Thurgood Marshall

“ In the State's view, so long as Fisk acted simply as a listening post, she could testify as to any statements made to her by petitioner. That view was, however, rejected in Massiah itself. The Government in that case pointed to the fact that the record did not reveal that its agent had induced the defendant by persuasion (there based on friendship) to discuss his activities, and urged that 'providing a defendant an opportunity to talk' [11] did not violate his right to counsel. ”

“ When the district attorney asked Fisk if petitioner had discussed her 'domestic problems with her husband,' counsel for petitioner asked if he might 'ask a question on voir dire.' He elicited that Fisk had not identified herself as a police agent to petitioner, and had not advised petitioner she could have an attorney present when they talked. ”

“ Unless you want me to look at this [sheriff's] report and see what she knows. Does this report indicate?
'Mr. Turner [district attorney] : There has to be a foundation laid, an objection made. There is no way to--
'The Court: I think there would have to be. I don't see how that could be done in the absence of the jury.' (Emphasis added.)
The following day Fisk was called as a witness. The district attorney asked some preliminary questions. ”

“ And petitioner, like the defendants in Massiah and Escobedo, was represented by counsel at all times. Moreover, a formal complaint charging petitioner with murder was filed on October 13, and Fisk remained in petitioner's cell, eliciting information or conversing with petitioner until October 15. [9]
Both state courts, see, e. g., People v. Flores, 236 Cal.App.2d 807, 46 Cal.Rptr. 412 (1965) , cert. denied, 384 U.S. 1010, 86 S.Ct. 1917, 16 L.Ed.2d 1017 (1966) (jail cell plant) ; People v. Ludlum, 236 Cal.App.2d 813, 46 Cal.Rptr. ”

“ If the objection were sustained, the jury might well * * * infer that through a technicality the defendant had managed to keep out of evidence a full confession.' Thus the most that can be said on this record is that trial counsel-having previously raised the objection-preferred to have Fisk's testimony admitted rather than objecting to it in the presence of the jury after Fisk had been identified. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) ; People v. ”

“ People v. Robinson, 16 A.D.2d 184, 224 N.Y.S.2d 705 (4th Dept. 1962) (jail cell plant) . See also Note, 79 Harv.L.Rev. 935, 1006 (1966) .↑ Brief for the United States, Massiah v. United States, No. 199, October Term, 1963, at 30.↑ Respondent also argues that petitioner did not show that any of her statements as related by Fisk occurred prior to the filing of a formal charge on October 13, or were specifically prompted by the four incidents of deliberate inducements to speak related in the text above. Of course petitioner has no such burden in the circumstances of this case. ”

“ Notes
↑ The judge on the same day issued an order prohibiting officials from questioning petitioner unless her attorney was present, and ordered her attorneys to cease sitting outside her cell. Apparently, the police did not inform the judge of Fisk's continued presence.↑ Counsel cited by name and discussed, as did the district attorney, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) , and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 (1965) . The latter decision, grounded on the Federal Constitution, encompasses a claim based on Escobedo v. ”