BLOOM v. ILLINOIS

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Argument of Anthony Bradley Eben

Chief Justice Earl Warren: Number 52, S. Edward Bloom versus Illinois.

Mr. Eben have you concluded your argument, you have?

Had you not?

Mr. Anthony Bradley Eben: May I please the Court.

I had terminated my opening as of yesterday.

Chief Justice Earl Warren: Yes I understood that.

Mr. Anthony Bradley Eben: Thank you Your Honor.

Chief Justice Earl Warren: Mr. Hladis.

Argument of Edward J. Hladis

Mr. Edward J. Hladis: Mr. Chief Justice and may it please the Court.

During the course yesterday afternoon's argument by counsel for the petitioner, he made two observations with which we must take issue.

One relates to the factual aspect of this case and the second relates to the law on the issue as it has been announced by this Court.

We address ourselves first to the factual aspect.

The key or the simple facts in this case are not many.

The decedent died on the 6th of July 1964.

On the 14th of July 1964, this petitioner drafted and caused the execution of a will of this dead person dated June 21, 1964 and on the 11th of August 1964, he presented his will for admission to probate in a probate division in Cook County and in this petition stated that the decedent had died on the 6th of July.

Justice John M. Harlan: Is he beneficiary?

Mr. Edward J. Hladis: No sir, he was not.

The record will show and our statement of facts indicates that it had actually began with a practical nurse by the name of Pauline Owens would increase her legacy in this fraudulent will from $20,000 and a valid will to $40,000 in this will.

Now the important consideration for the purposes of this case is this, yesterday the counsel referred to the alleged filing of a spurious will and two other alleged contemptuous acts.

We submit gentlemen that on the basis of the record at this time and on the basis of the record as it was made in the Courts of Review in the State of Illinois it is improper for a counsel to refer to alleged contemptuous conduct because this petitioner has not only failed to challenge the sufficiency of the finding of guilt but he affirmatively conceded in the Supreme Court of Illinois that the findings of guilt were amply supported by the evidence.

Now we understand that the briefs filed by all parties are a part of the certiorari filed in this Court.

That concession is found at page 15 of the petitioner's brief and the concession is also noted in the opinion of the Supreme Court of Illinois.

Now what we are getting at is this, the case is here before this Court on the issue as to whether or not he was entitled to a jury trial.

But the very issue, the very point which a jury could give him to wit the finding of guilt or non-guilt, the finding of guilt or innocence is not challenged and has never been challenged.

The second observation --

Chief Justice Earl Warren: There was a challenge at the trial, wasn't it?

Mr. Edward J. Hladis: Beg pardon sir?

Chief Justice Earl Warren: There was a challenge at the trial, wasn't it?

Mr. Edward J. Hladis: In the sense that he cross-examined the prosecution witnesses.

Justice Byron R. White: Pleaded not --

Mr. Edward J. Hladis: He pleaded not guilty, yes.

Chief Justice Earl Warren: Well, isn't that a challenge?

Mr. Edward J. Hladis: That is a challenge, yes.

Chief Justice Earl Warren: Well then he did at some time challenge it.

Mr. Edward J. Hladis: He did it at the trial but the point is that after the finding of guilty was in, he did not challenge, not only did not challenge but he did concede that the findings were supported by the evidence.

Justice William J. Brennan: Yes, but aren't there issues here of alleged trial errors in respect to the psychiatric testimonies --

Mr. Edward J. Hladis: He makes no --

Justice William J. Brennan: -- and he (Voice Overlap) and there's something, I've forgotten --

Mr. Edward J. Hladis: You're talking about the amicus curiae report.

Justice William J. Brennan: Yes, yes is that -- no, I'm not -- in addition to that am I wrong?

Mr. Edward J. Hladis: And then the third observation he makes as the remark of the assistant state's attorney who have made reference to the fact that the petitioner did not take the stand.

Now as to the first, the amicus curiae report that is a practice that has been approved by the Supreme Court of Illinois.

Justice Abe Fortas: No I think the reference maybe to your adversary's statement yesterday that testimony of the psychiatrist was abused to show that the petitioner could not possibly have committed this crime assuming to that effect.

Mr. Edward J. Hladis: Yes.

Justice Abe Fortas: So that -- that would indicate that there was some sort of a contest at the trial level.

Mr. Edward J. Hladis: Oh, we're not quarrelling the fact that there was a contest at the trial level.

Justice Abe Fortas: Well what is your point then, (Voice Overlap) --

Mr. Edward J. Hladis: The point is this that once the finding --

Justice Abe Fortas: Not prejudicial error, what is it?

What is your point?

Mr. Edward J. Hladis: The point is that what he wants today, it would seem to me that if I were in the petitioner's position and I were asking this Court to formulate a constitutional doctrine whereby I'd be guaranteed a jury trial in a criminal contempt case pursuant to the Sixth Amendment as it would be imposed upon our course by the Fourteenth Amendment that I would at least come up here where the bona fide contest on the findings of guilt.

But he didn't even do that --

Justice Abe Fortas: I don't (Voice Overlap) --

Mr. Edward J. Hladis: -- in the Courts of Review in the State of Illinois sir.

Justice Abe Fortas: I confess that I still don't follow you.

Are you saying that there was a contest on the issue of guilt but not a substantial one, is that your point?

Mr. Edward J. Hladis: What I am saying is that after the finding was made, he not only did not challenge the sufficiency but he actually conceded that the evidence was sufficient to support the findings.

Justice William J. Brennan: Well, I know but I thought you said yesterday and as I read his brief, it's an issue he thought of malevolent intent, is that the language which he says is important and that psychiatric test to only bears on it and that he could not have been guilty of the offense because the psychiatric testimony might have persuaded the jury, indicated that he did not have the necessary malevolent intent which -- as I understood your argument.

Mr. Edward J. Hladis: That is correct.

That was advanced sir.

Justice Byron R. White: But even if he raise no question -- any square attack on the findings, your argument would apply to any other trial error.

And you want to raise a trial error you better accompany it with a challenge to the facts.

Mr. Edward J. Hladis: I would think so.

Justice Byron R. White: Well, that --

Mr. Edward J. Hladis: Because I think --

Justice Byron R. White: That just doesn't --

Mr. Edward J. Hladis: Gentlemen, I think he'd -- if he has a case, I don't think it's a Sixth Amendment case.

I think what he's actually complaining about is the extent of the punishment and that would be our solution to the problem, it's a Fourteenth Amendment problem.

The issue on the case as we have it here is not whether he should have been given a jury trial.

Justice Byron R. White: Well let's just assume that if -- let's just assume that in the federal system for example, a man demands a jury trial in a criminal case and is denied.

And the judge finds him guilty and he comes up solely on the refusal of the jury trial.

Would you say to him that -- would you say to him, “No, your challenge can't be sustained because you don't challenge the finding of guilt”?

Mr. Edward J. Hladis: No, I would not Mr. Justice White for a different reason though, because it's clearly established under the Sixth Amendment and under Article III that any criminal case, he is entitled to a jury trial.

Justice Byron R. White: That's exactly what he's claim is here that under the Sixth Amendment --

Mr. Edward J. Hladis: No.

Well, what he's doing here is asking this Court --

Justice Byron R. White: Surely --

Mr. Edward J. Hladis: -- to formulate a new doctrine --

Justice Byron R. White: That's right.

Mr. Edward J. Hladis: -- one which has never been formulated before which even in Cheff has contrary to his representation has no constitutional basis at all and is asking this Court to say now under the Sixth Amendment criminal contempt cases shall have jury trials and will impose it on the state by virtue --

Justice John M. Harlan: What you're really saying is a kind of an (Inaudible) argument.

The case is (Inaudible) as unappealing to this from your standing problem.

This Court should not ceasefire to (Inaudible) basic constitution doctrine, isn't that what you're saying?

Mr. Edward J. Hladis: Well, that is not the only reason that we would say it Your Honor because we --

Justice John M. Harlan: This facet of your argument comes after that.

Mr. Edward J. Hladis: That is correct, that is correct.

Justice Thurgood Marshall: What do you have to say about the fact that this is also a felony under the laws of Illinois, forgery?

Mr. Edward J. Hladis: Yes it is.

I don't see any inconsistency between the two at all.

We have here --

Justice Thurgood Marshall: Wouldn't it be inconsistent if you had a choice of trying the man for the same act, one with the jury and one without?

Mr. Edward J. Hladis: No, by the very nature of the two proceedings.

And the one you have contempt which is --

Justice Thurgood Marshall: But do you take the position they could also be charged with forgery?

Mr. Edward J. Hladis: It is possible, but I say that as far as Cook County is concerned that will not happen and as a matter of fact, the statute has run in this particular case.

But we have had rare instances where contempts have been committed usually in a probate level which are also felonies.

And in all cases where the probate judge has gone to the way of contempt, the state has not prosecuted criminally and we did not do it here and we don't -- certainly don't intend to do it.

Justice Thurgood Marshall: Who's -- makes the choice?

Mr. Edward J. Hladis: In this case the errors themselves made the choice.

They are the ones that began.

They asked for the appointment of the amicus curiae and they filed a first petition or rule to show a cause and then the judge determined that there was probable cause after he had received the amicus curiae report and the contempt proceeding began.

Justice Thurgood Marshall: Well isn't the contempt proceeding easier than going to a grand jury and trying the case before a jury?

Mr. Edward J. Hladis: I would think it's easier and I would think it is much more effective and that is undoubtedly what the probate judge wanted to achieve in this particular case.

Because you're talking about a court in a large metropolitan area and as we all know much of the practice in a probate division is done what I might call on an ex parte basis because many times the interested party do not have counsel, they rely upon counsel for the personal representative.

And the Court must rely upon the integrity, upon the honesty of the attorneys presenting matters to them.

And whereas in this case, you have a situation where a fraudulent will was presented for admission and sought to be processed while the Court has a real problem as far as discipline is concerned.

Justice John M. Harlan: Do you have a double jeopardy provision in your state constitution?

Mr. Edward J. Hladis: Yes we do sir.

Justice John M. Harlan: Supposing (Inaudible) statute of limitation describing the process, this fellow, could he plead and -- his contempt conviction in regard of that (Inaudible).

Mr. Edward J. Hladis: I don't think he could Your Honor.

Chief Justice Earl Warren: Why?

Mr. Edward J. Hladis: I think strictly speaking, the doctrine of double jeopardy doesn't apply.

Chief Justice Earl Warren: I beg your pardon.

Mr. Edward J. Hladis: I think they're strictly speaking the doctrine of double jeopardy would not apply --

Chief Justice Earl Warren: Why?

Mr. Edward J. Hladis: -- to a criminal contempt.

I just don't think it would apply, its not a crime.

Chief Justice Earl Warren: Suppose there is an uproar in the Court then, someone was murdered and the judge determined instead of having him indicted -- a person indicted for murder, he charge him with criminal contempt, could he try him for the murder and contempt?

Mr. Edward J. Hladis: I imagine possibly he might -- well, that's not a probability actually Your Honor, I --

Chief Justice Earl Warren: Well, why is it?

This -- what's the difference between forgery and murder if they're both statutory crimes and they are felonies?

Mr. Edward J. Hladis: Because of the gravity between the two.

I mean one is -- that the forgery in this particular instance have to do with the very operation of the Court whereas certainly the murder would cause a disturbance in the Court but I just cannot visualize that the -- a probate Judge would move by way of contempt rather than have it in turn, the matter over the state for prosecution under the murder statute.

Chief Justice Earl Warren: Well, that's why we're here today.

Some people think that forgery is a pretty important case and particularly when a man goes to jail for -- goes to penitentiary for years and they think they can't understand why it should be done in this way rather than give a man a jury after an indictment.

Mr. Edward J. Hladis: Well, Mr. Chief Justice, I gave what we submit as a good practical sound reason in this particular context and that --

Chief Justice Earl Warren: But we're not dealing with practical reasons, particularly we're dealing with the law in this case.

Mr. Edward J. Hladis: I understand but by the same token, that probate judge down there has to serve a notice upon the bar that he cannot tolerate practices such as we had here.

Chief Justice Earl Warren: Well do you think it wouldn't be serving a notice on them if he called it detention of the grand jury and the grand jury indict him and he was convicted of forgery and sent to the penitentiary on what you say is absolutely conclusive evidence, wouldn't he trust a jury?

Mr. Edward J. Hladis: I don't think that as far as he was concerned it would be as effective.

Chief Justice Earl Warren: Why?

Mr. Edward J. Hladis: I mean, if we -- would probably feel that he would deliver a better message to the bar then refer it all to the grand jury.

Chief Justice Earl Warren: And then he uses his personal feelings in the matter to determine whether he wants to punish him on his own trial rather than to trust it to a jury.

Mr. Edward J. Hladis: Well, whether we want to call it feelings or what or convictions but those are his views.

And of course, here, as I pointed out before is the fact that the proceedings were actually initiated by the error, the lawful errors themselves.

This is not something that was done completely on his own volition.

The --

Justice Hugo L. Black: Which do you think would be worse, to be disbarred or fined $2000?

Mr. Edward J. Hladis: Which would I --

Justice Hugo L. Black: On the life of the individuals.

Mr. Edward J. Hladis: The fine?

Which would be worse?

Disbarment.

Justice Hugo L. Black: Disbarment, why?

Mr. Edward J. Hladis: Disbarment.

Well, I think all of us as lawyers are pretty proud of our license and we do not want to be placed in a position of ever losing it.

Justice Hugo L. Black: Not merely because of a foul of it, is it?

Mr. Edward J. Hladis: I beg your pardon?

Justice Hugo L. Black: It's not merely he's out of it, is he?

Mr. Edward J. Hladis: I think that is one of the elements, yes.

Justice Hugo L. Black: But isn't the main thing is his life's vocation is -- what (Inaudible) says, "You've taken away that which is the most valuable thing perhaps to many lawyers have in the world".

Mr. Edward J. Hladis: I agree with you.

Justice Hugo L. Black: And yet you say that he should not be considered as a criminal offense.

Mr. Edward J. Hladis: Well I don't, I don't know whether this contempt would conform the fair basis --

Justice Hugo L. Black: Well, why do they call it criminal?

Mr. Edward J. Hladis: As against civil?

Justice Hugo L. Black: Why is it called criminal contempt?

Mr. Edward J. Hladis: I think the reason that it's called criminal contempt is the fact that the Court as an agency of the public is actually in the -- is the agent of the public and that the public's dignity is offended by specific conduct.

Justice Hugo L. Black: And it's taking away from him if he is disbarred, is it not?

Far more that it would be if they took away his home or a large part of his property.

Mr. Edward J. Hladis: Well, of course Mr. Justice Black we are assuming that --

Justice Hugo L. Black: Well, isn't it a not more valuable to him than his home would be?

Mr. Edward J. Hladis: Oh, yes, I would --

Justice Hugo L. Black: Or a large part of his property.

Mr. Edward J. Hladis: As far as I -- personally I'm concerned, it would be, yes.

Justice Thurgood Marshall: In the Illinois --

Justice Hugo L. Black: But how can you not face the fact as it is, that it amount everywhere in the world that a human being can think of pragmatically that one of the worse punishments that can be inflicted on a human being.

Mr. Edward J. Hladis: Are you speaking of disbarment now sir?

Justice Hugo L. Black: Disbarment.

Mr. Edward J. Hladis: The disbarment.

I can't quarrel with that.

Justice Thurgood Marshall: What's the rule in Illinois, is conviction over felony automatic disbarment or not?

Mr. Edward J. Hladis: It's not.

Justice Thurgood Marshall: It's not?

Mr. Edward J. Hladis: It is not, no.

The disbarment proceedings are conducted through grievance committees of the Bar Association --

Justice Thurgood Marshall: Well, I assume (Voice Overlap) --

Mr. Edward J. Hladis: -- to the commissioners --

Justice Thurgood Marshall: I assume that but if he's convicted of a felony as the usual procedure that he is disbarred.

Mr. Edward J. Hladis: No, it's not automatic disbarment.

He has his hearing --

Justice Thurgood Marshall: Usual was my word.

Mr. Edward J. Hladis: No it's not even that sir.

And he asks this hearing before the Supreme Court of Illinois.

And as against disbarment, there may be censure, there may be suspension and there of course may be dismissal of charges.

Justice John M. Harlan: There, they have automatic disbarment (Inaudible) --

Mr. Edward J. Hladis: I'm not aware of any.

Justice John M. Harlan: (Inaudible)

Mr. Edward J. Hladis: No, there are no -- I'm not aware of any --

Justice John M. Harlan: There is a rule as far as disbarment is concerned as to the defendant's proceeding.

Mr. Edward J. Hladis: That is correct.

Excuse --

Chief Justice Earl Warren: Was this man disbarred?

Mr. Edward J. Hladis: No, I understand he is actively practicing at the present time.

Chief Justice Earl Warren: He just got two years in jail?

Mr. Edward J. Hladis: That's right.

And he's practicing.

Chief Justice Earl Warren: I wonder why if the -- if that the prime concern of the Court was that the dignity of the profession and the dignity of the Court should be upheld and he went so far as to deprive a man of a jury trial and an indictment -- a trial after an indictment, he would do this and not pursue it further and not having a disbarment proceeding.

Why would that be?

Mr. Edward J. Hladis: The proceedings in this case are -- there's nothing extraordinary about it.

The committee is awaiting the outcome of the case and as a matter of fact I had a call from the Secretary about 10 days ago on the matter and that is usual in all cases.

They will wait until the case is finally disposed before it is taken up by the committee acting on behalf of the Supreme Court of Illinois.

Chief Justice Earl Warren: Well, we just had one here the other day where the Bar of Illinois moved against a person who never have had any charge against him.

I'm speaking of Steel Workers Union case here.

And we had to reverse that case but they didn't wait there for this case to be decided and the person hadn't committed any crime.

But he just said that he was violating the ethics of the profession.

Mr. Edward J. Hladis: Well, the reason that they didn't wait there for this case to be decided is the fact that they are moving against that union and particularly the group that was servicing them with professional legal services is the very fact which gave rise of the case as I recall it.

You're talking about the --

Chief Justice Earl Warren: Wasn't the illegal practice of the law here the very thing that caused his trial for contempt?

Mr. Edward J. Hladis: I would say the -- I mean you want to call that illegal practice, I would say the presentation of a fraudulent will and imposing up on the Court is the thing which brought about his contempt --

Chief Justice Earl Warren: Yes, yes.

Well, that's -- let's phrase it your way but isn't that just as important as certainly is the one we have here?

Mr. Edward J. Hladis: I don't know what you're getting at Mr. Chief Justice, I mean the --

Chief Justice Earl Warren: Well, I mean this, you started your whole argument by saying that the judge was so concerned with the honorable practice of law in his court and the bar was so interested in the ethics of the profession that the Court appointed an amicus to go out and investigate this whole thing and they found that he had perpetrated this fraud upon the Court.

And now if that is true why wouldn't the bar move there when he was convicted in the court below and when he was convicted by your Supreme Court just as they did in the Steel Workers case where there wasn't any charge of fraud at all, it was just illegal practice of law.

Mr. Edward J. Hladis: Well, I think that we have two different situations in the Steel --

Chief Justice Earl Warren: Of course they are different but --

Mr. Edward J. Hladis: The Steel Workers situation gave rise to the lawsuit which eventually wound up in this Court.

Whereas this case, what the Bar Association is doing and the Grievance Committee specifically is waiting for the final determination.

Chief Justice Earl Warren: Alright, that's your answer.

Mr. Edward J. Hladis: Yesterday afternoon when counsel for the petitioner was analyzing the fast law of the question specifically the Green and the Barnett cases and Cheff, he made a statement regarding the decision of the majority of this Court in Cheff versus Schnackenberg with which we do not agree.

This Court will recall that the majority in both Green and the Barnett is held at criminal contempts are not crimes, and as such, they do not fall within the purview of the -- either the Sixth Amendment or the Third Article of the Federal Constitution.

Then counsel moves on to the Cheff decision and suggest to this Court that an important modification was made therein by the majority and that the requirement of a jury trial in federal cases wherein sentences exceed six months has been raised to a constitutional level.

We have read that that is an argument that is made by the petitioner in his brief and was repeated yesterday.

We have disagreed with that argument and we still adhere to our position that at no time as the majority of this Court ever said either that criminal contempt was a crime and that as such it fell within the purview of the Sixth Amendment and the Third Article of the Federal Constitution.

Cheff --

Justice Hugo L. Black: Do you have a statute in Illinois against contempt?

Mr. Edward J. Hladis: No we do not sir.

Justice Hugo L. Black: No statute at all?

Mr. Edward J. Hladis: No.

And as a matter of fact, contempts are expressly excluded from the criminal code.

Justice Thurgood Marshall: Is there any limit on the amount of time?

Mr. Edward J. Hladis: No there is not sir.

Justice Thurgood Marshall: Do you take the position you'd give a man 20 years without it too?

Mr. Edward J. Hladis: No I don't, I don't.

Justice Thurgood Marshall: But do you take five?

Mr. Edward J. Hladis: That would depend upon the case.

Justice Thurgood Marshall: Five would be alright?

Mr. Edward J. Hladis: That's right.

But on our theory, I would have much less trouble than on theirs.

I like to take your example one step further.

Let us take 20 years and let us assume that the man was given a jury trial.

Could I in all sincerity and honesty stand here and defend that sentence of 20 years?

I think not.

Justice Thurgood Marshall: Well, it's not this case.

But I'll assume what's the time of the -- the maximum penalty for forgery.

Mr. Edward J. Hladis: One to 14.

Justice Thurgood Marshall: Well suppose this Court gave him 15, would that be alright?

Mr. Edward J. Hladis: Where a no -- no jury trial?

Justice Thurgood Marshall: Yes.

Mr. Edward J. Hladis: I would have trouble with the case but not on his theory but on the Fourteenth Amendment approach --

Justice Thurgood Marshall: Couldn't I have just so much trouble --

Mr. Edward J. Hladis: -- to defend --

Justice Thurgood Marshall: Couldn't I have just much trouble with the two years?

Mr. Edward J. Hladis: No.

Justice Thurgood Marshall: Why not?

Mr. Edward J. Hladis: Because then under the doctrine of basic fair play which after all is the core of the Fourteenth Amendment, this Court could as we suggested in Green.

Examine whether or not the trial judge here had abused his discretion.

It is our view that after this Court examines the evidence in the context it will find that the discretion was not abused in sentencing the gentleman with two years.

Justice Abe Fortas: What is the situation in Illinois with respect to entitlement to jury trial?

Is there a dividing line, a misdemeanor -- what do you call it under your Illinois system?

Mr. Edward J. Hladis: We have a -- we do not have a petty offense.

We have a misdemeanor which is determined by the amount of punishment that is anything a year under (Voice Overlap) --

Justice Abe Fortas: A -- one year or under?

Mr. Edward J. Hladis: That's right.

Justice Abe Fortas: And there, you're not entitled to a jury.

Mr. Edward J. Hladis: No, but they are -- accord a jury trials, when they request them, they accord a jury trial.

Justice Abe Fortas: On request, you can --

Mr. Edward J. Hladis: That's right.

Justice Abe Fortas: -- get one.

Mr. Edward J. Hladis: That's right.

Justice Abe Fortas: Is that in any misdemeanor?

Mr. Edward J. Hladis: As far as I know, yes.

Justice Abe Fortas: I see.

Mr. Edward J. Hladis: The jury courts in the police level.

Justice Abe Fortas: So that what you have here is that as a system -- general system of law of judicial administration and the way in Illinois of which anybody who was tried for a misdemeanor meaning and offense in which the maximum punishment is a year is not automatically entitled a jury trial to make -- get it on request.

Mr. Edward J. Hladis: On request.

Justice Abe Fortas: But if he is tried for felony meaning where the punishment is at the excess of a year or maybe an excess of a year is entitled a jury trial.

Mr. Edward J. Hladis: That is correct.

He can either request it or waive it.

Chief Justice Earl Warren: Do I understand you to say that in Illinois it's discretionary with the Court as to whether a man --

Mr. Edward J. Hladis: No it is not.

Chief Justice Earl Warren: -- be given a jury in a misdemeanor case or does he have the right to demand a jury trial if he wants one?

Mr. Edward J. Hladis: As I understand it sir, he has the right to demand a jury trial.

Chief Justice Earl Warren: And he is entitled to have it?

Mr. Edward J. Hladis: That's right.

Chief Justice Earl Warren: In a misdemeanor case?

Mr. Edward J. Hladis: And he receives it.

Chief Justice Earl Warren: Well, that's a little different, isn't it --

Mr. Edward J. Hladis: Yes.

Chief Justice Earl Warren: -- from what you just said?

Mr. Edward J. Hladis: I think I said the same thing to Mr. Justice Fortas.

I'm sorry.

Chief Justice Earl Warren: Oh, no.

You said he may have one, but it's different, he's entitled to one if he wants it.

Mr. Edward J. Hladis: Well, when I said he may, what I meant was that he can request it and then receive it.

Chief Justice Earl Warren: Do you permit defendants to be tried by -- without a jury in felony cases?

Mr. Edward J. Hladis: Oh, yes but of course the waiver --

Chief Justice Earl Warren: Then what's the difference?

He demands it from both of them, he gets it.

He demands a felony case, he gets it.

If he demands a misdemeanor, he gets it.

Mr. Edward J. Hladis: That's correct.

Chief Justice Earl Warren: Well, what's the difference?

Mr. Edward J. Hladis: None.

Chief Justice Earl Warren: Well, I just thought the import of what you said to Justice Fortas was a little different as between --

Mr. Edward J. Hladis: No, I didn't intend to setup any distinction.

Chief Justice Earl Warren: Very well.

I'm mistaken then.

Justice Hugo L. Black: The fact here is that in Illinois, any time you do to a man has a consequence of some of this conduct.

What was done in this case to a man where all admit that the punishment of disbarment was the most serious things that can appear, you take that one clash of cases out and deny him a jury trial?

That's the fact, isn't it?

Mr. Edward J. Hladis: I didn't -- I'm sorry sir, I didn't hear the first part of your observation.

Justice Hugo L. Black: He was not disbarred here of course --

Mr. Edward J. Hladis: No he's not.

Justice Hugo L. Black: -- but he could be.

Mr. Edward J. Hladis: He could be, yes.

That would be dependent upon the judgment of the Supreme Court of Illinois in their disciplinary proceedings.

Justice Hugo L. Black: But if you call it a misdemeanor or a felony -- you name a misdemeanor or a felony, he's entitled to a trial by jury.

Mr. Edward J. Hladis: If he requested it, he would get it.

Yes.

Justice Hugo L. Black: That's a kind of anachronism that's gone out of history, isn't it?

Mr. Edward J. Hladis: Well, whether we call it anachronism --

Justice Hugo L. Black: Yes, but that's may be the wrong thing.

Mr. Edward J. Hladis: Yes, but the fact of the matter is that contempt has always been regarded.

Justice Hugo L. Black: Well, by some.

Has always been a scrambling position of that by the judiciary which has been contested most frequently by the legislative mind.

Mr. Edward J. Hladis: There -- I will concede that there is difficulty on the part of someone to accept the prevailing view that it is sui generis and does enjoy this unique position.

There are as you well know Mr. Justice Black, those who feel that it should be equated to the status of a crime and that all the privileges should --

Justice Hugo L. Black: It feel that he should be treated as what it is with that regard to its name?

Chief Justice Earl Warren: Mr. Hladis, does your Illinois constitution have a jury trial probation?

Mr. Edward J. Hladis: Yes.

Chief Justice Earl Warren: What does it say?

Mr. Edward J. Hladis: Substantially, what the federal constitution says that the -- in crimes that the people are entitled to a jury trial.

Chief Justice Earl Warren: Does it make any distinction between misdemeanors and felonies?

Mr. Edward J. Hladis: As far as I recall, no sir.

Chief Justice Earl Warren: And does your judge made law make any distinction between it.

Mr. Edward J. Hladis: No.

I see my time is up, gentlemen.

Thank you very much.

Rebuttal of Anthony Bradley Eben

Mr. Anthony Bradley Eben: Mr. Chief Justice, may it please the Court.

In response to Chief Justice's last question we have set forth the exact constitutional provisions of the Illinois statute on page 2 of our original brief in this Court.

There are two Sections really which covered in Illinois.

Article II, Section 5 provides that the right of trial by jury as here before enjoined shall remain in (Inaudible).

Article II, Section 9 says, “In all criminal prosecutions, the accused shall have the right to a speedy public trial by an impartial jury.

Nevertheless in Illinois over the years, there has grown up a body of law which I frankly concedes to the Court which has consistently withheld from criminal contender's a right to trial by a jury which I analyzed incidentally in my brief before the Supreme Court of the State to show that it grew as somewhat in topsy like fashion and was based upon a forced premise which originated in a pure civil contempt case where of course it's quite proper to deny trials by jury.

And based upon that fragile basis, they grew with Illinois the body of law to which I have just referred and to which the Illinois Supreme Court still adheres in this case dismissing the holding of this Court in Cheff v. Schnackenberg with -- I use to word advisedly to stay in almost making only passing reference to it.

Justice John M. Harlan: Well, Cheff and Schnackenberg is a federal case and so far at least, so far the Illinois practice has been identical to the practice through and through both the federal cases and state cases by this Court and (Inaudilbe).

Mr. Anthony Bradley Eben: Yes, I would say --

Justice John M. Harlan: Nothing unusual about what Illinois has done.

Mr. Anthony Bradley Eben: You're quite right Mr. Justice Harlan.

Up until now, they have adhere to Green and Barnett and in fact rely upon it again in their decision in this case, the case at bar.

And we're critical of that of course when we say that they have failed to recognize the important modifications in Green and Barnett as now written by this Court in Cheff.

Incidentally, I revisited Green after the colloquy I had with the Court yesterday and I am able to say that the Court that there was no criminal statute involved in Green in effect at the time of the alleged contemptuous acts.

The defendant there had been convicted of a crime and jumped and he refused to obey an order.

As he jumped down, he refused to obey an order to surrender and he was tried on contempt for disobedience of that order.

And as Mr. Justice Harlan wrote in the majority opinion of that case, he observed that the bail jumping statute had not yet been enacted.

It had been enacted in 1990 -- in 1954 whereas the contemptuous acts -- the acts complained off occurred in 1951 and passed it on to the Court because I received the impression probably incorrectly yesterday that there was a contention that there was a criminal statute at to time.One other thing, counsel refers to the fact that in the Supreme Court of the State of Illinois we conceded guilt.

And Mr. Justice White's observation on it of course I thought was quite correct.

That is that we contested right from the very beginning of course by reason of our plea of not guilty.

But when we got to the Supreme Court of the State upon the record, I did not plan to engage in a long argument based upon the sufficiency of the evidence since the trial judge waived the evidence.

He was the trier of the fact, he waived the evidence, he judged the credibility of the witnesses and so on.

Oh, I did not, however concede in the Supreme Court of the State that there was just no other side to it.

I said incidentally in brief that the page referred to by Mr. Hladis, in a footnote that the defendant concedes that the people's evidence when viewed on appeal as it must be viewed on appeal in the light most favorable to the people that the evidence was sufficient to support the Court's judgment because it's quite true.

And I also said in our brief here on page 2, I said the petitioner did not challenge the sufficiency of the evidence of the Illinois Supreme Court in view of the rule prevailing in that state that a verdict will not be disturbed on appeal when there is any evidence which when taken with its intendments most favorable to an appellee tends to prove the essential allegations of the complaint.

I would, I submit most respectfully to the Court that a complete waste of time to me on this record to go up and say that our psychiatrist should have been believed, the psychiatric evidence established.

As Mr. Justice Brennan says that the malevolent intent necessary to a criminal contempt was not shown but we had an attorney who represented an adversary party in the trial court proceedings testified in the trial.

A cross-examination that when he thought with the petitioner prior to the time that he would open or present the spurious will, he was convinced and this is in the record that the petitioner did not realize the involvements he was getting into.

It did not have the mind, my own language to understand his predicament at that time.

All of which within, but this was disregarded of course by the trial court.

And I point out although it -- only been touched on briefly by Mr. Hladis that one of the complications in this case is this amicus curiae secret report which we have referred to as the fink report since the amicus curiae was a Mr. Fink.

I like to think that the word is descriptive incidentally by the card here but in any event, the -- that report found its way into the trial court's chambers.

It was viewed there in camera and he has refused to make it part of the record here in this case although we asked for an order on it.

So it still remains secret.

We don't know what's in it.

And it compounds the fact that we would deny the jury.

Had we had a jury would be bad enough for the trial court to have such a report anyway if you can visualize a Federal District Court judge with FBI reports at his chambers before he proceeds to a trial -- a case if it's so much similar to this.

But where the trier of the fact is that person and I think additional emphasis should be given to (Inaudible) and that is one of the errors we complained about.

Chief Justice Earl Warren: Would you mind telling us how this amicus report came into being please.

Mr. Anthony Bradley Eben: Yes sir.

The proceeding originally began in the probate court of Cook County upon the presentation of a petition to the Court by -- as under a prior will who would have been out under the spurious will.

In it, they alleged and it's in the record incidentally with -- and you can refer to it at the proper time.

In it, they alleged that they sought fraud was being perpetrated upon the Court by the presentation of this other will and they specifically asked the trial court for the appointment of an amicus curiae for the purpose of investigating and prosecuting if necessary the fraud involved.

The trial court read at that motion and appointed Mr. Fink.

Thereafter, I think within approximately 60 or 90 days, the trial court entered an order upon the amicus curiae requiring him to file his report with the trial court and such a report was filed and was held in camera by the Court.

Now the record incidentally on that shows when we made a demand for it prior to trial and then again at trial, now the Court, page 81 of the record said, “It is not a part of the record, it belongs to the Court itself and the Court will turn it over to you and you will be at liberty to read it as concerns any witnesses testimony.

The Court wants to get at the truth or falsity at the proceeding so I will turn it over to you and you may use it for cross-examination”.

And it was, portions of it were turned over to me somewhat in Jenks style, that is where a witness took the stand who was referred to in the fink report then I was entitled to cross-examine there on the basis of that.

But that was not the entire report.

There is no way that we can show it to the Court where -- there is no way that we can indicate to the Court whether or not we are prejudiced which was the grounds relied upon by the Illinois Supreme Court for denying us a relief in that -- in connection with this particular point but I submit to the Court that it was impossible under the circumstances here for us to get such a report to determine whether or not we had been prejudiced since the trial judge himself to which (Inaudible) significance, refused to give it to us and refused to put it in the record.

Justice Hugo L. Black: Was the contempt judgment based in whole or in part on that report?

Mr. Anthony Bradley Eben: We cannot tell Mr. Justice Black.

We cannot tell.

I do not know frankly what use was made of it.

Chief Justice Earl Warren: When was the complaint and contempt filed in relation to the filing of that report?

Mr. Anthony Bradley Eben: Afterwards, it was filed by the state's attorney and there were series of them.

Chief Justice Earl Warren: It was --

Mr. Anthony Bradley Eben: First --

Chief Justice Earl Warren: -- filed by the state's attorney in the contempt case?

Mr. Anthony Bradley Eben: Yes sir, that's represented by Mr. Hladis.

The -- after this petition to which I referred to before have been filed then and after the fink report have been filed then there was a petition filed by the state's attorney seeking to have the petitioner to show cause why it should not be held in contempt.

Thereafter, they filed an amended petition after that had been attacked and it was upon the amended petition that the trial ultimately was had.

But in direct answer to Your Honor, the petitions relating to contempt were filed after the receipt of the so-called fink report.

Justice William J. Brennan: Mr. Eben, this petitioner has not served any of his sentence yet, hasn't he?

Mr. Anthony Bradley Eben: No sir, no Your Honor.

Justice William J. Brennan: Does the Illinois procedure in a criminal contempt case permit an appeal from sentence?

Mr. Anthony Bradley Eben: Oh, yes, yes.

Justice William J. Brennan: So that the appellate court might have reduced this sentence on appeal from the sentence even though it left the finding of guilt undisturbed, might it?

Mr. Anthony Bradley Eben: I think that it might but not the appellate court but if you use it in a --

Justice William J. Brennan: Well, I mean your appellate court --

Mr. Anthony Bradley Eben: -- particular sentence made by --

Justice William J. Brennan: Ordinarily I take it in Illinois as -- is generally the case, there's no appeal from a sentence in a criminal case.

Mr. Anthony Bradley Eben: Unless a constitutional question is involved.

We went directly to the Supreme Court.

Justice William J. Brennan: Yes but otherwise, there's no appeal from the sentence to have the sentence modified or reduced even though the finding of guilt stands --

Mr. Anthony Bradley Eben: That's right

Justice William J. Brennan: -- in New York.

That's right.

But that's not true in the criminal contempt case you could have appealed to have this sentence reduced even though the finding of guilt remain?

Mr. Anthony Bradley Eben: I -- as a matter of fact Mr. Justice Brennan, I wrote a part of my brief in the Illinois Supreme Court on that point asking them to at least reduce the sentence to conform with this Court's decision in Cheff.

Justice William J. Brennan: I see.

Mr. Anthony Bradley Eben: Although I'm not sure that my position is really too sound because in Cheff as I pointed out yesterday, you do have that Section 18, Title I defining petty crimes and we don't have anything like that in Illinois at all.

A defense is either a misdemeanor or it's a felony.

Justice William J. Brennan: Well, did you have any Illinois authorities in which an appellate court had reduced the criminal contempt sentence?

Mr. Anthony Bradley Eben: No sir.

Justice William J. Brennan: Do you have -- you don't have that?

Mr. Anthony Bradley Eben: No sir.

In fact, I'm not sure that there are (Voice Overlap) --

Justice William J. Brennan: Did the Illinois Supreme Court address itself to that part of your brief?

Mr. Anthony Bradley Eben: They addressed itself to the question of the two-year sentence without considering the facet which Your Honors is now discussing.

They discussed it in terms of Cheff and they said really that what a sentence is, it's not at all relevant to whether or not it should be a jury trial.

Justice Hugo L. Black: May I ask you if your case depends at all on your judgment on whether this Court decides the federal constitution was right to a trial by jury as by the Fourteenth Amendment been made applicable to the states?

Mr. Anthony Bradley Eben: That's correct.

We believe that --

Justice Hugo L. Black: Was it your case depend on a holding to that (Voice Overlap) --

Mr. Anthony Bradley Eben: I'm sorry Your Honor.

Justice Hugo L. Black: Does your case depend on a holding to that effect here, your case?

Mr. Anthony Bradley Eben: My case depends upon if I understood Your Honor correctly, the application of the Fourteenth Amendment to state courts in a long line of decisions.

I think I counted 23 of this Court in the last few years as well as an application of recently written by the Court in which you for the first time so far as I know, reach out to define what criminal proceedings are for the purpose of imposing constitutional rights at the Bar Association disciplinary proceedings.

The juvenile proceedings, the Colorado Sex Offenses if you remember which were regarded as civil there, I know its three or four others which you -- this Court now regards as criminal in the sense that they require the application of certain constitutional rights.

And I say of course if in a disbarment proceeding or even a proceeding where a man loses his license under a municipal ordinance which this Court has decided if that is to be considered criminal providing for the application of constitutional rights then certainly conduct which is labeled right at the name criminal contempt and which of itself constitutes the violation of the state statute is felony should certainly be considered a criminal proceeding.

Justice Hugo L. Black: But the question I was asking was this, do we have to decide -- is your case so far as you have claimed a right to trial by jury is concerned dependent on whether the Fourteenth Amendment made the right to trial by jury in the federal courts applicable to the states.

Mr. Anthony Bradley Eben: My answer is to the affirmative.

Justice John M. Harlan: You say we do.

Mr. Anthony Bradley Eben: I'm sorry.

Justice John M. Harlan: You say we do have to face that question?

Mr. Anthony Bradley Eben: I think that the Fourteenth Amendment is involved.

I have struggled with it and that has not yet occurred to by mind a way in which the problem could be treated without applying the constitutional inhibition to the states and the only way I think we could do that would be under the Fourteenth Amendment.

Justice Abe Fortas: Well there is -- is a -- there may be an alternative may there not and that is, does it, for this Court to consider whether a jury trial should have been made available in this particular type of criminal contempt in view of the fact that the state does -- has adapted a jury trial system and that that jury trial system would embrace the right to a jury trial if this -- if the petitioner here have been prosecuted for forgery under the criminal statute.

Now is it possible that that is an alternative theory to the one about which Mr. Justice Black was questioning you namely that the -- your -- that the jury trial provision in the Sixth Amendment does apply to the states by virtue of the Fourteenth Amendment.

Mr. Anthony Bradley Eben: I would certainly accept that as the alternative.

If I understand Your Honor, I think you're referring to an interpretation of the Illinois constitution rather than the federal constitution would be, yes, I'll accept that.

Chief Justice Earl Warren: Very well.

Mr. Anthony Bradley Eben: Thank you very much.