SPENCER v. TEXAS

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Argument of Leon B. Douglas

Chief Mr. Chief Justic Warren: -- versus Texas.

Mr. Douglas, you may continue your argument.

Mr. Leon B. Douglas: Mr. Chief Justice, may I please the Court.

The State of Texas has nothing further to present unless you have questions.

Chief Mr. Chief Justic Warren: Well, I think you have sometime left, counsel.

Argument of Michael D. Matheny

Mr. Michael D. Matheny: I just have one two other remarks.

Justice Abe Fortas: If I may ask counsel for the State a question, can I?

I confess I still have some confusion as to one of the matters of Texas Law that’s involved here.

Do the latest Amendments provide – are they applicable to capital cases as well as to non-capital cases?

Now, I know this question was asked and answered several times yesterday but I perhaps misunderstood or perhaps there was a difference in the answer that we got from different lawyers.

Rebuttal of Leon B. Douglas

Mr. Leon B. Douglas: Mr. Justice Fortas, the opinion in Roxas vs. State is 42nd, I believe, 30.

In the Motion for Rehearing, the opinion by Judge Woodley said that 3707 did not apply to capital cases, that’s the ultimate punishment statute.

Justice Abe Fortas: So far as capital cases are concerned, the Texas Procedure was the same as it was prior to January 1, 1966?

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

Justice Abe Fortas: In short, that the defendant cannot wait the presentation to the jury of the fact of his prior convictions?

Mr. Leon B. Douglas: That is correct.

Justice Abe Fortas: Thank you very much.

Mr. Leon B. Douglas: That is the point I tried to cede and had difficult in getting the opponent to accept.

Justice Abe Fortas: I see.

Thank you so much.

Justice John M. Harlan: May I just ask one more question on that line?

It doesn't apply directly to our case but before January 1, 1966, in non-capital case such as we have in Bell, can a defendant, by admitting his prior conviction, prevent the jury from getting the hearing indictment and getting information that he is a former convict?

Mr. Leon B. Douglas: Your Honor, that was the law in Pitcock vs. State.

It came down and that Pitcock case is cited in opinion on the Spencer.

But in the words of one of the justices, the Sims case and the Ross case cited here yesterday, there must be two legal (Inaudible).

How they got to the Court, I do not know.

And there is cases saying that you can't stipulate and prevent it being going to the jury but the Ross case and the Sams case cited by Mr. Scott in the first case yesterday indicates perhaps you cannot.

There is a conflict in the Court's decisions, Your Honor.

Justice John M. Harlan: Well then, do we have to assume in deciding the Bell case that it is possible for the prosecution, regardless of the admission of the prior convictions to give to the jury the charge that you got us to as to those priors?

Mr. Leon B. Douglas: Your Honor, I would have to – depending upon the Court of Criminal of Appeal's holding, I‘d have to say that I don't know what they would hold on there.

Those two cases are just like sore thumbs taking out.

I'd think that if it was pushed, the Court would permit the stipulation of the prior convictions and require no proof or reading of the indictment.

Justice John M. Harlan: Within the question of requiring, that's a question of permitting it seems to me.

Mr. Leon B. Douglas: I cannot reconcile those cases, Your Honor.

Justice John M. Harlan: Well, how are we to consider the Texas Law as our – in State matters where we're suppose to accept the law of the State as interpreted, what are we going to accept?

Mr. Leon B. Douglas: I cannot fail find if there is one case after the Ross or the Sims case.

I do not know, Your Honor.

Unknown Speaker: The Ross is pretty unequivocal, isn't it?

Mr. Leon B. Douglas: Yes, it is.

Justice John M. Harlan: As I read it, it seems to me.

Mr. Leon B. Douglas: Yes.

Chief Mr. Chief Justic Warren: May I ask you this practical manner.

Have they been doing this in Texas prior to January 1, 1966 printing the prior convictions before the bar despite the admission of them, by defendant prior to trial?'

Mr. Leon B. Douglas: It had been the general practice not to do it if they agreed to stipulate it, Your Honor.

And these two cases came up that probably was not called to the attention of the Court and those moved to the cases that are those two got by.

Chief Mr. Chief Justic Warren: What were the dates of those two cases, do you recall?

Mr. Leon B. Douglas: 401 was been in 1966.

Chief Mr. Chief Justic Warren: Oh, I see.

Very well.

Justice Abe Fortas: May I ask you this as if I may?

Even in the cases where there was a stipulation as to the commission of the prior offenses, was it customary or unusual for the fact of the prior convictions to be mentioned on the bar there?

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

Justice Abe Fortas: Where there was a stipulation, was it customary for you to require the prior convictions to be mentioned on the judges' charge to the jury?

Mr. Leon B. Douglas: No, sir.

Justice Abe Fortas: In other words, it was totally excluded from, not only as an evidentiary matter but also as a matter of statements to the jury or to the individual members of the panel?

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

In the Pitcock case cited in the opinion of the Spencer case, their case they stipulated to prior convictions they offered to and the Court reversed that case because they did not allow.

And, the penalty as absolutely fixed by law, then the jury knows nothing about it, they had found him guilty.

Then the judge under the old code assessed the penalty as maximum provided by law.

Justice Abe Fortas: Thank you very much.

Chief Mr. Chief Justic Warren: Mr. Matheny, you have a few minutes left.

Rebuttal of Michael D. Matheny

Mr. Michael D. Matheny: Your Honor, the main comment that I would have, Mr. Chief Justice and may I please the Court.

The fact that we are not dealing in the case of Leon Spencer for the case of isolating significance of the rule of evidence.

What we're dealing with is, does this man have the right to a fair and impartial trial before a fair and impartial jury?

And if any proceedings that occurs in the State Court that denies a man a fair trial, would this be propensity of bribing jurors, people crying in the courtroom, anything that would have for the admission of evidence that would be such as to keep the jury from coming to a conclusion where then fair conclusion based upon his guilt or innocence and he is denied a fair trial.

And then therefore, what we are asking in this case as in the Leon Spencer is he be given a fair trial before an impartial jury on the question of his guilty or innocence.

And it's not a -- particularly a question of whether this being an evidence should be admitted or not.

But the question is, after it has been admitted, is it such that it is rendered an impossibility for this man to have a fair trial?

And this Judge Vegas has said in the case of United States vs. Banmiller on exactly the same point.

In respect to the virtual criminal statutes and their applicability, we point out that we are dealing with a distance.

The danger resulting from prejudice is always enhanced on a capital case, fashion drawn high in the penalty is irreversible.

Certainly such a feed to psychological wizardry verges on the possibility, impossibility even for broke judges.

It is not reasonable to suppose that it could have been accomplished by twelve men brought together as a jury.

The impropriety of the Pennsylvania practice demonstrated by the circumstances of this case is so gross in results in such fundamental unfairness is to constitute the denial of due process of law.

Justice Potter Stewart: Mr. Matheny, as I understand it, you at least inclusively would not attack a procedure that allow the determination of guilt in this kind of a case by the jury, by a jury which was uninformed of his prior conviction and then subsequently, a determination of the penalty to be imposed by the same jury, which was informed of his prior conviction.

Do I understand you correctly?

Mr. Michael D. Matheny: Well, sir, yes, that is correct.

I believe that, Mr. Fortas, this Court and the Constitution is concerned, perhaps, it would be a lawful State matter to take up man's pass record to apply to what punishment society should inflict on him.

Chief Mr. Chief Justic Warren: To decide what did you say?

Mr. Michael D. Matheny: To decide what punishment, after he has been found guilty, that society should inflict to him.

Justice Potter Stewart: Well, if that's true, then what would be the words of Chief Judge Vegas that you just read to us if -- wouldn't they have equal meaning in that kind of situation?

Because it's there that we'd be talking about the count, the death penalty as he talks about and that the jury in deciding whether or not will impose a life sentence or a death sentence, which is I understand it under the Texas law is the only alternative in the cases of prior -- second prosecution for malicious murder or whatever you call it.

Would it be equally invalid constitutionally to have a jury know about his previous conviction in determining merely the question of what penalty to impose.

Mr. Michael D. Matheny: Well, sir, it comes back to you and in my personal opinion, I think that it would because you cannot enhance that.

Once you are dead and the State has executed this man, it's over.

And as far as the infliction of the death penalty itself, had taken another man's life away uplifted, it should be done on the basis of the severity of the charged crime.

But as the general proposition as to State's right to inflict a heavier punishment less than death for the repetition of crime not connected in -- prejudicing the jury on the question of guilt of innocence, that's a different matter.

And that's where our draw that distinctions perhaps of law without having to be truthful with the Court.

Justice Potter Stewart: I must appreciate that but I don't -- no, I don't' really understand.

If you give me two incidences or –

Mr. Michael D. Matheny: No, sir.

What I'm attempting to say is that I believe personally that when the death penalty can be inflicted that you should even asked to the punishment.

It should be limited as to what the man is charged with this time.

But if you are going to take another man's life away, it should be done on the basis of the charged crime - as to his guilt or innocence and as to his punishment.

Justice Potter Stewart: And, therefore, you are telling us that you think it would be unconstitutional to bring before a jury, entrusted only with the decision of what punishment to impose any record of previous convictions if the question before the jury were whether to impose a life sentence or death sentence?

Mr. Michael D. Matheny: Yes.

Chief Mr. Chief Justic Warren: Do we take that from you that a case where the judge and not the jury has the power assigned to jury to exclude the judges' consideration (Inaudible).

Mr. Michael D. Matheny: You mean bad things and the good?

Chief Mr. Chief Justic Warren: Yes, exactly.

Mr. Michael D. Matheny: Well, in the State of Texas, it's only a jury can inflict a death penalty.

Chief Mr. Chief Justic Warren: I know.

But the logic of your position, in which you say you are not arguing here but (Inaudible).

Mr. Michael D. Matheny: Perhaps, it's good because even a judge, I believe, it would be impossible for him to set aside this for the purpose of determining what the punishment should be in the instant case.

Unknown Speaker: Is it your argument that your rules of evidence should be differently applied in death issue, in life sentence issue?

Mr. Michael D. Matheny: Those were not the rules of evidence.

Unknown Speaker: Well, the rule of evidence.

As to whatever is that, it's inadmissible.

General rules of evidence.

Is that your argument that cases should be reversed from the death sentence that has been given but not at the life sentence that has been given, a reason of what this Court – United States Supreme Court – might say that was a bad rule of evidence?

Mr. Michael D. Matheny: No, sir.

My argument today, we're talking about the policy question that you just asked me or we're talking about the case of Leon Spencer in --

Unknown Speaker: And I understood you to know the distinction on the rule of evidence in the death case and then in the non-death case; that a non-death case could be a life sentence.

Mr. Michael D. Matheny: Yes, sir.

As to the question of the man's guilt or innocence on the main trial, I think there should be no distinction whatsoever.

Unknown Speaker: None whatever?

Mr. Michael D. Matheny: None whatever.

Because it -- my time is up.

Chief Mr. Chief Justic Warren: It's alright, you just complete your answer, please.

Mr. Michael D. Matheny: Because I believe the differences is not this Court deciding what policy of the State may use as to the rules of evidence but if the Tom (Inaudible) effects of admitting this evidence, as such is to deny a man a fair trial, it must fall under the Sixth Amendment.

And, I believe this is encouraged here because of the accumulation of all the admissibility of this evidence that Courts thereafter argues previously said, why it's too heavily on deciding a man's guilt or innocence based on the primary jeopardy.

Unknown Speaker: Well, there wasn't an accumulation in this Spencer case, was it?

Mr. Michael D. Matheny: Yes, sir.

The record –

Unknown Speaker: How many crimes had he been convicted of before?

Mr. Michael D. Matheny: He'd been convicted of one crime before but this – the evidence of this one kind came in from the very beginning in the voir dire to the judges charged in, certified copies of the record plus two live witnesses to testify on this the same man who sit on the same chair and who was convicted by another jury in the same jury about 15 years before.

Unknown Speaker: But it was only one crime?

Mr. Michael D. Matheny: Yes, sir, it's right.

But sitting here listening to what he said (Inaudible).

Chief Mr. Chief Justic Warren: I understood, counsel, you said yesterday that there was nothing in the evidence to indicate that this man had committed murder crime except --

Mr. Michael D. Matheny: That's right, sir--

Chief Mr. Chief Justic Warren: The proof of this finger prints and so forth, there was other --

Mr. Michael D. Matheny: Well, I'm sorry.

Voir dire, the State's position was explained to the jury – they did not say it is a fact but they said it's our opinion that the evidence would show this and therefore he has punishment.

The indictment was read to the jury on the primary charge which included the going back into the repetitions, Your Honor.

A certified copy of the previous indictment along with the jury's verdict, along with the judgment of the court sentencing the man, was introduced.

Justice Potter Stewart: But I gather there was no evidence that would detail to the previous.

Mr. Michael D. Matheny: Except to the fact of the indictment read that the man killed this other woman with a knife.

Justice Potter Stewart: And the indictment in the form of prosecution was in evidence.

Mr. Michael D. Matheny: Yes, because you have to give notices to have that in indictment plus the fact, besides the picture with a number across these chairs.

In the prison -- the records of his finger prints there were two live police witnesses to testify that they were present on the same courtroom that witness the same man convicted before in the same courtroom 15 years ago.

Plus, when we got through with the case, besides the State argument as to what punishment should be inflicted, the charge to the jury, which is a part of the transcript to wit, specifically made to the jury found that he was the man, that the man convicted before.

Chief Mr. Chief Justic Warren: Mr. Martini, Mr. Fortas concepts of the fact that you're representing this man by assignment of this Court because he is indigent and is without a lawyer and we consider that a real public servant and we appreciate it very much.

And Mr. Douglas, we appreciate the furbish manner in which you have protected the rights of the people of the State of Texas and we're pleased to call on your appearances.

No. 70, William Albert Reed, petitioner versus George J. Beto, director of Texas Department of Corrections.

Mr. Colvin?

Argument of Emmett Colvin

Mr. Emmett Colvin: Mr. Chief Justice, may I please the Court.

I thank Mr. Chief Justice to a great extent on my argument has been outlined by the questions of the respective justices.

And if you would consider to proofread, I would like you to turn in read my argument around the questions that have been asked.

With this distinction, however, if the Court, pleases, I am dealing with a rather distinct statute in my piece – Article 63 of the Texas Penal Code.

I am not dealing as we, and you are aware, in Article 62, the first case in the docket of Bell case.

In Article 62, we are dealing with similar offenses.

In Article 63, the offense statute that I am here concerned with is Mr. Reed, the petitioner.

It is a material whether the prior offenses or convictions are similar or dissimilar so long as they are felonies.

I would like to make that distinction from the very beginning.

Turning to the question that was asked by Mr. Justice Fortas, the stipulation, it has been concerning me, Mr. Justice, because in the first instance, it is no answer to Mr. Reed to say if you were tried some several years later you could have stipulated at that time because the first time it was authorized in the State of Texas – it was in the case of Pitcock vs. State in 1963 – it comes too late from Mr. Reed.

And, I'm too quite concerned, and as I cited in my Brief of whether or not this goes in the charge regardless to the jury.

I can always say we have no cases at this time in Texas defining that proposition.

I do know, as a matter of fact, some judges put it in their charge some judges do not because we have not crystallized by an opinion of our highest Court but stipulation or no.

What concerns me, there's something seemingly improper when I say that I must purchase using my 6th Amendment right with my 5th Amendment right by stipulating that I am going to help the prosecution complete an elements of its case.

This seems to be against at least my conception of traditional concepts of ordered liberty.

But at least I have my conceptions.

Let us assumed that there may be overriding circumstances of necessity in this balancing of the rights of society as opposed by the defendants in some instance.

Let us assume that there is an overriding necessity.

It's the word “necessity” that bothers me.

Is there a necessity for this trial-noted academy, not a separate trial on guilt or innocence but is there a necessity of one trial in which all is uneasy to get?

Now, I listened very closely yesterday for someone to give me answer on that word, “necessity”.

I heard nothing.

I heard no answer.

And yet I, as a form of prosecutor, and every prosecutor in this room knows the reason for this “PC 63” as we call it, colloquially described as the “big bitch” in Texas.

This is what we know it is.

And it is the horror.

It is the type of statute, the type of proceedings by which you cannot only win a case on an easy current or on a difficult case rather as to the current offense but you can also achieve, I believe, a high degree of pleas of guilty to weak cases or cases that you can't possibly try.

We, prosecutors and we, form of prosecutors, know the viciousness of this process and I can hear to agree to no one –

Justice Potter Stewart: What are you telling us?

You were telling us by imputation you get this guilty plea from the defendant and return for your agreement not to invoke 63, is that it?

Mr. Emmett Colvin: Yes, I think this is enunciated Mr. Justice Stewart at page 58 and I did not cite this in my Brief.

Page 58 note 3 of this New American Bar series entitled, “Conviction, The Determination of Guilt or Innocence Without Trial”.

And in the broader form on extensive note, they described the procedure that I have colloquially described here this morning of obtaining pleas of guilty.

Justice Potter Stewart: In return to the prosecutor's agreement not to invoke this Texas Statute, is that it?

Mr. Emmett Colvin: Yes, Your Honor.

Justice Potter Stewart: You may not use suggesting that the (Voice overlap).

Mr. Emmett Colvin: I am right.

Suggesting, yes, Your Honor.

Justice Potter Stewart: (Inaudible)

Mr. Emmett Colvin: I believe in the West Virginia case, Your Honor, I think, as I recall, the trial judges is a part of the agreement.

I do not suggest that.

I do not think that would be a customary thing.

Unknown Speaker: (Inaudible)

Mr. Emmett Colvin: I am concerned here with Mr. Justice Black's concern and I think that was reflected, Mr. Justice Black, in your dissent in the Jackson vs. Dino.

I believe the question that you have been asking here is the constitutional power of this Court to change State procedure.

And, of course, I'm aware of your dissent and it appears that at least on our minds, we might be in conflict.

But I am -- I can make nothing more than a frontal attack.

I've used the word “procedure” not as a matter of a magical word.

It's difficult, I think, to avoid this matter of semantics.

But I fear that at times we suffer from material labors.

And, as I see in the Reed case, if I turn back the labors, whether it would be procedure or substance, I see a pitiful accused, who may be wearing a white shirt of presumptive innocence but he's rather hotly battled in a crooked prejudice denominating from the end of the courtroom.

With this be, what do we mean when we say a fair trial by an impartial jury under the Sixth and Fourteenth Amendment of the Constitution of the United States?

I think in the past, this Court has managed to cut through the point, whether it be substance or whether it be procedure to reach the thing that bears down upon a citizen's rights.

But of course, I say here the substance is prejudiced and there's some question and there's a reason here.

Of course, this prejudice as Mr. Justice White suggested it, there is prejudice and I would agree.

Everytime I walk into the courtroom with my client under the indictment and he is convicted, he is prejudiced.

And this is as it should be.

It is as it should be if he is tried by an impartial jury.

This is the prejudice that I'm and concerned about.

This is a right that's guaranteed to him, of course, by the Sixth and Fourteenth.

This is the inherent prejudice of being tried by a partial jury.

And this is not a technical concept; it's something that's deeply imbedded in our fundamental ideas, a fairness in the constitutional sense.

And anything less, is a travesty on justice.

I think this is the type of prejudice that the Court was dealing in a unanimous opinion in Owen vs. Dowd, where it appears to me that one of the most telling circumstances in Erwin was the express opinion that other murderers, other crimes had been attributed to the defendant.

May be will here in Reed, as in Erwin, as in Marshall that there actually is no prejudice that exists.

But when we speak of constitutional rights, in our system of law we speak of this system of guarantees, of safeguards designed to do what?

To prevent the probability of prejudice, of unfairness.

I heard my premise –

Justice Potter Stewart: You referred to your constitutional rights.

As I understand it, the part of the Constitution and the only part upon which you are relying in this case is the due process clause of the Fourteenth Amendment of the Constitution.

Mr. Emmett Colvin: And the Sixth Amendment as read to the due process clause I am hoping, Mr. Justice Stewart.

Justice Potter Stewart: But which part of the Sixth?

Mr. Emmett Colvin: The right to impartial jury.

Justice Hugo L. Black: Well, if there's an impartial jury on a case of this kind is because there has been a mistake made in the introduction of evidence, isn't it?

Mr. Emmett Colvin: Yes, Your Honor.

I think there will --

Justice Hugo L. Black: You think that's the kind of impartial jury that is spoken of in the Amendment?

Mr. Emmett Colvin: I would think, Mr. Justice Black, that there was probably a mistake made prior to Matt vs. Ohio when you introduce illegally obtained evidence.

In a sense, we changed the rule of procedure with Matt vs. Ohio and Cur vs. California.

In a very clear sense, we change procedure in Jackson vs. Denno as to how a confession would be received in evidence.

Of course, I appreciate, Mr. Justice Black, that was all of your dissent but it appears to me that there are times when procedure will be so emerge under the substance of the thing that we are talking about.

And, we must recognize that this Court does have the power to change.

Justice Hugo L. Black: What you are complaining about is that a jury is permitted to learn that the man who is on the trial for a crime, has committed crimes before, isn't it?

Mr. Emmett Colvin: Yes, Your Honor.

Justice Hugo L. Black: How many Counties do you have in Texas?

Mr. Emmett Colvin: We have, I believe, about a 183.

Unknown Speaker: 254.

Mr. Emmett Colvin: 254; I lost count, Mr. Chief Justice.

Justice Hugo L. Black: Some of those are small Counties?

Mr. Emmett Colvin: Your Honor, they vary in size, area wise and population wise; large Counties, small Counties.

Justice Hugo L. Black: Do you think it's possible to have a, in all those small Counties all over the United States, about juries “not to know” something about the past life of a man who is charged with a crime?

Mr. Emmett Colvin: Probably not, Your Honor, certainly in these smaller communities.

But what --

Justice Hugo L. Black: But would you disqualify the jurors because they know that the man has committed a crime?

Mr. Emmett Colvin: Of course, they would be disqualified –

Justice Hugo L. Black: Why not?

Mr. Emmett Colvin: if they would show prejudice and that' exactly what I think your leading up to you that I haven't shown actual prejudice.

Justice Hugo L. Black: No, I'm not kidding (Laughter).

I've (Inaudible) to the fact that you have a situation here which you know as the law accepts and jurors are supposed to know that that life of the man is on trial.

Here, you are talking about a policy that's wrong.

And the question is, are you going to the right tribunal to talk about that policy.

Mr. Emmett Colvin: I think I must come to this tribunal, Your Honor, that's why I'm here.

But if you go back to the time when the jurors knew all the facts, and the defendant and the witnesses were even incompetent to testify, I can hardly equate that with the sense of fairness that we have since read in the/our constitution.

Justice Hugo L. Black: Well, I came from a small County in Alabama.

Murders that have been committed there are far few and far between.

Everybody knows of that.

All the jurors know that.

They know about the man who committed it and worse than that.

What would you do in a County like that, you had to change the venue?

Mr. Emmett Colvin: I think, Mr. Justice Black, I do and probably what they did in that County.

We would make every effort to assure to the best of our ability of a probability of facts.

Justice Hugo L. Black: How about not getting away from the word “fact” because that's an abstract word which is not in the Constitution?

Get away from that but what would you do about the people who are bound to know that this man committed a crime before and have been in the penitentiary before?

Mr. Emmett Colvin: Perhaps in that case there would be no harm.

There would be no prejudice.

Justice Hugo L. Black: Why not?

They will find out (Voice overlap).

Mr. Emmett Colvin: But shall we sacrifice the man where there would be a prejudice.

Beg your pardon?

Justice Hugo L. Black: They know he has committed the crime and he has suffered the penitentiary sometime before.

I've known many of them.

Mr. Emmett Colvin: I'm, of course, thinking about or on a motion, Your Honor, to file a change of venue if there is actual prejudice there.

There's so much knowledge about the prior record of this man.

This is the weapon that --

Justice Hugo L. Black: Oh, you don't have to do that in the majority of Counties in the United States of America when you try people for crime.

Justice Abe Fortas: Mr. Colvin, isn't there a difference in your mind and experience between what a juror may know on the one hand and in the other hand, what is placed on the record and brought before the jury and instructed to consider it as part of the trial?

Isn't there a difference?

Mr. Emmett Colvin: Mr. Justice Fortas, that was the point I was about to make next.

Here, we received --

Justice Potter Stewart: Before you do, I would just want to be sure my facts are right.

I had understood that there were instructions in this case, and all three of these cases, by the Court not to consider these previous convictions in arriving in the determination of guilt.

Mr. Emmett Colvin: Yes, that's true in all these cases.

Justice Potter Stewart: Very explicit instructions, is that correct or am I wrong about that?

Mr. Emmett Colvin: Your quite correct.

Justice Abe Fortas: And even so, Mr. Colvin, in your experience as lawyer, isn't there a difference between whether juror may know in what is presented in evidence in pre -- I don't know what was done in your case in the preceding case, were told that the indictment was the only indictment which was offer in evidence.

The sentence or the judgment of the Court put in the evidence, two policemen were put on the stand to testify to the conviction and the picture of the defendant as convict with his convict number as a result to the prior conviction, was all for there in evidence.

Mr. Emmett Colvin: That is the method of proof --

Justice Abe Fortas: Now, is it your statement that there is a qualitative difference considerable significance, legal significance between that and the general hearsay knowledge of the juror.

Mr. Emmett Colvin: Mr. Justice Fortas, that, I think, fairly equitable to describe the procedure that used in proving up these cases.

Justice Hugo L. Black: Is it your experience as a lawyer that jurors are less likely to be affected by that which they know of their own knowledge in the past and by that which was offered in evidence?

Mr. Emmett Colvin: I think, Your Honor, as to this particular type of evidence, they would surely be effected and effected more strongly.

They are presented a historical –

Justice Hugo L. Black: And would they be affected if they just do it from the outside?

Mr. Emmett Colvin: They will be affected, I think, Mr. Justice Black, in either way.

But the point I'm making is, there are presented here in these cases a historical fact judicially approves a judgment, a record of conviction.

I do not see how they can put it from your minds.

I think I would be in better shape if the judge didn't even read the instruction to ignore what you have just heard.

You have just heard to the Courts of Texas a record of conviction.

I heard the voice yesterday of my friend, Harvey Leon Douglas, a man of the extreme and electoral integrity and he candidly admitted this before the Court as I know it would that the procedure we used is under attack, the jury probably considers prior convictions in their determination of guilty or innocence.

And to me, this leads us to a concise answer as to why this is a denial of due process because we end up with a judgment that is unreliable.

You cannot say that this jury actually considered the guilt or innocence on the basis of the evidence that pertainrd to this offense.

I think that's what this Court was concerned about in Jackson vs. Denno, Erwin vs. Dowd, Gideon vs. Wainwright and we're brought to this critical question of course in my case.

Justice Hugo L. Black: Gideon vs. Wainwright, we were concerned with the fact that this Constitution specifically provides that a man should have a lawyer.

Mr. Emmett Colvin: Yes, Your Honor.

We were concerned with the effective counsel in Gideon vs. Wainwright as guaranteed by the Constitution of the United States.

Justice Hugo L. Black: Why did you then use the word “effective” if he can't request counsel.

Mr. Emmett Colvin: I believe that's the way it's been interpreted by the Court.

Justice Hugo L. Black: (Voice overlap)

Mr. Emmett Colvin: Yes, Mr. Justice Black.

But in this case, had Mr. Reed-- had the most effective counsel in the world that would have made no difference.

The on slot of what, two prior felonies?

That's all they require to alleged proof you see under Article 63.

That's all; just two.

But what did they allege?

Eight prior convictions prior the --

Justice Hugo L. Black: You think it's wrong for the jury to know that the man has been convicted eight times?

Mr. Emmett Colvin: Oh, very definitely, Your Honor.

Justice Hugo L. Black: You think that's constitutionally wrong?

Mr. Emmett Colvin: Yes, Your Honor, I do.

Justice Potter Stewart: I think I understand your argument fully but if I do then what you say I should think will also make constitutionally invalid the introduction in evidence before a jury entrusted with the determination of guilt of prior convictions in sexual offenses or in fraud or in the various other familiar evidentiary exceptions which permit the introduction of evidences of prior offenses to show a common scheme or plan or to show propensity and you know all these --

Mr. Emmett Colvin: Evidence.

Justice Potter Stewart: The evidence in textbooks.

Why wouldn't it be true that what you‘re saying now about this procedure wouldn't be equally applicable to the introduction of the evidence of prior convictions in that kind of a case?

Mr. Emmett Colvin: Mr. Justice Stewart, if you remember I started in looking for an answer to that word “necessity” in my argument.

Justice Potter Stewart: Yes, but --

Mr. Emmett Colvin: I find it in the exceptions to the normal rule against the admission of extraneous offenses that you referred to, system, design.

Justice Potter Stewart: I don't know how normal the rule is.

I'm sure there are variations in each one of the 50 States.

But we are familiar --

Mr. Emmett Colvin: I think in the general proposition, extraneous offenses are inadmissible under certain conditions.

The general rule is inadmissibility except, these systems, design.

The defendant, of course, can open up his character.

Other than that, its' not even – it's not even admissible to attack character unless he applies in Texas for a probated sentence where in effect, the legis good care to many open to that in some way.

But the point, as I see it, is that there is a reasonable necessity shown for the admissibility of this evidence that has absolutely nothing to do otherwise with guilt or innocence in this case.

Let me demonstrate.

Suppose 10 years ago, I wrote two hot checks in Texas over $50.

This would be a felony in Texas; I was convicted.

Now 10 years later, I am on trial for a narcotics offense; I'm an addict.

Is the writing of two hot checks 10 years ago, is that relevant to a narcotics offense today?

I can see as I think Mr. Justice White was pointing out some relevance for your dealing with similar offenses.

And I'm not here to argue these other cases.

I'm just here to argue Reed.

I'm dealing with Article 63; defenses may not be similar.

As a matter of fact, in Reeds case, there was some what dissent.

Justice Potter Stewart: What you're telling us then?

If it's necessary, the due process clause can be violated but in this case it's not necessary.

Mr. Emmett Colvin: I think basically that is the essence.

Justice Potter Stewart: I never understood that necessity was an answer to a claim of unconstitutionality.

Mr. Emmett Colvin: I think here, Mr. Justice Stewart, it's emerged in our whole claim because the reason why this otherwise inadmissible evidence comes in is only because of that word, a “necessity” and overriding of what we know would normally be highly prejudicial to the man on trial.

Justice Potter Stewart: Well, if it isn't highly and unconstitutionally prejudicial then it is.

And if it isn't, that isn't.

And if it is, it violates the due process clause no matter what the claim of necessity might be, isn't that right?

Mr. Emmett Colvin: No, I think not, Mr. Justice Stewart.

I think the -- otherwise the defendant could open the door himself by getting upon the stand because – and he could, I think in most States be impeached with his prior convictions.

Frankly, I doubt the validity of the notion that this really goes to his verity and credibility/veracity.

But nevertheless, that's the theory under (Inaudible).

Otherwise, that would be grounds for reversible error, normally in the State of Texas and I think most States.

I cannot -- perhaps I am not expressing my self clearly.

It appears to me that when we have a man on trial for his life, that the whole essence of our system is to do that, which will give some assurance.

And it would be more likelihood of the fair trial.

Justice Potter Stewart: Then you just have to be on trial for his life?

Mr. Emmett Colvin: No, sir.

Justice Potter Stewart: (Voice overlap).

Mr. Emmett Colvin: It would be very serious to me if it were 30 days.

And I think that's true with most of it.

But in this procedure which I think quite frankly, was designed to do the very thing – it is probably done – and that is to prejudice with defendant and to make a good case out of a weak current offense.

Now, if we are dealing with unreliable judgment, if you agree with me there then I think retroactivity must necessarily follow under the opinions of this Court.

I think it must necessarily follow because if we have unreliable judgments of conviction, then we strike at the very foundation of our whole system which is some degree of assurance, of a reliable judgment; the whole thing trembles.

I think we're always faced with this favorite dragon.

If you hold retroactive, does it open the gates of the penitentiary?

Let's compare the gates that were opened to the Gideon defendants and the gates that may be opened to what I might call the Reed defendant.

In the first place, I doubt that we have as many Reed defendants.

We may.

I know I find a literal terse statistics on the subject.

The Texas Penitentiary reports as of the end of the year some 500 inmates serving a life sentence; these are habituals among some 12,800 prisoners.

Justice Potter Stewart: I don't, perhaps this isn't too far but you are now relying on the statistics.

I don't quite understand that -- those statistics.

Some 500 lifers among all the lifers or --

Mr. Emmett Colvin: Mr. Justice Stewart, I don't allow that -- I just showed that I attempted to get some figures and I'm very proud of it.

Justice Potter Stewart: Alright, and I don't understand what these figures are.

I don't' even understand the figures.

Are they that among all the people serving life sentences, 500 of them are recidivist or 500 of all the 12,000 are serving life sentences or what other figures --

Mr. Emmett Colvin: Oh that means and it is the letter attached to as an appendix to my Brief, Mr. Justice Stewart is on that particular day at that penitentiary there were 500 defendants/prisoners serving under Article 63 as habituals.

They may have or some of them may have come in the day before or some of them may have been about to be brought on the next day, I do not know.

Justice Potter Stewart: Serving life sentences?

Mr. Emmett Colvin: Life sentences.

Justice Potter Stewart: Habitual under 63?

Mr. Emmett Colvin: That's right, Your Honor.

Justice Potter Stewart: Out of how many serving life sentences?

Mr. Emmett Colvin: Out of 12,800 prisoners.

At the time I contact the penitentiary, they didn't even have these statistics.

They had to put it to a computer to answer my letter.

I have attempted to find statistics from else where in the country and I find, as a matter of fact, difficulty and even obtaining a good law reviews on the whole general settings.

I think I've cited in my Brief this Canadian on our review which is possibly one of the best.

But there's another fact wherein to comparing this with the Gideon defendant.

There's a rather strong deterrent you know in Texas and I think possibly another States in a man filing his petition.

If you agree that this is unconstitutional, he can be retried.

The retrial of his case, as I argue it, is not anymore difficult than it is with the Gideon defendant.

What is the element, the dismissing, which is not missing with the Gideon defendant?

The elements are the prior convictions.

This is a historical documented fact and no problem in the retrial.

And in the retrial, under the law of Texas, the defendant is not entitled to credit for his back time served.

Now, this, of course, should be quite a deterrence or a prisoner/inmate under the situation that Reed is in filing his numerous petitions.

Justice Abe Fortas: This defense was not raised on behalf of Mr. Reed until Federal habeas, is that right?

Mr. Emmett Colvin: That's right, Mr. Justice Fortas.

I raised it on the theory of Favors vs. Noreen, and the Fifth Circuit Court of Appeals agreed with me and the State has not contested that from that point on.

On the ground that I have no effective remedy, the Court of Criminal Appeals held both before Reed “We do not have even the power to decide this” and after Reed, “We do not have the power to decide it” and the Fifth Circuit speaking through Judge Brown stated that it would be a waste of precious time and judicial energy to present it to this Court of Criminal Appeals of Texas.

This is not a judicial slap at the Court of Criminal Appeals; they just recognized facts. I would say this, Mr. Reed possibly made the best argument.

He ran from this trial before it was over.

He escaped.

He recognized the prejudice.

He recognized his position.

After all the reading of eight counts prior convictions that were unnecessary were prove only two.

That was all they needed to prove.

A representative, if I'm in with this point, Mr. Chief Justice, a Negro in Arkansas wanted to escape one time and he articulated the matter rather succinctly.

When I asked him why he ran and he said, “Mr. Lawyer, I know of only two forms of justice here and those are my two feet”.

Chief Mr. Chief Justic Warren: Mr. Fender?

Argument of Howard M. Fender

Mr. Howard M. Fender: Mr. Chief Justice, may I please the Court.

We have here in Reed vs. Beto the typical old time habitual case, the three time loser.

This is – as stated aback counsel is not governed by requirement of the same offense and not governed by the requirement that they be capital offenses but rather that they all be offenses less in capital.

This is society’s attempt and effort to protect itself from the presence of man who have proved themselves undesirable and unrehabilitable.

The question arises now is as to why we have tried in Texas everything in one ball of action.

Why did we have one hearing to determine both guilt and innocence in the recidivism count?

And I’ll give you the reason, because we had an order of trial fixed by statute which set forth exactly what must to be done in each case.

It sets forth, “when you must read the indictment then that you must offer your proof, that next the Court must instruct the jury on the law, that next the jury must return its verdict and lastly, that the Court shall render its judgment”.

That is a statute passed by the legislature and our Court of Criminal Appeals has repeatedly held that it has no rule-making power.

Our Court of Criminal Appeal is a Court of last resort; our District Courts, our County Courts and our Justice Courts all have appeal going to the Court of Criminal Appeals and none of inferior courts have rule-making power.

Therefore, in order to comply with the statute, which has been on the books since the days of the Republic of Texas, it was no choice on the part of any Court but to exhibit to the jury all of the evidence and receive one verdict.

Now, the New Code of Criminal Procedure changes this not only with regard to recidivism.

I would like to point out to you that recidivism simply rides along with the rest of our procedure.

The New Code of Criminal Procedure sets forth a two-staged proceeding, this, once again, is a statutory enactment by the legislature wherein there is first a determination of guilt or innocence to be followed by one of two alternative procedures in cases less in capital to determine punishment.

Now this is a fundamental change in our approach but it is not direct to that recidivism but rather is directed in our entire procedure in criminal law and the repetition and habitual offenders simply ride along with this change in policy.

Chief Mr. Chief Justic Warren: Mr. Fender, I understood a moment ago that before your New Code that the Court had no alternative to admitting all of these sentence.

Now do you mean that regardless of whether there was a stipulation before hand or regardless of whether the defendant had admitted his guilt in the –

Mr. Howard M. Fender: No, sir.

I meant that the Court could not divide the proceedings in any other order and that which was set by statute.

It was, therefore, impossible under the old statute for the Court to hold one hearing, receive a partial verdict from the jury and then submit more evidence and more instructions to the jury and get a second verdict on the jury.

Our Court of Criminal Appeals has held that the stipulation is acceptable and when accepted, that the prosecution may not read a portion of the indictment alleging the prior convictions nor present evidence to the jury.

In the Sims case and Ross case, I took the case and called Mr. Grady Height, a member of the Fort Worth in Texas Bar who tried that case and argued it in the Court of Criminal Appeals and an effort to tear up to the Court since the opinion itself was somewhat succinct and difficult to understand and he indicated that their entire position was based on the theory that the Court of Criminal Appeals had no rule-making power and could not therefore force the prosecutor to do anything other than follow the procedure set forth in the statute unless the prosecutor choose to go along.

I’m sorry it happened.

It happened on my own hometown, Grady Height worked for me when I was District Attorney in Fort Worth and I hated I have to talk to him that way on the telephone and find out that happened that he’d taking up position that he did.

Our Court rule in those two cases essentially that they were paralyzed for lack of rule-making power.

I will report that it was not always our custom to that entire County and I don’t of know anything with precise with these two cases where that was done.

As early as 1952, I know we were stipulating prior convictions long before the Pitcock decision and we were not submitting the reading to the jury the prior indictments nor were we offering proof where we were stipulating.

That prior to 1952, I don’t know because I was not District Attorney prior to 1952.

However, it was a procedure that we pick up our word of mouth and knows we proceeded to this.

So, I know that for sometime prior to that, they had been stipulating.

And I also know in response to Mr. Colven’s testimony about what prosecutors do and I was happy to stipulate the prior conviction whether you don’t prove it because in those days we were never sure we could prove a prior conviction.

Since then, fingerprint methods have become so advanced that it is really not very difficult now to prove a prior conviction and show the record by the relationship between the prison fingerprints and the current fingerprints taken by the sheriff of the man who is on trial.

But it used to be a very difficult thing and we love to stipulate on them so we wouldn’t be put to that proof.

Justice Abe Fortas: Was stipulations offered by the defendant ever refute by the prosecution?

Mr. Howard M. Fender: Not while I was District Attorney, Mr. Justice Fortas.

There were obviously in these two cases that went up from Tuck County where Mr. Grady Height said they adopted the position that they had a right to proceed with their trial and that being dictated to by the defendants.

And that was one of the few rights, the State had left in prosecuting the insistent opponent.

Justice Abe Fortas: So at least two cases were (Voice overlap) than to stipulate in the prosecution judging?

Mr. Howard M. Fender: Yes, sir.

That is the Sims and Ross cases.

I might add in the Sims, the defendant took the stand and pressured by the admitted all these prior convictions in relation to testifying; that in Ross, the defendant testified in the absence of the jury on the question of whether or not his confession was voluntary.

And in the absence of the jury, his prior convictions were used to impeach his testimony in full court and then they were later on introduced before the jury in connection with his trial.

Unknown Speaker: (Inaudible)

Mr. Howard M. Fender: 1964.

Unknown Speaker: Well, affirm me.

Mr. Howard M. Fender: 1961, excuse me.

I was going wrong directions from this Pitcock decision.

Pitcock was in 1963 decision but I say the practice was wide spread along before that.

Unknown Speaker: When were you with defendant?

Mr. Howard M. Fender: 1952 to 1959 sir –

Unknown Speaker: You followed that in Texas?

Mr. Howard M. Fender: Yes, sir.

I would say we followed both.

If are they for the stipulation, we stipulated.

If they did not, we offer the proof.

Unknown Speaker: Well, that's a practical decision.

Mr. Howard M. Fender: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Howard M. Fender: I was kind a nip and tuck, Your Honor.

If they didn’t think we had all about it, they wouldn’t stipulate.

If they thought we had the necessary proof, they would usually stipulate.

Unknown Speaker: Fortunately if we --

Mr. Howard M. Fender: I would say we had to make more proof then we got stipulations.

Unknown Speaker: (Inaudible)

Mr. Howard M. Fender: No, sir.

I would say that contrary is through the day because its -- the proof is so much more efficient with the present fingerprints system.

And I would also like to point out that this case here before yesterday prevents the postponement of the question - retrospective or retroactive application.

There was no objection raised on the trial court to this procedure.

There was no motion in Lemony or no motion to elect certain counts.

It’s true that this indictment contained more than two prior convictions.

The grand jury’s return indictments and they tell they find from the evidence before them the things that go in the indictments.

District Attorneys prepare them under the direction of the grand jury.

In this instance, the grand jury found that all these prior counts existed.

This was a pleading, just as any pleading in court and the indictment was read in accordance of statute requirement, in the order of trial that the indictment be read.

We don’t know what would happen if the defendant’s attorney - and admittedly he had competent counsel – we do not know what would happen if he had file a motion to require the State to elect two or possibly three or even one of these counts for enhancement purposes.

We don’t know what would happen if a motion in Lemony had been filed to prohibit the reading of any of these counts.

We don’t know what would happen if an objection have been raised nor do we know what would happen if an offer to stipulate had been made.

Mr. Stanley Cork, who was the prosecutor who tried that case when this was introduced and admitted to this Court yesterday morning.

All we know is that without what’s asking the trial court to pass on this, without what’s asking the Court of Criminal Appeals to pass on this in the ordinary course of appeal, nor without asking the Court of Criminal Appeals to pass on this by way of habeas corpus, this matter was first submitted to the United States District Court to the 17th District of Texas.

It was three counts submitted.

The first two had been brought up in normal course of events and that was the question of the method of proof of the priors and is not present before this Court.

But that was the reason they went to the Court of Criminal Appeals; that was the reason they initially filed on the Federal District Court; and they headed on, for the first time, to the Federal District Court of – I might had to put the habeas corpus.

And with the Court of Criminal Appeals, after it served over two years which is the minimum and once again, did not raise this question on that application for writ of habeas corpus before the Court of Criminal Appeal.

Then for the first time, docket on the Federal District Court and the Federal District Court did not consider it worthy of a hearing, a plenary hearing but this means count three with the simple short statement that appears on the record that there had been no exhaustion of State remedies and it was not therefore probably before District Court.

Our counsel said we didn’t raise any (Inaudible).

I believe our answer to the application for certiorari and our Brief on the merits, once again caused these questions to the attention of the Court.

I believe this is jurisdiction in so far as habeas corpus is concerned and we haven’t given up for minute.

I’m feeling that this is improperly before the Court because they did not exhaust State remedy before attempting to bring this in the Federal system.

Nevertheless, I will also point out that since it did originate as a collateral attack, this Court in determining this case determines whether or not there will be a retroactive application of any rule that might be announced, unless the Court simply affirm what is the case is, which naturally we hope you do in all instances.

But if you should attempt to enunciate any other rule and an affirmation if your apply it to Reed you are automatically applying it retroactive.

Now Mr. Colven mentions the 537 habitual offenders who were in the penitentiary on the first day of January or the 31st of December.

Even the penitentiary system does have no accurate account is because in some of these small Counties to which Mr. Justice Black earlier referred, the bookkeeping is somewhat sketchy.

And if a man is convicted out of an offense where it is possible to receive life imprisonment, they may not include the fact that it was enhanced when they send the papers down to the penitentiary but may merely show the offense in life imprisonment and give the sheriff his commitment papers and the sheriff gets in his car and takes him down of the penitentiary.

These 537 are once that came from Counties that did show enhancement.

If, for instance, burglary is the punishable charge as it is in the Reed case, 12 years is the maximum punishment that can be given for the offense without enhancement under Article 63.

So it would be necessary there for the records to, in some way, reflect why they had a man charged with burglary that was in the penitentiary for life?

And also, in your major Counties where they have somewhat larger stuffs, more people to keep track, they would have their records more in order and it would reflect that.

There is another set of much larger that’s in nowhere reflected on the records and that is the repetition offenses which would be those charges under Article 62 because in that event, the punishment never exceeds the maximum possible punishment for the offense and it’s only in a few instances in the major countries where they show the repetition count on their paper work and then they just -- penitentiary opens the door and then comes a sheriff from one of the Counties and the man who’s got the maximum punishment.

It could have a reason from enhancement or it could have a reason simply because the jury chose to give him the maximum.

At any rate, it would be far in excess of 537 people in Texas alone who would be affected by any retroactive application of any prosper that might be enunciated.

Now, counsel spoke of the concepts of ordered liberty in connection with his client.

I would like to speak to the concepts of ordered liberty with regards to society.

Ordered society frond upon repetition of crime.

We started with little children and we tried to teach them not to do again that which we forbid them to do the first time.

We first give them a spank on the wrist and if that doesn’t work, we give them a spank on the rear arm.

And if that doesn’t work the third time, we take a switch and work him over pretty good.

That has been the history of the instilling of discipline of any orderly society starting with the family and going on up to our national scene.

The effectiveness of enhancement extends itself to other statutes besides these three Penal Code statutes.

Article 186 of the Penal Code provides that any County or municipal officer guilty of drunkenness shall be fined not less than $5 to more than $50; in the second conviction, not less than 50 or more than 100; by third conviction to the same offense, he’d by fine not less than $100, no more than $300 and be subject to removal from office.

Article 527 relating to obscene photographs and literature or exhibiting any obscene book refers to offense of $2,000 fine or a year in jail or a both; second offense, penitentiary for five years or a fine of $10,000 or both.

Possession of burglary tools with intent to commit burglary for a person convicted of a felony under the laws of the US and the State of Texas, the fine of not less than $500 or more than $5,000 or confinement in the penitentiary not to exceed two years.

In Article 1555b concerning the presentation of a credit card with intent to defraud on the first offense is misdemeanor, punishment to the County jail not exceeding two years or a fine (Coughing) not exceeding $1,000; on the second conviction, not less than 30 days or more than two years and a fine not exceeding $2,000; third and subsequent convictions not less than two and not more than ten years in the penitentiary.

I submit that the principle, if applicable to the case, is analogous of the applicability to these other enhancement statutes.

Now --

Justice Potter Stewart: I had understood, Mr. Fender that the counsel on the other side were making no constitutional tag at all upon the laws which increase the punishment for multiple offenders.

But as their attack was limited simply and exclusively to the procedure bringing these previous convictions before a jury which was in custody of determining the guilt on the present charge.

And what you said before I think is something which they wouldn’t disagree it.

But these cases involve the procedure bringing this conviction before the jury entrusted with the task of determining the guilt of the person charged.

Mr. Howard M. Fender: It’s true, Your Honor, but I don’t see how this Court can strike down the procedure about which they complain and leave us with a procedure where, as a jurisdictional matter, it will be necessary to do just what you would say as prejudicial in this case.

In other words, a driving while intoxicated statute says the first offense should be a misdemeanor, it says the second offense shall be a felony.

Well, we can’t go into the District Court on a misdemeanor as we first go in as a felony and later if we fail on the repetition count, they could find him guilty of a misdemeanor.

But in order to stay in the District Court, we have to prove as a jurisdictional matter that that man has been there before convicted of the misdemeanor offense of driving while intoxicated.

Now if you (Blowing nose) constitutional matter to say that what we have done in our recidivist case is wrong, I don’t see how you can have to strike that, I have right to prove that prior to DWI in order to stay in court with the felony.

Justice Abe Fortas: You don’t want to make that as a concession of record, do you?

Mr. Howard M. Fender: Now I make any concessions of record, Your Honor.

The State’s in bad now shape now without conceding anything.

Now --

Justice Abe Fortas: The point is that -- that it went to the ju --it takes as it so has made a revision in the procedure and is adopted two-staged procedure and the recidivist case is general there.

And in the driving while intoxicated example that you furthered, I think I understand there’s some offer of this about 4th jurisdiction and so on but you’re not saying that it’s not possible to preserve the principle even though it may need redrafting of the statute that this Court should decide that you cannot introduce prior conviction as evidence and lecture with the merits of the second arrest.

Mr. Howard M. Fender: I’m sure that our legislature will have to adjust anything that is set forth as law, Mr. Justice Fortas.

But as it stands right now and until our legislature goes back in session, we are faced with jurisdictional proof or prior offense in several field and there is no procedure to have a pretrial hearing to determine whether or not this is one and the same and I don’t have the jury passed on the facts.

And under our system, any fact issue is submittable to a jury.

We do not have any system at this time in Texas to permit the Court to pass upon the jurisdictional facts or the Court to pass after the jury determination of guilt or innocence on the recidivist fact unless the defendant waives his right and appears voluntarily before the court for that purpose.

Justice Abe Fortas: I think I understand you but your statute replies to cases drawn after January 1, 1966; thus provide for two-staged procedure, does it not?

Mr. Howard M. Fender: It provides for that and everything except capital cases.

Justice Abe Fortas: And it thereby avoids the problem that has been -- we’ve been talking about, these other cases that is to save the bringing/placing before the jury evidence as to prior convictions at that time when the jury has been sitting on the question of guilt or not.

Mr. Howard M. Fender: It only does that, Mr. Justice Fortas, insofar as recidivism is concerned.

I don’t have in any other way change the exceptions to the general rule under which we can present evidence of prior convictions.

We still have the right -- if the defendant takes the stand, we still have the right to impeach him by the proof of prior convictions if for any other reasons show method, intent, design we can prove prior convictions.

All of these reasons are still justice available under the New Code of Criminal Procedure as they were under the old.

The only change that has been made is the two-staged proceeding in recidivism, and as I have said earlier, is not reason for the change; it just goes along with the change.

Many people criticize the system under which a jury would hear the evidence on which conviction would be based and would out of that evidence determine punishment.

It produced some occasional and equitable results.

Many thought that the new system would be more orderly and that you would determine guilt or innocence and then you would have a hearing and all for evidence pro and con and determine the punishment.

I might answer it, it was frankly compromise between those who wanted the jury to continue doing it all and the people on the other side who wanted the Court to be given the full, overt and of assessing punishment once the jury had determine guilt or innocence such as is done in Federal assessment.

We end up of the compromise unless the defendant chose the one that he thinks would get him at least time.

But be that as it may, that’s why we have the two-staged proceeding now.

Counsel spoke of swap outs and with regard to the dropping of the habitual counts in return for plea of guilty and I say it’s all in your view point.

He says he was pressured by the prosecutor and I say, you can, just as easily say that was merciful waiver on the part of the State’s attorney and an effort to get the man into the penitentiary and rehabilitate it and back out again.

And me as far as rehabilitation is concerned, --

Unknown Speaker: As far as the (Inaudible)

Mr. Howard M. Fender: Yes, sir.

Well, when I was -- during the time I was prosecuting, we average about 30 indictments a week in Terrell County, during that times the grand jury was in session which was all but two weeks out of the year, we had two then I have three Criminal Districts Court then I had three County Criminal Courts and we could not possibly have discharge our dockets without obtaining a fairly substantial volume of guilty plea.

We tried to avoid putting ourselves in the position of selling out.

We tried to have a realistic appraisals of the cases but we did on a number of occasions agree to accept guilty pleas where we would dismiss -- in habitual cases sometimes, we would cut back to one enhancement and agreed on a guilty plea for maximum such as 12 years in burglar cases and so forth.

I would say that it would be virtually impossible in a major population center in Texas under our present set up with the stuff and the equipment available.

It would be virtually impossible to move a docket without a substantial number of guilty pleas.

Unknown Speaker: (Inaudible)

Mr. Howard M. Fender: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Howard M. Fender: No, sir.

It’s quite common for the defendants to send from the jail to ask that someone come up and talk to me if they didn’t have an attorney.

If I did have an attorney, they would have an attorney come talk to us.

But most of you get to prisoner work that and the Court remark that it has been set for trial and you go in there and you may have a docket of eight cases for the morning and six of them may plea guilty and two of them get continuances and you’re through about 11 o'clock in the morning.

Until they get in there and so-to-speak-up glee club, they don’t really want to give up.

But once they get in into the courtroom, their ready to work something out of sensible.

Unknown Speaker: Incidentally, Mr. Fender, does the prior conviction count as such of time as not served than they use it?

Mr. Howard M. Fender: No, sir.

A probated or suspended sentence doesn’t count.

Furthermore, in order to enhance for life, you got to make sure that the first offense was committed, the man was convicted and served time and then he committed the second offense and was tried to convict on the third time on that and then committed the third offense.

Unknown Speaker: That’s the proof to first time followed by another offense that rehabilitation didn’t work --

Mr. Howard M. Fender: Yes, sir.

You can’t freshly charge a man with three hot checks written on the same day and try him and then use two of those charges later to enhance a case into habituality.

Well, it has to be a 3-staged proceeding in that order.

Counsels spoke with a white shirt of innocence in the cloak of prejudice and I must say it that this people that come in in court charge with the prior offenses may have a white shirt of innocence but it occurs to me that as far as society is concerned, it’s soiled, and badly soiled.

And we have a system which is fair in its application to everyone, is applied in the same manner to all who get before the Bar of Justice.

For in our State has seen, and I hope the Tenth Amendment still lets us see it, we will deal this way with our unrehabilitable criminals.

We will not sent our boys to farm soil the faith and die even as they die, we give in the other great reminisce from within.

We will get these undesirables out of circulation.

We will send them to the penitentiary and if they show themselves acceptable to society again, they may be part of our parole.

But until then, the State should have the right to remove and keep removed its undesirable citizens and that would certainly take the thing that after we have followed the procedure for over a hundred years that we would certainly find 537 of the most undesirable citizens in the entire State turn lose because one man says, “I was faced with a prejudiced jury”.

And yet, when the jury went into that box, the defendant’s attorney had qualified everyone on those jurors on whether or not they could disregard the prior convictions in determining guilt or innocence.

And those who said they could not were excused from the jury.

That man had ample opportunity to qualify the jury and had they not been able to get a fair and impartial jury, he could have moved for a change of venue.

He accepted these things without qualification and without objection.

And now, he comes to this Court way in the end, and says despite what District Court said, despite what happened prior to that time, I want you to reach back in the past and turn me lose and when you knew, you are going to pull the flag out of a wrong and arrest to those fellows who lose and they are all in there having understood, after they committed the first offense and what did the penitentiary.

They knew what “repetition” meant and later they knew what “habituality” meant.

Everyone on the penitentiary knows those things and when they gladly commit that next offense, they do it knowing that they can be put away for life which shows to me and to the world they are unfit for society.

Thank you very much.

Chief Mr. Chief Justic Warren: Mr. Colvin, I think you had a moment or two.

Rebuttal of Emmett Colvin

Mr. Emmett Colvin: Thank you, Mr. Chief Justice.

I do would like to make a couple of remarks.

As a matter of fact, if the Court please, I don’t think we disagree with too much about what he said and that this has been rehabilitation, we’re all for that and the civil statute, we’re all for that.

The thing that I’m disturbed about, as I said initially, is that we may have an unreliable judgment.

We may have an innocent man who in fact was not guilty of the current offense.

That is what disturbs me and that is what the disturbing factor in this case.

Now, he says they are all will going to turn lose.

Of course, that’s not true.

They can be retried just as the Gideon defendants were, we tried.

Now they have got an (Inaudible) burden here.

If they lose, they are not entitled under the Texas law any of their back town.

I do not visualize the favorite has anything more than a favorite dragon.

We’ve been very gracious.