainly been no conduct of the District Attorney to which we have reference to and to which this Court limited the granting of certiorari on the question of publicity and the question whether the defendants could obtain a fair and impartial jury for their trials in February and April of 1959.

On December 22nd, Monday, which is Exhibit 3, which has been referred to by counsel for petitioners and has been incorporated in one of their briefs is the issue of Ventura County Star Free Press of Monday, December 22nd, in which it is related that Olga's body found in County, nurse was beaten, strangled.

And a news report relating that suspect admits murder for hire in Casitas' place.

Now, in the separate article on the same page, on the same date, is a headline which reads, "DA urges death term in killings."

(Inaudible) plurally writer of the caption and I believe counsel for these petitioners have said that they do not attribute to the District Attorney the headline or the caption on any article.

But the caption was written by one who understood this as a statement of the District Attorney about his position on capital punishment, nothing more.

And he, at this time, it says, "The District Attorney, Roy Gustafson, today saw the Duncan murder as a reason for continuation of California's death penalty."

He issued the following statement, and then it relates what is set forth in this addition to which reference has been made.

Now, we submit that this is a statement of the District Attorney in relation to his position on capital punishment, and as we point in one of the later exhibits, he had a purpose in doing it.

Petitioners would say, it was a sinister purpose.

It was not, it was because he is one of the outspoken advocates of retention of capital punishment in California.

The legislature within a short week and a half we're going to meet and as we'll see in one of the exhibits, the -- there were to be two measures which were going to be quite important measures before that legislative session in regard to abolition of capital punishment.

And so the District Attorney was making his statement in regard to proposed to a pending legislation.

And there's nowhere in here any relation to his asking that the citizens of Ventura County arise against these particular defendants.

He is merely making his statement urging that the people retain as one of two alternative punishments in California for murders, the death penalty.

And that's what it is, pure and simple.

That's what the District Attorney said it was.

That was accepted by the trial judge in his ruling thereon was accepted by the States upon report.

Justice Felix Frankfurter: But of course Mr. James, if in fact, if in fact the District Attorney makes a statement regarding a pending case which fairly considered may poison the minds of prospective jurors.

The fact that at the time, California was seriously considering measures dealing with the abolition of capital punishment wouldn't -- wouldn't make a difference, would it?

Mr. William E. James: I agree with you, Mr. Justice Frankfurter.

Obviously, if any statement by District Attorney so inflamed the minds of prospective jurors in Ventura County that they could not render a fair verdict and give the defendant a fair and impartial trial.

The purposes of a District Attorney would have no consequence.

But we're merely pointing this out to show --

Justice Felix Frankfurter: As I -- follow you that --

Mr. William E. James: -- that the District Attorney wasn't calculating here.

They scribed to the District Attorney some sinister purpose here to obtain for these defendants the death penalty.

Justice Felix Frankfurter: Well, I don't think any sinister purpose you just saw in this case reinforcing arguing for reviews.

Mr. William E. James: As well as other cases.

Justice Felix Frankfurter: Yes.

Mr. William E. James: Unfortunately, we have a number in -- in the State of California.

And he referred I believe in one statement to the Glatman case which was a -- a case that received a great deal of notoriety.

The defendant there killed three women before he was apprehended in the process of strangling a fourth.

And he had also obtained the death penalty and I think the District Attorney took occasion to make reference to that.

Now, on December 23rd, Exhibit Number 31, there is an article in the Los Angeles times which relates the -- relates as to the murder case in Ventura County and it says, "Blackmail charged in bride slayer."

And also relates and we've referred to it in our briefs to a statement made by Defense Counsel.

Defense Counsel was making statements of this time and it refers to Mr. Sullivan who represented the petitioner Duncan it said, Sullivan who talked for two hours to Mrs. Elizabeth Duncan 54 today, said tonight, "I firmly believe that these two men maintained a bitter grudge towards the Duncan family and they resorted to murder in an attempt to blackmail this poor woman."

Now, the news media were reporting just exactly what occurred.

They reported the confession of Baldonado, the finding of the body, the fact that Olga was murdered.

They later reported the confession of Moya which occurred on or about Christmas Day in 1958.

They reported that the petitioner Duncan said she was innocent.

They reported that the petitioner's attorney thought she was innocent.

Certainly, there's been no slanting of the press in this regard.

There could be no claim that the people were so prejudice against these defendants that they could not fairly and impartially consider evidence presented at a trial to be held a month and a half later and more than that in the case of Mrs. Duncan and solely on the penal -- on the penalty issue in April as to Duncan, as to Baldonado and Moya.

Justice John M. Harlan: How did the press get hold of Baldonado's confession?

Mr. William E. James: I believe it was released by the authorities.

Justice John M. Harlan: I read something in the briefs, perhaps I misunderstood it, to the effect that the grand jury proceeding, the grand jury minutes of California as a matter of public registry, is that so?

Mr. William E. James: That's correct.

And I'll come to some exhibits where, as I recall the Los Angeles Times printed a good segment, perhaps a good part of the grand jury proceedings after it become a matter of public record.

Justice John M. Harlan: Was the -- was the confession of Baldonado confession given before the grand jury?

Mr. William E. James: As I recall, it was.

I recall that both Moya and Baldonado testified before the grand jury and provision redundant did not --

Justice John M. Harlan: (Voice Overlap) -- matter of public record once it had been given, once the minutes had --

Mr. William E. James: Once the indictment has been filed and the transcript is prepared to become the public record of California.

Justice Felix Frankfurter: Meaning -- meaning by that, does anybody wants to get a copy, can look at it or --

Mr. William E. James: That's a --

Justice Felix Frankfurter: -- or has been published automatically.

Mr. William E. James: No.

It becomes a --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. William E. James: -- a matter of public record.

Somebody can go and look at it.

It's available to the press as well as to any other member of the public.

And it was reported both in the Los Angeles Times.

It was summarized in some of the other papers to which I'll make reference.

I believe on December 22nd, there are two issues of the Los Angeles Herald Express in the City of Los Angeles, say at least 65 miles away from Ventura where it is headlined and this is Exhibit Number 10 which was an exhibit before the grand jury.

The Los Angeles Herald Express of Monday, December 22nd, mother's love hate seen in bride killing.

I mean it contains the picture of the two defendants, Baldonado and Moya and a story in regard to the finding of the body of the --

Justice Felix Frankfurter: What's that --

Mr. William E. James: -- confession.

Justice Felix Frankfurter: -- Exhibit 10?

Mr. William E. James: That's Exhibit Number 10 which was one of the exhibits as I recall presented in the Moya application for change of venue.

Chief Justice Earl Warren: But --

Justice Felix Frankfurter: Go on.

Chief Justice Earl Warren: I was going -- I was going at this point as this.

In California, whether -- whether the State proceeding by indictment or by preliminary examination, the -- the testimony has made a matter of public record.

Mr. William E. James: That's correct.

The grand jury proceedings are of course secret but the testimony becomes a matter of public record when the indictments filed in the transcript --

Chief Justice Earl Warren: Yes.

Mr. William E. James: -- is filed with the Court and the copy served on the defendants.

Justice Felix Frankfurter: Did I hear you say to Justice Harlan in answer to his question, that in fact the confession was emitted by the authority as you put it?

Mr. William E. James: As I recall --

Justice Felix Frankfurter: So that it wasn't the publication of the confession, didn't derive from somebody going to the grand jury to the appropriate place to find out what the grand jury minutes (Voice Overlap) --

Mr. William E. James: No.

No Your Honor.

Justice Felix Frankfurter: You said, they were given by the --

Mr. William E. James: By the authorities which will --

Justice Felix Frankfurter: By the authorities.

Mr. William E. James: -- as I recall was the sheriff's office in Ventura County.

Justice Felix Frankfurter: Nothing has been said, not -- not a word has been said thus far when you -- you speak of news media which this covers it, but nothing has said about the radio that the radio interest itself in other matter while this is going on.

Mr. William E. James: No, Your Honor.

As I understand it, and as I refer in one of these exhibits and of course, all that the trial court had before it except what it knew, what it could possibly take judicial knowledge of, where these newspaper reports.

There was, of course, reference the radio and the other news media including television carried news accounts concerning these events of transporting in Santa Barbara.

Justice Felix Frankfurter: There's no reference specifically to communication through the radio or through TV of any -- of the statements or emission of -- of statements or confessions?

Mr. William E. James: No reference in the exhibits that I've referred to in the present.

Justice Felix Frankfurter: Or in the record?

Mr. William E. James: The record does contain a news reference to this confession of Moya which was obtained by discovery proceedings by counsel from Moya.

Justice Felix Frankfurter: Is that broadcast?

Is the record --

Mr. William E. James: That was broadcast, yes.

Justice Felix Frankfurter: Does the record show it was broadcast?

Mr. William E. James: The newspaper exhibit shows it was broadcast.

Justice Felix Frankfurter: Broadcast.

Mr. William E. James: In fact, it announced the time that it would be broadcast and the station that it would be broadcast.

Justice Felix Frankfurter: So that everybody could go and should --

Mr. William E. James: Everyone could turn the radio on.

Chief Justice Earl Warren: And that was done at whose instance?

Mr. William E. James: This was done at the instance of counsel for defendant Moya.

This was not conduct of the District Attorney and this occurred long after these two items that have been the subject of so much criticism on the part of these petitioners.

Justice Felix Frankfurter: Now, could he be -- could he be all those things on his own without permission of the -- of the authority?

Mr. William E. James: California has discovery proceedings whereby a confession given by a defendant may be obtained by Defense Counsel in order to prepare for his trial.

Justice Felix Frankfurter: Well, what I want to know is could he, in order -- I'm quite reading about these things.

But in order to get on the air, you have to have some dealing with the radio people.

Now, could he have those arrangements to his counsel on his own and he's (Voice Overlap) --

Mr. William E. James: Early he did.

Justice Felix Frankfurter: Well, what kind of -- I know it's a lugubrious crime but is it -- is that engaging to people to person that they can do all these things?

Chief Justice Earl Warren: He had counsel, didn't he?

Mr. William E. James: He had counsel.

Chief Justice Earl Warren: He did.

Mr. William E. James: I'll skip ahead a little bit to this time because you ask this question, Justice Frankfurter.

This is Exhibit Number A4 which was an exhibit on the application of Moya on April 16th, because this happened after his motion for change of venue made on January 13.

This is the Exhibit A4 which is dated January 29th, 1959.

It's a Ventura County Star Free Press.

The headline of this article is, "Moya admits nurse's murder" and it contains the sub caption, "Insanity, his sole defense for slayer."

It has a picture of defendant Moya, his counsel, Mr. Henson, and then in a separate story, attorney explains move criticizes DA's actions, in part of the criticism which was apparently a press statement by counsel representing Moya is one thing that troubles me about this case is the fact that the District Attorney appears to be following a course of selective prosecution and selective retribution.

It appears as so the District Attorney is again deciding who is to be prosecuted and who will be a target of retribution.

And it continues on in that same thing complaining that the District Attorney had not filed charges against an -- an additional person who introduced Moya and Baldonado to Mrs. Duncan in Santa Barbara.

Justice Felix Frankfurter: It was said -- it was said by (Voice Overlap) --

Mr. William E. James: The counsel --

Justice Felix Frankfurter: -- rather who proceeded you that these statements were made after the District Attorney had fed the press.

Mr. William E. James: Well, this was quite a bit after.

This is January 29.

Justice Felix Frankfurter: It's been closed after, wasn't it?

Mr. William E. James: It was after.

Justice Felix Frankfurter: Alright.

Mr. William E. James: And we haven't come to the second item that they have criticism of the item appearing in the Ventura Star Free Press of December 30th.

But on this --

Chief Justice Earl Warren: Was it after -- was it after the grand jury testimony was made public?

Mr. William E. James: Yes, Your Honor.

Chief Justice Earl Warren: I suppose would have to because your grand jury --

Mr. William E. James: Was in December.

Chief Justice Earl Warren: -- testimony would be there by the 13, wouldn't it?

Mr. William E. James: Yes, it wouldn't have been --

Chief Justice Earl Warren: That was the arraignment date so --

Mr. William E. James: That's right.

Chief Justice Earl Warren: -- that would have to be filed for 13th of January.

Mr. William E. James: Yes, it would Your Honor.

Chief Justice Earl Warren: Yes.

Mr. William E. James: Now --

Justice Felix Frankfurter: When you say made public, it doesn't mean that it's handed out the way press releases are handed out by official.

Mr. William E. James: No, it becomes an official court record --

Justice Felix Frankfurter: Alright.

Mr. William E. James: -- which is available to any member of the public and the press as member of the public.

But to answer your question --

Justice Hugo L. Black: (Voice Overlap) -- the indictment, anybody could go up and see it.

Mr. William E. James: That's correct.

To answer Justice Frankfurter's question in regard to this radio broadcast, this is, as I say A4, the Exhibit of Thursday, January 29th, Ventura County start to be pressed.

Right next to the column in which the District Attorney is criticized by one of Defense Counsel, because he didn't institute charges against additional defendants.

It says, "Moya confession broadcast set."

This is the front page of the paper.

"Luis Moya's Christmas night confession of the slang of all the Duncan will be broadcast by a tape recording tonight at 7 o'clock on KUDU, Ventura, 1590 kilo cycles."

Moya's confession was recorded by sheriffs' officers and was then released to his attorney Burt Henson who rerecorded it and gave the recording to KUDU station spokesman said today.

Henson recorded a prologue and epilogue with the confession.

That concludes the news announcement.

Now --

Justice Felix Frankfurter: Though, it was release to Defense Counsel, it could be authorities that withheld the concession?

Mr. William E. James: He obtained a court order, as I recall.

Justice Felix Frankfurter: Or he hasn't.

Mr. William E. James: He certainly could have obtained a court order for production of any statement of the defendant in order to avail himself of the means of preparing for any trial.

And of course, he was then preparing for a trial on the penalty issue.

He had pled guilty.

Justice Felix Frankfurter: And when will this confession by Moya in relation to time and when was the recording of it?

Do you have it in mind?

Mr. William E. James: The confession of Moya was referred to as a Christmas night confession which must have been December 25th, 1958.

It was referred to in the press of December 26 and --

Justice Felix Frankfurter: You mean he moved fast out, between 25th and 26th counsel for defendant got a court order?

Mr. William E. James: Between the 26th and the 29th of January --

Justice Felix Frankfurter: Between the 26th (Voice Overlap)

Mr. William E. James: -- 26 of December and the 29th of January.

Justice Felix Frankfurter: Oh, January, I beg your pardon, I thought it (Voice Overlap) --

Mr. William E. James: Yes.

Yes, this was an -- as I pointed out, this was at a time after his first application for change of venue, it became an exhibit before the Court on Moya's second application for change of venue which took place on April the 16th as I recall a few days before his trial on the penalty phase was scheduled.

Justice Felix Frankfurter: Well, this -- this was front page news for about a month, was it?

Mr. William E. James: Well, as you'll see from examining the exhibits, it wasn't front page all the time.

Mr. William E. James: It was front page news during the period of her being missing.

Justice Felix Frankfurter: A mystery.

Mr. William E. James: While -- while it was a mystery, while there was speculation in the public press and the news media, it was front page news.

It continue --

Justice Felix Frankfurter: And after -- after the confession in the finding of the body, was it front page news for days thereafter?

Mr. William E. James: From time to time when the matters were -- was scheduled for court hearing, it was published on the front page.

As you will see from examining some of the exhibits, it was relegated to the second and third pages from time to time, and was not as fully covered by the press when the trials commenced by then the news coverage.

Particularly the trial of Mrs. Duncan, there was news coverage with by press photography and other news media of the trial proceedings of Mrs. Duncan.

That was reported in the press both in Ventura and in Santa Barbara County.

Now, on December 23rd, there is a -- this is Exhibit Number 16.

Ventura County Star Free Press, this is front page headline, "Husband of slain nurse missing sought by District Attorney -- by DA."

Grand jury set for murder case.

And it relates the fact that the District Attorney is going to present to the grand jury of Ventura County the murder case.

The succeeding issues of the Ventura County Free Press do not contain necessarily front page stories.

One is a story that appears on an internal page, "Olga's dead claims body."

Now, that's Exhibit Number 17, it's Wednesday, December 24th, 1958.

On December 26, that's Friday, the day after the confession by Moya, there's a headline in the Ventura County Star Free Press Exhibit Number 18, "Moya admits he kidnapped the nurse and it relates the grand jury hear story of kidnapped murder of Olga."

And it relates the confession of Moya and the fact that the grand jury was here for the matter.

Now, likewise on December 26 in the Oxnard Press Courier, there is a headline, "New confession in slain reported, mother-in-law case before grand jury."

And there are pictures of two of the defendants, Attorney Frank Duncan and the District Attorney in the Oxnard paper.

In the Ventura County Star Free Press of December 27th, which is Exhibit 5, there is the headline and a sub-caption, "Hint brain injury to Mrs. Duncan."

And it contains a statement made by hers attorney son to the press in regard to the suffering of brain damage by his mother and his statements that there was no indication that she would have done such a thing.

Likewise on Monday, December 29, there is in the Ventura County Star Free Press which is Exhibit 9, state in heart attack since Mrs. Duncan to a hospital which she lands back in jail cell.

Now on the next day, there is -- there appears in the Ventura County Star Free Press the statement in regard to the transcript of the grand jury and it says, "Lured murder plot beard in transcript."

Secret testimony tells of hiring, the hiring of the two --

Chief Justice Earl Warren: Now, what date was that?

Mr. William E. James: This is Tuesday, December 30th.

This is the Ventura County Star Free Press which is Exhibit Number 8 in the application or change of venue made on January 13th by defendant Moya and joined in by defendant Baldonado.

And it was also incorporated by reference as I recall in the application for change of venue made by petitioner Duncan on February the 16th.

Now, the front page contains the report, the summary of the grand jury proceedings.

On the interior page, page 6, the caption of the headline continues the testimony in Duncan murder revealed.

And on a separate, in the separate article on the same page, is the second article, which is attributed to the District Attorney in which counsel for these petitioners are so critical and it is captioned and they don't blame the District Attorney for the caption but the caption is, "Roy Gustafson explains why yell asked death penalty for Duncan murder trio."

Now, as it will be seen by an examination of these exhibits a full month later, the District Attorney had still not told the press that he was going to ask for the death penalty in this case.

And as you read the story, you will see that the District Attorney is again merely giving his reasons why he thinks capital punishment should be retained in California.

And he describes the purposes of punishment and he gives to retribution a -- a prime position and relegates to a lesser ground rehabilitation and protection of the public.

But it's strictly a statement by the District Attorney in regard to capital punishment a matter that was to be before the state legislature to which was to convene in a matter of few days.

Now --

Chief Justice Earl Warren: Mr. James, may I -- may I just interrupt to ask you if -- if it is claimed that there was any slanting of the -- of the news for the purpose of -- of prejudicing any of the petitioners in this case or was there any editorial matter in the newspapers that is complained of by these people.

Mr. William E. James: There is -- they had no complaint that I know of that there was slanting of the news.

Chief Justice Earl Warren: Yes.

Mr. William E. James: As I recall, there were some editorials that appeared both in the Oxnard Press Courier and also in the Ventura County Star Free Press in regard to capital punishment.

Chief Justice Earl Warren: Yes.

Well, are they --

Mr. William E. James: They have been referred to.

Chief Justice Earl Warren: They have been referred to in the case.

Mr. William E. James: Yes.

Chief Justice Earl Warren: Well, you shouldn't be bothered about that.

Mr. William E. James: But as we will see, these particular Exhibit 8 is interesting for a number of reasons on the back page which is page number 14 is one of a number, I believe three letters to the editor in response to the statement by the District Attorney on capital punishment which had appeared in this paper on December 22nd.

And all three of them, took a position opposite than -- from the District Attorney on the issue of whether capital punishment should be retained in California.

And it obviously was clear that the District Attorney was merely making his statement on capital punishment or was publishing the paper, letters by people who disagreed with the District Attorney's position on capital punishment.

There was no intent.

There was no campaign to require or to force the jury in Ventura County to render the death penalty in the cases of these three defendants.

They were now defendants but they obviously had not been convicted.

They were entitled to a fair trial by an impartial jury and that's what they were going to get.

On the same page as the District Attorney's statement in regard to capital punishment is the little caption, "Duncan defender hits DA."

And it says District Attorney Roy Gustafson was accused of going along way to prejudice and jury that might hear the Duncan murder case.

The accusation came from Mrs. Elizabeth Duncan's defense attorney, S. Ward Sullivan who charged that Gustafson's public statements using this case as an argument in favor of capital punishment are a very obvious effort to influence a verdict.

His remark Sullivan said, certainly will influence potential jurors in Ventura County.

Gustafson is going a long way to see that these defendants do not receive a fair and impartial trial of the hands of an unbiased and unprejudiced jury.

Now, this was --

Justice Hugo L. Black: What date is that?

Mr. William E. James: This is December 30th, 1958.

They were already announcing their proposed grounds in the event of a conviction.

They obviously haven't even attempted to find if they could've obtained a fair and impartial jury in Ventura County.

They were already announcing that they could.

Well obviously, a fair reading of all of these exhibits which the trial judge did would not convince anybody that the citizens of Ventura County will become so in plain by these two articles on capital punishment.

They couldn't' render a fair and impartial verdict in the trial as to petitioner Duncan on the issue of guilt and penalty and as to the penalty issue on the defendants Moya and Baldonado.

Justice Felix Frankfurter: Thus not merely the two articles, but this circulation of the confession because it's -- if merely the fact that grand jury minute a public documents right pleading, the District Attorney wasn't contend to rely on that.

He himself was an active agent in putting it in circulation.

He didn't rely on the things being a public document.

Mr. William E. James: Well of course, all of the news media at this time and this is on December 30th were reporting only what were -- was the fact and that was that Moya confessed and Baldonado had confessed --

Justice Felix Frankfurter: But the fact is supposed to be elicited in the courtroom and not in newspaper.

Mr. William E. James: That's true.

That's true.

But this was a matter of interest to the press.

The press was publishing.

There is no claim that the press did not publish what was false.

That the -- that there was false publication in the press.

The press published what was the fact and if the hearing --

Justice Felix Frankfurter: And that hearing, he'd never tried.

Just give -- give the press the facts.

Mr. William E. James: No, Your Honor.

There -- these defendants were entitled of fair and impartial trial by jurors who, if they had formed any opinion from these newspaper clippings would be able to put those opinions aside and decide the case solely on the basis of the evidence produced at the trial and the instructions as given to them by the Court.

Now --

Justice Felix Frankfurter: There are many claims can be made for California but not that human nature there is different from other places --

Mr. William E. James: Well --

Justice Felix Frankfurter: -- of power to control that gets into the mind can be controlled in California when it can't be controlled in New York or in Massachusetts.

Mr. William E. James: No, Your Honor, we're not contending that.

We're contending that the District Attorney did not play any part --

Justice Felix Frankfurter: But you've -- but you've said several times with your characteristic conduct, if I may say so, that even rely on the publicity on the public record quality of the confession, he sought to it that the newspapers got it.

Mr. William E. James: Well, there -- all we have is what is related in the press.

That's all I've been reading to you is what is related in the press.

Now --

Justice Felix Frankfurter: Is there a denial -- is there a denial by him?

Mr. William E. James: There is a denial made by him.

Justice Felix Frankfurter: That he omitted this confession?

Is there?

Mr. William E. James: That he --

Justice Felix Frankfurter: That he --

Mr. William E. James: -- that he submitted this confession?

Justice Felix Frankfurter: Is -- is there a denial by the District Attorney that it isn't true that he put out or put into the hands of the press --

Mr. William E. James: I don't --

Justice Felix Frankfurter: -- the confession.

Mr. William E. James: As I recall, he denied that he made most of these statements attributed to him.

Justice Felix Frankfurter: Well --

Mr. William E. James: He admitted --

Justice Felix Frankfurter: -- specifically, did he deny that -- did he say -- why, of course, they got it by going to the record office, whatever you call it, I didn't get the confession out.

Did he make any such denial?

Mr. William E. James: As I recall, he did not at the time of the motion for a change of venue.

His position was if the circulation of these news items were such that it would inflame the potential jurors in Ventura County that they, on February the 16th could not render a fair and impartial jury.

Justice Felix Frankfurter: Let's say I'm innocent.

I can put everything out of my mind that ever got into it.

Mr. William E. James: There were some that could.

There were some that couldn't.

Justice Felix Frankfurter: Some that could and some that couldn't, most of us can't.

Justice William J. Brennan: Well, Mr. James, have you -- have you read anything conquer as yet?

Or perhaps, I didn't hear it that Mr. Gustafson who was attributed to Mr. Gustafson in any of these news articles that he had turned over a -- any of these confessions to the press?

Mr. William E. James: I don't recall that.

Justice William J. Brennan: You haven't read anything of that too --

Mr. William E. James: Not that -- as I recall the sheriff's office --

Justice William J. Brennan: He said public -- he said the authorities.

Mr. William E. James: Public authorities --

Justice William J. Brennan: -- who identified the authorities was the sheriff's office.

Mr. William E. James: The sheriff's office as I recall the confession.

Justice William J. Brennan: That was the issue of December 22nd.

Mr. William E. James: That's -- that's correct as I recall it.

Justice Felix Frankfurter: Wasn't -- was the charge made that he did?

Mr. William E. James: No, not that I know of.

Justice Felix Frankfurter: I mean by the defense.

If they say, it was the District Attorney who let go and put into the hands of -- of media.

Mr. William E. James: No, Your Honor.

No, Your Honor.

They criticize the release --

Justice William J. Brennan: Well I -- no.

Well, Mr. Wirin said so and tell us he was going to tell us where but I never heard him tell us before (Voice Overlap) --

Mr. William E. James: Well I don't know where -- where it is, of it.

Their charge was that the article which appeared in the December 22nd issue of the Ventura Star Free Press, which the District Attorney said that he was advocating death penalty in all killings, in killings as related.

Now, the District Attorney admitted making that statement.

Justice William J. Brennan: No, no.

I -- what I'm trying to get to is you hadn't shown us anything which indicates that the District Attorney gave to the press either Baldonado's or Moya's confession.

Mr. William E. James: Not that I know of.

Justice Felix Frankfurter: But you said the authorities --

Mr. William E. James: The authorities as I recall --

Justice Felix Frankfurter: Now, who would be the authority?

Mr. William E. James: The sheriff's office.

Justice Felix Frankfurter: And are they free willing?

Can they go on their own?

Or is the case, when a murder case get into this situation, isn't the District Attorney the controlling authority?

Mr. William E. James: No.

Not necessarily.

As I recall the --

Justice Felix Frankfurter: But I'm not asking necessarily.

I'm talking in the normal course of business, wasn't the District Attorney, isn't he the chief law officer?

Mr. William E. James: He is the chief law officer for the --

Justice Felix Frankfurter: Does he or does he not control police officials?

Mr. William E. James: He doesn't necessarily control the police officials nor does he --

Justice Felix Frankfurter: But we're not children.

I know he doesn't necessarily.

I'm asking you what is the normal course of business?

Mr. William E. James: Well, he is a prosecutor.

He prosecutes --

Justice Hugo L. Black: I think basically limit that to California because I was thinking.

As far as I'm concern, it was my experience as prosecuting attorney does not control the police as a sheriff with reference to what they publish.

Mr. William E. James: That's my --

Justice Hugo L. Black: Based on where I can from.

Justice Felix Frankfurter: Well anyhow, they're part of the prosecutorial obstacle of the State, aren't they?

Mr. William E. James: They are part of the law enforcement --

Justice Felix Frankfurter: Yes.

Mr. William E. James: -- personnel of the State.

And the sheriff of course is the law enforcement officer of the county.

But the prosecutor, the District Attorney and county counsel as he was in Ventura County performs illegal functions and when a charge is brought, he prosecutes it in the Court.Up until that time, he may or may not have any control over the case.

Justice Felix Frankfurter: Was there any -- was -- did the defense make any specific charge that the authority disseminated these confessions in their motion for change of venue.

Mr. William E. James: I don't recall it sir.

Justice Felix Frankfurter: Well then, that isn't an issue at all, isn't it?

Mr. William E. James: No.

Still the issues was --

Justice Felix Frankfurter: If you --

Mr. William E. James: -- were these publications that we have gone over so much briefly (Voice Overlap)

Justice Felix Frankfurter: But one of them said that the authorities did.

Mr. William E. James: Is that -- the District Attorney said that the people in Ventura County should retain capital punishment for choice.

Justice Felix Frankfurter: No, no, no.

But they -- that same issue said that the authorities disseminated -- the the confession, didn't they?

Mr. William E. James: That is right.

Justice Felix Frankfurter: Well, now did the District Attorney make any reply to that?

Mr. William E. James: No.

Justice Felix Frankfurter: Did he say anything about it?

Mr. William E. James: As I recall, all he did was he admitted making this one statement in regard to capital punishment.

Justice Felix Frankfurter: But he didn't say, "I'm not one of the authorities" so that's a false statement in the press.

You said a little while ago, the newspapers published nothing but the facts.

Mr. William E. James: I don't recall it --

Justice Felix Frankfurter: It revolves a statement of fact that the authorities gave these.

Was that denial on behalf of the State?

Mr. William E. James: No, it wasn't because the authorities probably did.

Justice Felix Frankfurter: Alright.

Mr. William E. James: And the sheriff's office undoubtedly turned over to the press, whatever news, item they had of public --

Justice Felix Frankfurter: So far as I'm concerned, I don't care whether the sheriff or the District Attorney who puts him to the stream of publicity, things that ought to be kept out of the stream of publicity by the enforcing officials.

(Voice Overlap)

Justice Hugo L. Black: As I understand what you're saying is that while the papers had an article which said that came from the authority.

The authorities haven't said so and I -- suppose you're saying, prosecuting attorney doesn't ordinarily consider his duties to deny every statement made in the press about his spectacular case.

Mr. William E. James: That's right and that's what I -- when I commenced my argument on this particular point, I said that actually the conduct of the District Attorney was really not put an issue at the trial court.

Justice Felix Frankfurter: But it was put in issue, it was put an issue by the finding of an affidavit which made part of its allegations, this paper and this paper made two allegations that the District Attorney issued the statement on capital punishment.

It also made a statement that the authority disseminated the confession.

I suggest that when a District Attorney makes a comment on one part of a statement in an affidavit of change of venue, which says nothing about the other presumably, he doesn't deny it.

Mr. William E. James: Well --

Justice Felix Frankfurter: -- which is a very different thing from having -- asking a District Attorney to deny everything that's put in the newspapers.

Mr. William E. James: Obviously --

Justice Felix Frankfurter: This was an affidavit of which the -- this newspaper was the basis.

Mr. William E. James: Well, Your Honor, actually, the --

Justice Hugo L. Black: Do you know which affidavit now is being referred to?

Mr. William E. James: I believe it's the affidavit of Mr. Henson that was filed with the application for change of venue on December 13 -- on January 13.

Justice Hugo L. Black: Change of venue.

Mr. William E. James: Obviously, the District Attorney was not required at that time to make any these statements.

This was pure rank hearsay at this stage.

And the only question before the trial judge was -- was the dissemination of -- of these articles, whether they were true of false, whether -- whether the District Attorney had said it or whether he hence said it was immaterial.

The question was would this have so inflame the citizens of Ventura County that they (Voice Overlap) --

Justice Felix Frankfurter: I follow your argument but to one like myself to whom it is not irrelevant whether he did or didn't.

You say the only issue is true or false, did that so corrupt the minds of the jurors that they couldn't rid themselves of this.

I think that is not the only issue because I think that kind of a psychological answer presupposes things that are contrary to human experience.

Chief Justice Earl Warren: Well, Mr. James at the time that this affidavit was presented to the Court for -- on a motion for change in venue, the transcript of the grand jury with the complete testimony of these two men confessing to this crime was a matter of public record.

Mr. William E. James: That's right.

And then the news media has published --

Justice Felix Frankfurter: I say to you --

Chief Justice Earl Warren: As a matter of public record that everybody conceive.

Mr. William E. James: That's correct Your Honor.

Justice Felix Frankfurter: I say to you what I said before.

If the District Attorney handed out these confessions, it means he wasn't contempt to have people go to the record office that he actively saw to it that they got it and didn't rely on the mere -- the availabilities, the matter of official doctrines.

Mr. William E. James: That's correct, Your Honor.

I'll agree with you.

I will say and why I said it was not an issue at the time.

The District Attorney was merely putting at that time that he issued the question on which was the pertinent one to the trial judge on the motion for change of venue where these articles of such a nature regardless of whether they correctly quoted who gave them the information or where the information came or what it was.

The only thing was would it have so inflamed to minds the potential jurors in this particular case since they could not render a fair and impartial trial.

Now, the District Attorney contended himself solely with this particular question at the argument before the State Supreme Court.

He denied making most of these statements, and he explained why he hadn't previously denied it.

Justice William O. Douglas: Are you referring -- are you referring to the footnote, that bottom of page 144 of --

Mr. William E. James: The reply brief, as I understand it the --

Justice William O. Douglas: -- of the Duncan record.

Mr. William E. James: As I understand it --

Justice William O. Douglas: Record 144.

Mr. William E. James: -- the transcript of the oral argument before the State Supreme Court is lodged with this Court now which continues the full argument of the District Attorney before the State Supreme Court where he made his denial on most of the statements and he explained why he hand -- and he had a question post to him, similar to the one post to me now by Justice Frankfurter.

Why hadn't he made this denial before?

And he explained that at that time, he didn't feel that it was an issue.

That the issue at that time was -- could these defendants obtain a fair and impartial jury in Ventura County?

And he solely directed himself to it considering all of these articles in which I have been referring as rank hearsay on whether the -- they truthfully related what the facts were.

Justice William J. Brennan: Mr. James, I do hope you're going to save some time before an issue of Duncan case as jurors.

Mr. William E. James: On the juror, yes, sir.

Your Honor, I'm glad you reminded me over it at this time.

Justice William J. Brennan: I think your time is running and --

Mr. William E. James: I have realized how it had been running.

I have just some brief references that I might make to these other exhibits.

And as I say, I will ascertain if they are before the Court, because these are the exhibits which formed the basis of these defendants' applications for change of venue.

They were the matters before the trial court and upon which he ruled as to whether there should have been a change of venue in this case and certainly, the trial judge could have taken in the consideration his own experience and the fact that jurors would not be inflamed by the articles that appeared here.

He could take cognizance of the fact that for the most part, these articles merely related the facts without any slanting.

And as far as I know so far, there's been no claim that there was slanting of any newspaper reports.

And you will see as you read through these exhibits as they continue on, pictures of Defense Counsel.

In fact, there is one article which contains a very nice story giving a biography of Defense Counsel for petitioner Duncan.

Mr. Sullivan give -- relates his long and distinguished career before the bar.

There is also an article of the District Attorney.

It's quite evident and the petitioners here have never been able to establish that there was any slanting of the news here.

There was a fair and full news disclosure.

The news media was not perverted or slanted by anyone, nor particularly not by the District Attorney.

And obviously these defendants could and did get a fair jury trial in Ventura County.

On February the 16th, many, many days have gone by from the first publication of these articles to which reference has been made.

Since the first article was December 15, a total of 63 days had gone by.

Obviously, the trial judge on his ruling on a motion for change of venue could consider that jurors would have forgotten as it's already been said, most people barely read the news.

And obviously, they retained the news for only a short period of time.

It served no purpose to rule at Ventura County, the citizens of Ventura County and there's been some reference that it's a rural county.

Well obviously, it's not a rural county.

On the 1960 census, it had almost 200,000 population of the 58 counties in California which is a fairly populous state.

It ranked number 15 among the county, so it was not a rural county in California.

And obviously, the jury panels were not exhausted.

If the jury panels were exhausted before they could have gotten any jury, this would have any good basis --

Justice William J. Brennan: Well, you mean that jury was picked on panel of 83 for the Duncan trial.

Mr. William E. James: There's only -- no there was more, they did not exhaust their jury panel.

They had, I believe 150 on the Duncan.

They only interrogated 83 prospective jurors in the Duncan case.

They interrogated approximately 70 in the Moya case and only 61 in the Baldonado case.

And they didn't --

Justice Tom C. Clark: How many were excused by the Court to calls in Duncan?

Mr. William E. James: There, I believe there are about 28 altogether.

I have the figure somewhere if the Court would like them.

There were a number of course in the Duncan case, I think there were 23 who were excused on the California law because they entertained conscientious scrupulous against the death penalty.

Justice Tom C. Clark: And only five --

Mr. William E. James: A number who had formed opinions.

Justice Tom C. Clark: Only five on it were excused for other grounds.

Mr. William E. James: I believe so.

There were some who would form the opinions and they were excused for cause.

Justice Tom C. Clark: I read some of likeness whole exemption which excused the cause of form the opinions.

Mr. William E. James: That was -- there were two holds -- holds in the Duncan case.

Justice Tom C. Clark: Yes.

Mr. William E. James: One said she had no fixed opinion and she remained as a juror.

There was --

Justice William J. Brennan: Well, that's -- that's the one who (Voice Overlap), isn't it?

Mr. William E. James: Who I will refer to.

She had a sorority system.

Justice William J. Brennan: Who's been murdered, but she sat on the jury.

Mr. William E. James: She sat on the jury and she was not challenge for cause.

And perhaps as my time is fleeting fast, I might be true to that unless the Court has any questions in regard to these exhibits.

Justice Felix Frankfurter: Only one more Mr. James.

Mr. William E. James: Yes.

Justice Felix Frankfurter: Would you please explain the allegation in Mr. Sullivan's affidavit about the statement printed on page 7 in -- his crime is one of the most vicious and powerful, then the editor, there's no such statement ever appeared to this statement.

Page 7, this crime is one of the most vicious and horrible and (Inaudible).

And then the next day, the editor, Mr. Jackson Henry, the managing editor of Ventura County Star examined the issues, did not make any such statement, had no knowledge or information to believe that he made any of the statement to anyone.

Mr. William E. James: I believe, and I believe the District Attorney also in his affidavit which succeeds on nine and 10 and 11 also specifically did not --

Justice Felix Frankfurter: Is that -- is that cleared how -- how Mr. Sullivan or an oath to say this appeared in the December 27, 1958 or just --

Mr. William E. James: Not that I know in the record, it was never cleared up.

Justice Felix Frankfurter: Just a piece of flagrant carelessness.

Chief Justice Earl Warren: No.

I -- I think that's explained isn't it by the District Attorney's affidavit which appears on page 9 and at the bottom he says, "I publicly made the following statement, the brutal calculated revoking killing for hire with all the Duncan" is one of the number of horrible crimes which have recently been committed in California's time after that.

Mr. William E. James: Yes.

Chief Justice Earl Warren: There isn't much --

Mr. William E. James: But on page 10, he specifically denies the statement this crime is one of the most vicious and horrible in the annals of modern justice.

He says either the falling statement or anything resembling it was ever made by -- by means anytime.

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: Well, I don't understand why he said that.

Chief Justice Earl Warren: That's pretty close to it.

Justice Felix Frankfurter: I don't understand that.

He said he didn't make publicly the following statement.

The proof of calculated revolving killing for hire of Olga Duncan is one of -- is a number of horrible crimes recently have been committed in California.

And then he says neither of the following statement or anything resembling it was ever made by me at anytime.

This crime is one of the most vicious and horrible in the annals of modern justice.

Mr. William E. James: Well, I think he was in the first same in the --

Justice Felix Frankfurter: In the sense of nicety of English, it is very nice.

Mr. William E. James: Setting up what was the article that appeared in the December 22nd issue of the Ventura Star Free Press, which related to capital punishment in which he admitted making and which he gave us his reason that he was --

Justice Felix Frankfurter: But -- but in --

Mr. William E. James: -- making a (Voice Overlap) --

Justice Felix Frankfurter: -- statement which he avows on the 21st, he did say the proof of calculator result in killing for Olga -- Olga Duncan.

So, this wasn't just generally in capital punishment source.

This is using Olga Duncan vicious horrible crime as an argument to capital source.

Mr. William E. James: Well he was -- he was referring to crimes in that caliber and I think in a later quoted statement in the press, they -- he refers to other crimes of a similar nature.

Now as I say, before I pass this point, the exhibits which I assume are before the Court, I think the Court will want to read because obviously as you read those exhibits, the references to which we made to Defense Counsel statement, it will become manifestly clear that there was no conduct by the District Attorney as such which resulted in publicity and which prevented these defendants from obtaining in Ventura County their impartial jury.

Now, turning to the point to which the Duncan matter relates and which relates not at all to the other two cases and that was the question certified on the granting of certiorari in this case, was the petitioner's right to a fair trial is guaranteed by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America denied?

Was there a violation where in a trial of a capital offense by jury?

The trial court permitted to remain in the jury box and sit in judgment three jurors who would enter the jury box with fixed opinions as to petitioner's deal and retain such opinions while being examined on voir dire.

Well obviously, the petitioner here had overstated herself in her application for certiorari because there was no permitting by the trial judge in this case.

There was never any motion, there was never any challenge for causing interpose, challenge of any nature interpose by petitioner Duncan as to these three jurors who sat Hall, Bertsch and Horrell.

And obviously, the statement that they entered the jury box with fixed opinions and retained such opinions while being examined on voir dire is not supported by the record.

It obviously wasn't the question addressed to these particular jurors or not post by the District Attorney in this so-called technique that's been referred to the District Attorney.

They were post by Defense Counsel himself in the case of Ms. Hall, who Ms. Hall who sat and not the Ms. Hall who was excused.

This is the question, "Do you know of any reason whatsoever why you could not be fair and impartial as a trial juror in this case?

Answer, "No sir, I do not."

Mr. Sullivan, "No further questions."

The Court, "Did you pass for a cause?"

Mr. Sullivan, "Yes, Your Honor."

And this is page 648 of the transcript in the Duncan case.

Now obviously, these petitioners have no case here on these either points.

They made no effort to preserve this constitutional point as they assert it in the trial court.

They made no effort to raise it in the automatic appeal in the State Supreme Court.

I understand that there's been lodged with this -- this Court.

The briefs filed on behalf of petitioner Duncan in the State Supreme Court.

I have here my copy of the appellant's opening brief.

The first point is the trial court committed prejudicial error in disallowing appellants' challenges for cause for actual bias.

Now, this is -- this is contending that the Court erred in not allowing the cause, the challenges for cause as to the four jurors to which reference has been made.

No claim as to these three jurors and find (Voice Overlap) --

Justice William J. Brennan: Well, as I understand the argument Mr. James, the argument is that the error in that regard, as they saw it, deprived them because it exhausted their preemptory challenges when these three came along, deprived them of their opportunity to use a preemptory challenge to get rid of these three.

They couldn't, as a matter of trial practice, challenge the cause because this has been gotten involved (Voice Overlap) --

Mr. William E. James: They weren't --

Justice William J. Brennan: -- the right equipment when they started.

Mr. William E. James: Well, they weren't (Voice Overlap) --

Justice William J. Brennan: The Court -- the Court as I understand it, their argument is that as to the first four, the Court had been wrong and would have repeated its error as to these three if they had challenge the Court.

Mr. William E. James: Not necessarily.

Obviously, our position is the trial court was not wrong as to the four and we have stated that in our briefs.

The State Supreme Court went into this matter.

This was the issue before the State Supreme Court and I think this was quite clearly set forth in the opinion of the unanimous State Supreme Court where the statements by each of the jurors on the voir dire was summarized, and the Court concluded that pursuant to Penal Code Section 1076 of California Penal Code that these jurors were not disqualified.

Justice Tom C. Clark: That the four or --

Mr. William E. James: This is -- I'm referring now to the four (Voice Overlap) --

Justice Tom C. Clark: That didn't discuss -- that didn't discuss the other did he, because they have this

Mr. William E. James: No, there's no limitation--

Justice Tom C. Clark: (Voice Overlap) join to them.

Mr. William E. James: There's no occasion to these jurors were not disqualified.

They had not come there with fixed opinions.

As I pointed out first, petitioner overstated herself here and says the trial court permitted.

The trial court had no opportunity to do rule on it.

So, there as no permitting by the trial court jurors were not there with fixed opinions.

Justice Tom C. Clark: (Voice Overlap) --

Mr. William E. James: And it is not -- pardon.

Justice Hugo L. Black: Assuming at one -- assuming -- let's assume that there was error in the refusal to excuse the four, then assuming if one disagreed with it, he had felt that there was clear error with reference to the three that it should be noted here.

Is there anything that shows with reference to those three that they had a fixed opinion?

Mr. William E. James: I --

Justice Hugo L. Black: -- by opinion one way or the other?

Mr. William E. James: I say no and I think --

Justice Hugo L. Black: Is there anything in the record that shows?

Mr. William E. James: That they have fixed opinions.

No.

Justice Hugo L. Black: Is there anything that shows that they had an opinion which was of the kind that the other four had?

Mr. William E. James: No, Your Honor.

Justice Potter Stewart: Oh, how about to page 647 of the record, I'm referring now to the Ms. Hall who sat.

She'd early -- she had earlier stated at voir dire that her -- she'd had a sorority sister who had been murdered further that her sister was a policewoman and that her father was a policeman.

Mr. William E. James: Not in Ventura County.

Justice Potter Stewart: Not on those things would go to cause but they went raised interesting questions from the part of -- the possibility of our preemptory challenge obviously on the part of the defense.

And then on page 46, 47, she says, in answer to this question, now there's opinion that you formed with the respect to the guilt of Mrs. Duncan.

"Do you still have that opinion as you sit in the jury box this -- box this morning?"

"Well, yes, sir."

"And is that opinion such that it would take some evidence on the part of the defense overcome?"

"No, sir."

And then earlier what I meant to read was this, "I take it then that you form an opinion that Elizabeth Duncan was guilty of this charge.

Is that right?"

He says, "That's right."

And that's where -- that's -- that was her opinion as she came into the jury box.

Mr. William E. James: Yes, but it is our position, she did not re -- retain a fixed opinion as to the guilt and I think that it is quite clear from the interrogation by Defense Counsel that Defense Counsel did not believe that she had any fixed opinion as to the guilt and that she could not qualify as a juror who've rendered a fair and impartial where it'd be solely (Voice Overlap) --

Justice Potter Stewart: Well, (Voice Overlap) says that he had tried to challenge for cause.

Mr. William E. James: Not these jurors.

Justice Potter Stewart: These other four and it had been unsuccessful.

And based on that experience, the argument is that he was not going to -- since he knew he would be under -- had bearing, good reason to believe it'd be unsuccessful challenging for cause in this case.

He was not going to try it and just to incur the resent under juror.

Mr. William E. James: Present --

Justice Potter Stewart: And also that because his previous challenges for cause, if it disallowed, he was -- didn't have a remaining preemptory challenge for this juror or for the other two.

That's the basis of his argument.

Mr. William E. James: Of course --

Justice Potter Stewart: And there is an indication here on page 647 that is as this Ms. Hall came to the jury box quite apart from the murder of her friend and the rest of it, but as to her opinion about these defendant's guilt, she said she had it that she thought she was guilty.

Mr. William E. James: But she didn't say that she couldn't render a fair and impartial verdict according to --

Justice William J. Brennan: He didn't say positivity.

Mr. William E. James: Well, she said why a Defense Counsel because he passed her for cause.

And I think that --

Justice William J. Brennan: But --

Mr. William E. James: I don't see this argument about being afraid to challenge a juror or cause or peremptorily or at least challenge for cause because obviously, this could be made against by any defendant who by the later time, I'd say that there was on the juror -- jury an obnoxious juror but he was afraid to challenge because he might -- if he -- is challenge was disallowed, have the prejudice of that juror and --

Justice Potter Stewart: Well --

Mr. William E. James: -- possibly, he felt the juror (Voice Overlap) --

Justice Potter Stewart: Well, I understand your argument but in the -- in this particular context, the argument may have some merit to it (Voice Overlap) --

Mr. William E. James: Well, I think it was suggested earlier when counsel for Duncan, petitioner Duncan was arguing that it wouldn't been very easy to preserve in the record this challenge if it'd actually be -- if it wasn't and after thought that they had made now as to one that get rid of these jurors, they could have very well have at the bench, outside of the hearing of the prospective jurors made their record, obtained either at the bench or in chambers, their objection to these particular jurors had a ruling.

Justice John M. Harlan: Your point surely is that it affects counsel cannot play the game in both ways.

If he wants to stand on this challenge, he's got to make it clear and if he doesn't want to risk the effect of it, well that's too bad whether he loose an appeal.

Mr. William E. James: That's right.

Justice John M. Harlan: Isn't that your position?

Mr. William E. James: That's -- that's our position.

In other words, it's not an idle act to preserve a constitutional right.

And if he was going to challenge these jurors, if he felt that these particular jurors could not render fair and impartial verdicts contrary to what he put in the record here that he was satisfied in the minute that he passed them for cause.

If he felt that they could not render fair and impartial verdict, he had a duty to present that matter to the trial court and get a ruling, and he could have done it --

Justice William J. Brennan: Well, Mr. James, what -- what significance do you give to this of 673?

I notice it's captioned under renewal of motion for removal and change of venue and denial error.

But certainly, this point was made to the trial judge, have the presence of the juror, wasn't it, the middle of 673?

Mr. William E. James: How could the judge rule?

This was merely on the change of venue.

How could the judge rule on any particular juror?

There was no juror mentioned?

Was he was going to throw out the entire panel?

Justice Tom C. Clark: Whether (Voice Overlap) --

Mr. William E. James: There's no mention of Hall, there was no mention of Berstch or Horrell.

Justice Tom C. Clark: It's all directed in a motion for change.

Mr. William E. James: Change of venue.

Justice Felix Frankfurter: Mr. James, these -- these three jurors which we're talking about, it kept down for they -- for they kept on after the defense that exhausted preemptory challenges?

Mr. William E. James: As I recall the record the defense --

Justice Felix Frankfurter: Well then --

Mr. William E. James: -- had exhausted their preemptories.

Justice Felix Frankfurter: Very well.

Suppose they had to exhaust their preemptories when they should have been -- when they could have kept them in that juror should be drawn off the course.

And therefore, they had no preemptories left.

And suppose all that was wrong, suppose people should have been drawn off the course but weren't and therefore, they have --

Mr. William E. James: They should have four more preemptories.

Justice Felix Frankfurter: Therefore, they should have had four more preemptories.

Many of counsel can exercise preemptory although he couldn't -- he couldn't throw them off for cause and that right to not to take risks is also a very important right at trial, that's why people have preemptories.

Mr. William E. James: That's right.

But it's still didn't prevent this petitioner, if she was dissatisfied with these prospective jurors or jurors about to be sworn making a record before they were sworn as to her objection because he said --

Justice Felix Frankfurter: You mean, suppose he --

Mr. William E. James: Pardon?

Justice Felix Frankfurter: He couldn't -- he couldn't make a record as them again -- as because you might be right about that.

You think he should have then said, "Your Honor, if I had three more preemptories, I would exercise them against A, B, and C."

Is that -- the back of that is what you say?

Mr. William E. James: If he was going to now ascribe to the trial court the permitting of three jurors to sit, he certainly should allow the trial court an opportunity to rule one way or another and feeling that --

Justice Felix Frankfurter: Yes, but --

Mr. William E. James: -- he hardly comes before this Court with a constitutional question.

Justice Felix Frankfurter: Suppose -- suppose the counsel or conscientiously -- conscientiously believe there isn't ground of objecting this amount of cause.

Should he then make a speech to the trial judge and say, "Your Honor, this is the situation I am in.

There isn't ground for us Your Honor to discharge these jurors.

But if I had reference, I would not have that."

Mr. William E. James: We specifically pointed out the dodge in this situation, the dodge juror there and there I think there was an earlier juror that was interrogated, the trial judge was very liberal actually in allowing a challenge for cause when he didn't actually feel --

Justice Felix Frankfurter: You mean --

Mr. William E. James: -- that a challenge for cause lay and --

Justice Felix Frankfurter: You mean he should have --

Mr. William E. James: Made an effort.

Justice Felix Frankfurter: -- he should have made an appeal misericordia.He should have asked the compassionate and said, "Your Honor, I'm not agrestic but would you please" nevertheless I'm troubled about these two jurors and not to seek them.

Is that it?

Mr. William E. James: Well, he should have made --

Justice Felix Frankfurter: That's to make it sound --

Mr. William E. James: -- he should have made his objection in the trial court and not here.That's what we say.

Justice Felix Frankfurter: Well, he had no objection except the trial under which had gone against it.

Mr. William E. James: Well then he can't come before this Court and say that three jurors were permitted by the trial court to remain on with fixed opinions because they didn't have fixed opinions.

That's the sole issue of this case.

Justice Felix Frankfurter: Sufficiently fix -- sufficiently fix for his purposes so that he wouldn't have had them if he could keep them all.

But it's not sufficiently vague as a matter of cause, he should have been -- not allowed to sit.

Mr. William E. James: Well, of course it's a fairly limited question, this question number two in the Duncan case.

I think Your Honors (Voice Overlap) --

Justice Hugo L. Black: I think you should obtain really time to -- that I started out to ask you about these three jurors and I would like to say (Inaudible) find out who was the second, who was the third and where is the statement about that?

Mr. William E. James: The -- the first one in order of interrogation was Mrs. Berstch and her testimony, her interrogation appears partially on 636 and 637 of the -- I think it extends further but I have a notation 636 and 637 of the transcript.

Justice Potter Stewart: I think it goes from 629 to 640.

Mr. William E. James: I think that's correct.

Ms. Hall, that's the Hall that remained in the --

Justice Hugo L. Black: (Voice Overlap) --

Mr. William E. James: She's around 648 and Mr. Horrell, I have a notation, 668 to 6671 -- 668 to 671, and I think it extended earlier with an --

Justice Potter Stewart: (Voice Overlap) -- again to 665.

Mr. William E. James: That's correct.

Justice Hugo L. Black: That's Mr. Horrell.

Mr. William E. James: Horrell.H-O-R-R-E-L-L.

Thank you, Your Honors.

Chief Justice Earl Warren: Mr. Henson.

Argument of Burt M. Henson

Mr. Burt M. Henson: May it please the Court.

This case, I think, has to be judged on the totality of the facts.

I feel that the argument thus far may have perhaps narrowed the issues too much insofar as petitioner Moya was concerned whom I represented in the trial court a motion for change of venue was made on January 13th, early on the trial on grounds that a fair and impartial trial could not be held within Ventura County, citing many things, the fact that the defendant was of Spanish-Mexican origin, the fact that the District Attorney and associated law enforcement officers had released a great deal of information concerning the case.

Justice William J. Brennan: Now, right there --

Mr. Burt M. Henson: Yes, sir.

Justice William J. Brennan: Mr. -- where and tell us that you were going to tell us where it is that it appears that the District Attorney released a confession or confessions.

Where is that?

Mr. Burt M. Henson: I think that we can -- they go about it this way, I don't mean to avoid it but let me say this.

The District Attorney in Ventura County has an investigative stand.

He doesn't rely solely upon the sheriff's department.

And in one publication, this was all before any grand jury transcript was published.

The District Attorney, this is on December 22nd in the Los Angeles Times, said, "I was tired of waiting for somebody to do something with this case so I ordered my men to question Baldonado."

Then in another news item, where it refers to Ventura County as a Cal County, it states that Clarry -- Clarence "Clarry" Henderson DA investigators assumed the role, I'm talking about host for the press, he arranged for photographs of the murder suspects.

He provided names of the witnesses who had appeared before the grand jury.

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

Mr. Burt M. Henson: That was December 29.

Justice Felix Frankfurter: Now, was that an exhibit?

Mr. Burt M. Henson: Yes.

Justice Felix Frankfurter: What exhibit?

Mr. Burt M. Henson: That was Exhibit 27 attached to affidavit.

Justice William J. Brennan: Now, this was after the appearance before the grand jury?

Mr. Burt M. Henson: No.

If I might clarify the -- it was after the appearance before the grand jury but -- well, this article, I guess read a portion of, was describing the grand jury proceedings.

Justice William J. Brennan: Which had occurred when?

Mr. Burt M. Henson: Which had occurred on December 26th, but the grand jury transcript was not published until around December 31st.

Justice Felix Frankfurter: When you say publish, what do you mean by that?

Mr. Burt M. Henson: That is, it was transcribed by the court reporter and was available for --

Justice Felix Frankfurter: Publish means available to the public.

Mr. Burt M. Henson: That's correct.

Justice Felix Frankfurter: Alright.

Mr. Burt M. Henson: Alright now, with respect to the confessions then, December 26th, 1958 issue of Exhibit of Star Free Press with the headline, Moya admits he kidnapped nurse.

The article reads, "Moya reportedly told about the same story as Baldonado of the murder."

Gustafson, the District Attorney said, "The confession revealed the pair had driven to the apartment of Olga on November 18th and that Moya had gone to the door telling the attractive nurse that her husband Frank, from whom she was estranged, was in the car and wanted to talk to her."

Justice William J. Brennan: What paper was that?

Mr. Burt M. Henson: That was the Ventura County Star Free Press, December 22nd, Exhibit 18.

Then it goes on, "Baldonado has confessed participation in the kidnap slaying" and says, "He was hired with Moya by Mrs. Duncan according to Gustafson."

Now if you go back, this case came alight around December 15th and this -- the first major headline was lead sought in bizarre plot.

This was December 16th.

The fake annulment charge jails three nurses in this.

Thereafter, these statements were made by the District Attorney or associated law enforcement officer, that is investigators working in his office, under his personal control.

First of all, DA says man post as lawyer.

This is about Winterstein.

And in this article, Gustafson says, "I feel very strongly," Gustafson said that there might not have been any disappearance that Olga Duncan had we'd been able to move on the case in October.

The next day, December 19th, key witness gives DA valuable information.This was Star Free Press Exhibit 14.

And in this, the District Attorney says preferring to Mrs. Duncan, "She has been through enough annulment proceedings to have known that what she obtained here August 7th, was not a legal annulment."

Justice Felix Frankfurter: Now, may I ask you if you have time with Chief Justice's permission?

Were these press accounts attached as part of your affidavit asking for a change of venue?

Mr. Burt M. Henson: Yes, Your Honor.

Justice Felix Frankfurter: Did the District Attorney make any reply to that affidavit?

Mr. Burt M. Henson: The first change of venue hearing in January, he made one -- made a reply affidavit denying that he had made this one statement that Mr. James talked about.

Justice Felix Frankfurter: He said nothing about these others?

Mr. Burt M. Henson: No.

Justice Felix Frankfurter: But they were part of the -- they were a foundation of your motion?

Mr. Burt M. Henson: That's right.

Justice Felix Frankfurter: I think you specifically claimed that the -- the marshaling of these various successive statements attributing statements to him.

Well but in your view, affected the opinion of the feelings or the thoughts of the capacities of prospective jurors.

Mr. Burt M. Henson: Yes.

Justice Felix Frankfurter: And he made no reply to these affidavits attributing to him the statements you quoted.

Is that right?

Mr. Burt M. Henson: Others made a denial of the statement.

Justice Felix Frankfurter: Yes.

I understand that other than that.

Is that correct?

Mr. Burt M. Henson: Yes.

Justice Felix Frankfurter: But this applied only to Moya, does it?

Mr. Burt M. Henson: Well, as Mr. --

Justice Felix Frankfurter: I know you're in a difficult position but --

Mr. Burt M. Henson: Yes.

Justice Felix Frankfurter: This is in your -- in your motion.

Mr. Burt M. Henson: In my motion.

Of course Moya made two motions.

One motion in January, another motion for change of venue in April and in the motion for change of venue at April, there was no counter affidavit, no counter motion by the District Attorney.

Justice Felix Frankfurter: But -- but this is very important to me.

But to this earlier motion in January, in which -- to which you are next I take it all these newspapers or reporters' data or reproductions of them.

Mr. Burt M. Henson: Yes.

Justice Felix Frankfurter: Making these explicit attributions either to the District Attorney or members of his own staff, not somebody else's staff.

There was no denial except as to the one statement.

Is that right?

Mr. Burt M. Henson: Yes.

Chief Justice Earl Warren: Where -- where Mr. Henson did you specifically charged the District Attorney with having -- having done anything in your -- in your motion or in your affidavit?

Mr. Burt M. Henson: Yes.

We can -- page 16 --

Chief Justice Earl Warren: 16 of Moya's --

Mr. Burt M. Henson: Of Moya's, yes.

Chief Justice Earl Warren: 16.

Mr. Burt M. Henson: There -- there were other affidavits including a justice court judge, three attorneys, and two ministers in addition to mind verifying prejudice.

Chief Justice Earl Warren: Yes, but I want -- I just want where you -- what you specifically charge the District Attorney with.

Mr. Burt M. Henson: Yes, sir.

On the bottom of page 16, a client believes and they're on alleges that there is widespread and deep-seated prejudice against the defendants and the above and titled case.

Client believes and thereon alleges that a primary reason for the existing prejudice, this is the fact that certain public officials made certain public statements concerning above and titled case.

And going on some high ranking public officials publicly expressed their opinions concerning the case, other public officers released information to the press and other public media concerning the investigation.

Many of such statements were made before any legal tribunal had heard any evidence.

Many of such statements divulge information which would not have in any way constituted legal evidence in a trial.

The statements of opinion published would probably have been classified as prejudicial misconduct as stated in a court law, then I go on and recite Roy Gustafson, the duly elected acting District Attorney served in that capacity for approximately eight years.

Then --

Chief Justice Earl Warren: Well, do you -- you don't -- with that paragraph, you don't necessarily charge him, do you?

If you say there are some high officials but do you charge him specifically with doing anything?

Mr. Burt M. Henson: Yes.

Your Honor, following paragraph and of December 22nd, 1958, a copy of which the test of Roy Gustafson cause to be published a statement which contained among other matters that follow in that statement.

Chief Justice Earl Warren: That he admitted.

Mr. Burt M. Henson: That was admitted.

Chief Justice Earl Warren: That he admitted.

Now, what else do you charge him with that he didn't admit?

Mr. Burt M. Henson: A number of -- that is many of the individual statements were not set forth in the affidavit but were contained in the existence which I was about to recite to the Court but I'm not able to do so by that part.

Chief Justice Earl Warren: Well, there isn't there a difference in the -- in which you're expecting to respond to depending upon whether you charge him with something in an affidavit or whether -- or whether you just file a group of newspapers?

Mr. Burt M. Henson: Yes.

Chief Justice Earl Warren: Did you file the affidavit?

I -- I take it that -- that he would be -- he should respond to it, so it would make an issue on your motion for change of venue.

But if you -- if you just put in a lot of newspapers, would -- would he have to deny everything that's in the newspapers?

Mr. Burt M. Henson: No, I don't believe so.

I would like to just go on here if I might --

Chief Justice Earl Warren: Yes, you may.

Mr. Burt M. Henson: -- say anytime preparing an affidavit without making it too long, but we did cite some of the things such as he did state in the -- in his interview with Marvin Sasona, the describing reasons why a death penalty should be applied here.

He had said that Moya had been using marijuana when he was arrested, which was false and which he did deny --

Chief Justice Earl Warren: He denied that, didn't he?

Mr. Burt M. Henson: He denied making that statement.

Chief Justice Earl Warren: Yes.

Mr. Burt M. Henson: Then the statement now, at further on down page 19 headline, "Heart attack sends Mrs. Duncan to hospital."

District Attorney Roy Gustafson this morning said that Mrs. Duncan's illness may have been real but added that, this is a trick used by many persons in jail in a serious charge.

It is known as suspects fake illnesses to get into a hospital where there's a chance to escape.

Further on down, Santa Barbara Police Lieutenant Charles Thompson, the execution of the $6000 slaying was called by Santa Barbara Police Lieutenant Charles Thompson, the most cold-blooded crime I've ever heard.

And then I perhaps don't specifically bring out other articles.

There were some 35 exhibits attached to the affidavit.

Justice Hugo L. Black: Well, is that the original motion for change of venue?

Mr. Burt M. Henson: Yes, in January.

Justice Hugo L. Black: Was it also for any purpose except that, as to the change of venue?

Mr. Burt M. Henson: No.

It was offered on that specific purpose for change of venue to support the affidavit.

Then of course the affidavit also points out that the same things that were contained this page 22, the above entitled case has also been discussed and commented upon by practically every radio and television newscaster in the Los Angeles Ventura County area.

The broadcast which our client has heard was in substance the same as that reported in newspapers attached hereto its specifics.

Chief Justice Earl Warren: Well Mr. Henson, on the 10th day of January, when that affidavit was -- was made, every fact that you complained of in there that has not been denied by the District Attorney, was made known to you and to the public and to the press of course, through the -- the regular records in this case, were they not?

Mr. Burt M. Henson: No, Your Honor.

There were many, many things.

Chief Justice Earl Warren: Alright.

Now what things that -- what things do you charge him with that -- that were not -- that did not stem from the -- in your affidavit?

What -- what things do you change him with that were not in the testimony of the grand jury before the grand jury?

Mr. Burt M. Henson: For example, the testimony before the grand jury insofar as Moya was concerned didn't say anything about his prior criminal record and that was fully brought out by the District Attorney's statements.

Chief Justice Earl Warren: Now, where do you charge him specifically with that?

Mr. Burt M. Henson: I -- I didn't charge him specifically.

Chief Justice Earl Warren: Well then how did you know he gave -- he gave it out?

That's a matter of common knowledge that --

Mr. Burt M. Henson: Yes.

Chief Justice Earl Warren: -- that newspapers get from police records and what a -- what a man's prior record was and if you're charging the District Attorney, I would think you would -- I -- I would think you would have charged him.

Mr. Burt M. Henson: Your Honor, the motion for change of venue was not direct solely at the District Attorney.

It was on the broad general ground that petitioner could not have a fair and impartial trial in Ventura County at which the --

Chief Justice Earl Warren: Well, if -- if that's the purpose of it, is one thing, but if you seek to -- to pass all of these things on -- on the District Attorney, then it seems to me that you have to charge him specifically with him with those things before you can say he has failed to deny them.

That's all I'm -- I'm concerned about now.

Mr. Burt M. Henson: Yes.

Chief Justice Earl Warren: If you -- if you just want to take to thing in its totality, and say these things whether they came from the District Attorney, whether they came from a sheriff or a police officer, or anybody else, has applied to this -- has applied to this petitioner deprives him of a -- of a fair trial.

I can unders -- I can understand that, but this thing is sort of congealed around the District Attorney and if -- if he is to be charged with these things, it seems to me that he should -- and -- and in addition of being charged, if he's to be charged with not answering when he should have, it seems to me that we should be able to find those things in the affidavits supporting you -- your motion for change of venue.

Mr. Burt M. Henson: No, my position was the totality of facts.

Chief Justice Earl Warren: Yes.

Very well.

Justice Felix Frankfurter: But you don't --

Mr. Burt M. Henson: Including if I might (Voice Overlap) --

Justice Felix Frankfurter: -- but you don't disavow the responsibility of the District Attorney in the setting of the fact that it's well-known the district attorneys do talk to the press that there were charges in the newspapers that you filed saying that the District Attorney did this and he didn't answer that.Is that correct?

Mr. Burt M. Henson: Yes.

Justice Hugo L. Black: I don't quite get the complete importance of the question you raised of the -- who did it.

It seems to me like if you were to try the right to -- if you were forced to try a case in a county where you should be because of the -- that feeling in that county, the question is whether you -- whether they should give you a change of venue.

And what difference would it make who said it except to the question (Inaudible)

Mr. Burt M. Henson: Your Honor, I think there is a practical difference here.

One being that material purporting to him an aid from District Attorney would be more likely if he believe and --

Justice Hugo L. Black: Do you think that -- that was -- give you a greater -- greater reason to get your change of venue?

Mr. Burt M. Henson: Yes, plus the fact that he could release what information he wanted to.

For example, he released the -- the confessions of Moya and Baldonado but Mrs. Duncan had denied it and that wasn't released to the press.

And then I think there's something a lot deeper too and that is due process, as I understand it, means a denial of rights and whether the rights are denied by a trial judge in a trial or by other state officers such as the District Attorney or police officers that it makes no difference by which particular agency, due process is denied.

District Attorney, being a state officer, could clearly violate the person's right to due process such as in the cases of using purged testimony, willfully suppressing evidence favorable to the defendant.

Justice Hugo L. Black: But that's why you raised the issues.

Mr. Burt M. Henson: That's correct.

Yes.

That's raised in our briefs.

Justice Hugo L. Black: Well, have you filed the brief you raised with the State?

Was your argument before the State, if you had asked the Court to grant a mistrial if a new trial is something on the ground of the District Attorney of that behavior?

Mr. Burt M. Henson: No, Your Honor.

Justice Hugo L. Black: Was that ever -- was that ever done?

Mr. Burt M. Henson: Oh, yes.

There were some errors in the trial that we claim were reversible error.

But there was this broad issue of venue and one of our salient points was that the trial judge should have granted change of venue by reason of the totality of facts that we've been talking about today.

Chief Justice Earl Warren: Mr. Henson, are -- are any of the counsel who were -- who were now representing any of these petitioners appointed by any of the courts below?

Mr. Burt M. Henson: Yes, Your Honor.

I was appointed.

They don't have a public defender's office in Ventura County.

I was appointed by the trial judge.

Chief Justice Earl Warren: Yes.

Well, Mr. Henson on behalf of the Court, I should like to express our appreciation to you for representing this -- this defendant.

We are always comforted when lawyers are willing to give their time in -- for public cause of that kind before entitled to representation.

And -- and we always feel good about it when somebody is willing to do it.

So, I address my appreciation to you for having performed that public service --

Mr. Burt M. Henson: Thank you.

Chief Justice Earl Warren: -- to consider.

And Mr. Attorney General, of course, we -- we appreciate the -- the manner in which you have represented the interest of your State.

Argument of Stanley Mosk

Mr. Stanley Mosk: Thank you, Your Honor.