FERGUSON v. GEORGIA

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Argument of Paul James Maxwell

Chief Justice Earl Warren: Number 44, Billy Ferguson, Appellant, versus Georgia.

Mr. Maxwell.

Mr. Paul James Maxwell: Chief Justice Warren, this Honorable Court pleases.

This is an appeal from the Supreme Court of the State of Georgia.

Billy Ferguson, the appellant in this case, a 19-year-old boy who is arrested without a warrant in July the 17th, 1958 at Douglasville, Georgia.

He was immediately taken to the jail and locked up, where he was questioned for approximately seven hours by about five or six policemen, deputy sheriffs and Georgia Bureau of Investigation officers.

All of whom refused to take this boy before committing magistrate on the Georgia law to inform amicus right to have counsel.

And after being confined in jail, he was then being questioned.

He was forced to take a paraffin test.

He was finally and mentally coerced into making a confession.

Justice William O. Douglas: Would you speak up a little bit careful?

What kind of a test was he --

Mr. Paul James Maxwell: Paraffin test, Your Honor.

Paraffin test.

Justice William O. Douglas: But could you describe what -- what the paraffin test is?

Mr. Paul James Maxwell: Paraffin test, Your Honor, is where they put wax, as I understand it, on your hand to see whether you have fired a gun or not, to see if you had recently fired a pistol or a gun.

He was indicted by the grand jury on September the 15th, 1958 which was approximately two months after he was arrested.

He was tried on September the 23rd, 1958 and found guilty and sentenced to death by electrocution.

The Supreme Court of Georgia affirmed the lower court.

Now, this Honorable Court pleases, we contend that this appellant has been denied his constitutional rights before his trial, during his trial and after his trial.

He was not given we contend a fair impartial and legal trial.

Now, if this Court pleases, Georgia has to say the very least a unique and a distinctive law which is called Section 38-415 in which will be found set out on page 3 of the appellant's brief in which I would like at this time to read.

In all criminal trials, the prisoner shall have the right to make to the court jury just such statements on the case as he may deem improper in his defense.

It shall not be under oath and shall have such force only as a jury who may think right to give it.

They may believe in preference to the sworn and testimony in the case.

The prisoner shall not be compelled to answer any questions on cross-examination should he think proper to decline to answer.

Now, Georgia Supreme Court has repeatedly held that the defense lawyer has no right to ask or assist the defendant in any way when he is on the stand.

It is our contention, if this Honorable Court pleases, that this Code Section 38-415, as construed by the Supreme Court of Georgia, is invalid under both the Due Process and the Equal Protection Clause of the Federal Constitution.

Now, I would like to say right here, if the Court pleases, that when I first moved to Georgia about eight years ago, I was indeed surprised that this unique law but I was more surprised that while the Code Section has been in operation since I believe 1868 and there have been hundred of cases taken up to the Supreme Court of the State of Georgia regarding its logic and other factories, no one ever raised the constitutional validity of that statute until I attempted to do so in the Corbin case which is 212 Georgia, page 231 where in the Georgia Supreme Court ruled that I -- it was not properly raised and therefore refused to pass on it.

And it was brought to this Court on certiorari and of course declined.

The Supreme Court of Georgia like I said before has repeatedly held that they cannot assist in any way.

Now, if I may illustrate what happens in Georgia, the defendant has told the (Inaudible) upon the witness stand.

Justice Charles E. Whittaker: He's told?

Mr. Paul James Maxwell: He is told.

He wants -- wants -- defend lawyer wants him to do this, told about on a witness stand.

He gets up on the witness stand and the judge turns to him and says, now, Mr. -- in this case, "Mr. Ferguson, you are charged with murder.

You have a right to make to the jury setting over there just such a statement as you want to make if you care to make one.

You can't be sworn, nobody can ask any questions.

Now, go ahead and make a statement if you want to make one.

Now, this Honorable Court will try to realize --

Chief Justice Earl Warren: Is that exactly what was said in this case?

Mr. Paul James Maxwell: Yes sir, Your Honor.

Chief Justice Earl Warren: It is.

Is that in the record?

Mr. Paul James Maxwell: Yes, I believe -- I certainly believe it is, Your Honor, and that's what they mostly, say very seldom do I ever repeat the Code Section word to word.

However, most people especially a boy like this boy, most people who have never been to a court for anything in their life, they're tongue tied, they're nervous, the lawyer -- his lawyer might just well get up and go downstairs or outside and go and have a cup of coffee, he can't do a thing for him, he can't help in any way whatsoever.

He gets up there and he'll stammer around and most of them will say, "Well, I -- " that is -- I -- look at the jury and say, "Well, I didn't do it."

And none at all else to say, and the lawyer sits there like this, "Tongue tie can't help him anyway whatsoever."

However, the Supreme Court has now interpreted into this Code Section that while the defense lawyer has not -- does not have a right to ask any questions, it is discretionary where the judge as to whether he shall be allowed to ask any questions or not.

Now, as it isn't -- so the City of Atlanta, the criminal court is divided in two sections, two divisions.

Now, if I may point out to this Court, down at this under the hall as division number one, down at this under the hall as division number two.

Let's assume that there was a murder trial about to start down in division number one and a murder trial to start down in division number two.

The lawyer -- the defense lawyer down on number one, says to the judge, "If Your Honor pleases, I know I don't have any right to ask any questions on the Georgia law but from my help my client out."

And that judge says, "Well yes, go ahead.

Ask him anything you want to ask him.Help him all you want to help him."

At the same time -- same at the other end of the hall, that lawyer has the same question and the judge says, "Absolutely not, you have no right to ask him any questions and I forbid you to ask too many questions."

Now, how can anybody say that that is equal protection of the law?

Justice John M. Harlan: What's the fact here?

Did they usually exercise their discretion (Voice Overlap) --

Mr. Paul James Maxwell: No, sir.

They do not.

They do not exercise that discretion.

Justice John M. Harlan: You mean it varies from judge to judge?

Mr. Paul James Maxwell: Yes, sir.

Justice Charles E. Whittaker: Did the judge have, if he allowed some questions to be asked by defense counsel, would he then also be able to allow the prosecutor to ask some questions of this defendant?

Mr. Paul James Maxwell: Not Your Honor, unless -- unless the defendant refused.

Now, if their defendant says it's alright for him to ask me questions, then he may do so.

Justice Charles E. Whittaker: I thought the statute said that he -- the defendant could not be cross examined.

Mr. Paul James Maxwell: Unless, he -- if he declines to do so Your Honor, it says, if he declines to do so mostly with this permission.

Justice Charles E. Whittaker: I understand that Section 38416 one following the one you've read makes of such an accuse than incompetent witness, but under the preceding section, he maybe likes to get on the stand but not as witness, --

Mr. Paul James Maxwell: Yes.

Justice Charles E. Whittaker: -- make any statement he wants.

But, he cannot be cross examined.

Mr. Paul James Maxwell: That is right.

Justice Charles E. Whittaker: Is that right?

Now, wouldn't it be a little bit in Congress for a witness to be allowed to be examined on direct by his own counsel and still not to allow any cross-examination of him?

Mr. Paul James Maxwell: It would Your Honor.

It would.

My contention is this, that that Code Section does not say anything about direct examination.

It stresses and strongly says, "Cross-examination."

Now, if the Court is going to interpret the cross-examination means, any kind of examination, that it would be up to the defendant to say, "I would like my attorney to ask me some questions and I would like the Solicitor to ask me some questions."

But it has not deemed to be in to be that way.

It is deemed that he can't get up and make a statement but he cannot be cross examined if he declines to do so.

Justice Felix Frankfurter: Well, isn't the -- isn't the null of this case that Georgia had continued to what was essentially under relevantly, recently (Inaudible) at all --

Mr. Paul James Maxwell: (Inaudible) law.

Justice Felix Frankfurter: The question is whether the fact that its own law makes it a true law.

Didn't I ask you for these questions, these both?

Mr. Paul James Maxwell: The answer to -- to Mr. Justice Frankfurter is that the old law is embodied in 416 which follows --

Justice Felix Frankfurter: No, I'm not talking about your Georgia but that -- that would be in each law.

Mr. Paul James Maxwell: Yes, sir.

Yes, sir Your Honor.

Yes sir, it was.

Justice Felix Frankfurter: Well, if you mean the competent witness that he could make a statement about whatever he wants to make a statement about, and Georgia has continued that, the only statement you make as I understand it, the question is whether time has so far outlawed that old laws could make it come in competent with the Fourteenth Amendment.

That's your -- that's our problem, isn't it?

Mr. Paul James Maxwell: Yes, sir, it is.

It's the only State as I understand it in the United States that has such a law.

Justice Charles E. Whittaker: Your statement and your conclusion would make of the accuse defendant, a competent but not a compellable witness, is that your view?

Mr. Paul James Maxwell: My view is Your Honor that the whole Code Section is invalid.

You're asking my view.

My view is that it's all invalid.

It's invalid because it denies to the first it denies to the defendant the benefit of counsel that the most important time of his trial when he needs counsel law and he does any other trial.

Justice Charles E. Whittaker: You said both sections of lawyers, is that it?

Mr. Paul James Maxwell: I -- I believe if the -- the part that says that he may make a statement, any statement that he desires to make, I believe that that would mean that he would have a right to have assistance, at least assistance from his own attorney in making that statement.

Justice Charles E. Whittaker: He hasn't advised him counsel from him -- from his lawyer before he gets on the stand the (Voice Overlap) --

Mr. Paul James Maxwell: Before he gets on the stand.

Yes, sir.

Justice Charles E. Whittaker: It is only that he can't be examined there.

Mr. Paul James Maxwell: He can't be assisted even.

Justice Charles E. Whittaker: Now, would you allow full examination -- you think he has to have a full examination and cross-examination?

Full, is that it?

Mr. Paul James Maxwell: I prefer my reference would be -- I prefer for the justice on both sides for the defense and for the State if he was allowed to do like you do every other jurisdiction including the federal courts if you want to put the man up on a witness stand and let him get up, he swore in and testify and then be cross examined.

I don't see how a jury could arrive at the truth about things if some man is put up on a witness stand and that the judge tells the jury, "Now, you're going to believe if want to you can believe in preference to a sworn testimony.

Most people believe in the sworn testimony.

Now, it is worthy also a note that Your Honors, Justice Whittaker -- Mr. Justice Whittaker stated that that is followed by 4 -- 416.

Now, in a reply brief that was stated on page 9.

They were -- they say and even if the Code Section 38-415 is invalid that if found this case would not be benefit since he would be unable to make any statement.

Now, my answer to that is first of all, we have to cross that bridge if it is invalid when we can't do it.

But secondly, I feel a no that the Georgia Legislature at this Court was to rule that that Code Section was invalid on the constitutional grounds which we had certainly asking this Court to do that the Georgia -- Georgia Legislature would immediately pass a bill which they have been trying to get them to do.

Every grand jury presumptive recommends that it'd be abolished.

And most judges and lawyers on layman preferred to have it abolish than they give into their vagarious way of doing things by having any competent witness.

Now also, where it says that he is incompetent to show you how confusing this whole thing is on page 14 at the top of the page, of the reply brief, the appellee says, "It is respectfully submitted that the Georgia practice of the law in a criminal defendant who was incompetent to be a witness to make an unsworn statement without being under direct examination buy his counsel is not violated with these vagrancies.

The part I want to bring out is where it says who was incompetent to be a witness.

Now in 1951, the Georgia Legislature added to the Georgia Code Section 38-1606 an evidence of following and I quote "provided, however, that this Section shall not prevent a party charged with adultery from being competent to testify as to his or her innocent of such charge."

Therefore, defendant charged in the State of Georgia with a crime of filthy is competent but if he's charged with murder, he is not competent.

That's how confusing it is.

That was an Act of 1951 where they simply made adultery, the crime of adultery a person could be a competent witness.

Now, this appellant was arrested without a warrant, never taken before committing (Inaudible).

He's held in jail for about two months.

A writ of habeas corpus was taken out on his behalf on September the 4th and the trial judge set that out for a hearing on the 23rd -- the 15th day of September, 1958, which was the same day that the grand jury was meeting.

Now, that was in violation, this holding there was in violation of Code Section 27-212 which is set out on page 3 of the appellant's brief and with says that any personal arrested without a warrant shall be conveyed immediately or as soon as possible before admitting magistrate and anybody held over 48 hours shall be released.

When this -- and also I'd like to bring out -- to bring to this Court's attention in the appellee's brief.

They say on page 17 that there is no evidence in the record of any illegal detention, no record in the evidence of any illegal detention.

They stated that on page17.

In the record on page -- starting on page 26, 27 and 28, if this Court pleases, the officer, J.B. Cooper says, "We have a Justice of the Peace on this courthouse, I did not stop at that Justice of the Peace or anywhere else and obtain a war of any kind, not on my superiors handed me a warrant or told me that they had a warrant.

When I pursued in, I had time to stop and obtain a warrant if I had wanted to do it.

Justice Hugo L. Black: Stop at what?

Mr. Paul James Maxwell: And get a warrant.

Justice Hugo L. Black: Oh.

Mr. Paul James Maxwell: So there is evidence in the brief that he was illegal -- that it was an illegal detention.

Now, the judge set this writ of habeas corpus hearing found for 2:30 on September the 15th.

In a few minutes, just a few minutes before we go to trial and hearing the writ, it was announced by the Solicitor that the grand jury has indicted the appellant.

The trial judge then issued a bench warrant for his arrest.

He issued a bench warrant although he had been in the jail still was and had been for two months but he answered the bench warrant and that he said, "It is now moot because I just issued a warrant."

They waited two months.

They do what they should have done two months previously.

Now, when he was put in jail and questioned for six -- for seven -- about seven hours by all these policemen, deputy sheriffs forced to take a paraffin test, we had claimed that that was an illegal detention.

Now, it is very worthy and worthwhile to notice that on page 9 of the -- of the transcript of the record, this confession -- to me this is very important, this is a confession that they got from this boy.

I have been advised of my rights --

Chief Justice Earl Warren: Where do you find that?

Mr. Paul James Maxwell: On page 9, Mr. Chief Justice Warren, at the bottom of the page.

(Inaudible) number first.

Chief Justice Earl Warren: Yes.

Mr. Paul James Maxwell: "I have been advised of my rights that I do not have to make a statement of any kind, that any statement I do make can be used against me in a court."

The plural is used, "I have been advised that my rights," but the only right that's in there recently, it doesn't have to make a statement.

It certainly doesn't say anywhere in there that I have -- I may have an attorney if I want one.

It says nothing about that whatsoever.

They used the word plural rights for one right that they told him about.

They did not tell him any other right to have counsel.

Now, it is very true that later on, somewhere in the transcript here, when he was being questioned by the State Solicitor, one of them said, "Oh, yes, we asked him if he wants a lawyer and he said he didn't want one."

But it was at the beginning of that confession right there where he was advised of his rights."

We advised him that he -- that I have been advised that I have a right to have a counsel.

I do not have to make a statement.

If I do not care to do so, if I had it in all there, I would agree to it but it doesn't say it there."

And that's what the boy signed and that's why we have to go on then.

Chief Justice Earl Warren: Did you raise federal question?

Mr. Paul James Maxwell: But says --

Chief Justice Earl Warren: Did you raise the federal question?

Mr. Paul James Maxwell: In the lower court?

Chief Justice Earl Warren: In the trial court.

Mr. Paul James Maxwell: Yes, sir.

Chief Justice Earl Warren: Where on this issue?

Where did you raise it?

Mr. Paul James Maxwell: Oh, I'm sorry.

You mean on this --

Chief Justice Earl Warren: From what you've just been talking to us about.

Mr. Paul James Maxwell: You mean this part about the confession?

Chief Justice Earl Warren: Yes.

Mr. Paul James Maxwell: I didn't raise it as saying at the time in a court that it was against his federal rights.

If that's what Your Honor mean.

Chief Justice Earl Warren: Where did you -- where did you first raise it?

Mr. Paul James Maxwell: I raised it all the way through it because a lot of these things, Your Honor, we didn't know about until afterwards.

Chief Justice Earl Warren: Well, didn't you know -- you know about this, didn't you?

Mr. Paul James Maxwell: I knew about that.

Yes, sir.

Chief Justice Earl Warren: You didn't raise it?

Mr. Paul James Maxwell: I objected to it.

Chief Justice Earl Warren: Well, you didn't raise it.

You didn't raise it.

Mr. Paul James Maxwell: (Voice Overlap) being admitted into evidence because it was a violation of his constitutional rights of being -- its confession being used for --

Chief Justice Earl Warren: Where -- where --

Mr. Paul James Maxwell: -- the mistake I made according to Supreme Court in United States was that I use this Honorable Court's rulings and two federal cases.

Chief Justice Earl Warren: Where -- where does it appear in the transcript that you raised that question?

Mr. Paul James Maxwell: On page 76, Your Honor, the Supreme Court of Georgia's ruling under A.

It says that the Supreme Court of United States, those were the same cases that I raised the issue of the --

Chief Justice Earl Warren: Page what?

Mr. Paul James Maxwell: Page 76, Your Honor, A, subject A.

Chief Justice Earl Warren: Well, that's the opinion of the Court.

Mr. Paul James Maxwell: Although -- that's what I raised Your Honor, and they're saying that -- that --

Chief Justice Earl Warren: But where did you raise it in the -- where did you first raise it, I asked you?

Mr. Paul James Maxwell: In the trial court.

Chief Justice Earl Warren: But where in this record does it show that?

That's what I mentioned to you.

Mr. Paul James Maxwell: This particular brief available, so it's in this -- that was sent up is of course not the complete one and I'm going to have -- to be sorry to say, Your Honor, I don't know just where.

It isn't here.

Chief Justice Earl Warren: Then go ahead with your argument.

Mr. Paul James Maxwell: But it was -- it was raised about those federal cases as being inadmissible along -- in the record that I said it was so inadmissible on all of those facts.

Now one of the main things, other main points that we have that we did not know what were after.

The trial of this case was that two of the juror men that tried this case were related to the Solicitor that was to the prosecuting attorney.

We didn't know it at the time and we found a lot after the trial.Of course, it was well-known to the prosecuting attorney and a third chairman was related to the sheriff that had trusted the other.

Now there again, we bring him to Supreme Court of Georgia into this as being a violation of his constitutional rights.

The only two things that the judge of the lower court in his order overruling the motion for a new trial was bias and the jury who's being related to the Solicitor.

Now, the Supreme Court of Georgia held -- literally held that it's perfectly alright for -- to have 12 jury men related to the prosecuting attorney in the criminal case.

Of course, you can't do it in a civil case but on a criminal case it's perfectly alright because he's not supposed to have an interest in the case.

Now of course, I don't know if any prosecuting attorney who has ever run the clause, this doesn't mean they're doing everything in the world they can to our conviction.

And I would say that any jury men if they're related to the prosecutor and the defense did not know it then I certainly would not say if that was an impartial jury by any means.

I don't believe that the Federal Constitution for an impartial jury man would be covered by saying if they were relative to other prosecuting attorney.

Chief Justice Earl Warren: (Inaudible) questioning of the jurors on the part here?

Mr. Paul James Maxwell: Yes sir, Your Honor.

There are again the -- impermeably honest, the Supreme --not the Supreme Court but the trial judge practically set out a line but I didn't ask him.

Chief Justice Earl Warren: He what?

Mr. Paul James Maxwell: He said the truth I didn't ask him this question.

I asked everyone of those jury men because I knew that Douglasville is a small town about 3000 people and I certainly responded enough to know that I was one of the tough time getting an impartial jury.

And I asked each one of them a series of questions, one of them was, are you related to the Solicitor or to anybody sitting at his table?

Chief Justice Earl Warren: Is that in the record?

Mr. Paul James Maxwell: Just a second, Your Honor.

I will cover that completely.

The other question was how well do you know the Solicitor?

Now, the States all fit at the making after the rehearing -- the hearing for motion for a new trial, they have 12 affidavits.One from each one of the jurors stated this and submitted up to the trial judge.

In those 12 affidavits, it says this, "They all admitted that I asked him a question of how well they knew the Solicitor."

One of them said that I asked him -- yes, I asked him if he was related by blood or marriage.

Another one said he wasn't quite sure.

However, the judge in his order overruling the most of a new trial which is on page 11 of the appellant's brief, the Court finds as a matter of fact that from affidavits of the 12 jurors sworn who tries that case submitted on behalf of the State of Georgia that the question, are you related to the Solicitor or anyone in his law office or anyone around the table was not in fact and in truth asked of the said jurors individually or collectively when the jurors were being examined.

Now, the problem now comes up though that we do not have those affidavits and all in this record because the Supreme Court of State of Georgia stopped us from doing it.

That's another one of our grounds for asking from up here, where this had gone through.

When I have time to go to the Supreme Court of Georgia on this appeal, missing parts, there were some missing parts missing.

Now of course, in Georgia, the lawyer is supposed to check it all.

That was my fault.

I make no comments about that.

That was my mistake.

However, there's a Code Section which will be found by on -- in the appellant's brief, on page 4, at top of the page, which says, if however it appears the appellate court --

Chief Justice Earl Warren: Where are -- where you reading?

Mr. Paul James Maxwell: Page 4 Your Honor.

Chief Justice Earl Warren: 4?

Mr. Paul James Maxwell: Yes sir.

On top of the page, Section 6-810 subsection 4.

If however, it appears to the appellate court an argument of the counsel on the hearing or in the consideration of the same preparatory in making up the judgment of the Court that any part or portion of the record of the case in the court below has been brought up and such -- has not been brought up that such part of a record is necessary in the opinion of the Court to read before them an order to fully and fairly adjudicate the question of issue in the alleged errors then the Court show by its order directed to the Court to the court below require them to certify and send up such portions of the record.

As in the opinion of appellate court, I need full and necessary in order to fully and fairly adjudicate the errors of assignment.

Now, that has been interpreted word per word as a must on the Supreme Court by Chief Justice Duckworth of the Supreme Court of Georgia.

When the Court overrules -- the Supreme Court overruled it and said that the record wasn't up there, I came back on the rehearing and asked them about that Code Section and asked to send out and have it sent out.

Now, they dilly-dally around, they sat down to the lower court what they have would be a word approved brief of evidence.

Chief Justice Earl Warren: I beg your pardon.

Mr. Paul James Maxwell: Approved brief of evidence.

If you have the approved brief of evidence down below, send it up.

If you don't, let us know, so of course, the court down below said, "Yes, we have all these affidavits submitted by the State and all down here, but they haven't -- they haven't approved.

They don't have an approved by the judge.

So the Supreme Court of Georgia said, "Well, if they aren't approved then we can't force them to set up."

However, in Atlantic National Bank versus Zinc, they held it's just the opposite of that, which is cited on our brief there.

And our contention is that the only two things that that lower court and his order overruling a motion from a new trial, the only two things that he mentions both retained to the missing parts were not set up.

That's all he refers to.

We don't refer to any other ground behind it, just so as two grounds.

Now, how in the world can a Supreme Court rule that there were no errors in the trial court if they don't have any forum to go over what his own far as this?

Chief Justice Earl Warren: Was this called on cleaving and practice applicable to both criminal and civil litigation?

Mr. Paul James Maxwell: Yes, sir.

Yes, sir.

Of course the -- our careful reading of the -- the record here or not the record but our saying that's referring to all Supreme Courts' doings about this will show that the judge has said that these affidavits were kind of -- duly and timely presented.

They were on record in the Court but -- in the clerk's office.

Therefore, it -- I just cannot understand why if all that was done that the judge gave us -- gave the State and myself time to file these things which we did file, which he turns around his ordinances that he gave us time and they were duly and timely presented.

They were filed on the clerk's office.

Why anybody could say enough by the record?

Now, I just don't understand when the whole order that the judge writes is on that final record and nothing else.

Justice Charles E. Whittaker: Do I understand you to say that those were affidavits by the jurors?

Mr. Paul James Maxwell: Yes, sir.

Justice Charles E. Whittaker: And all said that you had not asked these questions?

Mr. Paul James Maxwell: No, sir.

(Inaudible) said that I did not ask them whether they were related to the Solicitor.

What I've said I did ask him if -- if he was related to the Solicitor and once that he wasn't quite sure, but everyone of them, everyone of those 12 said yes, I did ask them the question, how well do you know Mr. Noland, the Solicitor.

And it's my contention if I ask a man how well do you know John Jones, he's a brother of his.

He ought to come out and say, "Well, I all know him well pretty good, he's my brother."

Justice John M. Harlan: Well, what is the relationship the one that you're talking about?

Mr. Paul James Maxwell: Second or third cousins.

Justice John M. Harlan: Second or third cousins --

Mr. Paul James Maxwell: Yes sir, which in the civil angle in -- that the Supreme Court held in Georgia, he would be incompetent.

Well in the criminal case, he would not be.

The Supreme Court --

Chief Justice Earl Warren: What -- what are their answers?

What were their answers as to whether or not they knew the prosecutor?

Mr. Paul James Maxwell: That Your Honor, their answer was simply what any man would say, I know him pretty well, or I've seen him around town, or I have been with him for a while or something, I met him at large, or something like that.

There was no indication that they were close at all in any way.

Chief Justice Earl Warren: One of those who was relative, the one that you stated that the question had been asked of him?

Mr. Paul James Maxwell: No, sir.

My contention is that the fair and impartial trial is just as much on the part of the State, prosecutors to give you that fair (Inaudible).

And all do respect to Mr. Noland, I think that he knew they were relatives of his and they should have searched them, because that's no way to convict the person if I have relatives on the witness stand or on the jury.

I -- I say that anybody who was guilty, if they've given all their fair just rights under our way of law and then a jury comes back and finds him guilty, that's the way we have it in the United States but I don't feel that there should be any conniving or having jury men or anything else to convict the person.

Chief Justice Earl Warren: Mr. Winn.

Argument of Dan Winn

Mr. Dan Winn: If the Court please.

If I can take the -- an issue of moments of this time to try to narrow the issues of this case before the Court, I think that Your Honors have been able to see that basically, there is only one constitutional question before this Court that is the constitutionality of Code 6 in 38-415 of the Georgia Code allowing the unsworn statement.

Now, I will, later in my argument, see why I believe that is the only question, but at this point, I would like to clear up one or two inaccuracies that I feel have been presented to the Court concerning the Georgia law on unsworn statements.

As Mr. Justice Frankfurter stated, this law is a continuation of the common law possibly not quite as broad in the usage as it was at that time because as some authorities, I have studied -- stated they allowed the accused to also argue his case at the same time in addition to making such statement as he saw fit.

In that respect, it is not quite as broad.

However, in the interpretation given this by the Supreme Court of Georgia and in my experience since there was a statement by counsel for Mr. Ferguson that been my experience it has been extremely liberally construed in behalf of the accused even in the trial courts, and of course, I cannot demonstrate that to you.

Justice Felix Frankfurter: What happened in -- would you mind telling exactly what happened in this particular case, Mr. Winn?

Mr. Dan Winn: In this particular case, the only -- the colloquy is shown in the record if the Court please that is -- and not as my friend Mr. Maxwell stated an accused is told to take the stand and I -- I believe he -- he stated that -- in this case, this accused was told to -- to take the stand --

Chief Justice Earl Warren: By his counsel.

Mr. Dan Winn: That is -- yes, sir, but that is not the -- that is not the practice.

He has the right at the time the State rest to present anything he wants to present as in any other court.

And it was a part of that.

He wants to make an unsworn statement.

He can't either make it or not make it.

The State cannot -- cannot comment on his failure to take the stand or his failure to be a witness at all.

He cannot even comment on.

Justice Felix Frankfurter: Well, but they couldn't very well, could they, Mr. Winn, as he can't be a witness?

Mr. Dan Winn: No sir.

Justice Felix Frankfurter: Now --

Mr. Dan Winn: The failure to take the stand, I'm sorry.

Justice Felix Frankfurter: May I -- it's failure to make some statement.

Mr. Dan Winn: Yes sir.

Justice Felix Frankfurter: May I ask, it's just for a matter of -- to get -- get more vividly how you do things down there.

When the State rest and assume that the defense puts in a defense who are the witnesses, may the defendant may -- at the very outset, may be accountable for the defendant to say, "My client didn't make statement Your Honor," how much do you wait until if it's all -- if the cases all in?

Mr. Dan Winn: He may do that at any time.

He may never mention that if he sees fit.

Justice Felix Frankfurter: Yes, I know.

You mean you -- he's not -- you don't compel him to do anything (Inaudible)

Mr. Dan Winn: No, sir.

Justice Felix Frankfurter: If he wants to make a statement by way of an opening, he can do that?

Mr. Dan Winn: Yes, sir.

He can make that either at the beginning of the case or at the conclusion of the States case.

He has a -- has a right to make his opening state --

Justice Felix Frankfurter: Could he make it at the beginning of the trial?

Mr. Dan Winn: Yes, sir.

If he sees fit at the --

Justice Felix Frankfurter: Does -- does counsel for the -- the prosecutor doesn't tell the jury what the case is about?

Mr. Dan Winn: Yes, sir.

Justice Felix Frankfurter: Does then the defendant's counsel make his statement?

Mr. Dan Winn: He may.

He may at that time make a statement.

Justice Felix Frankfurter: Well, may the -- may -- the counsel makes -- tells the jury what he plans to defend.

Mr. Dan Winn: Yes, sir.

Justice Felix Frankfurter: And in addition to that, the defendant himself makes a statement?

Mr. Dan Winn: No, sir.

Justice Felix Frankfurter: No.

Chief Justice Earl Warren: We'll recess now, Mr. --

Print this transcript Transcript: 

Argument of Dan Winn

Chief Justice Earl Warren: Billy Ferguson, Appellant, versus the State of Georgia.

Mr. Winn, you may continue your argument.

Mr. Dan Winn: If the Court please?

Yesterday we began to discuss the code section which I feel and stated to the Court, was the only constitutional question in this case.

We had mentioned the fear of the different phases of the procedure under that code section by the Supreme Court of Georgia and to -- presented down on orderly manner, I would like to go over that a moment.

That -- that is this that the -- the defendant has the right to make this unsworn statement.

He -- he may make it if he chooses.

He does not have to make any statement as in another jurisdiction.

He does not have to take a stand unless he and his counsel so choose.

Now, the apparent construction of that statute as interpreted by the Supreme Court of Georgia is the issue here and since the features of it were gone into yesterday, I -- I thought it would be well to mention some of the phases of it that are that the defendant cannot waive this right not to be sworn as a witness, as was mentioned yesterday.

He -- he cannot be sworn under 38-416 of the Code of Georgia as mentioned by Mr. Justice Whittaker yesterday.

He cannot get around that code section.

This particular code section gives him a right in addition to that the code section to be -- to make this unsworn statement.

It --

Chief Justice Earl Warren: That is in addition to what Mr. Winn, I didn't quite understand --

Mr. Dan Winn: Is -- he -- he had no right as it was pointed out yesterday to be sworn as a witness under common law and that is the statute 38-416 that he made not --

Chief Justice Earl Warren: You're making him incompetent.

The Act makes him incompetent as a witness.

Mr. Dan Winn: Yes.

That's -- that's a code section not before this Court.

Chief Justice Earl Warren: Yes, yes.

Mr. Dan Winn: It makes him incompetent as a witness. Then this code section makes him -- gives him the right to make this unsworn statement.

Justice Felix Frankfurter: Do you -- did you happen to search the history, the genealogy of your present code provision in order to ascertain whether that goes back to some statutory provision when Georgia was a colony?

Mr. Dan Winn: Not to the colony.

It does go back to the original -- well, there was no code section prior to 1866 which was --

Justice Felix Frankfurter: It was all at common law?

Mr. Dan Winn: Prior to that.

Justice Felix Frankfurter: Do you mean that no -- there was no legislation on this subject when Georgia became a state?

Mr. Dan Winn: Not prior to 1866, according to my research.

Justice Felix Frankfurter: Well, then it goes (Voice Overlap) if that is true, then when it did become -- was transmuted from a colony into a state, that means it continued the English law, with probably, the usual provision that shall continue as or practically every state except insofar as being compatible with American institutions or words to that effect.

Mr. Dan Winn: Yes, sir.

That -- that is --

Justice Felix Frankfurter: That is the situation?

Mr. Dan Winn: Yes, sir.

Justice Felix Frankfurter: Alright.

Justice John M. Harlan: Do you consider that -- that this man had tendered himself as a witness or merely that tendered himself under your 38-415 provision?

Mr. Dan Winn: I -- I -- it's hard to answer that question.

By looking at the record, he did not tender himself as a witness.

The -- the usual procedure is -- for the accused to take a stand and -- and either the Court or his counsel instructing as to his rights.

In this case, he did take the stand and as will be shown by the record, the -- he was asked his name by counsel and then asked this one question, "Let me ask you this, did you murder anybody?"

Now, there was -- technically, there was no -- there was no request to be made anything.

I was going to get to that point later.

There is no --

Justice John M. Harlan: Did he ask?

Mr. Dan Winn: There's no foundation for -- for exercising even to ask the judge to exercise any discretion that he might have in -- in letting him testify or letting him be examined by his counsel.

Justice Felix Frankfurter: Would -- would any defendant in Georgia -- I guess in Georgia law tender himself as a witness?

Mr. Dan Winn: It is all --

Justice Felix Frankfurter: He may have -- he may have a counsel, it maybe important, maybe certainly relevant and even important to consider whether counsel raised this question but nobody would tender a witness in Georgia in a criminal case as -- tender a person, the defendant as a witness, would he?

Mr. Dan Winn: They have been tendered --

Justice Felix Frankfurter: And just said, it's tendering meaning that he should go on the -- go on the witness, take his seat in the witness chair, put him in direct evidence to be subject to cross-examination.

Would anybody do that in Georgia?

Mr. Dan Winn: It has been held that they did not have the right to make -- that would be making them competent, if the Court pleases and -- and they do not have that right to make themselves what we consider a competent witness.

Justice Felix Frankfurter: Therefore, except that isn't, that a defendant is not a competent witness --

Mr. Dan Winn: Yes, sir.

Justice Felix Frankfurter: -- in the sense in which the defendant is a competent witness in a federal court sitting in Georgia.

Mr. Dan Winn: That's -- that is correct.

He -- he is not a -- a competent witness and is not placed on the stand, as such.

There is a case which holds under a request to swear the accused that he does not have that right under this code section.

He does not have the right to tender himself to be sworn as a witness and that cannot be waived in any manner.

He --

Justice Felix Frankfurter: Well, the English law goes -- which I take it is the Georgia law and wants the law, not by virtue of being English law but by continuation of the English law in the State, some of them until they recently, English theory being not very preserved, English law deriving not out of a sense of fairness, unfairness of the defendant but their reasoning was very different.

It was immunity or inability to be a competent witness in order to protect him when he goes on the witness stand from being shown up disadvantageous.

That was their theory.

Mr. Dan Winn: It still holds true in Georgia of that theory because it -- it has been held that they don't have -- they -- of course under this code section, do not -- cannot be cross-examined unless they submit themselves to it.

The construction of that is that they can't even be asked a question unless they submit themselves to it.

So, counsel for the State cannot start cross-examining them to see if they will answer questions.

They -- they cannot even ask the first question and give him the opportunity to refuse to answer.

It would put him at a -- at a disadvantage of course, to the --

Justice Felix Frankfurter: I -- I think maybe commit myself to the rightness or the wrongness of that conception, but that was a conception.

This was rather improvident vitae instead being hostile to it.

Mr. Dan Winn: Yes, sir.

I have -- I consider it so now and as a matter of fact, most defense attorneys in Georgia do for -- Mr. Maxwell mentioned yesterday that he had been quite interested in getting this code section changed so as the Solicitor General's Association of Georgia and it would have been changed years ago, had we not had so many defense attorneys in the legislature.

I -- but, as he seeks to do here, this Court should not try to pressure the Georgia Legislature into creating a new code section.

I would agree that with him that it should be done and I think eventually, will in not too distant future, but it will not be --

Justice Felix Frankfurter: We wouldn't -- I don't know what his hopes are, but we wouldn't be pressuring in that way, this one thought that in 1960, this -- this somehow relates to -- too long to the extent that due process precludes, shouldn't permit it.

We wouldn't be pressuring, because we would be obeying the Constitution of the United States.

Mr. Dan Winn: That -- I'm sure that that's the -- that would be the ruling of the Court, but it would have the effect to --

Justice Felix Frankfurter: But this code section wouldn't survive.

Mr. Dan Winn: That's correct.

Justice Tom C. Clark: Could make that (Inaudible)

Mr. Dan Winn: Yes, sir.

We would certainly have to have something.

I -- I would think that no -- no right and I might mention the Hawes case in a moment which points up that one thing, it was before this Court a good many years ago, it's in fact the only time that this code section has been before the Court and it was in a left-handed sort of a way, it -- it was concerning the constitutionality of another code section which created a presumption of knowledge on the part of any person who -- on whose property a distilling apparatus was found.

And the Court said that the creation of this presumption was not the denial of due process because the man had the means afforded him to explain this away by code section 38-415 and that by having this means afforded to him, he was not denied his constitutional right of due process.

Justice Hugo L. Black: What case was that?

Mr. Dan Winn: That's --

Justice Hugo L. Black: Is it cited?

Mr. Dan Winn: It's Hawes versus Georgia.

It is in the brief 258 U.S. page 1 -- at page 4.

It -- it -- certainly to my mind, points up the --

Justice Hugo L. Black: H, A, W, E, S?

Mr. Dan Winn: H, A, W, E, S.

Justice Hugo L. Black: It's not in your brief.

In the index, I don't find it.

Mr. Dan Winn: I am certain --

Justice Hugo L. Black: 258, did you say?

Mr. Dan Winn: 258 (1), yes, sir.

Justice Felix Frankfurter: May I ask you this?

What is the law of -- of Georgia as to the competence of parties in a civil suit?

When did you change the common law on that?

Mr. Dan Winn: That --

Justice Felix Frankfurter: Because the usual course both in England and in the States is that they first change the rules as to rendering parties competent, often decades before they change the criminal law and they didn't change the criminal law for it's not indicated.

They thought that the rule of mercy for the defendant.

When did you change your --

Mr. Dan Winn: That was in 1866.

Justice Felix Frankfurter: 1866.

Mr. Dan Winn: I'm looking at an article on that.

It was in 1866 that that disqualification which changed.

This code section in its present form, I believe was in 1868 rather in its final form.

It was changed in 1868 to cover criminal cases and then in 1874, it was put in its present form allowing the unsworn statement.

Justice Hugo L. Black: Would that be in the record?

Mr. Dan Winn: No, sir.

They have held that he cannot read a prepared statement.

He can, however, refer to notes which is a -- a common practice to have notes to look at certain names.

That feature of it would not deny him the right of counsel during that period of time.

It would -- I -- I feel compelled and I don't like to be in this position, but I do feel compelled to.

Well, I don't think they're -- they're -- interwoven in the constitutional question here, I feel compelled to mention a few of the inaccuracies in the brief for Mr. Maxwell in saying this, I -- I have a high regard for him.

I don't mean that anything is intentional, but I -- I feel that it should be pointed out here in -- on page 2 of his brief, the -- the statement that there was no -- that this boy was held in custody without being taken before any committing magistrate.

Well, that point was never raised in the trial nor pursued in any manner before, with the officers who had this boy in custody.

Certainly, they were -- they were not allowed to explain why this should be done -- had been done.

It would've been brought out in the habeas corpus proceeding which he mentioned in his brief but which itself, the pleadings nor any of the testimony which was begun in there, none of that is before the Court and it's going beyond the record to -- to include that.

However, by implication, the Court could assume that there was no committal trial.

That's only by implication.

Certainly, it was not raised as a constitutional question properly that there was no warrant, that -- that was mentioned only one time in the -- in the record.

Now, J.B. Cooper was asked if he had -- why he didn't stop to get a warrant before he got the boy or stopped to get one on the way back from arresting this boy, and he said that he didn't stop by the court house to get a warrant.

Now that is the only evidence in here concerning the failure to have a warrant for this boy.

I'm -- I'm at a somewhat of a disadvantage in -- in having to have that statement in the record, when it -- when it is actually, it implies things that did not happen here.

As a matter of fact, the -- it's -- it's going beyond the record, but there was a warrant taken soon after this occurred.

There is a logical explanation for no committal hearing but, it -- it brings into focus -- the very point I'm getting at is that to imply that he was denied his constitutional rights without laying that foundation in the trial court is -- is not proper.

Now, the post paraffin test, there was no -- no indication that that paraffin test was improper.

They asked -- asked if or told him what they're going to do.

The sheriff had requested the doctor from the state crime laboratory to come there and to perform this test.

There was no -- no force involved.

Justice Hugo L. Black: Is that -- Does that appear in the testimony of that -- that test?

Mr. Dan Winn: Yes, sir.

The testimony of Denver Gaston and let me see --

Justice Hugo L. Black: J.B. Gaston.

Mr. Dan Winn: J.B. Gaston, yes, sir, it is.

Well it and it -- it's in there -- also, I haven't found it in Mr. Gaston.

It's also in Dr. Howard's.

It tells about performing the paraffin test and at the bottom of page 48, “While I was out here on July 17th, I did the paraffin test on Billy Ferguson.”

He explains the test there and if there had been anything improper there or in the officer's conduct as it was pointed out in the Stein case, it should've been asked of them at least or elicited from them on the trial of the case, to -- to show this Court whether or not, there was anything improper and in any of these actions --

Justice Hugo L. Black: How old was the defendant?

Mr. Dan Winn: 19 years old.

Now, there are four -- there are four questions presented in -- in the appellant's brief.

One is, is in -- in number one and I'm looking on page 2 of the appellant's brief, where he states there that the confession was coerced and that this -- from this young boy of low mentality.

Now, that -- that in itself is -- is a misstatement, because the only evidence in this case concerning the boy's mentality is from an -- his employer, a Mr. Miller, at the Piedmont Company, there who said he was an average employee.

That's the only -- only evidence of any kind, of the boy's mentality or anything about him other than this case.

Certainly, it would not justify the statement that the boy was of a low mentality.

And in that same paragraph, the point is made that he was not advised of his constitutional right to have counsel.

The record certainly discloses on page 38 that this was done.

We advised him on reading from the top of page 38, the testimony of Mr. Gaston.

He had a right to have an attorney and also advised him that he didn't have to make a statement, but that if he was willing, we would put it in writing and he said he would like to do it.

He wanted to cooperate on that.

Now -- now this, here, it might be well to -- to recall that the time element in this case, which certainly distinguishes it from any of the psychological and mental coercion cases that have been before this Court.

This boy was taken into custody shortly before noon.

He was -- he was not held in comunicado in any sense of the word.

The record shows that his girlfriend, a fiance was called around noon and that she came to talk to him.

And then the -- the officers asked him about his conduct that morning.

Told him he had been seen there early this -- early in the morning of the killing, which was about 7:30.

He had been seen there, leaving there or at the place after or around 7 o'clock and was the last person seen at this T.V. repair station.

He was taken into custody before noon.

They talked to him about his whereabouts that morning.

He told them that he had left the repair station, gone to see about a room, he was going to be married and then went to get the girl he was going to marry and from there, they had gone to Villa Rica which is about 11 miles from Douglasville and were on their way back after taking a blood test at the hospital there when the officers stopped him.

And, he gave his whereabouts of course omitting the killing and the fact hat he had gone by his own apartment to leave the pistol and to leave the wallet, a billfold of the deceased, Mr. Luke Brown and, so they asked him that and then quit questioning him.

Went on about the business of investigating the case, went to the boarding house, found the murder weapon, which was a pistol in which he had placed up in a -- in the attic above the closet in his room, the pistol and the billfold.

After they found that in the middle of the afternoon, they came back around 3 o'clock to 3:30 and confronted him with this and then he admitted it.

There was no coercion, no -- no relay questioning, no -- no psychological, no mental pressure put on him at all.

He was confronted with the incriminating evidence and that was it.

He said, yes, that's -- that's the gun that I killed him with.

His -- his statement was reduced to writing at that time after the -- after he was advised as I mentioned on page 38 and on page 63 that any statement he used, he said, might be used against him in court and that he had a right to an attorney.

Now, that -- that's the confession.

Although I -- I feel that's not a -- it's not a -- a part of this, certainly not a part of this because it -- it was not properly raised in the trial court, but if it was, there was no -- no constitutional violation under any of the rulings of this Court.

So, that and the other two, he has made the point in -- in question two there that unknown to him, the -- there was a relative of the state prosecutor on the jury and that two jurymen were biased.

Now about all I can say to that is that the -- he mentioned in his brief the -- the conduct of the trial court in -- in discussing there, in ruling on it, the trial court heard the motion for new trial, he had it filed October the 10th.

It was heard or to be heard December the 25th, 1958, some more than two months after the filing of the motion, plenty of time.

He, at that time, allowed at the request of the State and the accused additional time until January the 5th -- 25th, 1959 to get up evidence of any bias on the -- on the jury and also anything else that he might have or that we might have concerning his bias.

And in all of the motion for new trial, there were affidavits concerning the relation and there were affidavits concerning his contentions on the bias and those affidavits in -- in his question four, were not sent to the Supreme Court of Georgia, simply because he didn't specify in his bill of exceptions, which is a requirement of the Georgia procedure.

And I might mention here that under the Georgia procedure, the Supreme Court of Georgia cannot hear or consider any evidence that is not or any part of the record that is not approved by the trial court and that is the reason that Supreme Court of Georgia did not order this record up as such.

It ordered any approved record of this trial -- of this hearing on January 25th, 1959.

Justice Felix Frankfurter: What about -- may I break in and quite out of order?

Mr. Dan Winn: Yes, yes.

Justice Felix Frankfurter: The wife of the defendant, if -- is she a competent witness in Georgia?

Mr. Dan Winn: Now, she is competent --

Justice Felix Frankfurter: When did that came about?

Mr. Dan Winn: That was changed some three or four years ago.

Justice Felix Frankfurter: But up to that time, she was equally disqualified?

Mr. Dan Winn: She was neither competent nor compellable.

She is only competent now, she is not compellable.

But, I mentioned these questions two and four which are raised, not that they have any -- any constitutional value, I don't think the appellant has the right to get into this code on -- on a due process question concerning this code section and -- and then use a scatter gun to try to hit anything in the record that might -- that might have been technically incorrect, which these things were not and I'm -- I'm mentioning those not because they have any importance before this Court, but to show that they were technically correct and I think just a quick glance at the opinion of the Supreme Court of Georgia will show that those were technically correct under the Georgia procedure.

Certainly, there was not at any stage, any constitutional question raised on those two.

There was not any constitutional question raised on the confession properly.

As a matter of fact, before the Supreme Court of Georgia and in the brief or in the amended motion for new trial, I'm -- I'm looking at page 11 of the amended motion for new trial which was considered by the Court and which the trial court and which was sent to the Georgia Supreme Court and here is the -- here is his contention on that to show the Court here that -- that there was no constitutional question made there.

He states that the confession was procured prior to the time of the grand jury indictment before any warrant had issue, that the confession was obtained at that time when defendant was being held in jail without any legal or formal charge and further contends, the confession obtained while defendant was being held illegally and his right of counsel and the formal charge before a competent officer were being violated.

That therefore, made the confession void and that is -- that is the only -- the only thing that this Court would have to go on to -- to show that there was any constitutional issue raised, that the confession was void, certainly, not a -- not a sufficient allegation or a sufficient foundation under the prior decisions of this Court.

The Supreme Court of Georgia however, gave him the benefit of that and considered his argument on it, did not as they could have ruled that point out.

They -- in their opinion, cited the McNabb, the Mallory and the Stein cases and even -- even went ahead and considered his constitutional argument though -- though there was no basis for it in the record as I say here that it is not.

That -- that feature even if this Court decided to -- to consider the constitutional aspect of this confession would be controlled by the Stein case, that is cited in our brief and in the opinion of the Supreme Court of Georgia, which holds it that even if there had been an illegal detention that -- that alone is not enough to render the confession illegal or render it coerced, either psychological or mental.

Back in the remaining moments to the Court I have stated, I feel is the only constitutional question here and that is the constitutionality of code section 38-415.

As was mentioned earlier, that is -- is merely a continuation of the common law.

Powell versus State of Alabama, which is cited in the brief, 287 U.S. 45, which is apparently, is relied on quite strongly by the appellant, the Court in that case, laid down the rule which had been mentioned by Mr. Justice Frankfurter yesterday.

One test that is -- which has been applied to determine whether due process of law has been accorded in any given instances, is to ascertain what were the settled usages and modes of proceeding under the common statute law of England, before the Declaration of Independence, subject however, to the qualification that they be shown not to have been unsuited to the civil and political conditions of our ancestors, by having been followed in this country after it became a nation.

The Court -- this Court said that plainly that test had not been met in the Powell case.

That was that involved the -- the denial of the right to counsel by failing to effectually appoint an attorney before the day of the trial.

And the Court held that that -- that was a denial of the right to counsel and in that, they made a statement -- this Court made the statement that my brother has seized upon to -- to hang his head on in this case and that is that the -- the accused is entitled to the guiding hand of counsel at every step of the trial.

Certainly, that would not mean that he was entitled to hold his hand all, during the trial.

The guiding hand of counsel at every proper step on that trial was merely meant that they were entitled to counsel in time to prepare properly for the case and that if he didn't have the counsel at that stage, he was effectively denied of that counsel.

And this Court said that the failure to give them reasonable time to prepare was a clear denial of due process, certainly not the case here.

The Stein case certainly points up what I have said before and that is that it -- certainly he was not denied due process.

The Court said in the Stein case, now that it was particularly applicable to this case, where -- where here on the trial of the case and this is the meat and the only point in this appeal and that is, was this accused denied due process by the trial court and in effect, does code section 38-415 deny him of due -- the right to due process or deny him due process of law?

That's the -- that's the point.

Here's what he did in order to invoke his rights.

He put the accused on the stand.

He said, "What is your name?"

And he said, "Have you murdered anybody?"

And at that point, he was stopped and the court and I -- I would like for this Court to particularly note that the court stated there, I must rule that you do not --

Justice Hugo L. Black: What page is that on the record?

Page 8, I'm informed.

Mr. Dan Winn: It is in the colloquy on -- at the top of page 8.

But on down in that page, the court states at the bottom of the page, I must rule that you do not have the right to question to him.

Now if -- if there had been any unusual circumstance in this case by which he should have been allowed to question this boy and it had been stated to the Court at that time, he certainly would have been allowed to and if there was any substantial reason, I would think that it would deny him due -- due process or could possibly in some trial, deny him due process.

The code section and its interpretation does not, this Court did not.

As the Court said in the Stein case, when they -- they had the counsel for the accused was complaining that if they had put the accused up on the stand to -- to try to rebut the presumption concerning the admission of a confession and to take the stand and show that that confession was coerced, they -- they argued that the New York practice would've allow them to be cross-examined and that they were denied due process of law.

And the Court, this Court answered that argument this way and it's -- it's particularly appropriate for this case.

At page 175 of the Stein case Stein versus New York 346 U.S. 156, the Court said, "We will not adjudge a trial court guilty of constructive abuse by imputing to it a ruling that never was made on a proposition that never was put to it" and that's the case here.

This Court would have to find that the -- the Court had made a -- would've made a certain ruling on a proposition that never was put to it.

So he has never invoked the full benefit of this statute.

Certainly, it does not, under any of the decisions of this Court, deny him due process under the -- it does not as stated in the Powell case.

It isn't --

Justice Hugo L. Black: I just -- just -- I don't quite understand it.

The reason I asked you what page that was on, on page 70, when the state rested, Billy Ferguson was called to the witness stand and he said, "My name is Billy Ferguson, defendant rests."

That's all that appears there.

Hundreds of (Inaudible) on those statements are different, just to weigh of power in the record.

Mr. Dan Winn: Apparently that is a -- a misprint in the record, someway because on page 8, it -- it --

Justice Hugo L. Black: Yes, I've read.

Mr. Dan Winn: You -- you saw that and it --

Justice Hugo L. Black: That is correct, is it?

Mr. Dan Winn: That is the correct occurrence.

There were only those two questions.

Your name is Billy Ferguson?

Yes, sir.

Let me ask you, have you murdered anybody?

And that's the only part of the record, there was no request that he made -- been made by the witness, no request that he'd be allowed to question, no -- no request to examine him.

I -- I could not help but --

Justice Hugo L. Black: Excuse me.

If what appears later on eight days, not the equivalent of the request to be allowed to examine him?

Mr. Dan Winn: It -- it could be considered as an implied request, it certainly does not bring into -- into play the discretion of the Court.

Justice Hugo L. Black: Well the Court -- when they hear that, do you accept that and indicated that you might as well be down the stairs or across the street while he's up there, but I can't have questions.

The court said however logical your argument may be, I'm compelled to hold that you do not have the right to do anything more than instruct your client as to his right, but you have no right to question him on direct examination.

Mr. Dan Winn: That's right, no right.

My point a while ago was that -- that under the Georgia procedure, he does not have the right to -- he -- in the discretion of the Court, he could examine him, prompt him --

Justice Hugo L. Black: Well --

Mr. Dan Winn: It is done.

Justice Hugo L. Black: Well, I -- I don't quite understand the reason for the argument you're making.

Are you saying that he did not specifically say that I ask you in your discretion to commit me to do it?

Mr. Dan Winn: Yes, sir.

That is --

Justice Hugo L. Black: Do you think that what he has said here is not enough to raise the question assuming that it is, as in the validity?

Mr. Dan Winn: Yes, sir.

I do, because he -- here, he is in the middle, he has just put him up and he could -- he could certainly under our decisions, have asked and given some basis for the court exercising a discretion.

Justice Hugo L. Black: Well, I don't know that -- how crucial it is but it would seem to me that's why I'm asking this, when he said, he's now called upon to get on to stand, I might just as well be down stairs of court (Inaudible) for the pretrial is up there.

What (Inaudible) if I can't ask you any question?

Isn't that the equivalent of asking the Court to let him ask that?

Mr. Dan Winn: It -- it is -- it certainly is the equivalent at that point of -- of asking him to let him examine him on direct examination.

My -- my answer was that before the court could exercise, the court has a discretion to allow him to, there would have to be some request and some basis for exercising the discretion and if he had said here, this boy is -- is below mentality or this -- this boy can't talk plain, I -- I think I -- I need to question him, that would have brought into play the discretion of the court.

Chief Justice Earl Warren: But Mr. Winn the very first question he asked, let me ask you have you murdered anybody?

The Solicitor General then said, "That is highly irregular and improper, there is no authority for counsel questioning a witness."

Mr. Dan Winn: That was --

Chief Justice Earl Warren: That sets him off rather abruptly, does it?

Mr. Dan Winn: Yes, sir.

That -- that was too broad, a statement concerning the law, certainly.

Chief Justice Earl Warren: And -- and then when he tried to explain it -- explain why he wanted to do it, the -- the Court have made the remark that Justice Black has just led to you that no matter how logical it was, he -- he must inform him that you have no right to question him on direct examination, it couldn't be much broader, could it?

Mr. Dan Winn: No.

Assuming that -- and there again, I -- I say the court is saying that he does not have the absolute right to question him.

It does not mean that the court would not permit any questions to be put to him, if he properly requested it and the court didn't go ahead and say that, but I say that he should have properly invoked to that discretion.

The last -- the last point that of course, I -- as Mr. Justice Black stated there, you -- you pointed out that you were not stating whether or not that was vital to this issue.

I do not think it is vital because if he had no right to question him at all, I think you would still come under the due process test laid down in the Powell and other cases that if he is allowed to make an explanatory statement, he is not denied due process.

Even though, certainly, Georgia statute goes, under its decisions, goes much -- much farther than that and allows many other privileges and certainly the -- the privilege of having the opening and conclusion is not taken away from him.

He still has that even though he is -- he is put up on the stand.

He has the privilege even if his counsel is permitted to asking questions not to be cross-examined.

The State still couldn't cross-examine him if he didn't want to.

Justice Felix Frankfurter: Mr. Winn, may I ask you this question, as you know in Wolf against Colorado, you know that case, that is a case where this Court held that illegally secured evidence in state prosecution -- the admission of illegally secured evidence in state prosecutions does not -- does not prohibit it as against the states under the Due Process Clause of the Fourteenth Amendment.

Mr. Dan Winn: Yes, sir.

Justice Felix Frankfurter: And, the opinion in that case, I think it's fair to say -- rested conceding the determination of question being what -- what are the words he used, what is so fundamentally against the thought and feelings and conscience of people after the proposition it had?

And the conclusion was reached that in view of the large -- very large number of states that had duly considered this and the rulings in the English-speaking were generally, it couldn't be said on that test that that was valid due process.

Now, then, applying that mode of dealing with the Due Process Clause as against the State, what do you say to the relevance and weight of a body of legislative enactment throughout the English-speaking world, barring only one state, resting on the conviction that it is unfair, whatever advantage it maybe to a guilty man, that he can't be called and cannot be subjected to cross-examination etc, if he wants to take the stand, but it is unfair to an innocent man, not as a matter of right, to let him to tell his story.

And that such unanimity of judgment, not just talk but judgement expressed in legislation throughout the English-speaking world in 49, out of our 50 states, I say 49, I don't know about Hawaii, 40 -- 48 certainly, because Alaska (Inaudible), is the judgment on whether this goes so deeply defended for trial, as to be within the scope of what one draws out of the Due Process Clause, what do say to that?

Mr. Dan Winn: I would say that -- that you would be, you would certainly be assuming that the other legislatures of the United States were passing those things for the benefit of the accused.

Justice Felix Frankfurter: (Inaudible) I don't think one would be assuming much in the light of -- of the writings that preceded and the effort that preceded and the expression of views by judges and counsel for defendants.

I wouldn't be assuming too much, one wouldn't be guessing as to what was on the mind of why this movement has prevailed.

Mr. Dan Winn: To make -- to -- to allow them to testify certainly, to make -- to make some explanation in the trial of the case was -- was of course, I think mandatory under the Due Process Clause.

Justice Felix Frankfurter: Allowing the statement, you mean?

Mr. Dan Winn: Sir?

Justice Felix Frankfurter: To allow them to make a statement.

Mr. Dan Winn: To allow them to make some statements in that trial.

The method of making it certainly, would not to allow them to make any statement that they want to, concerning the trial.

Certainly would not, as you pointed out here and it's mentioned also in the Powell case, it doesn't violate those principle -- fundamental principles of liberty and justice which lie to the base of our political institutions.

Justice Felix Frankfurter: But Mr. Winn, there's a great deal of difference.

As a matter of fact, as a matter of human fact, the clean mind making a statement, my side of the story without any ability on the part of this -- of the State to cross-examine me or my counsel, bringing it out, not having whatever force there is to an oath and our whole procedure, goes on the assumption that oath is a waiting thing.

These jurors certainly, normally, would think there was a difference if a man who solemnly swears to something as against making what they would might -- might think was a speech.

Mr. Dan Winn: Alright, certainly, if the charge had been brought up in this case, the Court could see how the -- the weight that is given to this.

The jury may give it -- they're instructed that they may -- that may give it full weight in the evidence in the face of all the other evidence there.

Justice Felix Frankfurter: Is that what they charge here?

Mr. Dan Winn: The charge was not -- not sent up by the --

Justice Felix Frankfurter: Is that the normal charge, Mr. Winn?

Mr. Dan Winn: Sir?

Justice Felix Frankfurter: What you've just said is that what judges normally charge in --

Mr. Dan Winn: They all charge it.

Justice Felix Frankfurter: No this that you may on the basis of what the prisoner said you may disregard all the testimony of the evidence.

Mr. Dan Winn: You may believe it in -- in whole or in part and -- and the face of all the other evidence that -- that is --

Chief Justice Earl Warren: But in the statute, isn't it -- that in the statute isn't it, Mr. Winn?

Mr. Dan Winn: Yes, yes.

They -- they may believe it in preference to any of the other evidence in the case.

Justice Potter Stewart: Of course, in this case, all he did was give his name, isn't that right?

Mr. Dan Winn: Yes, sir.

Well, he -- he of course, exercised the right at that point, not to make the statement which has been held by this Court as merely a -- a tactical procedure.

He has to -- he has to make his decision whether or not, to do that.

Why he didn't in this case, I don't know.

Justice Felix Frankfurter: You've been in Solicitor for -- you had long experience as a Solicitor, have you not?

Some of the --

Mr. Dan Winn: About 10 years.

Justice Felix Frankfurter: 10 years.

Mr. Dan Winn: Yes.

Justice Felix Frankfurter: Would you say that that's out and not be asking for it.

I was going to ask your evaluation between the -- I'm talking about an innocent man, an innocent man being able out on the stand, being led by his conscience to direct examination, withstanding all the effort of the prosecutor to undermine, to listen what he has said?

I'm wondering whether you thought that was not different from just telling a man to make an unquestioned and unquestionable speech.

Mr. Dan Winn: It's certainly different -- the Court would permit to answer that, it is certainly different but it is not -- it is certainly --

Justice Felix Frankfurter: I'm big enough to say that (Inaudible)

Mr. Dan Winn: No, I -- I would go and say this, that certainly, the State and the prosecution is far more at a disadvantage on any of these features than the accused.

Justice Felix Frankfurter: Certainly.

Mr. Dan Winn: (Inaudible) not to be able to cross-examine is -- is quite a -- quite a feature of it.

It's only been done once, in the last 40 years in -- in our four counties and I was certain and -- it's -- it's quite a disadvantage, I would say the defendant --

Justice Felix Frankfurter: You would have answered -- your answer is a two-edged sword, I think.

Probably the jury knows if -- quite a different advantage in the -- in the way they're attach to what he said.

The jury is bright enough to know, well, you know, you can say anything so nobody can question.

Chief Justice Earl Warren: Mr. Winn, I -- I was wondering why if this man did not make a statement the court charged them on -- on the fact that he could make a statement then what the weight of that statement would be.

Mr. Dan Winn: Now, I say, I -- I made the statement, I -- that it was charged in this case, of course, if he doesn't make a statement, there's no comment on -- on the fact that he did not make a statement.

Chief Justice Earl Warren: No, but if he doesn't -- if he doesn't make a statement, do the -- does the court advise the jury anyway that he can make a statement and then if he does make a statement, he cannot be cross-examined and that it's entitled a full weight if they wanted to give it?

Mr. Dan Winn: No, Sir.

Chief Justice Earl Warren: Well, he did the -- that in this case, the court?

I thought you said he did.

Mr. Dan Winn: I -- I did make a statement that in this case and in all cases that the court charged that principle, of course, in not making the statement, the court, in this case, didn't go ahead and charge those things.

Chief Justice Earl Warren: Did what?

Mr. Dan Winn: Did not go ahead and charge those --

Chief Justice Earl Warren: Did not charge -- yes.

Mr. Dan Winn: Of course, it would've -- it would've put him at -- at quite a -- an embarrassing position if -- if the court had.

Chief Justice Earl Warren: Yes -- the fact is that he did not?

Mr. Dan Winn: Yes.

That if -- if he had continued and made his statement, it is automatic.

It is required to charge the -- the gist of what I stated to the Court.

Justice Hugo L. Black: Mr. Winn, your time's up, but I want to ask you one question.

Mr. Dan Winn: Yes, sir.

Justice Hugo L. Black: So far as you know, has to this particular constitutional question with reference to the right of counsel of the defendant at this time, ever been before a federal court before?

Mr. Dan Winn: No, Sir.

Not that I know of, not in -- of course, it would have to be in Georgia and I -- I do not know of it ever having been raised.

None of the other prosecuting attorneys have ever mentioned it.

Justice Hugo L. Black: Certainly, it is never been before us.

Mr. Dan Winn: Only by implication in the Hawes case and --

Justice Hugo L. Black: I read that and I didn't quite (Inaudible)

Mr. Dan Winn: It was -- it was not a substantive part of that case, no.

Justice Hugo L. Black: This -- this question of whether it invades the right to counsel, as it is protected by whatever constitutional provision is protected, it has never been before us before, has it?

Mr. Dan Winn: No, sir.

Justice Hugo L. Black: And when did Georgia first pass on it? Have they ever passed on it precisely before?

Mr. Dan Winn: Well, Georgia --

Justice Hugo L. Black: I'm not talking about the general aspects of it, but have they ever had precisely presented to them?

Mr. Dan Winn: The constitutional --

Justice Hugo L. Black: The question before this is to whether the right to counsel includes the right to have the counsel question the defendants, if he so desires.

Mr. Dan Winn: Yes, sir.

I -- to find that citation, our --

Justice Hugo L. Black: Which case, Is it in --

Mr. Dan Winn: Well that -- that was in the Corbin case that they did.

That was a recent case.

They -- they did reiterate it.

Justice Hugo L. Black: That is 1956?

Mr. Dan Winn: Yes.

Justice Hugo L. Black: And they passed on a precise question as to whether that denied right of counsel.

Mr. Dan Winn: They -- they said this at 75 -- page 75 of the record, "Constitutional provisions granting to persons charged with crime, the benefit and assistance of counsel from further right to perform those deeds and actions as permitted by law.”

Now and to require counsel to conform to the rules of practice and procedure is not a denial of the benefit and assistance of counsel.

Then they cite the Corbin case and said that, it has been repeatedly held by this Court that he cannot as a matter right, ask him.

The constitutional question has been ruled on.

I do not have that citation.

Justice Felix Frankfurter: Mr. Winn, with Chief Justice's permission I want to be sure that -- that I did understand you correctly that of course, in the federal court city in Georgia, in the Federal District Court, prosecuting federal crime, Georgia lawyers practicing one day before state courts, (Inaudible) for the federal court and Georgia District -- district judge -- in federal district judges, who come from the Georgia bar, they all follow the regular federal system.

Mr. Dan Winn: Yes.

Justice Felix Frankfurter: The defendant can take the witness stand as the full witness?

Mr. Dan Winn: Yes.

Yes, sir.

They of course, the federal procedure does.

Justice Felix Frankfurter: Sure that does.

I mean to -- no, it never came up that they say, we --we do it differently in the state.

Mr. Dan Winn: Certainly, the -- the federal rules controlling the Georgia District -- sorry, I'm (Inaudible)

Argument of Paul James Maxwell

Mr. Paul James Maxwell: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Maxwell, Mr. Winn has taken your argument to test when the accuracy of your -- of your brief?

Mr. Paul James Maxwell: Yes, sir.

Chief Justice Earl Warren: Do you -- was he correct or incorrect in that?

Mr. Paul James Maxwell: No, sir.

Chief Justice Warren.

I --

Chief Justice Earl Warren: So then, let me ask you this.

Let me ask you this, where in the record do we find the fact that this -- this petitioner was not taken before a court from July, sometime whatever date it was, he was arrested until September.

Mr. Paul James Maxwell: If Your Honor pleases, on page -- starting at page 26 of the record, going over to the top part of page 27 --

Chief Justice Earl Warren: 26, Will you read -- will you just --

Mr. Paul James Maxwell: I would like to read the actual questions and answers which said, is just the answers there, but surely exactly, what was said in the court about the warrant.

Chief Justice Earl Warren: Well just give me the part that I asked for, the part he said, he wasn't taken before a court for all those months.

Mr. Paul James Maxwell: I said to him after things there are -- I just answer my question and his answer was, "I did not have a warrant."

Chief Justice Earl Warren: Well, does that mean that he wasn't taken before --

Mr. Paul James Maxwell: The only thing --

Chief Justice Earl Warren: -- a court for three months?

Mr. Paul James Maxwell: The only thing Chief Justice Warren that I can say is that, that whole questioning and answering there, it was all brought out and that part right there about never being taken, never having a warrant and never being taken before a committing magistrate.

Now, it is very true as Mr. Winn said that the day following all of this imprisonment and questioning for seven hours by a group of men and all, the following day, on the 18th of -- of July, 1958 it is true that the brother of the murdered man did go to a Justice of the Peace and take out a warrant.

That is very true but he was never carried back before that Justice of the Peace as that more specifically said, bring him before me.

Chief Justice Earl Warren: Where do we find that in the record and how did you raise it?

Mr. Paul James Maxwell: I raised it, Your Honor, in all questioning of these arresting officers.

Chief Justice Earl Warren: That's the clearest answer you can give me, as to where I find it here.

Mr. Paul James Maxwell: It's in -- it's in there, Your Honor and I am sorry but the -- that particular court reporter is a very elderly man.

There are lots of mistakes in there, but it has to go but what was set up there, I appreciate that.

Chief Justice Earl Warren: Alright, let me ask you this question.

Where is the evidence we must rely on for coercion of your -- of the confession.

Mr. Paul James Maxwell: The coercion of it is likewise where mental coercion to me would be where the boy was arrested.

A 19-year old boy arrested and thrown in jail and questioned by a group of officers, forced to take a paraffin test, not told of his right to have a lawyer, contradictory to that --

Chief Justice Earl Warren: What the -- what counsel has pointed out us is that the police did tell him that he was entitled to -- to a -- a lawyer and that he wasn't required to make a statement.

Mr. Paul James Maxwell: If Your Honor -- if Your Honor pleases, as I said yesterday and I would like very empathetically to repeat it today before this Honorable Court, if you are going to have a boy or a man or anybody sign something and you simply say at the start of it, my name is Billy Ferguson.

I hereby make this to my own free will.

I have been advised of my rights that I do not have to make a statement.

Now, if you want to have a man sign that and then you want to turn around later on after a writ of habeas corpus has been taken out, nothing else and say that he wasn't taken before magistrate and then have a man get up on the witness stand and by the questioning of the Solicitor say, "Yes, we told him he had a right to have a counsel," I think it should have been incorporated in their confession, if he really said it.

The confession is what I am going at.

I am going at with what boy signed and he did agree, he signed that he was told his right that he did not have to make a confession and --

Justice Felix Frankfurter: Are you suggesting that he -- that he was coerced in signing that statement (Voice Overlap)

Mr. Paul James Maxwell: I most assuredly, am.

Justice Felix Frankfurter: What?

Mr. Paul James Maxwell: I most assuredly am.

Justice Felix Frankfurter: That he was coerced --- that he was not -- that he was under coercive pressure.

Mr. Paul James Maxwell: Yes, sir.

Justice Felix Frankfurter: To sign that he was told that.

Mr. Paul James Maxwell: Yes, sir.

And he --

Justice Felix Frankfurter: Do you have the evidence for that?

Mr. Paul James Maxwell: And he never -- he never -- in that statement, Mr. Justice Frankfurter, he does not say that I haven't told him my rights to have counsel.

Chief Justice Earl Warren: Well, where is your evidence that he was coerced?

Justice Felix Frankfurter: My evidence, Your Honor, is the theoretical evidence that he was arrested and lodged in jail and questioned for seven hours, mentally coerced, is what I am saying for.

He was mentally coerced.

Chief Justice Earl Warren: But you don't have any evidence to that effect, do you?

Mr. Paul James Maxwell: It's throughout the whole record.

There's no contradiction of it.

It's throughout the record that he was --

Chief Justice Earl Warren: There were no contradictions of your statement.

Mr. Paul James Maxwell: That he wasn't -- that he wasn't mentally coerced except to say that he was advised of his right to have counsel and I say --

Chief Justice Earl Warren: Did he testify that he was -- that he is coerced or anybody testified that he was coerced?

Mr. Paul James Maxwell: No sir, Your Honor.

Chief Justice Earl Warren: On the contrary the officers testified that he was not?

Mr. Paul James Maxwell: Yes, sir.

That's very true.

Chief Justice Earl Warren: And assuming that you have -- that you do have a point there, show me in the record where you raised it as a constitutional question.

Mr. Paul James Maxwell: But Your Honor, I did not raise it as a constitutional question.

Chief Justice Earl Warren: But how can you come to this Court then that you had -- didn't raise it below?

Mr. Paul James Maxwell: If Your Honor pleases, I agree wholeheartedly with Mr. Winn that perhaps the only real constitutional question that was raised in the lower court, raised let's say properly and effectively and everything else was code section 38-415.

Chief Justice Earl Warren: Alright, maybe we better talk about that then.

Mr. Paul James Maxwell: And if that is the -- the way of this Honorable Court, I certainly am not going to tell this Honorable Court what the rule or what not the rule, what you have a right to and which you don't have a right to.

You can -- you handle it the way you see fit and that's probably alright with me and if I did, put something in there that should have been there, I certainly by no meant to mislead this Honorable Court.

I was only giving all the facts of the whole case.

I thought perhaps, it may have been (Inaudible) to have all the facts before in the manner of how you ruled on it.

Chief Justice Earl Warren: Well, I could be --

Mr. Paul James Maxwell: So, let's if -- if Your Honor pleases, then let's take this code section that we have -- that we will say is properly before this Court.

And it's my opinion that the -- that is definitely unconstitutional.

I have two points, under the Due Process Clause and under the Equal Protection Clause of the Constitution.

And as I pointed out yesterday, that we submit to this Honorable Court, that the meaning of this code section and I want empathetically bring this to your attention because the State in their brief says that I attempt for the first time to bring it forward and that is the discretionary part of the judge.

It is the State of Georgia, Supreme Court of the State of Georgia that in their ruling on a constitutionality of that question, it was not me, it was them who used the only citation that they referred to was Corbin versus State.

Now, if they are saying that we said is constitutional and we put it as our authority, Corbin versus the State, 212 Ga. 231, there we will have to look at that to see where -- what they are saying and under heading seven of that particular case, they said this, "His counsel has no right to ask him questions while he is making the statement.

The trial judge however, in his discretion can permit his counsel to ask him questions or make suggestions to him relating to a statement while he is making it."

Therefore, that is the ruling of this constitutional question that they are saying, a lawyer cannot ask a defendant any question.

However, it is discretionary with the trial judge.

So it was not raised for the first time in my brief, it was raised by the Supreme Court of Georgia in their ruling in the constitutionality of this case.

Because that is the only case that they cite.

They cite no other.

Now, we submit therefore, to interpret this code section to be discretionary with the trial judge would absolutely be discriminatory.

And it would deny the equal protection of the laws that are given to some criminals in Georgia and denied to others.

And as this Court held on page 8 of my brief, I set forth in Missouri versus Lewis, "Equal protection of the laws means no person shall be denied the same protection of the laws which is enjoyed by other persons in the same place and under like certain circumstances."

Also this Honorable Court held in Griffin versus the People of the State of Illinois, in 351 U.S. 12, where it was said, constitutional guarantees of this clause and equal protection, both call for procedures in criminal trials which allow no invidious discrimination between persons or different groups of persons.

Both equal protection and this clause emphasize the central aim of judicial system that all people charged with crime must stand on an equality before the bar of justice.

That is my contention that not only does it deny him the right of counsel, but to say that the discretion -- it is discretionary where the trial judge is certainly not equal protection of the law.

Justice John M. Harlan: Do you consider that the constitutionality of 38-416 is involved in your appeal?

Mr. Paul James Maxwell: No, sir.

I do not.

I think, it has nothing to do with it.

That is --

Justice John M. Harlan: Do you think it has nothing to do with it?

Mr. Paul James Maxwell: Nothing to do with it because that simply says, he is not competent as a witness.

That is only saying he cannot be sworn and as I said yesterday in the --

Justice John M. Harlan: You were not seeking to put your man on the stand as a general witness.

You were seeking to put him on --

Mr. Paul James Maxwell: Well I'm sorry.

I'm sorry I misunderstood you, is this what you meant by that.

What I meant was that is not involved right here.

Certainly, I do -- pardon me.

Justice Felix Frankfurter: How -- how can you feather 16 from 15?

I don't understand.

Mr. Paul James Maxwell: No.

I -- I must --

Justice Felix Frankfurter: I don't extend your argument is what -- if your answer to Justice Harlan's is the answer you made.

You say it has nothing to do whether he can be a full-fledged witness, so that he can be (Inaudible), that he can be cross -- that he can inquire into by your -- by his Congress.

You'd say that has nothing to do with it, then what is your case?

Mr. Paul James Maxwell: Mr. Justice Frankfurter, I misunderstood what Mr. Justice Harlan asked.

This is what I meant that it was not in this case, those I'm not referring to it at all. Certainly, that particular --

Justice Felix Frankfurter: If it's not in this case, then it isn't in the case.

Mr. Paul James Maxwell: It's not called on this case anyway.

Justice Felix Frankfurter: If it's not in the case then what is your case?

Mr. Paul James Maxwell: My case is 415.

Justice Felix Frankfurter: What is it?

Spell out what your case is.

Mr. Paul James Maxwell: Well, my case is that I think that to deny, in the State of Georgia to deny a defendant on a criminal case, the right to get up on the stand and give the evidence for or against himself, makes no difference in his behalf and to the questioned by his own counsel to be given assistance and benefit by his own counsel.

Justice John M. Harlan: Well, let me put this to you.

Supposing Georgia has had no 416, that a defendant in a criminal case could it be so vague to take the witness stand like any other person but that it also had 415, would you be arguing that 415 was unconstitutional in those circumstances?

Mr. Paul James Maxwell: I want to be sure, I understand it.

Now you mean that if they had 416, sir?

Justice John M. Harlan: I would say if they -- if there was no -- no disqualification on a criminal defendant from taking the witness stand, but Georgia in addition said, "We will give a criminal defendant the right to make an unsworn statement subject to the qualifications that he's not going to have a lawyer aid in making that statement and he's to be subject to no cross-examination as he consents.

Mr. Paul James Maxwell: I still --

Justice John M. Harlan: Would you say that act would be unconstitutional?

Mr. Paul James Maxwell: I'd still say it was unconstitutional.

Yes, sir.

I most assuredly, would say, sir.

Justice John M. Harlan: That's why you're saying that you don't lay any -- pay any attention to -- in your argument to whether 416 is on the books or not.

Mr. Paul James Maxwell: If -- if 415 was not on the books or was declared to be invalid, then the time would have to come when we have to go on, take up the situation of 416.

Justice John M. Harlan: But I cannot find anything in your papers or in the record that indicates to me that you ever raised the constitutionality of 416.

Mr. Paul James Maxwell: No, sir.

I never did.

Justice John M. Harlan: And you're saying here that that 416, plays no part in your own argument?

Mr. Paul James Maxwell: In -- in this particular before this Honorable Court right now, no, sir.

Justice John M. Harlan: Alright.

Justice Felix Frankfurter: Well why would you -- why were -- why were you stopped from dealing with your -- with the defendant the way any lawyer deals with the (Inaudible) with the man on the witness case.

Why weren't you allowed to do this?

Mr. Paul James Maxwell: Because they said that's against the law in Georgia.

Justice Felix Frankfurter: Why is it against the law?

If 16 weren't on the books, couldn't you do it?

Mr. Paul James Maxwell: If 16 weren't on the book?

Justice Felix Frankfurter: If he was a competent witness.

Mr. Paul James Maxwell: If he was a competent witness, I --

Justice Felix Frankfurter: And he isn't a competent witness because of 416.

Mr. Paul James Maxwell: He's not a competent witness because of 416, is very true.

Justice Felix Frankfurter: Well then, how can you say there's nothing to do with this case?

Mr. Paul James Maxwell: Well, as I keep saying Justice -- Mr. Justice Frankfurter, as I meant, I did not bring up 416, that's all I am saying.

Justice Felix Frankfurter: Well that maybe --

Mr. Paul James Maxwell: But they say it doesn't have anything --

Justice Felix Frankfurter: (Voice Overlap) what kind of a lawyer you are but wouldn't you not --

Mr. Paul James Maxwell: They say it doesn't have anything to do with it.

Of course, it has something to do with it just as -- as another code section that I told yesterday.

I told this Honorable Court yesterday about the changing of 1951 to say that for a adult, they can be competent.

Justice Felix Frankfurter: But I don't -- the issue before us is not whether you -- what you thought or didn't think, well the issue is what you did and didn't do, but the issue is whether 416, is relevant to our discussion of this case.

Justice Potter Stewart: As I -- as I understand it, you're not asking us to declare 415 invalid under the Due Process Clause of the Constitution, but rather, you're asking us to declare that under the Constitution, under the Constitution, Georgia has to allow a defendant's lawyer to directly examine him, when he makes the statement, isn't that right?

Mr. Paul James Maxwell: Mr. Justice Stewart, that is partially right if I may say so.

On this -- in this respect, that I am saying that the interpretation, the interpretation and construction given by the Supreme Court of Georgia to code section 38-415 saying that he has no right to have any benefit of counsel.

I am saying that that is unconstitutional.

I am --

Justice Tom C. Clark: (Inaudible) that gave counsel the right to pleading and examining and carried on the rest of the (Inaudible) he's in.

Mr. Paul James Maxwell: In my view, if he was given the assistance of on benefit of counsel --

Justice Tom C. Clark: (Inaudible)

Mr. Paul James Maxwell: If he was allowed to do that, fully allowed to do it, I would say that would be his – he \would have the benefit of counsel.

Justice Tom C. Clark: By whom?

Mr. Paul James Maxwell: I don't -- I don't believe that the oath would have the sole bearing under that and I think it's a part of denying him the right to -- to have assistance of the counsel.

Justice Tom C. Clark: I thought that was your position --

Mr. Paul James Maxwell: Yes, sir.

Justice Tom C. Clark: (Inaudible) 416 is not involved.

Mr. Paul James Maxwell: Yes, that's right, Mr. Justice.

Justice Tom C. Clark: You're not exactly (Inaudible)

Mr. Paul James Maxwell: That the --

Justice Tom C. Clark: (Inaudible) hold his hands.

Mr. Paul James Maxwell: Not hold his hands but assist him.

Justice Tom C. Clark: (Inaudible)

Mr. Paul James Maxwell: If he has a very -- if his tongue is tied in a slur, they can't talk, he's nervous or something else, then help him out.

Justice John M. Harlan: I'd like to ask you one more question.

Mr. Paul James Maxwell: Yes, sir.

Justice John M. Harlan: Did you ask the Court to permit your man to be sworn through it?

Mr. Paul James Maxwell: No, sir.

I did not because that I know has been held on numerous occasions in Georgia that you cannot ask to be sworn.

Justice John M. Harlan: My question was did you ask?

Mr. Paul James Maxwell: No, sir.

I did not.

Justice Felix Frankfurter: But the Corbin case says, I read from the Corbin case, the right to make a statement in this special ground (Inaudible) alleges that the Court erred in refusing to permit (Inaudible) counsels to question him, while he was making a statement and so on.

The right to make and he said that -- that ground is no good because the right to make a statement in his behalf is a personal right granted to the defendant by code 38-415 and extends no further than to permit him personally to make to the court and the jury such, does some statements -- statement that he deems proper in his defense.

His counsel has no right to ask him questions while he's making his statement.

Applied that however, in his discretion and permit his counsel to ask him questions or make suggestions in relating to his statement, while he's making it or when he's concluded.

I don't understand what that means, myself.

You can't ask him any questions, but he may make suggestions or ask him questions while he's making it, if those are contradicting statements, I don't know what contradicting statements are.

Justice Hugo L. Black: If I understand you correctly and the objection you made on page 8, it was this -- limited to this.

They allowed him to make a statement in his own behalf.

You ask -- you wanted to ask him questions yourself, they said following the Corbin, they do not permit that.

You then said that that violated Section 205 -- 105 of the Georgia Constitution and also Article 6 and Article 14 of the Constitution.

Mr. Paul James Maxwell: Yes, sir.

Justice Hugo L. Black: What you have raised here, what you raised in that as I read it, as I understand you that's what you said, you say that it deprived him of the right to counsel contrary to the Fourteenth Amendment for its federal (Inaudible) to allow him to make the statement and to deny his -- him the benefit of having his counsel guide and assist him by asking questions.

Mr. Paul James Maxwell: Yes, sir.

Justice Hugo L. Black: That's the question you raised.

Mr. Paul James Maxwell: That's right.

Justice Hugo L. Black: -- and insisted.

Mr. Paul James Maxwell: He is denied the right and benefit of counsel to help him out.

Justice Hugo L. Black: You say that the mere fact that it permitted him to make a statement sworn or unsworn is immaterial.

That if they permit him to make statements, you don't have to reach the question whether they could do what they make him competent or incompetent, they have (Voice Overlap) passed on.

Georgia said that he can make a statement.

You say that when they go that far, the amendment of Federal Constitution steps in and say you got to give him the benefit of counsel to ask questions.

Mr. Paul James Maxwell: Mr. Justice Black, as I said yesterday, I would --

Justice Hugo L. Black: Was there anything (Voice Overlap) would raise for counsel about that.

Mr. Paul James Maxwell: Yes, sir.

I said that it is -- is unconstitutional on the face of that particular code section -- that particular code section.

Justice Hugo L. Black: But I --I understand it.

But you --

Mr. Paul James Maxwell: No, it doesn't say in that code section about the -- anything except requesting on his counsel's part.

It says he shall not be subject to cross-examination, but it does not say anything about asking him any questions by his own counsel.

Justice Hugo L. Black: (Voice Overlap) Georgia, well they've interpreted to this meaning that you cannot ask questions.

Mr. Paul James Maxwell: That's right.

Justice Hugo L. Black: We have to accept that.

Mr. Paul James Maxwell: And they have also --

Justice Hugo L. Black: We'll accept that and you say, and since that if the law in Georgia, they allow him to make a statement but don't allow his counsel to ask him questions it deprives of the right to counsel unconstitutionally.

Mr. Paul James Maxwell: Yes, sir and in the sense discretionary with the trial judge goes a step further.

Justice Hugo L. Black: It's the same thing.

Mr. Paul James Maxwell: That is saying that it's up to him -- that the trial judge to decide whether he shall have the benefit of counsel or not.

Justice Hugo L. Black: Do you think he has constitutional right to examine, to have -- have his lawyer ask him the question, whether the judge wants to do it on his discretion or not?

Mr. Paul James Maxwell: Yes, sir.

It's up to the judge.

Judge can say, yes, you can help this client and the other lawyer, you can't help that client.

And that to me would be entirely discretionary and discriminatory.

Also I said yesterday, I certainly would far rather for the sake of the State and for the sake of the defendant to have the thing that he is just like it is in federal court or any other court.

That would be the far better way to get to real justice would be held like every other state has it and like the federal court has it.

But that will be something the legislature would have to enact at and I think they would do it immediately if anything has ever happened to code section 38-415, because even a trial judge here, it says no matter however logical they all feel that way about it.

It would be much better.

Thank you very much.