BOULDEN v. HOLMAN

Transcript: 

Chief Justice Earl Warren: Number 644, Billy Don Franklin Boulden versus William C. Holman Warden.

Mr.Moore.

Argument of William B. Moore, Jr.

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.

Justice William J. Brennan: Was the Witherspoon point raised below?

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.

Justice Byron R. White: What jurisdiction we have to consider here?

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 --

Justice Byron R. White: Federal court.

William B. Moore, Jr.: Sir?

Justice Byron R. White: That's what the federal court?

William B. Moore, Jr.: It's from this Court --

Justice Potter Stewart: You are the better authority, Mapp against Ohio.

William B. Moore, Jr.: Sir?

Justice Potter Stewart: Mapp against Ohio is pretty good authority to you.

William B. Moore, Jr.: This is a federal -- this is Supreme Court decision that I was referring to here.

It's in the brief.

Justice Byron R. White: Does this case have it heard from the federal court?

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 --

Justice John M. Harlan: Where was this, at the station house?

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.”

Justice John M. Harlan: What's the interval between this episode and the arresting episode?

William B. Moore, Jr.: He was arrested in the late afternoon, about five o'clock and this is around midnight around eleven o'clock.

Justice John M. Harlan: And the written confession relied on this interrogation.

William B. Moore, Jr.: Well, as two or three, yes, we're going to get to those in just a minute.

Justice John M. Harlan: They went to this?

Justice Hugo L. Black: Where did it occur?

William B. Moore, Jr.: It occurred in Athens, Alabama sir.

Justice Hugo L. Black: What was the joining county?

William B. Moore, Jr.: Morgan.

That happened in Morgan County.

Justice Hugo L. Black: It happened in Morgan?

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 --

Justice John M. Harlan: When did this happen in Morgan County?

William B. Moore, Jr.: Sir?

Justice John M. Harlan: Where did it happen in Morgan?

William B. Moore, Jr.: Out in the county of -- from Tekita as out across the river down there.

Justice Hugo L. Black: Across the river from Tekita?

William B. Moore, Jr.: Yes.

He was down there fishing on the creek, mind.

Justice Hugo L. Black: And it's towards Hudson?

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.

Justice Potter Stewart: When was this confession?

William B. Moore, Jr.: This was sometime after midnight, Your Honor.

Justice Potter Stewart: No, I mean what month and year.

William B. Moore, Jr.: This is at May 1, 1960, a month before Miranda.'60.

Justice Potter Stewart: Well, as of that time, nobody had ever decided that he did have a right to a lawyer, isn't that right?

William B. Moore, Jr.: No, sir.

I realized it.

Justice Potter Stewart: Yes.

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.

Justice Hugo L. Black: How old was this boy?

William B. Moore, Jr.: 19, sir.

Justice Hugo L. Black: 19.

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.

Justice Potter Stewart: And you say these tapes are part of the record in this Court?

William B. Moore, Jr.: Yes, sir and they also are transcribed.

Justice Potter 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 --?

William B. Moore, Jr.: In my chronicle, yes, sir.

Justice Potter Stewart: In your chronicle?

William B. Moore, Jr.: Yes, I've already passed it.

Justice Potter Stewart: Yes.

William B. Moore, Jr.: A matter of fact, I'm down to --

Justice Potter Stewart: You're down to the second or third one now?

William B. Moore, Jr.: Yes, I'm down to the third where they took him back to the scene, I'll be happy to --

Justice Potter Stewart: Just -- first of all, is this the handwriting of the petitioner?

William B. Moore, Jr.: The state trooper.

Justice Potter Stewart: That's the state trooper's.

William B. Moore, Jr.: I believe you see the signature in --

Justice Potter Stewart: Well, I do this signature of the petitioner which seemed to be different.

That's state trooper's handwriting not the petitioner.

William B. Moore, Jr.: Yes, sir.

No question.

I mean that's --

Justice Potter Stewart: That's not at issue.

William B. Moore, Jr.: Not at issue.

Justice Potter Stewart: Thank you.

Justice Hugo L. Black: Is what happened at the first arraignment in the transcript?

William B. Moore, Jr.: Yes, sir.

In great detail --

Chief Justice Earl Warren: Do you remember where it is?

Don't bother -- don't bother if you don't.

Go on with your argument.

William B. Moore, Jr.: I can answer your question about it, I believe Your Honor.

Chief Justice Earl Warren: I'll find it.

William B. Moore, Jr.: I believe I can answer most -- I think you -- answer about it, I'll try.

Chief Justice Earl Warren: Well I just want to see what -- what the colloquy was when the judge told him about have a lawyer and so forth.

William B. Moore, Jr.: Well, I'll try to comment on that on rebuttal.

I want to save my time for rebuttal.

Chief Justice Earl Warren: Take your time.

Do it your own way, don't --

William B. Moore, Jr.: All right sir, I'm --

Chief Justice Earl Warren: It's alright.

William B. Moore, Jr.: I'm trying to touch all the basis put it again and save my time to.

Chief Justice Earl Warren: Alright, go ahead.

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.

Justice Potter Stewart: What ground did he object?

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.

Justice Potter Stewart: Sure.

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.

Justice Potter Stewart: Now, the exceptions I guess are Mr. John L. Nelson and Mr. E. O Moon, possible exceptions as you call them, page 17.

William B. Moore, Jr.: Yes, sir.

Yes.

I took each one of their testimonies that is to go for four-five miles there.

Justice Potter Stewart: And those would be the two what you call possible exceptions to the, is that right?

If I got the right too?

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 --

Justice Potter Stewart: Well now -- now look a Mr. Moon, the next man, Mr. E. O. Moon.

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.

Justice Potter Stewart: Now, do you claim that --

William B. Moore, Jr.: For those that two in our list.

Justice Potter Stewart: Those are two exceptions.

William B. Moore, Jr.: Yes.

Justice Potter Stewart: Yes, alright.

I just --

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.

Chief Justice Earl 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 --

Justice Hugo L. Black: Was that denied?

Mr. David W. Clark: That was denied.

Justice Hugo L. Black: I beg your pardon.

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, --

Justice Hugo L. Black: Did the man who was supposed to have said that testified?

Mr. David W. Clark: Yes sir, because --

Justice Hugo L. Black: Did he denied.

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.

Justice Hugo L. Black: But how about the one who was suppose to have said it, did he testified?

Mr. David W. Clark: Yes, sir.

Justice Hugo L. Black: And he denied it, did he?

Mr. David W. Clark: Yes, sir.

Justice Hugo L. Black: Well, that's all I want to hear.

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.

Justice Hugo L. Black: Would you mind telling us what the reason for the removal as to the other county?

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 --

Justice Hugo L. Black: It was a matter of security.

Mr. David W. Clark: Yes, sir.

Security matters.

It was a short distance to the next county.

Justice Hugo L. Black: Yes, alright.

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.

Justice Potter 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?

Mr. David W. Clark: Incidentally, this trial, I would point out to the Court that the murder occurred on the first of May.

Justice Potter Stewart: Yes.

Mr. David W. Clark: And the trial was May the 27th through the 29th.

Justice Potter Stewart: Of 1965?

Mr. David W. Clark: Of '64 sir.

Justice Potter Stewart: '64.

Mr. David W. Clark: Prior to Escobedo or --

Justice Potter Stewart: Prior to either one.

Mr. David W. Clark: I should like to point out to the Court that --

Justice Potter 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?

Mr. David W. Clark: Yes sir.

Justice Potter Stewart: Was that the law of Alabama?

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.

Justice Potter Stewart: Because it wasn't the law generally, it wasn't any constitutional requirement.

Mr. David W. Clark: Well, it wasn't at that time judge.

Justice Potter Stewart: I beg your pardon?

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 --

Justice Thurgood Marshall: What time was this?

Mr. David W. Clark: What time?

Justice Thurgood Marshall: Was it night?

Mr. David W. Clark: I believe it was around 10:30 - 11 o'clock somewhere in that.

Justice Thurgood Marshall: At night?

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.

Justice Thurgood 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.

Mr. David W. Clark: It is my understanding, Mr. Watts asking those questions and then wrote it down.

Justice Thurgood Marshall: But he says "I, Billy Watts

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.

Justice John M. 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?

Mr. David W. Clark: She explained that she had been raped.

Justice John M. Harlan: I beg your pardon?

Mr. David W. Clark: She had him raped, as they say and that she complained of rape.

Justice John M. Harlan: To this officer?

Mr. David W. Clark: To this officer.

Justice John M. Harlan: I see.

Mr. David W. Clark: And at that time, --

Justice John M. Harlan: But she didn't look to him for protection.

She ran away from him?

Mr. David W. Clark: She ran to the Officer, yes and got behind the Officer Hays.

Justice John M. Harlan: No, I'm talking about the conservation officer.

Mr. David W. Clark: Behind to sir.

Justice John M. Harlan: I beg your pardon?

Mr. David W. Clark: She got -- she ran and got behind Officer Hays, who the conservation officer.

Justice John M. Harlan: I thought she ran clear away.

Mr. David W. Clark: Oh, no sir.

After Hays was killed, she ran to the highway and contacted some highway patrolman.

Justice John M. Harlan: Oh, she was there when he was killed.

Mr. David W. Clark: Yes, sir.

Justice John M. Harlan: Oh, I see.

I beg your pardon.

Mr. David W. Clark: Yes, sir.

Justice Potter Stewart: She would -- was she an eyewitness?

Mr. David W. Clark: Yes, sir, she was.

Justice Potter Stewart: Did she testify in this case?

Mr. David W. Clark: I believe she did.

Justice Potter Stewart: I hadn't understood that from the briefs but you know more about the case.

Mr. David W. Clark: I'm not certain, Your Honor, without looking at the big record which I don't have it before.

Justice Byron R. White: (Inaudible)

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.

Justice Byron R. White: When that -- did she make --

Mr. David W. Clark: Yes, sir.

Justice John M. Harlan: Why would -- do you know where we would find that in the record here?

Mr. David W. Clark: Yes, sir.

That would be in the large record about 400 pages it was sent up an Exhibit A.

Justice John M. Harlan: Not in the -- not in the appendix?

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.

Justice Byron R. White: Exhibit 54 and 55, this is one of the stateemnts.

Mr. David W. Clark: Yes sir.

Of course, 54 and 55 is Boulden's statements.

Justice Potter 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.

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.

Justice Potter 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.

Mr. David W. Clark: Yes, sir.

Justice Potter Stewart: And that would be the test in any case under the Witherspoon opinion.

Mr. David W. Clark: Yes, I believe, you -- on that case, it was on a narrow interpretation of this particular Illinois statute.

Justice Potter Stewart: Well, what happened in the qualifying of the jury?

Mr. David W. Clark: Yes sir.

Justice Potter Stewart: Often --

Mr. David W. Clark: That they had scrupulous --

Justice Potter 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?

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 --

Justice Thurgood Marshall: It means the same to each one of the 16?

Mr. David W. Clark: Yes, sir.

They -- the question was “Do you have a fixed opinion?”

Justice Thurgood Marshall: You mean each one of the 16 gave fixed the same meaning?

You couldn't mean that.

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 --

Justice Thurgood Marshall: All that were asked -- each one was asked if they have a fixed opinion.

Mr. David W. Clark: Yes.

Justice Thurgood Marshall: And it was up to each one of them to decide what fixed meant.

Mr. David W. Clark: Yes sir.

Justice Potter 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.

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.

Justice Potter 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.

Mr. David W. Clark: Of course, that question wasn't asked, would they find the person guilty and sentence him death under any circumstances.

Justice Potter 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.

Mr. David W. Clark: Yes, sir.

Justice Potter Stewart: But it wasn't to any of the others.

Mr. David W. Clark: Well, that just indicated that that's what they all thought was a fixed opinion.

Justice Potter 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?

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.

Chief Justice Earl Warren: Mr. Moore.

Rebuttal of William B. Moore, Jr.

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.

Justice Potter Stewart: Well, he was murdered and she was not an eyewitness to it.

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.

Justice Potter Stewart: How old was he?

William B. Moore, Jr.: 19, never been in trouble before.

Had a frail health --

Justice Hugo L. Black: He had a pistol, didn't he?

Justice Potter Stewart: No.

William B. Moore, Jr.: Did he have a pistol?

Justice Hugo L. Black: Yes.

William B. Moore, Jr.: Yes, sir, I think he did.

They never found it

Justice Potter Stewart: Well, he said he did.

William B. Moore, Jr.: In some of his confessions, he did and they never show it up in the trial.

Justice Potter Stewart: And the girl said he did.

William B. Moore, Jr.: That's correct.

Justice Hugo L. Black: Is there any indication that anybody else could have done this?

Had it come out --

William B. Moore, Jr.: He has said so, Your Honor.

Justice Hugo L. Black: What?

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.

Justice Hugo L. 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?

William B. Moore, Jr.: Very short.

Justice Hugo L. Black: What?

William B. Moore, Jr.: Very shortly.

Justice Hugo L. Black: How far was it?

William B. Moore, Jr.: Less than about a half mile to a mile.

Justice Hugo L. Black: And they came right back?

William B. Moore, Jr.: Very shortly, Your Honor.

Yes, sir.

Justice Hugo L. Black: That's the information, the only information they have and what she gave them?

William B. Moore, Jr.: This is correct.

Justice Hugo L. Black: That this boy had killed him.

William B. Moore, Jr.: That's right.

And he --

Justice Hugo L. Black: Where was he then?

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.

Justice Hugo L. Black: I understand.

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.

Justice John M. 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?

William B. Moore, Jr.: Apparently, they just apprehended him as the way I read this record and in call for the highway patrol.

Justice John M. Harlan: Was he running away or anything?

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.

Justice Hugo L. Black: Did he testify to trial.

William B. Moore, Jr.: Yes, they did.

Justice Hugo L. Black: What did he say?

William B. Moore, Jr.: Substantially, what his confession say?

Justice Hugo L. Black: Did he say that he thought somebody else killed the man?

William B. Moore, Jr.: Not at that time.

No, sir.

Justice Hugo L. Black: On the trial.

William B. Moore, Jr.: No sir, he did not.

Justice John M. Harlan: Did he admit that he did?

William B. Moore, Jr.: Yes sir.

Justice John M. Harlan: On the trial?

William B. Moore, Jr.: At the trial.

They did.

Justice Potter Stewart: Did he testify?

William B. Moore, Jr.: Yes, sir.

Justice Potter Stewart: And he admitted the killing of the man.

William B. Moore, Jr.: Yes, sir.

Again, he said that he was protecting his family.

That was what he said in the later time.

Justice Hugo L. 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.

William B. Moore, Jr.: That's right.

Justice Hugo L. 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?

William B. Moore, Jr.: This is correct.

Justice Hugo L. Black: Admitted that he shot him and that was tried.

That was all the evidence, wasn't it?

William B. Moore, Jr.: Yes.

Justice John M. 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?

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.

Justice Hugo L. Black: Well he was asked to shoot him, wasn't he?

William B. Moore, Jr.: He was asked if he shoot him.

Justice Hugo L. Black: And he didn't say anything about at the statement made by him.

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.

Justice John M. Harlan: But when he was testifying in the trial, what did he say was his reason for shooting a man?

William B. Moore, Jr.: I don't know if anybody has ever asked him that Your Honor.

Justice Hugo L. Black: But what you said, he said he's done it to protect his family.

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.

Justice Hugo L. Black: I misunderstood.

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.

Justice John M. Harlan: Where do we find this testimony, listed in the appendix?

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.

Justice Potter Stewart: This seems to be the habeas corpus hearing, mostly in the appendix, isn't it?

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.

Justice Hugo L. Black: In the big record.

Thank you.

Justice Thurgood Marshall: 478 to 600.

Justice Abe Fortas: Yes, right in there somewhere.

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.

Justice Thurgood Marshall: I don't think that anybody is going to object to you at that thing.

William B. Moore, Jr.: Alright, so I'm halucinating.

There were some question as to where --

Justice Thurgood Marshall: Whether they accept it or not --

William B. Moore, Jr.: Well, I understand that.

Justice Thurgood Marshall: I'm sure nobody would --

William B. Moore, Jr.: If I could answer any question, I'd be pleased to try.

Chief Justice Earl Warren: Very well.

William B. Moore, Jr.: Thank you.