GALLEGOS v. COLORADO

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Argument of Charles S. Vigil

Chief Justice Earl Warren: Number 475, Robert Elmer Gallegos, Petitioner, versus Colorado.

Mr. Vigil.

Mr. Charles S. Vigil: Mr. Chief Justice, Associate Justices, may it please the Court.

This is a case in which Robert Elmer Gallegos, the petitioner and by writ of certiorari comes from the Supreme Court of the State of Colorado.

He was tried in the District Court in the City and County of Denver for a murder during -- train during a robbery.

He was jointly charged with Eddie Martinez.

Robert Elmer Gallegos was 14 years of age and Eddie Martinez was 12 years of age.

The case against Eddie Martinez during the course of the trial was dismissed because of the fact that the Court ruled that he did not understand the nature of the note.

The Court further heard the question involving the admissibility of a statement taken at the end of a seven-day period in security and in the Juvenile Hall in the City and County of Denver and determined --

Chief Justice Earl Warren: I wonder -- I wonder if you could just start in from the beginning and give us the facts of the case so we can get oriented on it --

Mr. Charles S. Vigil: Very well.

Chief Justice Earl Warren: -- Mr. Vigil.

Mr. Charles S. Vigil: This case started by an investigation by the Denver Police Department as shown in Exhibit G which is part of the record, I think.

And they had apparently picked up at least one other individual prior to the time that surely by accident in accordance with the testimony of the Police Officer Chism who picked up these boys in the lower section of Denver as they were shining shoes.

Police Officer Chism picked them up and the record will show that after picking them up, he immediately took them to Juvenile Hall and the next day, he determined that there were three boys present at the time.

It was Bobby Gallegos, his brother, Charles who was 11 and his brother, Richard who was eight.

And in accordance with what was done at that time, the police officer interrogated them and the testimony shows that after the interrogation that took place some time during this period probably on the 3rd of January of 1959, that a charge was brought in the Juvenile Court in the City and County of Denver and at that time, the charge that was brought was for the robbery because the victim, Smith, of course, was still living.

Chief Justice Earl Warren: Is that in a juvenile court?

Mr. Charles S. Vigil: Yes, in the juvenile court.

In that case, the juvenile judge heard the proceedings and determined that the boys were guilty.

As a matter of fact, the testimony in the District Court carried this forward by stating that they had admitted their guilt.

But in any event, the Court sentenced them to the State Industrial School and when Mr. Smith died, the District Attorney filed a charge in the District Court on the same state of facts except for the one fact that Mr. Smith had died.

Now, the death certificate showed that Mr. Smith had died from pneumonia, some 30 days after the alleged assault that had occurred on December the 20th of 1958.

The trial occurred on June the 9th of 1959 or started on that day and during the trial, the evidence indicated that the facts were substantially as I've stated them.

The -- the Attorney General appears to state and I think the Supreme Court os the State of Colorado also fears to state this although no dates were used in the opinion, that immediately upon arrest, that Bobby Gallegos made a statement, however, the record will dispute this.

The record at page 197 shows that Officer Chism was questioned starting on page 196 at the bottom.

Question, The Court has ruled, you may testify Officer as to the conversation you had with Robert Gallegos on the occasion that is on the evening of January the 1st at 19th in Curtis Street.

Answer, He admitted to me the conversation began in regards the assault on Robert F. Smith which I had and I'll then report on and I was investigating.

In talking to Robert, he admitted he had a part in it.

Question, Did he say what part he had in that?

Answer, He didn't at first and that is the reason I booked him in Juvenile Hall.

And then the record follows at page 199.

Question, This conversation occurred on January the 2nd, 1959, is that correct?

Answer, Before the day of the arrest which occurred the night of January the 5th.

Question, What happened on that occasion?

I would like to --

Chief Justice Earl Warren: Was he arrested on -- was he arrested on the 5th?

Mr. Charles S. Vigil: He was actually arrested on the night of January the 1st.

Chief Justice Earl Warren: Sorry, what?

Mr. Charles S. Vigil: Was New Year's night --

Chief Justice Earl Warren: Yes.

Mr. Charles S. Vigil: -- of 1959 and was taken to Juvenile Hall immediately after the arrest together with his brother Charles and his brother Richard.

And the answer here indicates -- I would like to clarify one thing, the information --

Chief Justice Earl Warren: What I don't get is this.

If the answer is before the day of the arrest which occurred the night of January 5th --

Mr. Charles S. Vigil: That is correct.

Chief Justice Earl Warren: -- how -- how would -- how could there be an arrest on January 5th if --

Mr. Charles S. Vigil: Well --

Chief Justice Earl Warren: -- he was arrested on the 1st?

Mr. Charles S. Vigil: I think that the Officer is mistaken in -- in answering this.

Chief Justice Earl Warren: Oh, well.

Mr. Charles S. Vigil: And I think that's the --

Chief Justice Earl Warren: That should be --

Mr. Charles S. Vigil: -- explanation to that.

Chief Justice Earl Warren: -- January 1st?

Mr. Charles S. Vigil: Yes.

He was --

Chief Justice Earl Warren: Yes.

Mr. Charles S. Vigil: -- actually arrested on January the 1st.

Chief Justice Earl Warren: Yes.

Mr. Charles S. Vigil: I would like to clarify one thing.

The information that I had obtained, I sent a report to juvenile court on this first information.

And then on January 5th, the victim or the other so identified the parties at Juvenile Hall.

And at that time, upon taking the other victim home, I was called to Juvenile Hall that Richard wanted to see me.

That is when he told me about the assault and I sent an additional report to the juvenile court at that time indicating, of course, this was January the 5th when the second assault which involved Robert Smith was called to the attention of Officer Chism.

Now, we follow on page 208, at the top of the page.

And of course, that witness was Officer Miller and I might explain here that Officer Chism was the Officer who first arrested these boys, the three boys, who had developed later, were not the boys that he wanted that is all three of them, Charles was released.

But Officer Miller was the one who took the statement at the police station on the 7th.

And the question that was asked at that time was this.

Question, What was the conversation?

Answer, I told Robert -- Mr. Smith, I was informed Mr. Smith, who was in critical condition at Denver General Hospital not expected to live.

And I told him it was my job to attempt to get a formal statement for the record in a matter.

Now, the obvious thing is that the statement on that date was taken on the morning of January the 7th of 1959 that indicates that no statement had been taken prior to that time.

Now, the Attorney General also indicates that they were -- these three boys who were picked up, I might point out here also that Eddie Martinez, the 12-year-old, was not picked up until the 2nd of January, although, Robert and Charles and Richard Gallegos had been picked up on the 1st of January.

But because of the fact that the determination was made to Charles was not in anyway involved, Charles was released and taken home.

And Eddie Martinez was picked up on the 2nd of January and taken to Juvenile Hall.

Now the record shows that so far as Eddie Martinez was concerned and I refer now to the record 146, and this witness is testifying, and the Court asked this question.

The Court, Then what happened?

The witness, Well, as I say, we heard Eddie.

The conversation was, “What did you tell that guy?”

He said, “I told him the truth.

I wanted to get the matter straightened out.”

And we heard someone say, “You brat!”

And we heard a scuffling sound, a gurgling sound, and we ran up.”

Chief Justice Earl Warren: Who said that?

Mr. Charles S. Vigil: That was the witness.

The police officer who -- I think was Officer Miller who said that.

And this testimony that he's giving comes as a result of this situation that exist in Juvenile Hall.

They have microphones in each one of these security rooms.

Security is a room in which the boys are kept alone and not allowed to talk to anybody, although, they are permitted to go to lunch in a group apparently.

But the officer is testifying here to what he heard over this microphone after they had talked to Richard who was eight years old.

Richard was a -- a little boy who was undersized in any event, but was eight years of age, and the officers had kept him in.

This statement was taken -- this statement was taken on January the 3rd of 1959.

And of course, they then released Richard.

He went upstairs, and the conversation that they overheard is what the officer is relating.

And he goes on further to state --

Chief Justice Earl Warren: Who was in on this conversation that they were --

Mr. Charles S. Vigil: The -- Officer Miller was in on the conversation and other officers in the Juvenile Hall were overhearing the conversation in accordance with the testimony that I have --

Chief Justice Earl Warren: Well --

Mr. Charles S. Vigil: -- just read.

Chief Justice Earl Warren: -- what's scuffling and gurgling were -- were they talking about?

Mr. Charles S. Vigil: Well, the point that they're making is this.

That Eddie Martinez who was one of the suspects in the case had taken Richard Gallegos, the eight-year old and was choking him, and he states this.

In his answer to another question which follows immediately afterwards.

Question, When you were listening on the microphone and heard someone say this, you indicated it was Eddie Martinez, but you cannot swear he said this.

Answer, No, but I can say it was Eddie Martinez.

He was choking Richard Gallegos when I ran up there.

In other words --

Chief Justice Earl Warren: Choking him with the police officer's presence?

Mr. Charles S. Vigil: Yes.

He said that that's what Eddie Martinez was doing because --

Justice William J. Brennan: No, but I --

Mr. Charles S. Vigil: Richard --

Justice William J. Brennan: I thought you -- these kids were by themselves in a room which had a microphone in it, the kids were talking and the officers were outside the room and heard the conversation on the microphone, was that it?

Mr. Charles S. Vigil: That is correct.

However, the -- the -- the reason that I'm reading this is to show contrary to what the Attorney General has stated that no statement had been taken by the police officers on January the 1st when these boys were first arrested.

And the reason that this shows that is because the officers were -- had talked to Richard Gallegos on this night when they released him, Eddie Martinez apparently got mad because of the fact that Richard Gallegos had told the truth as he said.

So of course --

Chief Justice Earl Warren: Well that was Robert Gallegos -- Gallegos in this room when this -- when he's choking and gurgling was going on?

Mr. Charles S. Vigil: Apparently -- apparently not.

Chief Justice Earl Warren: Well, how does it material to --

Mr. Charles S. Vigil: It was material merely to show that no statement was taken which is what I'm attempting to show here and no statement was taken at the beginning of the time that was involved here.

Chief Justice Earl Warren: Was this testimony you put on or testimony the state put on?

Mr. Charles S. Vigil: This is a testimony the state put on.

However, this is on cross-examination on the questions that I had asked.

Justice John M. Harlan: Under your procedure in Colorado, where the question was claimed to be coerced.

What is the procedure?

Is there a preliminary hearing (Voice Overlap) --

Mr. Charles S. Vigil: There is a preliminary hearing.

Justice John M. Harlan: Then the issue is again submitted to the jury.

Mr. Charles S. Vigil: The issue can again be submitted to the jury.

Justice John M. Harlan: Was it in this case?

Mr. Charles S. Vigil: Yes, it was but not in -- in all of its detail.

Justice John M. Harlan: Well, was it submitted as over with the deficiencies in which -- were there deficiencies in submitting?

Mr. Charles S. Vigil: Well, there -- there were some deficiencies, I would say in the submission of the whole hearing before the jury, but in any event, the hearing is held.

Justice John M. Harlan: All I'm getting at is that these controverted questions of facts were before the jury, were they not?

Mr. Charles S. Vigil: The controverted questions of facts were not all before the jury.

Some of them were and some of them were not.

And the controverted question of fact, for example would -- appears at page 197, was before the jury but that question was not controverted.

That's the -- is the testimony that was put on by the District Attorney.

The question being whether or not, Bobby Gallegos had made a statement on January the 1st of 1959 when he was arrested.

The record as made by the District Attorney himself indicates that Bobby Gallegos did not make this statement because the witness states at page 197, in response to the answer, he didn't at first and that is the reason I booked him in Juvenile Hall.

And so of course, the District Attorney himself states that, as a matter of fact, therefore; this witness who could not have made the statement when he was first arrested, which is the implication and the fact that seems to follow from the Attorney General's argument in this case that Bobby Gallegos immediately made a statement.

Justice John M. Harlan: Were these portions to the record that you've been reading from, was it -- do they represent testimony that was taken in the presence of the juror?

Mr. Charles S. Vigil: The portion that I have just read from page 197 was before the jury and it was the testimony of the prosecution as it presented its case.

Now, with reference to the matters to whether or not this -- this boy, Robert Gallegos had counsel or whether any of them had counsel.

I don't think there can be any dispute that they did not have counsel because none appeared for them even at the juvenile court hearing.

At that hearing there was no counsel and as a matter of fact, when the mother attempted to see her son on January the 2nd and went to Juvenile Hall, she was turned away and told that she could not see him with the explanation that he was under investigation.

Now --

Chief Justice Earl Warren: Did she make more than one effort to see him?

Mr. Charles S. Vigil: She went again on January the 8th, and on that occasion, she was permitted to see him.

On the -- I don't think she went again because she'd been told, I think on that occasion, that she could only see her son on visiting days.

However; the record shows further with reference to this and this is on cross-examination on page 211.

Now with reference to your first request as to whether or not he wanted a lawyer, what did Robert say to that?

Did he --

Justice William O. Douglas: What part are you reading now?

Mr. Charles S. Vigil: This is on page 211, the bottom of the page.

Question, Now, with reference to your first request as to whether or not he wanted a lawyer, what did Robert say to that?

Unknown Speaker: (Inaudible)

Mr. Charles S. Vigil: Did he answer it at all?

Answer, Yes, they shook their heads.

I mean, they gave me no indication.

Question, So when you asked if they anted their parents, they shook their heads, did they?

Answer, They didn't indicate they wanted them there.

Now, I think through the record it -- it appears that -- I think in two or three places that --

Chief Justice Earl Warren: No, what boys were they asking about there, Robert and who else?

Mr. Charles S. Vigil: Robert and Eddie --

Chief Justice Earl Warren: Eddie --

Mr. Charles S. Vigil: Martinez.

Chief Justice Earl Warren: Robert was 14 and Eddie was 12.

Mr. Charles S. Vigil: Eddie was 12.

Chief Justice Earl Warren: Those were the only two there.

Mr. Charles S. Vigil: Those were the only two.

The eight-year-old under the law in Colorado, any child under the age of 10 cannot be tried and a child under the age or up to the age of 14 must know the difference between good and evil, but of course, is another point which is involved in this situation.

Now so far as the mental capacity of Robert was concerned, Robert had been examined by a psychologist who testified before the jury and also who two -- three psychiatrists had examined him.

Now, these psychiatrists had been appointed upon a special petition before the trial by a counsel who asked that psychiatrists checked these children to determine whether or not we should follow certain procedures.

The Court in following our request appointed the psychiatrist and afterwards, the psychiatrist examined these children and presumably for reasons of their own made reports to the Court.

During the course of the trial, the Court permitted these psychiatrists or at least one of them to testify and -- and clearly took into consideration statements that were made by the psychiatrists.

And the Attorney General in his brief apparently agrees that if the psychiatrist did testify that this would be error because his argument is simply that the psychiatrist did not testify.

Chief Justice Earl Warren: Alright (Voice Overlap) --

Justice John M. Harlan: (Voice Overlap)

Mr. Charles S. Vigil: They did testify.

Justice John M. Harlan: Where is it in the record?

Well, never mind it, I -- I'll find it.

Mr. Charles S. Vigil: The record, it appears at page 167 and 172, it is Dr. Charles A. Rymer.

The testimony of the doctors, the Court, I will make it clear for the record, calling a psychiatrist has nothing to do whether -- with whether or not the boys are sane or insane.

The statutes provide that where defendants are children, they must know the distinction between good and evil.

And the question of sanity or insanity has nothing to do with it.

Under the statute, the Court has to know and it has to be shown whether they know the distinction between good and evil.

Justice William J. Brennan: Did you say 167?

Mr. Charles S. Vigil: Yes.

That's the judge who is making this statement.

Justice William J. Brennan: I haven't seen it.

Mr. Charles S. Vigil: Well, let me see.

Justice William J. Brennan: (Voice Overlap) -- of 167.

Mr. Charles S. Vigil: Maybe its --

Justice William J. Brennan: Alright, Charles.

Mr. Charles S. Vigil: That's record 170 -- 170, I think that --

Unknown Speaker: (Inaudible)

Mr. Charles S. Vigil: Assuming they are both sane, the Court must know whether they know the distinction between good and evil.

Justice Tom C. Clark: Would doctors know -- was this at 170?

Mr. Charles S. Vigil: I think it's at record 170.

Chief Justice Earl Warren: That's Dr. Rymer.

Mr. Charles S. Vigil: No, this is the Court who is talking here.

Justice Tom C. Clark: Well, 170 is Rymer's testimony.

What's the --

Mr. Charles S. Vigil: Yes.

Chief Justice Earl Warren: -- doctor's name?

Justice Tom C. Clark: The doctor is Rymer.

That's correct.

Now at page 169 is the Court's statement --

Unknown Speaker: (Inaudible)

Mr. Charles S. Vigil: -- 169 is the Court's statement.

Justice Hugo L. Black: That's the part you've just been reading.

Mr. Charles S. Vigil: That is correct.

That is correct.

Now, the -- Dr. Rymer testified at 170 and I think at 172 or 174 is the statement that he makes that he examined Robert Gallegos and Eddie Martinez.

Now, our objection to this is quite simple.

It's the fact that the doctor's testimony should not have been considered by the Court for any purpose and further than that, the doctor could not say even that he had examined Robert Gallegos and of course he did testify, and if the Attorney General's conclusion is incorrect insofar as the record is concerned, but then of course he seems to admit that this is error.

Chief Justice Earl Warren: But did -- where is it that he testifies to the mental capacity of Robert?

Mr. Charles S. Vigil: He doesn't testify to the mental capacity of Robert.

He --

Chief Justice Earl Warren: Well --

Mr. Charles S. Vigil: -- testifies that he examine Robert Gallegos.

Chief Justice Earl Warren: Well, where are the conclusions?

Mr. Charles S. Vigil: There are no conclusions.

Chief Justice Earl Warren: What did he say, that he just examined?

Mr. Charles S. Vigil: That's correct.

Chief Justice Earl Warren: And that he didn't tell any?

Mr. Charles S. Vigil: He didn't tell any of his conclusions except for the fact that he had sent a report to the Court and the Court has previously indicated that the Court was considering these letters that have been sent to the Court.

And so our objection as to the courts considering these letters and the testimony for any purpose whatsoever the court quite obviously used these letters in order to determine the question in the statute as to whether or not these children knew the difference between good and evil.

Chief Justice Earl Warren: Was this in the presence of the jury or --

Mr. Charles S. Vigil: No, this was out of the presence --

Chief Justice Earl Warren: Out of the --

Mr. Charles S. Vigil: -- of the jury.

Chief Justice Earl Warren: -- presence of the jury.

Mr. Charles S. Vigil: Yes.

Chief Justice Earl Warren: But is there anything in there showing the mental capacity of Robert?

Mr. Charles S. Vigil: There is nothing in this record except the letters that were sent by the doctors to the Court.

Chief Justice Earl Warren: These doctors appointed by the Court?

Mr. Charles S. Vigil: The doctors were appointed by the Court upon a special petition.

There was no plea of insanity.

It was --

Chief Justice Earl Warren: Yes.

Mr. Charles S. Vigil: -- a special petition.

Chief Justice Earl Warren: Well, where will we find in the record what -- what these doctors said either in their evidence or -- or in their record as to the mental capacity or the mental age of Robert?

Mr. Charles S. Vigil: Well, we have here in the record at record 12 --

Chief Justice Earl Warren: Page 12?

Mr. Charles S. Vigil: Yes.

There is Dr. Rymer and Dr. Cohn, and then on page 14 as the letter (Voice Overlap) --

Chief Justice Earl Warren: Well, what is that -- what does that say?

There isn't anything there that they have reported, anything affecting their -- mental --

Mr. Charles S. Vigil: I think that (Voice Overlap) --

Chief Justice Earl Warren: -- age of Robert.

Mr. Charles S. Vigil: -- on page 13, Dr. Rymer reports as follows.

April the 1st, 1959, Judge H. Joseph Rowlands and judge of the District Court, city and county building, Denver to Colorado regarding Robert Gallegos, “Dear Judge Rownson, pursuant to your request, I have examined the above names at Juvenile Hall.

I have seen Robert Gallegos on four occasions and wish to report to you the following as to his mental condition.

It is my opinion that, one, Robert is sane at the time -- that he was sane at the time of the commission of the alleged crime.

And two, that he is able to distinguish right from wrong at this time as well as the time of the commission of the alleged crime.

With kindest, this personal regards are humane.

Very sincerely yours, Charles A. Rymer, MD.”

On --

Justice John M. Harlan: What's the judgment to that, I don't I understand it.

What point are you making?

Mr. Charles S. Vigil: The point I'm making is this, that the judge, as I've indicated before, took into consideration these letters in determining the mental condition of Robert Gallegos during the course of the trial and also permitted Dr. Rymer to testify that he had examined Robert Gallegos over our objections.

In addition to that, he had other letters that are indicated in the record from the other two doctors who examined Bobby Gallegos.

Justice Hugo L. Black: What was the ground of your objection?

Mr. Charles S. Vigil: The ground of my objection was simply this that there was a doctor-patient relationship that existed because this was based upon the fact and that is the appointment of the doctors who was based upon the fact that we had made a special petition to appoint doctors to help us determine what course to take in this case and not base upon the -- the fact that the boys were insane or any claim of insanity.

And therefore, it was our contention that this could not come under the usual rule that in an insanity plea that the reports are made to the Court and -- that the Court can use them or --

Justice Hugo L. Black: Well, on page 171, you examined Dr. Rymer.

Mr. Charles S. Vigil: Yes, I have --

Justice Hugo L. Black: -- you identified substantially to the same thing, did he not?

Mr. Charles S. Vigil: That's correct.

Justice Hugo L. Black: In response to your inquiries.

Mr. Charles S. Vigil: That's -- that's correct but I didn't examine him.

I think that it could -- that --

Justice Hugo L. Black: That is true, did you?

Mr. Charles S. Vigil: Yes.

That's correct.

He was produced as a witness by the prosecution and not by the defense.

We did not produce him as a witness.

As a matter of fact, we objected to it and if the record is read completely, you'll see that the objection appears to the doctors being called at all and the Court overruled our objection.

Chief Justice Earl Warren: Well, now is there anything in this record from any of these doctors showing what mental age of Robert Gallegos is?

And if so, where is it --

Mr. Charles S. Vigil: The --

Chief Justice Earl Warren: -- in the record?

Mr. Charles S. Vigil: -- psychologist, the doctors do not state that but the psychologist testifies to that.

The psychologist -- his testimony appears in the record and he testified before the jury --

Justice William J. Brennan: Now you say the doctors didn't but the psychologists (Voice Overlap) --

Mr. Charles S. Vigil: Yes, the --

Justice William J. Brennan: Is a psychologist a doctor?

Mr. Charles S. Vigil: I think he probably is called a doctor but he was not -- he does not have a medical degree as I understood his testimony.

He works for the Juvenile Court and --

Justice Hugo L. Black: What's his name?

Mr. Charles S. Vigil: His name is Chester D. Perembur and he testified, in his testimony, it appears in record 263.

Justice Hugo L. Black: What if Dr. Rymer, was he a physician?

Mr. Charles S. Vigil: He was a psychiatrist, yes.

Justice Hugo L. Black: But he testified on behalf of the defendant, did he not?

I don't (Voice Overlap) --

Mr. Charles S. Vigil: No, he did not testify --

Justice Hugo L. Black: Page 170, it says Charles A. Rymer called the witness in behalf of the defendant.

Mr. Charles S. Vigil: That's correct.

That's why the record reads but that that record is incorrect.

He was not called --

Justice Hugo L. Black: (Voice Overlap) examination by the Court and direct examination by Mr. Vigil.

Mr. Charles S. Vigil: That is correct, but that is not the fact of the matter.

He was not called by the defendant.

He was called by the prosecution or by the Court as a matter of fact to determine this and we -- the record is incorrect to that extent certainly that as far as --

Justice Hugo L. Black: Well I suppose objection (Inaudible) -- on your part to his testifying and that --

Mr. Charles S. Vigil: Well --

Justice Hugo L. Black: -- directly you examined him.

Mr. Charles S. Vigil: I think that if we go before that time, you'll see at page 168.

Justice Hugo L. Black: I see, you're making -- the top of page 168?

Mr. Charles S. Vigil: No, at the bottom of that page and you'll see Mr. Rossman who was Assistant District Attorney trying this case says, “I think it is proper to have a ruling on the point right now on the objection to the psychiatrists testifying.”

Mr. Vaio, At this point or for the whole trial.

The Court, Do you object to their testifying at any time in the trial?

Mr. Vaio, That is correct.

The Court, The objection is overruled and he proceeds to overrule the objection.

And then he explains himself at page 169 by indicating that he wants to make it clear for the record as to the purpose for which he is calling the psychiatrists.

And so the Court --

Justice Hugo L. Black: Well, this goes on.

I'm not perfectly clear.

Assuming if you are right and that you did appear and they let him testify, what is the due process -- what effect does that have and connects with your due process contention?

Mr. Charles S. Vigil: The connection it has is that a doctor who has a doctor-patient relationship with any person who cannot testify where there is objection made to his testimony.

Justice Hugo L. Black: You mean forbidden by due process to testify?

Mr. Charles S. Vigil: Well, I think it would be due process.

That's my conclusion that he could not testify because the defendant would be --

Justice Hugo L. Black: Did he testify any confession or anything like that?

Mr. Charles S. Vigil: Well, he did not testify any confessions but he testified to a point that we felt was immaterial which --

Justice Hugo L. Black: That is to his mentality.

Mr. Charles S. Vigil: Yes, to his mentality.

Justice Hugo L. Black: So your point is that it violated due process, put a doctor on to testify his mentality over your objection.

Mr. Charles S. Vigil: That is correct.

Justice William J. Brennan: Well, on your position patient-relationship, you construct this from the fact that you make the petition for the appointment of these doctors to examine them, is that it?

Mr. Charles S. Vigil: Yes.

Justice William J. Brennan: And that if -- after you've got the results of those examinations as just as if you had retained these positions for that (Voice Overlap) --

Mr. Charles S. Vigil: Exactly.

Justice William J. Brennan: And that they could not then have testified over your protest because that would have violated a privilege, is that it?

Mr. Charles S. Vigil: That is correct.

Justice William J. Brennan: And how -- and you say you make a due process (Voice Overlap) --

Mr. Charles S. Vigil: Well if -- if over objection, the Court permits this testimony, obviously the Court is violating what I consider is due process to permit a doctor --

Justice William J. Brennan: Well, was there any finding at any stage of this proceeding in the state courts that in fact this did establish a doctor-patient relationship?

Mr. Charles S. Vigil: No, I don't think.

I think the Court did not rule exactly on that.

There was no ruling on that basis.

I think the Court's position was that he was entitled to, that is the judge was entitled to hear this testimony for the reason that he had to determine whether or not these children knew the difference between good and evil under the Colorado statutes.

And we objected to that because this was a material point in the case.

Chief Justice Earl Warren: Where in the record will we find what you ask for when you ask the Court to appoint these doctors?

Mr. Charles S. Vigil: I think that that is early in the -- there's a petition and at the first part of this record.

The petition appears on page 10 and this was filed on February the 17th of 1959.

And the position that we take is that we made that petition as a special petition and the final sentence in it says, so that the psychiatrist who might be appointed could advice with counsel as to the condition of the two defendants, both of whom are so young as to create doubt as to their understanding.

Chief Justice Earl Warren: Very well.

Mr. Charles S. Vigil: Now, there was a question as to the psychologist, Chester, D. Perembur in his testimony appears in the record 263 and he stated in his testimony that Robert Gallegos has an IQ of 70 on a verbal scale.

He speaks the language of a child you might expect that age of nine.

He has a general IQ of 83.

This put him in the lower range of intelligence.

I would say he's probably functioning at the level one might expect of a normal child of 11, maybe 10.

Chief Justice Earl Warren: Was there any testimony in opposition to that?

Mr. Charles S. Vigil: No, there --

Chief Justice Earl Warren: But the --

Mr. Charles S. Vigil: -- was no testimony in our position.

Chief Justice Earl Warren: Did the state put on any -- any testimony (Voice Overlap) --

Mr. Charles S. Vigil: There was no -- there was no testimony in opposition to this at all.

Chief Justice Earl Warren: Alright.

I see.

Mr. Charles S. Vigil: Now, the next point that we have is the question involving the testimony that was given in the juvenile court.

There is no dispute that the same testimony that was given in juvenile court on the robbery charge where Robert Gallegos was sentenced to the Industrial School, it was the same testimony that is Exhibit D.

It was the same testimony that was used in the District Court to convict him on a murder charge.

Now, with regard to that, the -- so far as the testimony was concerned, there was no dispute that this was the same testimony and that it was used in the juvenile court and that as a result of that, Robert Gallegos was sent to the Industrial School in 1959 somewhere in the middle of January of 1959.

Thereafter of course, when Mr. Smith died, he was tried again on the murder charge in the District Court and sentenced to the State Penitentiary for life.

However; he was kept in the Industrial School to complete his term on the robbery charge and the sentence on the murder charge has not yet taken effect.

He's being held in county jail and the city-county of Denver.

Now, so far as the position that we take there, we feel that because of the statute in Colorado that reached clearly that this evidence cannot be used in any other court or in any other proceeding that this forecloses the state in using this.

And of course, we have quoted the statute in -- in our briefs.

Justice William J. Brennan: But -- but apparently your State Supreme Court, it constituted (Inaudible)

Mr. Charles S. Vigil: Well, I think that the State Supreme Court has read this --

Justice William J. Brennan: But, what -- what --

Mr. Charles S. Vigil: -- and has determined there, their ruling was to the effect that the only thing that is foreclosed by this statute was a transcript of the proceedings.

Justice William J. Brennan: Well, isn't that a determination of the meaning of your statute which includes us?

Mr. Charles S. Vigil: Well possibly, it does.

I can't say that.

I would say that the Court having determined this is not following the statute as it -- as it reads.

I think the statute is very clear and that it should be read as it --

Justice William J. Brennan: Well you're not -- you're not -- are you arguing it's been applied differently in other cases in --

Mr. Charles S. Vigil: Yes.

Justice William J. Brennan: -- only this way and this way.

Mr. Charles S. Vigil: As a matter of fact, there is a case.

This statute appears in almost every state in the union and I think that the District of Columbia has a statute that's very similar to it.

There is -- there are some differences in it, however.

But generally speaking, the testimony that is used in the juvenile courts could not be used anywhere else.

And the case of Harling versus the United States which is -- comes from the District of Columbia is a case that discusses this and because it's a matter that involves a child of 16, the court in that case, I think, points out that this situation is such that the juvenile must be -- that there's a sort of a contracts of relationship that exists so far as the law is concerned.

Now so far as the construction of the statute in Colorado is concerned, I think that the Supreme Court there did construe it and my view is that this --

Justice William J. Brennan: Well how -- how does -- how does this -- we have to accept the Colorado Supreme Court's construction.

How does this rise to a constitutional violation?

Mr. Charles S. Vigil: Well, I don't think that it necessarily it violates any constitutional provision to say that that should be accepted quite frankly.

But at the same time, I feel that that construction is not in conformity with what the law states.

Now, the last point that we have is a point involving the waiver of the jury trial.

We requested to waive a jury trial in this case from any reasons.

And in the case, we'd also filed a plea of former jeopardy.

And the Court overruled this motion to waive a jury trial in the case in chief.

However; on the plea of former jeopardy, the Court heard this plea of former jeopardy without a jury.

Now of course, we did not request the jury nor did we do anything about having the jury in the case, because in that particular plea, although under the cases in Colorado in pleas of former jeopardy, there must be a jury.

In this particular situation, there was no jury in the plea of former jeopardy.

However, when the trial -- on the charge itself came on, the Court insisted that there must be a jury and overruled our motion or a waiver of the jury.

I think I would like to reserve the balance of my time if the Court please.

Chief Justice Earl Warren: You may, Mr. Vigil.

Mr. Brauer.

Argument of J. F. Brauer, Jr.

Mr. J. F. Brauer, Jr.: Mr. Chief Justice and members of the Honorable Court.

Between 8:30 and 9 p.m. on December 20th, 1958, the defendant who was then 14 years old and two other boys were shining shoes in downtown Denver.

They weren't making very much money and they thought of a plan, to rob an old man.

The victim that they picked out on the street was partially drunk and they followed him to his hotel.

But since they lost track of the old man, they left one boy at the door, the youngest one, as a lookout, and the other two went on upstairs and they have asked some people up there if their grandfather had just come in.

And the people upstairs said, “Well, the old man next door just came in.”

So they knocked at the indicated door.

And when the man answered, one of the boys asked for a drink of water.

The old man then turned around to get the water and the defendant struck him with a shoe brush and he fell right to the floor.

The two boys together then held a knife on his throat and took his wallet.

They ran downstairs, picked up the lookout at the door and the three of them together ran on to a viaduct where they split up the $13 they found in the wallet, threw the wallet and the shoe brush off the side of the viaduct, it was never -- neither were ever recovered.

Twelve days later, New Year's night on the 1st of January, 1959, the defendant was questioned by an officer who had a record of this assault and a description of the suspects.

He immediately admitted he's involvement in this entire incident.

The next day, he was booked in at Juvenile Hall, rather that night, he was booked in but the next day, he again admitted he's part of it.

Justice Potter Stewart: What was the occasion for his being picked by the officer?

Mr. J. F. Brauer, Jr.: The officer had a description of the suspects and apparently he was just driving around picking up people who might possibly fit the description and talking to them about it.

And this defendant, right there in the police offers through his car at the time he was picked up, admitted he's part of it.

We will later cite and quote the exact parts of the record.

Justice Potter Stewart: Was this boy alone when he was picked or was with anybody?

Mr. J. F. Brauer, Jr.: No, he was picked up with his two brothers.

The one I'm talking about is defendant, Robert Gallegos with him were his two brothers, Richard and Charles Gallegos.

Richard was the eight-year-old.

Justice Potter Stewart: Who was that?

Mr. J. F. Brauer, Jr.: He was the lookout at the door.

Charles had nothing to do with it.

Now as I state, he again confessed the next day and the officer in the Juvenile Hall took the entire matter down in longhand.

All of the details that I've already related about are in that oral confession he gave the next day to the officer.

It was on the 7th of January when he signed his first written confession.

He at that time affirmed all of the details I've already given and besides that, he affirmed the date as December 20th, 1958.

Now after the attack, the victim was immediately taken to the hospital.

He had numerous fractures and bruises on its jaws and cut on his neck.

Four days later, he left into unconsciousness.

He was reexamined and they found quite a few blood clots which the doctor's testified were secondary to the blows that he received about the base from the shoe brush.

On the discovering of these blood clots and so forth, they applied additional medications.

They also performed surgery, but the victim did not respond at all.

He died on the 26th of January, 1959, some 36 days later -- 35 days later after the initial attack.

And the death certificate, it is true as to bronchial pneumonia, that's the cause of death.

At the trial, both the doctor and the pathologist testified that the cause of the -- of death was bronchial pneumonia and that the blows about the head and face brought on the bronchial pneumonia.

Apparently, it was somewhat similar to the situation of this fighter that just died.

They said he died of bronchial pneumonia caused by the blows about the face and the head.

Now all of the above that I mentioned in regarding this case, was brought out during the people side of the presentation.

In a hearing out of this --

Justice William J. Brennan: This is out of the presence of the jury.

Mr. J. F. Brauer, Jr.: No.

Justice William J. Brennan: (Voice Overlap)

Mr. J. F. Brauer, Jr.: This was all brought out in open court before the jury.

In a hearing, not at the presence of the jury, the defendant denied his participation in the event.

He denied making the oral confessions.

He said the written statement was forced out.

But during the presentation in front of the jury, the defendant did not take the stand.

He presented other witnesses in an attempt to establish an alibi.

The other witnesses testified that the defendant and the other two boys allegedly involved in this affair were all at the home of one of the boys watching television for the entire evening when these all occurred.

Now, the defendant himself also presented to the Court, the Juvenile Court psychiatrist -- psychologist, pardon me.

And the psychologist said that in his opinion, the defendant had an IQ of 70 regarding his language ability, the ability to communicate.

But he said he had an overall of IQ of 83 which was equal to that of the average 10 or 11-year-old.

The psychologist also said that the defendant had feelings of insecurity and of being retarded and was more prone to suggestions from others than with the normal -- the average person to be.

I'd like to point out at this point that in Colorado, once the person is physically 14 years old, his ability -- his mental ability short of insanity is immaterial, I can feel that that was clear for Mr. Vigil's presentation between 10 where -- when they first might be accountable for a crime and 14, their ability to distinguish good from evil is all important and whether or not they're tried.

But once they're physically 14 years old, they are accountable unless they're going to plea and show insanity.

Justice John M. Harlan: Was there any defensive insanity into (Voice Overlap) --

Mr. J. F. Brauer, Jr.: No.

No defense of insanity was ever presented.

Now, the psychiatrist that was called testified about Eddie Martinez, his ability to distinguish the difference between right and wrong because he was only 12.

And being in that group between 10 and 14, this was conclusive factor as to whether or not he knew the difference between right and wrong and could understand the nature of a no.

The psychiatrist said he could not and therefore the case was dropped as Eddie Martinez.

But after Robert Gallegos, the Supreme Court has ruled previously that once -- then you show they are 14 years old physically, then they're in the same category as an adult.

And unless they show insanity, they are responsible for their crimes.

No insanity was ever pleaded.

Justice John M. Harlan: Was the psychiatrist get into this at all so far as Gallegos is concerned?

Mr. J. F. Brauer, Jr.: Well as far as he's appearing before the Court, it's our contention Your Honor that he did not.

He examined Gallegos because Mr. Vigil submitted a petition to the Court to have the boys examined by a psychiatrist to aid him in preparing their defense.

This was a special petition.

It was not done the way it would have been done if they were going to plead insanity.

If they're going to plead insanity, they must state their plea and then the Court appoints the psychiatrist who report back to the court.

But Mr. Vigil just came into the court with the petition and said he thought it would aid him in this case to have a psychiatric --

Justice John M. Harlan: Under -- under your law, a boy who is between 10 to 14, is there -- is there a compulsory circumstance -- a psychiatric examination required?

Mr. J. F. Brauer, Jr.: I don't believe the law says it's compulsory -- there's a compulsory psychiatric examination.

It says he is accountable if it is shown that he can distinguish between good and evil.

Justice John M. Harlan: I thought it was a part of the States' case whether there is plea of insanity interposed or not to approved that he is --

Mr. J. F. Brauer, Jr.: It would be as to Eddie Martinez.

Justice John M. Harlan: As to the one (Voice Overlap) --

Mr. J. F. Brauer, Jr.: The one who was 12.

He is not before this Court.

He was never even tried let alone convicted in presenting an appeal.

The cases against --

Justice William J. Brennan: (Inaudible)

Mr. J. F. Brauer, Jr.: Excuse me.

Pardon me?

Justice William J. Brennan: (Inaudible)

Mr. J. F. Brauer, Jr.: No, the case was dropped (Inaudible) --

Justice William J. Brennan: Well I think, could he have been under (Inaudible) as an adult as well?

Mr. J. F. Brauer, Jr.: If he had been shown to understand the difference between right and wrong, he could have, yes.

But --

Justice William J. Brennan: Then --

Mr. J. F. Brauer, Jr.: -- then --

Justice William J. Brennan: -- the state make a distinction between juvenile defenders and --

Mr. J. F. Brauer, Jr.: In more serious crimes, they can be tried either in the District Court under the criminal statutes or they can be handled as juvenile delinquent in the juvenile court.

Justice William J. Brennan: Without regard to age?

Mr. J. F. Brauer, Jr.: I can't remember the exact distinction.

I believe after they're 16, the discretion within the authorities to use one court or the other is broader than when they're under 16.

But I feel that all of this is aside from the main point because we haven't heard of it today, not Martinez who was 12.

We have Gallegos who was 14 and who -- a lot says he's accountable.

14 or over, you're accountable unless you plead and show insanity which he never even attempted to do.

Chief Justice Earl Warren: Well, Mr. Brauer, what -- what did the testimony show as to the age of Robert insofar as his ability to communicate was concerned?

Mr. J. F. Brauer, Jr.: If I understand Your Honor's question --

Chief Justice Earl Warren: Well as I understood -- as I understood, his general mental age was -- was of 11 -- between 10 and 11.

Mr. J. F. Brauer, Jr.: That's right.

He --

Chief Justice Earl Warren: Now, didn't they also make some distinction as to his powers of communicating and --

Mr. J. F. Brauer, Jr.: (Voice Overlap)

Chief Justice Earl Warren: -- being articulate, didn't they give him a mental age as to that?

Mr. J. F. Brauer, Jr.: They said that they are -- when they talked about ability to communicate --

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: -- they mean language ability.

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: I assumed it is measured by vocabulary and ability to express ones self.

Chief Justice Earl Warren: Yes, it (Voice Overlap) --

Mr. J. F. Brauer, Jr.: As to that, he had an IQ of 70 which they said was equal to an average eight or nine-year-old.

Chief Justice Earl Warren: Eight or nine-year-old.

Mr. J. F. Brauer, Jr.: It is not in the record as to why this might have occurred.

In Denver, it is often true that Spanish-Americans because of less exposure to English than the general population, either so many of their friends and families speak Spanish in their home are poor on communication even all the way through schools.

They just don't have a vocabulary that people have that were brought up in English speaking homes.

Justice Hugo L. Black: What grade did he go to?

Mr. J. F. Brauer, Jr.: I believe --

Justice Hugo L. Black: It's not in the record?

Mr. J. F. Brauer, Jr.: I don't think it's in the record.

I believe it were -- I believe there was mentioned somewhere but I don't think it's clear as to -- I -- he was in grade school.

That was I believe.

Now, before the victim ever died, the defendant was brought into juvenile court and charged as a juvenile delinquent.

He was found to be a juvenile delinquent and he was committed to the State Industrial School before.

I might state this is no criminal proceeding.

This double jeopardy is completely out of the question it seems because there wasn't even any conviction, let alone a conviction of murder.

The guy hadn't even died yet.

So it's just a cri -- a juvenile proceeding in which he is adjudged to delinquent and committed to the State Industrial School.

That happened within a couple of weeks after the boy's first confession.

Justice Potter Stewart: Is that -- was that for an indefinite term or for --

Mr. J. F. Brauer, Jr.: It's -- if there's no term stated.

He cannot be there after he is 18 years old by Colorado statute.

He can't be in that Industrial School.

Then after the victim died, he was charged in criminal court for first degree murder, pled of course not guilty and was found guilty and sentenced to life imprisonment.

Now, that sentence has been stated any of these many appeals and in the meantime of course, their commitment to the Industrial School has been enforced about two weeks ago, he turned 18 and therefore, he has, in the last two weeks, been in the county jail because he's not eligible under law to be staying longer in the State Industrial School.

Justice William J. Brennan: Does a jury fix the sentence under your (Inaudible)

Mr. J. F. Brauer, Jr.: The jury sentences a defendant if he is over 18.

This is another point out that comes to later because the death penalty is not possible for one who is under 18 and the conviction of first degree murder then has only one possible sentence in Colorado, life imprisonment.

Chief Justice Earl Warren: And they're in an industrial school to reach the age of 18 and they transferred them then to some other institution.

Mr. J. F. Brauer, Jr.: Or released them if they have been --

Chief Justice Earl Warren: What kind of an institution do they have the power to transfer them to when they do right at the age of 18?

Mr. J. F. Brauer, Jr.: I, Your Honor, I'm not fully familiar with all the transfer proceedings.

I have not dealt with that particular fate.

I didn't feel it was important to this case.

As I say, they could not transfer him to the State Penitentiary.

There are such institutions as the reformatory and so forth, and I'm not thoroughly familiar with what circumstances would allow a transfer to which one of those.

Justice William J. Brennan: It has to be released, doesn't it?

Mr. J. F. Brauer, Jr.: He would have to get out of the State Industrial School.

He don't --

Justice Hugo L. Black: He hadn't been convicted of any offense.

Mr. J. F. Brauer, Jr.: He hadn't been convicted of any offense but there are other institutions for juvenile delinquents beside the State Industrial School.

Unknown Speaker: (Inaudible)

Chief Justice Earl Warren: Surely if delinquent -- a juvenile is delinquent the Court doesn't lose its jurisdiction over him at 18 years of age, (Inaudible)

Mr. J. F. Brauer, Jr.: No.

Chief Justice Earl Warren: Did they -- you -- you have other institutions to which he can under (Voice Overlap) --

Mr. J. F. Brauer, Jr.: And that was the matter fact they're usually out long before they're 18.

These --

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: -- juvenile court commitments are very rarely for anytime up past the time when they would be eligible to be in the institution to which they're committed, they are released prior to that on their indefinite sentence.

Now first of all as to the defendant's confession, a written confession which he signed after the period in security, it is of course our position that this was properly admitted to the trial court for its consideration.

And I just want to reiterate the facts because it's our position that if a court thoroughly remembers the fact in sequence as to how they happen, that then the position of the State of Colorado becomes quite clear on the entire manner.

It was on the 1st of January of 1959, in the evening when the defendant was picked up and right there in the officer's car admitted that he was involved in this.

This is shown on page 116 of the record.

He read about a third to the way down.

I was checking the area, looking for the boys who fit the descriptions on the report and I located Robert and his brother, Charles, and his brother Richard at 19th and Curtis outside of the Dutchman's Inn, I believe it is called.

Question, What happened at that time?

Answer, I asked him to sit in the car and asked him regarding this offense.

Richard immediately admitted the offense and Robert told me, he was involved too.

Now at that point, he was taken to Juvenile Hall when he was --

Justice John M. Harlan: Would you describe at that stage, I mean this old man of (Voice Overlap) --

Mr. J. F. Brauer, Jr.: No, that occurred the next day.

I'm coming to that, Your Honor.

Justice John M. Harlan: Because if this day, the old man hadn't -- and he was still alive.

Mr. J. F. Brauer, Jr.: He was still alive at this point, that's right.

The boys were then taken to Juvenile Hall.

The next day, both of the two who were involved again confessed the entire affair.

They admitted another similar offense also.

This is shown on pages 1, starting at page 117 and over to 118.

I'll read the relevant portions.

They said Richard and Robert followed Mr. Smith upstairs.

And losing him, they inquired to different parties that -- that they were looking for their grandfather.

One party told them, “The man just next door had come in and it was probably him.”

Again, they said, “Eddie stayed downstairs.

Robert said he knocked on the door.

Someone told him to come in.

And when they opened the door, he saw it was the man they were looking for.

Then he punched the man on the chin with his fist.”

The Court, Who did this?

The witness, Robert.

And he then proceeded to get his bill fold out of his rear pocket.

Now, I would like to clear up the last paragraph on page 2 of the reply brief, which has come in, in the part about two-thirds all the way down on page 4.

So the question here is to which boys were originally picked up and whether their statements that they gave prior to their being put in security in Juvenile Hall were individual statements from each one or whether they were some kind of a combined statement that the police gathered from all three.

Now, it's clear that the three Gallegos brothers were picked up first.

And then Charles, when they found out he was not at all -- all involved was released.

Eddie Martinez was later then picked up but there was no combined statement, the statement obtained and that the police officers testified about him on the stand were individual statements.

This had to show somewhat on page 125, near the bottom.

And it shows that the only person who talked about combined statements was the defendant's counsel where he asked the officer, “You combined the statements though.

You had been questioning them and you combined the statements.”

Answer, No.

After Richard told me what happened when he admitted they were the boys then Robert verified that.

Question, And Richard is the eight-year-old?

Answer, Yes, sir.

“And then Robert, his brother said that was so?

Answer, Yes.

Who was the third boy in the car?

Answer, Their brother Charles.

What did Charles have to do with this?

Answer, When we took him to juvenile court, Robert told me he didn't have anything to do with it but Eddie Martinez who lived at 45th in Mariposa was the one that was with him.

I think this shows how the three got picked up that they did get individual admissions from each of the two involved Gallegos' brothers, but then they later picked up the other fellow, Eddie Martinez who the Gallegos boys said was also in on it.

Now, it was at 8:30 p.m. on the night after he was picked up just about 24 hours later, 2nd of January, that all three gave complete confessions.

The defendant himself gave the facts which the officer recorded in longhand and which are shown on pages 197 to 199 of the record.

Mr. Vigil starts reading at the top of 197.

I'd like to go on a little further and show what the officer said on pages 197 through 199, the relevant parts that the defendant had testified -- had admitted to him.

He admitted another assault that he took part in another assault on an old man in a hotel at 1851 Champa Street.

He did say he didn't strike the old man that he didn't have anything to do with that.

But upon leaving the premises, he proceeded down to 18th in Curtis Street where he was shining shoes that upon seeing an old man who was later identified as Robert F. Smith, he followed him to a hotel on 18th Street.

He didn't know the name of the hotel or address.

Question, Did he say he was with them in one?

Answer, Yes sir.

He told me he was with his younger brother Richard and one Eddie Martinez.

Question, Alright.

Answer, They followed the old man to the hotel and Richard stayed downstairs and watch out for cops.

He and Eddie went upstairs and they lost track of the old man.

They asked several if they had seen his grandfather come in, that he had just come in and was drunk.”

I'd like to skip down at the bottom of 198 and the story continues there.

He said upon knocking on the other door, someone told him to come in, that he opened the door and he had seen it was the man he was looking for.

He said at that time, Eddie Martinez asked the old man for a drink of water and when the old man brought the water, Eddie grabbed him and he, Robert, hit the old man about the head and face with the shoe brush.

That when the old man fell to the floor, he took a knife and held it at the old man's throat and took his bill fold out of his back pocket.

Question, Did he say what they then did?

Answer, He said, they all left in and went to the 23rd Street viaduct where he gave Eddie $3 and they kept $10 to split between him and Richard and they then went home.

That he threw the billfold and the brush over the 23rd Street viaduct which was never located.

Now, I make it so hard to read this record and say that this boy did not give an oral confession.

I don't know what else more this boy could've told that officer.

He obviously confessed everything there was to confess.

Before he was even placed in the confinement, which the counsel now alleges was the -- the cause of a later coerced confession.

Notice that he had already thoroughly admitted the entire thing before they even alleged that the coercion had begun.

Now, as to whether or not the --

Unknown Speaker: (Inaudible)

Mr. J. F. Brauer, Jr.: -- defendant was told that he could see an attorney.

Justice John M. Harlan: The matter up to the portions that you just referred us too from of 198 to 199, what date was that occurrence?

January 1 as --

Mr. J. F. Brauer, Jr.: If you look on 197 about one-third of the way down, this starts with, “You had another discussion with him at Juvenile Hall, when was that?

Answer, January 2nd.

Then all that I read you was what Robert Gallegos revealed on January 2nd to the police.

Now as to whether or not, the defendant was told that he could see an attorney, told that he could see his mother.

As to whether or not, he was told that his statement had to be voluntary.

Of course, the only important factor on this is whether or not Robert was told all of that.

The brief talked about what the boy were told.

Well, we only have to worry about Robert has told.

And all of the quotations on the defendant's own reply brief on page 3, show that this defendant was told that he could see his mother and that he could see an attorney.

The only dispute is whether he actually said, “I don't want to see either” or whether he shook his head or whether he said, “No, I don't want to see either.”

There's no dispute from the defendant's own quotation that he was advised that he could see the lawyer and could see his mother.

It's our position of course --

Chief Justice Earl Warren: I understood counsel to say that his mother came and they wouldn't let her see him.

Mr. J. F. Brauer, Jr.: That's right.

She came the first time, was told what visiting hours was.

The next time she came back was on visiting hours then she was permitted to see them -- to see him.

He never asked for her at any time.

Chief Justice Earl Warren: When was the first time she came?

Mr. J. F. Brauer, Jr.: The first time was on a Friday night, I believe.

They were picked up on a Thursday night then she came Friday night.

Chief Justice Earl Warren: That would be the second.

Mr. J. F. Brauer, Jr.: I believe so.

I have that further on down in some of my information and then --

Chief Justice Earl Warren: How long would it be if she came on Friday night, how long will it be until she could see him?

Mr. J. F. Brauer, Jr.: She could have come the following Monday but she didn't, she came Thursday.

Those were the visiting nights, were seven to eight.

Chief Justice Earl Warren: And in the mean time, he was kept incommunicado?

Mr. J. F. Brauer, Jr.: He was kept in security.

Chief Justice Earl Warren: Well, what's the difference?

Mr. J. F. Brauer, Jr.: The difference mainly is that he was told he could have either a lawyer, or his mother, or both if he wanted them and he never requested either of them.

Chief Justice Earl Warren: But his mother came and she couldn't get in.

Mr. J. F. Brauer, Jr.: That's right.

She wanted to see him that one time but she --

Chief Justice Earl Warren: And won't they let -- in your Juvenile Hall, won't they normally let the mother in to see a 14-year-old boy?

Mr. J. F. Brauer, Jr.: They didn't this time.

That's right, Your Honor.

Chief Justice Earl Warren: So normally, what do they do then?

Mr. J. F. Brauer, Jr.: Normally, they do let them in if they come at visiting hours.

She did not come at visiting hours and the next time that was visiting hours, she didn't come either.

Now, it's true this may not have been the best procedure.

But as I was starting to say, it's our position and on all of this, you don't have to show any of this to show that the statement was voluntary and properly admissible.

You don't have to show he was advised to have -- he could have an attorney.

Chief Justice Earl Warren: So we're dealing with the pretty young boy --

Mr. J. F. Brauer, Jr.: That's right.

Chief Justice Earl Warren: 14 years with the --

Mr. J. F. Brauer, Jr.: That's right.

Chief Justice Earl Warren: -- mental age of 11 and power of communication of an eight-year-old child.

Mr. J. F. Brauer, Jr.: That's right.

In order to judge the fairness of the whole totality of the circumstances surrounding which he was held, of course I'd also like to show it before he was ever placed in that security where she couldn't see him.

He'd already admitted the whole thing.

As soon as he was picked up, he started admitting it and the next day elaborated the crime.

So that the main question presented here is, was the written confession which they later obtained voluntary?

And you do consider all of the totality of the circumstances under which the boy was picked up and held.

But one of the things you can't escape is, if you're going to decide that this last one was involuntary, have you considered that before any alleged coercion started, before his mother even -- it was turned away at the door.

He'd already confessed the whole thing.

Now --

Chief Justice Earl Warren: Why they introduced the written one then if they already have it all?

Mr. J. F. Brauer, Jr.: We were thinking with the benefit of hindsight.

I did not try this case of course.

I'd represented it on appeal.

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: They would not attach it.

They did.

The District Attorney in the lower court obviously wanted to and did.

But I think that they have their conviction established by his oral admissions.

Chief Justice Earl Warren: But suppose you have a voluntary statement and then hold -- hold the person incommunicado until he -- he makes a written statement and then you introduce the written statement, is that -- is that good?

Is it really involuntary?

Mr. J. F. Brauer, Jr.: We don't think it's the best procedure.

We do say that there are numerous cases from this Court which come right out and say that if the first one is involuntary, that then we're going to presume that the later ones are also involuntary unless they were definitely intervening circumstances, the Federal Digest section has numerous cases from all of the federal courts with this holding.

We're hol -- we're calling for the reverse of this proposition.

There's only one case we've found that has discussed the reverse.

It's an Illinois case cited on page 8 of our brief.

If the first ones were voluntary, can you realistically say that there's anything unreliable about the second one?

Chief Justice Earl Warren: Well, it might not be this way that they got some kind of a statement from him but it might not have been satisfactory.

They wanted more and they want it in written form.

They want to make it more graphic for the jury so they held him and held him incommunicado until he would sign it.

I don't say that happened but I say it could --

Mr. J. F. Brauer, Jr.: I would like to point out --

Chief Justice Earl Warren: It could well happened.

Mr. J. F. Brauer, Jr.: -- there's no evidence that in the early part they asked him to sign and he refused.

It's hard to say they held him until he signed a written confession when he orally confessed immediately and he signed the written confession the first time he was asked.

If not as if he had first refused to sign, then they held him until he did.

I think --

Chief Justice Earl Warren: Did he say why he signed it?

Mr. J. F. Brauer, Jr.: Well at the trial, he denied having ever orally admitted it.

He said that the written one was forced out from him.

They said that they hold him in security longer if he didn't sign it.

But if he did sign, he could go home.

That's what he said.

Of course the jury had all this in front them.

They were the ones it seems to me to decide whether the police officers were telling the truth or whether the defendant was telling the truth.

Now, in order though to show --

Justice Potter Stewart: Well, this is a two -- a two-step procedure in his trial first before the court on the admissibility of the written confession and then the court made a preliminary ruling that it was -- that it can go to the jury as to its --

Mr. J. F. Brauer, Jr.: Then all of this same evidence from the same witnesses came before the jury after I've been previously come before the court.

Justice Potter Stewart: And that did happen in this case.

Mr. J. F. Brauer, Jr.: That's right.

That's exactly what happened.

As I say in order to judge the fairness of the totality of the circumstances, I've found indication of the reliability and therefore the admissibility because if they're inadmissible because of coercion, it's because they're unreliable.

That's the basis of the whole thing.

Well, how fairly was he treated?

Chief Justice Earl Warren: Is that the only reason?

Mr. J. F. Brauer, Jr.: It seems when you read the cases on it that the reason coerced confessions are outlawed is because there's always a chance that someone would be forced him to sign in a confession, confessing a crime he'd never committed.

They're unreliable.

Chief Justice Earl Warren: But can you take the forced confession and then corroborate it and -- and validate it in that way?

Mr. J. F. Brauer, Jr.: Not one that's been always forced, but when you have disputed evidence --

Chief Justice Earl Warren: No.

No, no, no, not the one that's false.

I say --

Mr. J. F. Brauer, Jr.: Pardon me, one that's forced.

Chief Justice Earl Warren: Forced.

Mr. J. F. Brauer, Jr.: You can't get a forced confession in by corroborating.

Chief Justice Earl Warren: Yes, but the -- what the --

Mr. J. F. Brauer, Jr.: But in determining whether it was forced --

Chief Justice Earl Warren: Whether a confession was true or false?

Whether the confession is true or false, you can't -- you can't introduce this if it's coerced.

Mr. J. F. Brauer, Jr.: Not if it's shown to be coerced.

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: We're saying here the corroboration shows it wasn't coerced.

We're saying any kid who confesses as soon as picked up, definitely later confessed because it's coerced but because he wants to confess.

We're saying that corroboration doesn't justify the coerced confession.

We're saying the corroboration shows he couldn't have been coerced.

This kid confessed.

It's really involuntary but soon as the police officers even talked to him about it.

Now, to show how fairly he was con -- considerate at how the officers explained different things to him while he was in custody.

On page 139 of the record, we read from one of the police officer's testimony.

I told him I was instructed to take a statement and if they wanted to give him statements, that I was there.

They wanted to make them, to obtain them from the boys.

I explained if they wanted their parents to come in.

With them, it would be fine and if they wanted an attorney, it would be fine and if they didn't want to make a statement, he so he didn't have too.

And I'd say if you want to get this whole thing straightened out, I want you to tell me the truth about the matter and they said they would.

Question, You had previously given them the opportunity to get counsel or have their parents there?

Answer, I told them if they wanted an attorney, or to have their parents, it would be fine.

Chief Justice Earl Warren: What did he mean when he said -- if they wanted to get the things straightened out, he was there to get a statement.

What do you mean by if they wanted --

Mr. J. F. Brauer, Jr.: Well you see --

Chief Justice Earl Warren: -- to be straightened out?

Mr. J. F. Brauer, Jr.: You see he has confessed another crime besides it.

They were still investigating the second one.

This was one of the reasons they kept on holding and one of the reasons --

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: -- they didn't get the written confession.

Here, Gallegos also admitted knowing all about if not being directly involved, the assault on the other old man, who was Robert.

So that as far as getting it straightened out, he was talking, I think, to any offenses you haven't even told me about in addition to the ones you have told me.

Chief Justice Earl Warren: Is that in the record?

Mr. J. F. Brauer, Jr.: That he told them about the other offense?

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: Yes.

That's in ethical.

Gallegos admitted also knowing about it.

Chief Justice Earl Warren: No, I mean in this testimony of his when he said if you want to get this thing straightened out, now you can tell me the story.

Is there anything in that testimony to indicate that he was talking about the other crimes?

Mr. J. F. Brauer, Jr.: I don't think it's directly there.

It just shows that Gallegos had mentioned the other crime also and that then the officer talked to him this way.

It didn't show that because he had mentioned the other crime, I talked to him like this.

So you have to read that into it if it's there?

Chief Justice Earl Warren: Yes.

Justice Potter Stewart: From what page in the record?

Mr. J. F. Brauer, Jr.: I'm --

Justice Potter Stewart: (Voice Overlap) --

Mr. J. F. Brauer, Jr.: -- reading on page 139 now and I just would like to finish that.

Justice Potter Stewart: 139?

Mr. J. F. Brauer, Jr.: That's right, Your Honor.

Justice Potter Stewart: Thank you.

Mr. J. F. Brauer, Jr.: Did they ever request an attorney or to have their parents present?

Answer, They did not.

Did they make the statement then voluntarily?

Answer, They did.

Now this certainly is very interesting in view of the claim that they weren't given adequate considerations regarding their right to have parents or attorneys or to make statements voluntarily or not at all.

On pages 146 and 147, we find some more testimony that substantiates the State of Colorado position that this boy was given every consideration he could ever have expected.

Chief Justice Earl Warren: Where is the law there?

Mr. J. F. Brauer, Jr.: On the bottom of page 146 where Mr. Vigil as cross-examining the testifying officer, the officer said, “As I previously stated Mr. Vigil, I told them I was instructed to come down and get a statement from them if they cared to make one.

I told them if they wanted their parents to accompany them that they could.

I told them if they wanted an attorney to accompany them, they could have that.

And I told them if they didn't want to go with me, they didn't have to.”

The Court, You told them they could have a lawyer and their parents go with him.

Answer, Yes, sir.

Additionally on page 211 of the record, this is also a cross-examination by defendant's counsel of the testifying officers.

You stated -- you told Robert Gallegos several things upon your first meeting with him including the facts that he could have a lawyer if he wanted one, that he could have his parents present if he wanted, that he didn't have to say anything if he didn't want to.

Did you make and use this as a part of a general statement or did you just ask him?

Answer, No sir.

We were out of Juvenile Hall and I asked the three boys.

They were brought down.

At that time I told them it was my job to attempt to obtain a statement.

And at that time I outlined what I have previously said.

Now as to informing the mother of the seriousness of this situation, the defendant's reply brief cites at page 134 of the record for the proposition that the mother was never really told how serious this whole thing was.

We feel that we should go a little further in this record and read on pages 135 and 136, a few of the relevant statements that I have found there in this record.

Question, When you took Charles home, did you advice the mother of Charles as to where her other boys were?

Answer, Yes.

And further down, “I claimed where the boys were, that is Richard and Robert and I bought Charles back but Robert told me Charles didn't have anything to do with it and Eddie Martinez was with him.”

Question, Did you explain the details, the reasons why you kept the boys at Juvenile Hall?

Answer, Yes.

As to the assault on Mr. Smith and also on Mr. Cruise.

So here, he already knows about the other admission at the time he first -- that first night when he picked the boys up.

Question, Did she make any answer at that time?

Answer, She made the remark to me that she wanted help to get them straightened out.

Then on page 136, near the bottom, “I told Robert, Richard, and also Charles, that is when he told me Charles was not involved, I explained how serious it was, what it was for that was assault and robbery.

The Court, And did you say possibly murder the witness?

I told the mother that as I recall when I took Charles back home.

Now, how can you say that the mother wasn't advised of the seriousness of the situation when the officer comes home with the one boy and said this boy isn't involved?

The other two have admitted their part and an assault that could lead you a murder charge.

And then they say that she was not advised of the seriousness of the situation.

We don't understand that.

We think the record refused it.

Chief Justice Earl Warren: But she did go down to see them.

Mr. J. F. Brauer, Jr.: She went down the next night.

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: And at that time, it's true, they did not let her in.

But she was advised for the seriousness of the situation and they never requested her to come according to the police officer.

Now, as to advising her when she could see the defendant, it is true that the part of the record on page 223 which we did cite in our brief was later stricken.

That's the part where she admits that the officer who brought one boy home told her when the visiting hours were and when she could come in to see the boy.

Now, that was stricken.

But the part of the record which is on page 134 where the officer testified that he told her what the visiting hours were was not stricken.

So it is still in the record that when the boy was brought home, she was told when the visiting hours were that she could see the other two boys who were not brought home.

Justice John M. Harlan: What page are you referring to now?

Mr. J. F. Brauer, Jr.: Page 134, about a third of the way down.

The officer said, “Sure, I remember telling Mrs. Gallegos when I took Charles back what the visiting hours were.”

Now there's another place, Your Honor, where she got on the stand and said that she was told that they were Monday and Thursday from 7 to 8 p.m. but that was stricken so that it isn't before the Court as a matter that they should really consider on appeal.

It's clear that she tried to see him on the 2nd of January, not the night he was picked up which was a Thursday and she could've gone down.

But the -- the next night which was a Friday, and her next try was the 8th of January, she went over the following Thursday.

And at that time, she was allowed to see him, she came during visiting hours.

It's also clear that the boys never asked for their mother and that the mother told the police that she wanted help in getting the boys straightened out.

Now, pages 6 and 7 --

Justice Potter Stewart: Well, on 223 here, she testified and I understand this was subsequently stricken --

Mr. J. F. Brauer, Jr.: Yes, that was the --

Justice Potter Stewart: -- so it's not technically part of the record.

But they told her that the visiting hours were on Mondays and Thursdays, but she couldn't come until the next Thursday and I gather that the following Monday would be the next visiting hours, but she couldn't come on Monday because she couldn't come -- it's a almost a week, about the middle of the page a little below.

But I couldn't see him until Thursday.

And this is on a Friday evening, was it not?

Mr. J. F. Brauer, Jr.: That's right.

That's what they told her.

Justice Potter Stewart: Well in other words, she couldn't come on a regular visiting hours --

Mr. J. F. Brauer, Jr.: That's --

Justice Potter Stewart: -- on a Monday.

She testified that they told her.

Mr. J. F. Brauer, Jr.: She testified that.

That's right.

Justice Potter Stewart: Because he was under --

Mr. J. F. Brauer, Jr.: And then --

Justice Potter Stewart: -- investigation.

Mr. J. F. Brauer, Jr.: Because he was under investigation.

We of its -- as the position of the State of Colorado, I want Your Honors to understand, we don't endorse every action that was taken in this case by the Police Department, by the juvenile officers.

We do say though that the sum total of it does not add up to a coerced confession.

It did not add up to an unreliable confession.

It doesn't add up to a -- a conviction that has been obtained in violation of due process.

The testimony is all true there that if the boys wanted their mother, they could have it right away if they requested the mother and that they never requested her.

Now, it's too bad if she was told that she would wait next Thursday.

Justice Potter Stewart: Almost a week.

Mr. J. F. Brauer, Jr.: That's right.

As I'd say we -- we're not proud that they did that particular part but we also say that you can't say that because the mother didn't get there, the boy was so abused that his confession was forced and it's unreliable and he was denied his right even though he orally confessed as soon as he was picked up before any of these coercive factors supposedly were -- were placed about.

Chief Justice Earl Warren: Then how many days was it after he was arrested that he signed a written confession?

Mr. J. F. Brauer, Jr.: Six.

Chief Justice Earl Warren: Six days.

Mr. J. F. Brauer, Jr.: Almost six whole days, that's right.

Chief Justice Earl Warren: And his mother put --

Mr. J. F. Brauer, Jr.: He was picked up on the evening of the first, confessed orally then.

He confessed orally on the second.

He was placed in security, the night of the second.

On the 7th, he signed the written confession.

Chief Justice Earl Warren: And although the officers told him when he was incommunicado that he could see his mother or see a lawyer, the authorities themselves told the mother that she couldn't see him for six days?

Mr. J. F. Brauer, Jr.: That's what happened.

That's true, Your Honor.

Chief Justice Earl Warren: You don't think --

Mr. J. F. Brauer, Jr.: Whether this --

Chief Justice Earl Warren: You don't think that bears on whether it's free and voluntary when you're dealing with a 14-year-old boy --

Mr. J. F. Brauer, Jr.: I think it was --

Chief Justice Earl Warren: -- who has a mental age of (Voice Overlap) --

Mr. J. F. Brauer, Jr.: I think it's quite a factor that this Court --

Chief Justice Earl Warren: And -- and --

Mr. J. F. Brauer, Jr.: -- Court should remember.

Chief Justice Earl Warren: -- the power of communication of a child eight years old?

Mr. J. F. Brauer, Jr.: I agree, Your Honor, it certainly would've been better if they had allowed the mother to see him immediately.

Chief Justice Earl Warren: Well, we're dealing -- dealing with the whole life of a boy here, he's --

Mr. J. F. Brauer, Jr.: That's right.

Chief Justice Earl Warren: -- he's imprisoned for the rest of his life.

Mr. J. F. Brauer, Jr.: That's right.

And the only reason that this is important is whether or not it resulted in a coerced confession and we say it didn't.

I might say the jury said it did.

This was all in front of them.

They had proper instructions.

Now, Mr. Vigil indicated today or seemed indicated, perhaps the instructions weren't complete in all case, regarding the voluntariness wasn't in front of the jury.

Well, that hasn't been raised before.

We don't think that's even in front of this Court.

The way it comes to this Court is that no objections to the instructions on this point were -- were made in the lower court and the jury had everything in front of them that they could have asked for to decide and they decided it was free and voluntary after the Court had made the -- the preliminary ruling to that effect.

Justice Hugo L. Black: What did the defendant testify about the signing of the confession?

Mr. J. F. Brauer, Jr.: He said that they told him that if he didn't sign it, he'd be kept in security and that if he did sign it, he could go home.

That's what they -- what he said they told him.

Justice Hugo L. Black: Where is that now, that's raised as evidence?

Mr. J. F. Brauer, Jr.: I will see if I can --

Justice Hugo L. Black: Can you find it for us?

Mr. J. F. Brauer, Jr.: I'll see if I can find it Your Honor.

Justice William J. Brennan: Was that denied?

Mr. J. F. Brauer, Jr.: Was that denied?

Oh, by all the police officers, yes.

This was made in the hearing out of the presence of a juror where the court was making its preliminary determination as to voluntariness or the lack of it as a confession.

This didn't come before the jury because he never took the stand in front of a jury.

Justice Hugo L. Black: Well he did testify, didn't he?

Mr. J. F. Brauer, Jr.: Not in front of the jury.

Justice Hugo L. Black: This was before the court, was it?

Mr. J. F. Brauer, Jr.: Before the court in a (Inaudible) in a hearing out of the presence of the jury.

He testified that he was told that if he didn't sign the confession, he would be kept in security and then if he did sign it, he could go home.

Justice Tom C. Clark: When was he suppose to have been told that and with reference to seven days or sixth day?

Mr. J. F. Brauer, Jr.: Near the end of that period.

I'll see if I can find it Your Honor at the record.

Justice Hugo L. Black: I just read this -- what I thought was the difference.

I didn't find that statement.

Mr. J. F. Brauer, Jr.: (Inaudible) on this one, yes.

Justice Hugo L. Black: Maybe its there, if you say it's there.

Mr. J. F. Brauer, Jr.: I know on page 176 there's quite a bit of it.

On page 165, there are --

Justice Hugo L. Black: I've just read that.

Mr. J. F. Brauer, Jr.: -- some of it.

Justice Hugo L. Black: And why did you say that makes the statement of what you're just referring?

Mr. J. F. Brauer, Jr.: This is where he later reneged on the earlier statements.

This is where they asked him in the out of jury hearing, “Did anyone say anything about releasing you from security?”

He said, “No sir.”

But it -- it's before that where he -- at first told on direct examination, the opposite story which was that he was told that if he signed he could be released, if he didn't sign he couldn't pay.

Now, I don't have my finger on that -- that part right now.

Justice Hugo L. Black: I asked -- what I read was that he said that he would be kept in juvenile whether he confess or not.

Mr. J. F. Brauer, Jr.: At one point he said that, that's right.

The boy varied in his explanation in this hearing out of the presence of the jury.

Justice William O. Douglas: When was the written statement typed up, was is it typed longhand or --

Mr. J. F. Brauer, Jr.: It was typed up I believe.

I -- I don't think the record shows when it was typed Your Honor.

Justice William O. Douglas: Was it practical in the original oral confessions or --

Mr. J. F. Brauer, Jr.: It was as near as I can tell.

The record seems to indicate that the reason he wasn't typed sooner, the reason they didn't request him to sign it sooner is because they weren't sure if they wanted to put in to the formal written confession something regarding the other events or the other event --

Justice William O. Douglas: Whether --

Mr. J. F. Brauer, Jr.: -- to which he'd indicate he was involved.

Justice Tom C. Clark: When they first presented to him for signature?

Mr. J. F. Brauer, Jr.: On the 7th and on that date he signed it.

Justice Tom C. Clark: And then he tried to get it everyday, does he?

Mr. J. F. Brauer, Jr.: No.

That was what I pointed out before.

There's nothing here that -- that says that -- that makes you think they held him till he signed it.

I mean they -- he confessed, they held him, and he signed it but they didn't hold them until he signed it in the events that he kept refusing then finally he signed.

Chief Justice Earl Warren: Did they see him on various occasions and talk to him?

Mr. J. F. Brauer, Jr.: Yes.

They orally talked to him, I believe almost everyday.

It must have been from the indications in the record mainly about other offenses.

Chief Justice Earl Warren: Do you have any law in Colorado that requires a person who's arrested and charged with crime to -- accused of crime to be taken before a magistrate?

Mr. J. F. Brauer, Jr.: No Your Honor.

Chief Justice Earl Warren: They don't --

Mr. J. F. Brauer, Jr.: No.

Chief Justice Earl Warren: -- have any right to be taken before a magistrate and arraign then go to (Voice Overlap) --

Mr. J. F. Brauer, Jr.: They can only hold them for so many days and then --

Chief Justice Earl Warren: I beg your pardon?

Mr. J. F. Brauer, Jr.: They -- they can only hold them, I forget for how long.

Usually it's up to the one who's being held.

As a matter of practicality if he's held too long, he presents a writ of habeas corpus if he hasn't have any form of charge.

I might say that at this time of course, the victim hadn't died and they weren't considering apparently criminal charges.

The -- the --

Chief Justice Earl Warren: It was a robbery.

Mr. J. F. Brauer, Jr.: There was a robbery which has resulted in a juvenile court, a judgment of delinquency which isn't even a criminal matter in Colorado.

Justice William J. Brennan: May I ask, I noticed on page 163 at the bottom, Robert testified, “I signed it because he said whether we told the truth or didn't tell the truth, he is going to send us to the Industrial School.”

Mr. J. F. Brauer, Jr.: That's right.

Justice William J. Brennan: I had the impression that he was already sentenced, if that's the right word to the Industrial School --

Mr. J. F. Brauer, Jr.: Oh no.

Justice William J. Brennan: -- on this robbery charge.

Mr. J. F. Brauer, Jr.: Oh no, no.

Justice William J. Brennan: I happened to ask you (Voice Overlap) --

Mr. J. F. Brauer, Jr.: As a matter of fact, the judgment of the -- the judgment of juvenile delinquency and the commitment to the Industrial School was based on this same written statement.

Justice William J. Brennan: So, it was after the 7th of this, is that it?

Mr. J. F. Brauer, Jr.: It was after the 7th that he was sent to the Industrial School, that's right.

Justice William J. Brennan: So even though he signed it (Voice Overlap) --

Mr. J. F. Brauer, Jr.: They didn't use it immediately.

They have to have a hearing Colorado where they -- there's a complaint of delinquency, as called.

It isn't a criminal proceeding and then he is not convicted of a crime.

He's adjudged to juvenile delinquent or isn't adjudged a juvenile delinquent.

And he's committed to one of the institutions, you see.

And all of that proceeding was based on this written statement along with the oral one.

Then about two weeks, I guess after he was so adjudged to be juvenile delinquent, the victim died and they began instituting the proceedings to try him for murder in a District Court.

Justice Hugo L. Black: The statement to which Mr. Justice Brennan referred is the only one I was able to find throughout this evidence in which he gave a reason why he signed the paper.

Mr. J. F. Brauer, Jr.: It maybe, Your Honor, that that's it but it seems to me somewhere in there, he said that he signed it because he thought he was told that they would let him out of security and go home if he did sign it, that they would keep him in security if he didn't.

I believe that's in there.

I cannot find it at this time.

That's right --

Justice Hugo L. Black: Is all this evidence here?

Mr. J. F. Brauer, Jr.: Oh yes.

Yes, the record is complete.

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: The whole evidence, that's what you get continuously between -- up to page 163, are they not?Is it all continuous?

Mr. J. F. Brauer, Jr.: Yes, it's all continuous.

Unknown Speaker: You keep (Inaudible)

Mr. J. F. Brauer, Jr.: Apparently Your Honor, it isn't.

That particular indication isn't in that record.

I can't find it right now.

I would have to research the entire record, but I can find only the ones to which you members of the Court have made reference right now.

Chief Justice Earl Warren: There is one in here.

I think I -- I read it where he -- he says the reason he did it was because he'd have to -- they told him he'd have to stay in --

Mr. J. F. Brauer, Jr.: I feel certain (Voice Overlap) --

Chief Justice Earl Warren: -- security, I think I've seen it here myself but I cannot (Voice Overlap) --

Mr. J. F. Brauer, Jr.: (Voice Overlap) -- I cannot have --

Justice William J. Brennan: At the bottom of 164, he said I was scared that if he didn't do it, they would keep us in security longer (Inaudible)

Mr. J. F. Brauer, Jr.: There it is.

Chief Justice Earl Warren: I just got (Inaudible)

Mr. J. F. Brauer, Jr.: That's right.

Justice Hugo L. Black: Is that -- if they told him that.

Justice Byron R. White: (Voice Overlap) --

Mr. J. F. Brauer, Jr.: Then he says, “Did anyone say anything about releasing you from security?”

Answer, No, sir.

Justice Byron R. White: That's right.

Mr. J. F. Brauer, Jr.: So it's confusing to say the least.

The -- as I say the Court had this in front of him

They ruled that the thing was voluntary.

The defendant did not choose to present this to the jury.

He did not testify in front of this jury, but the jury did have in front of it all of the facts that he chose to present regarding voluntariness or lack of voluntariness of this confession.

Justice Hugo L. Black: He testified he was released from security after signing this paper.

Mr. J. F. Brauer, Jr.: That's right.

He did.

Justice Hugo L. Black: And he said nobody proved it, he would be.

Mr. J. F. Brauer, Jr.: Yes, that's right.

He said he was afraid apparently on the bottom.

Not in terms -- I guess not because they told him but he was just afraid that he would be kept in security longer if he didn't sign it.

Justice William J. Brennan: Why do we have --

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

Justice William J. Brennan: -- to release him from security mean?

Mr. J. F. Brauer, Jr.: Apparently they -- I believe it's in here somewhere.

They released him to the custody of parents for a certain time between that time and the time he was brought in and adjudged to be a juvenile delinquent, which I don't think it was more than a week or 10 days after from the time of that statement.

Now, there are several points which we pointed out on page 6 of our brief which we feel are inaccurate in the defendant's brief.

Justice Tom C. Clark: One is --

Mr. J. F. Brauer, Jr.: One is the statement that he was kept in solitary confinement.

Justice Tom C. Clark: Incidentally, more than one entry here.

Mr. J. F. Brauer, Jr.: Of course it showed that he was kept in a room by himself that he was allowed to eat with the other inmates of the Juvenile Hall.

Justice Tom C. Clark: That security, is that just a -- sort of a room where you'd --

Mr. J. F. Brauer, Jr.: That the room all alone, not with the other boys, that's right.

Justice Tom C. Clark: And he has a bed and things as to that.

Mr. J. F. Brauer, Jr.: That there is no indication that he does not.

They called it a room on itself.

They don't describe what's in it.

They say he is allowed to go out of there and go to eat with the other boys.

Now, we've never felt that this add it up to the usual definition of solitary confinement.

But we think it's misleading to say what's kept in solitary confinement because there's no -- there's nothing in the record to show he was put in some dark room all by himself for five days on end or something like that until he's signed.

It shows he was kept in this room by himself and allowed to eat with the other inmates of Juvenile Hall during that five-day period.

Justice Potter Stewart: You don't -- there's testimony elsewhere in this record about -- hearing a conversation among the boys over the microphone.

Mr. J. F. Brauer, Jr.: At one point, they left and get together.

Justice Potter Stewart: Well, I just couldn't quite see how that was consistent with the securities.

Mr. J. F. Brauer, Jr.: It's -- it isn't consistent with the usual security, but apparently, they did let them get together and talk.

Apparently open, they would discuss it among themselves at -- after the youngest one, the eight-year-old confessed and let him go up to the roof where the other one was in security.

And they violate their usual rule of keeping him alone and let them get together and then heard what they said over the microphone.

Chief Justice Earl Warren: Was Robert there then?

Mr. J. F. Brauer, Jr.: I don't think -- I'm not sure if that was Eddie and Richard, or Robert.

Chief Justice Earl Warren: That's the way I understood the counsel.

Mr. J. F. Brauer, Jr.: I -- I think that that was not Robert --

Chief Justice Earl Warren: And --

Mr. J. F. Brauer, Jr.: -- Richard but it was --

Justice Hugo L. Black: Eddie Martinez.

Mr. J. F. Brauer, Jr.: Eddie Martinez and Richard Gallegos.

Chief Justice Earl Warren: Yes.

Mr. J. F. Brauer, Jr.: Now, this is only relevant you see as to whether what security means.

Obviously, it he doesn't mean they don't see anybody else.

They eat with the other inmates and at times, the police let them see the other inmates when it's to their own demand.

Chief Justice Earl Warren: So was that -- was that before the jury -- did that go before the jury of that testimony?

Mr. J. F. Brauer, Jr.: Yes, I believe it did.

Chief Justice Earl Warren: I'm wondering how that got in to the testimony of these other two boys having a conversation when he (Voice Overlap) --

Mr. J. F. Brauer, Jr.: Well, that was at the time the three was still at -- on trial.

Chief Justice Earl Warren: I beg your pardon?

Mr. J. F. Brauer, Jr.: I believe that was brought in at the time the three still on trial.

Justice William J. Brennan: Were all three tried for the murder charge?

Mr. J. F. Brauer, Jr.: All three were originally charged but the eight was dropped immediately, you see the eight-year-old.

Justice William O. Douglas: But the proceeding started against the eight-year-old as well as the --

Mr. J. F. Brauer, Jr.: I think he was named on the original papers, that's right but it was dropped immediately.

And then the -- the --

Justice Hugo L. Black: How long was the 12 -- the 14 and the 12?

Mr. J. F. Brauer, Jr.: The 14 and the 12 were the ones that actually came in the -- in court proceedings.

I think in the original information it was charged though, they lifted the names of all three of them but they didn't actually ever carry out in proceedings against the eight-year-old.

Justice William J. Brennan: The offense is prosecuted by information another date?

Mr. J. F. Brauer, Jr.: That's right, in Colorado it's prosecuted by information.

Justice Tom C. Clark: Well, Martinez was prosecuted until a testimony, a medical testimony.

Mr. J. F. Brauer, Jr.: That's right.

Justice Tom C. Clark: So he was in the room when it was bugged.

Mr. J. F. Brauer, Jr.: That's right.

Justice William J. Brennan: Is that a practice to bug being in the rules of Juvenile Hall?

Mr. J. F. Brauer, Jr.: I'm not familiar enough with how they operate to know.

I was surprised myself when I read this record because it's the first case I have handled that related to someone who had been held in Juvenile Hall.

But they apparently have a room spotted and can hear anything they want to by turning on the microphone.

Justice Hugo L. Black: That's all in the room.

Mr. J. F. Brauer, Jr.: Pardon me?

Justice Hugo L. Black: All of the rooms besides the security room.

Mr. J. F. Brauer, Jr.: I assumed from the record, it was just the security room but that isn't made clear for sure.

You can't tell.

Chief Justice Earl Warren: As I understand it, Eddie Martinez who is 12 years old was also charged with this -- this murder and he was kept in the case until the doctors had given this testimony about him choking the other little boy and hearing the gurgling and so forth over this microphone that you have in the room.

And then after that, the doctor said that he was unable to distinguish right and wrong so -- so they dropped him out of the case and let the testimony in against this boy.

Is that right?

Mr. J. F. Brauer, Jr.: I'm not sure of that sequence you have there is right.

All of that came in.

Now, I know in discussing the voluntariness or lack of it of Gallegos' statement, Mr. Vigil, I believe again, if not for the first time referred back to this bugging room with two boys other than Gallegos.

He was attempting to show that -- to the officer, I believe they've gotten their information first before they got it from Gallegos and then placed it before Gallegos to sign so to speak.

But I -- I'm not sure if there was anything about this business that the two boys were choking each other prior to the time Martinez was dismissed, the case against --

Chief Justice Earl Warren: Very well.

Continue with your argument.

Mr. J. F. Brauer, Jr.: Well, we've already shown we feel a lot of statement that defendant was kept for a period of five days and until a confession was signed.

It's completely misleading because if -- you'd get the impression that he refused and refused to sign and they kept him until he did.

We've already shown that he'd signed it as soon as if the written one was placed in front of him that he orally confessed as soon as he was picked up.

We have discussed also previously the statement as to whether or not he has the mental age of eight.

That statement appears in the brief doesn't qualify.

There's nothing to support he was of mental age of eight.

Their psychologist said he had the language ability of eight or nine but he has the overall ability of 10 or 11.

All of these should be remembered certainly.

Chief Justice Earl Warren: But he was a psychologist of the juvenile department, the States --

Mr. J. F. Brauer, Jr.: Oh, but the defendant called for him.

Chief Justice Earl Warren: Oh yes, he called him.

I --

Mr. J. F. Brauer, Jr.: That's right.

Chief Justice Earl Warren: I know but he was the --

Mr. J. F. Brauer, Jr.: The State psychologist.

Chief Justice Earl Warren: -- there was State psychologist, wasn't he?

Mr. J. F. Brauer, Jr.: That's right.

And as to whether or not defendant had the benefit of counsel, we've already remarked on that.

Now, we think he was quite thoroughly and repeatedly advised.

The defendant cites some of the officers who said they did not advice him.

Well, of course, every officer who talked to him didn't have to say you can have counsel in order for him to be advised.

This isn't a conflict in the record.

This showed that some officers did tell him, some didn't but in any case, he was certainly advised.

The most unsupported statement we feel in the entire brief is dependent with Spanish speaking child.

There is nothing to support that.

He testified out of the presence of a jury.

There's no interpreter.

All the police officers talked about their conversations, no language barrier was mentioned.

We feel that that isn't a support.

This business of the confession since it is the real important point of this case is what we have elaborated upon.

But our other points are covered in the brief.

Chief Justice Earl Warren: Thank you Mr. Brauer.

Mr. Vigil.

Rebuttal of Charles S. Vigil

Mr. Charles S. Vigil: Mr. Chief Justice, may it please the Court.

In this matter, there were several statements taken that were written and I have previously referred to Exhibit G.

This Exhibit G is dated on January the 3rd of 1959 and was signed by two officers who were assigned to this case, J.S. Riggs being one of the detectives and P.O. Chism, being the other one, and P.O. Chism is the principle witness that the District Attorney relied upon to carry forth the case and sat beside the District Attorney during the whole trial.

And P.O. Chism is the man who testifies and whose testimony I have previously alluded at page 197 in complete contradiction to the statement of the Attorney General in this case.

Because at page 197, Chism states, as I've stated before, “Did he say what part he had in it?” That's the question.

And the answer, He didn't at first and that is the reason I booked him in Juvenile Hall.

So obviously, Chism didn't get any statement in any automobile from Robert Gallegos.

That's the unqualified statement of the District Attorney's witness.

And the other statement that we have referred to is the fact that the officers on January the 3rd were listening over the microphones and on that date, because Richard hadn't apparently told the truth about what happened as the testimony shows and Eddie Martinez was beating him up.

So obviously, they had not secured any statement until (Voice Overlap) --

Justice William J. Brennan: Eddie Martinez was the 12-year-old?

Mr. Charles S. Vigil: Eddie Martinez was the 12-year-old.

Justice William J. Brennan: He was beating up the eight-year-old.

Mr. Charles S. Vigil: He was beating up Eddie who was eight years old.

And so they had a statement at that time, what was the purpose of all of these.

But more than that, Eddie Martinez was beating up Richard because he had made a statement.

Now, Exhibit 3 or Exhibit G, I should say, with just the Exhibit that I have pointed out is one in which the detectives point out that the -- they are checking two offenses that apparently occurred by their own exhibit and this is in their handwriting on December the 19th and not December the 20th.

Now, there's been some question here with reference to what does release from security mean.

Well, security in the Juvenile Hall is putting a boy in a room alone where he cannot see anybody.

That's the testimony in this record.

And of course, releasing from security means simply that when he's released from security, he's permitted to mingle around with the other boys and participate in the activities of the Juvenile Hall.

Now, the officers knew and the record substantiates this that when they took a boy to Juvenile Hall that he was immediately placed in security for at least 24 hours.

And of course when we talk about what is solitary, I would like to know what solitary is, how do you define solitary?

Does that mean that you put him in a dark room or you kept in the dungeon of some kind?

I don't think that's contemplated at all.

Solitary and we all know this from any military experience very often as merely being put in a room where you can't communicate with anybody and that's all what it means to anyone I'm sure.

And of course in this case when we have children, you have a child, eight years old, one 12 and one 14 and they're all kept in solitary.

More than that, the officers are listening over microphones to get statements that they might make.

Justice Potter Stewart: Well now, how -- how could they converse if they're -- each one of them was in solitary?

Mr. Charles S. Vigil: Well as -- as it's been stated here, they had released Richard.

They brought Richard downstairs at Juvenile Hall.

The Juvenile Hall is a building where juveniles are kept and it has two floors.

Apparently, they brought Richard downstairs because they think the officers states that Richard had sent word to him that he wanted to talk to him.

Well of course when he came out, they brought Richard downstairs and they talked to him.

And then of course, they sent him back upstairs.

Apparently, when the instructions to go into the room to the others, this is not in the record but in any event the -- it's clear that somehow or another, according to the testimony of this officer that they did hear this fight going on over the microphone.

Justice William J. Brennan: But -- but Robert was not in the room apparently.

Richard went back to the room where Eddie was but Robert was not there.

Mr. Charles S. Vigil: No, Robert was apparently not in the room at least as far as the testimony (Voice Overlap) --

Justice William J. Brennan: Now I gather you didn't ask for the testimony to be stricken after Eddie and Richard were out of the case because of your --

Mr. Charles S. Vigil: No.

Justice William J. Brennan: -- theory that the police got this information overhearing that conversation and then just put it in writing, is that it?

They had Robert sign it?

Mr. Charles S. Vigil: At that point?

Justice William J. Brennan: Yes.

Mr. Charles S. Vigil: No, the -- the case of course, all this information was secured prior to the trial, this -- the sequence of these events is Mr. --

Justice William J. Brennan: No.

But what I was getting at Mr. Vigil was it -- at the trial I gather this evidence from the overheard conversation between Eddie and Richard, was in the record as it went to the jury against Robert, is that right?

Mr. Charles S. Vigil: I think that is correct.

Justice William J. Brennan: Now, you didn't ask that it'd be stricken.

Mr. Charles S. Vigil: No, I did not.

Justice William J. Brennan: Nor object to its introduction.

Mr. Charles S. Vigil: Well, I think previously we had objected and the page 196, we have an objection that the Court overruled and the objection goes to the question of permitting the officer to testify at all as to any oral statements or alleged oral statements because the Court had had this hearing outside the presence of the jury to determine what statements are going to be admitted and ultimately, the Court determines that the written statement, Exhibit D could be admitted.

Now, there were numerous exhibits --

Justice William J. Brennan: No, but -- what I'm trying to get to is, you never asked that the evidence, the overheard conversation, what was said between Richard and Eddie, to be stricken as against your client.

Mr. Charles S. Vigil: No.

No.

Justice Hugo L. Black: Against whom was the information filed (Inaudible)

Mr. Charles S. Vigil: The information was filed originally against only Eddie Martinez who was age 12 and Bobby Gallegos who was age 14.

Justice Hugo L. Black: Bobby --

Justice Potter Stewart: Did you say --

Justice Hugo L. Black: -- is the defendant here?

Mr. Charles S. Vigil: Yes.

Bobby --

Justice Hugo L. Black: Bobby?

Mr. Charles S. Vigil: -- Gallegos is the defendant here.

A child at the age of eight cannot be charged in Colorado with any offense because the law limits the age to age 10, anyone under the age of 10.

Now we, so far as --

Chief Justice Earl Warren: There's no -- so counsel was in there when he said they were all originally charged.

Mr. Charles S. Vigil: I think, yes.

I know he was in error with regard to the original charge.

They were all arrested and taken to Juvenile Hall but --

Chief Justice Earl Warren: Yes.

Mr. Charles S. Vigil: -- the youngster, Richard Martinez or Richard Gallegos, I should say, was not charged in the information nor was he charged in the juvenile court.

Now, so far as the testimony of Bobby Gallegos is concerned, this was not presented to the jury at all.

He testified in the hearing outside the presence of the jury.

So I think counsel for the people in this case was in error with regard to that because it was my understanding that that was his statement.

Justice Potter Stewart: Well, now that was (Voice Overlap).

Mr. Charles S. Vigil: (Voice Overlap).

Justice Potter Stewart: I suppose it was your option or his option that he did not testify before a jury.

Mr. Charles S. Vigil: Oh yes.

Yes, it was.

And we did not call him to testify.

He could have testified --

Justice Potter Stewart: Yes.

Mr. Charles S. Vigil: -- yes, before the jury, but he did not testify.

And the reason I'm stating this is because I wanted to correct the --

Justice Potter Stewart: Yes.

Mr. Charles S. Vigil: -- argument that had been made.

Now, I wanted to make one further point and that was with reference to the combined statements that were taken.

Now, there's been some indication here that these statements were not combined.

The original statements that were taken were combined statements and the reason that this is important is that the original information was taken from this eight-year-old who under the law in Colorado could not even be a witness because a child at the age of 10 -- under the age of 10 is considered not to be qualified to testify unless someone can establish that he is qualified.

In this case, of course, no one ever establish this particular point, but the statements were taken from this eight-year-old child.

Now, the record at page 123 starts with these questions.

Well, it starts at the bottom of page 122.

“Where did you take them?”

“I took them to the admitting office of Juvenile Hall.”

“Did they put them in solitary?”

“That I don't know.”

“You know that is customary, don't you?”

“I know it is customary.”

“How long did they keep them there?”

“24 hours.”

“How long did they -- did they keep these boys?”

“I don't know.”

“They -- they keep them five days -- they kept them five days, did they not?”

“I don't know.”

“Did they question them there all five days while they were there?”

Answer, Aye, more or less.

You have the information they had given me.

You have here what has been -- marked these people to Exhibit A.

This is a statement that you stated had been written in longhand and apparently signed by all three of these boys.”

“Yes sir.”

“Do you contend this is a joint statement made by all of them at once?”

“They were all together.”

“You don't take statements that way normally, do you?”

“No, that was just the information more or less, I wanted to.”

“Normally, you take the statement from witnesses one at a time, do you not?”

“Normally, yes.”

“In this case -- instance, all three made the statements and all three signed it.”

“They verified it, each one of them.”

“What I am trying to get at is the statement you have there, isn't the statement of all three or one of them?”

“Actually it isn't a statement; it is information.”

“Is it the information from all three or what?”

“All three.”

“So you combined it in one seat.”

“That was more or less from my information to make my report.

And the same thing is true of this other information that you have here which has marked people to Exhibit B and C, is that correct?”

“Yes.”

“It is information from all three except for the short note and that is just the information from the two.”

And now I continue on page 124.

“You could not say which one of the two gave you the information.”

“I do not -- I do know Eddie and Robert was the only ones there.”

“That is People's Exhibit C?"

”Yes.”

“So far as you are concern then, this information is combined information from all three as far as Exhibits A and B are concerned and Exhibit C is from two of them.

Is that correct?”

“Yes.”

"And you couldn't say which one of the boys gave you the information.”

“Yes, I can.”

“You can pick it out line by line.

I know exactly what happened on that short note.”

“Yes, but I'm not talking about the short note.

I am talking about the information generally.”

“Let's confined to A and B, can you pick out one line and say which boy told you that?”

Answer, I don't believe I could pick it out.

So I think that shows quite clearly that these exhibits, so far as A, B, and C which were the original statements were combined information which is what we have stated from all three of these boys.

And the first statement that was taken was taken from the eight-year-old and the record shows that this was taken on January the 3rd after he had been kept in solitary confinement for a period of at least two days.

Now, there's no question that this boy was taken from the streets of Denver and here again, there's an important point.

It was a sheer accident that these boys were picked up.

At the record at page 150, starting at the top of the page, “Now with reference to your testimony as given, can you state whether or not other police officers interrogated these boys or talk to them prior to your doing so.”

Answer, No, sir, I had no knowledge about that.

Question, You have not -- no knowledge of that?

You mean the state then that it happened by sheer accident that you happen to approach these boys on the date that you did?

Answer, Yes, sir.

Justice Hugo L. Black: May I ask you a question about your practice?

As I understand if you had two hearings, well you had one hearing as to whether this evidence was -- confessions could be admitted, call the judge without the jury.

Mr. Charles S. Vigil: That is correct.

Justice Hugo L. Black: And in that theory, the defendant testified.

Mr. Charles S. Vigil: That is correct.

Justice Hugo L. Black: And the officers testified.

Mr. Charles S. Vigil: That is correct.

Justice Hugo L. Black: Was it is his duty to pass merely preliminarily upon the admissibility of this confession with --

Mr. Charles S. Vigil: No --

Justice Hugo L. Black: -- the law of the state?

Mr. Charles S. Vigil: No.

The law of the State is that the judge must rule as to whether this is admissible for all purposes.

Justice Hugo L. Black: Whether it's voluntary or not voluntary.

Mr. Charles S. Vigil: That is correct.

Justice Hugo L. Black: He did that on the basis of the evidence of the officers and your defendant?

Mr. Charles S. Vigil: That is correct.

Justice Hugo L. Black: Was there anyone else, offered this evidence?

Mr. Charles S. Vigil: There was no one else offered this evidence.

Justice Hugo L. Black: No other witness.

Mr. Charles S. Vigil: No other witnesses.

Thank you very much.

Chief Justice Earl Warren: Very well.