Anyone But Duane

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He eventually reached Salina and registered at the same motel in his own name. He obtained his Buick. He went to bed but at two a.

Duane Allman: A Matter of Influence

He went on to Wichita where he abandoned the Buick. He placed money and and another gun he was carrying in a storage locker and went to Tiajuana, Mexico. He attended a bull fight. He returned to San Diego and checked into a hotel under a false name. On June 7 he bought a used car under another name. While purchasing the car he saw a newspaper and read of the Big Springs robbery. His car broke down. He took a bus to Las Vegas where he gambled and amused himself until Thursday night, June 10, when he read in a newspaper a message from the president of McPherson College appealing to him to turn himself in.

He decided to take this advice. On the morning of June 11 he flew to Kansas City, Missouri, and checked into a hotel under a false name. He telephoned the McPherson president and then the Kansas City police. At the trial teachers, staff and classmates of his high school and his college years and businessmen and employers at Roxbury and McPherson testified that Duane's conduct in their experience was exemplary.

His high school superintendent could not recall any problem of discipline or behavior with respect to Duane. His Roxbury employer considered him 'the best man I ever hired'. His college football coach described him as cooperative and as giving him 'the least trouble of anybody that I had'.

His harvest employer said that he did his work 'better than anyone else'. His home town banker, from whom he had borrowed money, described his attention to his credit responsibilities. The McPherson buildings and grounds superintendent, under whom Pope had worked during his college years, said he was 'the best of any of them'. Except for parking tickets and one minor traffic violation, there is no evidence that Duane Pope had ever been in difficulty with law enforcement authorities.

The defense's seven basic points on appeal concern: 1 two confessions; 2 a court-ordered psychiatric examination; 3 the selection of the jury, and, specifically, a the Nebraska selection system, b the exclusion of persons with scruples against capital punishment, and c the court's refusal to inquire as to political and religious beliefs; 4 the limitation of evidence as to mitigation and rehabilitation; 5 a refused instruction as to the jury's authority not to impose the death penalty; 6 a refused instruction that a finding of not guilty would result in hospitalization until cured; and 7 instructions as to criminal responsibility.

The confessions. Two written confessions were taken from Duane Pope at Kansas City and were offered by the prosecution and received in evidence. The defense claims that the trial court committed prejudicial error in denying its motion to suppress these statements and in admitting them.

An initial word as to the content of the statements is appropriate. It is fair to say, we think, that the great bulk of the confessions' recitals is of no real significance, so far as proof of the case is concerned, for the material was otherwise proved by the prosecution or conceded by the defense's Judicial Admission and is not contested.


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The first confession is one of six pages. It contains only narrative matter, such as Pope's driving to Big Springs, the robbery, the shootings, and his disposal of the weapon. None of this is probatively unique in the record. The second confession as one of nineteen pages and is much more detailed than the first.

While it, too, contains a great amount of factual material which is otherwise proved, it does embrace recitals as to purpose and motive. It mentions Pope's making the silencer 'to reduce the noise when I fired' the gun. It says that Pope 'had been thinking about using this gun in a robbery of the bank at Big Springs, Nebraska'. It further states, 'My plan was to rob the bank and then kill everyone in the bank so they would not be alive to identify me as the robber'. It tells of Pope's arrival at Big Springs late in the afternoon of June 3 after the bank was closed, 'so I did not rob the bank that day as I had planned to do'.

It recites that he shot the four employees 'as I had planned to do to be sure they were killed so that they would not be alive to identify me as the bank robber'. It is therefore apparent that, from the defense side, the confessions could be really critical only as to the expressions of planning and of reasons for killing contained in the second statement. All the rest is not contested. And even as to these possibly critical areas, we must bear in mind that Pope took the stand and that defense psychiatrists testified. Pope and these psychiatrists explained directly to the jury what they felt about motivation.

If, as claimed, the written statements contain factual errors as to motive, the defense, through this testimony by Pope himself and by his psychiatrists, possessed the opportunity, and availed itself of it, to explain away these alleged errors. Thus, any trial significance of the statements fades considerably and prompts one to wonder why their introduction was felt necessary or advisable.

Nevertheless, we examine the facts as to the taking of the two confessions. Pope called the Kansas City police from his hotel room in that city in mid-afternoon on Friday, June He said that he understood he was wanted for the robbery at Big Springs and that he wished to give himself up. He gave the name of his hotel and the number of his room. When the police arrived the door to his room was open.

The officers entered, found Pope seated, identified themselves, told Pope he was under arrest, and asked him to stand. He did so and 'immediately turned around and put his hands up on the wall of the room'. He was searched and handcuffed. As the handcuffs were being placed, the officers advised Pope that he did not have to make any statement; that he had a right to counsel; and that if he did say anything it could be used against him.

Pope replied, 'I know about that stuff'. He was never booked by the police. Two agents of the FBI came immediately to headquarters. They identified themselves. The defense brief states, 'It is agreed that the defendant was warned about the Fifth Amendment and that he had a right to consult a friend or an attorney before making any statement'. Special Agent Harman testified that Pope said that he had surrendered because he had read he was wanted for the robbery of the Big Springs bank; that he asked Duane if he understood that three persons had been killed in that robbery; that Pope acknowledged he did; that he asked Pope if he realized that the person responsible for that robbery could be given the death penalty; that Duane said he did; that he was asked whether he was willing to make a statement; and that Pope said he was.

Agent Harman reduced the interview to writing. The room was not locked. During the interview persons opened the door. Pope was offered cigarettes and coffee and his request for water was honored.

Duane Allman: A Matter of Influence

Agent Harman testified that when the statement of June 11 was written he showed it to Pope and explained that it was his and not the agent's statement, and that they read it together and out loud. At one time Duane put his face in his hands. One correction was ordered by Pope.

He initialed it and each page.

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He wrote a final paragraph in his own hand reciting, 'I have read the above six page statement and it is true to the best of my knowledge and belief', and signed. The statement acknowledges that it was made voluntarily to identified FBI agents; that he had been advised he would not have to make a statement; that any statement could be used against him in court; that he could consult a friend or attorney before making a statement; and that if he could not afford an attorney, one would be provided for him by the court free of cost to him.

Pope was then taken before a United States commissioner who testified that the defendant appeared to be 'alert and calm'. The commissioner advised Pope that he had a right to a preliminary hearing and to counsel but made no reference to providing counsel free of charge; that he could not be compelled to testify; and that if he did it could be used against him.

The charge then pending was only for bank robbery. When the commissioner asked the United States attorney for his recommendation as to a bond, he was told in Pope's presence that three people were killed during the robbery. The matter was continued pending the arrival of a certified copy of the complaint and warrant. The next day, Saturday, June 12, Harman and another agent again interviewed Pope in the sheriff's office at the county jail.

He was advised that he did not have to make any statement; that if he did it could be used against him; and that he could see a friend, relative or attorney before talking to them. This interview was also reduced to writing by Agent Harman. This second statement of June 12 also makes the preliminary recitals about identification of the agents, the possible use against him of any information he gave, the right to consult a friend or an attorney before making a statement, the right to a court-appointed attorney free of charge, and the absence of threats or promises.

The robbery, the shootings, the departure from the bank, and the disposal of the silencer and gun are all described. Pope again called for a number of corrections, initialed them, added a closing paragraph, and signed. During this interview the agent went out and brought back a gun which Pope identified. It was also interrupted for Pope and the two agents to have lunch. We are aware, of course, of the ever tightening standards being promulgated with respect to the use of confessions in a criminal trial. We are particularly aware of the reversal of a conviction in Escobedo v.

State of Illinois, U. We are also aware of the reversal of convictions in Miranda v. State of Arizona, and in two companion cases, U. And we are aware of what may be a trend toward the elimination of all written confessions in criminal trials. Duane Pope's trial, however, took place in November ; the verdict was returned December 3.

The trial thus occurred after Escobedo but before Miranda. As everyone knows by now, Escobedo and Miranda are not retrospective in their application. Johnson v. State of New Jersey, U. Each applies only to the case where the trial begins after the decision was announced. Accordingly, Excobedo is applicable here but Miranda is not. We are therefore primarily concerned with deprival of counsel rather than failure to provide it.

It is at once obvious that the Pope facts fall far short of the extreme facts of Escobedo. It is true that, as in Escobedo, inquiry had focused upon Duane Pope but, in contrast to Escobedo, Pope had not been refused an opportunity to consult with counsel and there was no absence of advice as to his right to keep silent. Pope voluntarily gave himself up in response to his college president's broadcast appeal and telephone conversation. Pope's was not a forced surrender.

He traveled from Las Vegas to Kansas City for this purpose and on his own initiative. He called the Kansas City police and advised them of his whereabouts. Second, Pope concedes that upon his being arrested and handcuffed the police advised him of his basic rights. Third, his statement at the time of this arrest demonstrated an awareness of these rights.

Fourth, the FBI agents, at the time of his being turned over to them by the Kansas City police, advised Duane of his rights. He acknowledged to them an awareness of the killings during the robbery and that the person responsible could be given the death penalty. Fifth, the United States commissioner, prior to the taking of the second statement, advised Duane that he need not make a statement, that he had a right to counsel, and that any statement could be used against him.

Sixth, Duane was an adult and a college graduate and was not a person of subnormal intelligence. Seventh, there is not the slightest intimation of abuse or undue pressure by the police or the FBI. The trial court's finding that both confessions were voluntarily given thus has ample support in the record. Indeed, the record contains little, if anything, which would support a finding of involuntariness. Even under Miranda's particular 'heavy burden' imposed on the government to demonstrate a knowing and intelligent waiver, p.

Zerbst, U. We therefore hold that the record adequately supports the trial court's conclusion that the statements in question were voluntarily given by Duane Pope after he had been properly advised of his rights. Their introduction in evidence at the trial was not error. See Golliher v. United States, F. The court-ordered psychiatric examination of Pope.

When defense counsel were promptly appointed by the federal court in Nebraska they moved for a continuance of the arraignment. This motion was granted and arraignment took place in July.


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Pope pleaded not guilty to all six counts of the indictment. On the day of the arraignment the defense moved for the issuance of subpoenas pursuant to Rule 17 b , Fed. The defendant's supporting affidavit recited that these witnesses would be expected to testify that the defendant on June 4, , 'did not have the capacity to control his behavior and to choose between alternate courses of action'.

This motion was granted and the subpoenas were issued, with payment of expert witness fees to be made by the United States. The defense of insanity was thus indicated. On August 27 the government responsively moved the court for an order 'permitting psychiatrists and psychologists selected by the plaintiff to conduct examinations of the defendant as to his mental condition at all times material to this action'.

This motion was opposed by the defense; the court denied it 'at present'. During the trial, after Pope had taken the stand and the defense had offered expert testimony as to Pope's mental condition, the motion was renewed. When so renewed it was granted. Defense motions that it be furnished a transcript or recording of the Government examination were denied. The court recessed over the Thanksgiving weekend to allow time for the examination.

After the recess, the government examiners were called as witnesses. One of them, Dr. Groves Blake Smith, testified:. This shooting people, however, was usually associated with the fact that this was a part of robbery, and that the robbery was the means to an end by which a person who committed a robbery would gain financial benefits from it. This was one of the things that I think was the means by which subconsciously he felt that this was the means of getting money that he could not get-- borrow from his father, that he could not get from loans, or that he didn't have the ability to do sufficient work to build it up, but he did want to when Melinda came back have the possession of money that would allow him to feel that he could provide for her in the way that he wanted to.

Now, this was, I think, a definite mechanism with the fact that he still feels the depth of love for Melinda was the motivating factor for his desire to get money together. Error is claimed to exist, first, in the court's requiring the defendant to submit to this at all and, second, in the court's refusing permission for a transcript of the examination.

The claim on this issue centers primarily in Dr. Smith's quoted testimony. The defense asserts that no power exists in the court to order the examination; that, as a result, government psychiatrists testified as to Duane's motive for the crime, namely, that 'he did it for Melinda', by 'relating admissions supposedly made by' the defendant; that this is testimony 'in essence that the appellant did the killing because he wanted money for Melinda'; that such inferences should, instead, have been developed in cross-examination of Pope and 'not from a star chamber proceeding'; that the Melinda motive was not evident from the FBI testimony of from Pope's; that, contrarily, the whole of the defense case 'was based on the fact that there was no ostensible or rational motive for the crime, but only a motive based on an unknowable, unconscious desire to kill'; that even when one is ordered to testify under an immunity statute he does so in court and in the presence of his counsel; that the only analogous procedure is that in Rule 35, Fed.

We note initially that there is no contention here as to the insufficiency of the evidence if the government's psychiatric testimony is admissible. We also note that the defense position that motive is suggested only by the second confession and by Dr. Smith's testimony, may not be completely accurate.

The defense's principal contention, of course, is that Pope had absolutely no motive or reason for the robbing and killing. Absence of motive is used by the defense to substantiate its claim that Pope was indeed insane and thus not criminally responsible. The defense suggests that the only explanation for Pope's action is that he was suffering from the schizophrenic reaction indicated by the defense psychiatrist-witnesses.

There is, however, some evidence of motivation in the testimony of others. Police detective Smith testified that among Pope's personal effects there was a photograph which Duane described as that of his fiancee. FBI agent Harman testified that Pope stated that he needed money because of his substantial debts, his desire to go into farming and his desire to get married. The defense contends that these debts were not bothering the defendant; that he had no such pressing need for money as would prompt him to rob a bank; that his only reason for going to the bank was to kill as the result of a schizophrenic breakdown; and that the robbery was secondary.

In rebuttal the government presented Gerald Johnson, who knew Pope while he worked during the harvest season in the Big Springs, Nebraska, area. There are, thus, intimations of motive apart from the second confession and Dr. Smith's testimony. So far as counsel and we have been able to ascertain, there is no federal case precisely in point in this area. We note, however, that in the habeas corpus case of Early v. Tinsley, F. See, also, Fouquette v. Bernard, F. It is true, as the defense suggests, that prior to the adoption of Civil Rule 35 in , a divided Supreme Court held that at common law a federal court possessed no power in a civil case to order a plaintiff to submit to a pre-trial physical examination.

Union Pac. Botsford, U. The result was otherwise in a diversity case where an authorizing state statute existed. Stetson, U. And the federal rule, since it was adopted, has been upheld on a procedural-versus-substantive approach, although only by a 5 to 4 vote, Sibbach v. Holder, U. We recognize, too, as the defense also urges, that it has been held that:. A defendant's refusal to cooperate with a statutorily authorized psychiatric examination does not disentitle him from asserting a statutorily recognized special plea of not guilty by reason of insanity.

French v. District Court, Colo. Evidence of a military defendant's refusal to submit to a psychiatric examination is inadmissible. United States v. Kemp, 13 U. Where the state is permitted by court order to have a psychiatric examination made of the defendant, the presence of a defense expert would be in order, and if the presence of defense counsel is not permitted, 'consideration may be given to the feasibility of permitting such devices as recording instruments or the like to be utilized at the psychiatric interview'. State v. Whitlow, 45 N. See Dziwanoski v.

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  7. In the absence of a statute a state court has no power to order a psychiatric examination of the defendant and to do so may be a violation of the Fifth Amendment. Olson, Minn. But these authorities, even if we were to accept them at face value, do not provide the answer for the facts of the present appeal. Insanity is the asserted defense here. Pope himself had taken the stand and had testified as to his lack of motivation, his urge to kill, and other aspects of his behavior which conceivably were pertinent to his defense.

    The defense had also presented the testimony of one of its psychiatrists and its psychologist covering their examination of Duane Pope and their opinion as to his schizophrenic state and his competency at the time of the robbery. Until all this had taken place before the jury, the trial court meticulously refrained from granting the government's request for an independent examination of the defendant.

    When, however, this defense evidence came forth from the witness stand, the issue of insanity thereby progressed beyond the indicated or suggested stage and was present in full force and as the primary issue of the case. Whether one frames his approach in terms of waiver or of fundamental fairness buttressed with appropriate protective instructions, see State v. Whitlow, supra, we fail to perceive any constitutional violation or prejudicial error in what the trial court did here.

    Certainly, the criminal trial is still a search for truth subject, of course, to constitutional guaranties. It would be a strange situation, indeed, if, first, the government is to be compelled to afford the defense ample psychiatric service and evidence at government expense and, second, if the government is to have the burden of proof, as it does with the competency issue in the case, Davis v.

    United States, U. Yet that is precisely what the defense claims is appropriate here. While we have recognized that expert medical opinion may not always be an essential on the government side of a competency issue, see Dusky v. The New Jersey court phrased it well in State v.

    Whitlow, supra, p. He ought not to be able to advance the claim and then make the rules for determination of the claim. Pope did cooperate with the government examiners as well as with his own and did not stand mute or only partially comply. We also observe in passing that Dr. Smith's testimony here strikes us as not being merely a recital of what Pope said his motive was. There is, thus, no third party hearsay presentation by the doctor of that motive as a fact. Instead, what we have is Dr. Smith's considered opinion, drawn from his examination, as to why Duane did what he did.

    This is Smith's opinion, not Pope's compelled self-incriminatory concession. We recognize that the Supreme Court in its recent blood alcohol case, Schmerber v. State of California, U. But that was a case of non-consent; it did not concern a totally exonerating issue advanced by the defense itself and presented by the testimony of the defendant personally and if his own examining experts. We therefore specifically hold that by raising the issue of insanity, by submitting to psychiatric and psychologic examination by his own examiners, and by presenting evidence as to mental incompetency from the lips of the defendant and those examiners, the defense raised that issue for all purposes and that the government was appropriately granted leave to have the defendant examined by experts of its choice and to present their opinions in evidence.

    We further hold that Dr. Smith's testimony was opinion evidence and not hearsay and was properly received. What we have said applies to the additional and subordinate suggestion by the defense that a transcript of the government's examination should have been made and supplied to it. See State v. Snyder, Neb. Superior Court, Cal. The selection of the jury. Under attack here, on Sixth Amendment 'impartial jury' grounds, are a the Nebraska suggester, or key man, system of petit jury selection; b the trial court's exclusion upon voir dire of persons having conscientious objections to capital punishment, and c the court's refusal upon voir dire to inquire into the political and religious beliefs of the jurors.

    The suggester system. The immediate answer to this aspect of the defense attack is that one is compelled to conclude that the point was neither timely nor appropriately raised in the trial court. Although there were pretrial motions to suppress evidence and, as our subsequent discussion indicates, for non-exclusion of persons having scruples about capital punishment, there was no formal challenge to the entire array or anything in the nature of a motion to quash based upon an improper selective process. Trial was set for November 1. The entire day was occupied on voir dire.

    Only at the very end of the day, after 49 jurors and 4 alternates had been selected, and after the jury was excused for the night, was a general objection orally made. No offer of proof as to panel selection was made and no opportunity was afforded the government to refute the contentions now being advanced. Under these circumstances, the objection came too late and in an improper manner. Frazier v. We would be fully warranted in holding that the issue is not before us. Nevertheless, because the issue is strenuously urged on appeal, and because this is a capital case, we comment on the issue before leaving it.

    With the point not raised below, the record contains nothing about the Nebraska system of petit jury selection. The defense would supply this lack by exhibits attached to its appellate brief. This material consists of: 1 The January order entered by the two active federal judges for the District of Nebraska providing for the selection of petit jurors for trials at Lincoln from eleven area counties, as prescribed by 28 U. This letter listed the statutory requirements for jury service prescribed by 28 U. This does not mean that only persons of wide public recognition or high estate are wanted.

    These qualities of good citizenship are found among the unheralded just as often as among the prominent. This form as now employed, is not dissimilar to the example in the Report of the Judicial Conference Committee set forth at 26 F. Rudolph, defense counsel transmitting these items. This letter recited that the persons listed by the suggesters are not automatically accepted as jurors; that they are only a source of names; that the questionnaires are examined and, if necessary, additional information is obtained; that 'no deviation was made in the Pope case from our usual practice in making selection of jurors'; and that the jurors for the Pope case were actually drawn in March , a date prior to the crime.

    The letter, however, also contains the following sentence:. We note, initially, that no question of race is involved in this point. In Beatrice Foods Co. There, however, a specific pretrial and even pre-pleading challenge had been made and evidence as to the system had been introduced.

    We observed there, as we may properly observe here, that the attack was not based on the ground that any particular person on the jury was not qualified. But we also observed that Congress has prescribed no particular method of jury selection; that the method rests largely in the sound discretion of the trial court and its officers under the guidance of the pertinent statutes; that there is a presumption that the jury officials have discharged their duties properly; and that when the defense claims the existence of a fatal flaw in the selection process, it has the burden of overcoming that presumption.

    We held that the sponsor system is not in itself an invalidating factor, citing Walker v. United States, 93 F. See Scales v. Hoffa, F. We also noted in Beatrice that no claim was there made that the jury was not representative of the community in that an eligible group had been excluded in its selection. The defense in the present case attempts to differentiate by asserting that groups were eliminated, namely, the academic community of the University of Nebraska, and younger and more transient people.

    It is argued that 'in a murder insanity case it is accepted by experienced trial attorneys that older persons and persons who have lived for a long time in one community are less likely to accept an insanity defense than younger persons and persons who have lived in several localities'; that persons connected with a university move more often and are not well known in the community; that such persons should be represented in the venire; that the longtime residents are not the whole community; and that the views of older persons and of longtime residents toward mental illness and toward capital punishment are not the community attitude.

    But proof of all this is totally lacking. Further, we share the trial court's skepticism about the accuracy of the defense statement as to psychiatric testimony and younger people. We also note that at least one juror on the panel was the widow of a professor of engineering at the University and that the panel contained many persons who possessed college degrees or who had attended college for one or more years.

    As we have noted, the burden of proof is on the defense as to this feature of its attack on jury selection. That burden is not met by generalizations, unsupported by specific proof, as to attitudes of age and other groups toward mental illness, psychiatric testimony, and capital punishment. We suspect that the source of much of the defense suspicion here lies in the respective paragraphs quoted from the clerk's form letter to suggesters and from the clerk's letter of April 25, , to defense counsel.

    Despite the former's references to persons of 'good character, and who possess integrity, sound judgment, and a sense of responsibility', we certainly cannot hold on this record, as the defense argues, that the suggester system 'may result in a jury biased' toward the very kind of people so described. The paragraph in the other letter is directed to the sponsor, not the juror whom he suggests.

    Anyone But Duane

    The defense urges upon us Rabinowitz v. We are frank to say that a careful reading of the several opinions filed in that case affords us little effective assistance in resolving the issues presently before us. The opinions reveal a sharply divided court, with Judge Brown, although fully concurring in the result, noting, p. That case, as this one does not, pivoted precisely on the race issue and civil rights, and, p. The result was a condemnation of the Georgia system in its specific operation. Further, the government itself in Rabinowitz conceded that the jury lists were inadequate.

    Judges Bell, Gewin and Coleman concurred partially in the result simply because the prosecution recommended new trials. We, of course, do not express disagreement with Rabinowitz on its facts. The majority opinion there does not hold that a suggester system is per se inadequate. Consequently, we do not regard Rabinowitz as authority for a conclusion in our present case that the Nebraska system, in its operation and as applied to the selection of Duane Pope's jury, violated either constitutional principles or federal statutes.

    As already has been noted, the defense argument here centers in a claim that the Nebraska system operates to exclude the younger person, the member of the university community, the more transcient individual, and the one possessed of bias toward capital punishment. The last factor we discuss in greater detail in the next subsection. The others, it seems to us, as we have said, rest on theoretical considerations and assumptions and fail for lack of proof. Conscientious objection to capital punishment.

    The trial judge on voir dire excused those persons who confessed having scruples against capital punishment and who answered affirmatively when asked whether this 'would prevent you from imposing the death penalty if you conscientiously felt that such a verdict was proper under the law and under the evidence as you understood it'. The defense suggests that this leaves only those who 'believe in capital punishment'; that such persons are more likely to convict and to impose harsher punishment, when they have a choice, as they do under 18 U.

    In addition, the defense supported its unsuccessful pretrial 'Motion to restrict to peremptory challenges the United States attorney's challenges in voir dire of persons having scruples against capital punishment' with the citation of two studies, namely, Zeisel, Some Insights Into the Operation of Criminal Juries confidential first draft, November , unpublished , and Wilson, Belief in Capital Punishment and Jury Performance apparently also unpublished. The defense also argues that, because its offer to produce the authors of those studies for cross-examination was refused, the authors' 'findings', for purposes of the appeal, must be accepted.

    We think that this does not at all follow. Despite this case's character and an amount of notoriety, the record does not indicate that there was any great difficulty or consumption of an inordinate amount of time in selecting the jury. Under Rule 24 b , Fed. Consequently, the panel contained 52 plus the four alternates. Under the careful guidance of an experienced and able trial judge the selection of the final jury of 12 and two alternates was completed in two average length days. As we read the record, 27 persons were excused for cause.

    Of these, only 10 were dismissed because of scruples against capital punishment. Others were asked to stand aside because of acquaintanceship, general bias, bias due to publicity, or other reasons. Few, if any at all, can be suspected fo using a claim of bias as an excuse not to serve.

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    We get no impression that this was a 'blue ribbon jury'. See Fay v. People of State of New York, U. We also note that, on the other hand, among those excused by the trial court were three persons who indicated a tendency toward insistence on capital punishment, apart from other evidence, for a defendant who would admit a bank robbery accompanied by a killing. Thus we have a purposeful and successful effort by the trial judge to obtain persons who were not prejudiced either for or against capital punishment.

    This was a search for neutral jurors who would follow the court's instructions. It is not demonstrated to us that this attempt was unsuccessful or that, as the defense appears to assume, the panel was left with only those persons who 'believe in capital punishment'. The defense position comes down to a demand, not for an impartial jury which is neutral, but for something quite different, namely, a jury which includes persons who are prejudiced against-- and, also, possibly for-- capital punishment. We are also not persuaded by the argument that the trial court's exclusion of these persons served improperly to produce a panel which was something less than representative of the community.

    In a narrow sense this might be said but one could say the same thing in the same sense when a court very properly asks those persons to step aside who are personally acquainted with counsel for the prosecution, or who cannot read, or who cannot understand the English language. To that extent the panel is always a little less than representative of the community as a whole. But this exclusion does not produce an unfair jury or an illegally unrepresentative one or one which is not impartial in the Sixth Amendment sense.

    See 48 A. All the defense arguments have been completely and sweepingly answered, we feel, in the opinion of Judge Prettyman in Turberville v. Puff, F. It is well pointed out, in either or both of those opinions, that 'The point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn'; that the thesis that persons who are not opposed to capital punishment are psychologically inclined against criminals, and thus are not impartial, has not been judicially recognized; that 'Being not opposed to capital punishment is not synonymous with favoring it'; that persons 'may be completely without a controlling conviction one way or the other on either subject'; and that if a jury is to include persons with scruples against capital punishment, it ought also to include those with bias in favor of the death penalty, yet this would produce a balanced, rather than an impartial jury.

    We are in accord with the reasoning and the holdings in Turberville and in Puff. See Manuel v. We find nothing whatsoever in Glasser v. Southern Pac. Political and religious beliefs. Among the questions which the defense asked the court to submit to the venire, and which were refused, were ones relating to church affiliation, the John Birch Society, and public question attitudes.

    As to these, the defense urges:. The appellant believed that persons sympathetic to the John Birch Society would be more punitive than the general public, and that persons who belonged to religions that emphasize free will would be less willing to accept psychiatric testimony that is Freudian and based on a philosophic view of determinism. Whether such views are correct is not the issue. To prevent the appellant from obtaining such information is to prevent the peremptory challenges.

    The defense cites Swain v. State of Alabama, U. Justice White's comments there on the use and nature of the peremptory challenge, including,. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried',. Van Schaik, F. The argument then is that religious and group affiliations are necessarily proper subjects of inquiry. We ourselves know of at least two Supreme Court cases where religious inquiry was recognized or approved: Aldridge v.

    But there can be no fixed rule as to all this.

    See a Problem?

    Denominational affiliation or group membership may indeed possess sufficient significance to call for voir dire inquiry in a given case. In another it may not. See Yarborough v. The key in the Swain quotation is the phrase 'in the context of the case to be tried'. The matter, thus, is one appropriately fitted for the discretion of the trial court. The Third Circuit, in Kiernan, supra, p. Much the same thing was said in United States v. Napoleone, F.

    In Aldridge v. United States, supra, p. The issue comes down to a question of abuse of discretion. Stephan v. Marlin Firearms Co. Certainly, Rule 24 a , Fed. We see no abuse here. While one might say that the trial court permissively could have been a little freer in its inquiry into group affiliations, we certainly ascertain nothing approaching prejudicial error.

    As the cases recognize, there are practical limitations to voir dire. If this were not so, delay and frustration would ensue and the possibility of abuse would increase. We specifically note the court's inquiry of each venireman as to whether he entertained capital punishment scruples attributable to 'faith, belief, religion, conscience, or otherwise', as well as to such scriptural and ethical references as 'An eye for an eye and a tooth for a tooth' and 'Those who live by the sword shall perish by the sword'.

    These inquiries, of themselves, penetrated those very areas which the defense, by its proffered questions, sought to search. The right to present evidence as to mitigation and rehabilitation. McDonald, psychiatrist and expert witness for the government, testified on cross-examination in response to the question, 'What type of sickness is involved here? He also said that 'he could benefit from psychiatric treatment'. The next question was 'And what would be the nature of that treatment; I mean what would it accomplish? On the direct examination of its own expert, Dr. Herbert C.

    Modlin, the defense asked whether Duane needed medical treatment. The doctor answered, 'Yes, I would say so, very definitely'. When the defense attempted to continue this line of inquiry, a government objection was again sustained. The defense then offered to prove by its witness that Pope required institutional commitment and medical treatment probably for at least seven years 'before there could be any reasonable hope of being secure against another schizophrenic reaction'.

    The court also refused permission to the defense to subpoena and produce a letter written in July by the Deputy Attorney General of the United States to the Chairman of the House Committee on the District of Columbia stating 'We favor the abolition of the death penalty' and recommending a comprehensive study. All this, says the defense, is error and a violation of the defendant's right of allocution before the sentencing body. Allocution is prescribed by Rule 32 a , Fed. We have said ourselves that allocution in the federal system is a substantial right and that 'failure to accord it would perhaps entitle a defendant to have his sentencing proceedings reversed through an appeal'.

    Moore v. The difficulty, of course, centers in the language of 18 U. The obvious argument is that, inasmuch as it lies within the power of the jury to impose the death sentence, the jury's task involves more than the mere determination of guilt or innocence and it is entitled to receive information as to mitigation and rehabilitation. We note initially that this record is not devoid of this very kind of information.

    Both Dr. McDonald and Dr. Modlin, as our comments above show, had testified of illness and of Duane's need for treatment, and thereby had intimated at least the possibility of rehabilitation. And the defense in its closing argument asserted that two psychiatrists said 'that right now Duane needs medical treatment'. But this question of the propriety and allowable extent of allocutional information under this statute is not an easy one.

    The question largely disappears when criminal procedure takes its traditional course and punishment is imposed from the judge's bench rather than in the jury room. And perhaps it holds less significance when the statute provides that the extreme penalty follows automatically, rather than permissively, upon determination of guilt. The issue seems to suggest the possibility of the two-stage trial, with the first stage devoted to the usual routine of ascertaining innocence or guilt and with the second, if guilt is determined, devoted to consequences.

    The Second Circuit struggled with this problem in United States v. Curry, F. The court held that under all the circumstances of that case the trial court did not abuse its discretion in conducting a unitary trial and, flatly, that the unitary trial did not prejudice the defendant, 'particularly in light of the fact that he never specifically requested the twostage trial'. Judge Hays dissented. He stated that 'the course of enlightened and efficient administration of the criminal law will best be served by requiring a two-stage trial'; that there is 'scarcely any authority' to support the majority's conclusion that this is to be left to the discretion of the trial court; and that rational determination of punishment requires that the sentencing authority have wide access to information of a mitigating nature.

    The problem also arose in Frady v. It was resolved by a 5-to-4 vote setting aside death sentences with directions for the entry of new sentences of life imprisonment. The court was concerned with a District of Columbia statute which, upon conviction of first degree murder, called for death 'unless the jury by unanimous vote recommends life imprisonment'. Judge Fahy, speaking for a bare minority of four, would hold that the convictions were proper but that the death sentences were wrongfully imposed due to an erroneous instruction and inadequacy of the poll.

    Because there were only two sentencing alternatives and because it was not possible to reconvene the same jury, those four judges felt that the appropriate solution was to direct the entry of life sentences as 'just under the circumstances', within the language of 28 U. See Coleman v. Judge McGowan, on procedural grounds, concurred in the result reached by the four judges and thus effected a majority.

    He felt that the situation would be best resolved by the two-stage trial; that there was nothing indicative of a hostile attitude toward this on the part of Congress; and that the court was free to prescribe that procedure 'as the one best fitted to effectuate the purpose of Congress in this statute'. Judge Wright voted to reverse the convictions because of insufficiency of evidence. It's since been viewed millions of times, enjoying a new viral boost after the Netflix documentary Making a Murderer spurred interest in false confessions. His argument, which he's since expanded into a new book called You Have the Right to Remain Innocent , is that even if you haven't committed a crime, it's dangerous to tell the police any information.

    You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy "expert" testimony, and sheer bad luck, lead to you being convicted of a serious crime.

    Duane's book details several outrageous incidents just like that around the country, clearly showing the many ways the system is stacked against suspects. These include a proliferation of poorly written laws that make nearly anything a potential crime, rules that allow prosecutors to cherry-pick only the most damning parts of police interrogations at trials, and a little-known Supreme Court ruling allowing prosecutors to tell juries that defendants had invoked the Fifth Amendment—in other words, telling an officer you are making use of your right to remain silent could wind up being used as evidence against you.

    For that reason, Duane thinks that you shouldn't even tell the police that you are refusing to talk. Your safest course, he says, is to ask in no uncertain terms for a lawyer, and keep on asking until the police stop talking to you. Though Duane said in his lecture he would never speak to the police, he has no problem speaking to anyone else, and in advance of his book coming out Tuesday, VICE talked to him about that lousy Supreme Court ruling, ways to reduce false confessions, and why he's cool with his book helping guilty people go free.

    VICE: How did you get into the business of telling people not to talk to the cops? James Duane: I never planned or anticipated that this was going to become a specialty of mine. I taught a class at my law school in and decided to talk about the Fifth Amendment. The particular precipitating catalyst that prompted me to talk about that subject was I had seen some things in the paper quoting various individuals—knowledgeable folks, folks who ought to know better—who were basically suggesting, "Well, if somebody takes the Fifth Amendment, I guess that kind of proves that they're guilty.

    I thought, Why don't I say something about that? That's what prompted me to do that original recording. When it went viral like that, I started getting phone calls and letters and emails from different people with lots more questions and feedback and many, many invitations to come and speak to different groups of lawyers, judges, law students, and college students—and I said yes to almost every one of them.

    Beth Chapman's public memorial service set

    I had a lot to learn, too. The thing I didn't fully understand, because I had been in the business for so long, is how surprising and counterintuitive all of this is to the average guy on the street. I spoke to so many sophisticated audiences, college students, law students, and they said, "This was astonishing, we had no idea, we never heard any of this, we never knew any of this.

    In your book, you advise people not to even take the Fifth thanks to a Supreme Court ruling. Could you talk a little about why? Up until about five years ago, lawyers would give out business cards to their client and say, "Read this to the police," and it'd say, "At the advice of my attorney I decline to answer on the grounds that it may incriminate me, I'm invoking the Fifth Amendment.

    But the tide turned three years ago in with this wretched, abominable decision by the Supreme Court in Salinas v. Texas that changed everything. In the Salinas case, a young man was interrogated by the police, and when they asked him a bunch of questions that didn't seem to be very threatening, he took the bait and answered them all. Then all of the sudden, they [asked a question that made it] obvious they wanted information that might expose him to criminal prosecution, and he just got silent. He didn't say a word. And there's no doubt that he was exercising his Fifth Amendment privilege, but he didn't [formally] assert his Fifth Amendment privilege.

    So the five Republican [appointees] on the Supreme Court said, Because you didn't tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege, or your decision to remain silent can be used against you as evidence of guilt. Which probably had a dozen Supreme Court justices rolling over in their grave. The game has changed now that your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it. As I explain in the book, now the problem is, if you're kind of clumsy about the way you assert the Fifth Amendment, you're running a lot of different risks.

    What are some reforms to the interrogation process that could reduce the number of innocent people who wind up in prison? I don't think there's any objective observer who would deny we really ought to be recording, with high-quality audio equipment, every step of every phase of all interaction between the police and the accused. In this day and age, where video and audio surveillance is practically ubiquitous wherever you go, it ought to be a national scandal that police officers and government agents are not generally required to record the entire interview.

    Another thing is that I think police officers should be precluded from sharing information that they acquire in their investigations with witnesses. The Supreme Court has handed down this huge body of case law saying if police obtained evidence in violation of the Fourth, Fifth, or Sixth amendments, it's inadmissible in trial.