MILLER v. PATE

Print this transcript Transcript: 

Argument of Chief Justice Warren

Mr. Chief Justice Warren: Petitioner versus Frank J. Pate, Warden.

Mr. Lassers, you may continue your argument.

Argument of Willard J. Lassers

Mr. Willard J. Lassers: Mr. Chief Justice and may it please the Court.

At the habeas corpus hearing before Judge Perry, the -- we produced evidence regarding a pair of jockey shorts.

These shorts were originally introduced with the 1956 trial and at that time it was evidence from Mr. Litterly that I mentioned yesterday that these shorts have Type A blood on them and there was some out there evidence which we question that that the little girl who was murdered also had Type A blood and these shorts according to the prosecution theory had been worn by the petitioner and had been abandoned by him in his flight.

We pre --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: May I ask?

How did the testimony of the little girl who had Type A blood get into the case?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: The mother was -- testified to that effect.

It was a hearsay testimony as far as she was concerned but it got into the record.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: You say, she did not testify --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She did.

The mother of the little girl testified, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: -- in shape that --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: In shape, yes, correct.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Based upon what did she say?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She didn't say.

It was fudge.

It appeared as though she was based at a school record tied in with the child's weight.

But she made the statement that she had a Type A blood and that's all the evidence there was at the trial as to the little girl's blood type.

Argument of Justice Black

Mr. Justice Black: Is there any question about the accuracy of the statement?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, we -- we think it was hearsay evidence, Mr. Justice Black.

Rebuttal of Justice Black

Mr. Justice Black: I understand that it was hearsay --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: -- but it was in without objection.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well --

Rebuttal of Justice Black

Mr. Justice Black: Is there any question about the accuracy?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We have no way of knowing positively because the child is dead.

So we can't verify one way or the other.

Rebuttal of Justice Black

Mr. Justice Black: Have you made any efforts to find out?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We have made efforts inconclusive.

Rebuttal of Justice Black

Mr. Justice Black: Asked a doctor?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I'm sorry.

Rebuttal of Justice Black

Mr. Justice Black: Did you ask a doctor?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes, we made various inquiries at the hospital and so forth.

They turned up some slips which showed Type A blood but the exact timing and dates and it was very confused.

We couldn't establish it either way.

Rebuttal of Justice Black

Mr. Justice Black: So did they had the Type A blood but it didn't show the time that she had it, is that it?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I don't remember the details whether the slip was undated or what the problem was but I remember that we couldn't establish it either way.

Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I suppose if she had the type of blood any time she would always have it.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is -- it's my understanding that that is correct, Mr. Chief Justice.

Now, at the District Court hearing, for the first time, Judge Perry permitted us to have a scientific examination made of the shorts and at that time, we produced evidence showing that the shorts were saturated not with blood but they were saturated with paint.

Now, we've actually brought up the shorts up here, they look terrible Your Honors and they -- all what you see here is paint and not blood.

Now --

Rebuttal of Justice Black

Mr. Justice Black: Well, how do you tell by looking at it that's paint and not blood?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We cannot Your Honor, Mr. Justice Black, no.

It took us --

Argument of Justice Harlan

Mr. Justice Harlan: Was there any blood?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: What?

Rebuttal of Justice Harlan

Mr. Justice Harlan: Was there any blood in the shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is a disputed fact.

Now, our chemist testified that he could find no evidence of blood.

He made this test in December of '63.

Now, there was testimony back in '56 by the state witness Litterly that he found blood on the shorts.

But our man couldn't find any in '63.

Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did they find any in '63?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: The state?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: The state, yes.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: The state didn't make any new test in '63 one way or the other.

Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: How obvious is that -- is the red part of it that you attribute to paint than they attribute to blood on the shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I didn't hear your question.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: How obvious is the paint on the shorts that --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, this was always referred to at the 1956 trial as the blood stained shorts even petitioner so referred to it and Litterly, in the '56 testimony said, he talked about -- he said that the red -- the staining material on the shorts were -- was blood.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Well, as repulsive as it maybe, would you open it up so I can see it?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Certainly.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Now, is there any question about it that what everything we can see there is paint.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I don't think there is any question, Mr. Chief Justice.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: So the state contends that anything that can be seen on there now is blood.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: They have not challenged that.

All that they can claim was that there was -- that their testimony -- that their expert in '56, said that there was blood but I think it is undisputed now that everything that Your Honors see is paint.

Argument of Justice Fortas

Mr. Justice Fortas: Yes, but didn't the counsel for the petitioner at the original trial in 1956 see those shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes he did, Mr. Justice Fortas.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And what did he do after he saw them?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Did he have an analysis made of them?

Did he ask --?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He moved the Court to have a scientific examination made of the shorts and it was denied.

So he couldn't present --

Rebuttal of Justice Fortas

Mr. Justice Fortas: What do you mean he moved the Court to have a scientific examination made?

Did he move --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He presented a motion.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Did he move -- did he move that he'd be allowed to have an expert examine the shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is correct.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that was denied?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was denied.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Now, had he had an opportunity and have such scientific examination made prior to trial?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He moved it in May that it was an examination to examine all the physical evidence, to have a scientific examination made.

It was made in May and the trial was held in September.

Rebuttal of Justice Fortas

Mr. Justice Fortas: So that -- and that was denied in May.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was denied.

Rebuttal of Justice Fortas

Mr. Justice Fortas: So that your point about the subsequent District Court hearing in 1961 or whenever it was.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: '63.

Rebuttal of Justice Fortas

Mr. Justice Fortas: '63.

Is merely that it's a dramatic demonstration of the fact that this was a prejudicial error.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is correct, Your Honor.

Yes.

Rebuttal of Justice Black

Mr. Justice Black: Was there motion made directly and specifically to the judge, stating that this was not blood but was paint?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No.

No, Mr. Justice Black, it was not.

There was no way to tell as I understand it by looking at this, what this stating material is.

Rebuttal of Justice Black

Mr. Justice Black: But what do you mean when you say that he made a motion?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He made a motion to have a scientific examination made of all of the physical evidence in the case.

Rebuttal of Justice Black

Mr. Justice Black: That they have to have a scientific investigation there.

What kind of scientific --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was not specified.

Rebuttal of Justice Black

Mr. Justice Black: -- of all the evidence in the case.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was -- of all the physical evidence.

It was not specified and there was a --

Rebuttal of Justice Harlan

Mr. Justice Harlan: Is there any question amongst as to where these pants were in '56 to '63?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: They were in the hands of the prosecution up to the time of the trial and then they were in the -- I believe in the possession of the trial court.

I'm not certain of that.

And then they were transmitted to the Supreme Court of Illinois and we got them into the hands of the District Court from the Supreme Court of Illinois and then they went to the Court of Appeals and then they came to this Court.

Now, the -- there are two other errors Your Honors that we feel are critical here.

One relates to the state's star witness, Betty Baldwin who is now Betty Baldwin-Curry who testified that on the night of the murder that this -- that the petitioner admitted the crime to her in the course of a taxi ride, he was a taxi driver and in 1963, before Judge Perry, she recanted her testimony and denied that she had ever -- that he had ever made such a statement to her.

Justice Potter Stewart: Did his confession make any reference to having admitted the crime to her?

Mr. Willard J. Lassers: I don't -- no, I don't believe it did.

Justice Potter Stewart: I thought it had.

Mr. Willard J. Lassers: It did?

Mr. Rosenfield says that it does make such a reference.

Now, at the '63 trial, again by discovery, we learned for the first time of a statement in the prosecution files given by this woman very shortly after the crime.

At the '56 trial, she was asked how long she had known the petitioner and her answer was two years.

And at the 19 -- and the statement that she gave to the prosecution right after the crime was that she had known him for five weeks.

Now, that was first learned by us in 1963.

Then there was a whole long list of other facts known to the prosecution prior to the ‘56 trial which cast serious doubt on the reliability and trustworthiness of this witness.

Rebuttal of Justice Black

Mr. Justice Black: What was the time relevance here or importance of the length of time she had known him?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Because if she had known him for two years, Mr. Justice Black then if she conveyed the impression -- conveyed the impression to the jury that it was the -- that there was the kind of relationship between them that if he had committed a crime that he would admit it to her whereas if it was only five weeks, it would be less likely that he would make such an admission to somebody that he had just knew very briefly.

Now, the -- my time has expired, Your Honors and I want to save some time for rebuttal.

We're not going to -- because I have mentioned that I don't want the Court of Appeals that we think that they're unimportant but there were serious questions with regard to being cut off in the examination of a key defense witness Mrs. Alice Baxter who is the landlady.

And the landlady came up to the 1963 trial and said that he was in his room in her house at the time that the crime took place.

In '56, before the trial, the defense counsel tried to interview this witness.

She spoke to him once or twice and then the -- then she called the prosecution and the prosecution told her that she has a constitutional right not to talk to the defense counsel and then she refused to talk to him any further.

So she was listed as a prosecution witness in 1956.

She was not called by the defense in '63, as I said, she came forward and she said that he was in her house at the time of crime.

Rebuttal of Justice Harlan

Mr. Justice Harlan: Alright, are you or somebody on your side going to deal with the claim that the -- confession itself is coerced?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I intended to deal with that Your Honor but my time is going down except for the fact that there was a lie about the hair plus the fact that the prosecution told -- he asked to see his parents and the police told him, “You can't see your parents.

Your parents don't want to have anything more to do with you.”

And all the time the parents were out trying to find out where he was in lining up an attorney.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I understand -- I understand, Mr. Lassers that the defense tried to call this lady, Mrs. Baxter at the trial, is that correct?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is correct.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And they tried to -- because they couldn't talk to her after the prosecution had told her that she had a constitutional right not to talk to him.

They asked the Court to let them examine her as a court witness.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is right, Mr. Chief Justice.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: The prosecution said that they would only do that if the defense admitted her unreliability and the Court on that objection refuse let her be examined as a court witness.

Is that the fact?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is the fact, Your Honor and it is so stated in the record and in fact Mr. Malmgren, the defense counsel said I will not state that she is unreliable.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: What was the statement based upon that she was unreliable.

Is there anything to indicate that?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Oh!

No, no.

No, no.

No, no.

The defense counsel would refuse to say that she was unreliable.

His point was that he didn't know what her testimony was going to be and he couldn't risk being bound by her testimony.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes, yes, I understand that but I mean, has anything developed since to indicate that Mrs. Baxter was not reliable?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No.

I -- no.

I would say, no.

But there was some suggestion in the record that say that they put in an affidavit that she had given some contrary testimony -- made a contrary statement to a prosecution with -- that was introduced in '63.

But when she -- but nobody has really challenged her for it.

Rebuttal of Justice Black

Mr. Justice Black: What is the importance?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Because it --

Rebuttal of Justice Black

Mr. Justice Black: What is the importance that you attribute to the statement that a witness didn't have to talk to somebody on the outside if he didn't want to?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes, Mr. Justice Black because it cut the defense off not only from this live witness.

Rebuttal of Justice Black

Mr. Justice Black: But he did cut the defense?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Right.

Rebuttal of Justice Black

Mr. Justice Black: Do you claim that a person who doesn't have a right to refuse to talk to somebody and tell him about the facts of the case before they put him on the stand?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Our point is Your Honor that it was wrong for the prosecution to chill the defense in this avenue of exploration.

Rebuttal of Justice Black

Mr. Justice Black: If they were asked a question, what is wrong with saying if you don't think you have to just talk to him unless you want to?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Because in -- Your Honor, we feel that in a murder trial, particularly, that the defense is seriously handicapped if the prosecution compel --

Rebuttal of Justice Black

Mr. Justice Black: Admitting that --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Right.

Rebuttal of Justice Black

Mr. Justice Black: What I'm asking is, do you claim that because of anytime of trial, a person has got to talk to the lawyers or defendant in the case if he doesn't want to?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No Your Honor, no.

If this had been her --

Rebuttal of Justice Black

Mr. Justice Black: That's why I can't understand the great emphasis because on that.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No, only if she had said voluntarily of her own will, “I don't want to talk to you” then perfectly alright.

But I think it was wrong for the prosecution to say to her to --

Rebuttal of Justice Black

Mr. Justice Black: Are you saying that the prosecution voluntarily went out of their way to tell a witness that they didn't have to talk -- I don't understand.

That might have been thought of?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She called -- I believe that the record shows that she called the prosecuting attorney and then the prosecuting attorney --

Rebuttal of Justice Black

Mr. Justice Black: And asked him.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: And asked him.

Rebuttal of Justice Black

Mr. Justice Black: If she had to testify.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Not to testify but to talk --

Rebuttal of Justice Black

Mr. Justice Black: That she had to talk to him.

And he said --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Correct.

Rebuttal of Justice Black

Mr. Justice Black: -- she didn't have to.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She's -- he said --

Rebuttal of Justice Black

Mr. Justice Black: Is that the whole circumstance?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He said that to her and to some certain other witnesses and the prosecutor so testified in '63.

Rebuttal of Justice Black

Mr. Justice Black: Well, I understand that but I think it's perfect and normal thing, it seems to me, if one person calls of another and asking the lawyer, “Do I have to talk on the outside?”

And said “No.”

I don't quite understand the great emphasis you put on there.

It may have it but I don't yet quite get it.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, the point is that if he had been allowed to complete that inquiry that then she would have been available as a witness.

Rebuttal of Justice Black

Mr. Justice Black: If who had been allowed can be?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: If the defense counsel had been allowed to --

Rebuttal of Justice Black

Mr. Justice Black: Then if the defense counsel --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: -- gotten this witness to talk, he could have found out more than he did.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: But why do you attribute some wrongdoings of the prosecuting attorney and answer the question and saying you don't have to testify?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, we feel that his advice was wrong that she had a constitutional right and so forth.

Rebuttal of Justice Black

Mr. Justice Black: Oh!

You think that she did not have a right to refrain from talking on the outside of the Court?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: If it was up to her, she could make her own decision but the prosecution should --

Rebuttal of Justice Black

Mr. Justice Black: What you said so far, you've made it after her, but she called the prosecutor, you've said it?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: And ask if she had to talk to this man and he said no.

What's wrong with that?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, I think you should have said to her in fairness to the defense that you go ahead -- he asked to prepare his case.

I think that would've been the part where it is.

Rebuttal of Justice Black

Mr. Justice Black: We don't claim legal error for a prosecuting attorney to make that answer, do you?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We do Your Honor.

Well, we might mention also that the Gregory case which decided recently by the Court of Appeals for the District of Columbia, somewhat similar circumstances.

Justice Byron R. White: But would she have to testify?

Mr. Willard J. Lassers: She testified in 1963.

Justice Byron R. White: But she didn't testify in the trial?

Mr. Willard J. Lassers: No Mr. Justice White, she did not.

Justice Byron R. White: You contend that the state had information about what Mrs. Baxter might testify to and didn't reveal it to the prosecution?

Mr. Willard J. Lassers: We don't know what they --

Justice Byron R. White: Did you ever asked in the '63 hearing?

Didn't you -- did you go into that matter whether these facts which Mrs. Baxter -- would you know Mrs. Baxter would testify to it?

Did you ask the prosecution whether they lose out in '56?

Mr. Willard J. Lassers: They put in their own evidence on that point.

Justice Byron R. White: On what point?

Mr. Willard J. Lassers: They put in evidence saying that some official had interviewed her and she had told them -- given them a different story but she testified in '63, she and her husband and the two grandchildren, placing him in the house at the time of the crime.

Justice Byron R. White: Well so, she's given -- she essentially gave two different stories there.

One in the prosecution and one in the --

Mr. Willard J. Lassers: We don't say that Mr. Justice White because that was just a hearsay --

Justice Byron R. White: Well, why --

Mr. Willard J. Lassers: They just put it in an affidavit.

They didn't put the man on the stand.

Justice Byron R. White: Well, yes, the prosecution -- that's the prosecution's claim, isn't it?

Mr. Willard J. Lassers: That's their claim, yes.

Justice Byron R. White: And it's your claim that she has testified something else.

Mr. Willard J. Lassers: Yes.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Does the affidavit of the prosecution as to what she said fit with the theory of their case as it was tried?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I think it does.

Thank you, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Rosenfield.

Argument of Maurice Rosenfield

Mr. Maurice Rosenfield: Mr. Chief Justice and may it please the Court.

I appear here on behalf of two amici, the American Civil Liberties Union, Illinois Division and the Chicago Radio Station, WAIT.

The amici are here because they believe of what is said to be a ghost which stalks the legal system.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Ghost of what?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: What is said to be a ghost, which stalks the legal system, the possibility of sentencing an innocent man to death has come to life in this case.

We believe it has come to life in this case.

We argue that police and prosecutor indecency measured by due process standards, concealed the innocence of this accused, petitioner here.

The controlling case is Brady against Maryland.

And the crucial point is the suppression of an official report of the State Bureau of Criminal Identification and Investigation to the effect that here, found in the vagina of a victim was not that of the accused.

The crucial point is that this report was suppressed for eight years.

It was known to the prosecution.

It was sent to the prosecution.

The prosecutors admitted the habeas corpus hearing that they knew about it.

The report was never disclosed.

It was brought to life for the first time in the habeas corpus proceeding in the federal court.

Justice Potter Stewart: Was there any evidence adduced by the prosecution at the trial to the effect that this hair was from the body of the defendant?

Mr. Maurice Rosenfield: Hairs were not admitted at the trial at all.

Nothing --

Justice Potter Stewart: There is no evidence at all --

Mr. Maurice Rosenfield: No evidence at the trial at all on hairs.

Justice Potter Stewart: And so this man --

Mr. Maurice Rosenfield: All we know.

Justice Potter Stewart: This man was convicted without any evidence at all --

Mr. Maurice Rosenfield: About the hair.

Justice Potter Stewart: - one way or the other --

Mr. Maurice Rosenfield: One way or the other --

Justice Potter Stewart: -- that the hair is from his body?

Mr. Maurice Rosenfield: Crucial point.

The point I'm making is that the official report of the state -- Criminal Investigation Department was exonerated, totally exonerated.

It's impossible for the mind to conceive of any explanation for that hair of being in the vagina of the victim, other than it was a hair of the attacker.

And this, we are told by recognized police manuals, all of the police manuals, happens frequently in rape and sex cases.

In fact, the cardinal principle in the investigation of such cases according to the police manuals is to search for hairs.

That was done.

Now, the fact that it was in the vagina, stands admitted on this record by the Attorney General of Illinois.

No question has been raised about that, no one has ever raised that question.

And the critical point is the suppression of the report which is not an inference, that's null and that's admitted.

The report was never disclosed.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Is there any question as to whether this was a pubic hair or not?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: We know for comparative purposes, Mr. Chief Justice that a pubic hair was taken from the accused.

The nature of the hair in the child's vagina is not exactly known.

Inference, I would think that it is pubic because the hair, the forensic medicine books tell us that hairs have different characteristics from the different parts of the body but I can't say that there's anything in the record.

All we know that it was a hair, the probability is that it was a pubic hair in the vagina of an eight-year-old child.

Now the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Your -- your position is a little different in that, isn't it?

That is to say that there was a written report by --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: There was a written report.

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- by a state scientist --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Which came from the Department of Criminal Investigation.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that was in the possession of the prosecution at the time, before the trial and at the time of trial, is that right?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Yes Mr. Justice Fortas, that's the point I was trying to make.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that said that there was a plastic container which contained two pubic hairs, one from the girl and the other that was found.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: No sir.

It contained a vaginal smear, a vaginal -- a vaginal smear from the child.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Yes.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: The vaginal smear was examined by the state department and the hair was discovered by the state department.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Yes.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: When the accused was taken into custody, one of the -- virtually, the first act the police did was to take a pubic hair from him --

Rebuttal of Justice Fortas

Mr. Justice Fortas: I see.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: -- for comparative purposes.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And the -- and the report --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: At that point, they recognized with the size of significance of the hair in the vial.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And those two hairs were --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Were compared --

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- by the state.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: -- and found to be a mismatch.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And the state -- the state scientist who examined this so reported.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: So reported.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that his written report so stated that it was in the possession of the prosecution before trial and at the time of trial, is that right?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It was sent to the prosecution.

It was in the hands of the prosecution, the facts that were known to the prosecution and that is what I meant to be saying is the report that was suppressed.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Now, did the -- yes, I see.

The hair that was in this plastic container or rather in the vaginal smear, was that identified as a pubic hair in the written report?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That was -- the hair in the container was not identified in the report as a pubic hair.

In answer to Mr. Chief Justice Warren a moment ago, I said that I thought the probability was high that it was a pubic hair because pubic hairs are known to have different characteristics from hairs of -- from other parts of the body.

However, the report does not say that.

It does state that the hair of the accused which was compared was a pubic hair and therefore it was found to be a mismatch.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And your point, very simply stated is that whatever the inference may or may not be that this is relevant and of great importance as part of the trial and that the prosecution had a duty to advice a defense in its existence.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That sir is exactly my point.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was the confession that the -- that was introduced at the trial contested of being having been coerced?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It was vigorously contested as having been coerced.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did the --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It obviously does not meet Miranda standards but I'm not arguing that point.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Did the -- did the defendant testify on that proceeding?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: The defendant did testify both in chambers, outside the presence of the jury and before the jury.The defendant denied -- at that point, he has denied consistently from that moment that he had ever confessed.

He is claiming that the paper he signed, he didn't know what the paper was that it was a -- he was coaxed into signing this paper in order to avoid going to the electric chair after 52 hours of interrogation.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Does he mean --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I don't mean to imply that all 52 hours involved interrogation after 52 hours of detention.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did he testify at that time that the police told him they had found the hair that matched with his?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: He testified at that time and the episode is somewhat garbled.

No one paid much attention to it because it was never known until eight years later in a habeas corpus proceeding that the state report existed, exonerating report existed.

At that time, he testified that somewhere during the 52 hours of detention, he was somehow told that hair has incriminated him.

That's all it appears that that hair is somehow incriminated him.

It does not appear that it was told that a hair was in the child's vagina.

He was simply told that the hair has incriminated him.

He asked, he jumped to the microscope himself and said let me look and “them hairs don't match”.

This is his testimony at the trial in the trial record and it's all we know about the hair episode.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Now, when that was raised by the defendant, did the prosecution respond to it in anyway?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It did not respond to it.

It did not respond to it any way.

It was not counted.

When -- I might say this Mr. Chief Justice, when the accused counsel were permitted to look at the state's evidence, there were hair, hairs were among the evidence exhibited to them but no -- not the report just for hairs as evidence that the state would rely upon, so as counsel would be jumped or they form the opinion if the hairs were somehow favorable to the state.

Hairs were among the evidence exhibited --

Justice Byron R. White: When was it exhibited?

Mr. Maurice Rosenfield: Some point before the -- at some point before the trial.

Not the report.

Justice Byron R. White: Yes, but at that point, could the -- could the matter of the examination had been pursued which had been previously turned down.

You told to Mr. Justice Fortas that there had been a motion and a denial in May.

And when it was the -- when the physical evidence was finally exhibited to the defense, at that point, did the defense had an opportunity to pursue the matter of an examination?

Mr. Maurice Rosenfield: They did not have an opportunity.

Justice Byron R. White: Did they attempt to?

Mr. Maurice Rosenfield: They asked.

Justice Byron R. White: At that time also?

Mr. Maurice Rosenfield: At that -- I don't -- all that appears in the record is that they ask several times.

How many times?

We don't know.

The prosecutor testified for habeas corpus proceeding that they asked continuously.

Rebuttal of Justice Black

Mr. Justice Black: Asked what?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Asked for permission to examine the physical evidence, the point that Mr. Lassers --

Rebuttal of Justice Black

Mr. Justice Black: I thought you said they had it and was presented?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: They were permitted to look at it.

Look -- simply to look at it.

Rebuttal of Justice Black

Mr. Justice Black: But couldn't they protect it?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That I don't know.

They were just permitted to look at it.

Rebuttal of Justice Black

Mr. Justice Black: It was turned over to them to look at.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Or --

Rebuttal of Justice Black

Mr. Justice Black: Or was it?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I don't know.

The record is silent at it.

So I simply don't know.

Rebuttal of Justice Black

Mr. Justice Black: So we don't know whether it was turned over to them to look at it?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Or it was just -- or it was just open to their examination and -- at some place or some point.

Mr. Lassers tells me, in the presence of the sheriff, they were permitted to see --

Justice William J. Brennan: But it was not -- none of these things was surrendered to them?

Mr. Maurice Rosenfield: None of these things were surrendered to them.

Justice William J. Brennan: Now, may I ask --

Rebuttal of Justice Black

Mr. Justice Black: Well, I don't suppose it should have been surrendered to them really.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That's -- if this --

Rebuttal of Justice Black

Mr. Justice Black: I suppose the state would want to keep it if it was evidence.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I beg your pardon, Mr. Justice Black.

Rebuttal of Justice Black

Mr. Justice Black: I suppose the state would want to keep it if it was evidence.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Yes, so the District Court but all things there were made available for scientific -- for examination by the --

Rebuttal of Justice Black

Mr. Justice Black: Yes, I thought (Voice Overlap).

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: By the Federal District Court.

Justice William J. Brennan: But what -- I'm not sure yet about this testimony in the accused himself about the hairs and he's looking into the microscope and so forth that this -- was that testimony the testimony that he gave at the trial in connection with the challenge to the admissibility of the confession?

Mr. Maurice Rosenfield: It was sir.

Justice William J. Brennan: And was that out of the presence of the jury?

Mr. Maurice Rosenfield: It was out of the presence of the jury.

It was at the hearing on the admissibility of the confession in which he was recounting chronologically what happened to him during the 52-hour incommunicado detention period.

Now, the treatment of this point --

Justice William J. Brennan: Does the record show whether the hairs themselves were in the Courtroom on the occasion of that testimony?

Mr. Maurice Rosenfield: It does not show.

The report certainly was not, the exonerating report.

Justice William J. Brennan: And that I gather when -- after the confession was admitted, the state as part of its case, I think you've already told us, offered no hairs as exhibit.

Mr. Maurice Rosenfield: They offered no hairs as part of their case.

Now, the Attorney General in response to all of these about the hair offers two points.

One point is a formal one that no request was made by the accused counsel of -- for the evidence we claim was suppressed.

This, we are submitting to Your Honors, that the Brady against Maryland cannot be read as requiring such a request and we have cited the case, U.S. versus Wilkins decided by Judge Thurgood Marshall which reviews all the authorities on this.

Incidentally, this point was very similar to the point that bothered the Court before the Jencks case.

It was very much the same point that a report was available to contradict and the question was raised and the point was made in Mr. Justice Brennan's opinion in the Jencks case that how could anyone be expected to know the contents of report they hadn't seen.

The other point that the Attorney General makes is that the accused himself somehow knew because of this colloquy that took place during the 52-hour detention period.

Note, the Attorney General is in the awkward position of claiming that the accused -- a statement they made to the accused that hairs matched is to be treated as fulfillment of their obligation under the Constitution to disclose that the hairs did not match.

Now, there was no disclosure at all that the hair within the child's vagina didn't match the accused hair.

There was simply some general garble conversation during this long detention period about hairs.

Justice John M. Harlan: How old is he now?

Mr. Maurice Rosenfield: He's been in the death house ten years.

He's approximately 30 years of age at the time of his conviction.

He's 40 years here of age.

Justice William J. Brennan: What you're saying is that whatever the hairs were that he saw during was 52 hours, were never identified by the prosecution as one of them being a hair from the child.

Mr. Maurice Rosenfield: Never so identified, Mr. Justice Brennan, that's just what I'm saying yes sir.

Now, an electrocution for this man was averted six hours before it was to occur only as a result of the intervention of the United States District Court in the habeas corpus case.

The District Court reached the correct result perhaps for wrong reasons.

The Court of Appeals reached the wrong result for clearly wrong reasons.

And we ask this Court to reach the right result for the right reason.

I thank you.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Michael.

Argument of Richard A. Michael

Mr. Richard A. Michael: Mr. Chief Justice, may it please the Court.

The contentions of the petitioner in this case can be basically summarized into two broad categories, one, the lack of access to certain information, and secondly, the validity of the admission of his confession at the trial.

Concerning first, the issue of the defense's access to information perhaps their most significant issue is that of the finding of the hair.

Now, with respect to this issue, it is important to first determine what was revealed and what was not revealed.

At the District Court, when the petitioner testified, he testified that when in those same proceedings he had heard the state's attorney testify as to the result of this examination.

This was the first he had ever heard about that hair.

However, this conclusion is cast into doubt by his testimony at the trial itself.

Now, I'm talking about the chambers testimony that he gave when the question of his -- the admissibility of his confession first arose for the determination by the Court before it was submitted to the jury.

At that time, he testified that in effect he testified, “They took some pubic hairs from me.

They told me that another hair that it matched with.

I demand to look in the comparative microscope.

I looked, and I said those hairs don't match.

I'm just using the exact language with --

Rebuttal of Justice Black

Mr. Justice Black: Who said that now?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: This was the petitioner, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: The defendant?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The defendant at the trial, yes Your Honor.

Justice William J. Brennan: Did that happen in the stated -- did that happen during the 52 hour detention?

Mr. Richard A. Michael: It -- he testified to it, Your Honor.

As far as I know it is un-contradicted testimony in the record.

Justice William J. Brennan: So we can take that as true, that's what happened?

Mr. Richard A. Michael: I think that that is a fair statement on the basis of this record Your Honor.

Justice William J. Brennan: And did he also say that, might be, they said that, in the record, state officials told him during that period that they had hairs which proved his guilt as to that effect?

Mr. Richard A. Michael: I'll give you the exact language, Your Honor.

Try Volume 4, the Court will refer to this as the brown record, Volume 4, page 91 in 273 and 95.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: What page again did you say Mr. --?

What page did you say again?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: First we'll start, Your Honor with page 90.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: 90, thank you.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: At that point, he testified, about the middle of the second paragraph on page -- first full paragraph on page 90.

Also, they took a small quantity of hair from around my privates.

Rebuttal of Justice Fortas

Mr. Justice Fortas: This was testimony outside of the presence of the jury.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes it was, Your Honor.

This was on the admissibility of the confession.

At page 95 then Your Honors, I refer you next to that, the first full paragraph on page 95.

He says, “I was in this little room at all times in the evening of November 30, except for one time when I demanded to look through the microscope my own self, because they said these hairs belong to me.

Mr. Lich made a statement to me that certain hairs belonged to me.

He showed me some hairs there.

I demanded to go back and he took me there back into the laboratory and a small room which appeared to be a microscope room.

And I looked down and I said them hairs don't match.

I said them hairs don't belong to me.

And the chemist just looked at me and smiled.”

Rebuttal of Justice Fortas

Mr. Justice Fortas: Now, that was a couple of days after his arrest, was it not?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I'm not positive whether this -- yes on November 30, he was arrested on the 28, I believe, this was the 30th.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And he's arrested on the 28th and on the 30th according to his testimony anyway, he was confronted with these hairs.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: What's the date of the confession?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The confession is the 30th, Your Honor, the same day in which he was confronted with these hairs.

Rebuttal of Justice Black

Mr. Justice Black: Now, did you say another page?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I thought I did, Your Honor, I was looking for it and I don't --

Rebuttal of Justice Black

Mr. Justice Black: The 273?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: 273, well that's just a repetition of the first statement, Your Honor.

This is at his testimony, this narrows his testimony, I believe, before the jury.

Rebuttal of Justice Black

Mr. Justice Black: For the jury?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: This is his testimony before the jury at 273.

All he testified here Your Honor is he said, “Then they took a bunch of hairs from around my privates.”

Rebuttal of Justice Black

Mr. Justice Black: Did he tell the jury that?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Apparently so, Your Honor.

I'm trying to -- yes, this was before the jury.

Rebuttal of Justice Black

Mr. Justice Black: So he testified before the jury about the hair, did he not?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: He testified only, Your Honor, that they took some hair from him.

Justice William J. Brennan: Not that they showed him any as noted.

Mr. Richard A. Michael: No, no Your Honor, not as he did before the -- and before the Court in private when he testified that they had showed him this hair.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Did he testify before the jury on -- just on the confession in which your Illinois procedure.

Was that sworn testimony?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Before the jury, no Your Honor, or before in the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Before the jury.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Before the jury, it was sworn testimony.

Yes, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Sworn testimony.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Sure.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was he cross-examined on that testimony?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: He was cross-examined, but I don't believe about that -- the point that we're talking about, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: In other words, was counsel correct when he said that the state made no mention about the -- of the hairs in the whole file?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: That is my understanding of the record, yes Your Honor.

Now --

Rebuttal of Justice Black

Mr. Justice Black: Well, was that because the state decided it was not his hair?

Do you know why?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: All I can do is make an inference from the record, Your Honor.

My inference from the record is that they did have this report showing that it was not his hair, and therefore never raised that issue at trial.

Justice William J. Brennan: But they did raise it at trial.

You concede now that he has -- that we have to take it if they did tell him these hairs were his when at the time they were interrogating him before he signed his confession.

Although they knew then that at least the one that was found on the child's vagina was not his, that --

Mr. Richard A. Michael: No, no I beg to differ with you on that Your Honor.

Justice William J. Brennan: Well, what is the fact?

Mr. Richard A. Michael: The fact is that this interrogation as we said came back the 30th.

Justice William J. Brennan: Yes.

Mr. Richard A. Michael: It was taken place in November 30th.

They did not get the report, the scientific report as to the result of the comparison of these hairs until December 15, I believe it was.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Why did they tell him that they did match?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do not know, Your Honor.

Perhaps the person who looked in the comparison microscope thought they did, but the record is -- has no information to guide us along those lines Your Honor.

Justice Byron R. White: What's the states view on the significance on the fact that on December 15, the state learned that these hairs did not match.

And that the state apparently concedes that the hair found on the smear came from the girl.

Mr. Richard A. Michael: Well, I think that that is an inference that the prosecution made at the -- made and I think that I would've done this if I were to try to contradict that it as --

Justice Byron R. White: That means your brief, as I read your brief, you concede the hair came from the vagina of the girl.

Mr. Richard A. Michael: Certainly, it was found on a Kleenex that it had been used to take a vaginal smear.

I think that it is perfectly fair to make the assumption that that came from the vagina of the girl.

Justice Byron R. White: And do you agree that it was a pubic hair?

Mr. Richard A. Michael: No I do not Your Honor.

The report of the chemist merely identified that was hair of human origin.

That is as far as we know.

Justice Byron R. White: But it's -- let's assume the defense had information that a hair was found in the vagina of the little girl and that it didn't match the pubic hair of the defendant.

I would suppose the defense would've put that testimony on before the jury, wouldn't it?

Mr. Richard A. Michael: I'm not quite sure that I followed your question, Mr. Justice White.

Would you repeat it again, please?

Justice Byron R. White: Well, I just wonder if the information the state had on December 15th from that report was of great interest for the defense.

Mr. Richard A. Michael: That they should have revealed it.

Justice Byron R. White: Yes.

Mr. Richard A. Michael: Well, of course we --

Justice Byron R. White: Well I don't -- unless we break that in two parts, let's forget about should've revealed from then.

If you were defending and had that kind of information, would you introduce it to the trial?

Mr. Richard A. Michael: I would think as the prosecution, Your Honor, that certainly if I had this sort of information that I would not introduce into my case in chief, no.

Justice Byron R. White: No, but if you were defending.

Mr. Richard A. Michael: Oh, if were defending, yes I would, Your Honor.

Justice William J. Brennan: But do you suppose it would've affected the outcome of that trial?

If the defense has had evidence that there has been found in the child a hair and that it was not the hair of the accused, if that evidence has been before the jury, do you suppose it might have affected the outcome of the term?

Mr. Richard A. Michael: We are of course, Your Honor, dealing in a realm of supposition here.

Justice William J. Brennan: I know, but that --

Mr. Richard A. Michael: I would --

Justice William J. Brennan: -- the test and on a few is whether it would affect the outcome of the trial, isn't it?

Mr. Richard A. Michael: I would submit --

Justice William J. Brennan: It might affect the outcome of the trial.

Mr. Richard A. Michael: I would submit, Your Honor, that when we had before the jury, his own confession, a admission that he made to Betty Baldwin, and we have the profession of prior admission of guilt, the fact of a hair in the vagina which did not match his, I submit to you, would not have changed the result before that jury.

Justice Byron R. White: Well, what's the -- how typical do that in this case -- differently in the case?

Rebuttal of Justice Fortas

Mr. Justice Fortas: Mr. Michael, as I understand it, you do not now represent to this Court that the hair which was found in the vaginal smear was not pubic hair.

You don't make that representation --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I make the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- to concede the contrary.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I make the representation Your Honor that the record shows that it was a hair of human origin.

That it does not show that it was pubic hair.

It does not show that it was not a pubic hair.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And you do not here contend that it was not pubic hair?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do contend that it was not shown to be a pubic hair, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I understand you.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I wonder if this is impertinent.

When on the motion to suppress the confession made out of the presence of the jury, when the defendant told the Court that while he was in jail they had shown him -- they had told him first that his pubic hairs matched with those found in the girl, and that he been looked at the microscope and -- himself and then said, “Those are not -- those don't match.

They're not my hairs.”

And the state had this report from its own laboratory to the effect that they did not match.

Do you not think there was an obligation on the state to disclose the fact that it did have such a report and that it was consistent with what the defendant said?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Your Honor, I submit that on the basis of this record, the duty to disclose is not present for three reasons.

First, I submit that in effect, we can look at it that there was really no nondisclosure at all.

He was told, according to the petitioner's testimony that a hair was found in the vagina of the victim that it matched his -- I beg your pardon that his were taken for comparison purposes and a comparison was going to be made.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: No, I understand that he testified that they said that they did match his and that there's no denial on that on the part of the state.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: There was a denial by the petitioner, Your Honor.

He was allowed to look into the microscope and said those hairs don't match.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes, but the state had already told him that they did match and he says that they didn't.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Does it say they didn't?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And by the time the hearing came on, on the motion to suppress the state had a record from its laboratory to the effect that they did not match.

Now, do you not think that those are burden on the -- on the state to admit to the Court that that was a fact rather than leave it to the Court to believe that what they had told him about the matching was true and that what he said about the not matching was not true?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I believe there is some burden here Your Honor upon the prosecution -- upon the defense.

This statement was made in the -- the statement was made, the question could've been asked by the defense.

The defense could've made a motion for -- the defense knew Your Honor that there was a hair found in the vagina of the victim.

They knew that his were being taken for comparison purposes.

They never -- they had enough information Your Honor in closing argument and nothing else had been done to make -- to argue in closing argument to say, “Ladies and gentlemen of the jury, the state knew that there was hair found in the vagina of the victim.”

The state took, mere comparison with the defendant's and they never introduced that at trial, except the information was totally in the hands of the defense, the inference can be drawn that that -- I beg your pardon Your Honor, the prosecution.

The inference can be drawn that that hair was -- that that evidence was unfavorable.

They had that amount of information in their possession, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Mr. Michael, may I ask you questions?

Suppose that the report, I'm trying to get the state's position now, suppose at the written report in the hands of the state were to the effect that the -- in the smear, there was found a hair, that is a pubic hair, you think that it was found in the little girl, and that the pubic hair that was found there did not match the pubic hair of the defendant.

Let's suppose in other words that these were -- this sort of overwhelmingly exonerating report.

In your -- in the state's position, would the state be obligated to disclose that to the defense?

I think perhaps from my point of view that may be close to the knob of our problem.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Your Honor, we of course start with the -- with your proposition with Brady versus Maryland holds that evidence favorable to an accused relevant material to the evidence of either guilt or punishment in the hands of the -- on request, must be revealed.

We start with that as our basic proposition.

So then we ask on applying that proposition to the facts of the -- if I may, to the facts of this case first.

We submit that first there was really no nondisclosure.

We submit that he knew the hair was found in the vagina of the victim.

We knew that his were being taken for comparison purposes.

We know that he stated on the record that those hairs did not match him that that was never denied.

As thus interpreted, he knew the hair was found.

He knew what comparison was made.

He knew that they didn't matched, if we can put any credence in his own ability to compare, and I don't know enough about the hair examination to know that if a layman looks in that he can see whether it's obvious that hairs match or do not match.

But nevertheless, he admittedly denied it, immediately upon looking on it, immediately denied it and that denial was never denied.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I know but maybe there are some limits to looking upon a capital case which the state demands a man's life and there are some limits to looking upon it as solely upon test of wits and abilities.

And that's why I'm asking you what state's position is on the assumption that I stated.That is say let's suppose if this were --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If a proper --

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- regular court where totally exonerating and let's suppose that the defense, because of negligence or stupidity or whatever, did not demand the production of the report or because they didn't know of its existence, which I take it, is a fact here, did not demand the production of it.

Do you think that the state would be justified as a constitutional matter in not volunteering that information?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I would assume, Your Honor that if one, you can see the materiality of this testimony.

Now, I must add in answering this question that both the District Court and the Court of Appeals based their decision on this point upon, the question of materiality of the evidence.

The District Court stated the hair found in the vagina of the victim was of not consequence and did not prejudice the petitioner's case.

The Court of Appeals stated, there is absolutely no evidence in the record to show that that hair was in the vagina was of the perpetrator of the crime, and they further held that on the basis of the damaged condition of the body, it could've been deposited by anybody who had examined the body or anybody who had handled the body since the crime.

That was the conclusion of the Court of Appeals, Your Honor.

So, but if we assume the materiality of the evidence, if we assume a proper request was made as envisioned by Brady versus Maryland, I then ask you that that information would have to be divulged, yes sir.

Rebuttal of Justice Fortas

Mr. Justice Fortas: That of course is not my question, but that's alright, go ahead now.

Rebuttal of Justice Black

Mr. Justice Black: Do you have that pubic hair now or that hair?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do not believe that it is amongst the exhibits now.

Maybe you know that it is not presently amongst the exhibit.

Rebuttal of Justice Black

Mr. Justice Black: It's not in existence?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If it is in existence, I do not know where it is, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: Did the doctor who made the report record whether it was a pubic hair or not a pubic hair?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No he did not, Your Honor.

I don't -- I beg your pardon, there was no doctor's report on that, Your Honor.

There was a chemist report.

The chemist did not -- only reported that it was hair of human origin, probably of human origin.

He uses this --

Rebuttal of Justice Black

Mr. Justice Black: Did not report whether it was pubic hair.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They did not, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: Was there any testimony about whether there could've been any hair there from her own body at her age?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I'm not sure whether there was or not, Your Honor.

I believe there was not, but I just am not sure of that.

Rebuttal of Justice Black

Mr. Justice Black: But you have no way of knowing now whether it was a pubic hair or not?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: No way to prove it one way or the other.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I was just wondering certainly that would not make any difference to us here for our observation but certainly the state must have that vial if that was in, wouldn't they, at this time while the case is still pending?

They had it on the habeas corpus proceeding, certainly they must have it now.

They wouldn't --

Rebuttal of Justice Black

Mr. Justice Black: They did --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: -- have destroyed it, would they?

Rebuttal of Justice Black

Mr. Justice Black: Your Honor, I beg to differ with you, I do not think they had it at the habeas corpus proceeding.

If they had it, it would now be on the record.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Oh!

Pardon me, I understood that from the counsel that it was there.

Rebuttal of Justice Black

Mr. Justice Black: No, it was not, Your Honor.

The reason that it was not, I assume, it's because was never introduced into evidence at the trial.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I see.

Rebuttal of Justice Black

Mr. Justice Black: So there was -- it was not given that significance.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I just misunderstood what counsel said.

Rebuttal of Justice Black

Mr. Justice Black: We turn then to the aspect of Brady versus Maryland that requires a -- Brady versus Maryland says that nondisclosure upon request constitutes a violation of due process.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: But you don't think it's significant within Brady and Maryland there was in fact a request?

Rebuttal of Justice Black

Mr. Justice Black: Your Honor, in the light of this case --

Justice William J. Brennan: No, but please answer the question.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I beg your pardon, excuse me.

Justice William J. Brennan: You do or don't consider it significant that there was in Brady and Maryland in fact they request?

Mr. Richard A. Michael: Yes, Your Honor, I consider that that's significant.

Justice William J. Brennan: Alright.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: What do you have to say about the request that we made in this case for an opportunity to examine the evidence?

Justice William J. Brennan: I submit Your Honor that it was too broad to meet the requirements of Brady versus Maryland.

All it said in the request itself Your Honor is found at page 2 of the Volume 4 of the record.

Now, comes the defendant, Lloyd Eldon Miller, by William Malmgren, his attorney, hereby moves the Court to make an order permitting the defendant to make, or cause to be made, upon such terms and conditions as the Court may seem necessary to adequately insure the interests of the parties, a scientific examination of the physical evidence to be introduced by the people in this cause, etcetera.

Now, even under Rule 16 of the Federal Rules of Criminal Procedure, Your Honor, in order to make a -- for the defendant to make a motion to examine physical evidence in the hands of the government, it is necessary that they show the materiality and the reasonableness.

I submit to Your Honors that this motion would not be -- would be held as improper under Rule 16 of the Federal Rules of Criminal Procedure.

Rebuttal of Justice Fortas

Mr. Justice Fortas: What they're asking here was for the physical evidence that it is going to be introduced by the people in this cause.

And presumably that means that will give the state latitude to say, “Alright, we're going to have to use this, this and this and you can get it and make physical examination of it.”

So what's the deficiency under Rule 16 or otherwise?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I don't think that they have shown either the materiality or the reasonableness, Your Honor.

Now, one thing that is to be noted with respect to that motion is that they ask for the evidence that the state is going to introduce.

The hair wasn't even introduced as very technically interpreted.

The motion does not even apply to the hair.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I understand that, but it does apply to this part of the case involving the shorts.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor, it does.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And how at this particular time would the defense have known what the prosecution was going to introduce by way of physical evidence?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I assume that they -- the only way I can answer that question Your Honor is that they were given the right to view all the physical evidence in the case.

He made that motion.

They were allowed to go in.

They were allowed to view all the physical evidence in the case.

Now, they could've based -- the hair was seen of record that they saw the hairs when they made that view.

A motion -- in addition of the fact, that the defense knew that the hair was found in the vagina of the victim, knew that hair of petitioner was taken for comparison purposes.

I do not submit that it is too great a burden on the prosecution -- on the defense.

I beg your pardon, to make a motion for their result of that examination.

Justice William J. Brennan: Did you say Mr. Michael that among the things they did see was the actual hair taken from the shorts?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The testimony, Your Honors, states that amongst the physical evidence seen was hair and hairs.

It does not define determining further, yes.

Justice William J. Brennan: That would identify them as including that the hair was --

Mr. Richard A. Michael: Correct, Your Honor.

Justice William J. Brennan: Well, hair was in the vial, wasn't it?

Mr. Richard A. Michael: The testimony does not state how it was, Your Honor.

All it states is that “What evidence did you see when you examined it?”

“I saw hairs.”

He stated it, he didn't state whether it was in vial or how it was.

I assumed it was in the vial because that at least was the way it went to the chemist.

Rebuttal of Justice Black

Mr. Justice Black: Was the time they saw that after they made this motion?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: First they --

Rebuttal of Justice Black

Mr. Justice Black: After they made motion on page 2, was that when they saw the physical --?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As I read the record Your Honor, first they were allowed to view the evidence personally.

Then they made the motion --

Rebuttal of Justice Black

Mr. Justice Black: When?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They made the motion to view the evidence as I read it prior to the motion to make the scientific examination of the evidence.

Rebuttal of Justice Black

Mr. Justice Black: And were allowed to look at it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They were, Your Honor.

Justice William J. Brennan: And then they made the motion for the (Voice Overlap).

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: And that was the one that was denied?

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: Was the original motion granted is that it for defense?

Mr. Richard A. Michael: I am not aware, Your Honor, whether it was just granted by the prosecution or whether there was a court order on that.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did the Court make -- state any reason as to why it was denying him a right to examine?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The Court does not.

The -- in the Court the state's attorney was asked why he opposed that motion, and he testified Your Honor that he opposed it because they -- he could not be assured.

He was not assured that the evidence would not be -- the chain of evidence would not be some way destroyed by the tests that were going to be taken.

That is why he opposed it, the reason -- the ruling of the judge, however, is not in the record.

The reason or the ruling of the judge is not in the record, Your Honor.

We turn then Your Honors to the question of the bloody shorts.

Now, the chemist for the state literally testified at the trial -- testified at the trial that the shorts did contain blood.

And the state's attorney also testified -- stated in argument referred to these shorts as bloody shorts.

Now, at the District Court in the habeas corpus proceeding --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: May I ask before you get to the District Court.

If the prosecuting attorney describe the blood that was on them or the amount of it, or did he make any representation as to whether this is blood on the shorts?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do not think the record indicated that he pointed to any spot, Your Honor.

It said this is blood.

He referred to the document in general as the bloody shorts.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Well, there are more than spots on that.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: It's covered with something which they now say is paint.

And I wonder if was that represented to the jury in any way as being the blood stained shorts without distinguishing --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No statement was made to the jury Your Honor, as far as I know that there was any paint on these.

There was then therefore, the jury would, I assume allow to draw the inference that all the spots were those of blood.

On the other hand, I do not think any direct statement was made any given spot or all spots were blood.

Rebuttal of Justice Black

Mr. Justice Black: When did the question first come up about the paint?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As far as I know Your Honor, in the District Court they did make a scientific examination of all the evidence.

One Martin, a chemist employed by the petitioner here, took 12 strands at out of the more heavily stained areas of that garment, 12 fibers.

He examined those 12 fibers, each out of one of the heavily stained areas.

His testimony was that ten of the fibers contained paint.

One of the fibers are kind of a carbon substance and one of the fibers an unidentified substance.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Mr. Michael, when the shorts were introduced at the trial, did the defense make a motion at that time that they be permitted to have a scientific examination of it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As far as I know Your Honor, and I think this is correct, the only motion from the scientific examination was the one that we have referred to with respect to --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Alright, now try to get at the theory of this case.

Suppose at the trial, the state offers the shorts and testimony is to be offered or is being or has been offered to the effect that those are blood stains.

The defense then moves in an appropriate way to be given the opportunity to have a scientific examination of the shorts.

In Illinois law, what would happen?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Generally speaking, I would submit that it would be granted, Your Honor.

The general rule under Illinois law is that, it was enunciated by the Court by the way in reviewing this case, is that there is a qualified -- red-light lining to the discretion of the Court to allow the defense to make scientific evidence of the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: I suppose the trial judge said in all this, “No, I won't let you do that.”

Would that be an error under Illinois law?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If there were no further basis than that Your Honor, I submit that yes it would be.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I thought you said there was discretion on it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: It could be reviewed however for abuse of discretion.

Rebuttal of Justice Fortas

Mr. Justice Fortas: You think it would be introduced as discretion?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I would if there were no reason at all for denying a motion to make scientific evidence, I would submit that it would be in abuse of discretion.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Why, because it's a denial of fair trial?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, sir.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Well why, that's constitutional principle too, isn't it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: To the extent that Brady versus Maryland so enunciates it, yes sir.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did -- may I ask this, did the report of the state's experts who examined these shorts report that the major portion of what's on there is paint?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The report of the state's expert on that Your Honor was that he had examined it, he had found paint and he made no -- I take it back, he had found blood and he made no test for any other substance.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And he made no reference in his report that the -- that what is so observable there is paint and not blood?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The chemist did not, Your Honor.

The state's attorney in the District Court did testify that he knew that all of the stains on it were not blood.

That is all we have in the record on that issue.

Justice William J. Brennan: He knew that at the time that the shorts was introduced in evidence?

Mr. Richard A. Michael: He so testified in the District Court, Your Honor.

Justice William J. Brennan: But he didn't disclose that time?

Mr. Richard A. Michael: He did not, Your Honor.

Justice William J. Brennan: You know whether in summation he used the garment in his summation to the jury?

Mr. Richard A. Michael: He certainly referred to the bloody shots.

Of course, the report of the short hand report, it would not indicate whether he was waiving it or --

Justice William J. Brennan: But at the time he made reference to it.

Mr. Richard A. Michael: He did, Your Honor.

Justice William J. Brennan: He knew that there was -- that at least all of the spots were not blood but some or something else.

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: And said nothing about it.

Mr. Richard A. Michael: Yes, Your Honor.

Justice Potter Stewart: Where does that -- I want to be sure he's sure what he did admit it to his knowledge at the time of -- at the clemency hearing or at the habeas corpus hearing --

Mr. Richard A. Michael: At the habeas corpus --

Justice Potter Stewart: -- he admitted as to his knowledge at the time of the trial that some of the stains, that at least some of the stains were not blood.

Mr. Richard A. Michael: Volume 2, Your Honor, page 581.

Justice Potter Stewart: Volume 2, page 581.

Well, this -- is this the prosecuting attorney at the trial who's testifying?

Mr. Richard A. Michael: Yes, I beg to change that to make it 580, Your Honor.

Justice Potter Stewart: 580?

This is Blaine Ramsey?

Mr. Richard A. Michael: This is Blaine Ramsey, yes Your Honor, at the bottom of the page.

“Let me ask you this Mr. Ramsey.

As a matter of fact Mr. Ramsey didn't you know at the time of the trial Lloyd Eldon Miller Jr., that these spots in this examination were not blood?”

“Oh!

I knew that all of them were not blood, yes sir.”

Justice Potter Stewart: That's what you were referring to the --

Mr. Richard A. Michael: Yes, I was.

Justice Potter Stewart: Thank you.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Then he said also, “With regard to those that can be seen by the naked eye, you knew at the time of trial, didn't you, that those spots that could be seen by the naked eye were not blood spots.

You knew that, didn't you?”

“Well not conclusively.

I had knowledge from a chemist that there was blood on it.”

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes sir.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I see that's his further testimony.

Justice William J. Brennan: Mr. Michaels, who was Mr. Litterly?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: He was a chemist, Your Honor, employed by the state bureau of -- I don't really -- criminal -- the scientific arm of the state government at that time.

Justice William J. Brennan: What about the statement on his testimony at 581.

“Now as to those spots which you knew were not blood, what did you know those to be?

What did you know of those Mr. Ramsey?”

“I'm trying to recollect that.

They said there was also paint on that I think that is remembered only.”

“Who said it was paint?”

“I presume Mr. Litterly but I really do not recall.”

Is that -- are we to get -- take from this that he's suggesting that at the time it was offered at trial, he knew more of then that there were some spots were not blood, he knew that there were spots that were paint, is that it?

Mr. Richard A. Michael: He testified there Your Honor that he knew that some of those spots were paint, I would assume.

Justice Byron R. White: But Litterly testified at the trial that he didn't make test on the non-blood.

Mr. Richard A. Michael: Right, Your Honor.

He testified only that he had examined for blood and he had made no other tests on the garment.

Justice Byron R. White: But in order to -- he tested for blood but he didn't find blood in some of those spots.

At least that is a fair reading of his testimony.

He knew that some of the stains were not blood, so he did test the stains for blood.

And if the prosecuting attorney knew at the time that some of the stains were not blood, the only source of information could be from Mr. Litterly, I presume.

Mr. Richard A. Michael: Yes, I would assume that that would be correct.

Justice Byron R. White: And his source of information would I assume be a written report?

Mr. Richard A. Michael: The written report from Litterly is in the record, and at my recollection of it, it is in the echo -- the report of the exhibits.

The report of Litterly is found at --

Justice William J. Brennan: This is not the trial, isn't it?

Mr. Richard A. Michael: No this is the exhibits from the habeas corpus proceeding, Your Honor.

Justice William J. Brennan: Habeas corpus.

Mr. Richard A. Michael: I think it's number six, Your Honor I'm looking at it now to verify it.

Yes, it is petitioner's exhibit number six.

Justice Byron R. White: This is what the prosecuting attorney knew?

Mr. Richard A. Michael: Yes, Your Honor.

Justice Potter Stewart: Where -- which one of these items applies to the --

Justice William J. Brennan: The reproduction is not very good.

Mr. Richard A. Michael: No, it isn't Your Honor.

I'm trying to Your Honor, I'm -- do you have one of your first?

Yes, that's much better.

Justice William J. Brennan: I see some --

Mr. Richard A. Michael: It's -- at the next to last page, Your Honor.

Justice William J. Brennan: Can you read it?

Mr. Richard A. Michael: Yes I can from the original or much better copy of the report than you have available.

Justice Potter Stewart: The pair of white jockey shorts?

Mr. Richard A. Michael: Yes, Your Honor.

Justice Potter Stewart: Described as number 17?

Mr. Richard A. Michael: Were examined by chemical means and found to be heavily stained with blood.

Further serological examination include the blood was of human origin.

It was probably of group A.

Numerous hairs and fibers were herein to the shorts and were mounted in microscopic examination, a comparison of those hairs of pubic hairs 10 to 15 millimeters.

Some similar characteristics, no definite opinions of whether or not the common origin is possible.

One of the fibers found in the shorts was mounted and compared microscopically, samples of the fibers of the inner pant lining the color, size, etcetera.

Justice Potter Stewart: No mention of paint at all.

Mr. Richard A. Michael: No mention of paint, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Oh, what page is that on do you say?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: These are not numbered, Your Honor.

This is exhibit number six, the next to the last page, Your Honor.

Justice Byron R. White: Well, this -- there's no mention here that some of the stains were not blood.

Justice Potter Stewart: No.

Mr. Richard A. Michael: No there is not, Your Honor.

Justice Byron R. White: Well, then where did the prosecuting attorney get his information that some of the stains were not blood?

Mr. Richard A. Michael: I do not know, Your Honor.

All I know is that in the District Court he --

Justice Byron R. White: Well, how about Mr. Litterly's testimony?

He did testify that some of the stains were --

Mr. Richard A. Michael: Yes.

He testified that he -- he did not testify that some of the stains were not.

He testified that he knew that some of the stains were not blood.

Justice Byron R. White: Well, how about the testimony at the trial?

Mr. Richard A. Michael: Litterly's testimony at the trial you're referring to now, Your Honor?

Justice Byron R. White: Did he then say -- he didn't make any mention at all as to other stains, did he, in his testimony?

Mr. Richard A. Michael: No, Your Honor.

Litterly's testimony at the trial appears in the brown colored Volume 4 at page 168.

Justice Byron R. White: Okay, thank you very much.

Mr. Richard A. Michael: It stated, “I examined and tested People's Exhibit 3 to determine the nature of the staining material thereon.

That result of the first test was that this material upon the shorts is blood.

I made a second examination it's as close as the blood of human origin and made a further examination which disclosed that the blood was of group A.”

That was his testimony at that time.

Justice William J. Brennan: Well, now that -- he made more -- testify?

Mr. Richard A. Michael: Pardon me?

Justice William J. Brennan: More fully did he, on the habeas corpus?

Where was it that he finally conceded that some of the --

Mr. Richard A. Michael: I'm not sure that he ever did.

It was the state's attorney who conceded that he knew that some of the stains were not blood, Your Honor.

Justice William J. Brennan: That's the thing I referred to in form of my question.

Mr. Richard A. Michael: Yes.

Yes, Your Honor.

Justice William J. Brennan: I see.

Mr. Richard A. Michael: We submit that on this issue, Your Honors, the critical point is whether there was blood on these shorts.

The petitioner testified that he --

Justice Potter Stewart: Well, don't you think under a case like Napue against Illinois, the critical point is, even if there was blood on those shorts, a misrepresentation that the stains you could see there was blood when they knew it was -- if they knew it was paint.

Mr. Richard A. Michael: If there --

Justice Potter Stewart: Isn't that the knowing use of concept of misrepresentation by the prosecution in a criminal case?

Mr. Richard A. Michael: If there is blood on these shorts, Your Honor, and the mere testimony by the prosecution only is that there are -- is blood in these shorts.

And if they do refer to them as bloody shorts, if there is blood on them, I submit that even though there's also paint, there is no going beyond the truth, if you will, as indicated by Napue.

Justice Potter Stewart: Well, as I understand it, today you can't find any blood on it?

Mr. Richard A. Michael: That is correct, Your Honor.

Justice Potter Stewart: On what's in there.

Mr. Richard A. Michael: However, the chemist for the prosecution did testify that he had no opinion today as to whether there was any blood on it or not.

Justice Potter Stewart: Today the appearance of those and the --

Mr. Richard A. Michael: Except for one stain, Your Honor that is unidentifiable in origin.

Justice William J. Brennan: Well, Mr. Michaels as you held those up, I don't -- it hardly seems an unspotted -- look at that.

Mr. Richard A. Michael: It --

Justice William J. Brennan: If the blood has now disappeared, there's certainly an awful lot of paint.

Mr. Richard A. Michael: Yes there is, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Suppose the prosecutor had expressly represented to the jury that all of those spots were blood, would that have been your judgment, would that have been error under Illinois law?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I would think not only under Illinois but under the decision of this Court it would have been, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: That's because it would've not been consummate with our ideas of a fair trial.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes sir.

Rebuttal of Justice Fortas

Mr. Justice Fortas: So that what we have here is the variation in the sense that there was represented but there was blood on the shorts with no particularization of the exhibit, which was physically before the jury.

It was not all blood but mostly paint as to the appearance to the naked eye now.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes sir.

However, I do want to go back to the point I was making with respect to Mr. Justice Stewart's question.

The petitioner did testify in his confession, admitted in his confession that these were his shorts.

The critical issue --

Justice Potter Stewart: Incidentally, where does this confession appear here, anywhere I can't --

Mr. Richard A. Michael: Yes, it is in the record, Your Honor on before -- it appears really in two places.

One, Mr. Christensen who took the confession, testified as to what he said to him during the interrogation and then another time that Mr. Baudino read his confession into the record.

Justice Potter Stewart: Where are the two places?

Mr. Richard A. Michael: Mr. Christensen's statement begins on 128, I believe it is, Your Honor.

Justice Potter Stewart: That would be of Volume 1?

Mr. Richard A. Michael: This would be the trial transcript, Your Honor, the brown covered by --

Justice Potter Stewart: Volume 4.

Mr. Richard A. Michael: Volume 4.

Justice Potter Stewart: 128.

Sorry to take your time but I haven't --

Mr. Richard A. Michael: No, no.

Then you have the -- we are looking now, Your Honor, for the -- where the confession.

Justice Potter Stewart: Right, thank you very much.

Rebuttal of Justice Black

Mr. Justice Black: Was there any evidence in the record of about how that paint got on those shorts?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, there's nothing at all, Your Honor, as far as I know.

Rebuttal of Justice Black

Mr. Justice Black: What was this man's occupation?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Would you excuse me?

The confession Your Honor of the defendant was right under the record of page 144.

Pardon me, Your Honor?

Rebuttal of Justice Black

Mr. Justice Black: I asked, what was his occupation?

As I recall it was evidence of him being a taxi driver.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes there was, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: He was not a painter.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, he was not, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I understood there was some evidence in one of the proceedings to the effect that these shorts did not fit the defendant.

Is there anything from the prosecution to rebut that?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The testimony was, Your Honor, that the -- they would've been tight and uncomfortable if he had worn them.

There's nothing to rebut that, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was there any rebuttal of that?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, there was not, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Anything to show that the confirmation of the man had changed in the years that he was either fatter or thinner at the time this testimony was taken and at the time of the crime?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, there was not, Your Honor.

Justice Potter Stewart: Perhaps I misunderstood.

I thought you were starting to tell us at the time that I interrupted you to ask you where in the record the confession appeared.

I thought you were trying to starting to tell us that in his confession, he admitted that those shorts were his?

Mr. Richard A. Michael: Yes, he did Your Honor, in his confession.

He later denied it.

Justice Potter Stewart: But he never made any confession.

Mr. Richard A. Michael: Yes, but in his confession he admitted that the shorts were his.

And so I submit that the relevant question is whether they did contain blood.

If they did contain blood, this was the critical point.

The presence of paint in addition to the blood, I respectfully submit, was immaterial.

Rebuttal of Justice Black

Mr. Justice Black: Where did they get the shorts, from him?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They found -- a policeman found them in a old abandoned apartment building which was referred to at that time as the Van Buren Flats.

In his confession, he stated that he had discarded them in the Van Buren Flats, but if I remember the testimony correctly, the police had found it before his confession if I'm not mistaken on that point.

Justice William J. Brennan: I'm sorry must have read them -- perhaps I read it too quickly.

This is the confession at page 145?

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: 147, can you refer me to the admission that these particular shorts were his?

I see that there is -- he states that he removed the shorts, but I don't find any --

Mr. Richard A. Michael: Perhaps it was in the statement of Mr. Christensen sir.

Justice William J. Brennan: I see.

Mr. Richard A. Michael: If you don't find it there.

Justice William J. Brennan: I don't find it in the confession.

Justice Potter Stewart: I found -- I find on a page 130 that he said he did this -- discard his shorts at Van Buren Flats, but that doesn't -- that's not the same as saying that those shorts are his.

Mr. Richard A. Michael: I agree with that, Your Honor.

My recollection from the record is that he was shown the flats and he stated that they were -- I maybe in error on that.

It was my recollection from reading the record, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: Well he agreed that -- he conceded that they had been left at this place and they found these at that place.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: That's probably might be accountable for your error.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: That is --

Justice Potter Stewart: I find what you're referring to now, on page 132 just below the center of the page.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Michael, I gather the impression from reading the phrase that the state in introducing the confession and the presentation of its case told the jury or left the impression with the jury that he have had obtained the confession of the defendant and then had verified it through these things and that they had found these things as a result of the confession.

And I gather the impression also that there had been evidence later produced to show that they had these things before the confession and verify them by this confession.

Now, did the state deny the latter?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As I remember that point, Your Honor, it's my understanding that the reading of the record that the items were found before the confession.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was that at any time represented to the jury that these things were found afterwards as a result of that confession?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The petitioner has claimed that they are, Your Honor.

As I read that section that he referred to, I was not -- I thought it was ambiguous which way they were referring to it.

Justice William J. Brennan: Would you have that citation recorded?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Don't you think that's -- that might be important?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If there were knowing misrepresentation to closing argument, I would say it would be very significant, Your Honor.

If there was no evidence, however, brought out that he deliberately misstated anything, it is possible that a mistake could occur in -- by prosecution in closing argument which would not be deliberate mistake and would not amount to constitutional proportions.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: But neither that an important thing, it seems to me, whether these things were found and developed as a result of the plain confession that he made or whether they had these things and before the confession and did not report it to the --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The argument that you are referring to, Your Honor, is on page 375 of the volume printed by this Court, Volume 4, Your Honor.

And it relates to the jacket of my -- attorney for the petitioner in form where he relates --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Where is that, the upper part of the volume?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: About the middle of the page I believe, Your Honor.

They could not have known, but when they put it there to find, the jacket was found where he had said he had put it.

Words are about the middle of the page, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: 275?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I beg your -- 375, I beg your pardon.

Justice William J. Brennan: That's the one they could not have known, but when they went there to find the jacket it was found --

Mr. Richard A. Michael: Yes sir.

Justice William J. Brennan: -- where he said he put it.

Mr. Richard A. Michael: Yes, Your Honor.

We turn then Your Honors --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Now, did -- is -- which is true, that they did find this thing after the confession or before?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: My understanding of the record is that they found it before the confession, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And that this, while it might not have been with intention to deceive, but was, untrue?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If that is -- as I read that, Your Honor, I am not absolutely clear just what the meaning of it.

If you interpret that as saying that we took his -- what he told us and went out and there we found it then it would be untrue, yes Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: We turn then to the question of the advice to Mrs. Baxter that she had a right not to talk to the defense in this case.

Now, Mrs. Baxter testified at the pardon and parole proceedings that she had been receiving many calls and was being bothered by the defense attorney and she was, in her words, perturbed.

She called up the state's attorney and asked what the situation was.

He told her in effect that, “You have a right not to talk to the defense if you want to.”

This is corroborated by his own testimony at the District Court where he testified that he told other witnesses amongst her that by request that they had a right not to talk to the defense and they must make up their own mind whether they wanted to or not.

Now, we submit that this statement is absolutely correct.

Absent a subpoena to some particular hearing, every private individual has a right not only to talk not to the defense, but not to talk to the prosecution, absent an appropriate subpoena.

We submit that there was absolutely no violation of any rights in respect to that statement.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I was wondering about her testimony when it was offered and when the Court was asked for permission to permit her testimony as a court witness.

The prosecution said they would consent to it only if her unreliability was conceded.

Now, why would that -- is that a normal thing?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Let me correct that statement.

Just -- my understanding, Your Honor is with that the Court said that rather than the prosecution.

The Court said, “If you will state to me that she is unreliable in some way, I will allow you to call her as a court's witness.

If you do not so state then I will give you great latitude in asking leading questions and various examinations you want, but I will not call her as a court witness.”

They then refused that offer -- they refused the Court's offer to have called her and have this great leeway in question -- with respect to leading questions.

I assume they testified because they did not want to be bound by the testimony of someone whom they did not know who was going to testify.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Is that a test of whether a person -- the defendant should be entitled to call a witness as the Court's witness that he must admit that there's some unreliability?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I think it is -- the question is pretty much within the discretion of the Court, Your Honor.

And I don't think it's subject to review for abuse in the same way as the scientific evidence was as I referred earlier to the question of Mr. Justice Fortas.

I think that if the Court -- if you can show some reason to the Court why he should be called as the Court's witness, that he pretty well usually is.

The Court, in exercise of its discretion in this case, merely believed that they had not shown sufficient grounds to exercise his discretion in that regard.

We turn then to the question of the unreliable witness, Betty Baldwin, not Betty Baldwin-Curry.

The prosecution -- the petitioner in this case contends that the prosecution was in error for calling that witness when they knew that she was unreliable.

We submit, Your Honors, that there is absolutely no constitutional requirement that prohibits the calling of a witness, who in the past has not been believed if, and this is the big if, they do believe her testimony on this occasion.

Now, on this occasion, the evidence is rather complete that at least two people so testified that they fully believed her on this occasion.

On that basis, they called her and we believe that it is a proper to call a witness whose testimony you believe even though at some past occasion you may not have believed this witness' testimony.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Which one would they believe?

Which part of her testimony would they believe, for in the Court, she said she had known him for two years and prior to that time she had told the police that she knew him for five weeks?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Well, there is another factor in that regard, Your Honor.

When -- if the she had told the police that she knew him at the time of the crime for five weeks.

Now, this question was asked at the trial which was ten months after the crime.

How long have you known him, not how long had you known him Your Honor, not how long had you known him at the time of the crime, but how long have you known him, which means from the present past.

And I submit, Your Honor, that the correct answer to that would have been 11 months, because she had known him at the time that question was asked for 11 months.

Now, I submit Your Honor, that to allow that to go unrefuted is absolutely immaterial.

There is no materiality at all in this record to the significance of whether that she had known him 11 months or two years.

The defendant states there is some materiality --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Do you have the citation to that, but don't take the time to look.

If you don't know, don't bother.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: You mean as to the -- where as to the formal questioned asked?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: As to whether they said, “How long have you known him?”

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes I have it right here, Your Honor, it's in Volume 2, -- Volume 2 page 702 at the top of the page.

At the very top of the page, Your Honor, it refers “Do you know the defendant Lloyd Eldon Miller?”

She said, “Yes sir.”

“How long have you known him?”

“Approximately two years.”

The principle -- there is concluding that thought Your Honor also if there's a contention under Napue versus Illinois that they allowed knowing testimony to go in the record as they did not contradict that statement.

There is absolutely no evidence in this record that they were aware of the statement was made.

Now, there was the fact that that statement had been made to the prosecution, but there was no evidence that they had gone down that statement and checked every one of her answers against them, I'm sure they knew it in substance.

But this was such a, I submit, immaterial point that they probably didn't even realize that she was violating the statement that they had given, or at least there's no evidence in the record that they had, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Michael, may I ask you concerning this witness if it is the fact that they have concluded before this proceeding that this witness had made a false accusation against another person for a crime that she said he had confessed to her but was not true.

And then also that she had made another one which was under investigation and which the experts found that it was inconclusive but they believed that she was not telling the truth and that the county authorities who prosecuted this case suggested that they discontinue the investigation of the truth of that statement until this case was tried so she could be a witness here.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Your Honor, what you say is very -- is in substance.

Now, I know of only one prior occasion that she had made a story about another crime that was this narcotics story.

With respect to that statement, she was given a lie detector test to check whether it was right.

The result was inconclusive.

They said that they found -- they did not believe her, although the test was inconclusive and that they were going to drop the matter.

The only other instance that I can think of which talks to their -- to the unreliability relates to the statement that Mr. Malmgren, the attorney for the petitioner had tried to coerce this witness.

Now, as far as I read the record in this case, those claims have never been disproving, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I understood that there was an investigation of that, and the authorities indicated that they thought that was not true, but the people who prosecuted this case suggested that the investigation be discontinued until after the trial of this case.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: That was -- the statement that they believe was not true of hers related to the narcotics story, Your Honor.

There was no evidence one way or another whether they believed the story with respect to the Attorney Malmgren.

However, they did -- the statement -- the prosecution did say, “Let's not get that question out of this case so there'll be no question of prejudice,” you know, to the defendant by the fact that his attorney made the some question of improper statements to a prosecution witness.

So that was how it all advanced and was either the last statement in the record on that Your Honor is that it either still pending or is been dismissed.

I assume it has been dismissed, but there has never been a hearing on it.

It has never been proved conclusively one way or another whether that allegation was correct or not.

Thank you, Your Honors.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Lassers.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Mr. Chief Justice, and may it please the Court.

I believe that everything that we desire to say has been said, unless the Court has questions, I have nothing further.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Very well.

Justice Byron R. White: Can I ask you one last question?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Certainly.

Justice Byron R. White: In your petition for habeas corpus in the District Court, did you rely on the ground of coerced confession?

Mr. Willard J. Lassers: Yes, Your Honor.

My recollection is that we did.

Yes, we did rely on that.

Justice Byron R. White: Well, did the District Court rule on it or not?

Mr. Willard J. Lassers: He ruled that it was not coerced, Mr. Justice White.

Justice Byron R. White: Did the Court of Appeals rule?

Mr. Willard J. Lassers: I think they did.

Justice Byron R. White: But at least you -- this is not the first time you've raised the issue of coerced confession in this Court, isn't it?

Mr. Willard J. Lassers: In this Court?

Justice Byron R. White: You've raised it below, on the preserved two points of the --

Mr. Willard J. Lassers: Oh, yes!

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Very well.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Thank you.