Lyons v The State of Oklahoma Petition for a Reconsideration or Rehearing and Reasons Therefor

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    B E F O R E  T H E

(tort rtf tin lnttr& itora
October Teem, 1943 

No. 433

W . D. L yons, Petitioner 
vs.

T he State of Oklahoma

PETITION FOR A RECONSIDERATION OR 
REHEARING AND REASONS THEREFOR

T hoegoot) Marshall,
69 Fifth Avenue,

New York, New York.

A mos T. H all,
Tulsa, Oklahoma

W illiam H. H astie, 
Washington, D. 0.



B E F O R E  T H E

irtpmnp (tart at tljr Wnltib BUUn
October Term, 1943 

No. 433

W. D. L yons, Petitioner

vs.

T he State of Oklahoma

PETITION FOR A RECONSIDERATION 
OR REHEARING

To the Honorable, the Chief Justice and the Associate Jus­
tices of the Supreme Court of the United States:

Comes now the petitioner herein and presents this peti­
tion for a reconsideration or rehearing* and for the vacating 
of the judgment of this Court affirming a judgment of the 
Criminal Court of Appeals of the State of Oklahoma.

Jurisdiction
The judgment of this Court herein prayed to be recon­

sidered was entered on the 5th day of June, 1944. This 
petition for a reconsideration or rehearing is filed within 
twenty-five days from June 5, 1944, in accordance with Rule 
33 of this Court.



2

Reasons for Petition
I. The decision herein conflicts with a decision o f this 

Court in Brown  v. Mississippi, yet the opinion herein fails to 
mention the Brown  case.

In Brown et at. v. Mississippi, 297 U. S. 278 (1936), the 
issue before this Court was essentially the same as in the 
present case. There prisoners were tortured by police 
officers and thus forced to confess. A day later they were 
taken before other public officials and reputable private 
citizens, none of whom had been party to the prior wrong­
doing, and in peaceful surroundings free from all indicia 
of coercion, were permitted to give “ voluntary”  confessions. 
This Court, in its opinion, described the situation by quot­
ing, with approval, the following language from the dis­
senting opinion of the Supreme Court of Mississippi:

“ All this (the extortion of the first confession) 
having been accomplished, on the next day, that is, 
on Monday, April 2, when the defendants had been 
given time to recuperate somewhat from the tortures 
to which they had been subjected, the two sheriffs, 
one of the county where the crime was committed, 
and the other of the county of the jail in which the 
prisoners were confined, came to the jail, accom­
panied by eight other persons, some of them deputies, 
there to hear the free and voluntary confession of 
these miserable and abject defendants. The sheriff 
of the county of the crime admitted that he had heard 
of the whipping, but averred that he had no personal 
knowledge of it. He admitted that one of the defen­
dants, when brought before him to confess was limp­
ing and did not .sit down, and that this particular 
defendant then and there stated that he had been 
strapped so severely that he could not sit down, and 
as already stated, the signs of the rope on the neck 
of another of the defendants were plainly visible to 
all. Nevertheless the solemn farce of hearing the



3

free and voluntary confessions was gone through 
with, and these two sheriffs and one other person 
then present were the three witnesses used in court 
to establish the so-called confessions, which were re­
ceived by the court and admitted in evidence over 
the objections of the defendants duly entered of rec­
ord as each of the said three witnesses delivered their 
alleged testimony”  (297 U. S. at 282-3).

In these circumstances this Court considered it too clear 
to require extended discussion that the prisoners could not 
have been free from the coercive effect of the violence which 
attended the first confessions at the time of the second con­
fessions. Convictions obtained through the use of these 
“ voluntary”  confessions were held to deny due process of 
law.

In the present ease, the coercion attending the first con­
fession was so clear and gross that the inadmissibility of 
that confession has been conceded throughout the trial and 
subsequent appeals. Its great immediate effect upon the 
prisoner being admitted, the necessary inference of some 
substantial continuation of that effect exists here as in the 
Brown case. Hence, it becomes pertinent to inquire whether 
any circumstances intervening between the first and second 
confessions or attending the second confession distinguish 
the two cases.

A  longer time elapsed between the first and second con­
fessions in Brown v. Mississippi than in the present case. 
The prisoners there at least had a night’s rest and twenty- 
four hours to regain their composure. Here the brutal in­
quisition of the early morning hours normally devoted to 
rest was followed by the second confession on the same day. 
There is no significant difference between the circumstances 
immediately attending the second confessions in the two 
cases. Indeed, in the Brown case, the absence of any coer­



4

cive conduct at the time of the second confession and the 
absence of the parties who extorted the first confession are 
admitted. Thus, it is even clearer there than here that the 
only coercive influence in question was the violence to which 
the prisoners had previously been subjected—violence from 
the effects of which Brown had a better and longer oppor­
tunity to recover than did petitioner.

In the matter of trial procedure the cases are substan­
tially alike. In each case the Trial Judg*e admitted the con­
fession and then charged that it should be disregarded if the 
jury had reasonable doubt as to its voluntary character. In 
the Brown case this Court concluded that the finding of the 
Trial Court and jury that the prisoners were free from 
coercion was so patently unreasonable as to offend basic 
notions of fair trial. Yet, in the present case this Court 
concluded that reasonable men might differ on the issue of 
whether or not the defendant was free from coercive influ­
ence when he made the second confession.

It is respectfully submitted that these two decisions are 
irreconcilable. Despite this conflict no mention of the 
Brown case appears in the present opinion. It is believed 
that the doctrine of the Brown case is sound and salutary, 
and that it should not be rejected sub silentio or otherwise. 
In the interest of justice and to clarify an important issue 
likely to recur frequently in the administration of criminal 
justice, reconsideration of the decision herein is prayed.

II. This Court should reexamine its conclusion that the 
denial o f a specific instruction directing the attention o f the 
jury to the relation o f prior coercion to the second confession 
involved no issue o f due process.

In the opinion herein this Court examined the general 
instruction of the Trial Court to the effect that a confession



5

obtained by force, intimidation or threats is inadmissible. 
The opinion also takes cognizance of the fact that the Trial 
Judge denied petitioner’s request for a specific instruction 
that, if the second confession was influenced by fear en­
gendered by the treatment at the time of the first confession, 
then the second confession must be disregarded. The Court 
then concluded that no essential element of fair trial re­
quired this specific instruction. This conclusion should be 
reexamined.

The effect of the brutality attending the first confession 
upon the prisoner’s mind twelve hours later was a critical 
issue in this ease. I f  the resolution of this issue was a 
matter upon which there could have been reasonable dif­
ferences of opinion, it was all important that the jury under­
stand precisely the question for its decision. The outcome 
of a trial for a capital felony here depended upon the jury ’s 
decision as to the mental carry-over of fear and compulsion 
from one occasion to another in circumstances under which 
human experience shows the very great probability of such 
carry-over. The very minimum requirement of a fair trial 
is that the minds of the jury be directed specifically to this 
issue.

This ease does not involve a “ mere error”  in a jury 
verdict. This case presents a situation which is clearly in­
consistent with the fundamental principles of liberty and 
justice. A person who is on trial for his life or liberty 
should be entitled to concrete, specific instructions to the 
jury, which will fully and clearly articulate the dramatic 
and fully alive situation to which he is exposed. The test 
of due process does not lie in vague generalities, but in con­
crete situations. In so far as the due process clause of the 
Fourteenth Amendment has in it any life, it has that life 
by virtue of its application by this Court to specific, con­
crete, factual situations.



6

Further evidence that the specific instruction which the 
Court refused to give involved a fundamental issue of fair 
trial is to be found in the verdict of the jury. The jury 
had before it uncontroverted evidence of an atrocious mur­
der without any circumstances of mitigation whatever. Yet 
the jury did not impose the death penalty. This verdict is 
explicable only on the theory that the jury under the general 
instructions given erroneously believed that the circum­
stances immediately surrounding the second confession con­
sidered alone made it admissible, but the continuing coercive 
influence of the earlier event was too obvious to permit the 
imposition of the death penalty on such untrustworthy evi­
dence.

The specific instruction requested was essential to make 
clear to the jury their duty in the premises and thus to 
assure the petitioner the substance of fair trial.

Conclusion

For the foregoing reasons petitioner respectfully urges 
that a rehearing be granted and that upon further considera­
tion the judgment of June 5, 1944, affirming the judgment 
of the lower court in this cause, be set aside.

Respectfully submitted,

T hurgood Marshall,
69 Fifth Avenue,

New York, New York.

A mos T. H all,
Tulsa, Oklahoma

W illiam H. H astie, 
Washington, D, C.



I, T htjkgood Marshall, attorney for the petitioner, W. D. 
Lyons, do hereby certify that the foregoing petition for re­
hearing of this cause and for vacating the order reversing 
the judgment of the lower court is presented in good faith 
and not for the purpose of delay.

T huegood Marshall,
Attorney for Petitioner.



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L awyers P ress, I nc., 165 William St., N. Y . C .; ’Phone: BEekman 3-2300