MCGANN v. UNITED STATES

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Argument of Thomas Homer Davis

Chief Justice Earl Warren: Number 156 Julia Sage, Minor, Honorable Julia Sage Minor and Honorable Edward -- Edwin Rosin, etcetera, Petitioners versus H. Leslie, Appellees.

Oh I beg your pardon gentlemen.

I have -- I skipped to the page.

The appropriate case Number 153 Clarence Duke McGann, Petitioner, versus United States.

I beg you pardon.

Mr. Thomas Homer Davis: If the -- if the Court please, Mr. Chief Justice.

This is a proceeding under Section 2255 of the code.

The petitioner in this case is an inmate of the United States penitentiary of Leavenworth, Kansas.

In the very brief statement of the background of the various convictions I think would be pertinent at the outset and then discuss his contentions in a later time.

In 1954, the petitioner was indicted in three separate indictments in the District of Maryland and he entered a plea of guilty to all three of the indictments.

The first indictment was for bank robbery.

He received a sentence of 20 years.

The second indictment was under the Dyer Act, he received a sentence of five years for that to run concurrently with the 20 year-sentence.

The third indictment was for robbery under the jurisdictional -- jurisdiction of United States.

He received a five-year sentence for that.

It also ran concurrently with the 20-year sentence.

So in effect the -- out of the Maryland cases he received a total of 20 years imprisonment.

Now, he was also indicted in the Southern District of New York and in 1955 he entered a plea of guilty in that court to a bank robbery indictment and received a sentence of 20 years there which ran concurrently with the sentence that he previously received in Baltimore.

Justice Potter Stewart: How -- how long previously two years was it something?

Mr. Thomas Homer Davis: About two years, Your Honor.

Right after, at the same time he was under indictment in the Eastern District of New York for the robbery of a Veterans Administration Facility at that point and he subsequently entered a plea of guilty to that indictment and that indictment he, under that he received a 12-year sentence to run concurrently with the Baltimore sentence.

Now the case before this Court is the case under the eastern district indictment.

The other two indictments in Baltimore and in the Southern District are incidentally related and it's our contention that they used those sentences to deny this man relief under 2255 and they will be brought into the action incidentally in that respect.

Now leading up to the --

Justice John M. Harlan: Well if you got relief here he'd still be in jail, would he, under those other sentences?

Mr. Thomas Homer Davis: That's right, and eventually the question, the only real question I think that is before this Court is going to be the question of whether or not under 2255 he has to be entitled to his -- to immediate release to -- to be his freedom.

Now --

Justice John M. Harlan: Is there any doubt about that?

Mr. Thomas Homer Davis: Well, there is in my mind.

I realize that I am against the -- the proposition in this Court under the Hepman case that there is a concurring opinion Mr. Justice Stewart wrote which in effect says and specifically says that there must be a right to immediate relief.

And in the body of the opinion written by Mr. Justice Douglas, you first arrived at a question of jurisdiction and it was noted there that there was a division in the Court on the question of, in that case whether not the man had to be in custody or not to take advantage of 2255.

And it's my contention that and I will get to that in the argument of and I think that's the whole sole question really before this Court, but there is another angle to this case which would -- I'd like to dispose of and that is the question that the Government contends that in this man's motion to vacate, he doesn't allege enough grounds or substantial grounds to warrant the court bringing him to the United States District Court for the Eastern District of New York to testify in his behalf.

That I think is almost -- takes care of itself on the record and I think the court can read the motion and I think its ample but I would like to set out briefly the steps this man went through to come to this question of the release and I think that's the main thing we have to be concerned with here.

Now in the first instance, McGann filed a motion -- a motion to vacate and set aside the sentence that was imposed on him in the Eastern District of New York.

Now, his contention briefly as to the merits of his contention is this.

He contends and if the Court will refer to page 24 of the record that's his second motion to vacate, McGann contended that when he got to New York to await disposition of those two indictments that an assistant -- the court appointed an attorney to represent him in the Southern District case, he contended that this attorney told him that if he would enter a plea of guilty to this indictment in the Southern District, he would see that the sentence imposed upon him was lenient or that the sentence would not interfere with his rights under the Maryland sentence.

Now the Government in their brief contends that since the 20-year sentence in the District of Maryland was in existence it made no difference about the 20-year sentence in the Southern District or the Eastern District, but they overlooked a point that McGann raises in his motions.

McGann has a contention that in the District of Maryland he was charged with robbery of this bank.

He was also charged with robbery under the (Inaudible) jurisdiction of the United States and he says that those constitute one offense.

He says that he couldn't have robbed the bank and also because this happened to be on Government land, he committed a second robbery under that statute.

He contends that the Government should have elected upon which indictment to charge him.

When they didn't elect, then when he entered pleas of guilty, the plea of guilty that was imposed under the (Inaudible) Act of only five years is the only good, only good sentence.

Now, he contends in his motion here that in talking to this assistant United States attorney in the Southern District and later and the Assistant United States Attorney in the Eastern District that he was contending that only the five-year sentence in Maryland was good.

That if proceeding he then had on file were validated and upheld, he had completely serve the five years and the 20-year sentence wouldn't be in existence and he wouldn't be confronted with this problem of having a 20-year sentence in existence against him.

Now he --

Justice Charles E. Whittaker: When it comes with New York, the 20 years time.

Mr. Thomas Homer Davis: The New York is a 20-year and the Southern District.

He carries that step further and says that in his contentions now raised on this motion to vacate in the Eastern District that they are tied in with the situation in the Southern District and so tied in that if this would fall the sentence in the Eastern District, likewise the one in the Southern District would fall.

Now I -- I realize that the only thing before this Court is the Eastern District sentence and you can anticipate that he is going to be successful in any other actions.

But this thing is interwoven and the only reason I'm discussing these two New York cases is to show the Court what his contentions are at this point as to whether or not he alleged enough to warrant that court to produce him in New York to testify in his own behalf on his motion.

He says that this east -- Southern District Assistant United States Attorney made this deal with him that it would not interfere with his Baltimore and Maryland sentences and that it was for five years he was contending he was only subject to a sentence under Baltimore.

Now he says that he went to New York.

He refused to enter pleas of guilty until this proposition was placed before to him by Mr. Lizzare the Assistant United States Attorney for the Southern District.

He then says that when this deal was made Lizzare says to him, "Why don't you make the same arrangements with the United States Attorney's Office in the Eastern District?"

So McGann says, "Well if they all make the same deal in that district I -- I'll do it."

So Lizzare says I will get in touch with the Assistant United States Attorneys to the Eastern District and they'll come down here and they did come down and the record shows it.

They came down there the next day and he contends he then had a discussion with Ms. McCann, an Assistant United States Attorney from the Eastern District and she was accompanied by another Assistant United States Attorney.

He says that they made this same deal with -- he made the same deal with her.

He says that the deal was, that if he pled guilty they would see that he got a lenient sentence and coupled with that, these promises throughout is the contention he makes that it would not, the sentence he got would not interfere with his Baltimore sentence and that in that connection, he explained to them that he contended he was only subject to five years imprisonment there.

Justice Potter Stewart: Did he –-

Justice Tom C. Clark: (Inaudible)

Mr. Thomas Homer Davis: Yes.

Justice Charles E. Whittaker: You say the Court deal he assumed there was to (Inaudible)

Mr. Thomas Homer Davis: Yes.

Justice Charles E. Whittaker: Why is that he was to be given a lenient sentence, that's what the deal amounted to?

Mr. Thomas Homer Davis: A lenient sentence and one that would not interfere with his sentence in Baltimore and Maryland.

Justice Charles E. Whittaker: Now the sentence he got in the case you complain about was 12 years, wasn't that?

Mr. Thomas Homer Davis: That's right.

Justice Charles E. Whittaker: To run concurrently with two other sentences each for 20 years, isn't that right?

Mr. Thomas Homer Davis: To run concurrently with the 20-year Maryland sentence that was the only one that's mentioned.

Justice Charles E. Whittaker: Where the New York sentence was also concurrent to this, wasn't it?

Mr. Thomas Homer Davis: That's right, in effect it was --

Justice Charles E. Whittaker: So my question to you now is didn't he get a pretty lenient treatment, he didn't get an additional day in jail, did he?

Mr. Thomas Homer Davis: But I don't think that has anything to do with the matter of whether he was -- was a given a lenient sentence or not.

He contends in this motion that there was collusion between the Eastern District and the Western District Assistant Attorneys that he was sitting there in New York, he wasn't going to enter a plea of guilty.

He didn't enter a plea of guilty.

He'd never admitted his guilt and he says there was collusion between the two districts and that these promises were made to get him to enter the plea, in addition he also contended he was in the city detention house in New York and he wanted out of there because he didn't like it and that was another reason.

Justice John M. Harlan: Was he represented by a lawyer?

Mr. Thomas Homer Davis: He was appointed -- appointed -- a lawyer was appointed named Oakman in the Southern District and a lawyer named Grass was appointed in the Eastern District at those times.

Justice John M. Harlan: Were they present at these conferences that the -- were they --

Mr. Thomas Homer Davis: They were not present at the conferences that took place in the jail when Ms. McCann and the other Assistant United States Attorney from the Eastern District came down to the jail and talked to him and made these arrangements with him they were not present.

His attorney was not present.

He alleges that in here.

Now --

Chief Justice Earl Warren: Mr. Davis, at the -- on your recital of the facts up to the present time his arrangements were -- were made before he pleaded in either the Southern District or the Eastern District of New York?

Mr. Thomas Homer Davis: That is correct Your Honors.

They were made prior to that.

In fact, the record shows he was brought before those courts numerous times consistently refused to enter pleas of guilty until these arrangements were made.

Now here --

Justice William J. Brennan: Mr. Davis, I don't think I get it clearly, what it is in the way of interference with the Baltimore sentence.

Mr. Thomas Homer Davis: Well the Baltimore sentence Your Honor was 20 years on the bank robbery, five on the Dyer Act, five on this sentence of robbery because this place -- the bank he robbed is under the jurisdiction of the United States.

His contention is there that they were all to run concurrently, the two five-year sentences with the 20.

He contends that he was not really subject, he -- the two different offenses of robbery just like under the national -- national bank robbery.

Justice William J. Brennan: And that all that -- and that there was only one offense for which it was a maximum of five years.

Mr. Thomas Homer Davis: That's right.

Justice William J. Brennan: But I don't quite understand what it is that the Southern and Eastern District assistants were supposed to promise in way of --

Mr. Thomas Homer Davis: They promised --

Justice William J. Brennan: -- non interference.

Mr. Thomas Homer Davis: He -- he was up there and he -- he would not plea guilty to either charge and they brought him into court repeatedly and finally he contends that this attorney in the Southern District, a Mr. Oakman told him, came to him and said, "Now why don't you enter a plea of guilty here to this Southern District case.

All that this Assistant United States Attorney wants is this is a bank robbery case, he wants his record of these bank robbery cases.

They're interested in -- in getting the record perfect on them.

He says, "He'll make you a deal" and the deal would be that he would get a lenient sentence or a sentence that would not interfere with his contention that he only had five years.

Justice William J. Brennan: Meaning then, does that mean this that he would get a sentence, not in excess of five years so that if he prevailed on his contentions in Baltimore, he'd then have only five years to go.

Mr. Thomas Homer Davis: That's what -- that's what he means when he says that and that's what he has to mean.

That's what he says.

Now briefly what happened was this.

He filed a motion to vacate.

It was denied.

He filed a motion to appeal in forma pauperis.

It was denied.

The appeal finally went to the Circuit Court of the Second Circuit.

They heard the case, they denied it.

He filed a motion for rehearing and that court then said on the motion of pre-hearing, it's denied but without prejudice to filing a second motion on more complete grounds.

So he turns around and he files a second motion to dismiss and that's on page 24, and it's my contention without counsel, without the advise of counsel, this man has filed this document which is about six -- five pages of printed of record.

He designates the first page jurisdictional statements like (Inaudible) but it is his motion.

He has a statement of the case.

In the statement of the case he alleges all these things I've been talking about.

So it's my contention that his motion contains all these facts of questions and that when then they do, under 2255 as decided in the Hayman case, he should have been produced to that court to testify in support of.

Now I think that's enough on that -- the Court -- it will be obvious to the Court by reading this motion and I think the government's contention is without merit.

For instance, one thing they had Ms. McCann file affidavits, in the District Court on the first motion, in the District Court on the second motion, in the Circuit Court in the second motion and she sets out in an affidavit denying all these contentions.

She even goes to the point and she says she's talked to Mr. Lizzare, the assistant from the Southern District and she says he would testify to certain things in an affidavit.

They are ex parte affidavits.

Then they say that the Court in denying his motions didn't consider these affidavits but they overlooked a fact in that connection which is hard for me to understand.

They say the Court didn't consider him -- consider her affidavits on the facts of questions but only incidentally in case the Court arrived at a conclusion that the man was entitled to a hearing.

Now how can you consider something incidentally as a matter of evidence, is something that I don't understand?

It's either considered or it isn't considered.

So I think they were without merit on that point.

Now I think the question we got to come to here is this question of the right to be released.

The Court is well of course familiar with the Hayman case.

2255 was enacted and when it was enacted under the Simon case, the only question, real question before the court there, was the question, as to whether or not he should have been produced to testify on his own behalf.

Hayman contended that an attorney appointed for him represented this codefendant without his knowledge.

The District Court conducted a three-day hearing took evidence and denied his motion.

The Circuit Court of Appeals when they came to consider the case denied it on the ground that they said 2255 was unconstitutional.

That it was a suspension of the writ of habeas corpus.

This Court when they reviewed the Hayman, they said that the question of the constitutionality of 2255 was not involved.

They wouldn't anticipate it and it was not decided.

Now same on Circuit Court of Appeals as pointed out in the footnotes to Hayman case has set 2255 is constitutional.

The constitutionality of 2255 is not before the Court and this here isn't either, but I've got my contentions in this matter are these.

In Hayman the Court said, "Where the motion shows that there are questions not shown on the face of the record" that the petitioner should be produced or could -- there ought to be produced in the court findings of fact and conclusions of the law should be made and he should be brought to the Court.

Now, we come to the next case that this Court's passed on in this section and that is the Heplin case.

And in the Heplin case which was decided by this Court in the -- argued in January 14th of 1959 that the Court here had was confronted with is situation.

Hayman or Heplin complained that he was charged under the bank robbery statutes and that the sentence imposed -- there were three charges and one was a conspiracy charge, it was tagged on to bottom of the sentence and made to run in the second plea.

The Court was considering in the -- in the Heplin case the question of whether or not the man had to be in custody at the time he took advantage and tried to take advantage of 2255.

Justice Charles E. Whittaker: Not in custody but in custody under the sentence he challenged.

Mr. Thomas Homer Davis: Well --

Justice Charles E. Whittaker: Isn't that what you mean?

Mr. Thomas Homer Davis: Yes I mean that.

Justice Charles E. Whittaker: Yes, yes.

Mr. Thomas Homer Davis: Yes.

And in other words you held it because of the consecutive nature of the sentences.

He couldn't be or make the 2255 was not available.

That was the unanimous opinion of the Court.

Now, the Court said in that case we have a jurisdictional problem, Justice -- Mr. Justice Douglas said in his opinion, we have a jurisdictional problem we have to dispose of first and that is touched on very briefly in the opinion and he further stated the Court's divided.

Now to me I read the concurring opinion written by Mr. Justice Stewart and I see the names of the justices decided in that concurring opinion which means that to me, that the minority on this question was Mr. Justice Black, Mr. Justice Warren, Mr. Justice Douglas and Mr. Justice Brennan and the majority were those names in the concurrent opinion.

Now in this concurrent opinion, Mr. Justice Porter, he goes on and specifically discusses the question that under 2255 you must -- the prisoner must be claiming the right to be released.

What my argument to this Court is that it seems to me in the Hayman case and in this case, this Court is saying in substance that this new motion 2255, is nothing more than a substitute for the writ of habeas corpus that you are applying but McNally verus Hill decision in -- under habeas corpus which there must be an immediate right to be released.

2255 to me has several different parts to it.

The first is that the man must claim the right to be released upon the ground that sentence was in violation of the Constitution, of the laws of United States or, that the court was without jurisdiction to impose the sentence or that the sentence was in excess of the maximum authorized by law.

And then this very general ground, or that it is subject to collateral attack, the Court may move to do what?

The court may move to vacate, to set aside -- yes to vacate, to set aside or correct.

Now, if you hold that you got to -- a man has the -- he -- have the right to be released, why do you bring him up on 2255 like under the -- you did in the Prince case or in this Bank Act he is not going to be released if you bring him up to the court and say, "The sentence you gave him under bank robbery encompassed all the acts he did and these other terms you got down below where you charged him with taking a hostage and so forth he is under that you reduce -- you hold that part of the sentence is excessive, that man is not released.

He's -- he is under this action, he doesn't have when he files it, he doesn't have, he can't claim the right to be released because he isn't going to be released.

His (Inaudible) is going to be corrected.

Now in this Heplin case you come to Rule 35 in the discussion and you say that he would have been entitled to the benefits of Rule 35.

Well Rule 35 under these proceedings there has to be shown on the face of the record that the sentence is illegal and it doesn't go to the question of whether or not these constitutional rights have been violated and there are no cases that I have found that holds no decisions that anything they hold in the record can be considered under 35.

So I come to the question why did they pass 2255?

If they pass it solely to be a substitute for the writ of habeas corpus then I say, it is -- it's unconstitutional because I don't think you can pass the legislation to take and substitute for the great writ of habeas corpus.

Now another thing in 2255 the act goes on and it says this, it says that the court can set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial.

Now, have they passed a new legislation that's much broader than we think, they have passed?

If they can grab a new trial under 2255, do you have to say that that means they can only grant a new trial when his constitutional rights have been violated?

If his be -- if he's granted a new trial under this section and I find no cases on that and I don't see where they've done it, if he is give the right to a new trial, how can you say that he is -- must have a right, a claim to be released.

I think that this 2255 is so much broader.

Now in Hayman they say it's as broad as habeas corpus and habeas corpus -- it was passed to give the same rights.

They say it's broader than coram nobis, but then in Hayman they also say, "It's an independent action" that this Court has said that.

This Court says that it's an independent and collateral inquiring to the validity of the conviction.

So I think that if this Court has to interpret 2255 to be a substitute for the writ of habeas corpus, I -- I don't think that this can be done because the constitutionality is not involved.

But I personally have never thought 2255 was constitutional for a lot of reasons, but one is that you put a different standard on a prisoner, a man serving a federal sentence, he is put under a different situation than any other American citizen.

He's got to take all these procedural steps before he can have the writ of habeas corpus brought to bear on is case and soon as it's -- that's another reason that's not involved here.

I think that this statute has enacted a law that is much broader.

Now you take one bite out of it.

You say first that he is entitled to a hearing if he alleges facts that are outside the record that there are facts so you need his testimony on.

The next bite you take in Heplin is you say, "He must be in custody" so now you've got to take the third bite and you've got to come along and you say, "He must establish his right to be released the same as you do under McNally versus Hill.

Yet, how are you going to make this the -- the statute indivisible?

You're going to say, the statute says this, that when you file the action to that court if there effects that warrant the Court looking into it, the Court shall determine the issues.

Not that you should determine the issues at -- you have a hearing, a judicial hearing it says.

And at that judicial hearing that's when the court determines issues.

Now if you're going to interpret the statute that the Court must look at this and see whether he is correcting the sentence whether he is going to vacate it, whether he is claiming the same thing he does under habeas corpus instead of solving anything or simplifying anything it looks to me like you are making this more cumbersome and more burdensome than you have under habeas corpus.

Justice Charles E. Whittaker: May I ask you this question Mr. Davis?

Mr. Thomas Homer Davis: Yes, Your Honor.

Justice Charles E. Whittaker: This hearing was in the Eastern District of New York the Court, the sentencing Court was it?

Mr. Thomas Homer Davis: That's correct, sir.

Justice Charles E. Whittaker: And now he claims there that that sentence was illegal because of its relation to the Maryland sentence which you said was illegal.

Mr. Thomas Homer Davis: Well he -- the Maryland sentence and the Southern District he is claiming because of the collusion between the United States Attorneys that it's illegal, yes.

Justice Charles E. Whittaker: Now what his -- his action claiming of -- his claim of illegality of the 12-year sentence in the Eastern District of New York of New York was based upon on what he says was some overreaching or invalidity of the Maryland sentence.

Mr. Thomas Homer Davis: Well he -- he would have to garner he would have to prove and contend that the Maryland sentence was only good for five years --

Justice Charles E. Whittaker: That's right.

Mr. Thomas Homer Davis: -- and he would have to file an action.

He does have a miscellaneous action in this Court of petition for certiorari about that.

But I realize until he sets that aside in an appropriate action he's still under the 20-year sentence.

But that doesn't go to the question of whether or not he has -- he can file this motion in the -- in the Eastern District (Inaudible) –-

Justice Charles E. Whittaker: Doesn't it do with this and this is point I was to trying to get around to, does it not in your view bear upon the question of the jurisdiction of the District Court for the Eastern District (Inaudible) of the legality of the Maryland sentence?

Mr. Thomas Homer Davis: I don't think they can do it.

Justice Charles E. Whittaker: Well then isn't that the end of your case?

Mr. Thomas Homer Davis: No I don't think it is.

I think the question here is it isn't -- it's a question whether or not the pleas that this man made were induced, were induced by the collusion and the promises of the two Assistant United States Attorneys.

Justice Charles E. Whittaker: That's right, but I'm asking you how the Eastern District can determine that in the 2255 case?

Mr. Thomas Homer Davis: Well because a part of the promises were made by the Assistant United States Attorney in the Eastern District case in conjunction with the one in the Southern District.

Now I realize that if this Court -- what it said is and -- and decide this in favor then nothing could be done except this man would go back to the Eastern District where he would have a chance to present his testimony to testify and there be conclusions of fact, findings of law and conclusions of fact, and that's what we're confronted with in this.

You go to the Circuit Court and you come to this Court and you have no findings of fact, no conclusions of law and you have to assume all these things and anybody's assumption is as good as the other.

Justice William J. Brennan: Mr. Davis may I ask you again just to be sure I'm clear about this.

In affect that this is a contention on the merits that he could not have been sentenced in Baltimore for longer period than five years –-

Mr. Thomas Homer Davis: Well –-

Justice William J. Brennan: -- that he was induced to plead in the Southern District and in the Eastern District on promises which were in affect that if he did plea, he would get sentences of not more than five years from each.

So that if he then prevails in his contention as to the Baltimore sentences he'd not to serve longer than five years, is that it?

Mr. Thomas Homer Davis: That is correct Your Honor.

And if the Court will look at page 27 of the record which is his second motion, one of the things he states right there, it wouldn't is this, “wouldn't interfere of my chances of release in the Maryland case, which would mean a sentence not exceeding five years.”

That's right in his second motion.

Justice William J. Brennan: Now what has he's asking for is he is telling us is an opportunity to establish as a matter of fact that these were the assurances made to him by the assistants in the Southern and in the Eastern District?

Mr. Thomas Homer Davis: That is correct.

He wants a chance to be present there.

Justice William J. Brennan: And if this should happen and he would prevail, that the sentences there would be set aside and what then would be done whether it would be a resentence or correction of sentence or a new trial or what as the case maybe, is that it?

Mr. Thomas Homer Davis: That would be of the course immaterial at this hearing what would happen back there.

He'd have a chance his day in Court.

He'd have a chance to -- to testify, to be present in person to testify -- I think my time --

Chief Justice Earl Warren: Your time has expired, but Mr. Davis I'm going to give you five minutes to respond if you which to do so.

Mr. Thomas Homer Davis: Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Gilinsky.

Argument of Theodore George Gilinsky

Mr. Theodore George Gilinsky: Mr. Chief Justice, and may it please the Court.

It's the Government's position that the first issue which is whether the collateral attack remedy under 2255 is applicable in this situation is the primary issue in this case and that we never really arrived at the question of whether the second issue which is whether or not in the context of all the problems, this petitioner has alleged sufficient facts to warrant a hearing.

Now briefly, insofar as the factual picture is concerned, counsel has outlined it.

We'd like to say this.

We feel that not only because of the statute, the 2255, we think that this goes even much further than the statute.

We say this, that if a petitioner has a 20-year sentence in Maryland to serve and a concurrent sentence of 20 years in the Southern District of New York to serve, that under any circumstance and regardless of what the claim is or regardless of how it arrived, this Court nor any other court should on collateral attack listen to a contention which will only involve the 12-year sentence.

And the reason we say this is because in a long line of cases this Court as well as many Courts of Appeal on direct attack, not collateral but in direct review of sentences have many times held in multiple count cases when you get 20 or 30 counts that once this Court, once this Court has found that the conviction let's say of 20 years is supported by one good count, this Court will not go into the multiple problems involved in the numerous other counts of an indictment in which a petitioner either is a general sentence or concurrent sentence.

Now we think that this situation is analogous here.

In other words, instead of the possibly unique problem of having a person sentenced in three different districts, this petitioner had received all of his sentences in one district such as Maryland, he would have received concurrent sentences.

He'd be under the same condition he is now.

In that proceeding, this Court nor that court nor any Court of Appeals that we have found would consider on collateral attack, would never consider solely the 12-year sentence which this petitioner is contesting in this case.

Chief Justice Earl Warren: Mr. Gilinsky may ask you if suppose he had attacked the 20-year sentence in the Southern District of New York, would the case be in the same posture?

Mr. Theodore George Gilinsky: Yes, Your Honors.

As a matter of fact he has done that and --

Chief Justice Earl Warren: Yes.

Mr. Theodore George Gilinsky: -- that has been through the Courts of Appeal, then that is -- he was answered that by the --

Chief Justice Earl Warren: Sure.

Mr. Theodore George Gilinsky: -- Court of Appeals in the Second Circuit.

Chief Justice Earl Warren: I suppose he attacks the --the Maryland, the 20-year sentence would he be -- would the case be in the same posture here?

Mr. Theodore George Gilinsky: I -- my answer is two-fold, Your Honor.

Number one, we -- imagine a case in other words where a petitioner is to be denied relief --

Chief Justice Earl Warren: Well let's take the --

Mr. Theodore George Gilinsky: -- in any case --

Chief Justice Earl Warren: Let's take this case --

Mr. Theodore George Gilinsky: Yes.

Chief Justice Earl Warren: I mean I don't want to go --

Mr. Theodore George Gilinsky: No, I'm -- I mean --

(Voice overlap)

Chief Justice Earl Warren: -- on this.

Let's take this particular case.

Mr. Theodore George Gilinsky: I am going to take a case –

Chief Justice Earl Warren: Now, would it change the posture of it if he was here attacking the -- the Maryland sentence instead of the Eastern or the Southern district of New York.

Mr. Theodore George Gilinsky: I think it could --

Chief Justice Earl Warren: Or would.

Mr. Theodore George Gilinsky: -- but I do not think it does.

Chief Justice Earl Warren: And what -- you say it could?

What is the distinct -- what would be the distinction between the two?

Mr. Theodore George Gilinsky: It could in this sense that the Maryland Court, 20-year sentence and the Court of Appeals as a matter of fact hear -- that has heard the Maryland sentences has never denied this petitioner relief based upon the fact that he has concurrent sentences in New York.

But it could I suppose under a strict reading of the statute that if it could say of that you cannot get relief in this Court because you have two other or you have other concurrent sentences.

If we have that problem then we think and -- and that is a possibility, then we think that the statute 2255 provides another remedy.

If the Court will -- we have set forth the statute on page 2 and 3 of our brief in the -- on page 3 the last paragraph of the motion remedy provides that when the motion, when the motion is inadequate or ineffective to test the legality of his detention which I am assuming is the case that you are posing, then he could have a -- a process.

Chief Justice Earl Warren: I'm just proposing this case.

I'm not proposing any other case.

Mr. Theodore George Gilinsky: That's right.

Chief Justice Earl Warren: All I want to know is, if he was here in this proceeding, challenging the Maryland conviction of 20 years, would you be here defending it as though that case was in the same posture as this?

Mr. Theodore George Gilinsky: Well I suppose I would, I've never had this -- we've never had this situation but I think with strict reading I would have to be here in the same context.

That is not to say that he would not have a remedy.

I would merely then say that he does not have a remedy by motion.

I do not mean and I -- I think this is important to understand.

I -- I do not mean to say that in if it -- if the petitioner were attacking the Maryland sentence which is the -- the first 20-year sentence, that I would stand here and say under no circumstances should he be heard like I am saying about the New York.

I would then say that this petitioner should then if he is been denied relief in Maryland which -- which he has by the way, but if he had been denied relief in Maryland then I would say he is entitled to use habeas corpus as the statute provides because the motion remedy is ineffective to attack his sentences.

Chief Justice Earl Warren: But I suppose it was in the same posture as this one is, at present time what remedy would he have if this remedy is not available to him?

Mr. Theodore George Gilinsky: He would have habeas corpus.

I think without any question he would have habeas corpus.

Justice William O. Douglas: Why would he have --

Chief Justice Earl Warren: On the Maryland on the Maryland case but not on the other two?

Mr. Theodore George Gilinsky: Well in habeas corpus Your Honor all -- you -- you see in habeas corpus which would be brought where he has been detained, he could bring all of the convictions into the --

Justice William J. Brennan: But he has to, does he not?

Mr. Theodore George Gilinsky: -- into the case.

As a matter fact he would have to bring all the convictions into the case because traditionally habeas corpus has always been a remedy for freedom and release and he would have to make a -- a strong case but he couldn't make it I suppose.

Justice William O. Douglas: In other words with remedy that would remove him from one jail to other jail.

Mr. Theodore George Gilinsky: No.

Justice William O. Douglas: Custody of one jailer to the custody of another one.

Mr. Theodore George Gilinsky: No, no.

Well I'm not sure that I understand your question, sir.

Justice William O. Douglas: I don't understand why you said that he would have a remedy by way of habeas corpus in the Maryland.

Mr. Theodore George Gilinsky: Well not in Maryland.

No, it would be in Kansas where he's -- he's being detained.

Justice John M. Harlan: So why does he have to go through all that?

I would suppose in case of the Chief Justice put to you came here attacking the Maryland sentence that you couldn't stand up and say that he can't attack it because there is another concurrent sentence hanging out.

That he if he wanted the Maryland case the other sentence would fall being concurrent wouldn't it?

Mr. Theodore George Gilinsky: Well we've never said that, that's true.

We've -- we've never opposed any relief in Maryland based upon any sentence in New York or in either of the other New York sentences.

He has attacked the Maryland sentence four times and he's been through the Court of Appeals and he --

Justice John M. Harlan: But he couldn't, could he?

The concurrent sentence --

Mr. Theodore George Gilinsky: It -- it is not technically, it does not technically run because the Maryland sentence being first run did not run concurrent could not run concurrent with New York, with either New York sentence.

So that it is -- it's an impossibility based upon a technical record situation.

But I am assuming a possibility which I -- I agree is remote because it didn't even happen here, where a man could be denied by someone by a -- by a District Court by saying, "Well you have other concurrent sentences" and I say if that case should arise then the statute does provide a - a remedy.

Justice Charles E. Whittaker: Mr. Gilinsky is this in answer if there is a one 20-year sentence is here against this man rendered in Maryland and he sought relief under 2255, could the government defend against that motion upon the ground that there is another and subsequent 20-year sentence in New York?

Doesn't the answer have to be no?

Mr. Theodore George Gilinsky: I -- I agree.

I think the Government would -- would be very unpopular if --

Justice Charles E. Whittaker: Well No, no.

Not on site it because it's a matter or law, you'd have to.

You couldn't use it because if that were so then you could have a half dozen sentences all void but unable to attack anyone of them, isn't that so?

Mr. Theodore George Gilinsky: Well I -- I agree except I recognize as a remote possibility even though the Government may not urge, even though the Government may not urge that he cannot have relief, I can recognize there is the slim possibility that somewhere someone would deny a person relief in which case we say then the statute does grant this man an alternative and I think it's a safe bell, a safeguard.

Justice Charles E. Whittaker: Isn't that -- isn't that the rule that we announced or in the Heplin case simply that one must be in a -- must be in custody under the sentence and that he seeks to challenge and if he is then he can challenge it under the 2255 here.

Mr. Theodore George Gilinsky: I do not so read it, Your Honor.

Justice Charles E. Whittaker: You don't.

Mr. Theodore George Gilinsky: I think this case is a much stronger case as a matter of fact than Heplin was.

I think this man is in custody, but I say this is a stronger case because while I can imagine certain things unrelated to the statute that Heplin can gain by attacking his sentence which was consecutive, I cannot and we have -- we have in our brief tried to exhaust all possibilities, we cannot find any benefit that this petitioner can gain by eliminating a 12-year sentence which is running concurrently with the others and that's why I say this is even a stronger position, in other words it must be released --

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Theodore George Gilinsky

Chief Justice Earl Warren: You may continue.

Mr. Theodore George Gilinsky: Mr. Chief Justice, may it please the Court.

I think it's important to remember in this particular case that this petitioner has had the opportunity to attack his Maryland sentence a number of times and which he has done and that this had been heard both in Maryland, it has been heard numerous times in the Court of Appeals and the certiorari has been denied here.

Justice Potter Stewart: And that's been heard on the merits, has it?

Mr. Theodore George Gilinsky: It had been heard on the -- this meritorious problem that he is raising in Maryland about double jeopardy.

Justice Potter Stewart: That's only the merit of that attack.

Mr. Theodore George Gilinsky: Yes.

That has been heard.

Justice Potter Stewart: His motion was not dismissed --

Mr. Theodore George Gilinsky: Because of the New York sentence –-

Justice Potter Stewart: -- or was not -- failed to be considered by any -- by reason of any concurrent sentence in this case.

Mr. Theodore George Gilinsky: Oh no -- no, that's not right.

Let me make it clear.

The very first time he raised it in Maryland, the very first time he raised it in Maryland, and this argument was made because in Maryland you see he also has concurrence sentences.

Justice Potter Stewart: Imposed by the same trial judge?

Mr. Theodore George Gilinsky: Yes.

In other words, there are three concurrence sentences also in Maryland.

Justice Potter Stewart: Yes.

Mr. Theodore George Gilinsky: There's a Dyer Act which he has never contested.

There's this five-year sentence and then there's the 20 and the first time he made the argument in Maryland, the judge said to him, “Well, unless you can show that you're going to get released here in Maryland because you have -- you even haven't finish your five year sentence here.”

Justice Potter Stewart: And he was not attacking that sentence.

Mr. Theodore George Gilinsky: And he was not attacking that sentence and he was not attacking the Dyer Act, but subsequently, he has raised in Maryland -- a number of times in Maryland the problem of the duplication as he would call of offenses here to which he had pled and this can be raised both there and then subsequently in the Court of Appeals, he has had lawyers appointed.

As a matter of fact, in the -- just the Maryland litigation, he has had a total five of lawyers representing him at various stages so that -- that Maryland part and that is the problem by the way which is also here again pending and now under the label of coram mobis that it is exactly the same thing which he had -- that's pending in this Court, a petitioner's pending in this Court, but he had previously raised the same thing under 2255 and certiorari.

How long?

Unknown Speaker: (Inaudible)

Mr. Theodore George Gilinsky: No.

It was filed I believe, it was filed November 16, 1959.

We filed a memorandum in that case because we do not think it was properly handled below on another unrelated problem.

Unknown Speaker: How long was he exactly sentenced?

Mr. Theodore George Gilinsky: He was first sentenced in 1954 of August.

Unknown Speaker: And he was heard to by the --

Mr. Theodore George Gilinsky: He has served the two five year sentences.U

Unknown Speaker: Now as part of Maryland, (Inaudible)

Mr. Theodore George Gilinsky: That's correct.

In here -- and in that context though, he has already more than once attacked the Maryland sentence.

Justice Potter Stewart: And his attack has been considered on the merits?

Mr. Theodore George Gilinsky: That's correct without any --

Justice Potter Stewart: And --

Unknown Speaker: And the attack that happened to --

Justice Potter Stewart: Yes.

Mr. Theodore George Gilinsky: Yes, and that's what I mean.

After -- after that limitation had expired so that he has had a meritorious hearing in Maryland unrelated to any concurrent of them on the question of whether or not he should be released.

Justice William J. Brennan: And that's amounting to say --

Mr. Theodore George Gilinsky: And that is not --

Justice William J. Brennan: -- what did he tell you, it s now pending?

Mr. Theodore George Gilinsky: No, that has been here before under 2255.

He has raised the same thing again under coram nobis.

Justice Potter Stewart: And before, did you tell us that certiorari was denied?

Mr. Theodore George Gilinsky: Certiorari was denied twice in the Maryland jurisdiction, twice previous to that -- twice in the Maryland jurisdiction.

It has been denied in this Court and the third one from Maryland is pending here.

Justice Potter Stewart: So whatever the theoretical difficulties might be in some hypothetical case, in this case, this man is serving a 20-year sentence --

Mr. Theodore George Gilinsky: Which have been reviewed a number --

Justice Potter Stewart: Which has been reviewed on 2255 --

Mr. Theodore George Gilinsky: I don't say that.

Justice Potter Stewart: -- and upheld.

Mr. Theodore George Gilinsky: Right correct.

Now, I think it's important to understand that the distinction between this case and Heplin matter, we -- as we read the Heplin case, this -- part of the statute in the concurring opinion which was italicized was claiming the right to be released.

And we think this is a more just wording in the statute because of the background of this statute.

This statute which was inaugurated by the judicial conference because of the problems in habeas corpus had a long history of committee reports and conference reports.

Now, we have attached part of this to our brief here.

The whole of the act was considered in United States versus Hayman.

So for our purposes, I would -- I'd just narrowly considered just this language.

At the very first hearing of the committee, this is before it got to the judicial context, the habeas corpus committee, this language read claiming that the judgment is void, claiming that the judgment is void, in that context, this particular action here would have been cognizable.

We think it is significant that before it was even submitted to the judicial conference, before that, this wording was deliberately changed to the wording we now find in the statute namely claiming the right to be released.

Now we think it is clear why it was changed.

It is because the habeas corpus committee and the judicial conference were truly concerned with the habeas corpus problem.

Habeas corpus has traditionally and always been utilized only and solely when a person can claim the right to be released.

And this was one of the problems, for example in McNally versus Hill where they -- the petitioner claimed the -- some parole rights.

At that time, this Court went into the problem of habeas corpus and concluded that habeas corpus as a remedy had never been used, had never been used anytime other than when a person can claim the right to be released.

Justice Charles E. Whittaker: May I ask you if you could read what Section 2255 contemplate the existence of what was in (Inaudible) to contemplate more than he wanted?

Mr. Theodore George Gilinsky: I'm not sure I understand.

If you mean does it contemplate that there can be three sentences against the -- the petitioner in this --

Justice Charles E. Whittaker: I mean the right to prove his (Inaudible)?

Mr. Theodore George Gilinsky: I think --

Justice Charles E. Whittaker: Does that mean from the second term?

Mr. Theodore George Gilinsky: It could be read that way except for two things.

Number one, the statute which was drawn by men who were aware of the problem did not say that.

Number two, the history of habeas corpus from which this language obviously comes has never been so interpreted.

Justice Charles E. Whittaker: Now that point will have to tell us to reach in with the position by 2255 was to (Inaudible) and some may (Inaudible) want to do this and another who with this one do this that the motion in that petition can only be made in the question of importance.

However, they never enacted the status of the man who's taken to his freedom as to think he's from relief unless he can show that all (Inaudible) Court to do that.

Mr. Theodore George Gilinsky: That's correct.

Justice Charles E. Whittaker: Therefore, I want to (Inaudible) you to reading that 2255 language contemplates that as through this sentence and that all he has control and further control is a (Inaudible) under the section's challenging that question.

Mr. Theodore George Gilinsky: I think I -- I must answer no for this reason.

Taking this case as an example in Maryland, in Maryland alone, this petitioner had three sentences not one, three.

I think that in Maryland he could have attack from the very beginning, he could have made an allegation attacking all three under 2255 so that -- I cannot say that this contemplates only one sentence.

Justice Charles E. Whittaker: And that should have said one jurisdiction in sentence one to six.

Mr. Theodore George Gilinsky: This is a -- I -- I don't believe this -- I don't believe -- well, first of all, I find nothing about this, so I'm -- there's nothing in the reports about this.

So it's purely based upon the experience of the cases.

Justice Charles E. Whittaker: The habeas corpus just implied some of the rules.

Mr. Theodore George Gilinsky: Yes.

Habeas corpus would -- it wouldn't make any difference where the jurisdictions were because in habeas corpus and all the judgments would be there.

Of course to result in habeas corpus I should say would be exactly what we have in this case because in habeas corpus what would happen is the Court would look at the sentences and say, “Well, here you have a 20-year sentence which is good and we will not consider the rest.”

In other words, as a matter very -- being very practical, this petitioner would be treated exactly the same in habeas corpus if he -- he could bring that action.

Justice Charles E. Whittaker: Except he will have a right to be heard.

Mr. Theodore George Gilinsky: No.

He would have a right to be heard if he had facts outside the record.

The Maryland problem has never been that he and if he had this problem in Maryland, we might have a different situation.

The Maryland problem has never been facts outside the record.

He's never denied that he robbed the bank or any of these problems in Maryland.

The problem in Maryland had been solely a -- a legal problem.

And first of all, he raised the question of whether it was this air force bank.

He raised the question of whether it was an insured bank.

The next time he raised the question which is now he talks about -- of the difference between the territorial jurisdiction count and the bank robbery count.

So that in either of these cases you see, he -- he didn't require a personal hearing.

This was a legal problem.

Justice Charles E. Whittaker: But what determines (Inaudible) It has to read and to provide the object, time and other qualities and prior to this in use of this in the opposite to take over this section.

That 23 (c) talks of the time the fact it was lain that is now come to differentiate this with the entire (Inaudible)

Mr. Theodore George Gilinsky: He said that he told this to the Assistant United States Attorney.

He clearly -- I -- I give this petitioner more credit than to say had this petitioner here delved in the law long enough to recognize that he -- he is not going to attack the Maryland sentence in New York and I do not read to him as in the same act.

I think he understands that very well.

I don't think he is saying that.

He says that this -- this is part of his allegation of the background of why the Assistant United States Attorney told him that she would ask for a light sentence.

It was because he had his notion, originally, he says that he could get off in Maryland.

Justice Charles E. Whittaker: What had come in when you do (Inaudible)

Mr. Theodore George Gilinsky: Well, I do not read the petition that way.

I read the petition that he's told he wants to be heard on whether or not this assistant told him that she would give -- she would ask for a light sentence.

And that's what I believe sincerely is what he wants to be heard of.

If he wants to be heard on something outside the eastern -- of the facts outside the Eastern District then we have certainly muddled the whole 2255 problem because that's exactly what we had 2255 to avoid, was this problem of getting things from outside.

As I say that we -- we think both the language, the background of this statute and the cases that have followed it have all been consistent in holding that in these circumstances this statute is not applicable.

May I spend a few moments on the second question which we do not really believe is reached, the question is, assume we have only a 12-year sentence, assume that is the only one so that we don't get into the other problems, has this petitioner raised the question sufficiently to grant him a hearing?

We think it is significant that of the two facets of this problem, one of the things that he has said was that the Court originally denied him the right to withdraw his plea because he says in his petition that he knew at that time that he had been, as he used the word, tricked, tricked.

Now we suggest this means that this petitioner knew of his remedies.

As a matter of fact, he had a lawyer at that time which he has never said anything about.

He was warned of his rights.

He was told by the Court that the Court could give him the sentence.

He -- two days after this sentence, he did attack the Southern District and he did not attack the Eastern District at all so that he -- here is a man who knew if we -- if we believe his allegations, knew of something which he says is wrong and has deliberately not done anything about it and we suggest that it's -- it's clear why because he didn't get a maximum sentence.

He got only a concurrent sentence.

He got a problem which was not going to interfere with him in the least.

Now we think that is the part at least of the problem on the merit.

The other part of course is that there is a clear record in the Eastern District of New York showing that he was warned.

Number one, showing in that the Court told him that the Court could enter the sentence.

If we are to disregard all of these safeguards, I suppose it's true, then.

It is not just because he had an attorney as we would, but all of this were -- and he doesn't challenge this by the way in the petition.

He doesn't challenge any of these record facts.

He merely says that the Assistant United States Attorney said that she would ask for a light sentence and she did not.

It's nowhere alleged that she promised him a light sentence, but -- that she would ask for it.

As a result, we feel first in summary that this petitioner is entitled to no relief on any circumstances regardless of the statutory problem because of the general policy of not deciding this type of problem where this is no -- no benefit at all can result to this that this particular statute as grafted and as interpreted and for its purpose is not applicable to this type of problem.

And that finally, on the merit, he has not really alleged sufficient grounds to entitle him to a hearing.

Chief Justice Earl Warren: Mr. Davis.

Argument of Thomas Homer Davis

Mr. Thomas Homer Davis: If the Court, please, briefly one thing the Government contends is, this man has not taken advantage of all his rights as a good lawyer would do.

You must remember this man's in the Leavenworth penitentiary, he is a colored man.

He has no right to take the law but to himself.

He reads these books in the library so many hours in evening and he has educated himself through all these proceedings and it (Inaudible) who's in the Government in my opinion to hold him to strict lines of procedural matters.

He is entitled to the benefit of -- of some leniency here, like the courts to give him a habeas corpus.

Now, this question of this statute sees him claiming the right to be released.

This statute -- the Court is applying habeas corpus under McNally verse Hill that you must show the right to be released.

This just says claiming a right to be released.

Suppose he puts in his motion to vacate and he says I claim the right to be released for these grounds, suppose that he doesn't have and can't show that he is entitled to release.

This statute says that a hearing should be had.

And this statute then says that findings of fact and conclusions of law should be made and then when you come up through your Circuit and through your District Court or some court has made findings of fact and conclusions of law.

Now in the government's brief, they say he'd be entitled to no relief on parole, on good time.

Well, who's deciding all these things whether he's entitled to any of these things because the man has never had a hearing.

Does the Court when it gets one of these motions have to go through the record write to United States Attorney and say, “Now, if we granted this, would this affect this man's parole rights on the -- on the second sentence?

Would it affect this good time rights?

You're having a hearing without the man being present because you're asking the Court to make all these decisions and there's no finding of fact, no conclusions of law, no hearing as this statute says a judicial hearing.”

Now, in the concurring opinion, this Court in the Heplin case, the Court says that they don't leave the majority concurrent opinion that this question hearing at anytime.

All they say is -- that that means res judicata doesn't apply or latches.

Well, if the Congress intended that that was what they meant, why didn't they say it?

Why did they say a hearing?

Why do they use the word hearing?

In the Hayman case, the Court says, “This is purely a statute to afford the man the same right he had in habeas corpus.

In another section of the Hayman case, they say, “This is an independent action, collateral attack on the judgment.”

So if it is, now the question he says here about this man claiming he's -- he has denied the right to withdraw his motion, his plea of guilty.

He went in to the Eastern District Court.

He filed the motion and he asked to withdraw he plea of guilty.

The Court never heard a word of testimony. The man never got to open his mouth.

It was denied arbitrarily from the bench and true that that is the matter ordinarily you have to raise by appeal and it's the discretion -- that is the Court, but the abuse of a Court as to discretion is a matter you can reach and hear.

We have a statute that says -- 2255 says that a court on -- under 2255 can grant a motion for new trial.

But what does it mean that it can grant a motion for a new trial?

Does it mean that the old theory that you had to appeal or what is it a new trial granted?

Why -- why do you grant a motion for a new trial?

You grant a motion for a new trial if something has occurred at the trial that's irreversible error.

You also can like you do in habeas corpus, set aside that he wasn't advised his rights to counsel, but how broader have they gone?

Why they did say that he'd have, the Court under 2255 would have a right to grant a motion for a new trial?

What they put it in there for?

Justice Charles E. Whittaker: Mr. Davis --

Mr. Thomas Homer Davis: Yes.

Justice Charles E. Whittaker: May I ask you please, sir?

Mr. Thomas Homer Davis: Yes.

Justice Charles E. Whittaker: What issue of fact as distinguished from one of law is tendered by the motion that requires a hearing, in a few words, please?

Mr. Thomas Homer Davis: Yes.

Well, just this that there was collusion between the assistant United States Attorneys through the Southern District and the Eastern District.

This man was in New York in jail.

He wouldn't plead guilty.

They kept bringing him back in before the Court.

So he alleges -- they -- they got together and by collusion, they persuaded him that if he'd plead guilty, they would give him a lenient sentence -- recommend a lenient sentence and the sentence in effect wouldn't be over five years long and they kept working at him.

So the Southern District Attorney comes over and he does it.

Then the Southern District Attorney says, “Now, I'll get the girl from the Eastern District and she'll come down here and make the same deal.”

She did come down but he says we made the deal.

Now on 2255, he's trying to get the Court there to hold that he was coerced and placed under duress to change his attitude from willingness -- willingly entering pleas of guilty by these promises and it was that duress and coercion and collusion of those two Assistant United States Attorneys, that's what he wants to go back to that Court and have a hearing on.

He wants to get back there and get on the witness stand and testify about those things under 2255.

Justice Charles E. Whittaker: He doesn't allege that it was any statement that the sentence would be under five years, does he?

Mr. Thomas Homer Davis: He doesn't but it's -- it -- it follows he's got it in his motion to that effect.

That's what he meant.

Justice Charles E. Whittaker: Well, that's a conclusion, isn't it?

Does that tender an issue of fact on which evidence is needed?

Mr. Thomas Homer Davis: Right.

If you -- if you allege it, two Assistant of United States Attorneys of two districts persuade you to change your mind about entering a plea of guilty by promises made, I think that you've got a question of fact there and not a conclusion.

Justice Charles E. Whittaker: The promise is unless on who bothers that conclusion (Inaudible) and that's the only promise as alleged

Mr. Thomas Homer Davis: What difference would it make what the promise was if by any kind of a promise, he changed his mind of not entering a plea and entered a plea?

It wouldn't make any difference whether it's fulfilled or not.

If you change the mind of a man who says I'm not guilty and you get him to change his mind by any kind of a promise silly or otherwise, you have used duress on that man in my opinion.

Justice Charles E. Whittaker: Even though the promise is kept.

Mr. Thomas Homer Davis: Even though the promise is kept, it would have nothing to do with it in my opinion.

If you change a man, who's got a right to plead not guilty and if you induce him by any kind of a threat, promise or coercion and you change his mind and he does something he didn't intend to do in the first place, you have violated the Constitution in my opinion.

I thank the Court very much for the extra time.

Chief Justice Earl Warren: Well, Mr. Davis before you sit down on behalf of the Court I should like to thank you for accepting this assignment to represent this indigent defendant without compensation.

The Court realizes what an inconvenience it is to come from your part of the country to this part on a mission of this kind and we're grateful to you.

We're comforted by the fact that the lawyers will do that.

Mr. Thomas Homer Davis: It is a privilege and an honor, Your Honor.

Chief Justice Earl Warren: And Mr. Gilinsky, I want thank you of course for your very earnest representation of – for the people.