COPPEDGE v. UNITED STATES

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Argument of Bennett Boskey

Chief Justice Earl Warren: Number 157, Mark Coppedge, Jr., Petitioner versus United States.

Mr. Boskey.

Mr. Bennett Boskey: Mr. Chief Justice, may it please the Court.

The group of contempt cases which the Court has been hearing during the past few days has dealt with a rather broad range of subjects on the Federal Criminal Law and its relationship to the constitution of the United States.

The case to which we now task Coppedge against the United States deals with many other aspect of the relationship between the Federal Criminal Law and the constitution.

And the range of the subject is broad and the subjects are important.

The subjects include the very difficult and perplexing problem of the administration of justice in in forma pauperis cases in the federal court and the assurance that equal justice on the law shall be rendered to the poor as well as to the rich.

It includes problems as to the responsibilities of the grand jury of the Court of the prosecutor.

It includes questions of evidence and charges to the jury.

It includes questions of prejudicial summation as the petitioner view with the case.

Now, as the governor -- Government views the case according to its brief in this Court, all of the petitioner's contentions are frivolous.

The Government says this in 53 pages of its preventive brief.

For this reason, I should like just to pause a moment on the procedure which is taken place in the efforts of this petitioner to obtain an appellant review on the merits.

And then I shall test to the subsequent questions involved in the case.

The case involved in attempt by this petitioner to obtain a direct appellant review from a criminal conviction in the Court of -- in the District of -- Columbia District Court.

Petitioner was convicted of charges of attempting to utter -- uttering and transporting an interstate commerce, three separate forged money orders which had been stolen shortly before they were used in the manner charged in this case.

This in fact was not his first trial but his second.

His conviction at the first trial having been reversed by the Court of Appeals of the District of Columbia Circuit because prejudicial newspaper articles had appeared during the course of the trial and because the Court of Appeals felt that Judge Holtzoff, who had acted as the trial Judge in the first trial of the case, had not taken sufficient steps to assure that the prejudice would not affect deliberations of the jury.

When the case was remanded, it was tried again.

And at the second trial, petitioner was represented by court appointed counsel.

After the jury's verdict was brought in and a verdict to guilty on count three through 10, the petitioner having been acquitted by the jury on the so-called housebreaking and blartney charge.

After the verdict was brought in, petitioner was sentenced by Judge Holtzoff and then he sought in the usual course to take an appeal in forma pauperis stating an indigent.

Judge Holtzoff denied his application to appeal in forma pauperis and in addition certified that the appeal was frivolous and not taken in good faith.

This, as I am sure, the Court knows from other cases which have come to you from the District of Columbia Circuit, is something which happens over and over again in the District Court in the District of Columbia and as happens almost in all of these cases.

The petitioner here --

Justice William J. Brennan: Mr. Boskey.

Mr. Bennett Boskey: Yes, Mr. Justice Brennan.

Justice William J. Brennan: Did the court appointed counsel at that play by any part?

Mr. Bennett Boskey: Mr. Justice Brennan has now -- the court appointed counsel with relieved of his appointment by the Court and from the date on which he was relieved, it might not the 100% certain whether he did or did not play any part in the attempt to get an appeal allowed by Judge Holtzoff.

There is nothing in the record which would suggest that he provided any subsequent help to the petitioner in the --

Justice Felix Frankfurter: I wonder about the application of Judge Holtzoff believe to appeal.

Mr. Bennett Boskey: That looks as though would entirely approach the operation although one cannot be quite that sure.

In any of them, counsel did obtain from Judge Holtzoff an order relieving on of his first (Inaudible) from the case.

And I -- this certainly is not in criticism of counsel because this is the custom or has been until about a month ago in the District of Columbia.

There is some implication that with the legal aid agency which Congress created beginning to get the work in this area that more encouraged than to give them to lawyers who are appointed from the District Court to provide some help in connection with the initial application in the District Court.

In any of that --

Justice Felix Frankfurter: Mr. Bennett -- Mr. Boskey do you have your reference to the many cases that have come up at this sort?

Have you gotten it begins even if not accurate one to make sure the magnitude of cases go up that are sought to be brought from a conviction of the Court of Appeals on informal proceeding?

Mr. Bennett Boskey: What -- do you mean in the District of Columbia or --

Justice Felix Frankfurter: I mean, exclusively in the District.

Is that the special problem with that and --

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: Just roughly, what range of value this argument?

Mr. Bennett Boskey: Without distinguishing between direct appeals and collateral effect --

Justice Felix Frankfurter: No, I mean -- I mean distinguishing in which the District Court refuses to give us certificate you're indicate convicted.

They are substantial, aren't they Mr. Boskey?

Mr. Bennett Boskey: Yes.

The number is substantial.

And as a matter of fact, I -- I think, I have the number for the fiscal year 1960 and --

Justice Felix Frankfurter: Please do me (Inaudible).

So what year did you say?

Mr. Bennett Boskey: That's fiscal year 1960.

Justice Felix Frankfurter: 1960?

Mr. Bennett Boskey: About 180 petitions believed to appeal in forma pauperis were filed in the Court of Appeals and fiscal 1960 as of --

Justice Felix Frankfurter: That means after (Voice Overlap) --

Mr. Bennett Boskey: After it has been denied in the District Court.

Yes.

Chief Justice Earl Warren: You say and all of those were denied?

Mr. Bennett Boskey: Yes, Mr. Chief Justice.

Justice Charles E. Whittaker: All were denied but the Court of Appeals?

Mr. Bennett Boskey: No, by the District Court.

And then they come up after the denial by the District Court.

They come up to the Court of Appeals on a new application, as the Court of Appeals allowed, on a new application to the Court of Appeals believed to appeal in forma pauperis to be granted.

Now, the procedure in the Court of Appeals is that when we it receives such an application if the case is a direct appeal, as this one was.

When it received such an application it then, in all cases appoint counsel if the petitioner is unrepresented unless he affirmatively indicated if does not wish to be represented by counsel.

And the task of counsel is then to write initially -- to write a memorandum in support of the petition believed to appeal in forma pauperis in the Court of Appeals.

And that was the procedure which was followed in this case.

Justice Charles E. Whittaker: (Inaudible) was granted in the Court of Appeals?

Mr. Bennett Boskey: Yes, Mr. Justice Whitaker.

And in the fiscal year 1960, there were 24 granted by the Court of Appeals out of the one --

Justice Felix Frankfurter: Out of those 180?

Mr. Bennett Boskey: Out of the 180.

Justice Felix Frankfurter: And have you -- are there figures as to the number that have been -- that are applied before -- certificate applied for in the District Court denied by the District Judge -- Court Judges and drop of further move made to go up to the Court of Appeals.

Mr. Bennett Boskey: Those figures I don't have because such statistics as I have -- I obtained from the Court of Appeals --

Justice Felix Frankfurter: Are they substantial you think?

Mr. Bennett Boskey: I just would have know whether it knowing.

Justice John M. Harlan: Where is this one thing that these figures, Mr. Boskey --

Mr. Bennett Boskey: Mr. Justice Harlan, I -- you embarrass me because I'm going to have to cite an article which I wrote at --

Justice John M. Harlan: Alaska --

Mr. Bennett Boskey: -- in the University of Minnesota law review for April 1961.

But the question is where did I obtain for the article?

Justice John M. Harlan: I don't know.

I'd still don't want.

Mr. Bennett Boskey: And I obtained them from the article -- for the article by consulting records in the Court of Appeals Clerk's Office where the clerk's office keeps on cards a record of what type of case it is and what happened to the killer.

Justice Felix Frankfurter: Are there no annual statistical report for the Court of Appeal for the District --

Mr. Bennett Boskey: The --

Justice Felix Frankfurter: I mean the general judicial business.

Is that --

Mr. Bennett Boskey: The general statistics of the Courts, I think, would not furnish the kind of figures we're now are discussing.

Justice John M. Harlan: Well, the secondary sources are good enough for me, but what is it?

April 1961?

Mr. Bennett Boskey: Yes, Mr. Justice Harlan.

Although it just appeared.

Mr. Justice Douglas converted forward to them.

Chief Justice Earl Warren: Mr. Boskey, may I -- may I ask you if the --

Justice William O. Douglas: (Inaudible) in this case?

Mr. Bennett Boskey: I would think not now and hope not, Mr. Justice Douglas.

Chief Justice Earl Warren: Mr. Boskey, may I ask you if -- if you have any figures on as to how many motions for dismissal on the grounds of frivolity were made in the District Court here in regular case not informed of paupers -- paupers cases in -- but in the same year.

Mr. Bennett Boskey: Mr. Chief Justice, I have dealt with that question on page 33 of my brief and here is what I find.

It is not easy to make an exhaust search of miscellaneous unpublished order.

But within the limits of reason, I've made the search in the Court of Appeals extending back over the last six to seven years.

During that period, I could not find and I can only say the Government has not produced a single case in which the Court of Appeals dismissed a paid appeal as frivolous until a case decided in May 1961, which is while this case was pending here on petition for certiorari, which is cited in the footnote on page 33 of my brief.

And in that one single case which I had found, the dismissal took place only after there was full briefing and full oral argument on the merits of the case so that whether the disposition -- the ultimate disposition be called a dismissal or affirmant, the fact is, that in that one case, the paid appellant had full briefing, sold oral argument before the Court.

And now --

Chief Justice Earl Warren: What was doing that to you?

Mr. Bennett Boskey: During the sign period -- this was denied from Mr. Coppedge, my client and not only was it denied to him.

During the fiscal year 1960, there are 30 of the case were indigent criminal appellants on direct appeals which not exactly the same thing or more that this petitioner was guide in the Court of Appeals in the District of Columbia.

Justice Felix Frankfurter: (Inaudible) vague Mr. Boskey are you well-known but I take that you were not so comfortable that the fact that Courts of Appeal or for the matter of my point of view as this Court isn't it more robust in dismissing appeals as frivolous in vague counsel cases?

You are just going to make that statement from a mathematical embarrassment to sit down and denying.

I'll show you a proof of equal denial of these executives alone.

Mr. Bennett Boskey: I would make just that statement that the figures that I have cited, I think, are in refreshers as figures alone.

I must say that as a member of the bar, I have read the opinions of the Court of Appeals in criminal cases now for ten years, I think, without exception.

I think its perfectly clear that the questions which the Court of Appeals passes on or writes opinions about in paid appeals by far or less weighty than many of the questions involved in this in forma pauperi cases in which their denial leads to appeal.

And I do say that a good city even a good system cannot be a system which works one way of the rich and one way of the poor.

And I say it further that this system as it is now working is not a good system.And I come to why I think it is --

Justice Felix Frankfurter: I couldn't agree with you more that's why put in the word that's why I passed right the Court is not being adequate be robust in dismissing frivolous appeal even though (Inaudible) appear before a court.

Mr. Bennett Boskey: Now, on the question whether it's a good --

Justice John M. Harlan: Well the fact the matter is, Mr. Boskey, as I think you point out in your brief that in the -- in the ordinary procedure in -- in appeals in which the case has been made, the Court has no occasion.

The Court of Appeals has no occasion to consider whether it not that appeal is frivolous until it is set for argument.

It's a very rare case, is it not in which the appellee would move -- move to dismiss on the basis of the appeal was frivolous --

Mr. Bennett Boskey: Well apparently, it is something that has almost never happened in the Government and its brief says, “Well, it could happen.”

And the -- the fact that --

Justice John M. Harlan: Rarely, it has the exhaustive property in the -- in the ordinary course of events.

The Court doesn't have any occasion to consider whether or not the appeal is frivolous until it is set and until the arguments heard.

And in that case, what the Court often does instead of dismissing it who agree to affirm it but with the briefest kind of a per curiam opinion.

Mr. Bennett Boskey: I think that is correct.

Justice John M. Harlan: That's a general manner of doing business in Court of Appeals.

Justice Felix Frankfurter: Maybe I ought to have Mr. Boskey, the pre consul for appellee should be more of robust.

Mr. Bennett Boskey: Perhaps, Mr. Justice Frankfurter, they should, although I have to say that I think a great view of --

Justice Felix Frankfurter: Then what are the great deal?

Mr. Bennett Boskey: I think a great deal of the trouble in effect, the presences from the procedure arises from the fact that the Government as well as the Court of Appeals in the way in which these cases are half of -- on the Court of Appeals, the Government as well as the Court of Appeals is paying no attention to what this Court has said in the Ellis case is using the word “frivolous” as the semantic device to describe traditions with the Government had to disagree with and this -- in the long run causing much more a time to be spent on these cases.

Justice Felix Frankfurter: I do not have any idea Mr. Boskey is really a way to hit the note just likes me that this cumbersome procedure there as much me in giving the one of these forma pauperis patience of much more time and retention in the way of judicial manpower and everything else then is given to the appellate review.

Mr. Bennett Boskey: I think that's perfectly clear then -- it's not just from the burden on the bar.

I assure you it is that it's a problem at the bar and the judges who share together.

And the burden has become almost intolerable.

And the system is not worth it.

Justice Felix Frankfurter: In due process, we let your -- be found at your argument that -- Mr. Justice -- just Mr. Justice Brennan points out the difference in responsibility between not being able at justice -- would do it for just not being able to determine issues of revolving and that's the matter count before the Court and having the positive responsibility of paying out government money and time in hearing for this appeal.

Mr. Bennett Boskey: Well, in this --

Justice Felix Frankfurter: Is this really a problem?

Mr. Bennett Boskey: In this case, Mr. Justice Frankfurter, as in the Lurk case, which came before you last term, most of the money was paid out the transfer it was paid for -- the transcript frequently has paid for.

The only thing that --

Justice Felix Frankfurter: Well, isn't that the very point, Mr. Boskey in terms of paying out government money and time, much more squander done under this procedure than this is required and in the case of appellate review?

Mr. Bennett Boskey: I think that has become evident from the experience of those who have to tried live with this --

Justice Felix Frankfurter: But we also talking about bloated dockets.

There's no better way of bloating the docket then have the frivolous subpoenas.

Mr. Bennett Boskey: Well, I'm quite prepared now to talk about where the Mr. Mark Coppedge floated the docket in the Court of Appeals.

Justice Felix Frankfurter: Alright, that -- that's what I said.

Mr. Bennett Boskey: That's really what I -- the in forma pauperis problem is one that is with all of these.

There isn't any simple solution to it.

By hindsight, I think perhaps if this Court in some of the eight or nine cases where it has per curiam reverse the Court of Appeals in these cases and authenticates fact.

If this Court in one or two more after Ellis had written some sort of opinion which would explain and over again to the Court of Appeals.

What this Court meant when it wrote the Ellis opinion, possibly that would have done from good.

Justice William J. Brennan: Did the Ellis opinion ambiguous?

Mr. Bennett Boskey: To me, Mr. Justice Brennan, it's clear its can be.

Justice William J. Brennan: Well, what are you saying is that what the ordinance do is just the people words that we used in Ellis and say we need them.

Mr. Bennett Boskey: I think it might -- would be mighty helpful and perhaps in this the Government would give a hand.

Now, as I say, in this case, the Government in 53 printed pages says all my arguments are frivolous.

If they're right, I'm wasting my own time as I wasted time with the two courts.

And it would be an active mercy for the Court to tell me so.

Petitioner doesn't think the Government is right.

Petitioner thinks that the only frivolous aspect to this case, if the Government's contention, this case is frivolous.

And if I may, I want to go in to the merits.

There is -- there's a problem about the -- the merits and namely, suppose I am right, what should this Court do about it, I dealt with this in the brief, should the Court pass on the merits or should the Court vacate the judgment and send the case back to the Court of Appeals to pass on the merit initial.

And in my brief, I have given examples of cases where this Court has have a little bit each way.

I think, in this case, there are fairly compelling consideration to this Court to pass on the merits and let me imagine what they are.

First, this petitioner was convicted of this crime in March 1960 which is getting on to be almost two years ago.

Chief Justice Earl Warren: Is he in -- is he in jail now?

Mr. Bennett Boskey: This petitioner is Lorton Reformatory, serving his sentence, he didn't begin to serve the sentence until about five weeks ago because he was there on a prior sentence.

But he is now serving his sentence.

The indigent, his prospects for being released on bail, I think, are zero.

Justice Felix Frankfurter: What is the Lorton reform of it?

Mr. Bennett Boskey: What is Lorton reform --

Justice Felix Frankfurter: What is it?

What -- what's the nature of the penal institution?

Mr. Bennett Boskey: It's a -- it's a --

Justice Felix Frankfurter: How old is this petition is valid?

Mr. Bennett Boskey: It's for adult.

It's -- it's not a juvenile or youth.

Justice John M. Harlan: At minimum security?

Mr. Bennett Boskey: It's a minimum security.

I think it's something like Denver is.

Maybe even a grade below down.

Justice Felix Frankfurter: But reformatory is a misleading firm?

Mr. Bennett Boskey: It's a present.

Justice Felix Frankfurter: It isn't -- it isn't open and all around.

Mr. Bennett Boskey: No, it's a penitentiary.

It's a -- you're in cell blocks

Justice Felix Frankfurter: Maybe -- maybe I should go and visit the penal institution in this neighborhood.

Mr. Bennett Boskey: Now, as I say, the petitioner is now serving his sentence.

The long delay in his getting an appellate review of this case is no fault his.

And as I shall hope to show in a moment, the questions that are arise in this case arrives largely in connection to the meaning and application of this Court's decision in three or four cases.

And therefore, the clarification of the meaning and application of those decisions could more properly come from this Court, I think, that it could from the Court of Appeals.

In any event by arguing the merits in my brief, as I have, I have put the case before you so that the Court will have no difficulty coming to its own conclusion on whether the contentions are frivolous.

There are several groups of contentions.

The first has to do with a problem as to the validity of the indictment.

This problem is one which the briefs deal with at length.

But despite that, I want to say a say a few words about it on oral argument.

What happened was that after the case was sent back was remanded by the Court of Appeals after the first conviction was reversed.

The new account, new counsel's who was been appointed to represent petitioner at the second trial, made a motion in the District Court attacking the validity of the indictment.

And attached to that motion, there was bundle of papers.

One, a signed statement by a man named Tompkins, who had testified before the jury, two, a letter from Tompkins, and three and four, two documents which had been prepared for Tompkins signature but had not been signed.

All four, together with the motion, were placed before the jury -- that -- were placed before the District Court.

And the motion came up for argument before Judge McGuire.

Now, the transcript of the argument appears, it is reproduced and it's entirely in the record in the case.

It isn't very long.

Its pages 65 to 72 of printed record here.

The petitioner's contention is that two questions were raised by these papers presented on the motion.

First, the claim that Tompkins had given substantial evidence before the grand jury that this substantial evidence was what resulted in -- in the indictment filed the petitioner by the grand injury and that Tompkins now repudiated his testimony before the grand jury said that he was a liar in the perjury and had given the testimony before the grand jury in order to receive third consideration for himself, which he was promised so that the first question raised by the motion and preserved here on the briefs is whether when there is substantial perjured testimony, which has resulted in the indictment of the defendant and where the issue is properly raised before trial, not after, but before trial.

Justice Felix Frankfurter: Made at the second trial?

Mr. Bennett Boskey: At the second trial.

But before the trial took place.

Justice Felix Frankfurter: Okay.

I understand.

Mr. Bennett Boskey: And was entertained by the judge.

So, there's no question about funds.

Justice Felix Frankfurter: You mean, was it paid?

Mr. Bennett Boskey: It was here in fact and the motion was entertained.

Justice Felix Frankfurter: And -- and --

Mr. Bennett Boskey: And passed on.

Justice Felix Frankfurter: -- and passed on the merit.

Mr. Bennett Boskey: Yes.

In such a case, whether the mere -- the mere fact that there may have been other competent evidence before the grand jury automatically tell the gist in the indictment.

Chief Justice Earl Warren: Was there a claim that the Government's part is a prejudiced?

Mr. Bennett Boskey: I'll come to that at second issue here.

It is our position that the papers sufficiently raised exactly that claim.

That the papers sufficiently articulated a claim that this testimony had been induced by an FBI agent named Woods and by the prosecutor Mr. Flanery and that it was induced with considerations promised to Tompkins.

And Tompkins was made available to the Court to be heard as a witness if the Court so a fit the column on this motion which the Court did not.

Justice Felix Frankfurter: Can you tell us what Tompkins stated the position of relation was at the time of the recanting affidavit?

Mr. Bennett Boskey: He was at that time in jail.

Justice John M. Harlan: He was once a codefendant?

Mr. Bennett Boskey: He was a codefendant that he -- and he would -- he also had been convicted on another charged.

And I believe -- I'm not sure at that date which sentence he would serve.

Justice Felix Frankfurter: And at the time of the testimony before the grand jury, he was awaiting disposition of the charge against him?

Mr. Bennett Boskey: Well, at that time, the charge -- yes, he was awaiting disposition of the charge.

But the charge had informally been made in the indictment.

He was named in the same indictment.

And a -- a plea was accepted of guilty to one count.

Justice Felix Frankfurter: He was a codefendant.

He testified before the grand jury before he was indict.

He was a called suspect at the stage.

I think he was a suspect.

Mr. Bennett Boskey: Oh yes.

Justice Felix Frankfurter: He was test -- he testified against the alleged partner in crime before the grand jury.

Mr. Bennett Boskey: And he implicated petitioner.

Justice Felix Frankfurter: Pardon me.

Mr. Bennett Boskey: He implicated petitioner.

Justice Felix Frankfurter: He implicated petitioner.

Subsequently, he was indicted and convicted and he's in jail announced what he said before the grand jury was a fact of lie.

Uttered because of expected favor.

Mr. Bennett Boskey: Precisely.

Now, the Government says in his brief in this court that the question you just asked me about Mr. Justice Harlan namely whether the Government was implicated in this.

The Government says this was never seriously urged below.

We say that a fair reading of the transcript where Judge McGuire makes it perfectly plain with Judge McGuire understood the papers to raise that question -- that precise question.

And that coming now two years and two Courts later, the contention of the Government that this was never seriously raised.

It doesn't square with the record.

Justice Felix Frankfurter: Did -- did Judge McGuire -- I'm sorry I'm a little confused.

Did Judge McGuire passed and reject this motion?

Mr. Bennett Boskey: Judge McGuire rejected the motion in an opinion which relied largely on the -- this Court opinion in the Costello case and said, as I was just about to tell you --

Justice Felix Frankfurter: Do I understand rightly that Judge Holtzoff presided in both?

Mr. Bennett Boskey: Judge Holtzoff presided in both trials and one of the issues here is whether he should have disqualified himself for prejudice.

Justice Felix Frankfurter: Why didn't just as a matter interesting in the administration of justice into this case, why -- why shouldn't a motion on the indictment attacking the affirmative the indictment have gone to Judge Holtzoff?

Mr. Bennett Boskey: I cannot answer --

Justice Felix Frankfurter: Are you getting the cause?

Mr. Bennett Boskey: I cannot answer that question.

It may possibly be that the case has been firmly assigned to Judge Holtzoff to try at the time the motion came out.

Justice Felix Frankfurter: You can tell me I'm sure whether the practice in this District that matters depending for a single case are already third subject to injure witness, accepted the -- accepted the -- the same judge.

Is that the fact?

Mr. Bennett Boskey: I have been told that after an assignment is firmly made where judge to try a case that is so prior to that time, it is not.

We say the record clearly shows that the point was fully understood by Judge McGuire.

When petitioner's counsel started to elaborate the grounds of that hearing the court said -- Judge McGuire said here, “When Woods promised to a witness to go before the grand jury, he wouldn't be prosecuted if he testified against Coppedge is that it.

And the petitioner's counsel said, “Yes, that is correct, Your Honor.”

And then the Court said, as I understand the gist of the affidavit, “It is to the effect that the witness who appeared before the grand jury was promised if he went before the grand jury and testified falsely against the defendant in this case, he would himself not be prosecuted.

Is that it?”

And counsel said, “Well, if not prosecuted, he would be given certain consideration?”

“Yes.”

There is no any doubt that Judge McGuire understood this issue was raised by the Government being implicated.

And we say it was raised enough to create an issue of fact which should not have been tried and heard.

Now, what is the obstacle to it?

In the Court of Appeals, the Government didn't really deal to this point very much, but it said that the Costello case just created the complete bar to any inquiry into what evidence the grand jury did or didn't interfere.

I would say to that as I have been in the reply brief, the Costello case, which very carefully traced the history of the grand jury as an institution.

The Costello decision carefully stated that the question before the Court was whether hearsay could be used before the grand jury.

And the -- the Court unanimously, and I think quite obviously, came to the conclusion that the rules of evidence were not to be technically applied in grand jury proceeding and that whether evidence was or was not hearsay was not a proper subject for inquiry by the Court.

The Court did not in that case or in the later Lawn case or on the prior Fault case where Mr. Justice Holmes wrote the opinion.

The Court never dealt with -- has never dealt so far as I've been able to ascertain with the perjury question.

What do you do if you have substantial perjury that was used before the grand jury to obtain the indictment?

Now we say first, if the Government is implicated in the perjury, it's a perfectly clear case.

You cannot have a system of justice where an overzealous or a dishonest or an evil minded prosecutor could deliberately take perjured evidence before the grand jury and detain an indictment and then have a rule of law that said this shall never been inquired into by any court.

We say that that was the contrary to the whole spirit of this Court's decisions on the knowing use or knowing allowance of perjured prosec -- testimony by a prosecution.

And apart from the constitution --

Justice Potter Stewart: This was a -- this was an offense of the character that could be prosecuted only by indictment rather than information.

Mr. Bennett Boskey: It was, Mr. Justice Stewart.

It was prosecuted by indictment.

Justice Charles E. Whittaker: Mr. Boskey, would not this matter be more constantly handle simply by the dismissing of the case on its appearance on the testimony brought back rather than to permit disruption of an indictment simply because the witness before the grand jury recaps?

Mr. Bennett Boskey: Well, Mr. Chief Justice Whitaker, I was dealing with the other case first where the prosecutor clearly and crucially had deliberately brought perjured testimony before a grand jury in order to secure an indictment.

Now, we say if that kind petition appears that is an abused of the Courts.

It's an abused of the grand jury system and to allow that indictment to stand deprive a defendant of the protection of this Court has said in the grand jury system it supposed to provide.

It's to protect him against that kind of oppression by the prosecutor.

Not to have the grand jury act as a rubber stamp for the prosecution or become unwillingly an accomplice of the prosecuted who does such a thing.

Now, that's the first case whether is knowing complicity by the prosecution.

And we say, we should have had a hearing on that point here.

And the failure to give us the hearing was erroneous.

Now, I come to the second case which I think --

Justice Felix Frankfurter: Well, you wouldn't say that you always have to have a oral hearing.

And this was a --

Mr. Bennett Boskey: I think, you have to have a satisfactory inquiry, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well, I said (Inaudible).

Mr. Bennett Boskey: And was not had here.

And that the witness Tompkins was available to the Court.

He could have been called.

The prosecutor was available.

The FBI agent Mr. -- Mr. Woods was available all within the confine of that building.

They could have had all the hearing they wanted on this issue on --

Justice Felix Frankfurter: Did it going to be on the need of your case?

I think you do not have to say that affidavits are ruled out here after Un-American proceedings of this kind.

Mr. Bennett Boskey: I never said that.

A hearing --

Justice Felix Frankfurter: But you just said that you have the witness is available and that you could have put him on the stand.

Mr. Bennett Boskey: I -- I would say that hearings maybe of many types.

There are many types of hearings where affidavits are useful, helpful, admissible, competent.

They weren't used here.

The Government filed no written affi --

Justice Felix Frankfurter: Well, they weren't used here because of judge went on some legal consideration --

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: -- to which that he examined the grand jury minutes.

He excised all the issue and --

Mr. Bennett Boskey: And there was not enough left anyway.

Justice Felix Frankfurter: And there was not enough evidence left any anyway.

The conception of the grand jury as a charging body and the relation of the grand jury Justice Whittaker pointed out that one of those in the trial court.

I'm not saying his wrong.

I think his right.

And I think I agree with it.

All I'm saying that your suggestion if there were oral witnesses available is not sufficiently circumscribing from my point of view.

Mr. Bennett Boskey: Well, I was suggesting that as one easy convenient way for the judge to have gotten the truth without taking two years to find out what it was but to take an hour.

That was the easiest thing he could have done.

And I'm saying he should have done it.

And his failure to do it means that this petitioner has been deprived of the kind of hearing his entitled to whether by hearing the witnesses personally by affidavits or by anything else.

The Government filed knowing after to this motion.

It filed no written answer.

It didn't controvert any with this.

It just said it doesn't make any difference under the Costello decision and that is not what the Costello decision has ever been said to me in before.

Now, I have one other point.

I'm reminded out by Mr. Justice Frankfurter's summary of Judge McGuire's decision mainly that Judge McGuire said, "Well, I've looked at the grand jury minutes.

And there's enough further evidence here."

The petitioner's trial counsel tried his best to get hold of the grand jury minutes because he wasn't satisfied with Judge McGuire.

He's the only one who has looked at them.

And see what there was to that.

And he was denied access to the minutes.

And when I try to appeal in the Court of Appeals and was rethought, I said in the Court of Appeals that it was hard to have denied access to the grand jury minutes -- petitioner's counsel but in any event, even if you are going to do that.

At the very minimum, the Court of Appeals has an obligation to look in camera at the grand jury minutes to see whether Judge McGuire was right but whether the perjured evidence was the entire evidence in implicating petitioner.

So far as I know and so far as any available record show, the Court Of Appeals has never look at the grand jury minutes, never passed on this point.

The point remains open in the case here.

Justice Felix Frankfurter: Did you -- did you argue this case although it was before the Court?

Mr. Bennett Boskey: I was not given any such opportunity.

Justice Felix Frankfurter: No it was on you brief.

Mr. Bennett Boskey: This case -- and in these case --

Justice Felix Frankfurter: It was the justices in your brief.

Mr. Bennett Boskey: I certainly did.

I suggest that it was such bigger as I possess.

And the Government's answer to it in the Court of Appeals where they should also said there weren't enough subs -- the case was not substantial to -- to warrant an in forma pauperis appeal.

The Government answer was that on the Costello, no such examination of the grand jury transcript by the Court was required.

Justice Felix Frankfurter: May I ask you this -- the -- what you said a minute ago namely that trial counsel that he like to see the grand jury minute --

Mr. Bennett Boskey: He made a motion.

He didn't just say he would like to see.

Justice Felix Frankfurter: -- but I'm -- I'm talking about really, he made a motion.

Was this before Judge McGuire handed down his memorandum or after it?

Mr. Bennett Boskey: It was after.

What happen was that the very end of the trial colloquy and before Judge McGuire, the Government said, well, they make the grand jury transcript available.

Then apparently what happened was that the petitioner's counsel tried to get the same transcripts from the prosecutor that the prosecutor was giving to the judge.

And he was totally unsuccessful.

He then made a motion saying in the motion that he had tried to get transcript.

He couldn't.

He felt he had a right to see it to be able to argue whatever the transcript showed on this whole.

Justice Felix Frankfurter: You just said something that interests me very much namely, ex-party practice in the but of prosecutor.

How does the grand jury minute get to Judge McGuire?

Or this -- just tell me that.

Mr. Bennett Boskey: I've given you the sum total of my knowledge, Your Honor Mr. Justice Frankfurter, on page 72 of the record, at the very end of the colloquy before Judge McGuire.

It says as follows, “The court -- The Court, well, I think I should have it if it's written off”, Mr. Flaner, prosecutor.

Part of this is written off.

I will check my file on that and if all isn't written off, I will get it written up and submit it to Your Honor.

And Your Honor can clearly see what occurred before the grand jury.

The Court, I will take it under advisement.

That's all I know about it.

Justice Felix Frankfurter: Is the counsel was counsel of the corpus Government has declaimed?

Mr. Bennett Boskey: Yes.

And I assume in some way they are after.

The -- the document was passed to the Judge by the prosecutor.

Justice Felix Frankfurter: If you'd been there, I'm sure you would not sit down like with those means to.

Mr. Bennett Boskey: Your Honor, I've been with this case only since April of 1960.

Justice Felix Frankfurter: I quite understand.

Mr. Bennett Boskey: One always has second thoughts about what might have been done and it's nearly a siege.

But the point really to be made is that this lawyer, who represented Coppedge in the District Court, was quite vigorous on -- on all these point I have been talking about.

Conceivably (Voice Overlap)--

Justice Felix Frankfurter: He did about on the appellee?

Chief Justice Earl Warren: He did ask to see the -- the minutes?

Mr. Bennett Boskey: He made a motion.

Chief Justice Earl Warren: Yes.

Mr. Bennett Boskey: And the motion was denied by Judge Holtzoff when it later came on and that also is in the transcript and as a matter --

Justice Felix Frankfurter: Is the issue come before Judge Holtzoff?

Mr. Bennett Boskey: The -- the motion to see the transcript then got a sign of Judge Holtzoff.

Justice Felix Frankfurter: Well, with the view to off real indication determined by Justice McGuire?

Mr. Bennett Boskey: One every knows because a motion to reconsider Judge McGuire's decision was filed and was denied by Judge McGuire.

And then a motion to -- for access to the transcript was also made, which came up in a certain bundle of confusion as the transcript shows and before Judge Holtzoff.

And it was on that occasion in addition to denying the access to the transcript.

It was on that occasion that Judge Holtzoff made the remarks which petitioner contend should have resulted in his recusing himself in the trial of this case and that perhaps this is the best time to advert to that just briefly.

What have had happened -- I've set this forth at length in my brief.

The issue is when -- whether the remarks made by Judge Holtzoff on this case showed the kind of prejudice that (a) would have made it necessary or (b) would have made it desirable in the interest of the administration of justice for Judge Holtzoff to disqualify himself.

Now, the motion -- a motion was made at the outset of the trial that Judge Holtzoff to disqualify himself.

And it was renewed right after the jury has been sworn in the opening have been started.

Judge Holtzoff never allowed the grounds of the motion to be stated on the record.

Counsel has reshowed in the record and in my brief.

Counsel attempted to state the grounds.

And Judge -- for the record, and Judge Holtzoff said, “In my court, we don't try cases for the record.

Sit down.”

And counsel sat down.

The prejudice complained --

Justice Felix Frankfurter: Are there any record in that Court?

Mr. Bennett Boskey: Are there what?

Justice Felix Frankfurter: Are there any record in that Court?

Mr. Bennett Boskey: There are voluminous records.

Justice Charles E. Whittaker: Well, I wonder that quite very statement of Judge Holtzoff.

Didn't he say, “Here, we tried cases for them”?

And if this evidence continuation of the Court in full, we don't apply cases just direct.

Didn't what he meant was?

Mr. Bennett Boskey: It was a little different, I think, Mr. Justice Whittaker.

It's set forth at page 13 of my brief that the Court said that you have already brought that up at the bench conference.

“I've disposed of the matter.

You may not bring it up again.

You may proceed.

Mr. Collins, for the record, if I may give the reasons to the Court, no you may not.

I don't know what you mean when you say for the record.

Cases are tried before the court and the jury.

They are not tried for the record.

You may resume your sit sir.”

Justice Charles E. Whittaker: That's what (Inaudible)

Mr. Bennett Boskey: That's what the colloquy is.

Now, what were the grounds on which Judge Holtzoff should have recused himself?

The grounds were that in the hearing on the prior motion in referring to an episode which had occurred during the first trial, Judge Holtzoff said he remembered the episode very well where this man, Tompkins, had refused to testify at the first trial.

He said he was just terrorized by Coppedge.

And then he went on when there was call to his attention, Tompkins' statement that he had perjured himself before the grand jury.

Judge Holtzoff said he asserts.

I imagine that statement was induced by Coppedge.

Now, there wasn't anything in the record of the prior trial.

And there wasn't anything that ever occurred in the record of this trial.

It would suggest or show that the recantation of Tompkins was induced by Coppedge.

For the judge to have such a set conviction about the matter, before the trial began, put petitioner had a serious disadvantage.

It put him before a judge who seem to have made up his mind on the truthfulness or lack of truthfulness appoints not yet induced an evidence, which might or might not be induced an evidence.

He seem to have made up his mind that he would not accept any view petitioner might testify to in some of these advantages if petitioner should elect to testify.

And we say that under these circumstances, Judge Holtzoff should have excused himself.

Now, the problem in the District of Columbia is not quite as severe as it might be in some districts where this only judge.

There are many judges all quite busy but there are many judges in the District of Columbia.

And when a problem of this kind arises, it is not a very difficult matter for a judge to pass the case on to another judge for assignment.

Judge Holtzoff's basic misconception here, I think is disclosed in the part of the transcript quoted on 12 -- page 12 as my brief.

Where -- when the question was raised, he said, “I don't think I have the choice in the matter.

It would be unethical for me to disqualify myself.”

As if he were -- would be doing something improper to take himself out of the case.

I think this really comes down to the heart of the matter on the disqualification point that Judge Holtzoff had such a narrow view of the duties and responsibilities and discretion of the judge in withdrawing from the case that he exercised whatever discretion he might have had as if there wasn't any discretion.

He regarded their -- the situation as one in which no discretion existed in which even he was legally disqualified within the meaning of the statute covering affidavits or prejudice or else.

He wasn't disqualified.

And he must sit because the case have been assigned to him surely isn't the law.

Justice Felix Frankfurter: Well, if -- no offense to Judge Holtzoff.

That is what he said.

It is unethical for a judge to decline the trial case because it is unpleasant.

And he imposed an extra burden to some other judge.

He wouldn't use affidavit that after they taken witness.

Mr. Bennett Boskey: Not in the abstract.

But any says no judge should ever disqualify himself unless he is legally disqualified.

Then he had just said I don't think I have the choice in there.

So taken in --

Justice Felix Frankfurter: Well, it -- it's an affidavit of disqualification, Court not to be granted by a judge and any other choice of the matter.

Mr. Bennett Boskey: No, I -- I would argue differently.

This is not a case where --

Justice Felix Frankfurter: How can you argue?

This is the --

Mr. Bennett Boskey: Well, let me explain.

Justice Felix Frankfurter: Take my -- take my -- be sure you -- that I stated what I wanted to state.

If an affidavit of disqualification under the construction by this Court of that statute should not leave the judge.

Does not call for taking himself out of the case then I think I would -- I might not use the word probably worth.

And it is unethical because of ease or prudence or comfort or a politically dioramic sense of -- of conscience to take himself out of the case.

Mr. Bennett Boskey: Well, let me explain.

Justice Felix Frankfurter: This Court has said all this as much.

Mr. Bennett Boskey: An -- if an affidavit of prejudice is filed which meets the requirement of the statute as I understand the statute, it is then the judge's obligation to disqualify himself whether the facts are true or not, whether at heart he feels, he let to be disqualified or not.

The statute gives him no choice.

Justice Felix Frankfurter: I agree.

Mr. Bennett Boskey: This is not such a case.

The affidavit wasn't filed.

The affidavit is not the soul root toward the judge's recusing himself in a case.

What we say is that under all the circumstances of this case, Judge Holtzoff should have disqualified himself.

And he was wrong in thinking he had no choice from there.

He did have a choice.

Justice Potter Stewart: Your point is that taken to Judge Holtzoff though he was betided from searching his own mind to see whether he prioritized this case.

Mr. Bennett Boskey: That is certainly a large apart of my point.

Chief Justice Earl Warren: And on the other hand, Mr. Boskey, if there was no affidavit or no suggestion of bias at all, if he felt in his own conscience that he couldn't be paired of the man because he had some kind of a prejudice.

It would be his duty to retire.

Is it not?

Mr. Bennett Boskey: In -- in the entirely in the absence of an affidavit.

Chief Justice Earl Warren: Yes.

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: That's right.

But -- but the reverse of Justice Harlan says, of course, if he says I can search my conscience and such a self-righteous feature that I don't have to examine the -- all the complexity of mystery to the human mind and conscience at another thing but if having done that, he's clear in his mind that it is duty to sit and not as the matter of choice to recuse himself.

I'm not saying the facts are -- within or without --

Mr. Bennett Boskey: So, I understand what you said Mr. Justice Frankfurter.

And actually I carried on this point longer than I expected to.

We have a very substantial evidence point in the case which they're almost just not time to elaborate orally.

It involves the problem of the unavailable witnesses second trial is testified in the first trial.

There was a witness in this case that -- weak -- man of probably low intelligence as his testimony at the first trial shows.

A witness who had implicated petitioner most seriously at the first trial who at the time of the second trial had become subject to such a series of illnesses that he was not unavailable -- was not available and actually perhaps was on the virtue of death.

He had a mental condition.

He had leukemia and various other things.

So, the government came in and said we want to read his testimony that was given at the first trial.

There is any question of the seriousness of the testimony in -- in pinning the crime on to this petitioner the jury believed the testimony.

And petitioner's trial council made recently valued effort to persuade Judge Holtzoff not to admit the testimony.

And he offered many reasons.

One was that there was a recantation statement filed this very witness saying giving a version of the event that exculpated instead of implicated petitioner.

And in view of that, he said the testimony was clearly unreliable.

Another wise that if now appeared from the kind of schizophrenia diagnosis that had been reported that this witness Artist now had schizophrenia.

That was an illness started some time ago and very possibly affected by this even at the time of the first trial.

Another wise that during the course of the first trial, Judge Holtzoff had made some comments about this witness that went right to the unreliability point.

He had -- he had himself told the jury something about Artist's unreliability.

And in addition to that, in a colloquy with counsel, which appears in the record at the first trial, he has said this prosecutor.

Now, maybe I can save a lot of time in the trial of this case.

How much would you going to rely on Artist's testimony because I want to tell you right now that there isn't any judge who would send the man on the penitentiary on the basis of Artist's testimony.

That's in the record of the first trial so that there were surrounding this event.

There were all the hallmarks of unreliability.

You have a problem of confrontation.

It is true that this Court has said and most Courts have said that the constitutional requirement of confrontation is met if in a second trial, the unavailable witnesses' testimony is brought forward and read provided he had testified as the witness at the first trial and there had been an opportunity to cross-examine.

There's nothing in the cases that I have been able to find.

It says that there is any absolute right on the part of the Government introduced this testimony.

And I must say, I've never found a case that had so many hallmarks of unreliability detaching to the testimony as appeared in this case.

Nevertheless, Judge Holtzoff, and here we come back again to this problem of absolutes versus discretion.

Judge Holtzoff said, “I don't think I have any discretion in the matter.”

He testified before I must.

The government has a right to introduce his testimony and after many pages of colloquy, he uttered objection admitted the testimony.

Not -- not only did he admit the testimony but the efforts which the defense made to show that the testimony was rendered unreliable by other extraneous items of evidence were rejected.

Justice Hugo L. Black: Where is that?

Mr. Bennett Boskey: Well, they call it the principal colloquy.

Justice Hugo L. Black: I mean where it is the -- in the record can we find that this evidence abided that Coppedge against the defendant.

Mr. Bennett Boskey: Excuse me.

Against the what?

Justice Hugo L. Black: Against the defendant and that he was declined the opportunities -- defendant was declined the opportunities to offer evidence to attack it which is relevant.

Mr. Bennett Boskey: Alright.

The principal colloquy is relating to this appear at pages -- what are here -- pages 90 to 97 of the printed record in this Court.

They are not so references and others appear in my brief.

Justice Hugo L. Black: What was the challenge that was made to show or what was the offer that was made to show that Artist's evidence was unreliable?

Was it rejected?

Mr. Bennett Boskey: In addition to the surrounding fact, what was the new evidence?

Justice Hugo L. Black: Yes.

Mr. Bennett Boskey: There were two things, Mr. Justice Black.

The first was a statement, which is reproduced at page 22 of the printed record here, signed in two places by Artist which is entitled “United States District Court for the District of Columbia” and which purports to be a statement made to clear my own conscience and for the benefit of clearing my conscience and which says “I had no connection with any of the other defendants in this case.”

The only one he says he had a connection with this one named Quinsey -- a man named “Quincy McCall”.

Justice Hugo L. Black: May I see if I get that appeared do that mean Artist has testified contrary to this?

Mr. Bennett Boskey: This is directly contrary to the testimony.

Justice Hugo L. Black: And you offered the sworn affidavit the Artist had made prior to the admitting that he had testified partly?

Mr. Bennett Boskey: This is -- trial counsel offered a recantation statement.

It is not notarized.

So, I cannot say there's an affidavit.

Justice Hugo L. Black: Was it signed?

Mr. Bennett Boskey: It is signed in two places.

Justice Hugo L. Black: By this --

Mr. Bennett Boskey: It reports to be signed by Adam Artist.

The judge said when he first saw this turned it over to the FBI for handwriting comparison.

And petitioner's counsel said certainly turned it over to them for handwriting comparison.

He said, “I've already looked at the handwriting because it signed in two places.

And we have Artist's signature on some of the money orders in this case.

And it looks genuine to me but I'll give it to the FBI.

Let them look at it.

Justice Hugo L. Black: Now, why was that rejected?

Mr. Bennett Boskey: That was rejected in -- and on a series of colloquies beginning on page 90 and ending on page 97.

And as you'll see in my replied brief, the Government in its brief says, well, maybe they didn't really want to introduce this thing at the trial.

Justice Hugo L. Black: What was the ground for reject?

Mr. Bennett Boskey: The final ground of rejection, although various other things were stated.

The final ground of -- of rejection with Judge Holtzoff's statement that “I will not admit it because it is not in his handwriting.”

You see, only the signatures were in his handwriting and the rest was in the --

Justice Hugo L. Black: What page now is that you said that statement?

Mr. Bennett Boskey: That statement appears at page 97, at the top, “I am not going to admit it in due the fact that it is not in his handwriting.

And Judge Holtzoff --

Justice Felix Frankfurter: That's because --

Mr. Bennett Boskey: Holtzoff said that the rest of it appeared to be in the writing of some other gentleman who was an inmate of the penitentiary from whom he got frequent document.

Justice Felix Frankfurter: I take it no point was made of the fact that it was notarized.

Mr. Bennett Boskey: Some brief reference was made to that in passing.

I do not see how it could affect the legal admissibility of that.

Justice Felix Frankfurter: But I'm not just --

Mr. Bennett Boskey: It would be a matter of wait for the jury and--

Justice Hugo L. Black: But you offered was a contradictory statement.

Mr. Bennett Boskey: Plainly contradictory.

Justice Hugo L. Black: But they're having the testimony given against your client.

Mr. Bennett Boskey: And Judge Holtzoff four times in this colloquy said he would not admit it in evidence and the Government yet says it isn't clear that the petitioner really wanted to get it in.

Now, in any courtroom, four times probably exceeds by two the limited times you can urge a judge to receive an exhibit he has refused to receive.

In this case, pretty vigorous effort was made.

There was other evidence also rejected and effort was made to bring in the testimony of a man named “Bush”, another inmate of Lorton that on -- at a certain time things possibly here was an error as for the date but in anyway rate, he said he was in the cell at Lorton with both Artist and petitioner and he heard Artist make some statements about this case.

And an effort was made then through this witness to introduce those statements the extent that there would be in direct contradiction of Artist's testimony.

Judge Holtzoff said, “I was not going to listen to argument on this”.

He said, “You can't introduce those statements because there's been no opportunity to cross-examine Artist's sworn”.

And they went on.

So, that -- that was the other evidence Mr. Justice Balck.

Now, we have in the case many other points, which obviously there isn't time to develop on oral argument.

There are points about what the rules should be for the corroboration of accomplice testimony that not are fully developed in the brief.

There is a point about in connection again with Artist matter about the Government's failing to produce the original of the document which it was required to produce under the (Inaudible).

There are points about the charge, which I think are adequately developed in the brief.

And there are points also about the prejudicial comments of the prosecutor in expressing his own opinions on who was telling the truth and who wasn't telling the truth.

Something that I think is prohibited by the counts of ethics.

And it's a matter of how you read what he said.

The Government said that it was just fair comment on the evidence.

We say that the proper reading of it shows that it went partly on that and expressed to the jury his own personal belief and the truthfulness of the FBI agent, which is a very different thing from just saying the evidence showed that the FBI agent testified such.

Well, the two or so minutes remaining, I'll save for it by.

Justice Felix Frankfurter: May I -- I hope about taking your time asking this.

At the beginning of the argument, Mr. Boskey, you said you thought that within the last month, if I recall correctly, in view of the congressional legislation giving the legal aid in the District that the changes and since this problem isn't just one case but a system.

Would you mind telling us more of the case?

Mr. Bennett Boskey: Yes.

The sentence has nothing to do with the Court of Appeals.

I think the change has to do with how this is handled in the District Court.

Justice Felix Frankfurter: You think that's what the important place, if I may say so.

Mr. Bennett Boskey: Its certainly one of the important place.

Mr. Murray, who is the Director of the Legal Aid Agency established by the Congress, tells me that now, the attorneys whom they assigned the cases do discuss with defendants the problem of what time of the submission to make to the trial judge.

And he says where they get outside attorneys to agree to serve in these cases -- in the trial cases.

They also recommend the outside attorney that he discussed with the defendant in the preparation of any such paper to the trial judge.

Now, I don't know how the system is actually working --

Justice Charles E. Whittaker: Submission -- submission of what?

Mr. Bennett Boskey: The submission of an application to the trial judge believed to proceed an in forma pauperis.

Justice Felix Frankfurter: What kind of question is to be raised?

Mr. Bennett Boskey: The kind of questions in my feel normally deal with what are the questions you're going to read on appeal.

Justice Charles E. Whittaker: This is after conviction.

Mr. Bennett Boskey: This is after --

Justice Felix Frankfurter: Now, may I go inference in what you said that the important thing is that there is no general oversight by some responsible body of -- of the position of the indigent defendant not in a particular case but more pervasively.

Mr. Bennett Boskey: No, I -- I'm sorry --

Justice Felix Frankfurter: Have I write that letter hoax?

Mr. Bennett Boskey: I'm sorry.

It's a hoax.

I have the hoax but I'm sorry to say that I think it couldn't be justified in drawing the inference first.

The statute creating this agency does not give any jurisdiction over the representation of indigent that's on appeal.

It is confined in a --

Justice Felix Frankfurter: But I'm talking about still restricting it to the discharge trial court.

Mr. Bennett Boskey: Yes, that's first.

Second, the appropriations for this agency have been so negative that the agency hasn't been able to hire a staff to do the kind of job that they are ought to do in that (Inaudible) Murray.

Third, it isn't clear yet what the initial efforts are doing in the way of working some of reforms.

We all hope they were.

Justice John M. Harlan: Well, why can't as well, Mr. Boskey that perhaps within the area that this agency is to operate.

Participation in helping the indigent perfect the -- an application --

Mr. Bennett Boskey: To the trial --

Justice John M. Harlan: -- made to the trial maybe outside of responsibility.

Mr. Bennett Boskey: I think it maybe -- I think it is probably outside the responsibility that something intuitively is helping to improve.

Justice John M. Harlan: Well, that doesn't help at the time.

Mr. Bennett Boskey: I -- but -- and maybe that they can do something about improving.

Justice Felix Frankfurter: Mr. Boskey, the reason that I had hoped is that the right for my appealing that if the District Court -- if District judges are more alike to the nature of the problem, then they would shut off the refusal and we do not have to go upstairs.

Mr. Bennett Boskey: That's the hope we all share.

Justice Felix Frankfurter: Well, and that depends as the most of these things depend on the quality of the judges.

Mr. Bennett Boskey: Well, it's not just the quality Mr. Justice Frankfurter.

Justice Felix Frankfurter: I can say just.

That's the most --

Mr. Bennett Boskey: But their perception of what this Court really means in the Ellis and that's what they don't understand.

Justice Felix Frankfurter: I know, but we do know that on your figures a district judge is actually shed off at least a 180 degrees, I think.

Mr. Bennett Boskey: That's a tremendous number of cases.

Justice Felix Frankfurter: But -- but with one year.

Mr. Bennett Boskey: Now, many of them are 2255 cases which have a different kettle of fish because I would say far more of those are in fact --

Justice Felix Frankfurter: But, Mr. Boskey, it isn't what this Court need.

But Justice Brennan suggested.

You would think that there is -- the content of their mind would be different from this Court knows is effort -- and we mean it.

Mr. Bennett Boskey: I think there are ways of --

Justice Felix Frankfurter: I think it depends.

It dep -- we can say that or can say the same thing in -- in three pages or 30 pages.

It depends on the attitude and understanding and perhaps the pressure or the absence of pressure of time on the bottom district judges no matter how it can be saved.

The conscience this judge will face that a point is frivolous.

He will so determine which raises the question that you haven't discussed at all.

In my point of view, I could use the deal or have this canvass for the next two hours.

You don't tolerate the question whether the odd in the answers automatically grant appeal in every indigent case.

Mr. Bennett Boskey: Well, I --

Justice Felix Frankfurter: That what it gets the answer?

Mr. Bennett Boskey: I think, in fact, Your Honor, that if that were done, this system would work more economically.

It would save the time of the judges.

It would save the time of the bar.

Justice Felix Frankfurter: It depends on the statute of Congress also to be respected.

Mr. Bennett Boskey: There -- there is indeed and -- and while that statute is on the books, I think it behooves all of us to see if there is not some way of applying a statute sensibly so that it doesn't cripple the Courts and cripple the Administration of Justice in the way that it is now happening.

Justice Felix Frankfurter: But those are a lot of words.

But does it get down to that a district judge who doesn't want to be in adverse will automatically grants a certificate.

Mr. Bennett Boskey: He may not be required automatically the grant of certificate but --

Justice Felix Frankfurter: Well, but only psychologically do it automatically.

Mr. Bennett Boskey: But he -- he ought to be given some increased understanding and appreciation of the criteria involved.

And I feel that there are hopes for passing on that kind of understanding.

Justice Felix Frankfurter: There isn't -- there is no law of durability who can't make every -- every question that's raised in a criminal case appears important with respect to it.

Mr. Bennett Boskey: Well, I appreciate the compliment.

I hope that that isn't just what I've done here because the questions in this case aren't working cases.

Justice Felix Frankfurter: I quite agree with you.

Mr. Bennett Boskey: And they deserve attention.

Justice Felix Frankfurter: Nobody wants -- nobody wants it so then I.

This is a very serious problem but you can find it at the memo as I am that you -- you have a different job, I am whether the answer is to say in effect or have a -- have a say something which in effect will make every district judge automatically grant the certificate and chloroform(ph) an act of Congress -- a constitutional act of Congress.

Chief Justice Earl Warren: Mr. Boskey, your time was expired but in as much as we've taken up frankly all your time with questions so you may have five minutes in rebuttal --

Mr. Bennett Boskey: Thank you Mr. Chief Justice.

Chief Justice Earl Warren: -- if you wish to summarize your argument.

You may have five minutes also, --

Mr. Bennett Boskey: Thank you.

Chief Justice Earl Warren: Mr. Belcher.

Argument of Carl W. Belcher

Mr. Carl W. Belcher: Mr. Chief Justice, may it please the Court.

The Government does indeed characterize these arguments as frivolous but it does not do so in any personal sense.

We perhaps has do not need any personal slur on this opponent.

We are simply using the term which this Court has itself imposed as the legal standard in the Ellis case.

I am pleased to note that my opponent does not slur me or the system that is invoked here because he does not accuse us upstanding path since the Ellis case.

He does not say that there has been no effect or no reaction as a result to the Ellis case but he does of course say is that there has been a change and in proceeds to argue to the effect that these changes meaningless or at least it does not handle the problem.

I'm also pleased to note that he conceives that there is no simple solution to the problem.

The Courts in the District of Columbia, as the Courts everywhere -- Federal Courts do have this problem that was alluded to in the last few minutes that the statute passed by Congress is there and must be given difference.

And of course, the opinions of this Court must also be given difference.

And it place the court -- the Courts of the District of Columbia as the state from the other Federal Courts have their own special problem because of certain figures and statistics, which I hope to bring to your attention in a moment.

The Court of the District of Columbia has attempted to solve these problems as who made those attempts since the Ellis case.

And this system, if you want to call it that, I prefer it not call it system, this manner of handling cases is an honest attempt to handle this problem.

And may it please Your Honors as counsel for the Government to some 10 years in the Court of Appeals.

We had tried to make it work honestly not on the basis of an indigent si -- situation but also in non-indigent.

We have attempted to make the calendar in the Court of Appeals a robust calendar because the non-indigent, the wealthy are attached by counsel for the appellee with motions to dismiss, with motions to affirm, with motions that the Court orders a given party to show cause why the rules of the Court have not been followed and in every instances in which Rule 75 of the Civil Rules requires a concise statement of the points which are being brought forward on appeal.

That concise statement is screened for the purpose of seeing if the issues to be raised by the appellant can be delineated so that a motion to affirm or dismiss can be formulated.

And if that's possible, a motion is found.

Now, as to this petitioner, we need to consider him.

At the moment, he is in Lorton as counsel had said.

He's serving two sentences.

The one in this case is consecutive and depend upon a prior sentence in another case and an assault of a dangerous weapon conviction.

And in that prior case, he was sentenced to two to seven years.

That seven years has not expired.

In the present case, he was sentenced to serve 20 months to 5 years.

And the combination, the way they are treated is that he has a minimum sentence of two years and 20 years -- 20 months as a minimum, almost three years is the minimum, and a maximum of 12 years.

He is now, at the moment, is eligible for parole.

He has not applied for parole.

There has been no attempt to consider this individual for parole.

When he does apply, he will certainly be considered in the normal processes.

Justice Potter Stewart: Well, that's all I got to do with this.

This isn't -- this isn't a habeas corpus or 2255 proceeding where something might turn on whether or not he is serving the sentence which he is now.

Mr. Carl W. Belcher: I only -- only bring that up Your Honor because it is has been referred to by counsel.

And I point out that during the times, this Court considers what I -- I think is a serious problem that counsel agrees with it.

You do not have an individual who is waiting at the door to walk out.

Justice Potter Stewart: I do see your point.

You're arguing to the -- the fact that there is no great urgency in this case and that I suppose, therefore, that if we decide that a part of this case to Mr. Boskey's favor, we should deal no great compulsion to decide the merits as against to --

Mr. Carl W. Belcher: That's correct.

Justice Potter Stewart: -- remanding the Court of Appeals to determine the merits because in the meantime, this fellow is serving about sentence.

Mr. Carl W. Belcher: That's correct.

And my main --

Chief Justice Earl Warren: May get that last end point because he is serving what I - I --

Mr. Carl W. Belcher: A proper sentence.

He has -- he's now serving a sentence on another case entirely separate from this case and the --

Chief Justice Earl Warren: I -- I thought counsel said he -- he started five weeks ago to serve this sentence.

Mr. Carl W. Belcher: I believe that under the system that -- is being utilized, he is not.

There is some conflict between counsel.

My information comes from the Bureau of Prisons.

It is to the indrawn effect that this petitioner is now eligible to apply for parole.

Chief Justice Earl Warren: Of -- under this conviction?

Mr. Carl W. Belcher: Under a merger of the two sentences, the way they are treated considering both.He is eligible to apply for parole.

Chief Justice Earl Warren: Well, if he is eligible to -- to apply for parole, under these convictions, he must be serving -- he must be serving some time under it.

Mr. Carl W. Belcher: Well, I simply say Your Honor that he has not applied for parole.

Chief Justice Earl Warren: I know.

But suppose -- suppose we descended back to the Court of Appeals by the end -- by the time he should get back here.

He long seems to serve these 20 months, wouldn't he?

Mr. Carl W. Belcher: No sir, because his sentence in the first case is a seven year maximum.

Chief Justice Earl Warren: I beg your pardon.

Mr. Carl W. Belcher: His sentence in the first case was a seven year maximum and he perhaps to serve this good time on the minimum sentence which is some two years.

If he applies for parole, it is possible and he be considered favorably and would be great.

But as far as a mirror mechanical running of time, this man has a long way to go.

On the other case, not just this case but not on the other case, so that the thing which is keeping him where he is now, the first barrier is, his application in consideration for parole.

He can do it.

It maybe considered favorably but so far, he has not even applied.

My major point in bringing that up that all was simply that, irregardless of whether or not it is felt that one more of these issues which the Government frivolous within the legal standard of Ellis are considered to this Court to be not frivolous.

There is still is a system of -- I don't like the word of -- but a method which is a serious attempt to work out a very serious problem so that even if that issue is to cause a remand to this case, it is requested and is possible that this -- the method can itself be considered substantively by the Court in separate report.

Justice Felix Frankfurter: Mr. Belcher, this Court at least have -- by way of assumption though contingently, better word, contingently, we will have to consider the merits of the questions raised by Mr. Boskey.

Mr. Carl W. Belcher: That's great.

Justice Felix Frankfurter: Can't escape.

Mr. Carl W. Belcher: We --

Justice Felix Frankfurter: Nor in order

Mr. Carl W. Belcher: Even if you would have proceed to say that the method is a reasonable method for the local situation in the district (Voice overlap) --

Justice Felix Frankfurter: What do you mean by method?

I mean -- I mean the -- in order to determine whether the points that he urges by which he -- on the basis of which he was disallowed to go to the Court of Appeals, are of a quality legal solidity as to be called frivolous and that means at least on the surface, under the -- the law that surfaced considering the merits of this question.

I'm not going beyond that.

I'm -- that doesn't mean we should actually decide with what you say.

We do have to say that there's a specific gravity and -- and that thing on the specific gravity of these questions.

Mr. Carl W. Belcher: That is correct.

Justice Tom C. Clark: Are you acting as to decide them on merits or not?

Mr. Carl W. Belcher: Well, Your Honor, the particular points are involved in this case.

They're part of the case.

They do have to be praised as against the Ellis standard or standard of testing against the motion to affirm or dismiss.

They do have to be tested and that's a part of the contentions.

Justice Felix Frankfurter: Has it -- does a good reason for not deciding them, any of the certainly evidentiary questions that one would have to decide whether this, in the first place, what is their universal -- like well there is but -- but I don't know.

One have to decide whether they are local questions govern by local law and if they are certain to this Court, would embark on search inquiries and not the testing any of these questions are.

I don't know.

But the determination of whether they are or not in itself a problem.

Mr. Carl W. Belcher: That is correct.

That is correct.

And of course, we can say that --

Justice Felix Frankfurter: And this Court has again and again and hardly anything.

I don't know if it's a matter of plea or bargain cases as -- as this Court of conflict has in effect on local District Court of Columbia.

Question local.

Mr. Carl W. Belcher: That's correct.

And it's interesting to note, I will just going to get in a minute, that the part of the problem here is the volume of cases that some 80% of the cases in the District of Columbia are under the District of Columbia code.

And in that sense, they are local peculiar in that jurisdiction.

Chief Justice Earl Warren: Well, are all of the questions in this case, local law in the -- of the District of Columbia?

Mr. Carl W. Belcher: There is one -- one new question which has been brought forward in this Court for the first time.

It was not raised in the Court of Appeals which involves Title 18 of the United States Code 2314, Transportation of stolen property beyond the state.

Now, that one question, newly added in this Court, involves a statute of the United States Code in -- for that reason is not local or the opponent will immediately bring up of these are evidentiary problems which could across both codes and any kind of a statute.

Justice Felix Frankfurter: There's a question whether -- whether the testimony -- to my testimony in the first try should be read then in the sentence that surely a local question for evidence.

Mr. Carl W. Belcher: That's correct.

It - it would rise very often in the criminal cases on the (Voice Overlap).

Justice Felix Frankfurter: They are invoked in the same statement.

They may have their oath to do the law.

Mr. Carl W. Belcher: That's correct.

Justice John M. Harlan: I hope you always devote sometime at the question that you raised in your brief mainly assuming that these questions are not frivolous whether what was done here by the Court of Appeals is an adequate substantive record that would raise appeal.

Mr. Carl W. Belcher: I intend to go directly at that.

Justice John M. Harlan: And in connection with that, I wish to deal with the Lurk case.

Mr. Carl W. Belcher: I will be glad to Your Honor.

That is, as I understand it, is the principle reason this case is here and that's exactly what I intended to proceed now.

Justice John M. Harlan: Good.

Mr. Carl W. Belcher: May it please the Court.

This petitioner was given his rights under the general principles of the statute invoked Section 1915 of Title 28 is interpreted by this Court in several cases beginning with Johnson, Farley and the Ellis cases.

He has had these things.

He has said counsel assigned to him, very bad counsel who did act as effortless as he properly should have.

Secondly, he was furnished a transcript to the proceedings at Government's expense to a full and complete adequate transcript, and as I will show is we proceed along counsel himself has said that all the documents, all the testimony, everything you didn't do consider this case properly was use his terms at hand so that there was no deficiency in that sense.

Thirdly, he has had the benefit of extended written argument.

Your Honors will see that printed in the pages of this record in this Court in the closely space tight that these records are printed.

They initially filed a 20 page that is 20 of these record pages document.

This was after the materials were available to him.

And thereafter filed a document of some 23, 24 of this closely printed pages so that thirdly, he did have the benefit of extended written argument, and fourthly is we will show he was given at all of these things were given adequate and consideration of the issues raised by a three judge panel of the Court of Appeals.

The purport of the argument I'm about to make is to the effect that is if he is entitle to ignore more than these which he did have.

Justice John M. Harlan: Are the memoran -- the memorandum that he -- or the briefs that he filed in support of his application -- informal application here in the Court?

Mr. Carl W. Belcher: They're all here Your Honor.

And I intend to take them to you one by one.

I think that's the best way I can show what this system or procedures are about.

Chief Justice Earl Warren: Well, there is one thing -- one thing you didn't mention that they have the same right of petitioning here for assert with the same scope of review that he would have.

Have they considered his appeal and determine it on the merits?

Mr. Carl W. Belcher: We think it's exactly the same.

We think it is exactly the same as if a motion to affirm or dismiss have been made and granted in his case in the full record and everything to come to this Court be considered in exactly the same way.

His case --

Chief Justice Earl Warren: And what -- but here, on this kind of review, it's your contention isn't it that we're -- we're limited only to the question as to whether his -- whether his appeal is frivolous?

Mr. Carl W. Belcher: No, Your Honor.

Frankly, that in my opinion is a secondary issue here.

The primary issue is the way --

Chief Justice Earl Warren: What is the scope of our review here than its present time in this -- in this case?

You -- you say that we shouldn't reach the merits of the -- of the case and -- and if we think that the petitioner is correct in his -- his representations find him a new trial because you say that's a local law.

Now, if this was a paid case and it had been heard in the Court of Appeals on the merits, it would be right for our consideration on certiorari, would it not?

Mr. Carl W. Belcher: The same --

Chief Justice Earl Warren: Now -- now, in that -- in that sense, does -- does this man have all of the -- all of the rights and all the remedies that another man would have?

Mr. Carl W. Belcher: I think he does have, Your Honor, exactly the same.

This Court has --

Chief Justice Earl Warren: I'd like to have you explain this?

Mr. Carl W. Belcher: This Court has the full record here.

And as any Court -- this Court, when it sees an error which is, an error which can not be further elucidated by briefing and argument in the Court of Appeals which counsel cannot give anything more to and the Court sees the error of this Court as in the other Courts sort of funny noting or plainer can say so.

Chief Justice Earl Warren: May I -- may I ask this one more question.

You have -- you have indicated in your colloquy with Justice Frankfurter that the evidence requested is one solely of local law.

Now, it's your position, I think, that -- that even though we -- we feel that -- that we should take some action in this case that the limit of our actions would -- should be to return it to the Court of Appeals and direct them to give the man a hearing, is that right?

Mr. Carl W. Belcher: I think it's --

Chief Justice Earl Warren: Alright.

Now, but if this man had been -- had paid the fees and had been a -- a regular appellee, he would've have a hearing and the Court would've decided that question with local law.

And it would've come here to us on sort.

And we could then review the action of the Court when it comes to us in this posture but we can't review it in the same way, can we?

Mr. Carl W. Belcher: Your Honor, I think you can.

The only difficult between the two cases, as I see it, is in one, a difference is paid to a local law and the Court is exercising some restraint to where the end run result of giving difference to the Court of Appeals and the District of Columbia to work on its own solutions as to local law.

But anytime this Court sees a problem, local laws are not local law, which it thinks it should act upon because of the nature of the error.

I'm sure this Court would no longer feel restrained and that he would act upon the error which was disclosed in the record, be it local law or some other types of law if the need were the Court would act.

Chief Justice Earl Warren: (Voice Overlap) It's your position that there is nothing of that kind in this case.

Mr. Carl W. Belcher: Indeed, there is not Your Honor.

This case is representative of one -- one type of case as distinct from three other types of cases.

In his case, the appellant process did not include oral argument.

It includes the other facets that I've mentioned but they did not include oral argument.

The three types that I'm about to describe and distinguish do -- do include oral argument as a routine matter but not as many escapable part of the appellant processes.

And that would the escape would be at motion to affirm and dismiss show cause why appeal should not be granted for various reason.

Those things would take any case, wealthy cases, indigent case, any type of case from the end run result of oral argument.

Now, these are the three types of cases that are different.

All of the non-indigent cases as a routine but not inescapable end run objective would get oral arguments.

A second type of case, as a normal routine, but not inescapable result, we get oral argument.

It's the forma pauperis cases granted by the District Court.

And thirdly, there are cases considered by the Court of Appeals, petitions for forma pauperis considered by the Court of Appeals where the Court of Appeals does itself put it in the processes for attaining oral argument as a normal routine.

Those were the three types of cases which are different from the type of case that we have here.

Now, there are no statistics available that I know of but considering the Court of Appeals in and on itself, it is probably true that as many forma pauperis petitions from direct appeals do obtain oral argument as there are forma pauperis cases from direct appeals from the Court of Appeals that do not know whereas the oral argument thing as it should finally given in cases is approximately evenly balanced.

Justice Felix Frankfurter: (Inaudible) I don't quite understand the suggestion.

That's just that.

Mr. Carl W. Belcher: Well, the Court of Appeals has coming before it petitions in the fiscal year 1960, same year that my opponent is referred to had indirect appeal cases --

Justice Felix Frankfurter: Of criminal conviction?

Mr. Carl W. Belcher: Criminal Conviction.

43 of those and the Court of Appeals granted 13 of those petitions.

Justice Felix Frankfurter: In different view between informant of this.

Mr. Carl W. Belcher: That's right.

Now, some of those 13, under this system –-

Justice Felix Frankfurter: Are these all informant?

Are these 43 all informants?

Mr. Carl W. Belcher: These are direct appeal cases.

Justice Felix Frankfurter: I know.

But in forma pauperis?

Mr. Carl W. Belcher: In forma pauperis.

Justice Felix Frankfurter: Yes.

Mr. Carl W. Belcher: These are petitions in forma pauperis and direct appeal cases of a -- very peculiar type.

Justice Felix Frankfurter: Well, as soon as apparent, --

Mr. Carl W. Belcher: Now, some of the --

Justice Felix Frankfurter: --they'd have -- if they are the informers, they must have granted the right to appeal.

Is that right?

Mr. Carl W. Belcher: That's correct.

Justice Felix Frankfurter: And --

Mr. Carl W. Belcher: Now --

Justice Felix Frankfurter: -- there were 43 such?

Mr. Carl W. Belcher: 43 total.

Direct appeal case.

Justice Felix Frankfurter: I got a figure of the remand confused.

I thought Mr. Boskey gave us a figure that out of 180 applications, only 28 were granted.

Mr. Carl W. Belcher: The reason for that, there are some differences in our figures.

I have slightly different.

Justice Felix Frankfurter: Different in --

Mr. Carl W. Belcher: But --

Justice Felix Frankfurter: -- 23 and 28 is substantial?

Mr. Carl W. Belcher: Well, there were a total of 180.

We agree on that but there was approximately 137 of those that were not direct appeal cases.

They were collateral type cases.

Justice Felix Frankfurter: These are collateral cases.

Mr. Carl W. Belcher: That's correct.

Collateral type cases.

Justice Felix Frankfurter: And if --

Mr. Carl W. Belcher: And I might say --

Justice Potter Stewart: This 180 were -- were denied by the District Courts?

Mr. Carl W. Belcher: That's right.

Justice Potter Stewart: And that denied by the District Courts and that -- that denial by the District Courts, he go to the Court of Appeals and out of 180, the Court of Appeals obviously granted a sizeable number but not all.

Mr. Carl W. Belcher: But the --

Justice Felix Frankfurter: It was the size of the number of 28.

Mr. Carl W. Belcher: The -- the significant thing is that out of the 180 that went to the Court of Appeals, 137 were not the type that were interested in.

They were collateral type cases.

Justice Potter Stewart: And only some 43 were direct appeals of criminal conviction --

Mr. Carl W. Belcher: That's correct.

Justice Potter Stewart: -- in the District Court.

Mr. Carl W. Belcher: That's correct.

And I might say, the question that are raised, I think by Mr. Justice Brennan --

Justice Felix Frankfurter: You mean they weren't there?

Is they were -- the 43 were appeals to be merged by the court?

Mr. Carl W. Belcher: Were petitions then would -- and --

Justice Potter Stewart: Can't be denied by the District Court.

Mr. Carl W. Belcher: They have been denied.

Justice Potter Stewart: Right to appeal in forma pauperis had been denied by the District Court and then what was the fate of these 43 in the Court of Appeals?

Mr. Carl W. Belcher: Fate in the Court of Appeals was 13 granted and 30 denied according to my statistic.

I think Mr. Boskey would be more favorable to them.

Justice Felix Frankfurter: 13 granted?

Mr. Carl W. Belcher: 13 granted.

Justice Felix Frankfurter: 13.

And how many denied?

Mr. Carl W. Belcher: 30 denied.

I want to thank Mr. -- Mr. Boskey.

Justice Felix Frankfurter: (Voice Overlap) 15 must have been granted in collateral cases.

Mr. Carl W. Belcher: Well, the collateral cases, I'm not --

Justice Felix Frankfurter: If the total is 28 out of 180, had you break it down as between direct and collaterals and 13 direct were granted, that means 50 collateral granted?

Mr. Carl W. Belcher: That's correct.

Now, Your Honor, this -- this figure of 43 in direct appeal cases is characterized properly as cases in which the District Court had denied forma pauperis.

Now, the figure in which the District Court did grant forma pauperis, it's greater.

It's 60.

Justice Felix Frankfurter: 60.

Mr. Carl W. Belcher: 60.

So that there's no imbalance, one -- from that does not get the picture that the District Court is being arbitrary.

And it's -- it's denying more than the grants.

Are grants more than the denial?

Justice Potter Stewart: We're concerned here, in this case, only with the problem which arises when the District Court does deny the right to appeal in forma pauperis.

Mr. Carl W. Belcher: That's -- that's very true except I bring this -- this point out, I think, it's a part of my opponent's position that the Ellis case has no impact.

It's just -- has been of no meaning to the District of Columbia.

The District Court has founded.

Justice Potter Stewart: Well, let see if I get.

What you're telling is that in fact there has been 103, 60 plus 43 direct appeal applications were made from the District Court were lead to appeal.

In 60, this leave would granted and 43 had been denied.

Is that right?

Mr. Carl W. Belcher: That's correct.

Justice Potter Stewart: This is only in direct appeal and that -- how would you mind -- I think you suggest --

Mr. Carl W. Belcher: I think in the District Court, too.

Justice Potter Stewart: I beg your pardon.

Mr. Carl W. Belcher: That's in the District Court.

Justice Potter Stewart: That's what I'm -- answer to me.

Now you said that there's no relevancy as the collateral is (Inaudible) in this case.

Mr. Carl W. Belcher: Well collateral attack -- this Court has -- has indicated and it's clearly understood, presented a different problem.

A direct appeal is coming from the conviction.

This is the one review that everyone's interested in the case.

The feeling is should get a very careful handling at this posture.

But once his head had careful handling or at least the opportunity present a careful handling, then when it comes up later on the collateral attack.

It does not present the same problems.

Justice Felix Frankfurter: Therefore proportionately -- proportionately, according if you take the gross figures of Mr. Boskey, only one intent a little over, 10% of the cases were granted who has and you take one picture direct appeal figures a little less than 33% appeal granted.

Mr. Carl W. Belcher: Yes, Your Honor.

Justice Felix Frankfurter: Leaves that a substantial proportion of this.

Mr. Carl W. Belcher: That's right.

Now, a part of the understanding that this system is that it is not in this case it had, perhaps has been in another cases.

A problem of the indigent versus the wealthy but rather the -- the heart of this case is the way in which the indigent cases themselves are considered so that, in this understanding, the full nature scope of the problem, the Court should also get the still bigger picture in the District of Columbia, which is that there are some 1200 indictments returned -- criminal indicmtments in that jurisdiction each year, approximately 100 indictments each month.

Some two-third of those were disposed off without going to trial but of one-third, approximately, do go to trial and then in fiscal year 1961, this was a disposition of those cases.

373 went to trial.

They involve some 455 defendants.

And the convictions were in 310 cases that 362 defendants were convicted.

This is the potential for direct appeals each and every year in the District of Columbia Circuit.

Justice Potter Stewart: I'm sorry.

I missed that figure.

How many a year?

How many each year?

Mr. Carl W. Belcher: Alright.

In -- in fis -- on fiscal year 61 figures, it would be 362.

Justice Potter Stewart: Convictions in the District of Columbia?

Mr. Carl W. Belcher: That's right.

Individuals.

This is a potential.

Justice Felix Frankfurter: Does that cover all prosecutions on the either Title 18 US Code or the District of Columbia?

Mr. Carl W. Belcher: This is a gross total.

Justice Felix Frankfurter: Have all murders down to at the --

Mr. Carl W. Belcher: This is a gross total.

Justice Felix Frankfurter: Of every kind of offence?

Mr. Carl W. Belcher: Every kind of defense each except the municipal court work which is the misdemeanor jurisdiction.

This is the felony, the end run result.

This is like a picture.

Justice Felix Frankfurter: How many (Voice Overlap) in the US Attorney's office in the District.

Mr. Carl W. Belcher: How many --

Justice Felix Frankfurter: In deal, how many assistance do the US attorney's office dealing with criminal trial matter? Could you give us --

Mr. Carl W. Belcher: In -- in this Court, this section that does this kind of work, it'll run between 10 to 12 and other --

Justice Felix Frankfurter: Do they do the 300 cases?

Mr. Carl W. Belcher: Well, yes.

They do those cases --

Justice Felix Frankfurter: Are those -- are those convictions after trial?

Mr. Carl W. Belcher: Those are convictions.

This is the end run result.

They -- the --

Justice Felix Frankfurter: How many pleas of guilty in the District?

Do you have in mind?

Mr. Carl W. Belcher: It would run some 890 in that area.

Because, let's just say the gross -- the gross product is some 1200 per year.

Justice Potter Stewart: Are all these 362 its convictions after not guilty pleas?

Mr. Carl W. Belcher: After not guilty pleas and after the trial, either both of the Court by the jury and after the termination of any motion to set aside the verdicts and motions for new trial and everything else.

All -- all proceedings throughout the way.

This is the rebind product if you will --

Justice Potter Stewart: It is not a -- convictions based on guilty pleads at all.

Mr. Carl W. Belcher: None of it?

No, none of it.

This is a trial.

Chief Justice Earl Warren: Mr. Belcher in the -- in the large number of the States and in some of the very largest states of the Union, there's an absolute right to appeal and without the payment of any fees of any kind either for filing an appeal or for -- or preparing a transcript which automatic with -- with the appeal.

May I ask if in the District of Columbia, you're faced with any problems that are greater than those States are faced with?

Mr. Carl W. Belcher: I assume not, Your Honor.

It's -- it roughly a state jurisdiction.

Chief Justice Earl Warren: Yes.

Mr. Carl W. Belcher: There are the house breakings --

Chief Justice Earl Warren: So many states had have that for generations as to and I just wonder why it would be so such a terrible problem to the District of Columbia, if that possible here.

Mr. Carl W. Belcher: It could well be considered in that light, Your Honor.

But the problem here and the reason out here in reading this case here is because we do not have that type of legislation.

In its place we do have this section of national coverage starting in District of Columbia Section 1915 in which the Congress has provided the system which is (Voice Overlap).

Justice Felix Frankfurter: Do you happen to know what the potential burden statute is when the Congress certified the certification?

Well, that's -- that's true for us affecting it as a matter of --

Mr. Carl W. Belcher: It is.

It's a national --

Justice Felix Frankfurter: It's the national law.

Mr. Carl W. Belcher: That's correct.

Justice Felix Frankfurter: When will that have?

Mr. Carl W. Belcher: Your Honor, it's been a good number of years but the exactly what its origin is, I don't know.

Justice Felix Frankfurter: Is it the same in Ohio, in California, in New York?

Mr. Carl W. Belcher: No, sir.

In the Federal --

Chief Justice Earl Warren: Do you speak to the state law?

Justice Felix Frankfurter: No, no, no.

Chief Justice Earl Warren: The Federal Law.

Yes.

Mr. Carl W. Belcher: They are placed these figures to that then referring to.

You can directly glean from the brief in the Lurk case in the 1960 term and that was 669.

And -- I see, it's time for recess.

Chief Justice Earl Warren: Yes.

We'll recess now.

Print this transcript Transcript: 

Argument of Carl W. Belcher

Chief Justice Earl Warren: -- continue your argument.

Mr. Carl W. Belcher: Thank you, Mr. Chief Justice.

Before the recess, I was just concluding the coverage of certain statistics and I would just like to add to that, that these figures are available to the Court from independent means, that is from the annual reports of the Administrative Office of the Federal Courts, also from the annual report of the Attorney General would give an appraisal to this problem and in addition, the brief in the Lurk case in the last term do contain these very particular figures that I have referred to, the 60 figure of being granted to the District Court to 43 in the Court of Appeals and those figures.

Now this petitioner, of course, was denied forma pauperis for the Court of Appeals.

But the issues in this case are not to be found in the granted column as opposed to the denied column because many of the cases in which the Court of Appeals initially considers under the processes here do eventually go on to become cases in which oral argument is granted so that there is a difference to be made in just a column choice.

Justice Charles E. Whittaker: Mr. Belcher.

Mr. Carl W. Belcher: Yes, Your Honor?

Justice Charles E. Whittaker: May I ask, what if (Inaudible)

Mr. Carl W. Belcher: The answer is he would have had oral argument and nothing else.

Justice John M. Harlan: Then how was the procedure here different (Inaudible)

Mr. Carl W. Belcher: The procedure here is substantially the same as it was in the Lurk case as I know it.

In the Lurk case, there was no --

Justice John M. Harlan: Is there any difference?

Mr. Carl W. Belcher: No difference that I could care to point to at this time.

Justice John M. Harlan: Well, is there -- the Lurk case, decided in what (Inaudible) --

Mr. Carl W. Belcher: If the Lurk decides that question and -- my argument on this procedure is no longer valid.

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: As we understand the Lurk case, there were new issues presented to this Court which had not been presented to the Court of Appeals.

The Court of Appeals considered the judge that presided at the trial is a judge.

The issues raised in this Court were in terms of the Court of Custom and Patents Appeals as a court and it was on the basis of those new issues.

As I understand it, the Lurk decision was rendered and it was basically a decision that that new question which had been injected in the case in this Court should first be considered by the Court of Appeals.

So that in the Government's view, the Lurk case in no way passed upon the questions which are involved here.

And indeed, to support that proposition is noteworthy, I believe that it is the same day, Your Honor, that the Lurk case was decided in a way that I suggested it was, certiorari was granted in this case, and I suggest that the Court would not have granted certiorari in this case if it felt that the Lurk case, the decision at the same day was dispositive for the issue which I'm espousing here.

So that I believe the issue is still here before the Court --

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: Well, I make the assumption, Your Honor, that the Court would not do a useless thing of having this case come off for oral argument.

Justice John M. Harlan: In the Lurk case, as a fact, the (Inaudible) consideration of the Court of Appeals (Inaudible)

Mr. Carl W. Belcher: That's correct.

That's correct.

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: And it's sent back -- the difference is, Your Honor, it sent back a bigger issue -- a different issue really.

Justice John M. Harlan: Yes, for some instance (Inaudible)

Mr. Carl W. Belcher: That's correct.

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: And for my purposes, it's not worthy that when the Court of Appeals got this new issue, Court of Appeals did allow forma pauperis in that case and they did come off for oral argument, I believe, before all nine judges of the Court of Appeals, sending it back, so that --

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Belcher: -- it was considered.

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Belcher: The procedure in Lurk was briefed and I believe argued by counsel in Lurk, but at almost, the outset of the consideration by the court in the Lurk case, we were confronted with this proposition that there was entirely new issue being presented for the first time to you, and that new issue had not been presented to the Court of Appeals.

As I understand the Lurk opinion, it is to the effect that that new -- new issue first presented here should be considered by the Court of Appeals, and that was the purpose on the remand.

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Belcher: We do have as a fifth issue of -- of merit.

We do have the claim that the trial judge failed to instruct the jury properly.

That issue was not raised first in the Court of Appeals.

Justice Hugo L. Black: But you're not suggesting, are you, (Inaudible) you wouldn't suggest that we refrain from passing on the -- whether the points that argued were frivolous in order to send this additional point back to --

Mr. Carl W. Belcher: No, Your Honor, I would suggest that all these issues can be considered by the Court here and be found to be frivolous as the Government suggests that they are -- that procedure can be fully reviewed and sustained.

The matter -- the matter of select --

Chief Justice Earl Warren: Mr. Belcher, may I trouble just one -- once more about the procedure.

In the Court of Appeals, do -- do these hearings such as petitioner got in this case come up on the regular calendar, and that -- do they have the -- the same priorities and -- and the same procedures that the cases on appeal have?

Mr. Carl W. Belcher: They have exactly the same procedures.

They do come up on a calendar.

It's a calendar which is called amongst the attorneys, the motions calendar in the sense that it comes up distinctive from the oral argument calendar and this calendar, for these cases, is considered by the court in chambers without oral argument in it.

As a result of this mechanical distinction being made, and because of the efficiency built into the processes, the actual results in the Court of Appeals are altered more expeditious in this kind of case than they are in a regular appeal.

Chief Justice Earl Warren: In other -- in other words, when a man filed a petition such as this, he gets a hearing and the decision as quickly as -- as a person would on the appeal calendar --

Mr. Carl W. Belcher: He does.

He does and often it is quicker, more -- more efficient.

Indeed that's the principal reason for this -- this system, is its efficiency, its enabled to handle a greater number of petitions and cases in a more expeditious way.

Now, as a matter of selecting cases for review, if Your Honors have noticed, some cases do not go through this review that the Court -- this particular case did.

The matter of deciding which cases will get the review by the transcript of proceedings is the heart of the issues in this case, and that process is best identified and understood by the record in this case.

As I suggested to Mr. Justice Whittaker earlier, the record is entirely here every pleadings of note that was filed in the Court of Appeals is put forth in a sequence here in this record.

And on page 1 of the record is the prisoner's own pre se petition for forma pauperis, and it's a well-done petition.

It's much better than the normal petition.

On the basis of that petition at record page 5, the Court of Appeals without waiting for the time to elapse for the Government to oppose the prisoner's petition, did appoint him counsel, Mr. Boskey was appointed by the order appearing on page 5.

As a result of his appointment, Mr. Boskey prepared a petition in support of the memorandum and support of the petition which begins on page 5 and which continues on, for some 20 of these record pages to record page 27.

And as I've suggested to the Court earlier, he was given a full opportunity to discuss the issues which were involved.

Record page 27 is the conclusion of the memorandum by Mr. Boskey and this conclusion I think is in support of the process which eventually followed.

And he concludes and I quote, “In the foregoing presentation, it's a substantial question to which appeared to exist on appeal so far as such a matter can be assessed in the absence of a transcript, but there may be various other substantial questions disclosed for the transcript.

Also, the transcript may well lead to a somewhat different evaluation” and he proceeds to say that different evaluation may result to the benefit of his client.

Implicit in the statement I would add is also the contrary to the effect that that evaluation might react contrary to his client.

And this is the basic proposition to the system that we're discussing, which is that criminal cases do have their roots so deeply embedded in the patch of the case as distinct from distinguishing cases, Presslor cases and that sort thing, the question of whether the facts support the legal arguments are so altered, determinative of the processes and issues, determined indeed whether or not this particular process, the review by transcript, as I term it, is a valid process or not a valid process, because that is the rock bottom of the consideration here.

Passing onto this record though, to show that full and complete consideration was given to this matter by the court, after Mr. Boskey's statement was filed, the Government on page 31, filed a very short document in which it conceded that the transcript was needed, but the concession was limited in it's purport to one of the three issues which Mr. Boskey raised.

Government in effect said that the indictment is not a valid issue that the disqualification of Judge Holtzoff is not a valid issue, but the matter of (Inaudible) and admissibility were his testimony is something that we do need to look at the transcript and suggested that the entitlement to an appeal be based rock bottom on what that transcript showed on that one issue, and suggested that Mr. Boskey after he received the transcript should again present a memorandum to the court based on that transcript of proceedings, having received it.

Mr. Boskey came back in the next several pages in which he talks about delay in the judicial process and suggests amongst other things that his client was entitled, as of the moment, to go to oral argument with his case despite the contention that the back record might well show to the contrary.

He also complained, of course, that he should not have to come forward at that point with the transcript himself.

Now the order of the Court of Appeals is note worthy.

It grants a transcript and in that sense it complies at least in part with the rule of the Ellis case, but the Court of Appeals ordered, which appears on page 34, is a response to this situation which it was confronted with.

It did not ask Mr. Boskey to come forward for the transcript.

Instead, it said to the Government, “You come forward with your transcript -- with your memorandum based on the transcript.”

Now, as I construe these proceedings, terminology is not there, but in effect, the Government was put to burden of showing cause in its next move after the transcript, showing cause based on that transcript why this case should not go to oral argument, and that of course is exactly what the Government proceeded to do.

But this one order, insignificant though it appears on its face, this order, on page 34 of the record which grants a transcript is the beginning and indeed the heart of this process which is challenged by my opponent.

He says, “Instead of getting only a transcript, I should've gotten forma pauperis which allowed me immediately to proceed to the in rem result of oral argument” and that which he did not want to have his case reviewed in the light of the transcript.

He wanted and instead to go into a posture where the implicit order of forma pauperis would put him in a position, put it in a route where it might not be looked at any further until the turn -- time of oral argument and he wanted his case in that position where it would not be looked at any further until the time of oral argument.

One other fact, I think, is significant about this order on page 34 that appears on its face, the final disposition in this case was a split decision of three judges in the sense that Judge Bazelon did note his dissent, no opinion but he noted this dissent.

The same panel that ultimately decided this case had entered this order.

This order which is at the heart of the process here in question is a unanimous order.

There is no dissent.

Chief Justice Earl Warren: How did you get another panel to decide that?

As I understand it, there was a split decision on whether he was entitled to appeal?

Mr. Carl W. Belcher: In forma pauperis?

Chief Justice Earl Warren: Yes, and then you say there was another panel to that?

Mr. Carl W. Belcher: No, I'm speaking about the same panel which had acted at this earlier stage.

At later stage, there was a split but at the earlier stage --

Chief Justice Earl Warren: Yes.

Mr. Carl W. Belcher: -- which is the heart of the screening review -- transcript review process.

Chief Justice Earl Warren: Yes, I see.

Mr. Carl W. Belcher: This was a unanimous panel and there was no split decision.

Justice Felix Frankfurter: Is there -- is there any light you would know as to whether, after they pass on motion in rem it comes to the final decree or judgment, the final judgment.

The judge who would vote -- who had voted to grant the petition to take the appeal just acquiescence in the judgment when the note is -- is (Inaudible) judgment.

I'm asking what they practice.

Mr. Carl W. Belcher: The practice is that they can do either two things.

Simply note --

Justice Felix Frankfurter: Not can't -- not what they can do.

I want to know what in fact is being done in this district.

Mr. Carl W. Belcher: In fact, they are doing it two ways.

They simply note their dissent or they are at liberty to.

And it's not unusual that there is a printed opinion at -- in the nature of a dissent which is attached to such an order.

Justice Felix Frankfurter: Yes, but my next -- my question is, when it comes to the formal final judgment that Judge Bazelon note that he dissented in the formal decree, in the formal judgment which is the judicial (Inaudible) of the review.

Mr. Carl W. Belcher: He does.

He does note his dissent at that time --

Justice Felix Frankfurter: That time, he doesn't (Inaudible), is that it?

Mr. Carl W. Belcher: Well, in this particular case, he did but not always, does he?

Justice Felix Frankfurter: I thought it's just --

Mr. Carl W. Belcher: In this particular case, that he did.

Justice Felix Frankfurter: I guess I'm confusing you by my obscurity.

I thought you've told us that he noted his dissent in the denial from the motion to grant -- to take the appeal.

He would have granted the motion.

Mr. Carl W. Belcher: That is correct.

Justice Felix Frankfurter: I thought you told us when it came to the entry of the judgment on that disposition, he did not.

Mr. Carl W. Belcher: He did.

At the entry of judgment, he did not -- had not at this earlier stage when the transcript was granted.

In other words, Judge Bazelon was in agreement with the process which is here in question.

He agreed to it.

He did not dissent from that process -- the process being a transcript review process.

He agreed that this case was a case of such nature and such facts.

The issue was raised where such that it indeed should go to a screening consideration by the Court based on the transcript itself.

Justice Felix Frankfurter: Oh, well, I misunderstood.

Mr. Carl W. Belcher: He did agree to that.

Justice Felix Frankfurter: (Inaudible)

Mr. Carl W. Belcher: He did agree.

Chief Justice Earl Warren: Mr. Belcher, I was wondering if in this case instead of -- of denying the appeal they had -- had granted it would the same panel automatically hear the appeal or -- or would have then go on some other calendars subject to -- to assignment to -- to any panel.

Mr. Carl W. Belcher: It would go on the oral argument calendar and that would be to reassign it to entirely new panel depending on the judges assigned at the given time.

Chief Justice Earl Warren: So the work that had been done between counsel and the -- and the Court on this special proceeding would probably be of no avail because it would go to another conference and he would have to -- counsel would have to write briefs and and argue again to the -- to the Court.

Mr. Carl W. Belcher: Well, the record is certainly there, and any illumination of the issues, the question on authority, all of that would be there in the record and would be useful, I'm sure, for the Court to have regardless to the fact that they -- one or all of the judges in the case were new, the case would be epitomized in such a way that a judge could understand it in a ready fashion.

Chief Justice Earl Warren: Well, is epitomized the same as any other appeal then, wouldn't it be?

Mr. Carl W. Belcher: Well, the basic spade work would have been done by this process.

In the regular appeal coming on for not having gone through this process, the spade work would have to be done initially.

Chief Justice Earl Warren: Oh I see.

But so far as the time and the court is concerned and the (Inaudible) of the court, it would be just as costly to the Government to have this appeal after this hearing as it would in an ordinary case.

Mr. Carl W. Belcher: In terms of dollars and cents, the money -- the bulk of the money as was suggested earlier has been spent because that's involved in the preparation of the court reporter's transcript.

But what is not considered in that evaluation is the time of the court, the time, for instance, of the oral argument such as we're having here, the matter that you do have court-appointed counsel, and you do have to give at least some differences to having them available for oral argument. The system here is based upon a -- chambers -- in chamber's consideration of things which can be efficiently organized and the cases can be considered in a -- in a way which is more susceptible to handling the volume of petitions in cases which they do have in the District of Columbia.

Justice Potter Stewart: The very point that Mr. Bazelon makes is that you don't have this (Inaudible) efficient streamline procedure in the case of appellants who can afford to pay the fee.

Mr. Carl W. Belcher: The difference is, in the nature of cases and it's in the nature of a judicial decision based on those cases.

Some of the indigent cases that Mr. Boskey talks about don't go through this process.

It depends upon the nature of the issues which are raised and the appraisal of those issues by the judges.

The judges seeing some issues and say that they're not dependent on transcript and they -- they may not probably be shown frivolous on -- on the basis of transcript and immediately set over for the oral argument calendar in passing that way.

In other cases, the court looking at the issues based upon the advocacy of counsel can say that these issues look as if they may well be disposed off in -- in the reading of the transcript and it's on the basis of a judicial decision in a particular case as to what the probabilities are as to a need for oral argument and a need for consideration of the case through counsel's oral -- orally arguing the case that a decision --

Unknown Speaker: (Inaudible)

Mr. Carl W. Belcher: -- is made.

That's correct.

That's exactly the system.

The only thing in this -- well, that -- that's correct.

I'll stop there.

Chief Justice Earl Warren: Then if they take -- if they come to this Court on -- on certiorari, what is open to us to decide?

Mr. Carl W. Belcher: The full case is open, Your Honor, because from here -- have only gone part way in this process, from here on in, it's based on the transcript that counsel does take an advocate's view, the Government takes a contrary view and the decision is made which is exactly the same decision as this Court or the Court of Appeals or any court makes when it passes on motion to affirm, dismiss, or to reverse or any kind of summary motion, all of which are provided for in -- in this Court's rules and in every court's rules.

Chief Justice Earl Warren: And they write -- write opinions in these matters?

Mr. Carl W. Belcher: They on occasion do write very likely opinions in forma pauperis cases.

Chief Justice Earl Warren: Normally?

Mr. Carl W. Belcher: In a normal case, it's certainly not as great a volume of opinions in this type of work as there are in the other kind of work.

The issues are different.

Chief Justice Earl Warren: Can this Court know all of the issues that this Court has passed on and -- and how they have passed on?

Mr. Carl W. Belcher: It can indeed.

It can know because counsel and the Government by the adversary process have come to grips on each of these issues in a way which is as meaningful as any case whether it was orally argued or not, because if a case is orally argued in the Court of Appeals, there's no court reporter present.

It's not taken down in the stenographic fashion.

It does not add to an understanding of the record.

Each and every court has to come back and look at the record, the same type of record which is here in this case.

What the position of the advocates was in the court and what the decision was in the court in response to those.

And this record is a meaningful record in that sense.

counsel for the Government came back in response to the order of the court, which as I have suggested, was in a nature of a show cause processes and did attempt to show cause in two pages while these issues in this particular case based upon the transcript of proceedings which everyone had before them were not issues of a substantial merit, that the record transcript of proceedings had indeed cast a new light on them as counsel have previously forecasted it might.

And in response to the Government's two pages, Mr. Boskey came back himself and said in a document, which begins on page 40 and goes for some 23 pages in this printed record and on these printed pages, what his issues were, how he took a different view of this transcript.

Now, for my purposes I must point out that on record page 40 is this concession that I appointed to, because my opponent has referred to it several times and he says on record page 40, these last document filed, accordingly the documents are now at hand for an adjudication of this appeal on it's merits in the same manner as if petitioner were an appellant not indigent.

He asked for this summary process in these terms and repeated in later phrase (Inaudible) later time.

Justice John M. Harlan: Where is that?

Mr. Carl W. Belcher: Record page 40, near the bottom.

Chief Justice Earl Warren: Mr. Belcher, I'm afraid we've taking too much time on procedure.

I wonder – I wonder if you could get now or soon through the questions to whether -- whether this Aaren -- the issue on the Aaren testimony is frivolous or not.

Mr. Carl W. Belcher: Yes, Your Honor.

I'll be glad to come to that issue immediately.

The Artis' testimony in the first trial was sworn testimony and it was taken under oath.

Artis was physically unable to appear in the second trial.

At the second trial, counsel took a position --

Chief Justice Earl Warren: What was the reason for it?

Was he mentally incapacited -- incapacitated he had a deteriorated --

Mr. Carl W. Belcher: He was certainly physically incapacitated and the – the jury was told that his medical history did show the mental picture also.

The jury was told that fact in connection with the presentation of this argument.

Chief Justice Earl Warren: Was he schizophrenic?

Mr. Carl W. Belcher: Schizophrenic condition.

Now, the counsel's position at the trial level was I believe different than it is here.

At the trial level, he did not want Artis' testimony to come in at all.

And as I understand him now, he -- he's not making the same argument.

He's not saying that Artis' first testimony should not come in because of its merits or demerits.

They say in perhaps in a total record of the case, considering many and factors that they should not come in, but that's not the argument he advanced in -- in the trial.

The trial was he said is a pure and simple direct proposition of law.

Artis' testimony should not come in because I don't have the opportunity of giving it the second go around cross-examination and the District Court says, “The cases are against you” and indeed they are.

The Mattox case in this Court is directly against that proposition and counsel doesn't really argue against the Mattox case at this time.

Now, the second reason which was offered in a trial level for rejection of Artis' testimony was the fact that this document, which I have in my hand and which on record page 22, was now in counsel's position.

And it's signed twice as counsel said by Artis.

Now, the proposition advanced at the trial level, as distinct from here, was that because of this document, Artis' sworn testimony at first trail should not come in, the earlier testimony should not come in.

As I understand his argument now, his main argument is to the effect well, the first trial testimony should come in but this document also come in.

Chief Justice Earl Warren: But he did offer that document?

Mr. Carl W. Belcher: He offered this document in this way, he said to the Court, “I have here a document which is signed by Artis” and the Court in effect said, “Where did you get it?”

And he said, “Well, I'm not sure how I got it.

I've found it in the records and files which I got from one of the several attorneys which had represented this petitioner on an earlier trial -- in the earlier trial, or earlier proceedings, but I don't know which file it was.

I don't know which attorney gave it to me, but I have found it here.”

Now, this was about the sum and total of the statements made by counsel.

Now the -- the initial decision by Judge Holtzoff was to the effect that, “Well, if it's written up in Artis' handwriting and if it is a valid document and all, I'll let them both go in, I'll let the sworn testimony before the jury in the first trial.

I'll let your document go in to the evidence also.”

But, later on, Judge Holtzoff, in actually looking at the document, found that it was -- number one and that no continuity was shown for the document.

It just suddenly appeared, so to speak.

Some question but at least it could have perhaps been shown whether Artis signed it or not, but it's not a dated document.

No tab appears on it.

It could well have been, we suggest, and have in our brief, that this document was signed by Artis before Artis' trial in the first testimony in the first trial, so that his testimony represents the latest and the best.

And if it were indeed in the files of one of the other counsel's, it perhaps could have been used if they had saw fit to do so to impeach and discredit Artis in the first trial.

Justice Charles E. Whittaker: (Inaudible) as a matter of law, that kind of a statement would be admissible.

Mr. Carl W. Belcher: Your Honor, I --

Justice Charles E. Whittaker: I can see how it would be a ground for a motion to continue the case to give an opportunity to take this man's deposition where both sides would have an opportunity to examine it.

But could it be, assuming even that it's later than his original testimony on the first trial, could it be competent as a matter of law?

Mr. Carl W. Belcher: That's exactly the position that the Government takes here, that under no circumstances could it be admitted and this is a -- the impediment in the argument of counsel.

He relies on the dissent in the Mattox case and the Mattox case says that it has to be a valid and proper document and this doesn't qualify even under the dissent because --

Justice Charles E. Whittaker: -- because if that were competent, then all one would have to do to render incompetent, prior trial testimony would be to get a statement of the witness (Inaudible)

Mr. Carl W. Belcher: That's exactly right, Your Honor and that's a -- basic position of the Government that this document ought to have something to back it up, something to support this thing.

So that the mere fact that a signature appears on something that's not even holographic, it doesn't entitle to weight -- actually a weight given to such documents or not.

The Will case, the mere fact of signature, for instance, does not qualify it on the Federal shop book rule.

It doesn't qualify under any system that I know for the admission of evidence.

So that the document as such is -- is first of, not admissible on its own weight, but even if it is admissible on its own weight, it certainly doesn't have end run result that counsel contended for in the trial court as distinct from here, which his contention be to exclude the sworn testimony of Artis in the first trial.

Even if it goes to the first, it doesn't go to the second and the second and latter which was the barring of Artis' testimony in the first trial was what counsel sought in the first trial.

And that matter was disclosed by the transcript of proceedings and as I say, this is an example in support of the transcript review process which is the main issue I think in this case, a look at the transcript of proceedings and not a very hard look.

It doesn't take very long to ascertain the fact that counsel, when he said to the Court, number one, he want to put up -- to exclude Artis' sworn testimony in the first trial, but counsel immediately at the -- almost the outset of his introduction, he said to the court, “I can't vouch for this document or in effect said that I can't vouch for it because I don't know where it came from.

I don't know how I got it.

I just -- I can't say anything about it except that it's here and scrolled on it in two places are -- what appears to be or at least what might be the signature of Artis.”

Now, those matters appeared from almost a cursory reading from the transcript of proceedings.

And this, I think, is a point and a strong point that does support this preliminary screening by a look at the transcript and that's the system or the process or the -- the way in which the Court of Appeals for the District of Columbia does attempt to handle its volume of cases.

Justice John M. Harlan: Going back to your first position, is this the fair statement of what it is that -- we should look at this as if the Court of Appeals at the final submission of this matter on the briefs had said, “Motion for leave to appeal in forma pauperis granted in view of the extensive briefing that this case has received we find that oral argument as unnecessary and therefore the case need be docketed, the appeal is dismissed or the appeal is affirmed.”

Mr. Carl W. Belcher: That's exactly right Your Honor.

Justice John M. Harlan: That's the essence?

Mr. Carl W. Belcher: That's exactly the essence of it and one may wonder or why isn't the order of the Court of Appeals, as Your Honor phrased it, rather than being in terms of a “denial of forma pauperis.”

Justice Felix Frankfurter: Well, now I suppose -- suppose now on suppose this is sent back, suppose Mr. Boskey prevailed and sent back to the Court of Appeals and that for all I know, (Inaudible) may have taken down Mr. Justice Harlan question which he just put to you as a part of elucidation, I'd better assume that the judges of the Court of Appeals as they unlikely read, when I say (Inaudible) and say, “Well, let's wait to deal with it in the future”, and the only remedy open to this Court would be say -- would be to say that Court of Appeals is evasive about that.

And they must have a full dress further argument, further briefs (Inaudible) etcetera, unlike what this Court does in dealing with ICC and other cases on jurisdictional statement and disposing of it on the jurisdictional statement, is that right?

Did I make a correct analysis of what is likely to happen, or it may happen I mean?

Mr. Carl W. Belcher: Your Honor, I think what is likely to happen upon seeing the --

Justice Felix Frankfurter: It's all on the assumption, all in the assumption that I followed what you've said, that you say in effect, yes to the question that Justice Harlan put you --

Mr. Carl W. Belcher: Your Honor, I --

Justice Felix Frankfurter: -- namely, that the Court of Appeals had in fact canvassed this ground and in taking this formula disposable.

Mr. Carl W. Belcher: Your Honor, I think the result of -- the knowledge of this question would be that -- it would be said that the problem is being understood because the Court of Appeals in endeavoring to give weight to this statute of Congress, Section 1950 has felt that it must -- in giving weight to that statute and yet following the Ellis case and earlier cases, later cases, merged those two propositions together so that the order which it enters is in terms of the denial forma pauperis, rather that summary affirm or summery reversal as counsel asked for in this case.

It's -- it's the middle ground and it's caused and compelled by the statute.

Justice Felix Frankfurter: But you indicated early in your argument that the Court of Appeals has been responsive to this Court's opinion in Ellis.

Mr. Carl W. Belcher: It has indeed.

Justice Felix Frankfurter: Therefore, I wish you would tell us, what if -- what its conception was before Ellis and what you concede to be its conception now after Ellis?

Mr. Carl W. Belcher: If Your Honor please, the problem that Ellis was presenting was whether or not clearly frivolous would have the affect of -- of clogging its calendars, putting such burden on it that it could not handle it.

This system that we've been discussing is the response to Ellis.

Thank you, Your Honor.

Chief Justice Earl Warren: I'd like -- I'd like to ask one more -- one more question Mr. Belcher.

I'm interested in – in this Aaren's testimony to this extent.

The -- the authority that the prosecution has to read the testimony of witness at a former -- former trial is an exception to the general -- general rule, and I just wonder if there are no circumstances, where there is no way of testing the credibility of the witness at the second trial, if counsel didn't have a right to have the judge, who was the same judge trying the -- the second case to insert in the record the same comments concerning the credibility of the witness that he made at the first trial.

Now at the first trial, Judge Holtzoff said that, he called it very confusing so forth and then he ended up saying that no jury or no judge would convict any man on the testimony of Aaren and in the second trial, we have just a testimony of Aaren but no such comment by the judge and no opportunity on the part of the defendant to attack the credibility of Aaren.

Do you think that it's frivolous for -- for a defendant to insist on a review that question?

Mr. Carl W. Belcher: Your Honor insofar as the -- the question deemed simply with the statements of the judge, I point that in this case the -- the best thing that counsel could hope for or would want in this direction would be the cross-examination of Artis in the first trial because this is the rock bottom of the foundation from which the -- the judge's statement flowed and if there are proper statements, then the same response would flow from any reading or hearing of that testimony.

Chief Justice Earl Warren: But Mr. Belcher --

Mr. Carl W. Belcher: And -- and in that cross examination --

Chief Justice Earl Warren: Yes -- we'll, you go ahead finish please --

Mr. Carl W. Belcher: Now that cross-examination did come in, the jury heard it linked, all of it.

Chief Justice Earl Warren: Yes.

Mr. Carl W. Belcher: So that I would say that, if the -- if the remark is something that should be told to the jury, the jury would have had the exactly the same reaction from having heard the testimony itself, the cross-examination, and it did in the prosecution.

Chief Justice Earl Warren: But -- but Mr. Belcher, the judge have the right to view the witness on the stand.

He did view the witness on the stand saw the manner in which he testified, his attitude, and so forth and having seen that, he -- he said to the jury in that first case, that no jury or no judge would ever convict a man on the testimony of -- of this fellow.

Now, it may not -- if -- his -- his judgments might not have been formed by the precise words that the man used in answering the questions, it might have been used by his demeanor or his attitude and the various other things that can come into consideration, none of which, none of which the defendant could probe on the second trial and here you have a man who -- who has deteriorated since the first trial to such an extent that he's in a mental -- mental hospital and do you think it frivolous for the defendant to raise that on his appeal?

Mr. Carl W. Belcher: Your Honor, I do think it's frivolous and my reasons and I concede, Your Honor, does have a very valid point that coming from the judge or at least someone who has seen the personal appearance of the witness does make a difference, but they have both here.

On page 39 -- 139 of this record, is the trans -- is a testimony and statements of one who did see this witness testify and the person -- the witness who testified before the jury and described it is the attorney for this petitioner in the first trial.

The attorney's name is Mr. Deats, Mr. Deats is testifying and he goes at some length to describe what type of witness, and what type of the individual Artis was.

Now --

Chief Justice Earl Warren: He is an attorney for the defendant?

Mr. Carl W. Belcher: Attorney for this defendant as I recall in the first -- first trial, but he's testimony only goes to the -- to the effect of what type of witness Artis was.

What is his personal appearance was?

And Mr. Deats goes at some length that he -- he certainly crystallizes it on page 139, and Justice Clearway as clear way as Judge Holtzoff did in the first trial and Mr. Deats' crystallization is this, “I couldn't honestly say that I believed Artis -- I wouldn't believe Artis under any circumstances.”

Now that --

Chief Justice Earl Warren: But he's the attorney for the defendant?

Mr. Carl W. Belcher: He -- he is the attorney --

Chief Justice Earl Warren: You can hardly -- you can hardly equate that to -- to an observation by the judge, could you?

Mr. Carl W. Belcher: Your Honor the observation for the judge comes in which supports this proposition, I think, is the equivalent, it's not the same, but it's the equivalent, when the judge and the -- and instruction to the jury in the second trial says that all accomplices, and Artis is one, “You should scream with care and caution.”

And when a judge in instructing the jury this is not comment -- as correlate (Inaudible) amongst other facts and matters that occurred during the course of trial, this is the supreme moment, as far as the jury is concerned here in the judge and when in that moment, and the judges -- the court -- the jury rather in all of them are giving all of their attention to the judge and the judge says, “A fellow like Artis who is an accomplice, you should look out with care and caution.”

Chief Justice Earl Warren: But he also follows that with another instruction which is peculiar -- somewhat peculiar to the District of Columbia in which he says that they may if they believe the accomplices convicted defendant without any corroboration whatsoever.

Mr. Carl W. Belcher: Your Honor, he certainly does follow it.

I -- I would only take exception with the word “peculiar” because I think counsel in arguing that point in his brief points out in a footnote that each and every numbered Circuit, and he goes to Circuit number one, Second Circuit, Third Circuit and right on down through the Tenth Circuit, as I'm understanding from he's own footnote and in petitioner's own brief, is to the effect that every Circuit comes to the same conclusion.

The judge certainly followed with the comment, the only thing I can say is that every Circuit without exception as I know is following that -- that situation.

Chief Justice Earl Warren: Very well.

Mr. Boskey.

Argument of Bennett Boskey

Mr. Bennett Boskey: Mr. Chief Justice to take the last point first, this Court many times has commented on the difficulty of seeing something from a cold record.

Now, in a criminal case, when you read the cold testimony from a prior trial to the jury, all those difficulties are present.

This judge had been present in the courtroom.

This judge had seen the demeanor of the witness.

This judge had formed an impression very unfavorable to the witness and that -- that it's highly prejudicial to this petitioner that the judge's impression not be given to the jury if this testimony was to be admitted at all.

Justice Charles E. Whittaker: Let's see if I understand, is that to say that a judge who was trying a case the second time is under a duty when testimony of the witness is being read on the second trial, is under a duty to give to the jury his impression of the witness who had testified in the former trial?

Mr. Bennett Boskey: Mr. Justice Whittaker, it depends, I think, on the circumstances of the case.

In this case, where the judge was the same, where safeguards were essential to protect the right of confrontation, where the hallmarks of lying was so apparent and untrustworthy, where the judge had formed such a fixed impression from the first trial, he fell short of his duty and not condemning that impression to the jury.

Now, it's conceivable than onto other circumstances, in other cases where these facts aren't present, one might reach a different result.

But that isn't this case.

This is a most compelling case.

Justice Felix Frankfurter: Mr. Boskey the rule that invoke quite rightly that it's one thing to have trial, a like trial, it's another thing to get it and see to cover this subject, brown paper book, that's (Inaudible) because what -- what it amounts to is very often -- because I'm concerned in the criminal fields in most of time, things have blown up all out of perspective in relation to the live proceeding, concentrated, and give the significance and color and eloquence, and form, that this entitles him to undercut everything else to (Inaudible).

Mr. Bennett Boskey: Well, Mr. Justice Frankfurter, I'm not answerable for what happens in other criminal proceeding --

Justice Felix Frankfurter: I know your not, but this case.

Mr. Bennett Boskey: -- and other criminal fields.

This is not such a case and the burden of my argument has been that this is not such a case.

Mr. Justice --

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: One -- one of them he did not make to the jury.

Mr. Belcher, I think too willingly exceeded to Chief Justice's statement on that point.

The one in which he said at the first trial, “I wouldn't send, no judge would send this man to the penitentiary on the basis this testimony was not the statement made to the jury.”

The statement he made to the jury at the first trial was that the witness was confused on the witness stand.

Neither statement would he make the jury in this trial even though expressly by counsel and even though in this far the specific said references of the transcript of the first trial where he had made the remarks were brought to his attention.

There was nothing inadvertent about this.

It was expressly brought to his attention.

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: Yes.

Chief Justice Earl Warren: When was the other statement made, Mr. Boskey?

Mr. Bennett Boskey: It was made in a --

Chief Justice Earl Warren: In what connection?

Mr. Bennett Boskey: It was made in connection with a colloquy with counsel when I think the judge was trying to speed up the trial of the first case a little.

He thought it was going slowly and he was trying to find out how much the Government was really going to rely on in Artis' testimony in the first trial.

Chief Justice Earl Warren: It was going in the course of the trial?

Mr. Bennett Boskey: Oh yes.

Chief Justice Earl Warren: -- the statement of counsel?

Mr. Bennett Boskey: In the course of the trial after he have heard the witness.

Chief Justice Earl Warren: Yes.

Mr. Bennett Boskey: Because he was trying to move the trial on and it's in the record, there isn't any question that he said.

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: The other within his instruction to the jury at the case trial.

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: How much leeway do you think it's proper for us or perhaps is unwise -- I don't regard those judge as my model of (Inaudible), even an unwise judge telling the jury his impression so long as he doesn't confine them or encourage them.

Mr. Bennett Boskey: I think a considerable leeway and I think also --

Justice Felix Frankfurter: We and the federal courts, I know what state rule is.

Mr. Bennett Boskey: I think a considerable leeway that in the circumstances in this case, he had a very special kind problem that doesn't arise very often about the unavailable witness.

So he -- he personally knew he is not a good witness.

And he didn't do a thing to protect the defendant's rights here even tough repeatedly asked.

Oh I see my time has expired.

Chief Justice Earl Warren: Do you have -- do you have one more statement to make that to -- to --

Mr. Bennett Boskey: I have one more thing I did want to say.

Chief Justice Earl Warren: You may -- you may raise --

Mr. Bennett Boskey: The point question was raise, I think, during Mr. Belcher's argument concerning whether all these are questions of local law and I would say in response for that that most of them are not questions of local law at all.

If you look at the table of contents of this brief, you'll see that the grand jury points are not points of the local law at all.

The evidence points are largely points not of local law with some, I would admit, had mixture of local law.

But at the same time, they stem out of decisions of this Court, which I think have gotten the law of -- on the wrong track.

The Mattox -- old Mattox's decision in 156 U.S. which Mr. Belcher I think in response to Justice Whittaker's decision said the Government supports that decision.

The fact is the Government doesn't say a word in its brief in support of that decision.

And if that's the Government position, it hasn't given the Court the slightest help on why there's any rationality on that.

And in my brief, I said that the dissent of the Mattox case is correct.

I say that furthermore that the Uniform Rules of Evidence bears out on that the -- which had been approved by the National Conference and Commissioners on Uniform State Laws by the American Bar Association and by the American Law Institute.

And specifically Mr. Justice Whittaker, in answer to the question you have raised, why under what circumstances this document could have been admissible anyway.

Rule 65 of the Uniform Rules of Evidence cited in reply brief is clear and explicit.

It's dealing with exceptions to the hearsay rule and first trial testimony is such an exception.

And it says, “Evidence of the statements or other conduct by a declarant inconsistent, with a statement received in that evidence under exception to Rule 63, is admissible for the purpose of discrediting the declarant though he had no opportunity to deny or explain such inconsistent statement” and it says this is the modern rule in the comment accompanied.

Justice Charles E. Whittaker: Do you think that's applicable to this situation for (Inaudible) simply ex parte, awkward for receiving evidence a signed statement to impeach the testimony given in a former trial?

Mr. Bennett Boskey: I think it is clearly applicable that if they wanted to go ahead with the FBI check of the handwriting, counsel give them every opportunity to had any other effort in one -- have wanted to make any other effort to check the source of the statement it could easily have been done, but that was cut off because four times, Judge Holtzoff said, “I won't admit it.”

Justice John M. Harlan: I'd like to ask you one more question if I may Mr. Chief Justice's permission?

Chief Justice Earl Warren: You may.

Justice John M. Harlan: Assuming you have been advised by the Court of Appeals that they were treating this application in a way the Government says that they affect (Inaudible), apart from any protest that you might have had that you are being deprived with that course of procedure of oral argument, was there anything more that you would have wished to submit to the Court of Appeals in the way of briefs or authorities than what you had submitted?

Mr. Bennett Boskey: Yes, I would have wanted to submit an argument more on the merits on the grand jury point where I have said in my memorandum several times that it was clear, I had a substantial question that the development of it could have wait the argument on the merits and the briefs on the merit.

Justice John M. Harlan: That was stated in your memorandum?

Mr. Bennett Boskey: Yes and there were the things I would have wanted to do.

Mr. Belcher said counsel had come to grips on all the points.

The Government never dealt with two of these points in the Court of Appeals.

The corroboration point came up afterwards.

It was in my memorandum to which the Government never filed a reply.

The Government and the Court of Appeals never dealt with the point relating to views or comments by the prosecutor.

Chief Justice Earl Warren: Mr. Boskey, may -- may I ask you and just to briefly recapitulate, if you will, the things that a defendant in the position of your petitioner here has been deprived of by reason of the fact that he didn't have a -- an appeal granted to him.

Mr. Bennett Boskey: I shall be glad to, Mr. Chief Justice.

First, he's been deprived of an opportunity to designate a record which would be on orderly record on appeal.

You can't do that until you get an order allowing you to appeal in forma pauperis because the District Court won't receive your designation and send the record up to the Court of Appeals.

Now, does that matter or doesn't?

There are some cases where you have a very simple record, it won't matter.

The Government says in the footnote what doesn't matter because the Court of Appeals goes and gets the record anyway.

Well, I've seen some of the records they get, I don't what they do with them, but there are bundles of papers.

They are full of subpoenas and other irrelevant documents.

There's been no effort made at that stage to sort them out, designate them, and put before the Court of Appeals where they ought to be there, that's just the beginning.

Second, we were deprived, as we made clear of the full briefing on the merits.

Now, it's true there are two preliminary memorandums here, neither was to be conclusive, neither involves the development of these points as they should have been developed in the full brief on the merits, although steps were made in that direction.

I might say, if counsels feel that they are under a burden to write full brief at a preliminary stage it seems to me a very difficult burden to impose on counsels and directly contrary to what Ellis says which is the no preliminary showing of merits required.

Third, we were deprived of full oral argument in the Court of Appeals and in fact we were deprived all oral argument in the Court of Appeals.

This motion, as I think it's now become quite customary in the Court of Appeals, was not put on the argument calendar.

So we never had our argument on the Court of Appeals.

We never came to grips with the judges who were passing on the case.

We didn't know how they where looking at the documents.

What was on their minds?

What kind of a case we can make to it?

Fourth, we were deprived an adjudication on the merits in the Court of Appeals.

We don't know what the Court of Appeals decided.

We don't know what they considered.

We don't how they considered it.

We don't know whether they considered it in concert or singling.

That is not the treatment which have (Inaudible) appeal gets in the Court of Appeals, and that's what we are entitled to.

So that if after all of that and we had that kind of treatment on the merits, we then wanted to file a petition for certiorari.

This Court then wouldn't have had any difficulty knowing what the Court of Appeals had and hadn't done.

Chief Justice Earl Warren: Thank you.