MILLER v. CALIFORNIA

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Argument of Lee Bailey

Chief Justice Earl Warren: Number 154, Lucille Miller, petitioner versus California.

Mr. Bailey.

Mr. Lee Bailey: Mr. Chief Justice and may it please the Court.

This case arises out of a conviction for murder in the first degree.

In the course of procuring that conviction, the State of California, subsequent to the arrest of the petitioner and subsequent to the time when she was represented by counsel overtly.

Planted in her cell was an agent of the prosecution, a policewoman, posing as a narcotics addict who had supposedly been confined by the State, in order to overhear, listen and stimulate conversation from the petitioner which it hoped it would be able to use to incriminate her at the trial.

As a result of this stimulation, certain statements were made which are characterized as admissions.

The petitioner denied her guilt but admitted the motive to the crime at least as to its existence.

This is not a usual uxoricide.

The precedent in this case was a dentist.

The defendant or petitioner his wife and an affair had been going on involving an attorney named Hayton.

The death occurred as a result of a fire in a Volkswagen Sedan on the early morning hours of October 8, 1964.

As of the moment of that death, there was on the record a series of decisions dealing with this very problem including specifically Massiah against the United States, Escobedo against Illinois and McLeod against Ohio applying Massiah to the states.

Within 24 hours or so, this petitioner had been arrested.

The police filling that circumstantial evidence, pointed to the fact that she had set the fire.

A large part of this was evidence of her affair with the attorney named Hayton.

At the time of her arrest, she was met at the jail by an attorney of her own selection.

She was booked for murder.

The police attempted to interrogate her.

Counsel objected to interrogation following arrest and following representation by counsel.

In order to protect her from interrogation, they set up a 24-hour watch at the jail.

This all began on October 9th, the day following the murder --

Chief Justice Earl Warren: They, by they you mean who?

Mr. Lee Bailey: Several counsel for petitioner -- counsel being unable to remain awake 24 hours must have some of his colleagues to assist him in the watch and protect the petitioner.

At 11 p.m. on October 9th, the Sheriff whom I will presume had some knowledge of the decisions to which I have alluded deliberately inserted passed on unsuspecting counsel, his policewoman undercover agent into the cell of petitioner.

Her instructions were to listen to what petitioner said and the State in its argument will represent that she in no way interrogated petitioner but was merely a listening post.

She did not carry a recording device or transmitter of any kind.

Justice John M. Harlan: Is this before or after the state court injunction?

Mr. Lee Bailey: Both Your Honor.

Before and after the state court injunction because nobody knew at the time the injunction was issued that the spy was in the cell and the State did not disclose it to the judge who gave the injunction.

Among the things which the undercover agent did in order to stimulate remarks by the petitioner that might be of evidentiary value are the following: First, she said and this was a deliberate lie as she admitted.

She had overheard man from the District Attorney's Office say Arthwell Hayton came in today and blew the top off this case.

She then presented petitioner with a newspaper clipping furnished her by the sheriff or his agents and said, The publicity is ruining you in this case.

She related that from her experience as a criminal, she had caused a distrust lawyers.

Suggested that petitioner distrust her own lawyer and further suggested that the sheriff was a nice man and should be trusted by petitioner and that she ought to talk to him.

Chief Justice Earl Warren: Is that -- is that all uncontradicted?

Mr. Lee Bailey: It is uncontradicted, Your Honor.

The State has seen fit to furnish an extensive appendix of testimony and the testimony of Peggy Fisk at the trial is included verbatim.

I think there is no dispute that these things were done and that they were done at the specific or general insistence of her superiors, the sheriff and his agents.

Now, Mrs. Miller did say, I did not set the fire.

It was accidental.

And she has stoutly maintained that that was so.

But she also said that she was still in love with Arthwell Hayton and this immediately after her husband's death and that she felt that Arthwell Hayton would come to her at an appropriate time, that she hope to take the insurance money, $100,000.00 which was carried on her husband and take the children to Europe although it was explained that this was to avoid being crucified by the society that had put her to trial.

At the time of trial, the Government proposed to use this tainted evidence.

I point this out because the harmless error rule which is at issue here today has been carved out in my judgment and from a reading of the Chapman and Fahy cases and the notions expressed therein in order to avoid summary reversal where a comparatively minor piece of evidence is led in through a blunder on the part of the prosecutor or the part of the judge and an expensive retrial needs to be avoided because no substantial prejudice results.

But I do point out that these were two deliberate violations at two separate stages.

The sheriff by circumventing her right to counsel and knowingly injecting a spy into a cell where she was confined against her will.

And second, by the prosecutor in offering testimony which he well knew at that time presuming he could read and understand the principle behind the Massiah, Escobedo and McLeod, well knew to be illicitly gained on the cheat and deceptively nonetheless wish to use because he felt that would show her guilt.

Anomalously, the prosecutor comes before this Court and says that the evidence was unnecessary and not prejudicial.

I do point out that no other evidence demonstrated Mrs. Miller's alleged continuing love for the paramour Hayton after her husband's death.

Something calculated to enrage the jury and presumably since it took three days for this jury to decide the case, somebody was enraged because the verdict was conviction.

At the time that the evidence was offered, the defense counsel exhibited some surprise and said, Well, I have never interviewed this witness as it is my right and I object that this was done in the lobby but it was done on the record.

And he was permitted to interview the witness.

But prior to doing so, he pointed out to the Court, this evidence is inadmissible and he cited the very decisions that I have mentioned here and also People against Dorado, the California decision on the Escobedo principle.

Interviewed the witness in the following morning, the prosecutor put her on the stand but before that happened, the defense counsel said to the judge, It is unfair to make me object before the jury.

Obviously, they might draw some inference that I am keeping out a confession or an admission that the crime was committed.

And he said specifically and this is in the record, Judge you know that it isn't right to make me do that.

And the judge said, We must put her on.

Have a preliminary foundation laid and an objection at the proper time, it cannot be done in the absence of the jury.

Justice Potter Stewart: Alright.

You know where that is in the appendix here?

I find a little difficult to read the appendix because it's not --

Mr. Lee Bailey: I understand Your Honor.

I'm informed by my colleague that page 42 is the correct page.

Justice Potter Stewart: Thank you.

And I thank you for the time.

Very well.

Mr. Lee Bailey: Now, because the counsel always carries the dual burden of protecting a record and persuading the jury of his client's innocence if he can, this counsel, Mr. Foley, felt that the ruling of the trial court that he must object in the presence of the jury was incorrect and that he had preserved his rights for appeal as I suggest he did and therefore, he did not take that objection in order not I think, to cause the jury to suspect that something meaty was being kept from him.

From these circumstances, two questions had been accepted by this Court for a review.

Was the procedure by means of which these admissions were obtained by the State of California an unconstitutional violation of petitioner's rights?

First not to incriminate herself under the Fifth Amendment and second her right to have counsel present any time an agent of the Government interrogates after she has been arrested and has counsel under the Sixth Amendment.

It was admitted by Peggy Fisk, the undercover agent that she had no time to disclose her identity, the nature of her office and did not advise petitioner that she had a right to have a lawyer present during these conversations.

If it is a violation, the question is then taken for consideration of decision as to whether or not this can ever be a harmless error.

Within the meaning of harmless error as it has been described in the decision in Fahy against Connecticut and Chapman against California.

Justice Abe Fortas: Before you reach that Mr. Bailey on the problem of failure to object.

It's always -- practically always true, isn't it, that an objection to the admission of evidence, it can be thought to have an adverse effect on the jury?

Mr. Lee Bailey: Yes, Your Honor.

Justice Abe Fortas: And if we accepted that as a reason excusing the failure to make objection, I don't know how it could ever insist on it really.

Mr. Lee Bailey: I think, Your Honor, we can always insist that counsel make his objection for the record at the sidebar or the bench.

As this counsel sought to do, he did not wish to forfeit his chance to win a jury case because he thought the judge was making an error.

He would rather have won it than taking this appeal.

Justice Abe Fortas: Now, you say that is in the record?

Mr. Lee Bailey: Very clearly, Your Honor.

He asked not to be made to object in front of the jury.

He did object for the record out of the presence of the jury.

Justice Abe Fortas: And you say that that -- I know but he didn't press for a ruling.

There was no ruling on this because as I understand it, because the judge said he'll have to make it in front of the jury.

Mr. Lee Bailey: That's correct, Your Honor.

The rule -- as far as the ruling could go was that the judge would have to rule that he must object in open court.

He did not rule in the lobby because he said it's not before me.

We think that the judge was mistaken.

Justice Abe Fortas: So really, what you're urging us to hold is that the judges' refusal to permit objection to be made and therefore the judge's failure to make a ruling on the objection made at the sidebar was excuse, was an adequate excuse for the objection not being made in the presence of the jury.

Mr. Lee Bailey: Yes, Your Honor, I am.

I think the principle of Jackson against Denno is applicable and I think that because jurors do not necessarily understand the machinations of the rules of evidence.

If counsel wishes to state his position which is probably the better procedure at the sidebar instead of giving a speech in front of the jury and to make his objections there that he may properly do so and the judge refuses to let him is forcing him to prejudice his case in front of the jury simply because they don't understand rulings of law and we should presume that they don't at least not in our cases.

Now, the third issue was offered to this Court and that is whether or not assuming that it were found that harmless error could occur with respect to admissions whether or not the error in this case was harmless.

That issue was rejected and is not before the Court and so the further facts of the case which are recited by the State of California to the tune of about 250 pages, trying to show that the error was not harmless, will not be alluded to by the petitioner who believes that issue to have been deemed irrelevant.

The question then before this Court is whether or not I take it to the State of California although it vacillates very sharply between its briefs and its letters to this Court.

In the final analysis at least does not approve this deceptive procedure and at one point said flatly in a letter the Court which we have quoted in our briefs and which is part of the record, we did not mean to say that this was not an unconstitutional procedure, we condemn it.

Assuming that it is a constitutional violation and I see no reason to quarrel with that if this were to occur today very obviously, it would be under the Miranda Rule that we are not favored with that because of the time of our trial, the trial was in January of 1965.

Nonetheless, under Escobedo and under Massiah which involved very similar circumstances and where there was counsel to represent the defendant, these procedures have been condemned to say that it is not a constitutional violation will invite this kind of deception every time law enforcement is frustrated by the rules that this Court has created to protect individuals who are subject to interrogation.

To go in through the back door demolishes any value in creating a strong front door and that is exactly what would happen.

I see perilously little difference between my planting a spy in the District Attorney's office to pose as his secretary and steal his files and the sheriff planting a spy in a cell where my client is improperly held if she is innocent or being properly held is not suppose to pay a penalty because she can't make bail and taking advantage of that situation in a cheatful manner obtaining evidence he could not otherwise get.

If it is a constitutional violation could it ever be harmless, well, the Court has held I think pretty uniformly that confessions will not be assumed to be harmless and can admissions be harmless.

This type of admission certainly can never be harmless because it is an admission to the motive in the case.

The murder case of this sort is on shaky ground without some motive.

Obviously, if the State had been faced with a situation where two happy church going people with a stable family, a nice community position, wound up in a burning Volkswagen and the wife escaped, they would have a pretty poor case for murder.

Justice Abe Fortas: Well, the state -- the state brings to our attention a great deal of evidence in addition to the petitioner's statement in which she supposedly -- which supposedly indicates that she was having this relationship with the other man.

Mr. Lee Bailey: She admitted on the stand, Your Honor.

But the question before the jury was did she on the night in question have sufficient malice in her heart and sufficient motive to burn her husband up, her contention was that this affair had terminated and was not a motive.

The only piece of evidence that clearly contradicted her testimony was the testimony of Peggy Fisk saying, I still love Arthwell Hayton.

If the jury believed that, the motive was a continuing thing.

If they did not, they might have had a reasonable doubt as to whether this affair had terminated and having had that dealt the result would have been quite different.

If the Court were to say that there can be harmless error in admissions, I think a number of serious problems would crop up.

It would require a case by case adjudication and an onerous burden.

It would tempt law enforcement to use tactics of this sort in the fun hope that perhaps on appeal, this would be deemed to one of the exceptional cases.

And I think that either of those procedures would hurt not only the cause of justice but the consistency of our constitutional principle.

Now, very frankly, the best rule would be in my judgment to absolutely deter conduct of this kind because I'm very fearful of the analogous case where the evidence is not used and the counsel never learns that a spy has been used in the cell.

Would the fruits of those conversations if they led to other evidence, unconstitutionally obtained, be improper and how would the defendant ever know it?

This prosecutor elected to use the evidence.

If he had not, the petitioner might never have known about Peggy Fisk and conceivably could have suffered damage as a result of the violation never recorded and never brought to her attention.

I believe that it should be stamped out of that level but if not, if this conduct is permissible, if law enforcement officers may make the attempt to put spies in cells because some people can't make bail because the charges capital or because they don't have money then they will certainly do so if the Court gives one wink of approval on it.

And then we must always decide whether or not if they don't use the evidence, they are within the limits of constitutional doctrine.

If they do use the evidence, this is not the kind of blunder, the kind of mistake made in the heat of trial that the harmless error doctrine was made to accommodate.

It is certainly true that after a three-month trial with a very minor slipped of the tongue which is corrected by the Court, a prosecutor statement might be deemed harmless error even though it fell within the preview of a constitutional violation.

But where the deception and the violation in the first instance was deliberate and conceived as an effort to get around the exercise of a constitutional right, and then where the use of the evidence by a knowing lawyer who presumably understood the law and was willing to run the risk of reversal to have his jury conviction injected that evidence over objection before the jury then we have a two stage deliberate violation that this Court need never protect with a harmless error exception.

Justice Byron R. White: Do you have the same attitude towards the police obtaining the information through an informer if this defendant had been on -- had on bail and had made statements to a person who was unknown to her, a police informer.

Mr. Lee Bailey: Once the right to counsel had accrued, once a formal charge had been lodged then I would say any informer would have to acquaint the defendant with his identity in order to obtain a waiver so that the statements could be used.

I think Massiah stands for that, Your Honor.

Justice Byron R. White: You have -- if a -- and then you would apply Massiah back as far as there is any sort of a formal charge.

Mr. Lee Bailey: Yes, Your Honor because I think Escobedo does that.

The protection of counsel has to arise at some point.

I think in the view of this Court disregarding Miranda and sticking with 1964 as these law enforcement officers confronted the situation and at least arose --

Justice Byron R. White: Well, Miranda -- would you think Miranda would help you if you were the person that was out on bail.

Mr. Lee Bailey: I think that Miranda would help me simply because it does nothing to dilute Escobedo and Miranda and it require I mean -- and Massiah and it require warnings.

Justice Byron R. White: Well, you mean even when you're not in custody?

Mr. Lee Bailey: Yes, if this technique is to be used, the technique of deception, I understood the Massiah case is condemning that technique once a charge had been made and the counsel had been brought into the case as a violation through the secret use, an imposition on an unknowing defendant, a violation of the right to counsel or the right not to incriminate oneself.

And the minute exceptions are carved out, imaginative law enforcement officers are going to find new ways to cloak spies, hoping to get through what little keyhole maybe left in the room.

The --

Justice Potter Stewart: Back to the harmless error point for a moment.

This witness, Fisk, testified that the defendant told her that she was still in love with Layton or Hayton whatever his --

Mr. Lee Bailey: Hayton.

Your Honor.

Justice Byron R. White: The defendant herself testified that she was in love with Hayton up until after her husband was dead.

I'm reading now from page 102 and 103 of the record, up until the time Cork died.

She is in love with Mr. Hayton.

Yes.

Mr. Lee Bailey: She said, I believe Your Honor the minute that Cork was gone --

Justice Potter Stewart: Yes.

Mr. Lee Bailey: She had no more feeling.

Yes.

Justice Potter Stewart: Yes and that certainly provides what motive there was, doesn't it?

Mr. Lee Bailey: No, I think not Your Honors.

As we pointed out in our replied brief, if she had killed her husband for the purpose of marrying Hayton as it appears from the testimony of Peggy Fisk, then in this event, certainly the love would be thought to continue because she had accomplished the purpose and come closer to her purpose.

But she says that spontaneously because of the impact of what happened to her husband in what she terms an accidental situation, whatever feeling she had for this attorney dissipated immediately.

Justice Potter Stewart: Well, immediately upon his death.

Mr. Lee Bailey: Yes.

And she was made a liar if the jury believed Peggy Fisk and I assume that they did by her statement a few days later, I still love him and he will come to me, which was the most damaging of all.

Justice Abe Fortas: But if she killed her husband, she would have done it before the moment of death.

Mr. Lee Bailey: Pardon me, Your Honor.

Justice Abe Fortas: I said if she'd killed her husband, she would have done it before the moment of his death.

Mr. Lee Bailey: If she had killed her husband, she certainly would have killed him before the moment of his death.

Justice Abe Fortas: That's my point.

Mr. Lee Bailey: Yes.

Justice Abe Fortas: And what you're looking for is motive --

Mr. Lee Bailey: Yes.

Justice Abe Fortas: -- as of the time she allegedly killed him.

Mr. Lee Bailey: Yes, but it fully appears from listening to the testimony of Peggy Fisk that this petitioner has killed her husband that she's accomplished that purpose.

She hopes to be acquitted and that Hayton will then come to her.

She says, When this mess is cleaned up, he will come to me.

So her plan is a continuing one.

Justice Potter Stewart: She denied to Fisk that she had killed her husband, did she not?

Mr. Lee Bailey: Oh yes.

Oh yes.

Justice Potter Stewart: Yeah, I just want to be sure I haven't misunderstood you.

Mr. Lee Bailey: She always denied that she killed her husband.

Justice Potter Stewart: Yes.

Mr. Lee Bailey: And always claim that it was an accident.

And the case was --

Justice Potter Stewart: And Fisk -- and the witness Fisk so testified at the trial.

Mr. Lee Bailey: Yes she did.

Yes, she did.

Justice Potter Stewart: That the defendant had denied to Fisk that the defendant had killed her husband.

Mr. Lee Bailey: Yes, there's no question about this.

I should like to reserve the remaining four minutes as I see them for rebuttal, if I may.

Chief Justice Earl Warren: Mr. Griffin.

Argument of Philip C. Griffin

Mr. Philip C. Griffin: Mr. Chief Justice and may it please the Court.

It's the position of the State of California that the record in this case shows that there was no violation of Massiah and Escobedo.

It has been pointed out that I have written a letter in this case condemning certain activity of the undercover agent in this case.

I wrote that letter because certain of the conduct, it was not shown to have evoked any of the comments introduced into evidence was not approved by our office and certainly wouldn't be approved in this day and age.

But our argument is basically that we are confined to precedent and the precedent is either Massiah or Escobedo.

Chief Justice Earl Warren: May I ask where your letter is?

Is that in the record?

Mr. Philip C. Griffin: The letter is not part of the record.

It was in response to the reply brief and it was not received by the Court.

Chief Justice Earl Warren: Is it then one of the briefs.

Mr. Philip C. Griffin: Only that certain sentence is in the brief of petitioner.

Chief Justice Earl Warren: Where?

Mr. Philip C. Griffin: Page 13.

Now, the conduct that was referred to in that letter was the conduct that was brought out by defense counsel on cross-examination of the undercover agent.

This was not part of the evidence.

And the defense in that cross-examination never developed the fact that the statements that the prosecution introduced into evidence were provoked by this conduct of the undercover agent.

The prosecution initially put the witness on the stand and asked the circumstances under which she had been placed in the jail cell.

And immediately thereafter, asked her if she had any conversations with the defendant.

There was no question regarding -- questioning of the witness regarding a process of interrogation.

The witness merely testified as the certain statements made by the petitioner in the fact that she had been separated from her husband, they had reconciled.

She respected him but she loved Arthwell Hayton and still loved him and was going to Europe with the insurance money.

Now, before this evidence was introduced, the defense took the witness on voir dire examination and established one that she had not been warned of her constitutional rights by the undercover agent nor have the undercover agent told her that she was working for the police.

At that point, the voir dire examination was terminated.

There was no objection to the evidence and whatsoever.

Instead, the prosecution was permitted to go ahead, introduce the statements and then the prosecution promptly closed and did not have any extended examination on this subject.

The cross-examination was commenced by the defense counsel and he developed in his first questions that this undercover agent had been instructed when she was placed in the jail cell and it should be emphasized that she was placed in this jail cell prior to any charges having been filed in the court of law against her.

The undercover agent was in the jail cell prior to any complaint or indictment.

Justice Thurgood Marshall: And she was also thereafter.

Mr. Philip C. Griffin: She was not sure what day she left.

That -- the record is vague in that respect.

The record is vague as to how long she stayed.

It is possible that she was there following the complaint in the admissible court which complaint was ought to be dismissed.

Justice Thurgood Marshall: If it's possible that she was there after the complaint, can't we assume that she was, she was an experienced policewoman?

She just forgot this one day.

Mr. Philip C. Griffin: She was not an experienced policewoman, she was an undercover agent.

There was no evidence --

Justice Thurgood Marshall: Oh!

Was she an experienced undercover agent?

Mr. Philip C. Griffin: She had -- she had been used on prior occasions.

There was no evidence as to her experience in the record.

It could be assumed that this was her first case.

As far as this record is concern.

Justice Thurgood Marshall: Could we assume that this was our first case?

Mr. Philip C. Griffin: It could be except that she had worked with narcotics.

Justice Thurgood Marshall: Can it also be assumed that it was in a hundred cases?

Mr. Philip C. Griffin: Yes, she had worked narcotics undercover (Voice Overlap) in narcotics.

Justice Potter Stewart: She's professional.

She says she did work in Fresno undercover.

She has been between jobs and now she is charged, she is negotiating with another county for similar work.

Mr. Philip C. Griffin: As a narcotics undercover agent, yes.

I was referring to experience as being an interrogator but there's just no indication that she had done this particular type of undercover work before.

The defense counsel developed immediately that she had initially instructed only to listen.

Ultimately, she was requested by the sheriff to bring certain matters to the attention of petitioner and that is the conduct that was referred to in my letter where she brought a newspaper clipping up and showed it to the petitioner.

Chief Justice Earl Warren: Do you know where that letter is?

I don't -- I don't see it didn't -- is it in the brief of the petitioner did you say?

Justice Byron R. White: Page 13.13, excuse me for interrupting you.

Mr. Philip C. Griffin: Just a brief quote for that letter.

It was referring to this conduct make no contention to this conduct can be constitutionally permitted.

But the point we wish to emphasize and first, I should point out that Mr. Bailey was asked if there was any contradiction of the record.

The undercover agent did not testify that she said to the petitioner that publicity is ruining you.

She was not able to testify that she had made that statement.

She was able to testify only that in her prior discussion with defense counsel and that was the evening before she took the witness stand that she might have said something like that but she did not remember having said made any statement with regard to the newspaper article.

And the rest of this conduct that is set forth in the petitioner's brief.

Justice Byron R. White: What is the precise constitutional violation which you seem to concede this -- at least some of this state conduct represents?

Mr. Philip C. Griffin: If the statements had been elicited by this type of procedure, this would be a --

Justice Byron R. White: If he had sat -- if she had come in there and sat down and start asking the defendant questions and elicited answers, what violation would it be?

Mr. Philip C. Griffin: This would be a violation of Miranda.

Justice Byron R. White: Of Miranda -- you mean that's the today.

Mr. Philip C. Griffin: Before the indictment -- today.

This case --

Justice Byron R. White: Well, what was it then?

Mr. Philip C. Griffin: This case --

Justice Byron R. White: What was it then?

What violation was it then?

Mr. Philip C. Griffin: Well, at that time, it would not have been violation because of the peculiar circumstances of the case.

Justice Byron R. White: Well, there's been a violation to California law, wasn't it?

Mr. Philip C. Griffin: At Cali -- in California the first Dorado was decided in August of that year and had included the --

Justice Byron R. White: And that was the reading -- that was the state court's reading of Escobedo.

Mr. Philip C. Griffin: That's correct Your Honor.

And our Court which has decided another case --

Justice Byron R. White: Do you think that conduct was a violation at the time of Massiah?

Mr. Philip C. Griffin: No.

Justice Byron R. White: Why not?

Mr. Philip C. Griffin: Well, assuming -- assuming that there had been a charge in pleading, it might have been.

Justice Byron R. White: A charge, you mean an indictment or a charge?

Mr. Philip C. Griffin: An indictment.

Justice Byron R. White: There were both here, wasn't there?

There was a booking, then a charge and an indictment.

Mr. Philip C. Griffin: Yes, the charge was in the municipal court in form of a complaint.

She was arraigned on the 13th.

Now, the undercover agent later report on the 12th of October and of course she was making oral reports throughout her time in this jail cell.

And these reports were ultimately written up by another secretary after they have been paneled through the undercover agent's connection.

Chief Justice Earl Warren: You wouldn't distinguish Massiah and California on the grounds that there was no indictment, would you?

The complaint -- one is filed in the municipal court and the person is arraigned, they're entitled to counsel at that point in California.

Chief Justice Earl Warren: Yeah.

Mr. Philip C. Griffin: Although -- we have no California decision.

We have People versus Arguello which involved in indictment and the questioning in that case was in a jail cell after the indictment.

We have no California case but in view of the circumstances of the defendant being represented by counsel having been arraigned in Court, we would -- we would not distinguish Massiah on that ground.

Justice Thurgood Marshall: Well, Mr. Griffin, she did have counsel actually in the jail.

Is that correct?

Mr. Philip C. Griffin: That's correct.

Justice Thurgood Marshall: And despite that fact, the undercover agent was put in for the expressed purpose of evading that law here.

Mr. Philip C. Griffin: That is correct.

Justice Thurgood Marshall: Is that correct?

Mr. Philip C. Griffin: That's correct.

Justice Thurgood Marshall: And there's no way under the sun you can justify under Massiah or any other cases and opinion.

Mr. Philip C. Griffin: I -- no.

Not -- not -- not in this day and age.

Justice Thurgood Marshall: Well, how can you justify using those statements of trial deliberately?

Mr. Philip C. Griffin: Had the record -- have there been a proper objection and development at this point of the time to show that this undercover agent had elicited these statements.

Justice Thurgood Marshall: Didn't one -- didn't the prosecutor attorney have a duty not to use that type of test work?

Positive duty not to use it, isn't that correct?

Mr. Philip C. Griffin: At the time that the prosecutor introduced this evidence Your Honor, he was under the impression that this witness had not done any interrogation of the petitioner.

He was under the impression that this was a listening post only.

This is the statement that he made to the judge when this, when the old question was raised.

Justice Thurgood Marshall: Well, will a listening post be legal?

Could you have bugged that cell and used it?

Mr. Philip C. Griffin: Yes.

Justice Thurgood Marshall: Oh!

You could have.

Mr. Philip C. Griffin: At the time this was decided, there was no privacy in a jail cell.

No privacy whatsoever.

Justice Thurgood Marshall: Even with a lawyer outside, doing as much as he can to ensure privacy, you could go beyond that and bug the cell and use it.

Mr. Philip C. Griffin: We could place an agent in the jail cell section to overhear anything said by the petitioner.

Justice Thurgood Marshall: And use it.

Mr. Philip C. Griffin: And use it.

As long as it's not elicited by an interrogation because we're interested in protecting the right against self-incrimination from interrogation and not against overhearing voluntary and spontaneous statements.

Justice Thurgood Marshall: Then your whole point is that this was all voluntary and spontaneous.

Mr. Philip C. Griffin: My whole point is that on this record, Your Honor, we have no way of knowing that there was any elicitation of these statements.

Justice Thurgood Marshall: Well, there was a discussion, was there not?

Mr. Philip C. Griffin: There's no showing that there was a discussion when these statements were brought out.

Justice Thurgood Marshall: Can I assume that a woman in her cell over a week will say something, will hold the conversation on something.

Can I assume that?

Mr. Philip C. Griffin: We can assume that there was a conversation, Your Honor, but now the point is whether there is a duty upon the part of the defense to establish a record showing this conversation.

That is our point.

Justice Thurgood Marshall: Do you think there was a duty on the part of Ms. Fisk to say she was an agent?

Mr. Philip C. Griffin: Not if she didn't interrogate the petitioner; if she sat there silently and listened as she was have been instructed to do.

Later on, her instructions changed and that's when there might have been a violation.

But again, the record is inadequate to show that the things done by this undercover agent elicited any of these statements.

Chief Justice Earl Warren: Did you say -- did you say she made daily reports to the sheriff?

Mr. Philip C. Griffin: She made periodic reports.

I'm not certain the record establishes daily reports.

Chief Justice Earl Warren: Are those -- are those reports in the record?

Mr. Philip C. Griffin: No, they are not, Your Honor.

Chief Justice Earl Warren: Is there any evidence to the fact that she did give certain information to this woman about the publicity and so forth and about blowing the top -- Hayton blowing his top.

Is any of that in the report?

Mr. Philip C. Griffin: There's no showing that this was in her report.

Chief Justice Earl Warren: I beg your pardon.

Mr. Philip C. Griffin: There was no showing that this was in her report.

Chief Justice Earl Warren: Is it in her report?

Mr. Philip C. Griffin: I've never seen her report and there's no -- and there's nothing in the record as to her written reports but what is in the record is the fact that these reports were available to defense counsel before the witness was called to the stand and--

Justice Thurgood Marshall: The prosecutor -- the prosecutor have no -- knew nothing about that you say?

Mr. Philip C. Griffin: The prosecutor has had the report obviously but that point is we don't know what was in that report.

We do know that defense counsel interviewed the witness the evening before she was placed on the witness stand.

And this was between the time that there had been a discussion in the trial court chambers as to this evidence.

This is a point that was brought out, the fact that there was no objection when the chamber discussion started, the witness had been placed on the stand and the defense counsel asked to go into chambers and discussed this witness' testimony.

Proceedings adjourned to chambers where he had an opportunity to make an objection if he wanted to make one.

At that time, he did not make an objection.

His statement was, "I am going to represent to the Court also, that any testimony of this witness concerning any statement made by my client would be in violation of the rule in the Dorado case."

And then proceeded a discussion of the fact that it would be in violation and that he hadn't had an opportunity to interview this witness as on pages 42 through 47 of the appendix.

Justice Byron R. White: Is that by virtue of the rules in California that he had a right to interview the witness?

Mr. Philip C. Griffin: Yes, he was entitled to -- he was promised an opportunity by the district attorney to interview this witness.

Justice Byron R. White: But the district attorney was under an obligation to let him do that, wasn't he?

Is that part of the law in California with this kind of discovery?

Mr. Philip C. Griffin: No, there would have been no duty on the part of the prosecution to permit that the prosecution witness to be interviewed.

He would be entitled only to the witness' statements after she had taken the stand and use them or if there is a showing of a need for discovery.

Now, at the time that this discussion was taken place, the principal concern with the defense counsel was an opportunity to interview this witness and the trial court said that the witness should be withdrawn and have an opportunity to interview her and then the trial court stated that she should be placed on the stand and certain foundational matters be arrived at and that proper objection made to her testimony.

Properly, the proceedings end.

There was no ruling on any objection, there was no objection made in chambers.

There's ample opportunity to ask the Court for permission to question this witness outside the presence of the jury and determine if there was any foundation for an objection in the basis of Massiah, Escobedo or Dorado in California.

This opportunity was not requested and it is the law of California that that opportunity is available to any counsel.

Now, the excuse has been brought forth that the reason for a failure to object the following day was a fear that the jury would feel the evidence was being concealed.

The following day of counsel had made a request for this witness to be examined outside the presence of the jury, the Court would have been obliged to grant it.

There is no request whatsoever for an opportunity to do this and there was no objection on the part of the defense even after the prosecution commence to examine the witness.

I think that it is perfectly obvious after this witness had testified that the reason the counsel determined not to object was a tactical one.

He had learned the evening before the context with this witness' testimony.

He was fully aware of the fact that it was going to be an absolute of court with the testimony of previous witnesses and the previous statements to the police by the petitioner.

Justice Potter Stewart: Going back on what you told us that the -- on the morning that the witness Fisk actually began to testify that it's clear that the counsel would have been given an opportunity to object out of the presence of the jury.

Well, now the evening before and I'm reflecting it on page 47 in the record, in the Appendix.

The Court very clearly indicated as I read it that that would not have been possible.

I think there would have to be.

I don't see how that could be done in the absence of the jury.

Are you suggesting that the Court changed its line overnight or perhaps I misunderstood what you told us.

Mr. Philip C. Griffin: This statement as I indicated was made by the Court that he did indicate an objection that would have to be made in the presence of the jury.

Justice Potter Stewart: That's to the jury.

Mr. Philip C. Griffin: I'm talking about an examination of this witness outside the presence of the jury to lay the foundation that there was a violation, and once that foundation was laid, it is problematic on whether the judge would have required the witness to resume the stand in the presence of the jury merely for the formality of an objection.

That would be a complete waste of time if the foundation were laid that this was a violation of constitutional rights, the judge would have immediately ruled that we are not going to consider this evidence.

It's not going to be offered and an objection would be sustained.

This opportunity that was always present was never availed of by the defense and that is why I maintained that this was a tactical decision to permit this evidence.

Based upon the fact that this witness would corroborate petitioner in every statement that she'd made to the police that this was an accidental fire and that although she loved another man, she had given up any intention whatsoever of marrying him and that was the only issue at the time of the trial on motive whether she --

Justice Potter Stewart: Did Fisk testify to that?

Mr. Philip C. Griffin: I don't understand your question, Mr. Justice Stewart.

Justice Potter Stewart: If Fisk testified that the defendant told her, Fisk that the defendant had given up all hope of marrying Hayton.

Mr. Philip C. Griffin: No.

She did not say that to her.

Fisk's testimony was very brief on that subject.

It's just a question of loving Mr. Hayton and still loving him.

The question of marriage was never even discussed by agent Fisk.

And this -- the District Attorney an argument, the argument is set forth in our appendix, never alluded to the fact that the petitioner still love Arthwell Hayton and admit that she still wanted to marry him.

He only used this to show that her testimony had been contradicted.

It should be pointed out that the petitioner testified fully on the fact that she loved the other man but no longer intended to marry him.

And this testimony followed that of the undercover agent if her testimony had been impelled by the fact that the undercover agent had testified to this, she could have coincided her testimony perfectly with the undercover agent.

There would never been any contradiction.

She had an ample opportunity to conform her testimony.

But as you will notice when she was twice --

Justice Potter Stewart: What happened?

I mean that didn't help her very much was it?

Mr. Philip C. Griffin: Well, the point was she could still maintain --

Justice Potter Stewart: I suppose the undercover testimony in fact testified that the defendant had confessed of course then that would have been -- it could have formed a testimony of that but that doesn't.

Mr. Philip C. Griffin: True but the point is she could have -- she could have testified that she still love Arthwell Hayton but that she had given up any idea of ever marrying him because he was no good which is one of her statements.

What was that Your Honor?

Justice Potter Stewart: I don't quite see your point.

Mr. Philip C. Griffin: My point is that -- that the petitioner's testimony followed that of the undercover agent so that -- and the only use that was made of the prosecution was to show this one difference in her testimony without of the undercover agent.

And it was never used to emphasize that she may have still intended to marry Hayton that this statement that she still love him proved it.

This is the prejudice that has urged to find petitioner.

However, that argument was never made to the jury by the District Attorney.

This would be something that would come out of the minds of the jury.

Justice Thurgood Marshall: Mr. Griffin, suppose the agent, not this case but in another case, told the defense counsel, "I'm going to testify that your client convinced me he was innocent."

And then he goes on the stand the next day and the defense counsel doesn't object and the witness under oath testified that the man confessed to full crime to, the defense counsel would really be in -- have a problem, wouldn't he?

Mr. Philip C. Griffin: Perhaps.

Chief Justice Earl Warren: I understand you to say that with your opinion that this conduct of putting this woman in the cell with her at that time and then using the testimony she got from her without any warning of any kind is not misconduct.

Mr. Philip C. Griffin: No, I have maintained that my argument is strictly based upon the inadequate record in this case.

If this record demonstrated the elicitation of statements, there wouldn't be -- wouldn't be any question on question one in this case but we have a record that is inadequate and we have this failure to object thus the issue was not brought into importance of the trial and this was an early case, October of 1964.

The requirements of the Massiah and Escobedo at that time were not clearly foreshadowed and this is the reason why we're in the situation of this inadequate record.

And why I've maintained that we should not reach the question of harmless error on this case is because our record is not going to support an absolute violation of constitutional rights.

Chief Justice Earl Warren: Did this woman -- didn't this woman admit that she have told the petitioner that Hayton have blown the lead off the case?

Mr. Philip C. Griffin: No, this statement was never made to the petitioner according to the record.

This was -- this was an attempt by counsel to show that that statement might have been made.

But the witness --

Chief Justice Earl Warren: The witness never admitted it?

Mr. Philip C. Griffin: No.

She did not admit making that statement.

Chief Justice Earl Warren: I understood Mr. -- I understood Mr. Bailey have said she had at that time and make a statement that --

Justice Byron R. White: (Inaudible)

Mr. Philip C. Griffin: Well, I'm sorry.

I misunderstood.

I was thinking of the statement, "The publicity was ruining you."

No, she made the statement.

Chief Justice Earl Warren: She said, getting back to the Miller case, Arthwell Hayton came in and blew the top off the case.

Mr. Philip C. Griffin: Yes, that's true.

Chief Justice Earl Warren: She admitted telling her that?

Mr. Philip C. Griffin: Yes, she said that.

Chief Justice Earl Warren: That was a lie, wasn't it?

Mr. Philip C. Griffin: Yes.

That was a fabrication, wholly, but there's no indication in our record that this provoked any statement by the accused.

That's what -- that's what the undercover agent said.

There is no showing what the petitioner said.

Justice Abe Fortas: What does the State of California do with respect to a situation like this?

There is a law in California that in your judgment that -- where there is this kind of live and stated fact that is used by an undercover agent planted in the cell?

But that is prejudicial error unless it's offset by the totality of the record or something like that or does California just condoned this sort of thing.

Mr. Philip C. Griffin: The State of California has a long list of decisions in which they made a distinction between confessions and admissions.

And the distinction that they have made is that in a confession.

You invariably have potent evidence, coupled with the fact that it could be well unreliable and untrue and this would infect the entire fact finding process of the trial so that you have it streamed danger of convicting the innocent.

But if a statement is merely an admission and it's cumulative to evidence that is properly admitted and in this case, you realize we had an extensive interrogation under proper conditions by a police officer wherein the petitioner waived to the right to counsel.

She was reminded of the fact that she had been advised by counsel and she said, "I would rather talk to you than stay in the jail cell."

She was -- she admitted the fact that she had loved the other man and has this affair and that her husband was heavily insured.

All of this had been admitted to the police before the undercover agent was placed in the jail cell.

Justice Abe Fortas: May I ask you from my own information.

Is there any procedure by which the police are notified of something like this and notified of your officer's judgment about it?

What happens, just nothing?

Mr. Philip C. Griffin: As soon as this decision --

Justice Abe Fortas: In your office, can they do a sort of thing?

Mr. Philip C. Griffin: No, our office in conformity with the decisions as they have come down from this Court and from the California appellate courts, promulgates rules of police, recommended rules of police procedure through the various district attorney's offices throughout the state whereby we recommend the police procedures and under the circumstances of this case and the Arguello case, it has been recommended that there would be no direct confrontation in jail cells between undercover agents and prisoners because of the fact that there is undoubtedly going to the conversation and that incriminating statements might be elicited.

And once they were elicited, we would -- we would have to be bound by the Massiah decisions.

Justice Abe Fortas: I asked that -- may I ask because I suppose your theory is at the presence of a person in the cell with the person who is on the charge of having committed a crime is in itself an inducement to speak even though the undercover agent in the cell doesn't volunteer a thing that the very presence may be an inducement to the other person to speak and I suppose the subject that most contends interest to the arrested person is his own wife.

Mr. Philip C. Griffin: As this -- the danger of eliciting a statement is present there whether the actual presence of another person would have -- would be a process of interrogation having a tendency if you elicit incriminating statements.

I would not find that situation merely in the presence of an undercover agent.

Justice Abe Fortas: May I ask you one other question?

You heard your adversary's statement about the sidebar conversation.

Was there -- as you remember though, as you understand the record, was there any time they request that the judge rule on the objection at the sidebar and was there a direct refusal of the judge to rule?

Mr. Philip C. Griffin: No.

At no time, was there even an objection raised Your Honor, much less of a request for a ruling.

In chambers, the probability that this evidence would violate the constitutional rights was raised but it was not raised in the form of an objection and there's no rule --

Justice Abe Fortas: And frankly there's something in effect that I would object to it or will object to it or something like that?

Mr. Philip C. Griffin: No.

He was only seen.

I represent that this testimony would be in violation of these rights and on the discussions shifted to the opportunity to interview this witness.

At no time, was there an objection -- there was a -- the trial court offered the counsel the opportunity to object the following day.

This opportunity was never availed of in any way leading to the more reasonable assumption that this was a tactical decision on the part of the counsel to put this witness on the stand.

The counsel utilized this testimony to the fullest that Mrs. Miller had always denied her guilt and have admitted her love affair with the other man, and that the prosecution has gone to undo links in order to convict her.

And this testimony was used by the defense.

It was the most forceful argument the defense had during the whole case.

Justice Abe Fortas: I see.

So your point is that no objection was made either at sidebar or otherwise?

Mr. Philip C. Griffin: That's correct, Your Honor.

Chief Justice Earl Warren: Mr. Griffin, I still can't understand how you can argue to us, that this conduct on the part of the State was proper and should not be condemned by this Court after you have written a letter with just -- within a less -- less than a year ago in which you said, the respondent did not argue and does not now advocate the conduct to the sheriff and the undercover agent is set out of page 6 of petitioner's reply brief was proper and not unconstitutional.

The respondent hereby goes on record as condemning such conduct.

Now, I haven't heard you say one word that it is condemnatory of any practice of the sheriff or the undercover or anybody else.

Mr. Philip C. Griffin: Mr. Chief Justice, I -- when I refer to these various things --

Chief Justice Earl Warren: I beg your pardon.

Mr. Philip C. Griffin: When I refer to this various things that the undercover agent had brought to the attention of petitioner, in my argument today, I said that this was improper.

My only contention was, if this record was not developed to the point to show that this conduct resulted in the elicitation of statements on the part of the accused.

This evidence was all brought out on cross-examination without ever having objected to the statements that were introduced first.

See, the statements were brought out by the District's Attorney on direct examination and it was established early that this witness had only been instructed to listen to the accused.

Then on cross-examination, after the defense counsel had an opportunity to talk with this witness the evening before, he brought out the fact that these things had been done but he failed to bring out that any of these acts, trying to get the petitioner to distrust her own attorney.

I could stand here before this Court can represent that that's reprehensible conduct.

We wouldn't condone it.

Chief Justice Earl Warren: But I'm not talking about the procedure or the manner in which she came in to the case but I haven't heard anything from you to the effect that the conduct of a sheriff was unconstitutional and that you go on record as condemning it.

Now, what conduct to the sheriff do you admit is unconstitutional and what do you condemn as far he is concerned.

Mr. Philip C. Griffin: Sending up a newspaper.

Chief Justice Earl Warren: I beg your pardon.

Mr. Philip C. Griffin: Sending up a newspaper clipping with the undercover agent.

We don't know what the content of the newspaper article was but it was handed to petitioner to read.

Chief Justice Earl Warren: And I thought your position on that was that though this woman was just sent in there by the sheriff to listen, not to talk or not to elucidate any information from the petitioner.

What would that be set in for?

Mr. Philip C. Griffin: That would be set in to elicit a statement of course for initial instructions.

Chief Justice Earl Warren: With what you said before that her instructions were not to ask anything but just to listen.

Mr. Philip C. Griffin: Those were her initial instructions when she was placed in the jail cell and that was her testimony.

After she was in the jail cell, she would be taken out periodically by the sheriff to make her oral reports, and when they would take -- when they take her out, that's when this conduct started.

Now, there had never been any showing in the record that all of these -- all of the statements made by the petitioner concerning her love for the other man were not made prior to any of these things having been done and there was -- and these matters were never brought out outside the presence of the jury to establish unconstitutional conduct and prevent the introduction of the statements.

Have this been done in reverse?

Have these matters had been brought up voir dire?

Have the proper objection been made?

The evidence of her statements in the jail cell, if they were the result of this conduct would never been admitted in a California court, but the defense fail to raise the issue and that is our -- that is our contention.

If this were to happen then these things that the undercover agent did and they resulted in the elicitation of statements and they were introduced in the evidence then we would have a clear record of a constitutional violation and this -- and I don't stand before you and argue anything to the contrary.

Chief Justice Earl Warren: Why did you write this letter to the clerk of the Court?

Mr. Philip C. Griffin: It was in response to a charge that the Attorney General of the State of California condoned this conduct and I felt that I had to answer that in a letter because the Attorney General's office did not in anyway should have ever perform ever condone this conduct that's why I wrote the letter to this Court in answer to that charge alone, that there was any condemnation on the part of the Attorney General's office as to what the undercover agent had done.

That is why the letter was sent.

I didn't want to make a legal argument.

I just wanted to state that the position of the Attorney General that we're not arguing before this Court that this type of conduct was condoned by our office.

Justice Abe Fortas: What you're saying is that if proper objection had been made, the alleged error that now exists in this record could have been avoided.

Mr. Philip C. Griffin: That is correct Your Honor.

Justice Abe Fortas: And you're not suggesting one way or the other that this was deliberately induced error or not but what you're saying is that objection was not made and therefore the state was deprived an opportunity to avoid this alleged error.

Mr. Philip C. Griffin: It's our position that it's an imposition upon this Court for defense counsel to have deliberately acquiesce in the introduction of this evidence, have used it in both argument in this part of its defense and then come to this Court and ask the case to be reversed.

Justice Abe Fortas: I think you should say in view of all this that Mr. Bailey was not defense counsel at the trial, was he?

Mr. Philip C. Griffin: No, he was not.

Chief Justice Earl Warren: Very well, Mr. Griffin.

Mr. Bailey.

Rebuttal of Lee Bailey

Mr. Lee Bailey: May it please the Court.

I will not meet the legal arguments advanced by my brothers since I think they have been covered. But he has demonstrated confusion as to the facts that I think worth straightening out. First, it was suggested to Mr. Justice Marshall that the record was vague as to when this woman was taken out of the jail and the record is not vague at all.

She was there from the 9th to the 15th and no evidence to the contrary was ever given or suggested.

Second, he suggests to this Court that no reports were made after the State of California ordered its own officials not to interrogate.

Unknowing at the time that a spy was already in the cell, told the sheriff to stay away from the petitioner, told her attorneys to stop protecting, Peggy Fisk says, "I made reports on the 12th and partly on the 14th after that injunction was issued and in flat contempt of the municipal court."

The State of California says that the prosecution never suggested to the jury as a result of the Fisk testimony that the defendant or petitioner had a continuing motive to marry Arthwell Hayton.

From its own appendix in the final argument of the prosecutor and I quote, "She testified that she love Hayton, that she wanted to marry him.

She testified that her love for him died at that same time her husband died.

I'm not sure what that would have to do with it at any rate."

That's her testimony but that's not what she told the girl up in the jail.

She told the girl up in the jail that she still loved Hayton, felt that he would come to her, very obviously just the opposite of what Mr. Griffin has represented.

The letter which Chief Justice has alluded to, set forth in part in our brief was provoked by this comment in a reply brief filed by the petitioner after the State had opposed certiorari in its conclusion on page 7.

It says in as much as the State of California took the position that it had no right to do this, to put spies in the cell as long as they did not overtly interrogate, which had statements elicited as a result of such a week long process can hardly be characterized "entirely spontaneous."

They are the product of a carefully planned and executed process of subtle interrogation and trickery.

The incredible fact that the highest law enforcement officer of this nation's largest state still regards this episode as proper in Constitution is adequate evidence that it must be authoritatively condemned by this Court.

I have heard the State of California take both positions today but it is perfectly plain.

But unless that condemnation is forthcoming, Peggy Fisk will have more work in San Bernardino County and others in the State of California.

Thank you.