HODGES v. UNITED STATES

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Argument of Quinn O'connell

Chief Justice Earl Warren: John E. Hodges, Petitioner, versus United States.

Mr. O'Connell.

Mr. Quinn O'connell: Mr. Chief Justice, may it please the Court.

This case is before the Court on a writ of certiorari to the United States Court of Appeals from the District of Columbia Circuit.

It poses the question of whether a person who has been convicted in a federal court and who has failed to file a timely appeal because he neither knew nor was advised of his appellate rights may nevertheless be granted a hearing under Title 28, Section 2255 to determine whether his conviction was invalidly based upon a coerced confession in violation of his constitutional rights.

The pertinent facts, as we see them, are these.

The petitioner --

Justice Felix Frankfurter: Is that the sole question?

Mr. Quinn O'connell: Pardon.

Justice Felix Frankfurter: Is that the sole question?

Is that the sole --

Mr. Quinn O'connell: That is the question that we feel is presented in the case, Your Honor.

The Government has interposed certain other questions, but they have met this particular question.

This was the question that was decided by the Court of Appeals, and this was the question which was presented in the petition for certiorari which was granted.

Justice Felix Frankfurter: Government hasn't denied that this question is raised, does it?

Mr. Quinn O'connell: No, they do not.

Justice Felix Frankfurter: But raise some other questions?

Mr. Quinn O'connell: That's right, Your Honor.

The petitioner John Hodges was tried and convicted of robbery on the basis of the confession which was admitted into evidence over his objection that it was coerced and involuntary.

No appeal was taken from this conviction.

About three months after the time for appeal had expired, the petitioner filed a motion to vacate the sentence under Section 2255 on the ground that the conviction was based upon a coerced confession in violation of his constitutional rights.

The District Court denied the petition.

An appeal was taken from this denial of the District Court.

In the course of this appeal, it was discovered that the reporter's notes for the Section 2255 hearing had been lost.

As a result, the Court ordered the preparation and filing of the trial transcript as a supplemental record on appeal.

Justice John M. Harlan: (Inaudible)

Justice Potter Stewart: Had there been witnesses -- excuse me.

Mr. Quinn O'connell: Pardon me.

Justice John M. Harlan: Do you happen to know whether the hearing before the District Court was an evidentiary hearing or (Inaudible)?

Mr. Quinn O'connell: I -- I do not know because there was no transcript.

The only thing that we have is the District Court's opinion in that matter, where all he said was a hearing was held and the counsel on both sides were present.

What was submitted at that hearing, I have no idea.

Justice Felix Frankfurter: Was there a counsel at the original trial?

Mr. Quinn O'connell: Yes, there was.

There were two counsels.

Justice William O. Douglas: Court-appointed, were they?

Mr. Quinn O'connell: They were not court-appointed, Your Honor.

However, they served on the basis that they knew that the petitioner and his wife had no money and they were serving without fee.

Justice Felix Frankfurter: But were they selected by the defendant?

Mr. Quinn O'connell: They were selected by the defendant's wife and in that sense they were retained, but they will do -- they were serving without -- they knew this at the time when they were selected.

Justice Felix Frankfurter: I believe that's not rare in this country.

Justice John M. Harlan: What was raised?

Mr. Quinn O'connell: The major defense because the major evidence was that this confession was involuntary.

The only evidence that -- upon which this conviction is based is the confession which was introduced in (Inaudible)

Justice Felix Frankfurter: In short, the issue which you're now raising, substantive issue, was canvassed at the original trial?

Mr. Quinn O'connell: That is right, Your Honor.

Justice Felix Frankfurter: When the defendant had the counsel.

Mr. Quinn O'connell: That is right, Your Honor.

But on the basis of this trial transcript, and the appeal from the denial of 2255 hearing, the Court of Appeals assumed, without deciding, that the conviction was based upon a coerced confession, but they held that the -- that this conviction was not subject to collateral attack because of the Supreme Court decisions which constrained the Court to decide in this case.

The collateral attack was not available in a complete absence of any attempt to excuse the failure to appeal.

Now, it became apparent from this -- from this -- the panel's decision that the panel was unaware that the petitioner had attempted to show the Court of Appeals why he had failed to appear because there was no trial transcript to the 2255 hearing which -- at which time evidence might have been presented, which did show why an appeal was not taken.

The petitioner's counsel who has been appointed by the Court of Appeals attempted to supplement the record with the affidavits of the petitioner and of his trial counsel.

He's at --

Justice Felix Frankfurter: I missed if -- I missed if you told us, was there -- were there minutes of the -- of the original trial?

Mr. Quinn O'connell: Yes, there were minutes of the original trial.

Justice Felix Frankfurter: They are now in existence?

Mr. Quinn O'connell: They're in existence and they were prepared and filed in the Court of Appeals on the appeal from the denial of 2255 hearing and the supplemental record on appeal.

Justice Felix Frankfurter: And they're available to us here?

Mr. Quinn O'connell: They're in the -- they're in the transcript --

Justice Felix Frankfurter: They're in the transcript, oh.

Mr. Quinn O'connell: But also, I would like to point out that in the transcript of record on page 15 are the affidavits of the petitioner and the -- an affidavit signed by his two trial counsels which show that -- that the petitioner -- as far as the petitioner was concerned, this was the first arrest of -- that he had other than minor traffic violations, he was not versed of the -- the law that he had no idea that there was a 10-day appeal period and that he was not advised by his counsel of his rights to appeal.

The affidavits of this trial counsel substantiate this.

They say that at the sentencing, since they knew that they weren't receiving no fee or compensation, that the prisoner was taken away after sentencing before they had had a chance to discuss anything with him, but they did advise his wife after the petitioner was gone that they thought he had good grounds for appeal.

And then they felt that their representation was over, and with that, the prisoner went to -- went to prison and was not advised by his wife or anyone else during the critical 10-day period when he could -- could have appealed from his conviction.

Justice Felix Frankfurter: That's not in the -- the last part of your statement is not on the affidavit of counsel, is it as I've quickly, hurriedly (Inaudible)?

Mr. Quinn O'connell: No, that is in the affidavit of the -- of the petitioner that -- do you mean the idea that his wife had not advised him during the 10-day --

Justice Felix Frankfurter: Well, I get from the counsel's affidavit is that they communicated with the wife.

Mr. Quinn O'connell: That's right.

Justice Felix Frankfurter: And advised her but --

Mr. Quinn O'connell: That we strongly --

Justice Felix Frankfurter: -- on how they should prosecute in an appeal.

She indicated that she will discuss it with her husband and suggest that he will request court-appointed counsel.

Mr. Quinn O'connell: That is --

Justice Felix Frankfurter: So they -- they --

Mr. Quinn O'connell: That is what they did say.

They did not talk to the petitioner himself.

It was -- she had -- she had evidently hired him, from what the record shows.

But the petitioner for all practical purposes went to jail and nobody advised him of his rights.

Justice Hugo L. Black: Do you say she had hired them?

Mr. Quinn O'connell: Pardon.

Justice Hugo L. Black: This affidavit said that they -- that represented him without a fee.

Mr. Quinn O'connell: They did -- they obtain his -- his services, the counsel services but at the time that they obtained these services, they told the counsel if they did -- could not afford to pay anything and asked them if they would take the case.

Justice Felix Frankfurter: But that changed -- that changed their professional status?

Mr. Quinn O'connell: I don't believe so, but in the light of the Court of Appeal's original decision on -- of the three-judge panel, it became apparent that they were unaware that there had any attempts to excuse the failure to appeal.

And on this basis -- well, first of all, I'd like to point out that these affidavits when they were attempted to -- when we attempted to supplement the record with them, a different panel of the Court of Appeals denied the attempt to supplement the record per curiam.

And the panel that decided the case on the merits was unaware that this attempt had been made, it seemed very apparent.

So, that the petition for rehearing was filed with the Court to point out that these affidavits had been filed and that there -- that the petitioner had attempted to excuse the failure to appeal since that was the basis of the Court's opinion that -- we're trying to bring it to the attention of the Court.

And on -- on the basis of the petition for rehearing, the Court vacated their initial decision and on their motion set the case down for rehearing en banc.

Now the question that they -- that they sought the counsel to discuss, the rehearing en banc was a limited one.

I'd like to read it to you.

It's whether, and so I'm reading this from page 15 of the Government's brief and up -- the respondent's brief, it appears in the record at page 146, 147.

“The question is whether the appellant, either in the affidavits filed in this Court or otherwise, has made such a showing as to entitle him to a hearing in the District Court on the question of whether notwithstanding his failure to appeal directly from the judgment of conviction, he is entitled to a hearing in the District Court, on the right he claims to attack collaterally under 28 U.S.C. Section 2255, the validity of the judgment of conviction on the basis of the admission and evidence of an alleged coerced confession.

Now on the basis of that question and after rehearing, the Court of Appeals affirmed the District Court again with three judges dissenting.

The holding of the majority in that Court I believe is important because I think it does define with precision, the specific issue which should be here under review.

The majority ruled that Section 2255 is simply not available to challenge an unappealed conviction based upon a coerced confession regardless of the reasons for failing to appeal whether excusable or not.

The majority assumed again without deciding that the petitioner's confession was coerced and that his failure to file a timely appeal was excusable.

They said in these circumstances, it makes no difference.

Collateral attack is just not available.

Judge Fahy's opinion which he wrote for the three dissenting judges is also directed to this very same issue, but he couldn't agree that and I quote Judge Fahy, “That the Courts must say to the person imprisoned under a basically invalid sentence that the law affords no remedy because although he did not know and was not advised of his appeal rights, he should have appealed anyway.”

Justice Potter Stewart: I don't quite see how you can tell us that the Court decided that there has been no appeal, there can be no collateral attack ever based on a -- on a claim of a coerced confession because -- I'm referring now to the opinion written by Judge Washington and that's the one to which you are referring, correct?

Mr. Quinn O'connell: That's right, Your Honor.

Justice Potter Stewart: And Judge Washington, I assume, would think that the admission into evidence of a -- of a coerced confession would be the denial of a basic right and yet, he characterizes this case, on page 152, as one where no basic right has been denied.

It's about -- very close to the end of his opinion on page 152 of the record and so, wouldn't -- and that at least indicate that Judge Washington saw this case before him a little bit more the way the Government sees the case --

Mr. Quinn O'connell: What --

Justice Potter Stewart: -- it was in the black and white terms in which you're posing it to us?

Mr. Quinn O'connell: Well, I -- I believe that the reasoning of Judge Washington was that there was no basic right denied here because he had a right to appeal.

Justice Potter Stewart: Well and also didn't -- did he not have a hearing of this whole matter represented by counsel in the --

Mr. Quinn O'connell: Well --

Justice Potter Stewart: -- in the trial court?

You're putting us the case, the raw black and white case of where an admittedly coerced confession was admitted at the trial in a criminal case to convict the defendant.

Now, that obviously would be the denial of a constitutional right and I -- I think we can fairly assume that Judge Washington would appreciate that.

He characterized on the other hand -- he characterized this case as -- as a case where no basic right was denied.

Mr. Quinn O'connell: Well, the -- the -- Judge Washington also referred to Judge Fahy's original opinion which he said that in most respects, he was glad to agree and that opinion was based upon the fact that a coerced confession would -- well, one of the things that was based upon was that it was assumed that there was a coerced confession.

Justice Potter Stewart: One of the -- my difficulties and I think you understand why is because in your briefs, you and the Government just don't seem to agree what the questions are that are involved in this case.

Mr. Quinn O'connell: Well, this is what we say.

We say that he has made a claim of a coerced confession and that this claim is that a basic right has been denied and if that claim is true, it is -- then his conviction is based upon a denial of a constitutional right.

And we say that he is entitled to a hearing on that claim with the subsequent appellate review of any determination at that hearing.

The Court of Appeals, as I read it, say that in this case, whether or not -- we don't have to get into the question whether he's entitled to a hearing on his allegation because here, we've got the trial transcript and there wasn't any coercion.

So, what they are arguing is that -- is that we shouldn't decide whether he's entitled to a hearing because in this case, he'd be unsuccessful anyway.

Well -- what I say is that this is a -- this is not that -- this is a closer question and the Government would admit.

The Government says that just because John Hodges alleges that the confession was coerced, doesn't make it coerced.

But I say --

Justice Potter Stewart: The Government also further points out that this whole issue was -- was -- was tried out at the -- at the original criminal trial when Hodges was represented by a counsel.

And the Court, after hearing all the evidence, decided that this was a -- the question of whether or not the coercion -- the confession was coerced was a matter for the jury to determine, and that Hodges neither now nor any -- at any other time, objected to the instructions under which that issue was submitted to the jury.

Mr. Quinn O'connell: Well, our -- our contention of course is that as a matter of law, the Court erred in submitting this to the jury and that as a matter of law, this is a coerced confession.

This question was presented to the Court -- the Court of Appeals.

Not a single one of the Court of Appeals apparently assumed that the claim was frivolous or they would certainly have -- would seem decided on that ground rather than on a more difficult ground that they don't have authority to grant relief in this case, regardless of whether its on the merit.

He's -- the merit --

Justice Felix Frankfurter: I, too, have the difficulty that my brother Stewart has in understanding what it is really the Court of Appeals has decided.

As you put it, as you stated to us, it would cover a case where there's just one -- which is exactly like the following variant that I put to you namely, that there is no controversy that at the end of the first trial, although as counsel tell a defendant that he may appeal, he said, “No, I want to get through with this thing.”

As you stated, he may change his mind subsequently and raise it on the 2255.

Is that right?

Mr. Quinn O'connell: I believe that anytime that a person has a merit -- a claim of substance that his conviction is based upon the denial of a basic constitutional right, that collateral remedies are available.

Justice Felix Frankfurter: Although, he may forego his appeal on the merits on that question.

Mr. Quinn O'connell: Well, if he has waived his rights.

Justice Felix Frankfurter: But I purposely didn't want to use that word.

Mr. Quinn O'connell: Well, I would -- I would say that in the context of the cases this Court has -- in which this Court has discussed collateral remedy, certainly there are occasions where -- there are exceptional circumstances present which would allow collateral attack even though an appeal was not taken.

We --

Justice Felix Frankfurter: But Judge Washington took care of that situation.

If you will turn to page 150 of the record, Judge Washington said, “But absent a showing of a real miscarriage of justice,” “absent of a showing of a real miscarriage of justice,” so that -- in addition to what's found on page 152, I don't very well see how the opinion of the majority of the Court, it will be as black and white, is the issue that you present in this Court now.

Mr. Quinn O'connell: Well, it's -- it's -- it's our opinion that -- that Judge Washington did assume that even though the confession was coerced that the mere failure of his right to appeal is the area where there was no miscarriage of justice.

Justice Felix Frankfurter: Well, yes that's because he assumed that a man may forego the right to appeal and you say --

Mr. Quinn O'connell: Well --

Justice Felix Frankfurter: I understand it, that's what your position is, you say although there's a clear foregoing of the right to appeal on the merits of an issue that was properly presented to the jury or even the question where that was properly presented to the jury, you can then go over that same round all over again under 2255 in lieu of an appeal.

That's your position, isn't it?

Mr. Quinn O'connell: Well, in -- in this case to limited -- yes, yes.

Justice Felix Frankfurter: But when you say in this case, then you'll introduce all of the elements of this case?

Mr. Quinn O'connell: No, I would say yes, that is our position.

Our position is that it -- well actually, there are -- there's a broad position and a narrower position.

One is that where this claim of a basic right has at -- the conviction is based upon the denial of a basic right is made that absent some of the fact that is frivolous, that he is entitled to a hearing on that claim because that's what sub -- that's what the purpose of collateral remedies are, and this is regardless of whether there's an appeal or not.

This is the same as it would be in -- in many other areas that might be claimed where -- which could have been raised on appeal, but were not raised on appeal.

But later, the Courts have held the collateral attack was -- was available because it was necessary to do substantial justice.

Now, I -- I would say that in this case, if the -- if the Court is going to limit the availability of the writ, that certainly they shouldn't limit it where in -- for all practical purposes, there was no opportunity for a person to appeal.

Now, we get back to the merits of his claim.

Now, it seems to me what the Government seems to argue is that -- well, in some cases, there is -- it's very clear that it's a coerced confession.

And in those cases, surely, we would give collateral -- we would allow collateral remedy and then there are other cases which well, there's just a little maybe a coercion maybe or it's not as clear, but I'm saying, unless it's absolutely frivolous, he's entitled to a judicial determination of whether or not this claim -- his claim that this confession was coerced is true.

It's only a judicial determination of this basic constitutional issue that will -- will offer him any protection.

Justice Felix Frankfurter: I don't know what the Government position is, we'll hear it, but what I'm trying to find out now is precisely what it is we have to adjudicate in this case?

And to me, it makes all the difference in the world between sayings where there was a constitutional claim, duly canvassed at trial, appropriately considered or pursued perhaps erroneously considered for which the remedy is appeal, automatic right as appeal and that automatic right of appeal has been foregone not because of any unfairness in -- to the defendant that the appeal wasn't taking because it wasn't taken with eyes wide open whether in such a situation, you may then go over the same ground instead of an appeal in -- under 2255.

Now, I must -- if that's your position, I understand the position, and I'm clear what it is I have to decide, but once you enter other elements, then you're within Judge Washington's opinion where he talks about absent or showing of a real miscarriage of justice which includes the right to appeal from an adverse finding of the jury.

Chief Justice Earl Warren: Mr. O'Connell, you say in your opinion, he's entitled to a hearing?

What kind of a hearing do you insist that he's entitled to in -- in these situations?

Is he entitled to -- to a -- a hearing based upon the transcript of the evidence taken at the -- at the trial where this matter was litigated or do you insist that he's entitled to a plenary hearing now as to the -- the merits of the -- the confession.

Mr. Quinn O'connell: Well, I think that -- I think that no different rule should apply here than applies when a District Court under 2254 considers the claim that a -- a confession was coerced.

And there, this Court has held that the review of the trial transcript absent any other unusual showing would probably be sufficient for the Court to make that decision.

Actually in this case, the Court -- the case was presented on the basis of the trial transcript.

And so, I would think it's discretionary with the District Court Judge at the time of the hearing as to whether or not to allow additional evidence if there's some proper of additional evidence which he feels maybe appropriate to the decide the question which is the important one of whether this confession is coerced or not, then I will assume that it's within his discretion to allow additional evidence.

In this case, no addition, we're not relying on additional evidence although we don't know whether it was proper at the 2255 hearing since the transcript of that hearing is -- is not available.

And our position really is that, in meeting the Government's, we haven't briefed or -- or -- or we weren't prepared to argue the question of whether or not this trial transcript does show a coerced confession because that question, we haven't thought, was decided by the Court of Appeals.

The Court of Appeals had decided only that he's not entitled to have that question decided in our view.

And we think that the trial transcript does clearly show that this confession was involuntary as the matter of law and that the circumstances surrounding the obtaining of this confession are far more compelling than many of the cases which this Court has decided where they have held that a confession was coerced and a conviction should be set aside because it was based upon that coerced confession.

We don't feel at that -- that question, we don't feel has been passed upon by the Court of Appeals, the merits of the claim.

In our -- in our view, the -- the Court of Appeals has merely held that he is not entitled to have this question heard collaterally.

And we say that this is a stringent rule that -- and I would like get into what we consider the -- the -- the balances which are involved here and which the Court relied upon as opposed to what we would say.

That the important thing, it seems to me, that the majority and the dissent below both seem to in our view agree upon the issue that where there is no direct appeal but a later collateral attack based upon a coerced confession introduced into evidence and even though there's good reason for failure to appeal, the majority says that the availability of the remedy should be denied and the minority said that its certainly should be granted in that -- in that case.

And this is an issue, if we can agree upon the issue, that has never been passed upon by this Court and we think that it is a -- that it is -- this issue is in sharp focus here.

Of course, there's no point in going in to the -- the fact that this -- the Court's decision was regard to coerced confession and their effect upon basic constitutional right.

This has been held time and time again by this Court to be fundamentally -- render the proceedings fundamentally unfair and of mere pretense.

But in order to focus upon the -- this concept of the affect of a coerced confession on a trial, in relation to the availability of collateral remedies, I'd like to discuss very briefly four decisions of this Court which I believe was in the context of these decisions, this case must be decided.

First is in 1939, the Bowen v. Johnson case.

In that case, the Court was determining the scope of habeas corpus.

The -- the Court made this -- the distinctions there between the availability of the writ for -- to review constitutional errors or -- and mere errors of law.

Actually, in that case, it was a technical jurisdictional question which -- and there had been no appeal from the conviction and the question was whether the United States had jurisdiction over certain park lands.

The Court, in that case, held that due to the exceptional circumstances, even though there hadn't been an appeal from the conviction that they would allow him to collaterally attack the conviction on the basis of this technical jurisdictional question.

The Court did then undertake to resolve the issue which the petitioner had claimed all though he -- they resolved it against him, but it was an -- a legal issue that was presented there which the Court did permit the person to -- to raise collaterally even though he had not filed a direct appeal.

And again in Sunal v. Large in 1947, the Court was concerned specifically with the failure to appeal on the right of collateral attack of a conviction and there again, the Court distinguished between error -- an error depriving a person of a constitutional right and a mere error of law, saying that, “That the writ is not designed for collateral review of errors of law committed in a trial court.”

In that case, there had been no appeal from the conviction, but the court had determined that the -- that the defendant deliberately chose not to appeal.

And also, that Court determined that the error that was being charged was not a constitutional proportions.

And for these reasons, the Court denied the right to collateral attack, but the Court also, in dictum, pointed out illustrative instances where the failure to appeal would not bar collateral attack.

And, one of these was specifically mentioned where the trial or sentence by a federal court violated specific constitutional guarantees.

It seems apparent from the reasoning of the Court in Sunal that the remedy of habeas corpus would have been available in that case if the claimed error had been a constitutional proportion despite the failure and in despite that the volunteer -- the deliberate choice that he had failed to appeal.

Now since the Sunal case, this thinking of the Court has become crystallized in the case of Jordan against the United States which was decided by this Court in 1956.

Now, we have relied strongly on Jordan and the Court of Appeals and we rely heavily upon the Jordan decision in this Court because we think that the Jordan case and the Jordan decision is absolutely controlling of the issue that's before this Court.

I'd like to run through that case.

There, the petitioner had been convicted of an attempted robbery.

An appeal was taken from the conviction, but it did not raise the point that he had been deprived of a speedy trial in violation of his constitutional rights.

The -- on appeal, the -- the conviction was affirmed, and certiorari was not sought.

Subsequently, he filed a motion under Section 2255 claiming that his constitutional right had -- to a speedy trial had been denied to him.

The Court of Appeals, it seems to us, consistent with their decision in this Hodges case, ruled that this contention of lack of a speedy trial could not be raised on a 2255 motion, since it could have been but was not raised on appeal.

And certiorari was sought on this precise issue, namely whether a prisoner is entitled to a 2255 hearing, solely on the ground that his conviction was constitutionally invalid because he had been denied a speedy trial despite the fact that he could have, but did not raise the point on appeal.

On the petition for certiorari, the Government argued that this was the type of claim that could only be raised on appeal and that there was not a type of error which could be made the basis for collateral attack.

Justice Charles E. Whittaker: May I ask you sir, has that issue been tried in the trail of the (Inaudible)

Mr. Quinn O'connell: It's in –-

Justice Charles E. Whittaker: (Inaudible)

Mr. Quinn O'connell: It is not -- presumably, it had not.

Presumably, it had not and I would like to get back to that if I might, Mr. Justice Whittaker.

Justice Felix Frankfurter: Well, can't they tell whether it has or hasn't if they've got the minutes?

Mr. Quinn O'connell: Well, I -- I will say that it had not been.

Justice Felix Frankfurter: Alright, (Inaudible)

Mr. Quinn O'connell: The Court, anyway, rejected this argument of the Government and reversed the Court of Appeals per curiam, sent it back to the case -- sent the case back for determination on the merits.

It seems to us in the essentials that these two cases, the Hodges and the Jordan cases are similar and I'll get back to your distinction.

Both petitioners claimed that their convictions were based upon a denial of a constitutional right.

The errors claimed, by both, were correctible on appeal that neither petitioner raised the point on appeal, but both later sought a hearing under Section 2255.

The Court ruled that Jordan was entitled to a hearing, but in the Hodges case, the Court of Appeals ruled that Hodges was not.

Now, it seems to us, actually, that there's -- that the Hodges -- and the Hodges case has a far more compelling reason than the -- in the Jordan case because the -- in Jordan, he offered no reason for his failure to raise his constitutional objection on appeal, whereas in Hodges, he has a reason which for all practical -- from every practical standpoint means that he was denied the opportunity or he had no opportunity to appeal.

It's interesting to -- to note that in the Jordan -- that the Government before the Court of Appeals despite our heavy reliance upon this did not mention the Jordan case.

The Court of Appeals also did not mention it in their decision.

In the present brief, the Government for the first time makes the mention of the Jordan case on page 52 of their brief.

And there, they treat it by simply brushing it aside with the contention that the claim in that case, lack of a speedy trial, “Could be deemed to vitiate the entire trial, and in that sense was truly jurisdictional.”

It seems to us that by this language, the Court appears to be attempting to make a distinction between the seriousness of the constitutional right claimed that have been denied in Jordan and the constitutional right claimed that have been denied in Hodges.

The implication is that while lack of a speedy trial vitiates the trial, the use of a coerced confession does not, but this is completely inconsistent of course with this Court's many pronouncements to the effect that the use of a coerced confession in a trial would -- is sufficient to void the trial.

And actually, the Government itself recognizes elsewhere in the brief that where a confession is in fact coerced that --

Justice Charles E. Whittaker: May I ask you --

Mr. Quinn O'connell: -- it's undeniably just --

Justice Charles E. Whittaker: -- Mr. O'Connell?

Do you contend that he is entitled to multiple determinations of the same issue once before the court and jury on the trial of the case and then again after he has neglected to appeal by a 2255 motion to serve the same office?

Is that what you say?

Mr. Quinn O'connell: Yes, Your Honor.

That is what I say from this point of view, that the Government makes a big point of the fact that here there was a determination at the trial of this particular issue, and that so -- where -- in federal courts, you get one effect at the Court and the effect that they would have to have a rehearing, the same court would have to have a rehearing is so disorderly a process that there's evidently no reason for -- for going into this.

That it would disrupt the orderliness of the administration of criminal law to have the same court rehear the question a second time in order that the appel -- the person who would obtain an appellate review of this basic error.

And we say that this would only be -- this is only available, of course, where there has been such a basic error that it would vitiate the conviction and vitiate the trial where the trial was not fair.

And certainly, if the coerced confess -- if it was a coerced confession that was used to obtain his conviction, that is such a basic error that it would make the trial a mere pretense.

Justice Felix Frankfurter: And if -- if one -- if one accepts that the generality of that proposition, then I think that I, at least, would have great difficulty in that holding, that no matter how solemnly a fellow says, “I going to get through with this business, I don't want an appeal,” he may change his mind five years later because he's being held under unconstitutionally invalid process.

I'm agreeing with the logic of your conclusion if your starting point is right.

Mr. Quinn O'connell: Well, I -- I --

Justice Felix Frankfurter: Or can you say he can do it right away quick, but he can't do it five years later or keep on doing as long as he's in jail?

Mr. Quinn O'connell: Well, certainly 2255 itself provides a successive motions to deny (Voice Overlap) --

Justice Felix Frankfurter: That's what I'm suggesting, that if you're right just -- to keep on just as long as he's confined, is that right?

Mr. Quinn O'connell: Well -- well, he could -- at some later date, if he files a motion under 2255, claiming that his conviction was based upon a constitution deprivation of his rights, well certainly -- unless as -- as the statute says, unless the records and the motion inclusively show there's no merit to this --

Justice Felix Frankfurter: But, I'm assuming it isn't frivolous on the face.

Mr. Quinn O'connell: Yes.

Justice Felix Frankfurter: I'm even assuming that -- I'm even assuming that one has the right to say if he had appealed, there would have been a good chance of a reversal, I'm assuming all that.

What you're saying is although with eyes wide open, that as a matter of right, he could have appealed contemporaneously, he forewent that right and can -- can invoke it two years later, three years later, or five years later, as long as he is incarcerated under a constitutionally infirmed order.

Mr. Quinn O'connell: Oh, the broad position we take is exactly that, Mr. Justice Frankfurter.

But the narrower position we take is that if -- if there -- if there is to be a limitation so that this cannot -- a person cannot, not -- can fail to appeal and then later on raise this issue at any time, that this Court may wish to place a limitation as Judge Fahy wanted to place a limitation on it to the effect that if there has -- if there is a reasonable excuse, which he would have to show to the Court, for the -- for not appealing from the conviction, then that -- if he is justified in not appealing, and this is such an exceptional circumstance as the Court mentioned in Bowen v. Johnson that in those circumstances, the collateral remedy would be available to him.

Justice Felix Frankfurter: But that's what I read Judge Washington to have written. He says in the absence of a miscarriage of justice, which I undertake to mean, that he was first of all he was forbidden to talk with his lawyer, and he was an ignorant man or an uninformed man and he didn't know he had a right of appeal or he was told by the attorney that he didn't have a right of appeal or he was in physical or psychological circumstances so that he didn't take in the situation, that's what I would say is covered by miscarriage of justice.

Mr. Quinn O'connell: Well --

Justice Felix Frankfurter: Now, that's a very different thing from saying that when the record shows that there was a right of appeal, of course, the record doesn't show that, that's the law, and that due communication was made of this right and recommendation was made to the wife of the defendant who had hired him because fee or no fee seems to me immaterial, wholly immaterial, you said the status of a lawyer whether he accepts the fee or doesn't accept the fee, that's a question of compassion or a whim or whatnot.

If you got circumstances that we have here, then you will say that -- that he has a right to collateral review of what he chose not to review unless some exceptional circumstances have to be shown why he shouldn't have it.

In my view, boot is on the other foot.

Mr. Quinn O'connell: No.

First of all, I'd like to -- I'd like to say this Mr. Justice Frankfurter that Judge Washington specifically stated that his opinion was based upon he says, “Assuming arguendo that this constituted excusable neglect.”

He assumed that this was a justifiable reason for not appealing, that's at page 151 of the record, but what he did was strangely enough, it seems to us, was to rely upon this Court‘s decision in Robinson against the United States -- United States against Robinson where the Court was faced with the problem of whether the 10-day appeal period was jurisdictional or not.

And the Court here decided that it was jurisdictional and after the 10-day period was a -- for appeal had -- had expired that his person's rights for an appeal were absolutely foreclosed, but --

Justice Hugo L. Black: May I ask you of what you've just said?

Mr. Quinn O'connell: Yes.

Justice Hugo L. Black: -- because I didn't -- the distinction between what Judge Fahy wrote and what Judge Washington wrote.

As I understand Judge Fahy, he accepted the Robinson case with the meaning that you had to appeal within 10 days?

Mr. Quinn O'connell: That's right, Your Honor.

Justice Hugo L. Black: That a right -- the proper way to challenge a wrongful finding on a confession was by an appeal.

Then he went on to say, as I understand it, that here, this man alleged that there were excusable grounds for his not having appealed.

There was a good reason for his not having appealed.

And as I understand Judge Fahy's opinion, he said, “Accepting the fact that a man has barred from challenging his confession in an appellate court by failing to appeal within 10 days, if he showed a good reason why he did not take the appeal,” and he described good reasons in several ways, “Then that justifies him in attacking it collaterally by 2255 proceedings.”

Are you -- do you necessarily have to go beyond that in your argument here?

Mr. Quinn O'connell: No, I do not, Your Honor.

Justice Hugo L. Black: And --

Mr. Quinn O'connell: In other words, once you --

Justice Hugo L. Black: As I understand the other opinion, the Court's opinion, they said, “Without regard or excusable reason, he could not attack it under 2255.”

And as I understand Judge Fahy, his argument was the line at which it relates to a question that Chief Justice asked you, I maybe wrong about it and I'm asking you to explain it and if I'm wrong, that this man was entitled to a hearing on his statement that there was a good reason for his appeal, he should not be held to it.

Therefore, he should be allowed to challenge the sufficiency of the confession in this proceeding since he had been cut off from it because his appeal was not taken when he had good reason for not taking it.

That's what I understood --

Mr. Quinn O'connell: That's exactly --

Justice Hugo L. Black: -- Judge Fahy wanted to have tried out.

Mr. Quinn O'connell: That's exactly what -- what Judge Fahy he said that where -- where there has been a -- there's a justifiable excuse for not appealing coupled with a -- a basic constitutional error that is being claimed on the merits that in those cases, both of those questions, he's entitled to a hearing.

Justice Hugo L. Black: Now, if that is the issue, then it seem to me from the two that the difference between Judge Fahy and Judge Burger, I believe it was Judge Burger.

Mr. Quinn O'connell: Judge Washington.

Chief Justice Earl Warren: Washington.

Justice Hugo L. Black: Washington -- was that Judge Washington said -- assuming that he said here, there is no basic constitutional right has been affected that he was then passing on this record as it was, if -- if that was the case and he would pass on that, I would think maybe it would undercut Judge Fahy's dissent.

Mr. Quinn O'connell: Yes, but I don't -- I don't --

Justice Hugo L. Black: I do not so understand (Voice Overlap) --

Mr. Quinn O'connell: I do not -- I don't understand Judge Washington to have passed on the merits of the -- of the claim at all.

Justice Hugo L. Black: Of -- of the basic claim of a fundamental error in that he was convicted on a --

Mr. Quinn O'connell: That's right.

Justice Hugo L. Black: (Inaudible) do you understand that he looked at the record to see whether or not there had been such a denial on --

Mr. Quinn O'connell: I do --

Justice Hugo L. Black: -- the records on --

Mr. Quinn O'connell: I do not understand that.

It's my -- it's my understanding of the opinion that this -- that that -- that the merits of the -- of the claim were not gone into by the Court of Appeals on the ground that -- that he was not entitled to a hearing on those merits.

Justice Hugo L. Black: I understood that Judge Fahy's opinion -- dissent, based on the premise that one hearing by an appellate court would be enough and that he was not taking a position to be repeated (Inaudible), maybe I'm wrong with that.

Mr. Quinn O'connell: That's right.

That's right.

Justice Hugo L. Black: But that he was saying that he'd only -- he'd only have one hearing, and the reason he only had one was because for a good reason, he had not appealed, so as to follow up the jurisdictional requirements, to have it reviewed on appeal, since that was not the case, there should be a hearing to determine whether that was a good reason.

Mr. Quinn O'connell: Actually, Judge Washington relied upon the Robinson case here to deny the 2255 --

Justice Hugo L. Black: And that was the difference in (Inaudible)

Mr. Quinn O'connell: And he seemed to equate the remedy that is available in -- available on appeal with the remedy that's available on 2255.

Justice Hugo L. Black: That was the dispute between them.

As I understand, once -- Judge Washington seemingly to say that since he was cut off from an appeal, that ended it.

Mr. Quinn O'connell: That's right.

Justice Hugo L. Black: --Judge Fayh took the position with reference to a fundamental error --

Mr. Quinn O'connell: And he has a reason for not appealing.

Justice Hugo L. Black: (Voice Overlap) constitutional right, while he had failed to appeal for a good reason, that 2255 was open to him, just as he referred to the reopening of a whole situation by the (Inaudible)

Mr. Quinn O'connell: That's exactly -- that's exactly the distinction --

Justice Hugo L. Black: Do you agree to that?

Mr. Quinn O'connell: Yes, I do.

I agree that that is the -- the interpretation of the -- Judge -- what Judge Washington held and what Judge Fahy held.

Justice Hugo L. Black: And you are urging that we even go further than Judge Fahy had?

Mr. Quinn O'connell: Well, I -- this is a -- I'm -- the -- the main point that I'm trying to -- to urge here is that Judge Fahy's opinion is absolutely right.

Justice Felix Frankfurter: Mr. O'Connell, this case is very important to your client?

Mr. Quinn O'connell: Yes, it is, Your Honor.

Justice Felix Frankfurter: But if -- of even greater importance in view of the issue, it is even a greater importance to the administration of justice.

Therefore, it becomes a very important, you as well as for us, for the counsel, as well as for us, to explore the meaning of all these business.

Mr. Quinn O'connell: That is right Your Honor.

Justice Felix Frankfurter: Now, in Robinsons, there were compassionate situations which made (Inaudible) one's appealing and the Court held that despite all of that, when Congress said, and from my point view, it's great wisdom that appealed in criminal cases must be taken within the brief period because one of the curses of our administration of justice is its laggardness, it's delayed.

We're talking about -- about delays in civil cases, forget about the consequences of delays in criminal cases are far greater consequences to the administration of justice.

And this Court was compelled to conclude that when Congress said 10 days, it meant 10 days.

Now, what you are saying -- what you are claiming is that with reference to these so called fundamental claim duly tried at the trial but not appealed from, the function of 2255 disregard the 10-day limit on appealability and that therefore, 2255 may be used for all practical, not all for practical purposes, may be used as though there were no 10-day limit.

And, if I may conclude my observation in order to elicit yours, what was the purpose of 2255?

Did it have anything to do with this or was it the alleviation of the riggers, partly the riggers, partly the inconvenience of the habeas corpus and to substitute habeas corpus for the 2255 procedure so that the sentencing court may dispose of it rather than wherever he was locked up all over the United States?

And therefore, the question to my mind arises whether there's anything in the legislative history of 2255 that give greatest scope to 2255 than the old habeas corpus proceeding?

Mr. Quinn O'connell: There's absolutely nothing Your Honor.

The -- the scope of habeas corpus and the scope of 2255 as this Court has discussed in the United States against Hayman are exactly the same.

But as pointed out in the Robinson --

Justice Felix Frankfurter: But would this mean -- would this has been the habeas corpus?

Was this -- would habeas corpus have issued on this record, in this case, in these circumstances, on these affidavits?

Mr. Quinn O'connell: Well, it's -- I would say that it should although if the --

Justice Felix Frankfurter: I don't want to know whether it should.

What I want to know is whether it would have on the basis of the precedence of this Court and the general conception of the relation of habeas corpus to non-appealability.

Mr. Quinn O'connell: Well, it's my understanding that -- and I think that the -- the cases that this Court has decided concerning habeas corpus and 2255 are that the scope of review on habeas corpus or 2255 is very narrow.

It's a very narrow scope of review and it has to be -- it is directed to whether or not the conviction itself is completely vitiated because of a real basic denial of a -- of a constitutional right, whereas the scope of review on appeal is as broad as the record itself.

You can -- you can raise errors of law that have occurred.

You can raise all kinds of -- of any errors as part of the District Court, which don't go to the real constitutional issues, but which on appeal would allow a reversal in those circumstances.

Now, as Judge Fahy pointed out, we are not here concerned with an attempt to appeal out of time because of excusable neglect.

We are concerned here with collateral challenge to a sentence, the time limitation for appeal is rigid and jurisdictional, but the scope of review is as broad as the record itself.

In contrast, there is no time limitation applicable to a Section 2255 motion, but the scope of review is narrow.

Justice William J. Brennan: Mr. O'Connell, may I ask this footnote of Judge Fahy at page 153 of the record, this Footnote 1 to the effect that in Section 2255 proceedings heretofore had, the District Court found that in all hearing that's the confession and voluntaries -- is that this very proceeding?

Was it in fact a -- a hearing allowed here on this application?

Mr. Quinn O'connell: Well, there was a hearing.

What transpired at that hearing, I do not know.

The District Court Judge issued an opinion, made findings of fact, and a conclusion of law after a hearing which -- which he says that -- this is on page 6 of the record, he said, “An oral hearing was held on October 25, 1957 with counsel on both sides present.”

Justice William J. Brennan: Well, my -- my question is if that's so --

Mr. Quinn O'connell: And in that -- and at that hearing, he decided that, and according to the Government, it's presumably on the basis of his recollection of what happened at the trial, that the confession was voluntary.

Justice William J. Brennan: Well -- now what kind of hearing is it you want your client to have?

Mr. Quinn O'connell: Well, I'm not -- all I want him to -- what I would like to have is to have the Court of Appeals review this -- to review the merits of this decision here.

Justice William J. Brennan: I see.

Justice Felix Frankfurter: Mr. O'Connell, I'd like to express your views with reference to habeas corpus in Sunal against -- in the Sunal case this Court rejected those views.

Mr. Quinn O'connell: In Sunal though, the claim was not a basic error.

Justice Felix Frankfurter: Well, it's a basic -- for me it's a basic error if some one has to go to jail when he shouldn't go to jail because this Court had declared that the statute of the circumstances do not warrant that he's going to jail.

And he had the best of reasons for not taking an appeal, namely a series of opinions holding against him, and every good lawyer would have thought that it's futile to do that.

And later, there was a change in the law, and he goes and tried to get habeas corpus and he was blocked by this Court despite the dissenting opinion in this -- in that case pointing out the flexibility of habeas corpus.

When you talk about constitu -- fundamental error, if fundamental -- it's a fundamental error to be sent to jail on a statute which doesn't cover a man.

That's a fundamental error.

Mr. Quinn O'connell: Well, that the -- it seems to me that in all of these cases on collateral remedies that there have been these distinctions made between mere errors of law and fundamental error.

What I would like to point out is that in the Robinson case, for example, where they held that an appeal couldn't lie because 2255 -- because the 10-day appeal period has expired and there -- regardless of whether or not the excuse was justifiable.

The Court noted and I -- and it seems to me relied partially on the fact that this was not that harsh determination because -- and I quote from the Court's opinion, “The allowance of an appeal months or years after expiration of the prescribed time seems unnecessary for the accomplishment of substantial justice, for there are a number of collateral remedies available to redress denial of basic rights.

Examples are and skipping “The power of a District Court to entertain a collateral attack upon a judgment of conviction and to vacate, set aside or correct the sentence under 28 U.S.C. 2255.”

It seems to me, to deny a hearing to the Hodges where he has a basic error that you're denying the promise that was -- of Robinson where they said that of course you cannot appeal after the 10-day period.

But if it's -- if there are -- there are collateral remedies available where there are basic rights denied.

Here, we now only have a basic right but we have an excuse for not appealing and it seems to me that in these circumstances that if the purpose of collateral remedy is to do substantial justice that any limitation upon this for -- in this case would defeat that purpose.

Justice Felix Frankfurter: Have you found any case in which writ of habeas corpus was sought in circumstances fairly comparable to this and in which the writ issued, and if it's issued for the writ of a state, have you found any case?

Mr. Quinn O'connell: Well --

Justice Felix Frankfurter: If the measure of 2255 is habeas corpus then that's the standard by which we must judge 2255?

Mr. Quinn O'connell: Well, the Bowen v. Johnson case, as I recall, was a -- was a habeas corpus proceeding and whereas they denied the writ, they denied it on the merits of the claim.

They didn't say that he wasn't entitled to have the -- the particular question involved even though there had been no appeal.

Justice Felix Frankfurter: Well, that's an easy -- Bowen is an easy way of disposing of a thing if you don't have to reach an ultimate issue.

That isn't the case I'm putting to you.

Mr. Quinn O'connell: Well, in the Jordan case which was 2255, I think there's no distinction between habeas corpus and 2255, Your Honor.

Justice Felix Frankfurter: I -- I thought I was instructed by Sunal that habeas corpus can't displace the right of appeal.

Mr. Quinn O'connell: That's right and in here --

Justice Felix Frankfurter: And for this case, it's -- which is what you're asserting what Judge Fahy asserted.

Mr. Quinn O'connell: We are not asserting here that he has a right to appeal.

Justice Felix Frankfurter: Well, I know that that's the label -- a different label for the same contents.

Mr. Quinn O'connell: Well, but he is not going to have a right to appeal on the other errors.

There may have been a lot of errors at this trial court --

Justice Felix Frankfurter: But you said --

Mr. Quinn O'connell: -- and he's not going to have those --

Justice Felix Frankfurter: But you said --

Mr. Quinn O'connell: Those are forever foreclosed, Your Honor, under Robinson.

But this is a basic denial of a (Inaudible)

Justice Felix Frankfurter: At the outset of your argument, you told us that was the only question in the case.

There wasn't anything else to appeal about it, namely, the admissibility of his confession.

Mr. Quinn O'connell: Well, I -- I don't know whether there would be appeal from the -- from the instructions of the -- of the jury or -- I mean there may have been other -- other errors.

I'd like to save some time for rebuttal.

Chief Justice Earl Warren: You may.

You may have three minutes actually to --

Mr. Quinn O'connell: Thank you Your Honor.

Chief Justice Earl Warren: -- finish your argument.

Ms. Rosenberg.

Argument of Beatrice Rosenberg

Ms Beatrice Rosenberg: Mr. Chief Justice, may it please the Court.

It seems to me that the problems of this case become easier to understand and I think easier solution, if we realize that the term “coerced confession” really embodies two concepts that are quite different.

And one I can call a “claim as an error of law” and one is the “claim as an error of fact” and I think part of the confusion in this case is that it's never been quite clear whether we're talking about a claim as an error of law or a claim as an error of fact.

Justice Felix Frankfurter: Mr. Rosenberg, before you go on to -- into these, to me always cloudy metaphysical distinction, would you be good enough to state without arguing, but just state what the Government position in this case is, on this record?

Ms Beatrice Rosenberg: The Government position on this record is the petitioner is claiming that his confession is coerced because the jury should have believed his evidence and not the Government's evidence and that that is what I call the issue of fact and that that is not cognizable by motion under 2255.

Justice Potter Stewart: I wouldn't have been -- that would have been constituted a very good point even on a direct appeal, would it?

Ms Beatrice Rosenberg: That's right.

That's our basic position.

We have felt that the question of whether the error -- what I call the error of law is cognizable is within the grant of certiorari and we have been dealt – compelled to discuss it, but our (Voice Overlap)

Justice Felix Frankfurter: I can't imagine -- I can't imagine that Mr. O'Connell would agree your statement of fact, I suppose.

What you are saying is, or are you saying is, that when the facts are developed in the trial court, the judge as a matter of law is a directive that the confession was inadmissible because coerced, isn't that what he would trade?

Ms Beatrice Rosenberg: I don't understand him to claim this.

I think it has -- this is what I've said, what I've thought the confusion stems from.

I think nobody until now has made that sharp a distinction between this factual basis of his claim and the legal basis of his claim because here, he has not discussed the admissibility of the confession, but in the briefs in the Court of Appeals, this was discussed.

Justice Felix Frankfurter: Well, there must be some underlying legal document in which he sets forth his claim.

Isn't there?

Ms Beatrice Rosenberg: Yes.

Justice Felix Frankfurter: Now, where is it?

Ms Beatrice Rosenberg: The only -- in -- oh, you mean his petition for writ of --

Justice Felix Frankfurter: Not with --

Ms Beatrice Rosenberg: -- it is --

Justice Felix Frankfurter: Not for certiorari but --

Ms Beatrice Rosenberg: There is in the record his petition, his application for --

Justice Felix Frankfurter: 2255?

Ms Beatrice Rosenberg: 2255.

Justice Felix Frankfurter: Where is that?

Ms Beatrice Rosenberg: Which is at page 1 of the record.

Justice Felix Frankfurter: Alright.

Ms Beatrice Rosenberg: This was drawn by counsel other than present counsel and this is only significant as a guide because in this, he makes assertions which are contrary to the trial record.

Justice Felix Frankfurter: Well, was there a -- was there an amended motion for relief under --

Ms Beatrice Rosenberg: No.

Justice Felix Frankfurter: -- 2255?

Ms Beatrice Rosenberg: No.

Justice Felix Frankfurter: And that's -- then that's our charter in this case, isn't it?

Ms Beatrice Rosenberg: That's right.

Justice Felix Frankfurter: Or are we just at large and just talking like newspaper people.

Ms Beatrice Rosenberg: Well to some extent, we already had, Your Honor.

This is just one of the difficulties in this case.

Justice Felix Frankfurter: I'm trying to explain the counsel not to do so.

Ms Beatrice Rosenberg: This is one of the difficulties in this case.

In his -- in his application for 2255, counsel made assertions of facts without any relation to the trial record at all.

He also made self-assertions with regard to a narrower point, not a claim of coercion.

As I read the Judge's findings of fact on that motion under 2255, what seems to have been obvious at great length was more of the narrower points in any claim of coercion.

Justice Felix Frankfurter: I have -- I haven't heard a word from Mr. O'Connell about (Inaudible)

Ms Beatrice Rosenberg: No.

No, just -- I'm just trying to give the history Mr. Justice Frankfurter of what happened to this case.

It's the case -- the application under 2255 had been denied.

It went on appeal to the Court of Appeals and there was a long delay in the change of counsel.

It was new counsel who raised the claim of coercion.

It turned out on the appeal from the 2255.

Justice Felix Frankfurter: In some document or just in talk?

Was there a -- was there an amended -- I asked you a minute ago, was there an amended motion that new counsel made by it?

Ms Beatrice Rosenberg: Well, there was merely a motion for the record.

Justice Felix Frankfurter: But what did that say?

Ms Beatrice Rosenberg: Well, they merely asked for the record and it turned out that the record was lost, the record of the hearing on the 2255.

Justice Felix Frankfurter: But, in that -- in that request for supplementing the record, was there a claim made which is now before this Court?

Ms Beatrice Rosenberg: No, You Honor the only thing that is before -- not before this Court because the claim such as they were appear in the briefs, is what their claiming.

Justice Felix Frankfurter: But the claims aren't made in the briefs?

Ms Beatrice Rosenberg: That is true, Your Honor.

That is where the claims are made in this case, except to the extent of the motion under 2255, it's there in the Government's answer which sets forth the fact that this was before the jury and the findings and conclusions of the lower -- the District Court.

The only indications that are there, that there was no hearing in the sense of calling witnesses.

It's also true that the transcript of record was then not available --

Justice William J. Brennan: I gather with, (Inaudible) so we could try this case to the --

Ms Beatrice Rosenberg: Yes.

Justice William J. Brennan: And he also heard the motion?

Ms Beatrice Rosenberg: Yes.

And it seemed to me that based on that -- and as -- as I read these findings -- well, coercion was thrown in, actually, the argument in the District Court, now that we had come down after the conviction and before this motion under 2255, as I read the findings that was the brunt of the discussion down there.

And that's one of the difficulties in this case, that it has never actually been pinpointed what's the basis of this claim of coercion is in the brief in the Court of Appeals and in this Court to the extent that counsel discussed it.

They talk about coercion as a matter of law the basis on the defendant's evidence at the trial without setting forth the controverting evidence by the Government.

There has never that I know of a statement by the defendant which we think is absolutely essential before you have any real problem of the scope of 2255 to the effect that on undisputed facts, there -- there was coercion as a matter of law.

There is a claim of coercion as a matter of law, but the claim of coercion as a matter of law is based on an accepted -- of the -- of the defendant's evidence in the case and on a rejection of a Government's evidence which in some respect is directly contrary.

The basic claim of coercion was that the Washington police said they turned him over to the Chicago police if he didn't confess, that Washington police absolutely denied this.

There were circumstances in the record to make this incredible on its face.

The issue of -- of whether there was coercion was an issue which went to the jury un -- under instructions at to which there was no exception and it is our position that the only claim that is or on this record could possibly be made in this case is that there was a coerced confession because the jury should have believed the defendant and not the Government's evidence.

And on that issue, which is our position that this is not only as Justice Stewart points out, not only -- not cognizable under 2255, but actually would not have been a case on direct appeal.

Justice Hugo L. Black: If that simple issue was all that was before the Court of Appeals, why did they write these different opinions on the legal point that was raised when they could have very easily said (Voice Overlap) --

Ms Beatrice Rosenberg: Your Honor --

Justice Hugo L. Black: -- which is merely a question.

We've looked at the record and there was nothing raised except the question of credibility and jury decided that.

Ms Beatrice Rosenberg: I don't know why the Court of Appeals did that.

Certainly, the Government (Voice Overlap) --

Justice Hugo L. Black: Was it because -- do you thought it has anything to do with the motion made by the defendant's new counsel which appears on page 12, 13 and so forth that they pointed out that as to looking up the record, they had found that the appellate had never been informed and was unaware of his right to file a notice of appeal from his conviction.

Ms Beatrice Rosenberg: No, I think not because when the original Court decided this -- when the panel decided this case, they were unaware that these -- these document had been filed and had been rejected by the Court of Appeals that's having come to allege.

So that I think what happened is, there was a long delay, Your Honor, between the noting of an appeal under 2255 and the appointment of new counsel and, I think that the real difficulty has been that people talk in general terms about a coerced confession.

And I think that the difference between, as I say, shorthand way, I have putting it, Your Honor, is that coercion as a matter of fact that is coercion because he should have believed me and not the Government's evidence.

That's the question of fact, the underlying fact.

And the difference between coercion as a matter of law was not clear and there maybe grievance with this.

Justice William J. Brennan: Ms. Rosenberg, may I ask --

Ms Beatrice Rosenberg: The question of coercion --

Justice William J. Brennan: May I just ask this if you don't mind me interrupting you for a minute.

Well, Judge Fahy's first opinion, what significance do you attach to the last paragraph, page 146? This is his first opinion for the panel.

Particularly, and the facts of the case do not lead us hold, but nevertheless Justice requires that appellant should be granted relief.

What -- what is he referring to that?

Ms Beatrice Rosenberg: I think that although the opinion makes the assumption that there maybe an issue of law that they're going to decide the issue of law.

I think that it is a judgment of having looked at the record.

This is not striking at the case where --

Justice William J. Brennan: Do you mean look at the records, that's what I was wondering.

Ms Beatrice Rosenberg: At the record --

Justice William J. Brennan: Does this mean at the record?

Ms Beatrice Rosenberg: By this the time, the record is from --

Justice William J. Brennan: I mean the record on the merits of the coercion (Voice Overlap)

Ms Beatrice Rosenberg: Oh, the record of the trial was before the Court.

Justice William J. Brennan: But a -- but a -- with particular reference to the merits of the coerced confession claims.

Ms Beatrice Rosenberg: That's right.

Justice William J. Brennan: Do you think that's what this is referring to?

Ms Beatrice Rosenberg: I think this was this about.

I think that having looked at the merits, this does not -- this is -- this is the way I read it.

I don't know.

That this did not strike him in the case where there was such a serious question.

I don't think he was undertaking to decide it.

I think that primarily on facts that there is now before the Court on the petition for writ of certiorari, a case called Lancey in which Judge Fahy also dissented, and this was the case where the defendant had taken an appeal but had not raised the confession issue.

But there he said he thought there was to be a hearing out of confession.

I assume he thought the facts were more questionable, I believe, I forget that's my guess. Well, as I -- I think that I don't have to argue at very great length that if we are right about the issue in this case, that it is clear that this is not -- that the question here is -- the question of the Court of Appeal talks about is academic because -- well, it's very difficult to be dogmatic about habeas corpus and 2255.

I thought that one thing one could be dogmatic about is that it is not the function of either habeas corpus or 2255 to decide the kinds of issues of fact which were properly submitted to the jury for its resolution.

Justice John M. Harlan: Supposing -- supposing the trial court has ruled here that he was not going to allow the question to go to the jury and he was going to rule -- and that he had ruled as a matter of law that the confession was admissible himself, what would have been the -- and then what would have been the Government's position on the context of this record, such a record?

Ms Beatrice Rosenberg: On the context of the record, Your Honor, I think we have a much more debatable question.

We like, the Court of Appeals, think that even so the issue should not be cognizable on 2255, but this takes -- this involves the great length of difference kinds of considerations than we have in the situation which we think this case presents, where you don't even have that claim that is -- let's get back where I started.

There is one claim which is I was convicted on the basis of a coerced confession because the jury should have believed me and not the Government's evidence and that's what we think is this case.

There is another possible claim under 2255 and that is on the undisputed facts as they were developed in a hearing outside of the presence of the jury, it was an error of law for the judge to have permitted to go -- the confession to go into evidence and to have submitted the issue of voluntariness to go to the jury.

That's the way it would arise in the District of Columbia, Your Honor, because the District of Columbia follows that rule that the judge hold a hearing outside the presence of the jury and decide whether as a matter of law, the confession should not go into evidence, but that if, there is evidence from which a jury which it believed the jury could find voluntariness and evidence where the defendants find --

Justice William J. Brennan: What you are saying is -- if he finds it involuntary then, of course, he never should have received it.

Ms Beatrice Rosenberg: That's right.

Justice William J. Brennan: If he finds it voluntary, he resubmits for jury determination the issue of voluntariness as well as credibility?

Ms Beatrice Rosenberg: Yes, Your Honor and in the District of Columbia, at least, and in most of the federal courts, the judge does not undertake to -- to resolve the issues of credibility.

It's clear in the District of Columbia, it's clear in some of the Circuits.

It's not so clear in some of the other Circuits.

Justice Potter Stewart: But your point is in this case, certainly the issue of voluntariness as well as of credibility was submitted to the jury.

Ms Beatrice Rosenberg: Oh, yes.

They were -- specifically, the judge -- there was a specific request for instructions on that, the instructions were in fact given, and counsel accepted them.

There's just no question about it.

Justice Felix Frankfurter: Are you saying -- do I understand you in view what you just said that no -- that the Court submitted or allowed rather the confession to go to the injury on a charge as to what the duty of the -- jury was that such instructions were not accepted to by the defendant?

Ms Beatrice Rosenberg: Yes, Your Honor.

Justice Felix Frankfurter: Who was then defended by two lawyers?

Ms Beatrice Rosenberg: Yes, Your Honor.

Justice Felix Frankfurter: Is that what you are saying?

Ms Beatrice Rosenberg: Yes, I'm saying that.

Justice Felix Frankfurter: But know -- but now they sought it to be raised as a matter of fact, the confession was improperly submitted, allowed to go to the jury.

Ms Beatrice Rosenberg: As I say, one of my difficulties is that I'm not quite clear what the defendant is raising, but as I read this record -- as I read this record, he can't assert that.

And as I read what he has said, he has discussed the so called issue on the merits only in the footnote in his brief in this Court, but, in his brief in the Court of Appeals and in this Court, as I read his claim of coercion, it is based on the defendant's testimony which was given both at the hearing outside the presence of the jury, and then the defendant took the stand at the trial of the case and the argument that this was coercion as the matter of law based -- is based on believing the defendant's testimony.

Justice Felix Frankfurter: Now, the first -- I should like to ask you one further question, were any requests made by the defendant at the original trial which were denied?

I asked you and you said that there was no exception taking to what the Court charged.

Now, I ask you, did defendant's counsel ask for instructions on the question of admissibility of coercion which was denied --

Ms Beatrice Rosenberg: No.

Justice Felix Frankfurter: -- and exception was taken to that?

Ms Beatrice Rosenberg: No.

Justice Felix Frankfurter: I understood Mr. O'Connell.

I may have misunderstood him to say that all the trial minutes are in this record, is that true?

Ms Beatrice Rosenberg: Well, I --

Justice Felix Frankfurter: It was a five-day trial.

I know -- it's hard --

Ms Beatrice Rosenberg: No, they're not.

All in -- all the testimony relating to the confession --

Justice Felix Frankfurter: So that we've got within the covers, within this brown covers the testimony, the objection to its submission to the jury.

Ms Beatrice Rosenberg: Yes.

Justice Felix Frankfurter: The charge of the court to the jury and leaving the confession for their evaluation.

Is that right?

Ms Beatrice Rosenberg: Yes.

Yes.

The instructions are at page 139 --

Justice William J. Brennan: May I ask this Ms. Rosenberg?

As you said, there was a hearing out of the presence of the jury.

Ms Beatrice Rosenberg: Yes.

Justice William J. Brennan: And I take it counsel there took the position that as a matter of law, the facts established that this was involuntary, and therefore that the judge had not admit it an evidence or did he take that position --

Ms Beatrice Rosenberg: Well --

Justice William J. Brennan: -- or did counsel take that position?

Ms Beatrice Rosenberg: -- I -- I propose one can say that --

Justice William J. Brennan: When -- Well now, the fact -- yes.

Ms Beatrice Rosenberg: -- the fact is if you read this testimony, the facts being submitted, hence will -- was putting out a lot more stuff in his argument on an example.

Justice William J. Brennan: At that time.

But I want -- to get to is this -- in the District, what's the practice if the issue of voluntariness is resolved by the judge against you that is in the sense, if he says that as a matter of law, this confession was not involuntary.

How do you preserve that for appeal?

Ms Beatrice Rosenberg: Oh, you would object to its admissibility and evidence and that was preserved --

Justice Potter Stewart: At the trial then -- what I'm trying to -- at the conclusion of the hearing out of the presence of the jury?

Ms Beatrice Rosenberg: If the judge admitted it, one would accept to the admission of the confession as evidence and this was preserved in this case because counsel did object to the admission of the confession as I say I read it more as -- basing his confession more on the (Inaudible) grounds, but he did object to the admissibility of the confession.

Justice Felix Frankfurter: Where is that?

Where is that Ms. Rosenberg?

I mean, this -- please help me?

Ms Beatrice Rosenberg: Exactly, not if --

Justice Felix Frankfurter: You're on page (Voice Overlap) --

Ms Beatrice Rosenberg: Page 82 is the judge's ruling and there was a (Inaudible).

Well, I don't know if the exception is here, but there was a ruling.

Justice Felix Frankfurter: Well -- but really, how can you -- I'm total --

Ms Beatrice Rosenberg: No, I don't mean -- I mean I don't think the exception is printed, Your Honor, that's what I meant.

Justice Felix Frankfurter: Well, I know, I was -- I was under the impression if I read this brown volume, I'd find all that's relevant in the determination of what took place at the trial.

Now, you tell me that isn't so at all.

Ms Beatrice Rosenberg: What there is here is -- on page 81, “(Inaudible) would you know summarize your reading why you feel the court should not make its ruling at this time in the manner indicated?”

And it is -- I think that there is no question that he objected to the admissibility of the confession and also at the --

Justice Felix Frankfurter: Well, is there no question that he then and there asked not only to -- to withdraw the confession or not be allow the submission of the confession to the jury, but he also in the alternative suggested that if it is submitted, the following charge will be given.

Ms Beatrice Rosenberg: No, what happened is on page 139.

“You haven't (Inaudible) my counsel after the charge.

Your Honor, I do not think you charged the jury.

They were to determine whether the confession was voluntary or involuntary.”

And then the Court, “Make this charge,” and then on page 140, “Any objection on the part of the charge to either counsel?”

The bottom of page 140, “no.”

That's in the record.

What is not printed as I say is the exception because that was raised primarily on the McNabb doctrine and was not, at this Court, relevant to say.

Justice Hugo L. Black: May I ask you in defending this judgment on the basis of the record refused the charges that this man has made, that he's been given a hearing on those charges or is it without committing at all the basis on which Judge Washington decided, namely that here, that the only claim is excusable neglect and that excusable neglect cannot be raised because there was no appeal to it?

Ms Beatrice Rosenberg: No, Your Honor.

I -- we don't think you have to reach that problem.

Our main point is that insofar as one can make out what defendant is alleged.

Justice Hugo L. Black: Insofar as they can make out.

Ms Beatrice Rosenberg: Well, the defendant -- oh, let me put it affirmatively kind of way, the defendant has not alleged that on the undisputed facts, there was coercion as a matter of law that he has alleged, that his claim of coercion is based on the claim that the jury should have believed him.

Justice Hugo L. Black: Now, did the court consider that point at all?

If so, what part of its opinion?

Ms Beatrice Rosenberg: No, I don't think the court -- I think the court --

Justice Hugo L. Black: I might (Inaudible)

Ms Beatrice Rosenberg: -- chose a broad position.

I think the court considered it to this extent.

The court took the broad position decision that whether it was one or the other, whether it was a claim that it was error to admit case in evidence as the matter fact or as a matter of law.

The issue was not cognizable under 2255.

So the court didn't find it necessary to distinguish between the two.

Justice Hugo L. Black: And it didn't find it necessary to defend on the ground that he hadn't made out a case did it, except to the extent that he hadn't made out a case because he alleged that the confession was coerced and he had not appealed within 10 days and therefore he was barred under 2255 proceeding?

Ms Beatrice Rosenberg: It is our position that the Court went far beyond what was necessary for it to do decide this case, yes Your Honor.

The Government has --

Chief Justice Earl Warren: Was the -- in your opinion, was the Court correct in what it -- and what it decided in that regard?

Ms Beatrice Rosenberg: That brings me to that question.

I think it was correct, Your Honor, but I think it is a much harder question than the one that we think -- that we think this case presents.

I think -- and therefore, it is our view that you simply don't have to reach it because that on this record, there is a very clear and almost uncontrovertible ground that is that it is not -- there are no decisions that I know of which hold that if an issue was a question of fact for the jury that that issue can be canvassed on 2255.

Now, the other question, assuming it was here that whether the judge made a mistake as the matter of law in allowing confession to go into evidence and then allowing it to be submitted to the jury.

This, we think, is a different question and while we agree with the Court of Appeals, we realize that this involves a much more difficult question.

This Court has held with respect to state cases that even though a defendant has appealed his conviction and has sought certiorari in this Court, the issue of whether a state has used a coerced confession -- confession is cognizable by motion, by habeas corpus in the state court and I take it that this is a largely the basis of petitioner's argument.

He is saying, what you held about state trials ought to carryover to the federal trial.

We think it clearly should not do so in the situation where there has been an appeal or there has been a very conscious election not to appeal because the situations, as I say in federal cases, are different.

The leading case that established the right to attack a state court conviction through habeas corpus is the case of Brown against Allen.

And in that case, this Court in a sense articulated its reason for allowing that matter to be brought up in a federal habeas corpus proceedings in the District Court even though it has been reviewed by the Highest Court of the State and as I -- we understand that case, the reason was this, since 1867, when Congress in the Habeas Corpus Act provided that the writ of habeas corpus extends to a prisoner in state custody in violation of the Constitution of the United States, the federal court has its duty to make sure that a state conviction has not been in violation of a constitutional right.

Now, on direct review, the only court that can carry out that duty would be this Court and the volume and the difficulties set forth in Brown against Allen were (Inaudible).

It was felt for this reason that the matter should be deemed subject to review in a federal court -- the Federal District Court subject to review by a Federal Court of Appeals and then ultimately before this Court.

But of course, that doesn't apply in a federal case.

In a federal case, this very same District Judge is applying these very same standards, the federal standards which govern state proceedings and federal proceedings and so forth.

Justice Potter Stewart: What were you're saying Ms. Rosenberg if in this case, the Federal District Judge had applied erroneous standards, had applied the standards which the trial court applied in -- and perhaps the higher court in Connecticut applied in Rogers against Richmond?

Ms Beatrice Rosenberg: Oh, this -- that's a different case again from the one we have and that's different from the general one that I'm in -- petitioner to be arguing.

Justice Potter Stewart: But your general argument --

Ms Beatrice Rosenberg: I think with the -- with the claim of defect of procedure, I think they may well be an issue.

Justice Potter Stewart: Because you're making a general argument now --

Ms Beatrice Rosenberg: That's right.

Justice Potter Stewart: -- that the same rules shouldn't apply to a federal trial as to a state trial and I --

Ms Beatrice Rosenberg: Well, I should say that --

Justice Potter Stewart: -- (Voice Overlap) generality of that argument.

Ms Beatrice Rosenberg: -- I suppose that -- that will limit that, Your Honor.

Let's limit it to the situation where there is no claim in the defect of procedure at this trial or the standard where the only claim is that -- well, it's a matter of law, but the claim of so called error of law is really a mixed error of law, in fact, the claim is that in applying a proper standard, the Court misinterpreted the facts.

Now, this Court has said with regard to confessions that while it's bound by the findings of fact by the trier of fact, what actually happened, the interpretation of the facts are whether as a -- whether those admitted facts amount to coercion as the matter of law.

This Court has said as a fact, “A federal court isn't bound by the state court's findings and presumably, an appellate court is not bound by the District Court's finding” and that's where, I think, the debatable area comes in generally, not this case, but generally.

Assuming -- and that's where we come to the question I take it of the right of appeal.

It seems to me in the normal case where defendant has taken an appeal or where he could have taken an appeal and consciously elected not to do so, even if he's now claiming that the District Court erred in the interpretation of the fact, that this is a matter which he should have urged on appeal and that it should not be re-litigated before the same court, and again subject to the same standards just saying, “Well maybe, you'll might have changed your mind,” where we get into a few more difficult areas unquestionably is if we could be said that District Court made a mistake in its interpretation of the fact and I didn't appeal, but my appeal was based on excusable neglect.

Now, we had that kind of case, that's when we come to what is the question that I think (Inaudible) the Court below, wouldn't it -- we think is -- I say now, is hypothetical in this situation.

Justice Hugo L. Black: What has the --

Ms Beatrice Rosenberg: But --

Justice Hugo L. Black: -- District Court held?

What has the District Court held?

Ms Beatrice Rosenberg: The District Court?

The District Court, Your Honor, had made a finding of fact that confession was coerced, but it's -- all its conclusions of law relates to the Mallory.

Oh, if you're talking about the question of the right of appeal that comes to this Court in a very unsatisfactory fashion, because the notes of the hearing are lost, the hearing on the 2255, but so far as one can tell from the petition itself and the answer and the findings of fact of the conclusion of law, the District Judge, that issue was not raised before the District Court.

Justice Hugo L. Black: The District Court --

Justice Potter Stewart: Well now, doesn't the District Judge at the very conclusion of his conclusions of law hold as an alternative ground for his denial of relief under 2255 that this matter could have been urged on the upon direct appeal?

Ms Beatrice Rosenberg: Yes, but I don't read that as being a decision on the issue of whether there was an excusable neglect to fairness -- to appeal.

I think that's a legal conclusion that this is normally the kind of error that is to be raised on appeal.

And as far as I can tell and as far as I've been able to check is, this issue was not before the District Court.

What happened was that when new counsel came in at the Court of Appeals stage, they filed this motion to supplement the record.

This was in August 1959.

It was two years after this -- there was a long delay here on the appeal and it was at this point that these affidavits were filed and so we never had a hearing on that issue.

Justice Hugo L. Black: (Inaudible) no hearing in Judge (Inaudible)

Ms Beatrice Rosenberg: Fahy's --

Justice Hugo L. Black: -- Fahy's position was that there should be a hearing on the section raised though?

Ms Beatrice Rosenberg: Yes.

As I read Judge Washington's opinion, Your Honor, I think this does not go as far as Your Honor summarized before.

I think that what he is saying here is that on the facts, which defendant have alleged in their affidavits, we do not find that kind of excusable neglect which would justify a hearing and which would require that the defendant be allowed, relief under 2255 even if it normally would not be available for the claim.

Justice Hugo L. Black: But he took this claim (Inaudible), didn't he?

He said, “But mere neglect in taking an appeal -- excusable or not -- should not open the door to the bringing of collateral attack under Section 2255.”

Ms Beatrice Rosenberg: Well, yes.

Justice Hugo L. Black: And think that would not (Inaudible) --

Ms Beatrice Rosenberg: I think what he's saying is -- there -- I think -- I think that it is not simply a question of conscious failure to appeal or excusable neglect.

I think that he's recognizing, shall I say three positions.

One is a good reason for not appealing.

For example -- well, the most obvious one, if the Government presented in taking appeal but even in the situation where the Government didn't present it in taking an appeal, for example, I would say that we'd have a different case if one could say a defendant had been abandoned by counsel.

Counsel suggests the minutes -- the judge pronounced the sentence (Inaudible) did nothing at all.

That might be another case.

As I read the opinion, it's saying what you showed here would simply something that might be an excuse for getting a brief (Inaudible)

Justice Hugo L. Black: Did the District Court, am I wrong in thinking that the District Court, maybe in some other statement, I don't know, the District Court's reason was that there had been no constitutional question raised in the 2255 procedure but only the McNabb and Mallory ruling which did not rise to a constitutional level and that therefore -- and that therefore, 2255 was not the proper remedy.

Ms Beatrice Rosenberg: Your Honor, the District Court made a finding of fact on page 6.

Justice Hugo L. Black: I was referring to what he held on exclusion of law on page 8.

Ms Beatrice Rosenberg: Well -- yes, well, that's what I'm saying.

He made a finding of fact that the confessions made to mem -- to members of the Metropolitan Police Department was voluntary and was not the result of coercions, threat or promises.

Now, it's perfectly shows that his conclusions of law in the same document don't deal with the question of coercion, they deal what the question of McNabb and Mallory.

Now, he has come down and (Inaudible) as I said just before that.

I think what -- if -- but it seems to me this record makes it reasonably informed guess that the main thrust of the argument before him which has been (Inaudible), the record of that, was on the basis of Mallory which had just come down and that's why he dealt with those in his conclusions.

Justice Hugo L. Black: And that's what he passed on.

That's why he denied the 2255 hearing, wasn't it?

That it was not a constitutional point.

And when it got up to the Court of Appeals that maybe it was wrong, but in someway, they came and challenged it up there on the basis of the fact that he's been denied of the rights -- a constitutional right, violate his constitutional rights and the majority said that made no difference.

They treat it as it though that was a proper place to do it.

But they said that made no difference because they -- since he had not appealed his rights were cut off.

When Judge (Inaudible), Judge Fahy took the position that that was not correct, that these thing did raise questions of fact that should be tried out by the District Judge to determine whether or not there was a good reason why he had not appealed, and if so, that he should have a right to challenge, to raise his constitutional point.

Ms Beatrice Rosenberg: Well, it is right except to this extent, that in his motion under 2255, which was before the District Court, the defendant did make allegation of coercion.

He did make --

Justice Hugo L. Black: Are you raising -- are you raising this question that what they raised before the Court of Appeals and what was passed on there, was not properly before the Court of Appeals?

Ms Beatrice Rosenberg: No.

I am saying that the Court of Appeals passed on the question in its broadest aspect, and if there was a much narrower basis for affirming the judgment of the Court of Appeals that --

Justice Hugo L. Black: You are saying that even conceding that he properly challenges the coercion -- that confession has having been coerced and then said that he wanted to appeal it but he had a good reason not to do so on the grave, had a good reason not to do so, he was now raising and seeking (Inaudible) on whether he had a good reason for not having appeal that still it was (Inaudible) for the Supreme Court to decide it on the narrow question of which I don't quite -- but some narrow question and that one which was properly before them, and which they decided.

Ms Beatrice Rosenberg: No.

I am saying that all the defendant claims was that his confession was coerced.

But that when -- when looked at his allegations of coercion, one sees that his allegations of coercion amount to as if he had said, “My -- my confession was coerced because the jury should have believed in me and not the Government.”

Justice Hugo L. Black: Do you want it to decide on the question of pleadings?

Ms Beatrice Rosenberg: Well, I don't want to decide on the question of pleadings on -- in the sense of a pleading because he didn't use the right words.

What I am saying is that in any 2220 -- in any motion under 2255, by the terms of the motion, the record is part of the motion because the motion may properly be denied if the files and records show that the defendant is entitled to no relief.

And we are saying that if you read defendant's allegation in the light of what -- of the record which is part of the case, it is perfectly clear that not just in words, but in essence, he is saying, “I was convicted on the basis of a coerced confession because the jury didn't believe me,” and that we say is not a cause of action under 2255.

Justice Hugo L. Black: Well, it is the Government's position if -- if your view should be taken, that he didn't allege it right, that if he's denied to right to a hearing here, would that bar him from asking the 2255 again?

Ms Beatrice Rosenberg: If -- well --

Justice Hugo L. Black: On the point -- on the point (Voice Overlap) --

Ms Beatrice Rosenberg: On this point?

Yes, Your Honor, because what we are saying is that on this record, he could not make an allegation which would present the constitutional issue.

Our position is that it is not a constitutional issue.

You don't even make a claim of a failure of constitutional right if all you are saying is the jury should have believed me that that's not the constitutional issue.

When this Court has talked about the use of a coerced confession, as violating a constitutional right, it has done so because it says on the facts that are not in dispute, there is coercion as a matter of law, and that's a violation of a constitutional right.

Now, when on this record, you cannot say that if the Government's evidence is believed, there was coercion.

And since this record is before -- is part of the record in this case, yes, we say that since it is his allegation has to depend on the allegation that the jury should have believed him and not the Government's evidence, he has not stated the cause of action and he cannot state the course of action.

Justice Felix Frankfurter: Are you saying --

Justice Hugo L. Black: Excuse me.

Just one of the thing in Section 5 of his complaint, “Alleged that the defendant was held without a warrant for five days by the Chicago police acting with the knowledge (Inaudible) Washington police during which time he was questioned continually and beaten physically, subjected to psychological as well as physical torture, was the result that he made a statement demanded by the Chicago police (Inaudible) are you saying --

Ms Beatrice Rosenberg: His own testimony at the trial is contrary to that, Your Honor.

Justice Hugo L. Black: But you are saying that his allegation is not true.

Ms Beatrice Rosenberg: I'm saying his allegations in light of the files and the record in the case which under the statute, under 28 U.S.C. 2255, a judge has a right to deny an application on the basis of the files and record.

He doesn't have to be bound by this bare pleading.

Justice Hugo L. Black: So where do you find the support for your statement that he is claiming that he ought to be turned lose because the jury decided contrary to his evidence in favor of the Government's evidence?

Ms Beatrice Rosenberg: Every time he had talked about the coercion, now this -- this is the brief.

This is the only place it has come.

His claim of coercion is based on his own testimony at the trial and it is not taken into account the contradictory testimony of the Government.

There are some allegations that were not directly contradicted.

There were some that were directly contradicted.

The Chicago policemen who arrested him on the basis of a request from Washington testified, and who was in charge of making the arrest, testified insofar as he knew, defendant, without a question, held by the Chicago police, Defendant himself said and he -- oh, let me say the Chicago police then said, “We had (Inaudible)” and he was the man in charge and the defendant said that it's some other Chicago policemen, not the ones there, questioned him for 30 minutes as three different -- three or four different times during the day he was held before the Washington police got there.

The real threat that the defendant testified to was that he said that the Washington police said to him, “If you don't confess, we'll turn you back to Chicago.”

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Beatrice Rosenberg

Chief Justice Earl Warren: -- you may continue your arguments.

Ms Beatrice Rosenberg: Thank you Your Honor.

Before I get into my argument, I want to say this that I entered a hypothetical question Your Honors as to what would happen if the District Court applied an erroneous standard.

It is a theoretical question in relation to this case and I don't mean to bind the Government for -- for some future case.

I said it would be a more difficult question.

I'm not sure just where we come out, but certainly, whatever difficulties they were, it would be if the standard that is applied was an unconstitutional thing that it not just grab an erroneous phraseology.

Justice Potter Stewart: Well, I expressly refer to the Rogers against Richmond standard for instance.

Ms Beatrice Rosenberg: Well, it's hard for me to believe that that would be a part of the federal court since I guess the standard that the federal court has been in existence now for many, many years and as a matter of fact --

Justice Potter Stewart: It's a hypothetical case from (Inaudible)

Ms Beatrice Rosenberg: Coercion has not been a major problem in federal trial.

There hasn't been the decision by this Court on the subject since Warne against the United States and there really have been very few in the Courts of Appeal particularly since McNabb and even before that, it was not one of the major problems in federal criminal law.

Justice Potter Stewart: Ms. Rosenberg, while we're still back tracking, you mentioned the name of another case that you said involved a related problem in which I had the impression you told us that we've granted certiorari, Lampe or --

Ms Beatrice Rosenberg: No, we had nothing.

It is on petition for writ of certiorari and the Government in its end has suggested that we would file a full answer after this case was there, Lampe, Virgil-Lampe, L-A-M-P-E I think it's 400 (Inaudible).

Justice Potter Stewart: Thank you.

Ms Beatrice Rosenberg: Before recess, I was just pointing out that -- well, this admittedly comes before the Court in a fairly unsatisfactory fashion because of the change of counsel and then change of empathy and so on.

It seemed to us that when petition's allegations are read against the record, it is quite clear that he is claiming that the jury should have believed him and that his allegations depend on his own testimony.

And I just want to summarize briefly so that the Court will know what we base this on.

The Government evidence was that the Chicago Police, having received both information implicating petitioner and a confession by a codefendant implicating petitioner got a warrant and send it to Florida where they thought petitioner was, they then learned he'd gone to Chicago and so they called the Chicago Police and asked them to make the arrest.

The Chicago -- the Government brought one Chicago policeman to testify at the trial that was the man who was in charge of making the arrest and who participated in the arrest.

His testimony was that he was admitted peaceably and that he told petitioner he was wanted in Washington and that he asked whether petitioner had any guns and petitioner showed them to him and he seized the gun.

There was no -- it was completely a peaceful arrest on Sunday, April 29.

Now, petitioner was held from April 29 until May 1st.

He wasn't brought before magistrate on April 30th because the Chicago Police hadn't got a warrant, but at the time he was arrested, the petitioner said he would go back to Washington and on May 1st in formal proceedings before a Chicago Police Court Judge, he waived extradition and agreed to return to Washington.

The Washington Police got to Chicago on May 2nd, they asked the petitioner about the crime and he denied being implicated until he was shown the confessions of the two, his brother and another codependent at which point he made a confession.

The Chicago policeman testified that when he made the arrest, he talked to the petitioner about the warrant, but at the time of the arrest, petitioner made no admission and he said so far as he knew petitioner was not further questioned although he was off the next day because -- and he did say they had other things to do.

When petitioner was brought back to Washington, he repeated his confession before the victim of the robbery.

Now, petitioner at the trial testified that the Chicago police had their guns drawn when they arrested him.

He said that various officers, not the one who testified at the trial, had him in three or four lineups where there was no questioning and that he was questioned three or four times, never for more than 30 or 40 minutes while he was held before he was -- before he waived extradition on May 1st.

A cross-examination outside the presence of the jury not repeated before the jury, he testified that the Chicago police roughed him up a little bit, but admittedly he made no confessions or admissions to Chicago Police and admittedly, the Chicago police were very nice to him.

Now, the only real threat that -- to which he testified was the Chicago police did that he would be turned over to the Chicago Police -- the Washington Police said he should know -- the Chicago Police if he didn't confess.

The Washington Police denied any threat.

Now, there's a certain inherent incredibility in the alleged threats since admittedly from the time the Chicago Police picked him up, they told him he was in Washington and admittedly on May 1st, he's waived extradition.

On this basis, it seems to us that the claim of coercion was at best, a question for the jury which as I have said was submitted to the jury under instructions that were not accepted to, that were specifically accepted by trial counsel.

And for that reason, we think petitioner cannot allege, it's not merely a form of words, we think he cannot allege that on the undisputed evidence, there was coercion as a matter of law and therefore, we think he cannot even allege the denial of a constitutional right and that the Court of Appeals insofar as to discuss that question, discussed the hypothetical question.

Chief Justice Earl Warren: Mr. O'Connell.

Argument of Quinn O'connell

Mr. Quinn O'connell: Mr. Chief Justice, may it please the Court.

First of all, I think there are certain things that we ought to get straight as to what is not in dispute here.

It is not in dispute that the petitioner did, in his petition under Section 2255, claim that his confession was admitted in evidence at his trial and used against him over the objection of trial counsel and that the rights of the defendant under the Constitution and laws of the United States were clearly violated by the above described procedure that being part of the procedure.

He did raise certain McNabb and Mallory questions, but he -- the point is that he did specifically allege that this confession was -- should not have been admitted as a matter of law.

The District Court on its hearing and whatever basis it arrived in its decision, we do not know because there is no transcript of that -- of that proceeding, held that the confession was voluntary.

We don't know the basis for this decision in that matter.

The Court of Appeals did not review this decision, and this is the decision that we say that the petitioner is entitled to a judicial determination of, was if an error as a matter of law to have submitted this confession to the jury.

Justice Potter Stewart: The Court of Appeals did have before it the first time at least the trial record, did it nit?

Mr. Quinn O'connell: The Court of Appeals has had the trial record --

Justice Potter Stewart: Both times?

Mr. Quinn O'connell: Both times.

Justice Potter Stewart: Both on the re -- and again, on the rehearing --

Mr. Quinn O'connell: That is right.

That was the only record it had had.

Justice William J. Brennan: Do you agree (Inaudible)

Mr. Quinn O'connell: Well, I disagree from this point of view Your Honor that Judge Fahy also wrote the dissent and Judge Fahy wrote this opinion and Judge Fahy in his dissent seems to believe that this person is entitled to a hearing on this question.

So I don't believe that Judge Fahy could have meant that he had reviewed the record.

Justice William J. Brennan: (Inaudible)

Mr. Quinn O'connell: Well, I think it's a pure conjecture as to what he means in that regard as to whether or not, he reviewed the merits or not and I think it's unfortunate that we have to have this conjecture on the merits.

The -- we say that the transcript of trial does show as a matter of law that this confession was erroneously admitted.

The Government says that as a matter of law, it wasn't erroneously admitted.

All we say is that we are entitled to a judicial determination of this matter which we haven't received as yet properly.

We also -- pardon?

Unknown Speaker: (Inaudible)

Mr. Quinn O'connell: We say --

Unknown Speaker: (Inaudible)

Mr. Quinn O'connell: There was a judicial determination at the trial, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Quinn O'connell: We're entitled to a judicial -- judicial determination which may be based upon the trial record on this single small point which is a point which -- in which we claim the denial of basic rights.

And we claim that we're entitled to that because there was a -- there was justifiable excuse for the failure of this petitioner to appeal from his conviction and this --

Unknown Speaker: (Inaudible)

Mr. Quinn O'connell: Well, it would not necessarily be a second evidentiary hearing.

The Court could determine this on the trial transcript and obviously it would require a rehearing by the same court that decided it in order to get an appellant review of this decision.

Unknown Speaker: (Inaudible)

Mr. Quinn O'connell: They can do it on the -- they can do it, but they didn't do it.

That's all we want.

We want a review of this District Court's determination that it was voluntary.

We don't know what they base that on, but the record before the Court of Appeals wasn't only the trial transcript and we say on the basis of that trial transcript that if the Court had examined the trial transcript and decided the merits of this person's -- of this petitioner's claim which they didn't do.

Justice Felix Frankfurter: Are we barred from doing it?

Mr. Quinn O'connell: Well, I would say that you're not barred from doing it although I wish that we had argued in brief more thoroughly in this Court Your Honor.

Justice Felix Frankfurter: Based on the face of a record, the lower court's judgment, the Court of Appeals' judgment is right, must we send back to the Court of Appeals and say will you -- we've got all the facts before it, we've got the whole record, the legal issue is exposed but for one reason or other convenient or incompetence or whatnot, we send it back and ask you to make a legal conclusion.

Mr. Quinn O'connell: Well, it's a --

Justice Felix Frankfurter: I can see that that's sometimes desirably to be done.

If it's to be done (Inaudible) if we just practice on the next April, it would be five years since this trial started.

Mr. Quinn O'connell: Well, I think it would be more orderly for the Court of Appeals to be able to determine that issue.

They decided that they didn't have a right there.

Justice Felix Frankfurter: (Voice Overlap) to determine whether on the face of a record and issue was raised than we are?

Mr. Quinn O'connell: No, on the face -- but I think that it does require an analysis of the entire trial transcript from -- with from this point of view.

Justice Felix Frankfurter: It's only a little one.

Mr. Quinn O'connell: Well, and also, I think that on the other point that we're entitled to a hearing on, if there is confusion on the point that is whether or not this was excusable neglect.

If this is not acceptable on the basis of affidavits then we are entitled to a hearing on that and that's all we're seeking here is a judicial determination of (a) was this excusable neglect in failing to appeal, and (b) if it was, was this a matter -- an error as a matter of law to have admitted this confession into evidence.

The --

Justice Hugo L. Black: May I ask you one other question to get myself absolutely clear.

I'm not clear.

What I'm asking you especially for is not to discuss the merits and being implied on the merits because I want to see if I'm right as to what happens.

First, Judge Fahy wrote an opinion for the Court on the record as it then stood in which he did say that the man was not entitled to a hearing.

That's right, isn't it?

Mr. Quinn O'connell: That's right.

Justice Hugo L. Black: Then a motion for rehearing was made.

The defendant asked for -- to supplement the record and raised for the first time clearly as I gather from Judge Fahy's second opinion, the question that had been a good excuse on his -- from his standpoint and failing to appeal, is that right?

Did the supplemental motion with affidavits attached raised a new or supplement and strengthen the claim that there had been a reasonable excuse -- a good excuse for not appealing if such an excuse could justify anything.

Mr. Quinn O'connell: That's right, but the way this came up Your Honor is this, the appeal was noted from the denial of 2255 hearing.

At the time of the -- well, there was a brief filed and it was vacated and counsel was dismissed.

Justice Hugo L. Black: But let me ask you.

Mr. Quinn O'connell: Yes.

Justice Hugo L. Black: That's not the question that it clarifies to me and then you can bring it out.

Mr. Quinn O'connell: Alright.

Justice Hugo L. Black: Then Judge Fahy said the papers filed with that motion relied upon -- include affidavits, this state in substance and after he was sentenced argued -- it was promptly taken away and so forth without opportunity of this counsel to advice him and to get his appeal.

Now, did he on the basis of this new -- these new facts which he said appeared in this motion say that this change of situation told that it raises the question as to whether if the -- if the failure to appeal was justifiable and it raised the constitutional question, the Court should have a hearing to determine in this instance first, was the failure to appeal a good reason so as to say that this now could be raised on a 2255 motion.

Mr. Quinn O'connell: I think that's as precise --

Justice Hugo L. Black: Now, those -- those papers are here before us --

Mr. Quinn O'connell: That's right.

Justice Hugo L. Black: -- as you've stated.

Mr. Quinn O'connell: The affidavits are there before us.

Of course they have not been (Voice Overlap) -- the Government has not rebutted or anything.

I mean they had another hearing in which they rebut.

Justice Hugo L. Black: And you are insisting that Judge Fahy's view as to the fact of excusable neglect in an appeal can be raised in connection with a 2255 motion to the extent that if there was an excusable neglect or whatever the court found that to be insofar as the 2255 motion is concerned and substantial constitutional questions are raised, that that put him -- entitled him through a hearing on the facts alleged in the new motion before the Court of Appeals.

Mr. Quinn O'connell: Yes, because we don't know whether this --

Justice Hugo L. Black: Well, that's a rather unusual method of --

Mr. Quinn O'connell: Well, the reason that it's unusual Your Honor though is that there is no transcript.

The record -- that this is really subject to appeal is just gone.

There isn't any record of this 2255 hearing.

I would assume that this would have been a proper thing that would have come up at the 2255 hearing.

Why didn't the fellow appeal?

I don't know what happened at the 2255 hearing, but it seems that it would be very unfortunate because of this lack of a transcript of the hearing which has ultimately come to the Supreme Court that because we don't know that he should be deprived of any opportunity to explain his reasons.

Justice Hugo L. Black: Of course, if Judge Fahy is wrong in the basic premise on which he wrote that neglect to appeal will bar a 2255 proceeding just as it barred the appeal then your position would not be sound, would it, if he is wrong in there?

Mr. Quinn O'connell: That neglect to appeal?

Justice Hugo L. Black: That in that neglect to appeal --

Mr. Quinn O'connell: It's never -- no matter -- whether --

Justice Hugo L. Black: Whether excusable -- whether it's excusable or unexcused, the neglect to appeal no more grants a right, have the question reviewed on 2255 than it would on direct appeal.

If you are wrong -- if he's wrong in that, it ends your contention here, does it or does it not?

Mr. Quinn O'connell: Well, I believe it does Your Honor, but the point is this.

The Government itself concedes that there -- that there are hypothetical cases which they can conceive where the failure to appeal might be such that it would not bar a collateral attack and they mentioned such cases as --

Justice Felix Frankfurter: Now, we can decide those hypothetical cases?

Mr. Quinn O'connell: No, we're not to decide those hypothetical cases Your Honor, but all I am saying that as a practical matter, effectively, those hypothetical cases so far as our petitioner is concerned, his excuses is just as great as those hypothetical cases if he didn't know of his rights to appeal.

If a person comes to sentence under 37 (a) (2), Rule 37 (a) (2) without an attorney, the District Court judge is obliged to inform him of his appellate rights and have the clerk of the court note the appeal for him.

In effect, this petitioner was in no different position than a person who had actually attended the sentencing without a hearing.

And this, as a practical matter, this whole thing could be avoided by the very simple thing of having 37 (a) (2) applied no matter whether counsel is present or not because this is a -- this 10-day appeal period is evidently caused -- causes a lot of trouble where counsel who have either appointed by the court or who is representing a person without a fee after sentencing, they've gone through the trial and they leave.

I mean they just feel that their responsibilities are over evidently but --

Unknown Speaker: (Inaudible)

Mr. Quinn O'connell: No, no.

Under 37 (a) (2) now, the Court does have a duty if the person doesn't have counsel to tell him of his appellate rights and he has a right to appeal and the time length.

And if he has requested then as a result of telling this person, if the petitioner -- if the person requests the court that he does want to appeal, the court is required to have the clerk of the court note the appeal for the prisoner.

Unknown Speaker: (Inaudible)

Mr. Quinn O'connell: Well, it certainly would avoid this situation where a person who had counsel was not told of his rights to appeal.

He had been better of if he hadn't -- if he'd appeared with sentencing without counsel.

Justice Felix Frankfurter: Mr. O'Connell, before you sit down, there is one question on which I need enlightenment.

You are in the -- you are in the appeal and you're being appointed by the court, it naturally makes your service to us, all of them are welcome, you were before -- you argued the appeal before the panel.

Mr. Quinn O'connell: Yes, I did.

Justice Felix Frankfurter: Now, Judge Fahy writing from himself and Judge Martin with the conclusion, decided what he did on December 30th, 1959, that's nearly two years ago and then there was a petition for rehearing en banc and that was granted and we have the disposition on the -- of the en banc court that's now before this Court.

What I want to know is whether any new materials -- legal materials other than briefs, whether any new applications, modifications of prior pleadings, were there anything that comprehensibly called pleadings or request for change the record was made before the disposition on the panel appeal and the disposition before the full bench.

Mr. Quinn O'connell: The only thing that might be considered a pleading is the attempt to supplement the record with these affidavits.

Justice Felix Frankfurter: Was that dated after December 30th?

Mr. Quinn O'connell: Oh, after this opinion, nothing has been done.

Justice Felix Frankfurter: I'm just saying, was there anything before the court en banc that wasn't before Judge Fahy's panel?

Mr. Quinn O'connell: Yes.

Justice Felix Frankfurter: What?

Mr. Quinn O'connell: The affidavits of the counsel showing the reasons for excusing to appeal.

Judge Fahy's panel did not have that before it.

Justice Felix Frankfurter: Now, that -- that counsel's affidavit merely says, not merely says, the counsel's affidavit said that they told the wife who had hired them -- who had retained them, I beg your pardon, who had retained them that he should appeal, is that right?

Mr. Quinn O'connell: That is correct.

Justice Felix Frankfurter: The only light we get on the non-appeal -- on the absence of an appeal from the original trial was counsel's affidavit to the wife to the person who retained them that they thought an appeal should be pursued.

Is that correct?

Mr. Quinn O'connell: That's right.

And I say -- and I agree that it's an unsatisfactory record.

Justice Felix Frankfurter: Alright.

That's -- that's the only difference between matters that were before Judge Fahy when he wrote the opinion for the panel and the matters that were before Judge Fahy when he wrote his dissent.

Mr. Quinn O'connell: That's right, because Judge Fahy's opinion for the panel said, based his opinion on the fact that there had been no reason even offered for failing to appeal.

And this --

Justice Felix Frankfurter: Now the --

Mr. Quinn O'connell: -- a reason had been offered prior to that but a different panel had rejected the offer to supplement the record and when it was brought out to the court that they were actually were reasons for failing to appeal, these affidavits were not filed after the -- Judge Fahy's opinion.

They had been prepared and a motion to supplement the record had been made when the case first went up before it was briefed.

Justice Felix Frankfurter: Well then -- weren't they before the panel when Judge Fahy (Voice Overlap)?

Mr. Quinn O'connell: Because a different penal of the Court in acting upon the motion to supplement the record before the panel had even been picked to hear the case on the merits had -- with the per curiam order refused to allow the affidavits into the record.

Then Judge Fahy, he decided the case on the ground that no attempt had been made to show why this appeal had not been taken.

Well, an attempt had been made but had been rejected by different panel and this is what we pointed out on the hearing.

Then Judge Fahy came around to the point where he said, “Well, if I had known that and now I do know it, then he has a right to determine whether or not this affidavits are true,” and if they are true then --

Justice Felix Frankfurter: But they've accepted it.

Those affidavits were -- the affidavit --

Mr. Quinn O'connell: Well --

Justice Felix Frankfurter: -- we have a case here that soon will have its fifth anniversary from the day of the trial and soon will have its fifth anniversary and today there has been a succession of three different lawyers at different stages adjusting themselves quite rightly to new situation in legal opinion such as the Mallory opinion.

New lawyers came in and adjusted themselves to the Mallory opinion.

They raised that then those lawyers, I don't how or why they disappeared but then you, as the matter of public service were appointed and now we've got some new grounds.

Mr. Quinn O'connell: Well, I don't believe there are any new grounds Your Honor from this point of view.

At the trial, there was objection that this was -- this should not have been admitted into evidence that it should not have been submitted to the jury.

In his petition for -- under 2255, he claim that his constitutional rights were denied by admitting these things into evidence and that's -- that's the whole issue here.

But do we reach it?

Does he get it --?

Justice Felix Frankfurter: If that is so, then we've got it all before us and we are just as competent to decide on what is on the phase of records as anybody else below.

Indeed -- indeed if what you say then it's our duty to say whether there was any traversable or any real so-called fundamental right involved.

Mr. Quinn O'connell: Well --

Justice Felix Frankfurter: You say we must shut our eyes what's between this (Voice Overlap)

Mr. Quinn O'connell: I don't --

Justice Felix Frankfurter: -- and we must send it back to the judges (Inaudible).

Now, with another goal and case comes back here about two years from now.

Mr. Quinn O'connell: Well, I am all for the prompt disposition of this case, Your Honor.

But all I say is that I -- unfortunately, we felt that the issue on certiorari was based upon the issues that was decided by the Court of Appeals and that's the issue we've tried to present it.

Justice Felix Frankfurter: But there was a lot of talk in the Court of Appeals.

They each got interested and there are great big issues.

Judges like lawyers like to be with great big issues.

Mr. Quinn O'connell: Well, at least that -- it's that great big issue that we were here trying to decide -- have you people decide, and unfortunately, we have not briefed the other issue on the merits and we feel --

Justice Hugo L. Black: (Voice Overlap) found the issue that Judge Fahy suggests which I agree.

What we would say was this, whether the record as it is with the supplement that Judge Fahy was unaware off when he wrote second opinion, sufficient to justify the findings that there was an excuse of the delay and then that forces us, does it not, to reach the question is to whether an excusable delay even would be sufficient to justify 2255 hearing.

Mr. Quinn O'connell: That's right.

That's the precise issue here I believe.

Justice Felix Frankfurter: Why wouldn't -- why weren't those affidavits there -- they were in physically existence?

It's difficult for me to understand why they weren't available to the panel.

The fact that a --

Mr. Quinn O'connell: Well, this is --

Justice Felix Frankfurter: -- the fact that a district judge said legally not relevant, it didn't take them out of the --

Mr. Quinn O'connell: This was not a District Court judge.

Justice Felix Frankfurter: I don't care about another panel there for the record and I can't imagine that one panel can't found out what another panel did in the same litigation.

Mr. Quinn O'connell: Well --

Justice Felix Frankfurter: What are these panels, the independent property?

Mr. Quinn O'connell: I don't know Your Honor.

Justice Hugo L. Black: (Voice Overlap) on the fact that Judge Fahy is a very competent judge.

He said this, in his petition for rehearing, Hodges brings to our attention that in earlier proceedings in this Court, he sought to supplement the record on appeal to show why he had failed to appeal (Inaudible).

The significance of this showing was not urged in briefs and arguments.

The hearing was led to the opinion of December 30th, 1959.

That's the one Judge Fahy had previously (Voice Overlap).

Mr. Quinn O'connell: That's right Your Honor.

Justice Hugo L. Black: No doubt because another division of our Court has denied the motion to supplement the record.

Mr. Quinn O'connell: That's right Your Honor.

Justice Hugo L. Black: Judge Fahy then went on to say that on the basis of this new -- the fact that he had not been familiar with, he now thought that the man was entitled to a hearing.

Mr. Quinn O'connell: That's right Your Honor.

Justice Felix Frankfurter: Do you think there's no doubt that he's a good (Inaudible)?

Mr. Quinn O'connell: Pardon me?

Justice Felix Frankfurter: Do you think that no doubt is a good logical conclusion?

After all, this is one case and it's still a one case.

Mr. Quinn O'connell: Well Your Honor, I know why it wasn't argued before that panel because I argued the case and it wasn't argued before the panel because the Court of Appeals had told me that they would not allow this in the record and this -- if there's an error that's an error of the counsel.

Justice Felix Frankfurter: The next person told me, it was a new panel -- a different panel, so evidently, they are a different (Inaudible)

Mr. Quinn O'connell: Well, it's the same court speaking to a lawyer and I just -- whatever the panel speaks to me --

Chief Justice Earl Warren: Well, Mr. O'Connell, the Court is aware of the fact that you are appointed to represent this defendant by the court below and that you've protected his rights not only in that court but you've done your best to do so here and that we appreciate.

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

We recognize it as a real public service and we thank you very much for your sincerity in doing it as public service.

And Ms. Rosenberg, of course, we thank you for your diligent and efficient manner in representing the interest of the Government.

Both sides must be represented in the same spirit, so thank you both.

Mr. Quinn O'connell: Thank you.

It's been a privilege Your Honor.