OHIO v. GALLAGHER

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Argument of Herbert M. Jacobson

Chief Justice Warren E. Burger: We will hear arguments next in Ohio against Gallagher.

Mr. Jacobson, you may proceed whenever you are ready.

Mr. Herbert M. Jacobson: Mr. Chief Justice and may it please this Court.

Our respondent in this case is a man by the name of Terry Gallagher and in a resume of the facts as they developed a trial, he was tried without a jury and the Court found him guilty in November of 1972 and the offense was armed robbery and he was thereafter sentenced to the Ohio penitentiary.

At the time of the offense however, Gallagher had been on parole.

He had been placed on parole in February of that year.

His parole official was one William Sykes who was a member of the Ohio Parole Authority and was assigned to our area.

Upon being informed of the armed robbery, Sykes, saying that it was part of his duty to do so and part of his job, visited Sykes at the County Jail.

He visited Gallagher at the County Jail, sorry.

Now there are two visits that Sykes made to Gallagher.

One was on June 26th of 1972 and the respondent did not speak to him and failed to make any statements whatsoever and there was no conversation.

Four days before that, however, on June 22nd, the respondent Gallagher had been contacted by Deputy Sheriffs of our County who were investigating the armed robbery offense and had presented him with a printed Miranda Form which had all the warnings on them and he acknowledged these Miranda Warnings and signed the stencil form that had Miranda on them.

This was admitted to be a voluntary act by him and that he fully understood that he was signing an acknowledgment that Miranda had been ordered.

This in effect, was one of the reasons why Gallagher did not talk to Mr. Sykes when he visited him the first time on June 26th.

Keeping in mind that he also was on parole and had not been in contact with the criminal system before and when Sykes then determined that in furtherance of his duty as a state parole officer to go back and visit with him and he did so a week later on July 3rd.

Now this was eleven days after he had received his full panoply of rights under Miranda and in an informal conversation at that time, Sykes obtained or rather heard from the respondent Gallagher of his participation in this armed robbery.

There were no Miranda Warnings given at those conversations that took place between Mr. Sykes and Terry Gallagher on July 3rd.

Later at the trial, the state called Mr. William Sykes as a witness and he testified on behalf of the state indicating what Gallagher had acknowledged to him and of course the statements were inculpatory and he further indicated that he was not forced to talk his parole officer.

The objections were made at the time of trial to Mr. Sykes' testimony.

The Trial Court overruled the objections.

The matter was taken to our Second District Court of Appeals and in an unanimous opinion the Appellate Court there held that there was no prejudicial to the respondent Gallagher and affirmed the Trial Court.

The matter then went to the Supreme Court of our State.

Leave having been granted for the appeal and they in turn found that the utterances that were made by the respondent to Sykes on July the 3rd were inadmissible because the parole officer had failed again to warn the respondent of his rights under Miranda --

Unknown Speaker: Mr. Jacobsen?

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: I am looking at the opinion of Supreme Court at 817 of the petition for certiorari and the opening sentence is the question presented is whether testimony concerning statements made by appellant to his parole officer was received at trial in violation of appellant's privileges against self-incrimination.

As guaranteed by Section 10, Article 1 of the Ohio Constitution and the Fifth Amendment of the United States Constitution.

On what did the affirmative answer to that question that there was a violation of the appellant's privilege against self-incrimination rest on a violation of the Ohio Constitution, of the United States Constitution or on both?

Mr. Herbert M. Jacobson: The Supreme Court in our State indicated that it was both.

They did not use or.

They said that was a violation of rights of self-incrimination guaranteed by Section 10 Article 1 of our Constitution and --

Unknown Speaker: So we are viewing as a violation of both?

Mr. Herbert M. Jacobson: It is a violation in my opinion of both not one without the other.

It is a violation and the Court specifically stated it was and the Fifth.

Unknown Speaker: My question is the Jurors Ohio Supreme Court hold that it was a violation of both constitutions?

Mr. Herbert M. Jacobson: Yes, both.

Unknown Speaker: Then now you are out of court.

Mr. Herbert M. Jacobson: No sir, because Oregon versus House indicated that holding --

Unknown Speaker: What jurisdiction do we have?

Mr. Herbert M. Jacobson: Under the Fifth Amendment and under the Due Process clause and the Fourteenth, two.

Unknown Speaker: No, no, no.

When a State Court decision rests on both State and Federal grounds, are we not without jurisdiction to entertain?

Do you feel?

Mr. Herbert M. Jacobson: No the Supreme Court of Ohio did not use the word 'or', it said 'and' it was in violation of the Fifth Amendment to the United States.

Unknown Speaker: Well, that is exactly my point, then you are out of Court.

You do not belong here.

Chief Justice Warren E. Burger: In other words, is there an adequate state ground for the decision of the Supreme Court of Ohio which you challenge?

Mr. Herbert M. Jacobson: No, we are challenging the application of the Fifth Amendment to the United States.

Unknown Speaker: Is there also not a state ground which reached the same result put in another way?

Mr. Herbert M. Jacobson: Well it reached under Section 10 Article 1 of Ohio --

Chief Justice Warren E. Burger: Well, is that not a --

Mr. Herbert M. Jacobson: Yes, Mr. Chief Justice?

Chief Justice Warren E. Burger: -- is that not an adequate state ground?

Mr. Herbert M. Jacobson: No, in my opinion it is not because it makes the state and agreed party for purposes of --

Unknown Speaker: For purposes of duty or the Supreme Court of Ohio to enforce and apply the Ohio Constitution?

Mr. Herbert M. Jacobson: Of course it is their duty to apply that.

Unknown Speaker: They applied it here, did they not?

Mr. Herbert M. Jacobson: They applied it and also under the grounds of the Fifth.

Chief Justice Warren E. Burger: They did apply it?

Mr. Herbert M. Jacobson: Yes.

Chief Justice Warren E. Burger: And concluded that under the Ohio Constitution, this was the proper result as well as under the Federal Constitution?

Mr. Herbert M. Jacobson: Yes, but we are also going under the jurisdictional question as issued in Oregon versus Hass which indicates that the State is an agreed party for the purposes of review to this Court.

Justice William H. Rehnquist: But only if a Federal question, if it we were to decide in your favor on the Federal question and say, no Miranda does not require this and send this case back to the Supreme Court of Ohio, your response to Mr. Justice Brennan’s question suggest to me that the Supreme Court of Ohio would say, well, we were wrong on that one but we are the final judges of the Supreme Court of Ohio Constitution and the conviction is nonetheless reverse.

Mr. Herbert M. Jacobson: I hold that we are here rightfully under the Oregon case.

We are here rightfully under the fact that the Supreme Court of Ohio stated that it was also a violation of the Fifth Amendment of the United States and also under the Due Process Clause of the Fourteenth which we claimed.

Unknown Speaker: (Inaudible) Did the Court of Ohio felt compelled to construe its own constitution the same as the Federal and that the Federal cases forced them to construe their constitution this way?

I do not see any evidence that has been into that effect.

Just as Justice Rehnquist said, if we reversed here, it would still be standing the judgment of the Ohio Court that this procedure violated the Ohio Constitution.

We have no power to overturn that.

That judgment has already been entered.

That judgment is not here.

Mr. Herbert M. Jacobson: Well, U.S. versus Deaton also indicated that they indicated in their opinion and “United States versus Deaton certiorari was denied but it said that squarely confronts the precise question” and there there held that the Miranda warnings having not been given they predetermined in deciding the Deaton application they decided that--

Unknown Speaker: Do not feel too badly we are the ones who granted the petition for certiorari.

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: And maybe may I suggest that perhaps this is not as simple as some of us might have initially thought.

My brother Brennan read you that first paragraph, and particularly the last clause of it.

But then the very next paragraph says, the opinion of the Court of Appeals and the brief of Appellees cite cases from other jurisdictions which have considered this question.

Now how possibly could other jurisdictions have considered the question of the validity of what happened here under the Ohio Constitution.

Mr. Herbert M. Jacobson: They could not Your Honor.

It has to be under the Fifth Amendment to the U.S. Constitution.

Unknown Speaker: (Inaudible) Supreme Court to tell us whether they rested that on the state constitution?

Justice William H. Rehnquist: Well, you presumably have a number of points to make and whatever disposition the Court makes of the matter ultimately, If I were in your position, I do not believe I want to be in the position of voluntarily surrendering it.

Mr. Herbert M. Jacobson: Well, I am not Your Honor.

We feel that we are rightfully here.

Justice William H. Rehnquist: To be granted certiorari?

Mr. Herbert M. Jacobson: That is right.

Justice William H. Rehnquist: We said over here?

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: Unanimously.

Justice Thurgood Marshall: The only problem I want from you is one case that you have to support a case of this Court.

Mr. Herbert M. Jacobson: Well, US versus Deaton indicated that what was a Federal question.

Justice Thurgood Marshall: Federal question as to whether it is on a state end, Federal ground?

Mr. Herbert M. Jacobson: No, that it was only federal because backs that up by holding that the state is a proper agreed party.

Justice Thurgood Marshall: Well, I want the case.

Mr. Herbert M. Jacobson: It is Oregon versus Hass.

That is 95 Supreme Court 1215 cited in 75.

Justice William H. Rehnquist: But that was in the context of contention that if a State Court ruled against the state, the state had no right to come to this Court even to assert that the State Court had been wrong on a Federal ground.

The suggestion here made is that the State Court did rule against you just on the Federal ground but also on a state ground.

Mr. Herbert M. Jacobson: Well, all this Supreme Court of Ohio did was to cite Federal law and based on Federal law is why they came to that conclusion, and that is so indicated in Deaton. Deaton is a Federal case and that is the very case upon which they rested the basis and foundation of their reversal.

Unknown Speaker: Let me ask you this Mr. Jacobson.

We confused you and ourselves sufficiently already, so would you leave that a little bit?

I am familiar with the Syllabus Rule in Ohio and I checked the Ohio State reports and find that the syllabus has the footnote, the head note as reprinted on page 13, Appendix A of the petition is precisely the syllabus as appears in the Ohio State Reports.

That is the law of the case.

That is the law under Ohio.

The opinion is just something extra.

There is not a word of the state or Federal Constitution in that and indeed in the italicized language above, this is said to be the law of criminal law and of evidence not constitutional law at all.

But the significance if any, as that has.

Mr. Herbert M. Jacobson: My only answer is that the state then so ordered by the accused to his parole officer became the vital issue in the case under the Fifth Amendment upon which Miranda is wholly based.

Chief Justice Warren E. Burger: And it would appear that the man who wrote the syllabus and the judge who wrote the opinion did not talk to each other very much about this case.

They are the same people.

They are the same man unless it has changed since my father was a member of that court.[Laughter]

Mr. Herbert M. Jacobson: Well, the Supreme Court of Ohio in making its ruling in which they did reverse, indicated in their finding that there was an inherent compulsion in the parole officer-parolee relationship.

Our feel and position is that we do not believe that this is to be consonant with the Fifth Amendment principles and that is the reason we petitioned for the writ through this Court and that is the basis in my judgment upon which it was granted.

Now, basically, one of the questions involved here is whether the principle of Miranda under the Fifth Amendment to the Federal Constitution should be extended or not.

Now, it was Miranda itself that made applicable under the Fifth Amendment to the area of confessions obtained at a police station.

And this had formally always been an area where the reliability of confessions and the principle of voluntariness as developed by this Court, were fashioned under the Due Process of the Fourteenth Amendment.

The Fifth Amendment speaks of compulsion and the witness may not be compelled to testify against themselves and that would apply to the area of the Courtroom.

So when Miranda came out and said that to circumvent this compulsion idea as a necessary component for the usage of the Fifth that the atmosphere was inherently compulsory and therefore the Miranda warnings were developed in the famous case of Miranda versus Arizona and that automatically now creates compulsion when these statements are not given.

So, it takes statements which have been obtained from an accused, a statement which is purely voluntary, a statement which is reliable and truthful and stands the test of Due Process under the Fourteenth Amendment, under the theory of voluntariness.

It takes it out of that area of the Fourteenth and places squarely under the Fifth, because Miranda says so and I feel that this is really an arbitrary artificial test.

To say that just because Miranda is not cited or there is a failure to give the full panoply of rights, which otherwise would be a voluntary statement without Miranda and now it becomes a compulsory statement, compelled by the accused to be made just merely because of the failure of given the warnings.

I am re-arguing Miranda because I think the test there is that as such that I will tie it in in later goes into -- Miranda first took it out of Courtroom into the jail house, where statements are made.

They then have indicated our Supreme Court of Ohio that we are now taking it out of the jail house and we are putting it into the area of the parole officer-parolee relationship and that we are in a new area --

Unknown Speaker: The interrogation here was in the jail house, was it not?

Mr. Herbert M. Jacobson: The interrogation was in the jail house.

Unknown Speaker: And it was about a crime.

It was about a robbery.

Mr. Herbert M. Jacobson: That is right.

Unknown Speaker: And suppose that immediately after the parole officer left, a tax investigator showed up and wanted to talk to him about some tax crime of his and he interrogated him without any Miranda Warnings and then what he said was offered against him in a tax prosecution.

Now that is Mathis, is it not?

Mr. Herbert M. Jacobson: Pardon me.

Unknown Speaker: I suppose you would argue well, he had been given Miranda Warnings once and that is enough.

No matter who was interrogating him?

That is one of your arguments is it not?

Mr. Herbert M. Jacobson: I believe in that case, the Internal Revenue agent went to the penitentiary and talked to the individual then.

Unknown Speaker: He went to where he was in custody.

That is no question.

He was under restrain.

Mr. Herbert M. Jacobson: Yes.

But the point is that an Internal Revenue agent is still one who was trying to seek out, trying to find where fraud may be involved, trying to see whether or not he can file charges.

He acts in the same capacity as a policeman does.

Unknown Speaker: Well yes but this parole officer is the one who asked this man about the robbery.

It was not any volunteered statement.

Mr. Herbert M. Jacobson: He asked him his question about the robbery.

They had a conversation and --

Unknown Speaker: Well but he asked him about the robbery did he not?

Mr. Herbert M. Jacobson: Yes, that is right and we say that he was not --

Unknown Speaker: And he told somebody else what the answers were and namely the prosecution and they put him on a stand.

Mr. Herbert M. Jacobson: That is right.

Unknown Speaker: As the record show, whether Sykes knew at the time of this interview with the parolees that he was likely to be a witness in the case?

Mr. Herbert M. Jacobson: Not at that particular time, no.

Unknown Speaker: Does the record show whether Sykes had customarily testified in cases involving his interviews with his particular parolees?

Mr. Herbert M. Jacobson: No, he did not.

This was his first exposure as a witness in criminal matters, first exposure being called in to testify in any of his work as a parole officer.

He was subpoenaed just hours before he testified.

Justice Thurgood Marshall: Is that in the record, that this is the first time he ever testified?

Mr. Herbert M. Jacobson: Yes, you will find that in our appendix.

And it further indicates that he was just notified hours by subpoena before he took the stand.

This was an unusual incident.

Unknown Speaker: (Inaudible) What the respondent said to Sykes, how did the prosecution ever know?

Mr. Herbert M. Jacobson: The statement originally given by the respondent to the police officials.

Justice Thurgood Marshall: What did parole do?

Mr. Herbert M. Jacobson: It was later suppressed.

Unknown Speaker: well, I understand that, but how did they know when he said there was a parole officer?

How did the prosecution know what he said to his parole officer on the second visit?

Mr. Herbert M. Jacobson: The parole officer had indicated that later.

He was one of the officials at the county jail.

Unknown Speaker: What for?

Mr. Herbert M. Jacobson: He just said he had a talk with him and he indicated the he had admitted the offense and later when the suppression statement was --

Unknown Speaker: Well, then what is the doubt about what would happen then, when he said that about being a witness?

Mr. Herbert M. Jacobson: Well they did not indicate at that time that we are going to call him as a witness, at least the prosecution did not until the statement was suppressed.

Justice William H. Rehnquist: I supposed if the statement of the police had been admissible evidence, there would have been no need to call a parole --

Mr. Herbert M. Jacobson: That is exactly right Your Honor.

Yes, it just became a matter of necessity following the court’s ruling in suppressing the statement that had formally be given when the officers took the Miranda Warning from him and he signed the Miranda Warning indicating that he knew his rights completely and at that time then waived on.

The position, if the Supreme Court of Ohio and the position of perhaps three other states are upheld by this Court, then the question is what exactly are we going to put in the way, future parole officers-parolee relationships.

Now, here we have Miranda basically referring to a policeman, a law enforcement officer and in some states they argue that a parole officer is a law enforcement officer.

Well, we challenged that statement because parole officers are not in the field of general interrogations, in general investigations.

They are not there to put an individual into the jail.

Their job begins when the policeman’s job ends and that is the way it should be.

At that point, it is the duty of a parole officer or a probation officer to maintain a dialog with his parolee, to maintain a cordial relationship, to try to see if he can help him get back onto the road where he will stay out of the jail house in the future.

His job is to try to reform, to help this man.

Now if we say that he is a law enforcement officer and therefore come under Miranda and that every time he sees his parolee, we are going to put up a wall between them, a wall of hostility then the entire relationship, the entire area of a parole officer and a parolee is endangered.

Unknown Speaker: (Inaudible) a great deal of difference whether you call this officer a law enforcement officer or not, we know he was a parole officer; he had certain law enforcement authority.

He had the right to carry a gun under Ohio Law.

Mr. Herbert M. Jacobson: Yes.

Unknown Speaker: He has the right to arrest the parolee under Ohio Law.

He had no right to arrest non-parolees as I understand it.

Mr. Herbert M. Jacobson: That is right.

Unknown Speaker: But does it make any difference in your case?

Mr. Herbert M. Jacobson: Yes, we feel that a parole officer is separate completely from the type of work, from the background training he gets from his position, as day as to night.

We say that the fact that he is authorized to carry a weapon as you say yes.

That is given to him.

There may be occasions when his parolee could be abusive.

But if a parolee becomes abusive, I say then that the parole officer has failed somewhere and he knows that, his job is not to make use of his weapon.

His job is not to go out and see if anybody escapes that he is going to shoot them down.

That is a policeman’s job.

His job is to rehabilitate, keep the individual out of jail and not put him in.

Unknown Speaker: (Inaudible)

Mr. Herbert M. Jacobson: That is true in some of the states.

I think Kansas, Missouri, California and all that.

Unknown Speaker: (Inaudible)

Mr. Herbert M. Jacobson: It is now since the Supreme Court ruled few months back.

We also have that in the probation process, statements maybe made though no warnings are given.

This is not a novel idea that a parole officer may talk without a prior warning.

Chief Justice Warren E. Burger: Mr. Jacobson, is not the Supreme Court of Ohio, the final arbitrar of Ohio law?

What it means?

Mr. Herbert M. Jacobson: Or not where there is a violation of Federal Constitutional rights Your Honor.

Texas, Florida, if I may name a few states, South Dakota, New York, Colorado, they have all indicated that no warnings are required of parole officers.

They put them in a different field.

A parole officer goes to school with his formal training.

It is contrary to that of a policeman.

Miranda has to do with police work, police tactics.

The jail house atmosphere, the overbearance of the will, that is not true in a parole officer’s --

Justice Thurgood Marshall: Does that apply to a parole officer?

Mr. Herbert M. Jacobson: It has ruled that in reversing the Court of Appeals that Miranda applies to a parole officer, yes.

Justice Thurgood Marshall: My question is this, can the Supreme Court of Ohio say nothing more, say that this applies Miranda rulings must be given by parole officers at all time?

Mr. Herbert M. Jacobson: Oh, we say that is violative of the rights of the state as in agreed party under --

Justice Thurgood Marshall: As we interpret the constitution of Ohio, a parole officer is required to give the exact same warnings as the police officer.

Mr. Herbert M. Jacobson: No, it is based under Miranda which is the rulings of this Court.

Justice Thurgood Marshall: Why could it not say what I said?

I did not say a word about Miranda.

I said the court says, our interpretation of Ohio Law means that a parole officer must give the exact same ruling, warning as a police officer.

Mr. Herbert M. Jacobson: No, that is not true.

Unless you mentioned Miranda --

Justice Thurgood Marshall: Could Ohio say that Ohio Supreme Court say that?

Mr. Herbert M. Jacobson: The Ohio Court did not indicate –-

Justice Thurgood Marshall: Could it?

Mr. Herbert M. Jacobson: I fail to see that if had any right to say that.

Justice Thurgood Marshall: Why not?

The Supreme Court of Ohio cannot interpret its own constitution?

Mr. Herbert M. Jacobson: But its own constitution Your Honor is based upon the Fifth Amendment rights as established by the Miranda case and we cannot avoid that.

Justice Thurgood Marshall: (Inaudible) to Ohio Constitution is the Supreme Court of Ohio not you.

Chief Justice Warren E. Burger: Your time has expired Mr. Jacobson.

Thank you.

Mr. Schwarz before you get on the way, let me ask you a question.

Did you file an opposition’s petition for writ of certiorari here?

I do not have one and I --

Argument of Jack T. Schwarz

Mr. Jack T. Schwarz: I do not believe I did your Honor.

Excuse me.

Chief Justice Warren E. Burger: And in your brief you do not raise the question that Ohio has decided this case on the basis of the Ohio Constitution and I suppose that is because you are following the Ohio rule, perhaps that the syllabus is the controlling law?

Mr. Jack T. Schwarz: Mr. Chief Justice and may it please the Court.

Chief Justice Warren E. Burger: May I get an answer?

Mr. Jack T. Schwarz: Yes sir, I am going to answer that right now.

Chief Justice Warren E. Burger: All right.

Mr. Jack T. Schwarz: I believe I was appointed --

Chief Justice Warren E. Burger: I have here a copy of the brief of respondent posing writ of certiorari.

Mr. Jack T. Schwarz: I was about to say, I believe, I was appointed and then I filed a typed and Xeroxed brief but I did not file any printed type of response to that.

I did not raise the question of the fact that this case had been decided on a state basis and there was no federal question.

Chief Justice Warren E. Burger: Well, if it is on a state basis, I guess you would say that this Court has no jurisdiction, is that not so?

Mr. Jack T. Schwarz: Yes sir.

Chief Justice Warren E. Burger: We have no power I should say?

Mr. Jack T. Schwarz: Yes sir.

Chief Justice Warren E. Burger: We have no jurisdiction because we granted the writ but we do not have power to construe the Ohio Constitution, you would agree?

Mr. Jack T. Schwarz: That is correct sir.

Chief Justice Warren E. Burger: If the Court should so decide and I emphasize the 'if', that this case should be remanded to the Ohio Supreme Court under the (Inaudible) holding of this Court requiring them, requesting them to state whether they decided this on Federal or State grounds that would suit your purposes, I take it?

Mr. Jack T. Schwarz: Yes sir.

Chief Justice Warren E. Burger: You may proceed if you have anything further.

Unknown Speaker: Or if we should just dismiss the writ because we determined that it was decided on both State/Federal grounds that would suit your purposes even better, would it not?

Mr. Jack T. Schwarz: Yes sir.[Laughter]

Chief Justice Warren E. Burger: I suppose, we have the power to read the opinion and not be bound by the Ohio rule of the law of the case is the syllabus.

What do you say about that?

Mr. Jack T. Schwarz: I think this Court in determining that question has to consider the Ohio.

It is that the syllabus is the --

Unknown Speaker: We held that -- that we most recognized that the Ohio Law, that the law of the case is the syllabus, we held so, in Beck against Ohio.

Mr. Jack T. Schwarz: I might say –-

Unknown Speaker: Still it does not tell us anything on this question, does it?

It did not say a word about any Constitution, State or Federal.

Mr. Jack T. Schwarz: That is correct.

Unknown Speaker: It indicates that this is a question so far as the Ohio Supreme Court goes, the law of evidence and the law of criminal law of Ohio.

Mr. Jack T. Schwarz: Right.

Justice William H. Rehnquist: Is there an Ohio syllabus heading called constitutional law?

Mr. Jack T. Schwarz: Yes there is.[Laughter]

Mr. Jack T. Schwarz: You mean State or Federal, Your Honor?

Unknown Speaker: May I ask you this?

Mr. Jack T. Schwarz: Yes.

Unknown Speaker: I know that the Supreme Court of Ohio itself prepares the so-called syllabus.

Who prepares the italicized language above the syllabus?

If you look at the petition for writ of certiorari in this case, you turn to page 13 which is the first page of appendix A, you will see above the syllabus, italicized language.

Who composes that?

Do you know?

Mr. Jack T. Schwarz: I assume that the person who prints that in the Ohio Bar does that.

Unknown Speaker: The reporter?

Mr. Jack T. Schwarz: Yes sir.

Unknown Speaker: Or the editor?

Not the Court?

Mr. Jack T. Schwarz: The editor and not the Court.

I think the Court writes only the syllabus and the decision.

Unknown Speaker: Well, the syllabus that Court writes and then an individual Justice writes an opinion, is that right?

Mr. Jack T. Schwarz: Yes sir.

Unknown Speaker: I guess, that is the way it is.

Mr. Jack T. Schwarz: I think in this case that they were both written by the same person.

Unknown Speaker: They generally have --

Mr. Jack T. Schwarz: Thank you sir.

Just in any event that the jurisdictional question is resolved in the manner that this Court does consider the case, the chronology of the case I believe there is a little bit other than reported by the petitioner.

The respondent was in fact interrogated on June 22nd 1972 in a small police interrogation room by two detectives and by a member of the probation authority, not the parole authority but the probation authority was confronted with another alleged accomplice who had supposedly already pled guilty to this charge.

Prior to discussing the matter with the respondent, the police did in fact have him execute a Miranda Warning Form and read them to him.

It was subsequent to that, that the police or the detectives in fact obtained statements against interest from the respondent and obtained then by promises of leniency.

As the record shows, the police promised to drop some 20 charges against this individual or would not file 20 additional charges which they could not prove anyhow.

So they in effect gave him nothing for something and got the admissions.

It was not until at the time of trial when the motion suppressed was sustained at the parole officer came into the picture.

I think any discussion involving this can only go back to the Mathis case and that case indicates that any person who is one of the authorities, who may put someone in jail or who may cause criminal prosecution at a subsequent time must in fact give the warnings in the Mathis case, of course it was the tax investigator and there was a subsequent prosecution based on information gained while he was in custody.

I think the rights waiver in this case is entirely in effective in any manner and as much as it was gotten or it was used only as a tool in obtaining a confession rather than as a deterrent to person incriminating him so.

Justice William H. Rehnquist: Well, did the Supreme Court of Ohio hold that the rights waiver was ineffective for purposes of even the police interrogation or did they hold that these man statements were induced by a promise of leniency, those would be two quite different things, I would think.

Mr. Jack T. Schwarz: The Ohio Supreme Court held that the defendant operated under a promise of leniency in accordance with the Trial Court.

The Trial Court also held that.

There was a promise of leniency which made the statements to the police officers, the police detectives inadmissible.

Unknown Speaker: But they were inadmissible then not for failure to give Miranda warnings but for the misplaced promise of leniency?

Mr. Jack T. Schwarz: That is correct after the waiver was in fact signed then the promises of leniency were made and it was subsequent to that, that the parole officer made his first visit to the man who was then incarcerated in the date in jail.

Justice William H. Rehnquist: But why were not the original Miranda Warnings given by the police good enough for the parole officer’s visit?

Mr. Jack T. Schwarz: Because subsequent to that time, promises of leniency had been made to him by the police in order to obtain admissions against interest.

At that time, the promises of leniency operated to vitiate the rights waiver.

Chief Justice Warren E. Burger: What about the facts whether he knew all of what a Miranda warning would tell him?

I thought that is what Mr. Justice Rehnquist was probing at?

Mr. Jack T. Schwarz: I think the --

Chief Justice Warren E. Burger: Having had the warning, why did he need another one if he knew what it would say?

Mr. Jack T. Schwarz: Because that warning had an effect then vitiated and had been made null and void by the subsequent promises of leniency.

Chief Justice Warren E. Burger: You mean that washed it out of his mind?

Mr. Jack T. Schwarz: No sir but I think the decision in Miranda versus Arizona states that even if a lawyer were in fact arrested, he would be entitled to have these warnings read and I assume the lawyer would know his rights to have counsel and remain silent.

Justice William H. Rehnquist: But I do not see how a promise of leniency could somehow erase the effect of previous warning that you have a right to remain silent, the right to have a lawyer, I do not see how that has any connection.

Mr. Jack T. Schwarz: It is my position that the connection is in the mind of the person who has been given the promises, having already made statements against interest that he has no way of knowing what would be kept our the trial.

We will talk to this parole officer and tell him anything.

Justice William H. Rehnquist: Assume that he may have got anther set of Miranda warning under your hypothesis?

Mr. Jack T. Schwarz: Under that hypothesis.

That is only a hypo but no I do not think that is the case. Having been made the promise he would then tell this to his parole officer because the parole officer has the authority, if he does not cooperate to return him to the institution or to recommend that he be returned.

Unknown Speaker: Mr. Schwartz, returning to the Miranda issue, is it your position that whenever a parole officer interviews his parolee and he moves into questioning that relates to another crime that the per se Miranda rule applies?

Mr. Jack T. Schwarz: Yes sir.

Unknown Speaker: In other words, no question whatever as to whether or not the state may have been entirely voluntary, and not freewill under the circumstances?

Mr. Jack T. Schwarz: Yes sir, excuse me, I think in the situation it is even more important that the parole officer gave the warnings because that parolee may rely upon some confidential relationship which we all know does not exist in the law.

Unknown Speaker: It can also be your view, I take it that the parole officer was visiting the parolee in the parolee’s residence in an environment that was not normally regarded as cohesive?

Mr. Jack T. Schwarz: No sir.

No, I think it is out of the in custodial range of Miranda.

Chief Justice Warren E. Burger: Are you aware that in Ohio could parole be revoked for the failure of the parolee to cooperate with his parole officer?

Mr. Jack T. Schwarz: No sir.

Chief Justice Warren E. Burger: It could not?

Mr. Jack T. Schwarz: I do not think it could without a formal hearing and some other justification other than refusing to talk.

Chief Justice Warren E. Burger: Let us assume a formal hearing?

Mr. Jack T. Schwarz: Assuming formal hearing --

Chief Justice Warren E. Burger: Assuming formal hearing it developed that he refused to answer questions of the parole officer about the commission of criminal act while on parole and certainly in Ohio, I would assume that after a hearing, parole would be revoked on that ground, would it not?

Mr. Jack T. Schwarz: I do not think so if that case were pending and ready to go to trial.

No sir I do not think so.

Unknown Speaker: Oh! Yes, but it may be that you would say the whatever the parolee says, this parole officer may not be admissible in a separate criminal prosecution?

Mr. Jack T. Schwarz: That is correct sir.

Unknown Speaker: Let us suppose that the only thing that Sykes' testimony was used for in this case was for revocation of parole, you would not suggest, it was not admissible for that purpose would you?

Mr. Jack T. Schwarz: No sir.

Unknown Speaker: I think that is an entirely different situation.

So you are really saying that a parole officer needs to give Miranda Warnings only when he is interrogating in custody and asking him about a separate crime?

Mr. Jack T. Schwarz: Crimes other than the one for which he is on parole and at which the officer may testify.

Chief Justice Warren E. Burger: Well, is it your view that in the formal hearing on parole revocation, forget about another trial but in a formal hearing on parole revocation that the statements made by the subject to parole officer are not admissible even in the parole hearing, unless he had a Miranda warning?

Unknown Speaker: No, he said they were admissible.

Mr. Jack T. Schwarz: No, I said they would be admissible in that case.

Chief Justice Warren E. Burger: And I misunderstood your response.

Mr. Jack T. Schwarz: But not after subsequent trial for the subsequent trial.

Chief Justice Warren E. Burger: In other words the bar that you want to put up is that the man simply cannot testify in a court with reference to that trial for that particular crime?

Mr. Jack T. Schwarz: That is correct sir.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.