PARKER v. ELLIS

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Argument of Frank W. Wozencraft

Chief Justice Earl Warren: Number 38, George Lee Parker, Petitioner, versus O. B. Ellis, General Manager of Texas Prison System.

Mr. Wozencraft.

Mr. Frank W. Wozencraft: Mr. Chief Justice and may it please the Court.

This case comes to this Court by a writ of certiorari from a decision of the Fifth Circuit Court of Appeals which was handed down on August 29th, 1958.

The opinion was written by Judge Cameron and Judge Reeves dissented.

Rehearing was denied on September 29th of -- 1958, certiorari was filed on October 24th of 1958, and this Court granted certiorari on March 2nd, 1959.

It also granted petitioners leave to proceed in forma pauperis and I was appointed as counsel for the petitioner by this Court.

In -- on June 6 of 1959, petitioner finished serving his sentence in the Huntsville Penitentiary with time off for good behavior.

Chief Justice Earl Warren: What time was that?

Mr. Frank W. Wozencraft: On June 6, 1959, Mr. Chief Justice.

That was three months after certiorari was granted and at that time, he was dismissed from the penitentiary.

I informed the Court of this dismissal and suggested that there might be continuing legal effects of this conviction of his and that if the Court wished me to argue the possible applicability of the Pollard case, I would be happy to do so.

The Court has informed counsel through its clerk to add mootness to the issues to be argued in the brief and in the oral argument.

As in the briefs, I'd like to turn first to the question of denial of due process because I believe that this may effect in some way because -- which the Court may want to take in its discretion on the question of possible mootness.

The question of course is as Your Honors are aware, the denial of due process under the Fourteenth Amendment, by denial to this petitioner and the right to counsel.

The colloquy in which this occurred is set forth in the brief for petitioner on pages seven and eight.

The Court called him for trial, asked if he was ready for trial.

He replied yes.

The court says, “Do you want a trial by jury or without a jury?”

Parker says, “Well -- and it's immaterial to me judge, I don't have any attorney.”

The Court, “Well, you're going to have to make up your mind.

It is certainly immaterial to the Court?”

Parker says, “I guess a jury then.”

“Do you have a lawyer hired?”

“No, I don't.”

The Court then advised the petitioner that the law does not require the Court to appoint an attorney to represent a defendant and a -- when -- where he has a trial by jury and it's not the practice of this Court to appoint any.

It's up to him to arrange for his own counsel.

If he wanted a suspended sentence, they would arrange perhaps for him to have counsel as to that particular question but not as to the merits.

And Mr. Parker said, “Well, he didn't have a lawyer.

Alright, he's ready for trial.”

It is the position of petitioner that under the long established line of cases of this Court in the cases such as Johnson versus Zerbst in 304 U.S. and in Uveges versus Pennsylvania in 335 U.S. that this was certainly not a knowing denial of the right to counsel.

The trial which -- which succeeded this --

Chief Justice Earl Warren: (Voice Overlap) May I ask before you get to that?

What is the significance of this statement if you want to apply for a suspended sentence, you let me know and I'll arrange for a lawyer to help you with that part only?

Is that -- is that implied with -- he can have a lawyer if he pleads guilty?

Mr. Frank W. Wozencraft: There is a special statute in Texas, Your Honor, that says “As to a suspension of sentence plea,” when he wants a suspended sentence that he can -- he can obtain counsel for it.

I believe this is whether or not he has pleaded guilty.

Chief Justice Earl Warren: But that can only come either after he's convicted by a jury or after he pleads guilty, is that right?

Mr. Frank W. Wozencraft: Yes, definitely.

So that there is a misstatement by the Court, a clear denial of any counsel to be provided by the court for this man, in this jury trial.

Justice Felix Frankfurter: Can you --

Justice Charles E. Whittaker: (Inaudible)

Mr. Frank W. Wozencraft: No sir, I don't think that that can be claimed to be a specific request, but I don't believe that a specific request is necessary under the decisions of these case and you've -- of this Court in Uveges versus Pennsylvania and in Johnson versus Zerbst, particularly whereas here -- it must be apparent to the Court as matter proceeds that there is no possible way by which this man can know enough to protect his rights without a counsel.

Justice Charles E. Whittaker: Was this not also suggested if I may ask.

Was there any claim by this man before the Court of indigence and inability therefore to hire and pay a lawyer?

Mr. Frank W. Wozencraft: No sir, I don't believe that that appears before the Court, but again in the little town of Dumas, things like that, you could almost take judicial notice off.

I don't mean that the Court really should if in this case, but there is a distinct absence of any question by the Court as to whether or not he could afford counsel as to whether he hadn't taken any steps to obtain counsel or could do so.

Justice Felix Frankfurter: Well, just as a matter of curiosity, could you tell us what there is behind -- what policy or consideration behind this special rule in Texas that it'd be -- wants to have a -- suspend the sentence then he can have a lawyer after that?

Mr. Frank W. Wozencraft: Your Honor, I'm afraid that I would not be able to justify the course of the legislation (Voice Overlap) in creating that statute or --

Justice Felix Frankfurter: I didn't mean --

Mr. Frank W. Wozencraft: -- to explain its motives.

Justice Felix Frankfurter: I didn't mean justification but somebody must have had some reason to get something like that on the statute.

Is it on the statute?

Mr. Frank W. Wozencraft: Yes, sir.

It's still on the statute books, but fortunately, as I mentioned later in this brief, there has -- since the grant of certiorari in this case, an amendment to the Texas statute authorizing right to counsel in any felony case by anyone so accused.

So that the provision for suspended sentence now, I suppose is a dead letter which will not be impealled -- appealed but fortunately will no longer may need it.

Chief Justice Earl Warren: Authorizing or requiring the appointment of counsel in all the cases.

Mr. Frank W. Wozencraft: Requiring it under the circumstances set out in the statute, Your Honor.

This appears in my brief on page five where the amendment is -- the amendment is set forth that when it is made known to the Court at an arraignment or any other time that an accused charged with a felony is too poor to employ a counsel, the Court shall appoint one or more practicing attorneys to defend him, who will have ten days to prepare for trial.

And it then goes on to say that in the bill, enacting this amendment that the fact that the previous article applied to capital cases and does not apply to ordinary felonies, creates an emergency and an imperative public necessity.

That means that it must go immediately into effect upon its signature by the governor and this amendment is now in effect.

As the trial progressed, it became perfectly clear and I think it will become clear to anyone who -- who reads this record that this petitioner was way beyond his debt, impossibly helping to cope with the intricate complex legal problems that were presented.

The very indictment refers only to a forgery by him of the signature of -- Elsie Quattlebaum wherein fact it was a forged check drawn on Phoebe Quattlebaum by Elsie Quattlebaum.

In this connection, it should be noted as Judge Reeves noted in his dissenting opinion that the Quattlebaums were partners-in-laws and that Elsie Parker -- Elsie Quattlebaum had been an enemy of his for years and it's set forth in an affidavit later coming in the habeas corpus proceedings and this fact was never made known to the jury.

Now, and of course as -- as -- and be assured that Parker could have made this known if he'd had any idea of its significance, but he did not and it seems that it's the kind of a thing that a counsel certainly would have made known and would have tried to inquire further to find out just what was really involved in this case.

How these checks happened to be written?

Justice Charles E. Whittaker: Mr. Wozencraft, is it your argument -- Mr. Wozencraft, did not -- what about the testimony of the young lady at the bank who said that this man admitted to her that he -- claimed to her that he had been authorized to sign Elsie's name to these checks?

Didn't -- isn't there a testimony like that?

Mr. Frank W. Wozencraft: Yes, sir.

There is testimony that he was authorized to sign the checks.

Justice Charles E. Whittaker: He told the young lady at the bank he was.

Mr. Frank W. Wozencraft: Yes, sir.

That's right.

And this is testimony incidentally which even though it is just hearsay, raises what we regard as an affirmative defense on which this petitioner was entitled to an instruction of the jury, the possible defense of a authority which is an essential ingredient of the crime of forgery is that it be without lawful authority.

Here is another situation where an error of the judge in the trial is highlighted, and one which competent counsel should have been able to call attention to.

There is also, Your Honor, a statement in this record where the sheriff says that -- that Parker admitted signing the checks and the -- this is one of the elements in this case that just amazes me more than any other.

Here, we have the -- the square language or Article 727 of the Texas Code of Criminal Procedure which we set forth on page 5 in our brief that the confession shall not be used if at the time it was made, the defendant was in jail or other place of confinement, nor while he was in the custody of an officer, unless made in the voluntary statement of accused taken before an examining court or made in writing and signed by him after all kinds of warnings.

And not only did this come in the testimony, it was relied upon by the Court of Criminal Appeals in affirming his conviction.

It was stated by the Court of Appeals for the Fifth Circuit in denying his writ of habeas corpus and is referred to twice in the brief for respondent in this Court.

Now, granted it came into evidence and certainly, it has been relied upon ever since then to the detriment of this petitioner and I submit that it would never come in if petitioner had had a counsel.

Chief Justice Earl Warren: Has there been any clause you could -- on that section by the courts prior to this case?

Mr. Frank W. Wozencraft: Your Honor, I'm not familiar with al the gloss but I -- it would take more than a gloss, it would take a rewrite to justify what happened here and it has not been rewritten.

Justice Charles E. Whittaker: What I was thinking about the testimony of the young lady at the bank, had connection with what you've just now related.

That testimony of the sheriff would appear on the face of it, it was direct opposition to the terms of the statute.

Mr. Frank W. Wozencraft: Yes sir.

Justice Charles E. Whittaker: But was there not enough without it?

Mr. Frank W. Wozencraft: Well, Your Honor, as I say, there was no denial of authority anywhere in this evidence, anywhere, in fact, just a contrary.

The only evidence in the record is the statement of the bank teller that he said he was authorized.

Justice Charles E. Whittaker: That would -- must be an admission that he did do the signing.

Mr. Frank W. Wozencraft: Yes, sir.

Coming of course from the other side and I think, though there's a great deal of difference in the testimony perhaps to that effect of the -- of the bank teller and of the sheriff who comes before the Court stating what has been told to him.

Certainly, it is corroborating testimony and I cannot imagine that -- that the fact that -- that she herself, that's what the bank teller had said, would make a harmless error to have a corroboration of that testimony.

Certainly, from an officer of the peace with whom the judge must have been well acquainted and the jury in a small community must have known.

As the trial further progressed, the evidence came in from the sheriff that this man was under indictment in another case.

I'm not familiar with the nature of that case.

I don't know whether the indictment is still on the books having been told while this man was in jail or whether it is now been dismissed.

But in any event, here again, is a direct violation of Article 732 (a) of Code of Criminal Procedure in Texas which appears on page 6 of our brief, which says that this indictment is not admissible to impeach and there is a little, it says -- and impeaching any person as a witness and perhaps there is a difference here between a man being a defendant and being a witness but it seems to me that if anything is worst, hears it to impeach a defendant than it had to impeach a witness.

Justice John M. Harlan: Did the judge -- the time it were directed, did the judge -- did the judge take any important stuff in the case?

Mr. Frank W. Wozencraft: Your Honor, that's a -- that's a point I wanted to come to.

I believe that a reading of this record will make it clear that the entire attitude of this judge is summed up in his comment in questioning this man on whether or not he wants a jury.

He says, “It is -- certainly immaterial to this Court.”

There is no instance in this record wherein at any -- at anytime the judge intervened to protect this petitioner or any of his rights and I believe that the conviction of this petitioner was certainly immaterial to this Court.

Under Texas law and I believe under due process where a man does not have a counsel, there is a duty on the part of the judge to be extra careful that he is protected in his rights.

There was no move of this kind at any stage by the trial judge in this case.

Justice John M. Harlan: No request by the petitioner that he wanted counsel like other counsel (Voice Overlap) --

Mr. Frank W. Wozencraft: That's -- that's correct, Your Honor.

Justice John M. Harlan: (Voice Overlap) from the judge as to whether he wanted that with the request not have counsel.

Mr. Frank W. Wozencraft: No, sir.

The only statement of the judge was “Do you have one?”

And he says no.

He's aware, “We won't give you one because you're not up for a capital appeal.

Justice John M. Harlan: Well, that would be on this colloquy, is able to give you (Voice Overlap) --

Mr. Frank W. Wozencraft: Yes, sir.

That's correct.

And it also should be noticed that -- that the sheriff testified at the trial that petitioner had been suffering from heart trouble and had been receiving medicine while he was in jail from the sheriff.

He gotten it for him from the drugstore.

In other words, this was a sick man at the time he was tried and as Judge Reeves says in his dissent, a reading of the record makes it pretty clear that he was a sick man.

It certainly, lends support to his -- to his claim of that.

If he did not make that claim at the trial, that is true.

The Court of Criminal Appeals in saying that he really -- didn't need a lawyer, says that he didn't raise this point properly by a motion for continuance which certainly, it would have taken a lawyer to tell him how to raise.

The sheriff's testimony verbatim on page 68 of the record on this point of illness, Mr. Justice Whittaker, is yes, sir, he's been in very ill health.

I've had to buy him medicine and had to take him up and give him shots.

I believe the doctor says he has heart trouble.

Justice Charles E. Whittaker: That might mean the Court uses that, would it?

I've had the finding that that doesn't give you a --

Mr. Frank W. Wozencraft: Well, Your Honor, I don't think there's any question about indigence.

This certainly would have called into the attention of the Court, I agree with Your Honor.

It is also called to the attention of this Court by the fact that it took him several months in the prison to try to obtain a copy of the record.

He did so finally by getting one of his fellow convicts to fork up $25.

That was the way he finally got the record in this case, and that is one of the circumstances which well may have affected his delay in obtaining a final decision in this case.

It seems perfectly clear to a man, I hope it will to this Court that after considering the statutes here at least in the testimony that -- that here, we have issues so extremely complex that it would be utterly hopeless to ever hope that petitioner could have defended himself properly without the aid of counsel even if he had waived his right to counsel which we certainly urged that he did not, this record on itself shows a denial of due process because this trial itself was not a fair trial and it did not meet the common standards of fairness which this Court and every court has a right to expect from a trial court.

It is the -- our contention that -- that this comes almost directly within the wording of the decision of this Court in Uveges versus the Commonwealth of Pennsylvania in 335 U.S. where the gravity of crime and other factors such as the age and education of the defendant.

There, in Uveges, the defendant was young, here, he has aged and I'll.

The conduct of the Court in the --

Chief Justice Earl Warren: How old was he?

How old was he?

Mr. Frank W. Wozencraft: He was 67 at the time of the trial Your Honor.

And he had been ill from heart trouble for about two years.

The affidavits of doctors appear in the record.

And the complicated nature of the defense charged and the possible defenses thereto, render criminal proceedings without counsels, so aft to result in injustice as to be fundamentally unfair.

The latter group holds that these are cases, the Betts versus Brady decisions, that the accused must have legal assistance under the amendment whether he pleads guilty or likes to stand trial, whether he request counsel or not.

Only a waiver of counsel, understandingly made, justifies trial without counsel.

The Fourteenth Amendment requires counsel for all persons charged with serious crimes, when necessary for their adequate defense in order that such persons maybe advised how to conduct their trial.

I would like now if I may to turn or let me just wrap this up with -- with one statement.

There was a charge by the judge to the jury, the -- the defendant Mr. Parker, the petitioner did not testify.

He called witnesses on his own behalf and all he said was “Joe, tell him what you know about him.”

And they said “Well, he's a sick man, a' pretty good man, a sick man.

Then the sheriff and the -- the prosecuting attorney came in and asked one of them, “Did you ever get any hot checks from this defendant who has called you as his witness?”

And the -- the witness said, “Well, yes I did,” to the judge.

So that the hot check charged from the man that he himself had brought onto this stand was introduced into evidence.

The --

Justice Potter Stewart: This trial was in rural community or --

Mr. Frank W. Wozencraft: Yes, sir.

In the town of Dumas, Texas and Moore County.

It's in the panhandle north of Amarillo but quite away.

Justice Hugo L. Black: What's the population?

Mr. Frank W. Wozencraft: I don't know exactly, Your Honor.

I would guess 5000.

I've been through it once but I didn't feel any incentive to stay very long.

In the charge to the jury, the judge did not raise any possible affirm -- affirmative defenses or a request to any special consideration of them and the jury verdict as might not be surprising in view of the previous convictions as to which testimony had entered the record, and the other elements of which I've just spoken was a resounding guilty.

The possible sentence for forgery is two to seven years, The jury recommended a sentence of seven years, the maximum.

It is that penalty which petitioner served his sentence under and was finally discharged with time of for good behavior on June 6 of this year.

Justice Potter Stewart: How --

Justice Charles E. Whittaker: Are you going to discuss the question of mootness?

Mr. Frank W. Wozencraft: Right now, Your Honor.

Justice Charles E. Whittaker: Alright.

Mr. Frank W. Wozencraft: As I say in the brief, this is a situation where if -- he had had counsel to guide him through these procedural requirements, and let him know what he was supposed to do in his habeas corpus petitions.

The record is full, correspondence between him and the clerk of the U.S. District Court where he hasn't sent the right documents or needs other documents.

A tremendous amount of time was consumed by that process because this man simply did not know what he was supposed to do, but he filed his petition for habeas corpus with the (Inaudible) Court of Criminal Appeals, very promptly after he entered prison and he has been working on that petition through the entire time he was in prison, Now when he did finally finish serving his sentence on June 6th, it was more than three years after he applied to the District Court for a writ of habeas corpus, more than seven months after his petition for certiorari was filed and more than three months after it was granted by this Court.

If he had had counsel, there would have been plenty of opportunity for this Court to decide his case last term while he was still in prison.

Even without the -- the time which was required for certiorari and I'm certainly familiar with how long it takes in forma pauperis record that were put there with nine difficulties to make the round, stil, four and a half months elapsed between the time that he filed his petition and the time it was granted.

And any rushing up of the process, anywhere along the line and he could have gotten the ruling of this Court before he finished serving his sentence.

Or even if he'd slugged the guards and sacrificed his term time off for a good behavior, he'd still be there and we would be talking solely about the points that I've just finished discussing.

However, he did get out and there's no denying that there is a close question here about whether the Court which clearly had jurisdiction at the time it had granted certiorari has lost that jurisdiction simply because he is finished serving his sentence.

It is the contention of the petition --

Justice Felix Frankfurter: Why is it merely whether that court has lost jurisdiction with whether this Court has it?

Mr. Frank W. Wozencraft: Sir, when I said -- I -- I meant to ask whether this Court has lost jurisdiction which it clearly had when it granted the petition for certiorari and it is our contention that it does for two reasons.

One, the Court traditionally has power, always has had power to issue its orders and its writs as all the date while it still had jurisdiction when there are matters which have taken place after that jurisdiction attached, such as the death for instance of one of the parties.

The plea of abatement, the abatement which would terminate jurisdiction can be overcome by the Courts entering the order nunc pro tunc as of the date when it was ripe for decision after the court's jurisdiction had attached.

We submit that in this sense --

Justice Felix Frankfurter: What cases are those?

Mr. Frank W. Wozencraft: Well, the case of Mitchell versus Overman, sir of -- of this Court, 103 U.S. 62, Your Honor dealt with the right of an Iowa court to which -- which took -- at the Iowa state court which took a case under advisement and then while it was under advisement, one of the parties died.

This is on 26 of my brief, Your Honor.

Justice Felix Frankfurter: We had a case of the case of an abatement because of the Judge Advocate General (Inaudible), do you remember that case?

Mr. Frank W. Wozencraft: Well, I noted in several cases involving federal officials, Your Honor, and the same principles apply except that there you have federal statutes --

Justice Felix Frankfurter: But we didn't do it.

Mr. Frank W. Wozencraft: Well, yes, sir.

That's correct.

And not always does the Court ever have to exercise a discretionary power and this power is discretionary.

But when you're talking about federal officials, you're dealing with the 1925 statute which provides for the substitution of new parties within a six-month period.

And I think that -- that is pretty well discussed in the case of Schneider versus Buck in this Court in 340 U.S. where you held that because of a failure to comply with the statutory requirement, the action would have to be abated.

Justice Felix Frankfurter: And ultimately, those are cases where the cause of action, where there was an -- an act -- an action still alive, it wasn't that the action was terminated with one of the parties there.

Mr. Frank W. Wozencraft: Yes, sir.

That's correct.

And here, we contend that there are continuing legal consequences that flow from any felony conviction are present in this case and by themselves, this would provide a thread of jurisdiction.

But I don't believe we even have to reach that point, Your Honor, because in Mitchell versus Overman, this Court has fairly first stated that the question is whether or not the state court lost jurisdiction when this man died and that -- that its jurisdiction, whether you talk about abatement of parties or abatement of issue.

It's pretty much part of the same horse and I think the decision of this Court in Mitchell versus Overman is precedent for the decision here.

Now, let me emphasize again, sir, that this -- this power is a discretionary power.

It is one which the Court is -- freely admit under no obligation to exercise.

I also freely admit there had been many, many cases in which it has not been exercised.

I would hope that this Court would perhaps see fit to exercise it more frequently beginning with this case.

There was one case where it was --

Justice Felix Frankfurter: Why you -- and you hope that?

Mr. Frank W. Wozencraft: I beg your pardon, sir?

Justice Felix Frankfurter: Why do you hope that?

Mr. Frank W. Wozencraft: Because I believe, sir, that when a man has a felony conviction on his record, and when he fights his way up to get it reviewed, whether it's by this Court or whether it's by a Court of Appeals or any other court, I believe that that man should have the right to clear his record.

Justice Felix Frankfurter: But this is the only way to clear it, is this?

Mr. Frank W. Wozencraft: Your Honor, this was the way which was open to this man at the time when he filed his --

Justice Felix Frankfurter: I know --

Mr. Frank W. Wozencraft: -- petition of habeas corpus.

Justice Felix Frankfurter: -- but this is the only way to clear it, is it?

Mr. Frank W. Wozencraft: There maybe other way, sir.

I'm not familiar with -- well, you might bring a mandamus against a voting registrar or -- or something like that, but this is the way which he has chosen and this is the way as of -- of which this Court had jurisdiction at that time that it granted his petition for certiorari.

Now, may I invite the attention of the Court to one case where in a habeas corpus proceeding, but involving the opposite side offense, this Court did use its power to issue a judgment nunc pro tunc and that is the case of Quon Quon Poy versus Johnson.

Justice Charles E. Whittaker: Could that be done in a habeas corpus case though, Mr. Wozencraft?

Mr. Frank W. Wozencraft: Well sir, in that case, it was done Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Frank W. Wozencraft: In -- in the reverse direction.

There, they remanded Quon Quon Poy to the jurist -- to the -- to the custody of a Commissioner of Immigrations who had already died.

Justice Charles E. Whittaker: Well that's a little different thing.

You've got the body of the person who's to be delivered still in existence, but here however, if this writ issued to this respondent, how could it be complied with?

The writ would be, deliver up the body, he doesn't have the body.

Mr. Frank W. Wozencraft: Your Honor, he has already delivered up the body by turning petitioner loose.

But as of the time when this judgment would be entered, as of the time when the order would run to him, he had the body.

Justice Charles E. Whittaker: Well --

Mr. Frank W. Wozencraft: That's the whole basis of this -- this nunc pro tunc power of the Court.

It would -- it's -- in this case, it so happens that there would be no need for further implementation of the order, the order would implement itself.

It -- it has been implemented in effect after the time as of which the judgment would be entered.

Justice Charles E. Whittaker: Could we get this man into some inconsistent to maybe severe position here?

Suppose this writ were to issue on some basis, and it be thus held that this trial was illegal.

Now then, he could be subject to trial again.

And then the given even a greater sentence than before and even if given credit for the time he'd served, he'd still have to go back to jail, wouldn't he?

Mr. Frank W. Wozencraft: The maximum sentence was seven years, Your Honor and that's what he got.

Justice Charles E. Whittaker: Well, he hasn't served that?

Mr. Frank W. Wozencraft: He did, sir, with time off for good behavior --

Justice Charles E. Whittaker: That --

Mr. Frank W. Wozencraft: -- which is a statutory allowance.

Justice Charles E. Whittaker: What's the answer to this -- is there --

Mr. Frank W. Wozencraft: Well, Your Honor, it's -- it's certainly is one which we've considered and it is our feeling that -- that he had served his sentence.

I'm not certain of the -- of the statute of limitations but on the crime of forgery, unless it were told by all of this proceeding, that would take care of it.

Justice Charles E. Whittaker: And always think it would be?

Mr. Frank W. Wozencraft: I'm afraid it might.

It seems to me that he has, as I say, served his term in any event and by receiving credit for that time, would not be subjected to further sentence.

Justice Charles E. Whittaker: You would be running -- taking calculated risk.

Mr. Frank W. Wozencraft: Yes, sir.

Justice John M. Harlan: Are you going to deal with mootness before you get through?

That's what it is.

Mr. Frank W. Wozencraft: Well, that's what I'm hoping to be dealing with now, Mr. Justice Harlan.

Justice John M. Harlan: In other words, mootness -- I call its jurisdiction.

I'm thinking about mootness in the sentence as to whether he can be denied his voting rights in Texas and should be on a continuing consonance to that, is he?

In view of that case it cited that there are things to indicate that an out-of-state conviction will deprive in his voting rights.

Mr. Frank W. Wozencraft: Your Honor, there's no denying of the intermediate Texas Court without considering the arguments or the opinion in the Logan case has so held very peremptorily an election contest where they were considering that with several other disputed ballots.

The Supreme Court of Texas has not spoken on this subject.

I would submit that this Court should not decide whether or not it should exercise its jurisdiction by whether or not the Supreme Court of Texas would follow the Court of Appeals decision in its -- in the inferior state court or whether it would invoke the reasoning set forth in Logan versus United States which also appears in my brief and where this Court stated in common law and on general principles of jurisprudence were not controlled by express statute, giving effect within the state which enacts it to a conviction and sentence in another state, such conviction and sentence can have no effect by way of penalty or a personal disability or disqualification beyond the limits of the state in which the judgment is rendered.

Mr. Justice Harlan, I will agree with you hardly and it's very difficult here to trace what the exact continuing legal consequence is of this conviction may be.

But I will submit to this Court that any felony conviction inevitably has continuing legal consequences.

In a decision for instance of a court whether or not to invoke -- well, or -- or a district attorney even of whether or not to invoke habitual offender statutes.

The right to run for office goes with the right to vote in Texas.

And while I don't expect Mr. Parker to be a candidate for governor anytime soon, this is part of his array of civil rights.

A man who is convicted of a felony loses those civil rights that he may have lost them in some other fashion.

I don't believe he'd be regarded as removing the legal consequences of this particular conviction on his record.

Justice Felix Frankfurter: Your -- your argument is one draft on nunc pro tunc, makes finding specific disability resulting from this to be rather immaterial, it seems to me.

Mr. Frank W. Wozencraft: Yes, sir.

I am prepared to make an alternative argument --

Justice Felix Frankfurter: Yes, I understand that but --

Mr. Frank W. Wozencraft: -- that this will support jurisdiction as well --

Justice Felix Frankfurter: Yes, I understand that.

Mr. Frank W. Wozencraft: But nunc pro tunc is a substitute --

Justice Felix Frankfurter: Your main argument makes this immaterial.

Mr. Frank W. Wozencraft: Yes, sir.

That is correct.

If I may, I'm going to save the remainder of my time for rebuttal.

Chief Justice Earl Warren: You may.

Justice William O. Douglas: And that nothing will test the scope of -- of the replacement of the fact -- remedy you know?

Mr. Frank W. Wozencraft: No, sir.

There is not unfortunately.

I wish there were.

Justice William J. Brennan: That aside from this enactment?

Mr. Frank W. Wozencraft: Yes sir, it certainly would.

Chief Justice Earl Warren: Mr. Pesek.

Argument of Leon F. Pesek

Mr. Leon F. Pesek: Mr. Chief Justice, members of the Court.

It is the contention of respondent in this case, sir, that the real question before this Court embodies the question of whether the Court has lost jurisdiction because the question has in fact become moot as was discussed by Mr. Wozencraft.

Certain things have happened.

On June the 6th, 1959, petitioner was freed from all restraint and that respondent here and Mr. O.B. Ellis, who's the General Manager of the Texas Prison System, freed him, has been -- no longer has him in any type of custody or confinement.

It is the position of respondent that the purpose of the great writ of habeas corpus is to be used by one who is unlawfully confined.

Now throughout the record, petitioner asked for one thing in his application, to be freed from unlawful restraint and imprisonment.

That restraint or imprisonment, lawful or unlawful, no longer exists.

Calling your attention to Title 28, Section 2241 of the Code where it in Subsection (c) it states that, “The writ of habeas corpus shall not extend to a prisoner unless -- paragraph 3, he is in custody in violation of the constitution or laws or treaties of the United States.”

If I may, I would like to briefly quote from the concurring opinion by Mr. Justice Stewart in the case of Heflin versus United States where he stated, “The very office of the great writ, its only function is to inquire into the legality of the detention of one in custody.”

It is unnecessary to paraphrase here Mr. Justice Stone's penetrating discussion in McNally versus Hill, 293 U.S. 131, or to incorporate the thorough review of legal history there contained.

It will suffice to note only the Court's decision -- Court's conclusion, excuse me, without restraint of liberty, the writ will not issue.

Equally without restraint which is unlawful, the writ may not be used.

A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry.

And I might add to that, that a sentence which has already been served is no longer a restraint which the statute makes the subject of inquiry.

I should also like to call the Court's attention to the case of St. Pierre versus the United States which is a case almost identical in point to the case before us.

There, Pierre -- St. Pierre was convicted of contempt of -- having contempt to court rather and was assessed five months in the penitentiary or in -- he was assessed five months in confinement and he asked for a writ of habeas corpus.

And before this Court could decide the question involved, he had been discharged and the mootness question arose in that case and this Court held in that case that we are of opinion that the case is moot because after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate.

A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it and they're citing some cases.

And the Court continued, the sentence cannot be enlarged by this Court's judgment and reversal of the judgment below cannot operate to undo what has been done or restored to petitioner the penalty of the term of imprisonment which he has served.

Justice Potter Stewart: What do you do with the proper case on each?

Mr. Leon F. Pesek: If I may refer to my notes just a moment to refresh --

Justice Potter Stewart: Don't bother, it's late.

Do it during lunch time.

Mr. Leon F. Pesek: Very well, sir.

In the case of Wales versus Whitney, 114 United States 564, in speaking of the writ of habeas corpus as this Court stated that its purpose is to enable the Court to inquire first if petitioner is restrained of his liberty.

If he is not, the Court can do nothing but discharge the writ.

There must be actual confinement or the present means of enforcing it.

Chief Justice Earl Warren: We'll recess now, Mr. Pesek.

Print this transcript Transcript: 

Argument of Leon F. Pesek

Chief Justice Earl Warren: Mr. Pesek, you may proceed.

Mr. Leon F. Pesek: Thank you, sir.

Mr. Justice Stewart asked me a question before recess I would like to go into and that involved the case of United States -- Pollard versus the United States.

In that case, Your Honor, the petitioner there was convicted of a federal offense at an earlier time and he thought he was being led off that without any sentence at all.

He left the courtroom and later on that day, the District Attorney came up to the judge and said, “Judge, what are you going to do about Mr. Pollard?”

He says, “Oh, yes, give him three years and probate the sentence.”

Some two years later, he got into some more trouble of federal offense.

It faded me just what it was.

And instead of going and trying in for that one, the judge revoked the probation and he was confined in the penitentiary.

He filed for his writ of habeas corpus, but in --

Justice Potter Stewart: And that was under Section 2255.

Mr. Leon F. Pesek: On the -- that's right, sir.

And then, in that case, he was saying that the judgement itself was unlawful that the Court did not have jurisdiction to try the case because there's no question about him not being present or his attorney being present at the time and as a matter of fact, he didn't even know that he was under such a sentence.

And that -- in that particular case, they said however that because there -- there were other factors involved that would make the -- him lose on his merits, they refused to -- this Court had refused to grant him the writ because it said it would not -- it would serve no use for purpose, because he would lose on his merits, if they send it back to the trial in the federal court.

This Court also held that it will not render a judgement unless it can in some way be of material effect.

Now, comparing that case with -- to our present case, where we -- we come to the question of some type of moral stigma that might be placed upon the petitioner here.

The one stigma that was alleged it might -- could have occur would be that of a -- his failure to vote.

But the records of this case disclosed that he had been previously convicted in other States on -- I believe it was eight other felonies under Texas law whether this case was set aside or not, he would lose.

He would not be able to vote.

Also, I might call the Court's attention to the language that he used in the St. Pierre case where the man was saying that -- applicant was also saying that -- suggesting that the judgement might impair his credibility as a witness in future legal proceedings, the Court here held that the moral stigma of a judgement which no longer affects legal rights, does not present a case or controversy for appellate review since it causes moot, the writ will be dismissed.

Justice John M. Harlan: What was then a Texas voting (Inaudible)

Mr. Leon F. Pesek: The -- the statute, Your Honor, is --

Justice John M. Harlan: (Inaudible)

Mr. Leon F. Pesek: Oh, yes.

The -- just for a moment, sir.

That is Harwell versus Morris, 143 S. W. 2d 809.

That's in my -- I believe I quoted that in my brief.

And in that case, if you want me -- would you want me to discuss that?

Justice John M. Harlan: No, is that your law in Texas?

Mr. Leon F. Pesek: The law in Texas -- yes, sir.

That is my understanding of the law plus the article that provides that a conviction of the felony deprives a man the right of voting under Article --

Justice John M. Harlan: The statue itself have some construction, in other words --

Mr. Leon F. Pesek: Yes, sir.

It would, but it is our contention based on -- and that's the only case that I was able to find was the Harwell case.

And it sort of indirectly came in their own -- New Mexico and the right to vote.

It was an election contest and this New Mexico man right was denied to vote there.

And that's the only case that we have -- that I've been able to find, sir, in Texas.

Chief Justice Earl Warren: Suppose he looses rights in some other -- other State of the Union or under the Federal Government by reason of this conviction, would you still say that it was moot?

Mr. Leon F. Pesek: I would say that it was moot, Your Honor, in that -- in answer to that specific question, because he had been already convicted.

I've said it in other times.

Chief Justice Earl Warren: Well, let's take -- let's take it one at a time.

Let's just take a -- a defendant who is -- who is convicted under the circumstances that this man was convicted and -- and is in the present shape that he's in, leave out the other convictions.

Mr. Leon F. Pesek: Your Honor, I would say that --

Chief Justice Earl Warren: But really that's the question where --

Mr. Leon F. Pesek: In -- in regard --

Chief Justice Earl Warren: -- where not -- there's -- there's no proof of all this -- this man of his other convictions.

No proof that he had been pardoned for them.

There's nothing in the record as so that, is there?

Mr. Leon F. Pesek: Yes, sir.

It is in the transcript.

That is one of the alleged errors that he said he was committing at the trial but -- that is on page --

Chief Justice Earl Warren: Oh, I know.

But I mean so far as proof is concerned against him on those issue --

Mr. Leon F. Pesek: That is true, sir.

Chief Justice Earl Warren: -- there is nothing -- nothing of that kind in your record.

So let's just take -- so this was a second conviction, what -- what would you say to that?

Mr. Leon F. Pesek: Ignoring my future argument, Your Honor, on regard Due Process Clause, I would say that they're -- if he was innocent of the crime charged that the -- there is a possibility -- I could foresee a possibility that he might -- his rights might be impaired if -- if it stood all by itself.

Chief Justice Earl Warren: Maybe -- maybe in the State of -- of Iowa, for instance, conviction of this kind might bar him there even though your -- your statute might be otherwise.

If he wanted to vote in Iowa, then he had this illegal conviction against him, he couldn't vote there --

Mr. Leon F. Pesek: That is --

Chief Justice Earl Warren: -- can that be a disability?

Mr. Leon F. Pesek: It would.

In -- in that part of situation, yes, sir.

Chief Justice Earl Warren: I'm told that -- as my understanding that -- that the Secretary of State has -- has the right to prevent a man from traveling out of this country if he's -- if he's convicted of a felony.

That would be quite a disability to many people, wouldn't it?

Mr. Leon F. Pesek: That would.

Yes, sir.

Chief Justice Earl Warren: And I -- I have no doubt if we went through the votes so we could find a good many other situations where a man might loose very substantial rights by -- by virtue of a conviction of this kind if it was not set aside, and if it's -- if it's constitutional infirmity in the case, and he was in prison when he came here, why -- why shouldn't he provided to adjudicate it here?

Mr. Leon F. Pesek: Well, in this particular case, as I understand it that he -- Mr. Chief Justice, as I see it, if he was illegally tried and convicted, he has another remedy.

I do not believe that the writ of habeas corpus procedure is a remedy that he should follow.

There is a constitutional provision in the State of Texas which allows a man who is -- has been unlawfully tried and convicted and -- and then one who is tried and convicted to serve a sentence to go, first of all, to get a pardon from the Governor.

If he has served time, he can go to the legislature and ask the -- and have someone --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Leon F. Pesek: -- introduce the bill.

Chief Justice Earl Warren: -- is not a right.

It's (Voice Overlap) --

Mr. Leon F. Pesek: Well, that's true.

Chief Justice Earl Warren: -- isn't it?

Mr. Leon F. Pesek: -- but that is a procedure that he has to follow which would determine first of all whether he was in fact convicted of a crime unjustly.

And for that reason, I'm saying, Mr. Chief Justice, that -- in this particular case, he has come up here under a writ of habeas corpus.

I'm saying that because of the -- the specific points of the writ of habeas corpus cover, that is one who is in confinement, unlawful confinement can be released.

Chief Justice Earl Warren: Yes, I understand.

Mr. Leon F. Pesek: That -- and -- because he is no longer confined, because there is no one to serve the writ on at this time even if it were issued, because Mr. Ellis cannot discharge him because he has already discharged him.

So therefore, the question has become moot, it is in regard to the habeas corpus procedure possibly not moot in regard to some other legal procedures that he might go to, to clear up his good name if in fact he was not tried and convicted properly.

Chief Justice Earl Warren: What -- which -- I think I stopped you when you started.

Tell me what -- what procedure he might follow in Texas.

Would you -- would do that please?

Mr. Leon F. Pesek: I've never followed -- I had occasion to try a case of that power to use a procedure, but my understanding, Mr. Chief Justice, is that anyone who is -- contends that he was unlawfully convicted or served time can by himself or through counsel file an application to the Governor and ask the Governor to pardon me.

The Governor, I maybe in error here, but it's my understanding that the Governor asked the Board of Pardon -- Parole to investigate it, and then he makes a determination.

He also has a right to -- if he is -- from the evidence adduced at the hearing that he was unlawfully convicted.

He can then, in a served time, he can then go to the legislature and have this Congress -- representative or Senator introduce legislation saying -- which is a new constitutional provision in Texas.

I believe it's about two years or -- if I'm not mistaken.

And they will or can, I won't say that they will, I say that they can grant him certain amount of money because of his conviction and that -- the pardon plus that certainly would clear the man's name.

Chief Justice Earl Warren: But aren't those all acts of grace and not -- and not matters of right that he has to clear his -- to clear his --

Mr. Leon F. Pesek: He has a right to do this but it's a matter of determination on the part of the Governor in one hand and the legislature in another, whether they will -- that he can convince them.

What he --

Chief Justice Earl Warren: There is no -- there is no judicial proceeding in Texas --

Mr. Leon F. Pesek: No, sir.

Chief Justice Earl Warren: -- by which he can --

Mr. Leon F. Pesek: No, sir.

No -- no judicial proceeding in Texas by which he can do it.

That is the only way that I -- I know that it could be done.

Chief Justice Earl Warren: Yes.

Mr. Leon F. Pesek: The counsel for petitioner here has argued here that this Court entered a nunc pro tunc order to remove this so-called stigma from the record of this individual.

There is no occasion that I can recall reading that a nunc pro tunc order as such has been issued or -- by this Court in a habeas corpus procedure as such.

In the Pollard case, it was discussed but it went off on another theory and it was not introduced or was not granted.

In summing up, the respondent's position that on the question of mootness, there is nothing that can be gained at this time by the Court granting a writ because there is no restraint.

It is our position that some type of restraint must lie before a writ of habeas corpus can issue.

Chief Justice Earl Warren: May I ask, Mr. Pesek, in your -- in your State, when a man gets a seven-year sentence and -- and is given two years off for -- for good behavior, is that two years now over in the talk after he goes out --

Mr. Leon F. Pesek: No,sir.

Chief Justice Earl Warren: -- or he -- he's discharged --

Mr. Leon F. Pesek: He is discharged --

Chief Justice Earl Warren: -- he's finally discharged and this man has been discharged.

Mr. Leon F. Pesek: He has been discharged.

Chief Justice Earl Warren: Yes, yes.

Mr. Leon F. Pesek: The -- the -- there was a question raised this morning.

Mr. Justice Whittaker, I believe in regard to -- if he were retried again and say, for instance, he -- I believe the question was if it'd be -- writ was issued and granted.

He went back and it was determined that he was not lagally tried, then it would go back to the trial court.

What repercussion would that be?

They could retry -- it is my understanding of the law that they could retry him.

It would be up to the Court.

It'd be up to the judge to determine whether he would grant him good time or grant him the time that he has already served, but I think that would be within the discretion of the Court because he was the one that set the wheels in motion to get his trial, his case reversed.

So I would say that in our probability, that the trial judge would allow this time that he has served and be credited on the -- the amount of time that the -- the jury could give but it would be within his discretion.

Justice Charles E. Whittaker: (Inaudible)

Mr. Leon F. Pesek: That is my view.

Yes, sir.

I know at the time that I was a county attorney, we used to -- when someone was -- our grand juries met every six months.

Someone might have been arrested right or maybe four or five months before the grand jury would meet and have to stay because he could make a bond.

The trial judge after -- the jury return its sentence would, could and often did grant him the amount saying it was three months or four months, he could that because that was within his discretion.

Justice Charles E. Whittaker: I have no question about that, do you think that was (Inaudible)

Mr. Leon F. Pesek: No, sir, I don't.

I -- I think that in going into the -- the case, first of all, whether the petitioner here was denied due process, as -- I differ very strongly with petitioner in his -- in his briefs and in his application.

The record discloses and throughout that his contends that he was denied due process mainly for two reasons, one that he was denied counsel and he stated in his application for habeas corpus that he asked the Court for counsel which was promptly refused.

Then he states that he was denied a motion, his motion was denied for a continuance because of ill health or illness.

There is nothing in the record.

The transcript of the entire record from the first word to the last that he asked for either one of these.

So therefore, the question of whether he knew that -- what his rights were to ask for counsel.

Now, as Mr. Chief Justice stated that there -- never was properly brought before the Court that he was tried and convicted eight different times, but for the purpose of this argument here, the report shows that if it was true, the man was no novice in the court -- in the courtroom procedure.

He -- the eight -- the record discloses that the eight offenses that he was tried and convicted up were offenses of forgery and passing hot checks.

I ventured to say that he was more qualified in that respect as to any possible defenses that he might have and as to any type of contentions and plans of defense as many attorneys might have themselves.

Justice Charles E. Whittaker: (Inaudible)

Mr. Leon F. Pesek: Mr. -- Mr. Justice, I have found that to be that some of the students of the criminal law are in our penitentiaries.

They come in or referred to them as guardhouse lawyers.

And in several cases, I have come up against them and they spend their time well.

But -- and I would say that this man was one of them.

I think that this was a premeditated type of defense.

He had an idea.

He knew from past experiences what it would take to convict him.

He considered his age.

He considered the fact that he was ill.

And he -- he thought to himself that they -- they've got -- they've got me on the low but maybe I can attract the sympathy of the jury.

The fact that he went there didn't even question his brother-in-law.

And if there were any ill feelings among the family circle, he would have brought that point out.

He sat by and let all of the evidence come in.

He had a right as -- as the trial judge in his certificate stated that he was given -- afforded the opportunity to first of all talk with the potential jurors in the voir dire that he had a right to challenge the jury, that he was given that and informed of that right that he did not do any of these things.

Then the only thing that he did, when he got up there, was to put on a bunch of callings to say that he was ill and there's no denial, possibly he was.

And -- and he was hoping that because of his age and because of his ill health that the -- that the jury would be lenient on him, which might have been a good defense before another jury, but this jury just didn't buy it.

And now, he comes before this honorable Court and asked this honorable Court to -- to correct his mistaken judgement.

Justice John M. Harlan: Do you think this is a study, the record shows, a study of -- of incompetence?

Mr. Leon F. Pesek: Well, under whose part?

Justice John M. Harlan: Under defendant's part.

Certainly, any lawyer who is, in this record -- any lawyer who is representing him would not allow that stuff go in -- go in.

Mr. Leon F. Pesek: Well, that -- that is true.

Justice John M. Harlan: Therefore --

Mr. Leon F. Pesek: Possibly so.

Justice John M. Harlan: -- the hypothesis that he was an experienced fellow as a result of his prior life, I should think you would have to say that this is a studied piece of strategy.

Mr. Leon F. Pesek: I don't see, sir, that he --

Justice Charles E. Whittaker: (Voice Overlap) one serious mistake can cause his character witnesses you referred to because on cross-examination of one of them, he had to admit that he was the recipient of one of the defendants' objects as you took it.

Mr. Leon F. Pesek: That's true.

That's true.

But I would say this that in the -- in his -- in his defense, his whole idea was -- might not be palpable or impalpable to an attorney who is experienced in the law.

I'll -- I'll say that it wasn't that complete ignorance that the case that --say for instance, Betts versus Brady.

The rule that this Court has laid down there where there is complete ignorance, say, because of age, maybe too young, inexperienced, complicated nature of the trial, the complicated nature of defense, any possible defenses that he could use.

He was unable to comprehend any of that.

It does not come within this case.

Justice Charles E. Whittaker: Just as a matter of practicalities, do you really believe that any layman is confident to conduct a trial in a court of record?

Mr. Leon F. Pesek: No, sir, I don't.

But under the rule that this Court has laid down, I say that he was not -- he wasn't that ignorant that he had certain rights.

He didn't ask for, Your Honor, he did not ask for a counsel and yet there's one thing that he did have, I will say, sufficient intellect to do and that was to ask for an attorney or that he was sick, he could have said so, but he did not do.

Justice Hugo L. Black: Whose name -- whose name was signed to that charge?

What was the name signed to him?

Quattlebaum?

Mr. Leon F. Pesek: Quattlebaum, Quattlebaum by -- which was the -- his mother-in-law by his brother-in-law, Elzie --

Justice Hugo L. Black: Does the record show that that -- that person lived in the town?

Mr. Leon F. Pesek: I don't believe that the record shows, Mr. Justice Black, that he lives in town.

Justice Hugo L. Black: But his name was forged, believed to be forged.

Mr. Leon F. Pesek: I don't -- I believe it was in the town near there.

It -- it wasn't --

Justice Hugo L. Black: Did she testify?

Mr. Leon F. Pesek: She did not testify, but the brother-in-law who did.

Justice Hugo L. Black: Who -- who testified this was a forging?

Mr. Leon F. Pesek: The brother-in-law, his brother-in-law, who -- whose name also appeared on the check.

It was -- as I recall, the mother-in-law's name by his brother -- his mother-in-law's name on top by his brother-in-law and both -- it was alleged that it was a forgery.

And that the brother-in-law, Elzie is the one that testified in the case.

The mother -- his mother-in-law had first name on the -- appeared on that she did not testify.

Chief Justice Earl Warren: Well, Mr. Pesek, as -- on the question of whether the man was competent to -- to conduct his own defense, it is the policy of your State now, is it not?

Let -- no one is competent to conduct his own defense and that he is entitled to -- to have counsel appointed for him no matter what his -- his status is.

No matter how educated he is, no matter whether he is a lawyer or -- or a convict or whatever he is.

If he's charged with a felony, he's entitled -- he's entitled to have a counsel appointed for him, that's a policy of your State, is it not?

Mr. Leon F. Pesek: This is recently, yes.

Chief Justice Earl Warren: Yes.

Well --

Mr. Leon F. Pesek: But prior to that time under which this -- at the time that the trial was conducted, at the time that --

Chief Justice Earl Warren: Yes.

I understand.

Mr. Leon F. Pesek: -- he made his appeal.

Do you understand?

Chief Justice Earl Warren: Yes.

Mr. Leon F. Pesek: It was different.

Chief Justice Earl Warren: Suspended, he was entitled only to --

Mr. Leon F. Pesek: To counsel.

Chief Justice Earl Warren: On a suspended sentence.

Mr. Leon F. Pesek: On a suspended sentence.

Chief Justice Earl Warren: Yes.

Mr. Leon F. Pesek: And then the purpose of appointing counsel was to -- to assist him in making the application, but it was not the law of the State of Texas except in capital cases that he had --

Chief Justice Earl Warren: Yes.

Mr. Leon F. Pesek: -- to have.

Chief Justice Earl Warren: Yes.

But now it --

Mr. Leon F. Pesek: It is.

Chief Justice Earl Warren: -- it is.

Do you quarrel with that principle?

Mr. Leon F. Pesek: No, sir.

I don't.

I -- I don't.

I think it -- the fact that they -- it can be weighed makes me -- there are many cases that is not necessary, but I think that it's -- it's good.

Well, I have no -- no quarrel with our legislature in that regard, sir.

But as far as the denial of due process is concerned and in regard to the question that you just asked, Mr. Chief Justice, with the -- there's -- there's no -- I mean the -- the law asserted by this Court in regard to the fact that the -- the States may themselves prescribe their own procedures in accordance with its ideas in the most inefficient administration of criminal justice.

This along, as in doing so, a man is not deprived of due process.

Now, there was a case of Adamson versus California where the question came before this Court where the accused was -- the prosecution commented upon the failure of the accused to testify.

And this Court said that that would not in itself be a denial of due process.

And also, in Wolf versus Colorado, where evidence obtained by illegal search and seizure was admitted into evidence, this Court held that it would -- that'd be a denial of due process.

Then Gallegos versus Nebraska where a confession was admitted into evidence, where the defendant was not given an appearance or an arraignment.

In that case, the Court says that they all -- that the Due Process Clause does not prevent a State from allowing the prosecution to comment on the evidence or this evidence -- this other type of evidence coming in.

It says unlike the specific requirements and restriction placed by the Bill of Rights upon the administration of criminal justice by federal authority, the Fourteenth Amendment did not subject criminal justice in the States to specific limitations.

Chief Justice Earl Warren: Mr. Pesek, in this case, I -- counsel pointed out in fact that although you have a -- a statute which prohibits the use of a -- a confession unless it is taken in a certain way that you're -- you're sharing when this man was not represented by -- by counsel and in all probability, did not know that law took the stands and that the instance of a prosecution testified to a confession contrary to that statute.

Do you -- do you not think that goes to the fairness of the trial?

Mr. Leon F. Pesek: It -- Mr. Chief Justice, what went on at the trial, I -- I don't know.

But I do know this that first of all an objection must be made to the introduction of such a confession by the -- on the part of the defendant.

If you might conceive it to be that there was some -- he -- he might've wanted you to come in.

I mean there's a possibility I can't proceed in this particular case.

He did not object to it.

He -- he also have to show that a confession must be made after the man was arrested and was in confinement, that wasn't brought out.

Chief Justice Earl Warren: But this man was in jail at that time when the sheriff talked to him, was he not?

Mr. Leon F. Pesek: The -- the record does not clearly show that.

Chief Justice Earl Warren: Well --

Mr. Leon F. Pesek: If that would be --

Chief Justice Earl Warren: What is -- what is the fact?

Mr. Leon F. Pesek: Sir?

Chief Justice Earl Warren: What is the fact?

Mr. Leon F. Pesek: I do not know, sir, as to what really went on.

I suppose that it was given to him at the time at -- while he was arrested, but the record does not show that.

So that's the reason I'm -- I'm saying that.

I -- it could've been mentioned prior to that time.

I do know that even in his own application here that he had -- he had mentioned --he admits that he told the sheriff that he was guilty of writing some checks and I don't be there in regard to this particular case.

But he makes certain admissions.

He admits that he is -- in his petition that he is guilty of passing a forged instrument, but now, he says he's not guilty, but he is not guilty of forgery.

But the facts of this case is -- is, honestly, it -- are -- are two -- first of all, he was not as lay down by this Court.

Chief Justice Earl Warren: He was what?

Mr. Leon F. Pesek: He was not denied due process, as that term has been laid down by this Court in the rules formerly Betts versus Brady.

He did not urge that at his time of his trial that he was denied right of counsel.

He didn't ask for it.

This case -- the -- in McKenna versus the State, this Court had held that it's denial of due process to appoint an attorney where he's not -- where he's not wanted.

Here, the man did ask for one and he didn't get.

He didn't get counsel to defend him.

He did not urge as he contends in his petition that he was sick.

There's a statement in the -- in the trial here and in the statement of facts that by the judge who said that he was afforded every fair opportunity that the -- many of the things that he alleged here just didn't happen as the record clearly discloses.

It is not attacked -- the record that the person taking the record did not put everything in there.

Chief Justice Earl Warren: But the sheriff himself said he was sick, didn't he?

Mr. Leon F. Pesek: That's true.

But, Mr. Chief Justice, there's a difference in being -- in failing health and -- and being sick at the time of the trial.

A man can be feeling by at all of the time.

But I mean you could be much more or ill a whole lot more at one time, you see, at the time of trial that he just couldn't go, and the man is suffering from a heart -- heart disease and he gets around.

The facts in this case show that he did conduct some type of defense and that he had an idea in mind -- he didn't indicate or doesn't indicate that he was sick at the time of his trial.

Justice Tom C. Clark: (Inaudible) appeal where --

Mr. Leon F. Pesek: On his -- on his appeal to the Court of Criminal Appeals, sir?

Justice Tom C. Clark: Yes.

Mr. Leon F. Pesek: It was on -- on his motion for new trial, he urged that he was denied right to counsel.

Then on appeal, he urged that -- in addition -- I take it by -- then on appeal, he did not urge either one, but then on his first motion or petition for habeas corpus, he urged that he was denied right of counsel and that he was sick at the time of his trial.

It was --

Justice Tom C. Clark: (Inaudible) the basis for what?

Mr. Leon F. Pesek: He -- I -- I really don't know, sir.

The -- the record --

Justice Tom C. Clark: He did not urge to counsel?

Mr. Leon F. Pesek: He did not urge that he was denied counsel or that he asked for counsel.

He did not urge that he was deprived to continue because he was in ill health.

He did not urge those.

He did not have an attorney at the time that he appealed and the Court just affirmed the -- the trial.

Justice Tom C. Clark: (Inaudible)

Mr. Leon F. Pesek: The -- the Court of Appeals just denied his application for habeas corpus.

He did urge both at that time.

That was the first time --

Justice Tom C. Clark: Did they write on it?

Mr. Leon F. Pesek: They didn't write on it, sir.

It -- I believe it is right in this, not only on the case, there's nothing more than denying his -- his motion.

Justice Tom C. Clark: You didn't he's in writing before --

Mr. Leon F. Pesek: No, sir.

Justice Tom C. Clark: -- in the appeal?

Mr. Leon F. Pesek: No, sir.

And then he again raised both questions at the time that he filed his application for writ in the Federal District Court of Houston.

But it is our contention again that the question here is a moot question and that -- that waving our mootness that even so that he was not denied due process at his -- at his trial and we asked that this Court either dismiss the writ or affirm the decision of the appellate court of the Fifth Circuit.

Chief Justice Earl Warren: Mr. Wozencraft.

Argument of Frank M. Wozencraft

Mr. Frank M. Wozencraft: Mr. Chief Justice, may it please the Court.

Perhaps I can answer one of the questions which Mr. Justice Clark just asked by reading the document which was written by the Court of Criminal Appeals.

I can find it here.

There were four points that he -- that he brought up in that or -- in that order, sir, when he -- when he denied habeas corpus.

It says here that it was admitted in printing in the place where I was looking for it, but I think it's somewhere else as well.

One point was that he had not properly shown that the -- that he -- we needed counsel.

Another was that the evidence was sufficient at the time of the trial and that he did not raise the question of his illness correctly because he did not ask for a motion of continuance.

The contention that George Lee Parker is so experienced in his trials that he needed no lawyer.

The contention that his defense was premeditated.

The contention that appears at page 13 of respondent's brief that it was only in the quite confines of his jail cell that he first realized that he's plan of defense had failed.

Founder upon this record.

The contention of respondent that this man was not denied due process.

Founders upon his admission that this man was not competent to conduct his own trial and that indeed no layman in any matter this intricate can hope to conduct competently his own trial.

The critique procedures which respondent has suggested that Parker can go to a legislature for relief and can go to the Governor for relief and make it more imperative, not less that this Court reverse the decision of the Court of Appeals because how can this man hope for any hearing from the legislature or from the Governor in the face of the opinion of the Fifth Circuit in this case.

Justice Felix Frankfurter: Can I ask you this question.

Suppose a mootness question hasn't arisen, suppose your position of due process was sustained, what would be the judgment of this Court?

Mr. Frank M. Wozencraft: Under the normal circumstances, Mr. Justice Frankfurter, I believe that this Court should have reversed and -- and vacated the judgments below and remanded the case to the District Court for the entry of a writ of habeas corpus dismissing this man.

Justice Felix Frankfurter: Why dismissing?

You mean the State couldn't retrial there would be no mootness?

Mr. Frank M. Wozencraft: Well, dismissing the man from -- from the penitentiary, sir.

Justice Felix Frankfurter: Well --

Mr. Frank M. Wozencraft: If I want to --

Justice Felix Frankfurter: The State could not retrial?

Even defined in process?

Mr. Frank M. Wozencraft: If they want to rearrest him, they can.

Yes, sir.

Justice Felix Frankfurter: Not rearrest, retrial him on the old indictment.

That's what happened in all these cases.

Mr. Frank M. Wozencraft: Well, yes, sir.

But I have thought that that occurred by -- by taking him back into the Court in numerous county and letting him out of the penitentiary.

Justice Felix Frankfurter: He might be arrested but they would retrial him on the old indictment.

Mr. Frank M. Wozencraft: That's very possible, sir.

Witnesses were still available and they still wish to press the charge.

Justice Felix Frankfurter: Well, now, the same thing was happening here?

Mr. Frank M. Wozencraft: Well, under these circumstances, sir, of course, he already is out of custody.

Justice Felix Frankfurter: But your claim is that it isn't moot because of the stigma hangs over.

Now, why -- why should Texas be deprived of proving the free of constitutional infirmities and questions that a stigma should hang over him?

Mr. Frank M. Wozencraft: Your Honor, I'm not claiming that they shouldn't be entitled to do it if they want to, but if after he's already served one full sentence for one crime --

Justice Felix Frankfurter: But I'm not now talking about the sentence, I'm talking about the -- the claim on which you say we should disregard a habeas corpus could not act in a (Inaudible) on a body that isn't there, should act on a body that isn't there.

Would -- is there anything to stop Texas from proving if this person was rightly convicted on a certain (Inaudible)

Mr. Frank M. Wozencraft: No, sir.

No, sir.

Justice Felix Frankfurter: So, there could be a new trial in this situation.

Mr. Frank M. Wozencraft: Yes, sir.

Yes, sir.

Justice Felix Frankfurter: That would be the upside of (Voice Overlap) --

Mr. Frank M. Wozencraft: Yes, sir.

However, it was the result of that trial he was convicted and was sentenced.

I submit that if -- if double jeopardy prevents two trials for the same case that certainly due process should prevent having deserve two sentences for the same case.

Justice Felix Frankfurter: I'm not suggesting that account shouldn't given of what account should be given at the time he has served.

I'm talking about the basis of your argument that we should enter a nunc pro tunc order because of stigma hangs over it.

Mr. Frank M. Wozencraft: Well, Your Honor --

Justice Felix Frankfurter: If the State of Texas was deciding to prove that a stigma should hang over it.

Mr. Frank M. Wozencraft: I will not quarrel with that statement, Your Honor.

I believe that in this instance, they failed to do so.

And I believe that -- as Mr. Pesek has said, there is no judicial procedure in Texas for him to prove so.

And that is why I think it's very important for this Court to make that statement.

Now, I have suggested the method of a habeas corpus writ issued nunc pro tunc.

This is a suggested form of relief which I propose.

I certainly feel that petitioner and certainly I would be entirely satisfied with any other form of relief which this -- this Court considers more appropriate.

But I --

Justice Felix Frankfurter: (Voice Overlap) Mitchell case and that's wholly different from this one.

Mr. Frank M. Wozencraft: Well, it's --

Justice Felix Frankfurter: That was a case -- that was a civil action in the courts of Iowa.

Mr. Frank M. Wozencraft: Yes, sir.

Justice Felix Frankfurter: A plaintiff brought a damage suit --

Mr. Frank M. Wozencraft: Yes, sir.

Justice Felix Frankfurter: -- against the defendant before there was a judgment on their claim for damages.

The plaintiff died and instead of doing what on the Iowa law could be done when it's authorized to be done adding a survival proceeding, they went ahead and decided the merits.

The question then came up in this Court on whether that was a void judgment in Iowa, which is a case different from this to me as nights and days.

Mr. Frank M. Wozencraft: Well, Your Honor, to me, the same principles apply.

The question is whether they're -- the -- the Court has lost jurisdiction there by reason of the death of one of the parties.

In this instance, I believe, the question is whether the Court has lost jurisdiction by reason of the release of the prisoner.

Justice Felix Frankfurter: It could operate in that case by entering $5123 judgment that was involved there.

Mr. Frank M. Wozencraft: Nunc pro tunc.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Frank M. Wozencraft: Yes, sir.

Justice Felix Frankfurter: And it can't operate here because it can't release somebody who isn't under detention.

Mr. Frank M. Wozencraft: Well, I'm suggesting, Your Honor, that when it asks that the man be released, it can even be as of the date when he actually was released.

Any day that he was in custody, this Court has jurisdiction to do so.

And whether it chooses to do so or not is of course entirely the prerogative of this Court.

But I believe that the same principle applies.

Justice Felix Frankfurter: I'm suggesting that it -- century old, the clerical errors of the States or insubstantial things not touching the cause of action, not touching but it's the cause of action before the court and the remedy asked, and that's the Iowa case.

It would be really a question of jurisdiction.

Mr. Frank M. Wozencraft: Well, Your Honor, I wouldn't regard that as merely a clerical error.

It seems --

Justice Felix Frankfurter: (Voice Overlap) what I'm saying of -- of -- things of that nature --

Mr. Frank M. Wozencraft: That is true, sir.

Justice Felix Frankfurter: (Voice Overlap) think just as they said in Iowa, they simply would have to substitute the -- the survival, the next representative or whoever he was.

Mr. Frank M. Wozencraft: The doctrine of nunc pro tunc certainly has been used to collect -- is to correct clerical errors, but it also has been used to correct judgments -- not to correct judgments, to enter judgments which have not been entered.

And this Court has entered no judgment now -- in this case.

Now, in Harris versus Commissioner in 340 U.S., nunc pro tunc was used by this Court after the death of the Commissioner to avoid abatement.

In Quon Quon Poy versus Johnson which was mentioned earlier, nunc pro tunc was used to enter a judgment which had never been entered and which indeed reversed -- no, it didn't reverse, it -- it affirmed and remanded that man.

But there again, it was the entry of a judgment not the correction of -- of a clerical error.

Justice Felix Frankfurter: You made a thorough study knowing you as I do.

Is there a single case dealing with habeas corpus in which what you suggest was done in the federal system?

Mr. Frank M. Wozencraft: The -- the only habeas corpus case which I have found, sir, is Quon Quon Poy which was the other side of the coin.

But I do believe that -- that did constitute a case.

Harris does constitute a case where this Court has entered a judgment after the death of a party which otherwise would have subjected the decision to -- the case to abatement.

And I'm asking here, sir, that the same theory be applied.

Justice Potter Stewart: How strongly --

Justice Felix Frankfurter: I'm sure you have followed the trial.

Justice Potter Stewart: How strongly if -- at all do you think Pollard against the United States supports your position?

Mr. Frank M. Wozencraft: Your Honor, I believe Pollard versus the United States is in point in its declaration that there -- there is a possibility of continuing legal consequences and that these are sufficiently substantial to justify your dealing with the merits.

And I believe that the Pollard case although it happens to involved Article 2255, Your Honor's conquering opinion in the Heflin case concurred in by four other justices equates the matter of custody as far as 225 -- 2255 is concerned and as far as 2241 is concerned.

I would hope therefore that this man may also obtain a review on the merits which Pollard obtained.

Now, if there is some other method by which -- if -- if the Court doesn't happen to like nunc pro tunc or it doesn't think it's applicable, if they prefer to say that there is a continuing constructive custody because of the degree to which this man's civil liberties are restrained, that will leave us to say be entirely satisfactory to -- to petitioner because what we believe is that petitioner is entitled to a declaration that his conviction was unconstitutionally obtained.

Now, if --

Justice Felix Frankfurter: My difficulty is in -- to express my difficulty using the word “declaration”.

Mr. Frank M. Wozencraft: Well --

Justice Felix Frankfurter: What does indulgent -- shouldn't be indulgent declarations when it can't truthfully operate on the state of facts before it.

Mr. Frank M. Wozencraft: I would regard this as a decision, sir, which would have in it a declaration but would also be a decision and indeed an order issued as of a date when the man was in custody.

But I repeat that the -- that the main thing that we're after is a recognition here that his conviction was unconstitutionally obtained.

Now, if this Court does feel that the case is now moot, then I believe its course is clear under Duke Power Company versus Greenwood under U.S. versus Munsingwear, this Court should vacate the judgments of the two courts below not leaving them standing to spawn adverse legal consequences as Mr. Justice Douglas mentioned in the opinion of the Court in the Munsingwear case and remand the case to the District Court for dismissal as moot.

Thereby, at least wiping out the Federal stamp of approval which to this day rests upon this conviction.

Now, I believe -- I beg your pardon, sir.

Justice Charles E. Whittaker: (Inaudible) case as moot.

Mr. Frank M. Wozencraft: Of his application.

Justice Charles E. Whittaker: Making use of the judgment.

Mr. Frank M. Wozencraft: Vacation of -- of the judgment and dismissal of his application as moot, his application for habeas corpus.

Justice John M. Harlan: A federal case.

Mr. Frank M. Wozencraft: Yes, sir.

The federal case to the federal court.

Justice Felix Frankfurter: I suppose that follows the matter of course.

Mr. Frank M. Wozencraft: I believe that would, sir.

If -- if this Court does not feel that there are continuing consequences which warrant its decision.

I hope that the Court will feel that there are.

I believe that merely wiping out erroneous precedents, desirable though that may be is no substitute for creating a correct precedent which can guide the future courts and future decisions including the learned judges of the Fifth Circuit.

And certainly --

Justice Potter Stewart: So far -- so far as Texas is concerned, Texas courts are concerned, the situation's all straightened up now, isn't it?

Mr. Frank M. Wozencraft: As to --

Justice Potter Stewart: As the result of the Moore decision and more importantly as result of the actions of the legislature last June.

Mr. Frank M. Wozencraft: Mr. Justice Stewart, as far as the -- as -- these people who are still to come to trial, I think the legislature -- legislature's enactment does cure it.

In terms of those who are presently imprisoned, I would hope that the Court of Criminal Appeals would find the Moore situation applicable.

But the Moore case was reversed on appeal and not on a writ of habeas corpus.

We have not yet seen what the Texas Court of Criminal Appeals will do on a writ of habeas corpus.

Justice William J. Brennan: But I suppose we were -- respect the jurisdiction of the (Inaudible) and you would've prevailed that on (Inaudible) that circuit stands up to one Court Of Appeals.

Mr. Frank M. Wozencraft: Under -- under that circumstance, sir, I believe the appropriate order would be either to issue a writ to yourself or to remand the case to the District Court for a -- an order to be issued by it --

Justice William J. Brennan: Stating what?

Mr. Frank M. Wozencraft: Well, if you do it on that ground, it's little hard to say -- to say what and that's one of my reasons for suggesting the method of -- of a habeas corpus nunc pro tunc because we're talking here about respondent Ellis, the General Manager of the Texas Prison System and he, of course, is the State of Texas as is evidenced by the present here -- presence here of my learned opponent.

Justice William J. Brennan: (Inaudible)

Mr. Frank M. Wozencraft: Your Honor, I certainly think it would be appropriate to do so.

There maybe some other form of order which this Court would regard as more appropriate, but that is the -- that is the form which I've suggested in my brief.

The very availability of the legislative remedies and of pardon as is now sought are the factors which certainly as far as this individual petitioner is concerned do mean that a definite function will be served by having his unconstitutional conviction is -- his conviction held unconstitutional because then obviously his position in going to the Governor for a pardon or particularly to the legislature for compensation, and I assure you, that's not that he is interested in, would be vastly improved by a recognition that the decision was unconstitutional, whereas in the present state of the record, there is just the reverse determination by the federal courts.

Justice Charles E. Whittaker: (Inaudible)

Mr. Frank M. Wozencraft: Yes, sir.

I think that there can be no better last word on this topic than to recognize again that we have more before this bar, before this Court than George Lee Parker.

We have George Lee Parker and he's here and I believe his rights are effective.

But as we said by this Court recently in another case, the true proponent before this Court is the Constitution.

It has been violated in this case by the State of Texas.

It is an honor for me to defend it.

And I hope that this Court will decide in favor of it.

Thank you.

Chief Justice Earl Warren: Mr. Wozencraft, before you sit down, I would like to express the appreciation of the Court to you for the earnest manner in which you have represented the interest of this indigent defendant on our assignment.

It always gives the Court greater pride in our profession and also that it comforts so far as the administration of justice is concerned when members of the bar like yourself are willing to undertake these assignments without compensation and willing to give your time and effort to come here and represent him.

Thank you very much.

We appreciate it.

Mr. Frank M. Wozencraft: Thank you, sir.

Chief Justice Earl Warren: Mr. Pesek, may I also say to you, sir, that we appreciate the very earnest, the very able and -- and diligent manner in which you protect the rights of your -- of your State and also for your frankness in dealing with us.

Rebuttal of Leon F. Pesek

Mr. Leon F. Pesek: Thank you, sir.