IRVIN v. DOWD

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Argument of Theodore Lockyear, Jr.

Chief Justice Earl Warren: Number 41, Leslie Irvin, Petitioner, versus A. F. Dowd, Warden.

Mr. Lockyear.

Mr. Theodore Lockyear, Jr.: Mr. Chief Justice, Associate Justices of this honorable court.

During the months of December and March 1954 and 1955 in the area around Vanderburgh County, Indiana which is in the southern part of the State of Indiana and near the City of Evansville, there were approximately six murders committed.

Over the period of time from December to April of 1958 -- 1955, there was a widespread of newspaper publicity concerning the error of the police to capture the person who had committed these murders and also widespread public feeling as to people who were fearful of their own lives possibly.

On this -- on April the 8th, 1955, the defendant was arrested.

Later in April of 1955, he was arraigned and in May of 1955, a change of venue was taken from Vanderburgh County with the County seek an evidence though to Princeton, Indiana and the County of Gibson, Indiana, Gibson County, Indiana which is approximately 27 road miles from Evansville.

In October of 1959, prior to the trial of the cause, we found a motion for a change of venue and incurred in the motion, many of the newspaper clippings, statements that had been made by a police requested that the cause be which was then set for trial on November the 14th, 1955, the venue to a more convenient county.

From the original granting of the change of venue, the trial judge acted without hearing, without conducting a hearing under a statute in the State of Indiana, which directs the Court upon a motion for change of venue being filed to send that cause to the most convenient county.

No hearing was had as to what was the most convenient county under the circumstances.

Justice John M. Harlan: Did you suggest that or did the defendant suggest the name of the county to which it should be granted?

Mr. Theodore Lockyear, Jr.: We were not counsel at that time, Your Honor.

It's my understanding that that was done in chambers and I actually don't --

Justice John M. Harlan: The record doesn't --

Mr. Theodore Lockyear, Jr.: The record doesn’t show and I don't think anybody actually knows what took place.

The judge did testify at one time that he sent it there because there was an able judge and because there was a good road up there and it was near to Evansville.

The trial was actually commenced on November the 14th of 19 --

Justice Potter Stewart: Gibson's contiguous to the county --

Mr. Theodore Lockyear, Jr.: It adjoins, it adjoins, Yes.

Justice Potter Stewart: There's nothing in the statute to raise there that required -- that limits the change of venue to (Inaudible)

Mr. Theodore Lockyear, Jr.: In our civil case at law as to civil cases, the law says that -- and this is unusual as I understand it in Indiana.

We make an affidavit that the county is biased and prejudiced, it doesn't even have to be an affidavit.

Now under the new Supreme Court rule and it goes to the adjoining county.

The language of the criminal change of venue which applies to murder merely says to the most convenient county.

Justice William J. Brennan: To the most convenient?

Mr. Theodore Lockyear, Jr.: To the most convenient and that's all the direction, there are no cases which have interpreted most convenient.

No Indiana cases which have ever interpreted that.

Justice Potter Stewart: And this one was in fact to the adjoining or an adjoining.

Mr. Theodore Lockyear, Jr.: Yes sir.

The jury selection which comprises the largest portion of the record which is on file with this Court and which was found in the habeas corpus hearing to apprise approximately three and a half weeks of a five-week trial.

The defendant was tried, jury returned a verdict of guilty and sentenced him to death.

We appealed this cause to the Indiana Supreme Court thereafter it sought certiorari to this Court, denied without prejudice to our rights to file a writ of habeas corpus in the state court, in the federal court.

We then sought, filed a petition for writ of habeas corpus in the United States District Court from the Northern District of Indiana, issued the writ conducted a hearing, this record along with the rest of the transcript was introduced into record into evidence by stipulations between the Attorney General and ourselves.

The Court dissolved the writ; appeal was taken to the U.S. Court of Appeals for the Seventh Circuit.

The Court in a 2:1 opinion affirmed the decision of the District Court.

Certiorari was granted by this Court in January, a year ago, this cause was heard.

This Court remanded the cause to the Court of Appeals for hearing on the merits.

The directions, they sent it back to the District Court, if the Court felt necessary.

The Court of Appeals in November, last year, on one day issued an order retaining jurisdiction on the next day, issued an order affirming the action of Judge Parkinson in dissolving the writ of habeas corpus.

The Court was 2:1 with Judge Duffy dissenting in this time.

Judge Duffy dissented on the ground that he thought the petitioner here has been denied a fair trial for two reasons.

First, that the juror, jury has constituted was not an impartial to jury within the meaning of Fourteenth Amendment Constitution of the United States, and secondly, because of the actions of the prosecuting attorney in participating as a interrogator of the jury in voir dire, interrogating witnesses during the trial, thereafter testifying as a witness, and then subsequently being permitted in to comment upon his own testimony, in the oral argument to the jury.

The Court of Appeals heard no additional argument, after this Court sent it back.

In the meantime, Judge Flanagan who had been a member of the original panel of three that heard this man who died, he was replaced by Judge Cassell on the Court and also on this particular panel.

Judge Cassell never heard the argument on this case.

He merely rendered his decision along with Judge Schnackenberg from the evidence as presented in the briefs.

Justice John M. Harlan: Did you ask for argument?

Mr. Theodore Lockyear, Jr.: We didn't have time.

It was -- as I say, the Court on one day said, "We're taking jurisdiction and the next day rendered their decision."

Now we found a petition for rehearing and asked for oral argument, and that was denied.

Justice William O. Douglas: That order of taking jurisdiction, it was sent (Inaudible) reversed to the district judge, and that (Inaudible)?

Mr. Theodore Lockyear, Jr.: Yes sir and they -- from May, when this Court rendered its decision until November, there was nothing done and then one day they rendered a decision that they had retained – decided to retain jurisdiction and the next day they rendered an opinion affirming 2:1.

That is Judge Parkinson's action.

But they heard no additional argument and as I say we found petition for rehearing and asked for oral argument and that was denied.

Justice William J. Brennan: What about pleas, did you submit briefs?

Mr. Theodore Lockyear, Jr.: No additional briefs were filed.

Justice William J. Brennan: Did you ask for permission to submit it?

Mr. Theodore Lockyear, Jr.: No, sir.

We found on our petition for rehearing briefs with that.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Theodore Lockyear, Jr.

Mr. Theodore Lockyear, Jr.: -- dated October the 21st, 1959 is found on page 13 (Inaudible) of the record.

The opinion of the Court is dated October the 23rd, 1959 and commences on page 39.

The order denying the petition for rehearing and oral argument, the acted portion is on the top of page 55 where the Court state -- further argued by the Court that counts request for oral argument and the said petition for rehearing being the same is hereby denied.

Justice Potter Stewart: It's at the latter page, page 55?

Mr. Theodore Lockyear, Jr.: Page 55.

Yes, sir.

Court will recall that in the previous argument in this case in 1959, we presented to the Court the fact that the prosecuting attorney had interrogated the jurors and participated questioning witnesses, had testified as a witness himself and that he had been permitted to come in upon his own testimony in the argument to the jury.

Now --

Unknown Speaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: He said, "I told you myself of what he told to me."

That -- that is a part of the record.

He has the same, Mr. Weaver, who in -- on page 75 of the transcript, his picture is shown here along with the Chief of Detectives, says Prosecutor Paul Weaver looks on his Detective --

Chief Justice Earl Warren: 75, I think.

Mr. Theodore Lockyear, Jr.: That's page 75.

That is not in the printed --

Chief Justice Earl Warren: No, that's --

Mr. Theodore Lockyear, Jr.: -- there is no --

Chief Justice Earl Warren: -- that's the (Inaudible)

Mr. Theodore Lockyear, Jr.: This is the only copy of it.

Chief Justice Earl Warren: Yes.

Oh, yes -- yes.

Yes.

Mr. Theodore Lockyear, Jr.: Prosecutor Paul Weaver looks on his Detective Chief Dan Hudson, distributes his copies of a police statement, the news granted following the completion of question in a less error.

Statement said enough evidence had been obtained to file a murder charge of the slay of Whitney -- Whitney Wesley Kerr.

Then a grand jury would be called and added the police -- believed Irvin committed area murders apparently referring to all those in the last six months except Andrew Regan and the double murder and charge of the (Inaudible).

Then on Exhibit 75, 76, 77, 78 pages are additional articles that appeared upon those pages and then at record page 79, we have the mass (Inaudible) list of the Irvin bear details of six areas playing as the local police.

Confessions in six days found and the details of -- of these -- each of the slayings, the Duncan slaying, the Mary Holland slaying, the Wesley Kerr slaying for which he was charged are then purported to be set out as released by the police.

In the statement referred to -- apparently referred to with the picture with Mr. Weaver and Mr. Hudson because these quotes are taken from Chief Dan Hudson stating what supposedly was told to him by --

Justice Felix Frankfurter: Would you be good enough to hand that to the clerk?

Mr. Theodore Lockyear, Jr.: Yes, sir.

Now, this -- in this page, it become loose from the transfer --

Justice Felix Frankfurter: I will --

Mr. Theodore Lockyear, Jr.: -- but it's actually page 79.

Then on -- in the press, that was the Kerr in the press of the 15th, the day after the picture of Mr. Weaver nor Irvin deal, we ask death to search Weaver, this is Mr. Weaver, the prosecuting attorney.

And he tells what he -- Prosecutor Weaver said today, he will demand the death penalty, went in it.

Leslie Irvin comes to trial.

He won't be a party to any deal for less punishment as the caption of that page.

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: Your Honor, it's our position that if this prosecutor does this, releases this information and creates the very condition which later becomes much more important when you try to select a jury in this case, I -- I don't think it's any of the paper's business whether he asked for the death penalty or doesn't ask for the death penalty.

Justice Felix Frankfurter: In your speech, the determination of the sentence, does the jury recommend whether it should be death penalty?

Mr. Theodore Lockyear, Jr.: It's all done in one trial, yes, sir.

Justice Felix Frankfurter: Yes, but does the jury --

Mr. Theodore Lockyear, Jr.: Jury --

Justice Felix Frankfurter: -- must have make an affirmative recommendation --

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Felix Frankfurter: -- for or must have make a recommendation which then litigate to death sentence.

Mr. Theodore Lockyear, Jr.: No, they fixed the penalty.

Justice Felix Frankfurter: They fixed the penalty.

Mr. Theodore Lockyear, Jr.: They fixed the penalty.

Justice Felix Frankfurter: And what can they fix to that?

Mr. Theodore Lockyear, Jr.: Life or death.

Justice Felix Frankfurter: Life or death.

Mr. Theodore Lockyear, Jr.: They have two choices or not guilty.

Are they confining guilty of lesser inclusion of offense in this particular case, they couldn't, under the indictment.

Unknown Speaker: (Inaudible)

Justice Felix Frankfurter: They couldn't.

Unknown Speaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: No, sir.

Life or death.

Now, we have also included in the -- our brief, the radio statement made by Mr. Weaver in connection with the radio announcer Ralph Smith.

Justice Felix Frankfurter: May I interrupt you?

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Felix Frankfurter: You may have solicited so I didn't hear it that Irvin authorized Chief Hughes to release his version.

He's on the --

Mr. Theodore Lockyear, Jr.: That's what the paper says.

Justice Felix Frankfurter: What?

Mr. Theodore Lockyear, Jr.: That's what the paper says.

There's absolutely no record in this case of any time that that was --

Justice Felix Frankfurter: No record.

The paper which printed it says this is on -- with the permission of -- of the (Inaudible)

Mr. Theodore Lockyear, Jr.: Yes, sir.

Yes, sir.

But there is no evidence, absolutely no evidence that that was done from newspaper or anybody else.

Justice Felix Frankfurter: Suppose -- suppose it was true, how would that affect your argument that this is --

Mr. Theodore Lockyear, Jr.: If he had created --

Justice Felix Frankfurter: -- an unborn interference.

Mr. Theodore Lockyear, Jr.: -- if he had created the condition, I don't see where he could complain.

Justice Felix Frankfurter: Well then, you must -- then we must assume it isn't true that he authorized this.

Mr. Theodore Lockyear, Jr.: I think in the absence of evidence to the contrary, yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: Well, I don't think if we're to try this case on what the newspaper said.

We're -- we're not going to take as true the things that are set out in this paper.

That would certainly be hearsay.

What those papers show is a condition that existed at the time of the trial and as the result of -- of the reports that were given by the prosecutor and by the Chief.

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: Well, what do we know -- what does authorize means, what was done and there's nothing in the record that we know about.

This was all before we were in the case.

Justice Felix Frankfurter: Was -- were these -- these newspaper accounts in the record?

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Felix Frankfurter: Well --

Mr. Theodore Lockyear, Jr.: Never denied by the --

Justice Felix Frankfurter: Yes.

But if the newspaper account was in the record, that carries with it the statements that this was with Irvin's permission.

Mr. Theodore Lockyear, Jr.: I don't think that we take the truth -- if we take the --

Justice Felix Frankfurter: I mean we can take part of the paper and say, "This is terrible."

And say we assume he didn't authorize it.

Mr. Theodore Lockyear, Jr.: By the -- by the same token we can't take as true the fact that he has confessed by virtue of this newspaper nor --

Justice Felix Frankfurter: That's a different question.

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: We put the newspaper in as -- as exhibits.

Yes.

Justice Felix Frankfurter: Well then, don't you take the whole -- and now aren't you chargeable with the whole document?

How could we --

Mr. Theodore Lockyear, Jr.: I don't think that we're chargeable with the truth of any facts set in that newspaper.

Justice Felix Frankfurter: Well, but you're complaining prejudice because of this exhibit.

Mr. Theodore Lockyear, Jr.: That's right.

Justice Felix Frankfurter: Therefore, we look at the exhibits.

And we look at the exhibit and find that it says that Irvin gave permission for this release.

Mr. Theodore Lockyear, Jr.: But we can't cut that part out of the paper.

We have to --

Justice Felix Frankfurter: That's what I'm suggesting --

Mr. Theodore Lockyear, Jr.: -- include the whole --

Justice Felix Frankfurter: -- that you can't cut it out.

Mr. Theodore Lockyear, Jr.: That's right.

We can't cut it out nor can we take as true the facts -- the paper says he confessed.

Now, do we take that as true too?

Does this Court take as a fact that this man has confessed to seek murder by virtue of what this paper says?

Can we take the result of what they say as to other -- other crimes?

Justice Felix Frankfurter: Those are all different issues.

You are trying to challenge the fairness of the trial because of the exhibits you put in.

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Felix Frankfurter: And the exhibit on its face showed what was -- what you complained of was done with the consent and permission of the defendant.

Now, it wasn't too difficult for a counsel to have said -- who have said, "We challenge that part of the statement.

We can't challenge the statements that it was printed because there it is."

But that (Inaudible) profit, real evidence, but you could easily -- easily could have said, "We should like to state that is not true.

Mr. Theodore Lockyear, Jr.: Then we would begin into a comfort with the newspaper and the collateral issues which is true and which isn't true.

The important thing is what evidence is to be presented in the trial of this man.

Justice Felix Frankfurter: You've just indicated that if he gave permission for disseminating this -- embarrassing stuff, things that I personally greatly deprecate, then -- then we can assume that he didn't get permission.

Mr. Theodore Lockyear, Jr.: A different --

Justice Felix Frankfurter: I don't think we can go to the point that isn't presumptively, everything in newspaper is false, can we.

Mr. Theodore Lockyear, Jr.: Nor can we go to the opposite presumption that everything in newspaper is true.

Justice Felix Frankfurter: We can -- we can say that what you're complaining of doesn't bear out your complaint.

Mr. Theodore Lockyear, Jr.: Here is the morning paper of April the 14th, 1955, six murders solved.

There is nothing in that paper that says that he authorized the release of all that information.

Justice Felix Frankfurter: Well, is that attributed to the Police Chief?

Mr. Theodore Lockyear, Jr.: Yes, sir.

Same --

Justice Felix Frankfurter: Well, that's a different story.

I'm addressing myself to the exhibit which Justice Black happens to have understand.

What's the name of the newspaper?

Justice Hugo L. Black: Evansville Courier.

Mr. Theodore Lockyear, Jr.: That's Evansville Courier, yes.

Justice Hugo L. Black: (Inaudible)

Mr. Theodore Lockyear, Jr.: No, this -- this is the courier of the next day.

Yes, sir.

Justice Hugo L. Black: Different issue.

Mr. Theodore Lockyear, Jr.: Different issue.

Yes.

Justice Felix Frankfurter: How many days in a -- well, for how many days was that kind of front page publicity given to the crime with which he was charged plus other crimes?

How many such issues -- how many times did the -- did men and women of this town, Evansville open their papers and find out on the front page?

Mr. Theodore Lockyear, Jr.: That much, a full page for approximately a week.

Justice Felix Frankfurter: Day after day?

Mr. Theodore Lockyear, Jr.: Day after day.

Justice Felix Frankfurter: And that means he has --

Mr. Theodore Lockyear, Jr.: And it -- and it's still every time that there's something done in court, it makes a front page as he is the confessed killer of six persons.

Justice Felix Frankfurter: Not merely as to the so-called confession but other matters.

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Felix Frankfurter: Now, where there other matters that the Chief of Police released to the press as to which there was no attribution of his permission?

Mr. Theodore Lockyear, Jr.: Well, in -- he -- he released the evidence of psychiatric examination.

He -- he released the evidence when he says there's the other burglary.

Justice Felix Frankfurter: You mean -- you mean matters that weren't -- that did not appear in court and pursuits on them couldn't have appeared in court.

Mr. Theodore Lockyear, Jr.: That's right.

Its previous record, that the fact that he had been on parole.

There was evidence here as to a wallet.

Where they've got the wallet, where the wallet had been taken from.

Justice Felix Frankfurter: And does the -- do those printings say that the Chief of Police gave for the vehicle of communication?

Mr. Theodore Lockyear, Jr.: They quote -- they quote the Chief of Police, are -- are the Chief of Detective.

Justice Felix Frankfurter: Yes.

Mr. Theodore Lockyear, Jr.: Yes, sir, and -- and Mr. Weaver.

Justice Felix Frankfurter: The prosecutor.

Mr. Theodore Lockyear, Jr.: Yes.

Sure he gets --

Justice Felix Frankfurter: What do they called him for?

What do they called him for?

What he was going to prove?

Mr. Theodore Lockyear, Jr.: Things such as I'm -- what was stated to him.

He is present when the statements are being made to the -- to the newspapers.

Here's a picture of a gun, 32 caliber, believed used by Irvin checked.

That's on page 85 of the record.

Justice Felix Frankfurter: Mr. Lockyear, does your brief sets forth, hereby quoting by reference, statements in newspapers in Evansville or elsewhere from the vicinity setting forth communications made by the police authorities and or the prosecutors manners that were not, and from point of view of the law, couldn't have been introduced into evidence?

Mr. Theodore Lockyear, Jr.: No, sir.

No, sir.

Justice Felix Frankfurter: Could you do that?

Could that be done?

Mr. Theodore Lockyear, Jr.: Yes, sir, we could -- we could certainly prepare that.

Justice Felix Frankfurter: Chief Justice?

Mr. Theodore Lockyear, Jr.: Except that we would have to stay over a day to pick those --

Chief Justice Earl Warren: Well,

Mr. Theodore Lockyear, Jr.: -- items out.

Chief Justice Earl Warren: Could you do that for --

Mr. Theodore Lockyear, Jr.: Yes, sir.

Chief Justice Earl Warren: -- us please?

Mr. Theodore Lockyear, Jr.: Yes, sir.

Chief Justice Earl Warren: Of course, you'd served --

Mr. Theodore Lockyear, Jr.: We -- we set out --

Chief Justice Earl Warren: -- (Voice Overlap) among counsel and he could -- he could respond if he desires to do so.

Mr. Theodore Lockyear, Jr.: On page 103, we set out some of the things --

Justice Felix Frankfurter: Well, if you set it out --

Mr. Theodore Lockyear, Jr.: -- but not in detail.

Justice Felix Frankfurter: -- if you set it out, you set it out but that you get the -- the precise details?

Mr. Theodore Lockyear, Jr.: Not all for the language, no, sir.

Justice Felix Frankfurter: The -- the --

Unknown Speaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: Yes, sir, that's all we have.

We don't have the details that are set out.

Justice Felix Frankfurter: But what the -- indicating whether it's front page, the -- the days, the specific days and specific papers, the specific things that the Chief -- that the police authorities or the prosecuting authorities are both together gave to the press matters which were not subsequently or could not have been as a matter of law introduced to this trial.

Mr. Theodore Lockyear, Jr.: Of course that would be our argument but we could (Inaudible) --

Justice Felix Frankfurter: Oh, yes, yes.

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Felix Frankfurter: That would be your argument.

Could you do that?

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Tom C. Clark: (Inaudible)

Mr. Theodore Lockyear, Jr.: No, sir.

It --

Justice Hugo L. Black: It appeared this was April 15th.

Mr. Theodore Lockyear, Jr.: There were articles prior to that.

That's the first day that the --

Justice Tom C. Clark: Is that the first one?

Mr. Theodore Lockyear, Jr.: 14th is -- this is the first and 15th is the one Judge Black has, I believe.

Justice Tom C. Clark: The 14th (Inaudible)

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Tom C. Clark: (Inaudible)

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Tom C. Clark: Then the 15th is (Inaudible)

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Tom C. Clark: (Inaudible)

Mr. Theodore Lockyear, Jr.: Judge Frankfurter read that.

And I know -- I don't know exactly which is it.

Justice Tom C. Clark: (Inaudible)

Justice Felix Frankfurter: What is the population of Evansville?

Mr. Theodore Lockyear, Jr.: Area about 150,000 -- 60,000.

Justice Felix Frankfurter: The area.

Mr. Theodore Lockyear, Jr.: Yes, sir.

This was tried in an area -- I think I -- I stated previously that it's approximately 30,000.

I don't think it's actually that big.

Princeton, Indiana is just not -- maybe an area of 10,000 to 15,000 actually.

It's not quite as large as I thought it was.

Justice Hugo L. Black: How far is that from Henderson, Kentucky?

Mr. Theodore Lockyear, Jr.: Right across the river.

Evansville is right across the river from Henderson, Kentucky, 8 miles from Henderson, Kentucky which would make Princeton approximately 35 miles.

There -- the three are on Highway 41 would make a straight line.

Justice Tom C. Clark: Where is the trial?

Mr. Theodore Lockyear, Jr.: In Princeton which would be approximately 35 miles from Henderson, 27 miles north of -- of Evansville.

Justice Tom C. Clark: (Inaudible)

Mr. Theodore Lockyear, Jr.: To approximately 95% of the homes up there.

Newspaper or the Evansville press which are also included in our exhibits here.

Justice Tom C. Clark: (Inaudible)

Mr. Theodore Lockyear, Jr.: Same printing company, they -- they disown that -- the same management.

The Court will recall that Mr. Weaver again appeared in this Court and it's suggesting at -- upon offer of Mr. Givan.

He offered to let Mr. Weaver answer any questions that might -- this Court might have.

And we think that this violates Canon 19, the two judges in the majority of the Court of Appeals concede that it is a violation of the Canons of Ethics.

Counsel in his brief says that this conduct on the part of Mr. Weaver, of Paul Weaver, that's page 25 of his brief, is contrary to Canon 19 and the Canon for Professional Ethics.

There is no showing that in anyway violates petitioner's right to due process of law.

Now, we don't have an IBM machine or a UNIVAC machine that can say that this statement violated -- influences jury to -- to this extent.

We don't have the answers to that question but we think that that conduct is so offensive.

And the fact that a man who was a witness to this trial permit to argue and then would come before this Court also prepared to argue in the case if requested to do so is so violative of due process.

It required to this cause to be reversed on that ground alone.

Justice John M. Harlan: Can you pinpoint the page in the typewritten transcript where the District Attorney Mr. Weaver has -- has mentioned to a grand jury (Inaudible)?

Mr. Theodore Lockyear, Jr.: Transcript page 47, 73.

Now, the Court -- the Court --

Justice William O. Douglas: Is that where -- is that where he testified?

Mr. Theodore Lockyear, Jr.: No.

Did -- did you ask --

Justice John M. Harlan: Well, I'd like that too, Mr. Justice Douglas' (Inaudible)

That's where he summed up -- well, if you can get the --

Mr. Theodore Lockyear, Jr.: I'll find it.

Yes, sir.

And we asked that that be reported, that his oral argument be reported and the Court refused to let us prepare the heavy transcript of that argument.

Now --

Justice Charles E. Whittaker: It was not taken stenographically.

Mr. Theodore Lockyear, Jr.: It was not taken stenographically.

That's right.

Justice Charles E. Whittaker: It was not.

Mr. Theodore Lockyear, Jr.: No, It was not.

Justice Charles E. Whittaker: Then what's the question --

Justice John M. Harlan: It wasn't.

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: Alright.

Mr. -- we prepared a special bill of exceptions with affidavits by Mr. Lopp and myself.

Justice Charles E. Whittaker: Bystander statements.

Mr. Theodore Lockyear, Jr.: Of ourselves -- no, we made the statements ourselves as to what he had argued while during the course of the argument.

Justice Charles E. Whittaker: Well, that's what I call a bystander's exception.

Mr. Theodore Lockyear, Jr.: That's right.

And the Court certified then as a bill of exception in that record.

It was introduced and that was done in the presence of Mr. Weaver and done in the presence of Mr. Sandusky (ph) the prosecuting attorney.

Justice William O. Douglas: What did the Court of Appeals say about that court?

Mr. Theodore Lockyear, Jr.: The Court of Appeals conceded that it was a serious misconduct on the part of the attorney.

It's found on page 50 -- 51 of the transcript, a form where the ethics of Mr. Weaver's conduct is directly brought and issued by the State of Indiana.

It is apparent that a charge of unethical conduct on the foregoing facts would be serious.

However in this case, we cannot adjudicate a question of that.

Certainly, the testimony he gave was relevant to the case on trial and he was a competent witness.

As a factual matter, the defense offered near evidence to contradict Weaver's statement then defense went to see Mr. Weaver.

Therefore, in view of all these circumstance, it is entirely a manner of surmise whether Weaver's conduct had a harmful effect upon the defendant in the minds of the jury.

It's more reasonable to conclude that such conduct would ran --

Justice Charles E. Whittaker: What page are you reading from?

Mr. Theodore Lockyear, Jr.: This is opinion of Judge Schnackenberg.

Justice Felix Frankfurter: Page 50.

Mr. Theodore Lockyear, Jr.: Page 50 and 51.

Justice Hugo L. Black: 50.

I just look at 51 this time.

Mr. Theodore Lockyear, Jr.: There's more reason to conclude that the jurors would react against the statement in view of such conduct by his legal representative.

However, that maybe the most that can be said is that this conduct was error which did not have such a substantial effect upon the outcome as to strip the trial of due process.

And Judge Duffy, on page 53, in dissenting, said another reason for the failure of due process in the instant case is the one that -- is that one of the two state prosecuting attorneys who tried the case also acted as a witness on the trial.

The majority opinion while conceding this was error seem to brush it aside saying, "However in this case, we cannot adjudicate a question of ethics."

Prosecutor Weaver participating, examining prospect of jurors interposed objection to testimony otherwise, actively participating in the trial.

He then took the stand as a witness and testified concerning the confession made to him or objection he made opposing argument to the jury commenting on the evidence including his own testimony.

Such conduct was in violation of Canon 19 of Canon for Professional Ethics.

Justice Felix Frankfurter: Let me ask you whether what Mr. Weaver testified to if it had been testified to by a non-prosecutor, would -- would it have been relevant and admissible testimony?

Mr. Theodore Lockyear, Jr.: Yes.

Justice Felix Frankfurter: Subject matter of his testimony is not --

Mr. Theodore Lockyear, Jr.: Well, subject to either objection, yes.

Justice Felix Frankfurter: Well, I want to know whether they were object -- relevant objection (Inaudible)

Mr. Theodore Lockyear, Jr.: There were relevant objections made to the --

Justice Felix Frankfurter: Because he was a prosecutor.

Mr. Theodore Lockyear, Jr.: Not --

Justice Felix Frankfurter: My question is whether if it was made by a neutral person, would that have been -- would -- would that testimony had been ground for urging want of due process?

Mr. Theodore Lockyear, Jr.: The mere fact that he was a prosecutor.

Is that what's the Court's question?

Justice Felix Frankfurter: I'm -- I'm -- I merely forget that he was a prosecutor.

If Mr. Jones not Mr. Weaver goes on the witness stand and testifies to everything that Weaver testified, would that have given you ground for urging that there was a denial of due process in admitting that?

Mr. Theodore Lockyear, Jr.: There is that question also presented and that we objected to his testimony as a -- as well as the witness Hudson on the ground that this man had been held from August -- from April the 8th, 1955 up until this purported confession was made on the 14th and then a purported confession made on the 15th and then it was a 16th before he was ever arraigned.

And we made the objection as to the admissibility of that confession under the Watts case.

And the Court, we say, denied us a hearing on that question.

They say otherwise but that was also an objection to the admissibility of that testimony by the witness whether it was the prosecutor or Chief Detective Hudson.

Justice Charles E. Whittaker: Well, has he been arrested and held in that length of time --

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Charles E. Whittaker: -- upon the suspicion of these murders or of something else?

Mr. Theodore Lockyear, Jr.: Well, it's -- it's not clear what he was held on.

If we believe the newspaper, he was held on pro-violator.

If we believe one of the witnesses, he was on bad check charge.

If we believe in other witness, he was on burglary.

The question was asked, what was he arrested for?

And there were several different answers given why he was held for but he was never taking before a court or magistrate.

Justice Charles E. Whittaker: I had understood.

Maybe I am falling with my recollection about this that as the matter of the murders came up incidentally while it was being held on these other offences, am I wrong about that or not?

Mr. Theodore Lockyear, Jr.: He was asked about the murders after he had been arrested.

Now, the question under -- was whether or not he was actually arrested for those murders, whether he was arrested for a check charge, which the evidence was clear that they did not even know about until after he had been arrested.

A man read in a paper where he had been arrested and says, "I've got to check from you.

And I -- I went down to the police station and showed them and talked to them about it."

Now, there's odd evidence that says the arrest.

Now, whether -- the -- the record is not clear on what he was actually arrested and held for.

There's a conflict as to that.

So then I can't say that it's all one way or the other.

I --

Justice Hugo L. Black: Can a defendant -- can a defendant waive a jury trial in this kind of case?

Mr. Theodore Lockyear, Jr.: Yes, Your Honor.

But the Court can direct and to be tried by jury anyway or the prosecutor.

Justice Hugo L. Black: Suppose he had waived it, what would be your attitude?

Mr. Theodore Lockyear, Jr.: Suppose he had waived --

Justice Hugo L. Black: Suppose he had waived it and then has been tried by the judge?

Mr. Theodore Lockyear, Jr.: I believe we would move for a change of venue from the trial, that's first.

Secondly, the State in occasion and recently on appeal to the Indiana Supreme Court, it was held that State of Indiana has a right to a trial by jury and so that we do not know when the -- when the State would request a trial (Inaudible).

Justice Hugo L. Black: What I meant with so far as this question of due process.

It's clear to me as I was listening to the argument and looking at the papers, would you think it'd be a difference if a judge tried the case (Inaudible) inflammatory statements to put in your paper such as this, it makes it a due process test?

Mr. Theodore Lockyear, Jr.: I think it would be the -- none as to the due process test where we have an elected judge.

Judge is elected every six years by the people, the question as to what -- whether or not he was able.

I think we have to prove actual bias on the part of -- of the judge or bias from the community that -- that would affect his decision.

I think certainly, it's -- it's just as equally conceivable that the judge would be biased under evidence such as at -- what -- by the prospect of Juror Hensley as any other person.

He had the opinion that he was guilty.

There were 300 -- over 269 jurors who said that he was guilty.

And they were the opinion -- had fixed the opinion as to the case.

Certainly, it's conceivable that that would have permeated the judge just as well as it would to the jury, this bias and --

Justice Felix Frankfurter: What was the size of the venire that was called?

How many -- how many prospective jurors were actually called and examined?

Mr. Theodore Lockyear, Jr.: It start out with 100 and then there were --

Justice Felix Frankfurter: 100?

Mr. Theodore Lockyear, Jr.: Yes.

Justice Felix Frankfurter: How many were examined?

Mr. Theodore Lockyear, Jr.: 431 were actually examined.

Justice Felix Frankfurter: In -- on the voir dire?

Mr. Theodore Lockyear, Jr.: On the voir dire.

Justice Felix Frankfurter: How many?

Mr. Theodore Lockyear, Jr.: 431.

Justice Felix Frankfurter: Of those 431, how many has said that an unshakable conviction of it?

Mr. Theodore Lockyear, Jr.: 269 were excused by the Court for fixed opinions.

Justice Felix Frankfurter: On that subject?

Mr. Theodore Lockyear, Jr.: On that subject.

Justice Charles E. Whittaker: Well, on -- just as state by Mr. Justice Frankfurter that they had an unshakable conviction?

Mr. Theodore Lockyear, Jr.: They had a fixed opinion.

Justice Felix Frankfurter: Fixed.

Justice Charles E. Whittaker: But was the minute you, if I may ask you, accepted on this jury to proved did not qualify under the provisions of the Indiana statute leaving aside the moment --

Mr. Theodore Lockyear, Jr.: Well --

Justice Charles E. Whittaker: (Inaudible)

Mr. Theodore Lockyear, Jr.: Juror Hensley, they were all qualified with the judge.

In other words, they were asked the question, "Can you set this opinion aside?"

And they said, "Yes.

I can be fair."

But on page 21, Hensley was asked so in this -- so in this particular case.

"You could not enter in this manner and give the defendant benefit of doubt that he is innocent."

"That's right."

"And on those circumstances, it would be rather impractical for you to run a fair and impartial verdict based solely upon the evidence."

"That's right," over on page 31 -- 30 and 31.

"When you came in here as a jury, you still continue to have that opinion."

"Yes, that's right."

"And whether or not, this opinion that you've formed and expressed as the defendant was that he was guilty of this particular crime charged."

"Just in my own mind, that's right."

"In that opinion you also form an expressed opinion that the defendant confessed to this particular crime."

"Well, I don't know if I said that or not but I understand from the papers that he did."

"You have the opinion that he did confess to the crimes."

"That's right," and this is on page 31 of our brief."

You have the opinion that he confessed to other crimes."

"I believe so."

"And you have an opinion that the defendant shot, killed and murdered Kerr, isn't that right?"

"Yes, sir, that's right."

"And you have formed the opinion that the defendant shot, killed and murdered Kerr while the defendant was perpetuating a robbery."

"Yes, that's right."

"Have you formed any opinion as to fixing the penalty?"

"I don't know if I did.

"They just formed that as one law."

Justice Hugo L. Black: Is your argument based on a charge of a denial of due process based on the fact that these facts were published, these things were published in the paper or on the basis that the record shows that you did not have a fair and impartial jury?

Mr. Theodore Lockyear, Jr.: On the basis that -- the record shows that he did not have a fair and impartial jury.

Justice Felix Frankfurter: Because?

Because?

Mr. Theodore Lockyear, Jr.: Of the newspaper publicity, the radio publicity and the television publicity.

Justice Charles E. Whittaker: Now, as I understand it that your statute (Inaudible)

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Charles E. Whittaker: Now, on page 24 to 26 of your brief, he sets forth, as it is, (Inaudible) somewhat different than those given, question -- in other words, he could be entitled in your mind that all times when the (Inaudible) until the State of Indiana pleaded guilty beyond reasonable doubt, is that right?

Actually, yes, sir, that's right.

(Inaudible) page.

Mr. Theodore Lockyear, Jr.: Yes, sir.

Justice Charles E. Whittaker: Are that did -- did use (Inaudible) who didn't qualify under this statute putting aside (Inaudible)

Mr. Theodore Lockyear, Jr.: Wouldn't it if by, you mean, qualified if the judge asked him if they could --

Justice Charles E. Whittaker: Yes.

Mr. Theodore Lockyear, Jr.: -- set aside that opinion --

Justice Charles E. Whittaker: Did -- did his answers --

Mr. Theodore Lockyear, Jr.: -- and they answered, yes.

Justice Charles E. Whittaker: Yes.

Like did his answers come within that statute (Inaudible)

Mr. Theodore Lockyear, Jr.: If he let the juror decide whether he's qualified or not, they came within that answer -- within that statute.

Justice Charles E. Whittaker: And somebody has to make a determination, if the statute, yes, and the Court if satisfied still the same.

Mr. Theodore Lockyear, Jr.: That's right.

Justice Charles E. Whittaker: Over basis upon which the Court did soundly exercise the discretion.

Mr. Theodore Lockyear, Jr.: And we -- we don't think that he could soundly -- he exercised discretion.

We don't think it was soundly good in -- in view of all the other testimony of this prospective juror, which is completely contrary to anything else, that -- that he says.

We'd like to reserve a little time.

Chief Justice Earl Warren: Yes, you can.

Mr. Givan.

Argument of Richard M. Givan

Mr. Richard M. Givan: Mr. Chief Justice, Associate Justices, may it please the Court.

I would like to clear up a question or two here that has been raised by Mr. Lockyear's argument.

First of all, his contention here that the things are in somewhat a state of confusion in the record as to what Irvin was arrested for and how he was held in the early part of his incarceration.

And I would like to refer the Court to this trial transcript that you have before you in this case at Volume 2 of that transcript, if the Court recall it it's in six volumes and in Volume 2, at page 1180, you will find there a testimony by Evansville Detective Cornett or -- I beg your pardon, State Police Detective Cornett to the express effect and it is not contradicted that he approached Leslie Irvin on April the 11th -- April the 8th at 11 a.m. and that he questioned Irvin at that time concerning the passing of some bad checks.

And that at that time Irvin admitted to him that he had done such a thing and that upon his admission, he took Irvin into custody as a parole violator.

Irvin was at that time on parole from the Indiana State Prison.

And it was while Irvin was being held pursuant to this arrest as a parole violator that he was then examined and questioned concerning the murder for which he was later tried.

I just wanted to clear up that point.

I -- I think that the Court should know that it is the State's position that Irvin was under lawful arrest on an entirely separate matter at the time of his holding and that therefore, he does not come under the rule that has been set out by this Court previously.

I think we might -- I think it's been referred to as the McNabb rule of the admissibility of confessions in -- in the case of United States versus Carrington, the Court expressly stated that a person who was being lawfully held in the custody of another would not be subject to the McNabb rule and that confession that he gave under such incarceration would be admissible.

Now, Mr. Justice Black, I believe, asked the question as to whether the same question would be presented here if this was a trial by a -- the Court rather than by the jury.

And it is the State's position that we are in the same set of circumstances, Mr. Justice Black, that we take the position that this jury properly qualified under the Indiana statute and therefore, having properly qualified under the Indiana statute, we are faced with this -- precisely the same question as to whether or not the newspaper publicity rendered the situation such that the defendant could not have a fair trial.

Now, if the Court would find that the newspaper publicity was of such a nature that the defendant could not have a fair trial, under the circumstances, I think, it would be of a little moment whether or not it was the trial judge who was influenced by those newspaper reports or whether it was a juror who was influenced by the reports if it was demonstrated by the petitioner that such influence did in fact exist.

Justice Hugo L. Black: Do you think the quantum of proof would mean a difference in connection with the charge that the record showed a hostility by judge that kind of case and what would be if it was a jury?

Mr. Richard M. Givan: I don't know as to the quantum of proof, Your Honor.

The -- as far as the jury is concerned and under the Indiana statute, the proof is left to the -- to the decision of the trial court.

He -- under the terms, the very terms of the statute, the judge makes the determination as to whether or not this publicity and the information which the prospecting juror has acquired.

Justice Hugo L. Black: I suppose you'd --

Mr. Richard M. Givan: It's --

Justice Hugo L. Black: -- agree however, perhaps, that if the evidence showed beyond dispute that all clear was the jurors had a fixed opinion and that they intended to exercise it in one way that the mere fact that the judge in his discretion decide to leave (Inaudible) wouldn't resolve the constitutional question, would it?

Mr. Richard M. Givan: It would not, Your Honor.

In such a case, I would be the first to say that the judge would -- would have abused his discretion and would not have followed the statute and that the jurors did not qualify under the statute if they expressed --

Justice Hugo L. Black: Well suppose --

Mr. Richard M. Givan: -- a fixed opinion that they require.

Justice Hugo L. Black: Even if they -- if they had a statute that said they could try before people who had a fixed opinion and already decided they're going to hang in, I suppose you wouldn't say that the statute would -- that that would solve the due process but --

Mr. Richard M. Givan: No, it certainly would not and I would say that the statute of that nature would not afford due process of law under the Fourteenth Amendment if such a statute existed.

However, we present to this Court that that is not the nature of the statute --

Justice Hugo L. Black: But I asked --

Mr. Richard M. Givan: -- which we --

Justice Hugo L. Black: -- the question on the basis that -- of just thinking as I heard the argument.

Whatever extent we must be bound by the judges' finding has still the question before us to admit to whether the whole record shows that there was a trial here by partial jury.

Mr. Richard M. Givan: That's correct.

I think we would have to say that -- I don't know that we can say the whole trial because we don't know how partial the jury was.

Justice Hugo L. Black: But I -- I'm not saying, I'm not reaching the conclusion into that.

I'm just saying if that -- asking you of that issue is not posed to have shared on the record and the -- and the briefs and arguments made.

Mr. Richard M. Givan: Not precisely, Your Honor.

I think this.

We can't look to the trial to see whether the jury was in fact biased or prejudice.

We have no action from -- by the jury, any comments for any members of the jury from which we could draw any conclusions after the clause of the voir dire examination until we come to the verdict itself.

And of course, I think we must immediately say that the -- the existence of a guilty verdict doesn't impute any --

Justice Hugo L. Black: I didn't make -- it was my fault.

You're not denying, are you, that if -- whether the jury was partial or not is a question that has to be decided on the record that the conclusion could be reached on circumstantially (Inaudible) well as a direct positive statement by juror.

Mr. Richard M. Givan: I think it -- whole -- the whole voir dire examination has to be taken in its entirety.

We cannot -- the petitioner here cannot take a portion of the voir dire examination nor can the State take a portion of the voir dire examination.

The entire voir dire examination has to be examined and weighed to ascertain whether or not the judge in fact did qualify these jurors and whether the prosecution and in fact in aiding the Court in this matter did in fact qualify these jurors under the expressed terms of the statute.

Justice Felix Frankfurter: And I take it, Mr. Givan, you've been through the record -- the exhibits in the record, the whole record.

Mr. Richard M. Givan: Yes, I have.

Justice Felix Frankfurter: On that assumption, I meant the fact rather, would you eager enough to state -- give an estimate, how many issues of front page story carrying matters that were not received or offered in Evansville, leaving to one side whether they could or couldn't, matters that were not in fact introduced before the jury but dealt with in newspaper article on the front page of the Evansville Courier and in any other paper as to which -- as to which it was indicated that the police or the prosecutorial officers immediately stopped and as to which there was no indication of Irvin himself gave permission for its printing.

On your mind, how many such daily occurrences issued the paper (Inaudible)?

Mr. Richard M. Givan: I had to hesitate to place and number on it --

Justice Felix Frankfurter: But what --

Mr. Richard M. Givan: -- Your Honor.

Justice Felix Frankfurter: -- as to what scale were they?

Mr. Richard M. Givan: I would say --

Justice Felix Frankfurter: -- five, one or 10?

Mr. Richard M. Givan: I -- I would say that there would be considerable times and without just going into expressed number because it wasn't only the Evansville Courier but it was other newspapers including Indianapolis newspapers that --

Justice Felix Frankfurter: Take the Evansville Courier.

Mr. Richard M. Givan: The Evansville Courier --

Justice Felix Frankfurter: (Voice Overlap) -- impression left on your mind one could go to the record and examine it as in statistically, was this once or several times, half a dozen times or a dozen times?

Mr. Richard M. Givan: I can only say that this happened several times, Your Honor, that -- and I -- I hastened to say that when we talked about the newspaper men seeing things that were not actually introduced in the evidence, I think it's impossible to draw from the newspaper accounts whether these matters were actually transmitted to the newspaper men by the sheriff or by Paul Weaver or whether these working in --

Justice Felix Frankfurter: How many --

Mr. Richard M. Givan: -- conclusions that they drew themselves.

Justice Felix Frankfurter: And how many instances did they profess to quote the officials?

Mr. Richard M. Givan: I would say that the quotations from officials were frequent --

Justice Felix Frankfurter: Frequent.

Mr. Richard M. Givan: -- that they -- they did this quite often and as you state yourself, the examination of the record would be the best example of that but in any event, we know this, that on frequent occasions, the newspapers purported to "neither Paul Weaver or the sheriff as to what Leslie Irvin had told them as to his particular activities".

Now, I submit to the Court that that is no different than any criminal prosecution that we ever have on an infamous crime of this order, a crime that gains a great deal of notoriety and the Court can call on its own knowledge of the Lindbergh kidnapping, Bruno Richard Hauptmann and the -- the statements that were attributed to him.

Of course, any criminal is in the custody of the custodial officer and it is not the custom, of course, to allow them to hold press conferences of -- on their own and they -- the matters which they state to the custodial officers if they get in the newspaper at all come through the custodial officer in some manner.

Justice Felix Frankfurter: Now, these -- all these newspaper accounts that they're objected to made the basis of a claim of inflammatoriness resulting in unfairness amounting to due process.

They were all put in evidence, were they not?

Mr. Richard M. Givan: These newspaper articles that we do have in the --

Justice Felix Frankfurter: Yes.

Mr. Richard M. Givan: -- record here were submitted by the petitioner himself in support of his applications for continuance I think.

Justice Felix Frankfurter: Now, an effort resulting to the State to challenge the claims that these were inspired articles, was it not?

It was open to the State.

Mr. Richard M. Givan: Oh, it was open, yes.

I should take --

Justice Felix Frankfurter: Now, and --

Mr. Richard M. Givan: -- take it --

Justice Felix Frankfurter: -- how many instances in the instances in which the papers purported, you have derived their information from officials, did the State say that that was not a truthful statement?

Is that up here in the record that that disavowed responsibility of the -- the inition of these things to official miles?

Mr. Richard M. Givan: No.

I don't -- I don't think they did it all, Your Honor.

In fact to the matter is I have no question but what the state officers did in fact answer questions which were presented to them by the newspaper authorities.

They naturally congregated it to jail when the news was out that these -- that these crimes -- I might say this Your Honor, that the crimes had received extreme and extensive publicity prior to the arrest of Irvin.

This -- this was a great news story in this area before they knew who did it.

And there were severe criticism of the police officers because they hadn't apprehended anybody yet.

Justice Felix Frankfurter: Would you --

Mr. Richard M. Givan: And that --

Justice Felix Frankfurter: -- think -- would you think it was suggesting an unattainable standard for American criminal justice that when a sensational -- when sensational crimes like this occur and naturally there's great publicity about the occurrence that when the authority eventually find the culprit and feeling in the community had run high regarding the crime that then it's almost the duty to take great care not to continue this feeling against the particular defendant.

Would you think that was too high a standard to set?

Mr. Richard M. Givan: I -- I think this, Your Honor, that we have had no -- no case yet in American jurisprudence or any other jurisdiction that I know of where the custodial authorities are absolutely bound to silence.

Justice Felix Frankfurter: But between binding them to silence and actually having him take affirmative steps to feed stuff to the press as a rather long distance, isn't it?

Mr. Richard M. Givan: It's -- it is, sir, and I -- I submit to you that an examination of this entire record will show an absence of an actual feeding of stuff to the press as -- as you --

Justice Felix Frankfurter: Well, I mean -- alright, the word feeding carries a whole salient implications but wasn't it a fact -- isn't it a fact that both the police authorities and the prosecutors did give statements to the press regarding matters that they didn't and one can say, in many instances, that couldn't have introduced before the jury?

Mr. Richard M. Givan: No, I wouldn't say that.

Justice Felix Frankfurter: You wouldn't say that.

Mr. Richard M. Givan: I wouldn't say that.

Now, if we say that the matter of his insanity, for instance, whether -- that he was sane or insane.

Now, obviously, the newspapers got hold of the fact that there had been an examination of Irvin and that the doctor said that he was sane and that he must stand trial.

Now, of course, you don't put evidence of that into the trial but it goes without that saying that he is standing trial and he is sane or he wouldn't be standing trial.

It's -- it's very difficult to -- to thrash out these things in separate one from the other and say what the newspapers may publish or what the prosecutor or what the police chief or whoever it maybe may say concerning the incarceration concerning the crime itself.

And I think it's not a proper standard to say that everything that is released must be something that is admissible in evidence.

Now, I think everything that would tend to influence a jury as to his guilt or innocence such as how the crime was committed, the content of the confession, all of those things, of course, as a matter of fact, were introduced in evidence in the Irvin trial.

Now --

Justice Felix Frankfurter: Is it -- but what about the giving to the press matters as to other crime which could not be introduced in the prosecution of this crime?Were there such instances?

Mr. Richard M. Givan: There were.

The -- the confession that Irvin made including the other crimes and that was part of the newspaper publicity that he was to confess slayer as to these other crimes.

Unknown Speaker: (Inaudible)

Mr. Richard M. Givan: Well, that's -- that's what the newspaper say.

I might say to uphold the newspaper statement to that effect, you will find in the record the testimony of Paul Weaver himself and incidentally, I think I can give you a citation in Volume 3, again, of this trial transcript that you have here.

In Volume 3, at page 1834 to 1846, I have that in my brief as a citation to a portion of Paul Weaver's testimony and I submit that his testimony is found in the -- starting immediately before that and ending immediately after those pages and these -- within those pages in Volume 3, 1834 and 1846, you will find the testimony of Paul Weaver and in that testimony, you will find that the -- according to Paul Weaver, and I'm quoting him expressly because the question was asked is what he did testify to, and I answered the two things at once.

That -- Paul Weaver said that Leslie Irvin specifically called for him to come to his cell in the jail and asked that he be permitted to talk to Paul Weaver.

He did talk to Paul Weaver, told him some of the manner in which this thing occurred and he asked him if he could be tried in Indiana or would he be turned back to Kentucky.

And Weaver said, "Well, we don't have enough yet to try you hearing."

Leslie Irvin says, "What more do you need?"

And he said, "We need the gun that you committed these crimes with."

And Leslie Irvin said, "That's easy.

I know where I put it."

And he took them out and after a couple of day search, they found the gun in the stream where Leslie Irvin indicated it would be.

Now, this testimony must hasten on and say that this was not Paul Weaver's testimony alone but also the testimony of the police officers involved in the investigation including -- I mean especially including Detective Hudson who had talked to Irvin, who had gone to obtain Paul Weaver to comment, Irvin's be -- request and who had been present when Irvin indicated where the gun would be found and then testified concerning the finding of the gun and the identification of the gun.

Now, all of these goes to demonstrate, I think, in addition of Paul Weaver's testimony was merely cumulative although he did testify to these things as a prosecutor.

His testimony was cumulative, he did not testify to a single thing that was not testified too by others in the trial and that nothing was proven by Paul Weaver's testimony that was not independently proven.

Justice Felix Frankfurter: Mr. Givan --

Mr. Richard M. Givan: Yes, sir.

Justice Felix Frankfurter: -- I -- I take it you will comment on Mr. Lockyear's memorandum, which he is to file, indicating your view as to the newspaper item that which he complained --

Mr. Richard M. Givan: Yes, sir.

Justice Felix Frankfurter: -- which were attributable through initiating emissions or -- or communication by one of the -- one of the other authorities which can have both --

Mr. Richard M. Givan: Yes, sir.

Justice Felix Frankfurter: -- so that we can find out which of these newspaper arguments were originated with the newspapers' interest in exploiting a crime, there's -- there are a lot of -- to do in this country, to my horror, and which was stimulated by the authorities.

Mr. Richard M. Givan: I -- I certainly will comment on that Your Honor --

Justice Hugo L. Black: Do you know whether (Inaudible)

Mr. Richard M. Givan: That is my understanding of this, Your Honor, and I think that comes out in these newspaper articles quite clearly that not only in Paul Weaver's testimony and Detective Hudson's testimony but in the very newspaper articles themselves the comments by the reporters that Leslie Irvin was quite anxious at one time to be tried for this crime in Indiana and not to be returned to Kentucky where there was a great deal of feeling, at least he felt a great deal of feeling against him.

Justice Hugo L. Black: What the article, effecting article, (Inaudible)

Mr. Richard M. Givan: Well, I don't think it's customary for them to hold press releases as I've indicated before but at the same time, it is nothing unusual, if I might digress this lightly, there's nothing unusual for a criminal of Leslie Irvin's type.

I don't think to -- to enjoy his publicity to a certain extent than to give press releases.

This is something that we cope with -- try to cope with all the time.

Justice Felix Frankfurter: But --

Mr. Richard M. Givan: And --

Justice Felix Frankfurter: -- somebody must authorize the newspaper people to go inside the cell or have they got a reception room and have tea and generally make life pleasant?

Mr. Richard M. Givan: Well, I hope they didn't go that far, Your Honor, I will --

Justice Felix Frankfurter: Well, it would --

Mr. Richard M. Givan: -- he was quite well treated.

Justice Felix Frankfurter: -- (Voice Overlap) people can't go into a cell without the warden's authorization, can they?

Mr. Richard M. Givan: Well, I don't think there was any indication here that the sheriff was not present when these newspaper men talked to him.

Justice Felix Frankfurter: He must give him permission.

Unknown Speaker: (Inaudible)

Mr. Richard M. Givan: I -- I have no doubt but what the -- the sheriff was there at the time or some authorized jailer was there and if Leslie Irvin talked to these men that it was done so in his presence.

Justice Felix Frankfurter: And the sheriff -- is the sheriff an elected -- would this sheriff had been an elected official?

Mr. Richard M. Givan: Yes, he would, Your Honor.

Justice Felix Frankfurter: So he wants -- he would want to stand as well with the boys, is that it?

Mr. Richard M. Givan: Well, I don't know that that was particularly standing in well with anybody except --

Unknown Speaker: (Voice Overlap) --

Mr. Richard M. Givan: -- Leslie Irvin -- if Leslie Irvin wanted to talk to a -- a newspaper reporter, we have sheriffs --

Justice Felix Frankfurter: I suppose it's a nice marshall for newspaper people to be interviewing --

Mr. Richard M. Givan: It was.

Justice Felix Frankfurter: -- well, if charged with a capital offense.

Mr. Richard M. Givan: I had been involved in few instances that sort myself.

I know that that -- those things happen.

The police officers will fit, let's say cooperative with newspapers, there's no question.

We have a -- a problem with -- with newspaper men, if I may say so [Laughs].

Justice Felix Frankfurter: Yes.

Mr. Richard M. Givan: And each official finds his own way to cope with the particular newspapermen and I -- and not prone to criticize them -- the particular officer for coping with the newspaper in the manner in which he sees fit as long as it --

Justice Felix Frankfurter: So long as this is allowed, it will happen of course.

Mr. Richard M. Givan: There's no question.

Justice Felix Frankfurter: (Inaudible) remark, isn't it?

Mr. Richard M. Givan: There -- there's no question about that and I think we might go on -- on and say the -- the decisions of this Court that we have cited that were news -- the trial court's have been forbidden, I might say, to enforce their (Inaudible) by contempt citation against newspapers.

And the -- the interpretation of freedom of the press that has been given by this Court gives the newspapers pretty much carte blanche as far as their activities are concerned and so we -- we accept that law but I'm not being critical with this Court in any fashion, I'm just -- I'm stating a fact and we must accept that fact and work with it.

And so we -- we go from there as to see how we cope with this problem that we have with the newspapers.

I would like to answer one question here of Mr. Justice Whittaker -- Mr. Justice Whittaker had asked during Mr. Lockyear's statement here that if any juror failed to qualify under the Indiana statute and my answer to that, sir, is no.

No juror failed to qualify under the Indiana statute.We have set out what we feel to be pertinent excerpts from the transcript in our brief wherein the questions asked of the various jurors who in fact served on this jury, we feel clearly show that these jurors did qualify expressly under the statute.

Now, I think that we have here, gentlemen, a question --

Justice Charles E. Whittaker: How long does (Inaudible) is this -- this is a -- this is an old (Inaudible)

Mr. Richard M. Givan: This is an old statute, Your Honor.

Actually, we had some -- a statute prior to our 1905 code.

In 1905, Indiana recodified is the criminal law in that State.

Prior to that time, we had a statute very similar to this and some of the cases which we have cited to the Court, Indiana cases, are discussing the old statute.

But this statute, as it now exists, in its present language was a part of the criminal code in the recodification in 1905.

Justice Felix Frankfurter: Well, this is not an unusual statute (Inaudible) any phrase of it.

Mr. Richard M. Givan: Not by any means, Your Honor.

In fact, this Court, before 1900, used almost exactly the same language as our statute uses and I have cited that case to the Court in the Reynolds case, Reynolds versus United States, cited in our brief, page 16 -- quoted page 16 and cited page 17, holds that express thing.

I think it's a statute that is absolutely essentially.

So we are faced with this simple situation.

We know from the cases handed down by this Court where we stand so far as newspaper publicity is concerned.

We know that we priced highly the freedom of the press and we permit them under their constitutional right to say many things.

And we do not quarrel with their right to publish these various news happenings.

Now, we must say how are we going to try a man who is accused of a crime in a jurisdiction where this publicity is permitted.

Now, how they acquire the publicity, I think, does figure into the picture.We have some cases.

But I would urge the Court to read those cases pretty, the cases cited by the petitioner here wherein it was held that the manner of releasing the news and so forth was a -- amounted to a denial of due process in the trial court.

But I submit that each of those -- in each of those cases, the share for the prosecuting attorney or someone in authority gave news releases as to purported facts that actually pointed to the -- directly to the guilt or innocence of the man but which facts were never introduced into evidence at the trial.

Justice Felix Frankfurter: Was there no such -- and then -- there's no comparable situation in -- in the record in this case?

Mr. Richard M. Givan: I do not think so, Your Honor.

Justice Felix Frankfurter: Well, I thought -- I -- I understood that there were statements that appeared and were issued for interviews by statements by some officials as to other crimes of -- of Irvin.

Am I wrong about that?

Mr. Richard M. Givan: The -- the quotes -- now, I can't say that these were exact quotes from the officials.

The -- the statements made in Irvin's confession that were released to the newspapers either by Irvin himself or by the custodial authorities actually did include these other crimes.

But as to the crime itself, what I'm getting at, is the crime itself with the murder of Whitney Wesley Kerr.

There was not one single bit of publicity concerning that crime --

Justice Felix Frankfurter: But -- but was given --

Mr. Richard M. Givan: -- which was not proven at the --

Justice Felix Frankfurter: You'd be the last person to deny it, the usual phrase a minute ago that if publicity is given against the man who is charged with murder A, a publicity has given that he committed murders B, C and D, it is bound to stir in the minds of the readers of that paper that he probably is also guilty of A, isn't it?

That's the purpose of giving the news.

Officials don't hand this out just to -- from an indication of process, do they?

You -- you objected --

Mr. Richard M. Givan: No, they -- they --

Justice Felix Frankfurter: -- to my saying they wanted to stand in well at the -- the press.

Well what is the purpose of giving -- of feeding, I'm bound to use that word again, of giving publicity due to the fact that the man who is charged with one murder has committed other murders.

What's the purpose of it?

Unofficial duty it is to prosecute fellows.

Mr. Richard M. Givan: Well, let me say this, Your Honor, I think in -- and especially so in this case, the indication is at least that these releases were in response to specific questions asked by the newspaper men.

It wasn't a question of feeding the press --

Justice Felix Frankfurter: You don't -- you and I don't answer every question that's put to us.

Our life would be --

Mr. Richard M. Givan: That's true.

Justice Felix Frankfurter: -- seem harder than it is if we did that, would it?

Mr. Richard M. Givan: But --

Justice Tom C. Clark: But the other thing (Inaudible)

Mr. Richard M. Givan: That's correct.

Justice Tom C. Clark: (Inaudible)

Mr. Richard M. Givan: And that's certainly so.

Justice Tom C. Clark: That's not (Inaudible)

Mr. Richard M. Givan: No.

I -- I think --

Justice Felix Frankfurter: Did he know that he --

Mr. Richard M. Givan: -- my -- my --

Justice Felix Frankfurter: -- did he know that the prosecutor was putting out a statement?

Mr. Richard M. Givan: As far as I know he did.

In fact, I think the indication is clearly in the record that he hoped the prosecutor would put out the statement.

He seemed to be more concern with whether the statement was the way he wanted it to be than he did whether it was being put out.

Justice Felix Frankfurter: Well, of course, even if a fellow (Inaudible) for murder once this side of the case put if it's a -- it's a mitigating version.

Mr. Richard M. Givan: But in -- in any event, I -- I think --

Justice Charles E. Whittaker: (Inaudible) done isn't -- to argue that having done it, taking advantage of that opportunity to now claim that in the minds of (Inaudible)

Mr. Richard M. Givan: Well, that's our position, Your Honor that he -- he had seen fit to engage in this activity and -- yes, sir.

Unknown Speaker: (Inaudible)

Mr. Richard M. Givan: No, sir.

I would not.

Justice Hugo L. Black: (Inaudible)

Mr. Richard M. Givan: Yes, sir

Justice Hugo L. Black: One is the (Inaudible)

Mr. Richard M. Givan: Yes, he did.

Yes, he did.

Justice Felix Frankfurter: But none --

Justice Hugo L. Black: (Inaudible)

Justice Felix Frankfurter: Could any of these happen without the -- without the authorization and the willing of the officials?

Mr. Richard M. Givan: That's --

Justice Felix Frankfurter: I -- I wonder --

Mr. Richard M. Givan: -- pretty broad question, Your Honor.

A lot of things can happen in -- in a jail and a lot -- a lot of information gets out.

Witness at Chessman case where he wrote an entire book and it -- it got outside the prison.

Justice Felix Frankfurter: Yes, but there was a lot of robbers about letting it get out of that.

Mr. Richard M. Givan: That's right and I think they even fired somebody for letting that happen.

Justice Felix Frankfurter: Yes.

Mr. Richard M. Givan: But whether we can say that that was an act of an official acting in his official capacity which would bind the State is a different story.

And I couldn't make the broad statement that this couldn't happen unless an official authorized it.

I think many newspaper men are quite resourceful as Your Honor well knows I'm sure, and they will get the story one way or another, I can't say that here -- in every instance.

And the -- in fact in this particular case, that every instance of news release was done through the cooperation of the sheriff and the press --

Justice Felix Frankfurter: I quite appreciate your difficulty.

Newspaper people constitutionally allowed -- newspaper is constitutionally allowed to publish stuff and you're not up here defending as his -- having to defend a claim that you're not allowed to give it to them.

That's the situation here.

Mr. Richard M. Givan: That's -- that's right.

Right.

Now, I would like to just -- just a few remarks to Paul Weaver's testimony and the State's position there.

The State takes the position as I've previously stated that Paul Weaver's testimony was merely cumulative.

It added nothing to the evidence that was already in as far as his comments on the final argument.

There is no verbatim transcript of that argument as it has been pointed out by counsel for the petitioner.

There is only a bystander's bill of exceptions which purports to say what Paul Weaver did and the most that we can find in that bystander's bill of exceptions is the statement that Paul Weaver made that you heard me testify, you heard yourself what I testified to you, words to that effect.

There is no statement in there that he reviewed each individual fact and retestified or that he added anything to what he had previously said.

Nothing of that sort appears in this bystander's bill of exceptions.

Now, there -- there can be no argument.

The language of Canon 19 is clear and there can be no argument about its language and its content.

What we are saying is that Judge Schnackenberg was correct in the Circuit Court of Appeals when he stated that this was not a question to say that -- that to demonstrate that the man did not have due process of law, this was in our situation, demonstrate the man did not have due process of law at the trial level.

There is nothing concerning his testimony that would indicate such and we submit that to this Court.

If the Court has no further question, although my time is not up why, I -- I feel that I've covered this thing from the State's point of view.

The Court well knows we argued this thing once before on these same grounds quite extensively.

We -- the Court has the record before of the opinions of the judges, the various judges that have participated in this from the Indiana Supreme Court to Judge Parkinson, Judge Schnackenberg the first time, Judge Schnackenberg the second time and the dissenting opinions of Judge Duffy.

I -- I even feel that it's presumptuous of me to address the Court in the first place here.

It seems that it's quite well covered.

I would be happy if this --

Justice Charles E. Whittaker: Can you give us -- if I may ask you.

Can you give us any of the light on why it was that the Court of Appeals made an order on one day electing to repeat the case rather than the Circuit -- the District Court and in the next day, decided it without giving the opportunity for argument to this?

Mr. Richard M. Givan: I -- I can only say this, Your Honor, that they, likewise, like yourselves, had been subjected to a full-dress argument in the complete briefs in this matter previously.

And the -- although they had decided the question eventually in the Circuit Court of Appeals that -- the first time on the procedural question of the escape, which you will probably recall, but they did nevertheless hear a full-dress argument on the entire question of whether or not he had been afforded his constitutional right in -- under the Fourteenth Amendment from the state court.

Now, in addition to that, Judge Parkinson who at the time this was heard in the Federal District Court had also conducted a full-scale hearing in the matter, in fact, it was through his hearing that this bill of exceptions arrive -- arrives here as part of the evidence.

Judge Parkinson gave that a full treatment and wrote a complete opinion which has been cited to this Court of course.

And I think that it was a -- simply a question that they felt that they were fully informed that there was no use to send it back to the District Court that he had dealt with it in every possible aspect and so that the -- therefore, the decision was up to them.

They had heard full argument and full brief and we made no complaint and I don't believe the petitioner here through his attorneys made any complaint.

Justice Charles E. Whittaker: Am I wrong in thinking there was one new judge on the Seventh Circuit who had not prayed full argument --

Mr. Richard M. Givan: That is --

Justice Charles E. Whittaker: -- (Voice Overlap) argument?

Mr. Richard M. Givan: -- that is correct, Your Honor.

Judge Latham Castle who had previously been the Attorney General of the Illinois had taken Judge Lindley's place on the bench and he had not heard the full argument of -- however, of course, being (Voice Overlap)

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard M. Givan: I beg your pardon.

Justice Charles E. Whittaker: And Judge Duffy dissented.

Mr. Richard M. Givan: And Judge Duffy dissented.

That's correct.

Justice Charles E. Whittaker: So that we should decide it by one judge and heard the argument, one that (Inaudible)

Mr. Richard M. Givan: That's correct.

But then I think that was for the -- I don't think it's up to any of us to be critical of the Circuit Court of Appeals in acting in that fashion and as I say, I think they were fully apprised, in fact, I don't -- I know of nothing in the rules that would require them to have an oral argument as a matter of fact.

They had the briefs before them and they could decide it upon the briefs if they saw fit.

And as I say there was no objections raised and there has been none raised here by a counsel for the petitioner that they were deprived with anything in the Circuit Court of Appeals by the action of the Court in that -- acting in that fashion.

If there are no more questions, why, that would conclude the State's presentation in this matter.

Thank you.

Chief Justice Earl Warren: Mr. Lopp.

Argument of James D. Lopp

Mr. James D. Lopp: Mr. Chief Justice, gentlemen.

It is the petition -- position here that we do feel that we would start a short change and not being purported this argument in Chicago for the Court of Appeals.

We feel that the -- Judge Castle, with all sincerity on his part, should have -- had the opportunity to let us present our position in this matter.

We've had a lot of time and effort given to this case.

And this is a proper case.

And I think the purpose of it is, is for a complete hearing.

Now, gentlemen, I'd like to get one thing straight.

Maybe you understand, I don't know.

These exhibits here, these newspaper in exhibits, those were attached to our motions for continuances, for changes of venues.

They were not newspaper items that was presented and shown to a jury at all during the course of this trial.

During the course of this trial, Mr. Lockyear and I used these newspapers for the purpose of -- of a continuance and for the change of venue.

"Mr. In-the-Newspapers" probably would say here that Mr. Irvin want to change the story, wanted this way or that way or he made an oral statement and such.

Now, it's just like this.

They -- we were being tried to this Court right today here and there's somebody out here on the street here saw the newspapers that we've made a -- a confession to this thing or we want to change our story, why, and these jurors were passing through the courtroom here and read those things is going to have an effect upon their judgment.

Now, that's what we were trying to avoid.

Our client has denied those statements.

He's denied a confession of this matter.

He's denied that he made a statement that the -- to the newspaper reporter that he wanted to change the context of the story or such as that.

We had made an offer to prove here during the course of this trial when Paul Weaver took that witness stand and when each one of those witnesses took that witness stand.

We objected and made an offer to prove that what they've obtained and what they've learned was illegal because of the length of time that this man was in this jail.

He hurry the time when he was arrested on April the 8th and so the purported confession of April the 12th, he was without counsel and we alleged in our -- our objections here.

During that period of time, before Mr. Weaver want to testify and before all these witnesses (Inaudible) altered wanted to testify, we made a -- an objection to that and the Court overruled our objection.

And that objection was in -- in substance, it's found on page 60 of our brief here.

Now, the police officers inflicted physical violence.

It points for the defendant that the -- the said admission, confession has stated before if any may were under duress and fraud, coercion, that's on page 60.

On page 60, this is a long objection we've made.

This objection here contained about 10 pages objection.

We further object that the -- the defendant here was then -- and then on the sole and absolute (Inaudible) control of the police officers and had been with up -- the street and rest for 24 hours.

And it -- and it continues to enter -- enter question at any statement so made by the defendant whether oral or written was involuntary given and was made given under inducement and under influenced of fear produced by threat, intimidations and (Inaudible) fraud.

And we further proceeded here.

Justice Hugo L. Black: Did you -- did you anywhere at any stage of this proceeding contend or offer to prove that the claim that Irvin wanted to get his side of the story out is false?

Mr. James D. Lopp: That's exactly what I did, is try to find cause for the Court, Your Honor.

Everyone of those witnesses, those police officers have testified.

We made our objection to them and an offer to prove that -- that very thing that I was reading to the Court this and this and saw these objections.

And it's found on page 60 of our brief -- on our brief and it continues my objections here.

And the further, the illegal in this that upon arresting the defendant, the police officer put the defendant in a barring cell at the police headquarter at the City of Evansville and a sweatbox room and kept him there incommunicado for a period of seven days and submitted him to every unrelating question without proper rules seeking the rest and still taking the defendant more equipped to adjust the fees or the Court having proper jurisdiction.

On page 66, we continue that he was denied the right to be advised of his legal rights by a counsel -- a counsel or a lawyer appointed by the Court of law to represent him at any time -- the -- at any time.

The said defendant was never brought before any magistrate or a court of law and advised of his rights to counsel and have counsel appointed to him or represent him during those seven long days he was held in a city jail at the City of Evansville.

And that is the truth that speaks the record that this defendant was held in the City of Evansville for that length of time.

I want to call your attention whether he was eventually called by the city court just what the judge said.

Now, I find within the city court there where they had Irvin was downstairs below, right up above, there's a city judge, the city -- the city court of the City of Evansville.

They have all this time locked up in a cell where you could open the door and walk around to the city courtroom for a purpose of arraignment.

He was finally brought in there and hear on Judge (Inaudible) was the judge.

And we asked Judge (Inaudible) there just one time.

Was the defendant represented by an attorney at that time?

No.

He was in the custody of the police officer of the City of Evansville at that time.

Question, "Did you advise him at that time he was entitled to be represented by an attorney?"

Answer, "I don't think so," and so many words.

He was just asked whether he weighed a hearing on a preliminary charge.

Question, "And that was all that was said?"

Answer, "That's right."

Now, that's what Judge (Inaudible) says.

That's found on this record here and this man was never afforded a counsel.

And each time these witnesses who testified, we made our proper objection and an offer to prove all that is set out in our brief here beginning on page 16 and ending on page 67.

Justice John M. Harlan: Could I ask you a question?

Mr. James D. Lopp: Yes, sir.

Justice John M. Harlan: You tried the case so --

Mr. James D. Lopp: That's right.

Justice John M. Harlan: -- one of the counsels who tried the case.

How did Gibson County, the adjoining county can't be chose for the venue (Inaudible)

Mr. James D. Lopp: Your Honor, at that time, they had a false idea.

I don't know of this -- I am just speaking with experience.

We have the false idea.

Maybe I -- I wasn't their counsel when this trial was actually (Inaudible)

Mr. Robert Heiss (ph) who was a regular public defender was representative at that time.

And it was just sent to the adjoining county.

They have a false idea that the most convenient county would be the adjoining county which is not true.

And therefore -- and so they (Inaudible) judge sent to -- to Gibson County, and judge -- the Circuit Judge had testified here.

We tried to get this thing frankly remanded.

That this was solved.

We tried to get this thing remanded in one sense because we felt there was error in sending that to Gibson County.

Justice John M. Harlan: Remanded for what purpose?

Mr. James D. Lopp: For several purposes.

Gibson County was a little small county where the total population is 30 -- at approximately 30,000 people, Your Honor.

What we want to do was to get this thing back in a status quo and we've got to look forward in this case that it's been a point.

But we felt that the court (Inaudible) send it to Gibson County.

Justice Charles E. Whittaker: Status quo, you mean back to Evansville?

Mr. James D. Lopp: We want to get back to Evansville and start in because Evansville -- we -- obviously we've had a better chance factor at Evansville where we prefer to get the better jury with the -- with the population of 150,000 people and we put in a little community where there's 30,000 people in the entire county where they're all related and know one another, and they -- and that was our position.

We want to get it -- try to get back in Vanderburgh County so that we could go properly forward and then in a further change of venue.

Justice Charles E. Whittaker: You had to go (Inaudible) west or east (Voice Overlap) --

Mr. James D. Lopp: That's right.

We go south, yes.

Justice Charles E. Whittaker: (Voice Overlap) -- south.

Mr. James D. Lopp: The (Inaudible) river is there.

Justice Charles E. Whittaker: River.

Now, you went north?

Mr. James D. Lopp: That's right.

Justice Charles E. Whittaker: What makes you think you've gone better than east to west?

Mr. James D. Lopp: We thought we'd do better that we want to go up further north.

We want to go further north.

Justice Charles E. Whittaker: How far, long way?

Mr. James D. Lopp: Well, if it requires, then it's necessary.

Whatever was necessary to give this man a very important trial.

In other words, I think that's whatever due process calls for and that's what we wanted.

And of course, we use these things as -- as exhibits for that purpose at that time.

And it wasn't for no other purposes.

Now --

Justice Hugo L. Black: May I ask you this question about what you've just read, it's on the statement or on the objection.

Mr. James D. Lopp: Yes, Your Honor.

Justice Hugo L. Black: On the last page, you said the defendant did not voluntarily, freely on any circumstances make any statement or confession of this witness or any other police officer on that custody was at the said time.

Mr. James D. Lopp: That's right.

Justice Hugo L. Black: Did you ever deny that you had given a confession here?

Mr. James D. Lopp: That's right.

We did.

Justice Hugo L. Black: The newspaper.

Mr. James D. Lopp: We made an offer to prove here.

Justice Hugo L. Black: The newspaper.

Mr. James D. Lopp: Yes.

Justice Felix Frankfurter: Where is that?

Justice Hugo L. Black: Where is it?

Mr. James D. Lopp: Page 63 of the record.

Justice Hugo L. Black: Page 63.

Mr. James D. Lopp: 63.

The defendant was arrested on the 8th day of April, 1955 and the said newspapers carry press releases from the Evansville Police Department in whose custody this defendant was then in there concerning this defendant's connection where they said six murders in Evansville and its surrounding area.

And at this defiant had confessed to the said six murders in the Evansville area.

That said press release were given to the newspapers of the presence of this defendant that said releases were unsworn to, never seen by this defendant that no time was he or his counsel gave him the opportunity to cross-examine those who release that statements to the newspapers and radio stations in Evansville, Indiana.

That at no time has this defendant been given the opportunity by the press to deny or contradict said press releases -- said press releases are untrue.

Justice John M. Harlan: What page?

Mr. James D. Lopp: At page 63 of this transcript here.

Chief Justice Earl Warren: What was -- is that last -- what was that last sentence you read?

Mr. James D. Lopp: And that said press releases are untrue.

Justice Felix Frankfurter: Well, that those his press releases or the -- or the --

Mr. James D. Lopp: The press releases.

Justice Felix Frankfurter: -- or the Chief of Police?

Mr. James D. Lopp: Well, just the press releases.

It's what it said, Your Honor.

This said press releases are untrue.

Justice Felix Frankfurter: What was the --

Mr. James D. Lopp: And Your Honor --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. James D. Lopp: -- this was a motion here verified -- verified and -- for these continuances.

Now, this was not denied by the State of Indiana at all.

He had no time --

Justice Tom C. Clark: Did he say there that he did not authorize?

Mr. James D. Lopp: He denies them that there is truth of it.

Justice Tom C. Clark: Oh, say denied it but he didn't say -- he -- he did not say, as you read it, as I remember that he failed to authorize it.

He did not authorize the newspapers to run it.

Justice Tom C. Clark: That was what I had in mind.

Mr. James D. Lopp: The said press releases were given to the newspapers out of present defendant.

The said releases were unsworn to and never seen by this defendant.

Justice Tom C. Clark: Well, of course, they -- they were his confessions.

They -- they were bound to have been --

Mr. James D. Lopp: There has been oral confessions if there's any or -- there's a vague confessions are, Your Honor, where there are oral confessions, there was never any written confession.

Justice Tom C. Clark: Well, was it written?

Mr. James D. Lopp: Never was a written confession (Voice Overlap) --

Justice Tom C. Clark: Well, they authorize an oral confession there, is that right?

Mr. James D. Lopp: An oral confession.

If there was anything it'd be in oral confession.

Justice Felix Frankfurter: Mr. Lopp, as the -- the IM of the courier that -- your local paper, the Evansville paper, attributes to him a statement of his view --

Mr. James D. Lopp: We deny that.

Justice Felix Frankfurter: Now, what I am suggesting is what -- that what you have read may refer to his denial of the truth --

Mr. James D. Lopp: That's right.

Justice Felix Frankfurter: -- or the authorization of what the authorities put out not what he put out.

I listened with care to what you've read and I don't think my ears caught a denial that he himself gave some statement to the press.

Is there such a specific denial of that?

Mr. James D. Lopp: Well, we try to get that across the Court in our motion for the continuance, Your Honor.

In other words what we're saying to the judge, we don't just continue.

Here the newspapers are out here on the streets, putting up these newspapers.

And they're not true.

That's what we end up saying.

The said press releases are untrue, whatever it would be.

Justice Felix Frankfurter: The press releases were the releases of the Chief of Police from the District Attorney --

Mr. James D. Lopp: Well, we mean -- we mean that --

Justice Felix Frankfurter: -- of his confession to which he then made a reply and I think it is consistent with his denial of the truth that he -- of the -- of the confession attributed to him, it is consistent with his denial of the truth of that alleged confession to say that he didn't gave his version of the papers.

Mr. James D. Lopp: Well, he -- he doesn't -- we don't admit that.

Those newspapers were attached here, Your Honor, to this motion for (Inaudible) continue but we deny that.

Unknown Speaker: (Inaudible)

Mr. James D. Lopp: (Inaudible) Mr. Lockyear has found this for me on page 64.

We tried to make this clear as we could.

I -- that he had confessed to summation on said -- said morning that the date here was the confession were released and the purported statement on this defendant to the members of the press and radio when in fact this defendant made no such statements.

Justice Felix Frankfurter: Well, there were -- there were good many items in the papers on successive days or they're not?

Mr. James D. Lopp: Right.

That's right.

Justice Felix Frankfurter: Of course, they're in each of those, in each of those publications an attribution of something set by him on his own accounts?

Mr. James D. Lopp: Well, most of them were set with the prosecutor or the --

Justice Felix Frankfurter: Or then --

Mr. James D. Lopp: -- (Voice Overlap) I think that's one of the phrases I know of it that -- that Mr. Irvin heard in (Inaudible)

Justice Felix Frankfurter: So that that's one out of X --

Mr. James D. Lopp: That's right.

Justice Felix Frankfurter: -- issues.

Mr. James D. Lopp: That's right.

Justice Felix Frankfurter: And at any event, it can cover this -- that the publications in which he didn't participate, is that right?

Mr. James D. Lopp: He did not participate.

Justice Felix Frankfurter: I say there were publication that and I --

Mr. James D. Lopp: Yes, yes.

Justice Felix Frankfurter: -- think Mr. Givan agreed --

Mr. James D. Lopp: What --

Justice Felix Frankfurter: -- to that in which his name doesn't appear as the interviewed person.

Mr. James D. Lopp: That's right.

That's right.

So Irvin did not authorize.

We deny that Irvin authorized the publication to these things.

And in -- when these -- the Court will disavow our objection here.

We think it's a very good objection that the -- Mr. Weaver and the police officers nor anyone else had properly testified in this matter because this man was arrested, held in jail, he was arrested in Warrick County, mind you, by a State of Indiana police officer.

And one other question I want to get across, one other thing here.

Mr. -- Attorney, you were wrong.

I feel sure.

Irvin was not arrested for parole violation.

Irvin was now -- at page 119, he was arrested for fraudulent checks and --

Justice Hugo L. Black: I understood him to say that.

Mr. James D. Lopp: No --

Justice Hugo L. Black: That's what he did say.

Mr. James D. Lopp: -- (Voice Overlap) said he was arrested for parole violation, didn't you?

Rebuttal of Richard M. Givan

Mr. Richard M. Givan: (Inaudible)

Rebuttal of James D. Lopp

Mr. James D. Lopp: -- which -- well, not a parole violation which does not -- in which it's not the -- the case at all.

Chief Justice Earl Warren: You mean passing a bad check would not be a parole violation?

Mr. James D. Lopp: But he was not arrested, part of the parole violation.

The officer that arrested him -- arrested him for a fraudulent check.

As a matter of fact, in this brief here of mine, I've got the -- asking what he was arrested for and he -- you -- this will be found -- here is the -- the examination of Weaver and who was the arresting officer.

He was arrested for a parole violation.

He was arrested for fraudulent checks.

Chief Justice Earl Warren: Well, isn't that what -- isn't that what Mr. Givan said?

Mr. James D. Lopp: But it specifically says in here, Your Honor, that he was not arrested for a parole -- parole violation.

Chief Justice Earl Warren: Well, that says he was.

Justice Hugo L. Black: What you read was that he was.

(Inaudible)

Mr. James D. Lopp: Now, that's what Clevens says.

He was arrested for (Inaudible)

He was not arrested -- I'm sorry, let me go again.

He was not arrested for a parole violation.

He was not arrested for parole violation at all.

He was arrested for fraudulent checks.

Justice Charles E. Whittaker: Was he out on parole at the time?

Mr. James D. Lopp: He was out on parole.

He was working at -- in Warrick County, steam city man a -- in project there, building some kind of a car plant, and he had been gainfully employed for a number -- well, since he's been out, and he -- he was a regular employee at that time.

And they took -- they arrest him up there in this Warrick County which he joins Vanderburgh County.

As they take him to the sheriff of that county or whatnot, they brought him back to the City of Evansville and he brought -- took him to the city police station.

They did not take him to the sheriff of Vanderburgh County at all.

They kept him there from April the 8th to April 14th and finally on April the 12th, was when the alleged confession was proof to have been given but he was not taken to the state judge until by April 14th.

And then he was not appointed an attorney in this matter until April the -- on April 21st, he was indicted and rain -- arraigned, April 21st, he was arraigned and the Court on the April 22nd asked Irvin if he had an attorney, he said, no.

And then the matter of arraignment was continued until April 28th when the Court appointed Attorney Robert Hay to represent him.

So you've been readily see there a period of about 20 days there that he was not represented.

Chief Justice Earl Warren: Well in what proceeding was the lawyer appointed?

Mr. James D. Lopp: The lawyer was appointed at the time of the period on the arraignment after the indictment was being returned, Your Honor.

Chief Justice Earl Warren: On arraignment for murder.

Mr. James D. Lopp: On arraignment for murder, after the grand jury met.

Chief Justice Earl Warren: Yes.

Mr. James D. Lopp: He didn't have any attorney when the grand jury met at all.

And that juries I read to you here he says that he didn't appoint an attorney for him.

He didn't have the attorney.

And here was the -- the city jail and if you can just go right on one door right is -- the next is the -- is the city courtroom.

Chief Justice Earl Warren: If he -- if he was arrested as a parole violator, would it be essential to appoint an attorney for him?

Mr. James D. Lopp: I think that if he was arrested for fraud, I think you can arrest anybody, I think you're entitled for an attorney.

You're entitled to be informed the nature of the charge against him and -- and such, I think so.

I believe it would be.

Chief Justice Earl Warren: Is he entitled as a parole violator to a trial in the courts there?

Mr. James D. Lopp: I'm sure, he's entitled to --

Chief Justice Earl Warren: Is he?

Mr. James D. Lopp: -- trial court.

Chief Justice Earl Warren: As a parole violator?

I didn't know that.

I --

Mr. James D. Lopp: He is entitled to --

Chief Justice Earl Warren: -- I thought --

Mr. James D. Lopp: -- (Voice Overlap) whether or not he would be entitled to a hearing on whether or not he was violating his parole.

Chief Justice Earl Warren: Well, who does that --

Mr. James D. Lopp: Why he (Voice Overlap) --

Chief Justice Earl Warren: -- in your State?

Mr. James D. Lopp: -- to be brought --

Chief Justice Earl Warren: -- is that the Court or is that your board of prison directors or --

Mr. James D. Lopp: Well, he (Voice Overlap) --

Chief Justice Earl Warren: -- or what agent -- what agency determines whether he's a parole violator?

Is it the courts?

Mr. James D. Lopp: I think that it -- it could be the courts.

Yes.

Chief Justice Earl Warren: Well, is it done in your --

Mr. James D. Lopp: Well, not --

Chief Justice Earl Warren: -- procedure?

Mr. James D. Lopp: I -- I don't --

Chief Justice Earl Warren: You're a public defender I would --

Mr. James D. Lopp: -- I don't want to get myself in the middle.

I want to be perfectly fair here.

I think it could be done in several ways.

In other words, if he did not violate his parole, he didn't do anything at all.

I think that he would be entitled to -- that the parole officer had him mocked up.q

(Inaudible) he can file petition for writ of habeas corpus to get out if we didn't do anything about this parole.

Other than that, I -- he was being assured, he'd been entitled to hearing before the parole board.

Now, I -- other than that, I just wouldn't want to comment, Your Honor.

I just wouldn't because I -- I wanted the Court to know that he did stand there on that time.

I'm (Voice Overlap) --

Justice John M. Harlan: You haven't referred -- you haven't referred to Dowd to a point that you make that as I understand it that the -- those were the questions of the exclusion of the rest of the panel while the examination of the voir dire was going (Inaudible)

Mr. James D. Lopp: Yes, during the part of the -- that's found I think --

Justice John M. Harlan: I know what the point is but would you care to comment on it?

Mr. James D. Lopp: Yes.

During the period of the voir dire examination here, Mr. Lockyear and I made a motion for this Court separating the jurors as they took the stand.

And that is found on page 2399 of this transcript where we move the Court to separate these prospective jurors so that when they were in the jury box, they wouldn't be carrying up one or the other had to say.

Court overruled our objection and refused to do that.

Justice John M. Harlan: What prejudice is subject to that?

Mr. James D. Lopp: What we -- subject?

Justice John M. Harlan: What's your point, yes.

I didn't understand --

Mr. James D. Lopp: Our point is that is here, jury after jury and have a jury sitting in the jury box and jury after juror would come in, prejudice I think he's guilty.

He might be related, he might be an aunt, uncle or brother or some -- one of the jurors already on there.

There is one juror who thinks, "Well now, wait if John Jones thinks he's guilty, I know John Jones, why, maybe -- I'm thinking wrong here."

And after so long of time, that's going to build us in your mind if you keep saying somebody is guilty, somebody is guilty 431 times you're almost, why, you're going to be -- it's not too hard to confess somebody that -- not just party on you.

Justice Charles E. Whittaker: What did you want?

Did you want for me to -- as soon as jurors would qualify, take them separately.

Mr. James D. Lopp: Take them, put them into another room.

Justice Charles E. Whittaker: And keep also prospective jurors out and only the one being examined the presence tribunal.

Mr. James D. Lopp: That's right.

That's right.

Justice Felix Frankfurter: But your -- your -- the core of your case is that there are set on this jury X number of jurors, I don't know how many, three maybe.

But there were at least three men on that jury, proved on detail examination, indicated that they had a settled conviction that this man was guilty but when taking in hand by the judge, and ask whether they could, despite that fact, render a verdict on the evidence, they said they thought they could.

And your point is that that is -- that adds up to a humanly impossible undertaking, is that your case?

Mr. James D. Lopp: That's right.

That's right.

In other words, the judge might --

Justice Felix Frankfurter: No matter how this thing got into the papers, no matter how wise or unwise it is to allow papers to be printed, no matter who is responsible for it, the effect on the minds of those jurors were such that they couldn't rub it out.

No matter what honest, self-deluding protestations they made or the assurance since they gave what they could.

Mr. James D. Lopp: It could --

Justice Hugo L. Black: On that point, I see neither one of you have referred to the case of Spies or Thieves against Illinois, have you?

Mr. James D. Lopp: We have that in our brief.

Justice Hugo L. Black: You have?

Mr. James D. Lopp: -- in our brief.

Justice Hugo L. Black: What is the difference between the two cases?

Mr. James D. Lopp: Well, I -- on that Spies case, what you said and I remembered also, the jurors had not expressed their opinions.

Now, in this case, these jurors had expressed their opinions and some of them, to the extent of everything except fixed stability.

Justice Hugo L. Black: I thought --

Mr. James D. Lopp: They couldn't make up their minds whether they want to give him death or life.

Justice Hugo L. Black: I thought some of these have gone along way in the Spies.

I'm not meaning to say that Spies covers your case or that it should cover it but some of the jurors went a long way with reference to the statement that they were conveyed.

And it was only by much finding of the Court with a number of instances that there could be urged to say that they did not have a (Inaudible) opinion.

Mr. James D. Lopp: They didn't express to the third person or something because I think it's (Inaudible)

Justice Hugo L. Black: They expressed it in the Court.

Mr. James D. Lopp: Then the Court did it, yes.

Justice Hugo L. Black: And they were accepted on the jury.

Mr. James D. Lopp: Yes.

But I think irrespective or as far as our Constitution comes first, the question is whether the due process, not a matter of qualifying him under some particular statute.

It's qualifying him under the Due Process Clause of the Constitution.

That's our position in this manner.

Justice Charles E. Whittaker: Well, (Inaudible) it's -- if the qualification and not the statute, then it becomes a question of whether the statute itself is constitutionally valid for due process reasons, isn't that right?

Mr. James D. Lopp: Well, yes.

Justice Hugo L. Black: Or as applied.

Mr. James D. Lopp: Its application of it.

Justice Hugo L. Black: Or as applied.

Justice Felix Frankfurter: Yes.

Mr. James D. Lopp: Yes.

Yes.

Now, we do have or we couldn't continue.

I think my time is up.

Justice John M. Harlan: Are you the public prosecutor, this is a matter -- are you the public defendant?

Mr. James D. Lopp: Am I the public defendant?

Justice John M. Harlan: Yes.

Mr. James D. Lopp: No.

Justice John M. Harlan: Or do you -- you were assigned discretion.

Mr. James D. Lopp: Yes.

I've been assigned for discretion.

Chief Justice Earl Warren: Mr. Lopp and Mr. Lockyear, the -- on behalf of the Court, I like to express our appreciation to both of you for representing this man.

We understand that you're appointed by the court below and had carried it through to this Court and without compensation to yourselves and we appreciate that kind of public service.

And Mr. Givan, we want to express our appreciation to you for your frank and fairness presentation of the interest of your statement.