BURGETT v. TEXAS

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Argument of Gordon Gooch

Chief Justice Earl Warren: Number 53, James Cleveland Burgett versus Texas.

Mr. Gooch.

Mr. Gordon Gooch: Mr. Chief Justice, may it please the Court.

Petitioner, James Burgett seeks the indication of his right to counsel.

He was convicted in a Texas State Court on a jury verdict of ten years.

He was -- had his conviction affirmed on appeal to the Court of Criminal Appeals of Texas and on his own motion obtained a writ of certiorari in your court.

He was indicted for assault with intent to murder.

The charges against him were brought by a jailer in the town of Greenville, Texas where he was being held for a trial.

At the time of his trial as his trial proceeded, his court appointed counsel in Greenville filed a motion to quash the indictment which alleged four prior convictions which the state used to invoke one of the habitual criminal statutes, the result of which would be life imprisonment.

There was no state procedure available before trial to attack the prior convictions.

The motion to quash as set out in the statutes applied only to technical features of the indictment such as an illegally constituted grand jury.

Nevertheless, the court appointed lawyer moved to quash, stating that he didn't have enough information to make any further attack.

There was no action taken insofar as the record is concerned on his motion to quash but the counsel really couldn't expect the Court to take any motion since the Texas law was clear that the defendant was not entitled to have copies of the prior convictions that were going to be used against him and that the defendant was not entitled to object prior to trial to the use of any prior conviction, instead he had to make his objection in front of the jury.

As the trial began, the state read the indictment and the jury was told that petitioner was duly and legally convicted on four prior occasions.

As the evidence came in, the state introduced into evidence one version, first of one of the Tennessee convictions alleged.

That conviction stated on its face that petitioner did not have counsel.

There was a --

Justice Potter Stewart: That was a conviction for what?

Mr. Gordon Gooch: Forgery Your Honor.

Justice Potter Stewart: A felony in Tennessee or?

Mr. Gordon Gooch: Yes, Your Honor.

The conviction recited on his face that he had appeared in court without counsel and there was absolutely nothing in the record to indicate that counsel had been tendered to him or that he had waived counsel.

His court appointed lawyer objected on the ground that the conviction showed on its face that petitioner did not have counsel and that there was no indication of waiver which brought him squarely within Carnley against Cochran.

Secondly, he raised the issue of course under the Fourteenth Amendment.

The judge reserved ruling and the state offered the same conviction and evidence, this time, a different and inconsistent certified copy of the same conviction.

The second version did not have a recitation that counsel was not present.

It was simply silent on whether counsel was present.

Again, there was no language in the second certified copy of the same conviction to indicate that petitioner had been tendered counsel or that he had waived counsel.

The Court then proceeded to receive evidence again without making a ruling and again over counsel's objections, proceeded to hear evidence concerning a Texas conviction for burglary, the preceding in 1964.

The judge after a hearing, partially in camara, ruled out the Texas conviction on the ground that it was void on state law grounds.

He did not admit the first version of the Tennessee conviction that recited that petitioner was of -- without counsel.

He did admit into evidence the second inconsistent version of the Tennessee conviction stating -- overruling defendant's objections, the trial proceeding.

There was nothing else in the record to indicate what happened until the Court's charge in which the Court charged the jury that they had heard certain evidence that tended to show that the defendant had been guilty of previous crimes and that they were not to consider that for any purpose.

Chief Justice Earl Warren: How about the other two Tennessee convictions that were alleged in the indictment?

Mr. Gordon Gooch: Sir, the other two Tennessee convictions were never directly offered into evidence.

However, the Tennessee conviction that was offered and admitted into evidence contained their recital concerning one of the other Tennessee convictions with the language that he'd be rendered infamous and incapable of giving testimony (Inaudible) language of that nature.

Justice John M. Harlan: Well, didn't the Court's charge also advice the allegations of the indictment with respect to having a new conviction?

Mr. Gordon Gooch: Yes, Your Honor.

It was a blanket --

Justice John M. Harlan: They were told not to consider those allegations, did they not?

Mr. Gordon Gooch: Yes, Your Honor they say -- the judge instructed them, the jury, not to consider the evidence that they had heard concerning any of the -- pending to show prior crimes, I believe is the language he used.

Justice John M. Harlan: Or the allegations in the indictment?

Mr. Gordon Gooch: Yes, Your Honor.

They were instructed that the allegations and the indictment were no evidence originally and also specifically in this connection.

Chief Justice Earl Warren: There was one of the Tennessee indict or convictions that the -- they're concerning which there was no proof offered at all by the state, two of them.

Mr. Gordon Gooch: Two.

Two, two --

Chief Justice Earl Warren: Two of them.

Mr. Gordon Gooch: -- that were admit -- in which there were no certified copies at all even tendered to the Court.

Chief Justice Earl Warren: Yes.

We'll recess now.

You may continue your argument.

Mr. Gordon Gooch: Thank you, Mr. Chief Justice.

I like to place myself now in the shoes of the District Attorney in this rural county of Texas just before petitioner's trial.

He was indicted early in April of 1965 on this habitual criminal charge to be tried later that month.

As evidence, I as the District Attorney have four alleged prior convictions.

Now, only two are required under the Texas Act but I decided to use four prior convictions which I am permitted to do by the Court of Criminal Appeals.

I look at this convictions and I see that at least one Tennessee conviction that I'm going to offer in evidence is inconsistent.

I have their -- I do not know and cannot tell which is the true certified copy of the Tennessee conviction.

But this I can see that on the certified copy of the conviction that I'm going to offer in evidence it affirmatively states that petitioner was without counsel.

And also, there is nothing in any of the convictions or any of the papers certified under Civil Secretary of State of Tennessee or of the clerk to indicate that petitioner was offered counsel or that he waived his right to counsel.

As the case goes to trial, my opponent files a motion asking to see -- asking for more information about this convictions that I'm going to offer in evidence.

I do not have to give it to him and I don't give it to him.

Instead, I make him make an objection in front of the jury after I've already read the indictment to him and an indictment to the jury, I make my opponent object in front of a jury and assert at that time petitioner's constitutional rights.

The first opportunity really that petitioner's counsel had.

The trial judge admits the conviction and the trial proceeds.

The jury is never told that petitioner was never validly convicted.

They're simply instructed at that late date not at the time the evidence was offered but at the time of the charge not to consider.

I don't see how any lawyer reading Carnley against Cochran and Gideon against Wainwright, could reach the conclusion that those convictions could -- were valid and could be used in evidence against petitioner or could be used to invoke the Habitual Criminal Act of the State of Texas.

Justice Abe Fortas: Do we know that there was no waiver of counsel in the Tennessee case?

Mr. Gordon Gooch: If the Court please, I cannot honestly say that for this reason insofar as the record before this Court is concerned there is no indication that petitioner waived counsel.

If I were permitted to testify based on what petitioner told me, I would say that he was not tendered counsel --

Justice Abe Fortas: Well, (Inaudible) --

Mr. Gordon Gooch: -- and he did not waive it.

Justice Abe Fortas: I had to assume that --

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: -- you're going to do that.

Mr. Gordon Gooch: By the same token, the State of Texas never contended in the trial court that there was any waiver.

They never contended in the Court of Criminal Appeals that petitioner waived counsel.

In response to petitioner's petition, they conceded that their proof failed because respondent did not have counsel in Tennessee and only in their brief that they include as exhibits two affidavits filed long after the record were certified in this Court purporting to be affidavits of the trial judge and the District Attorney, reciting the conclusion that petitioner waived counsel.

I was given no notice that these affidavits were going to be taken.

I was given no opportunity to cross-examine these state's witnesses.

Petitioner was given no opportunity to confront these witnesses against him and petitioner was given no hearing in which his credibility could be placed in context with these affidavits.

Unknown Speaker: Mr. Gooch --

Justice Abe Fortas: Well, is the -- is it fair to say that where that the rule of law for which you are contending maybe that where the prior indictment shows on its face that there was no counsel then it's -- the burden is on the state to prove waiver and that the state does not bear that burden at the trial at which they want to use the convict -- the prior conviction then the conviction was brought.

Mr. Gordon Gooch: Sir, I believe the Court's already said that in Carnley against Cochran expressly that unless there is an allegation or evidence of waiver or unless the judgment itself shows waiver, the conviction is void.

And petitioner's counsel did all that he had to do under Carnley against Cochran to throw the burden back on the state by pointing out that the -- there is an affirmative showing of no counsel and no showing of waiver.

Justice William J. Brennan: As a matter of fact, did he finally go a little beyond that to say that waiver is not to be inferred from silence of the record?

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: Affirmed the burdens on the state to establish a waiver (Voice Overlap) --

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: And you tell us that here, the state gives us the alleged -- basis of waiver and affidavits they filed after the case came here?

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: And without giving you an opportunity to see it?

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: That's extraordinary.

Mr. Gordon Gooch: Now, with this evidence before the --

Chief Justice Earl Warren: May I ask Mr. Gooch, have you finished your impersonation of the District Attorney?

Mr. Gordon Gooch: Yes, Your Honor.

Chief Justice Earl Warren: I wonder then if you haven't left out a very important thing with this appeal.

So, I mean, the facts that the alleged four indictments or four convictions against this man in the indictment and read those all four of them to the jury and then made no attempt at all to prove to them.

Mr. Gordon Gooch: Yes, Your Honor.

That's very true and I was remising that -- calling it to your attention.

Under the state law, he may allege as many as he wishes and may use them as he sees them.

Chief Justice Earl Warren: Yes.

Mr. Gordon Gooch: And the standard on appeal on those cases provides no relief that the penalty is not enhanced which is exactly the position taken by the Court of Criminal Appeals on appeal.

They would not let Mr. Burgett even have his case considered because, under their own decisions, unless the penalty has actually been enhanced, the petitioner has no standing to complain about the use of the prior convictions and evidence against him.

In particular, the case that they relied on, their most recent case, the defendant was given 99 years instead of life imprisonment and the Court of Criminal Appeals held that he had no standing to complain because he only got 99 years instead of life under the enhanced statute.

So based on appeal in the Court of Criminal Appeals with no prospect of securing consideration of his claim that his trial jury was prejudiced by this evidence being alleged in the indictment read to him, offered into evidence and then only slightly cured if it all by the instruction of the Court.

If the Court please, this is strictly in violation of your rule in Chapman against California which requires when there's unconstitutionally obtained or used evidence comes into the trial if the state proved beyond a reasonable doubt that it did not contribute to the result in this case.

So the --

Justice William J. Brennan: Both of the convictions they offered were stricken, weren't they?

Mr. Gordon Gooch: Your Honor, you -- we really do not know what happened.

We don't know really why?

Justice William J. Brennan: I don't know about why but --

Mr. Gordon Gooch: It --

Justice William J. Brennan: But they weren't -- jury was told not to consider them at all.

Mr. Gordon Gooch: That's true Your Honor.

Justice William J. Brennan: And I suppose for you to succeed, you do have to say that this evidence was -- which was -- which the jury heard with which was taken away from them and they were told not to consider it, that instruction was not sufficient to overcome the damage --

Mr. Gordon Gooch: Sir, I don't --

Justice William J. Brennan: -- in this particular kind of evidence.

Mr. Gordon Gooch: I don't believe that Mr. Burgett's case necessarily stands or falls on that point but it is an important consideration.

And under standard set by this Court in the last century, it is clear that when evidence, highly prejudicial evidence, the Court is -- can consider and should consider whether or not the jury could possibly obey the Court's instructions.

And in this connection, I'd like to point --

Justice William J. Brennan: You say that it doesn't -- that in these circumstances it could not and therefore you --

Mr. Gordon Gooch: Yes, sir.

Justice William J. Brennan: -- could win.

Mr. Gordon Gooch: Well, that -- yes, sir, that is one --

Justice William J. Brennan: (Voice Overlap)

Mr. Gordon Gooch: -- reason why I should win.

Justice William J. Brennan: And what's the other one?

Mr. Gordon Gooch: The first reason is that the -- he should've had an opportunity for a hearing to have this evidence stricken before the jury ever heard it.

Secondly, and after the jury heard it, there is no way that the instruction by the Court would be effective to erase this from their minds.

Justice Byron R. White: Well, that's the same point.

Justice John M. Harlan: Do you think you can prevail in this case without overruling Spencer and Texas (Voice Overlap) --

Mr. Gordon Gooch: Absolutely sir.

I believe that Spencer simply permits a one stage recidivist proceeding when there is no question that the convictions to be used against the man are valid.

And all Spencer did, if the Court please, is to permit Texas to use a one stage recidivist proceedings and to use in evidence before the guilt has determined a valid prior conviction or valid prior convictions.

Spencer's case is not petitioner's case because the state had no valid prior convictions.

Justice John M. Harlan: No, he wasn't convicted (Inaudible) recidivist at all.

Mr. Gordon Gooch: Well, if the Court please, he is spending ten years of his life that he might not have to if the people who sentenced him, who sentenced him under no standards given by the Court just a range of punishment were not prejudiced by the fact that they had information that they couldn't possibly put out of their mind as to four prior convictions duly and legally convicted.

And as the Second Circuit held under Rotier against Labely (ph), the defendant is entitled to a hearing on recidivism free from the taint of this void prior convictions that the state, really, I don't believe can sustain their burden of showing that it had no effect at all on the jury's ten year sentence.

In Texas, cold blooded murder premeditated can receive two years probated sentence.

Justice William O. Douglas: In this --

Mr. Gordon Gooch: I --

Justice William O. Douglas: In this case, the trial judge has not been advised, was he, that the prior conviction was obtained without benefit against him?

Mr. Gordon Gooch: He was advised that the first opportunity petitioner's counsel had when he was offered into evidence.

Justice William O. Douglas: At that state?

Mr. Gordon Gooch: Yes, sir.

Justice William O. Douglas: Now, was he asked that you eliminate that from the consideration of the jury completely or give limiting instructions to the jury respecting?

Mr. Gordon Gooch: No, sir.

The objection was to exclude it and the objection was overruled.

Justice William O. Douglas: As I read Spencer, I judge that that kind of ruling would be within the reach of Spencer.

Mr. Gordon Gooch: Well, it may well be Your Honor.

I don't --

Justice Byron R. White: It was later stricken, and you say, were you -- that he -- the objection to the evidence was overruled but later it was stricken?

Mr. Gordon Gooch: Yes, Your Honor and the charge --

Justice Byron R. White: And the jury was told not to consider it.

Mr. Gordon Gooch: For any purpose, yes, sir.

But they were told that the prior -- that evidence of prior crimes should not be considered and the convictions and not the indictment, they weren't ever told that the man never had been convicted insofar as the state was really concerned.

They were simply instructed to disregard it.

Now the --

Justice Hugo L. Black: Did we not decide the case several years ago (Inaudible) I think you told us, New York, collateral attack could not be made during the trial on a use of a conviction being used to aggravate the punishment but it had to be done and accept the proceeding in courts for that purpose?

Mr. Gordon Gooch: Well, if the Court please, I -- if so, I have overlooked it but I'd like to point out that all of the circuits have considered this question have had no difficulty in stating that the defendant does have a right to make a collateral attack.

The only alternative is to insulate the judgment from attack and let him suffer the harm.

Let him go back to the other state and attack it which he probably can't do and in Texas is not permitted to do.

And in fact, in Texas, he's not even permitted to tell the jury that he is attacking in a sister state, his prior conviction on the ground that they -- it was obtained unconstitutionally.

The only alternative is to say that once you have an out of state conviction that the man cannot challenge it at all and he has to suffer whatever penalty is -- because I don't believe that that is a position that the Court want to take.

Justice Hugo L. Black: Or it may have had (Inaudible) on the sentence as I recall it just was held by this Court.

Mr. Gordon Gooch: Well, in all of the Circuit Courts that have held on this, that has presented no problem.

And in -- specifically, United States against Jackson considered the difficulties that the state may have in making this kind of proof but the alternatives are simply to deny the man any opportunity to make a challenge.

Justice Hugo L. Black: At any rate, he's not cited such a case.

Mr. Gordon Gooch: No, sir.

I'm not aware of the --

Justice Byron R. White: Well, isn't there a case here in which -- reconsidered in Virginia that the -- is constitutionally required that the state allow a -- an attack on a prior conviction during a subsequent recidivist trial?

Mr. Gordon Gooch: Well, you said tuning Your Honor?

Justice Byron R. White: Yes.

Mr. Gordon Gooch: Well, the tuning if I read it correctly Your Honor, it depends on the restraints that are being placed on the man presently.

It may well be that Tennessee would have to give him a hearing.

But more importantly, Texas should give him the hearing.

Texas is much of a position to determine this as anyone else.

If --

Justice Byron R. White: Well, I gather your position would be to -- if you put yourself back in the shoes of the state's attorney, he wants to offer this prior crime and he offers them in the presence of the jury and the jury hears them and the judge excludes them and he gives an instruction.

You should come up here with the same argument.

Mr. Gordon Gooch: It's I think an entirely different case Your Honor, I --

Justice Byron R. White: But why wouldn't you?

The jury has heard the fact to the -- of the claim prior conviction.

The judge says that, “Well, that man was convicted without counsel.

I exclude it.”

The jury -- the judge wouldn't necessarily follow from your position that you must have a separate hearing on the admissibility of this evidence outside the presence of the jury.

Mr. Gordon Gooch: Yes, sir.

Yes, sir.

But it's a more aggravated case when the judge actually had missed the evidence and waits till the end of the trial to exclude it.

It has a more damaging effect on the jury.

Justice Byron R. White: So you do agree that you'd be up here making the same argument or at least the same kind of argument if the evidence had been excluded.

Mr. Gordon Gooch: If the Court please, I ask no more than you permitted in Jackson against Denno.

Justice Byron R. White: Well, I don't understand.

You want to apply that Jackson against Denno procedure to --

Mr. Gordon Gooch: That is --

Justice Byron R. White: -- a prior crime.

Mr. Gordon Gooch: That is one alternative as -- actually, this is evidence that's coming in, unconstitutionally obtained evidence and I don't see any distinction why this evidence shouldn't be challenged in camara as much as other evidence is challenged in camara.

Justice Byron R. White: Well, it -- I would say that he would apply the same rule to any kind of unconstitutionality, I think, regardless of its -- of the variety of --

Mr. Gordon Gooch: Yes, sir.

Justice Byron R. White: -- of the differences between evidence --

Mr. Gordon Gooch: Yes, sir.

Justice Byron R. White: -- in terms of its impact on the jury.

Mr. Gordon Gooch: Yes, sir.

I agree with that.

Justice Byron R. White: And that -- so you won't distinguish between one kind of evidence and another in terms of its --

Mr. Gordon Gooch: No sir.

Justice Byron R. White: -- power of a jury.

Mr. Gordon Gooch: Only in terms of aggravation under the circumstances.

Justice Abe Fortas: I don't understand the --

Mr. Gordon Gooch: As long as it's unconstitutionally obtained evidence.

Justice Abe Fortas: Mr. Gooch, I don't understand the verdict here.

This petitioner was convicted for assault, with intent to murder repetition of offense.

Mr. Gordon Gooch: Yes, Your Honor.

Justice Abe Fortas: Is that correct when you described it?

Mr. Gordon Gooch: No, Your Honor.

I don't believe so.

He was indicted for that and they're recited in the judgment that he was convicted repetition of offense but from the sentence that he received, he did not receive enhanced punishment.

So I really believe that's a clerical error although as far as the record is concerned, he was convicted as a criminal repeater.

Justice Abe Fortas: I know.

I want to try to get that straight on page 6 of your brief.

The summary of argument you said --

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: -- the petitioner was convicted of an assault with intent to murder, repetition of offense --

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: -- and sentenced to ten years by a jury.

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: Now, what do you mean by that?

Did the jury come in and say that they found him guilty of this offense?

Mr. Gordon Gooch: No, I perhaps tried to compress too much in one sentence.

The jury would never -- was not charged on the habitual criminal.

Well, you say, were only charged on assault with intent to murder in a lesser included offenses.

They returned a verdict of guilty in ten years.

The judge, when he entered the formal conviction against the road on the face of the conviction, convicted assault with intent to murder repetition of offense.

So insofar as the formal judgment of conviction is before you, it reads assault with intent to murder, repetition of offense.

Justice Abe Fortas: Repetition of offense is a means the recidivist statute.

Mr. Gordon Gooch: Yes, sir.

It does.

Justice Abe Fortas: Now, It seems to me that the first question we may have before us is whether they consider this as a recidivist case or as a case of conviction under the assault with intent to murder statute.

Mr. Gordon Gooch: Well, there's --

Justice Abe Fortas: Do you think that we have before us a conviction, a sentence under the recidivist statute or not?

Mr. Gordon Gooch: There's no question that that is true insofar as the record is concerned.

Justice Abe Fortas: You mean we do have a --

Mr. Gordon Gooch: Yes, sir.

That's what the --

Justice Abe Fortas: -- before us a sentence under the recidivist statute.

Mr. Gordon Gooch: Not a sentence, a conviction.

Sentence was not enhanced.

Justice Abe Fortas: The sentence was not enhanced.

Mr. Gordon Gooch: No, sir.

But the conviction before you is a conviction for assault with intent to murder, repetition of offense.

Justice Abe Fortas: Despite --

Mr. Gordon Gooch: He was --

Justice Abe Fortas: --the fact that the judge instructed the jury to disregard for any purpose as I remember, any evidence that was submitted with respect to prior conviction.

Mr. Gordon Gooch: Yes, sir.

And that -- the jury does -- was not asked a question concerning whether or not this man was convicted of other crimes which would have been the procedure otherwise.

Now, I wish -- I would like to save a little time in rebuttal.

I do wish to make one other statement and that is that petitioner was not given the opportunity to be present when the prosecution conducted the voir dire examination of the jury and it seems to me that the -- with -- it's very clear or how critical -- critically important it is for the man to be sitting there so he can observe the jury when the prosecutor is asking the questions, so that he can form a basis of who's going to be leading which way so he and his lawyer can have an adequate opportunity to strike the people that they think are against them from the start.

So that the petitioner can be assured when the jury gets in the box that he hadn't even started with the prosecution and that he knows as the best that you can know that he is going to get a fair shake of the jury.

Chief Justice Earl Warren: Mr. Douglas.

Argument of Leon Douglas

Mr. Leon Douglas: Mr. Chief Justice and may it please the Court.

This case was assault and intent to murder case.

The man was in jail.

He made a telephone call to Tennessee.

On the way back, he stabbed the jailer and --

Chief Justice Earl Warren: On the way back, he what?

Mr. Leon Douglas: On the way back to the cell, he stabbed the jailer and that is what he was convicted for, assault with intent to murder.

There was no enhancement, no repetition except for some words in the judgment, just a straight assault with intent to murder conviction.

This case is one where I believe that Spencer case would have to be overruled, the Mickelson case would have to be overruled.

This is a matter of evidence that was submitted to the jury and the Court instructed the jury not to consider it.

Justice Abe Fortas: Well, what does -- what do those cases have to do with the problem as it's before us if there's no recidivist conviction as you now cite?

Mr. Leon Douglas: The only thing in their Mr. Justice Fortas is that in the Mickelson case the -- it says, the limitation instructions on this subject are no different in this type of case than other cases.

And this also applies in the Spencer case and that was cited in Mickelson case, saying, limiting that evidence would apply in this type of case.

Justice Abe Fortas: Well, how about Spencer though.

Mr. Leon Douglas: It said, Spencer case to use that language and cited the Mickelson case in the opinion about --

Justice Abe Fortas: Well, do you see this case as it is here before us as a case involving Texas procedures under the recidivist statute or not?

Mr. Leon Douglas: It started out that way Your Honor and ended up as a straight trial under assault, intent to murder.

Justice Abe Fortas: You mean the prosecution started out that --

Mr. Leon Douglas: Yes, Your Honor.

Justice Abe Fortas: And how about before us?

What's before us?

Mr. Leon Douglas: This is not a recidivist case before you.

Justice Abe Fortas: Well, just a question of whether the evidence introduced purportedly under the recidivist statute and then later excluded from jury consideration by instruction of the judge is -- undermines a conviction for assault with intent to murder.

Mr. Leon Douglas: That would be one of the main gist of the case, I believe it.

Justice Thurgood Marshall: Mr. Douglas, if this is just an assault with murder, why did you put those two affidavits in your brief?

Mr. Leon Douglas: Mr. Justice Fortas, this -- in the development of this case, if you would permit me, say that the Dallas conviction for burglary was offered.

And this Dallas conviction was admitted into evidence.

When they came to the sentence, he received incidentally three years.

When he came to the sentence, it read not less than two, no more than three.

And when it was offered, it looked like there might be 33 in there.

They had erased one of the three's apparently.

Justice Thurgood Marshall: But did it look the same way when you got it --

Mr. Leon Douglas: Well, in the --

Justice Thurgood Marshall: -- originally?

Mr. Leon Douglas: In the certified record before this Court, it looks like that the three is probably erased.

The printer left it off and put two to three.

Justice Thurgood Marshall: But I mean, didn't you see that before you introduced it in evidence?

Mr. Leon Douglas: Your Honor, I'd the appellate lawyer before the Court of Criminal Appeals.

I didn't offer that but they saw that in the Court.

Justice Thurgood Marshall: Well, are you defending the person who did offer it?

Mr. Leon Douglas: Yes Your Honor.

Justice Thurgood Marshall: Didn't he see it?

Mr. Leon Douglas: Yes, but I -- it is my contention that it made no difference.

If it said 33, it made no difference because --

Justice Thurgood Marshall: That brings me to my next point.

Do you take the position that an alleged certified copy of a conviction in another state which is obviously invalid came to you?

Mr. Leon Douglas: Your Honor, I do not agree that it's obviously invalid.

Justice Thurgood Marshall: No, this one I'm talking about, it is obviously invalid.

Mr. Leon Douglas: I -- maybe --

Justice Thurgood Marshall: Do you say you can use that --

Mr. Leon Douglas: I don't see --

Justice Thurgood Marshall: -- any way?

Mr. Leon Douglas: If one is obviously invalid, I'd say you couldn't use it.

I don't say it is obviously invalid of the fact if the man did not have counsel, does not take into consideration.

Did he waive counsel or did he want to represent himself.

In Moore versus Michigan, it states that you cannot force counsel upon a defendant.

Cases have been reversed because of forcing counsel upon a defendant.

And the fact that --

Justice William J. Brennan: Of course, but didn't finally (Inaudible) say that if the record was silent, you could not incur a waiver?

Mr. Leon Douglas: Your Honor, this is a collateral attack maybe once removed.

Justice William J. Brennan: Collateral attack or not, didn't this -- not what the principle was determining (Inaudible)?

Mr. Leon Douglas: It says that he must show that --

Justice William J. Brennan: And did this record show that he had counsel?

Mr. Leon Douglas: The record shows that -- and that -- I checked the Tennessee law and to see what these instruments were.

It showed that he did not have counsel.

I will agree that he did not have counsel.

Justice William J. Brennan: Isn't that -- I just wonder how these affidavits indicating that in fact he did, is this the one we're talking about, these affidavits in the (Voice Overlap)?

Mr. Leon Douglas: Yes, Your Honor.

I'm probably stand -- perhaps to be reprimanded on those.

I read the case of Giles versus Maryland that came out in February this year and I saw that the Court considered some other matters that weren't in the record and I got interested in the Tennessee law and checked it out and talked to the clerk and the judge hence these affidavits.

Now, I don't think that they're --

Justice William J. Brennan: They're not really properly before us.

Mr. Leon Douglas: Necessary to the opinion Your Honor.

I don't think they're -- necessary to the opinion.

Now --

Chief Justice Earl Warren: They're just not properly here, isn't that right?

Mr. Leon Douglas: I -- if that's what the Court says Your Honor.

I had seen in --

Chief Justice Earl Warren: Well, do you -- how do you defend it?

Now, you --

Mr. Leon Douglas: I don't -- Your Honor, I don't defend it.

Chief Justice Earl Warren: (Inaudible) to say that they're properly here or they're not properly here?

Mr. Leon Douglas: Well, this -- I will say that they're not proper here.

Your Honor, I had seen --

Chief Justice Earl Warren: I thought (Voice Overlap) --

Mr. Leon Douglas: -- matters come up -- pardon me?

Chief Justice Earl Warren: No.

That's all I want.

I don't want you -- I don't want to have you leave here with the idea that we don't have to consider them, we don't want to.

They're properly here or they're not properly here and you say that they're not properly here so that ought to close.

Mr. Leon Douglas: Alright, Your Honor, (Inaudible).

When this Dallas County conviction was ruled out incorrectly, this was a 33.

The Court could affirmed that or it could reform that judgment.

The Court of Criminal Appeals could reform that judgment on appeal or if even as in the penitentiary it could not been collaterally attacked and so if it had 33 years, it was still a good conviction.

It wasn't bad faith on the part of the prosecutor.

It was a bad ruling on the part of the trial court that kept the Dallas County conviction out.

On these habitual criminal cases, the conviction must be prior in time.

The commission and the conviction must be prior.

And one conviction had prior to commission of the next act.

So when the Dallas County conviction went out then the prosecutor could not go forward with the Tennessee conviction so he had to withdraw the Tennessee conviction.

So what the prosecutor could have shown in regard to the Tennessee convictions is not in this record.

So then when the Dallas County conviction went out, he could not go any further as a matter of law with the Tennessee conviction.

So that's the record you have before you and the fact that it went to the jury or if they heard about it and the Court instruct it.

Let's look at this.

There was no objection for the fact --

Chief Justice Earl Warren: Why was it -- it couldn't -- you couldn't put the Tennessee conviction in?

Mr. Leon Douglas: They couldn't put the Tennessee convictions in because for a circuit conviction, it must be of like character and the forgery is not of like character to assault, intent to murder under Texas law.

So as a matter of law then that went out of the case and they had to go back to the assault with intent to murder.

Justice Abe Fortas: Well, why didn't you put it in your indictment?

Mr. Leon Douglas: Because -- assuming that the Dallas County conviction was good in which the record and the law that I've cited in the brief I think would show was good, used the Dallas County conviction then we could go to the Tennessee conviction.

You have to have three of them under Article 63 to get the habitual.

Now to bring it down to the second case, there -- for the second offend there --

Justice Abe Fortas: Well, you have cited four convictions here.

Mr. Leon Douglas: Yes, Your Honor.

Justice Abe Fortas: And you read them to the jury.

Mr. Leon Douglas: Yes, Your Honor.

Justice Abe Fortas: Now -- and then none of them was eventually submitted to the jury, none of them proved out.

And I don't care whether a judge could rule correctly or not.

They were not approved that whether --

Mr. Leon Douglas: That's right.

Justice Abe Fortas: And nevertheless the -- when they hadn't obtain the conviction at least for assault with murder and -- that the ambiguities to what effect a defendant of recidivist statute had, is that right?

Mr. Leon Douglas: Yes, sir.

Chief Justice Earl Warren: Mr. Douglas, may I ask where in the record we can find that the -- that these Tennessee convictions could not be introduced by the prosecution.

Mr. Leon Douglas: Your Honor, I cite in my brief the fact of the Texas law under 62.

Under --

Chief Justice Earl Warren: Was there anything in the record that shows that the prosecutor made a valid attempt to introduce the Tennessee convictions.

What would prevent it from doing so by the ruling of the Court?

Mr. Leon Douglas: No, sir, only as a matter of law when the Dallas County conviction was ruled out.

Chief Justice Earl Warren: Ruled out -- the record shows nothing of that and it develops only when you write a brief in this Court.

Mr. Leon Douglas: Yes, Your Honor.

Chief Justice Earl Warren: Alright.

Now let me ask you this.

You have said that it's necessary to overrule Spencer if we're going to reverse this case, leaving out all except the two convictions concerning which no evidence was offered at all.

What comfort do you get out of Spencer for saying that a prosecutor can go before a grand jury and have four convictions charged against the man and then when he gets to trial reads it -- reads the indictment with the four convictions to the jury and then makes no effort at all to approve two of them.

Mr. Leon Douglas: Well, if it would be --

Chief Justice Earl Warren: I just -- you said we have to overrule Spencer and I just want to know what comfort you'd get out of Spencer if you think Spencer said anything of that kind?

Mr. Leon Douglas: In Reed Your Honor, there were eight prior convictions and you needed three.

I don't get any comfort out of it except that it could have been a habitual crime -- habitual criminal case if the state had been permitted under the law to prove those cases to make three of them.

If we've been permitted, we could have made -- I say that we could have made a life sentence case if he hadn't incorrectly ruled out the Dallas case and that's no -- that's when the law says, you can't go any further.

When we knocked out the Dallas case, well we could not go any further as a matter of law and that's the reason it was not -- they couldn't go in to those.

Chief Justice Earl Warren: Did you offer them to show you good faith in having charged them in the indictment?

Mr. Leon Douglas: May I go on to this good faith.

The district attorney offered to stipulate the prior convictions and the -- they -- there's nothing in this record to show that they wanted to see these prior convictions ahead of time.

Chief Justice Earl Warren: But he wouldn't expect them to -- that they were all bad, would you?

Mr. Leon Douglas: Your Honor, I don't know if they're bad.

The Tennessee --

Chief Justice Earl Warren: (Inaudible)

Mr. Leon Douglas: The Tennessee law, we could look at that just a moment.

It has -- had a statute since 1855 requiring appointment of counsel in all felony cases.

And even in misdemeanor cases.

I checked the cases in Tennessee and I found three that mentioned without counsel.

One of them was reversed or about three of them reversed because it didn't give them enough time to prepare -- appointed counsel to prepare for trial.

Another case was reversed because the justice of the peace did not advice the defendant of all his rights or right to counsel.

No cases were reversed.

I looked through the Sixth Circuit cases from back past the Gideon versus Wainwright.

I found no cases that had been reversed in the Sixth Circuit or denial of counsel in Tennessee.

And with that, I think that looking at the law there, no case has been reversed in Tennessee.

I couldn't -- I think it's a presumption that he perhaps had a lawyer.

And --

Chief Justice Earl Warren: So rather that's a presumption there, I think.

Mr. Leon Douglas: Well, it -- when no cases had -- there was, excuse me.

There was one case reversed, Chandler versus Fretag was reversed in this Court.

That was a Tennessee conviction.

Here, the man was charged as habitual.

They asked if he want a lawyer and he did not.

He later found out that he was charged an habitual criminal, he said, I want a lawyer.

They denied him a lawyer.

Under those circumstances, this Court reversed.

And that's the only cases -- I wouldn't say that's all of them, but that's the only cases that I know of.

Now, under -- we started out of course as a -- as an habitual and under these cases that are submitted to the -- that I have submitted to you that we couldn't go forward with those.

Now, I don't think there's any bad faith shown.

I think it's a bad ruling on the trial court and this defendant made no objection to the reading of that indictment because of these prior convictions in it, but there is nothing in the record he showed to ask -- to see this judgment.

And if you permit this proceed --

Justice Thurgood Marshall: But Mr. Douglas, did he know what those prior convictions were when the indictment was read?Had he seen them?

Mr. Leon Douglas: I don't know, Your Honor.

He -- there's nothing in the record to show that he asked for it.

I don't --

Justice Thurgood Marshall: But he did the best he could.

He filed a motion to quash as a -- to the best he could do.

Mr. Leon Douglas: Your Honor --

Justice Thurgood Marshall: There's no other way you could do it.

Mr. Leon Douglas: You Honor, that motion to quash only contained allegations to this effect, that they were indefinite that the indictments were indefinite.

Justice Thurgood Marshall: Well, isn't that all he could do at that time under the law of Texas.

Mr. Leon Douglas: We have procedure.

We have a motion to quash the indictment.

You have a hearing outside of the presence of the jury, and you can develop --

Justice Thurgood Marshall: At that time?

Mr. Leon Douglas: -- develop the facts or motions to quash --

Justice Thurgood Marshall: Would it have -- would've had breached those indictments?

I mean those convictions?

Mr. Leon Douglas: I have not found a case particularly in point on that, but the statute sets out a motion to quash in exception to the indictment, a motion to change venue, and a separate hearing, separate statement of facts on appeal.

Justice Thurgood Marshall: Well, my whole point was he made the point that he can object to the reading of the indictment and I was merely raising a question.

How could he object to these convictions when he didn't know what in the world they were?

Mr. Leon Douglas: They were alleged the dates for forgery, the dates of the conviction, the place of the conviction, and the amount and the time they were alleged in the indictment.

Justice Thurgood Marshall: But he didn't see them, did he?

Mr. Leon Douglas: I have in -- he -- there's nothing in the record that showed he asked for it.

I don't know whether he saw them or not, Your Honor.

This procedure, somewhat like the --

Justice Thurgood Marshall: Well, if you're going to say he waived something, we ought to be able to know whether he intelligently waived the objections of the reading of the indictment or not?

Mr. Leon Douglas: Well, if there's no objection --

Justice Thurgood Marshall: Would you think so?

Mr. Leon Douglas: If there's no objection in the record, I don't know.

Justice Thurgood Marshall: Well, do you think there was a waiver?

Mr. Leon Douglas: Not until this case -- the Spencer case, now there was objection in the Spencer case to the reading of it.

In this case, there is no objection.

There is no objection to this indictment mentioning this prior --

Justice Hugo L. Black: Was it read?

Mr. Leon Douglas: Beg -- Yes.

Justice Hugo L. Black: Was it read?

Mr. Leon Douglas: It was read, Your Honor.

Justice Hugo L. Black: In open court?

Mr. Leon Douglas: In open court, yes, sir.

Justice Hugo L. Black: By the defendant's lawyer?

Mr. Leon Douglas: Yes, sir.

Justice Hugo L. Black: And how the jury was.

Mr. Leon Douglas: Yes, Your Honor.

And this was just a -- this is a matter of evidence.

I think this case comes down to matter of evidence.

Now, on the procedure in Texas --

Justice William J. Brennan: Excuse me Mr. Douglas, may -- I just like to get your Texas procedure straight.

Mr. Leon Douglas: Yes, sir.

Justice William J. Brennan: Do I understand that the recidivist cases in order to get an enhanced penalty, there must be established two other convictions?

Mr. Leon Douglas: For a life sentence case?

Justice William J. Brennan: For life sentence.

Mr. Leon Douglas: Yes, Your Honor.

Justice William J. Brennan: Now, what actually happened here as I read this part is initially, 6711 of Tennessee was offered and the judge reserved.

Then, there was a second offered, wasn't there?

Mr. Leon Douglas: The Dallas County conviction.

Justice William J. Brennan: The Dallas County.

And on this, there was a hearing and at the conclusion of that hearing, the judge said you can't use the Dallas County, is that right?

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: So that left the record at that point with just the 6711, which subsequently, as I read the record in the second version was finally admitted in evidence, actually received in evidence, is that right?

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: Now, in that posture of the case, without any thinking more in the way of prior convictions, could there have been enhanced penalty?

Mr. Leon Douglas: No, Your Honor, could not.

Justice William J. Brennan: And the prosecutor offered nothing more thereafter, is that it?

Mr. Leon Douglas: That's right.

Justice William J. Brennan: Whatever the reason may be, he offered nothing else.

And as I read the record, in his instructions to the jury, the judge referred to the fact that he had admitted something faring bearing on the prior convictions and said, “No, I withdraw all as to (Inaudible) -- I withdraw all of this from your detention case.”

Mr. Leon Douglas: Yes, sir.

Justice William J. Brennan: Is that what actually happened?

Mr. Leon Douglas: The Dallas County conviction was actually introduced and later withdrawn, the way I remember the record, Your Honor.

Justice William J. Brennan: Oh, I see.

It was actually -- was it received?

Mr. Leon Douglas: Yes, Your Honor --

Justice William J. Brennan: Oh, I see (Voice Overlap) --

Mr. Leon Douglas: And later withdrawn when they got to the sentence, that's the way I remember the record.

Justice Byron R. White: Oh, I don't know.

Justice William J. Brennan: I didn't read it that way, because I don't know this material.

The fact is in any event, after the Texas conviction went out, whatever the reason was, it had to go out, I gather, from state law.

That left the record with only this one -- second version of 6711 of Tennessee, although the indictment alleged other Tennessee convictions --

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: -- as to which the prosecutor offered no proof, is that right?

Mr. Leon Douglas: That's right.

Justice William J. Brennan: But he had read when he read in the presence of a jury at the opening of the trial those provisions of the indictment which alleged this other Tennessee conviction.

Mr. Leon Douglas: Yes sir.

Justice Byron R. White: Well, your brief says that the Court didn't admit the Texas conviction and so that's what records meant to show.

Had a hearing and they excluded it -- excluded that, they admitted the one -- (Inaudible) -- the one version of Tennessee conviction which was later withdrawn.

Mr. Leon Douglas: I think there was no objection to the first of the Dallas conviction and then somewhere in there, it was later -- at the time, it was withdrawn then and it came in first without objection and went further to the sentence and then it was withdrawn then.

Justice Byron R. White: What, Dallas, the Dallas County?

Mr. Leon Douglas: Yes, Your Honor.

The way I remember the record, I think that is right.

Justice William J. Brennan: That isn't what your brief says.

Mr. Leon Douglas: I might have shortened it a little bit your Honor in a thumbnail of summary.

Now, at Texas --

Chief Justice Earl Warren: Well, did the -- the judge found, did he not that the Texas conviction was an unconstitutional conviction?

Mr. Leon Douglas: He said its void, yes Your Honor.

Chief Justice Earl Warren: Beg your pardon?

Mr. Leon Douglas: The trial court said it was void Your Honor.

Chief Justice Earl Warren: Yes.

Well now, did he instruct the jury to that effect?

Mr. Leon Douglas: No, he instructed the jury not to consider.

Chief Justice Earl Warren: Well, isn't there a great difference between instructing them not to consider that charge from advising him that the conviction was void and should not be considered against the defendant under any circumstances?

Mr. Leon Douglas: It would probably be different but most of our judges don't give reasons.

Chief Justice Earl Warren: Beg your pardon?

Mr. Leon Douglas: Most of our judges do not give reasons for making the ruling that they make, they don't say --

Chief Justice Earl Warren: He never told the jury, I understand that it was void in his instructions to them.

Mr. Leon Douglas: No.

He just says, not consider it Your Honor.

Chief Justice Earl Warren: Yes, let it -- that would assumed that the -- that conviction stood but for some reason rather they shouldn't consider it.

Mr. Leon Douglas: He said evidence to the effect of prior convictions in the reading of indictments before you.

You will not consider if I remember it correctly.

Chief Justice Earl Warren: Yes, that's the way I --

Justice William J. Brennan: Well, is this the only one Mr. Douglas.

I'm looking at page 11 of the record.

You are further instructed with the state during the trial of this case, offered evidence that might be considered as tending to show the commission of other offenses by the 15th day of April 1964.

That all said evidence is withdrawn from you and you will not consider such evidence for any purpose whatsoever in arriving at your verdict.

You should not mention or discuss in your deliberation such evidence for that portion of the indictment that you're attempting to charge such further -- such prior offenses.

Is that the only present (Voice Overlap) --

Mr. Leon Douglas: That's the charge, yes.

Justice William J. Brennan: Oh, you are further instructed that the indictment read to you was not evidence and shall not be considered by your sentence.

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: But that's the whole of it?

Mr. Leon Douglas: Yes sir.

Texas has the procedure.

Everything that the appellant or the petitioner's complaining about has a procedure now as -- and even in capital cases where you have a separate hearing on this habitual criminal cases where you read the -- you do not read the prior convictions to the jury.

You read the indictment on the primary offense.

You have penal -- you have the guilt hearing and after that's over then you submit it to the jury.

We have changed that effective January the 1st of 1967.

Justice William J. Brennan: In just capital cases?

Mr. Leon Douglas: In all cases.

When we're up on Spencer, we had it in the felony cases and now in the ordinary felony.

Now we have it all cases, capital, felony and misdemeanors where jail time might be assessed.

Justice William J. Brennan: So what happened here can't happen again or (Voice Overlap)?

Mr. Leon Douglas: It cannot happen again.

Article 3707, there is a case that's not cited in Southwestern (Inaudible) is the Williams case and our court has indicated or shown that the capital cases and all the case now while you have a separate hearing.

We now have a motion to suppress.

If this evidence was not admissible under our system now, we have this motion to suppress and it would not go to the jury since it would not be read under 3707 and Article 2801, while we have a motion to suppress.

Our procedure has been corrected and I think that under the case of McClellan versus U.S. where we had a case came up that this Court denied a read in and where they had courts of inquiry, not of publicity while the legislature changed that and this Court says that we will not reverse this because Texas has corrected its procedure.

And with that, we submit to you that this case should be affirmed.

Justice Byron R. White: What case did you cite a while ago as well as Spencer, was it Michelson or Mickelson or --?

Mr. Leon Douglas: Michelson, M-I-C-H-E-L-S-O-N.

Justice Byron R. White: Is that in your brief?

Mr. Leon Douglas: Your Honor, it is cited in the Spencer case and the --

Justice Byron R. White: Oh, that's alright.

Thank you very much.

Chief Justice Earl Warren: Mr. Gooch.

Rebuttal of Gordon Gooch

Mr. Gordon Gooch: Thank you Mr. Chief Justice.

I have to make several points in a short time.

First, I'd like to say is that Mr. Douglas I believe gave you the order backwards.

The Tennessee convictions were offered first and the judge did not preclude any evidence coming in on the Tennessee convictions that were offered.

The judge specifically said that he would reserve his rulings until the District Attorney offered all evidence that he was going to offer.

And when the district attorney -- this is on page 36 to 41 in the record.

Secondly, obviously then the state was not prevented from making any proof they cared to make in connection with the Tennessee conviction that was admitted in the evidence.

Third, I don't see how they conceivably could make this a life sentence case not only with these convictions but also in the brief they argued because the jury knew that the defendant was in jail, that the jury could take that evidence into consideration and impose a life sentence.

The plain truth is he wasn't even convicted at the time that he was held in jail.

Next, the offer to stipulate the choice that the defendant has to make is -- make these constitutional objections in front of the jury suffer the prejudice are stipulated outside the presence of the jury when the state has the right to require the defendant to put on any evidence that he has about punishment outside the presence of the jury.

But the defendant doesn't have that right, only the state.

We only ask that the odds be evened a little bit.

Secondly, the motion to quash the indictment does not go to striking prior convictions.

It's simply to the form and substance, the content and it does not cover this point in the statute.

It does not cover those points in the cases.

Next, there was an objection to the Dallas conviction.

What they offered first was the Dallas indictment.

The Dallas conviction was objected to.

Next, this can happen again.

This can happen again for the simple reason that even with the two state's trial, the state can still under the present law use these void convictions during the punishment phase of the trial, unless the defendant has some way in advance to prevent them from doing so.

After guilt has been determined and you begin the punishment phase, the indictment is read to the jury and we're right back where we started.

Justice William J. Brennan: But Mr. Gooch, that's a different point really from the one that you're here on in this case, which is, as I understood you in light of the sentence here, there was prejudice and what happened about these other convictions, which entitles your man to a reversal of his -- of this conviction.

Mr. Gordon Gooch: I believe that Mr. Burgett was prejudiced not only on the issue of punishment but also on the issue of guilt (Voice Overlap) --

Justice William J. Brennan: That's the (Voice Overlap) -- in this sentence --

Mr. Gordon Gooch: Yes sir.

Justice William J. Brennan: But I gather this new procedure could go only to the punishment phase, is it not?

Mr. Gordon Gooch: That's true, sir, but he'd still be prejudiced when the jury gives (Voice Overlap) --

Justice William J. Brennan: Well, that's not -- that case isn't here.

Mr. Gordon Gooch: But it --

Justice William J. Brennan: You're here really on prejudice in the conviction itself, aren't you?

Mr. Gordon Gooch: And the punishment since the jury sets the punishment.

Justice William J. Brennan: It will be content if the result here where it would set aside for a new determination of punishment?

Mr. Gordon Gooch: If the Court please, I have to think about that.

I certainly would though better than have Mr. Burgett spend the next ten years of his life with this -- in his way.

Chief Justice Earl Warren: Very well.