Reply Brief — Edwards v. Arizona

RECEIVED

NOV 2.0 1979

OFFICE OF THE CLERK

SUPREME Court, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

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NO. 79-5269 y, ,.

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ROBERT EDWARDS, Petitioner a

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v. are

THE STATE OF ARIZONA, Respondent as BG

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PETITIONER'S REPLY MEMORANDUM

ON CERTIORARI

MICHAEL J. MEEHAN

P.O. Box 2268

Tucson, Arizona 85702

Counsel for Petitioner

November 19, 1979

The Respondent has stretched the recerd almost beyond

recognition in its attempt to convince this Court that the case is one only

of disputed fact. Contrary to the State's assertions, the record is straight

forward and squarely presents the important issues raised by the Petition.

For example, the State seeks to remove all connection between

the Police Sergeant (Bunting) to whom Edwards made his request for

counsel on the night of his arrest, and his two subordinates (Marmion and

Milne) who instituted an interrogation of Edwards the next day. The State

says “Bunting had not told Marmion to speak to Edwards" (Response,

p. 7). It says that two officers "who did not know about" Edwards' prior

request to obtain counsel obtained the confession (Response, p. 14). But,

the fact is that Bunting, who did know, specifically directed Milne to

interrogate Edwards (II P. 58; Petition at 5). And as the dissent by the

Arizona Supreme Court notes, he did it to see what could be gotten before

Edwards could be appointed counsel that afternoon.

Similarly, the State blandly describes the record pertaining to

prison garb as a situation in which Edwards simply "informed the Court"

that his civilian clothes had been misplaced, and did not ask for a

continuance or "refuse to go to trial" in "the clothes he was wearing"

(Response, p. 9). The State then says "the record does not reflect that

Petitioner was forced to stand trial in prison garb" (Response, p. 16). As

has already been noted (Petition, p. 6), the record is replete with

indication that Edwards was in “slippers and jailhouse clothes" (1 Tr. 9),

unlike the first trial when, as the trial judge put it, “you had some good

looking clothes" (1 Tr. 10). Edwards did not move for a continuance

because the trial judge immediately made it clear that "the Court is not

going to delay the proceedings to do anything about it". Id. Edwards

made it quite clear that "I would not like to be presiding [sic] in the

courtroom with jailhouse clothes" wnt that "I think that would be a

prejudicial factor to me" (1 Tr. 73). The trial court suggested, after a

day's trial, that perhaps Salvation Army clothing be obtained (Id.), but by

then the petit jury had been empanelled and the damage done.?

Perhaps the most untenable contention by the State is that

Edwards invited error justifying the prosecutor's pointed, repeated comment

on his failure to testify. It is said to have been an elaborate bootstrap

affair by which he gave testimony while personally interrogating witnesses,

instead of asking questions; and then used his summation to personally

avow his innocence. Upon examination of the record, the whole theory

comes apart.

For example, the State says (Response, Pp. 9) that Edwards

brought out for the first time on cross-examination of the eyewitness the

fact that the perpetrators were black -- but omits to mention that the

matter came from a prior statement of the witness, and that Edwards was

using the statement because it pointed up a discrepancy in the number of

supposed participants. The State says (Response, p. 10) that Edwards in

effect gave testimony, while questioning the accomplice. But a reading of

the cited transcript referred (R. T. April 21, 1977, pp. 173, 178, 179)

shows a normal cross-examination by leading questions, and not the giving

of testimony.

Similarly, Edwards' summation was exactly what a lawyer would

have done on his behalf. He discussed the evidence and drew inferences

from it -- only referring to himself as "I" instead of as “my client".

Appended to this Reply is an extract of page 12 of the Response,

setting forth the State's contention that Edwards' summation was a personal

avowal of innocence based upon facts he had supposedly "provided to the

jury while questioning his [alibi] witness" (Response, p. 12). Also

1 The State suggests (Response, p. 16) that the prison garb issue may

not be ripe for determination by this Court because of the possibility of

post-conviction proceedings under Arizona Rules of Criminal Procedure 32.

It does not mention that such review seems barred by Ariz. R. Crim. P.

32.2 precluding issues adjudicated on direct appeal.

appended are copies of the transcript pages to which the State referred,

which demonstrates that Edwards took no liberties with the record, and

made no personal statements. The “invited error" theory cannot be allowed

to preclude this Court's review of the egregious. Fifth Amendment issue

presented by the prosecutor's comment on Edwards' silence.

The State is also incorrect in characterizing as uniform the

state of the law on reinterrogation after request for a lawyer. It contends

that among the courts that have discussed the issue, there is agreement

that there is no per se rule to prohibit further contact with an accused

after he has indicated that he wishes to consult with an attorney prior w

questioning. It should be noted that none of the cases cited on page 14 of

the Response concern issues like that raised here. For example, United

States v. Hauck, 586 F.2d 1296 (8th Cir. 1978); and United States v.

Rodriguez-Gastellum, 569 F.2d 482 (9th Cir. en banc) cert. denied, 436

U.S. 919 (1978), involved explicit waiver of the presence of counsel:

"The defendant then said retaining an attorney

seemed like too much trouble and proceeded with the

interview." Hauck, supra, 586 F.2d at 1297.

"But in this case it is undisputed that there

was no egg 5 pressure or —e we waiver

was explicit, clear and unequivocal." Rodriguez,

supra, 569 F.2d at 488.

In this case the issue on waiver is whether one can be implied

by total silence as to the request for a lawyer. As was said in a case cited

by the Respondent, United States v. Charlton, 565 F.2d 86 ((6th Cir.

1977):

"(T]he mere demonstration that the confession

came without objection after resumption of questioning

is inadequate evidence of waiver." 565 F.2d at 91.

It is evident from the cases cited by the Response that there is

a split among the Circuits over what type of reinterrogation, if any, is

proper after an accused asks to see a lawyer. For instance, the response

cites White v. Finkbeiner, 570 F.2d 194 (7th Cir., 1978), for the

proposition that there is no per se rule prohibiting further contact. In

fact, the 7th Circuit said in that decision that it adheres to the rule that an

accused's right to the assistance of counsel can never be waived by a

suspect whose initial request has been refused. It did not rule on this

issue, but remanded for a further determination of whether the accused had

in fact requested the assistance of counsel. However, the court stated:

"In Miranda the Court appears to have set out

a per se rule barring any custodial interrogation of a

suspect after a request for counsel has been made.

The Court said:

If the individual states that he wants an

attorney, the interrogation must cease

until an attorney is present. At that

time, the Individual must have an oppor-

tunity to confer with the attorney and to

have him present during any subsequent

questioning. If the individual cannot

obtain an attorney and he indicates that he

wants one before speaking to police, they

must respect his decision to remain silent.'

384 U.S. at 474, 86 S. Ct. at 1628

(emphasis added).

"In Williams, at least, we have construed the

Court's above remarks as requiring the suppression

of any statement obtained after a request for counsel

had = made and not yet honored. See, 476 F.2d

at 1252.

"Nothing in Michigan v. Mosley, 423 U.S. 96,

96 S. Ct. 321, 46 L. a 2d 3 75), appears to

require a retreat from that view. Mosley is dis-

tinguishable from the case before us because here,

unlike in Mosley, the petitioner has alleged that he

not only invodked his right to remain silent during his

first custodial interrogation, but also asked to see an

attorney. See, 423 U.S. at 101 n.7, 96 S. Ct. 321.

As Mr. Justice White noted in his concurrence to

Mosley,

‘the reason to keep the lines of communica-

tion between the authorities and_ the

accused open when the accused has chosen

to make his own decisions are not pres:nt

when he indicates instead that he wishes

legal advice with respect thereto. ‘The

authorities may then communicate with him

through an attorney. More to the point,

the accused having expressed his own view

that he is not competent to deal with the

authorities without legal advice, a_ later

decision at the authorities’ insistence to

make a statement without counsel's pre-

sence may properly be viewed with

skepticism.' 423 U.S. at 110 n.2, 96 S.

Ct. 329." White v. Finkbeiner, 570 F.2d

at 200, n. 1.

The confession would also be inadmissible under the criteria

used by the 4th Circuit in United States v. Grant, 549 F.2d 942 (1977).

Although the court held the confession admissible, Grant confessed after

being asked only standard identification information. The court said:

"It does not follow, though, that Miranda erects

an absolute per se bar on any conversation with the

accused by the investigating officers after the former

has requested counsel. It only inhibits investigative

interrogation related to the specific crime itself." 549

F.2d at 946.

Thus, the court recognized that a confession can't be used

when elicited by investigatory interrogation, after the right to the

assistance of counsel has been invoked as was done in the case at hand.

That is precisely what occurred here, contrary to what occurred in Grant.

The Respondent attempts to distinguish Nash v. Estelle, 597

F.2d 513 (5th Cir. 1979) (en banc) on the grounds that there was a

temporal break between the request for counsel and the purported waiver.

This interpretation is unwarranted. The court in Nash, was concerned with

a situation where the suspect's desires were expressed in such an equivocal

fashion that it was permissible for the questioning officer to make further

inquiry to clarify the suspect's wishes. Here, the Petitioner's wishes were

clear from the beginning and needed no clarification. As the trial court

found, he wanted the presence of an attorney, and he never communicated

any contrary desire.

It is apparent, from both the Petition and Response, that the

Courts of Appeals cannot agree on whether there is a per se rule that

prohibits all or any contact with an accused after he has asked for the

assistance of counsel.

The Respondent also points out that the Court has granted

certiorari in State v. Innis, R.1l. __,_-391 A.2d 1158 (1978), cert.

granted, 440 U.S. 934 (1975). This does not prevent the granting of

certiorari in the case at hand because in Innis the decision was entirely on

Fifth Amendment grounds, whereas, this case is based on the Sixth as well

as the Fifth Amendment. More to the point, however, is the situation so

clearly presented here -- when an accused asks for a lawyer; cannot afford

one; and will in the normal course be appointed one within hours. Can the

police conduct a reinterrogation before counsel is appointed, which is timed

and intended to occur before the accused gets the legal advice he wants?

If so, does the mere regiving of the Miranda warning support a waiver of

the original request for a lawyer? Such a case is not presented by Innis,

which instead questions whether there was any interrogation. Here, there

was.

We respectfully request this Court to see through the illusory

factual complications thrown up by the State of Arizona, and to grant

certiorari.

Michael J. Meehan

P.O. Box 2268

Tucson, Arizona 85702

Molloy, Jones, Donahue, Trachta,

Childers & Mallamo, P.C.

Of Counsel

APPENDIX

EXTRACT FROM RESPONSE OF STATE OF ARIZONA, P. 12

AND TRANSCRIPT PAGES CITED THEREIN

After the state's attorney had concluded, Edwards wrote on the

easel "Defendant did not confess". (Id. at 5-97, 5-166.) Edwards then

argued to the jury that, because Marmion and Milne only gave testimony of

an oral confession, and had no evidence of a written confession, the jury

should take that to mean that Edwards did not confess, and should "take

that into what we call consideration, into evidence." (Id. at 5-111, 5-127,

5-128.) Later, he said "[aJs you heard in my statement, I was at a

party," referring to the taped statement. [That had been admitted into

evidence and played to the jury.) (Id. at 5-115.) He then discussed his

alibi explanation, many of the facts which he had provided to the jury while

questioning his witness. (Id. at 5-115 to 5-116; 5-40 to 5-42, 5-45 to 5-46,

5-48.) he again told the jury that his defense was that he was not there

at the time. (Id. at 5-118, 5-134 to 5-135.) He made further references to

statements he had made and explanations he had made, and denied making

the confession of January 20, 1976. (Id. at 5-124, 5-126 to 5-128.)

APP. 1

5-440

Was you knowing me that year 1974? gi s Ps

Yeah. i 4

Q po you know approximately, Miss Williams) Y. sp

of the incident that happened -~- remember not the F.

date explicitly because you say you don't remember AG:

the date because it's been a long time. | be a Z it

a 6©=S-_—“ Yeah. % be

1 Mow, do you remember a date of 4 party eh me

that supposed to happen on the south side in that F Oe “3 ate

month? 3 | | Fe aed

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Q Do you remember coming over to the .

south side, Mrs. Williams, dn that time and pick- by ;

ing any person up? | ha

hs Well, I don't know when it was. pts

Q Who aid you pick up? 3 vin ea

A I came to get you sure enough, but, you tS % 3 a:

know, I don't know. 2 pares :

Qa Was ita party going on when you came vos

to pick me up that month? a se aN

A 3=s:« X:~«Addn't get out. pd che :

Q Is that across from the V.F.W.? Be as oe

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24 Q pid you take me home, did you take me Be ae : |

425 home or was anybody else with us when we left? ; MS,

26 A =: No, I == nO. By

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Mrs. Williams?

A On University.

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supposedly pick -- when you picked me up that

That was on the north side, am I correct?

That was Third and Queen.

Third and Queen. That time that you

date, Mrs. Williams, you don't remember what date

rs was, but you remember the party, you remember

me going eaten when we got to the house?

' I remember picking you up a couple of

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That's why I don't know. Once you got

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13 in, no, unless to the store or something. :

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14 Q I'm asking you a question. Do you :

15| remember me that time you pick me up at the party, gists

16] do you remember me going anyplace? a

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21 Q ‘Do you remember anybody coming over ios foe AUD Jas

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; Q Who was there, Mrs. Williams, do you Hh i Meenas *

remember that? Stas 9 Net Os

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At my house?

Yes, at that time that we went home,

who was there? Was there more people in your

house, was it just me and you or who was there?

A Yes. You and myself and I guess my

two daughters. |

that morning or two or three, did anybody come

Did anybody come over at one o'clock

over late in the night, as late as one or two

in the morning? Did anybody show that night,

“anybody, can you remember that?

A

Q

morning? |

(Witness shakes head.)

Can you remember going to work that

MR. LINGEMAN: Your Honor, could we

have a date or time or some idea of when we are

talking about? There is no foundation.

THE COURT: Well, che record to date

may stand,

There is n» question pending. You

may ask another question.

MR. EDWARDS: Your Honor ---~

THE COURT: She answered your last

question and I'm leaving the answer in the record.

MR. EDWARDS: Oh.

THE COURT: Do you want the last segs |

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1 Q You don't remember? “e

2 A (Witness shakes head.) ‘ | By

3 Q When I was staying with you in October Be sf ©

4| of 1974, Mrs. Williams, did I ever mention to ¢ cs Ne

5/ you or you say that time you picked me up at a | ; oa ‘

6] party and took me home, did I ever mention to ¢ ss jena rae

7| you, Mrs. Williams, that -- that I was in any bs saat ap

8] kind of robbery or that I was, you know, did you Pe Bre a £

9] ever know that I was in any kind of a robbery or Des “ah

10} murder or anything to that involvement? ae at By

11 ~e That night, no, you never told me . f Pree sig

‘nothing.

13 Q Did I tell you or did anybody else tell

you?

15 A = No

Q Did you know -~ did you have a doubt in

your mind that I was any kind of involved in any

robbery, any murder?

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A Oh, I guess it never even crossed my

mind something like that.

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. youtp at a party, but I always picked you up

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25 Q And when you picked me up that night, Wen; i. iy

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5-46

‘P house? Did I ever go out, do you remember that?

Q You just know it was October, Mrs,

Williams?

A = No.

a Well, when you picked me up you don't

remember the date, when you picked me up, Mrs.

Williams, in that month, I can say that you don't

remember what date, but can I say did I ever

leave the house, do you remember that?

- I don't know.

a Did I ever leave, did I ever leave the

\

A If you ever went out anyplace at all?

Q When I went home, when you picked me

up that night, did I ever leave the house?

Did I go anywhere?

A I don't know,

a, Mrs. Williams, this is where you have

e tell specific remember the dates,

remember the

tine.

t I think you testified in here,

you renenber the time and date in October.

a I aia. a

Meme PON ONR. nitens won Qenenenes

again you recall the time and you recall the date.

A No, no time, }

Qa You don't remember testifying before

SUPERIOR COURT,

PIMA COUNTY

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5-448

1 MR. LINGEMAN: Your Honor, Cadet Guvom big wR a ee

g| tion has been asked and answered many timos. Rone 3, :

3 THE COURT: Overruled. ie ese ‘A ?

4 THE WITNESS: Do I remember October ‘74? h Soe Phy ES a

5 Q (By Mr. Edwards) Yes. Ap Saris Sore '

6 | A 63> S'Yes, I remember October ‘74. | nga ad " ra

v] Q No date in October '74. Fie pe uoig fe

8 A =: No, I don't, no. No, I -=-= Pe eee REA “f

9 Q Would you say that all you testified on Rei Mint faa Scat ot if

Rosia as WA Ta OE LS

~

So

the stand here is you remember picking me up at Biss! cain eR Sip a ST ha

11 _a‘party in October of '74; is that correct? Sat rete nae ie ayes

12 A It was one of those years. It must Gaius. Sh a

13] nave been back in that time somewhere. frit inion

14 Q Across from the V.F.W. that you testi- Seeger

15] fied to? ¥ iu

Ba Wigs aus hp adh cts Fetes i

16 Ah It was a project ---~-

Q Ie that ---~ | :

18 4: mt -- beside of the park. |

Qa You have -- on the south side, north,

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20 east, west, what side?

21 . A It was some project right across from

a the V.F.W., right across the street right over

231 there. | i

ae Q Mre. Williams, something puzzles me

25 here.

You testified, Mrs. Williams, that TLS sek SER

SUPERIOR COURT, PIMA COUNTY Ur Fh oad

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murder. '

attention and I ask you to do that because he

‘to not an attorney.

When you do that, keep that in

mind and make him tell you that and make him tell

you what evidence has been introduced in this

case, what has been produced in this courtroom

to refute that. |

He has confessed to the armed

robbery and the armed burglary, and under the law

the Court will give you, he has committed the

You have to understand the law if you are

to follow your oaths. The law that I have just

read to you. You have to find him guilty of all

three offenses unless you believe that Mr. Mungia

died of something else, that this wasn't the cause

of his death. There is just no evidence to

support that. 3

Thank you, very much.

THE COURT: Mr. Edwards, you may make

the closing axgunent. |

,.. (Whereupon, Mr. Edwards goes

: to the easel and writes the

' following: “Defendant did not

confess.")

Ladies and gentlemen of the

jury, I thank you for being patient and consider-

ate and listening to this case.

SUPERIOR COURT, PIMA COUNTY

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5-10

we in the statement he introuuce it. from

his mind after he has talked to me and made a

transcript of the statement.

He never presented the statement,

They never presented anything to what a man wrote

up his self on a piece of paper and then he says

I was involved in the crime.

You must take the statement of two.

The statements of evidence that are presented to

you. Must take the evidence that are presented

to hsiairi ladies and gentlemens.

The evidence that you heard from

my own voice, that you heard on tape, that you

heard with voluntarily made, you must take that

all because it was presented as evidence.

And then you must take, and then

the statement that the police alleged against me

was not on tape, was -- was not anywhere, but

not what you call from mine, what I wrote up his

self. Wrote it himself. | | % ‘

Ladies and gentlenens, you must

}

take that into what we call into consideration,

into evidence. . ’ wh

‘

‘ “haa F d

Now, ie api on what we can say

the State produced one more witness in this case.

The State produced a witness that was named, I

GUPERIOR COURT, PIMA COUNTY

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gentlemens, not consumptions, but we are talking

about facts.

You must base law on fact, not

opinion and theories.

Now, you seen the whereabouts when

Mra. Williams came on the stand and she testified.

The lady didn't remember what date it was. Mrs.

williams didn't remember.

She remembered the month because

three years had been a long time to remember the

specific date, to renember what time was she -~

she said she remembered that month.

As you heard in my statement, I

was at a party. You heard that this same woman,

this same young lady, Mrs. Williams, come and got

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St ‘oat as she come and -' me We Rag

we went home. As we went home you heard me» * Rakes

cross-examine this witness, Mrs. Williams, and Sa gear et

bu AO Sar ae

ask her did I ever leave. "she said no. ° aR a Sih he

wee UF rath Athy be id

aU ain ES eeias eM ae

And did I ‘ever go anywhere? She Parc nie: Bost, ie

7 sae ry c He ,"* C +f

remembers -- she do not remember the date, but ania Baht

y -* t) ae a ae ros

you heard my statement and. * was the same date, “ee Tey .

Anpededoe' iis x

24| october 9th of 1976, and ‘she testified to that SD eee

Bia hua bef

Ba aE ares ;

25| and the only time she cenanients was from the same Ba ,

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ta ped

26| thing a party across from the v.¥.W. on the south Espen Wik

! ] f . #55 4 ‘'

SUPERIOR COURT, PIMA COUNTY ‘

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ONO ay Aan I NO ¥ ns x Bo sith Ken)

if vs > win “ aba! Sony Aas: ae Ta by ; (

avis ge Sit gts inte Sea Laie Yt

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vi ; . oH Te af v, / 4 2 " . é e ’ a5 ya Rey ae va ’ * 4 rie ‘ ® F

Pe wie wien ‘ . Ye “4 Aer v VALS urn i “s wy) °

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; im . ve aah ; \ . A 7 hy 2 2 i Z : er ,

mi PREM EN A ay Sy ee A Pan ta bacrhc rcehl even yee oe pve eA aly cial

r pe ait : ert < | wet ht he ® ota" 5, aft 1 q ‘ans a _* ws ~~ wha's wh ’ ay .*

ahah i te ats ae Pt anes eer” c fe aa a “ reece *y % AA Ne wh

He AORN CONOR ae ws jabba War Mata ABER ony EAS

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gide that she come and pick me up and we went

/ home and I never left the place. The crime was

supposed to happen that night, but I was there.

She testified to that and she

testified to the fact that I was there and no

one came over. I didn’t even know where.

You must take her testimony under

copsideration and under evidence she testified.

Now, ladies and gentlemens of the

jury, I must talk to you about a person, a person

of what we call a felony-murder rule.

| A felony-murder rule is when a

person dies it's considered murder. ;

A crime have to be committed and

a person must die and this is considered murder.

But, wi see, that never - and

never reasonable, what, we call a reasonable doubt.

It was " yensonahie doubt in that

because the State never proved that the man died

at the scene of the crime. “

The only one can tell you that the

person dled at that scene of the crime was the '

man himself.

t

And he was what we call died.

You have to realize that Mrs.

Esparza who was.a waitress at the bar, she said

the man, after he was supposedly robbed, got up

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robes ‘ ‘ F 4 \ ew ke Ses , . ‘

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bg ¢ , ’ 2’ toe ‘ ‘ ae me .

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a l'on rey ANY, Ayes, han > a mM »

GUPERIOR COURT, PIMA COUNTY

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§-118

1 consider that something accidentally or anything /

2 might happen because you know and you're going to ot

g| do a crime. He:

4 But then you have to realize it's AT

5| the evidence shown that a man is supposedly com= Baie §

6| mitted a crime has put on evidence was ~~ he was - ‘

q| not involved in the crime, :

8 My defense was not alleged of a sap

9| withdrawal defense. My defense was alleged that i

10| I was not there at the time. I did not cause ‘ eA

11] death or no armed robbery or no burglary. | This ee

12| was my defense. | | . atid

13 I tried to put my defense as pos- bi

14| sible as I know how, oun say ’ ew $

15 Like the district attorney said, 7

J16| r'm not a lawyer. No, I'm not a Lawyer.’ I have a4

17] attorney, but I'm defending myself. Yes, I am. Phy sia etn

18 I'm defending myself because -- and then I have oe As 4 fe

19] a reason to defend myself. i We | Brea i

20 4% have a reason to defend myself, ) ee aaeereh

21) is my geaeinetate because then I know that I can be iat PoC tas

22 | tell or I can explain, but what -- what's the Stash pee

23| reason, the truth to you. I can never say that Pe ek : ae

24| I can get up and perform to you like a attorney. Reine ; ie ay

25] You must understand. You must bear with me that z ue At

26 everything I can explain to you that you aust BYES ‘ oie

hd SUPERIOR COURT, PIMA COUNTY q of. ; | ‘i ve

. wp sthats fs

een Leas " ai: ts aur Ae een ee Oe EVAL 3 oe

ar Ma ‘ mS iy! i? r oe zy ae a‘ ea ei . ee ¥ i ae “a ‘ ah

mie ~ tai $s Nhe i UN “a ees igh e ; <i Was | ‘ 3G

Ren at wise. So Sok poet Py ‘ : ff Be Sh Pa “.

UTS ar tts Wi ed MO eh APP. 12 SARS E LINC AS GRP eA CN,

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Only one thing that credit, and you must. weigh

as evidence, as evidence must be weivhed that you

must understand the evidence and the avidence you

must weigh are not only one side of the facts,

you must weigh all the facts. You must weigh

the State and you must weigh the defense. You

weigh all the facts. You must under all the facts

that been presented to you. — {

ve And you must allanol that a

reasonable doubt of the man is innocent of what

‘they commit a man or try to allege a man of a

crime that is being committed.

OA witness stated here today to you,

it was on the stand, a witness that came forth

and I presented as well as the State presented.

They presented a statement to you

first and this statement, what they call was a

alibi. You heard the whole alibi statement, but

what I call it was the whereabouts statement.

A person that testified that you

heard of Williams’ trial, you heard of Soto, and

you heard these people.

this trial.

These peoples’ names in

You heard a Mrs. Delores Williams,

that she got on the stand. You seen the lady.

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SUPERIOR COURT, PIMA COUN / &.

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Ae. My AAS ua Cg HE ay he Mee NV pate het gs ue ¥ Faby ree iy gD ¢ UR yom! c ‘ "

! A) iy Bi Ae Te Os , Ag ar ae \. ae Ly ‘ ve gee ; . ’ 4

Dae Be ’ Pet aia cub See “s BN RS veh ie ; _** ‘ see Atay ’ A “4 Y eu. 4 ey my oP {s hy r 4

' se Sn Rae a iad eka BRATS ie MCC hur POs Uae ia A Aer de) ey + 6 ie

* aA ode ir AA) ee aA) ee SAN ,' ’ r sy =. we Tc “plese i Ry Pd we

pra! 5 " b Dei’ A espa’ > Y rv if « tet, tye) hang Vic . Wat a t 0 guy? *e we

Lae 24 Ps dad | ith ay oh oh. +. je a Y re 7 att >

r - > : Pat " ; . f . Slee ' al} ay : “ f

- vA hye ?y > he? ’ . AD At ae - da’ , ARE” Pe vx egpale }& §

cmt mo : ¢ yo. “eu * “ie ‘, 2 . Hey von} ’ | * » ah“ .

he 8 oy \ f W ies P) i ve . 8. te, Be @ f AKT ? E 4

a et re, y ‘de . ty? a

+ rue Yo ae Fatt iF e

iis “3 C3. oe REAP Ty gone » eters we fe es -

we wie ° vont. ag wry wee A ps eey Dine eet MM a tap ‘ ,

- ‘ : ’ oon"h ' : ‘ my ‘ te .

Bian? y ried; ib 4 ie si ret AY * a Hay: y ' iy ty afl, iat. ny a | Ar i «”

o* @ a hghs rok be ee a ayes nt ' iy de i Yio Ne ‘ ie °') ot ; :

3 q ’ > Ms wnt ’, rt A REN ar wi Pea s ‘ Vel err ; re ,

. ’ > ts ‘ ‘2 .

’ iy MS é 9 ene dane ans haat ned? Bes. Paty Baath aes § a 4

Hi . die elite he p © «4

», ‘ * mr | ' , a’ ‘

oth ot wt ' Fh, . ue » oy ’ et) ‘ “3 oe. “ha %

. ers Ay ear hes pete h yd -% x a | ye a i

re. & A © Pe, OO, wie ge ’ Aan ee hed + ‘ ye

wahe: , apne Se & Yon we & APP. 13 eae +»? ma ee ,

oh halt 9 , " e i oe oe Pd Seg a | 5 Tle ” P . 124 ? ee ie ‘ M set . hy i.

at opr vf ea Sy owt 6 aoe fF Roy | , . eee

rd oe hae te ee ‘ * AW ‘ P vs,

er hth 7. ee : 5; ee aw ‘spy! No x hy .

ve Maca ay oy hee’ eA { mph? “ee " Vf ’

ae at FU, hot wertee nt YP . ° e

stand.

eo er aaereurn rer

re fF

ab FO

to fail.

back to her to follow my story.

‘fhat's all he's got, but all the aetenaant

presented to you, you seen the statement presented

to you, you seen the statement voluntary made,

the statement of my whereabouts, where I was with

the same Delores Williams that came up on the

fa I had left her and was arrested

20 minutes after that and the police never went

. ) Never did.

Ana when Sgt. Bunting, when he left

he said that I did not say I was involved and

they had time enough to go over there and to know

that she was there, but they never did. ¢

Then they wait until 1977.

only thing -~ the only thing that the prosecution

can turn, that he talk about presented confession,

he never permitted that anywhere that the police

report that came to you was in evidence.

report came to you in evidence that Mr. Marmion

-- Mr. Marmion was a police the’: supposed to ob-

tain the next day, that he teid -- that he told

you when I left that I asked for a attorney.

-He told you that when I left,

Bunting was on the stand, that then I was carry

Then I explained that I was taken to

confinement and I was brought out of confinement

5- 1a&

‘The

A police

ewe

“

STALE A)

bad i

‘ a ev ‘ Md

‘yg: : oe ‘

btn, tay Ag y ' ""e Um */

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Sle Ghy, Sg Sh 6 RMT Ph NAR es A ws

PS ee RL Oe TS at Paget: SW su aes Yew

t fr its, a Nie Fe) , ae Sek ° sh SINS:

Re AR NE A ea ha a

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’

SUPERIOR COURT, PIMA COUNTY

e " hh ee ee th er its ied mn.

S

ork

Ps

et AY

ti tew +

, anya).

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2,

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haa ieee soe

ye eo Ba Sin deal, t. ‘ eres oe

EE iS ue t ve nokta t et , mils

«* wat \ . ba? , FAY og

, Te ee AL e eX a) ar.

Pa ae ON MES on a “: ot

ody + ave ta ee Pure Z ‘. vr i

i" ww Sle Ne . (\)

cw Res 4 Ri et ee | hd ys

eer, et Tag er Weey ’ sous

OF ON wregn ee. ae oe *. ws a

} Fh] ‘ Ls ‘ 4)

Va-ae'ace."3 Ph Ly a

ity Wa »'s “oe

4 ral . a 7’\ ’ 4 o ;

. sm : eo 5;

‘ Se a | > ik! t oe &

Se, , a) : -

A : Sal9 TT Bh ew eet et & (a ve Meh te

3 ee 4 ‘ ‘ ‘

. dy wtenade ’Y 2 . sw 9 . ey ’ . oe oP

*.f ‘ acs Sie NS % rw . e a4 ? y

ee tent 4 Baye) s

GREASY te Mea tist & €

’ we Ay haat

be we > ‘—, + : a

i, Suieties rf eee ve ) } met Ta

* * " Po +% , ‘ » “ , ~

<< % ‘ @ ms

» 126 Re ae bm ae Re

coe fay G2? wo eoaly

A aa) » “a ~"* “ve

v a ‘\! . ee tt A ) e ‘ RA

or o2 3% 0 hep tbe Mie

° .

2 } a) a a? y

o . , 1 ' ny

1] the next day, '

tr ‘

a ” se)

8 That a police officer, Marmion, SR eR ; ws

' 3] came down to talk to me and that's when he talked a Pie erie Ret ad:

4| to me he said he played a state -- a tapement en Ki sui Paes

he on At at

& 2 ty ‘ PEN Sera ||

5| (sic) of Mr. Reed's, ik : ’ ears

Poe e tig' ' aa fo

6 - He said then that -- that after SA Chae arn RAR ls

4 45.568 dives Pane |

: Ree. ie 9 Oy aN

7] he played a statement to Mr. Reed, then T said, E yeasauetre eee ath afk:

8] "I do not want this ace because it can be used Bee be cae

viva iy ee Sit

9] against me." +. pe Ae eS oad sie

bah Grd betes poet,

10 And then he said that then he -- eae eat 3

ts, Bestel ge Bis | ae

11] I told him my involvement in the case. And: then aE Me ta, S60: Sk!

12] he wrote it up. Then he left and he put it on 4

13 tape, ; j / .

14 But, you see, ladies and gentlemens Dic Pettis

15] of the jury, that it was never brought to you on Kasey

tee

16] tape. He said that then as he wrote it up, ladies ae asad

P fa 4 p 8 , bts Vevar Ke Ag

Pema Meer ae Nag ad ea

17] ana gentlemens, he used one thing because he had 5 \ a ne hid} Sah

evar Sage UR iret ee

, wets bs ‘ te

18! to use this thing, it was not used against me on pea ie aR” Aap | MaKe ‘BR:

Re NS ins i “19, ‘ N rie

19 tape. He had to because then if a man has enough ea ta CE ee ak a a

4 , PACE : Jon FAR a f

. tote ) , ' oe ' . . : a

20 intelligence, ladies and gentlemens of the jury, BY a atone pray std ue

Regs pe Pa AEE a

21! to be telling the truth, he do not involve his READ Lane eps gen? neath

22 self. He do not involve what we call put his Rocchi oS BT

tek deen ey? 2 , + UY

yest 37 ne .. 9 ~ Bi 1

251! self in a position that he is telling the truth. Pi Sake eked a

241 He don't cure if he is intelligent enough to aaa R ice

‘ i. beta}, . a 4 Une

25 make a taped atatenent to produce to you. URES ee “ate

ApH tid ins

26 I came back again. The police f ot Upto ge. ys

SUPERIOR COURT, PIMA COUNTY ¥ a A bed es Re

Oe +P. ee)

ta ON main oer Na te ek ie NF a th te a Ue lh Riso ne ye

TERED sentry ans ie nett et dee od ana as rhe Ma ngs Meh lee, aA gryytn RV}

ee i @. “ets ° pate - ot ‘ . en ya a Ka rh mt mas ‘Ss gare ° , » hy: “ ; PS

Pie ee: ‘ EP ad ape etT ULAR RATS AR BE SEL Un SE of NEES es

nn NS Fernie SAE ROT aay x Cs SR AE SS BAG ERS Te 88 29. (ith) Heh ee 4 bgt

RSIS eR a i crenata ‘ or CAM OT SPR SAR OSE T lot Baa oD. We Vong ae

aa x 4 - * F . ; 4 Ke ie 5 44 as ‘ ‘ ; “ . n ; : Wy J wt ‘ mAnrte | bia , Aa ‘ Ss $ 2 iets

De apes a ? abe Be : taal bagthate 43 Se ees.

> re fh" . ,% : . . . Per iar tM ete ayy ya & | <7 , . rv sep rete

NA oo OT YS TG et ay ing oe Spas oy aces : te a ee pr. f a HS age ao + ad cae

. \¢ oe De ‘cs 4 der * yp EAR P ay Say wun : °° if Moa | 4 ® 7 al ae)

“ute WAS A Ra AT $ : ee HE WEY SN eh iO Ri By ; te

: wu ok a 4 be - ee en SN

SP 8 ak a , vi as Lays aa, SP RG eiegee ot a NERS ays intl

<. ra AK ro . * Aun? Re tye . ho APP. 15 Pray 3 ¥ ’, v ’ ei nt ‘ ’ ‘ AN : ae

oy Bee a Le ae te " Le ty n) 5§ Tr. = 7. 127 ts “ities Nf, ees oe Si AS oa ar

een, pl a ats i 4 we re | e Oe y : ry ne hs au = vay ue ii a rae Bbes | oh

NE Nt Re ee Ne obs ak pees Fae S98 eae Bae

. rot hem tt otd Soe ‘ee . -

e officer, that's the only thing they could do, | i.

hs to call themselves to present a case to you. 3. HY

3| Does the man come back and say, "I have a confes- hi | *

4| sion. TI have a confension that he stated to ‘ nea tthe at

Cs ee i Roane OT oe rs ; 4 Bs . :

6 Marmion, I remembered it from my ‘ is; fins t : ip ¢

7| mind because I copied it down, eit Ae eens “hi

‘ie T said it to you. I said it, but pa ‘ Ay A Page a

| 9| it was on tape. But the — officers come at sae ey M0 ae

10| the jail house and say I say something verbally. Bashy i e i 5

_ ]22] and then ne wrote that down. And he transcribed fete | oe G

12] it and put it on tape, but you never told it was | oe: ) :

13] involuntary and he never told it was on tape or i, ‘

14] nothing like that. is i a i

15 : The statement must be involuntary i eri ie

= 1261 (sie). aa iy : at

* 17 Ladies and gentlemens of the jury, ae ' nnsss) Ne

: 18/ you must consider all of this evidence that is Be Se | is : ) i J

4 aw brought in to you. You must consider this evi-~ eee s f : a

*,|201 dence because you are the judges in this case. pels! oi nae bh Se

.! 21 You judge -- youre judges of what pi ie ee ii oa

‘ 22| r'm saying in the terms that you judge all the bes 2 5

é 25| evidence, but as I know that I'm not a attorney a * ys : pie ‘if fig

4 24] at law, and I know that people of the jury not iis : ee a

i 25] attorney at -- any kind of law, and any kind of yc ri 4

i 26|/ a degree, but they must understand that the Berane x 9

of, SUPERIOR COURT, PIMA COUNTY t . G

' : 4

es SAR eee hh hy : te ;

echt! (ica Geach RES Seah:

APP. 16 Rilke Bau ratlet Saag AS

PSyh oe’ , 5 Tr. - P. 128 pan RE eee ot te a

os eaaetae! Aa a AEST EN

~s -

?

j ,

* 118] put on, because he did not weigh the evidence that aes

yy eras

“1191 ne had, he had what we call evidence of what he Aas :

’ Biya ap ? e ‘

20| could drive to you was a statement. And the bebaaiee yl.

bat

- Ly. M sy " -

121] statement was, he could drive to you, was that oy MASA fs

- pre SA.)

3,122] a man said he was involved. A man say he was rie y

otsta

23| involved in a crime. ae

| 124 But, ladies and gentlemens of the ps .

: . OA

25| jury, me, I'm saying I wasn't involved in no aah

NR \

LPLy | :

26] crime. I did not participate. I did not aid

¥

ee SUPERIOR COURT, PIMA COUNTY 4

> Ra Sy

AP A eat or AE a eet Sean, 5 tres is BT) Sr 2 ery: a eR Ati ERO iran ove a

ORR et OR EASE Neg Myo a8 9 avy Ho cla Fags WC hry Be alo SaRut haintele: Ruston et ta

at ees ' AE hy Ph Oe FAS * é el APSA le Sth SS Oe: ‘eh rr, 2m \ Sw 4 Bho ;

JOY GRRE Cn Uren a a ena i AN hints Pat! pent

Bike ee Ty Metts Wey SPEF ict LES SRA aL SAREE aA

P ‘ ave ; x © vol “T ‘ , oe “he % . a , th 3S ¥. t) cA S ‘¢ fw ‘

Ce i ’ vs e Pe ~ ‘ Se he yy ey :

er oa . ‘ is ft ‘ 2 « .- yo ae . ¥ , : 7 S$ aT Saer m ANS Of

Wier seam Re RS ts ST SL Bi MOTs )

Re Maia, 3) . CAM, rat ne As res Sets eee eet

GO Sere Ree F ITS re SCOT LONG Th 0

i . Ly es te te * i) 5 ey ve 5 Ney 7 . '

: i 3% Ste ay SES NCES Mes 4 APP. 17 Ras janths Age ta ede Fa ah

srt ver, id . “el oe eee . are o's hws ” so

ETRE LRU: Pe aco ane 5 Tr. - P. 134 Ore wp ined Laeatte acess

Br ” ' uA ae ’ vy Se .* ‘u ~~.” | . "> y ~s -.

st yas! ** “ Ve ay oy, ae ry ve opiate G y ae, os ee

ree AD ate + on A Sar OSe : ~ ” we /

“re oe

¥ oO

4

a

Ss

eo @ogoxareeae @

“ew ke BP YP YF

2 @a es w WD

In that time or that place or

that position that this is the man, that man,

them type of gengee,

I'm just a ising a human being.

Sure enough I'm a black man, but judge me, ladies

and gentlemens, as the evidence has presented to

you, not a person accusations that the D.A. pre-

sented to you, but judge me as a human being and

as all the evidence that has been presented.

And because of these reasons,

ladies and gentlemen of the jury, that all the

evidence I have presented to you as well as the

State, you weigh this evidence that I put on my

defense. Police officer, witnesses of credibility

and my whereabouts. This was my defense.

And then the defense that the

State has put on and the only defense he could

ry ¢ bh

bei?» yf

be

Lk 5

j ‘

a ‘

x “

] i 7 u .

payed eae

Aiattatiat ats

" ‘

Ae ad ,

eiarantametia ts SOIR AMY BY

. CY, a Ea ee m &

a Pa

hy ied |

BO UN Ee ke % a “4 ;

x SCR n Sh AA Sat 1 5

sis Blk Ny oben BE oy yesy’ at

3 re oP 9 VO. ce +e) be » vey 5 ‘ v Yr

Dae Bet aaa a Sead oA ae \

PN Lar een . het? tia Pahlors #4 tpt ye

’ “ ‘ 2 . ‘ s* ‘ Ave 8

‘” Ets oy ’ at ‘ yee es eve

é +s x. yee * wv

: . AD ee. ” ve Ws "4. ya oo . ee shan <u ak )

, sy! ne ahaa ne,” Warton @ j isd, ed “ “a ‘ * ite!’ i

Ae as ovate fs aN yrlarese et ASS) Ce ek a Nat ¥ ‘ ph Rs Fy y y ae VP. Bed

ae Gee escent Nets Soe ty ats mia “ ? Wire

w ES» 14 aan | ‘ sate ark x A Lag Pethy ee ry Ne

pale a yee voy "+ Whe “* , \ 4

. i] e ‘ | ' ay

st: | ae fF ~ § , * 7

MA, : Dah “ ae es SAS art ony -*>o> is aF F;

vy Py Yor AY OA b4 Ode paula APP. 18 ae Ss "eos, » 9

a ade, wh Py rn : my EN 4 “A y ‘'. x2 ; .

Ar a8 . vy" ; Ms ae S Rios 5 Tis - -. 135 met aN ie ~% aa? ,°

i a era ae RPA gs eater eT TR a thy

: pay on : we 28s eSNG Pe ai Me mm rekey vu

rs ” e6 ,

Ray DN Gravy f

b ass: :

1] and sree and I did not participate in no orime. va +s)

2 ‘ _ I'm saying to you I'm innocent be ce

5| Of these charges they have towards me because ft : ‘S rae

4| Annocent lies on the basis I have presontod to Bis? ih

6} you, the fingerprints. ‘That is a factual basis. i wu ‘ Ay

6| A basis that produces evidence and you must Yat i "3

7| weigh that. Eyewitnesses evidence. You must fae ak i

8| weigh all of them facts, Geni uk ie

9 And people. Eyewitnesses have told agen * ied

10 the police at the scene of the crimall of the [' Me ne i

ll evidence. And the credibility of what a person pir , |

12] consider or what a person can say of everytime a

13] a dominating thing. Look around and it's a Sia

14/ dominating factor in this case. a

16 And as I stand here today to you, pr : |

16] ladies and gentlemens of the jury, I stand with pai dab hs Se

17] you as to explain, as I told you before, I'm nat : Ra A a

18! attorney at law, but explain to you that my bythe Hike 4

19| @fense -- and my defense is my innocence as well § : r | re Bete ae

20] as I can explain. That's why, like I told you, Mi at Bie

21) this is a serious case. This is a very serious eee mi | ph:

22 case. You must hear and understand the things Bea mie a

os that are alleged in this crime and all the evi- ee “oh

a4 dence, and because a man sits here to explain to Coes} 3

25/ you the evidence that has been presented. rest foe

26 | The only way I can explain to you KS

SUPERIOR COURT, PIMA COUNTY a . ith

%

~ \! 4 ‘ Pe

c ean” een 5 “we

: Res oR,

be "ye ~ "sbte?

’

eos Sef v

. a oe , ¢: 4

° ae Ar et

‘ 4 fy’ Sel

ee | )

* = ' " t

, 77

ny 4= 166 . At)

5 MR. LINGEMAN: No, f eae “)

are or aye a

2 THE COURTs All right. rt's five y Pn Meh

5} minutes to six and I'm going to have the bailirs Seria kere me Be

4| take the jury out to dinner and I'm going to AP Spey: pee “n

hy

6| take this request and your record that you just ; rae Hit aye

ae , ; "4

6| made under advisement and meet back here at seven ay wig feng O55 I

7| thirty this evening and make a ruling on it, ae GL SR Ne ae

ry Ay if mY \ wen \

8 T am golng to send a written note BS a a Wes CHE a

‘* ‘ We + ay . i

9] back to the jury. Will you take this down and BO ah ' yee

10] type it: "I have your question. I'm not able % es iy

ll to answer the question for you until == r'm not Bre Sate a

12] able to anewer the question for you at this

13] time. I am going to send you out to dinner with J

14) the bailiff and when you return from dinner I will q |

15} have an answer for your question shortly." aiacktenctieee: he

6 Now, there is one other thing z aN ath Sa a ret ea nth

Wie otf ty ie aT tis

7] want to put on the record, he vas ae yee %

PRA AT Shin EOL

8 T am going to have these marked as 4 Rete hare Pea ere ft

9] Court's exhibits, not to go to the jury. ashore ty ff Saas " it

| . Rreervts? beaibes Cece! by Pee

The first one is what Mr. Lingeman pep tase vite } ty By we vs

ne San Noro Me : ‘gen

wrote commencing his closing argument and it says taba be ae Rey

ARAN iene Seed 3

the defendant confessed. rt will be marked Mrsiginae et ok

dis Bye! i“ i: -* Ny

S|Court's Exhibit No. l. Wea iiheaey Sea

And the second one is what the ic aaie Fahy Shs hy a

defendant wrote commencing his closing argument. Pee ye 53 ae

5 nth . ; : ye AY, ta

6 | "the defendant did not confess." That will be 4 Vana ea + Me

. > ** SUPERIOR COURT, PIMA COUNTY ; BAK r uf

‘ 4 ‘ 4; i - y

Sih ennai ca arate seamen ‘ ome cere retearcern Bs s% *: on ‘

s . ' SUING ty Ne Ar — “ a yar 1° a ue iv : hs

ie bs feng 2Bh Grate eal peta " ‘ ae St weg Ye 3. vs, ne Ki MEY «

Sy "r . ek! > sesh ay 19 hye A ; aRAL ’ Ki ney Pasa . oe,

hae iy “Saint p if ve we SN a ee i P' $ : a ; ee ish : " vp ‘ D ve) Hy a BN :

. . ? if Xe pant ot at 8 “it A eb x ars { “8 Basal . 3: ae a

rs 4 ‘ My wats iP 3, oS STAIN Yate es: is vl Swlarivane: *~ ie ‘ ; : “* ee,

os we rhe wtih Be “a ma + wee * Fy ‘ ered Sa,

NOeH Rae eo OF i 5 Tr. - P. 166 SS Sc ch MRE Ra

Et hae” RRS er aes ae male ne ia Be ea ae

+ Pry a SEBS abate get me oe : -\ ae eRe

oe te ure We ge’ "fe ° . "