Brief for Petitioner — Watts v. Indiana

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-ROBERT AUSTIN WATTS,

OCTOBER TERM, 1948

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No. 610.

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STATE OF INDIANA, ©

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Opinibn'ef ¢ our! below J. v <

Sesladietion : ok See Ace Tororo

Statement of case Z : 2

Errors relied upon ~ 7. : ——

* Summary of.argument ee & este 3

Argunrent:

I. This Court will independently examine evi. <-

dence in support of élaim. of violation of

rights protected by Unifed States Consti- o. |

‘tution where sueh elainy i is prope rly raised é

wid denied by State Court a

Il. The Supreme € ourt of Indiana erred in ae

hying petitioner ‘he equal protection of \\

the laws -guaranteed- by, the Fourteenth

Amendment to the Constitution of -the.

‘United States by affirming: his convietion

-. based upon an: indietment returned by a

grand jury from which all «qualified Ne-

groes were systematically excluded solely

because oly ace or color | a

“HL. The lower court erred in affirming :con:

-vietion based upon confession obtained by

State officers through use of forge, duress ae

arid intimidation Ue a

Conclusion, . AN ree er. eo ss “18

PaBue OF . C ASRS

dele rafty. Te mnessee, 822 U. S. 143 : oe 2 3

Rrow wy. Mississippi, DOT. U. S. 27S te 4

Bush vy. Texas, W7 US. 110 mi

Cartery. Texas 177 U.S. 442 me 4

Chambers vy. Florida, 309 U.S.227. ae

| Hales. Kentucky, 303 U.S, 613 © ‘a . u

* Halewv. Ohio, 322 U.S. 596. 7. .°. ibe oe

Haltins v. Oklahoma; 295- BS. 394. ‘$ 1

' Lisenba vy. California, 314 U. 8.219 ° 0 3.

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' Mélinahi v. New York, 324 u. $2401

Martin v. Texas, 200 &. S. 316 Se

* Neal v. Delaware, WU, 8, 370.

Norris v. Alabama, : 294 U.S. 587

Fatterson v. Alabama, 294 &.S. 600

. Patton vi M ississippi, 332 U.S. 463

Pierre v. Louisiana, 306 U.S. 354

~ Rogers v. Alabama, 192 U.S. 226° —

Smith v. Texas, 311 UL S.128.

S.:

Strauder v. W. Va. W0-U~ 303

Ward v. Texas, 316 U. S: 547;

‘Srarvres Crrep :

Burns, ‘Ind. Stats, 1942, Repl. sec. 9- 704

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SUPREME COURT OF THE UNITED § STATES |

| OCTOBER TERM, 1948 _ rie

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“ROBERT AUSTIN WATTS,

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STATE OF:INDIANA, _ wo

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BRIEF FOR PETITIONER

Opinion of Court Below

~The opinion. of ‘the Supreme Court of Indiana has not

been reported officially but appears at Pages 37 to 43 of

~ the printed record. Petition for rehearing was denied on’

the 11th day of January, To, without opinion. (R. 42) .

os)

Ti urisdiction

. Joleen of the Cireuit Court of Shelby Conny, Indiana,

was entered on the 28th day of January, 1948 (R. 30-31); + -

‘affirmed by the Supreme Court of: Indiana on the 20th déy of .

nee, 1948 (R. hal de and petition. for rehearing was, over-

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' Page re ferences R. —” are té pages in 1 the printed somal. Sage ref-

erences “O. R. = are’ fo pages in the original record.

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ruled on the llth day of Jannary, 1949. (R.42) Petivion for

certiorari to review tlic judgment of the Supreme € ‘odet of

the State of Indiana affirming the conviction was filed\on

the 14th day of February; 1949, based .upon 28 United

States Code, section W207 and. was “granted by this Court \

on the 28th day of Febr uary, 1949. (R. 42)

gees | Statement of the Case. ae ee

Petitioner, a young Negro, Was arrested by law-enforee-

ment officers of Marion County, Indiana, on the 12th day. of .

Novemberg 1947, upon suspicion of crime, (O. R. 360, -

728) Subsequently, without prior hearing, he was indicted

by a grand jury of Marion County for the alleged murder

of Mary Lois Burney, a white wWornan. (R. 1) After

arraignment on the 22d day-of Noy ember, 1947. (R. }), a

motion for change of venue was gr — (O. (R. V 5) to Shelby

County, Indiana. = + OT gs |

Prior to trial, petitioner moved to quash the: indictment.

returned against him upon the ground that Negroes were

1 sy: stematically excluded from grand jury service in Marion

County solely because of ‘their race or color. (R. 2-3)

Petitioner further moved to suppress certain alleged con-’

fessions obtained from him by state officers throuzh the use -

of force, duress and intimidation, (OG. R.32-35) and sub- |

sequently abjected to the admission into “ev idence of sueh ;

alleged confessions. (R. 33- 34) The. trial, court overruled

‘these: motions (R. 4, D7) and denied petitioner's ‘motion for

anew trial i in which these @rrors were specifically preserved.

“(R. 31-34) U pon apneal to the Supreme C ourt of Indiana,

these two substautial constitutional questions were raised

(R. 34-36) and decided adversely to petifioner by the said

{Court through affirmance of the. Pid 08 {R. 37-42) and

“denial ‘of a petition for Fehearing (Ri 42). | oe 7

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Phe material facts concerning the Pr oe of Negroes. ;

“from jury service-and the method of obtainiig the alleged

confession are set forth. and dise ussed 4 in the argument

“het rein. |

Errors Relied Upon iss

x . tists » i ow |

THE COURT ERRED IN AFFIRMING THE CONVICTION OF:

PETINIONER, A NEGRO, BASED UPON AN INDICTMENT RE-

TURNEQ BY A GRAND JURY FROM WHICH NEGROES HAD

BEEN, $

RACE ANDCOLURIN VIOLATION OF THE EQUAL PROTEC TION

CLAUSE, OFTHE FOURTE ENT H AMENDMENT.

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THE COURT ERRED IN AFFIRMING THE CONVICTION OF

PETITIONKR BASEN.UPON CONFESSIONS OBTAINED BY STATE

OFFICERS THIROUGHN. THE USE OF FORCE, DURESS AND IN:

TIMIDATION INV IOLATION OF THE DUE PROC ESS DEay SE

OK THE FOU RTEENTH AMENDMENT. |

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Summary of Argument 5 ‘

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Where substantial federal ‘questions, have been raised

and passed-upon in a state court, this Court ‘will ‘make an

independent examination of the ey idence: Haley v. Ohio,

332 US 'S. 596; Patton v. Mississippi, 832 U.S. 463: sree

ski. New York, 324 U.S. 401; ‘Ashcraft v. Tennessee, 322

U.S. 154; Ward v. Texas, 316. Bez S. 547; a v. ae

fornia, 314 U.S. 219. —_

erie 3 3

The -lower court cred i 1 affirming the edaviction of

petitioner based upon an iadlietmnedi returned by-a grand

jury from which Negroes were systematically ~exeluded

solely because of race or eolor.

A. Evidence adduced at hearing upon. motion to quash

clearly established systematic exclusion of Negroes:

ESTEMATICALLY EXCLUDED SGLELY BECAUSE OF ~~

4

_F ‘atton v. Mississioni, supra; Smith ‘ Ti wes, 311 U.

. 128; Patterson v. See are 294 U.S. GUU; Rates .

Alabama, 2 294 U. OST ;. Pogers ve. dichaee, PUL S

226; Carter wv. ends WeUL NS 442; Bush ve. ang

107 U8. 110, 122; Neal v. Delawari, 103,U. S. 370;

wtrauder-v. West Virginia, 100 U.S. 303.

Be Generalstateménts of good faith by state officials |

were wholly insufficient to overeome ‘evidence of long-

continued exclusion of Negroes from jury service:

Patton v. Mississippi, supra, Smith v. Texas, supra.

os aa ues . nae ILI ~

* The lower court erred in affirming the conv jection of peti.

_ tioner based upon confessions obtained by state officers

"through use ‘of force, ‘duress. and intimidation.

a Ciréuinstancen surrounding the obtaining of the |

alleged.confessions’ herein clearly establish their invol-

untary nature. -~ cd ote |

B. Use of such chafeenitn. and afiirmanée of conv ie-

tion based thereon violate the Fourteenth Amendment:

Haléy v.. Qhio, supra; Malinski’v. New York, supra;

“Ashcraft v. Tennessee, supra; Lisenba v. California, .

supra; Chambers v. Florida, 309 U. 8. 227; Brown v.

Mississippi, 290 U.S ae

oe “ARGUMENT. :

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Thjs. Court will independently -examine evidence in sup-

port of-claim of violation of rights protected by United

5 States Constitution where such claim is properly raised

and denied ‘by State Sourt.

Throughont the proceedings in the courts of Indixna,

petitioner claimed that rights protected by the U nited © States

Constitution had been denied him aang don giles stematie

exclusion of members of his‘ race from grazfd juries in the

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county where the indietment returned’ against Iiiut was |

found. (R. 2-3, 31, 34) P entioner further claimed through-

out the ‘procecdiigs ihaf the tse of confessions obtained:

through the use of foree, duress and intimidation bay state

Gfficers Violated rights eudr: anteed him by ‘the Fourteenth

~ Amendment.’ (R. a..3 1, 33-34, 35-36) At. each stage, these

rights were denied by the Indiana state courts. This Court.

will examitie and appraise the evidence as it relates to peti-

tioner’ < constitutional rights, Smith v. Texas, supra, at 130,

: sO as to determine the v ‘alidity of the claim, Lisenba v. Cali-

fornia, supra, at 237,,and whether such rights w ere denied

- either in express terms or in ‘‘substance -and ‘effect.’

Norris v. Alabama, supra, at O89; Ward v. Teras, supra,

Maluaskt v. New York, supta; As sheraft v. _ Teniessee, supra;

Hale yV. Ohio, supra; Patton v. Winsissions supra.

AL

The ‘Supreme Court of Indiana inna in denying aie:

tiongr the equal protection of the laws guaranteed by the

Fourteenth Amendment to the Constitution of the United |

States by affirming his conviction based upon an indict-

ment returned by a grand jury from which all qualified”.

. Negroes were systematically exciuded solely because of:

~ race or color.

An independent eXamination .of all of the evidence ad-

~ ducéed at the hearing upon petitioner’s motion to quash will

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reveal the following uncontradicted facts:

. That no Negro served on the grand jury that indicted |

Miitioner (R. 21) : ’

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. That for at least twenty- five to thirty yeats priof to .

the indictment of petitioner, no Nezro had served .on a

grand jury in Marion (¢ vounty. (R. 4, 7, 8, 10-11, 12, 17, 21,

27, 30) ag eg RE

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That Negroes constituted at lorist one- meee of the

cone eral population ‘of the county, in which petitioner, wee

indie fect. (R. 45,7 i, 12,. 18y

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4. That: thers. were many Negroes in Marion County

qualified for jury service, (R. 4, 6, 8, 10; ;

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“.> Petitioner malled Six witnesses in sappart of. his motion,

who testified. as ‘follows: | .*

“Seotty. Scott, a newspaperman and resident of “Marion fo

: County for seventeen. years, testified that of a general .

-population of approxiiately four: hundred and ay. six

thousand (486, 000); there are approximately: sixty-five

‘thousand (65, 000) Negroes” and ihat ‘to his knowledge

__ there are Négroes. who are ‘property owners and competent:

* to serve on: grand, juries, ‘though he does not know of any

Oe ‘asion: when Negroes serv ed on a grand jury of that

“couuty, (R: £6) ° ' Cap geese ae ie poate Be

Tomas hewin,: a local new spaperman, vouident of Mar-

on, ( ‘ounty for twenty- one (21) years, testified that he had |

cap 3

no. know ledge of any ‘Negro who liad served. on ay erand

jury in the county duri ing that time and confirmed eae e.above-

jquoted population, figure? . (Re 7). aa o

William. S. Henry, resident. for’ forty- je (44): year sie ¢

7 anid a member of the B: ar of Marion t ounty for thirty- eight ;

(88) yeas, -stated-that a total | of twelve eri and juror s Serve:

eagle Sear; that | ie knows of no Negro-who: served i in suf a’

_seapheily daring the ast’ ‘twenty- ive ( (25) years, though. a:

* knows ~ Negroes whe. are residents, citizens, and property

‘oymers of the ott. (R. er v Pon. being examined, by.

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wit! aqninqhelacimamians ‘ . : - ar £ j

Se 216th Cénsia. tepirin p opulation; rad ‘heii Marion’ County, In-

_ diatia’s general population figures to be: Total: population, 460,926,

“Wihite;. $0000 sNegro, 51 He. asd 21,/ {part 2 , Vol. IE,

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the Court concerning Nezro grand: jures s, ‘the following

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question and answer were made;

“Q. Could ihe re. have heen some ci lled and y you rot

know about it? ;

“A, No, they couls hi? { have been, Judge, | ~—

heen a law yer-t! 1e re. for thirty-eight en and | would -

have particularly known that. had tlic re been.” (R. 9)

Al M: agenheittier, Sharitt 7 -Marioii x Younty, resident

thereof for twenty-five (25) years, testified that he had no °

knowledge of any Negro serying on a grand jury, of . the

~ coulity forthe last twenty-five (25) years, though he is 2

-well-acquainted ‘with a “Jarge number of colored people’ 3

who OW]: Pet 1 estates (R. 10-2) a sear

Glenn W. Parish, Deputy Clark of Marion County, resi-

+ dent thereof for fifty ( x) veats, testified that during the last

tw enty- five (25) or thirty ( 30) years, he knew of no occ: sions

where a colored person had served ona eraud jury, though

he knows that a number of colored persons vote and own

_ property in the- county. He further stated that-the ae

survey of the Chamber of Comiuercee showed. that_of

population of about four hundred and sixty. fanaa

(460,000) ‘persons, ‘Sixty-five thousand (65000) thereof were.

colored. He also testified that the jury commissioner ‘write :

out the names of pr ospective jurors from the tax duplicates,

which do ‘not indicate, the race of the taxpayer, place the

- Tames in a box’ and that ther eafter the County Clerk actu-

Neue draws the names out-of the box and writes them down | in

the order of drawing. -(R. 12-17)

1 redirect examination, this: witness . anled 4 that“out

_ of Seventy: -five:(75) names drawn for the ‘frand jury -venire

“at the. term. of Court at which: petitioner was. indicted, six

- (6) jurors were. chosen, none. of whom was a Negro. (R. 14)

Hle fuither ; stated that thei ‘rosecutor of the. county helped

_ the. judges select the jurors (R. 15) and advised the ourt

© thereon} Mee aa a

Judson L. Stark, prosecuting attorney of Marion County:

resident thereof: ‘or twenty- five (35) vears, testified as to

the population’ rativ of the. county and thal names of pire

spective jurors are drawn from the} jury box without regard |

to whether they’ are white or colored; that. the names drawn

are Ww ritten down in ‘order until seventy: fix: e (79) have beens

so listed, this number then’ constituting, the prospective

grand jury list; that subpoenas are then issued to suc aT

persons and served by thie § Slieriff; that Upon respouse to,

the subpoenas, the prospeetiv e jurors are questioned hy the

judge and that the prosecuting attorney ‘from time to”

time looked up the qualifications and ran the records en

names so as tobe sure we don’ t.get anyone with any bad

background in there.’*; that of three Jnindred. (800) persons

serving on grand juries ‘in the county over the past twenty-

five- (25) years , he does not ‘know of any Negro having’ SO°

served and that there was no Negro on the grand jury v that

infdicted: petitioner. (Re 17-2)

_ This testiniony wes sufficient: to make a prima facie

showing of systematie exclusion of Negroes from gr anil

jury service in Marion: County solely: because of race or

color. Neal v- Delaware, s supra; Norris’ v. Alabama, supra;

Pierre v. Louisiana, 306 U.S. 354; Patton v. Mississippi,

supra. As, stated by this € ourt in the Patton ease, supra:

, “When such: a ‘showing w was made, it became u duty

of the-state to.try to justify such exclusion as having

beea brought about by some reason other than racia!

discrimination." ~ Saree wee - 5

“The State of Indiana failed t to sitstain the burden. Two:

witnesses were called by the «state in opposition ‘to the

motion to quash. One of these witnesses was | the prosecut-

‘ing attorney of meutod of Mati The ather witness wis the ,

chief deputy prosecuto of Marion County. _

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The first wituess, Judson J. Stark, prosecuting atlorney,

hard a record, of Gowty pubite SerY we f doa Iie and claimed

familiarity with the method of selection of eranad juries in

Marton ‘onnty. He testified: There never has been uni)

dise virnination ar effort to keep Hanes cut of the box or

keep any colored: pe reon in Marion: ‘ounty fron serving on

either Grand or Petit Jury.’ (R28. * He further. teatified

that: °° 2 #eliere that three were e alled”” in response toa

question as to&Wwhether any Negroes were ¢ alled on.thé grand

jury venire within the last three years. ‘RR. ae (It: ilies

ours. ) , ‘os9

On cross-e asenaition, he cst te “l that atthe tine of draw

ing the erand jury that indieted pelitionér seventy five ive *)

Me mes were drawn Prom tie jury box and of this nunaber

* some were Negroes (R26). However, when it was finally

finished the jury didn’t have theré was no colored person.

on the eragd jury "aR. 96 27). Heshould also be noted

that this witness de nied that he was present whe aT the Hanes

were drawn, A(R. 20, 29.) .

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Glenn W. Funk, chief deputy pirosec utor “of Marjon ¢ ‘ounty

sinee Mareh, 1947, testified thi atthe hames-of two Negroes

were drawn at thre January, 1948, term. (R. 29.) - This term

‘followed the:term of ( ‘ourt at which‘the grand jury indie ting

petitioner was: drawn. -The witness further stated that no

Nowro had served on a grand | jury in Marion ¢ ‘ounty daring

"his. residency the ‘re since 1027. OR. 30.)

‘In considering this is evidence, the Supreme Court: of the

/State of Indiana found: ** There was no proof of sVs-

ing therefor on jhe testimony of Glenn W. Funk to the effect

that the names ‘of two Negroes were draw nat the January,

1948, term of tlie grand jury. Apparently, ‘tlie Court! en- /

tirely overlooked or discounted. the fact recognized by the

‘trial court that such term follow ed the court term at which "

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| “ine ie effart to exclude Negroes from jury serv ice 7, rely-.

pth : 10

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petitions r was indie ted and accordingly such evidence had

no hearing npop the motion to quash. 7 =

Further, the Supreme Court) of Pndiana tielted i its,

opinion upon tlie general assertions of Jditdson d. Stark sind

Glenn W. 1 ‘arish to the effect that there Was ne dise ranidtig

tion tn the -seleé tion and drawing of ‘names for egy ice on

eroad juries. (i. FS8,) re

»Sucis general axsertions af nondisceriniaiation Caniot de

considered adequate justification for the complete exclusion

~- of Negroes overa pe ‘riod of twenty tite to thirty ve ays frome

erand: jury service in Marion County. As Stated Te this

Court in Neal v, Delaw are supras Pere

“We think: that this evidence failed. to rebut the |

- strong prima facie case which defendant had wade. -

That showing as to the tong continued exclusion of

Negroes froin j Jury service, and as to the many qualified

for that service; could not be met by sere generalities.

If, in the presence of sueh festimony as defendant ad-.

duced, the mere general assertions hy officials of their.

performaige of duty were to he ¢ acvepted as er adequate

justifie ation for the complete exclusion of Negraes from.

‘jury service,’ the constitutional provision— adopted

with special reference to their protec ‘tion—would- he but

a vain and illusory requirement.’7° |

Cnigets

_ Apparently, the Supreme Court of Indiana **. 2°. re.

‘warded as irrelevant the key fact that for thirty years or

nore no Negro had served on the grand . ... juries: This’

omission seriously detracts from the weight and respect’ .

that We would otherwise vive to its cone tsion | die review mg

tlfe ft facts, as wemust ina constitutionaf “question like this.*’

Patton v. Mississippi, supra,

I4 is well settled that a Negredefendant is denied por

protection ef the liws contrary to the Fourteenth Nmend-

“nie nt to the: Constitution | of the U nited States whenever

through state action Negroes: are sy stematieally excluded

.

solely because of race or color from. the grand jiry which

indgets, or the petit jury whieh conviets lin.

th the Patfou case, supra. the weneral. rule havin: © been

retterated, this A ‘ourt stated: Ar

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“When a jury selection oe whatever itis, operates

Insuch way as always terresult in-the complete and jong:

continued eXchision of any representative at all from a.

large group of Negroes, or any other racial group, in--

eager and verdicts re turned against them by juries

thus selected catinot stand.’? (92 L. Ed. (Adv. Stieets)

164, 167. ) ats ‘fl

Tlie Indiana Supreme Court refused to apply this prin-

- giple te the facts of the instant case. Sue ‘+h refusal consti--

tuted a denial of petitioner’s claim of viclation of rights’.

guaranteed him by the k ‘ourte@th Ainendment to the U nited

States Coustitution within the meaning of deci ‘sions of this

( ‘ourt. — Mississippi, supra; Pierre xv. Louisiana, |

supra; Hale Kentucky, 303 U.S. 6138: Hollins vy. Okla-

homa, 295 VU. 8 394; Martin v. Texas, 200 U.S. 316.

“ f \ 2s; tll

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The lower court erred in ities conviction based upon

| confessions obtained by State — haptic use of force,

duress and intimidation.

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In the case of ( ‘hamber rs'v. ‘ Florida, supra, where a con-

viction based upon confessions. induc ed by fear and: duress

' was reversed, this Court. reemphasized the challe meng role———_

ot our jadiei iary in a cases, stating:

9

ae nder our cotistitutional ‘system; . courts .stand

azainst any winds that blow as havens of refuge for

‘those who might otherwise suffer because they § are-help-

less, weak, outnumbered, or heesuse- thes arte noncon-

forming vietims of prejudice and publie excitement.

. No higher duty, no more solemn ‘responsi- —

i tify

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72.

bility rests upoa this Court than that of translating into

living law and maintaining these constitutional shields

¢ aieliberateiy planned ‘and. inseribed for the beneiit of

every human heing subject to our constitution of what,

Great race, creed, or persiasion’ A(t ip. Lab),

In the instant’ case, the uncontradicted testimony shows .

that petitioner, a4 Negro, Wiis arrested®on’ Wedngstay, No-

: Vepiber 12, 1947, some time between 12:30 - (OR, 360) and

2:40 ire the afternoon (O.R, 128-729), Afterdquestioniny’ hy. ;

-polic&.in the office. of the Marion ( ‘ounty jail (OLR S81 362),

he was placed in ¢'ell No.7 (OLR. 446), gomrnonly known. as’

“the hole.”’? (OLR. 363, 447, O81.) T hjs cell, approximately

six by feur feet, with walls, ceiling and floor made of steel! fe

(OR, 365) or iron (@.R. 448), had a stalk’ hole about six

» by ‘four inches in the front oor, which was’ kept locked

(OR. 365-366), no, lieht (O.R.. 448), bed (O.R, 448, 455),

chair (O.R. 366), heat (O.R. DGT), ar water tap (OR, 366),

.” and its only fixture was a toilet (O.R. 448). After an alleged

-_identifieation by one Miss/Stout, (O.R. 368-371), petitioner —

"was kept. in this celf —_ approximately II 40 POM. (OR.

372). 7 . ae

That night “i 11:30 or twelve midnight (O. R. 744): he

was removed from, the cell, taken first to the jail’ s’ ‘front.

oftiee|(O. Re 374), auéstioned and then taken to he adits irters

of thé state police (O. R. 376), when he was again questioned

by various officers until about 2 A. M. on the T3th (O. KR.

378-379; 744). ‘From two o’clock until three of four A. Mu he

wis subjeeted to a.tie det: ctor test (O, R..379, 65, 766) and

Y following this Was again questioned by officers until SIX the’

next marning FOr R. 381-: 383), at which time he was réturned

o ‘the: hole”* (0. R. 384). 7 9 ee

At 9: 30 A, M. on the 13th, petitioner Was agdin remeved

‘front liis cell (0. R. 285), subjected: to an identification

pr oceeding (O; R. 386) then. taken in a ‘state police ear to .

0

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Visitovarjous places throughout thie city (0), ht. S88) until.

| Oe time in the afternoon CO. R395). .

During the afternoon, at state police he ‘adquartees, rental

approximately .630°the following morning (QO. R.407)

“he Wits questigge «lt by-a large dtuiniber of officere, (OL RL 403)

in at least five different places (0). Re 674.675) and then

re ‘furned to jail. That morning, the 14th at approximately |

9: A. M., he was taken to the prosecutor's office (O. R. 409)

whe ‘re he talked to aouyan by thename of Lynch (@, R. 410),

“tien. takeh tm an auto to: search for various-articles (O, R.

. 214, G9), — fits return he Was subjected to adie detector .

test (O. 4 414) and again questioned ‘antil some time be-

tween two! “0. I. G10) and eight o ‘clock thenext morning

(O. Ry 4 423). aut which time he was ‘returned - to solitary

confinement. oe =i eae a

The following morning, the 1th, at 9a). Ye". he was

“again taken on an auto’ trip. with officers th various places.

throughout the, city, returned - to police hh adquarters and

again questioned until approximately noon (QO. RR, 423-425).

He. was. taken on Another duto trip. until approximately : 3

. oeloek (OR. 428-429), returned to ‘police headquarters.

and subjected te a lie detector test (Oh Re 425), ‘then. re-

turned to solitary (QO. R. 436), At approximately six or:

seven. M.,he- was again taken to state Police headquarjer =

' ant questioned until a in the morning seme time be -

| tween 2 (O. R. 451-436) or OAM. (O. Ry 421), when he ~

- Was. placed aggiin in ‘* the hate’ * where he was left all’ ds iy

‘ panday, the 6th (O. R. 438). pe rns. moh

At about. 8:30 Mond: ay morning cO. R. 438), he Was teitin,

taken on an auto trip ly state officers (OLR. 613), returned

to police headquarters: (QO. R. 613) and questioned guacern-

ing. numereus crimes. (O. R.. 426-437)- and subjected {6

He finally broke and’ confessed té having committed the

such questioning-dnuring the morning (OLR, $29), afternoon

(O. R.459, 1727) and again most of the night (O. R. 439).

: crime for whic ‘h. he was later charged and <entenced some

time between : Sand 4:30 A. M. on the morning ‘of the’ Isth

— (O. R. ASS oe

During all of tins pe ‘ried from the 1 12th through the Isth,

petitioner Was held without being art; signed ordiaken before

a maistrate for hearing (QO. R. 487) as required by the laws.

of Indiana,* until after his confession (QO, Ret 30). The

Supreme Court of the state, in its opinion, adiitted that

: this irregulasity had occurred (RL OY). i

At no tine was petitioner advised of his right | to remain

silent or fo have assistance of counsel (OQ. R. 645-646) Ts

were friends vr relatives allowed to visit. him, -prior to the

Asth (Ob/ R. 559, 562)... During most of these periots, except /

while in solitary, and once or twice while in the auto, peti.

tiotier was haride “affed (0. R. 374-377, ot t :

- By reference merely. to, this undisputed testimony, but,

one conclusion ean be rewched, namely, that. petitioner’ s

conviction herein must be reversed because it was based.

upon a confession obtained throngl the use. of foree, duress .

and intinfidation, rendering its character involuntary: in

violation of. tights “guaranteed him by the Fourteenth

Amendment: The facts and circumstances which, were un

contradicted establish that the confession was not the ‘esult

of the free choic “of petitioner but rather flowed from the’ |

Jong gruelling questioning rand, pliysic al. exhaustion brought

‘about by state officers while held incommunic: ide and with--

ont due process. eT ONE Wi ‘ ;

Though the. fact alone that a contession Was. obtained

while i in the custody of: ‘police and tt response to & xamina-

tion by ‘them will not necessarily affeet’ its voluntary ¢ har-

ueter, sich circiimstance will be considered, Also, the fact

—of an extended delay in arraignment or application to a

l, the holding of defendant inconi-

= \.

es bees aed

i

magiss rate for committa

* Borns Indiana Statutes, dae Rep!., seetion 9-704."

soe TO '? A P .

Te ‘

repute be ado- Without o portinity, ta see counsel or friends,

Ww corel ‘: Torus, supra; Malinske Y. New hati supra, anc

subjecting beater ter Acrias: and 2 PPie Wine = Patttiittty 4 by ft large

gumber of offieyrs; Ward vo Texas Supra,. must be Con.

sidereik, Alls

he conviction, may have hte T) based only int

these facts are present um the. instant casd

ind though

part upon ‘

sufficienY to ‘warrant reversal hy ‘this ( ‘ort. Maliysks v.

New York, supra, : : een 1

--Fprther testimony, which in some - few parts Was: con

flicting, Was as follows: Petitioner ‘claims that his clothes

were taket away from him and he was kept naked wears

only socks except when re anoved from the jail yO. R. hap aa

: fy further te stifled that he Wi as beaten bry the police (O. Re:

309.402, 479) and. this is /de nied hy’ all of them, though

petitioner’ xs wile sti ated ’ that, when she saw him after the

TSth, his face was swollen : and his eves were red (O. R. 56%).

P etitioner ‘claims that. fronv arrest to the time he confessed *

_sevien days later, the only food he received was foyr sand:

wiches (QO, R. 415 5, 489), two hottles of rk (0. R;.415, 489),

two apples tO, R. 489), a coea-eola (0. R. 364, 404) bread

cand waters(O. Kt. 438). The only clear contradiction of this:

Was from the. sheriff who: claims that petitioner was. fed

-reenlarly, sueh:elaim Jacking the: probability of truth in

view of the lengthy periods of time that: petitioner -ad-

mnittedly was AWA. from the jail and Ale custody of the

sherttly : petite ;

Petitioner further claimed that just / jirior to signing

the confession, he was infort ed. that a mob of fiv -«Tindred

people had gathe red. io, get hina CO. R. 445, 481); that ubless, :

he siened his wife and baby night be harmed (Q. R. 4435

482) and that he did — after a tele ‘phone eall was |

allowed to say ‘*hello’’ after

“ade to his- ‘wit and he

he confession pbtaine al in this manner,‘its use is’

which the: police hung ap (QO. rR 4asf. ty Theugh ‘these state-___—

“nents are de nied by state’ s witnesses, they are partially

‘ae ee: 16

; supported. by ‘the Ww if" s testimony to ste effect that she dic

receive such a age call (O, R. 563 ). ‘Ae

lin beviewing the cumulative evidence, tiie Supre ie ( ‘ourt

of the State of Indian stated;

2 “This swide nee On ‘ailmissibility being conflictthe,

‘the court’s ruling adverse to appellant cannot be ques-

‘tioned in this appeal as we cannot weigh the evidence’™

(R. 39). aa

a

| ln -such ruling, the Indianw-Supréme Court entirely

ignored. the saifficiéney of, the uncontradicted evidence, giv-

ing undue weight to that which was contradicted and. thas

overruled petitioner's claim of federal right as set forth in

his Assignment of. Error Number Kighteen presented to

that Court, whérein . petitioner -specifically incorporated

his objection “that the said@@hfessions and statements |

viofate . . . the Fifth, Sixth and F ourteenth Amendments :

to, the Feder al Constitution’ (R. 34). Ata minimum, the

uncontradicted evidence shows that: petitioner was ques-

P tioned by namereus police officers in various places through-

out the city of Indianapolis at al] times of the day and night

oyér a period of approximately seven days, with little res-

pite;- that during. such periods of respite, he was confined - !

ina bare, cold cell with no-chair,or bed; that during this

a time he. was held iHeghlly ‘and incommunicade. without the

advice of friends,or counsel and constantly subjected to

the fear of further «and more. severe: intimidation and

. coercion. eo |

A confession obtained under such circumstances clearly .

was not voluntary and its use violates provisions of the

Fourteenth Antendment. As’ stated by tkis Court in the

recent case of Haley v. Ohio, supra: ‘*

“The. Fi purteenth-A@endufent prohibits polive wae

ee Ce

using the private, secr@ custody of either man or child

usa devi ice for wr inging confessions from them.’

/

/

17

Though most decisiofis concerning the ase of coerced Cone

fessions dealt with more vidlent forms of duress, as stated -

by Mr: Justice Frankfurter in his coneurring opinion in the’

Haley case s “pra, at page 246; °

“An: ina] iresnive series of cases in this and other

courts e raamieas ‘sof the temptations to abuse of polite i

endeavors to secure confessions from suspects, through

profractive questioning, carried on in seerecy, with the —

inevitéble disguictude and fears police ititerrogatjons

‘naturally engender in indiv iduals questioned while held

“incommunicado, without the aid of counsel and unpro- -

tected by the safeguards of a judicial inquiry. °.

It would: disregard. standards thaf we cherish. as part.

of our faith in the strength And well-being of a rational,

civilized society to hold that a-confession is ‘voluntary’

simply. because the confession is the product of a

sentient choice. ‘Conduct. under dures§, involves a

choice,’ (cases cited) and conduet devoid of physical

pressure but not leaving afree exercise of choice is the

product of duress as much sO as choice reflecting phys-

éal constraint.’” Ms

Q F} . e

The conv iction, based as it is npen a coerced, tpvalneitasy

contession, sliould be reversed pursuant to. prior, decisions

of ‘this Court:

fs

o

“This Court has set aside convictions based upon.

confessions exvorted from ignorant persons who. have |

been subjected to persistent and. protractive question-_

ing, or. whetiave ve been threatened’ with mob violence,

-or who have been unlawfully held incommunicado with-

out advice’ of friénédls or vounsel, or wno have‘ been’

taken at aight to lenely and tsolated places for question-

ing: Any one of these greunds would be sufficient ervuse

for rev ersal.’ ’ aad ard v. - A euasy 316 U<S. 547, 555.

In the instant’. case, ‘it Is: rot denied ‘that at least two ‘al

these grounds are péesent, if not all. - :

Pi

!

Conclusion

Petitioner was indicted by a erp jury fron which,

members of his race were syste matically exeluded simply

because they were “Negroes. The record clearly shows fur-

ther that petitioner: s.conviction was, based’ upon 9 confes--

sion extorted fren him through the use of foree, duress

and intimidation. The refusal of the Supreme: Court of

Indiana to reverse the conviction, upon the basis of these -.

two federal claims -properly presented to it constitutes a

v iolation of rights guaranted petitioner by the Fourteenth -

Asiféndshenit to the United States. Constitution,

W. UEBEKORE, itis anneal: submittes} that the tidataoal

of the Supreme Court of the State of Indiana should be

reversed. er SS ot eee +

“Ropsert L. Garten,

-Frankiury H. Wits,

_ Tuvurcoop Marsuaun,

Sane! eek eos ae Attorneys for Petitioner.

‘Warren M. Brown, . eee pet ere

Emerson J. BRUNNER, ,

Wittarp B: Ransom,

Henry J. RicHarpson, ae. 3S

Of Counsel... -

(1852)

eee; a are