TOWNSEND v. SAIN

The principal federal question presented in this case is whether the Fourteenth Amendment to our federal constitution allows the State of Illinois to inject a drug into petitioner to quiet, sedate him, and affect his mind, and then use a confession taken from him while he is under the drug thus injected and convict him of murder.

This Court has granted a certiorari to review the judgment of the Court of Appeals for the Seventh Circuit in which the judgment of the District Court, dismissing an application for habeas corpus under the Federal Habeas Corpus Act, was affirmed.

Illinois proceedings had been exhausted by the petitioner and because the statement of the historical facts will necessarily involve a discussion of all the procedural questions, I will go directly to the facts that give rise to these proceedings.

On January 1, 1954, the --

Justice John M. Harlan: Was there a hearing on this case below, any kind of a hearing?

Mr. George N. Leighton: There was a review of the complete record of the state proceedings Your Honor.

Justice William J. Brennan: But no -- but no supplemental testimony taken?

Mr. George N. Leighton: None, whatever.

Justice William J. Brennan: Was there any request?

Mr. George N. Leighton: There was You Honor.

Justice William J. Brennan: (Voice Overlap)

Mr. George N. Leighton: There was.

Justice William J. Brennan: You'll come to that I guess.

Mr. George N. Leighton: And I will touch upon that because that is important in view of the opinion of the Court of Appeals.

Justice Felix Frankfurter: And since -- since you're being interrupted at the outset, may I put to one side, there's no suggestion in this case that the confession was due or the result of excessive retention during which the petitioner was applied to improper question.

Mr. George N. Leighton: There is that contention Your Honor.

There is that contention.

Justice Felix Frankfurter: But it's not in your question presented Mr. Leighton.

Mr. George N. Leighton: Well in the question presented, if Your Honor please, we stated broad enough to include the claim we had made in the Supreme Court of Illinois that the period of interrogation was excessive in view of the injection of the drug.

That is, if I may say again Your Honor, that is the position of the petition there is involved in this case and within the question presented.

Justice Felix Frankfurter: I don't think it's worthwhile taking your time if it is concluded in your question, but for me, those are -- and I take it for you distinct question namely was he under -- was he under extensive questioning, whatever the conditions of the questioning maybe, and was the injection of this drug in and of itself an impairment of his mind such as to preclude of finding of voluntariness?

Mr. George N. Leighton: Sure.

Justice Felix Frankfurter: Those are two different questions?

Mr. George N. Leighton: They are -- they are different, however --

Justice Felix Frankfurter: I was, reading the question presented, which I did a few minutes ago, I -- I didn't get the impression that will raise excessive detention as a separate claim but maybe you did?

Mr. George N. Leighton: No.

Not as a separate claim but included in the broad question presented if Your Honor please.

Justice Felix Frankfurter: They -- alright, you come to it, but it's -- how many hours all total -- what length of time was he under questioning, Mr. Leighton?

Mr. George N. Leighton: The crucial period is 8:30 pm of January 1, 1954 and 11:15 pm, that's the crucial period.

Justice Felix Frankfurter: Was he questioned during that period?

Mr. George N. Leighton: He was questioned during that period.

Justice Felix Frankfurter: How long?

Mr. George N. Leighton: Apparently from all the evidence now available to us, he was questioned in sense -- incisively from approximately 8:45 to 11:15 pm.

Justice Felix Frankfurter: Well, that's the period during which the doctor came?

Mr. George N. Leighton: That's right Your Honor.

Justice Felix Frankfurter: Well, but isn't the essence of your case then that the injection of this drug whether you would question three minutes or five minutes or even voluntarily, emitted his confession?

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: The drug impaired, whatever he said during the immediate period of its administration?

Mr. George N. Leighton: That is correct Your Honor.

Justice Felix Frankfurter: So that the question of, periods of question seemed to me quite irrelevant.

Mr. George N. Leighton: Not quite irrelevant.

Justice Felix Frankfurter: Right, I don't want (Voice Overlap)

Mr. George N. Leighton: But it's not quite irrelevant but important to them.

Justice Felix Frankfurter: In due course, in due course, I hope you disentangle the two questions.

Mr. George N. Leighton: I will Your Honor.

On January 1, 1954 at about 1:45 am --

Justice Felix Frankfurter: And was there -- one more thing, was there later repetition of this confession?

Mr. George N. Leighton: Yes there is Your Honor and I will --

Justice Felix Frankfurter: Out of the period of the drug?

Mr. George N. Leighton: Yes there is and I will touch upon that part.

At 1:45 am, on the morning of January 1, 1954, this petitioner was seen walking on the street called 35th Street in the City of Chicago by four police officers of the City of Chicago.

There appeared to have been a man named Vernon Campbell who incidentally is named in different names in the record, Vincent Campbell or Vernon Campbell and I believe the name is Vernon, who had been in custody of the police some several days prior to January 1.

He himself had been in custody for some robbery or the crime and by the time of his testimony in this case, he was in -- on probation from a conviction of the crime of robbery.

Now, it's also fair to say that apparently during the long period of time prior to January 1, 1954 in this particular police district, they had been found several men dead, all with similar injuries on the head and the police had theorized that somewhere in this police district, there had been about a man they had designated as the house brick murder.

In interrogating Campbell, they came to the conclusion that the petitioner here, Charles Townsend, had something to do with regard to these murders.

And with Campbell to identify the petitioner, they went to 35th Indiana at about 1:45 am on New Years day, January 1, 1954 and arrested the petitioner in the company of another man whom later they dismissed.

The record is silent as to what they did with this other man.

Now, Your Honors have allowed this case to proceed on the type written record and I shall make express reference to the record where these crucial facts appear and about which there is no dispute.

Townsend was taken to the second district police station and there he was held from approximate 2:45 am until 5 am, and there is nothing important that occurred between 1:45 am and 8:30 pm that will be or will be crucial federal question presented here except for one fact.

Approximate an hour and a half, prior to the time that Townsend was arrested, he had taken a large injection of heroine and it is without dispute that for the period, from the time that he was 15 years of age until the time relevant here, he had been a confirmed narcotic addict and this fact had been so found by the Supreme Court of Illinois

Justice John M. Harlan: How old was he at this time?

Mr. George N. Leighton: He was then 19 years of age.

The fact that he had taken this injection of heroine was also known by all the arresting officers because he had told them that, and they knew that he was under the influence of this heroine.

Another relevant fact within this period to be stated, there was no dispute that Townsend at that time was of subnormal intelligence and upon examination by a prosecution witness, he was found to posses an IQ of 63 and to use the language of the (Inaudible) to examine him, he was using an old form of characterization near moron in this stage of psychiatric examination and to use the words of this prosecution witness, he was a near mental defective.

Now, between approximately 5 am on the morning of January 1, 1954 and until 8:30 pm, Townsend was not questioned.

He was held in custody and there was testimony by one of the prosecution witness that it was the desire of the police officers not to allow him to come in contact with anyone.

And so they transported him from the second police district to the 19th police district for reasons best known to police consistent with this plan of theirs not to let him come in contact with anyone.

He remained at the 19th district without being questioned by anyone although he says something about being asked some questions, but of the purpose of this case, we will agree that he was not questioned by anyone and he remained at the 19th district until about 8:30 pm when he was transferred to the second district and immediately given into their custody of the same four police officers who had arrested him.

Justice John M. Harlan: That means that between the hour of his arrest that one or something in the morning?

Mr. George N. Leighton: 1:45 am Your Honor.

Justice John M. Harlan: Until the following morning, he was not interrogated by any police?

Mr. George N. Leighton: Until the following evening 8:30 pm.

Justice John M. Harlan: Until the following evening?

Mr. George N. Leighton: That's right sir.

Until the following evening.

Justice John M. Harlan: No interrogation?

Mr. George N. Leighton: No interrogation.

He was not and we will concede in the course of this argument, no one questioned him, and no one (Inaudible) him in anyway and he remained in that station in this condition without being bothered except that he was held in custody in the way which no one could get to him, friend, counsel, otherwise.

Justice Potter Stewart: Did anybody tried to get to him?

Mr. George N. Leighton: No one tried and for the purpose of clarifying that question, Mr. Justice Stewart, this petitioner is a man who has no one.

Now at about 8:30 pm, he was brought back to the second district and there was short, very common in police practices in Cook County and Townsend was put in the company of three other men to be viewed by a man named Anagnost, who had been the victim of a similar incident as these victims, supposedly have been.

In the course of the show-up, Anagnost --

Justice Felix Frankfurter: And may I ask whether the -- what you call a show-up, is that a line up?

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: But with others therefore?

Mr. George N. Leighton: With others there.

Justice Felix Frankfurter: Not himself?

Mr. George N. Leighton: Not --

Justice Felix Frankfurter: Somebody wasn't brought in, this the man?

Mr. George N. Leighton: No, he was put in the company of three other men and the purpose of this show-up as the Chicago police call it, is to allow the victim of robberies otherwise some violence to pick out the (Voice Overlap)

Justice Felix Frankfurter: And you have no grievance about that, have you?

Mr. George N. Leighton: We have no grievance about that Your Honor.

There is a significance to this incident which will touch upon this confession and I mention it now.

When Anagnost was there, it was for the purpose of picking the assailant in accordance with the theory of the police that it was Townsend, but when Anagnost looked over this line up, he picked out a man who was not Townsend.

Now, it is significant that when Your Honors requested the attorneys for the respondent to file an additional answer to the petition for habeas corpus, there was attached to that return, that additional answer, the confession of Charles Townsend that he robbed Gus Anagnost.

It is in fact that when Anagnost picked out the person who assaulted him with a brick, he picked out a man who was not Townsend.

Now until this moment, until the show-up, there's nothing to indicate, there's nothing with Townsend.

Immediately thereafter however, there was an attempt by Cagney, one of the arresting officers to question Townsend and Townsend complained to him that he couldn't answer any question because he was then in the throes of what is called the withdrawal symptoms of the narcotic addict.

Justice Potter Stewart: He had the heroin on hour or two before he was arrested?

Mr. George N. Leighton: That's right Your Honor.

Justice Potter Stewart: On midnight on New Year's Eve?

Mr. George N. Leighton: That's right Your Honor.

Justice Potter Stewart: And this was now New Year's night?

Mr. George N. Leighton: 8:30 -- 8:45 pm of the same day.

Justice Potter Stewart: The same night.

Mr. George N. Leighton: And by this time, he was in the withdrawal symptom and Dr. Mansfield who treated him has described the physical disability of a narcotic addict in the withdrawal symptom.

He has pains, particularly abdominal pains, he sweats, he had no control of his faculties, he' over excited, he is in a complete misery.

And Cagney, the arresting officer described his condition as one in which he couldn't count how many times this petitioner bent over and wouldn't answer questions.

Now, there is a quarrel here whether it was Townsend who said to Cagney “call a doctor” or whether it was Cagney's idea.

Justice Potter Stewart: Cagney was the police officer or --

Mr. George N. Leighton: Cagney was the principal and the most active police officer in this investigation.

It is clear, however, that it was Cagney who called the doctor and Dr. Mansfield so testified, Officer Cagney so testified, Officer Martin so testified, Officer Fitzgerald so testified and so did Corcoran.

Cagney then called Dr. Mansfield and Dr. Mansfield --

Justice Felix Frankfurter: I missed something Mr. Leighton, I missed something.

Mr. George N. Leighton: Sir?

Justice Felix Frankfurter: What intervene -- I mean how did Cagney come to call?

Mr. George N. Leighton: Well, he was trying to question the petitioner but the petitioner couldn't answer any questions and the petitioner described his illness and he saw the petitioner bending over several times he said and he couldn't count the number of times that the petitioner bent over and so he -- he then called the doctor, his testimony appearing on page 358 to 361 of the type written record.

Justice Felix Frankfurter: I got the impression from the Court of Appeals' opinion that that Townsend indicated that how he felt, is that a wrong impression Mr. Leighton?

Mr. George N. Leighton: I think Your Honor has the wrong impression about that as did the Court of Appeals.

Justice Felix Frankfurter: Well I don't mean that I get from the record because I haven't read that.

Mr. George N. Leighton: Yes.

Justice Felix Frankfurter: But I got the impression from the Court of Appeals and I wondered if I got the wrong impression from them.

Mr. George N. Leighton: Oh well you got the right impressions from what they said but the record --

Justice Felix Frankfurter: Alright.

Mr. George N. Leighton: -- is not correct as to that.

It was Cagney who called the doctor and it's also important this time to bear in mind that Dr. Mansfield was an employee of the Chicago Police Department.

He was as he described himself a police doctor and he was at the beck and call of the Chicago Police Department.

Townsend had nothing to do with calling Mansfield specifically.

What can be said from the evidence is that when Townsend in this -- in this fit of withdrawal syndrome, asked for some help and --

Justice Felix Frankfurter: He did ask?

Mr. George N. Leighton: Oh yes, he did ask and he did -- and there was -- there's some -- there's evidence here from which one could conclude that in this --

Justice Felix Frankfurter: Well, that's what -- well, that's what the Court of Appeals is referring to.

Mr. George N. Leighton: Yes, in this colloquy --

Justice Tom C. Clark: He said that petitioner asked to see a doctor?

Mr. George N. Leighton: That's a fair statement.

Justice Tom C. Clark: And he has the record number.

Mr. George N. Leighton: Yes, that's the fair statement and then it was Cagney who decided on Mansfield.

Justice Tom C. Clark: Well, you mean he's selected to the doctor?

Mr. George N. Leighton: He selected the doctor, you see.

Justice Tom C. Clark: But Townsend asked for a doctor.

Mr. George N. Leighton: Townsend asked for a doctor because there was a conversation between Cagney and Townsend about what to do and then Cagney called Mansfield.

Now the courts below, both the Seventh Circuit and the Supreme Court of Illinois have attached a great of importance to what they say, is in the record.

That when Dr. Mansfield came into the police station, he talked with no one.

The fact is the record is clear without contradiction that when he came to the station, the person who greeted him at the door was Cagney and he had the petitioner there in this particular room.

Now, relevant to this whole inquiry, it's important to remember that the record shows that in this station there were two rooms, a room which they called the center room and a room called the South room.

Townsend and Cagney were in the center room.

The State's Attorney who took the confession was in the South room.

Now, it's also important remember that at this point, when Dr. Mansfield came into the station, the State's Attorney who was there to take the confession had already been called at 8:35 pm and I point to You Honors a letter written by Mr. Janega to his superiors, in his own language saying that at 8:35 pm of January 1, 1954 he had been called to the second district in connection with this interrogation of Townsend and he had made the necessary arrangements to be there and had called the reporter and this was at 8:35 pm and this according to the un-contradicted testimonial of prosecution witnesses was before the show-up and before the doctor had been called.

Justice Felix Frankfurter: Mr. Leighton, this is for me at least, a very crucial part of your -- of the case. Is there any suggestion, is there any implication in what you said that there was any kind of cahoots, I don't mean use the phrase, any kind of pre-arranging between the police in bringing a doctor there and the anticipated presence of the district attorney, anything like comparable to what we had and what is Layer?

Mr. George N. Leighton: Layer versus Deno?

Justice Felix Frankfurter: Yes.

Mr. George N. Leighton: Well then I'll pause.

Justice Felix Frankfurter: What do -- what do you claim is that?

Mr. George N. Leighton: Your Honor I devoted a great deal of time to this case and to this precise question you just asked, and I submit simply this.

It is beyond my sense of comprehension to believe that an experienced police officer like Cagney and Corcoran who were part of the homicide section of Chicago Police Department would call a doctor to the police station to inspect and examine and give therapy to a principal witness or the principal suspect to clear up six important felonies and not have in mind some relationship between the administration of the drug and the consequence that was reached.

We due respect to the judgments of all the judges below who apparently don't agree with me, I merely submit to Your Honor in answer to your question that in my judgment, a fair reading of this record is that the calling of Janega at 8:35 pm, the selection of a police doctor, the presence of Cagney in the room, the injection of drug without anything being said by the doctor to Cagney, a doctor who later said he had never seen in his life any truth serum, scopolamine although he treated him with hyoscine which according to all the pharmacological opinion in this country and in Europe is a drug which is administered in the cases of criminal investigation for the purpose of taking confessions.

Justice Felix Frankfurter: I thought those two drugs were the same drug with different names?

Mr. George N. Leighton: They are the same drug with a different names and I will touch upon that question because --

Justice Felix Frankfurter: Please forgive me, I must to ask some questions about this?

Mr. George N. Leighton: Sure.

Justice Felix Frankfurter: Is there any -- any basis in the record to indicate that Cagney knew in advance their Townsend would need administration of a doctor, more particularly that a drug having -- having amnesia or potential amnesia effect would be injected?

And that this all was by way of pre-arrangement other than -- is there any evidence to indicate that all of these have anticipated that Cagney knew that it (Inaudible) found in this expressing condition, express condition, he would then the doctor and that they were a non-articulated or non-disclosed pre-arrangement?

I ask it because I see a very strongly about such a matters.

Mr. George N. Leighton: Well if Your Honor please, I don't see how any other conclusion can be reached from all the facts than that.

For the simple reason that Cagney knew his condition in the early part of the day and -- and there is every reason to believe that Cagney as was well-acquainted with Mansfield as Mansfield was with the general subject of narcotic addicts in the withdrawal symptom.

Justice Felix Frankfurter: Is the time period, I'm quite ignorant about these things --

Mr. George N. Leighton: I'm sorry.

Justice Felix Frankfurter: -- is that -- is it well-known or is there evidence (Inaudible) allowing the inference that a police official with experience would know that at a certain period, during which the withdrawal would operate deleteriously so that injection will be proper etcetera, etcetera --

Mr. George N. Leighton: Yes Your Honor.

Justice Felix Frankfurter: -- anything like that?

Mr. George N. Leighton: Yes Your Honor, there is.

Justice Felix Frankfurter: Is that on the record?

Mr. George N. Leighton: In the record, there is testimony like Cagney himself that he knew at the time that he arrested Townsend.

Justice Felix Frankfurter: That he was an addict?

Mr. George N. Leighton: He was an addict.

Justice Felix Frankfurter: Yes, but --

Mr. George N. Leighton: -- and that he had -- he had taken the injection and he knew that he was a narcotic addict.

He knew he had taken the injection you see, and my answer to Your Honor's question is that since he knew all these facts and since he knew from his experience of many years of the consequences of heroine injection in a narcotic addict, that there was a fair inference from all of this that he knew also the -- the other parts of the whole question.

Justice John M. Harlan: Was this dose an unusual dosage?

Mr. George N. Leighton: The drug given by the doctor?

Justice John M. Harlan: Yeah.

Mr. George N. Leighton: No, the answer is yes and I'll -- and I'll now say why.

If Your Honor will look at Dr. Mansfield's testimony and it will appear on pages 210 of the record to 2 - 251 of the type written record.

He testified out of the presence of the jury on the suppression of the confession that he gave this petitioner a dosage consisting of 1/8 grain of Phenobarbital together with what he said was one-half hyoscine and he defined that mean 1/230 grain of hyoscine.

Now, that's what he said when the motion suppressed was heard.

However, in the case-in-chief, when Dr. Mansfield testified and I call Your Honors' attention to his testimony that is found on page 3 -- correction, page 981 to 991 of the record.

There, he said that he gave him 1/8 of gram of Phenobarbital and 1/230 of a gram of hyoscine.

Now, if You Honors please, that is 16 times more drug than this doctor had testified before the judge because a gram contains 15.432 grains and roughly in drug palettes, a gram has approximately 16 times more drug than a grain.

Now, before the judge and I again call Your Honors' attention that only once, only once in this doctor's testimony that he defined and that appears on 215 on the record, only once did he say that he administered 1/230 of a grain of hyoscine.

Now to answer Your Honor's question, it is generally agreed by all pharmacological experts, both in this country and in Europe, that the therapeutic dose of hyoscine within the normal range that will not completely paralyze an individual is between 1/200 of a grain and 1/100 of a grain.

Justice William J. Brennan: Of a grain or a gram?

Mr. George N. Leighton: Of a grain.

Justice William J. Brennan: A grain?

Mr. George N. Leighton: A grain you see and this -- this -- this expert that the courts below had lauded in this way testified before the judge that he gave him 1/230 of a grain, but before the jury he said that he gave him 1/230 of gram and his testimony appears on the pages I just called Your Honor's attention.

Justice John M. Harlan: From your point of view, his testimony was more favorable for the – for the juries than it was before the judge?

Mr. George N. Leighton: Yes.

Justice John M. Harlan: And was he -- was he cross -- was your man represented by counsel?

Mr. George N. Leighton: He was Your Honor.

Justice John M. Harlan: Any point made of it?

Mr. George N. Leighton: None was made strongly a bit and I can only attribute this to the fact that no one stopped to do the mathematical computation to determine that there are 15.432 grains in a gram and it was left over very easily but it's repeated, his testimony repeated again on pages 987 to 991 of the record and again, he was talking of grams and not grains.

Justice John M. Harlan: Well, I may be wrong but I thought there was a clear cut issue presented to the jury that the state on the one side, that this was not only normal dosage, but less than normal dosage and on your side that it was excessive dosage.

Mr. George N. Leighton: That's right.

Justice John M. Harlan: And both those -- that issue of fact was -- it was presented to the jury and that the jury brought in the verdict that it did?

Mr. George N. Leighton: Except this Your Honor, if Your Honor will look at the instructions given to this jury, those instructions didn't touch at all upon this important pharmacological question?

Justice John M. Harlan: Did you -- will you deny any instructions that were requested with this issue?

Mr. George N. Leighton: Your Honor I cannot answer that question because I didn't try the case and I'm only looking at the record as it's now is formed and at the time when this record was put up, at that time, we didn't have the rule we know have in Illinois that all of the instruction must be in the abstract.

Now, I might add also Your Honor that in the course of reviewing the Supreme Court of Illinois, this precise question was not analyzed as carefully as I am analyzing it here.

But I suggest to Your Honor that if you look at the instructions given to the jury and you look at the testimony, you will see that actually the import and the importance of this drug didn't occur to anybody in that case except insofar as Mr. Branion, the public defendant by instinct of his long experience had Dr. Proctor to testify about the drug.

And I suggest to you most respectively, if you look at Dr. Proctor's testimony unfortunately, it doesn't go to the heart of the important constitution question which we are now confronted, namely did this drug, why is this drug sufficient, not only to create amnesia or loss of memory, but did it affect his will power.

But the evidence in the record, when looked at against the accepted pharmacological expert opinion, by which this evidence must be judged, is that this man was given according to this doctor's own testimony for the jury, 16 times more drugs than is recognized as a therapeutic dose.

Justice John M. Harlan: In other words what you're saying as I understand it correctly that the issue that you're arguing now when it went up the case -- as the case was tried, and as it went up to the Supreme Court of Illinois, didn't figure very heavily?

Mr. George N. Leighton: Well not as carefully as I'm doing it here.

If we argued it, for instance I was appointed to represent this petitioner, when he was sentenced to death.

I argued this question in the Supreme Court of Illinois, the involuntariness of this confession.

But the actual analysis of this drug in the fashion I'm doing it now, I have no independent recollection of having done it because at that time, the argument was, was this a voluntary confession in view of the fact that he was under the influence of the drug.

And that is why when Your Honors denied certiorari, we went back and filed a post-conviction petition in the hope, in the course of the state proceedings and the petitioner is here now, in the course of the post-conviction petition, I would then have had the opportunity to have demonstrated to the trial judge that the very drug that had been told him was a normal therapy for narcotic addicts and the withdrawal system was in fact a powerful mediatric that paralyzes the eye muscles, causes amnesia, the loss of the -- of the this limb because hyoscine is said to be an autonomic blocking agent.

It had the capacity to separate the Central Nervous System from the ordinary organs of the human body.

Justice Felix Frankfurter: And was this canvass at the post-trial, at the post-conviction proceeding in Illinois?

Mr. George N. Leighton: It was not Your Honor and the reason for that was this.

The position taken by the State's Attorney was that the decision on writ of error was res judicata and the substance of the Supreme Court opinion on that was that all these questions had been decided.

Chief Justice Earl Warren: But is there -- excuse me?

Justice Felix Frankfurter: Because I -- because I read the quotation of the post-conviction proceedings that they didn't quite (Inaudible) they said that (Inaudible)

Mr. George N. Leighton: That's what they -- that's all I understood Your Honor.

They said that because we have doctor and new lawyer at criminal law that if a writ of error proceedings have instituted and completed, all the questions which could have been raised are taken within the scope of writ of error and the -- the -- the substance of the opinion of the Supreme Court of Illinois on the post-conviction petition was to tell me that all these questions you're now raising, we decided it anyway.

Justice Felix Frankfurter: Well, I'm -- my comment as elicited was invoked by the quotation in state's brief on page 26 in dealing with the pertinent portion of the order denying post conviction relief and it appears for me, (Inaudible) be guided by that.

Apparently, the point that was made was that there was a confusion as to be name of this drug and no mention is made to these other things.

Mr. George N. Leighton: Well, but --

Justice Felix Frankfurter: Even assuming -- the Court (Inaudible) they're assuming they could escape the doctrine of reasonable (Inaudible) but it then deals with that point on the merits from which I am referred, there is no other points to get (Inaudible)

Mr. George N. Leighton: But if Your Honor will look at the post-conviction petition and the affidavits of this petitioner, the post-conviction -- was much broader than this narrow conclusion reached by --

Justice Felix Frankfurter: Where you at post-conviction in Illinois offer to introduce new evidence?

Mr. George N. Leighton: Yes, Your Honor.

Justice Felix Frankfurter: Did you make that offer at that point?

Mr. George N. Leighton: Yes, Your Honor.

Justice Felix Frankfurter: And if it was refused -- you were refused to make this pharmacological proof?

Mr. George N. Leighton: That's right Your Honor, on a motion to dismiss by the State's Attorney.

The motion to dismiss in a post-conviction and petition had the same effect as any motion to dismiss, affirmative allegations of petition appealing and the motion dismissed by the State's Attorney was sustained and then I took a write of error to Supreme Court of Illinois and then they wrote this memorandum opinion.

Now, I may pause here to say --

Justice Felix Frankfurter: Well, have you -- did you -- but only to be a stickler to the murder case likely the state, but did you presented -- one of the questions presented that you weren't allowed in the post-conviction proceedings to introduce claimed relevant testimony?

Mr. George N. Leighton: I'm sorry.

I didn't --

Justice Felix Frankfurter: Did you raise one of the questions that we had to consider this question that you were shut off from introducing relevant evidence in the post-conviction proceeding of Illinois?

Mr. George N. Leighton: Well, if --

Justice Felix Frankfurter: They don't have to give post-conviction proceedings subject to the Constitution.

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: But if they do what you're now saying is that you were denied the due process in not being allowed to introduce relevant evidence, isn't that right?

Mr. George N. Leighton: That's the effect of it.

Justice Felix Frankfurter: Yes, but there was no such question presented by you.

Mr. George N. Leighton: In the --

Justice Felix Frankfurter: Here, here.

Mr. George N. Leighton: In the course of these proceedings.

Justice Felix Frankfurter: Yeah.

Mr. George N. Leighton: Well, but the habeas corpus application contained all those allegations.

In our habeas corpus petition, all these facts were alleged including the -- the reliance upon this doctrine by the Illinois Supreme Court and we raised that question in the -- in the habeas corpus application and that is one of my -- my complaints about the dismissal of the petition for habeas corpus in the District Court.

Justice Felix Frankfurter: I've questioned all this because I feel as I do about Layer and I notice while you drew a defense from Justice Schaffer on the ground that the administration of the drug in and on of itself destroyed -- rendered the confession not voluntary.

There's no suggestion by him in his dissent about the Layer situation.

Mr. George N. Leighton: That's true Your Honor.

Justice Felix Frankfurter: Because if that's -- I say again, I'm so alert about that problem that I had troubled you with these specific questions.

Mr. George N. Leighton: I understand Your Honor.

Chief Justice Earl Warren: Mr. Leighton, may I ask you this? Did I understand you that (Inaudible) about 225 in the (Inaudible) heroin.

Mr. George N. Leighton: Heroin, that's right.

Chief Justice Earl Warren: And after his arrest, he was not questioned at all until about 8:45 (Inaudible)

Mr. George N. Leighton: Well, may I say Your Honor.

When I said a moment ago, there's nothing crucial.

Chief Justice Earl Warren: Yeah, that's what (Voice Overlap)

Mr. George N. Leighton: He was questioned just briefly and then he was --

Chief Justice Earl Warren: (Voice Overlap)

Mr. George N. Leighton: That's right.

Chief Justice Earl Warren: Now, what I wanted to ask is this.

Is there anything in the record to indicate how long it would be equitable a man took the dosage such as he took prior from his arrest before he would show these withdrawal symptoms and the (Inaudible)

Mr. George N. Leighton: Well, the --

Chief Justice Earl Warren: -- the substance as the record seems to show (Inaudible)

Mr. George N. Leighton: Yes.

Chief Justice Earl Warren: And 8:45 or 9:00 when the district attorney was waiting for him in the other room.

Mr. George N. Leighton: The only testimony, the only evidence is the testimony of Dr. Mansfield who claimed some familiarity with the matter, he diagnosed the petitioner and found he was suffering from withdrawal symptoms, and his testimony appears first on page 214 of the type written record and again on pages -- beginning with the pages of 975 of the record before the jury and there seemed to be no question to mind of Dr. Mansfield that this petitioner was suffering a normal withdrawal symptom reaction at the time he examined him.

And I assume from this that the time that he reacted in this fashion is the normal time to be expected from a self-inflicted injection, say about 12:00 or the day before, you see.

Justice Potter Stewart: This is about 20 hours.

Mr. George N. Leighton: About 20 hours and no one seemed to question -- there seemed to be no dispute here that this petitioner was in the withdrawal symptom and that it was normal under the circumstances.

Justice Felix Frankfurter: And what you're -- what you're putting to the Court is that the police officer with such lay knowledge -- as knowledge to be acquired as the laymen about condition of -- of narcotic addicts would know roughly speaking that within 20 hours the withdrawal symptoms would manifest themselves.

Mr. George N. Leighton: Yeah.

Justice Felix Frankfurter: That he also knew -- he also knew that relief would be required by a doctor. That he also knew that -- that a doctor would examine him, he would examine him, but he would give him this drug which had the deleterious effect and that the sum total of all these was the pre-arrangement that getting him in a condition of mind which precluded a voluntary emission of words, is that right?

Mr. George N. Leighton: That's right Your Honor.

Justice Felix Frankfurter: That's the case you make.

Mr. George N. Leighton: That's right.

Now, -- I'm sorry.

Justice Felix Frankfurter: (Inaudible) from cases, the record sustains you.

Mr. George N. Leighton: Yes, it would.

But may I say Your Honor?

If I made a quote some words you uttered recently that to a man in prison, and I may paraphrase it, it makes no difference to him whose liberty is taken that is a result of a professional incompetence or professional malice.

Now, if you look at the record carefully as Your Honor observed recently, one who's held in secret custody can never prove by evidence which we otherwise would take us persuasive, what took place behind the closed door, one of the vices of secrete interrogation.

Now --

Justice Felix Frankfurter: That's in cases where the interrogation in and of itself --

Mr. George N. Leighton: Yes.

Justice Felix Frankfurter: -- precludes assuming that man is (Inaudible) or he's in a position of his packaging.

Mr. George N. Leighton: Yes.

Justice Felix Frankfurter: But here, that is ruled out so far as length of time is concerned.

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: And your main position as I understand is that the administration of this drug has such as physiological effect upon the human faculty that what takes place during the period of its operation is not the will at any true sense -- in any meaningful sense (Inaudible)

Mr. George N. Leighton: That's right Your Honor

Justice Felix Frankfurter: -- which is a very different case --

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: -- from concocting a scheme whereby it should be put into that (Voice Overlap)

Mr. George N. Leighton: That's right.

Now Your Honor, that the point that I can't escape about this case is this and it occurred to me, I don't want to sound fictitious, but you see although this was New Year's Day, this was not a party celebrating New Year with Charley Townsend.

They were there for this whole purpose and this was the purpose of everybody concerned on New Year's Day at the second police district.

The reporter, he wasn't there admitted to record celebration of New Year festivities.

He was there to record a confession.

If there wasn't a confession, anticipated, if Your Honor please --

Justice Felix Frankfurter: But wouldn't any -- wouldn't any district attorney who had the suspect -- a suspect as to murder beyond the alert and make preparations in the hope and or expectation even that he might need a stenographer, that he ought to be on the job.

I don't see anything sinister about that Mr. Leighton.

Mr. George N. Leighton: Not sinister Your Honor, but merely indicative of what was in mind of all persons concerned you see.

Now, when the doctor is called, this was not an act of humane kindness towards Charley Townsend.

They wanted Charley Townsend to get out to this distress condition so he could answer questions.

In fact, Mr. Janega testified and his testimony is in the record without contradiction that when he first saw Townsend, Townsend would not answer question because he couldn't.

His testimony appearing on page 439 of the type written record in on and that he asked the officer to get the doctor and the doctor said -- I mean the officer said -- Cagney said, “I've already called the doctor.”

My point is this.

If you look at what was going on and fit it into the scheme of what was the objectives in mind of all these polices officers and public officials, they only had one thing in mind to extract by interrogation, questions that will clear up these unsolved felonies.

Justice Felix Frankfurter: But am I wrong in the thinking Mr. Leighton that if they had not summoned a doctor as he requested, if they had not given a medical release and then by sheer (Inaudible) is his pain get well through with it, yes I did it but you would then not only would but I should think it would be your duty almost to say that a man in that distressing -- distressful painful condition would not a man fit to make any utterance so that when you say they didn't do it for humanitarian reasons like most human conduct, there maybe conflicts of consideration, I should think that's a far cry from saying this was a concocted arrangement.

Mr. George N. Leighton: Well, may I say this Your Honor. The courts below have taken the view that it was not a concocted arrangement.

All I'm saying is that when you look at the totality of circumstances that the only thing they were there for was to take a confession from Charlie Townsend.

Justice Felix Frankfurter: And my question is I think of I have wasted -- I have taking time from your main proposition that the mere administration of drug in and off itself is to vitiate this confession.

Mr. George N. Leighton: That's right.

That's the point.

Justice Felix Frankfurter: That's your -- that's the point of your brief.

Mr. George N. Leighton: That's the point -- that's of the brief.

Now --

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

Mr. George N. Leighton: Sure Your Honor.

Justice John M. Harlan: We've got the whole trial record here.

Mr. George N. Leighton: That's right, Your Honor.

Justice John M. Harlan: Is there a separate record on the motion to suppress?

Mr. George N. Leighton: No.

That's whole part of the whole trial proceedings.

Justice John M. Harlan: Would it be possible for you to leave with the clerk the page numbers of the record both on the motion to suppress and on the trial itself that bear upon the issues we've got here.

Mr. George N. Leighton: I can Your Honor.

Justice Felix Frankfurter: Were they before the District Court in the habeas corpus proceeding?

Mr. George N. Leighton: They were, Your Honor.

Justice Felix Frankfurter: Well, then -- but they didn't come up here, did they?

Mr. George N. Leighton: Oh yes, they're here.

Justice Felix Frankfurter: Well then they are here.

Mr. George N. Leighton: They are here.

Justice Felix Frankfurter: Then what Justice Harlan is asking is here now.

Mr. George N. Leighton: The record is here.

Justice John M. Harlan: Well, the whole record is here.

I'm just asking --

Justice Felix Frankfurter: You want the --

Mr. George N. Leighton: Specific pages.

Justice John M. Harlan: The mechanical (Voice Overlap)

Justice Felix Frankfurter: Everything is here.

Mr. George N. Leighton: Everything is here, Your Honor.

Justice William J. Brennan: Mr. Leighton, your time is bleeding and I don't want to burden you but I am very interested in finding what it was you wanted, in the way of additional testimony in the District Court?

Mr. George N. Leighton: Well, I wanted an opportunity since the -- the Illinois courts had denied the petition of that opportunity, I want an opportunity to demonstrate the very thing I'm arguing here that this was not a normal -- this was not a normal therapy of narcotic addict --

Justice William J. Brennan: In other words, this goes to the gram versus grain.

Mr. George N. Leighton: That's right.

Justice William J. Brennan: Well, this would have taken what, the form of expert testimony that accepting the testimony of the trial that was gram and not grain.

Mr. George N. Leighton: That's right.

Justice William J. Brennan: That this would have met 16 times a normal --

Mr. George N. Leighton: That's right.

Justice William J. Brennan: was that -- was that the extent of the testimony?

Mr. George N. Leighton: And also -- also You Honor, the point that I have had difficulty putting over to anybody in this case that the failure of the trial judge to have been adequately informed that this was not a pharmacological drug called hyoscine which the doctors use for certain kind of treatment.

This was a drug which in both medical and criminological tolerance was known as the truth serum.

Justice William J. Brennan: Well, all of this then goes really to expert testimony not produced in any proceeding in the Illinois.

Mr. George N. Leighton: That's right,

Justice William J. Brennan: That you wanted to supplement --

Mr. George N. Leighton: Yes.

Justice William J. Brennan: -- at the hearing before the District Court.

Mr. George N. Leighton: That's right Your Honor.

Justice William J. Brennan: And is that the extent of it?

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: And this line of evidence was not pursued at the trial itself.

Mr. George N. Leighton: It was not.

It was sought to be pursued in a post-conviction proceeding and denied.

Now, may I say this so the Court may understand the position of petitioner?

We take the position that when you look at the records before the District Judge, if we look at the testimony carefully, the District Court erred in denying habeas corpus because if you properly function as Your Honors have said Brown versus Allen, it was duty to do so, if he had made the findings which he should have made, he would have perceived, what I am saying to Your Honors here and what I was trying to say to the Court of Appeals below that it was error to dismiss that petition because it was obvious from all of the evidence that the state courts had misconceived the federal constitutional of rights of this petitioner.

Justice John M. Harlan: What made you the record that you referred -- where you made this proper improvement is denied?

Mr. George N. Leighton: In the post-conviction petition and that is -- that's not --

Justice John M. Harlan: No I mean in the hearing, not the allegation to the complaint (Inaudible)

Mr. George N. Leighton: In the trial court?

Justice John M. Harlan: No, at the post-conviction hearing.

I understood you to say to Justice Brennan that you would made an offer proof which was denied.

Mr. George N. Leighton: Oh, I meant to say Your Honor that I -- before the District Judge --

Justice William J. Brennan: In the federal habeas corpus.

Mr. George N. Leighton: In the federal habeas corpus, yes.

Justice William J. Brennan: Yes.

Mr. George N. Leighton: Yes, I asked for an opportunity to be heard.

Justice Felix Frankfurter: But you did not --

Justice John M. Harlan: Well, did you order a proof, did you make a tender proof that you said you would like to introduce?

Mr. George N. Leighton: No, because the District Judge was to rule on the question whether he was to allow the petitioner a hearing.

He never -- we never got to that point, Your Honor.

Justice John M. Harlan: What I'm trying to get at is whether you may either through a formal tender of proof, a proffer proof or by colloquy with the judge where he would focus his mind that you some evidence that had not been offered at the original hearing which you now wanted to offer.

Mr. George N. Leighton: Yes.

If Your Honor will look at the --

Justice John M. Harlan: What page?

Mr. George N. Leighton: In the brief -- in the brief of the petitioner, there is a reporter proceeding before Judge Igoe and the memorandum opinion of Judge Igoe in which he overruled petitioner's request for a hearing, an opportunity to be heard.

Justice William J. Brennan: What page?

Justice John M. Harlan: What page is it?

Mr. George N. Leighton: And that is the (Inaudible) Capital A, in the record, it's in the typewritten record, with capital A and on the reporter proceeding.

Justice John M. Harlan: What's the page you're referring to Mr. Leighton or the document that you're (Voice Overlap)

Mr. George N. Leighton: I'm referring to the portion of the record marked capital F and there's a reporter proceeding containing the request for rehearing before Judge Igoe.

That's the portion that I have reference to you, Your Honor.

Justice Mr. Justice Black : Are you referring to your brief?

Mr. George N. Leighton: We referred to it --

Justice Mr. Justice Black : Where -- where?

Mr. George N. Leighton: In the argument portion, and I'm trying to find it now because this is part of the point I make that the Court of Appeals held that the petitioner did not carry the burden of proof and I argue the point that to carry the burden of proof means an opportunity to be heard and that was foreclosed by the ruling of the District Judge.

He wouldn't hear petitioner.

Justice John M. Harlan: Could you refer to the part of your brief that you mentioned to Justice Black were you raise this point?

Mr. George N. Leighton: Yes, if I may have just a moment.

Justice William J. Brennan: I think in 25 and 26, I maybe wrong Mr. Leighton, 25 and (Voice Overlap)

Mr. George N. Leighton: That's right.

That's right.

On page 25, on page 25 citing the Court of Appeals' decision and I make specific reference on page 26 to record portion capital F, transcript of proceedings of June 12, 1959 pages 2-31 and 64 and the memorandum order of June 24, 1959 in which the District Court ruled that petitioner would not be heard and that he was going to pass on the matter of solely the state court records and he did.

Justice William J. Brennan: Do we have those transcripts?

Mr. George N. Leighton: These are here Your Honor.

Justice William J. Brennan: In typed form?

Mr. George N. Leighton: They are in typed form.

Justice Felix Frankfurter: I've tried to clarify this to myself.

I think when Justice Harlan was speaking some of the cross purposes, what you've just said you had formally presented namely that the District Court in the habeas corpus proceeding misconceived the scope of his reviewing power.

Mr. George N. Leighton: Precisely, Your Honor.

Justice Felix Frankfurter: But I understood Justice Harlan to ask you and what interested me also is whether you specifically, whether you made a specific offer of proof that in the -- that there was a factual in the case of pharmacological factors which for one reason or other, it's not emerge at the trial, had not been before the Supreme Court of Illinois and yet, from your point of view, goes to the basic vice of the conviction, namely that a -- that a -- what do they call it, the portion (Inaudible), a dosage was given.

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: -- which in and off itself has translated to -- to disempower, to really disable any human being particularly (Inaudible), to be in a state of mind whereby a confession had voluntary (Inaudible)

Mr. George N. Leighton: That's right, Your Honor.

Justice Felix Frankfurter: So that there's difference between saying, which for me there's difference in the legal proposition that broadly speaking, the District Court wasn't following what you conceive to be Brown v. Allen standard and Justice Harlan's specific question as to whether this -- this item of evidence was by you specifically in terms offered to anybody, to any court, either post conviction court or later in the federal court.

Mr. George N. Leighton: I never was given a chance.

We never got to the point where the offer of proof --

Justice Felix Frankfurter: Well, although there's a chance to make a court list to an offer of evidence and having rejected.

Mr. George N. Leighton: Well, I pointed out to him in the course of the argument various times with period and in the brief we filed in, incidentally Justice Harlan, the brief that we filed before the District Judge is here and that point is urged upon the District Judge.

Justice John M. Harlan: I'm not trying to quarrel with you.

All I'm getting at is this.

Obviously, new counsel as you are coming in, capital case as it turned -- defined that everything that he contend of what should be said.

Mr. George N. Leighton: That's right Your Honor.

Justice John M. Harlan: In other hand, the point as you are making now that you are precluded from offering evidence which you stated that this vital evidence is also important.

As I understand you do have pointed that at any point in the habeas corpus proceedings where you were present that you said here, I've got witness X to witness V or whatever evidence you have that I want to put on now to show what I contend, you did not do that.

Mr. George N. Leighton: No, because I never got to that point.

Justice John M. Harlan: But you never made the proffer?

Mr. George N. Leighton: That's -- that's right.

I never made the proffer.

That is correct.

Now, I like to just in closing with the time allowed --

Justice William J. Brennan: I think we keep (Inaudible) quite importantly Mr. Leighton.

Mr. George N. Leighton: Yes, Your Honor.

Justice William J. Brennan: I gather you filed the petition.

Mr. George N. Leighton: Yes.

Justice William J. Brennan: Did you go before Judge Igoe at anytime?

Mr. George N. Leighton: Yes Your Honor, we did.

Justice William J. Brennan: What happened before Judge Igoe in respect of what proceedings should be followed on the petition, what did happen?

Mr. George N. Leighton: First time, we appeared before judge he dismissed the petition summarily.

We came before --

Justice William J. Brennan: Any argument?

Mr. George N. Leighton: Oh yes, there were arguments.

He wouldn't listen at all.

We came before this Court and Your Honors vacated to Judge Igoe's dismissal of the petition because he had not followed Jennings versus Ragan.

And upon the vacature of that first order of dismissal, we went back before Judge Igoe, I then argued before Judge Igoe and that is shown in the report of proceedings Mr -- I'm sorry, I forgot it, Mr. Hladis had just handed to me.

I then argued before Judge Igoe that we were entitled to plenary hearing with an opportunity to be heard including witnesses.

Justice William J. Brennan: By means of -- meaning of why when you said that?

Mr. George N. Leighton: I mean that I requested it in terms of motion, I requested it then in argument against the State's Attorney motion to dismiss the petition a second time.

Justice Felix Frankfurter: You claimed you could rip open the whole proceedings, that what you claim?

Mr. George N. Leighton: Sir?

Justice Felix Frankfurter: You claim that you could rip open the whole proceeding.

Mr. George N. Leighton: That's right, and he wouldn't go to that point.

He finally ruled one day after we -- audit before him that he had read this state court records and he issued memorandum on it and he passed specifically on the request for an opportunity to be heard.

In the memorandum order of June 24, he specifically passed on that request.

At that point you see, I not had been given a chance to be heard, having urged for the opportunity to be heard and knowing what witnesses I have to produce but being denied the opportunity, we then took the appeal which is now before Your Honors.

Justice Felix Frankfurter: Well therefore, it is important for us if I may so to see exactly what your case you made out in this request that you called it to be heard --

Mr. George N. Leighton: Yes.

Justice Felix Frankfurter: -- in order to determine whether Judge Igoe was justified under the remand to say, “I don't have go outside, the record made in the state court,” isn't right?

Mr. George N. Leighton: Yes, it is important.

Justice Felix Frankfurter: And he compared your -- your petition, your generalized allegation as to why you're in the District Court.

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: (Inaudible) have taking place to the state courts through which the trial, the affirmance by the Supreme Court of Illinois, the post-conviction hearing and said, “This is within Brown and Allen for me to rest on the state proceedings.

I don't have to have a de nova hearing."

Mr. George N. Leighton: That's right, Your Honor and then made no specific findings of fact or law.

Thank you.

Chief Justice Earl Warren: Mr. Leighton, you (Inaudible)

Mr. George N. Leighton: Thank you Your Honor.

Print this transcript Transcript:

Argument of George N. Leighton

Chief Justice Earl Warren: Mr. Hladis or -- had you concluded your opening arguments (Inaudible) or you may continue if you please.

Mr. George N. Leighton: Thank you Your Honor.

I have -- had portion of the time remaining to me now, so I can take another additional 12 minutes.

Chief Justice Earl Warren: Yes.

Mr. George N. Leighton: To conclude the argument for the petitioner if Your Honor please, I wish to emphasize that the position of the petitioner is that before the District Court, the attorneys for the respondents had upon remandment of this course, filed a motion to dismiss the petition again and the case never got beyond argument on that motion, and that motion was sustained by the district judge by his memorandum order from which the appeal was taken so that at no time was the petitioner allowed the opportunity which is ordinary available at a trial of an issue to make a formal offer of proof.

Now we take the position that the district judge heard in dismissing the petition and not performing the functions which Your Honors have said is the inherent duty of a district judge on Federal Habeas Corpus, to have made his own independent determination of the question whether the federal constitutional questions which the petitioner had urged in the District Court had been fairly considered and determined by the state courts.

Now, I wish you to also go back to question which has been asked of me about the position of the petitioner with regard to the effect of this drug.

It is the petitioner's position that the vice of what occurred to him was that while he was given a drug by a police doctor, he was also at the same time, while still under the influence of this drug, subjected to the interrogation that resulted in the confession used in this trial.

The courts below have failed to distinguish between the propriety of the medication and the propriety of the interrogation, while the medication may well be in the mind to some people, some doctors had been proper that the interrogation accompanied at the same time while he was under the influence of this police injected drug, is what creates the vice.

Now, the petitioner can only point to the fair inferences in the record that this was the intended result by the state officers involved.

It is true, we have no one who could testify that Officer Cagney, when he saw the doctor, talked to the doctor and said “Give him a drug that will produce confession” is true, but it is considered judgment of pharmacologist, the people who have dealt with the therapeutic and the physiological results of hyoscine, criminologists have spoken on the subject, medical men have spoken on the subject that this drug has properties which injected in therapeutic doses produced the state of mind of ejecting in incriminatory confessions and in fact that is one of the uses of the drug.

Now, it occurred to me to say, if Your Honors please that fair minds would agree that if man were being wheeled into operating room with proper therapeutic doses of chloroform and other means of easing his pains, that is not the time to discuss with him the disposition of his property.

Most people would argue I'm sure that a will signed by man who was about to be taken into an operating room is not a valid exercise of testamentary power.

So that while the medication might have been proper under the circumstances, it is the accompanying interrogation with the resulting confession, that raises the question here.

Justice Potter Stewart: Is this case in which the record shows that he confessed to good many, other offenses?

Mr. George N. Leighton: That's right Your Honor.

Justice Potter Stewart: And some -- at least on one of which he was found not guilty and couple other were -- couple of others were (Inaudible) and --

Mr. George N. Leighton: That's right Your Honor.

Justice Potter Stewart: And --

Mr. George N. Leighton: That's right.

Now, may I just answer Your Honor's question that are very important that I'm sorry I won't be able to dwell upon it.

I urged that question before the District Judge.

I asked for an opportunity to introduce in evidence the fact that on January 4, when they had a coroner's hearing which I have sometimes describe that Charlie Townsend day because that's what they had that day.

It was hearings on Charlie Townsend cases, they had inquest into four deaths, one with the death of Johnny Stinson.

In and around, Charlie Townsend were later found items of property of this deceased.

They took a confession from Townsend, at the same time, they took this one.

The case was tried.

Townsend was acquitted because Townsend adequately explained evidently the presence of these articles.

There was another inquest in which the -- another confession was taken at the same time, this one was taken.

The inquest reports are now before Your Honors as part of the additional answer of the respondents.

In that inquest concerning death to this man, he was testified by the sister of the deceased that when the deceased was found and his sister asked him, “What happen to you Willis?”

Willis Thompson said it was just one of those things.

It was an accident.

When the doctor questioned him and when the police questioned Thompson, Thompson said I had an accident.

And as I have argued in the reply to the additional, to try best to judicial answer, I don't' know how in this earth can an accident be made into murder, just because the petitioner while he was under the influence of a drug admitted something about the murder and you can look at the confession.

The confession is not even admission to be having to do with it.

Justice John M. Harlan: Am I wrong in thinking that when those documents were coroner's documents, inquest documents were offered by the state at the trial, they were objected to by the petitioner?

Mr. George N. Leighton: Those are -- those documents themselves never were offered Your Honor.

What was done was to bring by inference in the trial that at the inquest, they were other crimes involved.

As Your Honor can well understand, a defense lawyer who's defending a man for one murder where the issue is question of guilt, he would by every instinct in the lawyer object to such.

It is a different question, if Your Honor please, in a habeas corpus case.

In the habeas corpus, the guilt of the defendant is not involved.

The petitioner is not on trial.

It is the constitutional question in the habeas corpus case.

I thought it relevant to show that when he gave this serious of six confessions, one he was found not guilty, one man who was killed said that he had an accident, the third one if may I call Your Honor's attention to the fact that the officer was asked by the deputy coroner to sit down because he said you're trying to make his man admit something he didn't do and he said to the coroner, “What are we going to do?

We have to clean up these records somehow.”

And I say to Your Honors that what they were trying to do was to start off the New Year with a clean slate and they were using this petitioner as a mop to clean up unsolved murders and felonies in their particular police district.

Justice Felix Frankfurter: That wasn't the issue, the issue on which that were tended at the trial and the issue that was tended at the post-conviction proceedings, the same -- or at the habeas corpus, the same issue as a matter of law namely whether or not the confession was validly admissible?

Mr. George N. Leighton: That is true Your Honor.

Justice Felix Frankfurter: Therefore, the tender of what you call the fact against the document was directed to the -- to the issue the same issue in different proceedings that concerned at the same problem?

Mr. George N. Leighton: That's right Your Honor.

Justice Felix Frankfurter: And so I don't quite follow what you're saying that when the state offered these at the trial, they were excluded by the -- on the defendant's motion as being harmful, but then on habeas corpus that which was excluded and might have been -- might have helped the state's case can now be the basis for saying that the conviction was unconstitutionally obtained.

I don't understand that.

Mr. George N. Leighton: Well, that's because Your Honor it happens at the two different judges were deciding.

In the habeas corpus case, the Judge who -- have heard this additional confessions was not going to have anything to do with deciding the guilt of the defendant.

That's the reason.

Justice Felix Frankfurter: (Voice Overlap) He had to decide the same thing namely, whether a confession was so crucial to the conviction was validly introduced?

Mr. George N. Leighton: That's right.

Justice Felix Frankfurter: And if -- if -- if those coroner proceedings were improperly admissible in the trial for -- or some conceivable advantage to the prosecution, I don't see how you can have a constitutional right of having a different trial on the same issue in a federal court.

Mr. George N. Leighton: Well because it happens that the two judges were functioning in slightly different positions.

That's the only reason.

Justice Felix Frankfurter: In relation to the same problem namely, whether a conviction based on a confession was a sustainable conviction.

Mr. George N. Leighton: That is true Your Honor.

There is no -- but the whole point arises you see is in the some fortunate posture in which the issues arise.

Justice Felix Frankfurter: Yes, but that otherwise -- otherwise, you'd have some trial tactic at the trial in the state court in which the defendant takes the position, which he then thinks the admission or exclusion of evidence as far his benefit, he's convicted and then we'll have another trial in the federal court when he thinks for that purpose, it's his advantage to introduce something that he himself kept out.

Mr. George N. Leighton: Except that in the post-conviction proceeding Your Honor, we made the same offer and we could have been heard there and they wouldn't -- they wouldn't hear the petitioner in that case (Voice Overlap)

Justice Felix Frankfurter: That's because it was excluded -- it's offered and excluded at the trial.

Mr. George N. Leighton: Well, may I make it clear Your Honor that the confessions themselves never were offered.

Justice Felix Frankfurter: No but the fact of -- not the confession themselves but the basis for putting in the fact that there will be --

Mr. George N. Leighton: That's right.

Now, just to touch the point again Your Honor, may I call your attention to fact so that we may not mislead.

I think it fair to say that in the hearing before Judge Butler on the motion to suppressed, there was enough of that evidence that is on that evidence before the Judge of the presence of the jury.

There was enough said so that the Judge knew that at that coroner inquest, there was more than one particular crime involved.

I think that's fair.

Now, may I just conclude now with this final thought if I may Your Honor?

One of the most persuasive facets of this record is the fact that when Rudolph Janega, the Assistant State's Attorney began questioning this petitioner, he had to stop because the petitioner could not answer the question.

The record is without impeachment from the testimony of the prosecution witnesses that as the doctor was being led out one door, the petitioner was being led into the other room where Janega was waiting.

We now know from the pet -- respondents themselves that at ten minutes after ten, they took the first confession.

I invite Your Honor's attention to the confession in question, particularly the question that was asked by this interrogator after Townsend was asked, “What did you take from the pocket of this man?”

He said, “Money.”

“What else,” indicating to anyone who fairly reads that confession, that the interrogator knew enough facts either prior interrogation of this petitioner or from some of the source that was something else.

There is another crucial point involved in this confession that this wallet of this deceased was allegedly found at the street called 37th Place.

When Mr. Janega asked this petitioner, “Where were you on the night in question,” and he said, “36th Street.”

Another question was put to him plainly indicating that Mr. Janega knew that the wallet was found on 37th Place by correcting him.

He offered the suggestion of 37th Place.

You can read the confession and see it.

Now, strangely enough, this wretch, this man who couldn't answer questions, no sooner had he been giving this drug when he exaggerated six incriminatory confessions which are now part of the record which Your Honor thought sufficient to ask the respondents to file with you as answers to the -- to the habeas corpus petition.

And the only thing that could have brought this miraculous result was this drug, this powerful mydriatic that paralyzes the eye muscles as described by this petitioner, that separates the connection between the central nervous system and the organs of the human body and thus subdues the will to an interrogator who wants answers incriminatory as shown by the experience of police systems, the world over.

And on these grounds, we say that this confession was involuntary and as Your Honor said recently whether it was the result of professional incompetence or official malice, the right impinged upon is just as sensitive whether it's intent or would be the consequence which follows when a confession is taken to take human life.

Chief Justice Earl Warren: Mr. Hladis.

Argument of Edward J. Hladis

Mr. Edward J. Hladis: Mr. Chief Justice and may it please the Court.

Mr. Chief Justice, before I begin my argument I would like permission of the Court to correct and with my apologies, a clerical error on page 37 of our brief.

It is the fifth last line of the second paragraph, the sentence beginning, “beginning about 11:15 and it reads am, it should read pm.”

I've discussed this with Mr. Leighton and he agrees that such is the fact.

Chief Justice Earl Warren: Just where did you say it is Mr. Hladis?

Mr. Edward J. Hladis: The fifth last line of the second full paragraph on page 37 and the line should read beginning about 11:15 pm.

Chief Justice Earl Warren: PM.

Mr. Edward J. Hladis: PM.

Chief Justice Earl Warren: Very well.

Mr. Edward J. Hladis: Gentlemen as the respondents view this controversy as is been presented by the petitioner's petition for writ of certiorari as well as his brief, it is our view that it is -- it is resolved into two issues, the immediate issue whether Judge Igoe, the United States District Court Judge in Chicago, abused his discretion, when in accordance of the mandate of Brown versus Allen, he determined that the issue was raised by the petition where the habeas corpus had been fully and fairly raised in the state court proceedings, having explored there, and that the petitioner was accorded fair treatment and due process and accordingly it was unnecessary to continue any further with the cause.

That lead us to the more fundamental issue, and that is whether on the basis of that state record there, which we frankly admit is the only thing that we can advance in the State of Illinois in support of our claim that this petitioner in this particular controversy was treated fairly by the authorities.

I think that the last question which was propounded by Justice Frankfurter, a question which relates to the use of the coroner's minutes at this time when during the trial of the proceeding in the trial court, when they were sought to be used by the state for purposes of an impeachment, able defense counsel objected vigorously.

I think that question focuses the attention of everybody upon a difficulty which is present in the proceeding here.

Justice John M. Harlan: The defendant took the stand at the trial, did he?

Mr. Edward J. Hladis: Oh yes, twice.

Justice John M. Harlan: As distinguished from the suppression?

Mr. Edward J. Hladis: Oh!

He took it on the suppression and also before the jury, yes sir.

Justice John M. Harlan: So he was subject to unrestricted cross-examination?

Mr. Edward J. Hladis: That's right.

The explosion came at the time on the – on the motion to suppress during the preliminary hearing which is outside the presence of the jury.

As the case has been posed here, and with all due respect for a very good friend and opposing counsel, the only breach which the petitioner advances here in this Court between the federal judicial system and the Illinois system is the judgment of conviction.

As we read his petition, as we read his brief, he would just as soon present this case on a sort of a priori basis with little or no regard for the record as it was made down below.

Coming to what we consider is the first and the immediate issue, the question as to whether Judge Igoe acted properly when he proceeded no further with any hearing, but relied after an extensive investigation analysis of the state court record upon the findings of the state court.

We call the Court's attention of course to the landmark case of Brown versus Allen which is explored thoroughly.

The function of a trial district judge and which has laid down the limitations and a formula so to speak of procedure.

We also call attention to a case which came out of our own state, Jennings v. Ragan, which correct and justifiably so, which corrected a procedure which had grown up there of the trial courts relying strictly upon the opinion rather than upon the record.

So that now, the district judge is bound before he makes any determination, without further hearing of a federal petition for habeas corpus, is bound to make his own independent analysis and investigation of the state court record.

And if he should find upon that investigation that there is no vital flaw, that all issues raised in the federal petition for habeas corpus were fully raised, were fully explored and fairly explored by the trial -- by the Illinois or state court trial system as well as the courts of review then he is entitled as a matter of law to dismiss the federal petition for writ of habeas corpus without further hearing.

Justice Felix Frankfurter: That depends on the allegations in the -- in the application for habeas corpus, doesn't it?

Mr. Edward J. Hladis: Well yes it does except this and I will lead back into the last question which you asked Mr. Leighton.

If the allegations of the federal petition for writ of habeas corpus should advance matters which were either present in the trial court record and were not exploited or which could have been made available thereby changing -- a change in trial technique or trial strategy, then I respectfully submit that in view the very sensitive relationship between our federal and state governments and particularly in the field of criminal law and the administration thereof, that a man should not be allowed to change or to adopt a new trial strategy on the federal level, because after all, as I see it Your Honor, the federal statute empowers a federal court to review a state court judgment from the standpoint as to whether or not he has been denied due process of law.

Justice Felix Frankfurter: But again -- one -- this Court, or District Court rather again answered your -- the question you just put unless he examines, unless he puts the file for CDs alongside of the allegations in the application for habeas corpus and finds out whether or not and if so why allegations made in the applications for habeas corpus were not canvassed, if they were not canvassed in the trial court and the state court, otherwise you can't tell, can you?

Mr. Edward J. Hladis: Well, that is right.

Justice Felix Frankfurter: I mean the District Court must examine and see what happened in the trial court in order to find out where there anything is open for him to consider?

Mr. Edward J. Hladis: That's correct.

Coming back now to a conclusion of our first point and that is under question as to whether Judge Igoe acted properly, we submit respectfully that he did and that a fair analysis of the state court record will show that the petitioner herein, Charles Townsend was accorded due process of law.

That comes to -- come -- bring us the fundamental question in this entire controversy and the question as it revolves about the admission of state's Exhibit 2 which is the written confession in question.

At the very offset during the course of Mr. Leighton's argument, a series of questions were directed toward him on the possibility of Mr. Leighton's claim that there was some collusion between the State's Attorney, the court reporter, the police officers and the doctors to bring about a condition in this particular petitioner which will unable him to confess to a series of crimes.

I think it's only fair to the court particularly since the question was asked several times, although I am familiar with the practice, as a policy I can explain why the State's Attorney as well as the court reporter were present, that is now the matter of record.

Now, if I may go in to that, I'll be glad to explain that.

In Cook County, Illinois, the State's Attorney is staffed by 120 assistants and about 110 of those assistants are assigned to what is known as night duty.

Justice Felix Frankfurter: How many did you say?

Mr. Edward J. Hladis: There are 120 assistants roughly and about 110 are assigned to what is known as night duty and for almost four years I was assigned likewise and I know what it is.

Justice Felix Frankfurter: When do they sleep?

Mr. Edward J. Hladis: I beg pardon.

Justice Felix Frankfurter: When do they sleep?

Mr. Edward J. Hladis: That's a good question sometime and the County and primary the city is divided into two.

And for as you gentleman may know or may not know, the dividing line in Chicago is Madison Street for north and south, and State Street for east and west, so they take Madison Street and cut it right down the line.

And it so happens that the police districts which are about 40, 42 in number, just about divide about equally and the crime rate just about divide equally.

Well, as a matter of policy which has existed in the Chicago -- in the Cook County State's Attorney's office for years regardless of which type of administration was in office, in cases of all homicide and aggravated assaults, police are not, police are not to take confessions, written confessions.

Now, how does that come about?

A man is arrested and he is interrogated by the police.

As soon as an admission is made, it is then the police officer's function to call the States Attorney's office in the west side of criminal division where there's a man in attendance all the time and he says, “We have John Doe here.

He has confessed to the homicide happening and so and so.”

The next step is for the Sergeant at the desk at the office to call whichever of two men are on duty and that call can come in at anytime and he says, “Call the 29th District, call the 36th District and talk to Lieutenant” so and so they have so and so.

And the assistant is under certain responsibilities too because he immediately calls and of course his first question is, whether the man is able to talk, is he sober, has he given a statement?

In other words, care has always been taken so that the State's Attorney would not become involved in any manner or whatsoever in police investigation.

In other words, the man is ready to give a statement.

When the assistant ascertains that that happens then it is his duty to call his office back and get one of the court reporters, now they have four, they are employed regularly, so that means court reporters are out every fourth night.

Now, that is the reason that Mr. Janega and Mr. Matsuoka, the court reporter worked at the 29th District because as Officer Corcoran testified before the gentleman became ill in this case, he had made an oral admission to the Boone murder and it so happened then that the State's Attorney was notified and Mr. -- it was Mr. Janega's turn and he went out.

Justice John M. Harlan: Was that admission before he'd been -- any drugs have been administered?

Mr. Edward J. Hladis: Yes sir, that is right.

Justice John M. Harlan: What page is that at the record, do you know or never mind if you don't.

I'll find it, never mind.

Mr. Edward J. Hladis: Corcoran is the man that testified to it sir and I might add that cautionary instructions were given on that confession.

I might add also as perhaps this Court knows already that no attack, no attack had been made in the Illinois court of review on the giving of any instructions even though they had all been spread in the abstract of the record.

And the first construction of the two which relates to the oral admission says definitely that an oral admission has been made in this case and admitted and then the caution is given as to how it is to be considered.

Never any objection made to that confession --

Justice Charles E. Whittaker: Would you mind stating again the name of the witness.

Mr. Edward J. Hladis: Corcoran.

Justice Charles E. Whittaker: Cagney?

Mr. Edward J. Hladis: Corcoran, Officer Corcoran.

Justice Felix Frankfurter: But plainly, the state wasn't contended to rest on that oral confession or admission?

Mr. Edward J. Hladis: No.

Justice Felix Frankfurter: And therefore the vice or virtue of the written confession is essential to the case?

Mr. Edward J. Hladis: That is correct.

Chief Justice Earl Warren: Could you tell us what that admission was and when was relation to calling the doctor please?

Mr. Edward J. Hladis: Well, the record shows that Mr. Janega was called about 8:35.

That admission must have come sometime between 8:00 and 8:30 because as I remember the record, Mr. Janega arrived about 9:05 which is just about correct, because I have to know the gentleman lives and how far yet to travel and at the time that he arrived, the doctor had not yet arrived, because Mr. Janega saw the petitioner suffering from the throes of the withdraw symptom and primary (Inaudible) area.

So that would be roughly 45 minutes before the doctor arrived.

Chief Justice Earl Warren: Was that -- that was while he was suffering these intense withdrawal pains?

Mr. Edward J. Hladis: The record is not too clear on that sir.

They were talking to him.

Chief Justice Earl Warren: He was being questioned?

Mr. Edward J. Hladis: That's correct.

They were talking to him.

The night shift came back on and then they brought -- had him brought over from the other station back to the second district.

They began talking to him about 8:00 in the evening, and then all of the sudden, the withdrawal shut in and he got this intense stomach cramps and pains which -- which are consistent with that problem and he told them that he couldn't -- couldn't say any further and he asked for help.

Justice William J. Brennan: (Inaudible)

Mr. Edward J. Hladis: Yes sir.

Justice William J. Brennan: (Inaudible)

Mr. Edward J. Hladis: I have that worked out to in my brief.

I'm looking for that annotation.

I'm also looking for the annotation Officer Corcoran's testimony.

That is correct, he returned about 8:30 record V90-100, that's I'm reading from page 35 on my brief sir.

Justice William J. Brennan: Well, now what (Inaudible)

Mr. Edward J. Hladis: I beg your pardon sir.

Justice William J. Brennan: When was this oral admission was made, was it after he returned --

Mr. Edward J. Hladis: Oh yes, they were assigned to that case.

Justice William J. Brennan: Well then this -- is that to say then that the oral admission must have been made after 8:30?

Mr. Edward J. Hladis: After 8:30, yes.

Justice William J. Brennan: But Mr. -- your associate was not called at 8:35?

Mr. Edward J. Hladis: I beg pardon.

Justice William J. Brennan: The --

Mr. Edward J. Hladis: He was called about 8:35 according to his memorandum to his superior.

It's dated January 4, 1955, 8:35 pm on January 1, 1954.

Justice William J. Brennan: Yeah.

Mr. Edward J. Hladis: And he would need at least a half hour to travel a distance from his home to the 29th district place.

Justice William J. Brennan: Well I thought you told us that the practice was not to call one of the attorneys until it was clear that the suspect was ready to talk.

Mr. Edward J. Hladis: That is correct, except that the -- the attorney and the assistant judges from himself whether the man is in a position to talk or what he says is worth taking.

If it's still in the area of police investigation, the assistant has the discretion refuse to come out of that time.

Justice William J. Brennan: What I'm trying to get clear is, if the oral admission was not made until after 8:30, then almost simultaneously the State's Attorney must have been telephoned and told about this, is that it?

Mr. Edward J. Hladis: Well, we have a five-minute period during which time Mr. Townsend must have made the oral admission and it must have been categorical enough because Mr. Janega informed his superiors that he left or he received the call at 8:35 and left.

Chief Justice Earl Warren: What was the admission that he made Mr. Hladis?

Mr. Edward J. Hladis: That he had committed the Boone murder.

Chief Justice Earl Warren: That he committed the --

Mr. Edward J. Hladis: That's the -- I believe that substantial what the record means to.

Justice Tom C. Clark: Where is all this in the record?

Rebuttal of George N. Leighton

Mr. George N. Leighton: May I assist, it's on page -- you'll find the testimony of (Voice Overlap) --

Chief Justice Earl Warren: You may.

Mr. George N. Leighton: -- page 649 to page 651 of the type written record.

Justice Tom C. Clark: (Inaudible)

Mr. George N. Leighton: 649 to 651.

Justice Tom C. Clark: Thank you.

Rebuttal of Edward J. Hladis

Mr. Edward J. Hladis: That's C -- there's volume C Your Honors 649-652, Mr. -- Officer Corcoran testified.

Now, coming back to the chronology of events here, we have the arrest of this gentleman during the early hours of January 1, 1954 and it is undisputed in the record at sometime around midnight or shortly thereafter, he had taken a shot of narcotics in order to satisfy his habit.

The state's testimony is that during those early hours --

Justice Felix Frankfurter: Just by way of curiosity --

Mr. Edward J. Hladis: Yes sir.

Justice Felix Frankfurter: -- people held in a condition and which he was given access to narcotics, although he carried on his person, is he allowed to?

I'm just curious.

You say he took another shot of narcotic (Voice Overlap)

Mr. Edward J. Hladis: But before he's arrested.

Justice Felix Frankfurter: Beforehand --

Mr. Edward J. Hladis: Before he is arrested.

Yes, it was some two to two and a half hours before he was arrested.

From the record, I always say it perhaps around stroke at midnight when that happened.

According to the State's testimony, he was talked to or spoken with for about half hour, statistical information was secured.

There were general questions about crimes in the area.

His testimony is, otherwise, he claims that there was interrogation there for period about an hour and a half to two hours.

It is undisputed that as of 5:00 in the morning, he was taken from the second district to a district few miles away.

I might add at this point that that happens quite often in City of Chicago because some police districts have better facilities than the others.

You'll note it from this record that while he was held at the second district, he was held in the woman's cell.

It was vacant of course at that time, but the areas -- in some of the police district, the areas were quite limited and they don't have much working space.

Nobody talked to him except by his own testimony, he was asked one question by the keeper at the second police station that was if he wanted food and he refused it.

And then in the evening of January 1, 1954 when a squad of a four men namely Cagney, Fitzgerald, Corcoran, and Martin -- Martin returned to work and would have been assigned to the series of cases.

He was returned to the second district and thereabout 8:30, the interrogation began.

As I stated before, Office Corcoran testified the fact he made his oral admission and Mr. Janega was called.

He arrived about 9:05.

Before Mr. Janega arrived, this gentleman, Mr. Townsend, already began -- began to suffer his withdrawal problems and he made a request for help and then help was secured and there was no doubt that Dr. Mansfield is a police surgeon.

He attached to headquarters 1121 South State Street.

A suggestion is made here that -- that Mr. Cagney selected the police surgeon.

Well, Mr. Cagney had no other choice.

He has no authority.

He has no budget available to call any doctor.

He must rely upon the medical help that is offered by the police department.

And according to Mr. -- Dr. Mansfield's own testimony, he'd been active since 1940 and apparently been doing quite a bit of work.

Dr. Mansfield came and a gentleman had been told, he diagnosed the case as withdrawal symptoms which arise under the fact that narcotics have left, in the case of an addict, have left the system, the human body and the person needs to more narcotics and he goes into these intense pains.

He gave him a treatment, 1/230 of hyoscine and a 1/8 grain of phenobarbital.

Now, a suggestion or more than a suggestion has been made here by opposing counsel that Dr. Mansfield contradicted himself, but he spoke of grains on emotion the preliminary hearing then he spoke of grams when they were before the jury.

That's the first time I've ever heard that distinction made during the eight years of this case has been in court proceedings.

Justice Hugo L. Black: Do you know what would have happened if they given him the amount of this medicine that is necessary to (Inaudible) that he was given?

I believe it is about 18 times about --

Mr. Edward J. Hladis: That is correct.

Justice Hugo L. Black: -- the normal dose 16.

Justice Felix Frankfurter: 16.

Mr. Edward J. Hladis: That is correct.

Justice Hugo L. Black: 16 at one time.

Mr. Edward J. Hladis: Mr. Justice Black, I tried to catch up on some pharmacology on this but I haven't caught up with that much as I -- I can give you an answer that rapidly as to what the effects would be.

But I dare say that it might be radical, dare say that it would be radical at 16 times because by -- according to the petitioner's own medical authorities, the therapeutic dose is six tenths of a milligram up to a little bit over one.

Now, that's a therapeutic dose, and not a toxic dose and I would say that 16 times 1/230th would exceed by far the therapeutic dose.

And of course, hyoscine perhaps is just like any other drug if it's given in excess just like commercial aspirin can bring on the toxic effect.

Now, coming back to counsel's observation of the claimed discrepancy between Dr. Mansfield's testimony in their preliminary hearing as against the jury the jury -- their hearing before the jury, I have examined rather thoroughly and as carefully as I can and I respectfully suggest that that's a typographical error and the reason that I say it is, if you examine Dr. Proctor's testimony on rebuttal before the jury and the questions as they were propounded by counsel for the defendant in that trial never once that he speak of grams, he spoke of grains all the time.

Justice Felix Frankfurter: Can you tell -- tell us whether in the application to habeas corpus before Judge Igoe, a specific allegation was made that there was administered to the applicant, counsel by a state or a city doctor, the dosage which would have that you call these radical effects.

Mr. Edward J. Hladis: No.

Justice Felix Frankfurter: Is this issue adverted to, however, indirectly but sufficient -- sufficiently so to indicate that's an issue raised namely for one reason or another, the state official, the state doctor administered a toxic producing drug, is that in the application?

Mr. Edward J. Hladis: No, that is --

Justice Felix Frankfurter: The habeas corpus before Judge Igoe.

Mr. Edward J. Hladis: That is not Your Honor.

Justice Felix Frankfurter: If you read it as carefully as any human being could, would it be alluded to the fact that that issue is sought to be canvassed by new testimony?

Mr. Edward J. Hladis: As far as I can determine, no reference has been made to those issue at all and I might say -- I might -- and I think it's consistent with counsel's argument here today, that counsel is very adroitly avoided any issue of dosage.

And they sort move down an area of attempting to convince this Court that the administration of the drug, regardless of the amount, regardless of the dosage per se vitiates the confession.

Well, of course that raises problems too.

Justice Felix Frankfurter: Well that is cheap play, isn't that right?

Mr. Edward J. Hladis: That is right.

Aspirin is a drug too.

Justice Felix Frankfurter: That's the ground on which that Justice Schaffer dissented.

Mr. Edward J. Hladis: That is right.

Justice Felix Frankfurter: That's been an issue in the case from the time it got, certainly as far as the record before me goes, it's been before Supreme Court Illinois in whatever it was 1958.

Justice Tom C. Clark: That's a normal dose.

Mr. Edward J. Hladis: I beg pardon.

Justice Tom C. Clark: That's a normal dose on 16 to one.

Justice Felix Frankfurter: No, no, no.

No, there was no question of dosage before this --

Mr. Edward J. Hladis: He makes no issue of dosage at all.

Justice Felix Frankfurter: (Voice Overlap) indicated that.

Mr. Edward J. Hladis: That's right, and I think that's a fair --

Justice Felix Frankfurter: Along by years, Supreme Court of Illinois has affirmed this conviction, on March 20, 1957.

Mr. Edward J. Hladis: Well of course that raises the question before this Court.

I mean of we pursue the petitioners argument to its conclusion.

Justice Felix Frankfurter: If he's right about this, if it should -- should be so, assuming having no thought of -- but I'm stating, making a prophecy, I haven't view on it, assuming this conviction or assuming that there was an affirmance, that he's right on this issue, he could start all over again in the District Court, the U.S. District Court saying that in fact that now he found out that what he hadn't known before for one reason or another that a toxic producing dosage was administered.

I suppose that can be raised along as (Inaudible)

Mr. Edward J. Hladis: Yes, it could be.

Justice Felix Frankfurter: Well, the state would have to answer and then --

Mr. Edward J. Hladis: Whether it should be or not --

Justice Felix Frankfurter: I'm not suggesting.

I'm not commenting litigation.

Mr. Edward J. Hladis: That's right.

Justice Felix Frankfurter: I have the opposite in this.

Mr. Edward J. Hladis: There's no doubt about it that it could be raised, but I think the approach and the argument would be the same that it's been made to this Court if I remember correctly, since the first petition writ of certiorari was filed.

If you go back to the October term in 1957 when the first petition was filed, you will find that the argument, the materials advanced, the medical authorities are practically identical with those which are quoted in today's brief.

And if you examine the record and particularly Doctor Proctor's testimony, the toxicologist, you'll find that he'd made reference to the identical authorities which are being advanced in today's controversy.

So that the benefit of that knowledge at least, the benefit of that knowledge was presented in all that it's asked, makes to the trial court, not only when the question of competency came up before Judge Walker Butler outside the presence -- presence of the jury but when the question of credibility came up in the presence of the jury.

I'd like to make just one more remark about the question of dosage and the argument as we see it has been leveled primarily at the use of the hyoscine scopolamine.

Judging from the counsel or the petitioner's own medical authorities which he advances in his brief.

As I said before, the normal adult therapeutic dose was somewhere five-tenths to sixth tenths of a milligram up to an over one.

Here, we have less, less than 2900 of a milligram which is almost half or I say half of the normal dose.

Now, the -- there have been several questions raised as the possibility of what would happen if this case got back or if it should go back whether there could be a hearing.

Since the conviction was affirmed on writ of error in the State of Illinois and the petition writ of certiorari was denied here with one Justice dissenting, there's been only one claim that has kept this petitioner alive and has kept his litigation continuing and that is the claim that the trial court was not appraised of the fact that hyoscine was the same as scopolamine and that in fact was used by foreign authorities for truth serum purposes.

Mr. Justice Frankfurter alluded to the order on the writ of error after the post-conviction proceeding wherein that order refers specifically to the point in the state court record and Dr. Hoffman was testifying at that time wherein he said that scopolamine and hyoscine are the same.

However, you examine the cross-examination of Dr. Mansfield from the very beginning, you will know that Mr. Branion knew what he was talking about and Mr. Branion was defense counsel, a man who is today, even today in the pleadings in this Court characterized as able defense attorney.

He knew when he was talking about and he examined Dr. Mansfield thoroughly on questions of truth serum.

That question was presented to the Illinois courts and very thoroughly.

Justice Potter Stewart: This is the same drug that called a “twilight sleeps”?

Mr. Edward J. Hladis: I think it can be use for that purpose, yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Edward J. Hladis: I beg your pardon.

Justice Felix Frankfurter: That is the problem (Inaudible)

Mr. Edward J. Hladis: The dramatic qualities have a reason out of -- from scopolamine, from the extensive use of the drug by the Nazi's during -- during the World War II purposes.

They used it in very excessive dosage for truth serum purposes and very famous movie has been making around with that quite evident.

Of course our position is that we are far below, far below the lethal dose, the normal therapeutic dose in all condition (Inaudible).

I'd like to make two more observations Your Honors and -- and I will close.

Justice Potter Stewart: You talked about -- you talked several times about a normal therapeutic dose.

Therapeutically used this -- this drug is used for the alleviation of withdrawal symptoms of narcotics, is that it?

Mr. Edward J. Hladis: It is a recogni -- it is a recognized treatment for withdrawal.

It's used for other areas and I'm going to get into that very shortly.

Justice Potter Stewart: Are there -- are there --

Mr. Edward J. Hladis: Yes.

Justice Potter Stewart: But how about the normal dose for -- for the purpose of -- the truth serum purpose which is a different purpose from a therapeutic purpose?

Mr. Edward J. Hladis: I -- I examine Mr. Leighton's authorities -- medical authorities and journals very carefully and while all the authorities do not mention that is used there, even though as they do, do not tell you how much you need for a truth serum purpose, in other words to knock a person into a medic state so that he will begin to tell you things which are non-voluntary.

I couldn't find anything in my research as to how much is used or needed in order to bring about that state.

Justice Felix Frankfurter: Did you answer Justice Brennan -- Justice Stewart's question that this is a conventional means of therapy for alleviating withdrawal pain?

Mr. Edward J. Hladis: No.

It is a recognized --

Justice Felix Frankfurter: Well, recognized but --

Mr. Edward J. Hladis: Yes.

Justice Felix Frankfurter: -- but the most recognized.

Mr. Edward J. Hladis: That right.

Justice Felix Frankfurter: The most recognized and certainly, is the dosage -- is the grain dosage recognized as the appropriate dosage --

Mr. Edward J. Hladis: I found --

Justice Felix Frankfurter: -- with that purpose?

Mr. Edward J. Hladis: I found nothing which would prescribe as to what dosage should be used in order to achieve the -- the -- to the alleviation of the pain of withdrawal symptoms.

Justice Felix Frankfurter: You mean this is entirely oral knowledge on the part of doctors?

Mr. Edward J. Hladis: I beg your pardon?

Justice Felix Frankfurter: That this is -- Dr. -- what's his name Mansfield?

That Dr. Mansfield --

Mr. Edward J. Hladis: Yes, Dr. --

Justice Felix Frankfurter: -- gave a dosage which he thought adequate according -- on the basis of his experience, no (Inaudible) has nothing about it?

Mr. Edward J. Hladis: Yes the --

Justice Felix Frankfurter: No medical treaters?

Mr. Edward J. Hladis: Find the author of modern drug encyclopedia and therapeutic index refers to hyoscine or scopolamine is being a recognized treatment --

Justice Felix Frankfurter: But the --

Mr. Edward J. Hladis: -- for the withdrawal symptom but he does not prescribe the dosage.

No, he doesn't.

Justice Felix Frankfurter: But -- but on the question of dosage, the propriety -- the medical propriety of the dosage given for this purpose as against truth of visitation canvassed at the trial?

Mr. Edward J. Hladis: I would say that it was, yes.

Justice Felix Frankfurter: Well, then --

Mr. Edward J. Hladis: Dr. Mansfield was cross-examined very thoroughly on that question and Dr. Proctor, the toxicologist from Loyola University who testified on behalf of the defendant, was allowed to answer very extensely -- extensively a hypothetical question which went into these areas.

Justice Felix Frankfurter: Well, did -- did the Loyola expert indicate that this dosage was not a therapeutic dosage but illicit -- not an illicit but a truth evoking dosage?

Mr. Edward J. Hladis: What the Loyola expert said was that -- he thought that the injection or the dosage of the hyoscine was normal and he thought that the --

Justice Felix Frankfurter: Normal for the purpose of therapy?

Mr. Edward J. Hladis: No, he just said the normal dosage --

Justice Felix Frankfurter: Normal?

Mr. Edward J. Hladis: -- normal adult dosage and he thought that the injection, the phenobarbital was below normal and on the basis of the hypothetical question which of course related to this defendant, he thought that that would create an amnetic condition, create amnesia.

Justice Felix Frankfurter: Because of the physiological constitution of Townsend, is that it?

Mr. Edward J. Hladis: That is correct.

That is correct.

And of course --

Justice Felix Frankfurter: Now there was an examination and cross-examination of this at the trial?

Mr. Edward J. Hladis: Oh, yes.

Justice Felix Frankfurter: On the suppression issue (Voice Overlap)

Mr. Edward J. Hladis: Oh, yes, both the suppression and on the --

Justice Felix Frankfurter: And on the main trial?

Mr. Edward J. Hladis: And on the main trial, you see because in Illinois Your Honors, you probably remember we have the suppression first, the competency then you go to the jury on the question of credibility.

Justice Felix Frankfurter: This is all canvassed at both decisions?

Mr. Edward J. Hladis: Oh, yes.

Justice Felix Frankfurter: Were you -- the -- you take part of the hearing before the Supreme Court on appeal.

Are you in that date?

Mr. Edward J. Hladis: No, sir.

I didn't have it.

Justice Felix Frankfurter: Have you looked at the briefs before the Supreme Court?

Mr. Edward J. Hladis: I looked at them --

Justice Felix Frankfurter: All I want to know is whether this issue was raised before the Supreme Court in which your Court decided that it is with Justice Schaffer finding that the administration of this as such rather than the -- that was the dosage factor, or (Inaudible) an issue before that Court?

Mr. Edward J. Hladis: As I read the opinion of the per curiam which is the majority representing five men, my reaction to it is that it is, that it has been canvassed and they did consider it and it's well to remember that it can escape one when you begin reading a decision.

A petition for rehearing had been granted in that case, that is the second opinion, the one that now appears in (Voice Overlap) Illinois second.

Justice Felix Frankfurter: But they -- they first disposed it on per covered on opinion I gather, wasn't it?

Mr. Edward J. Hladis: No, I doubt very much.

Justice Felix Frankfurter: There is no opinion -- no first opinion in the books, isn't it?

Mr. Edward J. Hladis: That's right that that it's a -- it's a matter practice, sir because if a petition rehearing is granted, the first is not printed but it is the second which is printed.

Justice Hugo L. Black: Is this hyoscine commonly known or called the truth serum?

Mr. Edward J. Hladis: No, no, it's called the hyoscine scopolamine.

Justice Hugo L. Black: Is it called that in criminal investigation?

Mr. Edward J. Hladis: I believe oppo -- I believe opposing counsel is referred to one article, one law review article which refers to the use of that drug for truth serum purposes.

Justice Hugo L. Black: What is the truth serum (Inaudible) What is used, do you know?(Voice Overlap)

Mr. Edward J. Hladis: Sodium pentathol is one that is used.

Justice Hugo L. Black: Pardon?

Mr. Edward J. Hladis: Sodium pentathol is a truth serum.

Justice Hugo L. Black: That's one?

Mr. Edward J. Hladis: That is one, yes.

Justice Hugo L. Black: Is it used -- what are purposes that hyoscine used for that you know off?

Mr. Edward J. Hladis: The two use --

Justice Hugo L. Black: Can it be used in child birth?

Justice Felix Frankfurter: Yes.

Mr. Edward J. Hladis: Yes, there -- it's used by eye doctors for the purposes of developing a cycloplegia --

Justice Felix Frankfurter: What does that mean in English?

Mr. Edward J. Hladis: I beg your pardon?

Justice Felix Frankfurter: What does that mean in English?

Mr. Edward J. Hladis: As you move objects particularly close, your eye, the side, the ciliary muscles they called it, have the facility of focusing rapidly, in other words so you don't have to wait a while.

Now, the problem is when you're go into an eye doctor for an examination, the distance doesn't bother him, it's to keep that eye stable while he's working on you so they have medication prepared which has hyoscine in it, the function of which is to paralyze those two muscles on the side to stop that accommodation and that's the reason after nine examinations, you have vomits for a few hours and the problem is this.

You cannot see close but you can see far.

Now, going back to this case --

Justice Hugo L. Black: What's the purpose of its use in child birth (Inaudible)

Mr. Edward J. Hladis: I went over rather hurriedly, sir and I -- I don't -- I -- I don't want to venture an opinion as to what its use is.

Justice Hugo L. Black: Pain reliever?

Mr. Edward J. Hladis: It would be in something in that area but I'm not too positive of that.

Now, another area that is used is in preanesthetic treatment.

The -- the medical books tell you that hyoscine operates immediately, immediately at the -- the very threshold.

Here, in the salivary glands and that is why hyoscine is used in medication for preanesthesia to dry up these glands here to prevent the flooding of your lungs while you're under a long period of surgery.

The medical books tell us that.

Those are advanced for the petitioner.

Dr. Proctor testified to that.

Now, what did Mr. Townsend said.

He never complained.

Now, here is a person, mind you that is claiming that a drug was given to such an extent that it affected the nervous system to the point of rendering in -- incapable of voluntary action.

We have these two factors which become operative almost immediately and still, he said nothing about the drying of the throat or the drying of the lips or the mouth.

And when he came to his testimony as to how he saw, he testified that he had trouble with his vision.

What was his problem?

He couldn't see far.

He saw close alright, but not far which was the exact contrary, the exact opposite as to what this drug should do.

Justice Potter Stewart: Well, that's really -- your probing too much.

Now, because you do conceive that this drug was administered, don't you?

Mr. Edward J. Hladis: Oh, yes.

Justice Potter Stewart: And what you're saying now would show that it hadn't been administered at all.

Mr. Edward J. Hladis: Not necessarily.

Justice Potter Stewart: Just that the dosage was very small?

Mr. Edward J. Hladis: That is right.

Justice Potter Stewart: That's your point.

Mr. Edward J. Hladis: That is right.

Justice Felix Frankfurter: I notice -- looking at your table -- the book you cite, the authorities, citations.

I find no reference to any of the literature and I knew about it but many years ago even then, there was already a large body of literature dealing with criminal investigations including the various drugs that are used etcetera, etcetera.

Was that covered in Chicago in the Northwestern University in (Inaudible)

Mr. Edward J. Hladis: Yes, right in (Inaudible).

Justice Felix Frankfurter: He got a book on criminal investigation, are there books that deal with this problem?

Mr. Edward J. Hladis: They do in the general area, Mr. Justice Frankfurter and I gave a lot of thought as to how --

Justice Felix Frankfurter: This is the -- this -- under -- at least relatively recently, there's a much heavier literature on the continent in England than there is with us.

But now, several institutions, they got professors of what called forensic medicine dealing with these problems.

Now, they thought these problems or haven't they been examined which --

Mr. Edward J. Hladis: They have not been examined and for this reason.

As I was going to tell you just a minute ago sir, I gave a lot of thought to the question as to how far we would go in our exposition of the matter.

Then we thought and we finally reached a conclusion that on the basis of the petition and the argument as it was made by the petitioner that we were dealing actually here for the question of fact as it was presented by the state court record.

In --

Justice Felix Frankfurter: Yes, but -- but in effect, what Mr. Leighton, he will correct me if I misinterpret him, in effect, Mr. Leighton says that we may take judicial notice which we -- we may inform ourselves by sources other than human testimony at the trial or any of the proceedings that we may inform ourselves on the basis of scientific data with a lot of books, we've established that, would be recognized that the effect of this drug is essentially to put the human being to sleep.

As I understand it, that his position, isn't it?

Mr. Edward J. Hladis: I would --

Justice Felix Frankfurter: Sufficiently -- sufficiently to sleep so that what emanates from the mouth, hasn't the attendant mind behind it.

Mr. Edward J. Hladis: I would -- with your permission I would withdraw the adverb essentially or not even substitute primarily like I will concede that even on the basis pr perhaps the authorities advanced by Mr. Leighton that that condition can be induced with a cer -- with sufficient doses.

There's no doubt about it.

Justice Felix Frankfurter: Oh, certainly.

Mr. Edward J. Hladis: But of course, it is our position that no --

Justice Felix Frankfurter: Even so as -- so as toxic quality with the treatment of these many dosages.

Mr. Edward J. Hladis: That's right.

Justice Felix Frankfurter: So that's talking about poison, doesn't say much.

And what you're -- are you saying then that -- that granting that this drug has potentialities of sustaining the claim he makes, the potentialities turned into reality only on proof that the dosage was of such a quantity that it did have that effect.

That's your position, isn't it?

But if -- if it was given with a truth serum, it was given with a dosage that would have this paralyzing -- mentally paralyzing or will paralyzing effect then the confession is (Inaudible) and what you say is that, if I follow you, that this issue was canvassed in state courts and -- and the -- there's no basis on this record for finding it.

Mr. Edward J. Hladis: That's right.

Your Honor, if that --

Justice Felix Frankfurter: That's why you say he goes beyond that and you say that this Court may -- may as to the matter of judicial notice find and conclude that the effect of this drug is inescapably to paralyze the will or freedom of the words.

Mr. Edward J. Hladis: Well, the evidence is to the contrary to trial and as to your second question, Your Honor, if that were the case, I assure you, we would not be here this morning because no confession would have been taken in that condition existed at that time.

In other words, if the dosage had been so great as to paralyze the -- the man's mental abilities.

Justice Felix Frankfurter: The issue -- the issue really is that -- I -- I feel that my job is to go and look up all the books on toxicology, forensic medicine, etcetera, etcetera and find out what is their basis for my concluding that in fact, this drug cannot be administered, that there isn't an innocent dosage of this drug so far as keeping the will and the mind free.

That's really what the issue is intended means.

Now, what about, it hasn't been dealt with, there were subsequent confessions.

How long -- how long -- assuming the drug does operate, the way Mr. Leighton contended operates, how long is that such a numbing effect lasts?

Mr. Edward J. Hladis: According the defendant's or petitioner's own tes -- witness, five to eight hours.

Justice Felix Frankfurter: Five to eight hours.

Now, were there confessions after that?

Mr. Edward J. Hladis: Well, he signed a written confession the following afternoon about 1:00 which would bring us in 1, 12, 13 hours later, that was on Saturday, sometime, he was taken over at one this happen in the afternoon at State's Attorney's Office and then the following Monday, at the coroner's inquest, he admitted the Boone murder orally.

Justice Felix Frankfurter: If the -- the state claim -- what is the state's provision as to the independent validity of those confessions?

Mr. Edward J. Hladis: We say they are valid.

Justice Felix Frankfurter: What?

Mr. Edward J. Hladis: We say they are valid as we say the written the confession is valid.

Justice Felix Frankfurter: Yes, but assuming -- assuming the first confession was invalid, can the subsequent confessions, pieces of paper amounting to confessors so far as the words go, can they have testimony of validity considering the fact that they were reproductions of the original, for the purposes of my question, original invalid confessions?

Mr. Edward J. Hladis: As to the confessions -- or let me put this way, as to the act of signing the confession on Saturday afternoon, the one that was taken to previous Friday, some 13, 14 hours after the drug had been administered, I say that that would be admissible, for this reason, that it was not a mere act of signing.

The evidence at the trial will show that Mr. Townsend was given a copy of the confession and he followed as the confession was read aloud to him and he followed it page-by-page and signed it.

And by the testimony of his own witness, the drug, if it had any detrimental, any radical effects had already spent itself we say --

Justice Felix Frankfurter: But he was confronted with something that he confessed to, that what was if you please, extorted from him by virtue of this drug which was an illegal intrusion into his rights.

And therefore, he is already even confronted with something that might be used against him (Inaudible) what Court will decide, so (Inaudible) to say that -- that that considered adoption of the earlier confession even if dependant act on his part admissible as such.

Mr. Edward J. Hladis: Expect this, Your Honor, if that -- that might be true if there were just a mere of act of signing, but the fact that you take the petitioner through and explore every area of the confession, if he didn't remember having given that confession the night before, he could always say, “Why?

This isn't mine.

I never did this” and refuse to sign it, but in spite of that, he did sign it.

Justice Felix Frankfurter: Was he -- was he cross-examined as to the circumstances -- regarding the circumstances of this second piece of paper where the signature is acknowledged?

Mr. Edward J. Hladis: Yes. Yes.

Justice Felix Frankfurter: What was his testimony as to the circumstances under which he signed, this being twelve or thirteen hours after the effect of the drug was drawn?

Mr. Edward J. Hladis: His testimony was that he felt much better, but he was still oozy that in general is his -- is his testimony, but he remembers being taken over the State's Attorney's Office and, he -- he felt oozy.

I might add, and of course, it's brought out in our brief on his question of amnesia, during the first trial, the Stinson trial, the petitioner had testified that he remembered, the assistant taking the confession from him, the signed statement on Friday night whereas in the second trial, he may have -- made a claim that he didn't remember anything and, of course, that was brought up by way of impeachment.

Lest you gentlemen, may wonder precisely why you -- you have a taking of the confession in the one night and assigning the following day, gentlemen, there -- there's -- it's a matter of mechanics.

The court reporter has no typewriter with him, and he has to go to the office the first thing in the morning and he transcribed his notes and that is the usual manner and that's why signing will take place sometime a day later.

You have to give him time to transcribe.

Justice Felix Frankfurter: So this was merely a -- a transcription from the stenographic notes, is that it?

Mr. Edward J. Hladis: That is correct.

Yes.

That was the oral -- the confession that was given and it was (Inaudible) the writing.

And -- it is a matter of practice.

We take the man through it again, step-by-step and make sure he understands it.

Chief Justice Earl Warren: Mr. Hladis, what -- what is your response to Mr. Leighton's argument on these other murders that he was supposed to have committed?

Mr. Edward J. Hladis: Well, on the Stinson murder, I think it's fair to say that everybody was surprised and particularly defense counsel because the coroner's inquest record is here.

They not only had the petitioner's statement, they had the coat of the decedent, they had the watch of the decedent and the shoes of the decedent which that -- Townsend had sold to somebody else and they wound up, one on the pawnshop and -- all were recovered.

In spite of that, the man was acquitted.

I think it's -- it's an interesting commentary in the face of that evidence, a man can still -- he's given a fair trial and if there -- there's a feeling among the jury that he wasn't proven beyond a reasonable doubt for some reason or other, he will be acquitted.

On Thompson, no statement was taken at all.

Chief Justice Earl Warren: No what?

Mr. Edward J. Hladis: No statement was taken on the Thompson death at all and the reason that it wasn't taken was that the Assistant State's Attorney experienced the same problem with Thompson on Friday night that the coroner did the following Monday.

All he could say is, “I could have.

I could have done it but I don't remember.”

And the Thompson inquest, if I remember correctly, is the one wherein he admitted that he had slugged, if you will, at least 10 people with a brick as he came up usually from behind and then attack them.

The Johnson -- Johnson as the gentleman, who was struck, got up -- he was found outside, got up stairs to his flat and was taken to (Inaudible) and then eventually to Cook County where he died.

He is the gentleman that had stopped off for drink and all he would say, “It was just one of those things.

It was an accident.”

We don't know.

We don't know because Mr. Johnson is not here whether he saw his assailant.

I have tied to analyze the coroner's pathological report and as I get it, the -- the blow must have come in this area here, happened in the evening or in the dark and to use a vernacular, it might be just one of those cases where a person did not know what hit him that brought his attack.

A statement was given on that as to how valuable the statement would be if it were admitted, how valuable -- valuable it would be for the purposes of trial, I don't know.

There were two additional statements were given.

Those are here, also, in support of the additional answer, those are the statements of Mr. Martin, the laundryman, and Mr. Anagnost, the insurance man.

Mr. Anagnost is the man who remember who was at the police station on Friday night and they had to show-up.

And there's no doubt, he identified the wrong person.

And there's been a quarrel in this record as to whether some of the cops began drumming the insurance man and telling him, “Well, you talked -- you identified the wrong man” and that's been denied. However, the Anagnost statement was the first statement that was taken at which time Mr. Townsend admitted that he had assaulted him and robbed him of some $110, I believe.

Mr. Anagnost was an insurance man of the Metropolitan Insurance Company.

The important thing about it is that Mr. Anagnost was brought in to the room there and Townsend identified him and Mr. Anagnost never denied when that statement was being taken that you've got the wrong man.

Those, Mr. Chief Justice, are my explanations.

I -- as I've said before, the -- the strongest case by far was the Stinson case and still it's -- did not come about that way.

Chief Justice Earl Warren: May I ask this, I don't know if that bears at all, but you said there were some 10 people who were hit with a brick in this way.

Did any of them positively identify this man as the one who -- who had struck him?

I don't know that it's material but --

Mr. Edward J. Hladis: I don't know --

Chief Justice Earl Warren: -- why don't -- why don't -- don't bother.

Mr. Edward J. Hladis: Anagnost is the closest in the sense that he did not deny when he was brought in.

Now, there maybe records back.

There were going back to 1954, Your Honor --

Chief Justice Earl Warren: Yes, yes.

Mr. Edward J. Hladis: -- and they're -- and maybe Martin was brought in.

I do not know.

Chief Justice Earl Warren: Question probably shouldn't had been answered at all, so it's alright.

So it's alright.

Mr. Edward J. Hladis: Oh, that's quite alright.

Well, thank you very much, gentlemen.

The questions that were asking, I'm sure the issue would have been explored very thoroughly.

Chief Justice Earl Warren: Mr. Leighton.

Rebuttal of George N. Leighton

Mr. George N. Leighton: Mr. Chief Justice, may it please the Court.

I'd like to clarify the question concerning office of Corcoran's testimony.

It has been gone into, I'll touch upon that briefly.

Chief Justice Earl Warren: Mr. Leighton, may I ask just one question and --

Mr. George N. Leighton: Yes, Your Honor.

Chief Justice Earl Warren: -- I will -- I'll try not to bother you the rest of your -- rest of your time.

As I understand that the theory of your case is that -- that this so called normal dose, if it -- if it was a normal dose, has he test -- doctor testified at one time in the -- in the proceedings was in and off itself sufficient to destroy this man's resistance to -- to question.

Now, if we accept that as a fact, what would 16 times that dose do to -- to him, and his mind?

Mr. George N. Leighton: Your Honor, as I understand it, it would have produced the kind of amnesia condition which he himself described as I understand from the pharmaceutical --

Chief Justice Earl Warren: It -- it would not have been -- it would not have been 16 times, that normal dose would not have been enough to kill him or to paralyze him or to -- to make him entirely non-compos?

Mr. George N. Leighton: It would not have done that, Your Honor.

Chief Justice Earl Warren: It would not have done that?

Mr. George N. Leighton: Not from my knowledge of the subject.

Justice Hugo L. Black: Does the evidence show that?

Mr. George N. Leighton: Well, if Your Honor please --

Justice Hugo L. Black: In one way or the other?

Mr. George N. Leighton: -- there is in the record, luckily, for us, there is in the record, in the typewritten proceedings in the district -- in the trial court, there is, luckily, on pages -- I like to find it exactly, at the last part of the typewritten record, there was a tender of proof made concerning the effects of hyoscine and the therapeutic dose.

And those pages are pages 1187 to pages 1191 and the therapeutic dose of hyoscine is given there and incidentally --

Chief Justice Earl Warren: Who -- who's testifying?

Who's testifying that?

Mr. George N. Leighton: That was a ca -- in the instance in which this -- the defense attorney, Mr. Branion, read out of a book he had in his hands which is -- was considered by him as being authoritative.

Chief Justice Earl Warren: Yes.

Mr. George N. Leighton: I find that portion of the record consistent with the authorities that we relied upon concerning this drug and I might say to Your Honors that according to my research, the outstanding pharmaceutical authority in this field is Goodman & Gilmore.

We have cited that and my inquire --

Justice Hugo L. Black: What was the name?

Mr. George N. Leighton: Goodman --

Justice Hugo L. Black: Lukeman?

Mr. George N. Leighton: Goodman & Gilman and the name of the book is “The Pharmacological Basis of Therapeutics.”

I am advised by doctors and pharmacologists that Goodman & Gilman is considered the bible of pharmacologists and doctors in this particular field.

And they give a very nice description of the effects of hyoscine, its history, its use and how it's been used both in therapy and in criminal investigation and this portion of the record is consistent with Goodman & Gilman.

It's consistent with the other authorities we've cited and relied upon, the British Pharmacopoeia, the epiphany of -- of Pharmacopoeia of the United States, (Inaudible) Henry, “The Plant Alkaloids” and other which appear in the index to our brief.

I found it necessary to add an appendix to this brief, which, I think, is an answer to a question of Mr. Justice Frankfurter.

There is a vast amount of literature on the use of hyoscine and scopolamine in criminal investigation both in this country and in Europe.

And that appendix appears on pages 33, 35 of our brief and it is by no means exhaustive.

Scopolamine has been used in taking confessions from persons in arrest beginning around 1922.

And the article which is most informative on this subject is an article that appears in the 18th Texas State Law of General Medicine, page 231, published in 1922 which gives the experience of a doctor in Texas whose name escapes me right at this moment but who was the origin -- who really originated the idea of the use of hyoscine and scopolamine in criminal investigations.

It was he who discovered that upon the injection of a sufficient dose of hyoscine to a woman in the birth stage, she lost contact with the actual functions of the ovary muscles and other portions of the female body that gave birth to children and it put her in what was then colloquially described as “twilight sleep” so as to aid the birth process without pain.

That use had been discontinued medically because it has other deleterious effects on women and -- and that has been the history of the drug in that regard.

Now, if Your Honors please, I was going to go back to officer Corcoran's testimony.

And I wish --

Justice William O. Douglas: Some -- some of the literatures shows very slow degree of success of getting a confession.

Mr. George N. Leighton: That is true because the -- the success -- to me, there was successful, if Your Honor please, it also had other effects.

The -- the drug had other effects.

For example, in some cases, it would put the subject into delirium and the presence of pain and many other physiological factors were important.

It isn't -- it hasn't been successful but there was an intensive investigation and experiment into this field and it was thought at the time, they had an answer to criminal investigation.

There were some people who thought it was really the answer to the whole subject.

Justice William O. Douglas: I do know that the French used quite extensively.

Mr. George N. Leighton: The French used it and we cite (Inaudible)

Justice William O. Douglas: Yes.

Mr. George N. Leighton: -- drugs under mind.

Justice William O. Douglas: That -- that work says if the French courts have not admitted any confessions obtained --

Mr. George N. Leighton: That's right.

Justice William O. Douglas: Is that -- is that true?

Mr. George N. Leighton: That's fairly correct.

They experiment a great deal about it. (Inaudible) Gagnieur, the judicial views of psych -- psychoanalysis and -- Psychonarcosis in France, extensive literature on the subject and the use of the word “truth serum” came out of this -- this period of -- of history of the drug.

Justice Potter Stewart: Wasn't it true -- doesn't the -- doesn't some of this clinical scientific material show that -- that far from eliciting the truth, it often elicits delusionary telling?

Mr. George N. Leighton: That's right, Your Honor.

That's the reason why the experiment thought to be unreliable.

Justice Potter Stewart: Right.

Mr. George N. Leighton: And it would produce halluci -- it produces hallucinations in the subject --

Justice Potter Stewart: Correct.

Mr. George N. Leighton: -- so that the product was not reliable.

Now, I did want to touch upon Officer Corcoran, if I may, Your Honor.

Chief Justice Earl Warren: Yes.

Go ahead, (Voice Overlap)

Mr. George N. Leighton: I think it's important.

I called Your Honors' the fact this trial to two parts, the hearing to suppress and before the jury.

Officer Corcoran testified on the hearing to suppress then his testimony appears in the typewritten record on pages 465 and to the end of this cross-examination on page 495 of the typewritten record and I invite Your Honors' attention to significant fact at no time did he say anything about hearing Townsend make an admission.

It wasn't until he testified in the case in chief that suddenly, quite surprising to the defense counsel and it's in the record, on pages 644 onward, that he, for the first time, mentioned that he heard Townsend say to Cagney, “Not that I killed Jack Boone.”

He heard Cagney -- he's heard Townsend say to Cagney that he -- he struck a man in a passageway on 38th Street in Michigan.

For the first time before the jury, Corcoran testified.

Now, Your Honors, I submit either that he had never heard that testimony or someone thought of the ingenious notion of not saying anything about it to advise defense counsel and then put him on as the first witness in chief and that's what they did to testify to this alleged admission.

Now, Mr. Hladis' penology of event is somewhat contradictory because according to Corcoran's own testimony, this happened after the shot.

According to Cagney's short aft -- was -- was had after 8:30.

Janega says, he received a call at 8:35.

So, according to Corcoran, at the time that he heard this petitioner say this, Janega already had been asked to come to the station.

Chief Justice Earl Warren: What -- what was that, he already what?

Mr. George N. Leighton: Janega already had been asked to come to the station at the time that -- that Corcoran heard this alleged admission.

Chief Justice Earl Warren: Yes, yes.

Mr. George N. Leighton: You see.

Now, so that -- and -- and significantly, Officer Cagney who was carrying the bulk of this investigation and I invite Your Honors' attention to all of Cagney's testimony, at no time does Officer Cagney say that he heard this petition to make an oral admission.

Now, I had several other points that I want to cover and I -- I regret the -- the inability to touch upon it promptly, but, with regard to Dr. Proctor's testimony, Dr. Proctor's testimony was, and he is an expert, an expert pharmacologist, he answered the -- the hypothetical question to the effect that this dose, which this doctor gave this man, taken into account his condition as a narcotic addict, his pain, his suffering that that amount of drug would have produced the condition which this petitioner described and would have been amnesiac with regard to his remembrance exactly what happened and would have had the effect of reducing his capacity to resist interrogation.

Now, I think Your Honor -- Your Honors have understood the point.

Justice Felix Frankfurter: Mr. Leighton, have you availed of those briefs that were submitted to the Supreme Court of Illinois limitations are?

Mr. George N. Leighton: I have one bound copy.

I would be very happy to make that --

Justice Felix Frankfurter: (Inaudible) file with the clerk (Inaudible)

Mr. George N. Leighton: I -- I will do so.

In view of this -- this question, Mr. Chief Justice, may I request to the Court an opportunity to file a supplemental memorandum which will include the pages which are asked, I believe, by Mr. Justice Harlan and would be very short and I could do it very promptly and I have the means of duplicating its sufficient copies to distribute to the Court, a supplemental memorandum following oral argument if I may.

Chief Justice Earl Warren: You may and you may supply any such memorandum which you may desire Mr. Leighton.

Mr. George N. Leighton: And that will include, as Mr. Hladis kindly reminded me, to include a request that I correct also a page in the petitioner's brief where, unfortunately, the same -- typographical error occurs with regard to gram and grain on page 21 and I'll do that by way of the memorandum.

Chief Justice Earl Warren: Very well.

Mr. George N. Leighton: Thank you and I thank the Court.

Chief Justice Earl Warren: Mr. Leighton, do I -- I understand you took this case by assignment from a court.

Mr. George N. Leighton: I did, Your Honor.

Chief Justice Earl Warren: Well, I -- I would thank you on behalf of the -- of the Court for the public service that you rendered to this indigent defendant.

We're always comforted by the fact that lawyers are willing to undertake such assignments and, Mr. Hladis, I want to thank you --

Mr. George N. Leighton: Thank you.

Chief Justice Earl Warren: -- for the very frank manner in which you have dealt with the Court and for the vigorous manner in which you have supported the judgment to be heard in the state courts.

Rebuttal of Edward J. Hladis

Mr. Edward J. Hladis: Thank you very much, Mr. Chief Justice.

Rebuttal of George N. Leighton

Mr. George N. Leighton: Thank you.

Rebuttal of Edward J. Hladis

Mr. Edward J. Hladis: First time of that the privilege to be before this Court and I certainly appreciate your courtesy.

Chief Justice Earl Warren: Very well.

Mr. Edward J. Hladis: Thank you, thank you.

Print this transcript Transcript:

Argument of George N. Leighton

Chief Justice Earl Warren: -- Petitioner versus Frank G.Sain, Sheriff of Cook County.

Mr. Leighton you may continue your argument.

Mr. George N. Leighton: Mr. Chief Justice, may it please the Court.

At the time of adjournment yesterday, I was answering a question of Mr. Justice Goldberg with regard to the events on the occasion of the coroner's hearing of January 4.

I was at the point of saying Mr. Justice Goldberg that with regard to the inquest into the death of Thompson when the deputy coroner asked the petitioner about this particular incident.

He asked him where he was in the night in question.

Townsend answered that he was in the vicinity of 35th in Giles in the City of Chicago.

Now, it happened that the coroner knew that the body of the decedent was found at 47th in Wabash and the coroner turned to the police officer and said, “You must have the wrong man.”

At that point, the investigating officer turned to Townsend and all these facts are in the coroner's minutes now before the Court as part of their response to paragraph 18 of the petitioner's habeas corpus.

The officer then turned to Townsend, began jogging his memory as to some conversation the officer had with Townsend prior to the inquest and I remind Your Honors that the origin of this dispute in the record arose because Townsend had said that what he had said in the coroner's hearing was what the officer had told him to say.

When the interrogation continued, the deputy coroner turned to the officer and said, “Look, you must have the wrong man”.

At that point, the officer said to the coroner, “Well, we can go out and get these guys.

They have their patterns.

Why shouldn't we get credit for these cleanups?”

In other words, he was saying to the coroner that this being the first time we're here this year, we're cleaning up some unsolved murders of 1953 and this petition appears to be as good as an individual clean up the record with as anyone else.

That's all part of the record now when Your Honors request the respondents to specifically answer paragraph 18 for petition for habeas corpus.

Chief Justice Earl Warren: Is he represented by counsel then?

Mr. George N. Leighton: He was not, Your Honor.

It was not the practice in Cook County to require counsel at coroner's hearings although it is the practice for defendants to be confronted with what they say or not say at the coroner's hearing.

Now --

Justice Potter Stewart: -- at the subsequent criminal trial?

Mr. George N. Leighton: That's right Your Honor, at the subsequent criminal trial.

Justice Potter Stewart: This can be introduced in evidence against them or --

Mr. George N. Leighton: Or he --

Justice Potter Stewart: -- that will be used for cross-examination?

Mr. George N. Leighton: That's right.

Justice Potter Stewart: Which or both?

Mr. George N. Leighton: No, the cross-examination.

If he doesn't testify, it is not admissible if he doesn't testify.

But if he does testify as did the petitioner here when he tried to show what happened.

Justice Potter Stewart: Then any prior inconsistent statement --

Mr. George N. Leighton: That's right.

Justice Potter Stewart: -- can be used by the prosecution in (Voice Overlap).

Mr. George N. Leighton: That's right, Your Honor.

Justice William J. Brennan: What is this coroner's hearing state?

Is this something special or -- what's its nature anyway?

Mr. George N. Leighton: It is just the nature, Your Honor, to determine how the decedent came upon his death.

It's the ancient and classical coroner's inquest inquiring to the cause of death.

Justice William J. Brennan: And is it formal like this all the time?

Mr. George N. Leighton: It is.

It's a very important part of the criminal proceedings in Illinois.

Now, a great deal has been made, if Your Honor's please, to the insistence of the petitioner in this Court to make reference of these confessions and we are told by respondents of this Court that we have taken an inconsistent position in asking Your Honors to consider these confessions while we sought to object to them in the trial court.

And since the objection has been made so extraneously, I have taken your case to go back and look to the record which I asked Your Honors to examine.

On page 55 of the common law record of capital A which is the proceedings in the criminal court appears a motion made on February 9, 1955 by this petitioner, asking the Court to direct the state attorney of Cook County to furnish him with all the copies of the confessions taken from him on January 1, 1954.

That motion was denied at the outset of the trial.

It happens to be the law in Illinois today that a defendant who confesses to a crime upon his being arrested is entitled upon arraignment to a copy of his confession.

In 1955, the law was just a reverse.

It was the practice in Cook County not to let a defendant see a copy of his own confession until he came to trial and it was the result of the activities of the defense bar in Cook County that in 1955, Section 729 of Chapter 38 was amended to provide the law as it now exist.

But in 1955 when this petitioner came to trial, the law was that he was not entitled to these copies of his confession and when he made the request by motion of his counsel, he was denied the copies of the confession so that if this motion had been granted, we don't know what defense counsel would have made of these confessions.

These confessions were denied the petitioner by the trial court so it isn't true that the defendant --

Justice Tom C. Clark: (Voice Overlap) the inquest?

Mr. George N. Leighton: Sir?

Justice Tom C. Clark: Were they available as part of inquest?

Mr. George N. Leighton: Yes, Your Honor.

They were available in the sense that that police had them in their possession.

Justice Tom C. Clark: You mean they -- weren't they recorded there?

Mr. George N. Leighton: No, they were not, Your Honor.

Justice Tom C. Clark: I thought you said that the policeman said something about an order to clean up.

Mr. George N. Leighton: Yes.

You see, Your Honor on January 1, the petitioner had been interrogated at the police station after this drug injection.

They had five confessions he had given, a five felonies, three --

Justice William J. Brennan: Were these five separate confessions or just a confession to five murders?

Mr. George N. Leighton: No, five separate confessions taken each individually each time and the respondents have told Your Honors that they are all separate confessions taken of separate different crimes and given all at one time while he sat there soon after drug injection.

Within a few minutes -- I think five minutes or ten minutes.

Prior to that, he said he wouldn't talk to anybody.

Now --

Justice Tom C. Clark: At the inquest, did they point out the names of the persons who he was accused of murdering?

Mr. George N. Leighton: Yes –- yes, Your Honor.

Justice Tom C. Clark: Did he confess?

Mr. George N. Leighton: Yes, Your Honor.

Justice Tom C. Clark: I know you have that information.

Mr. George N. Leighton: Yes.

And the instant thing, Your Honor, Mr. Justice Clark, that with regard to the death of Thomas Johnson, they have the confession.

They have the confession already but by the time of the inquest, he couldn't repeat.

You see, the drug had worn off.

He couldn't repeat what he had said so they were trying to jog his memory with the dispute generating between the police officer and the coroner which is shown in the coroner's minutes.

So that the police, in answer Your Honor's question, the police did have these confessions then but it is not the practice as I'm committing with it of the police producing the confession.

They hold those confessions you see, until the time of trial as a practical matter.

Justice Tom C. Clark: (Voice Overlap) was they knew the names of the victims?

Mr. George N. Leighton: Oh, yes.

Justice Tom C. Clark: The counsel did.

Mr. George N. Leighton: Yes.

The --

Justice Tom C. Clark: Townsend's counsel did.

Mr. George N. Leighton: No.

Not Town -- Townsend didn't have any counsel.

Justice Tom C. Clark: Well, it's in the record, wasn't it?

Mr. George N. Leighton: No, Your Honor.

At the time of the inquest, counsel had -- there was no attorney there for Townsend.

Justice Tom C. Clark: I understand you said a few minutes ago that it introduced the record of the inquest in the trial.

The counsel would have it then, wouldn't it?

Mr. George N. Leighton: No, Your Honor.

They didn't introduce the inquest of the other homicides at the trial.

They didn't do that.

Justice William J. Brennan: As I understood it, unless Townsend took the stand to this trial, the minutes of the inquest could not be used --

Mr. George N. Leighton: That's right.

Justice William J. Brennan: -- by the state.

Mr. George N. Leighton: That's right.

Justice William J. Brennan: It's only on -- for cross-examination if Townsend had taken the stand and he didn't.

Mr. George N. Leighton: And he did.

No, Your Honor.

Justice William J. Brennan: Oh, he did?

Mr. George N. Leighton: Oh he did.

You see --

Justice William J. Brennan: And they did use them --

Mr. George N. Leighton: Yes.

They did use them to impeach him.

Justice William J. Brennan: I see.

Justice Tom C. Clark: All available.

Mr. George N. Leighton: They were available insofar as the minutes were relevant to his cross-examination.

Justice Tom C. Clark: Whenever he said an inquest was not available, wouldn't he, whatever the officer said.

Mr. George N. Leighton: That is true.

Justice Tom C. Clark: Well, they could have shown the victims' names.

Mr. George N. Leighton: That's right.

Justice Tom C. Clark: Now in the post-conviction, was this canvassed on the post-conviction hearing?

Mr. George N. Leighton: Yes, Your Honor.

Justice Tom C. Clark: All of his confessions you have amend -- the law you have amend.

Mr. George N. Leighton: I represented him in the post-conviction.

I didn't represent him in the original --

Justice Tom C. Clark: Did you have him at that time?

Mr. George N. Leighton: I had access to them -- I had access to the coroner's minutes and the post-conviction petition was based upon the very point that I make here.

Justice Tom C. Clark: Did you raise the point of the other confessions?

Mr. George N. Leighton: Yes, I did Your Honor.

Justice Tom C. Clark: They held against you.

Mr. George N. Leighton: And they ruled against me.

Justice Tom C. Clark: The Supreme Court affirmed.

Mr. George N. Leighton: And the Supreme Court affirmed.

They rejected the contention I made here.

Now, to come back briefly to a point which I think is very important, if Your Honors please.

This case is no different today before Your Honors than it was the day that I appeared before the Supreme Court of Illinois when I argued it.

The only difference is that in the interim of time, I learned a great deal more about scopolamine than did Mr. Branion know at the time of the trial.

The thrust of the constitutional question raised by this petitioner when he objected to the admission against him of the confession taken from him while he was under the influence of a drug given to him by a police doctor is the same question presented here.

Your Honors could decide this question overlooking all these other questions about the niceties of scopolamine, its colloquial use as a drug known as “truth serum”.

Because if Your Honors will look at the brief that I filed before the Supreme Court of Illinois, it is the very question presented here.

The only difference between the case now and then is simply that I have added more detail.

I know now more about this drug.

I'm convinced from my knowledge of the subject that the constitutional issue was well-posed at the time it was made and that the confession at the time it was offered was an involuntary confession, the product of narco-interrogation.

Now, the point is made by the respondents that this was not the same kind of connivance between a doctor and the police as in Leyra versus Denno.

But I say to Your Honors that they were not interested in the good health of Charles Townsend.

The reason why they call that doctor was to see to it that Charles Townsend was put in a condition by which he could be interrogated.

And as Mr. Jernigan said to his superiors after the administration, I was able to get the confessions.

It is because of that ability to get the confession after the administration of the drug that we say the Fourteenth Amendment was violated by the use of this confession.

Justice John M. Harlan: But -- how would you put the constitutional issue in this case that are asked which concerned.

How would you put constitutional issue of this case that is, how do you determine whether the precise question was answered?

Mr. George N. Leighton: Whether a drug -- I'm sorry, Your Honor.

Whether a confession taken from a state prisoner while he is under the influence of a drug injected into him by state police officer is a voluntary confession when it appears from the facts that prior to the injection he would not talk and immediately after the confession after the injection, he did give the confession.

Justice John M. Harlan: Are you saying that as a matter of law -- as a matter of law, the injection of any drug precedes a confession, an initiated confession?

Mr. George N. Leighton: If that injection produces a destruction of his will.

Justice John M. Harlan: That was a question of fact.

Mr. George N. Leighton: Yes.

Justice John M. Harlan: On the trial of fact below.

Mr. George N. Leighton: Yes.

Justice John M. Harlan: That was ruled against you.

Mr. George N. Leighton: That is true.

But as Your Honors have held that if the ruling against the petitioner is not supported by evidence which Your Honors will respect and I submit to you in this case, the evidence shows that he was -- his will was affected by that injection and as pointed out by the very facts I've related here.

Justice Potter Stewart: That's just a -- that's -- you're basing that just on a chronology.

Now, what if a man had refuse to talk about a crime of which he was suspected of committing and said he had a headache and they gave him two aspirin tablets.

And thereafter, he did confess.

Would your rule apply?

Mr. George N. Leighton: If the aspirin tablets -- we could then demonstrate by the fact that the aspirin tablets --

Justice Potter Stewart: Well and the only fact being that before the aspirin, he didn't talk and after the aspirin, he did talk.

Mr. George N. Leighton: Yes.

Justice Potter Stewart: Now, your rule would apply then.

Mr. George N. Leighton: Yes, Your Honor.

And you remind me of a point I've made in this case.

You know this case stands for a very dangerous doctrine.

If an ordinary motorist is going down the street according to the Townsend doctrine and he has an ordinary automobile accident and he is taken to the police station and complains of a headache and he asked for a doctor and the doctor comes in and gives him what the doctor thinks is proper and as a result of that, he is put in a stupor and he begins talking about crimes he has never committed.

According to the Townsend case, he can't object because the test applied by the Supreme Court is not volition.

Its adequacy of the medication, the fact that it takes his life upon the Supreme Court of Illinois is of no moment.

Justice Potter Stewart: There hasn't been a finding that his will was not overcome --

Mr. George N. Leighton: Well then --

Justice Potter Stewart: -- on the facts.

Mr. George N. Leighton: There has been a finding.

I can see that because otherwise it wouldn't have been affirmed.

Justice Potter Stewart: It couldn't have been.

Mr. George N. Leighton: No.

But all I'm saying Your Honor, the finding is controverted by the indisputable record and the indisputable evidence we now have before us.

Justice Potter Stewart: Being merely the fact that after the drug, he did confess.

Mr. George N. Leighton: Yes, yes.

Justice Potter Stewart: And what if -- well --

Justice Arthur J. Goldberg: Likely (Inaudible) that this drug had an effect upon his mind?

Mr. George N. Leighton: Yes.Mr. Justice Goldberg, that question is clear in this record.

In fact the doctor said, he gave him the drug because he knew that it was to pacify and he used a very instant expression to put him in more of a state of -- or on reality and that it was for the purpose of affecting his mind and for the purpose of pacify and to deprive him.

That was the purpose of the drug and the drug produced the confession.

Now, we don't -- we don't have the --

Justice William O. Douglas: Your point here is that you want a -- you want a hearing on this.

Mr. George N. Leighton: Well, Your Honor, I'm glad you asked me that question, Mr. Justice Douglas.

I like to see this Court determine this case finally

.This case has been in the judicial proceedings since 1955.

And I think the time has come for us to have a determination of this issue.

Your Honors can determine that on the basis of this record, this confession was unconstitutionally admitted and thus directed back to the trial court and the District Court for the entry of proper findings of fact and conclusions of law which I can then present to that court and we can dispose of this case.

I think that this record -- that's why when I began my argument, I said to Your Honors, I was going to predicate this argument only on undisputed facts.

These facts I stated to you are not subject to dispute.

So therefore, no further hearing is necessary.

They ruled on the matter as a legal question below.

Justice William O. Douglas: When you say below, you mean the Federal District Court.

Mr. George N. Leighton: That's right Your Honor, the Federal District Court.

Justice John M. Harlan: You had a hearing.

Mr. George N. Leighton: Sir?

Justice John M. Harlan: You had a hearing.

Mr. George N. Leighton: Well, we had a hearing --

Justice John M. Harlan: What evidence -- if you went back for a further hearing, what evidence would you adduce that is not argued before the Court?

Mr. George N. Leighton: I'd adduced.

I could adduce, I could produce and call more competent scientific people than Dr. Mansfield ever was and they would all testify that this drug caused this confession and since Your Honor asked me, I will tell you this Your Honor that I've been in communication with some rather expert people in this country on this subject.

And if I have the opportunity to have this case heard on the merits, I would produce some outstanding experts, all of whom would testify that this drug under the circumstances of this case and this petitioner in the circumstance he was in as a narcotic addict with a huge injection of heroin, he was put in a position where he had no control over his will.

Justice John M. Harlan: Well, there was conflicting evidence at that time when the hearing was already held.The issue is resolved, isn't it?

Mr. George N. Leighton: That is true.

Justice John M. Harlan: As a question of fact.

Mr. George N. Leighton: As a question of fact but I say Your Honor that we're not precluded if the record shows that the determination of that question was not properly done by the -- in other words, if the constitutional question is not properly determined by the trial court, that doesn't preclude our coming to the federal court on habeas corpus.

Justice John M. Harlan: Were you forbidden?

Were you provided or it was your predecessor presented in putting in any evidence that he can do?

Mr. George N. Leighton: To the extent that there were objections sustained here and there.

I suppose that -- from the record, Mr. Branion put it all he had.

I supp --

Justice John M. Harlan: What you're really asking for is that a new trial of the issue --

Mr. George N. Leighton: Of the constitutional issue.

Justice John M. Harlan: -- in which you with a great skill would be representing this defendant in setting a new trial.

Mr. George N. Leighton: Well, but Your Honor, I think the petitioner is entitled to that.

If the trial court was wrong in the first place and the affirmance was erroneous --

Justice John M. Harlan: If he was wrong and I'm trying to find out what the statute claimed to be wrong.

Mr. George N. Leighton: He was wrong because they concluded that the confession was admissible when the evidence before the judge showed it was not.

Justice John M. Harlan: If that's what every question of the fact, every determination of the fact involves any conflicting evidence.

Mr. George N. Leighton: That may be true but where the constitutional question remains, we still are entitled to a hearing on the constitutional issue.

We're entitled to that and this petition is entitled to that because the constitutional question was unfairly resolved.

It was not properly determined.

Justice John M. Harlan: You don't agree with the findings of fact.

Mr. George N. Leighton: Sir?

Justice John M. Harlan: You don't agree with the finding of facts.

That's what you mean, I think.

Mr. George N. Leighton: Well, the conclusion of the trial judge.

In our practice Your Honor, they don't make findings of fact.

Justice William J. Brennan: Well, Mr. Leighton, I thought from what you said to us yesterday, you're in federal habeas now.

Mr. George N. Leighton: That's right, Your Honor.

Justice William J. Brennan: And you raise a question to this whether you're entitled to a rehearing, retrial or call it what you will of your constitutional claim in federal habeas before the District Court, didn't you tell us that?

Mr. George N. Leighton: Yes, Your Honor.

Justice William J. Brennan: And that's been denied.

Mr. George N. Leighton: That's right.

Justice William J. Brennan: Now that's why I'm a little puzzled when you say you don't want a rehearing, I think we ought finally could decide it.

Mr. George N. Leighton: Well, Your Honor, let me make myself clear.

If Your Honor should determine that there should be a rehearing of these factual matters, we'll proceed accordingly.

What I'm saying is that I believe that on this record, as it now stands, that is not the only answer.

I believe Your Honors could take this record as it now stand since it presents a legal question and determine that that confession as it's shown by the record contrary to what Judge Igoe concluded because Judge Igoe could have made this conclusion himself.

Your Honors could make that conclusion here.

Justice William J. Brennan: Well, you're invoking then the doctrine that on occasions where a constitutional claim rests on fact-finding, we may examine the record to see whether those fact-findings are supported, is that it?

Mr. George N. Leighton: That's right Your Honor and Your Honors have said that on number of occasions.

Justice William J. Brennan: And you think -- and your argument here is that it's not necessary to have another hearing because these fact-findings which have been against you are not supportable by the record in respect to the constitutional claim you mentioned.

Mr. George N. Leighton: That's right, Your Honor.

Justice Tom C. Clark: Conflicting evidence.

Mr. George N. Leighton: Sir?

Justice Tom C. Clark: Conflicting evidence here.

Mr. George N. Leighton: Yes, sir.

Justice Tom C. Clark: I wonder also, what will you do with that confession or statement or whatever you want to call it, he told the policeman before the objection of the --

Mr. George N. Leighton: Well, Your Honor --

Justice Tom C. Clark: -- that he had hit the man over the head with brick in this place where they found this victim.

Mr. George N. Leighton: Well, in the first place Your Honor, if that was the only thing that this petitioner had to contend with in the trial court, he would have been acquitted.

Justice Tom C. Clark: Why is that?

Mr. George N. Leighton: Because no one would have believed that police officer because every police officer in the case contradicted this officer.

Justice Tom C. Clark: As part of the evidence.

Mr. George N. Leighton: That's right.

You see, Your Honor, if we didn't have to contend with the written confession, I wouldn't worry at all about what this officer said because Officer Cagney contradicts this other officer.

And if you wish my answer --

Justice Hugo L. Black: Cagney was the one who said it, was he not?

Mr. George N. Leighton: No, Your Honor.

It was not Cagney, it was Officer Corcoran and Cagney was the principal officer.

You see, I have a cynical view of that officer's testimony.

I believe that somebody whispered to him that it was necessary before the jury to say this.

He didn't say it in the preliminary hearing and he is contradicted by every officer in the case.

Justice Hugo L. Black: Is that in the record, in which brief?

Mr. George N. Leighton: No, no, no.

I said, I predicated my remark, Your Honor by saying that I have a cynical view of his testimony.

You see, if the only evidence I had to contend with or this petitioner have to contend within the trial court was Officer Corcoran's testimony that he heard an oral remark.

You see, in Illinois, we have well established cases that oral remarks are not seriously considered.

You see, and this -- it's true that Officer Corcoran said that and it caused a great deal of dispute in the record.

My time has expired.

Chief Justice Earl Warren: Mr. Leighton, may I ask you this question?

I understand this man took an injection of this narcotic at about one o'clock in the morning.

Mr. George N. Leighton: Approximately, yes.

Chief Justice Earl Warren: Approximately, yes.

Now, when normally would we expect -- could we expect withdrawal symptoms to develop and the sickness to come on in.

Do you --

Mr. George N. Leighton: It varies to individuals depending upon the tolerance developed over the years of addiction but I'm told that it may start within six hours to 12 to 14 hours after the injection.

Chief Justice Earl Warren: That will last for how long?

Mr. George N. Leighton: An hour and a half or two until the drug has completely worn off or unless if the addict is kept in custody, he receives no medication, eventually, he will suffer a great deal but eventually he will leave that state, that mental of illness, mental and physical illness.

Chief Justice Earl Warren: To the fact that they only asked him few questions when he was arrested at five o'clock in the morning and then asked him no questions at all until 8:30 tonight when he probably would be within -- with all the symptoms.Does that play any part in this case?

Mr. George N. Leighton: Yes, Your Honor.

I think it does.

You see, these officers knew and by the way, this transfer of this man from one police station was interesting.

It doesn't -- to the unsuspecting, it has no significance but to the experience, it does.You see, they're putting him away he wouldn't be questioned to be left alone until eight o'clock is significant when you look at it retrospectively.

These officers knew who he was.

They all admit; the record is clear.

The officers knew he was an addict.

They knew he had taken the drug.

In fact, Officer Cagney so testify, so they knew -- they knew all these.

Now, it is true that we don't have this case here we had in Leyra versus Denno where there is proof that the prosecuting attorney stayed another room and they bugged the room and this -- we don't have the tape recordings and all that.

We don't have that kind of thing.

We have here much more subtle form of the use of knowledgeable consequences of a drug addict in this condition and as I said before, they weren't interested in Charlie Townsend's mental and physical well-being.

They wanted to put him in a condition to question him.

That was the whole purpose of this.

Justice John M. Harlan: I remember you're saying and you correct if I'm wrong from the first argument of this case and I think I asked you the question that you did not claim that the administration of this drug by the prison doctor was part of a scheme to induce this man to confess which we may know such claim is done.

Mr. George N. Leighton: If I made the answer to that direct Your Honor, I didn't mean to carry that impression completely.

What I meant to say was that there isn't the obvious scheme that we find in Leyra versus Denno.

This is much more subtle to say.

And you see Your Honor, if this wasn't part of the plan, the thing they would have done and these officers were officers of great experience, they would have let that man alone.

That's all they had to do was to leave him alone over a period of time and then they could have questioned him later and he would have resisted their interrogation.

You see, this is the plain fact of the matter.

Justice William J. Brennan: Well, Mr. Leighton, I have somewhat the same recollection with my Brother Harlan.

I understood that this was administered while he was exhibiting withdrawal symptom from an earlier application of the drug that he taken himself and that this was administered to relieve him of the pains of withdrawal symptoms.

Was I wrong about that?

Mr. George N. Leighton: That was -- that is the ostensible -- that's what the record shows ostensibly.

All I'm saying Your Honor that when you reflect upon it a little longer than that, the ostensible purposes are displaced by the real purpose of the injection as shown by the fact that I just quoted to Your Honors today a letter which is made part of the record written by the officer who took the confession in which he said that after the administrations, I was able to get the confession.

Justice William J. Brennan: But was there a fact-finding that this administered to relieve withdrawal symptom?

Mr. George N. Leighton: Well, you see, Your Honor, in Illinois we don't -- in the criminal courts, we don't have findings of fact.

Justice William J. Brennan: I see.

Mr. George N. Leighton: We don't do it like that.

There should be.

I've often thought we ought to have especially in confession cases.

We don't do it like that.

The judge says, confession motion overruled and naturally, that concludes all the findings inherent in that determination.

But we don't have finding the fact as we have it in the federal court.

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

Mr. George N. Leighton: Yes, Your Honor.

Justice John M. Harlan: In making these findings of fact, I call them findings of fact.

Mr. George N. Leighton: Yes, sir.

Justice John M. Harlan: In making the determination that this was not an involuntary confession, do you claim that the trial court applied any erroneous constitutional standards?

Mr. George N. Leighton: Yes, Your Honor.

Justice John M. Harlan: What are they?

Mr. George N. Leighton: The standard that was erroneous was that this drug was a proper drug to be used under the circumstances.

This is what they used and the Supreme Court of Illinois --

Justice John M. Harlan: That's a question of fact.

Mr. George N. Leighton: Well, it is a question of fact but it was also a question of fact Your Honor in Rogers versus Richmond which Your Honors held that reliability of a confession is an unconstitutional standard to be applied in a confession case.

Your Honors so held in the Richmond case and I suggest to you Your Honor that the Illinois Supreme Court and Illinois trial courts made the same error in this case that the Connecticut courts made in Rogers, you see.

They applied the test here which I find in reflection almost ludicrous because they say that the fact that the drug produces confession that takes a man's life is of no consequence.

The fact that it is important is that the drug eased his pain for the moment.

You see, that's what the Supreme Court did and that's what the trial court did in effect by its own ruling of the objection to the confession.

Justice John M. Harlan: Was there any ruling made or statement made by the trial court that -- in determining whether this was a voluntary confession or not.

He was influenced by the fact that the confession was true and was cooperative?

Mr. George N. Leighton: No, no, no.

Justice John M. Harlan: Nothing of that kind.

Mr. George N. Leighton: Nothing like that.

Justice John M. Harlan: That was Rogers against Richmond.

Mr. George N. Leighton: Yes, that was Rogers versus Richmond.

Justice John M. Harlan: This isn't Rogers versus Richmond.

Mr. George N. Leighton: No, no, he didn't say that.

All I'm saying is that the error is the same kind of error using a different standard.

They used the standard in this case of the propriety of the drug not its effect upon his will, you see.

And I suggest to you that -- analytically, the same error was made in this case as was made in Rogers versus Richmond and we cite Rogers versus Richmond and depend upon it as part of our argument before Your Honors.

Chief Justice Earl Warren: Mr. Leighton, we took the last 10 minutes of your argument with questions and I'm going to give you five more minutes in rebuttal if you desire.

Mr. George N. Leighton: I will appreciate that.

Justice Hugo L. Black: I want to ask you one more question.

Mr. George N. Leighton: Yes, Your Honor.

Justice Hugo L. Black: I've been waiting to ask you this.

I didn't quite understand one statement you made.

I understood you to say that it was your belief that this case should be ended now and that our determination, if we made it, this evidence of the confession being involuntary was not supported by evidence within the case.

Why would that be in the case?

Mr. George N. Leighton: If Your Honor should hold here that this confession on this record as it now is before Your Honor as it was before the District Court and that the District Court erred in dismissing the petition and Your Honor should find as a matter of constitutional conclusion that that confession was inadmissible.

Then upon remand, only one thing will be left for the district judge to do and that is to make certain findings of fact and conclusions of law which shall guide the state authorities in the retrial of this petitioner.

Justice Hugo L. Black: But you do not claim then that he wouldn't have to be retried.

Mr. George N. Leighton: Oh!

No, Your Honor, by no means.

Justice Hugo L. Black: I was --

Mr. George N. Leighton: By no means.

Justice Hugo L. Black: I thought that you would contend that.

Mr. George N. Leighton: And they -- I assume Your Honor, they have no positive charges against this petitioner.

I happen to know, they have no evidence against him.

Justice Hugo L. Black: Well, that's all I want to find.

Mr. George N. Leighton: (Voice Overlap) accept his confession.

Thank you very much, Your Honor.

Chief Justice Earl Warren: Mr. Hladis.

And you may -- Mr. Hladis, you may have five minutes additional if you should desire it also.

Argument of Edward J. Hladis

Mr. Edward J. Hladis: Mr. Chief Justice, may it please the Court.

As we have tried to marshal these vast expands of proceedings, it is our view that this controversy presents two basic issues.

The first I think is rather easy to phrase and that is whether or not Judge Igoe in the United States District Court abused his discretion when upon an independent examination and investigation of the record in the Supreme Court of Illinois, he was satisfied that this petitioner was accorded due process and dismissed the petition.

The second one is much more difficult to phrase and that's the one that has caused the problem particularly today.

As I read the petitioner's briefs, as I distill his arguments, his claim appears to be that a drug induced confession is violated of the Fourteenth Amendment.

If that would be the issue then I would not be standing here today.

The issue in this case is whether this confession was drug induced and nowhere, nowhere that we had any demonstration at all from this petitioner that this confession and the amount of drugs employed here could have possibly in any way at all, could it possibly created such a situation in his personality as to induce a confession.

Before I examine these two basic propositions, I would like to make one remark by way of preface.

As this Court well knows, the final judgment in this proceeding was handed down in April of 1955 in the Criminal Court of Cook County.

Since that time, we have had one post-conviction hearing, four petitions for writ of certiorari --

Justice Potter Stewart: There's a direct appeal first, wasn't it?

Mr. Edward J. Hladis: Yes.

I'm including the direct appeal, one post-conviction hearing in the State of Illinois, four petitions for writ of certiorari and this proceeding.

We have great many papers in this file.

I will try to summarize and analyze the proceedings.

I have experienced the scene here what I thought it was a rather resourceful use of the federal writ of habeas corpus and in general of post-conviction remedies.

I think it's my responsibility not only as an advocate but as a member of the bar of this Court to call certain basic discrepancies, contradictory theories to the attention of this Court.

In doing so, I want this Court to know and to understand that in no manner of safe reform I -- am I imputing any form of criticism upon imposing counsel.

As I can truthfully say, I respect the gentleman as a lawyer as far as his ability is concerned and through my activity in the states attorney's office I have got to know him as a friend.

However, aside from the issue of this petitioner in this case and I just want to rest one minute on this point.

This case presents a problem as far as federal habeas corpus is concerned and I would like, if I could to speak, as a lawyer rather than as an advocate.

And I would like to report an incident that I heard several years ago which is quite applicable that during a course of a television interview of a counsel or attorney from the foreign service of England, where he was interviewed in the Chicago station about three or four days after another internationally famous death case in this country.

And while this gentleman was discussing the pre-criminal procedures in England, he made one observation which didn't strike me until I realize of the man not our own, the man of the English bar had mentioned it to us and that was this.

He appreciated the concept of dualism of sovereignty that we have in this country, the several individual 50 states and the national federal state that we have.

And he marveled at the manner in which the Fourteenth Amendment and the guarantees incorporated therein could be made available by way of our federal writ of habeas corpus.

And I, as a lawyer, think it's one of the finest inventions that's ever been made in the field of jurisprudence, but I think we must always remember that up until, I believe it was 1867, it was impossible to review a state court conviction.

It was not until the enactment of the Federal Habeas Corpus Act that this could be done.

And I cannot help but feel that if federal process such as being employed here to the point that one could very well consider it an abuse, I cannot feel and fear that possibly Congress might take a more restrictive view someday and a great deal of damage would be done.

Justice William O. Douglas: That of course raises a very large question as to the power of Congress to cut down the availability of habeas of corpus in the federal court.

It's something we don't need to get into here.

Mr. Edward J. Hladis: I understand.

Now, I address myself with the first proposition sir and that is whether or not Judge Igoe abused his discretion.

During the course of the last argument which is held in February of this year and once again during the course of this argument, questions have been propounded by several members of this Court.

Counsel, what did you want to put in?

And for some reason or other, the petitioner and his counsel just have not been able to tell the Court precisely what it is.

This federal habeas corpus proceeding began in December 1958 before Judge Igoe.

It began before Jennings v. Ragan and up until Jennings v. Ragan, it was a practice and what everybody thought was the approved practice in the Northern District of Illinois to judge or to apply the Brown versus Allen criterion from the opinion of the highest court of the state and not the record.

The state office petitioned on that basis and counsel for petitioner in addressing Judge Igoe during that proceeding and that transcript is a part of this record.

As a matter of fact, it is found on page 26 of the transcript, December 15, 1958.

And this is counsel speaking and quote, “I agree with Your Honor that the cases on this subject hold that Your Honor need not conduct a hearing in the sense of witnesses being called.

I agree with Your Honor that we could submit to you for an example and I could make it available to Your Honor quite promptly.

I could make available to you the court reporter's notes, transcript of the hearing in question.

I could present that to you, it won't take me long,” in December 1945, as I said, before Judge Igoe pursued the practice prior to Jennings.

In the meantime, Jennings was decided on petition writ of certiorari.

This Court vacated the orders of the lower court citing Jennings v. Ragan.

Now, counsel during yesterday's argument made some suggestions that some mandate came down to Igoe as to what he should do.

As I read that brief, minute order, there was no secret or implied mandate contained therein.

It was an order of this Court when they cite Jennings and it's quite obvious to everybody that to practice now is in applying the Brown versus Allen standard, in attempting to ascertain whether or not there was a vital flaw in a state court proceeding.

The District Court judge no longer can rely upon the opinion alone.

He must go to that record and that is the practice now.

And that record came up and Judge Igoe on the 12th of June took that record.

And for 12 days he had it and he examined it.

Justice William J. Brennan: Was there ever a practice Mr. Hladis to supplement the conditional testimony?

Mr. Edward J. Hladis: Yes.

I was -- I don't want to be impertinent sir, but I was subjected to it in another death case which this Court had recently and denied certiorari.

As long as you ask a question, I wanted to develop that I may develop it right now.

Your Honor, as we read Brown versus Allen, Brown versus Allen is an opinion of caution, of caution to the trial judges admonishing them that it is only in the extraordinary cases that the federal court will end the theory.

In line with your question sir, I suggest and I urge that it should be proper practice that before any witness be called that the state be entitled to know whether it can rely upon that record and I think the determination as to whether there is a vital flow in that record or not should be made before anything.

I'll tell you what happened to me in the other case.

I filed my answer and set this up to Brown versus Allen defense up as the first affirmative defense and I requested the ruling on that defense before we go any further.

The District Court judge took it under advisory.

Now, I have a problem in Illinois because in Illinois in confession matters, as a matter of decisional law, any law enforcement officer who was in any way associated with the defendant during this investigative process out of which a confession arises must be called.

In other words, the state cannot choose say five out of 14 and say we'll go with five witnesses and prove up the voluntary nature.

You've got to call all of them.

And if you don't, reverse and remanded for a new trial.

I'm in the Federal District Court, I don't know.

My only defense, I'm notified within 48 hours with the state court record and I don't know whether I can rely upon that state court record and we were put to the test as far as evidence is concerned.

So I was forced to gamble.

I was forced to gamble and say, “I will go with the record.

I will not examine that record and choose my witnesses because certainly, I won't call all of them in the federal court.”

So I respectfully suggest Your Honors, if this question should in any way at all come up during the course of the discussion in this case, I think that it is sound practice consistent with the spirit of federal habeas corpus as announced by this Court in Brown versus Allen and it is orderly practice that before any evidence be given, the state have a determination from the District Court that he is -- the district judge is either satisfied or he is dissatisfied with the state court record.

And if he is dissatisfied then we know where we stand.

We know that we have to go to trial.

Justice Potter Stewart: I don't know how important this is in this case but I don't entirely understand what you're saying.

If he's satisfied with it then there would be no occasion for referring more evidence.

Mr. Edward J. Hladis: That is right.

Justice Potter Stewart: Well, that's the end of it and there would be anymore --

Mr. Edward J. Hladis: That is right but we'd like to know.

Justice Potter Stewart: You would know, wouldn't you?

And if he began adducing evidence, he would indicate that he was not satisfied with the state court record.

Mr. Edward J. Hladis: Well, in the other instance which I recited to Mr. Justice Brennan during -- in answer to his question, I didn't know because I was told expressly I would take that under advisement.

Justice William J. Brennan: Well, I understand it but what you're suggesting is that the District Court should first -- before he does anything, examine the state court record.

Mr. Edward J. Hladis: That is right.

Justice William J. Brennan: Is that it?

Mr. Edward J. Hladis: That is correct.

Justice William J. Brennan: And as my Brother Stewart suggest if he decides that the constitutional question was properly considered and decided, that's the end of the case.

Mr. Edward J. Hladis: That is the end of the case.

Justice William J. Brennan: But that -- if he thinks something more is required then what does he do, does he merely supplement the state court record or does he retry factually the constitutional claims.

Mr. Edward J. Hladis: What will happen to that record in the event that he is -- well, that would be a case of dissatisfaction.

He is not satisfied with what he had in the record.

What would happen to that record would depend upon the trial technique of the attorney representing the state whether he is going to introduce it, I assume that he would, but he would give accumulative evidence also.

It would almost develop into a trial de novo on the issue but I don't think that -- I submit that the state should not be led dangling on that issue.

We get -- and the statute says three days and that's just about what we get and it takes us just about that time to get that record from Springfield on to Chicago.

And gentlemen, that's all we have when we go to a federal court, that's our case and we I think we're entitled to know whether that is going to stand after the case or not.

Chief Justice Earl Warren: Well, is that vital in this case in the posture in which it is here?

Mr. Edward J. Hladis: I would say yes in this respect that Judge Igoe I think follow the procedure as outlined by Brown versus Allen.

And he exercised the discretion on the basis that the state court record was satisfied that all the issues raised, the counsel practically conceded off before -- off before this courtroom this morning when he said the record that we have here is no different than it was when I was in the Supreme Court of Illinois and that's true.

There had been a few changes in theory, a few changes in technique but it's the same record.

Justice William J. Brennan: Well, it's the same record obviously since Judge Igoe didn't supplement it.

I must confess I'm a little confused about what Mr. Leighton's position is but I gather that the last thing he answered me was, if we think well of it, we can send it back for at least supplemental -- supplementing this record on the properties of the drug hyoscine.

Mr. Edward J. Hladis: Well, I hope that I can demonstrate to you sir in the course of this argument that those properties were thoroughly explored in the trial court and examined by the trial court.

I'm talking about the criminal court of Cook County now by way of the experts from both sides.

I'm sorry.

Justice John M. Harlan: You addressed yourself to this case in a factual situation.

Mr. Edward J. Hladis: Fine.I'll do that right now sir, thank you.

Justice Hugo L. Black: May I ask you one?

Mr. Edward J. Hladis: Yes sir.

Justice Hugo L. Black: Do you understand that Judge Igoe proceeded on the assumption that we could not take out evidence in addition to that which is shown in the record?

Mr. Edward J. Hladis: No.

Justice Hugo L. Black: You do not thought --

Mr. Edward J. Hladis: No.

Justice Hugo L. Black: You think if he considered he had the power to do so if he wanted to.

Mr. Edward J. Hladis: Yes, yes.

Justice Hugo L. Black: And if he reached the conclusion that he shouldn't have.

Mr. Edward J. Hladis: That is correct.

Justice Hugo L. Black: On the basis that the findings were issued, were tried out and therefore they should (Voice Overlap)

Mr. Edward J. Hladis: That all issues (Voice Overlap)

Justice Hugo L. Black: -- again, is that it?

Mr. Edward J. Hladis: That all issues I believe these findings read were fairly raised and the state court proceedings were heard.

It was accorded due process and also as independent finding on the basis of that state court record that the confession in question was voluntary.

That was his reaction to the --

Justice Hugo L. Black: Was that the -- I don't -- I that brings it back to my first question.

Is it your -- do you think that he tried it on the assumption that if he reached the conclusion that the issues had been tried in the court and a decision made that he had no power to go into those same issues again and bring in additional evidence on either side.

Mr. Edward J. Hladis: I find nothing in the record which would indicate that Judge Igoe was under the impression that occurred in the Rogers v. Richmond that he was bound by the state court determination.

In other words, this was not an advocation of federal judicial power.

This was an exercise of federal judicial power.

I find nothing in the record which would indicate that Judge Igoe had a feeling that he had to go along with the state finding on the federal constitutional issue.

Justice Hugo L. Black: Are you arguing on the premise or are you presenting an argument you have been presenting on the premise because I'm not quite sure that when the issues have been -- the issues of facts have been tried on this constitutional question raised -- was raised -- based has been tried in the state court on evidence, carried to the Supreme Court and it affirms that bars any -- going behind those findings on a federal -- in a habeas -- federal habeas corpus proceeding.

Mr. Edward J. Hladis: To go behind those findings?

Justice Hugo L. Black: Yes.

Why they have been tried out by the state court with the issues squarely presented evidence offered on each side and findings made in the state court.

Are you proceeding -- is your argument based on the premise that should in the matter --

Mr. Edward J. Hladis: Are you talking about the fact-finding sir or --

Justice Hugo L. Black: That's right.

I'm talking about fact-finding.

Mr. Edward J. Hladis: You're talking about fact-finding.

As far as any fact-finding which is based upon disputed evidence, I think that the -- that ends the issue as far as the federal courts are concerned and this Court has said so in any number of occasion.

Justice Hugo L. Black: Well, would you call the application of the facts to the law a fact-finding or --

Mr. Edward J. Hladis: No, no, if you have undisputed facts and apply them to the law, no.

That is a different situation such as we have in Rogers v. Richmond say with wrong standard was applied.

The standard of reliability as against voluntariness was applied.

Justice Hugo L. Black: Well, as I understand your position here is that findings of facts made in the state courts whether -- and approved by the State Supreme Court should be accepted as final and binding for the purpose of determining the constitutional issue raised on habeas corpus.

Mr. Edward J. Hladis: Yes.

Justice Hugo L. Black: Was that Judge Igoe's position?

Mr. Edward J. Hladis: I don't know.

Really, I don't know sir.

Justice Potter Stewart: Is Judge Igoe's order in this case appearing or excerpt in the original record?

I can't seem to find anything that we have on the briefs.

Mr. Edward J. Hladis: I believe I summarized it sir.

I did not verbalize it.

Justice Potter Stewart: So the original record would be (Voice Overlap).

Mr. Edward J. Hladis: The original record, yes, which incidentally is the only record we should know.

Justice Potter Stewart: Yes.

Mr. Edward J. Hladis: Coming now to the question of this confession.

This counsel had advised you the petitioner was arrested in January 1, 1954 about one o'clock in the morning.

About an hour and a half prior to that time, he had taken some heroin having been an addict with two previous years.

At the time of his arrest, he was 19 years of age, he had been examined by a psychiatrist and found to be legally sane but of low border intelligence.

And the psychiatrist equated his psychological finding to a range of 75 to 80 which he testified compared favorably to the average of the United States Army.

He was asked certain questions regarding vital statistics and for about a half hour was questioned by the police officers.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward J. Hladis: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward J. Hladis: That is right.

But you'll find in records pages 1027 to 1030 that he translated that into the terms of mental IQ, this is the evidence.

The range is from 75 to 80 for petitioner, though it's below average, it compares favorably with the World War II average mental IQ of 78.

And the record references on that at 1027 to 1080.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward J. Hladis: I believe that applies to the case and was used once and then borderline intelligence was used in another time.

After the --

Justice John M. Harlan: I suggest we are to do something without the army?

Mr. Edward J. Hladis: After a half hour interview, period of questioning, there is some discrepancy in his own testimony as to what happened.

When he was on the stand during the preliminary hearing and the motion to suppress, he stated that he talked to them only a half hour.

When the petitioner testified in the trial before the jury, he claimed that they talked to him for about two hours.

At any rate, they took him about five o'clock in the morning over the 19th District and that's a new station.

The record so shows and there's nothing in the record to support any supposition or inference that was made here that this man was taken to another station for any sinister purpose.

If you read the record, you'll find that the squad led by Officer Cagney had left and then they return late in the evening and the answer most probably is that they were on the night shift and they were going home.

He remained at the 19th District Police Station until approximately 8:25 p.m. or about 8:30 p.m. of January 1.

During the day, there is no dispute about the fact that he was not questioned by anybody.

He admitted that food was available one of the lock up keeper testified that food was offered to him and he refused it.

Justice William J. Brennan: Was there anything about his undergoing withdrawal?

Mr. Edward J. Hladis: At that time, no.

The testimony of the men that handled him, all is in one direction that they didn't observe anything unusual about him.

When they spoke with him, he spoke coherently and he exhibited no problems at all.

Chief Justice Earl Warren: Up to what time?

Mr. Edward J. Hladis: The withdrawal problem actually set in around -- I would have to say about 10 minutes to 9:00 sir because he was brought back in the 19th District about 8:25 to 8:30 p.m. in the first of January and then we have to show off which the record reflects, it took about 10 to 15 minutes.

And then they began to talk to him about 10 minutes to 9:00 and it is at this point that we give in to the controversy about the oral statement.

One that is testified to by Officer Corcoran at pages 647 to 650.

As I read the record, we would -- we indicated that the oral statement was given somewhere between 10 minutes to 9:00 and 9 o'clock.

He was being questioned by four officers.

Not all of them participated but they were there one time or another.

Both on direct examination and cross-examination of the court he testified that when he was asked about striking a man of 38 in Michigan and robbing him that the petitioner answered in the affirmative.

Now, during the course of this argument both yesterday and this morning, this Court and particularly Mr. Justice Clark exhibited a considerable amount of interest in that oral statement.

Excuse me.

And if I remembered counsel's remarks yesterday since we attached no significance to that.

It would seem to create the impression that it was almost non-existent.

Justice Potter Stewart: What I missed I'm sorry.

Mr. Edward J. Hladis: I beg your pardon.

Justice Potter Stewart: It attached no significance to what?

Mr. Edward J. Hladis: To the claim of the oral statement that was made somewhere between 10 minutes to 9:00 and 9 o'clock (Voice Overlap).

Justice Potter Stewart: But not hitting a man over his head with a brick, is that it?

Mr. Edward J. Hladis: I beg your pardon.

That's right.

That is correct.

At pages 1274 and 1275 to some very explicit and specific instructions were given on this oral statement.

At page 75-a, now that is the common law record coming out of the State of Illinois which is also part of this record, we find the petitioner's motion for a new trial which is filed in the Criminal Court of Cook County.

And under point two, the Court erred in admitting into evidence the oral confession made by the defendant because it was involuntary -- because it was an involuntary confession.

The issue there was not whether there was an oral confession but whether that oral confession was involuntary.

Under point four in his motion to new trial, the petitioner charged that the Court erred not sustaining the defendant's motion to suppress the confessions and admissions both oral and written.

There is also a blanket charge on instructions.

Now, in response to Mr. Justice Frankfurter's invitation during the course of the last argument --

Chief Justice Earl Warren: Before you get -- before we get to that, what have you to say about Mr. Leighton's statement that the other police officers, Cagney and others, contradicted this police officer?

Mr. Edward J. Hladis: Mr. Chief Justice, if I remember the record and I'm trying to keep all these marshals.

I don't think there was any expressed contradiction, I don't think there was any mention of it made but I don't think there was any expressed contradiction.

Justice Potter Stewart: You remembered a complete lack of corroboration from any of these officers.

Mr. Edward J. Hladis: That is right.

That is correct.

I mean Corcoran is the only man who testified to that and that can be explain --

Justice Tom C. Clark: I remember that you said on (Inaudible)?

Mr. Edward J. Hladis: And secondly, you had a situation where Cagney was not present at all -- on all occasions either.

He was not in the room consistently during that entire period.

Justice Tom C. Clark: The defendant testified himself, testified that he was interrogated for half an hour without being (Inaudible) for the objection.

Mr. Edward J. Hladis: Now what --

Justice Tom C. Clark: The counsel testified, he remembered Cagney asking him whether he's on 37th of Michigan or 38th of Michigan that night.

Mr. Edward J. Hladis: Now, one final observation on this oral admission as it relates to the state court proceeding and I pointed out the error of the admission of that oral admission was made in the Criminal Court of Cook County.

On his writ of error, on his appeal of the Supreme Court of Illinois, you'll find that in the petitioner's brief, not a single instruction is challenged, not a single instruction.

It would seem to me that if today, the view is that in fact there was no such oral admission and you have to express explicit instructions as we have in this record, it would seem to me that proper objection would have been made in the appellate level in the Supreme Court of Illinois.

Apparently, there must have been some satisfaction that that testimony was given.

As I said previously, the petitioner became ill somewhere between 10 minutes to 9:00 and 9 o'clock.

It is quite obvious and we know now that he was suffering from withdrawal symptoms.

And the doctor was called -- and Dr. Cagney called -- Officer Cagney called the doctor who was Dr. Mansfield, the police surgeon.

During the course of yesterday's argument, Mr. Justice Goldberg asked counsel for the petitioner a certain question about the request that was made.

And this came about in this fashion as I remembered counsel's representation originally on this whole thing that none of this was the petitioner's doing, the calling of a doctor, the administration of drug or anything.

And then upon the question, counsel limited and says, “Well choosing this doctor.”

If the Court will check the record at page 110, it will find that the petitioner on direct examination on a preliminary hearing testified that he had been talking with Mr. Cagney about this doctor friend of his and he was so ill that he requested Mr. Cagney to call this doctor.

Justice William J. Brennan: Is this Dr. Mansfield or --

Mr. Edward J. Hladis: The one that Cagney was talking about who happens to be the Dr. Mansfield, the police surgeon and that's the only man that they used as far as we know and they have no question for anything else.

Justice Arthur J. Goldberg: Mr. Hladis, may I ask you a question?

Mr. Edward J. Hladis: Yes, sir.

Justice Arthur J. Goldberg: The State's Attorney was there at that time?

Mr. Edward J. Hladis: At what time?

Justice Arthur J. Goldberg: The time that he was there before the doctor arrived, is that correct?

Mr. Edward J. Hladis: The State's Attorney arrived after the doctor called.

He arrived somewhere between 9:15 and 9:30 and the doctor arrived about 9:45.

Justice Arthur J. Goldberg: What was the name?

Mr. Edward J. Hladis: Yes, sir.

Justice Arthur J. Goldberg: What was his name again?

Mr. Edward J. Hladis: Jernigan.

Justice Arthur J. Goldberg: Jernigan (Inaudible).

There's a thing in your brief that I'd like to refer where you said on Page 14, he appeared to testify (Inaudible) as to the affect that (Inaudible).

Now, how do you interpret that (Inaudible)?

Mr. Edward J. Hladis: Mr. Jernigan wouldn't have questioned him and if I have been in the same position that Mr. Jernigan was, I wouldn't have questioned him.

Justice Arthur J. Goldberg: Now, why would (Inaudible)?

Mr. Edward J. Hladis: Because I would be cautious not knowing what it is.

Now, on the basis of this record, that caution will not necessarily render this confession involuntary.

Justice Arthur J. Goldberg: Now, you would (Inaudible) while he was under drugs, he stated innocence would not be the proper kind of confession to get in prison?

Mr. Edward J. Hladis: I wouldn't know anything about the drug and that would be the primary reason that I would stop.

Justice Arthur J. Goldberg: You would --

Mr. Edward J. Hladis: That's correct.

Justice Arthur J. Goldberg: -- drug?

Now, is it your position that the State's Attorney was not aware of the facts of the drug administered?

Mr. Edward J. Hladis: That is correct.

Mr. Jernigan has so testified he knew nothing about the treatment that was administered.

Justice Byron R. White: But all he said was that he wouldn't have pressured him if he had known that he had a drug which would affect his mental process for that instance.

Mr. Edward J. Hladis: That is correct.

Justice Byron R. White: -- not that he would have questioned him and his ability in behalf of this drug.

Mr. Edward J. Hladis: Well, when Mr. Justice Goldberg read to me, he read the -- I was making my answer on the basis of what he read to me from my brief.

Justice Byron R. White: You wouldn't have questioned him if you had known that he had a drug that affected his mental process.

Mr. Edward J. Hladis: If I've known that it has affected his mental --

Justice Byron R. White: If you had known that he has been given an aspirin.

Mr. Edward J. Hladis: If I know that he's been given aspirin?

No, I would have questioned him under those circumstances.

Justice William J. Brennan: Under in no circumstances.

Mr. Edward J. Hladis: I would question him.

Justice William J. Brennan: Under those.

Mr. Edward J. Hladis: I would question him under those circumstances.

Justice Hugo L. Black: Do you know about that?

Mr. Edward J. Hladis: I know something about aspirin.

Justice Arthur J. Goldberg: Well, (Inaudible) himself testify and he was shaking and nervous and going to the bathroom and (Inaudible)?

Mr. Edward J. Hladis: Not knowing anything else?

Justice Arthur J. Goldberg: Just as it did appear in the record.

Mr. Edward J. Hladis: Just as it did appear in the record.

Now, the record as we have it, Mr. Jernigan did not know it was given to him.

Justice Arthur J. Goldberg: But that he is so sick.

Mr. Edward J. Hladis: That is correct.

Under those circumstances, I would have proceeded to interrogate the man.

Justice Potter Stewart: Certainly, those circumstances are just the opposite from any indication that his mental processes had been affected adversely.

Mr. Edward J. Hladis: That's right.

Justice Arthur J. Goldberg: On the other hand, you have (Inaudible) to change the cure void and the doctor (Inaudible), is that correct?

Mr. Edward J. Hladis: Well, I mean that's the reason the doctor was called to alleviate the pain.

Justice Potter Stewart: Really experiencing what you might have done and might not have done but what we have here is the case where somebody have (Voice Overlap).

Mr. Edward J. Hladis: I'll get into the Thompson very shortly.

Now, dwelling on this choice of doctor in the general area, there has been an impression attempted to be created that perhaps his entire program of treatment was forced upon him.

I'd like to call the Court's attention to the history of this proceeding.

In the first place, when this petitioner prosecuted its appeal in the Supreme Court of Illinois, no argument was made that the drugs were involuntarily administered or without his consent.

No question was raised as to the purpose for which the drugs were given.

He filed this petition writ of certiorari from the judgment of affirmance and that was done in August 3, 1957.

Now, during the course of that petition, the petitioner wrote that the drug used is known under two names, namely, hyoscine and scopolamine.

And the petitioner further declared to this Court and I quote, “that the drugs were administered to petitioner with his consent and with the avowed intention on the part of the police surgeon to alleviate the heroin withdrawal symptoms.

The first time, the very first time in the history of this case that you get a switch in this theory, you get it in the post-conviction hearing.

And incidentally, that post-conviction hearing is the very item which gives rise to the proceeding here.

That's what started everything.

And we had a new case and the only difference, the only difference between the record as it stood in the Supreme Court of Illinois and the record that we have here is the addition, is the compilation of a new item in trial.

And what was the gist of that post-conviction hearing?

The petitioner was trying to develop, trying to claim the constitutional right to a label just as simple as that.

Justice William J. Brennan: Label?

Mr. Edward J. Hladis: To a label.

And the position he took there was that not only was a drug given to him against his consent without his consent but for the sole purpose of extracting a confession and he reported that to this Court in a second petition writ of certiorari, less than one year after the first was filed.

Now gentleman, I have looked at this and I find it difficult to reconcile the statements and I can't understand, I can't understand how there can be consent at one time and lack of consent with the other.

Because when that drug was administered in the night of January 1, 1954, it was administered only once and the consent or lack of the consent occurred only once.

How can you say and tell a court in one term, it is given for a proper purpose with my consent and on the second term, it is given for an improper purpose and without my consent.

Justice Byron R. White: Well, was there any -- was there any difference in the two instances that what suggested the defendant might have known it was given to him.

He might have consented to have his objection but he might not have consented the attempts to being injected this certain kind of a drug, he didn't know what it was.

Mr. Edward J. Hladis: His first petition writ of certiorari Mr. Justice White reports -- indicates that hyoscine and scopolamine “are different names for the same drug”.

You read that first petition that's on file in this Court.

I mean it's quite obvious that he knew.

He knew it was given to him.

Justice Byron R. White: Was the evidence -- does the record indicate anything at all whether he knew what he was being injected with?

Mr. Edward J. Hladis: There's no indication that the doctor told him.

Justice Byron R. White: So if (Voice Overlap) immaterial what anybody has suggested about this sense, the record doesn't show one way or another, does it?

Mr. Edward J. Hladis: I didn't get that sir, I'm sorry.

Justice Byron R. White: Well, the record doesn't show one way or another whether he consented to it, was it -- does it?

Mr. Edward J. Hladis: No, it doesn't.

Justice Byron R. White: It doesn't show one way or another whether he knew that he was being injected with hyoscine?

Mr. Edward J. Hladis: No, it doesn't.

But I think it should make a difference to this Court for this reason.

Justice Byron R. White: I know but it makes further immaterial what somebody else says then about the consent now.

Mr. Edward J. Hladis: I don't think its immaterial sir.

Justice Byron R. White: Well, the record is silent in either way.

Mr. Edward J. Hladis: I understand.

But this is a man's representation and who knows better than the petitioner himself whether he consented to something and he is presenting an issue to you namely coerced confession of which the petitioner himself is the judge and the best that this Court can do is review the record and if it goes along with the petitioner at all, it must rely upon his sincerity, upon his reliability.

Now, if he is going to make one statement in one pleading in this Court in one direction and the opposite in the other direction or does this leave the petition --

Justice Byron R. White: Well, in the first place, you can just say he consented to do an injection of hyoscine or just the injection?

Mr. Edward J. Hladis: The quotation reads that the drugs were administered to petitioner with his consent and would be a valid intention on the part of the police surgeon to alleviate the heroin withdrawal symptom.

Prior to that point at page 4 of the petition, the description of hyoscine and scopolamine are given and it is there conceded that they are different names for the same drug.

Justice Tom C. Clark: He was an addict, wasn't he?

Mr. Edward J. Hladis: I beg your pardon?

Justice Tom C. Clark: He was an addict.

Mr. Edward J. Hladis: Yes sir, he was for approximately two years prior to his arrest.

Justice Tom C. Clark: There's nothing in the record showing that he has suffered withdrawal symptoms before previously in other occasion.

Mr. Edward J. Hladis: No.

No, there was no testimony attempted to be adduced in that point at all.

Now, the administration that was given here was 1/230 per grain of scopolamine together with 1/8 grain of Phenobarbital.

Now in his brief, counsel for the petitioner has set out a great number of medical authorities.

We have examined and reviewed the same authorities in our brief.

And this 1/230 for the grain is approximately 0.27 milligram of scopolamine and the normal therapeutic dose as reported by petitioners own authority is 0.5 milligram.

During the course of number of questions here and I believe it was yesterday afternoon, counsel stated flatly that he was not making any claim of incompetency of trial counsel but did suggest that perhaps trial counsel was not as well equipped as he should have been to conduct the examination.

Well we disagree and disagreed most heartedly.

I think if you'll examine the cross-examination of Dr. Mansfield, the cross-examination of Dr. Hoffman as well as the direct examination of Dr. Proctor, you'll find that John Branion -- Mr. Branion was thoroughly familiar with the properties of the drug.

There's one important item which is common to all three examinations.

When he cross-examined Dr. Mansfield, he wanted to know whether this drug was used for twilight sleep.

When he examined Dr. Proctor, the same question was propounded on direct and when he examined Dr. Hoffman, the neurosurgeon, the same question was propounded in cross-examination.

And that's very significant --

Justice William J. Brennan: This was at the trial finding.

Mr. Edward J. Hladis: This is the trial, that's correct.

And this is very significant because this use of drug in the field of narco-analysis and narco-interrogation began in obstetrics.

It began in the early 1900s and the doctor from Texas came upon a flight suddenly.

The twilight sleep was developed during the early 1900s and a man by the name of Dr. Gauss, G-A-U-S-S is actually the man who developed the technique.

And Dr. Gauss' formula in order to induce twilight sleep was 1/6 grain of morphine plus 1/140 grain of scopolamine.

Now, that's 1/140 of grain scopolamine is more of course than 1/230 of the grain.

Three quarts of an hour later, 1/140 of grain is administered again, scopolamine alone.

And a half hour later, the memory tester began.

In other words, the time of the first injection, they say a cup was shown to the person.

Then you come back and show the person the cup and if they still remember the cup, that means that the degree of anesthesia, and that is what narco-analysis and narco-interrogation is.

That's an anesthetic.

When you read the scientific journal, they speak of dissenting to level to bring him down.

The degree of anesthesia is not high enough so they keep administering the drug until they reach that point.

In 1916, a man by the name of Dr. House doing some obstetric work in Ferris, Texas; it was during the course of delivery and he had a woman, mother, prospective mother under twilight sleep.

He was talking to her husband.

And he asked her the questions -- asked him the questions and he answered them.

He answered them truthfully.

But the point is that when she came out, she had total amnesia for the incident.

She didn't remember it at all.

But immediately Dr. Ferris felt that he had something in the field of -- I don't want to call it psychiatry because in those days, psychiatry was not -- it was just pioneering.

He felt that something could be done.

The newspapers hit upon it and we had the famous phrase “truth serum”.

Of course all your scientific man, even to this day throw their hands up at the term or phrase “truth serum”.

One school did take it on and that was the School of Crime Detect -- Crime Detection Laboratory which was attached to the Northwestern University Law School.

We have there a man by the name of Goddard who led that group.

He was associated and assisted by Muehlberger and Keeler.

And Keeler later ran a crime detection lab and they used this technique.

They used it on 25 volunteers and he made a study of it which is reported in 1932 I believe in Hygeia and his recommendation was that in order to use scopolamine for purposes of narco-analysis or narco-interrogation.

This is the method.

Your initial injection 1/100 of a grain hypodermically and then you have additional hypodermical or hypodermic injections of 1/200 of a grain every 20 minutes for an average of three to six injections until the subject reaches the proper stages of their interrogation.

The important thing to remember that under this system, it is given on an anesthesiologist and the time element is anywhere from an hour and a half to three hours and you have an average here.

I withdraw that.

I'm sorry.

And your initial injection of 1/100 is actually more than twice that was administered here on the first of January and then for three to six additional injections, you have 1/200 of a grain which continues.

If you total this out gentlemen you have an average here of 10 times the amount, 10 times the amount that was administered to this particular individual in order to achieve any kind of narco-analysis which is necessary in order to induce a confession such as is claimed by the petitioner in this particular incidence.

Now --

Justice Potter Stewart: None of this is in the record.

This is in the literature.

Mr. Edward J. Hladis: I beg your pardon.

This is in the literature, yes.

Actually, this part of the research is triggered by several questions of Mr. Justice Black during the course of our last argument.

Now, what are the other uses for -- of scopolamine?

Those are analyzed in the medical authorities which have been advanced by counsel for the petitioner.

A very common use is the preparation for anesthesia, preanesthesia; the reason being that it contracts the Salisbury muscle that maintains dryness.

It is used in the field of ophthalmology to produce psychoplegia.

As I explain the last time to triple or to paralyze the accommodation of the lens to enable the examination so that you cannot see near what you can see far.

An interesting thing, I believe its fine reports that it was used by the Air Force for air sickness.

And the amount of dose that was given was three-tenths of a milligram and study shows that it was given without any impairment of military efficiency.

I think that's quite significant.

You not only have a man flying a plane, this is war time activity because after all, the airplane during war time is secondary.

It's only a means of transportation.

You have a pilot and must maintain formations.

You have a navigere that must make mathematical calculations, you have a bombardier that must make mathematical calculations and you have a gunner whose reflex is better be in top shape.

Now gentlemen, do you think for one moment as these studies indicate that the Air Force have administered three-tenths of a milligram if at any time that have endanger tripling those men, their reflexes to the point that they could not operate efficiently and it's only -- yes, sir.

Justice Arthur J. Goldberg: Perhaps the Air Force also have been given Phenobarbital (Inaudible), doesn't it?

Mr. Edward J. Hladis: The Phenobarbital, no.

At least doctor's finding does not report that.

The Phenobarbital actually, even as Dr. Proctor testifies a very low dose.

This is not in the record.

This is part of inquiries I have made myself with several doctors.

And the purpose of this is I think there are two consistent drugs.

The Phenobarbital going with scopolamine didn't do anything at all.

What it did do, it guaranteed a long ranged sedation.

In other words, give him rest into the next morning because he had these tremendous pains.

It's the scopolamine which in this treatment and incidentally that is one of the tricks advanced by the petitioner.

He said -- he states the fact that the use of scopolamine is a recognized narcotic withdrawal.

It is the scopolamine which acts quickly and you've got to do it because you've got these muscles down here which are contracting and the Phenobarbital carries you along the line.

Now, much has been said here, cases tried defended on the theory that amnesia had developed.

Now, the key to this treatment that uses scopolamine narco-analysis is amnesia.

If you read the petitioner's testimony, it's indeed significant that he remembers the favorable items but forgets the unfavorable.

And there is no record or no history of the partial amnesia in this type of treatment.

In this trial, namely the Boone trial, he says he did not remember the Assistant State's Attorney taking the statement.

The record will show and he was impeached by the -- by his testimony in Stinson trial where he did remember the State's Attorney.

He remembered in the following morning on Saturday when he signed the statement and remembered him to be the same man that talked to him the previous night.

His testimony on psychoplegia, Dr. Proctor his own witness said, “You can't see near you can see far.”

This testimony is exact reverse.

Pre-anesthesia, the quickest reaction is thirst.

No complaint of thirst here at all.

And I think the most significant statement that we have in this record is when he requested the doctor the second time that was on Sunday.

He told the doc, he says, “Doc, those didn't do me any good,” words of that effect which would seem to indicate that there was hardly a threshold of fact there and certainly one which does not go to the nervous system.

Chief Justice Earl Warren: Mr. Hladis.

Mr. Edward J. Hladis: Yes, sir.

Chief Justice Earl Warren: Did they see some place where the doctor left some other medication with him?

Mr. Edward J. Hladis: That is right.

Chief Justice Earl Warren: And he gave instructions to take it --

Mr. Edward J. Hladis: At midnight.

Chief Justice Earl Warren: -- midnight and he took it almost immediately?

Mr. Edward J. Hladis: Well, that was he says.

There was a dispute -- there's a dispute in the evidence on that.

Chief Justice Earl Warren: There is a dispute of that.

Mr. Edward J. Hladis: That's right.

That's (Voice Overlap), yes.

Justice Byron R. White: But there was this Phenobarbital.

Mr. Edward J. Hladis: That's right.

It was a -- he gave 1/8 grain at the time the doctor visited him and he left one-quarter of grains if I remembered correctly.

Incidentally gentlemen, his own testimony indicates that the doctor spent but a few moments with him.

When you examine the studies in the field of narco-analysis, that is a long process just like any anesthesia.

I see that my warning sign has flashed and I would like close with this remark.

Many questions have been asked, many incisive questions.

But the question was propounded yesterday for the first time and also picked up today by Mr. Justice Harlan and later by Mr. Justice Stewart.

Weren't all these matters before the trial judge and the jury and aren't you asking us to make a finding of fact.

Gentlemen, basically that is the decisive question in this case because if this Court is to give this petitioner the relief that he asks for, he must of necessity ask this Court to substitute his judgment for that of the trial judge who saw the witnesses on the preliminary of the jury who saw the witness.

And he must ask this Court to ascribe more credibility to Dr. Proctor his expert as against Dr. Mansfield and Dr. Hoffman, and incidentally in the Court of Appeals in his own brief he conceded that Dr. Mansfield was entitled to be accorded more weight for the testimony was entitled to be accorded more weight than that of Dr. Proctor.

Now that, gentlemen, to me is the case here.

It's a question of fact.

We do not have an undisputed drug-induced, drug-influenced confession here.

We have a confession that was taken and acclaimed is made that it was drug-induced and that claim was made seven years ago in the Criminal Court of Cook County and that fact issue was found against him.

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

Mr. Edward J. Hladis: Yes sir.

Justice John M. Harlan: You referred to the first petition for certiorari in which you said that the petitioner described the drug as alternatively hyoscine and scopolamine.

Is that the same alternative description appeared in the record, the trial record?

Mr. Edward J. Hladis: Yes, Dr. Hoffman gave that testimony.

Justice John M. Harlan: Can you give me the citations to it?

Mr. Edward J. Hladis: Surely, page 1173.

Well, Mr. Justice Harlan, when I give this page, I'm referring to the transcript.

Justice John M. Harlan: Transcript.

Mr. Edward J. Hladis: Yes.

Justice John M. Harlan: The titled transcript.

Mr. Edward J. Hladis: There are several (Voice Overlap) there.

Justice John M. Harlan: Yes.

Mr. Edward J. Hladis: -- there.

Page 1173, Dr. Hoffman testified scopolamine or hyoscine are the same and that was the big issue in the post-conviction hearing in Illinois because then the claim was made that was given against this consent for a sinister purpose and on top of that that Dr. Mansfield withheld this information.

The Supreme Court of Illinois told the petitioner, “Well, you don't have a constitutional right to a label.”

The thing that's important to us as far as the Constitution is the drug, its nature and its effect and that was before us.

Justice John M. Harlan: Was Dr. Hoffman a state witness?

Mr. Edward J. Hladis: Yes.

He testified surrebuttal during the trial before the jury.

Justice John M. Harlan: The question you've just read, was that the result of that question on direct cross-examination?

Well, never mind, I'll get the record.

Mr. Edward J. Hladis: I'll get it for you in a minute sir.

That was on cross-examination (Voice Overlap).

Justice John M. Harlan: Cross-examination.

Mr. Edward J. Hladis: That's right.

Chief Justice Earl Warren: Mr. Hladis.

Would you --

Mr. Edward J. Hladis: Yes, sir.

Chief Justice Earl Warren: -- mind taking just a moment to tell us about these other crimes of this man confessed at that time where according to counsel, he was acquitted to one -- and another the victim said that he was not the man who had done it and various other things.

Would you mind to tell us about that?

Mr. Edward J. Hladis: First of all, I have that in my notation.

Thank you very much for the suggestion because I recall the question by Mr. Justice Brennan yesterday as to whether those are before the trial court.

Of course, the easiest way to find out whether they're before the trial court is to look at the record from the Supreme Court of Illinois, you'll find it's not in there and it's true that Judge Butler did make some inquiries.

But he had to make the inquiry to rule on the objection and the best that Judge Butler did find out was that there were other crimes.

But Judge Butler this day on the basis of this record, doesn't know what those crimes were and neither did the Supreme Court of Illinois because the petitioner kept them out and he kept them out in the grounds where they're highly prejudicial.

Now, they are the Stinson, the Thompson and the Johnson item.

Johnson is a gentleman that was coming home and stopped at the local pub and it was late in the evening.

And he was hit -- as I read the medical history about here.

He did not die immediately.

And during the course of -- certain statement is made, he characterized his difficulty as a result of an action.

It is true that during the course of the interrogation on January 1, 1954, the petitioner did confess to the Johnson murder of the Johnson assault which later resulted in murder.

Now, the petitioner is trying to develop now the idea that there was no murder because the man said, it was an accident.

Well, I said the last time and I say once again, judging the course of the thrust of the blow and it was in the evening as I recall it, how does he know what hit him.

You're walking alone the street that could happen to anybody and Mr. Johnson would not be the first case of a man who was struck in the head and felt that was a result of an accident and later was found to be the result of a murder.

As far as the Thompson case is concerned, that's the one where he didn't remember.

And I believe that's the case where the hassle developed between Officer Cagney and the deputy coroner.

And the hassle developed precisely over this.

The deputy coroner had suggested that the officer go out and get some more information.

Well, these were December 1958 assaults and murders.

I think it appears in the record certainly in the coroner's inquest that Officer Cagney had been working since that time and he felt as though that he had made the case.

And it's over this remark about his going on to get some more dope -- dope by mean information.

That was the language that was used that Officer Cagney became quite excited.

Now, it's true that the petitioner was not represented by a counsel here.

Under the Illinois law, the purpose and that's primary the problem.

The purpose of an inquest to determine the cause of death and if there'd be a felonious death, the statute requires that person who is suspected of causing it be held over the grand jury.

That's the very limited power with -- of an Illinois coroner's inquest.

His sister was there.

A point was made yesterday about his reluctance to testify.

He was warned.

Now if you read the inquest, there's a pattern there.

When they said, “Do you want to testify?”

He either stood mute and I believe -- or I think he stood mute both times or shook his head no.

Then he asked, “Do you want to tell the story?”

The answer was “yes”.

Now, the Stinson, I don't know what happened in the Stinson case and if you look at the case on the evidence and you think the state would never have any trouble.

The man stole the shoes.

He stole the overcoat.

He stole the watch.

By the man I'm talking about the petitioner.

They have the man to whom he sold the -- to whom he gave the shoes and they also have the man to whom he sold the watch and he's also -- he gave the coat.

They go to trial.

They go to a jury with the finding of not guilty.

I appreciate counsel's argument.

I mean he wants to ascribe some degree of infallibility to that particular jury.

He was able to look into Townsend's mind and say that confession was not voluntary therefore, none of them are voluntary.

The best that I can say Mr. Chief Justice on that is that, to me, it establishes one thing.

I've mentioned it before and I think it's worth mentioning again that even in Cook County, Illinois, if for some reason or other in what the reason is here but even in Cook County, Illinois, a jury has some doubt regardless of how heinous the crime, they'll come back with the verdict of not guilty.

And I think when you examine that in this proper perspective, it points out that there is fairness.

And that we do not have a climate of sequestering and enforcing people in this situation such as it's been implied here in one remark or another.

Justice John M. Harlan: Before you sit down.

Mr. Edward J. Hladis: Yes, sir.

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

At the second hearing before Judge Igoe, was there any proper proof made by the petitioner respecting the circumstances of these confessions or as to their truth or falsity, the collateral confessions that was rejected by Judge Igoe.

Mr. Edward J. Hladis: No.

The only offer that I can find Mr. Justice Harlan, you'll find in the transcript of the proceedings of June 12, 1959 which is here, page 64.

And at that time, counsel for the petitioner informed the Court that he desire to recall some state witnesses and ask them one or two questions about it, just one or two.

Justice John M. Harlan: That's the record before Judge Igoe.

Mr. Edward J. Hladis: That is the record before Judge Igoe after the Jennings remand.

Justice John M. Harlan: After the remand, yes.

Mr. Edward J. Hladis: That is correct.

It's June 12, 1960 -- 1959, I'm sorry.

You'll find that at page 64.

Justice John M. Harlan: And what disposition did Judge Igoe made to that?

Mr. Edward J. Hladis: Well, as I remember that sir.

At that time, Judge Igoe advised the petitioner that he had the state court record and that he was going to study it.

Now, how far he had gone, I don't know.

It's been a little while since I read the transcript of the proceeding, how far he went in his remarks.

But he felt that he showed -- look at the record first and it was this point as I remember it, the counsel said, “Well, I just want to recall some state witnesses and ask them one or two questions.”

Justice William J. Brennan: You mean that's the extent to which counsel sought supplementing in the state record --

Mr. Edward J. Hladis: That is right.

Now this -- this information arose out of your question and your question in the last argument.

It was embodied in a supplemental memorandum, and at that time, I searched those two transcripts rather carefully and I tried to give the petitioner every benefit of the doubt.And this is the best I can come up with.

Justice Byron R. White: Judge Igoe took that under consideration?

Mr. Edward J. Hladis: June 12 until the 24th.

He had the state court record and then he down with the decision in the 24th.

Justice Byron R. White: He did indicate one way or another whether he thought he had the power to deal it with the record.

Mr. Edward J. Hladis: As I recall not sir and he made no such indication and I have to -- I -- that's a qualified no.

Justice Arthur J. Goldberg: Alright.

(Inaudible) confession?

Mr. Edward J. Hladis: Yes.

Justice Arthur J. Goldberg: (Inaudible) all these confessions?

Mr. Edward J. Hladis: Yes.

Justice Arthur J. Goldberg: There's no proof that (Inaudible) of the state court, am I correct?

Mr. Edward J. Hladis: That's right.

A pleading was advanced about -- based upon Brown versus Allen and Judge Igoe determined that issue first because that was the position the State took.

That's how he got into the additional answer in this Court.

Justice Tom C. Clark: Of course, that was canvassed and it was based in the record, wasn't it?

Mr. Edward J. Hladis: I beg your pardon sir.

Justice Tom C. Clark: That question was canvassed and was in the record of the state court that Igoe was looking at the question of the confession.

Mr. Edward J. Hladis: That is correct in its entirety.

And the reason being, additional items are not there as I said before was because the petitioner in fact will be kept alone.

Justice Arthur J. Goldberg: Does that mean that some of the arguments (Inaudible)?

Mr. Edward J. Hladis: The way the -- I think both of you gentlemen are talking about different items.

You're talking about the coroner's inquest, the pleadings of paragraphs 18 in that area and Mr. Justice Clark, I believe, he's talking about the confession.

Justice Tom C. Clark: I'm taking about the post-conviction -- state post-conviction trial -- hearing where I understood counsel to say that he was there and that's presented down and then he canvassed all of the facts of this case.

Mr. Edward J. Hladis: First time that I remember sir that an attempt was made to bring the confessions of other crimes in the coroner's inquest picture into this proceeding was in this federal habeas corpus proceeding.

I don't remember it being advanced any other time on the state court's side.

And the reason that it was into coming back to your remark was -- is this.

During the course of both the preliminary hearing and the motion to suppress as well as the hearing before the jury, the counsel called the defendant for the petitioner, Mr. Branion, conducted an examination which in the view of the State's Attorney was rather broad and he sought to use this inquest for indecent purposes and he was stopped.

And the reason he was stopped was because counsel said they're highly prejudicial.

Now, that characterization was somewhat cast aside yesterday by opposing counsel but I think anybody experienced in trial or when a lawyer gets up and said it's highly prejudicial, he knows what it is and he doesn't want it in there.

As we say in our brief, it was the realization that you have voluntary disclosures.

Justice John M. Harlan: The current thing that I'm peculiarly interested in myself is whether or not the Igoe hearing following the remand from this Court, the petitioner sought to introduce any evidence with respect to this collateral confessions as I call them and whether if he did, whether he was denied that opportunity.

Mr. Edward J. Hladis: As I said before, Mr. Justice Harlan and as I remember it, that reference that I gave you is the --

Justice John M. Harlan: Are the only what?

Mr. Edward J. Hladis: -- constitutes the only offer that was made to Judge Igoe after the remand as to what his intensions were.

Justice John M. Harlan: Thank you.

Chief Justice Earl Warren: Mr. Leighton.

Mr. Edward J. Hladis: Thank you very much.

Rebuttal of George N. Leighton

Mr. George N. Leighton: Mr. Chief Justice, to answer Mr. Justice Harlan's question more precisely, Mr. Hladis was not representing the respondent before Judge Igoe.

If you look in the report of proceedings of June 12, 1959 on page 61 of the report of proceeding, I asked Judge Igoe for a full plenary hearing with the opportunity to present evidence, point three of the petitioner's brief before Judge Igoe prayed for an opportunity to be heard and Judge Igoe denied that opportunity by his memorandum order of June 24, 1959.

Now, Your Honor, I would like to have you accept my answer since Mr. Hladis wasn't there.

I asked for an opportunity to be heard, to introduce evidence to be heard in the full sense of that term.

Judge Igoe denied that opportunity.

Justice John M. Harlan: It's at page 61 of the record --

Mr. George N. Leighton: 61 one, yes.

Yes, page 61 and if you look -- if Your Honor will please look at my brief before Judge Igoe, point three, I asked him for a hearing and urged it because I wanted an opportunity.

In fact, I even went out with some rather language that at least when the man is executed, when he is taken to his grave, we can all be satisfied, he had a final consideration of his question.

And Judge Igoe denied that opportunity.

Now, that closed it.

Judge Igoe ruled on the respondent's motion to dismiss in effect and held that he was satisfied.

In other words, he took the court records.

And to answer Mr. Justice Clark's question with regard to the confessions, I did represent this petitioner in the post-conviction petition.

I did refer to those confessions.

Now, my difficulty, if Your Honor please, is the use of the word “canvass”.

On a motion to dismiss, all that was done was the petition was filed.

I made reference of these confessions, asking for the same opportunity before Judge Butler.

I thought if Judge Butler had given me the opportunity to be heard, he might have been persuaded with the fact which Mr. Hladis has not answered Your Honor's question.

He didn't' tell you about Gus Anagnost, saying that X had assaulted him with a brick and then a moment later, they have taken a confession from Townsend after this drug injection that he had robbed Gus Anagnost.

You see, I was hoping that if I could ever get a judge, a trial judge, to listen to me, to hear this evidence, he might be persuaded all these confessions were like Stinson was.

And with regard to the Stinson prosecution, Mr. Hladis didn't touch upon the point that these items of property of the deceased found in and about Townsend's room was shown to the jury to have been in the possession of other persons.

That's why the jury found him not guilty.

That's why they acquitted him.

They didn't acquit him on his specious malfunctioning of the jury system.

They took all of it and they found him not guilty because he didn't believe the confession and I was hoping if I can get before a judge would hear the evidence, he might conclude with me that this confession of Boone case was as furious as the one in the Stinson case, a furious as the one that Gus Anagnost case, as furious as the one in the Thompson case, as furious as the one in the Johnson case.

That's what I want --

Justice Byron R. White: The confessions of these other crimes, were there any written confessions?

Mr. George N. Leighton: Before Judge Butler in the Boone case?

Justice Byron R. White: Yes.

The trial of this case -- the preliminary hearing before Judge on the most of (Inaudible).

Mr. George N. Leighton: Yes.

Justice Byron R. White: Now, the question would be different if there was a direct confession.

Mr. George N. Leighton: That's right, Your Honor.

Justice Byron R. White: And in that the confession was that -- was the other crime (Voice Overlap)?

Mr. George N. Leighton: No, Your Honor.

These were separate -- integrally separate, yes.

Now, one other point about Judge Hoffman and I wish to emphasize this point that when Judge Hoffman was asked this question about the identity of scopolamine and hyoscine before the jury.

The admissibility of the confession had been determined by Judge Butler and I have said this time and again that the only place in this record where anyone thought to ask anyone who knew about the identity of scopolamine with hyoscine was on rebut -- on surrebuttal as Mr. Hladis said, on some surrebuttal when the admissibility of the confession have been determined.

When the only question was the credibility to be given the confessions under the Illinois law and that matter was resolved to the jury.

Now Your Honors, I --

Justice Arthur J. Goldberg: You said that the confession that just as this murder was (Inaudible)

Mr. George N. Leighton: That's right, Your Honor.

Justice Arthur J. Goldberg: Were there any evidence in the record that indicate that those confessions were disputed highly (Inaudible) --

Mr. George N. Leighton: Oh no.

Justice Arthur J. Goldberg: -- than this conviction?

Mr. George N. Leighton: No.

Your Honor, my use of that word is at the fact that the coroner's hearing indicate that in case of Johnson -- Thomas Johnson -- you see, if that confession ever was offered in evidence and the evidence of the circumstances of Johnson's death were put against it.

My idea of it is that it just wouldn't hold one when the man tells a doctor and his sister and everybody else that he had an accident, of course the state will say, he was hit in the head.

We don't know how he was hit.

No one saw he was hit.

He might have been hit by a truck.

We don't know.

People are hit in the head with trucks and other forms of accident.

This man said he had an accident.

That was my point and with regard to Gus Anagnost when the victim himself says that that's not the man and that they have a confession that he was the person.

You see, that's what I meant.

Justice Potter Stewart: All of these victims were skid road dwellers, weren't they?

Mr. George N. Leighton: No Your Honor, they were not.

Justice Potter Stewart: No?

Mr. George N. Leighton: No, yes, they were not.

Thank you, Your Honor.

Chief Justice Earl Warren: So gentlemen before we recess, I just want to express my appreciation to both of you.

I understand that -- Mr. Leighton that you were appointed by the court below to represent this man and you have certainly represent him for a long time in a very diligent and very efficient manner and I want to express the appreciation of the Court to you for that.

And Mr. Hladis, I also want to help you -- want to thank you for being so helpful to the Court and for representing your state in such a fair and diligent manner.

Rebuttal of Edward J. Hladis

Mr. Edward J. Hladis: Thank you, Your Honor.

Print this transcript Transcript:

Argument of George N. Leighton

Chief Justice Earl Warren: Number 8, Charles Townsend, Petitioner, versus Frank G. Sain, Sheriff of Cook County.

Mr. Leighton.

Mr. George N. Leighton: Mr. Chief Justice, may it please the Court.

This is a reargument of the case in which certiorari was granted to review a judgment of the Circuit Court of Appeals for the Seventh Circuit affirming dismissal of petitioner's application for a writ of habeas corpus filed in the District Court after exhaustion of all the remedies under Illinois law.

To set this case in proper perspective, I would first take the facts which give rise to the substantive federal question.

Then I will briefly state the procedural history of this case including the federal questions presented for Your Honor's decision.

And finally, I will present the argument which I believe will support petitioner's contention that his conviction in the Illinois criminal court violated the Fourteenth Amendment to the Federal Constitution.

In stating the facts Mr. Chief Justice, I will only refer to the undisputed facts in this record so that it may be clear that I will not rely upon any fact about which if there's any dispute between the parties.

On January 1, 1954 at about 1:45 a.m., Charles Townsend was arrested in the City of Chicago by Chicago police officers.

At that time, Townsend was 19 years of age and since he was 15, he had been a narcotic addict and just about an hour and a half prior to this arrest, he had taken a large injection of heroin.

These facts were all known by the police officers.

He was taken to the second district police station in the City of Chicago, questioned a short time about the murder of a man named Jack Boone who had been found dead on December 18, 1953 in the City of Chicago, not very far from where Townsend was arrested.

About five o'clock that morning, he was transferred to another police station where he remained without being interrogated by anyone until approximately 8:30, the evening of January 1, 1954.

He was then brought back to the same police station where he first been taken and interrogation resumed of Townsend by the same police officers who in the meantime had gone off on their breaks.

Soon after he was brought back to the second district, there was what we called in Chicago police practice, a show up for the purpose of enabling a man named Gus Anagnost to identify Townsend as the man who had attacked him with a brick sometime before.

Gus Anagnost did not identify Townsend as the assailant.

In fact, he picked out another man in this show.

Soon after that episode, the police officers attempted to continue the interrogation of Townsend and they discovered that Townsend was then in the throes of the withdrawal symptoms of the drug he had injected the early morning hours of that day.

Justice Potter Stewart: This was now how long after his arrest?

Mr. George N. Leighton: Approximately 14 hours, Your Honor.

Now, at that point, the Assistant State's Attorney who took the confession here involved had arrived at the police station.

He saw Townsend and he himself suggested that a doctor be called and as he said to his superiors to determine the capabilities of Townsend to withstand interrogation.

A doctor employed by the police department was called and he came to the police station arriving there about 9:45 p.m.

He immediately diagnosed Townsend's condition as a narcotic addict in the withdrawal symptoms and he then prepared a solution consisting of phenobarbital, a sterile content of the tool we had and what he said later was 1/230-grain of hyoscine.

And that when he attempted to inject this into Townsend there was some quarrel between Townsend and the doctor as to where this injection was to be made.

Now, it is very clear in this record, if Your Honors please, that none of this was of Townsend's choosing.

The closest thing the record shows is that Townsend complained of being ill, the rest of it was entirely the determination of the police around them.

And in this record, it is also important to remember that at the time that this doctor was called, witnesses for the prosecution all testified that Townsend had said that he did not want to talk about this case at all.

The police officer who seemed to have been the principal officer so testified Mr. Janega who took the confession, emphatically explained that when he saw Townsend, Townsend indicated an unwillingness to talk about the case at all because of his inability to answer any question.

Justice Tom C. Clark: Did he speak with the boy?

Mr. George N. Leighton: He had not, Your Honor.

Now, there is in this record, one little place in this record, Mr. Justice Clark in which one police officer, not the principal police officer, one police officer inferred from an answer to a question that Townsend had said something that seems to have been incriminatory sometime prior to this.

But no way it is attached to this statement in view of the petitioner.

But he had not made any statement, he had not confessed to be at the crime.

Justice Byron R. White: But, he had been questioned?

Mr. George N. Leighton: He had been questioned, Mr. Justice White.

He had been questioned, he had denied.

That's very clear in the record, Your Honor, very clear.

Justice Arthur J. Goldberg: Mr. Leighton, didn't -- didn't Townsend say that he wants to talk to a doctor.

Mr. George N. Leighton: He said he wanted to see a doctor because he was ill.

Justice Arthur J. Goldberg: Yes.

Mr. George N. Leighton: Yes.

Justice Arthur J. Goldberg: He never said that he asked him.

Mr. George N. Leighton: That's right.

Now, there was a quarrel Mr. Justice Goldberg between Townsend's testimony here and the doc -- and the police officer whether the idea of calling the doctor was entirely the police off -- there is, but we don't rely upon that.

There is a general consent that he asked to see a doctor, the doctor was called.

But the point we make is that the doctor was not of his choosing, it was a police doctor employed by the City of Chicago who came there.

The medicine was not of his choice.In fact, the record shows very clear that when the time came to make the injection, he resisted the injection, the doctor wanted to put it here, he asked them to put it there, but nonetheless the doctor said, “I'll do it, I know how to do this,” and he injected the drug.

Now, it is clear in this record that a miraculous result developed as a result of this injection.

This man who had told that Mr.Janega that he didn't want to talk, who had told the police officer that he couldn't speak, the same man whom the police officer described that he was bent so many times, and with pain that he couldn't count how many times he kept on bending over complaining, the same man no soon as the injection was completed, the doctor walked out one -- one door, in the same room, he was taken into the adjoining room immediately and there according to everyone involved, every single witness of the prosecution, a completely changed individual was there willing to answer every question asked to them.

Not only that he did give one confession on the record now before Your Honors but he gave five.

He gave one that he robbed Gus Anagnost, the man whom had said that Townsend did not rob him.

He gave a confession that he had murdered a man named Thompson, a homicide concerning which the police had to admit they had no evidence and even Townsend according to Mr. Janega and according to the police officers had no independent recollection of the episode leading to the death of Thompson.

He also confessed to the murder of a man named Thomas who told his sister that when she came to the hospital, “I had just had an accident, it was just one of those things.”

And concerning whom the arresting officer or the investing officer complained to the coroner that when he came in response to a call he asked them, “Why did you bothered to call me?”

There's nothing here indicating a robbery and any of that sort.

He confessed about the murder of Thomas.

He also confessed the robbery of a man named Martin and then finally confessed that he robbed -- to the murder of a man named Boone.

He also confessed the robbery and murder of a man named Stinson and according to Mr. Janega's report to his superiors, this was such a billion piece of police work.

He thought these police officers should have been commended because he pointed out to him the cause of the investigation and in connection with this interrogation they found Stinson's shoes, his wristwatch and several other personal items all in and about Townsend or connected to him.

The jury heard all of that, if Your Honors please, and found Townsend not guilty and discharged him.

Now, in this case which was the second of the series of these indictments arising out of these confessions, he was tried and sentenced to death.

A review was had in the Supreme Court of Illinois in which I represented Townsend as the Court-appointed lawyer.

The Supreme Court of Illinois affirmed Townsend's conviction and the use of this confession on the ground that the Supreme Court said that the medication given to Townsend by this doctor was a proper medication if not be in shown otherwise.

And that since it was and the thrust of the Supreme Court of Illinois opinion is that since it was not an improper medication, the Supreme Court said that the fact that he also had regurgitated a confession that was use to take his life did not deny due process, and I'll come back to this point when I get to the argument.

We applied for certiorari before Your Honors and with Mr. Justice Douglas' believing the writ should have been issued, then this Court denied certiorari.

Then we went back before the criminal court in Chicago and filed under Illinois law a post-conviction petition alleging that in the course of the review, counsel on appeal had learned that hyoscine which was the only designation but for one other place in the record used in describing this drug to the Court in jury was in fact a drug known scopolamine or in the science work in crime detection also known as the truth serum and that this fact crucial as it was and informative as it was had not been told to the judge or jury that had passed upon the admissibility of the confession and that had used the confession to impose a death sentence against this petitioner.

That petition was dismissed.

We took another review in the Supreme Court of Illinois and the Court in a memorandum unreported order upheld the dismissal, Your Honors denied certiorari.

A few days before the execution of Townsend, we filed a petition for habeas corpus in the United States District Court and --

Justice Potter Stewart: In the -- going back just a moment to the post-conviction of state proceedings as a --

Mr. George N. Leighton: Yes sir.

Justice Potter Stewart: -- what you said the -- it was dismissed.

Was there a hearing of any kind?

Mr. George N. Leighton: Well, there was a hearing before Judge Butler who had originally granted -- who had -- who has heard the case.

Judge Butler on motion of the State's attorney dismissed the petition.

There was a hearing in the sense that we presented the petition and supported by affidavits.We were not allowed to introduce any evidence.

But on motion to dismiss, it was dismissed on the theory that the review on writ of error under several Illinois cases disposed of old questions.

They apply a very broad res judicata doctrine in post-conviction procedures in Illinois and the Supreme Court upheld the dismissal.

Justice Potter Stewart: Without opinion?

Mr. George N. Leighton: Without opinion, just a memorandum only, Your Honor.

Justice Potter Stewart: Alright, thank you.

Justice Tom C. Clark: Were there affidavits that controverted the (Inaudible) or it was a legal argument in --

Mr. George N. Leighton: It was just legal argument with sufficiency.

The affidavits were not controverted.

There was no counter-affidavit filed.

Now, before Judge Igoe in the United States District Court, we applied for certiorari reviewing all these facts which I just stated to Your Honors.

In addition to that, by this time I had learned about these five confessions prior to the time of the affirmance in the Supreme Court of Illinois.

But by this time I then added paragraph 18 to which I'll make further reference in the course of this argument.

Judge Igoe dismissed the petition for habeas corpus on motion of the respondents.

And we took an appeal to the Court of Appeals for the Seventh Circuit.

The Seventh Circuit dismissed the appeal.

Now, we asked for certiorari in this Court and Your Honors vacated the order of the Seventh Circuit and directed that the matter be heard pursuant to the doctrine of Jennings versus Ragan.

Of course, that went back before the District Judge and this time respondents obtained the three volumes of the trial in the Criminal Court of Cook County plus the one volume of the post-conviction proceeding and that Judge Igoe proceeded then to the request of the petitioner, a brief and similarly from the respondents.

Briefs were filed and one of the prayers of the brief and one of the contentions made in the brief for the petitioner before Judge Igoe was that we were entitled to a full plenary hearing to determine whether or not it was known at the time of the trial that this drug was the ‘truth serum,' so referred scopolamine, and also whether or not contrary to the opinion of the Supreme Court of Illinois which we then argued was the use of an impermissible stand to determine due process whether or not a full plenary hearing would not reveal the fact that this petitioner was denied due process.

Judge Igoe entered an order after hearing of June 12, 1959, an order that was dated June 24, again dismissing the petition for habeas corpus.

We then appeal to the Court of Appeals for the Seventh Circuit.

The Seventh Circuit affirmed holding that in a habeas corpus application a federal judge is limited to the undisputed portions of the record of the trial court and holding further that it was a burden upon the petitioner to prove that he'd been denied due process and the Court said that this burden, the petitioner had not carry.

This despite the fact, the record is clear that in the District Court we had asked for an opportunity to prove the allegations of the petition and that opportunity had been denied to us.

And on the substantive question, the Court said that -- the Court of Appeals said that there was no denial of due process.

Now, this judgment of the Court of Appeals, if Your Honors please, presents two groups of questions, one procedural, another substantive.

The procedural question presented is whether it is as the Seventh Circuit held that in an application for writ of habeas of corpus, a District Court is limited to the undisputed portions of the record of the trial court and the second procedural question is whether error, prior judicial error was not committed by the Court of Appeals in affirming on the ground which plainly was contradicted by the record, namely to hold that the petitioner had not carried a burden when the course was dismissed on motion.

And the opportunity to carry the burden had been denied to the petitioner.

And finally, the substantive federal question is whether the Fourteenth Amendment is violated by the admission in evidence of a confession taken from a defendant while under the influence of a drug injected by a police doctor.

Now, dealing with the procedural questions, which I suggest most respectfully, if Your Honors please, are easy.

In Rogers versus Richmond, the Court of Appeals for the Second Circuit reversed an order in a habeas corpus matter and an application for certiorari is made before Your Honors.

And Your Honors construed the judgment of the Court of Appeals for the Seventh Circuit, as meaning that while the District Court in an application for habeas corpus may accept the determinations in the state court, may accept.

But he is not bounded by them.

He may in his discretion and judgment having examined those records and determined whether or not there is a vital flaw to use the words from Brown versus Allen, he may accept those determinations as one judge may always accept determinations of another judge fully supported by evidence and consistent with law.

But Your Honor said that you read the opinion of the Second Circuit as not making a binding ruling upon the federal judge.

And going back to what Mr. Justice Frankfurter said in Daniels versus Allen, the Congress of the United States entrusted to the federal judges, district judges, the duty to determine whether in a state court proceeding resulting in deprivation of liberty or life, whether the Federal Constitution had been fairly and properly determined and we had argued in the District Court that the thrust of the application for habeas corpus was that in the state courts, the federal questions which the petitioner had raised had not been fairly determined.

And thus we say, that when the Court of Appeals for the Seventh Circuit held that Judge Igoe was limited to the undisputed portions of the record that -- that judgment is in conflict with the Second Circuit opinion in Rogers versus Richmond as Your Honors construed that opinion.

Because it isn't true and Your Honors have never held that district judges are limited to the undisputed portions of the state record.

But the facts were true then, habeas corpus wouldn't mean anything to a federal -- to a prisoner from a state court.

It wouldn't have any meaning because all that -- all that the federal judge would be bound to do was to look and see whether or not there's been some undisputed determinations and there'd be no substance for habeas corpus application.

It was all to nullification of the Habeas Corpus Act as we understand it.

Now, with regard to the point which the Court of Appeals made that the petitioner did not carry his burden, this doesn't require much more than a comment.

I took the time out today just to be certain about it and in the record before Your Honors is the brief I filed for this petitioner before Judge Igoe.

Point three in that brief argued that we were entitled to a full plenary hearing and I even try to argue before Judge Igoe that Your Honors caricature of that judgment on application for certiorari amounted to a fine determination that the application for habeas corpus stated the cause of action.

And that the Court was without power to do anything else but to grant a hearing.

Justice William J. Brennan: Now, a hearing is (Inaudible)

Mr. George N. Leighton: Well, Your Honor, first I wanted an opportunity to prove by competent evidence that this drug, contrary to the opinion of the Supreme Court of Illinois, this drug was not a proper medication under the circumstances of this case.

You see, I had acquired a considerable amount of practical knowledge about hyoscines, scopolamine, and its use.

Justice William J. Brennan: Your point was that this had not been in Court, in the state proceedings?

Mr. George N. Leighton: That's right, Your Honor.

Justice William J. Brennan: And why has it not --

Mr. George N. Leighton: Well --

Justice Byron R. White: There's no (Inaudible)

Mr. George N. Leighton: In the state proceeding, Your Honor, the -- see that the point is new, that's the first thing.

Justice William J. Brennan: Which one?

Mr. George N. Leighton: The question of the use -- you see, I don't think there's ever been a case where a man has been given hyoscine and then a confession taken from him and used against him.

Either in practice or in any reported case, I haven't found that with exception of Griffith versus Rhay and I have conceded, everywhere I've argued, that Mr. John Branion is one of the most respected defense counsels we have in Cook County.

But Mr. Branion just didn't understand the thrust of this question, it was complex.

And the matter had not been explored properly.

I take the position that the objection to the confession includes all the myriads of questions which are conceivable out of that objection.

And one of the objections was when that -- when that confession was offered, that this drug given to the petitioner under the circumstances here involved was such as to have rendered him delirium --

Justice William J. Brennan: Or with that knowledge on the volume of the drug of that type or kind, Mr. Justice Fortas statement of (Inaudible) stated by the defense counsel then, would that offer you a substantial evidence?

Mr. George N. Leighton: I suppose that if it had been -- if all these facts had been known that the Supreme Court perhaps would not have been in -- led into this erroneous -- erroneous conclusion, I believe it could have been done, but it's just a matter of having the facts and since the objection was made, this is not a case where the defendant waived an objection, he did what he could on the circumstances.

Justice William J. Brennan: Is that -- how much, as the facts have claimed, confessions to be vital or (Inaudible)

How much of that facts were indicated and stated?

Mr. George N. Leighton: None, Your Honor.

Now, the point is made in the course of these proceedings that objections were made before Judge Butler to these other coroner's inquest to the confessions.

Now, as a defense counsel with some experience, I can understand how, in a murder case, evidence of other charges would be excluded.

And I'm told by a supplemental memorandum here that we have taken the position in this Court, we didn't take in the court below.

But I've looked at the record very carefully and it isn't true that all this was excluded from Judge Butler.

The record shows that when objections were made to these other hearings, the objections were finally overruled by Judge Butler, and he knew, Judge Butler knew that at the time that he was hearing evidence about this particular confession, he knew that at the coroner's hearing, there had been more than one confession taken, and that appears on page 141 of the printed abstract.

Or if Your Honors need a most certain reference to page 392 of capital A of the typewritten record and Judge Butler overruled the objection and the questions that Judge Butler himself asked showed that he understood that more than one confession was involved.

He says, Question: “Did you say it was about five minutes?”

He answered, “For that particular statement?”

Question: “Do you voted to asking this defendant questions about the medicine involved?”

Mr. Boone: “That's right.”

Question: “Was all the rest of the time that was spent there devoted to discussion about the matters?”

“Yes, sir.”

The Court: “Do you want to object to that question, Mr. Branion?”

Mr.Branion: “Yes, Judge.

I beg to it.”

The Court: “Objection overruled.”

Judge Butler knew very well that these interrogations at the coroner's hearing involved other charges so that after preliminary hearing to determine the admissibility of this confession, these other facts were either directly or inferentially brought in before Judge Butler.

So it isn't correct to say as we were confronted with the last -- on the original argument that the defense succeeded in keeping out from Judge Butler all the information.

Judge Butler is an experienced judge.

He knew that a coroner's hearing of this kind and there's enough in this record that have alerted any experienced judge that this was a hearing in which they were trying to do what the police officer said.

They were trying to clean up the record.

At one point of its aspiration, the police officer complained that the coroner was preventing them from cleaning up the record with this social drearily, this narcotic addict of 19 years of age.

And Judge Butler knew that, so that it is --

Justice William J. Brennan: Do you have evidence (Inaudible) demonstrated the unreliability of the (Inaudible)

Mr. George N. Leighton: That's right, Your Honor.

Justice William J. Brennan: -- on the same drug.

Mr. George N. Leighton: That's right, Your Honor.

Your Honor it is probably the safest statement to make about this drug.

If you were to make a complete study of all the scientific evidence about this drug, it's an undependable drug.

It's a drug which has been limited in use because its reaction is so uncertain.

It has idiosyncrasies which the best pharmacologist cannot predict.

It depends upon the physical makeup of the individual, even the chemical content of his blood may be important at the moment that it's injected.

It may have one reaction in one person of the same age, the same weight, and the same physical condition, and another person have a completely idiosyncratic result.

Now, no one knows that condition of Charles Townsend at the time this drug was injected.

But the significant thing is this, and I can't get away from this point.

Before, the doctor was called, he didn't want to talk to anybody.

He didn't want to talk about the case.

No sooner the doctor left he was an entirely different person.

Not only did he give the confession that they wanted, but he also gave the confession in this -- in the four of the cases and I think it's significant that when Your Honors requested the respondents that they answer more specifically paragraph 18 of the petition for habeas corpus, the attorneys for the respondent attacks as Exhibit A, the letter of Mr. Janega which he wrote to his superior about this incident.

And in the main paragraph of this letter appear these words, “After his administrations referred to the doctor, I was able to get confessions from Townsend.”

Those are the words of the Assistant State's Attorney who took the confessions, “After his administrations, I was able to get the confessions indicating that the injection of the drug was the prime moving factor that produced these confessions.”

Justice Arthur J. Goldberg: Mr. Leighton, what happened in the other case (Inaudible) would you make the same (Inaudible) in making this confession?

Mr. George N. Leighton: No, Your Honor, because this would be different.

Justice Arthur J. Goldberg: In what?

Mr. George N. Leighton: You see, Your Honor we have a number of cases during the prohibition days and even after of confessions taken from inebriated defendant.

And those are the cases by the way which the Supreme Court had been relied upon.

In those cases, Your Honor, there is absent state power.

Say a man who drinks a bottle of whisky and gets drunk and goes out and confess that he murdered John, he can't complain anybody compelled him to confess.

But a different situation exists when while under his intoxication, he's given a drug to awaken him by, I think, a police officer or a state police doctor.

And then while he was emerging from his state of inebriation and this destruction of the will occurs by the drug which was given to him, a different situation occurs, Your Honor.

I distinguish the case you put in this case on the simple ground that here we have that interposition of state power in the form of a needle and a drug injected by a police doctor.

Justice John M. Harlan: You have just as much state power in the case of the police officers who persist in taking a confession from a man he knows to be intoxicated at certain state action --

Mr. George N. Leighton: Well, Your Honor I was assuming, in the question of Mr. Justice Goldberg, I was assuming the case where a man is drunk in the cell and while he's drunk in the cell he begins talking.

I'm not -- the case, Your Honor, refers to where while he's drunk the police officers job to get him to testify.

Justice John M. Harlan: I thought that's what you're --

Mr. George N. Leighton: No, Your Honor.

No.

In that case I would say the confession isn't voluntary also in that case.

Now --

Justice Potter Stewart: Well, the specific question which Mr. Justice Goldberg asked you, was more directly related to the facts of this case.

This man was suffering from withdrawal symptoms and we've learned from the record in other cases that this is a very serious illness.

Mr. George N. Leighton: Yes.

Justice Potter Stewart: And that a person so suffering has a compulsive need, either for a desire, either for more narcotics or for some sort of medicine to ease the great pain of that illness.

Now, certainly a confession made under those circumstances and a confession made when they -- when no doctor was called to administer to that illness would be -- would raise a much more serious constitutional question than this one, wouldn't it?

Mr. George N. Leighton: It would.

It certainly would Your Honor, it certainly would.

Justice Potter Stewart: That has immunizes narcotics addict from an interrogation, isn't it?

Mr. George N. Leighton: Well, but Your Honor it seems to me a very simple rule to bear in mind that you don't question a person who doesn't have control of his willpower.

And a narcotic addict in the throes of the withdrawal symptom is not a person who acts with willpower.

Your Honors have held that any factor which destroys the will, whether be physical or mental, Your Honors have held that in Leyra versus Denno, Blackburn versus Alabama and all the cases Your Honors have decided.

The important thing is -- the important question is, was this confession a result of a voluntary act.

Was it volitional?

Now, if narcotic addict takes his own drug and while he's lying there and joined stupor, that he's self-imposed, and he regurgitates a confession and all the police does listen to him, do nothing neither urging him, that question is more difficult but we don't have that questions before us.

You see, now that question is a difficult question.

But that's not the question now here Your Honor and I go back to the point which I think is the thrust of this case.

Before the doctor came, he said, “I cannot talk to anybody.”

And there -- this is undisputed.

The police -- the police officer testified to his condition and then when the drug is given to him immediately, immediately the police officer testified that while Dr. Mansfield was leaving one room, he was leaving Townsend into the table where Mr. Janega was.

And Mr. Janega said this was a different man entirely.

The man whom he said that he wanted to have his capability determined by the doctor was now just simply answering questions and the -- and the chronology of events showed.

Justice John M. Harlan: Weren't all those issues before the jury?

Mr. George N. Leighton: Not as to the admissibility of the confession, Your Honor because in Illinois, we don't submit that.

Justice John M. Harlan: Well, before the jury, it isn't --

Mr. George N. Leighton: The credibility --

Justice John M. Harlan: -- but is it before the judge, was it?

Mr. George N. Leighton: That's right.

Now, I'm not known --

Justice John M. Harlan: Did they make --

Mr. George N. Leighton: Your Honor, the record doesn't show except in the general discussion of this drug that the question doesn't -- the record doesn't show that Judge -- that Judge Butler had all of these, which is my point.

And one of the tragedies of this case is this -- that all these facts are not known, that's why we have post convictions proceedings.

Justice John M. Harlan: Is it your point that there has been more knowledge, more scientific knowledge brought to light about the effects of this drug since the hearings were involved here?

Mr. George N. Leighton: No.

Well, in the sense that someone representing this man knows about it.

This defendant certainly didn't know anything about it.

He didn't know.

You see according to the prosecutions own witnesses, this man was just one grade of a (Inaudible).

Justice John M. Harlan: Or he has had a counsel, didn't he?

Mr. George N. Leighton: He had counsel, yes.

He had counsel, court-appointed counsel, there's no question about that.

I make no point here about in the competency of counsel as such except this, that inherent in the facts of this case Mr. Justice Harlan, that's not the question.

And that is whether inherently in the facts here, there isn't a question of denial of counsel at the time of the interrogation, you see.

And I submit that the objection to the -- to the confession made at the time he was (Voice Overlap) includes this question which was decided by the Court of Appeals for the Ninth Circuit in Griffith versus Rhay where in that case while the man was on the -- out of an operating table and while he still on the influence of several drugs something like scopolamine, hyoscine, he gave a confession.

The Court didn't pass upon the involuntariness of the confession itself.

The Court went to the much more esoteric question, and that is that he was denied right of counsel at the time of the interrogation when he was taken with police officers and court reporters and thus the confession is admissible.

Now, and I submit to the Court that inherent in the objections of the confession, is included this other, which is a due process of questions which Your Honors have held --

Justice William O. Douglas: What's the scientific knowledge of the -- is there anything else that the lawyers have regarding this drug?

Mr. George N. Leighton: It didn't have the facts.

Justice William O. Douglas: (Inaudible)

Mr. George N. Leighton: Oh yes.

Justice William O. Douglas: (Inaudible)

Mr. George N. Leighton: The record doesn't show that Your Honor, except that this fact --

Justice William O. Douglas: That Judge Butler knew?

Mr. George N. Leighton: Yes.

You see there was enough quarrel about it.

There's enough quarrel about it between counsels to indicate that that everyone knew that this -- that as I -- I do not want to sound (Inaudible), Your Honor, but on January 4, 1954, it was Charlie Townsend day at the coroner's hearing because they had all the cases there that involved Townsend anywhere.

And the point is made here by counsel for the respondents that at this coroner's hearing, there was no denial of due process because his sister was present.

Now, Your Honors can imagine how it affected one sister of his at a place where the prosecution represented by a lawyer of some 20 years experience and half-a-dozen police officers, and the only one present there in the audience is his sister.

They make that point.

Justice Arthur J. Goldberg: Mr. Leighton, did he -- at the hearing, the coroner's inquest also testified that these other crimes of which he is not -- not have been found guilty?

Mr. George N. Leighton: Well, Your Honor, that question brings out a very instinct fact about this case.

He did testify about this case here, the Boone case.

There's a dispute between the parties whether that testimony was voluntary or not.

In fact, the record shows a great deal of concern about that and that's how these coroner's hearings came into prominence in the trial of the case.

The defendant testified that what he said at the coroner's hearing was in fact told him by the police officers.

That was his testimony on the record.

It was this testimony of the defendant on direct examination that gave rise to the attempt of the prosecution to prove that what he said before the coroner's hearing was not a suggestion by the police officer but was voluntary.

There's a great deal of dispute whether or not at the coroner's hearing when the coroner did what they do in Chicago, asked the defendant, “Do you want to testify?”

He said, “No.”

There's a great deal of difference between the parties where that occurred.

Finally, with this police officer questioning him, he finally said yes.

Then he answered the questions almost in the same way that the statement is worded.

The result --

Justice Arthur J. Goldberg: The statement or the other statements also?

Mr. George N. Leighton: No, this one in particular.

Justice Arthur J. Goldberg: This one.

Mr. George N. Leighton: This one particularly.

There's an interesting episode there when -- in connection with one of the homicides, he -- he asked the question, “Where were you on the night of December 3, on that date?”

And he said, “I was at -- at 6:30 p.m.” or whatever the hour was, he said, “I was at Giles & 35th.”

And as Your Honor well knows, Giles & 35th is quite a distance from 47th & Wabash.

So the coroner pointed out that was quite a distance.

And there, it developed that episode.

Can I make (Voice Overlap) --

Chief Justice Earl Warren: We'll recess now.

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TOWNSEND v. SAIN. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1960-1969/1962/1962_8>.

TOWNSEND v. SAIN, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1962/1962_8 (last visited April 27, 2013).

"TOWNSEND v. SAIN," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1960-1969/1962/1962_8.

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