BUSHNELL v. ELLIS

Print this transcript Transcript: 

Argument of Percy D. Williams

Chief Justice Earl Warren: Number 561, James M. Bushnell, Petitioner, versus O. B. Ellis, Director, Texas Department of Corrections.

Mr. Williams, you may proceed.

Mr. Percy D. Williams: Thank you very much, Your Honor.

May it please the Court.

I want to talk to the Court about a prisoner of the State of Texas, the petitioner in this case who is serving a term of 5 to 35 years on a robbery conviction.

His claim is that he was denied due process when he was tried and convicted without assistance of counsel.

His application for writ of habeas corpus was originally filed with the Court of Criminal Appeals of Texas.

That Court denied his application without ordering the State to answer and without ordering any development of the record of the facts.

I don't know why the Court of Criminal Appeals proceed to handle it in that way because in other cases of this type in recent years that Court has proceeded to order the trial court to develop the facts as a basis for consideration of such an application.

I think that if the Court of Criminal Appeals had had before it the record, which is now before this Court, it would have granted the writ.

After this case was docketed in -- in this Court, the notes of testimony which were taken at the trial in 1944 by the reporter, who since was deceased, were transcribed by another reporter and put into this record.

And the charge to the jury at the petitioner's trial in 1944 was also located and is now included in this record.

This record reflects that when he was tried on this robbery charge, the petitioner had no attorney.

Justice Charles E. Whittaker: May I ask you in that connection please, Mr. Williams, under your law, was that testimony, and in the event of a new trial, re-admissible against him?

Mr. Percy D. Williams: It is my understanding, Your Honor, that it is.

The record reflects that at his trial, the petitioner pleaded not guilty.

He testified to his own innocence.

And he attempted in a brief and in article way to examine several cross-examines, several of the State's witnesses, but that was as much as he was able to do in his own defense.

Under the Texas statute, Code of Criminal Procedure, which was in effect in 1944 when this case was tried, there was no duty under Texas law on the Court to appoint counsel for an indigent defendant in a non-capital case.

Justice William O. Douglas: Has that been changed since --

Mr. Percy D. Williams: Yes, Your Honor, a couple of years ago.

The statute now provides that, as I read it, although it has not been construed judicially, that in all cases, all felony cases, the Court is under a duty to appoint counsel for an indigent accused.

Justice William O. Douglas: What is the felony under Texas law, is that --

Mr. Percy D. Williams: Penitentiary offense, Your Honor.

Justice William O. Douglas: Penitentiary.

It doesn't matter if the length of this --

Mr. Percy D. Williams: I believe --

Justice William O. Douglas: -- the date --

Mr. Percy D. Williams: -- I believe that's correct.

Justice William O. Douglas: -- the date of entry of the felony?

Mr. Percy D. Williams: Now --

Justice Charles E. Whittaker: They imposed that the sentences for (Inaudible) let's say a years, are to not (Inaudible)

Mr. Percy D. Williams: I believe, and I'm no expert in criminal matters, Your Honor, not experienced, but I believe that the offenses in our penal code where the penalty is prescribed read more or less uniformly like the provision under which this man was convicted.

If Your Honor will look on page 3 of my brief for the petitioner, at the very bottom of that page, you will notice that the prescribing portion with respect to punishment states that he shall be punished by confinement in the penitentiary for life or for a term of not less than five years.

And in the case of the other offense, it's included in the same article, robbery by firearms, again, the portion, similar portion says punishment shall be death or confinement in the penitentiary for any term.

And it's my understanding that that is the basis of the distinction between a felony and a misdemeanor whether that portion of the statute authorizes confinement in the penitentiary.

Justice William J. Brennan: I understand you to say that the new Texas statute --

Mr. Percy D. Williams: Yes, Your Honor.

Justice William J. Brennan: -- (Voice Overlap) the appointment requirement to appoint a counsel to felony.That's (Voice Overlap) --

Mr. Percy D. Williams: To clarify the situation, if I may, on page 5 of my brief, I call your attention to the statutes which were in effect at the time of this petitioner's trial which was 1944, Article 491 and 494.

491 stated that there would be no arraignment of a defendant expect on indictment for a capital offense, and 494 provided that when the accused is brought into court for the purpose of being arraigned, if it appeared that he have no counsel, too poor to employ counsel, the court shall appoint one.

Now, on the next page, coming to the point raised by Mr. Justice Douglas, in 1959, the legislature amended Article 494.

And just for your information, though it has no materiality to this case that I'm aware of, at the top of page 6, I give you the text of the law that it's presently in effect that whenever it's made known to the court in an arraignment or any other time that an accused charged with the felony is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him.

And although some question is to the construction of that is raised in the brief for the respondent, it seems to me all together clear that that means that in any felony prosecution, if the defendant is too poor to employ his own lawyer, the court is obligated to appoint him one.

But the trial with respect to which we are here concern occurred in 1944, 15 years before the adoption of the preferable statute.

And it is the contention of the petitioner that any of his trial, he was not treated fair by the judge or by the prosecutor.

It's my contention that had he had a lawyer, the abuses to which he was subjected could have been avoided, the sentence which was imposed upon him might have been less severe and possibly, he might have been acquitted.

Justice William J. Brennan: Well, this much is clear, Mr. Williams, that had he been tried within the last couple of years on the offense for which he was convicted, the revised 494 would have required the appointment of counsel, is that so?

Mr. Percy D. Williams: That's my understanding, Your Honor.

And if he is tried again, if this Court reverses this case and the Court of Criminal Appeals of Texas remands the man after granting the writ of habeas corpus, remands him to the sheriff of Orange County for another trial, I understand that under that article, he would be entitled to the appointment of counsel by the Court.

Now, what was it that happened to this man at his trial?

In the first place, the State introduced without objection in the hearing of the jury and the Court allowed the jury to consider assigned written statement that included a complete confession by this prisoner which he repudiated at the time of trial.

As I read the record, the undisputed uncontradicted testimony of the petitioner and the State's own evidence, taken together, established beyond any question that this confession which was introduced and considered against him was coerced and was involuntarily.

Let me give you briefly, if I may, the circumstances that led to his confession.

The robbery, and I'm referring here only to the undisputed evidence given by the petitioner in testifying for himself for -- on cross-examination and the evidence presented by the State, the robbery was committed late one Saturday night, the petitioner was arrested the following Sunday morning or early in the morning.

He signed his confession the following day, a Monday in the Office of the County Attorney of Orange County.

He was arrested by a constable, a local county peace officer of Orange County across the Louisiana line in Louisiana after a close pursuit, as they call it in Louisiana law, from Texas to Louisiana.

And at that point, where the prisoner was arrested in Louisiana instead of being taken under -- in accordance with Louisiana law to a local magistrate for an examining trial which was this petitioner's right at that moment promptly to be bound over to await the issuance of a writ of extradition which was also his right, he came back to Texas after having been given the choice by the arresting constable from Orange County of either coming back with him or being run back across the river by Louisiana law.

When the man was -- when the petitioner was brought back to Texas, he was not promptly taken before a magistrate of Texas either on that Sunday of his arrest or when he, at latest, should have been under our law on the following Monday before he was taken in to sign the confession.

Now, I don't claim that the confession was involuntary by reason of anything that I have said per se, but I think that these are factors of illegal conduct on the part of the arresting officer and the County Attorney that this Court is entitled to consider as part of the background and fabric of coercion that seems to me to exist in this case.

Now, what happened between the time of his being returned to Orange, Texas on Sunday morning when he was put in jail and the time of his confession in the County Attorney's Office on Monday?

The testimony in this connection is -- is almost unbelievable.

The -- the -- in short, the man was beat, they throw water on him, they stamped on him, they -- they threw him on the floor, they were trying to get a confession.

And I want -- this is the most important part of my case, and I want to direct the Court's attention to what was said at the trial.

He was arrested by constable named Williamson and some of Williamson's testimony is in the record at the bottom of page 12.

Chief Justice Earl Warren: On your brief?

Mr. Percy D. Williams: There were six witnesses produced by this --

Chief Justice Earl Warren: On your brief?

Mr. Percy D. Williams: I beg your pardon.

Of the record, Your Honor.

Chief Justice Earl Warren: Of the record.

Mr. Percy D. Williams: The record.

My client was trying to cross-examine Williamson and in the last three or four lines on page 12 he said to Williamson, "Will you beat me up across in Louisiana?"

Which the interesting answer was, "I never touched you over there.

I have scars to prove it on my back," top of page 13 to which the answer was, "I ain't touched you but once, and then you jerk me out of my car on Louisiana highway, beat me up without mercy," to which the answer was, "It wasn't over in Louisiana."

And unbelievably, the prosecuting attorney excused that witness at that point without making any effort to show that he did not beat this man during the short interim between the arrest early Sunday morning and the confession on Monday.

Also, I would call to the attention to the Court that when this prisoner was brought into the County Attorney's Office for his -- to sign his confession at the -- in the middle of page 17 of the record, again, the petitioner cross-examining the County Attorney, he says "At the time they brought me inside your office, I was threatened about the statement, is that right?"

And the County Attorney gave him what seems to me to be an evasive reply.

Another question, "You didn't tell me anything about it, did you?"

And then later on that page, near the very bottom, "When the constable threatened to take me out and tie and wipe me unless they got a confession, is that right?"

The County Attorney merely said, "I didn't hear it."

But the County Attorney, at the top of page 18, on redirect examination, referring to the time when this prisoner was brought in to his office the day following the arrest, he was asked by the prosecutor, "Did he look like he had been abused?"

And the County Attorney said, "He was.

He had a bandage on his head, yes, sir."

And there, in the next four or five questions that were asked by the prosecutor, the County Attorney was never really asked whether the petitioner was threaten immediately before he signed the confession.

The questions simply were, "Did the petitioner tell you about being mistreated?

Did he tell you the statement he was making this true?

Did he tell you he was being forced to make the statement?

And it -- it seems to me that if I had been the prosecutor and had wanted to establish that there had not been any coercion of that confession, I would've ask a direct question requiring a direct answer.

But this prosecutor seems to have had no qualms about the coercion that proceeded this confession or over in the course of his examination of the petitioner on page 27 of the record, he asked an unbelievably brutal line of questions of the petitioner that condoned in the hearing of the jury, the brutality which have been meted out to this petitioner.

Down at the bottom of 26 and through most of page 27 of the record, the District Attorney was asking this petitioner and said, "Officers have to get a little bit rough with you, you don't like it after you've done everything you did to this poor old man.

And -- and what kind of treatment would you be in favor of giving a man that would beat up old man Myers as he said he was beaten up.

What kind of treatment would you be in favor of for such a man?"

And when my client said, "I beg for mercy," the smart question of the prosecutor was, "Just like you meted out to Mr. Myers or would have to anybody else."

Justice Felix Frankfurter: Mr. Williams, may I ask you whether if he had the (Inaudible) defense lawyer in Texas, could those questions be subject to objection if it's inadmissible or improper?

Mr. Percy D. Williams: In -- in my opinion, Your Honor, they would have been excludable under decisions of the Court of Criminal Appeals.

In that, they tended to condone what had been admitted by the officer who gave the punishment to be physical abuse.

And they brought into issue the question of whether this man was merciful or would've beaten up just anybody, and that was an issue of going to his character and reputation that I do not believe had been raised by his appearance on the stand.

I think they --

Justice Felix Frankfurter: Do they care if they came and say excludable?

Would they -- do you think it would've been error on -- error by your Court (Inaudible)

Mr. Percy D. Williams: I think that the Court of Criminal Appeals would have said that it was the duty of the trial court to prevent that line of questioning, and I think I have one or two cases cited in my brief, though the exact name of them escapes me, in which that type of interrogation by the Court was -- was held to have been excludable and should have been excludable on the Court's own motion.

Justice Felix Frankfurter: Before you (Inaudible)

Mr. Percy D. Williams: Now, what could a lawyer have done with regard to this confession?

First, he could've seen to it that it was heard in the preliminary way outside the hearing of the jury.

Second, if I am correct in my evaluation of the import of this testimony, he could've had excluded on objection under both the decisions of this Court and the Texas cases.

There were at least six of them from the Court of Criminal Appeals prior to 1944.

Justice William J. Brennan: Did I understand your suggestion, Mr. Williams, the whole proceeding governing the admissibility of the confession was in the presence of the jury, there was it?

Mr. Percy D. Williams: It was indeed, sir.

Justice William J. Brennan: And may have -- may --

Mr. Percy D. Williams: Under the decisions of the Court of Criminal Appeals, it should have been -- should heard, it should have been heard initially outside the jury's hearing.

Justice William J. Brennan: This requires a request of it, of the trial judge?

Mr. Percy D. Williams: Yes, it does, Your Honor.

Justice William J. Brennan: But -- but there must be one otherwise may be heard in the presence of the jury?

Mr. Percy D. Williams: I believe that's correct, Your Honor.

Justice William J. Brennan: And your point is that had he had counsel --

Mr. Percy D. Williams: First --

Justice William J. Brennan: -- it might suppose the request would've been made for a hearing on the presence of the jury.

Mr. Percy D. Williams: Indeed.

And since reading the more recent opinion of this case in McNeal and Culver hastened to add one point, which I did not have in my brief, and that is that the -- although the burden is on the State on the defendant to show that he was under arrest at the -- at the time he made this confession.

The burden is on the State of Texas under our Code of Criminal Procedure to show that it was a voluntary confession.

And a recent case to that effect is the Harris case out of the Court of Criminal Appeals, 286 S. W. 2d 936.

Now, I want to point, if I may, two other serious errors, prejudicial occurrences at this trial which counsel could have prevented.

There were a couple of oral confessions that were introduced against this prisoner.

I don't know whether they were voluntary or not.

It doesn't make any difference whether they were voluntary under the Texas statute.

They were not made before a magistrate, they were not warned, and they were not signed.One of them was a testimony by a deputy sheriff appearing in this case to the effect that prior to trial, petitioner had offered himself as wanting to plead guilty.

And Texas cases squarely hold that oral evidence of a prior offer or agreement to plead guilty amounts to an unwarned confession, and it's not admissible on objection.

Justice John M. Harlan: What is the explanation of the long delay 15 years before this proceeding was brought (Inaudible)

Mr. Percy D. Williams: Well, Your Honor, I do not honestly know.

I understand that from the petition filed in this Court by the petitioner that he has filed numerous applications for habeas corpus in the Court of Criminal Appeals.

None of them have ever been applications.

This is the first time that any court has ever cared about this man.

I'm the first lawyer he's ever had.

And --

Justice Felix Frankfurter: Lucky color.

Mr. Percy D. Williams: I don't know [Laughs] I don't why it's taking him so long.

He is just poor frogman of a person.

And I feel that he needs for you to say that he was mistreated and treated unfairly here.

Now, it was reversible error for those hearsay statements of oral -- oral confessions to be admitted.

There was also an admission in the confession, signed confession of his prior Louisiana felony conviction.

Now, under Texas law that should not have been admitted at the time it was.

His character was not -- his character for reputation for credibility was not in issue at that point.

It could've been excluded at that point.

Later, when the petitioner went on the stand in his own defense, he put his reputation and character for veracity, credibility in issue.

And that evidence of his prior Louisiana felony conviction was then admissible for that limited purpose.

And although the respondent in his brief says it was limited for the purpose of consideration on the issue of credibility, I have not been able to find that in the record, in the charge, the jury or any where in the record, anything limiting the jury's consideration of that prior conviction to the single question of credibility.

And the Texas Court of Criminal Appeals has held that whether or not such limitation in the jury charge is requesting its reversible error not to so limit the purpose for which that kind of evidence maybe considered.

There was a lot of miscellaneous hearsay.

There were questions which a prosecutor under our Texas case is -- cannot ask, "Why didn't you have witnesses here?"

That is an improper comment for a prosecutor in Texas.

Those are the things that actually happened at this trial.

In looking over the record, it seems to me entirely possible that a good lawyer might have been able to take this petitioner's testimony with respect to his condition immediately before the offense and make out of it, a well-founded issue of temporary insanity because he testified without contradiction and the State's evidence also showed that he had been drinking rum and beer and taking something called either "fematol" or "amatol", it's variously referred to in this record, immediately before this robbery that he was delirious, that he had passed out and there is some confusion in the Texas authorities on this point.

We have a statute that says that evidence of temporary insanity resulting from combined use of whiskey and narcotics, it doesn't excuse the crime but it can be taken into account and mitigation of punishment.

But at the same time, there is one decision of the Court of Criminal Appeals in which it was held that the Court properly charged the jury that under those circumstances, there was a -- an issue of excuse for the crime justifying an acquittal.

Now, what was the circumstance or the condition of this man at the time that these things happened to him at his trial?

He was 25 years of age, according to undisputed testimony.

He was referred to as a boy, young man.

He'd been in jail continuously for almost four months from the time of his arrest.

When he was arrested, the constable testified, they took from him all the money that was on the man's person.

The jailer testified deputy sheriff that he had advanced money to this man to send out telegrams from the jail to his relatives.

The boy testified that he had no friends present at the trial.

His mother was sick, his father, he could not depend on.

He'd been given a medical discharge from the army.

The State's witness testified that he had been badly shook up in the army.

He was suffering from moods.

He was taking nerve medicine on doctor's prescriptions.

And under those circumstances, I'm asking you to -- to hold that on the undisputed facts of this record, no further development of these facts by the Texas Court of Criminal Appeals is necessary before it grants the writ.

The undisputed evidence shows that this man was denied due process, and that he was entitled to the writ.

Of course, the matter of request is unimportant.

He alleges that he requested counsel, and the counsel was not provided.

Under your recent reaffirmation in McNeal and Culver, that's unimportant.

Justice Charles E. Whittaker: Mr. Williams --

Mr. Percy D. Williams: Sir?

Justice Charles E. Whittaker: -- suppose that should happen on hearing that there was evidence that the Court believed that at trial is petitioner refused counsel, would that make any difference?

Mr. Percy D. Williams: Yes, Your Honor, I think that would -- would amount to a waiver of his federal right.

Justice Charles E. Whittaker: How do we know what the facts are in that respect from this record?

Mr. Percy D. Williams: Well, I believe we have concessions from the respondent that didn't -- didn't make any difference whether the man asked for counsel or not.

However, that doesn't go quite to your inquiry.

Perhaps, you have a good point Your Honor.

I -- I don't believe there is anything in the record that amounts to a concession by the State that he refused -- that he did not refused counsel.

That may be an open question of fact.

Chief Justice Earl Warren: Mr. Timmins.

Mr. Percy D. Williams: Thank you.

Argument of B. H. Timmins, Jr.

Mr. B. H. Timmins, Jr.: Mr. Chief Justice, may it please the Court.

Initially, I'd like to begin by referring to the question just asked by Mr. Justice Whittaker regarding the import of development regarding the possibility of petitioner not asking for counsel or refusing counsel, I believe it was.

To begin with, the record begins with a question and answer examination of witnesses.

And there is nothing, of course, in the record pertaining to whether he asked for a counsel or whether he was denied counsel or whether he refused counsel.

The statement was made in our brief.

And we really admit that the -- the basic question here is the fundamental fairness and justice of the trial.

As accorded petitioner by the trial court whether -- whether or not he was offered counsel and refused counsel is not reflected, and I -- I know of no way that it can be developed under the circumstances since we have made a very careful inquiry into the facts of the case by going into Orange County and trying to find witnesses who remember this case.

We -- we learned that the trial judge is dead.

The District Attorney who tried the case did not have an independent recollection of the case and neither did Mr. Sexton, the County Attorney.

Many of the other witnesses are dead.

This was one of the -- this was one of the principle problems that we encountered in this case as well as other similar cases where there has been a long passage of time as there was here.

We found that it was quite difficult, and in many instances, possible to find witnesses who could make affidavits to support the contentions to include as exhibit with the responses to the applications because witnesses either had passed away, they did not remember the cases, and we have encountered this time and time again as we did here.

Now, the -- the Texas law that we're concern with here is Article 494.

I want to refer to the questions which were put to Mr. Williams regarding the amendment to the statute.

It was amended in 1959.

The Texas courts did not construe the statute.

And we do not know whether or not counsel is required in every case.

My information is that the practice is not uniform in Texas courts under this amended statute.

Some courts appoint counsel in every felony case, some do not.

And so we -- we simply do not know.

However, of course, we're concern with the statute as it existed in 1944.

Again, we think it is not significant how the statute read because the -- the real question that we're faced with is whether the trial court accorded the petitioner a fundamentally fair and just trial under the facts of the case.

We have to look to the facts in each individual case.

That is established.

Now, under the Texas law, and there have been a number of cases as -- as Article 494 read at that time, counsel was not required in non-capital felony cases unless the failure to appoint counsel by the trial court resulted in a trial which was not fundamentally fair and just to the petitioner.

Now, petitioner has asserted a great number of grounds here on which he claims there was a denial of due process.

We believe that he's read meanings into the record which are not justified from the testimony.

He has referred to the testimony of the arresting officer, Mr. Williamson, on page 12 of the record and at the top of page 13.

Mr. Williamson testified that he had not put the scars on his body.

He testified that he did not jerked him out of the car over in Louisiana and beat him up.

The question was raised with regard to whether he jerked him out of the car in Louisiana and beat him up.

He stated that he did not, in reply to the question.

Justice John M. Harlan: First, we're -- we're not concern here with the ultimate question as to whether there was lack of due process or not, we're concern with is whether the context of this record, the situation was such that he was prejudiced by not having him a counsel.

Mr. B. H. Timmins, Jr.: I think we are concerned with -- with that --

Justice John M. Harlan: (Voice Overlap) --

Mr. B. H. Timmins, Jr.: -- question whether he was prejudiced and as a result of his prejudice whether he was denied due process.

Justice John M. Harlan: Yes.

Mr. B. H. Timmins, Jr.: I -- I think it follows the -- the second question, yes, sir.

Now, over on page --

Chief Justice Earl Warren: Well, would you -- you wouldn't consider that a denial that he had beat him without mercy, would you?

What you just read on 13 or the question by the defendant was, "You jerk me out of my car over on a Louisiana state highway, no Louisiana law, just you and two kids had beat me up without mercy," and the answer was, "It wasn't over in Louisiana."

That -- that's hardly a denial of -- of beating him up without mercy, is it?

Mr. B. H. Timmins, Jr.: It -- I would -- I would say that in the context of the question, Your Honor, it was -- it was a denial that he jerked him out of the car in Louisiana.

It -- I -- I admit that it was not developed there as to whether he may jerked him out of the car or in some other place.

That was not developed.

Chief Justice Earl Warren: Well, but -- but just before that, the petitioner said, "Well, you beat me up across in Louisiana," and the answer was, "I never touched you over there."

Mr. B. H. Timmins, Jr.: Yes, sir.

Chief Justice Earl Warren: And -- and the next question was, "I have scars to prove it on my back," and the answer is, "I ain't touched you but once," and then we get to that question, "You jerked me out of my car over Louisiana state highway, no Louisiana law, just you and two kids and beat me up without mercy."

Answer, he wasn't over in Louisiana.

This is hardly a denial, is it?

Mr. B. H. Timmins, Jr.: It is -- it is not a denial that -- I would say that -- that replaying to the question, as I asked, it was a denial that he jerked him out of the car over in Louisiana.

I -- I do not know -- I do not know what might have been.

It was not developed further whether he jerked him out of the car or not.

He -- he did say he had touched him once.

We do not know whether he touched him and arresting him just what.

But I refer the Court to --

Chief Justice Earl Warren: But the question was, "I have scars on -- that -- to prove it on my back," and the answer says, "I ain't touched you but once," is that -- would you consider that a denial or any?

Mr. B. H. Timmins, Jr.: A denial of the beating?

Chief Justice Earl Warren: Yes.

Mr. B. H. Timmins, Jr.: I would consider -- I would consider -- I can't -- I can't import an absolute denial to that answer.

I would -- I would simply say that he testified there that he did not jerk him out of a car over in Louisiana, and that he did not touch him over in Louisiana.

And then in later testimony, on page 31 of the record, his -- the same man testifying, the same officer testifying said that he -- in -- in reply to a direct question from the District Attorney said that he did not put the scars on -- on the man's body.

The question, "Did you or Officer Thompson put those scars on his body?"

"No, sir."

"Did you hit him or beat him in any way to make those scars?"

"No."

And then he said he went on and told that he was shook up in the army in taking "amatol".

I would say that -- that reading his testimony in full, he has denied that he beat him up or put the scars on his body in the full context of -- of the question then answers.

Now, respondent takes the position that after the long passage of time here, the State is in a position that it cannot find witnesses who were on the scene at the time of the trial or at the time of the arrest who can make affidavits bearing on the central question here, that is, whether he was mistreated in -- at -- at the time of his arrest or during his trial.

We feel that the trial judge knows the elements of a fair trial.

And that his wisdom in judgment should be respected unless it's patently erroneous.

The trial judge heard the testimony with regard to the arrest.

He heard the testimony relating to the confession.

He admitted the confession in the evidence after hearing the repudiation of it by petitioner from the witness stand.

We feel that petition -- that the trial judge's wisdom in his judgment in these matters must be given varied weight.

We do not feel that the testimony of the arresting officers are the repudiation of the confession by the petitioner justifies a finding that he was denied due process at the time of the trial.

Now, we do really admit that a representation by counsel better than no representation at all and that under our adversary system that justice is more likely to resolve.

But at the same time, we must examine the record, and we cannot read into the record certain assumptions with regard to mistreatment.

When there is no opportunity for a reputation of those ex parte and self-serving declarations by the petitioner.

Chief Justice Earl Warren: Well, didn't -- didn't they have a full opportunity?

I notice after this page 13 when he said it wasn't over in Louisiana, the District Attorney excused the witness.

He never asked him another -- another question to clear that up although he did have real opportunity to do so.

Mr. B. H. Timmins, Jr.: Your Honor, I was not speaking of the time of trial.

I was talking about the time that the application for writ of habeas corpus is made.

Chief Justice Earl Warren: I see.

Mr. B. H. Timmins, Jr.: At -- at a much later time that habeas corpus is -- is sought, not at the time of trial --

Chief Justice Earl Warren: Oh, I see.

Mr. B. H. Timmins, Jr.: -- was --

Chief Justice Earl Warren: I see.

Mr. B. H. Timmins, Jr.: -- was my reference there.

Chief Justice Earl Warren: I see.

Justice Tom C. Clark: Is Hop Williams the same as (Inaudible)

Mr. B. H. Timmins, Jr.: Sir?

Justice Tom C. Clark: Is the man named Hop Williams, is he same (Inaudible) witness, Clyde --

Mr. B. H. Timmins, Jr.: Clyde Williams.

And I think Hop must have been a nickname of some sort.

Justice Tom C. Clark: The same man.

Mr. B. H. Timmins, Jr.: Apparently, it's the same man, yes, sir.

Justice Tom C. Clark: Your contention is on the later testimony when he (Inaudible) back on the stand that he claimed the -- the details of what he did (Inaudible)

Mr. B. H. Timmins, Jr.: Yes, sir, that -- his -- his earlier testimony and later testimony must be read together.

Respondent also appeals that this case is help subvert the -- the traditional in the proper remedy of the writ.

We have encountered many of these cases, and we feel that -- that this is -- this is one in which due to the passage of time that we are placed in a great disadvantage in being able to refute any contentions made by the petitioner.

We feel that granting a reversal of the case could have very significant policy implications in this whole area.

Chief Justice Earl Warren: Did the man -- did this man try to get into the federal court, I mean into the state courts to have this matter heard before this proceeding?

Mr. B. H. Timmins, Jr.: Before this proceeding?

Chief Justice Earl Warren: Yes.

Mr. B. H. Timmins, Jr.: I find no record of it in the Court of Criminal Appeals, Your Honor.

I have examined their record.

Chief Justice Earl Warren: Well, is that the place for him to go?

Mr. B. H. Timmins, Jr.: That is -- that is the place that he would go.

He would -- he would apply to the Texas Court of Criminal Appeals for an application for writ of habeas corpus.

He did not appeal his case here.

Justice Felix Frankfurter: Of the -- in the writ -- is the writ tried in the Court of -- in your Court of Criminal Appeals or do they sent it back to a lower court?

Mr. B. H. Timmins, Jr.: The Texas Court of Criminal Appeals would order the trial court to send the record up, and they would then examine the record in the case to ascertain whether there had been a denial in -- in the trial court.

Justice Felix Frankfurter: And if they have to -- they wouldn't -- they would act on the record of the trial court rather than it's too substantially as I believe, whereby the appellate court is asked to leave to send the case for determination of their claims so far as their contested facts at lower court.

Mr. B. H. Timmins, Jr.: They would -- my understanding, Your Honor, is that they would act on the record of the lower court.

Now, after the conviction, an application for writ of habeas corpus can be made to the trial court as a predicate to appeal.

Justice Felix Frankfurter: Yes, well, I -- I misunderstood your answer to the Chief Justice.

I thought you said -- I -- if I understood the Chief Justice's question was whether there was any application by way of habeas corpus in the courts of Texas, and I understood your reply to be that that must be lodged with the Court of Criminal Appeals, is that correct?

Mr. B. H. Timmins, Jr.: After the conviction, the application for writ of habeas corpus may be lodged with the trial court and then an appeal may be made and then an application may be lodged with the Court of Criminal Appeals.

We have several alternative remedies.

He -- he can go either anyway that he chooses.

Chief Justice Earl Warren: But can you say that he made no effort to bring this to the attention of any court in Texas for this long period of time?

Mr. B. H. Timmins, Jr.: So far as I was able to discover from the record of the Texas Court of Criminal Appeals, his -- his first -- his first application was made last year.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: Yes, go ahead.

Justice Felix Frankfurter: I -- I think the Chief Justice, may I ask question after that.

Chief Justice Earl Warren: Well, there -- what other courts in the State would have had jurisdiction over habeas corpus or coram nobis or whatever it might -- might be?

Mr. B. H. Timmins, Jr.: The trial --

Chief Justice Earl Warren: After he -- after he's convicted and was in the penitentiary, what other courts --

Mr. B. H. Timmins, Jr.: No other --

Chief Justice Earl Warren: --- than the Court of -- of Appeals?

Mr. B. H. Timmins, Jr.: No other court, Your Honor.

Chief Justice Earl Warren: But you just told us that --

Mr. B. H. Timmins, Jr.: The trial court --

Chief Justice Earl Warren: -- the trial court.

Mr. B. H. Timmins, Jr.: -- after conviction, immediately after conviction before sentencing, immediately after conviction, there could have been an application for habeas corpus to the trial court.

When he went to the penitentiary subsequent to sentencing, the only court that has jurisdiction in an appeal or in habeas corpus is the Texas Court of Criminal Appeals.

Chief Justice Earl Warren: Yes.

That's what I did not understand.

Mr. B. H. Timmins, Jr.: Yes, sir.

I'm -- I'm sorry.

The --

Justice Tom C. Clark: (Inaudible)

Mr. B. H. Timmins, Jr.: The trial judge would consider it in either granted or denied at that time, as I understand it, Your Honor, and then -- and then after sentencing, after sentencing and -- and the man was in the penitentiary, then the application would be lodged directly with the Court of Criminal Appeals.

Justice Felix Frankfurter: And only that.

And only that.

Mr. B. H. Timmins, Jr.: And only that.

Justice Felix Frankfurter: And only that.

Mr. B. H. Timmins, Jr.: Yes, sir.

Chief Justice Earl Warren: I would think -- I would think that would give him a terrible burden to the Court of Appeals to -- to have all those writs from all the prisoners and all your penitentiaries go direct to the Court of Appeals.

Mr. B. H. Timmins, Jr.: It does, Your Honor.

Chief Justice Earl Warren: It does.

Mr. B. H. Timmins, Jr.: It does.

It does, Your Honor.

Justice Felix Frankfurter: You say in your brief, and my Brother Clark has pointed out, you say in your brief that implied within -- whatever the figures are 300 odd, in your brief some (Voice Overlap) --

Mr. B. H. Timmins, Jr.: During the past four years, we have encountered in -- in the Texas Attorney General's Office about 375 applications for writ of habeas corpus.

Justice Felix Frankfurter: Actually filed in your Court of Criminal Appeals?

Mr. B. H. Timmins, Jr.: Either filed in -- no, sir.

In the Court of Criminal Appeals, those matters are not even handled by our office.

The -- the writs which I -- to which I refer or the applications for certiorari in this Court are applications in the United States District Courts.

Justice Felix Frankfurter: Federal courts?

Mr. B. H. Timmins, Jr.: Yes, sir, and the federal courts.

Justice Felix Frankfurter: And then --

Mr. B. H. Timmins, Jr.: Those are the ones which -- to which I refer.

Justice Felix Frankfurter: And when you say you are not, do you think the General's Office doesn't have to deal with those, that means the district prosecutors deal with it?

Mr. B. H. Timmins, Jr.: We do not deal with the ones in the state courts, the district prosecutors to handle those.

Justice Tom C. Clark: You have a state's attorney?

Mr. B. H. Timmins, Jr.: We have a state's attorney.

And he works with the -- he works --

Justice Tom C. Clark: Court of Criminal Appeals.

Mr. B. H. Timmins, Jr.: -- with the -- with the District Attorney in presenting those to the Court of Criminal Appeals.

The only ones which we handle are those which reach the federal courts.

And we have --

Justice Tom C. Clark: And the state's attorney would handle matter for the State in the Court of Criminal Appeals, wouldn't he (Voice Overlap) --

Mr. B. H. Timmins, Jr.: In conjunction with the District Attorney.

Justice Felix Frankfurter: He's competent to statewide?

Mr. B. H. Timmins, Jr.: Yes, sir.

Justice Felix Frankfurter: But you call him state's --

Mr. B. H. Timmins, Jr.: State's attorney.

Justice Felix Frankfurter: -- state's attorney.

Mr. B. H. Timmins, Jr.: He -- he represents the State before the Texas Court of Criminal Appeals.

Yes, sir, that's correct.

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