BOULDEN v. HOLMAN
Term:
- 1960-1969
Facts of the Case
None
Question
None
Conclusion
Decision: 8 votes for Boulden, 0 vote(s) against
Legal provision: Due Process
Legal provision: Due Process
None
Print this transcript
Transcript:
Argument of Mr.chief Justice Warren
Mr.chief Justice Warren: Number 644, Billy Don Franklin Boulden versus William C. Holman Warden.
Mr.Moore.
Argument of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Mr.Chief Justice, other members of this Court.
I have been appointed by this Court to represent this petitioner Billy Don Franklin Boulden.
The matter before the Court that we raised originally was on an involuntary confession.
At a later state after we've gone on the Fifth Circuit, the Witherspoon case came out and I raise that point also on state jury and I talked it over the Boulden counsel, both of which have comment in our briefs and in his brief, that what I will comment on both these aspects.
Argument of Mr.justice Brennan
Mr.justice Brennan: Was the Witherspoon point raised below?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: We did not -- I did not raise it below on the Fifth Circuit, no sir.
Because it didn't come out until after I've been to the Fifth Circuit.
That's why, Your Honor, I just want to spawn out things at story.
Argument of Mr.justice White
Mr.justice White: What jurisdiction we have to consider here?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: I believe that in my brief, I have found a case whereby you find it Your Honor you can consider in Clifford -- Stuart versus Sea Groups, the Court pointed out that matters if were not passed on --
Rebuttal of Mr.justice White
Mr.justice White: Federal court.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Sir?
Rebuttal of Mr.justice White
Mr.justice White: That's what the federal court?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: It's from this Court --
Argument of Mr.justice Stewart
Mr.justice Stewart: You are the better authority, Mapp against Ohio.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Sir?
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Mapp against Ohio is pretty good authority to you.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: This is a federal -- this is Supreme Court decision that I was referring to here.
It's in the brief.
Rebuttal of Mr.justice White
Mr.justice White: Does this case have it heard from the federal court?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, it's on appeal it started in state court of Alabama.
Yes, they came through the District Court and then the Court of Appeals and then we're here.
I would like to comment first on the aspect of it having to do with the involuntary confession.
This is a -- as I understand involuntary confession, the totality of circumstances doctrine really gets down to the question of common sense.
Whether or not the accused gave up some right that he had and whether or not he was coerced and whether or not individual can be coerced under these circumstances.
In brief to kept suited here, we have 19-year-old Negro boy, who was on the woods fishing, a 15-year-old white married girl comes along and whether he seduced or not is open to speculation.
In any event, they entered into two acts and as they were coming back down out of the woods, it game warden who was unbeknown either one up in the woods halted them and charged at that point, this young boy took a pistol and shot the game warden.
He apparently lost his head if the evidence is correct because and he took the officer's pistol and emptied it and then he was charged with cutting him with a knife some 55 feet to the woods.
A lot of unusual circumstances like, it's a small boy and a 200-pound game warden, no blood on the boy but the game warden really bloody.
But then we get on into the confession part of it.
He was immediately apprehended at the scene.
Very shortly thereafter, the girl ran out on the woods and she hide and a two police officer happen to hear, and came in and apprehended him.
The state troopers came in, the local sheriff's organization.
There was some 20 police officers at there immediately and at that time, according to the record, the police captain, or the state trooper captain said, he's told him he didn't do it.
The girl was brought forward and she said that's him then according to the boy, he and the captain had some conversation to the effect in one occasion, “if you don't confess, I'm going to turn loose on you.”
Prior to them getting the atmosphere was building up all this time and that one of these police officers had has it gun out, said, “How old are you boy?”
He told them, he said, "You're old enough to die."
He said, "Run, I haven't killed any Negro all day.”
With this sort of atmosphere building up all the time.
Their meeting that took three cars to transport him not back to his home but across the river onward to Morgan County.
Then the police officers come in, the two of them, the interrogator and the captain, and one of them has a hidden microphone and a tape recorder and you can hear those, if you listen to the tape, you could hear the anonymous sound of the jail doors opened and closing which means that nothing had gone on until they turn that tape on and at that time, we get out.
This is the first question.
“Then and now, you understand what we're doing?
We just want to talk to you.
We want you to tell us the truth about everything that happened today.”
Now, that's all the one that he had.
He wouldn't --
Argument of Mr.justice Harlan
Mr.justice Harlan: Where was this, at the station house?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: It's in the county jail in an adjoining county.
He was taken as they say in “for safekeeping not to his home jail.”
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: What's the interval between this episode and the arresting episode?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: He was arrested in the late afternoon, about five o'clock and this is around midnight around eleven o'clock.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: And the written confession relied on this interrogation.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Well, as two or three, yes, we're going to get to those in just a minute.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: They went to this?
Argument of Mr.justice Black
Mr.justice Black: Where did it occur?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: It occured in Athens, Alabama sir.
Rebuttal of Mr.justice Black
Mr.justice Black: What was the joining county?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Morgan.
That happened in Morgan County.
Rebuttal of Mr.justice Black
Mr.justice Black: It happened in Morgan?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes sir and instead of -- I misunderstood what you may ask.
Instead of being carried to Tekita, he was carried enough to Athens and had troopers in the front and the back even riding in a car --
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: When did this happen in Morgan County?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Sir?
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Where did it happen in Morgan?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Out in the county of -- from Tekita as out across the river down there.
Rebuttal of Mr.justice Black
Mr.justice Black: Across the river from Tekita?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes.
He was down there fishing on the creek, mind.
Rebuttal of Mr.justice Black
Mr.justice Black: And it's towards Hudson?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Fred community is the name of it.
It's -- there's a very small community down there.
I missed one thing at Fred Community.
The mob started together before they were taken out of there.
There was a lot of talk, a lot of people congregate.
Well, they took him on in the station and in the sheriff's office and put him on a cell in a jail up in Athens, Alabama, in the adjoining county from where he was.
His daddy was down there trying to find him in Morgan and they told him he couldn't see him, couldn't talk to him.
Well, after they got this tape recorded with this hidden microphone and this case is -- it must have been the same investigator because he said he was just trying to familiarize himself with the person.
He was just getting acquainted.
And after he got acquainted for about an hours worth, then he came back in there and reduced this confession to rape.
Now, he still hadn't told him that he had a right to keep quiet.
Nobody ever told him that he might have a right to a lawyer.
But they told him, finally, it was written in this written confession that it might used against him.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: When was this confession?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: This was sometime after midnight, Your Honor.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: No, I mean what month and year.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: This is at May 1, 1960, a month before Miranda.'60.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well, as of that time, nobody had ever decided that he did have a right to a lawyer, isn't that right?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: No, sir.
I realized it.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Yes.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: But the circumstances could be considered whether or not he did have not only a right to a lawyer but a right to remain silent.
I mean, that's my main point, the right to remain silent was never told to him the same.
Rebuttal of Mr.justice Black
Mr.justice Black: How old was this boy?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: 19, sir.
Rebuttal of Mr.justice Black
Mr.justice Black: 19.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Little fellow, 120 pounds, then sickly, had broken legs, bruises in his legs, had a series of headaches.
83 IQ, so normal.
We had a psychologist that said that his defensive mechanism would make him do more anything to avoid immediate danger and that what might happen to him in the next week but that was his basic defensive mechanism.
That's in the record; it's also in the brief.
Alright, then this -- I got a hold to this first confession and had it transcribed and it's in the record.
They brought the tapes in and I think the tape is also a part of the record now.
And this was just conversation in rough language, the use of four letter words and this sort of thing where if I understood, each other they talked in the jail cell.
Then he pause it up a little bit and put it in a considerable platform and Billy Don Frank Boulden signed.
The next morning at six o'clock, he is carried back to Morgan County and Judge Bloodworth who was one of the circuit judges there, had him brought in at one room in the courthouse, right with state troopers in the courtroom and proceeded to tell him his rights.
They told him a right -- that he had a right to a preliminary, he had a right to a hearing, on bond and all his other rights and a right to have an attorney if he couldn't have one.
And it proper send him off to kill (Inaudible).
Four days later, I believe it was they -- two police officers, the same two state troopers along with the local sheriff and the Deputy Fire Marshal, rode down to get him to bring him back to Morgan County.
And on the way back, they stopped by the scene and had him reenact the scene.
They have want ahead and the state solicitor was out there, there was also I believe the electronic equipment.
And again they had a hidden microphone and led him around through it and supplied, suggested answers to him which you could hear on the tape and had another full confession.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: And you say these tapes are part of the record in this Court?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, sir and they also are transcribed.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Now, this second confession that appears on, beginning on page 51 of the appendix, reproduced in actual handwriting, have you got to this one yet in your --?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: In my chronicle, yes, sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: In your chronicle?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, I've already passed it.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Yes.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: A matter of fact, I'm down to --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: You're down to the second or third one now?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, I'm down to the third where they took him back to the scene, I'll be happy to --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Just -- first of all, is this the handwriting of the petitioner?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: The state trooper.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: That's the state trooper's.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: I believe you see the signature in --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well, I do this signature of the petitioner which seemed to be different.
That's state trooper's handwriting not the petitioner.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, sir.
No question.
I mean that's --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: That's not at issue.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Not at issue.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Thank you.
Rebuttal of Mr.justice Black
Mr.justice Black: Is what happened at the first arraignment in the transcript?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, sir.
In great detail --
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: Do you remember where it is?
Don't bother -- don't bother if you don't.
Go on with your argument.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: I can answer your question about it, I believe Your Honor.
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: I'll find it.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: I believe I can answer most -- I think you -- answer about it, I'll try.
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: Well I just want to see what -- what the colloquy was when the judge told him about have a lawyer and so forth.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Well, I'll try to comment on that on rebuttal.
I want to save my time for rebuttal.
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: Take your time.
Do it your own way, don't --
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: All right sir, I'm --
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: It's alright.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: I'm trying to touch all the basis put it again and save my time to.
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: Alright, go ahead.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: So, that we get him out down the woods with the ringed state troopers around.
This is third confession.
The hidden microphones, that he didn't know anything about, the handcuffs off and said, “Alright, lead us to it” and then they reenacted the scene out there.
Again, nobody told him then by everybody's admission that he had a right to remain silent.
As a matter of fact, he had been told about all his rights but the judge but nobody had done anything about it.
If he had had a lawyer, he certainly wouldn't made those first two confessions.
Here is out of the scene being told him to reenact it with his handcuffs off and ringed by state troopers.
And they had told about all his rights but nobody had done much about it.
But he already confessed twice before we get out into this.
Well, then they go to the trial.
This was on May 1st, and 2nd, and four days later, and we go to trial on May the 21st.
I was not in the trial, there was a lawyer appointed for him up there.
The lawyer was appointed the date before I believe.
No, no, no, several days before, a week before.
Then he was arraigned and they went to trial on May 27th.
During the course of the trial, this taped in the woods confession where he reenacted was first ready and it's at that one enough then they played the tapes for the jury just before the retired.
Now, this lawyer that was representing the petitioner objected to the reading.
He objected to the playing of the tapes and that's all in the record.
It's put in thoroughly in there.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: What ground did he object?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: He went -- they went back, had a hearing before the judge in showed it to him and the judge has -- I'll answer that in rebuttal, if I may.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Sure.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Let me comment briefly if I may on the second point we've raised here.
And this is the Witherspoon case.
There are 16 in Alabama, one of the -- we have a code section which allows you to ask, whether or not you should believe in capital punishment or have a fixed opinion against capital punishment and 16 of these people said, they did and they have set out in detail.
Here's a typical one, read for W. Mixon.
I have the affixed opinion against capital punishment.
Mr.Hunt had challenged the Court defense, there should -- no question, the Court stand aside.
This went on for 16 times and which we say is squarely right in the phase of this Witherspoon opinion, in which six of the juror said, they did not believe in the death penalty with excuse without any attempt to determine whether they could nevertheless return it further took down.
And these 16 laws with two possible exceptions, was summarily dismissed, excused forth with not right without any further common question.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Now, the exceptions I guess are Mr. John L. Nelson and Mr. E. O Moon, possible exceptions as you call them, page 17.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, sir.
Yes.
I took each one of their testimonies that is to go for four-five miles there.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: And those would be the two what you call possible exceptions to the, is that right?
If I got the right too?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: No, what I'm telling, those are firmly within Witherspoon as I see it.
John L. Nelson raised his hand.
This is page 17.
Mr. Hunt had challenged, "Do you have a fixed opinion against captain penitentiary punishment."
Mr. Nelson, "Capital punishment."
Do you think you would never be willing to inflict the death penalty in a type of case?
Yes.
We challenged.
Now that might be an exception but over here the --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well now -- now look a Mr. Moon, the next man, Mr. E. O. Moon.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Do you have a fixed plan against capital punishment?
Capital punishment, do you mean you would never inflict the death penalty?
That's right challenge.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Now, do you claim that --
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: For those that two in our list.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Those are two exceptions.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Yes, alright.
I just --
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Now, then we get to the next in Riley, do you have a fixed opinion against capital punishment?
Capital punishment, challenge, no question stand aside.
Simpson, do you have a fixed opinion against capital punishment?
Yes, I challenge.
No question, stand aside.
So that at least 14 of them are like that where they just for prelim of -- for excuse me.
If I may, I'd like to save a few minutes for rebuttal.
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: You may.
Mr.Clark.
Argument of David W. Clark
Mr. David W. Clark: Mr.Chief Justice, may it please the Court.
This is a case of murder in the first degree conviction arising in Morgan County, Alabama.
The crime was committed on May, 1st, 1964 in the afternoon.
Now, right after this murder occurred, the police arrested this young man and there was some evidence brought after there was a mob but actually the patrolman testified a few curious to seek this came around.
They held this young man until Captain John Williams to talk with him.
Now, the petitioner testified that someone of the officers threatened to kill him, told him to run and they'll shoot him.
Now, we had at the habeas corpus hearing --
Rebuttal of Mr.justice Black
Mr.justice Black: Was that denied?
Rebuttal of David W. Clark
Mr. David W. Clark: That was denied.
Rebuttal of Mr.justice Black
Mr.justice Black: I beg your pardon.
Rebuttal of David W. Clark
Mr. David W. Clark: It's the point that I'm going to bring out.
At the habeas corpus hearing in the District Court in Montgomery, we had an officer John Brom, who testified and that's on the record page 657 that, no one pointed a gun at the petitioner and no one spoke to him at the crowd, that's on the record page 64.
Now, --
Rebuttal of Mr.justice Black
Mr.justice Black: Did the man who was supposed to have said that testified?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes sir, because --
Rebuttal of Mr.justice Black
Mr.justice Black: Did he denied.
Rebuttal of David W. Clark
Mr. David W. Clark: Billy Boulden said that there was an officer Good in another -- another patrolman there.
Well, this was on the other patrolman there and he testified he didn't point it, didn't see nobody pointed a gun, didn't hear anybody threat him.
Rebuttal of Mr.justice Black
Mr.justice Black: But how about the one who was suppose to have said it, did he testified?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Rebuttal of Mr.justice Black
Mr.justice Black: And he denied it, did he?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Rebuttal of Mr.justice Black
Mr.justice Black: Well, that's all I want to hear.
Rebuttal of David W. Clark
Mr. David W. Clark: And of course, Judge Johnson, the district judge had to identify that both of their testimonies.
His conclusion was after him been denied habeas corpus.
Now, as we pointed out, this -- the boy was arrested about 5:30, I believe around 7 or 7:30 that night pursuant to an order of the circuit judge, this young man was moved to the joining county's jail, Limestone County in Athens, Alabama.
Here, he was interrogated.
Rebuttal of Mr.justice Black
Mr.justice Black: Would you mind telling us what the reason for the removal as to the other county?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
It was a precautionary measure.
There had been a murder of a popular man and there had been a positive of rape there and to keep --
Rebuttal of Mr.justice Black
Mr.justice Black: It was a matter of security.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Security matters.
It was a short distance to the next county.
Rebuttal of Mr.justice Black
Mr.justice Black: Yes, alright.
Rebuttal of David W. Clark
Mr. David W. Clark: Now, there was this something said about he wasn't warned of his rights at that time before this first confession was taken.
That was the one made the first at the jail in Athens, Alabama that night.
Now, I'm calling the Court's attention to, I believe its appendix page 45, where the question Captain Williams I believe you stated earlier.
"You advised the defendant, he didn't have to make a statement and that he was entitled to a lawyer."
"Is that correct?"
Answer, "I did."
"On May 1?"
"Yes, sir."
That's the record page 45, rather appendix page.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Was that the law of Alabama at that time that he was entitled to a lawyer at the time he's being interrogated by the police?
Rebuttal of David W. Clark
Mr. David W. Clark: Incidentally, this trial, I would point out to the Court that the murder occurred on the first of May.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Yes.
Rebuttal of David W. Clark
Mr. David W. Clark: And the trial was May the 27th through the 29th.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Of 1965?
Rebuttal of David W. Clark
Mr. David W. Clark: Of '64 sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: '64.
Rebuttal of David W. Clark
Mr. David W. Clark: Prior to Escobedo or --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Prior to either one.
Rebuttal of David W. Clark
Mr. David W. Clark: I should like to point out to the Court that --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: This Captain Williams said that he was told the petitioner that he was entitled to a lawyer by the time of his being -- the time he's being interrogated?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Was that the law of Alabama?
Rebuttal of David W. Clark
Mr. David W. Clark: It was not an absolute requirement throughout Alabama but in that circuit, Judge Bloodworth was really an advanced judge in thinking at that time.
He had insisted on those things.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Because it wasn't the law generally, it wasn't any constitutional requirement.
Rebuttal of David W. Clark
Mr. David W. Clark: Well, it wasn't at that time judge.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: I beg your pardon?
Rebuttal of David W. Clark
Mr. David W. Clark: It was not an absolute requirement at that time.
Now, I should like to point out to the Court that an attorney was appointed at arraignment on May the 7th and this should note incidentally filed the matters to the indictment and the case was heard about three weeks later he had time to prepare for it.
Now, back to the confession on the eve of May the 1st; after being advised of these rights --
Argument of Mr.Justice Marshall
Mr.Justice Marshall: What time was this?
Rebuttal of David W. Clark
Mr. David W. Clark: What time?
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: Was it night?
Rebuttal of David W. Clark
Mr. David W. Clark: I believe it was around 10:30 - 11 o'clock somewhere in that.
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: At night?
Rebuttal of David W. Clark
Mr. David W. Clark: At night, sir.
He had been faired and was permitted to the bathroom facilities and so forth and allowed to smoke in those things.
There was no long interrogation.
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: As a matter of fact, he said, "I wish to make the following voluntary statement to E. B. Watts."
"I have not been threatened in no way or for no reward or hope of reward to get me to make a statement."
"I had been told by Mr. Watts that any statement I make can be used against in a court of law."
He just volunteered with that statement.
Rebuttal of David W. Clark
Mr. David W. Clark: It is my understanding, Mr. Watts asking those questions and then wrote it down.
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: But he says "I, Billy Watts
Rebuttal of David W. Clark
Mr. David W. Clark: Yes sir.
That's -- that was written in the confession but at the time Watts testified at habeas corpus, he said that he asked the man these questions and wrote it down ask when it to.
Now, after this confession was given which incidentally I would like to point out, neither this confession nor the tape recording was used at the original trial on May 27th.
On the next morning, May the 2nd, petitioner was taken before Judge James Bloodworth and advised of his rights.
He was advised of fully.
I believe there is 127 pages in the record showing the advice he gave.
He had a hearing that morning six o'clock, he advised him seriousness of each of the offenses, he advised him to get a lawyer, how serious the crimes were possibility of a death sentence and he talked with the parents and relatives of the boy also and told them that that is incorrect.
Now, after this hearing and I believe at that time, the family was endeavoring to get Sherman Powell, a local attorney to represent Don Boulden.
They were not successful.
Now, because of further precautionary measures, Judge Bloodworth had this man transferred to Kilby prison.
Now, then May 6th, the man was brought back to guilty.
He had been indicted for on three indictments murder, rape, and robbery.
He was tried on murder.
They brought him back and passed through common and then it passed through the cave where he reenacted the crime.
Now, a transcript of that tape and those tapes were put in evidence at the trial.
Now, as this case occurred before either Escobedo or Miranda, the totality of circumstances the rule was applied.
Now, in the brief of the petitioner, he cites Payne versus Arkansas.
Well, I think that is one that really shows all the faults Here was a case of a 19-year old person, a boy who was denied of hearing, was arrested first without a warrant, denied a hearing before a magistrate, who could advice him of his right to remain silent or to counsel.
He was not advised of his rights by the Court in Arkansas.
He was held incommunicado for three days without advice of counsel, friends, relatives.
He was denied food for long periods, threatened with mob violence and so forth.
Now, those things in the totality of both circumstances would indicate an involuntary confession with one who was coerced.
Such was not the case as Boulden found.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Mr.Clark, it may or may not be material to the case, I don't know, but I'm just wondering on the facts here, the petitioners testified that the girl consented.
She testified that she had been raped.
Upon leaving the wooded area where the act took place, the two were confronted by a conservation officer for the State of Alabama then the girl ran away at that time to a nearby highway which is located deputy sheriff.
What did she say to the officer who first confronted them, the conservation officer?
Did she explain?
Rebuttal of David W. Clark
Mr. David W. Clark: She explained that she had been raped.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: I beg your pardon?
Rebuttal of David W. Clark
Mr. David W. Clark: She had him raped, as they say and that she complained of rape.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: To this officer?
Rebuttal of David W. Clark
Mr. David W. Clark: To this officer.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: I see.
Rebuttal of David W. Clark
Mr. David W. Clark: And at that time, --
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: But she didn't look to him for protection.
She ran away from him?
Rebuttal of David W. Clark
Mr. David W. Clark: She ran to the Officer, yes and got behind the Officer Hays.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: No, I'm talking about the conservation officer.
Rebuttal of David W. Clark
Mr. David W. Clark: Behind to sir.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: I beg your pardon?
Rebuttal of David W. Clark
Mr. David W. Clark: She got -- she ran and got behind Officer Hays, who the conservation officer.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: I thought she ran clear away.
Rebuttal of David W. Clark
Mr. David W. Clark: Oh, no sir.
After Hays was killed, she ran to the highway and contacted some highway patrolman.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Oh, she was there when he was killed.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Oh, I see.
I beg your pardon.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: She would -- was she an eyewitness?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir, she was.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Did she testify in this case?
Rebuttal of David W. Clark
Mr. David W. Clark: I believe she did.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: I hadn't understood that from the briefs but you know more about the case.
Rebuttal of David W. Clark
Mr. David W. Clark: I'm not certain, Your Honor, without looking at the big record which I don't have it before.
Rebuttal of Mr.justice White
Mr.justice White: (Inaudible)
Rebuttal of David W. Clark
Mr. David W. Clark: I don't have the principal -- she ran away I believe before he had actually died, the conservation officer.
She ran for help.
Rebuttal of Mr.justice White
Mr.justice White: When that -- did she make --
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Why would -- do you know where we would find that in the record here?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
That would be in the large record about 400 pages it was sent up an Exhibit A.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Not in the -- not in the appendix?
Rebuttal of David W. Clark
Mr. David W. Clark: Not in the appendix, no sir.
And I believe the Court has informed us that Your Honors will take knowledge of that.
Rebuttal of Mr.justice White
Mr.justice White: Exhibit 54 and 55, this is one of the stateemnts.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes sir.
Of course, 54 and 55 is Boulden's statements.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: The statement on page 5 of the petitioner's brief is this.
After they were stopped by Hays and prior to the shooting and sticking, Boulden had told Amber not to run and she did.
Hence she was not an eyewitness when Hays met his death.
That's just as counsel statement.
The person on top of page 5.
Rebuttal of David W. Clark
Mr. David W. Clark: That's the testimony of Boulden.
Now, this case is gone to the District Court on federal habeas corpus after being affirmed by Supreme Court of Alabama in anyone up to the Fifth Circuit.
And the Fifth Circuit in affirming the action of the District Court held that each of the appellant's statements, his actions, the facts respecting his physical and mental condition and environment from the moment of his arrest to the end of the last interrogation are essential fragments are passage about consideration on issue of voluntariness.
But we find from the record here, no possible suggestion that Boulden's will was overborne on occasion of the last confession by having made earlier ones.
Now, both the District Court and the Circuit Court of Appeals found that the first confession, the one that was not used in the trial, the one who made the first was voluntary and also that the second one was also.
That -- based on that, they held that under the totality of circumstances rule that the confession was voluntary.
Now, as to this question of Witherspoon, as Mr. Moore pointed out, Witherspoon took place after we had filed briefs on that.
However, I feel that the objection that the state court hasn't had a chance to rule on it would be a waste of time, if we went back, we have to come back up here again probably, so I won't press that objection.
I would like to point out on the Witherspoon case that the Illinois statute was “in trials for murder, it shall be caused for challenge of any juror who shall on being examined state that he has conscientious scrupulous against capital punishment or that he is opposed to this thing.
Now, that was the Illinois statute.
Would like to point out the difference of our side of Section 36 and 57 in Alabama.
In addition to about 12 grounds that were challenged, we have these others set out in Section 57.
On the trial, for any offense which may be punished capitally or by imprisonment and penitentiary, it is a good cause of challenge by the state that the person has a fixed opinion against capital or penitentiary punishment or things that a conviction should be held on circumstantial evidence which cause a challenge may be proved by the oath of the person or by other evidence.
Now, there's a lot of difference between scruples against capital punishment and a fixed opinion.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: The Witherspoon opinion, as I understand it, did however didn't really rely much on the words of the statute, but rather what actually happened in the voir dire of the jury.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: And that would be the test in any case under the Witherspoon opinion.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, I believe, you -- on that case, it was on a narrow interpretation of this particular Illinois statute.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well, what happened in the qualifying of the jury?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Often --
Rebuttal of David W. Clark
Mr. David W. Clark: That they had scrupulous --
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: The record will show that the actual voir dire of the jury of the words of the statute weren't very carefully followed.
Now in this case, according to the printed appendix here, what was asked was just a statutory language.
Do you have a fixed opinion capital punishment, almost in each one of these 16 cases, is that correct?
Rebuttal of David W. Clark
Mr. David W. Clark: Well that is our contention.
What is a fixed opinion?
A fixed opinion, we just look to the dictionary on that and it's affirm or not movable, established opinion, one that can't be changed.
The fixed opinion against capital punishment would mean that under no circumstances would --
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: It means the same to each one of the 16?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
They -- the question was “Do you have a fixed opinion?”
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: You mean each one of the 16 gave fixed the same meaning?
You couldn't mean that.
Rebuttal of David W. Clark
Mr. David W. Clark: No, I don't mean that and again, I didn't mean to say that if you interpreted it.
No the jury --
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: All that were asked -- each one was asked if they have a fixed opinion.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes.
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: And it was up to each one of them to decide what fixed meant.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well, even if it meant to each one of them exactly what you say it means to you and means to Noah Webster?
Isn't it perfectly possible that a person can have a fixed opinion against capital punishment that is he would vote against it if he were a legislator or try to get the legislature to abolish it if he were the governor?
But in the mean time, he would follow his duty as a jury -- as a juror.
Certainly, I suppose there are judges, many judges who have a fixed opinion against capital punishment as a matter of policy and as citizens but who do their duty and the sentence people to death when that's what their duty require.
Rebuttal of David W. Clark
Mr. David W. Clark: That's true.
They have a fixed opinion, a fixed opinion as a juror would indicate one who under no circumstances would change his mind.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well no, he wouldn't change his mind.
He'd be against it as a citizen and as a matter of policy.
A lot of people -- we have provision, national provisions, they had a fixed opinion against it.
They thought it was silly, unwise law but as jurors they would follow the directions of the Court and convict people for violating the provision laws.
Rebuttal of David W. Clark
Mr. David W. Clark: Of course, that question wasn't asked, would they find the person guilty and sentence him death under any circumstances.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: It was asked of two of the jurors.
It was asked to two of the jurors, wasn't it?
On page 17, Mr. Nelson and Mr. Moon.
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: But it wasn't to any of the others.
Rebuttal of David W. Clark
Mr. David W. Clark: Well, that just indicated that that's what they all thought was a fixed opinion.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: That's what according to the most recent evidence I've seen, a majority of the people of the United States are against capital punishment as a matter of principle or policy.
But this doesn't mean that they would not be able to carry out their duties as jurors, does it, or to follow the instructions of the Court?
Rebuttal of David W. Clark
Mr. David W. Clark: Yes, if you had a fixed opinion against doing a certain thing when -- anyway --
Based on that, Your Honor, we feel that a certiorari should be denied in this case.
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: Mr. Moore.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: May it please the Honorable Court.
At rebuttal, I got a few notes down here.
Number one, my good friend, Mr. David Clark said, this bar was curious to seek.
When you get to read in the record, you'll see in there that the solicitor commented very firmly on it when he was trying to send the man back for safekeeping.
Because he said, you know, he knows what happened out there at fled last night with that Boulden together.
Then we get on down into what Boulden told the girl at the scene.
The record, Mr.Justice will reveal that Boulden told the girl to run.
She was not an eyewitness to the murder if he did kill him which he is denied.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well, he was murdered and she was not an eyewitness to it.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: That's correct sir.
We thought it particularly appropriate and did set out on page 24 in here what led up to this thing her testimony and she did testify.
As to acts up there in the woods.
The precautions he use, the use of contraceptives on both times and this is spilled out by her own testimony in some detail indicating that now, this right thing was an afterthought when she got in and saw the police officer.
And Boulden was the one who told her to run.
To me, one of the most impressive matters in this whole thing here is that these officers wanted a confession.
They wanted a confession to convict.
They weren't looking for who did.
They thought they have found and under one of the outstanding opinion of this Court.
They were after a confession on which they could convict and could hang this man.
He was never told that any time, that you don't have to tell it to us, that you got a right to remain quiet.
Just because they didn't put him on bread and water and put a lash on his back it doesn't mean he wasn't coerced.
Just because his bathroom privileges weren't taken away from him, they gave him a couple of cigarettes that doesn't mean he wasn't coerced.
When those two police officers were standing there with this man in his cell with those doors clinging behind him, telling him “We want to know what happened.”
A little bit of a 120-pound boy.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: How old was he?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: 19, never been in trouble before.
Had a frail health --
Rebuttal of Mr.justice Black
Mr.justice Black: He had a pistol, didn't he?
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: No.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Did he have a pistol?
Rebuttal of Mr.justice Black
Mr.justice Black: Yes.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, sir, I think he did.
They never found it
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Well, he said he did.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: In some of his confessions, he did and they never show it up in the trial.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: And the girl said he did.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: That's correct.
Rebuttal of Mr.justice Black
Mr.justice Black: Is there any indication that anybody else could have done this?
Had it come out --
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: He has said so, Your Honor.
Rebuttal of Mr.justice Black
Mr.justice Black: What?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: He has said so later when he got before the governor.
He said, at that time, two other men showed up in the scene and did it.
And he said it threatened his family and he was trying to protect his family.
Again, I cannot vouch one way or the other.
The circumstances, I see it throughout it strange.
I wouldn't have got the bloody clothe when they brought it down.
Rebuttal of Mr.justice Black
Mr.justice Black: How long was it after the girl ran to the street or the road, highway, when the officers came back down where he was killed?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Very short.
Rebuttal of Mr.justice Black
Mr.justice Black: What?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Very shortly.
Rebuttal of Mr.justice Black
Mr.justice Black: How far was it?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Less than about a half mile to a mile.
Rebuttal of Mr.justice Black
Mr.justice Black: And they came right back?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Very shortly, Your Honor.
Yes, sir.
Rebuttal of Mr.justice Black
Mr.justice Black: That's the information, the only information they have and what she gave them?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: This is correct.
Rebuttal of Mr.justice Black
Mr.justice Black: That this boy had killed him.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: That's right.
And he --
Rebuttal of Mr.justice Black
Mr.justice Black: Where was he then?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: He was back down in the woods.
His story has been changed that two men came up and were fishermen indeed but again I'm not trying my lawsuit on this.
Rebuttal of Mr.justice Black
Mr.justice Black: I understand.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: This is what he told when he got in the Governor's office, what he told when we started in the District Court, this is when I got in the case in the District Court.
Judge Johnston was first association that I haven't had the kid.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: What happened when these two -- these two officers whom the girl had reported to came too and where he came to them was there any scuffle or anything of that kind?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Apparently, they just apprehended him as the way I read this record and in call for the highway patrol.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Was he running away or anything?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: The record then revealed that Your Honor.
My -- my recollection is to whether he was actually running at that time or not.
I think he was just out there in the woods is about all we know.
But he -- though not, never was he told that he had a right to remain silent and I think you got to know what a right is.
Know that you got one before you can give it up.
Rebuttal of Mr.justice Black
Mr.justice Black: Did he testify to trial.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, they did.
Rebuttal of Mr.justice Black
Mr.justice Black: What did he say?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Substantially, what his confession say?
Rebuttal of Mr.justice Black
Mr.justice Black: Did he say that he thought somebody else killed the man?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Not at that time.
No, sir.
Rebuttal of Mr.justice Black
Mr.justice Black: On the trial.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: No sir, he did not.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Did he admit that he did?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes sir.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: On the trial?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: At the trial.
They did.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: Did he testify?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, sir.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: And he admitted the killing of the man.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes, sir.
Again, he said that he was protecting his family.
That was what he said in the later time.
Rebuttal of Mr.justice Black
Mr.justice Black: His defense as I understand it was that he saw this girl and he invited to go to woods with him and she went with him.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: That's right.
Rebuttal of Mr.justice Black
Mr.justice Black: And they had intercourse and that he then, when they arrested and tried him, he admitted there and admitted that he shot the officer.
There was no other defense, was there?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: This is correct.
Rebuttal of Mr.justice Black
Mr.justice Black: Admitted that he shot him and that was tried.
That was all the evidence, wasn't it?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Yes.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: What -- did he, when he testified in the trial, did he say that this officer had told him that he'd been wanting long time to kill a nigger?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: He testified to that at the -- in the District Court hearing and the original hearing -- I don't think it was ever asked there, no sir.
Not at the original trial.
Rebuttal of Mr.justice Black
Mr.justice Black: Well he was asked to shoot him, wasn't he?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: He was asked if he shoot him.
Rebuttal of Mr.justice Black
Mr.justice Black: And he didn't say anything about at the statement made by him.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: No, sir.
He was asked a series of questions just about running along in the form of this confession that was taken out and the same way reenacted.
And when he took his handcuffs and when you read it, you would see he said, “Well, I'm even glad to get my handcuffs back on” because he was ringed with security and people out there then.
Again, nobody had ever told him he didn't have right to keep his mouth shut.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: But when he was testifying in the trial, what did he say was his reason for shooting a man?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: I don't know if anybody has ever asked him that Your Honor.
Rebuttal of Mr.justice Black
Mr.justice Black: But what you said, he said he's done it to protect his family.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: That's the reason he test -- what he now says as the reason he testified and made his confession.
No, no, I beg your pardon.
I didn't mean that at all.
Rebuttal of Mr.justice Black
Mr.justice Black: I misunderstood.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: If he did it to circumstances then he can lost his head which certainly didn't spelled out first degree murder but again, that's not what the reason here.
Rebuttal of Mr.justice Harlan
Mr.justice Harlan: Where do we find this testimony, listed in the appendix?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Judge again, we were trying to cut this record down pursuant to our instruction and I don't -- let's see how much here were picked up.
Rebuttal of Mr.justice Stewart
Mr.justice Stewart: This seems to be the habeas corpus hearing, mostly in the appendix, isn't it?
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Well, I think -- we will have to go back to the original record which is here.
Justice Abe Fortas: I believe it will be 478 about 600 I think in the big record.
Rebuttal of Mr.justice Black
Mr.justice Black: In the big record.
Thank you.
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: 478 to 600.
Justice Abe Fortas: Yes, right in there somewhere.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Now again, I want to make one more observation.
I realized that the routes that I have presented to this Court or in Congress.
If I'm correct that this is an involuntary confession by statute, then I presume he's entitled to a new trial.
If on the other hand, Witherspoon is applicable, I presume then his conviction would stand but the death penalty could not be carried out.
And this is obviously the decision the Court will make in any event one way or the other.
But I thought I owe the Court an explanation why so both routes.
As the attorney for the man, it appears to me that I must exhaust all possible remedies and laws of protection that he might have.
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: I don't think that anybody is going to object to you at that thing.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Alright, so I'm halucinating.
There were some question as to where --
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: Whether they accept it or not --
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Well, I understand that.
Rebuttal of Mr.Justice Marshall
Mr.Justice Marshall: I'm sure nobody would --
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: If I could answer any question, I'd be pleased to try.
Rebuttal of Mr.chief Justice Warren
Mr.chief Justice Warren: Very well.
Rebuttal of Mr.william B.moore, Jr.
Mr.william B.moore, Jr.: Thank you.
Cite this Page
BOULDEN v. HOLMAN. The Oyez Project at IIT Chicago-Kent College of Law. 26 April 2013. <http://www.oyez.org/cases/1960-1969/1968/1968_644>.
BOULDEN v. HOLMAN, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1968/1968_644 (last visited April 26, 2013).
"BOULDEN v. HOLMAN," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 26, 2013, http://www.oyez.org/cases/1960-1969/1968/1968_644.