FAY v. NOIA

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Argument of William I. Siegel

Chief Justice Earl Warren: Edward M. Fay, Warden, et al., Petitioners, versus Charles Noia.

Mr. William I. Siegel: Mr. Chief Justice and may it please the Court.

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

Mr. William I. Siegel: Thank you.

New York is here in this Court, if the Court please, seeking to reverse a judgment and order of the Circuit Court of Appeals for the Second Circuit which we believe has seriously infringed the sovereignty of the State of New York in the particularly important and delicate field of its right, its constitutional right to make reasonable rules and regulations in the administration of its criminal justice, and I believe, certainly, I hope that the statement of the history of the case were in itself practically be enough to demonstrate the correctness of our contention without any extended discussion of the principles of law which are involved because it would be, it seems to me unnecessarily a waste of time for me to argue the principles of law which have been laid down by this Court and have been written about and decided upon by this Court in a number instances which are in my brief.

In 1942, three men were indicted by a grand jury in Kings County which is the famous Borough of Brooklyn, New York for the crime of murder in the first degree.

They were this respondent Noia, a man named Caminito and a man named Bonino.

And the charge against them was that during the commission of a robbery, they had killed a man named (Inaudible) -- Hammeroff.

They were put to trial and the only evidence which the People produced against them aside from the corpus delicti was the respective confession of each of the defendants.

The confessions of each attack as being involuntary, as a product of police brutality and when the evidence was all in, the trial court charged the jury that this was the only evidence against each defendant, this confession and that the jury -- that the jury had to find the confession both voluntary beyond a reasonable doubt and true beyond a reasonable doubt and that the People's proof didn't reach that measure of quantity and quality.

The respective defendant as to whom the People failed should be acquitted.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William I. Siegel: No.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William I. Siegel: Our statute which is I think 399 of the Code of Criminal Procedure requires -- says that a confession alone -- a confession may be received in evidence against the defendant unless it is the product of force, threats or promise of immunity by the district attorney.

The only other thing that is necessary is direct proof of the corpus delicti.

But if the jury finds as it did in this case, that the confession was voluntary and true and if we successfully proved the corpus delicti, a basis, a sufficient basis for a verdict and for the judgment which was subsequently entered here, the jury under our law has the power to recommend clemency, they did so and each of these men was sentenced to life imprisonment.

Justice Potter Stewart: New York has no preliminary hearing as to the voluntariness of the confession --

Mr. William I. Siegel: No, Your Honor.

Justice Potter Stewart: -- before the judge?

Mr. William I. Siegel: We leave it to the jury.

There's a good deal of debate in New York at the present time as to the propriety of that, but we still leave it to the jury.

I'm ‘neither a prophet nor a prophet's son' but I think the time would come when we use a different system.

Now, I'm coming to what is factually the most crucial question in this whole case.

Bonino and Caminito each appealed first to the appellate division and they had an absolute right to do so because they had the funds to print the record and the brief.

That court unanimously affirmed the judgment against the contention of some procedural error and also the repeated contention of coerced confessions.

They got the leave to go to the Court of Appeals and that court unanimously affirmed the convictions.

Now, I ask Your Honors to remember as the very cornerstone and I believe eventually the capstone of this case that Noia did not appeal.

This is the question on which the whole case turns.

Now, we -- Caminito --

Justice Potter Stewart: (Inaudible) was pretty clear that Noia was the triggerman?

Mr. William I. Siegel: The trial court charged the jury that in Noia's confession, he had admitted that he was as Your Honor so graphically puts it, the triggerman.

He fired a fatal shot.

Now --

Justice William O. Douglas: Is it your argument that because you think they're guilty they -- this should be reversed?

Mr. William I. Siegel: Oh no.

Oh no.

I haven't -- I've abstained from any discussion of the facts in the case.

I may answer Your Honor now and --

Justice William O. Douglas: You're talking about (Voice Overlap) --

Mr. William I. Siegel: -- perhaps preclude myself from further argument by telling you that our position is that because Noia did not follow out or did not avail himself of the rights of appeal which New York gave him, he had no right ultimately to come in to the District Court, the Federal District Court to seek a writ of habeas corpus.

Justice Potter Stewart: But it might be relevant as to why he did not appeal.

Mr. William I. Siegel: Well, I --

Justice Potter Stewart: And not have a (Voice Overlap) --

Mr. William I. Siegel: I have a good deal of material --

Justice Potter Stewart: -- to my question.

Mr. William I. Siegel: I have a good deal of material on that Your Honor.

Justice John M. Harlan: Is Noia represented by a counsel at the trial?

Mr. William I. Siegel: Yes, he was.

Justice John M. Harlan: And at the time of the appeal, if he had appealed?

Or was it -- he had the advice of counsel at the time that he -- for whatever reason it was, that (Voice Overlap) --

Mr. William I. Siegel: As to whether or not he could appeal?

Justice John M. Harlan: Yes.

Mr. William I. Siegel: That I think we successfully showed that in a hearing held in the District Court on the petition for writ of habeas corpus.

Caminito and Bonino applied to this Court for certiorari and it was denied and I think Mr. Justice Black and Mr. Justice Douglas dissented in that instance.

We have no -- we have no statute of rule in New York which limits the time for a motion for reargument and so Caminito made two motions for reargument and they were both denied by our Court of Appeals, then he came into this Court and asked for certiorari and it was denied.

That put him into a position under Section 2254 of the United States Code annotated to apply for a writ of -- for a writ of habeas corpus and he did so and the District Court in the Northern District by Judge Foley dismissed the petition.

The Second Circuit Court of Appeals reversed Judge Foley and sustained the petition.

In effect, it reversed the judgment of conviction against Caminito and I -- we applied here to this Court for certiorari from that order and our petition was denied.

Now Bonino enters the picture.

Justice Arthur J. Goldberg: And the Court of Appeals did this on (Inaudible) that his constitutional rights were (Inaudible)

Mr. William I. Siegel: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William I. Siegel: That the confession against him had been extorted.

Now, Bonino enters the picture and he makes the motion in the State Court of Appeals for reargument and our Court of Appeals grants the reargument and upon the reargument, reverses itself, reverses the judgment of conviction.

And while it is not in the record, I don't think I'm indulging in any propriety -- impropriety when I say that at my request, our Court of Appeals in its opinion said that from any retrial of Bonino which would follow, which might follow, we should not use his confession.

Justice William O. Douglas: If he had appealed and along his appeal, he could be retried?

Mr. William I. Siegel: Who's this?

Noia?

Justice William O. Douglas: He could be retried?

Mr. William I. Siegel: Well, I believe that just as Bonino --

Justice William O. Douglas: Under New York law.

Mr. William I. Siegel: -- took advantage of Caminito's good fortune --

Justice William O. Douglas: I say, under New York law he could be retried.

Mr. William I. Siegel: Yes, I think so.

I think that the Court of Appeals would have taken the decision of the Second Circuit as a pattern for Noia just as it did for Bonino and would have reversed as to him.

Justice William O. Douglas: I see, he could have -- if he had appealed and got reversed, he could have been retried?

Mr. William I. Siegel: Yes.

Justice William O. Douglas: And on the (Voice Overlap) --

Mr. William I. Siegel: We still have --

Justice William O. Douglas: On the second trial, he might have got the death sentence?

What -- that he --

Mr. William I. Siegel: You mean, if he had appealed originally.

Justice William O. Douglas: Yes.

Mr. William I. Siegel: Yes, I'm going to make the point that on the -- that the real reason why Noia did not appeal from the original judgment of conviction was that he was satisfied at the time at least with the judgment of life imprisonment and didn't want to risk for retrial.

I think I proved that in the District Court in a proceeding to which I will refer.

Justice William J. Brennan: (Inaudible)

Mr. William I. Siegel: It's still outstanding that about --

Justice William J. Brennan: And not for retrial.

Mr. William I. Siegel: Now, they're six, seven years old, I may say to Your Honors that I don't see how we can possibly retry him.

Justice John M. Harlan: (Inaudible)

Mr. William I. Siegel: That and also the famous decision in our Court of Appeals, the People against Prosser, I think the minute we seek to reactivate these indictments against Caminito and Noia and Bonino, we'd be met with the argument of undue delay and prosecution just as this Court held in the Provo case.

El Paso case is like the Provo case in this Court.

Justice William J. Brennan: (Inaudible)

Mr. William I. Siegel: I would think so.

Now, Your Honors, I realize the judges being men before they are judges and at the same time simultaneously men as they are judges.

This is not a very collatable situation.

Here are two men, Caminito and Bonino who are out on bail and for all intents and purposes are free.

And here is a man Noia who if I am successful on this appeal would have to go back to prison for the rest of his life.

I have two answers for that.

One answer is that it's not a situation that I will make -- a situation he's making and that he failed to avail himself of his right to appeal.

And the other is and if I'm seeing anything improper here, I hope somebody from the bench will stop me.

We would be ready to do here what we've done in other instances.

Not exactly like this but instances where there seems regardless of the question of guilt, there seems to be an inequity in the eventual treatment of two or more defendants.

If this man, Noia will appear ever made an application to the Government of the State of New York for clemency, I'll work out some sort of result which would put him so far as it lays within our problem on a parity, on an equality with Bonino and Caminito.

I don't think its material to this case.

I'm certainly not suggesting that as a price for the reversal of the order of the Second Circuit but in order to meet what I think was the real ground of decision by the majority in the court below, I'm saying to this Court as I've said to every court before whom I've appeared and I have a history of litigation of this case for years now that we don't like this situation either.

Even though it's not performed with the People of the State of New York, even though it is a situation which Noia brought upon himself by not appealing, we don't like it either.

Now to get back to the facts, it's only -- it was only after Caminito and Bonino had become the beneficiary for this good fortune that Noia bestirred himself into action.

He made a motion in the county court which was the original trial court to vacate the judgment of conviction against him.

Caminito made a more or less contemporaneous motion not only to vacate the judgment that had already been done but to dismiss the indictment against him.

The matter came on before a county judge and on some basis of natural justice because he couldn't find any reason in the law of coram nobis or any such avenues of relief in New York, the county judge granted the motion.

That is to say he vacated the judgment as to Noia and he dismissed the indictment as to Caminito.

Well, we took an appeal to the Appellate Division which reversed and then the appeal went to the Court of Appeals and it think it is significant that in the Court of Appeals, Judge Fuld wrote for a unanimous court the opinions which Your Honors will find at pages 4 and 5 of my brief and I will merely summarize them.

They -- the Court of Appeals held first, there is no such thing as natural justice.

The criminal justice has to proceed according to law, and the laws of New York had very definite rules and avenues with respect to matters like this.

And secondly, that coram nobis which in New York has merged it into bloom in the late years since about 15 or 18 years ago in the historic case as a matter of Lyons against Goldstein, coram nobis would not lie because coram nobis is designed to bring to the attention of the court a matter of fact, a question of fact not known to the court or the defendant at the time the judgment was entered.

Here, all that Noia was saying in effect -- I didn't take an appeal although I could have taken an appeal under New York law it's unjust to keep me in prison when my codefendants to all intention and purposes are out.

And Judge Fuld wrote the opinion which is I say Your Honors will find at pages 4 and 5.

I ask you to consider its importance in this aspect.

Our Court of Appeals had the powerless condition of Noia as contrast to the relative freedom of his codefendants before you.

They are men at the same time that they are judges but they refused to depart from the law of New York, the law of coram nobis and the nonexistent law of natural justice and so they sustain us and the judgment against Bonino and the indictment against Caminito was reinstated.

Chief Justice Earl Warren: Mr. Siegel, am I correct in my assumption that that there was no subsequent hearing to the trial on this issue?

The -- all the courts have decided this on the record at the trial.

Mr. William I. Siegel: You mean on the failure to appeal?

Chief Justice Earl Warren: No, no.

I'm talking about the release of the two codefendants.

You didn't have any additional hearing, no additional fact.

Mr. William I. Siegel: No.

Chief Justice Earl Warren: It was done on the record of the trial.

Mr. William I. Siegel: That's right.

I -- we submitted to the District Court and then to the Second Circuit Court the record of the original trial and there, practical reversal of the judgment was on the record of the trial.

Chief Justice Earl Warren: Yes.

Mr. William I. Siegel: There was no hearing, in other words, on Section 2254 of the United States Code.

Now, we come to the beginning of the -- this present proceeding.

Noia sued our writ, petitioned for writ of habeas corpus in the -- I think it was in the Northern District of New York.

I opposed it by an affidavit which I recited the background of the facts and in which my principal point was that the District Court should not and in fact could not entertain the petition because of Noia's basic original failure to avail himself of the right of appeal.

Now, that came on before Judge Cashin or rather in the Southern District.

And Judge Cashin was disturbed by the situation that faced him, or in Caminito and Bonino out.

And Judge Cashin wanted to find out if he could why Noia had not appealed and so he ordered a hearing on that question.

He had Noia brought down from the prison and we had a hearing.

Noia took the stand and he testified that he didn't appeal --

Chief Justice Earl Warren: Finish your statement (Inaudible).

Mr. William I. Siegel: He testified that he didn't appeal for two reasons and I think perhaps Your Honor, I -- we can give you his reasons tomorrow.

Chief Justice Earl Warren: Very well.

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Argument of William I. Siegel

Mr. William I. Siegel: May it please the Court?

When the Court recessed yesterday afternoon, I had reached that point in the narrative of the case history where Noia had presented his petition for the writ of habeas corpus to the District Court, Judge Cashin.

Judge Cashin expressed a desire to learn if it were possible, exactly why Noia had failed to appeal from the original judgment of conviction.

And so a hearing was ordered and held.

And Noia was brought down from the prison and testified in his own behalf.

And in substance, he testified that he refrained from appealing because he had exhausted his funds and his family's funds, and he didn't want to give further burden on them.

And he also testified that he did not know that he had the right to apply to the Appellate Division for permission to appeal as a poor person and that upon a showing of merit, the application would be granted.

New York called Mr. Louie Walker, who had been Noia's trial counsel and Mr. Walker testified that he visited Noia in the jail before Noia's commitment to the prison during the 30-day period in which a notice of appeal could be filed.

He told Noia that Caminito and Bonino had or were going to appeal.

He suggested to Noia that he should appeal.

He expressed his opinion that upon such an appeal, the chances for reversal were very good and he offered to file a notice of appeal in Noia's behalf.

I asked him why, if he knew, why Noia finally decided not to appeal, and his answer in substance was this; that while they discussed several reasons, the real reason was that Noia did not want to run the risk of a reversal, a new trial, and perhaps a less clement verdict at the hands of a jury and judgment at the hands of the Court.

They had been contemporaneously in Brooklyn a case of a defendant named Hull, who had been convicted, who had appealed from a life sentence, who had won a retrial, who had been reconvicted, and who had been executed and the hearing rested in that condition.

Judge Cashin rendered his decision --

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: Precisely.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: Well, actually on the appeal by Bonino and Caminito, there were -- there was one or perhaps more errors urged in the ruling of the trial court and the judgment was affirmed on the basis of Section 542 of our Code of Procedure, which, criminal procedure, which authorizes the appellate court to render judgment regardless of any error which does not, in the judgment of the appellate court, affect the substantial rights of the defendant.

It may very well be that Mr. Walker's opinion was based on the existence of that error or those errors.

And I think Your Honors will realize that where there is an error of law in a record, no lawyer is so gifted with the gift of prophecy that he can tell that the appellate court will say, “This is or it is not a substantial error under Section 542.”

At the moment, Your Honor, I really don't remember what the error was, and if I may say so, for the purposes of this argument it's not material.

The point is that an experienced lawyer and the record discloses that Mr. Walker was experienced in the criminal law, told Noia that in his judgment, there was good chance of a reversal.

Now, when Judge Cashin --

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: No.

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: No, Your Honor, I was just about to come to that.

Judge Cashin refrained from making any findings of fact.

Although, I think when you read the record, you will agree that if it had been necessary, if he had felt it to be necessary to make findings of fact, he would have found that this was the reason for Noia's refraining from appeal.

That is clear from his opinion.

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: My answer to that, Your Honor, is that I never thought it was necessary for Judge Cashin to find this fact; that under the statute itself, under Section 2254, and all the cases before it culminating in Ex parte Hawk and all the cases after that.

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: Wasn't it --

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: That's right and I can only repeat, Your Honor, that I didn't then think and I don't now think that that was an issue relevant to the issue of law before Judge Cashin.

And as a matter of fact, Judge Cashin refrained from making a finding because as he expressed it in his opinion on the reasoning in the authority cited above and, of course, he had reviewed all of the cases and the statute.

I feel constrained to dismiss the writ because of relator's failure to exhaust his state court remedies.

In other words, he decided it purely as a question of law.

He granted Noia a certificate of probable cause and the case came to the Second Circuit, the legal aid was assigned and Mr. Polsky represented the Noia and presented the arguments in his behalf.

And he presented them with a depth of a scholarship and breadth of research and the clarity of expression which I'm sure, Your Honors will immediately know as soon as he addresses this Court and I enjoyed his presentation for two reasons.

First, because it was an intellectual treat to listen to him and secondly, because I was wrapped around with the sense of perfect confidence in the result.

It seemed to me that the issue, as he presented it, could not be successful because his argument really amounted to this; that Section 2254, when it speaks of the exhaustion of state remedies, means state remedies at that point available to a state defendant.

Whereas, to me it seemed equally clear, in fact more clear that 2254 because of its history and because of its underlying reason meant that a -- that if ever there had been a state remedy available to a defendant, such as here the remedy of an appeal from the judgment, it had been incumbent upon the defendant to exhaust that remedy and if he failed for any reason, except the interference, let me say, for instance by the state authorities, if he failed to exhaust that remedy, he was irrevocably and forever barred from seeking to end to the federal court.

The issue, I thought, was as simple as that.

Well --

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: No, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: No, sir.

If Your Honor will look -- if Your Honor will look at the note immediately above on that page after stating that the respondent had adduced evidence which tends to show that the relator has motive for not appealing, might well have been the fear that on a retrial the death penalty might be imposed.

Judge Cashin said, “I prescend from making any finding on the issue since I think it is entirely unnecessary.”

In other words --

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: Prescend, I am very sure means, I refrain.

It's the only instance in which I ever heard it used, but I'm sure it means, I refrain.

In other words, he commented upon the evidence, but he made no formal judicial findings of fact and he decided the matter purely on the issue of law.

Well, as I say, we had the argument in the Second Circuit and being so secure in my confidence of ultimate victory, and in the righteousness and reasonableness of my position, I thought that we would get a relatively speedy determination from the Second Circuit.

Well, it took 10 months for that court to decide this matter by a divided court with a very vigorous dissenting opinion by Judge Moore.

And whenever I had occasion in the intervening months to think about the matter and it wasn't very frequent because I live a very busy life, I began to realize that this passage of time boded no good for the case of the State of New York.

And I was not surprised when ultimately the unfavorable decision did come down.

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: Yes, Your Honor.

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: Well, I think what Judge Moore meant by that was, that the majority of the Court shouldn't decide the law of question on the basis of Noia's polis situation when he had to make this decision without having a finding of fact from the District Court on that issue, but I also submit that Judge Moore upheld that the issue was only a question of law.

Well, I pass now Your Honors to the reasons given by the majority for their decision, and I shall be very brief in my analysis of them for several reasons.

First, is that I really don't understand the reasons; and secondly, I don't believe they're material to this issue; and thirdly, and because the majority of the Second Circuit didn't really decide the case on any one of the grounds, which it discussed so fully in this very lengthy opinion.

For instance; the majority wrote on the question of waiver and it said in substance, that Noia did not or had not waived his right not to be convicted on the basis of a coerced, and therefore illegal, and unconstitutional confession.

Well actually, that wasn't the question of waiver that was involved; no defendant ever waives that right.

He goes to trial with the right, the protection surrounding him that he shall not be subjected to the use and effect of such a confession.

The question of waiver that was involved was: Did Noia or had Noia waved his right to appeal from such a judgment?

And as I read the opinion after having discussed the question of waiver, the majority in effect said that they were not deciding the case on that basis.

Then they passed to the question of exhaustion of state remedies.

Now, it was incumbent upon Noia to convince that court, that Section 2254, when it speaks of the exhaustion of state remedies, means remedies now available to a state defendant.

That if now there is no remedy, he's entitled to the federal writ and concededly there was no longer any remedy available to Noia in New York because the Court of Appeals through Judge Fuld in the opinion which I have in my brief had said the coram nobis was not available and that there was no such doctrine as abstract natural justice to which he could address himself.

And as I read the opinion of the majority, they did not decide the case on that issue.

And then they passed to another point and discussed but did not decide the case on the basis of whether or not there was present and adequate -- an independent and adequate state ground of decision.

Actually, the opinion of the majority is based on language which Your Honors will find at page 28 of my brief.

And I would like to read because it seems to me that it sums up the reasoning, with great deference to the Court, I think I should say the emotion rather than the reasoning of the Second Circuit which is the basis, the real basis of this decision.

After having written some 30 pages or so of an opinion raising three different grounds and then veering away from it, the majority wrote, “Thus we come to the last scene in this human drama.

Is there an adequate state ground in this case dooming relator to life imprisonment?

Our answer is no.”

The state ground here is inadequate.

We must realize that adequacy is a term of relativity.

No state ground is entitled to unqualified deference.

As we noted in the last paragraph for the state ground to be adequate, it must be reasoned and I can best answer that in words of Judge Moore in his dissent.

I don't think I or anybody else could improve on his answer.

Justice John M. Harlan: You read that as saying, as the majority -- the Court of Appeals saying that the state ground principle is available is available in habeas corpus that they did not regard the state ground as an adequate one?

Mr. William I. Siegel: Yes, I do, Your Honor.

I think Judge Moore gave a complete answer when he said or when he wrote, thus the majority has and he quotes them, “Come to the last scene in this human drama, dooming relator to life imprisonment.”

Legal principles having failed to produce the desired result, resort must be had to a tour de force by the fear that”, then he quotes again, “No state ground is entitled to unqualified deference and adequacy in any event is but a term of relativity.

After all for the state ground to be adequate, it must be reasonable and what could be more unreasonable than requiring a defendant to appeal.

And this, Your Honors, is a case in a nutshell.

New York had provided a ground of relief for Noia as it has for every defendant.

I -- while in those days antedating Griffin against Illinois, the Appellate Division reserved to itself the right to require of an appealing of an indigent defendant that he showed some merit which he does not do today.

I can say to Your Honors, from my experience that in a case involving life imprisonment, it is to me inconceivable that if Noia had made an application for leave to dispense with printing and to appeal as a poor person, that the Appellate Division would have denied that application.

They would have granted it as a matter of cause because of the severity of the punishment.

And therefore, as Judge Moore says, and he says it with his judicial tongue and his judicial cheek, what could be more unreasonable than requiring a defendant to avail himself of a right of appeal.

Justice Arthur J. Goldberg: Mr. Siegel, at that time in your practice, was a transcript available for the defendant?

Mr. William I. Siegel: Yes, Your Honor.

Noia -- I asked the Court to believe me that if Noia had made the application to the Appellate Division, he would have been granted the right and the transcript would have been had, and if necessary, he would have had counsel assigned to him.

It all rests within the discretion of the Appellate Division and it was a discretion which I am confident would have been employed in his exercising his faith.

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: Yes, our statute provides that when a case is retried after an appeal, it is as though the first trial had not taken place.

That disposes of every question of double jeopardy and so on.

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: Well, that's our rules in the Code of Criminal Procedure.

Justice Arthur J. Goldberg: Can you tell us the word about the Hull case that Noia is trying to abandon to discuss with him and (Voice Overlap) it wasn't that -- that type of proceeding?

Mr. William I. Siegel: It was a murder case.

Jury recommended clemency.

Court followed the recommendation, imposed a judgment of life imprisonment.

Hull took an appeal.

It reversed and with very serious and untoward consequences to follow on the retrial.

What the form of the grounds, I mean what facts were, I don't know, Your Honor.

Now, I have only one more point --

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: Well, if I understand Your Honor, my answer would be that no matter what the language is in which the majority couched this principle, the real content of the language and the decision is expressed in this human drama, human drama aspect of the opinion.

Justice Hugo L. Black: [Inaudible] if the statute did recommend under the law [Inaudible]

Mr. William I. Siegel: That's right.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: Yeah, and then they went --

Justice Hugo L. Black: They will not recognize that [Inaudible]

Mr. William I. Siegel: Well, that --

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: Yes.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: No, it's based on the nature of the specific facts in any specific case.

Justice Hugo L. Black: It's not based on the -- there's no statutory rule of law written enacted by Congress to [Inaudible]

Mr. William I. Siegel: I don't know of any such statute, Your Honor, and I'm very confident that there is no such statute.

Justice Hugo L. Black: You get down [Inaudible] as a matter law, what is the [Inaudible]

Mr. William I. Siegel: That's right.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: That's right and I think that the majority should have not made a decision in that aspect of the case purely on the basis of Noia's polis condition and as I contend in the phase of the express language of Section 2254, and the --

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: That is the statute which regulates the procedure.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: No, it does not.

No it does not, Your Honor.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: No, it does not.

That is --

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: I don't know sir, there is not.

Justice Hugo L. Black: And in effect, that you stated that was decided on each case.

Mr. William I. Siegel: That's right.

But --

Justice Hugo L. Black: Do you think as a matter of law, it should be here no matter how big this constitutional violation [Inaudible] that it would be held [Inaudible]

Mr. William I. Siegel: That's right, Your Honor.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: That's right.

Justice Hugo L. Black: Whether that tends to be barred, perfectly barred under the law.

Mr. William I. Siegel: That is correct.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: That is correct and that leads me to my last point which is an answer in --

Justice William J. Brennan: [Inaudible]

Mr. William I. Siegel: Yes, Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. William I. Siegel: Yes.

Justice William J. Brennan: [Inaudible]

Mr. William I. Siegel: I know, Your Honor.

All I know are the four corners of Section 2254, which says; no man shall come in on a writ of habeas corpus who hasn't exhausted his state remedies.

And as I say, I'm coming to my last point which is really an answer, an anticipatory answer to the argument that Mr. Polsky is going to make.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: Go right ahead, sir.

Justice Hugo L. Black: But he who had exhausted his [Inaudible] at this time, because you said the state will not -- didn't examine it because he did not have [Inaudible]

Mr. William I. Siegel: He has exhausted it in the sense, in the realistic sense that there is no state remedy but he has not exhausted it --

Justice Hugo L. Black: He did not take an advantage [Inaudible]

Mr. William I. Siegel: To put it in another fashion, Your Honor, exhaustion here is a term of odd.

It has a very definite legal meaning.

It does not represent just the state of facts.

It represents a legal procedure.

Now, in that sense, he has not exhausted it.

In the realistic sense, that as a matter of fact he is nowhere for him to go in the courts of a state, that's so, but our position is that the factual aspect, harsh as it is and maybe unpleasant to contemplate as it is to everybody, to me no less, me as a prosecutor no less than to Mr. Polsky or to this Court or any other court, there are reasons and I will state them.

They've been stated time and again by this Court, there are reasons why this should be so.

The last point in Mr. Polsky's brief is a plea to this Court that the rule in Brown against Allen should be overruled.

In other words, that the doctrine, the exhaustion of state remedies should be wiped out of the -- of the cases and I submit the --

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: Well, that is what Mr. Polsky would like, Your Honors, to substitute in place of all the cases which have been decided up to this point, which uphold my position.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: You'll find in the treat, Your Honor.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: I have to say again, Your Honor, that the use of the word ‘exhaustion' in that context is an inaccurate use of the word.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: There is no present remedy

Justice Hugo L. Black: There is no remedy that he had at this time --

Mr. William I. Siegel: No remedy.

Justice Hugo L. Black: -- because of the stay, the conviction barred --

Mr. William I. Siegel: That's right.

Justice Hugo L. Black: -- under state law.

Mr. William I. Siegel: I concede that.

Justice Hugo L. Black: [Inaudible]

Mr. William I. Siegel: That's right and that this Court, heretofore, before the statute which is a codification of the law laid down before its enactment and since the statute has ruled in the fashion in which I now say is the law and for a reason --

Justice Hugo L. Black: [Inaudible] they are not certain in some cases that the state would not bar if [Inaudible]

Mr. William I. Siegel: Oh, I concede that if the prison --

Unknown Speaker: [Inaudible]

Mr. William I. Siegel: No, Your Honor, I have conceded.

I will do so again that if for instance the prison authorities had prevented Noia from sending in his notice of appeal and filing it within the statutory 30 days, there isn't a court in the world and I'm certain this Court or any federal court, or the courts of New York would have not prevented him from doing so.

We are today adjudicating that in New York.

We are opening up coram nobis so that the defendant can come down, prove that the prison authorities have prevented him from filing a timely notice of appeal, vacating that judgment, entering a new judgment so that the statute can run -- start to run again.

Of course, I don't suggest any such thing, but I do submit that the act which prevents the taking of the timely appeal must not be the choice of the defendant.

It must be something forced upon him by someone who has authority over it.

Now I submit, Your Honors, that Mr. Polsky will be unable to show you any good reason why the rule should be changed.

First of all, to change it would be to do violence, I think I submit to the statute itself.

It would be an act of judicial legislation which I don't think this Court should or would do.

Secondly, it would --

Justice Arthur J. Goldberg: Why do you say that Mr. Siegel that earlier, I thought you indicated that the statute could be read [Inaudible] the statute could be read as narrow, narrow in the at the present.

Mr. William I. Siegel: I didn't concede that I said he didn't intend to, I say that's Mr. Polsky's argument.

Justice Arthur J. Goldberg: Well that's what the statute [Inaudible] you are saying that his arguments violate the reading of the statute, I believe.

What in the reading of the statute he has violated? What violated -- what is his argument violates the reading of the statute?

Mr. William I. Siegel: An application for writ of habeas corpus in behalf of a person in custody, et cetera, shall not be granted unless it appears that the applicant has exhausted the remedies available.

Justice Arthur J. Goldberg: Well, speak for this case.

He gave a literal reading of the statute.

Noia [Inaudible] and now, come to the state, the state says that no remedy is presently available to him.

Mr. William I. Siegel: Yes.

Justice Arthur J. Goldberg: There is no violation on the literal meaning of the statute in that time, is there?

Mr. William I. Siegel: There is when you read the statute in the light of say Brown against Allen.

Justice Arthur J. Goldberg: [Inaudible]

Mr. William I. Siegel: Oh, you mean the language of the statute?

Justice Arthur J. Goldberg: You're talking about as it is; the statute as it's read.

Mr. William I. Siegel: Well, Your Honor, I --

Justice Arthur J. Goldberg: Do you have to say that putting aside the rule of court law, there is nothing in the statute itself that has consistent with their view that's presently available.

Would you have to say that?

Mr. William I. Siegel: Well, I would have to say that Mr. Polsky makes a good argument to the contrary, let's put it that way.

Justice Potter Stewart: Even if that's correct though, even if that's correct, that doesn't give you the answer to this case because exhaustion and an adequate state ground are two quite separate concepts, isn't that correct?

Mr. William I. Siegel: If I understand, Your Honor, I think that is so.

But to me even more important than the language of the statute is the reason why the statute was enacted.

The reason why all of the cases before the enactment were decided the way they were and the reason why all of the cases thereafter were decided the way we are.

This doctrine is a recognition of the federal nature of this nation, of the independent sovereignty of the 50 states, of their right within that sovereignty to enforce their own laws as long as those laws do not violate some provision of the Constitution, and as long as they do not seek to enforce a right which they have ceded to the Federal Government.

Now it has been very clearly from the very beginning of this nation that one of the rights of a state is to enforce its own criminal law and all of the decisions, I must stop, Your Honor, because I agreed to give five minutes to the Attorney General.

Chief Justice Earl Warren: You may finish that, Mr. Siegel.

Mr. William I. Siegel: Yes, all the decisions show, they picture an intent on the part of this Court to respect the state sovereignty.

To change the rule of Brown against Allen now would be to impinge upon that rule for no good reason.

Because the only reason which is advanced is the hardship now, a very serious hardship now worked upon Noia.

And my answer to it is that this is a hardship not imposed upon him by the State of New York, but imposed upon himself; suffered because of his own voluntary choice.

Argument of Joseph J. Rose

Mr. Joseph J. Rose: May it please the Court.

The Attorney General of New York has filed a brief in which as amicus curiae in which we have urged a reversal of the order of the Circuit Court.

I don't want to cover the same ground that the District Attorney has covered so adequately.

There are, however, one or two facts which I think I might call to the attention of the Court.

The trial record shows at the time Noia was sentenced, trial judge had some difficulty in accepting the recommendation of mercy that the jury made.

He said to Noia on the day of sentence, “In substance, I find it very difficult to accept this mercy recommendation.

You've been before me on three separate occasions of robbery.

To my mind you are a cold-blooded killer and I know that you committed this crime, but it wasn't until this morning when my wife spoke to me at the breakfast table and I finally decided to accept the jury's recommendation and grant you mercy.”

Justice Potter Stewart: The jury's recommendation is not binding in New York?

Mr. Joseph J. Rose: No, it's not, Your Honor.

Now, the hearing before the District Court, before Judge Cashin, showed that apparently Noia was aware of this reluctance in the part of the trial court to accept this recommendation and Noia apparently had this in mind when he spoke with his trial counsel.

And I think the record before the trial court -- District Court clearly shows that Noia made an intelligent decision not to prosecute his appeal.

I think under all the circumstances it was a smart thing on his part.

Now, while it's true that the District Court made no findings of fact, as Mr. Justice Goldberg pointed out in the opinion at page 63 of the record, the District Court said this, “I had thought that perhaps a hearing on the circumstances surrounding the relator's failure to appeal might reveal some exceptional circumstances which would excuse the lack of indication of ordinary appellate procedure.”

The hearing, however, utterly failed to reveal any such circumstance.

Now, I think that Mr. Siegel has covered the question of exhaustion of state remedies and certainly the dissenting opinion.

Judge Moore, I think covers that more adequately than I could but we are concerned, so far as the Attorney General is involved, specifically with Section 2254.

I would not suggest to the Court that a Federal District Court is absolutely barred by the failure to exhaust state remedies.

Some of us, I think, had come to feel that this is, perhaps, a jurisdictional prerequisite to federal habeas corpus; I don't take that position.

I do feel, however, that the Court was -- the circuit court was incorrect in holding that these circumstances in this case are so exceptional that the man is entitled to invoke federal habeas corpus.

I see nothing so exceptional in this particular case.

I don't think the circumstances are what have been meant in prior decisions of this Court.

Those circumstances have usually been some interference by state officials with the appellate procedure, some incapacity on the part of the prisoner.

The record here shows that the prisoner was advised by counsel.

He made an intelligent and knowing decision not to appeal.

I think under those circumstances, he properly should be barred from invoking federal habeas corpus.

Thank you.

Justice Byron R. White: [Inaudible]

Mr. Joseph J. Rose: I don't think it's a matter of power, Your Honor.

I think it's a --

Justice Byron R. White: [Inaudible]

Mr. Joseph J. Rose: I would.

I think the question is the propriety of the exercise.

Justice Byron R. White: [Inaudible]

Mr. Joseph J. Rose: No, no.

But I think --

Justice Byron R. White: [Inaudible]

Mr. Joseph J. Rose: I would hate to think that the federal court would have not the power.

I think the question in this case, was it proper exercise of the power under all the circumstances in the case?

Justice Byron R. White: And you wouldn't [Inaudible]

Mr. Joseph J. Rose: That is correct.

Justice Byron R. White: [Inaudible]

Mr. Joseph J. Rose: That's correct, we had consented.

We made known our objections right from the start.

Justice Hugo L. Black: [Inaudible]

Mr. Joseph J. Rose: Well, I think that's a question separate and apart from Section 2254, and I think that you have -- there's no statutory provision, but I think that the knowing failure to appeal from a judgment of conviction without any excuse should be considered an adequate state ground.

Justice Potter Stewart: There's some indication in the -- excuse me.

I'm changing the subject; there is some indication in the state court proceedings in the Appellate Division of coram nobis that the circumstances surrounding Noia's confession were different from those which surround the confessions of these two codefendants.

Is there anything in that?

Mr. Joseph J. Rose: Well, Your Honor, I'll note that there's been a stipulation between the District Attorney and Mr. Polsky, that for the purpose of this argument, the confession should be considered coerced.

And I feel that I must abide by that stipulation although I do feel, in response to Your Honor's question that a completely different case could made out for Noia's confession.

As a matter of fact, if I may add just one more thing; I should note that the circuit court held that Noia took the stand and repudiated his confession on the stand.

Now, this is not so, I read that record three times.

Noia never took the stand and never repudiated his confession.

Thank you.

Justice John M. Harlan: Has there any [Inaudible] executive clemency for this man?

Mr. Joseph J. Rose: I don't believe so.

Justice Arthur J. Goldberg: [Inaudible] in the words of the District Attorney, that that was a certain passage of this case [Inaudible]

Mr. Joseph J. Rose: Well, normally we wouldn't be brought into that proceeding, but I would say this that we would not object to it.

Justice Arthur J. Goldberg: Now, why you both couldn't take position because it's unconstitutionally barred?

Mr. Joseph J. Rose: Well I would take the position simply out of a feeling that probably just interest of the judgment would be served.

Frankly, I think that there is a question as to whether his confession was coerced.

I'm not completely convinced that it was, but since the District Attorney who has the job of prosecuting these people is willing to concede that clemency should be granted, I would have no objection.

Our position in the Attorney General's office is mostly civil rather than criminal.

If the District Attorney‘s content to go along with the executive clemency, we should deal the same way.

Justice John M. Harlan: Well, I understood Mr. Siegel to say that this case was complicated psychologically at least or emotionally by virtue of the fact that here are two codefendants who are out and that therefore, he recognizes or the District Attorney's office recognizes that and although constitutionally he is arguing that there is no justification by virtue of that fact to release Noia, there is human confe -- considerations which would lead the District Attorney's office at least to recommend executive clemency, that's what I --

Mr. Joseph J. Rose: That's correct, Your Honor.

In the circuit court, the majority put it in this way.

It does not sit well on the consciences of civilized men that two of the codefendants should be free --

Justice John M. Harlan: Unless it is a question of power, the federal court basically to act in this situation, I think the statute gives federal courts power to act only if the man is being held in violation of his constitutional rights.

The question -- the basic question, it seems to me, is whether or not the State of New York having said that do not having appealed and followed our normal procedure, it can be said that this man is being held in violation of his constitutional rights and if he is not being held in violation of his constitutional rights, then this Court -- the federal court have got no power to act.

Mr. Joseph J. Rose: The circuit court apparently made no conclusions specifically.

Justice John M. Harlan: That's entirely different question from the question of exhaustion.

Mr. Joseph J. Rose: That's correct.

Chief Justice Earl Warren: Mr. Polsky.

Argument of Leon B. Polsky

Mr. Leon B. Polsky: Mr. Chief Justice, may it please the Court.

The warden petitioner claims that the New York state procedural rule requiring an appeal from the judgment of conviction outweighs the federal substantive right under the Fourteenth Amendment.

They say that Noia's knowing volitional failure to appeal and those are fair words bars him from proceeding in these courts.

At the outset, we challenged the volition -- the volitionalness of the failure to appeal and the knowingness of the failure to appeal.

At the time of Noia's conviction under the theory which the prosecution has advanced, they had just come down from the New York courts a decision in this whole case, which says that when a man takes an appeal in a noncapital murder case, has it reversed, he goes back and stand trial and can have capital punishment imposed.

This had just happened in the same court immediately prior to Noia's conviction.

As Mr. Rose stated the trial judge, when the jury brought in its verdict and recommendation of mercy as to all three defendants, the trial judge accepted the recommendation as to Caminito and Bonino but reserved decision on whether he would accept it as to Noia.

Then for the period of several weeks between verdict and judgment, Noia stayed in jail not knowing whether he would be executed or whether he would get a life sentence.

On the day of sentence, the trial judge told Noia, as Mr. Rose has stated, “Up until this morning I was going to send you to the electric chair, but my wife convinced me to change my mind.”

It was sometime after this, with these considerations, that Noia had trust upon him the awful choice of whether he should take his appeal and risk his life, or whether he should sit back with the judgment as rendered.

He knew that he could appeal, I concede that.

Whether under these circumstances as the petitioner argues this was volitional question?

I think the Court of Appeals, although there were no specific findings of fact in the trial court, took the peoples' theory of the case and said that under this theory, circumstances surrounding the failure to appeal add up to circumstances sufficient enough to warrant or excusing the failure to appeal and therefore we will sustain a writ under the special circumstances doctrine.

The Court applied these special circumstances to each of three separate theories which have been advanced at one time or another as the basis for the denial of federal relief to state prisoners.

While we feel that the petitioner's case, the facts in the petitioner's case upon which he relies are sufficient to sustain the court below's finding that sufficient circumstances warranting the issuance of the writ existed.

We also suggest to the Court two alternative theories upon which the writ can be sustained.

Both of these questions relate solely to the question of: Does a federal court have the power to issue the writ?

I think if nothing else has been made clear by the opinions below, by two courts, by the dissents, by the arguments today, it is clear that if this is a case where -- if there is the slightest room for power to be exercised, that every court so far would have exercised whatever power or discretion it had in the relator's favor and issued the writ.

Justice John M. Harlan: That would true of the Court of Appeals in New York too?

Mr. Leon B. Polsky: No, Your Honor.

The Court of Appeals of the State of New York has said, “We do not have the power to release this man.”

Justice John M. Harlan: Under our law, under our state law.

Mr. Leon B. Polsky: Under state law.

Justice John M. Harlan: That's right.

Mr. Leon B. Polsky: Correct, Your Honor and it is quite possible that if they did find they had the power, anywhere in the entire corpus of New York law, they could find the slightest inherent power or discretion, they would have exercised --

Justice John M. Harlan: There isn't any doubt about it because they let out Caminito or Bonino whichever followed first after the other got out.

Mr. Leon B. Polsky: Correct, Your Honor.

Justice Arthur J. Goldberg: Wasn't there [Inaudible]

Mr. Leon B. Polsky: Judge Fuld's opinion says that Caminito and that Caminito had appealed and then followed the habeas corpus procedure in the district -- in the federal courts.

And then he said, he is therefore preserved his claims or words to that effect and that is why he got out.

I don't know whether he intended to draw some distinction between Caminito's appeal through the state system and the habeas corpus as far as its effectiveness to secure release.

Justice Arthur J. Goldberg: I thought I remember something --

Mr. Leon B. Polsky: He makes -- he does mention it --

Justice Arthur J. Goldberg: In this very case something about federal habeas corpus [Inaudible]

Mr. Leon B. Polsky: The whole history of this statute, the present Section 2241, begins with the 1867 statute.

Up to that time, even though there is a constitutional provision which provides for habeas corpus or its non-suspension, except in certain instances up until that time it had been held by this Court that the federal court had no power to interfere in a state court proceeding unless Congress passed some sort of enabling legislation to implement the constitutional provision.

Such a statute is passed in 1867.

It was passed definitely bearing in mind the then proposed reconstruction legislation and the proposed Fourteenth Amendment.

That statute has said not a word about exhaustion of state remedies.

It had no limitation to it except federal -- in substance that federal court shall issue the writ, hear the case, dispose of it as law and justice requires if there has been a violation of the federal right.

Soon afterwards the first case under this statute arose, which set forth what has grown up to the exhaustion of state remedies.

Ex parte Bridges, Circuit Justice Bradley reviewing a District Court order, sustaining the writ for a Georgia defendant, a state court prisoner, who had been tried, convicted and had not appealed, the Court said that a federal court in its discretion could refrain from issuing the writ prior to the completion of the entire state court proceeding, tried, appealed and even writ of error to the Supreme Court that were available.

The case clearly rested on discretion, for in that case the writ issued.

The first case in this Court, Ex parte Royall again relying upon Bridges talks in terms of discretion which the Court has the power to issue the writ.

It is discretion, however, which makes us temporize this grant of power.

And after that, another series of cases, all following Bridges and Royall talking in terms of discretion that the Court had the power if it wanted to.

The first case which seems to import a new concept beyond this exhaustion of state remedies discretion is I believe the Spencer case which was decided by this Court in 1913.

In that case, a state court prisoner deliberately, knowingly failed to appeal from his state court conviction.

Instead he brought a habeas corpus proceeding, claiming that the state statute under which he had been convicted was unconstitutional, having ex post facto sentencing provisions.

This Court, upon review or upon application for a writ, said that by Spencer's failing to appeal his conviction, he injected new issues into the case because had he appealed, the Pennsylvania Court could have construed the statute in such a manner that its constitutionality would not have been subject to attack.

Furthermore, the Pennsylvania court had the power to modify the Pennsylvania judgment which the federal court did not think it had at that time.

Therefore, by Spencer's not appealing, he sought to preclude the state from making findings which would have sustained his judgment.

Under those circumstances, this Court said Spencer cannot come to a federal court.

That I think is whether it is a decision based on discretion or waiver that is a clear example of a situation where a federal court should not entertain a writ because of failure to appeal, because something the prisoner has done, has prejudiced the position of the state.

Here our case, as I will develop I hope, is that we have done nothing to prejudice the state; that the only party to this litigation was unprejudiced, he responded before you.

After Spencer, came Hawk, where this Court again repeated the history dealing with the exercise of discretion and power under the exhaustion statute.

In that case, the Court sent the defendant back to exhaust his Nebraska remedies, saying that, “We think there is a Nebraska remedy or at least he should try to find out if there is not.”

Almost immediately after the Hawk decision, the statute was passed.

It has been conceded by everyone that all the statute intended to do is to codify existing habeas corpus law up to this point.

Now, the statute included as its first provision, almost verbatim what had been in the 1867 statute, dealing with the power of the Court to issue the writ, and then there were some procedural provisions.

And then there was Section 2254 which had never been part of the statute before but the reviser's notes indicate, it was intended to be a codification of everything that had gone before dealing with exhaustion of state remedies.

We say that the statute brought in all of these decisions saying that, as far as the District Court is concerned, it has the power to issue the writ at any point in the state court proceeding but under the doctrine of exhaustion of state remedies, it should abstain from the exercise of that jurisdiction until there is no proceeding left to be had in the state court.

That all this is, is a doctrine of comity between the federal courts and the state courts where one court will not act upon a litigation while the other court has or could reasonably have the same issues before it in a related litigation.

All that this statute was intended to do, I submit, was to say to a federal district judge, say at a time when Charles Noia's appeal was pending if one was taken wait until the state court decides the case and see what they do with it.

Even further, say he had not brought his habeas corpus proceeding in the District Court and there may have been some doubt as to whether coram nobis would lie in New York, the statute says to the district judge, “Wait, let him try coram nobis in New York and maybe New York will pull their own chestnut out of the fire.”

That is all the statute did.

Justice John M. Harlan: You're talking about exhaustion?

Mr. Leon B. Polsky: Exhaustion solely, Your Honor.

It was not until Brown against Allen that the Court possibly deciding it on a basis of exhaustion and discretion, possibly deciding it on the basis of waiver held that the two defendants, named Daniels are not appealing from their conviction, had forfeited their right to claim in the federal courts that they had been denied due process of law in the state courts.

I think, however, in order to fully appreciate the significance of Daniels, we must first look to the record in Daniels.

That Daniels' record shows that the Daniels after the state court had dismissed their appeal stated to the defendants that if they have a substantial question of denial of right, they may proceed by coram nobis in the North Carolina courts, and that is what the Daniels' defendants did.

They brought a coram nobis proceeding which was denied on the merits for lack of a substantial question by the North Carolina Court.

With this posture, the Daniels came to the federal court; the federal court held a hearing.

Judge Gilliam in the District Court found that each and every one of their claims was completely unsupported both by the state court record and by the hearing which we -- he had held.

Their claim of coerced confession and substance boiled down to the fact that both of them had confessed after being held for one hour.

Judge Gilliam found that there was independent evidence aside from the usual accusations and denials of the parties, that there was independent corroborative evidence that the confessions had been voluntary.

On the question of exclusion of members of the defendants raised from the jury, Judge Gilliam found that all there was in this record were facts from which an inference could be drawn that the exclusion -- that there had been a deliberate exclusion.

But at that time, as evidenced by the Brown and Speller case, the companion cases of the Daniels against Allen, an inference was not enough.

They required -- that was required to be a definite proof of deliberate exclusion for persons of the defendants raised from the jury.

Now, it very well may be that fact situations in Daniels at the time of their conviction might today be considered by this Court to be such as would amount to a denial of due process.

I submit that at the time of the Daniels' case that the opinion of this Court as to the merits of the case was such that their claims was so insubstantial that they barely -- that all they did was state a federal question but not prove it.

Under those circumstances, the Court refused to allow habeas corpus to issue.

This Court affirming the denials suggested that all this Court was doing, although I must confess there is language to the contrary in the Court's opinion, was saying that this man -- these men have not made out their claims.

They have proved nothing.

After a hearing, after looking at the state record, they have just made out nothing and therefore, habeas corpus will not lie.

There is concededly language in the Court's opinion which talks in terms of waiver.

This, I submit, is the only decision of this Court up to this point which injects the concept of waiver of the federal substantive right by failure to appeal in these terms into a habeas corpus litigation.

We suggest that the decision in Brown or Daniels could rest very easily and I think did rest very easily upon the ground that the majority of this Court just did not appeal that the claim of denial of federal right had been made out.

Justice Hugo L. Black: Why do you say that?

Mr. Leon B. Polsky: Because the -- well, starting with the coerced confession -- why do I say -- what that I don't --

Justice Hugo L. Black: Why did you say that the majority did it for the reason that you've just stated, just didn't believe there was constitutional question that were made?

Mr. Leon B. Polsky: Because in the Brown and Speller cases, the companion cases to Daniels, the same question regarding exclusion of Negroes from the trial and grand juries had been raised.

And the issues were fra -- framed in pretty much the same way as in Daniels.

And I think from the opinions of the Court in Brown and Speller, it is clear that as to Daniels had the Court specifically wrote an opinion on the merits that it would have denied it.

I'm guessing, I grant you that, Your Honor.

Incidentally, there was misstatement in my brief where I say that Daniels had an all white jury, that is not so.

There was one Negro on the trial jury that convicted him.

Now, the court in Daniels and the language which the petitioner quotes at page 15, the language which -- is the language which suggests forfeiture, says that, “It is only when a state prisoner is in custody in violation of the Constitution that the statute applies.”

That fact is not to be tested on habeas corpus [Inaudible] appeal.

We don't seek to test any facts in this case.

We come here with a complete record, with only issues of law, with conceded facts, and with the conceded ultimate question of law of coercion.

We are not trying to prove anything and because of this, because all of the facts are here on the face of the record, we seek to analogize and draw together this whole line of cases in this Court, beginning with Nielsen down to Bowen against Johnson stating that error of law appearing upon the face of the record is not waived by failure to appeal when the error goes to a substantial right such as a right under the Constitution.

And we seek to draw this in to the habeas corpus situation by the opinion of the Court in Johnson against Zerbst, where the Court talks in terms of jurisdictional defects, of jurisdiction being lost in the course of the trial because of violation of a fundamental right in the course of the trial.

In Your Honors -- Mr. Justice Black's opinion, he said that the failure to assign counsel in a case where the Court had jurisdiction over the subject and over the defendant, caused the Court which originally had jurisdiction to lose the power to proceed to judgment in such a situation.

That, we suggest, is the basis for habeas corpus intervention in state court cases.

That a state court, somewhere in the course of a proceeding, commits an error so gross that the Court loses the power to proceed to judgment and that the judgment which it renders is a nullity and under these line of cases the loss of jurisdiction is never waived if it appears affirmatively on the face of the record.

Now, it is suggested here that despite concession that perhaps Noia's and because of the Appellate Division decision that Noia's case is a little less strong than Caminito and Bonino.

The horror of this case is that Noia's case is different.

It is considerably different.

Noia is the only defendant who was able to produce undisputed evidence that he was beaten. Neither Caminito nor Bonino were able to do this.

Justice Potter Stewart: Well, I don't think the suggestion that you refer to has been made by counsel.

In answer to my question, they conceded that it's been stipulated that this confession was coerced.

Mr. Leon B. Polsky: But I would just like to refer to one item of testimony in the record, the testimony of the Department of Corrections' position; a state officer who examined Noia the day after he was arraigned or the day of his arraignment which was the day after he had been released by the police.

Dr. Sparandino testified, “When I examined him, he had large bruises on his right thigh.

He had some contusions at the scalp.

He had some contusions at the lower posterior chest wall, on the left chest wall.

Complained of pain in the stomach and said he'd been kicked.

There was a large bruise, a black and blue mark, in area of about I would say, about two or three inches in diameter.”

He complained of a few injuries.

Also, his codefendants, Caminito and Bonino, who too claimed that their confessions were coerced and whose lives were at stake in this proceeding, testified that Noia had been far more badly beaten than they had.

This case is different.

Now, up through Brown against Allen, we suggest that the doctrine of adequate of state grounds has played no part in a habeas corpus litigation.

The first, as far as I can find, the first suggestion of it appears in one of the opinions in this Court in Irvin against Dowd.

The court below treated that the doctrine of adequate state grounds is being applicable to habeas corpus proceedings, but in so treating it, it also found there were circumstances which did not make it dispositive to the case.

While we agree with the court's discussion below, we wish to also suggest that the entire period of adequate state grounds has no application in this kind of a case.

That the theory of adequate state grounds applies only to this Court's power to review a decision which comes directly from the state court.

That the theory of adequate state grounds first laid down in Murdock against Memphis in substance hold that this Court is not going to take a case which it can't decide or where it can't decide the result.

And while that is an oversimplification of a rather significant decision, I think in substance that is what -- what we're dealing with here.

This Court could not have granted certiorari to Judge Fuld's decision in the New York Court of Appeals and said, “First we find the confession coerced, that is the federal question we decide.

But you could not reverse the case and send it back to New York with directions to sustain a writ of coram nobis because New York does not have the power.

It has no such procedure for this kind of case.”

This Court will not take a case, I believe, for the purpose of creating a procedure in a state court.

Now, although its opinions may at some time influence a state court to create a procedure, this Court apparently does not do the creating, that is for the state.

It is for the State of New York to say we have a remedy or we don't have a remedy.

And if they don't have a remedy and the case is appropriate for federal action then the federal court will exercise the power which the State says it doesn't have.

Now, this I do not think is any great intrusion upon the state court process.

All New York has said is, “We don't have the power to let this man out.”

They haven't said he shouldn't get out.

We ask the federal court to exercise the powers which New York says it doesn't have and I think that there have been several recent decisions which show how -- first, how the federal court's reaction in a habeas corpus case will to some extent influence and beneficially influence the state court procedures.

Justice Arthur J. Goldberg: Suppose you wipe out this Court [Inaudible]

Mr. Leon B. Polsky: On direct review of the New York Court of Appeals, decision on the coram nobis?

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leon B. Polsky: Yes, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leon B. Polsky: Yes, Your Honor.

Justice Arthur J. Goldberg: But on the -- you're not arguing that this Court have precluded a direct review if Noia had appealed.

Mr. Leon B. Polsky: Oh, if Noia had appealed from the judgment applied to this Court for certiorari and had been granted, the Court certainly could have reversed.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leon B. Polsky: Yes, Your Honor.

There is no question but that had Noia appealed he could have gotten his case to this Court.

Justice Potter Stewart: Well, he could have filed petition for [Inaudible]

Mr. Leon B. Polsky: Yes, that he could have tried.(Voice Overlap)

Yes, in a rather peculiar way.

I think if you will note from the record that -- or from the statement of facts in the prior proceedings are practically the facts in this case, Caminito made two petitions to the New York Court of Appeals for reargument.

And his second petition, the one from which he applied to this Court for certiorari, was made 10 years after the Court of Appeals had affirmed the judgment.

And the Court of Appeals had in the exercise of its discretion denied reargument.

And under the rule in the Harrington cases that certiorari petition of Caminito was ineffectual and should have been denied on adequate state grounds.

And I think Professor Reitz list -- lists this case as the kind of case or refers to Caminito as a petition which should have been, or possibly was denied upon the adequate state grounds theory.

And he refers to -- I think it is 11 out of 19 denials of certiorari in this Court without prejudice to a habeas corpus application as resting upon adequate state grounds.

Decisions which this Court could not review coming from the state court but where the court sent the case back or referred the cases it were to the District Court, to dispose of this law and justice requires.

We have asked the Court to reconsider the rule in Brown against Allen.

We don't think the Court has to do it --

Justice Potter Stewart: That is Daniels?

Mr. Leon B. Polsky: Daniels, yes Your Honor.

Justice Hugo L. Black: You've asked what?

Mr. Leon B. Polsky: The Court to reconsider the decision in Daniels against Allen, part of the Brown against Allen group of cases, where the Court as argued by the petitioner held the failure to appeal bars federal relief.

Justice Hugo L. Black: You said you didn't make, do we have to reach them?

Mr. Leon B. Polsky: I don't think you have to reach it if you define the decision as meaning what I say it means.

I think it -- I must put it as boldly as that.

Justice Hugo L. Black: Well, I just look at it again.

My memory was that probably it wouldn't have to reconsidered, did we not hold it?

The Court doesn't know about what he said, does it, failure to get an appeal, [Inaudible] until the 61st day Noia's [Inaudible] deprived the defendant of any right of appeal to raise his custody from testimony?

Mr. Leon B. Polsky: That is language which can be taken as having been said by the Court.

If it is taken literally --

Justice Hugo L. Black: Well taken for what is held.

The man was denied the right to test his constitutional challenge on the ground that his lawyer has neglected or failed for reasons set out, to get the notice the prosecuting attorney until the 61st day.

Mr. Leon B. Polsky: But he then was granted in the state courts a coram nobis proceeding which allowed him to raise the questions which he subsequently sought to raise in the federal court.

That under the uniform rulings of this Court has been held sufficient to preserve the federal question for federal court consideration.

And I must confess the Court does not discuss that in its opinion in Brown or Daniels against Allen.

I also must confess that the Court's opinion does not speak in terms of the lack of substance to the federal claims which the petitioner sought to raise, but I think those were factors in that case, which are not factors in this case.

Justice Hugo L. Black: Well factors -- the fact is not referred to by the Court in its opinion?

Mr. Leon B. Polsky: Yes, Your Honor.

That -- I grant you that --

Justice Tom C. Clark: How about the coram nobis [Inaudible]?

Mr. Leon B. Polsky: In the Carolina court?

I'm sorry.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: No, they -- the Daniels and Allen cases had been in the state court.

Judgment – notice, the untimely notice of appeal the dismissal by the Carolina Court -- I think it's Georgia -- Carolina Court with leave to file a coram nobis petition upon a showing of substantiality.

Defendants did that --

Justice Tom C. Clark: Well that was a question of state law.

Mr. Leon B. Polsky: Not the question of whether it was substantial.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: The state court found that the federal claims were insubstantial.

That I suggest is consideration on the merits.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: I realize that, Your Honor.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: I realize that, Your Honor.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: Yes, Your Honor.

He brought this coram nobis proceeding then --

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: Right, but after the coram -- it was after the coram nobis proceeding that he brought his federal habeas corpus proceeding.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: If there had been no right of coram nobis in North Carolina, then I think we have the same situation we have here.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: No, sir.

Justice Tom C. Clark: [Inaudible]

Mr. Leon B. Polsky: Well, that's -- I must admit to some awkwardness in approaching this question --

Justice Tom C. Clark: Oh, not at all [Inaudible]

Mr. Leon B. Polsky: Well, then --

Justice Tom C. Clark: The matter came out, in that opinion.

Mr. Leon B. Polsky: Then I'm -- in view of that, I am bluntly asking for reconsideration of Daniels against Allen.

Justice Hugo L. Black: Well, a few words spoken in the sense of that guard.

Mr. Leon B. Polsky: Oh, yes sir they were.

Now, --

Unknown Speaker: [Inaudible]

Mr. Leon B. Polsky: Oh, well, in -- as I recall it in the District Court it was denied solely on the merits.

In the Court of Appeals it was sustained both on the merits and the procedural ground.

I think the District --

Unknown Speaker: [Inaudible]

Mr. Leon B. Polsky: He refers to it.

I don't think he held it dispositive.

He definitely -- he held a hearing which shows that he went to the merits.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leon B. Polsky: Yes, Your Honor.

He held a hearing.

He found the merits to be completely insubstantial.

The Court of Appeals affirmed, relying on the double ground of lack of merit and the procedural ground

This Court reached only the procedural question.

Justice William J. Brennan: [Inaudible]

Mr. Leon B. Polsky: That is correct.

Then --

Justice William J. Brennan: [Inaudible]

Mr. Leon B. Polsky: Well, that is one of our suggestions as to the meaning of the case.

I -- I confess that that is just a suggestion and the opinion must speak for itself.

Justice Potter Stewart: Mr. Polsky, have you -- I suppose you -- I know you've given a more thought to this case than I am, certainly.

But have you thought of casting your argument in quite a different way that in circumstances such as we have here with a conceded, coerced confession and with the two compa -- codefendants having been released, that it was a violation of due process in the part of the State of New York not to provide some sort of corrective procedure in these circumstances?

Mr. Leon B. Polsky: I would think that before a District Court should be asked to decide that, which I think is a very brave step, before a District Court is asked to decide that, it should be asked to consider whether these circumstances -- that the circumstances are sufficiently strong to say that the state procedure or the state lack of procedure violates the Due Process Clause or Equal Protection.

If the absence of procedure is such a strong factor then I think that it just moves over into being circumstances so compelling that the District Court must sustain the writ despite any procedural lapse which may have occurred up to that point.

Justice Potter Stewart: Well, I suppose we would all agree that there's nothing unreasonable, certainly nothing violative of the Fourteenth Amendment for New York to have a rule that they give you a reasonable time within which to appeal and you don't appeal within that time, then the judgment of the trial court becomes final as a general rule.

That's certainly the rule in every state in the union from such rule and also I suppose we'd all concede that as the general -- the generality that New York can limit or shape its post-conviction remedies as it wishes, limiting coram nobis for example to newly discovered facts as the judgment as it wishes to do, as a general rule, but in the context of this case couldn't the argument still be made that under these circumstances that New York, under the command of the Fourteenth Amendment, was required to furnish a procedure to this man and he is admittedly, concededly being confined in violation of the Federal Constitution.

Couldn't that argument be made?

Do you think that's a stronger, more radical argument than the one you are making?

Mr. Leon B. Polsky: Yes, I'm --

Justice Potter Stewart: That's probably is -- perhaps it is.

Justice John M. Harlan: That's another way of saying it, isn't it, the United States law not an adequate one?

Mr. Leon B. Polsky: I think so.

Justice John M. Harlan: Because all you're saying in your remedy and if you say that notwithstanding that this is so calculably the conscience however you want to put it as it's just on the way of saying that you will not tolerate the state ground and bar in this situation?

Mr. Leon B. Polsky: Correct, Your Honor.

Justice John M. Harlan: It's not applicable.

Mr. Leon B. Polsky: Right.

Justice Potter Stewart: In other way verbalizing probably --

Mr. Leon B. Polsky: Right, in other words -- what we're getting --

Justice Potter Stewart: Extreme way of verbalizing.

Mr. Leon B. Polsky: Right.

What we're getting at is that -- is that the federal court has the power to issue the writ in a situation where factually it should be issued where the state court either cannot act because of absence power, either through legislative grant or whatever power the Court wishes to take for itself or make for itself, or in a situation where it acts grossly incorrectly.

Those are the situations when a Federal District Court sitting in a state and a judge who is a member of the Bar of the State in the best position to know what is going to offend the state or not if that is that State's position, that their sovereignty has been offended, that judge should have the discretion to say, “Is this an appropriate case to issue the writ or not?”

Judge Cashin, the District Judge in this case has said, he would have issued the writ had he had the power, had been a New York county judge.

Judge Waterman who wrote the reversing opinion had been the State's prosecutor in Vermont.

These are people who, as judges, are aware of the relationship that the federal court plays to the state court or aware of the problems of federalism.

Why tie their hands to a concept which can only mean something if it denies to a defendant a federal constitutional -- in a case where a defendant has been denied of federal constitutional right --

Justice Potter Stewart: Now, let's say the argument taking all the way that leads to -- that leads to a logical one and honestly incorrect result, it seems to me.

Let's say this fellow been convicted by the State of New York of two murders and has given two concurrent life sentences probably two separate people and then in one of them all the proof against him -- the only proof against him was a coerced confession, but in the other while there might have been errors under state law there was no violation of any federal constitutional laws.

Certainly, a Federal District Court wouldn't have power to release that man, would it?

Mr. Leon B. Polsky: No.

Justice Potter Stewart: Because of the adequate state ground that was keeping him in there for a life sentence.

Mr. Leon B. Polsky: Oh, no.

I would not call that an adequate state ground basis for keeping him in.

The Federal District Court would have the power to vacate the invalid conviction.

Justice Potter Stewart: Why?

Habeas corpus has the power to release the person.

Mr. Leon B. Polsky: Then under the doctrine of McNally against Hill, he would have to turn the petition down as premature in the sense that since the petition could not affect the man's release it must be rejected.

Justice Potter Stewart: Well, isn't that really what the state is arguing here?

That is an analogous thing.

It's not such a clear case but the -- what's keeping him in prison is his failure to appeal as a rule of state law, not a violation of the Constitution.

Mr. Leon B. Polsky: But the second convic -- the second conviction in your hypothetical case is a lot more than just a rule of state law.

It is a completely independent basis for holding him.

Not an independent ground within the same case for holding him but an independent basis for holding him.

Justice John M. Harlan: Failure to app -- failure to appeal is then a basis for holding him assuming, assuming that's it's a permissible state proceeding.

Why not?

In other words, I think you have come to grips with this question from my point of view when you recognize that ultimately this is a question of power not discretion, the question of power.

Mr. Leon B. Polsky: I agree with you.

Justice John M. Harlan: And therefore, you have to argue, and it seems to me your case has a standard wrong on one or two propositions.

Number one, either that the adequate state ground principle does not apply on federal habeas corpus in any -- in any type of case, so as to limit is a matter of power of federal jurisdiction, or you got to argue that if that principle does obtain that in the circumstances of this case, what would otherwise have been an adequate state ground becomes inadequate.

Mr. Leon B. Polsky: Correct, Your Honor.

Justice John M. Harlan: Isn't that right?

Mr. Leon B. Polsky: Right, sir.

And our brief --

Justice John M. Harlan: And you argue both.

Mr. Leon B. Polsky: Our brief is devoted on what's exclusively to saying that adequate state ground just doesn't apply --

Justice John M. Harlan: You met this thing head on and very important arguing.

Mr. Leon B. Polsky: Thank you, Your Honor, but the adequacy of the state right to appeal must be determined in the light of the conditions which the state attaches to the right of appeal, such as, you must risk your life to exercise this right of appeal.

Now, is that an independent and adequate statement?

Or, is that an adequate state procedural rule?

Is it reasonable to say of the -- for the New York to say to this man, “You must risk your life; if you don't, that's the end of you?”

Justice John M. Harlan: Would you -- if you were here on direct review, would you be arguing this that the failure to appeal is not an adequate state ground, if you were here on direct review?

Mr. Leon B. Polsky: Direct review of the what?

Of the --

Justice John M. Harlan: Direct review from --

Mr. Leon B. Polsky: From the judgment or the coram nobis?

Justice John M. Harlan: The coram nobis?

Mr. Leon B. Polsky: It -- under the law as I read it now, I would suspect that my opinion and my advice to my client would be that he need not file a certiorari petition and that he could proceed directly in the Federal District Court on habeas corpus.

Not having the confidence which my opinion would lead me to, I would file a protective petition for certiorari.

Justice John M. Harlan: But you would assume it would be denied?

Mr. Leon B. Polsky: But I would assume it would be denied.

Yes, Your Honor, I think I would.

Justice Arthur J. Goldberg: [Inaudible]

Justice Byron R. White: Well, Mr. Polsky, don't you -- in that connection don't you have to ask this Court to [Inaudible] Darr versus Burford or at least limit it to [Inaudible]

Mr. Leon B. Polsky: No, I think -- I think Darr against Burford is part of the same -- the same parcel.

All -- again this may be at least a simplification --

Justice Byron R. White: Well let me put it this way, when Darr against Burford if – if a defendant or convicted man that doesn't as much here for certiorari or he may not go to the federal court [Inaudible]

Justice William J. Brennan: I suppose Noia is taking an appeal in other words and the Court of Appeals did sustain it but Noia have to come here on the cert?

Mr. Leon B. Polsky: That was Caminito's case.

Justice Byron R. White: Yes, but the right -- alright, let's assume he didn't, assume he didn't and then he goes to federal court for habeas corpus at a time when certiorari is no longer available of the times gone by.

Mr. Leon B. Polsky: Then I think we are in the same position that we are in because of his failure to take his appeal to the intermediate appellate court, to the superior appellate court --

Justice Byron R. White: (Voice Overlap) therefore hasn't this Court already in the name of the exhausting state remedy already construed that fact, 2254 to mean that you want -- that you have not exhausted state remedy, that you did fail to exhaust a remedy that was once available but it is not available now.

You say that the statute must be construed to being that you've exhausted state remedies, that there is not a remedy that's available now?

Mr. Leon B. Polsky: Correct, sir.

Justice Byron R. White: But arguing Darr against Burford it seems to me would indicate that this Court feels it should be reversed?

Mr. Leon B. Polsky: Well, all of my understanding of Darr against Burford is that in holding that whether this Court on certiorari petition is either acting as a state, as a superior, superior state court or as a federal court that --

Justice William J. Brennan: That is your concept, is it?

Is that part of the judicial system?

Justice Byron R. White: That nevertheless Darr against Burford is in the name of exhausting of state remedies?

Mr. Leon B. Polsky: And also Darr against Burford also -- yes, it is sir.

Justice Byron R. White: And it applies even though certiorari is no longer available?

Mr. Leon B. Polsky: Yes, sir it is, but there are exceptions.

Justice Byron R. White: Yes.

Justice William J. Brennan: Ordinarily.

Mr. Leon B. Polsky: Ordinarily.

Justice William J. Brennan: That's the word.

Justice Byron R. White: But that would be no different exception than would apply to the failure to take an appeal in the state court?

Mr. Leon B. Polsky: If we assume that the certiorari requirement is part of the state court remedies which I don't know in view of recent comments as to the effect of Darr against Burford or the present views of the Court on Darr against Burford, if you were to assume that that case says that the certiorari is part of the state proceeding, it makes no difference, Any point where there has been a default, places the case in exactly the same situation and then you are left with the situation as we suggest where the District Court then says, should I exercise my discretion or not?

Justice William J. Brennan: Indeed, I don't know Mr. Polsky why you don't argue that the very fact that we said ordinarily, only ordinarily there so many other exceptions that Darr versus Burford they weaken it up.

Mr. Leon B. Polsky: Well, I think that --

Justice William J. Brennan: And that certainly is an indication of exhaustion is not a question of power, but only of discretion, isn't it?

Mr. Leon B. Polsky: Yes, sir.

Justice William J. Brennan: That we've decided anything that seems to me, that's what Darr and Burford mean.

Mr. Leon B. Polsky: Well, that's what -- I think also would special circumstances mean.

I mean there are so many ways of characterizing the issues in the case and I don't envy -- envy, Your Honors, the problem of having to find out which of these principles apply because quite frankly, I don't know either.

Justice Hugo L. Black: Of course it would not be possible to choose between?

Mr. Leon B. Polsky: That is correct, Your Honor.

And that is why I have offered these alternative bases for decision because as I say from the discussion until this Court speaks in this case or if it chooses to, there is no law of habeas corpus.

And we think that this is the kind of case where the Court can lay down a clear, simple, precise rule for the District Courts to follow.

Justice Hugo L. Black: What will they do?

Mr. Leon B. Polsky: Use your judgment.

Justice Hugo L. Black: Use your judgment?

Mr. Leon B. Polsky: Issue to it -- the statute says, “You shall hear and determine the questions and dispose of the matter as law and justice require.”

Justice William J. Brennan: Well, what you're suggesting is to be a rule of discretion in the ordinary attribute of habeas corpus in the [Inaudible] discretionary writ, has it?

Mr. Leon B. Polsky: Well, I don't want to get involved with writ of right and writ of course.

Justice William J. Brennan: [Attempt to Laughter] Surely, ordinarily.

Justice Hugo L. Black: As I recall that some states make it crime no to issue [Inaudible] --

Mr. Leon B. Polsky: That is correct, sir.

That is correct and the injunction upon the District Judge in these cases that he must issue it within three days.

Justice Tom C. Clark: Your rule include, you don't have to exhaust any appeal at all?

You just sit back, try your case and that [Inaudible]

Mr. Leon B. Polsky: No, you don't try it over again.

You give up a lot of things.

Noia gave up a lot of things when he did not appeal from this judgment.

Mr. Siegel referred to some errors of state law in this record.

Well, there's one error of state law which is patent from this record.

Justice Byron R. White: Well, then why -- why do you make the argument then that it really it didn't hurt New York, doesn't hurt New York for federal habeas to operate in this area?

Mr. Leon B. Polsky: Because we say there is nothing that New York could have done other --

Justice Byron R. White: He could've reversed on the state ground.

It is said there was a major error of state law in the record they would have reached the constitutional question.

Wouldn't he even one of those [Inaudible] You say there is nothing that New York could have done except reverse on the coerced confession point, but now you say that there's plenty that New York could -- that's there are plenty that New York could have -- there's plenty of other state errors --

Mr. Leon B. Polsky: Right, and those errors would have given up.

Justice Byron R. White: Well, I mean you can't have it both ways.

Mr. Leon B. Polsky: Well, we have presented the case to the New York -- assuming an appeal had been taken, point one is confession was coerced as a matter of law.

This is a case where there is a jury -- direction to acquit if the confession was found to be coerced.

Justice Byron R. White: Yes.

Mr. Leon B. Polsky: Now, the Court of Appeals has no alternative but to reach this one issue in the case.

Justice Byron R. White: Well, what was the -- what do you say he gave up?

What was the error made --

Mr. Leon B. Polsky: The error -- the error dealt with the admissibility of when the doctor was testifying as to the beatings which Noia --

Justice Byron R. White: Well, this was a -- this was then made of what intimately related to whether there was a coerced confession?

Mr. Leon B. Polsky: Hope that it was then error -- it was an error to which the defendant was denied the benefit of the correct rule.

It was a situation where the doctor was asked did Noia complained to you --

Justice Byron R. White: Well, the fact why, why do this -- why would the appellate court do the jury's work there?

Reverse on the evidence and send it back and let the jury decide whether the coercion -- the confession was coerced or not?

Mr. Leon B. Polsky: Oh, I think -- I think he was in -- Your Honor, in every state court trial there are errors of state law.

I mean you -- whether they're reversible errors or not --

Justice Byron R. White: Yes, but this would have made it more likely that the jury would have found that the confession would be coerced?

Mr. Leon B. Polsky: That is correct.

Justice Byron R. White: And so why would the appellate court agree without -- without sending it back for the jury to decide it?

Mr. Leon B. Polsky: Well, because --

Justice Byron R. White: Not the Court.

Mr. Leon B. Polsky: Because here we have -- but the ultimate result always must be the same result.

The ultimate result always is that somebody, somewhere along the line whether it's the jury upon a retrial, whether it's the appellate court upon the initial appeal or whether it's the appellate court upon a second appeal from the retrial, somewhere along the line on the basis of this record and on the basis of everything that the people have offered, somewhere along the line the New York Court had to reverse this conviction.

Now, true it might --

Justice Byron R. White: He didn't give up anything by not appealing to it.

Mr. Leon B. Polsky: 18 years.

Justice Byron R. White: Yes, but you said he gave up something on it, he didn't appeal though[Inaudible] coerced confession?

Mr. Leon B. Polsky: Well, no.

What I'm referring to is say that was just a general error of state law.

And say we had a disputed question of fact --

Justice Byron R. White: Well, that is irrelevant because you say it in the long run, the coerced confession had to be -- it had to be found.

The confession had to be found to be coerced.

Mr. Leon B. Polsky: Yes, sir.

Because sometimes that State's appellate procedure can influence the decision of whether or not there is coercion.

There are ways in which a state court may reinforce a finding of fact made by a trial court.

And that becomes part of the state court findings which a federal court must consider.

Here, we have a situation where there was nothing that the state could do.

The state says Noia had to appeal so that the New York Court of Appeals could have let him go or so that the New York Court of Appeals could have made the same mistake they made with the other two fellows.

Justice Hugo L. Black: Mr. Polsky, doesn't your argument based on the filing of have come down very much as it was presented in Daniels that the argument which was made in Williams and [Inaudible] where there is a flagrant if charged and shown and appeared there had been a flagrant denial of constitutional rights by a state which results that the man being confined unconstitutionally that by the State does not afford the remedy whatever the reason the habeas corpus law.

Mr. Leon B. Polsky: Yes, sir.

The one minor distinction that we have made as far as Daniels is concerned is that we say that in that case, it is very possible that the defendant did not make out the showing of the flagrant violation, and we suggest that as a possible --

Justice Hugo L. Black: Of course, the dissent was based on what it actually did --

Mr. Leon B. Polsky: I appreciate that, Your Honor.

Justice Hugo L. Black: Neglected but not on that ground?

Mr. Leon B. Polsky: Yes, Your Honor.

Justice William J. Brennan: [Inaudible] you've told us earlier, you thought that Spencer was probably rightly decided, namely that one cannot deliberately and captiously refuse to employ state remedial procedures, and go into federal habeas corpus.

That there are some limitations, I thought you said --

Mr. Leon B. Polsky: Oh, yes sir.

Justice William J. Brennan: I'm not urging.

Well, suppose you had one, suppose this were a situation in which I understand your argument but you could not say there was volition in this instance because of the over hanging death penalty, but suppose that we're not a capital case, and suppose it were a case in which Noia had just deliberately and intentionally, you know this conviction was based on the coerced confession, refused to follow any state remedy available to him, choosing instead to go under the federal habeas corpus.

In that fact situation, would he be entitled of federal habeas relief with even though his convictions were based on the coerced confession?

Mr. Leon B. Polsky: Yes, I think that two arguments of the volition --

Justice William J. Brennan: Yes, he would or would not be?

Mr. Leon B. Polsky: Yes, he would.

I mean, I think the two arguments dealing with being volitional on the one hand as being a sort of excuse or not, not volitional being a sort of excuse and the -- a clear violation of right appearing on the record which nothing could have been done about are independently (Voice Overlap).

Justice William J. Brennan: If I'm assuming -- I'm assuming a case in which he had the coerced confession applied.

He had the all advice in the world and all the opportunities in the world and all the money in the world to go ahead and appeal his conviction, but he deliberately elected not to – appeal it not because he had any overhanging death sentence or anything else, he just decided he didn't want to go through the appellate process in the New York courts and he preferred to go under federal habeas corpus.

Now, this is on the assumption that his confession was indeed a coerced confession in violation of the Fourteenth Amendment.

In that circumstance, do you think he'd be entitled to federal habeas corpus?

Mr. Leon B. Polsky: Yes sir.

That is one of the theories that we have --

Justice William J. Brennan: Well, then that comes down to if it was a violation of a Federal Constitution into his conviction and no matter what he may do about the state remedial procedures, no matter how of much or what reason he may ignore them, he's still entitled to federal habeas relief.

Mr. Leon B. Polsky: Unless he does the state out of some defense, the federal habeas corpus action by his failure to appeal which I believe is the holding in Spencer.

Whereby not appealing, he prevents the state from making some sort of state court decision, an interpretation of a state court statute, a finding of fact; something which would bind the federal court or would be entitled to great weight in the federal court --

Justice Byron R. White: Now, but that -- you have a lot trouble with that kind of a rule because it has entered into an appeal, the state court might have decided that the confession was coerced?

Justice Hugo L. Black: Then he'd be released --

Justice Byron R. White: I agree.

I agree.

Mr. Leon B. Polsky: Then the state has lost nothing --

Justice Byron R. White: He didn't appeal so he did the state out of the chance of correcting this itself.

Justice Hugo L. Black: Did the state out of the chance of relief, the relief he wants to get now?

Mr. Leon B. Polsky: I hardly think the State of New York can complain about that.

Justice Byron R. White: I'm just -- I'm not saying whether it should be or not.

I'm just saying that some difficulty in the major --

Mr. Leon B. Polsky: The only thing I grant you, the State of New York has lost the opportunity to do justice.

Justice Byron R. White: Just like it would in Spencer, they lost the opportunity to do a statute whether there'd be any --

Mr. Leon B. Polsky: Oh, no, more than that, sir.

More than that, because doing justice in Spencer did not necessarily mean that he gets out.

Justice Byron R. White: But he get -- but the state law was --

Mr. Leon B. Polsky: The state could have construed the statute as not being ex post facto, a construction which under certain circumstances would be binding on the federal court, in which case Spencer if he brought his habeas corpus proceeding having exhausted the state court remedies couldn't get out.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leon B. Polsky: Isn't this worse?

Is it, is it -- let's put it in these terms.

Is New York more offended because Judge, the late Judge Frank, after the New York Court of Appeals had affirmed the conviction unanimously, after the Appellate Division had affirmed the conviction unanimously, is New York more offended because Judge Frank took the state courts of New York so to task or is it more offended by this situation where New York says, we would let him out if we could but we can't, but he is restricted by the power that is given to him as a New York judge.

Justice John M. Harlan: And so we are restricted by the (Voice Overlap) power.

Mr. Leon B. Polsky: Correct, sir.

If you haven't got the power --

Justice John M. Harlan: And if I may suggest the last few minutes, Mr. Polsky, you've been arguing this adequate state ground in the matter as if it were a discretionary matter.

Mr. Leon B. Polsky: I've argued it to the extent as if it were -- as if the special circumstances doctrine applied to it as found by the court below.

Justice John M. Harlan: But if it's a question of power in special circumstances that don't -- there's no room for their operation, if it's a question of power.

Any more than Judge Fuld, who would certainly bend himself in this situation to release this man if he could to able to escape the inexorable limitations of the non-exist power.

Justice Hugo L. Black: Mr. Siegel, do you have anything that you want to say after lunch or you could -- your time is up but you needed it to complete --

Rebuttal of William I. Siegel

Mr. William I. Siegel: No, thank you, Your Honor.

I value the opportunity, but I have nothing to add upon the previous --

Justice Hugo L. Black: [Inaudible] Mr. Polsky, the Court wants to express its thanks to you for the excellent manner in which you have presented in this case on behalf of your client.

Rebuttal of Leon B. Polsky

Mr. Leon B. Polsky: Thank you, Your Honor.

Justice Hugo L. Black: We understand that you assigned by the legal aid to represent and we always see these fine lawyers who takes these assignments, to see if you're taking [Inaudible] such conscientious energy and effectiveness.

Of course, Mr. Siegel, Attorney General, we appreciate also that, I may say very fair representation in which you have presented in the New York's claims here.