ARCENEAUX v. LOUISIANA

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Argument of J. Minos Simon

Chief Justice Earl Warren: Number 76 (Inaudible)

Mr. J. Minos Simon: Mr. Chief Justice, may it please the Court.

This matter is before the Court on a writ of certiorari to the Louisiana Supreme Court and there is basically involved the constitutionality of vagrancy statute of the State of Louisiana.

I suspect that a succinct statement as to the surrounding facts will be helpful and appreciative of the full import of the question before the Court.

The petitioner is an illiterate person and a poor person and in April 1961 was engaged as a farm laborer by a resident of Lafayette Parish, Louisiana and the employer in question happened to be the father of one of the arresting deputies who arrested the petitioner on the charge of -- in question.

The agreement for or rather control in a working arrangement was that, the petitioner was to be paid $4 a day for his services and to be provided with his food and also lodging, the lodging consisting of a small building approximately 8 by 10 in which he was permitted to reside.

The employer paid the petitioner for about a month and thereafter discontinued paying his wages.

The petitioner continued to ask payment, but on each occasion he was told that he would be paid later.

As a consequence of course the petitioner was, had no funds with which to leave and seek out other employment and he lived in virtual peonage for approximately eight moths.

And then on one day approximately eight months after the initial engagement of his services the -- an argument arose between the employer and petitioner as to chores to be performed as a result of which the employer told him to leave his premises.

He agreed to do this and he asked permission of the employer to leave his personal belongings in this little one room shack that he occupied, his small amount of clothing that he had and this permission was granted.

And he took leave to go to Nevada in search of employment where one of his sisters lived but because of his lack of skill he was unable to obtain employment in Nevada and returned Lafayette Parish and on his return however, he found other employment on a farm not to far removed from his previous employment.

He returned to his shack to pick up his meager belongings and night time was had already come about and after he was in this little building for approximately ten minutes he heard a rap at the door and upon opening the door there were four deputies from the Sheriff's office there to arrest him.

They told him that there were there to arrest him on the instruction of his employer on a ground that he was trespassing.

He surrendered himself to them and they brought him to Parish jail.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: Yes sir these are --

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: Yes sir he is a full time deputy, his name is Murphy Leon and the employer's name is I think Nevis Leon and of course Leon son was there with one of the arresting officers.

When he arrived there they rather than charge him with trespassing the next day they charged him with, they filed an affidavit charging him with being a vagrant.

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: That was never disclosed Your Honor and no further mention was made of that fact.

Justice Byron R. White: You say (Inaudible)

Mr. J. Minos Simon: That was a discussion that the petitioner overheard between the arresting officers and then the deputy who used him -- manager of (Inaudible)

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: As I recall deputy Peacock mentioned to one of the four arresting officers that the charge of trespass would not lie.

He didn't given his reason for it and that was the last it was heard of trespass charge and they filed a charge of vagrancy.

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: I don't know Your Honor obviously they all knew why he was there and I doubt you could convict him of being a trespasser because he was there with the permission of his former employee at (Inaudible) -- he had obtained his permission to leave his clothes there and he was there to get his clothes for the purpose of moving away.

And actually the charge was actually filed against him was that he was on this premises without being able to account for his presence there.

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: I wouldn't think it's too substantially different.

I think that the basic difference is the intention of going up on another's property would probably the trespass charge, whereas this here obviously (Inaudible).

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: If the initial entry is with consent unless there is a specific instruction to leave then of course it will not, staying will not constitute the trespassing.

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: That's substantially yeah, where it states, yes Your Honor.

Of course the arresting officers are quite certain, all knew why he was there, of course they never asked him to explain, he didn't know that he was arrested for being a vagrant or of being there without being able to give an account of his lawful presence.

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: No sir, there was no accounting asked any time, in fact as I stated the only thing they advised him of was the fact they were arresting him because the owner wanted him to arrest him for trespassing on his property.

Justice Byron R. White: (Inaudible) he was charged with certainly he knew he was charged with vagrancy.

Mr. J. Minos Simon: That he had paid the services of counsel, I would imagine because this boy can't read or write.

Justice William J. Brennan: Mr. Simon, I'm looking in page 29 of your brief --

Mr. J. Minos Simon: Yes sir.

Justice William J. Brennan: Now you have this statute, do I understand that the prosecution was for subdivision 8?

Mr. J. Minos Simon: Yes sir, Your Honor.

Justice William J. Brennan: No question about that.

Mr. J. Minos Simon: No, no yes Your Honor no question about that and if there has been an error in that on that particular page the word lawful is omitted and this was done in advertency.

Your Honor it should read, without being able to account for their lawful presence therein, the word lawful was --

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: Yes sir, this time yes, Your Honor.

Chief Justice Earl Warren: Mr. Simon, when was, the relation to the time he was arrested was the vagrancy information filed.

Mr. J. Minos Simon: The next, it was not filed until January of 29th, he was arrested on January of 25th but the -- signed in the affidavit not a deputy and the officer signed the affidavit on the 26th.

Now, then this charge was filed with the clerk's office on the 29th.

Now this petitioner was not brought to the committing magistrate as law directs that he be brought to committing magistrate upon being arrested.

However, the charge was submitted to the acting Sitting Judge who issued a warrant for his arrest even though he was already arrested of course but in the warrant itself the officers were ordered to bring him before the magistrate or before the acting and sitting judge and this was never done.

Justice William J. Brennan: How long was he held?

Mr. J. Minos Simon: Now, he was held Your Honor for a period of four months actually.

He was held without being able to use a telephone or call a counsel from January of 25th until February of 26.

He made several efforts to -- he asked -- he made a repeated requests to use a telephone they refused to let him use a telephone.

Justice Byron R. White: There is -- at one time that was a guilty pleading.

Mr. J. Minos Simon: At the end of four months and eight days there was a guilty plea which was raised by the opposition here in their motion to dismiss because the question before the Court is moot.

Justice Byron R. White: How about the circumstance of the guilty plea?

Mr. J. Minos Simon: Well, I was going to get into --

Justice Byron R. White: (Inaudible)

Mr. J. Minos Simon: I can do so now.

Justice Byron R. White: No your own time?

Mr. J. Minos Simon: In any event I think the history of this thing is somewhat important it sinuate itself significantly the question before the Court.

While the record shows that a motion was made by the petitioner for a bond.

That is incorrect.

He never made any motion at any time.

He never had counsel till February 26th, sir.

Justice William J. Brennan: I gather from effective (Inaudible), the day he was arrested (Inaudible) for how long?

Mr. J. Minos Simon: For a month.

Justice William J. Brennan: For one month?

Mr. J. Minos Simon: Yes sir.

Justice William J. Brennan: How do you finally get (Inaudible)

Mr. J. Minos Simon: I don't know.

I can just judge from what he told me which is contained in his affidavit he had asked to talk to two or three other lawyers and they had consistently refused to let him use the telephone, and you mentioned my name and then let him use it, of course I filed a suit before against the sheriff, maybe that have inspired him to let him use the telephone.

Justice William J. Brennan: But he finally got in touch with you some time --

Mr. J. Minos Simon: Yes sir on the 26th, yes sir.

Justice William J. Brennan: And then what happened after that?

Mr. J. Minos Simon: On the 27th I filed a motion for habeas corpus and in the alternative for preliminary examination, that's a procedural vehicle whereby the state is called upon to show probable cause for holding a party a prisoner.

Habeas corpus of course has the same function as the ordinary habeas corpus anywhere else.

In response to that -- of course the judge incidentally granted the motion and fixed a hearing on habeas corpus on March the 8th and also fixed a hearing on the preliminary examination for March the 8th.

Justice William J. Brennan: Now which judge is this?

Mr. J. Minos Simon: This is District Judge, no sir this is State District Court Judge, yes sir.

Now when March 8th came about the sheriff in response to the habeas corpus when the case was called up, extracted from his pocket the warrant of arrest.

Now of course under the clear statute of our state Title 15 Section 134 his response must be in writing.

However, the reasons best known to the Court, the Court accepted this as a response and immediately upon the sheriff producing the warrant of arrest described the habeas corpus was denied without granting any hearing whatever in connection with it.

Now that again violates the statutory laws of the state because under Title 15, Section 134, the Court must grant a full and fair hearing in connection with the habeas corpus.

Justice Tom C. Clark: I thought he filed (Inaudible)

Mr. J. Minos Simon: Sir the next –

Justice Tom C. Clark: District Attorney --(Inaudible)

Mr. J. Minos Simon: I'm getting to that sir.

Now then after the habeas corpus was thus dismissed, then the Assistant District Attorney arose and made an oral motion for a continuous.

Now without -- the state (Inaudible) he hadn't been served, the law doesn't require that he be served, of course the sheriff had been served with all the papers and also the law required expressly that all motions for continuous must be in writing.

The judge nevertheless entertained his motion, oral motion for continuous and granted it until the next day.

The next day the District Attorney came in and filed for the first time a Bill of Information.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Same ground.

Unknown Speaker: Same sort of question.

Mr. J. Minos Simon: Yes sir the same ground.

Then upon the basis of the filing of this Bill of Information the District Judge did not deny a preliminary examination but on the contrary recalled his original order for preliminary examination and dismissed the entire matter.

While he made the statement that he was not informed, that the petitioner was an indigent person, in fact he had be so informed and the record shows that upon the making of the bill of exception to his ruling, counsel informed the Court that as heretofore stated petitioner is unable is post bond and cannot be released on that basis.

Now --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: $50, yes sir.

And we applied for a writ of habeas corpus as well as for other writs before the State Supreme Court.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: This is an original writ of habeas corpus and this is a writ of certiorari, mandamus and prohibition.

It might sound strange to combine them all together, but it has been a ruling of our Supreme Court that where you request some affirmative action, even though embraced by the certiorari writ, you should ask for mandamus or an abundance of caution we asked.

Justice Byron R. White: Didn't you do something else at the Trial Court before going to Supreme Court after they dismissal or the ramification of the order?

Mr. J. Minos Simon: We did something but not in this chronological order.

We applied for this writ of review and also for habeas corpus before the State Supreme Court and that was denied without a hearing, the Court simply --

Justice William J. Brennan: How about the (Inaudible)

Mr. J. Minos Simon: Chronologically in the State Supreme Court.

Justice William J. Brennan: We were up to March --

Mr. J. Minos Simon: We're up to March, yes sir, we are in March --

Justice William J. Brennan: How long does it take for you to get to the Supreme Court (Inaudible)

Mr. J. Minos Simon: Well the ruling of the Court was made on March the 9th and on March 13th we had filed our writ in the State Supreme Court.

On March 16th that application had been denied by the State Supreme Court.

Then on the March 31st we filed our petition before this Court in 1962, and petitioner is still in jail.

Justice Byron R. White: Yes, but didn't you --

Mr. J. Minos Simon: Now then thereafter Your Honor.

Justice Byron R. White: Now you're going to talk about the guilty plea?

Mr. J. Minos Simon: No sir.

In April, on April of 4th of 1962 while these matters were pending, the case had never been fixed for trial, even though apparently we were ready for trial, we made an app -- we file the motion to quash.

Justice William J. Brennan: To quash the information?

Mr. J. Minos Simon: To quash the information and that was taken under the advisement by the Court and has never been decided; we've never received the decision on that.

Then on May the 3rd --

Justice Potter Stewart: What was the ground for that motion?

Mr. J. Minos Simon: That the act I believe was unconstitutional and with no probable cause as I recall Your Honor. That was argued and submitted to the Court and no decision was ever rendered.

Then on --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Yes sir.

Sir?

Justice Tom C. Clark: (Inaudible) asked for a speedy trial.

Mr. J. Minos Simon: We asked for a speedy trial, we finally -- it was obvious that the criminal term had gone by, was practice completed, we filed a formal motion for a speedy trial alleging that he had been illegally detained and except on May the 3rd in 1961 that it is on this day that --

Justice William J. Brennan: (Inaudible)

Mr. J. Minos Simon: Yes sir Justice Brennan.

Justice William J. Brennan: Have you referred any of your applications anywhere for relief, any Federal Constitutional question (Inaudible)

Mr. J. Minos Simon: Oh yes sir.

Justice William J. Brennan: What were they?

Mr. J. Minos Simon: At the time that we took exception to the ruling of Court on May the 9th, we asserted the constitutional --

Justice William J. Brennan: That was after the order you took exception to.

Mr. J. Minos Simon: Well that was after the order that's correct, except that before that order we have stated there was no support either in law or fact for the charge.

Justice William J. Brennan: Yes but afterwards, it was after the Court ruling of March the 9th that you then took exception, and I don't know what that means, but it didn't call for any further action by the Court, did it?

Mr. J. Minos Simon: Your Honor we were never granted a hearing whereby would have raised those questions.

We would have raised those questions. We intended to raise those questions in the event that the state would have presented any facts at all justifying the prosecution of the petitioner, but you must recall that the District Judge never granted us any hearing whatever, whereby where we could have raised those particular questions, in other words --

Justice William J. Brennan: (Inaudible) did it include any Federal Constitutional question?

Mr. J. Minos Simon: Yes, but that was made on April 4th,yes Your Honor.

Justice William J. Brennan: And well did that -- when I'm trying to get at, when you first explicitly asserted Federal Constitutional claims.

Mr. J. Minos Simon: When the question first arose, when we were denied of any rights whatever, during oral argument we presented it to the judge and then at the (Inaudible) we also made a formal exception in the record.

Justice Byron R. White: This was March the 9th.

Mr. J. Minos Simon: March the 9th.

Justice Byron R. White: That is the first time you ever used, referred in anyway to the Federal Constitution.

Mr. J. Minos Simon: Yes it specifically other than to state that there was no support in law or fact for the charge.

Now in response the habeas corpus, the party is supposed is set for the basis for holding this party, and then we are in turn entitled to adduce any evidence or present any reason why the holding is illegal, whether it's constitutional grounds or otherwise, we couldn't anticipate what the basis of the prosecution --

Justice Byron R. White: You orally presented your federal (Inaudible) claim in argument to the judge.

Mr. J. Minos Simon: In argument to the judge, that's correct Your Honor and then after the ruling of the Court where he denied any hearing whatsoever, we pointed out -- we took our bill of exception and raised it.

Justice William J. Brennan: And then formally you did make the same representations on Federal Constitution grounds in your motion to quash the information.

Mr. J. Minos Simon: That's correct, as my memory serves me Your Honor which is not --

Justice Byron R. White: In the record at page 12, this is your habeas corpus petition in the Supreme Court. Now you recite there at paragraph 20 what your objections where in Trial Court.

Mr. J. Minos Simon: Yes Your Honor.

Justice Byron R. White: Are those substantial to what you -- are those what you presented in the Trial Court?

Mr. J. Minos Simon: My law partner was there and I'm informed that's what he did, no record was made of that.

Justice Byron R. White: And then over on 14 are the -- page 14 paragraph 26 are the grounds which you presented to the Supreme Court of Louisiana specifically.

Mr. J. Minos Simon: Additional grounds, yes Your Honor.

Justice Byron R. White: Additional ground?

Mr. J. Minos Simon: Yes sir.

Justice Byron R. White: It sounds like you were just specifying here what precise grounds you want ruled on in the Supreme Court of Louisiana.

Mr. J. Minos Simon: Yes sir.

Justice Byron R. White: Because there is some difference between the two.

Mr. J. Minos Simon: There were no -- there is some difference.

It was just a question of articulating our opposition as much as possible.

There were no -- we weren't raising -- we were raising of course these questions because necessarily they arouse -- some of them arouse -- the question of a speedy trial for example would necessarily arise after the denial of any hearing whatever, and a refusal of the Court to grant a hearing operates to deprive (Inaudible) Due Process, that would necessarily have to arise after the District Court hearing Your Honor.

Then of course --

Justice William J. Brennan: So we're up to May.

Mr. J. Minos Simon: Sir?

Justice William J. Brennan: Now we're up to May, aren't we?

Mr. J. Minos Simon: Yeah we're in May, on May the 30th Your Honor and on that date that's when we finally applied formally you know had requesting informally from time to time to find out when the case was coming up for a speedy -- for a trial.

And it was on this date that the sheriff went to our client while he was in jail and we were serving without compensation, we thought the fellow was in pretty bad shape, he went to our client while he was in jail and he asked him how he felt, and of course he told him he didn't feel too well. He asked him, would he like to be released from jail?

And he said, he certainly would like to be released from jail.

So he told him that if he pled guilty he would assure him of his immediate freedom.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: The sheriff made the promise and he asked to be released without having to plead to anything because he was guilty of nothing.

The sheriff said that was impossible, so --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: I was -- record, this was two months after the application of this petition was before this Court.

Justice Arthur J. Goldberg: Were you ever consulted?

Mr. J. Minos Simon: I was not consulted at all.

In fact the petitioner states that he asked to call me on the telephone and they refused to permit him to do so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: That he was brought before -- they transferred the charge from the state district court to the city court. I say they, I mean the Assistant District Attorney then took the charge from the Parish --

Justice William J. Brennan: (Inaudible) back to the city court?

Mr. J. Minos Simon: I don't know exactly just how he did this except that I think he filed another charge before the city court rising out of same facts or circumstance because I see in June thereafter he dismisses the state charge, well whatever method he used, I really can't tell Your Honor at this time.

Justice Tom C. Clark: (Inaudible) file a new charge.

Mr. J. Minos Simon: He apparently filed a new charge in city court, I would --

Justice William J. Brennan: The identical charge was now in the city court, is that --

Mr. J. Minos Simon: The identical charge rising of the same factual situation.

Apparently couldn't transfer it because it had been Nolle prosequi in the District Court.

So together, the Assistant District Attorney together with the sheriff, took our client out of jail without our knowledge, brought him to city court and then had him enter plea of guilty.

Now then the Assistant District Attorney went to the city judge and told – recommended to the city judge that the punishment to be for the time served and in carrying out the recommendation of the Assistant District Attorney, this is the sentence which the city judge imposed upon him, time served –

Justice Byron R. White: Well does the -- you know it seems to me this is rather important what charge he was -- he plead guilty to, if plead guilty to this one, isn't this a state statute, the state vagrancy statute?

Mr. J. Minos Simon: Yes sir.

He plead guilty to the same charge Your Honor.

Justice Byron R. White: Is the city statue like this, city ordinance like this?

Mr. J. Minos Simon: I don't know, but there is -- but he was --

Justice Byron R. White: Has the city got jurisdiction?

Mr. J. Minos Simon: It has jurisdiction.

Justice Byron R. White: Oh it has jurisdiction –

Mr. J. Minos Simon: It has jurisdiction.

But this -- as I recall, this was the identical charge that was filed against him in the city court.

Justice William J. Brennan: According the record of the -- oh no, of course not because all this happen after (Inaudible) while the petition was pending here.

Mr. J. Minos Simon: Yes sir Your Honor.

It's appended to our supplemental brief.

Justice William J. Brennan: Well is the charge itself –

Mr. J. Minos Simon: Well the charge, I don't believe that the charge is, but the affidavit of the city judge as to what transpired is appended to it, which is substantially --

Justice William J. Brennan: Well, may I just ask?

Mr. J. Minos Simon: Yes Your Honor.

Here is what the city judge states Your Honor.

He states that the charges were transferred from the docket of the 15th District Court and for the Parish of Lafayette, Louisiana.

One charge was for the crime of vagrancy and the second charge was for commission of an act of simple battery.

So it was -- he considered it a transfer even though the original charge was not Nolle prosequi.

Justice Byron R. White: Was it a transfer of the same charge?

Mr. J. Minos Simon: Transfer of the same charge.

Justice Byron R. White: Well, the only thing I don't follow Mr. Simon -- I though you indicated -- you made a motion to quash the information, that's never been --

Mr. J. Minos Simon: Never been ruled upon.

Justice Byron R. White: Well, does that information still extend, is that still outstanding?

Mr. J. Minos Simon: It has dismissed as June the 4th, the District Attorney null -- moved for the Nolle prosequi.

Justice Byron R. White: What did the city judge do then?

Mr. J. Minos Simon: City judge entertained the plea and on the recommendation of the Assistant District Attorney imposed a sentence that was equivalent or equal to the time he had spent in the jail, so he let him go.

Justice Byron R. White: Well, that – then why would you Nolle prosequi a --

Mr. J. Minos Simon: I don't know.

Justice Byron R. White: Why would you cancel the information after that, I mean it's all -- you don't Nolle prosequi information to somebody who has served his sentence, do you?

Mr. J. Minos Simon: Your Honor the District Attorney would be able to answer that question, I certainly can't.

Justice Tom C. Clark: (Inaudible) in the city court, so then we went back five days later, I gather, I all I know is what is in the record.

He then went back to the state court five days later and dismissed the charge, which is very often done by the District Attorney.

Mr. J. Minos Simon: It was the same charge but it was dismissed.

Justice Tom C. Clark: Is that a different court?

Mr. J. Minos Simon: Yes a different court.

Justice Tom C. Clark: Charged with battery when the first one didn't charge?

Mr. J. Minos Simon: I suppose, he felt that he was -- on the minutes of the Court that should be somehow disposed off and that's what he did.

Justice William J. Brennan: Now I gather Mr. Simon that at the time we passed on your petition for certiorari and granted it, none of the facts of any event after March was before us, was it?

Mr. J. Minos Simon: That's correct.

Justice William J. Brennan: And everything -- and what we agreed to review was a judgment, sort of judgment whatever it maybe of the Supreme Court of Louisiana which denied you the review of the denial of habeas corpus and the application for original habeas corpus, the application for certiorari, prohibition and mandamus, that's what we agreed to review, wasn't it?

Mr. J. Minos Simon: Yes sir.

Justice William J. Brennan: Now how can we in the face of what happened after March?

Mr. J. Minos Simon: Well, Your Honor my response to that is that this plea of guilty was procured through the coercive effect of an illegal detainment or detention of this petitioner and that it was procured through the illegal and relentless conduct and acts of state officials.

Justice John M. Harlan: (Inaudible) before the state supreme court Mr. Simon.

Mr. J. Minos Simon: Review of what, Justice Harlan?

Justice John M. Harlan: The plea of guilty, the coerced plea of guilty?

Mr. J. Minos Simon: No sir we did not enter the --

Justice John M. Harlan: So that the Louisiana Supreme Court does not have these facts before it.

Mr. J. Minos Simon: Not that plea, no sir Your Honor.

Justice William J. Brennan: (Inaudible) by which that might have been reviewed, I gather now he had been released, he was out.

So I suppose habeas corpus, couldn't proceed on habeas corpus, but is there -- isn't there some procedure in Louisiana by which you could have attacked that coerced guilty plea?

Mr. J. Minos Simon: I can think of none.

Justice William J. Brennan: Well, then how can we do it Mr. Simon?

Mr. J. Minos Simon: I can think of no procedure.

My position to this Your Honor is that we'd be rewarding the state officials with illegal conduct.

Justice William J. Brennan: I agree it's rather outrageous, it seems to me, but I don't know if we can do that.

Mr. J. Minos Simon: Furthermore Your Honor, in my judgment a plea of guilty is the ultimate confession known to our courts and under Upshaw and McNab decision the courts have held that under these circumstances where a confession is procured through the coercive influence or illegal detention that confession is an absolute nullity and cannot be used against it.

Justice William J. Brennan: But those cases apply only in federal prosecutions.

Mr. J. Minos Simon: Oh I think that the rights not to be illegally detained is part of the concept of our liberty in the Fourteenth Amendment and where one is induced and coerced into pleading guilty or making an ultimate confession of guilty through this process --

Justice William J. Brennan: This may --

Mr. J. Minos Simon: They would be --

Justice William J. Brennan: Believe me I am not against you –

Mr. J. Minos Simon: I understand you.

Justice William J. Brennan: (Inaudible) because this certainly sounds outrageous to me.

The difficulty is how do you escape -- this is utterly moot, that is what we agreed to review, is that any longer open?

Mr. J. Minos Simon: It's my position Your Honor that the plea is an absolute nullity and the Court could ignore it as such because it was procured contrary to the constitutional rights of the petitioner and therefore it can't operate as bar to review the basic liberty questions presented to the Court.

Justice John M. Harlan: (Inaudible) proceeding in the Louisiana by which you could -- no collateral post conviction proceeding by which you could have attacked this coerced plea?

Mr. J. Minos Simon: I suspect Your Honor that at anytime the party could file an action to secure some kind of an injunction to erase this conviction from the record (Inaudible) illegally procured that would be available –-

Justice John M. Harlan: But you've never done it.

Mr. J. Minos Simon: I have never done it, I have never had the occasion to do it.

Justice John M. Harlan: The honest trouble is you are asking us to pass on questions here apart from what Mr. Justice Brennan has said that the -- no Louisiana courts have ever faced them –-

Mr. J. Minos Simon: Actually Your Honor will get to that question only when you entertain the motion to dismiss because the question is moot, and I don't that --

Justice John M. Harlan: Well, this is a different question as to whether we have any jurisdiction apart from all this.

These questions are never raised before any Louisiana court.

Mr. J. Minos Simon: The constitutional questions were raised Your Honor, which --

Justice John M. Harlan: I'm talking about the coerced plea, the illegal detention, all those things were never raised apparently before the --

Mr. J. Minos Simon: Your Honor the illegal detention was raised up to the point of March the 9th, they were raised, that he was denied of all of his legal rights, the night of the hearing, he was denied of the right to be brought before committing magistrate, he was denied of having the right to have the sheriff respond in writing to his writ, he was denied of the right to a preliminary examination once been granted.

The Court granted a relief not prayed for by the state in that it recalled it's order of preliminary examination, where they had only asked the hearing be --

Justice John M. Harlan: That has been -- makes it difficult for us to do anything about it because he is now out of jail.

Mr. J. Minos Simon: Well, I –

Justice John M. Harlan: And we have got before us the question of the ratio of this coerced plea under the circumstances that you've narrated because that isn't involved in this petition and furthermore it has never been passed upon by any state court.

Justice Byron R. White: (Inaudible) ask us to declare the regulatory statute constitutional.

Mr. J. Minos Simon: Precisely.

Justice Byron R. White: Which -- for violation of which he pleaded guilty.

Mr. J. Minos Simon: Yes indeed Your Honor, that is my -- and I might say this, its rare that you are going to ever have the constitutionality of a vagrancy statute presented to you because I dare say there are very few people who will remain in jail under these circumstances long enough to give you the opportunity to do so.

In fact may I --

Justice Byron R. White: Well, that's the problem that your client didn't need it.

This is a habeas corpus proceeding and the function of a habeas corpus proceeding is to be freed from unlawful custody, and this man is not in custody, that's the -- isn't that the basic, a basic problem.

Mr. J. Minos Simon: No, not necessarily.

We -- the basis for -- that is one of the basis, yes Your Honor, of course we applied also for writ of review in which we attacked the constitutionality of the statute and that question is basically still before the Court.

In my Judgment perhaps habeas corpus had been affected by his release, I'm not certain that it has but we also prayed for relief that the conviction itself be erased from the records of all courts.

Justice Potter Stewart: Well, where did you ever pray for that, until you got here?

Mr. J. Minos Simon: Yes in my --

Justice Potter Stewart: This is something that -- generally you have to begin some where else, you can't just come to this Court do novo and say erase the conviction.

Mr. J. Minos Simon: I was looking for my original petition to the Court, but returning to the question of his plea, I think that the state supplies this Court with enough evidence to treat the plea as an absolute nullity.

For example, they have attached the affidavit of the Deputy Sheriff Mr. Clarence Tibado in which he outlines what transpired.

I have a brief quotation from it at page three of my supplemental brief Your Honors.

Now, in reciting what took place, this Deputy Sheriff stated that the accused -- that the petitioner had called my office for purpose of talking to me but I wasn't there, of course the accused denies this, he says he called my office after he had entered the plea because they wouldn't let him use the telephone before, but in any event the deputy says, quotes the language, quotes the statement that the petitioner is supposed to have made it to my secretary, “I don't know who he talked to but he said, “if you don't do something about it today, I will go plea guilty because I cannot stand the jail no more.

He hung up the phone and I put him back in jail.”

Now this is absolute proof of the worst type of coercion that any state official may exert against a prisoner and any confession obtained under those circumstance certainly should not be given the dignity and validity of operation to bar this Court from reviewing questions of constitutional law which was probably before it at all times previous to that time.

Well, it's you before Your Honor in connection --

Justice John M. Harlan: Under the State Court and they denied your relief on these set of facts and they have actually established and of course you have a constitutional claim of the first order which we could review but those questions aren't here.

Mr. J. Minos Simon: Your Honor, we don't ask this Court as such to release him from jail, but we are asking this Court to pass on a validity of the initial charges that was filed against him and now which is a matter of public record and in connection with which he has been forced to enter a plea of guilty.

Justice Tom C. Clark: (Inaudible)

Mr. J. Minos Simon: That's quite true.

Justice Tom C. Clark: In this case, it's here, they have been (Inaudible)

Mr. J. Minos Simon: There is no question that the charge itself has been dismissed but then again we have this proposition, is this Court going to be hamstrung by the conduct of state official, they have been dismissed because now the state has found it propitious to dismiss these things, after the state --

Justice Tom C. Clark: That was all done before we took jurisdiction you say, so you had your plea in the other case in May, then you had your dismissal in June of this case and then we granted cert in October.

Mr. J. Minos Simon: In fact Your Honors granted cert in February of 1963.

Justice Tom C. Clark: Way after what?

Mr. J. Minos Simon: Way after this.

But the issue --

Justice Tom C. Clark: Well, there wouldn't be any -- wouldn't come in under case at trial, we were frustrated of any jurisdiction because we had no jurisdiction, we had granted the cert.

Mr. J. Minos Simon: But I can't convince myself that the act of noting jurisdiction or not is material in relationship to the basic question involved and that is that here state officials are attempting to profit by their absolutely illegal conduct in relationship to the liberty questions involved in the detention of this prisoner.

Justice Tom C. Clark: Well, I'm with you on that.

Mr. J. Minos Simon: And if the Court --

Justice Tom C. Clark: I have to look at the jurisdiction whether – so you haven't had any Louisiana Court pass on those problems or on whether or not the confession was coerced or rather their plea was coerced.

So while your statement is very appealing to what this man suffered and I would like to help you on it, I don't know how we could under our sit out, under our jurisdiction, it's included in our --

Mr. J. Minos Simon: Yes sir, if this Court however were to hold that this plea is an absolute nullity then all of the basic questions presented originally are still before the Court.

It's a question of weather or not –-

Justice Tom C. Clark: Louisiana hasn't held that have they, that hasn't been taken to Louisiana and for our jurisdiction you have to take to the State Court.

Mr. J. Minos Simon: Well then of course we are talking -- this question arises only in connection with state's motion to dismiss because it's moot and it's something which was created -- is their own creation and it's not -- it was involved in the time the application was filed and I don't --

Justice Byron R. White: (Inaudible) Court to declare to release you, to release your client from custody because of the unconstitutionality of the Louisiana statute.

Mr. J. Minos Simon: Yes sir, one of the –-

Justice Byron R. White: And you were saying that was one of your ground, that you were being – your client was being detained, his detention was illegal under the statute.

You still got that claim.

Now if this man were still in jail, had been sentenced to jail and was still in jail, you would still have a claim that he was being detained by the State of Louisiana under an unconstitutional statue.

Mr. J. Minos Simon: Yes I would.

Justice Byron R. White: And the fact that he had pleaded guilty and then convicted would have changed the nature of your claim, was it the illegal detention.

Mr. J. Minos Simon: Not to the slightest degree Your Honor.

Justice Byron R. White: And the only thing that really makes it weak here is I suppose the fact that he isn't detained, he has been released, he's been released and also the fact that there maybe some real questions here as to whether you adequately raised your vagueness argument (Inaudible)

Justice William J. Brennan: Are there any consequences that hangover persist after a release of a prisoner, after he has served his sentences or any disabilities, any civil disabilities in Louisiana?

Mr. J. Minos Simon: Not for a misdemeanor, Your Honor.

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: But he has a criminal record which I think this Court certainly could reach out and clear this for him without him having to go through another procedure to bring it before the Court.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: Yes sir they concede.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: Yes that's -- which --

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: Which incidentally Your Honor, a prosecution from misdemeanor maybe based upon an affidavit, you don't have to have a bill of information, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: Yes sir, and I'm glad Your Honor mentioned that because it gives raise to collateral question, and it points up the fact that the sole reason for the which the state did file this Bill of Information was an attempt to defeat petitioner's right to preliminary examination and this particular ground was used by the Trail Judge to deny, preliminary examination, may I elaborate further?

Under the preliminary examination statute before the filing of the Bill of Information either the state or the accused has the absolute unconditional right to a preliminary hearing which calls upon the state to show probable cause for holding -- detaining a person.

After Bill of Information or indictment has been filed and it is discretionary with the Court, we filed this application before the charters, before the bill was filed.

Then when it came up for hearing the District Attorney asked for a continuous to the next date.

The following day is when he filed the Bill of Information then he took the position and therefore it was discretionary and the Judge adopted this position and then did not deny a preliminary examination, but recalled his previous order, a request -- where there had been no request for such action by the Court.

So I just thought I'd point this out.

Then should the Court want me to go into the constitutional question, I'd be very happy to, which we have raised and it is our contention that this statue is unconstitutional for two basic reasons, one is that it is so vague as to run counter to the Due Process Clause of the Fourteenth Amendment and also that it denies Equal Protection.

Now, of course --

Unknown Speaker: (Inaudible)

Mr. J. Minos Simon: Yes Your Honor there is no subsection eight.

Justice Byron R. White: And where did you present these precise grounds to the Supreme Court of Louisiana?

Mr. J. Minos Simon: We held that the -- we presented to the Court I think in paragraph 20 of our application to that Court.

Justice Byron R. White: What page?

Mr. J. Minos Simon: I made just one -- I'm afraid I'm in error there Your Honor.

Justice Tom C. Clark: Didn't say that what the statue is vague or not, said the charge is no criminal offense.

Justice Byron R. White: Sorry the rest of the page I you to put in the lower court.

Mr. J. Minos Simon: Yes sir it is.

Justice Byron R. White: Rather than what you ask the Supreme Court to pass on in paragraph 26.

Mr. J. Minos Simon: Yes sir.

Justice John M. Harlan: Rely on what you say in page 27 of your draft brief where you ask the statue be declared --

Mr. J. Minos Simon: Yes that's correct.

Justice John M. Harlan: But my trouble -- let me put this question to you, let's assume that this was properly raised or was raised in what was before the Supreme Court, at that stage of the matter the case had not been tried, it was simply attacking the indictment.

Mr. J. Minos Simon: Yes sir.

Justice John M. Harlan: And the denial results in the case going back for a trial at that stage.

Mr. J. Minos Simon: Yes sir.

Justice John M. Harlan: How is that a final order that we can review?

Mr. J. Minos Simon: Your Honor for the reason that in our procedure in Louisiana, a question which is patent on the face of the record maybe raised at any time.

Justice John M. Harlan: Well I'm talking about our jurisdiction because theoretically this case is after denial could have gone back to the Trial Court and if your client had not pleaded guilty it could have been tried, he might have been acquitted.

Mr. J. Minos Simon: That's quite true.

Justice John M. Harlan: As a matter then there would have been nothing for this Court obviously that you would bring up.

My question is how is this a final order at that stage?

Mr. J. Minos Simon: It' a final order insofar as it finally disposes of petitioner's right to habeas corpus.

It finally disposes of petitioner's right to preliminary examination and it finally disposes of his right not to be prosecuted on an absolutely illegal statue.

And those are -- all which of in my judgment --

Justice John M. Harlan: You design it from the standpoint of your law, but we have to -- our jurisdiction is submitted by our federal statues to bind orders.

Mr. J. Minos Simon: Then I'm afraid I can't answer the question otherwise Your Honor.

But it is final insofar as our judgment of the case is concerned because it didn't appraise of these constitutional rights.

Justice Arthur J. Goldberg: You raised your constitutional (Inaudible)

Mr. J. Minos Simon: Yes sir.

Justice Potter Stewart: But that was in the Trial Court.

Mr. J. Minos Simon: We've all -- in our prayers as Mr. Justice Harlan pointed out we expressly ask for that particular remedy, but in my judgment Your Honor the statute is void for vagueness and I started to point out while vagrancy prosecutions in themselves are not serious offenses, they become a major crime when the Court considers that the use of this statute is very widespread throughout the nation and it constitutes a very serious abuse in our judgment on the liberty of rights of citizens.

Justice William J. Brennan: This doesn't seem to me to be the vagrancy statute in the sense I ordinarily understand the vagrancy statute with all the specificity.

They could have -- without using the word vagrancy I gather this statute could be read as making an offense by any person found in or in any structure, movable vessel or private (Inaudible) of being able to account for his lawful presence therein, that doesn't sound to me ordinarily like a vagrancy.

Mr. J. Minos Simon: That's a species of vagrancy statute Your Honor.

Justice Potter Stewart: Sounds criminal trespass more, doesn't it?

Mr. J. Minos Simon: It sounds like that, but you don't -- the difference is, and that's where you equality clause comes in, the difference is there is nothing intrinsically criminal in what you are doing and they charge you and prosecute you and punish you for the status you occupy.

There is nothing inherently criminal about just being there.

Justice Potter Stewart: Well there isn't, but the statute says that you have to be unlawfully there, and that's criminal.

So if I go home tonight and find somebody in my house who is a visitor, obviously he is not guilty of anything, but if I find somebody there who has broken in, he is unlawfully there.

Mr. J. Minos Simon: But the charge usually is for what he has been guilty, the conduct for which he has been guilty.

This charge does not relate to conduct.

If he is there, then they coupled this with not being able to account for his lawful presence therein.

This is what is offensive which is not an act of conduct as such, but rather a punishment for the status which you occupy, and it is vague if Your Honors please for the reason that the language itself, the terms employed are too general, there are no standards by which you can determine the meaning without being able to account.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: He could be.

Justice Potter Stewart: But how?

Mr. J. Minos Simon: Well who determines what is the proper accounting, that's the point.

There are no standards.

Justice Potter Stewart: Whether or not it is lawful and what's so unlawful about walking down the street?

Mr. J. Minos Simon: But the statue doesn't say that you have to show --

Justice Potter Stewart: Lawful, that's the unlawful presence.

Mr. J. Minos Simon: Well for example if the judge doesn't feel that you have given the satisfactory accounting, then of course you would be guilty of it.

It calls upon you to affirmatively take a position and explain your conduct, which embraces another question which I raise in this connection, that is that it calls upon an accused to affirmatively state why is there and if he does not do that then of course he has failed to account for his lawful presence, thus he is deprived of invoking the Fifth Amendment should he decide to do so.

And of course this is a right which is common to all persons charged with crime in the state of Louisiana and to that extent and of course he would be deprived of a constitutional right and he would be deprived of equal protection.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. Minos Simon: That's correct.

You could extend this further.

Suppose that Hannah is on property of another and they stop him and he says, well the reason I'm here and I'm looking for my homes, now is that illegal?

You're not charged of trespassing or a beggar might be vague.

He might say he wants to eat something or an artist might be vague, he may want to capture the scenery on canvass, suppose he gives that accounting to whoever arrests him, is that a satisfactory accounting?

There is no way by which we make that determination.

Now time then becomes important also.

Should the same reason, should the same accounting be given, say at 5 o'clock in the afternoon, is that reasonable?

If it's given at 12 o'clock at night or 2 o'clock in the morning, does it become unlawful and why does it become unlawful?

There are no standards by which a judgment as those things may be made.

There are no standards by which the courts may be guided in this interpretation of this particular statute and so the citizen is left in the precarious position of having to speculate as to what the statute does mean and what is does not mean and he must speculate it at the peril of his liberty.

And I think repeatedly this Court has held that such a statute when so vague is absolutely unconstitutional is depriving party of due process.

Now also I might state that the classification itself, the theory behind the vagrancy statute Your Honor is that part is found in this type of situation or not doing anything intrinsically criminal but because of a status they occupy or the mode of existence which they pursue, they create a ferment that the breach undefined crimes and therefore they should be punished.

Well we submit that the classification itself is unreasonable, it's discrimination that is not reasonably related to the purpose of the statue because there is evidence to demonstrate that the theory correct and therefore yes.

Print this transcript Transcript: 

Argument of J. Minos Simon

Mr. J. Minos Simon: Justice Black.

Yes sir I'll reserve remainder of my time Your Honors for rebuttal unless the Court should have questions for me.

Argument of Bertrand De Blanc

Mr. Bertrand De Blanc: May I proceed Your Honor?

May it please the Court.

Our position is that the question has become moot.

Our position is first that the question has become moot because there is no controversy, that there is no adversity that the relief sought cannot be granted and second that the District Court did not err in denying the accused a preliminary examination and third that the vagrancy laws are not vague, does not penalize our status and that the vagrancy laws have generally been held to be constitution and fourth that no federal question was presented, because no writ of habeas corpus was properly presented to any court.

Now Your Honors, I think that this case should be presented to Your Honors on the record and we should stick to the record and the record consists of an affidavit which was made against the accused charging him with vagrancy.

That there was a warrant issued for his arrest, a valid warrant issued for his arrest, a valid affidavit made out charging him with vagrancy of crime in the State of Louisiana and that he was found near a structure without being able to account for his presence therein, that was a motion for a preliminary examination made on his behalf by counsel, that after that the state filed a bill of information against the accused based upon the affidavit and based on the same offence.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: There is no evidence Your Honors that he was ever arrested.

There is no evidence in the record as to what happened to the warrant, whether it was executed or not.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: There is no record that he was ever in jail.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Yes he was, but that's --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well Your Honor if I told you it would be yes hearsay.

I saw him in jail later on when he asked me to go out and talk to him wanting to plead guilty.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Yes Your Honor he was, but there is evidence, and the record does not contain that fact, so I don't know how this Court is able to determine that he was arrested, because the record doesn't show that.

Justice William O. Douglas: Do many people just report to jail, like the courtroom.

Mr. Bertrand De Blanc: No it doesn't show that he was in jail.

Justice William O. Douglas: Mr. Lebank you saw him in jail, you said you saw him jail.

Mr. Bertrand De Blanc: Yes Your Honor.

Justice William O. Douglas: So I ask you how do you think he had got there?

Mr. Bertrand De Blanc: Well, Your Honor I could talk off the record and tell you that he was properly arrested.

Now there was a Bill of Information filed by the District Attorney charging him with the same offence in the same affidavit, what we do is we do not prosecute in the District Court on affidavits, we prosecute on Bills of Information which are based upon affidavits.

We prosecute in city court on affidavits.

Now there was a recall of the preliminary examination by the judge based upon the fact that the District Attorney had filed a Bill of Information.

There was request for writs and a prayer for preliminary a examination and for habeas corpus.

Now that's all the record and that is all there is to the record.

Now the question is --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bertrand De Blanc: Yes, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bertrand De Blanc: I'm sorry Your Honor.

Now he was --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bertrand De Blanc: There is something in a record Your Honors show that he was in jail, that he was arrested.

We --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bertrand De Blanc: Yes Your Honor.

Now he has prayed in his preliminary -- request for preliminary examination.

He asked for a preliminary examination and he incidentally mentioned the word habeas corpus, but he never at any time asked for habeas corpus, there was never any petition on his part requesting habeas corpus.

Habeas corpus has to be made in the name of the State of Louisiana and on the relation of the person in custody.

The petition has to state by whom the accused is deprived of his liberty and that was no done.

There was no affidavit attached attesting to the truth of the allegation and as a matter of act the accused in this case was actually asking for a preliminary examination.

Now Your Honor we feel that that's the record and there is nothing that in that record which shows that the accused was in any way illegally deprived of his liberty.

There is nothing in that record that shows that he was kept in jail incommunicado or that he was denied access to his attorney.

The sheriff in that particular parish was reelected last week and he is an honorable man.

He has -- he does not keep people incommunicado in his jail.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: No sir.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Yes sir Your Honor he was in jail.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: No sir he was not, not held incommunicado, I can tell you he was not and it's not in the record, that he was.

Unknown Speaker: How long was he in jail (Inaudible)

Mr. Bertrand De Blanc: He was in jail four months.

Now he -- after he requested for -- he requested a preliminary examination our file of Bill of Information against him, my assistant Mr. Logan was the one who handled that at the time that the affidavit was filed or give him -- permit to file it, gave the deputy sheriff a permit to file the charge against the accused, but our file Bill of Information and was ready to try the case and he would have been tried in about three weeks, but he filed a petition for -- he filed for writs in the meantime and so that it took it of our hands.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: No sir writs to the Supreme Court of Louisiana denying on the -- stating that the District Court had prevented him or denied him a preliminary examination.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: In the Supreme Court of Louisiana he asked -- he mentioned a preliminary -- a writ of Habeas Corpus, but he did not state by whom the accused was being held or he did not serve the sheriff, if that was the one who he said was holding the accused.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: He did not, (Inaudible) in other words his application for habeas corpus in the District Court was not properly made and his application for habeas corpus in the Supreme Court of Louisiana was not properly made as there was no showing that in the Supreme Court that he had a made a request on the district judges, all three district judges as required by law, and that hey were not -- they were absent, recused or were prevented from acting in this case.

He did not present this case, a case of habeas corpus, before either the District Court or before the Louisiana Supreme Court and Your Honor he was -- on the 30th of May without any coercion whatsoever, you went to the city court and pleaded guilty to the crime charged.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Bertrand De Blanc: His counsel was not present at the time and he according to the affidavits stated that he had discharged his fine -- counsel and that he was no longer represented by a counsel and in my answer to his application here, I attached affidavits by the Assistant District Attorney showing that the docket books from the District Attorney's Office showed transfer to the District Court, that the accused stated in open court that he had discharged his counsel and wished to represent himself.

As a matter of fact there is an affidavit by me, District Attorney which was attached to my answer, here in this Court on a motion to dismiss on the grounds that it was a moot question and wherein I stated that he -- the accused called me up and took from my office in the Court House up to the jail, on May the 3rd.

And that I went to see him and that he asked -- I asked him what he wanted.

He wanted to know when his case was coming up.

I told him I simply wanted to know what he wanted to talk to me about, but insofar as this case was concerned he had a lawyer and all matters should be done through his lawyer.

He said he had acquired a lawyer to simply get his wages from his employer.

He said he felt that his sentence under the guilty plea would be less than the time he would get in jail.

I told him that if he wanted to plead guilty, he would have to talk to his lawyer or he would have discharge his lawyer and make the plea himself as an affidavit which I filed in my answer.

I also attached affidavits by Mr. William Logan who is the Assistant District Attorney.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: They're in as part of the attached to my answer Your Honor in this Court.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: I also attached several affidavits by Deputy Sheriff, who said what happened, that he tried to get his attorney on the phone, tell him that he wanted to plead guilty.

There are several affidavits by the Deputy Sheriffs which were attached to the --my answer in this Court.

Now Your Honors insofar as to -- as the point that I want to make that this is a moot question.

I came across a case just before I left Louisiana Monday morning, and I would like to be able cite it, I have already given the case to Mr. Simon here and -- be permitted to file the supplemental brief.

It's a case which came up in 1960 which I had I no notice off hand, which is right in point insofar as the dismissal is concerned.

It's --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: We didn't considered that part of the record Your Honor since that's the next 40 affidavit and we did not get a chance -- it was -- those facts were not -- aren't controverted.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: I didn't put it in the record.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Do I have anything to say to you?

No I don't agree with next 40 affidavit, because it would not -- that's fact was never established in any court of law.

That fact was never established where that he was held incommunicado.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Yes Your Honor.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well the State did not have a chance to establish the true facts in any proceeding and certainly he could have established those facts himself.

The accused through counsel could have done so had he properly asked for a writ of habeas corpus and he would have been granted the writ of habeas corpus in a District Court and he would have been able to establish all of those facts, but he never did ask for a writ of habeas corpus, it was never presented to the District Court and at the time the District Court passed upon the motion for a preliminary examination, the judge in granting the preliminary examination at the very beginning, then recalled it after he had found out that the state has filed a Bill of Information.

It was never urged upon the District Court that he should have a writ of habeas corpus for all these matters to be presented.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Your Honor I said that there was no application in the District Court and in the Supreme Court in order for him to succeed for a writ -- to obtain a writ of habeas corpus, he has to show that he has exhausted his remedies in a District Court by applying to three judges in that -- in the District Court, applying for writ of habeas corpus in the District Court and showing that they were not able to act upon that.

He had not exhausted his remedies when he went to the Supreme Court of Louisiana.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well it was not -- they did not state what --

Justice John M. Harlan: They didn't state it?

Mr. Bertrand De Blanc: No sir.

Yes Your Honor.

That's -- I feel that's part of the reason not entirely.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: The Louisiana statutes require under Article 144, it says that the writ of habeas corpus maybe issued by the Supreme Court or any justice thereof at the instance of the person in actual custody, in any case when the Court may have appellant jurisdiction by the District Court, at the instance of the person in actual custody in their respective districts, provided that neither the Supreme Court nor any justice thereof except in cases provided for in Article 96 and 116 shall issue said writ unless every District Judge of criminal jurisdiction in the district in which the relator is in custody be absent, recused or prevented from some cause from acting and unless such actions, recusation or disability is made to appear by oath of the relator or by other sufficient proof.

Now Your Honor the case that I was going to cite if I may, and I've already given it to him this morning was Parker versus Ellis, which citation is 80 Supreme Court 909 decided in 1960 and this is a case which came out of Texas I believe.

The accused had already served his sentence in the state penitentiary when the case came up before this Court, and was held by this Court, that this Court would not adjudicate a matter in which it's judgment cannot operate and as the only judicial relief provide for by the statue authorizing the issuance of the habeas corpus writ, is a discharge of the prisoner or his admission to bail and that issue has become moot.

Now, we feel that this is the same situation.

He voluntarily pleaded guilty to the charge which was filed against him.

That was transferred from the District Court, the affidavit was transferred from the District Court to the City Court upon his request to plea guilty in the City Court.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Yes Your Honor.

Now the Judge himself in an affidavit which was cited by Mr. Simon states that he himself told the Judge at that he was unrepresented by counsel.

In the supplemental brief, counsel, Mr. Simon filed this affidavit by the presiding Judge as Appendix C wherein he said that the man appeared in Court and that he was asked whether he was represented by legal counsel and he said he was not represented by legal counsel, was appearing for himself.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: That's right Your Honor.

Now --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well, its customary there for the Judge or the District Attorney to ask him the question and was asked in this particular case.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well, Your Honor I would say that we probably would make a distinction between whether or not the man was charged with a felony or misdemeanor and that if he was charged with the misdemeanor, he came in and said he wanted to represent himself and that he had discharged to his attorney that we would not go ahead and call the attorney up to find out whether he was discharged, had been discharged or not, but I specifically told this man if he want to plead he had either fire his attorney or go out and plead himself.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: No sir.

Now I would like to say this, that this affidavit was transferred, this is the same affidavit, same original affidavit was transferred.

We do it all the time because these two Courts have concurrent jurisdiction insofar as misdemeanors are concerned, it was transferred because we do it every week when somebody wants to plead guilty because we have Court there every week, in the City Court and we don't have Court, but once every six months in the District Court for misdemeanors --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: It's about 55,000 and we've handled numerous cases there every Thursday, so this was transferred along with other cases which were transferred there but it's the same affidavit.

Now, one in the District Court, the Bill of Information was based upon this same affidavit.

So as I said we'd prosecute him on Bills of Information of District Court in affidavits of the City Court and in order to clear the record after he had pleaded guilty in City Court on a misdemeanor affidavit then and cross the case, dismiss the case in a District Court just for the record would be clear, so he is not charged with any offence either in the District Court or in the City Court.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Your Honor, the only remedy we would have had was that 10 days --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: At the present his prescription has set in, prescription so far as an appeal is concerned or writs after the conviction, I don't know of any remedy now at the present time.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: I don't know of any Your Honor, I might think about the time, I don't know of any off hand.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well, you see in this particular case where the misdemeanor carries a penalty of less than six months not more than six months and less than $300 fine then there is no appeal you have to go up on writs.

He would have had the right to go up on writs.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well, as a matter of fact Your Honor that could very well be that his, that he could still be entitled to go up on writs in this particular case since the appeal, the time for appeal is ten days and it may very well be that, that it's not prescribed so far as writs I couldn't tell you I don't know I couldn't --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: The appeal would not lie in this particular --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: That's right Your Honor now --

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: No Your Honor, off hand it may very well be that he is would be still entitled to it.

I can't think of any prescription on it.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: I believe that under the writs of habeas corpus he could bring anything in or bring in any facts that were pertinent to any illegal incarceration.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: Well, that is what I -- that is only bad part about habeas corpus he had not confined, he no longer confined and I don't know any other.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: No Your Honor.

Unknown Speaker: (Inaudible)

Mr. Bertrand De Blanc: That's right.

Now he has never --

Unknown Speaker: (Inaudible)

Chief Justice Earl Warren: You mind furnishing as the memorandum as to an answer to Justice Black's question please as to whether there is any remedy open to him in Louisiana at the present moment?

Mr. Bertrand De Blanc: I'll be very happy to do that Your Honor, I'll be very happy to do that.

Chief Justice Earl Warren: Thank you.

Justice Hugo L. Black: Knowing that he is out of jail.

Mr. Bertrand De Blanc: Yes Your Honor and I will be able to cite the cases on moot point at the time is that right Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Bertrand De Blanc: Now, Your Honors, coming to the question --

Chief Justice Earl Warren: (Inaudible)

Mr. Bertrand De Blanc: Thank you.

Coming to the point the question of the vagrancy statute, incidentally I just wanted to stress the point that after the District Attorney files a Bill of Information that the accused is no longer entitled as a matter of right to a preliminary examination and that is reason why the Judge recalled his order for a preliminary examination and we do it all the time.

The reason simply is that we don't want to try the case twice when the case is coming up in the near future.

In this particular case the next couple of weeks we would have been fall, we would be having a misdemeanor week and then also in the view of the fact that we don't prosecute on affidavits that was the reason.

Now, I have to go to the vagrancy statute, I have cited cases that show in that, that it's within the police power of the state to enact these vagrancy statutes and that they are passed to prevent crimes that may have flow from vagrancy ways of actions all their life that there is no cases which was cited by the appellant that vagrancy statute was unconstitutional.

This one here, the part he is attacking of course is only that part of the statute which provides that no person may be found in here any structure, movable vessel or private grounds without being able to account for their lawful presence they are in, and of course this prevents people from, say lie and awake in a building or structure would be intended to commit a crime.

The statutes have been held to be constitutional or valid exercise of police power of the states in the main because these statutes have been upheld as constitutional, as a matter of fact is one in this in the District of Columbia which is very similar to Louisiana's Statute.

Justice Hugo L. Black: Has this Court may found statute that --

Mr. Bertrand De Blanc: This Court has not passed on that particular statute Your Honor.

We submit the case unless there are any questions.

Thank you, Honor.

Chief Justice Earl Warren: Mr. Simon.

Rebuttal of J. Minos Simon

Mr. J. Minos Simon: Mr. Chief Justice we likewise submit the case, I think it have been thoroughly discussed unless the Court should have questions to ask.

Chief Justice Earl Warren: Thank you.

Mr. J. Minos Simon: Thank you.

Chief Justice Earl Warren: Mr. Simon, regardless of the outcome of this case, on behalf of the Court time, I want to express our thanks to you for having carried the case in this indigent prisoner through all the Courts and to this Court.

We are always comforted to know that lawyers are willing to do that and to give their time and energy to such causes.

It is a public cause, thank you.

Mr. J. Minos Simon: Thank you sir, I feel it's nothing but our responsibility Your Honor.

Chief Justice Earl Warren: Thank you.

Mr. De Blanc of course we thank you too for the earnest manner for which represented your county.