LYNUMN v. ILLINOIS

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Argument of Jewel Lafontant

Chief Justice Earl Warren: Number 9, Lynumn versus Illinois.

Mrs. Lafontant.

Ms Jewel Lafontant: May it please the Court.

Mr. Chief Justice, members of the Court.

The petitioner herein was tried and convicted for the unlawful sale and possession of narcotics.

And her convictions affirmed by the Illinois Supreme Court.

She sought certiorari on the ground that the confession obtained from her by threats and promises was used against her in her trial in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

This Court granted certiorari upon receipt from the Illinois Supreme Court of a certificate that decision of the federal claim refer to in the order of the United States Supreme Court was necessary, was necessary to the judgment rendered by the Illinois Supreme Court.

The people's testimony reveals that on January 17th, 1959, an informer, one Zeno, who had been previously convicted of the unlawful sale of narcotics, was again in the custody of Illinois officials for again violating the narcotic laws.

He agreed with his arresting officers upon promises of leniency by the said officers to set up an undisclosed third party for the crime of the sale of narcotics, wanting to keep from going to the penitentiary if he possibly could, as will appear on page 21 of the record, this informer took the arresting police officers Bryson's, Sims and Kobar to the apartment building where petitioner resided.

Alone, he gained admittance to the apartment.

Inside that apartment, there were three people present, namely the petitioner, the informer Zeno, and a visitor.

Zeno was out of the presence or sight of the police officers from 10 to 15 minutes.

He later emerged from the doorway leading to the apartment, rejoined the arresting officers and handed them a package which contained marijuana.

He told them that the petitioner had given it to him, had sold it to him.

It is uncontroverted that the arresting officers were not present at the time of the alleged sale, and that they relied upon the word of Zeno that the petitioner sold the narcotics to him.

Followed by the police officers, Zeno returned to the petitioner's apartment and then she opened the door, she was arrested.

She was grabbed by both her hands and she was told by Officer Sims that she had unlawfully sold narcotics to Zeno.

She was then taken back into her apartment, to the bedroom, if you please, flanked by two police officers.

In her own behalf, she protested for innocence.

Now, while in that bedroom, Officer Sims had adroitly inquired whether petitioner had any children, noticing ad bringing up the fact that there was children's clothing in the bedroom.

He also inquired quite adroitly about her subsistence.

And he found out that she had two little children ages 3 and 4 that she was receiving state funds in order to help support those children, state funds from what is called Aid to Dependent Children in Illinois or ADC.

And then he said at page 35 of the record, “If we take you into the station and charge you with the offense, the ADC would be probably be cut off and you will probably lose custody of your children.”

He also said that during that same conversation, he promised to recommend leniency to the state if the petitioner would cooperate.

Then and only then, the petitioners said “Yes, I did sell it to him”.

This confession of a guilt of the petitioner brought out by Illinois on direct examination of his own witness, we submit was timely objected to on the basis of having -- the confession having been induced by promises of immunity at the trial level.

And the objection was preserved by a later motion to strike.

And the statement was also made at that time that the objection was made because the confession was made under promises of leniency.

Justice Byron R. White: (Inaudible)

Ms Jewel Lafontant: At that point –-

Justice Byron R. White: (Inaudible)

Ms Jewel Lafontant: At that point, the federal ground was not stated in particularity.

The only statement was (Voice Overlap) –-

Justice Byron R. White: (Inaudible)

Ms Jewel Lafontant: No.

Justice Byron R. White: (Inaudible)

Ms Jewel Lafontant: That's correct, Your Honor.

Justice Potter Stewart: Where does that appear in the record, Mrs. Lafontant?

Ms Jewel Lafontant: That that appears at page 27 of the record.

Chief Justice Earl Warren: Was it argued at the trial level in constitutional terms?

Ms Jewel Lafontant: Well, in my interpretation, I would say that it was in that -- the general statement was made that the petitioner had been denied her rights since I understand it because she -- this confession was coerced, in view of the fact that she was threatened with having children taken away from her, that was brought out, but it was not specifically spelled out, that the particular provision of the Due Process Clause of the Fourteenth Amendment was being violated.

Justice John M. Harlan: Was that of any significance in view of the Supreme Court certificate?

Ms Jewel Lafontant: I would say not, Your Honor.

I believe that the Supreme Court certificate -- I would say first that even without the Supreme Court's certificate, by looking at the evidence as a whole that -- it would not beyond -- be beyond the realm of reasonableness to say that the question was actually brought up.

But in view of the fact that it was raised very specifically in the Supreme Court's brief, and in view of the fact, the certificate from the Illinois Supreme Court states that it did consider the constitutional question, that he did consider it, and then it was necessary for its decision, I think would render the question moot in the view of all of these.

Justice John M. Harlan: And since you could well-afford to rest on the Supreme Court's certificate on that finding.

Ms Jewel Lafontant: Well I -- I don't wish to rest upon anything until my half hour is up.

Justice Potter Stewart: Mrs. Lafontant, the certificate in which Mr. Justice Harlan referred on page 80 of the record and it refers to an order of this Court dated November 13, 1961.

Is that order in the record?

Ms Jewel Lafontant: The order itself is not in the record, Your Honor.

Justice Potter Stewart: It says, of the federal claim referred to in the order of this Court.

What --

Ms Jewel Lafontant: Yes, well --

Justice Potter Stewart: How is that federal claim verbalized in this Court's order, do you remember them?

Ms Jewel Lafontant: The order the Supreme Court of the United States was directed to the Illinois Supreme Court to answer the question whether or not the Illinois Supreme Court had considered pages 66 of petitioner's brief in the Supreme Court and it was quoted that it was unfair to make a promise -- mimic on a promise, coerce a confession and then use that confession as evidence, that's what was substantially.

And the Illinois Supreme Court answered and said that it did consider that question, the federal question.

I believe I do have a copy of that order in my notes.

Now, I -- we submit that the in -- inadmissibility of this confession was presented in the appeal brief just referred to before the Supreme Court of Illinois and again raised with particularity in the petitioner's -- petition for a rehearing.

The Attorney General of Illinois argues that the constitutional question was not aptly asserted in accordance with Illinois principles.

He ignores the nature of the right claimed by petitioner to have been violated.

You well know that a similar question was raised and passed upon by this Court in Brown versus Mississippi, 297 U.S. 276.

And it said on the following words, “That contention rest upon the failure of counsel for the accused, who had objected to the admissibility of the confessions to move for their exclusion after they had been introduced and the fact of coercion had been proved.

It is a contention which proceeds upon a misconception of the nature of petitioner's complaint.

That complaint is not of the commission of mere error but of a wrong so fundamental, that it made the whole proceeding a mere pretense of the trial, and rendered the conviction and sentence wholly void.

We're not concerned with a mere question of state practice, or where the counsel assigned the petitioners were competent or mistakenly assumed that their first objections were sufficient.”

If the Attorney General of Illinois contends the principles of trials and appellate judicature of a state would be sufficient to withdraw from the consideration of this Court, violation of such substitute rights as here presented, it would be tantamount to giving a state the right to nullify the provisions of the Fourteenth Amendment of the Constitution.

Such preemptive rights, we submit, are inconceivable.

This Court has long held that the confession obtained by promises of leniency, duress, or coercion when admitted over the objection of the defendant vitiates the whole proceeding and is a denial of the Due Process Clause of Fourteenth Amendment.

It is true that in this case we didn't have the gross brutality that we have in the Brown versus Mississippi one.

But this Court has also recognized the coercion of the mind is of the same nature and sometimes greater than physical violence.

In Spano versus New York, 360 U.S. 315, the investigators extracts the confession from the defendant by having his close friend Bruno urged the defendant to confess.

Because Bruno, who was a fledging police officer, stated to Spano, that if he didn't confess, that he would be in a bad spot, and because of a prior phone call in an admission that it had been made to Bruno.

And in that case, it was held that the confession was really involuntary.

And I know, Chief Justice Warren remembers it and knows in much more thoroughly than I could ever hope to.

In Brown versus United States at 168 U.S. 532, there's another instance of a similar case.

In this case and when I say a similar case, a case where actual brutality wasn't used.

The defendant Brown was induced into incriminating himself after the police officer told him, “Brown said he saw you do the murder.

I'm satisfied you do murder.

You must have had an accomplice.

If so, you should say so and not have the blame of this horrible crime on your shoulders.”

And the incriminating statements that were made by Brown in that case were held to be involuntary.

And in Rogers versus Richmond, 365 U.S. 534, the confession that the defendant gave was held to be involuntarily merely because the police had threatened to bring his arthritic wife in for interrogation.

And there, the Court said, “The attention of the trial judge should have been focused on the question whether the behavior of state law enforcement officials was such as to overbear the petitioner's will to resist and bring about confession not freely self-determined.”

I submit that in this case the threat was to what is -- what is dearest for a mother, the custody and the care of her two little children.

And I also submit that she had a further inducement and that -- that further inducement was a promise of leniency.

Petitioner confessed her guilt, it's true but such a confession should -- could hardly be considered a voluntary one.

Justice Arthur J. Goldberg: (Inaudible)

Ms Jewel Lafontant: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Ms Jewel Lafontant: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Ms Jewel Lafontant: I would say so, Your Honor, yes.

Justice John M. Harlan: Supposing the -- supposing the Illinois Supreme Court are putting another sentence and said, “Having evaluated this record, will you think that despite those representations or promises of leniency, this was a free and voluntary statement.”

What would you say to that?

Ms Jewel Lafontant: Would you repeat that please.

Justice John M. Harlan: Supposing the Supreme Court of Illinois had added another sentence and said that despite these promises that are referred to here, we find this was a voluntary statement.

Ms Jewel Lafontant: I don't --

Justice John M. Harlan: That her mind was not overborne.

Ms Jewel Lafontant: Well, I would say, it would make no difference because these facts would definitely disprove that statement.

And I would say this that when any promise is made, no matter how slight, that we cannot possibly weigh what influence such a promise would have upon the mind of a person.

Now, that's why I had presented these other cases where it was shown, I thought the weakest one possibly was in this Spano case versus New York, where -- not Spano in the -- yes, in the Spano case versus New York where was just the word of a friend say -- by him saying, “I'll get into trouble if you don't confess.”

And they say, well that's involuntary.

Well certainly, if a person is not close to you, any closer than a friend, if what would come to him, what harm might come to him would make you confess and the Court would hold that that's involuntary, I certainly would say that even if the Supreme Court of Illinois would say, “Well, in spite of the fact that they've said they're going to take her children away from her, and she wouldn't have any funds,” I would say -- they couldn't possibly say that in view of these cases, in view of this Court's prior ruling.

Justice William J. Brennan: But even half the Supreme Court said that, that's inconclusive upon us as a conclusion.

Ms Jewel Lafontant: I would say it is not conclusive upon the Supreme Court of United States, Your Honor, because I don't believe that the Supreme Court of Illinois or of any other state can bring out the right of this Court to look into basic fundamental constitutional issues.

And you certainly, this Court would certainly have the right to look into the record, and you could make the determination whether or not the confession was voluntary.

Justice William J. Brennan: Is everything that bears on this provided in this record?

Ms Jewel Lafontant: That's one apology I wished to say -- I wished to make because on the second section of the Spano case and the Rogers versus Richmond case, those two cases are not in the record.

I would say mainly because there was no rebuttal brief filed to the Attorney General's brief in which he raised the issue.

And now that I am in oral argument, I have added these two cases --

Justice William J. Brennan: Well, I don't think --

Ms Jewel Lafontant: But if you want me to --

Justice William J. Brennan: -- I don't think I put myself clearly enough.

I mean, on the facts of everything here, that they're on the question of this professional --

Ms Jewel Lafontant: Yes.

Justice William J. Brennan: -- all the facts are here?

Ms Jewel Lafontant: All of the facts are in the record, Your Honor.

Justice Tom C. Clark: Are there any conflicts in the facts as to the problems of leniency or threats?

Ms Jewel Lafontant: There is -- there is no dispute whatsoever.

The facts that I stated at the opening were the facts as submitted by the State with the exception of my -- of the petitioner's statement that she had denied her guilt.

But everything else there, I took out of the record from the State's own case, of Officer Sims, stated that he promised her leniency, he also stated that he -- that probably her children would be taken away.

In addition to his own statement, Officer Bryson said he overheard a similar conversation and it that all three of the officers sort of joined in with these promises of leniency.

Justice Tom C. Clark: There's no dispute over the facts then?

Ms Jewel Lafontant: No dispute over the facts in my opinion.

Justice Byron R. White: Was there any necessity for you to having -- make any motions to suppress -- or prior to trial (Inaudible)

Ms Jewel Lafontant: A motion to suppress was made prior to trial and a motion to suppress was sustained prior to trial.

Justice Byron R. White: (Inaudible)

Ms Jewel Lafontant: A motion to -- let me make it clear --

Justice Byron R. White: Or was it the -- we're really talking about the officer's testimony?

Ms Jewel Lafontant: Yes.

Justice Byron R. White: Are we -- are we talking about the her testimony -- we're talking about --

Ms Jewel Lafontant: No.

We were talking about the officer's testimony.

There was no motion made to strike her testimony.

Her testimony was only given after a motion to strike the officer's testimony was denied and she was put to the in -- to defend herself.

There was no motion to strike her testimony at all.

But there was a general motion to suppress as I recall at the very beginning of the trial to suppress all the evidence that had been adduced as a result of an unlawful search.

Justice Byron R. White: And that was clearly sustained?

Ms Jewel Lafontant: And that was sustained.

Justice Byron R. White: As a result of an unlawful search?

Ms Jewel Lafontant: That's right.

Justice Byron R. White: They're talking about --

Ms Jewel Lafontant: The actual confession there was --

Justice Byron R. White: They're talking about a coerced confession?

Ms Jewel Lafontant: There was no actual motion to suppress the oral confession because as I understand the record, there was no notice that the oral confessions were going to be used prior to the trial.

So that motion was not made prior to the trial.

Justice Byron R. White: So otherwise, you would have had to make an issue?

Ms Jewel Lafontant: I would think so.

Justice Byron R. White: In suppressing the oral confession.

Ms Jewel Lafontant: I would think so.

We have notice.

Justice Tom C. Clark: Was the oral confession made before the search of the room?

Ms Jewel Lafontant: Yes.

The oral confession was made as soon as they went into the bedroom, as I understand the testimony, she was just told that she -- that Zeno had set her up and that she had actually made a sale of narcotics which she denied.

At that time, they started a general conversation and there was no mention of the search having been made prior to the oral confession.

Chief Justice Earl Warren: Well, in the record, it was about ten minutes after they came in there, was it not, that they obtained the confession from her?

Ms Jewel Lafontant: Yes, that's -- they've got it, yes.

Justice Byron R. White: Is there -- there is no hearing, a state court finding (Inaudible) as to whether or not this confession was obtained by (Inaudible)

There is no expressed finding one way or another on it.

Ms Jewel Lafontant: In this particular case, the Illinois Supreme Court said that --

Justice Byron R. White: (Inaudible)

Ms Jewel Lafontant: Justice Solfisburg, at page 73 of the record states, “A review of the record does indicate, however, that strong suggestions of leniency were made to defendant subsequent to her arrest and prior to her admissions.”

Justice Byron R. White: Well, that doesn't mean to see -- that doesn't mean that the confession was induced by promises of leniency, that there were strong suggestions of --

Ms Jewel Lafontant: Yes sir.

Justice Byron R. White: -- leniency made, that there is no expressed finding that's obtained by a counsel.

Ms Jewel Lafontant: No, but I believe that, from his own word, from the wording of the Illinois Supreme Court, however, that you might read between the lines and see that after an arrest and prior to the admission that promises were made, they don't go into what they were, but if they do say, strong promises of leniency.

Justice Byron R. White: Strong suggestions of leniency.

Ms Jewel Lafontant: Strong suggestions of leniency.

Justice Byron R. White: But there were suggestions of leniency but it didn't resolve what the consequence was.

Ms Jewel Lafontant: That's right.

But I submit that the State's own case tells us what the consequences were and tells us specifically what promises were made and leads it to this Court to determine whether or not they were induced by coercion.

Justice Hugo L. Black: Suppose she had said, “I'm confessing, but I want you to particularly you understand that it's not a result of any promise you made.”

What about that?

Ms Jewel Lafontant: I don't believe it would have made -- it would have made any difference in this matter.

I would still -- I would think that the same principle that has been determined that you cannot possibly weigh the amount of influence of a promise that if she raised the question (Voice Overlap) in proper time that it would be --

Justice Hugo L. Black: What if --

Ms Jewel Lafontant: -- you could (Voice Overlap) involuntary.

Justice Hugo L. Black: -- (Voice Overlap) specifically from that that she didn't make the promise on the count of the inducements.

She just wanted to put something over on the State.

Ms Jewel Lafontant: She wanted to put something over on the State.

Justice Hugo L. Black: She probably put something over on the State.

The Court found that she didn't do that on the count of the inducement.

Ms Jewel Lafontant: I believe that this Court would have the power to look into it --

Justice Hugo L. Black: Have you read --

Ms Jewel Lafontant: -- and see if the rights are --

Justice Hugo L. Black: -- Shotwell?

Ms Jewel Lafontant: -- are violated.

Justice Hugo L. Black: Have you read the case of Shotwell that was decided two weeks ago?

Ms Jewel Lafontant: I haven't read Shotwell that was decided two weeks ago, no.

Justice John M. Harlan: Well, take a look at it.

Justice Potter Stewart: You might find it helpful.

Ms Jewel Lafontant: Thank you.

Justice Hugo L. Black: I don't think you will.

Ms Jewel Lafontant: Well, from what you said, I don't think the facts there wouldn't mind ours either, so that it perhaps isn't applicable and shouldn't hurt me.

It just hurts me in not being able to respond in your question.

Justice Hugo L. Black: Of course this --

Justice Tom C. Clark: (Inaudible)

Justice Hugo L. Black: -- in that case, the promise was from the Secretary of the Treasury and this one is for police force --

Unknown Speaker: That's different --

Unknown Speaker: (Inaudible)

Ms Jewel Lafontant: Quite a different thing.

Justice William J. Brennan: That's right.

Justice Tom C. Clark: Don't worry about -- you're not (Inaudible)

Justice Arthur J. Goldberg: There's no question in this case that her oral statements had been made to induce evidence?

Ms Jewel Lafontant: No question about it at all, flanked by two officers.

Justice Hugo L. Black: Complete what?

Ms Jewel Lafontant: Flanked by two police officers.

There was no question about the fact that she was in police custody, both of her hands were taken.

Justice William J. Brennan: She was in her bedroom?

Justice Hugo L. Black: But do you think --

Ms Jewel Lafontant: And they directed her into her bedroom, yes.

Justice Hugo L. Black: I understand you're basing your argument then on the premise that a mere promise of leniency alone has finally settled that the confession was made that that was induced by the promise.

Ms Jewel Lafontant: I would go that far, but I don't believe it's necessary to go --

Justice Hugo L. Black: I went that far in Shotwell.

Ms Jewel Lafontant: Very good.

Justice Hugo L. Black: But the Court didn't.

Ms Jewel Lafontant: The Court didn't.

The second contention of respondent is that the petitioner's conviction does not rest in whole or in part upon petitioners confession and I believe in the discussion that we've had already that that has been covered, but that was the next part of my argument that I was going to -- go into.

But the line of cases, with the Spano versus New York case, Malinski versus New York 324 U.S. 401, and Blackburn versus Alabama 361 U.S. 199, this Court has held that a conviction obtained by use of coerced confessions will be set aside even though the evidence apart from the confession might have been sufficient to sustain the verdict.

The respondent further advances the theory that involuntary confessions admitted over the objection of the defendant, do not violate the constitutional provision of the Fourteenth Amendment when the personality of the trier of facts have changed from that of the jury to the judge.

We submit that the waiver of a jury by the defendant cannot be claimed to be a waiver of the basic constitutional guarantees of the Fourteenth Amendment.

In its opinion, the Supreme Court as you've heard stated that strong suggestions of leniency were made.

But that after looking at a review of the entire record, the Supreme Court said, “We are convinced that the evidence fully supports the judgment of the trial court.”

In the light of Spano line of cases heretofore referred to, we submit that this was error, that the admission of the involuntary confession of petitioner over her objections vitiated the whole proceeding that the finding of the Supreme Court of Illinois that there was evidence in the record to support the conviction does not add sanctity to conduct long adjudication by this Court as reprehensible and a violation of the Due Process Clause.

We, therefore, respectfully pray that this Court set aside the judgment of the Supreme Court of Illinois and remand the case to the state court.

Justice John M. Harlan: Does this record show one way or the other as to whether this lady had any prior convictions?

Ms Jewel Lafontant: Yes, the record is clear that she had never been convicted and certainly had never even been arrested for anything prior to this time.

Thank you very much.

Chief Justice Earl Warren: Mr. Wines?

Argument of William C. Wines

Mr. William C. Wines: May it please the Court, Mr. Chief Justice.

I begin the argument for Illinois by the unqualified concession that the conversations between the petitioner and the police officer ultimating in her confession were coercive and did deny her due process of law within so far as I know not only every decision of this Court but within the purview of every opinion of any justice in this field with which I am familiar.

Justice William O. Douglas: Is this a confession of error?

Mr. William C. Wines: No, by no means, Your Honor.

And after I have expatiated a little longer submission, I'm going to state and then earnestly press the thesis on which Illinois asks this Court --

Justice Byron R. White: You don't -- you don't -- you really are stating this thing, (Inaudible)

Do you -- do you think you would make the same judgment?

Mr. William C. Wines: Yes, Your Honor I did, but in view of the questions from the bench, I thought it might be well to make it orally.

Justice Hugo L. Black: I understood you to say you confessed that the confession was coerced.

Mr. William C. Wines: Within the meaning of the Due Process Clause, yes, that it was obtained by violation of the petitioner's constitutional rights under the Fourteenth Amendment.

That's my contention.

Justice John M. Harlan: Well then, that ends your case.

Mr. William C. Wines: No, Your Honor, because it's my earnest contention that I shall press that counsel for the petitioner, not counsel appointed by the Court, but counsel -- not counsel who represents her here, but counsel in the trial court chose at least compatibly and perhaps in the signal exemplification of the best strategy of advocacy trying this case without a jury instead of effectively trying to have this confession excluded, chose to exploit it in petitioner's behalf.

And also that in this case, well -- also that in this case, it affirmatively appears in the record not by inference or innuendo that this petitioner's confession did not re -- I mean this petitioner's conviction on the sentence, did not rest in whole or in part upon this confession.

A situation that can't be present in a case that has tried by a jury which has been permitted to hear a confession obtained under circumstances and that, as is the case here, clearly constituted denial of due process of law.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: Your Honor, the motion to exclude because no notice was given was not in any way an invocation of the Fourteenth Amendment.

And the motion to exclude, suppress wasn't, but even if it had been the Illinois rule is quite clear, very clear that it isn't enough in any case, civil or criminal to make an objection if the Court declines to rule.

The Illinois practice is that the point is waived unless counsel explicitly requests a ruling.

Justice John M. Harlan: What's the significance of your standpoint of the Supreme Court certificate that it passed on the question -- in the federal question and necessarily did so?

Mr. William C. Wines: Well it did pass on.

It did pass on it.

And I can assure Your Honors from reading this opinion and from my intimate acquaintance with that Court that they passed on it in this way.

They say so, in almost so many words, that they considered the federal question whether this confession was extorted or obtained by du -- duress within the meaning of the Fourteenth Amendment held that it was, and held that it played no part in the trial courts or their Court's conviction.

That's the meaning of that certificate, not that it approved this method of getting a confession.

Maybe if I can talk in terms of the effect -- and by the way, the counsel is quite correct when in answer to a question from Mr. Justice Brennan she said, “There's no dispute about the objective facts of this confession.”

There is as to Zeno's testimony that -- the informer's testimony that she sold him the narcotics which is unqualified accusation in her testimony that she didn't which is an unqualified denial.

But the version -- by the way, Mrs. Lafonant's statement to the Court here was exceptionally fair and lucid and accurate and relieves me of the burden of restating the facts, but casts on me a considerable burden of discussing it.

Now, the facts --

Justice William J. Brennan: Mr. Wines, may I just ask this to what, do I understand what -- what you're telling us about the certificate here that the Supreme Court decision did not rest upon a finding adverse to the federal claim.

Mr. William C. Wines: No, and the finding favorable to it.

Justice William J. Brennan: Well, let's see.

What you're saying is this is not like Irwin and Dowd, like first Irvin --

Mr. William C. Wines: Like what?

Justice William J. Brennan: First Irwin and Dowd where we found that of two grounds, a state ground and the federal ground, the Supreme Court of Indiana decision, in fact, rested upon a decision of the federal question.

Now, what you're telling us here is that we must read the Supreme Court of Illinois opinion although it dealt with the federal question as not resting its decision upon the federal question.

Mr. William C. Wines: That's right.

Justice William J. Brennan: Because had they rest it, they had reversed this --

Mr. William C. Wines: That's correct, exactly.

That's correct, exactly.

Justice Hugo L. Black: Would you mind pointing out a part of the opinion of the Court?

Mr. William C. Wines: Yes sir.

Yes, Your Honor.

It's the part of the opinion that it's exactly the same part of the opinion that counsel for petitioner have not read, but I should like to read it again.

I'm reading it from page 9 of my brief quote --

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

Justice Potter Stewart: 73.

Mr. William C. Wines: 73.

Justice Hugo L. Black: Alright.

Mr. William C. Wines: “A review of the record does indicate, however, that strong suggestion of leniency, suggestions of leniency were made to defendant subsequent to her arrest and prior to her admissions.

Even in the absence of defendant's statement, there's a clear proof by Zeno and the police officers that the defendant gave a package containing marijuana.”

Justice Potter Stewart: Mr. Wines, now I think I understand the argument that you're making, but I must say it's so ingenious that it --?

Mr. William C. Wines: I don't think so Your Honor --

Justice Potter Stewart: -- that it -- I've thought that this is exactly where the error was because it's been clearly held by this Court time after time after time, that when an involuntary confession is introduced in evidence, in a criminal trial against the defendant, there's no -- you can't constitutionally say that that was harmless error and you're making a harmless error argument to us, are you not?

Mr. William C. Wines: That has been so very clearly held so many times by this Court that the Supreme Court of Illinois must know and as often as this Court is held, the Supreme Court of Illinois has held it even the oftener.

Justice William J. Brennan: That's just what they're saying in these two sentences, isn't it?

Mr. William C. Wines: No, (Voice Overlap) no, Your Honor.

No, Your Honor.

I would like to answer all of these questions in terms of the undisputed facts of this case, and I am not passing the question.

I'm trying to lay the factual basis for my argument.

These are the undisputed facts, who is the petitioner?

Is she a sophisticated, wealthy, gangster or gangstress of the Chicago underworld, equipped with long experience with the Fifth Amendment?

Not at all.

She is a woman on relief with children three and four years old in a neighborhood that's impoverished that appears almost as a matter of judicial notice from anybody who knows anything about addresses in Chicago.

She's accused not of parking violation, but she's undoubtedly, she didn't know what the penalty was, but of a severe crime, the unlawful sale of narcotics which Illinois punishes when she was sentenced in this case, 10 to11 years.

Justice Potter Stewart: What could the maximum sentence have been?

Mr. William C. Wines: I don't recall, Your Honor.

I'm sorry.

I don't remember.

Chief Justice Earl Warren: What's her sentence here?

Mr. William C. Wines: Not less than 10 or more than 11 years in the penitentiary.

Now --

Justice Potter Stewart: So there's no -- there's no suggestion that she -- that the promise was kept of leniency.

Mr. William C. Wines: Oh, no, not by any terms.

Now, two police officers came.

There's an accusation that she sold narcotics to a confessed peddler who's trying to make a deal for himself as far as I know, he did.

Because Illinois is better by keeping its deals with informers and it is with those who confessed.

Now, here's this one who's told not just that if she doesn't confess and she is convicted, she'll get as more severe sentence than if she is convicted in spite a denial, or on standing mute.

The police didn't stop there with extortion.

They indicated to her, the diction is in text -- just intimation, but in texture, its intimidation.

They told her in just so many words weren't very new today, that if she didn't confess whether she was convicted or not, she was the one to lose custody to her two children in any way, they did more than that.

And her counsel neglected to mention this which is a very serious threat in Chicago.

They threatened to take her off what we call ADC which means her Aid to Dependent Children stops, and she gets no checks.

And how she feeds them, I wouldn't know, unless of course she then begins some other criminal career than that with which she was accused here.

Now, the reason I deal later on and expatiate on the actual circumstances which are a good deal of words than petitioner's counsel, narration would lead is to show that in order to think that this confession rested in any -- that this conviction rested in -- how could this rested in any part or not confession, you would have to say that an experienced judge of a court of general jurisdiction, the Criminal Court of Cook County, not a Justice of the Peace or magistrate.

And the unanimous Supreme Court of Illinois including as I think its then the Chief Justice, Mr. Justice Schaefer whose contributions to the law of evidence, he's a distinguished professor of that subject to Northwestern, you can ask Mr. Justice Goldberg about it.

You would have to say that men like Mr. Justice Schaefer, Mr. Justice Solfisburg, Mr. Justice Dailey who's been on that Court for very nearly 20 years were oblivious of all Your Honor's decisions on this point, on their own decisions.

They've always held that a confession induced by promises of lenity is inadmissible.

As far as the Illinois law is concerned, you don't even need the Illinois' Due Process Clause, the common law of rule of evidence that excludes confessions on that.

Now --

Justice John M. Harlan: What you're saying is --

Mr. William C. Wines: I'm saying that --

Justice John M. Harlan: So bad, this record is so bad that it just can't be so.

Mr. William C. Wines: Just precisely and if you're --

Justice John M. Harlan: Well, lead -- lead us over the hill so I could see what -- where --

Mr. William C. Wines: I will, very well --

Justice John M. Harlan: -- you'll bring this out.

Mr. William C. Wines: Very well, very well.

Suppose Your Honors, in the first place, the pronouncements of Your Honors that a confession that where the admitted facts show that an extorted confession was used, a conviction where there's a jury can't rest in whole or in part on that confession, and Your Honors will not exceed.

Justice William J. Brennan: When there's a jury?

Mr. William C. Wines: That's -- when as a jury and --

Justice William J. Brennan: And where there's -- where there's a --

Mr. William C. Wines: Then, I say the question is entirely different, and that is the heart of the argument to which I'm coming right now.

If there were any difference between cases tried by judges, I mean as far as the effect of coerced confessions are concerned and cases tried by jury, this rule would make no more -- no sense at all because either jurors would know as much as the members of this Court in which case they'd pay no attention to extorted confessions, or the members of this Court would no know more than jurors in which case they wouldn't exclude them, so the rule has to be different for cases.

Justice Byron R. White: Were this the only ground that -- the Supreme Court of Illinois considered the federal question and they kept --

Mr. William C. Wines: Yes sir, and I'm as sure as I can be that that's true.

Justice Byron R. White: The (Inaudible) has rejected this --

Mr. William C. Wines: Yes.

Justice Byron R. White: I thought it rejected it and you're only -- your only reason is that this is a judgment of the jury.

Mr. William C. Wines: No, no, no.

They didn't reject the petitioner's contention that the confession was -- was extorted by duress.

Justice William J. Brennan: Your point is they agreed that it was.

Mr. William C. Wines: Agreed to that it was -- and then --

Justice Byron R. White: But exactly on federal ground, that is the --

Mr. William C. Wines: Let's get to certificate.

Justice Byron R. White: No, I get it, except that it was necessary that you think --

Mr. William C. Wines: Well, it was necessary because petitioner raised it and it had to do something with it.

Justice Byron R. White: So what did they do with this?

Mr. William C. Wines: What I'm saying Your Honor, this is not -- this is not a sophistical argument made to keep an unfortunate descendant, unfortunate woman to the penitentiary for not less than --

Justice Byron R. White: What did they do with it?

Mr. William C. Wines: I say that they -- they say just what they say, strong suggestions of leniency or a lenity were made.

Now, when they say that in the context of all of Your Honor's decisions, of all of their own decisions, they have to mean that that confession can't be received.

If they had gone ahead --

Justice Hugo L. Black: Why didn't they say that if that's what they meant?

Mr. William C. Wines: Well, Your Honor --

Justice Hugo L. Black: Hence, gentleman, it seems to me, it would express themselves in their opinion -- I just don't understand that argument.

Mr. William C. Wines: Well, Your Honor I can't tell you why a judge did or didn't say anything in this kind of a context, but when they go ahead and say even so, they show that they are paying no attention --

Justice William J. Brennan: Well, what --

Mr. William C. Wines: -- to this confession.

Justice William J. Brennan: -- (Voice Overlap) please, if you don't mind to get back to my question at the moment.

I'll assume that they said it.

They said this was a coerced confession and it was a confession which was inadmissible under the Fourteenth Amendment.

Now, where do we go from there?

Mr. William C. Wines: Just --

Justice William J. Brennan: They affirmed after all, where -- on what basis?

Mr. William C. Wines: On the basis that they had played no part in the conviction below and played no part in the affirmance above.

Justice William J. Brennan: They played no part in the conviction that you mean because there was extrinsic evidence independent of the -- of the confession, that's not what I meant though.

Mr. William C. Wines: What?

Justice William J. Brennan: You have to get over that one, don't you?

Justice Byron R. White: Do you think it's just a harmless error, on what you're arguing?

Mr. William C. Wines: Yes, which I think is quite appropriate where there's no jury.

Justice Byron R. White: Alright, so it is this -- this is a -- the harmless error rule ought to apply where there's judges in the jury?

Mr. William C. Wines: If it's error.

Justice William J. Brennan: What do you mean by that Mr. Wines?

We have to assume, even though there's nothing said about it, that the trial judge said to himself, “Of course, I can't take that confession.

It's pertained to violation of the Federal Constitution.

So I shut it out of my mind and I now decide this case on the rest of the testimonies.”

And that when it got to the Supreme Court, the Supreme Court said, “Oh, that trial judge shut that out of his mind and decided this on the other --

Mr. William C. Wines: That's --

Justice William J. Brennan: -- testimonies.”

Mr. William C. Wines: Yes --

Justice Byron R. White: In that situation --

Mr. William C. Wines: That's what I mean.

Justice Byron R. White: -- would you say that Justice Schaefer couldn't possibly have done anything else?

Mr. William C. Wines: That's right.

That's what I think.

Justice John M. Harlan: That don't actually -- the pros of the certificate then, that they were given a certificate that they had passed, necessarily passed on the decision, and they would have said, “No, we didn't pass on that question because neither the trial court nor ourselves paid any attention to the admission.”

Mr. William C. Wines: That would not be a correct certification of my real understanding of this opinion.

I think that Court did this, they read petitioner's briefs.

They saw this confession extorted by promises versus threats, intimations or promises versus intimations of threats.

If they didn't know about this Court's rule before, they certainly knew it when petitioners cited Brown against Mississippi, if they had not previously heard of the rule, of course they passed on it.

Here it was in no record.

Here is a contention by a counsel that the confession was ex -- was extorted or wasn't.

Well, if it wasn't extorted, it would be substantive evidence of guilt.

So they had to determine whether it was extorted.

They must have determined that it was extorted because you can't read these facts --

Justice Byron R. White: Well, why did they --

Mr. William C. Wines: -- with any knowledge.

Justice Byron R. White: Why did the trial judges denied the motion to strike the testimony?

Mr. William C. Wines: But he didn't.

Justice Byron R. White: At page 40 of the record here, the judge has denied the motion to strike the officer's testimony which contained the confession.

Mr. William C. Wines: Oh, I'm sorry.

Justice Byron R. White: So, the motion is practically denied.

These -- I don't know why he -- if he was so sure that he went through this mental process of saying, “Yes, we have a confession but it was simply, I can't rely on it.”

He would have nailed that there and gone through the normal process of -- of grating the motion to strike.

Mr. William C. Wines: Well, I cannot explain why he did not do it that way.

I cannot.

But I just can't believe that any criminal court judge, a jury yes, and any Supreme Court of Illinois would rest the conviction in whole or in part, on this kind of a confession.

It imputes absolute anarchy to a -- the bench.

If the facts have been a little closer, then it might not be so clear.But so -- now, petitioner --

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: It does it on the weight of the evidence too in the criminal case which this Court won't do --

Justice Arthur J. Goldberg: And on the admissibility.

Mr. William C. Wines: And on the admissibility.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: Your Honor, the Illinois rule is that where a case is tried without a jury, the judge is presumed or considered only competent inadmissible evidence, and the more clearly the evidence is inadmissible, the clearer is the application of that rule.

Justice Potter Stewart: It's not a irrebuttable presumption now, is it?

Mr. William C. Wines: Oh, no, no.

Justice Potter Stewart: Because on page 40 that presumption is rebutted.

There was a motion to strike the testimony and upon the grounds among others that the evidence was inadmissible and was given under promises of leniency.

And the record says the motion to strike was denied.

Mr. William C. Wines: But in the Illinois, the mere fact that an objection to competent evidence is overruled when it should be sustained, it doesn't destroy the presumption, never has.

Now, it does in the federal courts but not in Illinois.

Now, but in the last few minutes, I would like -- I would like to make this point an answer to this question, suppose Your Honors reverse and remand this case, presumably Your Honors won't reverse it outright and set the petitioner free because there is other evidence of guilt.

So suppose Your Honors conclude that there ought to be a new trial.

Now, if this were a case tried by jury, we'd get a new jury to presumably would've heard nothing about this confession at all and would be free from infection or contamination (Voice Overlap), but what will be the consequence if you reverse this?

Any judge who tries this case is going to know about this confession.

Justice Byron R. White: Oh yes, but you don't -- if this -- if this judge hasn't sustained the objection after an offer of proof of what the officer is going to say, had sustained the objection of that point or had granted the motion to strike, I doubt that this case would be here.

Mr. William C. Wines: I doubt it, too.

Justice Byron R. White: So that -- what you're about to say is already covered by our present standing.

Mr. William C. Wines: Well --

Chief Justice Earl Warren: On remand, Mr. Wines, would -- on remand, would the petitioner be prevented from having a jury?

Mr. William C. Wines: I would think so.

I would certainly think so.

Chief Justice Earl Warren: I would like to ask just one other -- other question.

Mr. William C. Wines: I don't know.

I don't know of Illinois law on it.

Chief Justice Earl Warren: What would the average sentence be for the person that -- who had never -- never been arrested before for anything who is caught with making one sale of marijuana?

Mr. William C. Wines: I'm sorry Your Honor, I'm completely unable to answer that question.

I simply don't know.

I don't know one bit more about it than Your Honor has to know.

I should -- I don't practice in the criminal courts and in them for over 20 years.

Chief Justice Earl Warren: I just thought you might --

Mr. William C. Wines: I just don't, not even from -- I know less about it than I should as a citizen of Chicago.

I just don't know so I won't say I do.

Now, if I'm wrong, if I'm wrong about this, in my argument and this confession did play was kind of uncommon in this petitioner's conviction, in fact, if I'm wrong, then it isn't as clear to this Court as it is to me that it didn't, then I'm not just here to win the case.

This case ought to be reversed and remanded and that I'm authorized after now in my 21st year of practice before this Court for Illinois and I'll make that statement for Illinois.

But I'm as sure as I can be that no judge in Illinois gives anybody any 11-year sentences on confessions like this.

That's my point.

That's my only point --

Chief Justice Earl Warren: I didn't get that last sentence.

Mr. William C. Wines: I said I'm as sure as I can be that no judge -- jury, yes, but no judge in Illinois gives anybody sentences like this on the basis of confessions obtained as this confession was.

If I'm wrong about that, then Illinois is wrong too, and this is the time to correct it.

But I don't think I'm wrong.

Thank you.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: I don't know anything about it, Your Honor.

I have no information on or off the record.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: Oh, I think I do know.

I think I do know.

I assure that they didn't refer to this case.

There was a well -- a published difference of opinion in Chicago between a former State's Attorney and a number of judges.

The former State's Attorney was in the newspapers and on television accusing a number of judges of undue leniency.

The judges and a committee of -- a Bar Association investigated these charges.

The judges replied with anarchy.

Some thought unseemly energy to unseemly charges that being in my own due but they had nothing to do.I'm as sure as I can be without having read the articles with the Beatrice lines who did not figure at all in this debate.

Thank you.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William C. Wines: It seems to me a severe sentence and yet there is a -- I do know in general of the sentences in Illinois are quite severe --

Chief Justice Earl Warren: They're quite what?

Mr. William C. Wines: -- quite severe in narcotics cases.

That's true.

I'm indebted to petitioner's counsel's courtesy to say that -- I can't read it.

The minimum sentence would be five years and she says it's usual, and as far as I know, I have no reason to dispute her.

Chief Justice Earl Warren: Very well.

Anything further Mrs. Lafontant?

Very well.