BARBER v. PAGE

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Argument of Ira G. Rothgerber, Jr.

Chief Justice Earl Warren: Number 703, Jack Allen Barber, petitioner versus Ray H. Page, Warden.

Mr. Rothgerber.

Mr. Ira G. Rothgerber, Jr.: Mr. Chief Justice and may it please the Court.

This writ reviews the judgment of the Court of Appeals for the Tenth Circuit, affirming denial of habeas corpus to the petitioner who is a prisoner in the Oklahoma Penitentiary.

It presents the Court a difference in attitudes if not an actual conflict between the circuits.

The petitioner and three others were charged by information with robbery with firearms.

The date of the information is August 25, 1961, which was three days following a preliminary hearing to which I will presently refer.

As a result of the information a good many months later, the petitioner was tried separately from his co-defendants and a transcript of the testimony of a co-defendant, Woods, given at a joint preliminary hearing which was held August 22, 1961, three days before the information was read to the jury over the objection of Woods’ -- of petitioner's counsel.

Oklahoma has conceded in its brief that prior to the preliminary hearing, there was “apparently” an agreement between the prosecution and Woods, the co-defendant, and as a result of that apparent agreement, Woods was called by the prosecution at the preliminary hearing and gave testimony inculpating the petitioner.

At the preliminary hearing, both petitioner and Woods were represented by one retained attorney, a gentleman named Mr. Parks.

Woods was called to the stand.

He was admonished by his attorney that he need not to give evidence.

There was a recess in the proceedings.

After the recess, Mr. Woods came back, Mr. Parks came back, withdrew as counsel for Woods and there upon, Woods gave his testimony which was significant in the conviction of petitioner.

At the preliminary hearing, Mr. Parks did not cross-examine petitioner but it is only fair to say that petitioner was cross-examined by an attorney for another of those at that time jointly accused.

I will now relate a fact which is set forth in the Appendix to the petitioner's opening brief and which was not before the trial court or the Court of Appeals, but a fact which we ask this Court to notice in its supervisory capacity over United States courts.

On September 7, 1961, September 14, 1961, October 5, 1961 and October 6, 1961, Mr. Parks whom you will remember had withdrawn his appearance on behalf of Woods in the State Court preliminary hearing appeared as Mr. Woods' counsel in proceedings in the United States District Court in the northern district of Oklahoma, and on the last date mentioned, October 6, 1961, a sentence was imposed on Mr. Woods.

He was there upon taken to the penitentiary in Texarkana, Texas.

And on March 5, 1962 several months later, petitioner's trial commenced in the District Court in Tulsa, Oklahoma, Mr. Parks was then representing the petitioner.

The state offered a transcript of Woods' testimony at the preliminary hearing.

Mr. Parks objected.

Mr. Parks in support of this objection made an offer of proof in which he stated that in fact, Mr. Woods was confined in the state penitentiary -- in federal penitentiary at Texarkana, Texas which is 200 and 300 miles from Tulsa.

The objection was overruled.

The transcript was read to the jury which brought in a verdict of guilty.

The petitioner appealed to the Oklahoma Court of Criminal Appeals which affirmed.

He then sought habeas corpus and after an intermediate step in which the Court of Appeals was not satisfied, he had exhausted his state remedies, it was determined that he had.

The Court of Appeals however has stated that there is no denial of the right of confrontation in this case.

This is the principal issue here, was the petitioner denied his right of confrontation.

Oklahoma asserts and this poses another important issue that by his inaction in failing to examine Woods at the preliminary hearing, Mr. Parks on behalf of petitioner effectively waived the right of confrontation.

Finally, we have what is probably a peripheral issue that naturally flows from this sequence of events and that is whether or not Mr. Parks effectively represented the petitioner in his trial.

Judge Aldrich who is sitting with the Tenth Circuit by special designation dissented from the opinion.

Oklahoma's argument which I'm sure you will hear presently is that Mr. Parks' failure to cross-examine Woods at the preliminary hearing was a tactical decision and Oklahoma uses these words to characterize it.

It was a “decision to be ineffective”.

Oklahoma urges that a decision to be ineffective is binding on the petitioner as a waiver of the right of confrontation.

In Pointer against Texas, the Court coupled the right to confrontation with the right to cross-examination saying that they are essential and fundamental requirements for the kind of fair trial which is country's constitutional goal.

In Pointer against Texas, Mr. Pointer had no counsel.

The petitioner's counsel at no time either at the preliminary hearing or any other time, cross-examined the co-defendant, of course he couldn't because the co-defendant was not at the trial.

The Court of Appeals said, it is not necessary for a state to go to a federal court and seek a writ of habeas corpus ad testificandum which the Court of Appeals characterized as a quasi writ and have it denied prior to introducing a transcript of the testimony at a preliminary hearing.

The Court of Appeals while not using the word waiver, it characterized Mr. Parks' inaction, his failure to cross-examine Woods at the preliminary hearing as though it were wavered.

In Pointer against Texas, the Court said that nothing in the case was contrary to the old case of Mattox against the United States.

In Mattox, the transcript which was read had been the subject of thorough and grilling cross-examination at the first trial of Mattox.

We come then to the difference in attitude, what is the burden to be cast on the prosecution, whether it is a state court or a federal prosecution, in bringing forth a witness who is easily attainable.

Oklahoma has said in its brief that they were not referred to any statute or any case law which indicated that the state had any burden or that it even was possible for the states to produce a federal prisoner.

We have, in our reply brief, referred the Court to the statute which provides for federal writs of habeas corpus ad prosequendum.

We did not in either brief called the court's attention Ponzi against Fessenden, 258 US 254 in which the Court recognized that the Attorney General of the United States has the power, the authority to exercise the comity which is inherent in two competing legal systems which compete in the same jurisdiction.

The square collision, if it is that, between the Circuits is best found in a decision of the Third Circuit, Government of the Virgin Islands versus Aquino which held that as a predicate to introduction of the testimony of the absent witness unavailable, they must be shown both to satisfy the constitutional requirement of confrontation and the evidentiary requirement of confrontation.

In Virgin Islands against Aquino, there was a rape prosecution.

The prosecutrix was a stewardess on a Norwegian ship as I recall it and at the trial, her testimony at the preliminary hearing was offered.

It was submitted in the Court of Appeals, the Third Circuit reversed and laid down this test which I submit is contrary to the casual test [Inaudible] indeed and adopted by the Court of Appeals, the Tenth Circuit.

This is what the Court of Appeals of the Third Circuit said.

“The reasonableness of efforts to secure attendance in the Virgin Islands of a witness whether he is in another state of the union or in a foreign country must be judged of the standards of modern air travel and not of the sailing vessel or even the steam ship where the liberty of the defendant is at stake, the government which prosecutes him may not secure the benefit of incriminating testimony against him unless it shows its genuine and bona fide effort to secure the attendance of the witness.

An effort which expires of the shoreline of Virgin Islands cannot be said to have inherently in it.

The proof of its genuineness and its bona fide character.

No effort can be deemed genuine and bona fide which is not reasonable in its extent and reasonableness must be judged not by artificial boundaries, but by limitations of time and distance.”

The Court of Appeals for the Fifth Circuit --

Justice Potter Stewart: What citation of that case that Third Circuit --

Mr. Ira G. Rothgerber, Jr.: Virgin Islands against Aquino Your Honor is 378 F.2nd 540.

It's a 1967 case and it is cited in our brief.

Justice Potter Stewart: Thank you.

Mr. Ira G. Rothgerber, Jr.: The Fifth Circuit also has differed from the Tenth Circuit's casual test in Holman against Washington which is also referred to in our brief, it is cited 364 F.2nd 618, where the Court took note that compulsory process is not the only method of securing attendance of witnesses and said that the right of confrontation is too valuable right to be sacrificed for the convenience of a party.

Oklahoma has replied relying principally on the Ninth Circuit case of Wilson against Gray, 345 F.2nd 287 that the lawyer is the manager of the case.

He makes the tactical determination.

The tactical determination is binding upon his client.

Parks' conduct in his representation of petitioner so taints that representation that it is doubtful that under the standards of Brookhart against Janis, he effectively could waive the petitioner's right of confrontation.

Justice Abe Fortas: Well, are you conceding that if there had been vigorous cross-examination at the preliminary hearing, the transcript would have been proper -- pro se the transcript and evidence at the subsequent trial?

Mr. Ira G. Rothgerber, Jr.: No Your Honor.

I do not concede that.

I do not think that that is a proper concession to make in the light of the recent decisions of this Court concerning confrontation.

Justice Abe Fortas: Well, Mattox was a different case.

That's the old Mattox which was Mattox against United States.

Mr. Ira G. Rothgerber, Jr.: Yes Your Honor.

There are two Mattox.

Justice Abe Fortas: -- the case where there had been a trial.

Mr. Ira G. Rothgerber, Jr.: Yes Your Honor.

Justice Abe Fortas: And then the two witnesses died and there was later a retrial.

Mr. Ira G. Rothgerber, Jr.: That is correct Your Honor.

Justice Abe Fortas: And I suppose that it's arguable in a way that the cross-examination at a trial is one thing, cross-examination at a preliminary examination is quite a different thing and that they are not substitutable one for the other in terms of the due process standard?

Mr. Ira G. Rothgerber, Jr.: Indeed Your Honor, the Court of Appeals for the Third Circuit makes this very distinction in Government of Virgin Islands against Aquino because at a preliminary hearing, particularly here where the preliminary hearing preceded the date of information by three days so that the counsel even assuming that he were counsel only for the petitioner, he doesn't know the charges that are pending against his petitioner and all of us who are lawyers know that at a preliminary hearing of the standard is only one of showing probable cause and it isn't very prudent representation of one's client to enlarge upon the prosecution state -- prosecution's case which is always a possibility.

Justice Abe Fortas: That's why I have so much -- I have some difficulty in understanding why you make such a point of Mr. -- this lawyer's alleged lack of faithful representation of his client because even if he were the most deciduous and rigorous lawyer in the world, it might very well be that at a preliminary examination, he might decide to withhold across --

Mr. Ira G. Rothgerber, Jr.: That is correct Your Honor --

Justice Abe Fortas: -- not be prepared, very likely would not be prepared for a cross-examination?

Mr. Ira G. Rothgerber, Jr.: That is quite correct Your Honor.

As Your Honor will recall, I said that the lawyer's lack of faith if we can call it that, really is a peripheral issue.

It is peripheral in the sense that any lawyer, who has this divided loyalty, effectively waives the right of confrontation.

Oklahoma urges that this was a waiver and the Court of Appeals for the Tenth Circuit while not characterizing it with the word waiver in substance held that it was and that is the only reason that I have mentioned in --

Unknown Speaker: [Inaudible]

Mr. Ira G. Rothgerber, Jr.: For information.

Unknown Speaker: [Inaudible]

Mr. Ira G. Rothgerber, Jr.: Well of course, if the Court reaches that conclusion then there is no necessity for reaching the other points.

Unknown Speaker: [Inaudible]

Mr. Ira G. Rothgerber, Jr.: But it certainly as Your Honor said, it is certainly arguable and it's been argued by the authorities including Dean Wigmor that the right of confrontation is a bifurcated right with bifurcated advantages to the defendant.

The first being the advantage of inquiry, the second being the advantage of having the jury observe demeanor.

Well, of course assuming that Mattox is still a good law, one jury at least did observe the demeanor with cross-examination of trial.

At a preliminary hearing, there is no trier of the facts to observe demeanor and in the Government of Virgin Islands against Aquino, the Court of Appeals for the Third Circuit draws this distinction very vividly.

Justice Thurgood Marshall: Mr. Rothgerber, assuming that both the Barber and his lawyer intelligently waived in such language at the preliminary hearing, wouldn't your argument still be the same?

Mr. Ira G. Rothgerber, Jr.: Yes it would Your Honor.

Indeed, it would because as I hope --

Justice Byron R. White: -- they only purported them to waive cross-examination at the preliminary hearing?

Mr. Ira G. Rothgerber, Jr.: Yes, yes because I think that's all they did, if they did that.

But if Mr. Barber did it, certainly, his attorney just didn't cross-examine.

Now, one of the very things that an experienced lawyer would do at preliminary hearing--

Justice Byron R. White: That's my point.

I don't see why it's important as to whether or not the lawyer did it intelligently or stupidly or deliberately.

Mr. Ira G. Rothgerber, Jr.: Well, I think that's quite correct Your Honor.

The question is not what the lawyer did, it's really what the client understood was being done and --

Justice Byron R. White: But it's also -- it's a question of whether -- whatever it could have any relevance?

Mr. Ira G. Rothgerber, Jr.: That is correct Your Honor.

Of course, the position which would be best from the standpoint of petitioner here and which would have the best result for him would be if the Court were to say that under no circumstances is the transcript of testimony at a preliminary hearing admissible at trial.

Now that is the very best result we could expect to achieve.

There are some secondary results however which might be achieved and might flow because of the waiver question which is so strongly urged by Oklahoma in its answer brief.

The essence of course is, what is the requirement upon a state to introduce any former testimony.

As has been pointed out by Mr. Justice Fortas, perhaps the rule can be if there were a former full pledged trial and in Pointer against Texas, the Court talked about a full pledged hearing and I think the only reason that we tend to dwell on the nature of the preliminary hearing is that that's just what the problem was in Pointer against Texas.

That was a preliminary hearing case.

But if the Court were to say no testimony of a preliminary hearing -- at a preliminary hearing may ever be introduced then of course we have an ideal result from Mr. Barber's point of view.

In Douglas against Alabama which was decided the same day as Pointer against Texas, the Court talked about waiver in that case also and restricted its discussion there to the circumstances of that case.

This is a third possible result for petitioner here and its one of the reasons as I talked, as I did about his counsel's conduct and that is to restrict the decision here to the circumstance of this case and say that in all of the circumstances of this case there was not an untainted waiver of petitioner's right of confrontation.

Unless there are questions Your Honor, I would like to save some time for rebuttal.

Chief Justice Earl Warren: Mr. Owens.

Argument of Charles L. Owens

Mr. Charles L. Owens: Mr. Chief Justice and may it please the Court.

I would like to make just two observations at the onset as two of counsel's observations concerning certain language in our brief.

He first of all states that the respondent concedes that after -- that prior to the time that Woods testified at preliminary hearing, there was an agreement of some sort made between the prosecution and Woods that Woods would testify for the state in return for something we don't know exactly what.

We don't concede this.

We point this out.

We just state this as a statement of facts to use the word concede seems to indicate that we well to intimate that there is something inherently wrong with this.

I suggest that there is not.

It's a very common occurrence for the prosecution and for the government or the state to make an agreement with a co-defendant to testify, indicates that that's the only way possible that you can have a prosecution.

So we don't -- we suggest that there's nothing wrong with this.

Secondly, we perhaps used some inappropriate language in our brief as the counsel notes that we say that it could be at parts where it was ineffective then it's because he chose to be ineffective.

We meant of course that if this could be construed to be ineffective, his waiver of the cross-examination then of course he was ineffective.

Also at the outset, I would like to make some concessions.

First of all, this is a rather unique question as this Court realizes, otherwise I would not be here I'm sure, not that the question of confrontation of witnesses as unique with this Court.

You had it before you on several occasions and not this precise question.

At first glance, I think this seems rather strange that this is a rather unique question because the right of confrontation is so very basic and fundamental.

But I think when you consider it briefly, you'll understand why, I understand why and that's because the states and the government, prosecutions for the state and the United States government recognize that this is a very basic and fundamental right.

Consequently there are very few times in which the occasion arises that an accused will not be confronted at trial by the face-to-face by the witnesses against him.

We have --

Justice Thurgood Marshall: Mr. Owens.

Mr. Charles L. Owens: Yes sir.

Justice Thurgood Marshall: You agree in -- I wonder if I'm correct on this.

It's your position that he waived the right to cross-examination at the preliminary hearing?

Mr. Charles L. Owens: Yes sir.

That's my --

Justice Thurgood Marshall: And that was binding on him throughout the trial?

Mr. Charles L. Owens: I believe so Your Honor.

Justice Thurgood Marshall: Well, if that's true, suppose you had produced this witness and he testified in open court.

Mr. Charles L. Owens: At trial.

Justice Thurgood Marshall: Then is it your position that the lawyer could cross-examine him?

Mr. Charles L. Owens: You mean at trial?

Justice Thurgood Marshall: Yes sir.

Mr. Charles L. Owens: Yes certainly, he could cross-examine there.

Justice Thurgood Marshall: You couldn't stop him, could you?

Mr. Charles L. Owens: No sir.

Justice Thurgood Marshall: Well then he didn't waive, did he?

Mr. Charles L. Owens: Yes, I think preliminary hearing and trial are two different things.

Justice Thurgood Marshall: I am saying he waived, he waived the cross-examination at the preliminary trial of this witness and you produced that witness at the trial itself.

You could not stop him from examination.

Mr. Charles L. Owens: Certainly not.

Justice Thurgood Marshall: So his waiver did not carry over to the trial itself, did it?

Mr. Charles L. Owens: I suggest that it did.

Justice Thurgood Marshall: Well, I'm lost.

Mr. Charles L. Owens: I think in Oklahoma at least, under the decisions of our court of criminal appeals in this area where they have held before in similar cases that where witnesses aren't available at the trial and he has been available at preliminary hearing where the counsel has had a full and adequate opportunity to cross-examine and he is unavailable at trial, then the transcript is admissible.

I think a counsel in Oklahoma goes into preliminary hearing.

He is presumed to know the rules of the -- the rulings of this Court of Criminal Appeals.

I think he --

Justice Thurgood Marshall: And that ruling includes he is presumed to know that that witness won't be available?

Mr. Charles L. Owens: No.

I think he is--

Justice Thurgood Marshall: Rather he'd assume he will be available, wouldn't he?

Mr. Charles L. Owens: I think he is presumed to take the calculated risk of either cross-examining him or risking the possibility that this witness might die or for some other reason be unavailable at trial.

I think he on the one hand from my experience on both sides of the counsel table, on the one hand, he, as Mr. Justice Fortas said, suggested, that it may not wish to show his hand at preliminary hearing and he could easily show his hand to his questions on cross-examination.

He could indicate what his defense later would be at trial.

Many defense counsel do not wish to ask any questions at the preliminary hearing, I agree with this.

On the other hand, he takes the calculated risk in Oklahoma.

He has it up to this point that perhaps this witness would not be available.

He has got to choose or decide at that point whether he will cross-examine or simply remain silent.

I think --

Chief Justice Earl Warren: When you say unavailable Mr. Owens, I suppose you mean unavailable without fault on the part of the prosecution?

Mr. Charles L. Owens: Yes, certainly.

Chief Justice Earl Warren: Would you mind telling me what the sequence of events that were here?

What happened to Mr. Woods in this particular case?

Mr. Charles L. Owens: I really don't know for sure, Your Honor.

The record, there is a little blank in there as you've probably seen.

Chief Justice Earl Warren: Was he convicted?

Mr. Charles L. Owens: He was -- apparently, an agreement was reached between the prosecution that he would not be prosecuted in the state court in return for his testimony.

He was prosecuted later in the federal court for some other crime.

Chief Justice Earl Warren: Did the state -- did the state inform this petitioner that it had made that agreement and was going to consent to taking him out of the state?

Mr. Charles L. Owens: The record again is silent there.

I simply don't know.

Chief Justice Earl Warren: There's nothing to indicate that they did do that, isn't it?

Mr. Charles L. Owens: No sir.

There is none.

Chief Justice Earl Warren: When did he go to Texas?

Mr. Charles L. Owens: I have set out the date I believe in my brief between the preliminary examination and the time that the defendant, petitioner here came on for trial.

Chief Justice Earl Warren: Yes.

Well, one was August and one was March of the next year.

Mr. Charles L. Owens: Yes.

Chief Justice Earl Warren: But when between there did they relinquish him to the federal government?

Mr. Charles L. Owens: I don't believe we have anything in the record to show that exact date.

I could be in error but I don't recall this.

I'm sure I did not set it out in my brief.

I didn't find it there.

Chief Justice Earl Warren: And you think that that might be important?

Mr. Charles L. Owens: You mean the length of time after the preliminary hearing that they --

Chief Justice Earl Warren: He was available to the prosecution?

Mr. Charles L. Owens: It could be.

Chief Justice Earl Warren: There's nothing in the record to show --

Mr. Charles L. Owens: I believe not sir.

First of all -- as I read the counsel's brief and as I listened to his argument today, I think he suggested four basic points.

I think first of all, he suggests that the case of Pointer versus Texas should be strictly construed, I think in favor of the accused.

I think he suggests that an accused is entitled to be confronted by his witnesses face-to-face at trial and that is where we part ways.

I think to use -- to make that interpretation of Pointer would be to make meaningless the words of Mr. Justice Black who spoke for this Court in Pointer.

Mr. Justice Black said this and I quote from the Pointer case, “The case before us would be quite different.

It would be a quite different one had Phillips statement and then taken out of full pledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.”

I fail to see how we can interpret Pointer to mean that this witness must appear later in trial.

Otherwise, this language would be meaningless.

The complete and adequate opportunity to cross-examine I think is all that Pointer requires, that's our case.

This was a full and complete preliminary hearing.

In fact, this witness Woods was, the record shows, cross-examined by counsel representing one of the other co-defendants.

Parks said, the opportunity to do this and as I mentioned, suggested a minute ago, for some reason, he did not.

I'm not sure whether --

Chief Justice Earl Warren: May I ask, how often in practice do lawyers examine the witnesses for the prosecution at preliminary examinations?

Is it the customary thing for them to cross-examine or not?

Mr. Charles L. Owens: I think ti probably is about 50/50, Your Honor from experience and from my practice, I think I'd exercise the right about 50% of the time.

It depends --

Chief Justice Earl Warren: I'm just wondering if we decided with you, would that mean that in every case where there was some cross-examination that the prosecution would say to the witness, you're free to go any place you want and if you're not available at the time of trial, we will read your testimony.

Mr. Charles L. Owens: No.

I think if this can be shown this is the exception.

The prosecution cannot --

Chief Justice Earl Warren: Why would this be the exception to that?

Mr. Charles L. Owens: Certainly, the prosecution I suggest could not do anything to intentionally make the witness unavailable.

He must be accidentally unavailable or unfortunately unavailable.

Chief Justice Earl Warren: Here didn't they do something to make him unavailable?

He was the defendant -- he was a defendant in this case.

They used him at the preliminary examination evidently with the intention of using his testimony at the trial.

They had control of him as a defendant and then some time between that time and the time of the trial, they released him to the federal government to try him over in another place where they could just as well have held in there to give his testimony in the court and thus -- and they thus made him unavailable to the court?

Mr. Charles L. Owens: I'm not sure Mr. Chief Justice that they released him to the federal government.

I think --

Chief Justice Earl Warren: Well, how would he get over there?

Mr. Charles L. Owens: I think simply -- if this is a typical case, it would be one in which the prosecution made an agreement with him that he would testify for the state in return for which they would not prosecute him or would work out some recommended sentence.

In this case, evidently in return for the promise not to prosecute at that stage, they would release him until trial and I think probably this is what happened here.

They released him and in the meantime, he was wanted by the federal officials for violations of some federal law.

Chief Justice Earl Warren: A crime that he'd committed before this one?

Mr. Charles L. Owens: I think so.

Again, I --

Chief Justice Earl Warren: Well, isn't that giving him away to another jurisdiction so as to make him unavailable?

Mr. Charles L. Owens: No, I think simply releasing him is not --

Justice John M. Harlan: If the narrow point here [Inaudible] without going to the [Inaudible]

Mr. Charles L. Owens: As I was going to point out in my concluding remarks, I think perhaps to be quite candid with the Court, the state's most difficult part of defending this is the fact that the record shows that there was probably no effort made to secure the release from the federal penitentiary.

I don't know why.

I have suggested in our brief that perhaps the prosecutor looked at -- looked to the procedure, looked to the federal statutes and it's not there.

At least I've not been able to find it.

There are certain statutes that deal with the transfer of federal prisoners and so forth which to my way of thinking indicates that the inclusion of one excludes all others.

I've forgotten the Latin phrase for that, but there is a procedure where the Attorney General due to his directive presence may release a federal prisoner to any institution, including a state institution and they very often do this.

They release federal prisoners to serve out certain portions of state sentences or to be prosecuted in the state courts.

But I have not run across a statute or a case in point where they have released federal prisoners to -- for the purpose of testifying against another in the state proceeding.

Chief Justice Earl Warren: Isn't that another added factor to the one that Justice Harlan raised in that the state knew that this man had himself committed this crime because he confessed and implicated this petitioner, did he not?

Mr. Charles L. Owens: Yes.

Chief Justice Earl Warren: And when they released him, they knew that they were going to use his testimony?

Mr. Charles L. Owens: I don't think you can gather that from the record sir.

Chief Justice Earl Warren: Well, why not?

They put him on the preliminary and they used his testimony at the trial in absence of --

Mr. Charles L. Owens: I think we must assume that they had best intentions of calling him at trial, but in the meantime, he was arrested by federal officials and convicted and sent to prison, federal prison.

I don't think that we can or should -- I don't think the Court should indulge in the conjecture that the state intended to -- that he would not be there at trial.

I think the --

Chief Justice Earl Warren: Well, it seems to me rather strange and not in keeping with the practice of Courts for them to just take his testimony at the preliminary examination and then release him without the intention of using his testimony at the time of the trial.

Mr. Charles L. Owens: Perhaps I'm basing my answer on personal experience, but this is often done in Oklahoma --

Chief Justice Earl Warren: But that is -- that isn't the normal practice, is it of any --

Mr. Charles L. Owens: Yes and I think this is usually one of the concessions.

He -- this man is anxious to get out of the jail.

In Oklahoma, let me point out, robbery with firearms which this was is a capital offense, no matter if any one's killed.

Chief Justice Earl Warren: Capital offense?

Mr. Charles L. Owens: Yes.

A bail may be denied, often is.

It's punishable by death in the electric chair.

This is what he was charged with.

Chief Justice Earl Warren: Yes.

Mr. Charles L. Owens: And very often, one of the concessions made by the state is the agreement that we will let you out pending the trial.

You'll be free and we'll call you when this case is set out for trial and you'll testify then.

Chief Justice Earl Warren: In the Capital case, is that practice in existence in Oklahoma where it's clear that the man himself committed the crime.

Is it the practice to bail him in in the Capital case?

Mr. Charles L. Owens: It's not a practice, no.

Chief Justice Earl Warren: No.

Well, I thought you said it was.

Mr. Charles L. Owens: No, I mean it's a practice when one of these arrangements is worked out between an accused and the state, one of the concessions that the state usually makes is to release him pending trial.

Chief Justice Earl Warren: And why did they make that -- why did they make that concession?

Mr. Charles L. Owens: In return for his testimony.

Chief Justice Earl Warren: Alright.

Then they did intend to use his testimony at the trial?

Mr. Charles L. Owens: Yes.

Chief Justice Earl Warren: Alright.

Mr. Charles L. Owens: I agree with this.

Chief Justice Earl Warren: Alright, and then why didn't they retain possession over him until the trial --

Mr. Charles L. Owens: I think --

Chief Justice Earl Warren: -- instead of hand him over to the federal government?

Mr. Charles L. Owens: I think as far as the state knew at the time they did retain possession.

Chief Justice Earl Warren: Is that in the record?

Mr. Charles L. Owens: No.

It simply is not.

We just have to reason I think in the case like this, I don't think we should presume that the state did wrong.

I think we should presume and make the other presumption.

Justice Thurgood Marshall: Mr. Owens, assuming that Parks -- that the other fellow did not testify in the preliminary hearing and assuming he was latter to pick up and put in the several penitentiary in Texarkana, would I be fair in assuming that under those circumstances, you'd find some way to get him back to testify?

Mr. Charles L. Owens: No.

From my experience, it's been very hard.

I -- maybe impossible to get --

Justice Thurgood Marshall: Well, let me ask you this.

In your experience, did you make an effort to get him back?

Mr. Charles L. Owens: Well, I've never been on the prosecution side at trial.

I've been on the --

Justice Thurgood Marshall: Well, where is this experience you're talking about where you say it's so difficult to get him back?

Mr. Charles L. Owens: Well, I've been on the defense side at the trial.

Justice Thurgood Marshall: Well, I'm talking about the prosecution side.

Mr. Charles L. Owens: I've never been a prosecutor in a trial.

I've read many records and I draw on that.

Justice Thurgood Marshall: Wouldn't you assume that they would make an effort to get in the case I gave you?

And to be fair with, if you answer that yes, I may ask why it wasn't done here?

Mr. Charles L. Owens: I don't know.

Likely, I think probably the reasonable thing to assume is that this prosecutor knew that he could not get him out of the federal penitentiary.

Probably in the hypothetical that you suggest that he'd probably would not have that.

Chief Justice Earl Warren: Isn't there a proceeding for doing that, a legal proceeding for getting him out?

Mr. Charles L. Owens: No.

As I said a minute ago, I have looked at the statutes and I'm not able to find one there.

There is --

Chief Justice Earl Warren: Not able to find that a federal prisoner can be taken to a state as a witness?

Mr. Charles L. Owens: No.

The case is under this one section of Title XVII that I've pointed out in our brief.

They are all cases where the federal authorities release federal prisoners from the federal penitentiaries to a state to serve a portion of the some unexpired state sentence, that kind of thing in the prisoner complains that you can't do that to me and the case is on hold that this is a matter of comity and you can't complain about where you serve your sentence.

But --

Chief Justice Earl Warren: Isn't there such thing as habeas corpus ad testificandum?

Mr. Charles L. Owens: Testificandum?

I think so but I've not seen one --

Chief Justice Earl Warren: What does that mean?

What kind of a writ is that and what's it for?

Mr. Charles L. Owens: It means to bring the person before the court to testify.

Chief Justice Earl Warren: Yes and that's in the federal code, isn't it?

Mr. Charles L. Owens: But it's from my review of the decisions on this point, it merely to bring a prisoner from a federal penitentiary or somewhere to testify before this federal court who wants -- before whom the writ is pending.

Not to bring him before that court to send him to a state court, I have not found a case like that.

Apparently, the counsel has not --

Justice Byron R. White: [Inaudible] federal court.

So we have a trial of a federal court and the defendant wants to get the testimony or the prosecution was to get the testimony of some prisoner who is in a state prison and would you think that you can subpoena that witness --

Mr. Charles L. Owens: To testify in a federal prosecution?

Justice Byron R. White: Hmm...

Mr. Charles L. Owens: Yes.

I think a federal court could and has I think in the case that counsel points out, a California or New York court sends a writ of habeas corpus ad prosequendum to New York Court or vice versa --

Justice Byron R. White: Now, how about -- why wouldn't be reverse work?

Why would you suggest that reverse couldn't work if there is a criminal trial in the state court and even the defense of the prosecution was to get to the testimony of a witness who is been held in a federal prison --

Mr. Charles L. Owens: I think --

Justice Byron R. White: Why would you suggest that United States wouldn't have to honor some descent -- some kind of a proper procedure?

Mr. Charles L. Owens: Perhaps it might have to.

I haven't seen a case.

The cases I've seen were from -- were the ones in which a federal court in aid of its own jurisdiction obtained a witness to testify before it and not to testify before some other court, perhaps he could.

I don't know but I don't find a case like this and I searched diligently for one.

Justice Byron R. White: Well of course, if the state couldn't have got him even if they tried in fact if they try it isn't so significant – that they didn't tried it is so significant?

Mr. Charles L. Owens: That is my point, yes sir.

I would like to address myself to the second contention of counsel as I read his brief and as I listened to his argument and that is that counsel cannot waive his right of confrontation for his client.

And I suggest in our brief that this is not like some rights that counsel cannot waive.

This is more in the nature of a tactical decision on the part of the counsel as the manager of his client's lawsuit.

I think the very reason that an accused must have counsel is the reason that he must exercise certain decisions as this, whether to cross-examine a witness or things in that nature are purely tactical.

As I suggested before, his strategy in this particular case maybe to not cross-examine because he does not want to show his hand at that stage of the proceedings.

I don't think the defendant can later complain that he didn't personally authorize his attorney to waive the right of confrontation.

To indulge in this reasoning would be to make any criminal prosecution endless.

There will always be a question of, if counsel have done this or have not done this at trial, perhaps, that would have been a different result, but this is not the test of effective counsel which the counsel also raises here.

The test is not whether by hindsight, we can examine the record and conclude that a different procedure might have resulted and brought about a different result, a more favorable result.

Again, I think the very reason that he is entitled to counsel to represent him at every stage of the criminal process is the reason that the same counsel must be given the right to make certain waivers or to exercise his discretion as to tactics.

I would suggest in conclusion that this Court has stated on occasion that certainly, rights such as the right of confrontation of witnesses is a basic right, but you have also stated and I'd like to quote a certain language from the case of Mattox versus United States which is the case that is cited by Mr. Justice Black in the Pointer case in which he said that general rules of law of this kind are ever beneficent in their operation and valuable to the accused must occasionally give way to considerations of public policy and the necessities of the case.

The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit maybe preserved to the accused.

I suggest that this was one of those cases where the petitioner was denied face-to-face confrontation at the trial, but he had been once given confrontation at a preliminary hearing where he had been represented by the counsel who had been afforded the opportunity to cross-examine.

I think this is all that the Pointer requires and I think Pointer should be limited to its particular facts.

If there are no questions, that's all my presentation.

Thank you.

Chief Justice Earl Warren: Mr. Rothgerber.

Rebuttal of Ira G. Rothgerber, Jr.

Mr. Ira G. Rothgerber, Jr.: Mr. Chief Justice and may it please the Court.

Mr. Chief Justice inquired as to the chronology of events concerning the turnover of Mr. Woods to the federal government.

The chronology appears very clearly in Appendix A to the petitioner's brief in the form of a letter from the clerk reciting what happened, including the date on October 6, 1961 when he was sentenced.

Oklahoma itself has foreseen the danger of the interplay between prosecution authorities and one defendant with the resultant danger that somebody might be sent away and made unavailable.

The case is Caide (ph) against State, 83 F.2nd 605 from which we quote at page 16 of our opening brief.

Oklahoma recognized that there must be a showing of diligence and as Mr. Justice Harlan said, isn't the narrow question here, assuming for the moment that the Court does not rule that at no time can transcript of a preliminary hearing be introduced, then the next question becomes as suggested, what is the degree of diligence required of the prosecution?

In summary, I suggest the rule of diligence is not the casual rule about the Tenth Circuit but at least some diligence as commanded by the Third Circuit in the Government of Virgin Islands against Aquino.

Thank you.

Chief Justice Earl Warren: You're welcome.

We'll recess now.