BENTON v. MARYLAND

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Argument of M. Michael Cramer

Chief Justice Earl Warren: Number 201, John Dalmer Benton, petitioner, versus Maryland.

Mr. Cramer.

Mr. M. Michael Cramer: Thank you, sir.

Mr. Chief Justice and may it please the Court.

This case is before the Court today on a petition for writ of certiorari to the Maryland Court of Appeals.

There are two issues in the case.

Is Double Jeopardy Clause of the Fifth Amendment applicable to the states to the Fourteenth Amendment and, if so, was the petitioner twice put in jeopardy in this case?

The facts of the case, Your Honor, are these.

The State of Maryland, with jurisdiction to do so, indicted the petitioner for three alleged violations of the Maryland Criminal Code: burglary, common law housebreaking, and larceny.

The jury returned an acquittal on the larceny charge.

The state dropped the housebreaking charge.

Jury also convicted the petitioner on the burglary case.

The petitioner then appealed the burglary case to the Maryland Court of Appeals.

And, the Maryland Court of Appeals remanded petitioner's conviction, the only thing before it, to the Trial Court.

So that, the petitioner could elect to have the conviction set aside.

The remand was made on the basis of Schowgurow versus State which held that Maryland's constitutional provision requiring all jurors to profess a belief in God or swear a belief in God was in violation of the First Amendment of the federal constitution.

Petitioner went to the Trial Court again.

He was indicted again for burglary and common law housebreaking.

And, because he sought to exercise his First Amendment rights, he was also indicted for larceny in the second case.

In the first case, he was sentenced to 10 years imprisonment.

In the second case, he was convicted this time of both burglary and larceny.

Again, the state dismissed the housebreaking charge.

And, as a result of the second trial, the trial court imposed a sentence of 15 years for burglary, 5 years for larceny, and these terms to be served concurrently.

Prior to the second trial, the petitioner dully entered his objection on a plea of all the fights acquit, but the prosecutor argued to the trial court that the petitioner had to make an election.

Either he could allow the burglary conviction to stand or else, if he voided the burglary conviction, he recreated the indictment against him and could be tried on all charges.

They were prosecuted against him in the original indictment.

Justice William J. Brennan: But you said he was re-indicted.

Mr. M. Michael Cramer: He was, Your Honor.

Justice William J. Brennan: So, he wasn't tried under the original indictment.

That was void, wasn't it, under the Schowgurow case?

Mr. M. Michael Cramer: The original indictment had a fault in it, yes, Your Honor.

Justice William J. Brennan: So, he was tried under new original indictment, wasn't he?

Mr. M. Michael Cramer: That's correct, sir.

Justice William J. Brennan: Instantly, are you raising a double jeopardy question only as to the larceny conviction?

Mr. M. Michael Cramer: We feel that the larceny conviction was such an unfair -- retrial of larceny was such an unfair procedure that this vitiated both convictions, Your Honor.

Justice William J. Brennan: That does not -- but, you're not -- I gather, you're not arguing that the second burglary conviction has to be set aside on double jeopardy grounds.

Mr. M. Michael Cramer: We feel that it should, too, Your Honor.

Justice William J. Brennan: Yes, but because you say it was infected by the trial in the larceny count.

Mr. M. Michael Cramer: And because, also, of the increased penalty in the second trial, Your Honor.

Justice William J. Brennan: Is that a double jeopardy question?

Mr. M. Michael Cramer: I believe so, Your Honor.

And, we rely upon a decision of the Fourth Circuit on that point.

Justice Byron R. White: Did you raise that here in your petition for cert?

Mr. M. Michael Cramer: In this case, yes, Your Honor.

Justice Byron R. White: Did you raise it in the State Court?

Mr. M. Michael Cramer: No, Your Honor.

That is --

Justice Byron R. White: You never made a decision on that in the State Court.

Mr. M. Michael Cramer: No, sir.

But, the State of Maryland has decided that Patton versus North Carolina is inapplicable to it, the increased punishment.

Justice Potter Stewart: Your certiorari application in the -- it's not in the appendix, but it was former popus, I guess.

Mr. M. Michael Cramer: Yes, sir.

Justice Potter Stewart: I don't seem to have it.

I'd understood you had not raised this question of increased punishment explicitly in your -- in the certiorari petition.

Mr. M. Michael Cramer: I'm sorry, Your Honor, but I believe that it was.

Justice Potter Stewart: Well, I --

Mr. M. Michael Cramer: It was not raised well.

It is interesting to note that the prosecutor believed --

Justice Hugo L. Black: May I ask --

Mr. M. Michael Cramer: -- yes, sir?

Justice Hugo L. Black: -- your opinion on page three of your petition, your second punishment was, “if so, was a petition that tries to put in jeopardy on the state.”

Is that what you're referring to?

Mr. M. Michael Cramer: No, sir.

I refer to it being specifically raised on the basis of Patton versus North Carolina, Your Honor, that the second punishment was excessive.

It is interesting to note that the prosecutor set forth to the Trial Court the gambling theory, that is, that the petitioner had to gamble against himself.

The decision or the convictions were then appealed to the Maryland Special Court of Appeals, a Court enacted to have jurisdiction solely of criminal cases in the State of Maryland.

And, the Court of Appeals affirmed both convictions, essentially on the grounds that no jeopardy attached on a prosecution based on a faulty indictment.

If it please the Court, it is the petitioner's position that the Double Jeopardy Clause of the Fifth Amendment is a fundamental principle of liberty and justice and is, therefore, applicable to the states either by incorporation in the Fourteenth Amendment or through the Due Process Clause in the sense that the procedure here employed by the state was violative of basic fairness.

Justice John M. Harlan: Does your contention overruling Palko?

Mr. M. Michael Cramer: No, sir, because I don't believe that Palko sanctioned this type of procedure, sir.

Justice John M. Harlan: Well, it's certainly double jeopardy but it is not carried into the states as such.

Mr. M. Michael Cramer: Your Honor, I respectfully submit that the Court also carefully set out that, in the Palko case, they were deciding only one issue: does the state have a right to appeal?

And, on page 328 of the Court's decision in Palko, I believe that the Court leaves open the question that's come before the Court today in this case.

Of course, the state or -- I'm sorry, sir.

Chief Justice Earl Warren: In what language did it leave it open, if you have it there before you?

Mr. M. Michael Cramer: Yes, sir.

What the answer would have to be if the state were permitted, after a trial free for murder, to try the accused over again or to bring another case against him, we have no occasion to consider.

We deal with the statute before us and with no other.

Justice Hugo L. Black: What was the thing there that they claim was double jeopardy?

Mr. M. Michael Cramer: Appeal by the state.

The State appealed an alleged error in trial.

The case was reversed and a new trial was brought.

Now --

Justice Hugo L. Black: Did he limit it to that holding?

Mr. M. Michael Cramer: Yes, sir.

Of course, it's the respondent's position that the Double Jeopardy Clause does not apply, and they pitch that solely on this Court's decision in Palko versus Connecticut.

But, as I've stated, Your Honors, we are convinced that Palko never sanctioned the type of grossly unfair procedure which was employed by the state in this case.

Justice John M. Harlan: Is that the obvious statement on the increased penalty?

Mr. M. Michael Cramer: Yes, sir.

Justice John M. Harlan: Didn't he -- if he prevails on the charges or the count filed for burglary, it would entitle him to a new trial?

Mr. M. Michael Cramer: I would submit, Your Honor, that would entitle the petitioner to a new trial on the burglary count alone.

Justice William J. Brennan: Why?

Suppose all we had there was the burglary count.

Suppose that's all we had, just the burglary count.

On your Double Jeopardy argument, would you be entitled to a new trial or just to a sentence of not more than 10 years?

Mr. M. Michael Cramer: You mean, Your Honor, had he been prosecuted for larceny and burglary and, in the second trial --

Justice William J. Brennan: Had he been prosecuted only for burglary the second time and got, as he did, 15 instead of 10 years as he did the first time.

Mr. M. Michael Cramer: Yes, sir.

Justice William J. Brennan: And, your Double Jeopardy Argument founded on Patton prevailed.

Mr. M. Michael Cramer: In that case, it would be limited to Patton, yes, sir.

Justice William J. Brennan: And then what would you be entitled, a new trial of the burglary count or only a new sentence?

Mr. M. Michael Cramer: A new sentence, Your Honor.

It is submitted that the State of Maryland in this case did not appear to the federal principle for the application of the Double Jeopardy Clause, and I refer the Court to its decision in United States versus Ball which is the most basic type of decision that can be considered on the issue of double jeopardy.

There, it was held that the double jeopardy attached regardless of the validity of the indictment.

In that indictment in United States versus Ball, was no more invalid than the indictment in the petitioner's case.

We submit, Your Honors, that a folly indictment constitutes no more than an ordinary trial error.

And, since the government is unable to undo an acquittal because of an ordinary trial error, we contend the -- that they should not be able to set aside petitioner's acquittal in this case.

For that reason, we ask the Court to reverse this entire case and remand it for a new trial in the burglary charge alone.

Thank you very much, Your Honor.

Chief Justice Earl Warren: Mr.Borgerding.

Argument of Edward F. Borgerding

Mr. Edward F. Borgerding: Chief Justice Warren and may it please the Court.

The basic question in this case is that the petitioner's selection to be re-indicted by declaring that his original indictment was null and void under Schowgurow and his subsequent conviction constitutes double jeopardy.

It is the state's position that it does not constitute double jeopardy in this case.

Now, as my brother has indicated, Mr. Benton was indicted in Maryland in 1965 of the three counts, as he had indicated, a common law burglary, housebreaking, and the third count was larceny.

He was convicted of the larceny count or, I mean -- excuse me.

He was convicted of the burglary count by jury in neighboring Prince George's County, and the state abandoned the second count, and he was found not guilty as to the larceny count.

He appealed to the Maryland Court of Appeals in September of 1965.

The following month, Maryland -- the Court of Appeals of Maryland handed down the decision in Schowgurow, and so, this question of double jeopardy is involved in the procedural set up, and what did Schowgurow provide as far as the Maryland judicial system was concerned.

Schowgurow held that the provisions of Article 36 of the Maryland Declarations of Rights requiring a belief in God as a qualification for grand jury service or petty jury service was in violation of the Fourteenth Amendment of the United States Constitution.

And, that was predicated because of this Court's decision in Torcaso, the year or two before, in which this Court held that the Maryland requirement that a public official express a belief in God under Article 37 was in violation.

Now, when the Court of Appeals of Maryland reached this decision, it was confronted with, and there's no accurate figures but, a possibly, in the neighborhood it was estimated around, 3,500 indictments throughout the entire judicial system of Maryland that had been indicted by the -- an invalid grand jury, if you please.

Now -- so, therefore, they limit the retroactivity of this decision, Schowgurow, to the cases that had not become final as of the Schowgurow decision.

Now, in order to implement and carryout this, and it was a gigantic proposition that was confronting the judicial system of Maryland at this time, there were several other cases that were decide within three or four days.

One was State versus Madison.

The question in State versus Madison was that an accused -- that any accused that was indicted or convicted by such an improperly constituted grand jury had the right to have the original indictment declared null and void or his case retried without showing actual prejudice.

And now, Your Honors, the question there was, should a member of the so-called excluded class be entitled to raise this point or was it limited only to the included class, to what the persons that did not believe in God?

And, in Madison, the Court, I think, went beyond this Court and held that it applied to both the excluded class and the included class, so that anyone could file and -- in a proper proceeding and set aside his indictment because it was brought back by an invalid constituted grand jury, to which a grand jury that was in violation of the Fourteenth Amendment.

Now, in order to -- and, also, you'll note in that decision they held that the individual did not have to show prejudice.

This was another attempt to protect the rights of the individual.

He had no need to show pric -- that he was prejudiced by this unconstituted -- unconstitutional grand jury.

Then, to cover another point, they had the case of Smith versus State.

These all happen within a period of three or four days, as they implemented this decision.

It was held that there could be an intelligent and knowingly waiver of the defects in an indictment or conviction by such an improperly constituted grand jury.

This meant that someone, if they saw fit, they could waive that constitutionally invalid grand jury.

Then, in -- the fourth case that came up at this time was Hayes versus Wainwright vers -- Hayes and Wainwright versus State.

The question here was, did someone have to raise this point in the lower Court to have it considered by the Court of Appeals of Maryland?

And, the Court of Appeals held that it wasn't necessary that they raise the invalidity of the grand jury in the lower Court.

They all could have benefit of it.

Now, in that framework, the Court of Appeals of Maryland went forth and set up guidelines.

They remanded approximately 221 cases, which is an exact figure form their records, that were pending in the system in the -- before the Appellate Court.

As far as the cases that were indicted, there were some filed in the classification.

They had been indicted, but they had not been tried.

Some have been indicted, had been tried, but not -- had not taken an appeal.

And, other ones would fall in the category that they had been tried and they were acquitted and so, they were out, as far as this constitu -- in illegally constituted grand jury.

Now, these are the guidelines that the Court of Appeals of Maryland set down in their notice to the lower Court.

They said that the accused was to be brought into the trial court with his counsel present to ascertain whether he desires to avail himself of the rif -- relief afforded by the ruling, and/or whether he elects to waive any objections now available to him, under this decision, the four that I've mentioned.

The accused -- second, the accused is to be informed of his right to attack his conviction and of the fact that the Court would vacate the indictment or a conviction if he moved them to do so.

Third, the accused is to be advised that he is subject to re-indictment and trial if he elects not to abide by his present status.

Four, the accused should likewise be advised that if he'd be reconvicted of any new sentence to be imposed, any new sentence to be imposed might be greater or less than the one or ones presently against him within the maximum limits.

Five, the accused is to be told that he can waive any defects in the grand or petty jury which indicted or convicted him, notwithstanding the unlawful composition of that jury.

And, last, if the accused selects to accept the indictment or trial jury as valid and that -- the appeal will proceed to the Court of Appeals in the usual way on the grounds of bear change.

Now, Mr. Benton was brought into the Court in Prince George's County.

He was advised of these rights in the presence of his counsel and he exercised his option to declare his original indictment null and void.

Now --

Chief Justice Earl Warren: Where do you find his position stated in the record?

Mr. Edward F. Borgerding: Your Honor, I would go to the appendix.

It would be in the docket entried.

Chief Justice Earl Warren: Yes, on what page?

I'd just like to get his answer.

Mr. Edward F. Borgerding: It'd be on page 2, Your Honor, at where it says “defendant challenges the array of the grand jury on June 30, 1966.”

Chief Justice Earl Warren: But, I read over on page 4, though, where he says “it is the position of the defendant that the housebreaking and larceny counts, the second and third respectively, of this indictment should be dismissed, should be a bar in jeopardy as in regards to the present prosecution on those counts, and that is our motion.”

Mr. Edward F. Borgerding: Well, that is the original motion, Your Honor, that Mr. Benton made in the lower Court against the larceny count.

But then, he has changed it as he proceeded along the appellate route.

He has changed it now and he raises the point that he is prejudiced on the larceny count by the mere fact -- or by the fact, I should say, that he was indicted for larceny after being acquitted of same.

Chief Justice Earl Warren: Well, do you concede this portion of his motion, that the housebreaking and larceny counts, the second and third respectively, of this indictment should be dismissed, should be a bar in jeopardy as in regards to present prosecution on those counts and that is our motion, do you agree that --

Mr. Edward F. Borgerding: No, sir.

Our position -- the state's position that this -- when Mr. Benton exercised his right to declare his indictment null and void, the indictment is void abenitio.

It was returned by it illegally or unconstituted -- unconstitutional com -- organized grand jury and, as such, since he exercised that right, an unconstitutionally grand jury cannot bring back a valid indictment and, therefore, the Court had no jurisdiction and he was therefore not placed in jeopardy on his first trial.

Chief Justice Earl Warren: Well, when is a verdict of not guilty final?

Mr. Edward F. Borgerding: Well, a verdict of not guilty could be final upon it being given, assuming that no one has any rights to appeal and, in Maryland, the state does not have the right to --

Chief Justice Earl Warren: But the man doesn't ordinarily appeal a verdict of not guilty, does he?

Mr. Edward F. Borgerding: No, sir.

You're correct.

He would not.

Chief Justice Earl Warren: Well, when was the verdict of not guilty on the larceny count final in this case?

Mr. Edward F. Borgerding: I would say it was final at the day it was rendered, Your Honor.

Chief Justice Earl Warren: Alright.

Well, then, if he takes an appeal from the rest of the judgment, how does he vitiate that?

Mr. Edward F. Borgerding: Well, we go back to our basic premise that the mere fact that that first indictment was brought by an unconstitutional grand jury, that it did not bring back a valid indictment.

Chief Justice Earl Warren: He didn't raise that before he was on that really on the larceny count, did he?

Mr. Edward F. Borgerding: Well, now, you referring, I assume to the second trial.

Chief Justice Earl Warren: Well, no --

Mr. Edward F. Borgerding: So, we have two trials, Your Honor.

Chief Justice Earl Warren: No, I'm assuming when he was first found not guilty.

He -- that was final, wasn't it?

Mr. Edward F. Borgerding: His final -- it was final if the indictment was valid.

It was final if the Court had jurisdiction over that indictment, yes.

I would agree.

It would be final.

Chief Justice Earl Warren: You mean that, in any case, that if a man is acquitted by a jury and his indictment, the indictment that he had to see was not lawfully drawn that there is no jeopardy?

Mr. Edward F. Borgerding: It depends on what is determined unlawfully drawn and there are some cases that say defective and so forth, but I say in the circumstances of this case where the Court held that the grand jury as -- that brought back this indictment was unconstitutionally organized.

Under the Fourteenth Amendment of the Constitution, that grand jury cannot bring a valid indictment, if that is so.

And, Mr. Benton made it so by exercising his option, and he was told that the indictment would be null and void.

He had the right to exercise the right either to make it null and void or not.

That's true, but once he did, the Court had no power to sent -- or no power to try him on the invalid indictment.

Justice William J. Brennan: Well, aren't you really arguing that because of all this a void indictment first void -- a void first indictment that jeopardy never attached under that indictment?

Mr. Edward F. Borgerding: Yes, sir.

Justice William J. Brennan: Those are your argument?

Mr. Edward F. Borgerding: Yes, sir.

Justice William J. Brennan: Even though he went all through a trial, all through appeal, and everything else for the purpose of the Double Jeopardy Clause, that all proceeding was one in which jeopardy never attached?

Mr. Edward F. Borgerding: That is correct, Your Honor.

Justice Thurgood Marshall: Mr. Borgerding, did I understand you correctly that in those five rules of different things that the defendant could do --

Mr. Edward F. Borgerding: Yes, sir?

Justice Thurgood Marshall: He could waive the invalidity of the indictment.

Mr. Edward F. Borgerding: That is correct.

Justice Thurgood Marshall: How, under the sun, can you waive something that's null and void?

Mr. Edward F. Borgerding: The --

Justice Thurgood Marshall: How?

Mr. Edward F. Borgerding: Your Honor, this was null and void at the discretion of the defendant.

It was up to him to declare whether he wanted to exercise the right to make it null and void.

That's what those four decisions --

Justice Thurgood Marshall: You mean, it's up to the man --

Justice Byron R. White: Is it voidable?

Mr. Edward F. Borgerding: It's voidable, yes.

Justice Thurgood Marshall: Well, then it's not null and void.

Mr. Edward F. Borgerding: Well, if a man exercised a voidable right, it becomes null and void, does it not?

Justice Thurgood Marshall: Well, then his acquittal is also subject to be voidable.

Is that your position?

Mr. Edward F. Borgerding: Well, Your Honor, we have to go back --

Justice Thurgood Marshall: Is that --

Mr. Edward F. Borgerding: -- the basis of the acquittal is the indictment, and --

Justice Thurgood Marshall: That's not the basis of the acquittal.

Mr. Edward F. Borgerding: Well, he was acquitted on the indictment that was invalid.

Justice Thurgood Marshall: But he was acquitted?

Mr. Edward F. Borgerding: Yes, sir, he was.

Justice Thurgood Marshall: By a jury?

Mr. Edward F. Borgerding: Yes, sir.

Justice Thurgood Marshall: And so, now, he's re-indicted by a jury?

Mr. Edward F. Borgerding: That is correct.

Justice Thurgood Marshall: For the same thing he was acquitted for.

Mr. Edward F. Borgerding: That is correct.

Justice Thurgood Marshall: And you don't see double jeopardy at all?

Mr. Edward F. Borgerding: The distinction, Your Honor, is in the validity of the grand jury.

Can an unconstitutionally organized grand jury bring back a valid indictment?

Justice Thurgood Marshall: Well, what would happen of the any cases in Maryland where juries have been found to be wrongly constituted on other grounds?

Mr. Edward F. Borgerding: In Maryland?

Not to my knowledge, Your --

Justice Thurgood Marshall: The Lee case --

Mr. Edward F. Borgerding: Under --

Justice Thurgood Marshall: -- exclusion of Negros.

Mr. Edward F. Borgerding: What's that --

Justice Thurgood Marshall: In Alabama.

Mr. Edward F. Borgerding: Alabama?

No, there was --

Justice Thurgood Marshall: Do you remember that one?

Mr. Edward F. Borgerding: I thought that was Ala State, Your Honor.

Justice Thurgood Marshall: Yes, well, would that be null and void?

Mr. Edward F. Borgerding: They have --

Justice Thurgood Marshall: Or that's just voidable?

Mr. Edward F. Borgerding: In arriving at that disposition, our Court of Appeals in the Smith case quoted the exclusion of Negros from grand juries.

Justice Thurgood Marshall: Is that null and void?

Mr. Edward F. Borgerding: I believe that that would be voidable at the option of the included party to -- with the Negro in that case.

Justice Thurgood Marshall: Well, now, if we have a hypothetical case where a man is convicted of burglary and acquitted of larceny, and has found that one of the jurors was a felon and, therefore, it was reversed.

You would retry him on burglary and larceny, would you?

Mr. Edward F. Borgerding: No, sir, because I do not think that that examp --

Justice Thurgood Marshall: What's different in that case and this case?

Mr. Edward F. Borgerding: I don't think that that goes to the jurisdiction of the Court that goes to the illegal sentence, but the Court still had jurisdiction to try the man in the first instance.

Justice Thurgood Marshall: And, did it also have jurisdiction to acquit?

Mr. Edward F. Borgerding: Yes, sir.

Justice Thurgood Marshall: Did this Court in this case have jurisdiction to acquit?

Mr. Edward F. Borgerding: This Court, by -- in our theory and under the Court of Appeals case, is that this Court, once this man voided his indictment, he voided it, he exercised his option, the Court did not have the power or the jurisdiction either to convict or acquit.

Justice Thurgood Marshall: He was never in jeopardy?

Mr. Edward F. Borgerding: He was never in jeopardy.

Justice Thurgood Marshall: He was just in jail?

Mr. Edward F. Borgerding: Sir?

Justice Thurgood Marshall: He was just in jail?

Mr. Edward F. Borgerding: Yes, I --

Justice Thurgood Marshall: But never in jeopardy?

Mr. Edward F. Borgerding: That is correct, Your Honor.

Justice Thurgood Marshall: Thank you.

Mr. Edward F. Borgerding: But what --

Justice Abe Fortas: Counsel, may I ask --

Mr. Edward F. Borgerding: -- pardon?

Justice Abe Fortas: -- you a question here?

Mr. Edward F. Borgerding: Yes, sir.

Justice Abe Fortas: As I understand the argument, perhaps I'm wrong about it, what you're really saying is that the petitioner here waived the -- improperly waive whatever defect there was in the composition of the grand jury and you refer to that as petitioner having agreed that the original indictment was null and void.

Chief Justice asked you where that appears.

You pointed to page 2 of the appendix, the item June 30, 1966, but that reads only “defendant challenges the array of the grand jury.”

Is there some place that shows exactly what the defendant did to which you refer as agreeing that the original indictment was null and void?

Mr. Edward F. Borgerding: Well, Justice Fortas --

Justice Abe Fortas: Where do the words “null and void” appear?

Mr. Edward F. Borgerding: Well, they appear in the Madison case which was implementing the Schowgurow case.

Justice Abe Fortas: I'm not talking about that.

You said that this petitioner said that the original indictment was null and void, isn't that what you said?

Mr. Edward F. Borgerding: Yes, sir.

Justice Abe Fortas: Now, does -- is that in the record and, if so, where?

Mr. Edward F. Borgerding: Well, the only --

Justice Abe Fortas: It's not in this appendix.

Mr. Edward F. Borgerding: No, sir.

It would be --

Justice Abe Fortas: Now, is it in the printed transcript of record on file here?

Mr. Edward F. Borgerding: Well --

Justice Abe Fortas: I wanted -- you say this defendant, this petitioner, agreed that the indictment was null and void and that what you said?

Mr. Edward F. Borgerding: Yes, sir.

He exercised his option.

Justice Abe Fortas: What I'm interested exactly what were the words used, where does it appear?

Mr. Edward F. Borgerding: Well, as far as this particular record is concerned, Your Honor, and this has never been challenged, that he exercised his rights in conformity with these cases, and --

Justice Abe Fortas: I understand that, but I want to know exactly what happened, what did he say or what did his counsel say for him?

Chief Justice asked you that question.

And, is your answer to it confined to the entry that appears on page 2 of the appendix?

Mr. Edward F. Borgerding: Yes, sir.

As far as the record here before the Court, it would be limited to that because this a question --

Justice Abe Fortas: And there's nothing else in the transcript on file?

Mr. Edward F. Borgerding: Well, the transcript on file was only the transcript, Your Honor, of the second trial.

Justice Abe Fortas: Alright, so when you say the defendant agreed that the first indictment was null and void, that's your inference of law, is it?

Mr. Edward F. Borgerding: I don't understand when you say “inference of law.”

Justice Abe Fortas: I'm trying to find out what happened.

What happened here?

What did the defendant do?

What did he say that leads you to characterize it as a statement by the defendant that the indictment was null and void?

Mr. Edward F. Borgerding: Well, Your Honor, to this point --

Justice Abe Fortas: A very simple inquiry of fact, I think.

Mr. Edward F. Borgerding: No, to this point, this question has never been raised by the --

Justice Abe Fortas: It's being raised right now by me.

Mr. Edward F. Borgerding: Yes, I understand, but I do not have any record of what he actually said --

Justice Potter Stewart: Well, I suppose though --

Mr. Edward F. Borgerding: And it was never challenged.

This is their docket entry as a result of what he --

Justice Potter Stewart: The steps you set out in your brief: one, two, three, four, five, six.

Mr. Edward F. Borgerding: Yes, sir.

Justice Potter Stewart: On the bottom of page 21 and the top of 22 of your brief are the steps that you represent or taken in this case, and you tell us that there's no argument about the fact that that is what happened in this case.

Mr. Edward F. Borgerding: There has never been a challenge to that by --

Justice Potter Stewart: Those six steps.

Mr. Edward F. Borgerding: That's right.

Justice Potter Stewart: And, it's on that that you're -- those six steps that you're relying, I suppose, to -- for your submission that the defendant exercised a right to void at his option the original indictment.

Mr. Edward F. Borgerding: Yes, sir.

Justice Abe Fortas: But, my point is, my question to you is that there's -- there may be a difference, I'm not saying that there is, there may be a difference between the defendant electing to appeal and try to get the judgment set aside on the one hand and, on the other hand, the defendant saying that, agreeing through -- directly or through counsel or both, that the original indictment was null and void.

As I listen to your argument, you seem to put in a good deal of weight on that specific characterization to which you say the defendant agreed, but it's now my understanding that that is an inference or a conclusion that you urge upon this Court as a result of the events listed in the first six items appearing on page 1 and 2 of the appendix.

Now do we have it straighten out?

Mr. Edward F. Borgerding: Yes, sir.

I would say that this was the procedure setup by the Court of Appeals and the -- was the procedure that we had to -- and there has been no objection to -- that was applicable to the defendant, Benton.

The only reflection in the record is the notation of the docket entry.

Justice Potter Stewart: I was talking about pages 21 and 22 of your brief.

Mr. Edward F. Borgerding: Yes, I understand Justice Fortas had a different --

Justice Potter Stewart: Yes.

Mr. Edward F. Borgerding: He was referring to the appendix, I believe.

Justice William J. Brennan: Well, I do, too.

Looking at pages 21, it was probably the first step in which the accused is to be brought to the Trial Court with counsel present.

Now, you tell us that' what happened.

Mr. Edward F. Borgerding: Yes, sir.

There has never been --

Justice William J. Brennan: Alright, just a moment.

Mr. Edward F. Borgerding: -- objection.

Justice William J. Brennan: And then it says, “to ascertain whether he desires to avail himself of the relief afforded by the rulings or whether he elects to waive any objections now available to him.”

Now, was there any transcript made of that proceeding?

Mr. Edward F. Borgerding: I honestly do not know.

Justice William J. Brennan: So, we have no way of knowing what actually happened when he was brought into the trial court with his counsel present.

Mr. Edward F. Borgerding: That's the -- that was the reason I do not know, because this point --

Justice William J. Brennan: Alright, so we have no way, actually, to know what happened --

Mr. Edward F. Borgerding: Yes, because

Justice William J. Brennan: -- we have no transcript.

Mr. Edward F. Borgerding: This point has never been raised that he exercised his rights under --

Justice Byron R. White: Just by statute or just by practice?

Mr. Edward F. Borgerding: This was just to take care of this particular situation and it was by order of Court of the Court of Appeals of Maryland and rule of Court that this procedure was setup.

Justice John M. Harlan: Can I ask you a question?

Mr. Edward F. Borgerding: Yes, sir.

Justice John M. Harlan: The Maryland decisions both in this matter and back to the trial court that said, having been acquitted of larceny in the first trial, of course, he comes out and registers the case, and, therefore, I want to avail myself as to the collection only with the respect of the burglary charge and not the housebreaking.

Mr. Edward F. Borgerding: Well, Your Honor, under --

Justice John M. Harlan: Isn't that right?

Mr. Edward F. Borgerding: Not under Schowgurow, he could not have done that.

Now, Maryland has a case on this particular point which is the Barger case, which follows this Court in the Green case, where Barger was convicted of murder in the second degree.

He appealed and his second-degree conviction was set aside on instructions to the jury.

It was referred back to the lower Court for a new trial.

The state sought to indict him on first-degree murder.

He objected.

The lower Court sustained his objection.

It went to our Court of Appeals, and our Court of Appeals sustained it, too, on the basis that there was a valid indictment.

And, as you gentlemen understood --

Justice William J. Brennan: It doesn't make any sense that he would've gone in on -- under your step one and have said “now, please set aside that indictment for larceny under Schowgurow so that I could be retried for larceny even though I was acquitted.”

Does that make sense?

Mr. Edward F. Borgerding: He's not asking the --

Justice William J. Brennan: Does that make sense?

Mr. Edward F. Borgerding: He has to make a choice if he would, Mr. Justice, --

Justice William J. Brennan: Well, in that sense, and you call that an intelligent-free Court?

Mr. Edward F. Borgerding: Under all the circumstances, it could be.

Chief Justice Earl Warren: I wonder if this colloquy that begins on page 3 shouldn't settle the matter and due to the fact that there is no transcript on what happened at the earlier date.

Mr. O'Maley: “Your Honor, may we approach the bench?”

The Court: “Yes.”

Whereupon, counsel approached the bench and the following proceedings were had out of the hearing of the perspective jury.

Mr. O'Maley: “Your Honor, I would suggest to the Court that the defendant is now charged of the crimes of burglary, housebreaking, and larceny.

That, in previous time, he was found not guilty of the housebreaking and larceny.

He was found guilty of common law burglary.

The common law burglary was appealed to the Court of Appeals and, while pending, by virtue of the Schowgurow decision, it was remanded to this Court, at which time the defendant elected to have a retrial.

It is the position of the defendant that the housebreaking and larceny counts, the second and third respectively of this indictment, should be dismissed, should be a bar in jeopardy as in regards to the present prosecution on those counts and that is our motion.”

Now, that's the only thing that I see in this transcript, and shouldn't that be determinative of what the defendant sought in this case?

Mr. Edward F. Borgerding: Mr. Chief Justice, there's no question as to what he sought to raise at that time.

This was the second trial we're referring to.

Chief Justice Earl Warren: Yes.

Mr. Edward F. Borgerding: And, he raised the point of double jeopardy.

But he didn't raise the point that he did not exercise his rights within the confines of the order of the Court of Appeals of Maryland.

Chief Justice Earl Warren: He said “all I'm appealing while my -- all I'm appealing is this question of -- the question of this double jeopardy on the larceny and on the housebreaking.”

Mr. Edward F. Borgerding: But, yes, his challen -- he challenged those two counts of the indictment, but this was addressed to the indictment per se that the indictment was invalid.

Justice William J. Brennan: Yes, but you're tell in the brief this, on the record was the intelligent, knowing, and formal choice or at least it was with the housebreaking question.

Mr. Edward F. Borgerding: On the count that the --

Justice William J. Brennan: You say in your brief at page 22 that this, on the record, and so as the rest of it, was an intelligent, knowing, and formal choice made with the understanding and agreement that the original indictment on the burglary that he could be re-indictment and, upon reconviction, he might receive a new sentence in which he could not received otherwise.

Mr. Edward F. Borgerding: Now, on the record, Your Honor, if you take it in that context, the record, as we had it in the Court of Appeals, there was never -- or the Court of Special Appeal, there was never any challenge as to --3

Justice William J. Brennan: Well, I know, but --

Mr. Edward F. Borgerding: -- as he did exactly.

Justice William J. Brennan: Just in the record, what happened in the new trial?

Are you really urging on us that he made an intelligent, knowing, and formal choice to be retried on the housebreaking in the first offense?

Mr. Edward F. Borgerding: Yes, sir.

He made -- the only choice he had then was to set aside the indictment or not to set aside the indictment.

Now, if -- I see my time is limited, but I'd like to make a point, that point as to the larceny count itself, Your Honor, although I see my time is up.

May I continue?

Chief Justice Earl Warren: You make that final statement that you will.

Mr. Edward F. Borgerding: Well, as far as the retrial on the larceny count itself, I would like to point out to the Court it was under -- the first count was common law burglary in Maryland, the breaking and entering in the nighttime with intent to commit a larceny or a felony there into a larceny.

The same evidence that was produced to approve the burglary charge proved the larceny charge.

He got a concurrent sentence and he, in effect, was not damaged as such.

The -- as to the part on the fourth point, the increased punishment, Mr. Benton has filed a habeas corpus in the District Court of Maryland.

He has been granted release on that habeas corpus under the increased punishment.

The Court ordered the state to either resentence him within 60 days or release him, and we have taken an appeal to the Fourth Circuit.

So, I do not appeal that that point is before the Court because he is already -- had relief on that and the last point is, he never raised the increased punishment point in the Court of Special Appeals of Maryland.

And, I thank you, Your Honors, for your kind attention.

Chief Justice Earl Warren: Mr. Cramer?

Rebuttal of M. Michael Cramer

Mr. M. Michael Cramer: Thank you, Your Honor.

May I please attempt to clear up one area?

The import of the state's argument is that the petitioner knew precisely what he was doing on the remand proceedings.

However, the material cited to this Court by the respondent refutes his argument rather than supports it.

On page 21 and 22 of, the respondent, State of Maryland's brief, there are cited six questions that were to be asked of the petitioner on the remand proceedings.

The Court will note that, among the six questions, there is no question, do you realize, that if you elect to be retried, your previous indictment may be revived and you may be charged again on all matters even those of which you were preciously acquitted.

There is nothing in this record to support that, not specifically and not inferentially.

In effect, the State of Maryland asked this Court to believe that, on the remand proceedings, the petitioner would anticipate that the state would violate the most basic principles of double jeopardy, and I think it's wrong to believe that a defendant will anticipate that the state will do wrong.

Furthermore, on page -- and lastly, on page 2 and 3 of the joint appendix, we note on page 2 that the defendant challenges the array of the grand jury on June 30, 1966.

On page 3, we note that his trial was on August 11, 1966.

It's reasonable to infer from this that the first time he knew that he would be charged again on the case on which he was previously acquitted was more than two months after he made his so-called election.

Justice Abe Fortas: And, on the first day of trial, his counsel said that -- his counsel raised the point that made the point that he shouldn't be tried for these other offenses.

Mr. M. Michael Cramer: Yes, Your Honor.

Made the point apparently when he first knew of it.

Justice William J. Brennan: Is the 15-year sentence more than likely what the state tells us about the habeas corpus?

Mr. M. Michael Cramer: Well, that, Your Honor, I'll say that Judge Harvey of the District Court of Maryland granted our petition for habeas corpus and reduced the sentence to 10 years, but the state has appealed that decision.

Justice William J. Brennan: I know but there's no understanding the 15-year sentence because the case is now here.

Mr. M. Michael Cramer: That's correct, Your Honor.

Justice William J. Brennan: Is that issue before us?

Mr. M. Michael Cramer: I would think, in light of that, that it is not, Your Honor.

And, one final thing, the Maryland Court of Appeals, in its remand decision, never said anything about acquittals, never said anything about any charges other than the one of which he stood convicted.

They said “we are remanding the conviction.”

They didn't say they were remanding anything more.

I thank you very much, Your Honors.

Print this transcript Transcript: 

Argument of M. Michael Cramer

Chief Justice Earl Warren: Number 201, John Dalmer Benton, petitioner versus Maryland.

Mr. Cramer.

Mr. M. Michael Cramer: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

This case was argued to the Court previously on December 12, 1968 on the issue of whether the double jeopardy provision of the Fifth Amendment of the Federal Constitution was applicable to the State of Maryland to the Fourteenth Amendment.

A few days after argument, this Court ordered rehearing and rebriefing on another issue.

That issue being, “Does the concurring sentence doctrine enunciated in Hirabayashi versus United States have continuing validity in light of such other decisions in more recent decisions the latest case being Sibron versus New York?”

It is petitioner's contention that the Hirabayashi doctrine is invalid today.

It is petitioner's further contention that the court need not reach the Hirabayashi rule in this case since both convictions where we submit invalid.

Briefly, the facts of the case are as follows.

The State of Maryland with jurisdiction to do so indicted the petitioner in Prince George's County for burglary, common law housebreaking, and larceny.

Common law housebreaking charge was dismissed by the prosecution.

The jury acquitted the petitioner of larceny and convicted him of burglary.

Petitioner was sentenced to serve a term of 10 years in the Maryland Penitentiary.

He appealed his burglary conviction and the Maryland Court of Appeals remanded the conviction when the basis of its decision in Schowgurow versus the State of Maryland which case essentially held that Maryland's Constitutional provision which excluded jurors unless they professed to believe in God was violative of the First Amendment.

Petitioner chose to take advantage of the remand.

And on the remand, he elected to be retried on the burglary charge.

Because he chose to take advantage of this First Amendment rights, the petitioner was again indicted for burglary but for larceny too of which offense he was previously acquitted.

Justice Potter Stewart: That has been an explicit acquittal by the jury had it in the first trial?

Mr. M. Michael Cramer: Yes, Your Honor, it was.

Justice Potter Stewart: Not just an implicit acquittal by finding him guilty only on the burglary?

Mr. M. Michael Cramer: That's correct, Your Honor.

There was a filing of not guilty by the jury sir.

In the second trial, the petitioner was convicted of both burglary and larceny.

The trial court sentenced petitioner to a term of 15 years for burglary and 5 years for larceny.

The terms were ordered to be served concurrently.

Pardon me, as the court instructed I am here to argue the question of the validity of the Hirabayashi concurrent sentence doctrine.

However within --

Justice Potter Stewart: He'd been sentenced to 10 years imprisonment, the first trial?

Mr. M. Michael Cramer: Yes, Your Honor.

Justice Potter Stewart: Second time?

Mr. M. Michael Cramer: 15 years, Your Honor.

Justice Potter Stewart: 15 years on the burglary and 5 on the larceny to be served concurrently?

Mr. M. Michael Cramer: That is correct Your Honor.

Justice Potter Stewart: So setting aside the -- entirely the larceny charge he was sentenced to a longer term on retrial on the burglary charge.

Mr. M. Michael Cramer: Yes, he was Your Honor.

Justice Potter Stewart: You didn't raise that as a possible error, did you?

Mr. M. Michael Cramer: No, Your Honor that -- the question of increased penalty after an appeal is not before the court, it was not raised Your Honor.

Justice Potter Stewart: Was he given credit for any time served on the first charge?

Mr. M. Michael Cramer: I don't believe he was Your Honor.

With the court's indulgence, I would like to spend a brief moment stating my position as to why I feel that the Court need not reach the Hirabayashi rule in this instant case.

Of course, the Hirabayashi rule presumes that one conviction is valid and the other is invalid.

In this case we believe that the invalid larceny conviction infected the burglary charge and therefore the burglary was invalid also.

In United States versus Trenton Potteries, this Court held that it would affirm an invalid conviction in which concurrent sentences were rendered only if the jury's consideration of the valid count was not prejudiced by their consideration of the invalid count.

Presuming that petitioner second prosecution for larceny was constitutionally impermissible, the unfairness of charging and trying him a second time, we submit infected the entire proceeding and invalidated the burglary as well as the larceny conviction.

And therefore, we ultimately asked the Court to reverse the larceny conviction and order a new trial in the burglary case.

Addressing myself now to the question certified by the Court.

Justice Potter Stewart: I want to be sure I understand this first position of yours, to reverse the larceny conviction on the double jeopardy ground?

Mr. M. Michael Cramer: Yes, Your Honor.

Justice Potter Stewart: And to set aside the burglary conviction and order a new trial on what ground that it was infected by the larceny?

Mr. M. Michael Cramer: That the institution of the larceny charge in the second case--

Justice Potter Stewart: Yes.

Mr. M. Michael Cramer: -- infected and prejudiced the defendant, the petitioner before your Court Your Honor, in his burglary defense and therefore --

Justice Potter Stewart: Now, how and why?

Mr. M. Michael Cramer: I'm sorry, Your Honor?

Justice Potter Stewart: Why and how it did so?

Mr. M. Michael Cramer: For several reasons.

One, under the law of the State of Maryland, burglary consists of breaking and entering a dwelling house with intent to steal.

If the --

Justice Potter Stewart: Only with intent to steal in Maryland, can it be with intent to commit any other felony like (Voice Overlap)?

Mr. M. Michael Cramer: No, Your Honor.

It's with the intent to steal.

Justice Potter Stewart: With intent to steal.

Justice Abe Fortas: I don't understand this for another reason.

I thought that this reargument was limited to the Hirabayashi question and nothing else and that's the question that, it's the only question that is before the Court for purposes of this re-argument, isn't that right?

Mr. M. Michael Cramer: That is correct, Your Honor.

Therefore, may I -- I hope appropriately state that I have other reasons but if the Court would like other reasons why the burglary charge was infected but if the Court would --

Justice Potter Stewart: I -- would be understood in your theory because I think -- as I understand your point, if your preliminary point is that while you've been asked to on this reargument only to address yourself to the concurrent sentence question, your point is that even if we decide that the concurrent sentence rule has continuing validity you should still win.

Mr. M. Michael Cramer: That's correct sir.

In this case, the State of Maryland to conduct the prosecution successfully had to prove that Benton intended to steal when he entered the premises.

In the first trial it was adjudicated that he did not intent to steal.

We contend that this was res judicata under the Sealfon case that this principle applies in criminal cases and that therefore he was entitled to have excluded and he mentioned in any evidence of a larceny.

Thus, the state obtained an advantage that they ordinarily would not have had in proving intent.

Secondly, Your Honor, the necessity of defending two rather that one charge has technically disadvantaged the petitioner.

Another reason why we feel that the burglary charge is invalid is that the state in this case used the device of cumulating as many charges as it could so as to promote a compromise atmosphere in the jury room and cause the jury to convict him of at least one, although of course in this case he was convicted of two.

We also submit that another reason why he was prejudiced and why the burglary conviction should be reversed is that the jury was permitted to consider prejudicially irrelevant testimony because again Benton had a right to have the jury not consider any evidence of larceny in view of his first acquittal and the doctrine of res judicata.

Justice Potter Stewart: Well, if burglary in the State in Maryland consists of whatever it is breaking and entering a dwelling house than night time for it with the intent to steal and if you're right in this submission.

How can he even be tried for burglary again if the state isn't allowed to show that he had the intent to steal on the retrial of the burglary charge?

Mr. M. Michael Cramer: Well, I submit Your Honor that they could endeavor to prove the intent to steal by other means.

Perhaps a conversation, perhaps burglary tools, none of which where present in this case but this is one of our points Your Honor.

Justice Potter Stewart: And what cannot they do in your submission?

Mr. M. Michael Cramer: We feel that they --

Justice Potter Stewart: On the retrial of the burglary charge?

Mr. M. Michael Cramer: We feel that they could not show that anything was missing from the premises after Benton had left the premises because that is the issue the in the larceny case and the larceny case was adjudicated in his favor.

Justice Potter Stewart: Well it's an issue in the burglary case as you tell me the -- explain the definition of burglary in Maryland, there has to be an attempt to steal.

Mr. M. Michael Cramer: Yes.

Justice Potter Stewart: And that's embraced in the charge of burglary as I understand your definition of it in your state.

Mr. M. Michael Cramer: The question then Your Honor comes before the Court of if they did not charge larceny could they have shown that items were -- of personal property were missing from the premises just on the burglary charge alone and we respectfully submit that the answer to that is no.

Whereas they might have been able under ordinary circumstance to show that an asportation had taken place, they couldn't once this matter was adjudicated in his favor.

Oh, we also submit that there are certain cases that decided by this Court that hold that even though there is no isolatable prejudice, if prejudice does permeate the trial then the entire preceding is officiated and we respectfully submit as out last ground that is another reason why the burglary conviction should be set aside.

Thank you Your Honor and turning now to the issue before the Court it was petitioners' contention if the Court please that the Hirabayashi concurrent sentence doctrine no longer has validity in view of Sibron versus New York which case involved the petitioner whose criminal record and background was similar to the petitioners in the instant case.

As a result of the Sibron decision, it is incumbent upon the Government to show that no possibility of collateral legal consequences will be imposed on the basis of the challenged conviction.

I believe that Sibron makes it clear that the fact that a petitioner has a substantial criminal record does not in itself mean that there are no significant collateral legal consequences.

It is submitted that the rational of the Sibron case is equally persuasive in the petitioner's case and additional fact in favor of abolishment of the Hirabayashi rule in the case of concurrent sentences is the consequences that may occur where a valid conviction is set aside at a remote time for such reason as newly discovered evidence.

In that case, the defendant's evidence may be stale.

He may be unable to locate and master his witnesses and thus unable to vindicate himself and therefore we submit that the concurrent sentence case it is even the Sibron rule is even more applicable.

Chief Justice Earl Warren: Mr. Cramer, do you happen to know if any of the states that have recidivist statutes would consider these two convictions in this case as separate convictions for the purpose of establishing recidivism?

Mr. M. Michael Cramer: I'm sorry Your Honor but I do not however I do note that the recidivist statutes used the word conviction and most of them do not refer to multiple convictions but just leave it at that.

Although, under the Sibron case it is not incumbent upon the petitioner to establish the collateral legal consequences, if it please the Court, I might venture to mention one.

Regrettably, due to misinformation the petitioner's brief states that he has only one felony conviction, when actually it appears that he has three felony convictions.

However, the petitioner's background does have some redeeming features.

Following two of his felony convictions, petitioners served with distinction in the United States Army.

He was a decorated soldier, a recipient of the Purple Heart and to this day receives a veteran's administration service connected disability.

Perhaps, some future administrative body or judge will consider the petitioner's meritorious military record but will find that the invalid larceny conviction militates against favorable consideration.

In this case, the petitioner does not seek a declaration in the air.

He has a substantial interest in the outcome of this litigation.

There is nothing abstract thing or hypothetical about this -- his appeal.

It is submitted that another reason exists for not applying the Hirabayashi doctrine in this case.

The State of Maryland does not follow the Hirabayashi rule but instead allows the court to correct and set aside an invalid conviction at any time regardless of its immediate impact upon the defendant.

Following this rule, the Maryland Court of Appeals has on many occasions reversed invalid convictions when the sentences were ordered to be served concurrently with a valid conviction.

We submit that application of a state remedy to a case involving a violation of a federal constitutional provision is not noble.

In Brady versus Maryland, this Court held that the State of Maryland violated a petitioner's right to due process of law under the Fourteenth Amendment when it withheld from him exculpatory information.

At the same time, however, this Court held that they use to which this exculpatory information would be put was to be determines by the law of the State of Maryland rather than the federal law.

The Solicitor General recognizes that the Government under the doctrine of Sibron cannot possibly negate the existence of all collateral consequences.

And the Solicitor General meets the problem by stating that the rule in Sibron versus New York requiring the Government to show that no possible legal collateral consequences exists should not apply in the case of concurrent sentences.

However, it is respectfully submitted to the Court that the Solicitor General offers no cogent reason for distinguishing the situation where sentences have been served from the situation where sentences are to be served concurrently as in the instant case.

The Maryland Attorney General approaches the problem differently by stating that his brief raises and negates the existence of all possible collateral consequences that might confront the petitioner.

Since collateral consequences are often unpredictable, we submit that the state lacks such extraordinary perception in this case.

Justice Abe Fortas: Well, sir as I understand that the Solicitor General argues that the burden should be on the petitioner.

It is showed that unless his concurrent sentences were viewed prejudice will resolve to him. Is that your understanding?

Mr. M. Michael Cramer: Yes, sir.

Justice Abe Fortas: And if you look at it from the point of view of burden who has the burden of demonstration however you want to flatten more precisely.

What do you say about that?

Mr. M. Michael Cramer: We submit to Your Honor that is incumbent upon the state, that the state has the burden of negating the existence of all possible collateral legal consequences.

Justice Abe Fortas: Now, let me be sure that I understand this.

So, you are presenting a clear issue on that point that is to say Solicitor General says that it's the petitioner's burden to show that unless his concurrent sentence will be reviewed he will be prejudiced.

Do you say that if a prisoner asks a review of his concurrent sentence that the burden is on the state to demonstrate that there could be no possible prejudice to him if his concurrent sentence is not reviewed?

Mr. M. Michael Cramer: Yes, sir.

Justice Abe Fortas: Am I correct in stating the position?

Mr. M. Michael Cramer: Yes, Your Honor.

In conclusion with respect --

Justice Thurgood Marshall: Mr. Cramer what possibility is there that the state has overlooked?

You said they negated a whole lot of things --

Mr. M. Michael Cramer: Yes sir.

Justice Thurgood Marshall: But there's something they didn't negate, what?

Mr. M. Michael Cramer: Your Honor, I've attempted to answer one when I state and refer, alluded to (Voice Overlap).

Justice Thurgood Marshall: That if no change in legislation and etcetera, etcetera, etcetera, in the future somebody thinks ups and it passes no that he will be harmed.

Mr. M. Michael Cramer: That is on of them, Your Honor.

Justice Thurgood Marshall: A little far-fetched?

Mr. M. Michael Cramer: I'm sorry, sir?

Justice Thurgood Marshall: A little far-fetched?

Mr. M. Michael Cramer: It might be but it certainly will (Voice Overlap).

Justice Thurgood Marshall: Well, let's settle it might be.

Now is there anything else that they have failed to negate?

Mr. M. Michael Cramer: I believe that the parole consequences are involved in this case --

Justice Thurgood Marshall: What are they?

Mr. M. Michael Cramer: Under the Maryland law, the District Attorney of the county in which the case is tried has -- must certify to the Parole Department an abstract of each case in which a conviction was rendered.

Now, I submit to the Court that is a factor which governs or guides, or helps to guide the parole authorities in determining the illegibility for parole.

Justice Thurgood Marshall: Which the District Attorney in this case would certify that this man was convicted of burglary and larceny in a single trial involved in the same evidence?

Mr. M. Michael Cramer: Yes, sir.

Justice Thurgood Marshall: And you think that would prejudice?

Mr. M. Michael Cramer: I believe that it's possible, Your Honor.

Justice Thurgood Marshall: Possible?

Mr. M. Michael Cramer: Possibility --

Justice Thurgood Marshall: Anything else?

Mr. M. Michael Cramer: The factor that I mentioned about his past record.

His conviction says two felony convictions are very old, one when he was 39 and one in 40.

One was when he was 16 years of age before there was a juvenile delinquency law.

I believe that it's difficult to anticipate what a future administrative body or what a future judge will think of his record.

Certainly Your Honor, conviction of two crimes cannot help him as compared to one.

May it please the Court in conclusion for the reason stated; we respectfully request the court to order reversal of the larceny conviction and order a new trial from the burglary charge.

I thank you very much.

Chief Justice Earl Warren: Mr. Strauss.

Argument of Peter L. Strauss

Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.

The Government is here at this Court's invitation to present its views whether the concurrent sentence doctrine has continuing validity in light of last term's cases.

In those four decisions, as the court knows, it reexamined doctrines limiting review of criminal sentences which an accused has either finished serving or has not yet began to serve and it did so recognizing that in addition to sentence itself, criminal conviction usually have legal effects such as laws of liberties which do entitle an accuse to review.

For example, the Court concluded in the Sibron case that a criminal appeal cannot be found moot simply because the principle sentence has been served.

The reviewing court must be convinced by the Government that there are no residual legal effects of conviction or collateral legal consequences.

As we understand the question which the Court invited us to discuss, it's whether the same rule must not apply in concurrent sentence cases that is, cases in which an accused is convicted on several different counts, given sentences all of which is going to be served at the same time, and then seeks to appeal on a ground which could affect only some and not all of those convictions and sentences.

In the past, courts have not reviewed all counts in such cases.

Once they have determined that some of the counts are valid, they have declines to review others.

And the notion has been that since the full sentence must be served in any event on the good counts, nothing could be gained by reviewing the others but review of the limited allegations of error would be a waste of their time and energy.

We agree of course that any such assessment must be a realistic one.

Review must be had as to any count which in fact does have legal effects upon the convicted person.

Justice Abe Fortas: Mr. Strauss.

Mr. Peter L. Strauss: Yes.

Justice Abe Fortas: Excuse me, would you make a distinction between review of a concurrent sentence on direct appeal and on collateral attack.

Mr. Peter L. Strauss: Well I think on collateral attack, the case is all the stronger for the concurrent sentence doctrine.

Justice Abe Fortas: Well is your argument addressed to both, that's what I'm trying to say.

Mr. Peter L. Strauss: Our argument is addressed to both we would say the second.

This is a direct review case and the second we would say follow a fortiori.

Justice Abe Fortas: But there is a -- some sort of a differences there in terms of judicial latitude, let's suppose that, I'm talking of theory now of course.

In terms of a direct appeal, let us suppose that there's a clear error with respect to a concurrent sentence.

Is it the Government's view that that ought to be ignored unless the petition, unless the prisoner, the accused can show prejudice even though it's on direct appeal as distinguished from collateral attack?

Mr. Peter L. Strauss: No, Your Honor.

I would -- you asked whether that ought to be ignored, I think I would prefer if I may rephrase your question to say, to put it as whether you're asking whether the Government's view is that it must be ignored and I think we make plain in our brief that there is no such necessity in our view.

Justice Abe Fortas: No (Voice Overlap) --

Mr. Peter L. Strauss: We do not take this doctrine as being jurisdiction.

Justice Abe Fortas: No, I don't know.

When you rephrase the question that way, I don't understand what the Government's position is.

Mr. Peter L. Strauss: Well, I think the answer is no.

We do not believe that the doctrine is jurisdictional.

We believe that there is any good reason and plain error may be a good reason in the Court's view.

I may do so in the Courts of Appeals.

I should stress that our principal concern is not in this Court but in the Federal Courts of Appeals which have a tremendous burden of criminal appeals before them and which very frequently will receive a question as did the Second Circuit in United States versus Berger, in which we cite in our brief.

In that case, the defendant's were convicted on two counts.

Well, one of the substantive offense of theft from interstate commerce and the other of a conspiracy to commit that offense.

And the defendants appealed on two grounds.

One that it was not interstate commerce, that was a definite ground.

And second, that there was insufficient evidence in the record to support the conspiracy conviction.

Now, the Court of Appeals characterized that record is being an extremely lengthy one, and having found that there was interstate commerce stay on that ground declined to pass upon the conspiracy question.

On the other hand, one frequently finds Court of Appeals in cases where error is plain or clear passing upon it and we would say that they have every right to do so.

Justice Abe Fortas: Now, you kind of left me at the post.

Mr. Peter L. Strauss: I'm sorry.

Justice Abe Fortas: I want to get you right back to the question, is there any difference in the Government's position depending upon whether the question of error on a concurrent sentence is presented by way of direct appeal on the one hand and on the other hand by a collateral attack whether it's a habeas corpus or 2255?

That is my precise question to this.

Mr. Peter L. Strauss: And as to that question I would say, that I believe that in the collateral attack circumstance, the court would be much less justified in reaching error that will shield it that is our argument, follows a fortiori in that circumstance.

Chief Justice Earl Warren: Well Mr. Strauss, could in any of the states where they have recidivist clause, these two convictions be used to prove recidivism?

Mr. Peter L. Strauss: We have found no case where they could but if they could.

Chief Justice Earl Warren: What -- no, well, all right, if they could?

Mr. Peter L. Strauss: If they could, then we believe the concurrent sentence doctrine could not be applied because that we do concede that if there is a substantial reason for review, then review must be have.

Oh, well there could be an alternative in that circumstance.

One could also say as we have indicated in a opposition which we recently filed and another case before the court, Number 1022, Proner versus United States.

That was a tax case in which the petitioner raised certain questions which the Court Of Appeals again determined only pertained to limited numbers of counts and specifically determined there was no crossover effect.

And the petitioner in that case alleges that there will be a collateral estoppel that there will be in civil actions to collect the taxes which are allegedly due from him.

That there will be some collateral estoppel by these judgments in the particular counts that he challenged.

And what we say there is that since there was no review, there could be no collateral estoppel.

And I think it would be equally possible in the case you put, Mr. Chief Justice to say that since review was declined on the basis of the concurrent sentence doctrine, that conviction could not be counted towards recidivism.

So there are the alternatives in the case that you put.

Chief Justice Earl Warren: Let me ask you this.

Suppose this had been a larceny independent of this particular offense, the burglary and he's convicted and sentenced that he was here.

Could that be used as a recidivist offense?

Mr. Peter L. Strauss: I think again the answer is that in most states, it could not.

As we state in our brief, in most states, recidivist statutes are designed to vindicate the state's interest in having prisoners learn from going to jail.

And so they --

Chief Justice Earl Warren: Are you sure that they all do that?

Mr. Peter L. Strauss: I'm not sure that they'll all do that but I do think that those cases where they don't do that can be dealt with separately, and certainly in the federal system which is our concern, they don't do that.

Chief Justice Earl Warren: Well, how would a court know 25 years after the fact whether this larceny and this burglary were a part of the same transaction if they were in the state charging prior convictions?

Mr. Peter L. Strauss: Then the answer --

Chief Justice Earl Warren: They have to go back and review all these cases and determine whether they were connected in fact or not?

Mr. Peter L. Strauss: I think if one were able to determine that the concurrent sentence doctrine had been applied 25 years ago.

One would do so through the medium of an appellate court decision and that decision would probably sufficiently indicate the fact to enable the judge to make the determination as readily as he could to determination of the concurrent sentence doctrine had been applied.

Chief Justice Earl Warren: But as you know, many of these old records are destroyed and are otherwise -- are lost?

Mr. Peter L. Strauss: But then the record of the application of a concurrent sentence doctrine would also but then the record of the application of the concurrent sentence doctrine would also have been lost or destroyed.

Chief Justice Earl Warren: Yeah.

Well, that might be but should have the conviction of the two offenses and some district attorney and some state will charge as one offense, had he been convicted of burglary?

And as a second offense that he'd been convicted of larceny, and how would you go back and prove that they were all part of one offense?

Mr. Peter L. Strauss: As I say Your Honor, my principal defense is that is in all states that we know of.

I can't say to you that this isn't the case but so far as we know, as soon as it appeared that conviction was had on the same date or the same indictment or the same trial.

However many counts there were, the court would consider it one count for purpose of the recidivist statute.

Because of the function of that statute --

Chief Justice Earl Warren: You prefer to say that that's true even though they were entirely separate in distinct crimes, are you?

Mr. Peter L. Strauss: I believe that is the case although they were entirely separate and distinct.

Chief Justice Earl Warren: Is there any constitutional reason why the state could not do what I have just suggested?

Charged him with being a recidivist because he was convicted on the number of cases at one -- in one particular trial, suppose there was (Inaudible) crimes that continued over a period of a year or two and they tried him for a dozen and convicted him on each trial in separate.

Mr. Peter L. Strauss: I think that would offend the legislative policy or the recidivist statute as I understand that.

Chief Justice Earl Warren: I know but would it affect the Constitution for him to do that and if it doesn't how can we say that it will not be done to the prejudice of a defendant when this happens?

Mr. Peter L. Strauss: Well I think it's in -- what we're speaking of, a case where the opinion through disruption or some other circumstance is destroyed so that it does not reflect whether the concurrent sentence doctrine was applied.

So that it does not reflect whether they were separate cases.

So that a state court goes against the grain of its recidivist statute and applies it to count more than once from the single conviction.

Although on multiple counts, I think all of those things put together really are an extraordinarily remote circumstance.

And I would say if they occurred.

Chief Justice Earl Warren: It will be remote for everybody except the man who's involved?

Mr. Peter L. Strauss: If they occurred, I would think that man would have a sound claim to not having the statute applied to him as a matter of due process.

Chief Justice Earl Warren: And he'd have to go back 25 years maybe to establish that that was a situation.

Mr. Peter L. Strauss: But the state would have had to go back 25 years to establish that the other was essential.

Chief Justice Earl Warren: No, but there's a little difference between the power of the state and the power of an individual particularly an indigent one to prove such things, isn't there?

Mr. Peter L. Strauss: But the state were able to come up with one part of the record.

It seems to me probably they could have come up with the remainder of the record.

If there is a record of the conviction, I would think that would also be a record of the appellate proceedings.

We're not talking about --

Chief Justice Earl Warren: I know but --

Mr. Peter L. Strauss: -- transcripts.

Chief Justice Earl Warren: Is it your position that the burden is on the state or on the prisoner to prove such thing?

Mr. Peter L. Strauss: To prove which, Your Honor?

Chief Justice Earl Warren: Well for the state, is it the burden of the state to prove that he was not injured by this, this double punishment or is it the burden of the defendant to prove that he was?

Mr. Peter L. Strauss: I would say that once the double punishments were shown it was the burden of the state to prove that he was injured.

Chief Justice Earl Warren: In this case, the burden would be on the Government to prove that there is no --

Mr. Peter L. Strauss: This is not the case of application of recidivist statute, Your Honor.

Chief Justice Earl Warren: No it doesn't.

It isn't but we're dealing with what it might lead to, are we not?

Mr. Peter L. Strauss: I am -- well I don't wish to speak for the Maryland law because I'm sure the --

Chief Justice Earl Warren: Not interested in just the Maryland law, we're interested in what can happen all over the country because in other parts of the country, they can charge him with recidivism under the Spencer case and all they got to do is prove that he's been convicted twice or so and then he goes penitentiary for his natural life.

Mr. Peter L. Strauss: I think this Court could in this case if it wished to indicate perfectly plainly that where double convictions occur on a single trial occasion.

That if review is not had as to all counts and if the record doesn't show review has had as to all counts if in no other circumstances.

Those double convictions cannot be counted twice.

And since the situation is so remote and I genuinely do believe it is.

I think that that would be an adequate response, particularly in view of the genuine importance of this doctrine in the Courts of Appeals.

The Court of Appeals in the Berger case would otherwise have to read what it considered to be an extremely lengthy record.

That time would have been taken away from other pending appeals, meritorious appeals, appeals where the court could have done something.

Unknown Speaker: Mr. Strauss, do you have any figures that indicate how many criminal appeals were disposed of on concurrent sentence doctrine?

Mr. Peter L. Strauss: Well, we made a survey as you know in our brief indicating that in something like 40% of the appellate cases that had come before the court this term 45% concurrent counsel present.

Sampling of those and we were able to do only a sampling of those indicate in about 20% of those cases the concurrent sentence doctrine was used.

Now if I may go back to the question Justice Fortas asked before, I think the doctrine was under used in a sense that there were some cases in which the doctrine wasn't use because the claim of error on the concurrent count was so clear one way or another, that it was as efficient or more efficient simply to deal with it, and that frequently happens.

But I think the answer is about 20% or in about roughly 10% of the appeals that have come up, 20% of 45%.

Unknown Speaker: As an absolute number, what's that went to?

Mr. Peter L. Strauss: Of a --?

Unknown Speaker: As an absolute figure, what's that went to?

Mr. Peter L. Strauss: Well, there were 3851 criminal appeals in 1968, that would be about 385, 400, 350.

Unknown Speaker: As I say 3850 add all criminal appeals not just those involved in concurrent sentences.

Mr. Peter L. Strauss: All criminal appeals --

Unknown Speaker: Yes, how many --

Mr. Peter L. Strauss: -- about 10% of that.

Unknown Speaker: And how many of the total number of the criminal appeals involved in concurrent sentences?

Mr. Peter L. Strauss: It's 45%, we assume.

Unknown Speaker: 45 so that get us down of 1800, is that it?

It involves concurrent sentence?

Mr. Peter L. Strauss: Yes.

Unknown Speaker: But 1800 and of that number some 380 at were disposed of on the concurrent sentence doctrine.

Mr. Peter L. Strauss: Yes I would -- as a projection from our figures which are subject to error of course.

Unknown Speaker: This is in the federal system?

Mr. Peter L. Strauss: This is in the federal system only and these are very rarely cases as this Court appreciates.

These are very rarely cases on which this Court grants certiorari.

The question which concerns us is the problem of a court that has no discretion to say this question is not important.

We won't hear it except as the harmless error doctrine or the concurrent sentence doctrine may enable it to identify.

Justice Abe Fortas: Well let's take that sort of a case and let's, that is to say let's take an appeal from a District Court to Court of Appeals a direct appeal and the defendant has been -- has received concurrent sentences.

Now is it your position that because there are concurrent sentences or Court of Appeals can decline to consider alleged error with respect to one of those concurrent sentences.

Mr. Peter L. Strauss: Well, it must --

Justice Abe Fortas: But then, I'm talking now about the count --

Mr. Peter L. Strauss: Alright, it must first determine that some other count is good.

It must also determine --

Justice Abe Fortas: Well then, no question about it.

No question about the other count.

Mr. Peter L. Strauss: Alright.

Justice Abe Fortas: And the court is presented with a direct appeal from a concurrent sentence on a count that is suppose to be infected by constitutional errors, some other kind of error.

Mr. Peter L. Strauss: Our position is that if no crossover prejudice occurs, if no legal incidents are present this is harmless error like any other kind of harmless error and the Court need not review and as in harmless error generally, if the error which is claimed is one which on its face appears to be substantial, appears likely to have infected the whole proceedings, that's sufficient to just to require review.

If on the other hand it is not, if the Court can determine that it did not affect the other proceedings, that there will be no collateral consequences then it need not review.

Justice Abe Fortas: So, your theory really is a harmless error theory?

Mr. Peter L. Strauss: I think that's right.

Justice Abe Fortas: With respect to direct appeal now, well supposed it's 2255 in the federal case or habeas corpus in federal review state.

No, let's simplify it, let's take 2255, direct appeal the federal case -- direct appeal to the Court of Appeals of federal case from District Court's denial of 2255 and an attack on the concurrent judgment, the concurrent count for to receive concurrent sentence and do you still rely on that harmless error theory?

Mr. Peter L. Strauss: Well, it is in a fashion that is if the petitioner in that circumstance could show as part of his petition that the other counts under which he is being concurrently held were infected by that error then he would be entitled to review.

Now, there will be the situation on habeas corpus which there is not in direct appeal. Someone may have had two separate trials.

Of course the concurrent sentence doctrine could never foreclose review from separate trials but there would be the no possibility of alleging that trial error at one trial had prejudiced the result of the other.

Justice Abe Fortas: Alright, now Mr. Strauss, the problem is that I have difficulty in squaring this theory with the Government's argument that the burden should be on the prisoner.

If you say that this is harmless error that your theoretical basis for Court's declining to review the judgment on a concurrent sentence situation is harmless error, then how can you say that the burden should be on the prisoner to show that it was not harmless?

So, isn't that just the opposite of what usually happens in harmless error situation?

Mr. Peter L. Strauss: No, Your Honor, if I may take a -- what one may call a statutory or a non-constitutional error, before the passage of a harmless error statute which I'm not talking about, I'm not talking about the constitutional error here for a moment.

Before the passage of the constitutional error statute, plainly the situation you're referring to is inexistent equally plainly that that statute was passed to change that situation and the legislative history we find that the House saying and one is very short report.

A report that was adopted by this Court in (Inaudible) that unless the error appears on its face to be a substantial one which would prejudiced substantial right in which event review should be have but unless that is the case it is the burden of the appellant to show that there was error.

Now, I realized that there is the court --

Unknown Speaker: To show that it was error?

Mr. Peter L. Strauss: To show that it prejudiced to substantial rights, excuse me.

There is the Chapman case but the Court did repeatedly stress in that case that it was dealing with constitutional error and as I understand it, it really involved the determination of constitutional error would be error affecting substantial rights and that seems to me (Voice Overlap) fair.

Unknown Speaker: But now what you're --

Well now, I see.

So you may -- you are making the same argument with respect to constitutional error.

Mr. Peter L. Strauss: In respect of constitutional error what one asked to remember is that here unlike Chapman the constitutional error by hypothesis does not go to the whole conviction.

It goes only one of several counts and while Chapman provides authority for the proposition.

Unknown Speaker: How can you say that's not a whole conviction?

If it's a conviction the judgment will sentence on a count.

It's a whole conviction with respect to that particular count.

Mr. Peter L. Strauss: It doesn't have independently all of the incidents which a conviction will have.

It doesn't independently if the other convictions entered at the same time excite with recidivist statutes.

It doesn't independently authorized confinement.

It doesn't independently serve as a mode of impeachment.

Unknown Speaker: Well, I think I understand you now.

Let me make sure.

You made no distinction between direct appeal and collateral attack, that's number one.

Number two, you make no distinction whether it's constitutional error or a statutory error or some of them are constitutional type of error.

In any of those situations, the Government's position is that where the appeal is sought from judgment imposing concurrent sentence the burden should be on the appellant or the petitioner to establish that there are practical adverse consequences that flow from the concurrent sentence which he seeks to have set aside.

Have I correctly stated your position?

Mr. Peter L. Strauss: I think not.

I think first that we do say that there is more -- we would acknowledge that there is more room for discretion.

Unknown Speaker: Are you just saying --

Mr. Peter L. Strauss: Although the theoretical premise --

Unknown Speaker: You're just (Voice Overlap) the whole thing up is a discretionary matter then?

Mr. Peter L. Strauss: We believe it is.

We don't believe there's a jurisdictional basis.

Unknown Speaker: I understand that but you're saying that we can have a different rule that it would be perfectly appropriate for the courts to adopt a different rule or different set of standings and one of the situations as compared with the others, is that it?

Mr. Peter L. Strauss: Alright.

We would think it would be wholly regrettable to adopt the Sibron rule for the reasons we put out but yes.

Unknown Speaker: You make these distinctions on your brief?

Mr. Peter L. Strauss: Which distinctions?

Unknown Speaker: Between direct appeal collateral attack between constitutional claim based on the Constitution and claim based on the non-constitutional ground.

I didn't see it on your brief.

Mr. Peter L. Strauss: No.

Unknown Speaker: I didn't see that in your brief.

Mr. Peter L. Strauss: No, that's not in the brief but I think it does follow from our particular approach to the question that they are there.

I would also say with respect to the constitutional versus statutory question we do not believe there should be any distinction but it certainly we couldn't say that that might not be an appropriate basis of distinction.

Justice Thurgood Marshall: Mr. Strauss.

Mr. Peter L. Strauss: Yes?

Justice Thurgood Marshall: Supposed you had two-count conviction with two witnesses.

One for each count and concurrent sentences and in one of counts the witness is an admitted perjurer and that's found out five years from that, what under the sun can that man do to clear his record off?

Mr. Peter L. Strauss: I think if he -- I think if these are two separate trials, I think this is --no, no, excuse me, two separate matters and not a larceny which took place in the middle of the burglary as it is in this case.

I think we do in our brief acknowledged that that is a case in which Court should be much more ready not to apply the concurrent sentence doctrine in which the question of prejudice appears much more readily than it does in the case.

Justice Thurgood Marshall: Well, in this 2255, what would he get?

Mr. Peter L. Strauss: I thought we were speaking about --

Justice Thurgood Marshall: He served in a concurrent sentence of 15 years and one of them admittedly bad.

Mr. Peter L. Strauss: One of them is admittedly bad with these separate trials or a single trial, Your Honor?

Justice Thurgood Marshall: Two-count indictment tried in the same courtroom at the same time.

Mr. Peter L. Strauss: I would think that question should be raised on appeal?

Justice Thurgood Marshall: Will -- would pass the appeal stage but now the two point of 2255.

Mr. Peter L. Strauss: I would think had he not raise the question on appeal that it would be competent at that point to decline to pass on the allegation on the basis of the good count unless he could show and quite possibly he could show that the bad can prejudice the good count.

Justice Thurgood Marshall: Oh, no possibility.

Mr. Peter L. Strauss: Well, then I think --

Justice Thurgood Marshall: Do you start with a bad conviction?

Mr. Peter L. Strauss: But it has no effect on it.

Justice Thurgood Marshall: An unlawful conviction.

Mr. Peter L. Strauss: Which has no effect upon it, which has no legal incident, no legal effect upon them?

Justice Thurgood Marshall: Oh,you mean well -- that's the point that I would like a little answer to, if this doesn't affect them at all why do you insist on defending it?

You say the fact and in that concurrent sentence it doesn't affect him at all, well why are you here arguing?

Mr. Peter L. Strauss: I think we're arguing principally on the grounds of judicial efficiency which we set out in our brief that to require appellate Courts which are very hard pressed, I'm talking about the Courts of Appeals to stand what may very frequently be a very long period of time considering questions as to which they can do absolutely nothing a practical benefit to the petitioner involved, the appellant involved is to engage them in ways to work.

Justice Abe Fortas: Well, is this a very efficient procedure that we have in this case where they took advantage of this multiple sentence and not only went through to all of the Maryland's courts but had been in this Court and had it reargued and so forth.

If the state only took advantage of those same which would not hurt that the fact and would not help them wouldn't we be relieved of all these things and why is it necessary for the state to keep a man under a conviction of two offenses where there is no difference in his sentence as you say.

And what benefit could there be to the state to keep him under the cloud of those two convictions when one would do justice well from a standpoint of the state of rehabilitating him and if you choose punishing him whatever theory you have of sentencing the defendants.

Why do you want to fight as you do for all of these things when there is no good to anybody and some harm possibly to others?

Justice Abe Fortas: Well, Your Honor, I think I agree with you to this extent that the same end could be served from the state's interest by imposing a single general sentence and as you recall this is the situation in which the question is most frequently arisen in this case -- in this Court at least which arose most early but the concurrent sentence serves one function.

It enables the trial judge to give a reviewing court some indication how he views each of the crimes charged on the indictment.

Now, this might very well have been an appeal where the 15-year burglary sentence was under appeal.

And the five-year larceny count was not and if there were a general sentence in those circumstances assuming 15 years is possible under the Maryland larceny statute, I don't know.

And the Court found that the burglary count was bad under general sentence to 15 years and said, “Well, since the larceny count supports it anyway we won't do anything quite plainly, there would have been substantial prejudice to the accused.

So, I think the concurrent sentence does serve a valuable purpose in that respect.

Chief Justice Earl Warren: Let me ask you just one other question, supposed a man in a position of this petitioner should take the stand as a witness either in his own behalf or in behalf of someone else and another jurisdiction and he was asked the question, “Have you ever been convicted of felony?”

And he says “yes.”

“And you were convicted of burglary, weren't you?”

“Yes.”

“You were also convicted of larceny, weren't you?”

“Yes.”

Do you not think that would be worse than to have a man merely admit that he was convicted of burglary?

Mr. Peter L. Strauss: Well, again it seems from what I know of criminal practice the more general practice is to ask, “Are you the man that was convicted on such and such a date of entering -- breaking and entering into somebody's home?”

And not to specify each of the independent counts if you have 35-count mail fraud statute.

Chief Justice Earl Warren: You haven't had that much experience because they don't do it that way.

I know it from some experience.

Mr. Peter L. Strauss: The --

Chief Justice Earl Warren: You ask him, “Have you ever been convicted of a felony?”

“Yes.”

“Were you convicted of burglary and such and such a crime?”

“Yes, I was.”

“Were you ever been convicted of larceny in that same court?”

“Yes, I was.”

And do you mean to tell me that that wouldn't have some effect on a jury, on the credibility of this man?

Mr. Peter L. Strauss: It could certainly be the jury -- could certainly be told that, that was the same offense.

Chief Justice Earl Warren: Well now who's going to tell?

Mr. Peter L. Strauss: Counsel for petitioner -- for the defendant or the defendant themselves.

Chief Justice Earl Warren: Can they go in and try those sayings on such a collateral matter?

Mr. Peter L. Strauss: Can they say that it was the same count?

That it was the same offense I would -- should certainly think of the state were entitled to try and get the jury to believe that they were separate matters that the defendant would be entitled to show that they were one and the same and that the state was out trying to squeeze more juice from the orange than it had in it.

Chief Justice Earl Warren: Well, all they have to prove is the commitment and they've got the commitment there.

They can't go behind that from trial and such issues of that collateral matter as far as I know.

Mr. Peter L. Strauss: I should think they would be able to that extent.

I should also think that as we again, as we make out in our Proner brief that it would be competent to rule that where there were such incidental possibilities as that, simply that they could, that it could not be given collateral effect of that source that if review was declined for reasons of the concurrent sentence doctrine on a particular count that should a prosecutor be so minded as to do what you suggested in the future he simply could not do so and his doing so would be error.

And that would to us at least be considerably the more efficient means of dealing with the situation rather than as in this Berger case forcing the Court of Appeals to read the four or five volume record to determine a question which couldn't really affect the practical outcome of the case before it and which would delay and quite possibly prejudice the decision of the appeals and other pending cases.

Thank you.

Argument of Francis B. Burch

Mr. Francis B. Burch: Mr. Chief Justice, Mr. Justices --

Chief Justice Earl Warren: Mr. Attorney General.

Mr. Francis B. Burch: -- may it please Your Honors.

If I may I'd like to address myself to some of the opening remarks made by Mr. Cramer.

I think he probably unintentionally overlooked pointing out to the Court that with respect to the increase of penalty on the second trial for burglary from 10 years to 15 years that this is a matter of a separate proceeding before the United States District Court in Maryland.

The matter has been decided.

The federal court has directed that the sentence be reduced to 10 years.

It is on appeal to the Circuit Court for the Fourth Circuit and being held by the Circuit Court for the Fourth Circuit pending the outcome of this proceeding and I thought that it is important that the Court be apprised of the fact that as far as that 10-year, 15-year aspect to the matter is concerned it has been adjudicated and that of itself is on appeal.

Chief Justice Earl Warren: Did the Court write an opinion there?

Mr. Francis B. Burch: Excuse me, sir?

Chief Justice Earl Warren: Did the Court write an opinion in that case?

Unknown Speaker: I don't know whether there was an opinion, has it gone down to the Fourth Circuit?

Mr. Francis B. Burch: They granted a -- Your Honor, they granted -- District Court did write an opinion in that case.

Unknown Speaker: Yes.

Chief Justice Earl Warren: Can I ask what the -- what the reason for the reduction of the set?

Mr. Francis B. Burch: On the theory of double jeopardy that by increasing the penalty that it was in the nature of double jeopardy and therefore it should not have been permitted to increase the penalty under the Patton case.

Mr. Cramer has pointed out that it was prejudicial to try the larceny case in the second trial about the burglary case because the larceny case under his interpretation or theory of the case was in fact a double jeopardy proceeding.

I might point out that this would be true with respect to any account that was held to be invalid if there was, there were five counts and one was good and four were held to be invalid, you could say that trying the one good count with the four invalid counts would effect the one good one and consequently that the one good count should be thrown out and I don't believe that any of the cases hold to that effect.

Justice Thurgood Marshall: Was the Attorney General, legal stand not guilty of larceny in the first case?

Mr. Francis B. Burch: In the first case.

Justice Thurgood Marshall: And am I correct that there is no way under the suns you could have retried him on that count if he had used his right to give a new trial?

Mr. Francis B. Burch: I'm not sure I quite understood your question, Mr. Justice.

Justice Thurgood Marshall: The original acquittal you could never agree had retried him after he was acquitted of larceny.

Mr. Francis B. Burch: That's correct.

Justice Thurgood Marshall: Except if the new trial is granted.

Mr. Francis B. Burch: That's correct but in this particular case because of the Schowgurow case and his having in the Schowgurow case the Court of Appeals held that all indictments by grand juries who were required to profess their belief in God were invalid.

Justice Thurgood Marshall: Was that for the benefit of the defendants?

Mr. Francis B. Burch: And he was given the opportunity.

Justice Thurgood Marshall: And the opportunity was given was to get five more years?

Mr. Francis B. Burch: The opportunity was given him to get the advice of counsel to decide whether he wanted the first indictment sustain and to pursue his appeal that was the intending in the Court of Appeals of Maryland whether he wanted to stand under a new indictment which would have been included the same counts as the original indictment.

Justice Thurgood Marshall: So he really had a temporary acquittal?

Mr. Francis B. Burch: He had an acquittal in the first --

Justice Thurgood Marshall: A conditional acquittal?

Mr. Francis B. Burch: -- case but the court held that he had waived and I know this was all argued that the previous hearing that he had waived any of the rights he had under the first series of indictments in the counsel because that was stricken out the first indictment, everything fell with it.

And therefore he was to stand trial as there where a new trial to begin with in the first instance.

If Your Honor Mr. Chief Justice say in the Sibron case --

Chief Justice Earl Warren: May I ask your position -- what's your position here?

That's your position here, you say that's a sound position for the state to take?

Mr. Francis B. Burch: We take the position that under the waiver which was signed and if Your Honors are interested on the position to read to you the actual proceedings that at the time of the second indictment when he was apprised with counsel present as to exactly what the situation was, as to fact that he might receive an increase sentence do I have that if you please?

Chief Justice Earl Warren: Where do we find that in the record?

Mr. Francis B. Burch: Well, the issue was never raise up until the point was reached here at the time of argument and we therefore do not have it in the record because it was never raise by the petitioner below.

But if I may, I would like -- the Court have thoroughly explained to him and this is the court now at the time about the second indictment as pressing the remark now to counsel for the defendant.

“Have you thoroughly explained to him and do you understand all of the prevision of the Schowgurow case?”

Mr. O'Malley: “Yes, sir.”

The Court: “You have thoroughly explained to him all aspects of it?”

Mr. O'Malley: “Yes, sir.”

The Court: “That he is not required in any manner to waive his original trial or appeal, he may allow his appeal to stand you have explain that him?”

Mr. O'Malley: “He can allow his appeal to stand and waive a new trial, yes sir.”

The Court: “In the Court of Appeals?”

Mr. O'Malley: “He can.

I have explained to him that he can elect to proceed on his present appeal or in the alternative he can ask to be tried anew with a new indictment.”

The Court: “And what has been his choice?”

Mr. O'Malley: “His choice is to have a new trial.”

The Court: “New trial?

Now does he fully understand and I direct my remarks directly to you, Benton, do you fully understand that she will be tried again and if found guilty you could get a greater sentence?”

The Defendant: “Yes, sir.”

The Court: “And it would be no inference in any manner that in any time that you have put in thus far would be credited towards that sentence?”

“Yes, sir.”

“Do you understand that?”

“Yes, sir.”

The Court: “Very well, under the facts developed at this particular hearing the Court awards you a new trial.

Now, do I understand his been arraigned under the entry of the Clerk?”

“Yes, Your Honor.”

Then they proceeded to the arraignment.

And the Clerk: “You have been indicted by the grand jury for Prince George's County on the charge of burglary, common law housebreaking and larceny.

And Mr. O'Malley: “As your attorney in this case, yes or not, do you plead in this case guilty or not guilty?”

The defendant: “Not guilty.”

“How do you elect to have this case tried, by the court or by jury?”

The defendant: “By jury.”

Justice Abe Fortas: Mr. Attorney General --

Mr. Francis B. Burch: Now, the Court: “Very well are you in jail at the moment?”

“No sir, I am on bond.”

He was on bond so was the question if Your Honor please of there being any credit given for the time that he spend in jail because he was on bond.

He had not spend any time in jail?

Justice Abe Fortas: Mr. Attorney General, let's see if I can get this straight in my own mind.

This defendant was first tried for larceny and burglary.

He was found guilty of burglary, not guilty on the larceny charge.

Mr. Francis B. Burch: It's correct sir.

Justice Abe Fortas: He was sentence to 10 years in prison on the burglary charge.

He then appealed and the conviction was set aside on the basis of Schowgurow case.

Mr. Francis B. Burch: Actually it was never set aside because his appeal was in process and the Court of Appeals of Maryland gave the opportunity to all those --

Justice Abe Fortas: Oh, whatever --

Mr. Francis B. Burch: -- who's cases are not been concluded --

Justice Abe Fortas: No, but some must have --

Mr. Francis B. Burch: To ask for new trials.

Justice Abe Fortas: Some must have happen and summons was vacated, something happened.

Then he was tried again and he was convicted on both counts.

Mr. Francis B. Burch: That's correct.

Justice Abe Fortas: And he was sentence to five years as time for larceny for which he have been previously acquitted.

Mr. Francis B. Burch: That's correct.

Justice Abe Fortas: And 15 years for burglary, is that right?

Mr. Francis B. Burch: That's correct, sir.

Justice Abe Fortas: And now you have told us a few moments ago that the United States District Court, is that right?

Mr. Francis B. Burch: Of Maryland.

Justice Abe Fortas: In Maryland, has entered some kind of an order reducing --

Mr. Francis B. Burch: Directly that the sentence be reduced from 15 years to 10 years on the burglary count.

Justice Abe Fortas: On the burglary count so now he has a 10-year sentence on the burglary count and a 5-year sentence on the larceny count to run concurrently.

Mr. Francis B. Burch: That's correct, sir.

Justice Abe Fortas: And you tell us at that decisions of the order of the District Court the Federal District Court is on appeal to the Fourth Circuit, is that correct?

Mr. Francis B. Burch: That's correct, sir.

Justice Abe Fortas: So that as we set here we don't know whether this case will involve a 5-year sentence on larceny and a 15-year sentence on burglary or whether it will involve of 5 and 10 years sentence?

Mr. Francis B. Burch: That's correct.

Justice Abe Fortas: The original sentence being 10 years I supposed that the ultimate outcome of this Fourth Circuit proceeding has some bearing on the question of harmless error that should be the theory, is that correct?

With respect to the concurrent sentence problem.

Mr. Francis B. Burch: I don't know that it would have any connection with the harmless error on the concurrent sentence because it makes no different whether the sentence on the burglary is 15 years or 10 years in so far as the 5-year concurrent larceny is concerned.

Justice Abe Fortas: I see.

Mr. Francis B. Burch: They're still served together.

Justice Abe Fortas: And still have 5 and 10-year --

Mr. Francis B. Burch: And they'll be allowed for parole -- for parole at the -- after you serve 25% less good time on the 10-year sentence assuming that that's what the ultimate disposition is at the federal level.

Mr. Chief Justice, in Sibron, I believe that you made the observation that you thought that the Pollard has in effect created a presumption of collateral consequence and that the burden was therefore on the state to prove that there was no collateral consequence.

And I have read the Pollard, and quite frankly I see nothing in the opinion itself which directs itself to the question of presumptions under one hand or burden on the other.

There is just a very short paragraph in there in which the Court says that there appears to be substantial likelihood of collateral consequences in so far as the defendant and in that case was concerned.

And it may well be that the record of the case would disclose that in fact there were some significant collateral consequences on the face that would be -- that the defendant himself might have suffer if the conviction were allowed to stand and reviewed.

And I'm merely suggest that because I'm not ready to accept that Sibron itself or that the decisions of this Court have clearly enunciated the rule that in the mootness cases, the presumption exists that there is collateral consequence on the one hand and that the burglary is on the state on the other.

But I do share the view of the Solicitor General that even though that may be the rule with respect to the mootness doctrine it should not be and is not we believe the rule with respect to concurrent sentencing and the Hirabayashi rule.

We believe that if you go to Sibron itself one thing is very clear as it is in Pollard and that is that in both instances the Court has pointed out that is not just simply a case of a possibility.

Is not just simply a case of the parade of horribles being dragged along and saying that anything can happen because anybody who has imagination can create a possibility simply because they have an imagination.

But what the Court -- what you said Mr. Chief Justice in the Sibron case was that, if I have the right quotations, the conclusion you said, “St. Pierre versus United States, must be read in light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenge conviction.

That certainly is not the case here Sibron has a substantial state in the judgment of conviction which survives the satisfaction of the sentence imposed on him and I would point out, that in the Sibron case the state acknowledged and admitted that there would be collateral consequences in so far as this particular defendant was concerned.

So, I do not argue with Sibron.

I do not argue with the doctrine that whether there are substantial collateral consequences the right of review should in fact exist.

The same thing is true in Pollard, if we go to the language of the Court in Pollard the Court said, “The possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.

Again, it is not just simply a claim of collateral of consequence but there has to be some showing and I believe that that showing should be the burden of the showing should be on the --

Unknown Speaker: Mr. Attorney General may I ask, does this sort of thing happen in Maryland? Supposed there were involve here two burglaries?

Mr. Francis B. Burch: Two what?

Unknown Speaker: Two burglaries, separate burglaries.

And this petitioner had been tried and convicted that a jury in one week of one of them?

The following week he was tried and convicted by another jury of the other.

But sentence was imposed in -- on both convictions on the same day and they were both 10-year sentences and they were to run concurrently.

In that circumstance, does your state court, do they apply the --

Mr. Francis B. Burch: I may be wrong but I don't believe they apply the concurrent sentence.

Unknown Speaker: They do not.

Mr. Francis B. Burch: I don't believe so, Your Honor and I would hesitate to say categorically, they do not because that could be wrong but I do not believe that they do.

Unknown Speaker: Well, do you --

Mr. Francis B. Burch: If they were --

Unknown Speaker: Do you think that would be a circumstance where you would support there ever applying the concurrent sentences?

Mr. Francis B. Burch: Yes, I think.

Unknown Speaker: You think you would support?

Mr. Francis B. Burch: No, I think that this would be a circumstance which would warrant in that ability of the concurrent sentencing doctrine.

Unknown Speaker: But Maryland doesn't use the rule at all in the state court.

Mr. Francis B. Burch: Doesn't use the what?

Unknown Speaker: The concurrent sentence.

Mr. Francis B. Burch: Oh, yes, yes we do.

Unknown Speaker: On -- your courts --

Mr. Francis B. Burch: And I wanted to address myself that the Meade case makes it very clear.

Unknown Speaker: So you say that the suggestion you had from your opposition that Maryland does not apply the rule at all that was wrong?

Mr. Francis B. Burch: I don't know that we said it to the rule does not apply at all --

Unknown Speaker: The other side -- the other sentence?

Mr. Francis B. Burch: The other side --

Unknown Speaker: It may perhaps --

Mr. Francis B. Burch: They cited in their reply brief then Mr. Cramer, they cited the case of Brady versus Maryland.

Well, actually what Brady versus Maryland did if I may -- the concluding paragraph of the Court in Brady versus Maryland was although the judgment under the first count in indictment number 4073 was null and void.

We see no reason to remind for a new trial since the lower court sentence the appellant to 10 years in number 4074 to run concurrently with number 4073.

And the same -- under the same facts of circumstance and what the Court did it reviewed 4073 which ended up by being the bad count.

But the reason they reviewed it because there was the first count and they found that invalid, it reverse on that, it did what the Solicitor General has said -- Mr. Strauss has said and that is sometimes they will review but where it serves no good purpose they don't review because of the efficiency of the judicial system on the appellant system.

But in this case the first count was found to be bad.

They reversed as to that count but they did not remand because they employed the language of the concurrent sentence doctrine it said in effect it would be harmless error in any event.

And in the case of Meade versus State, this was where there was a concurrent sentence with on a number of counts on general sentencing on a number of counts and the court in affect applies the basis philosophy of the concurrent sentence doctrine.

In the Meade, it would not review all of the other counts once it found, one of the counts valid.

Unknown Speaker: But these are all convictions as I understand that I like to be clear about this?

Under your practice this happens only in the case of convictions by the same jury of a number of counts at a single trial?

Mr. Francis B. Burch: This is my understanding but I wouldn't want to make a representation to the Court because I'm not 100% sure but I believe I'm right.

Unknown Speaker: Mr. Burch, do you have any knowledge of the contrary?

Mr. Francis B. Burch: If they have five cases arising out of different sets of circumstances that maybe tried the same day I can see where the Court --

Unknown Speaker: I'm not talking about that. I'm talking about --

Mr. Francis B. Burch: I understand that.

Unknown Speaker: -- separate trials, in separate juries but concurrent sentences that sort of thing.

Mr. Francis B. Burch: I don't know of the instances where this is happening Your Honor but if it did, if there were -- there was a trial today and next week another trial two different crimes, two different sets of circumstances, two different indictments, and there were two convictions then I think the concurrent sentence doctrine would not apply.

I think this would be the type of instance where the right of review should exist.

Unknown Speaker: Why?

Why?

Mr. Francis B. Burch: Because then you have two separate convictions by a different courts, different juries removed each from the other in time and that the circumstances are different.

Unknown Speaker: What difference is that?

Mr. Francis B. Burch: And then, it could have the possibility of collateral consequence.

Unknown Speaker: What?

Mr. Francis B. Burch: Because then it's possible that there may be the number of convictions under different sets of facts and circumstance that a subsequent court in imposing a sentence might take into consideration.

It might have some effect on the --

Unknown Speaker: You mean on the effects of a recidivist statute (Voice Overlap), there are clearly to be two convictions.

Mr. Francis B. Burch: Well, I'm not so sure because under the -- there's a Florida Law Review Article in -- I'm sorry I don't have the article here but the case comes discussing this question of recidivism and the penalty says many states has statute similar in purpose to the one in Florida.

This statute is generally are of two classes.

Those which specifically state the rule that the commission of each offense must be subsequent in time to conviction for the last previous offense.

And those that are less specific merely mentioning previous convictions and subsequent offenses without reference to the time element.

By a great numerical majority, courts of states having statutes of the second type have construed their provisions as operating in the manner expressly stated in legislation of the first type considering the philosophy underlying habitual criminal statute in which best the case should be act when question falls such interpretations are not surprising.

The purpose of most habitual criminal statutes is to protect society from criminals who persist in the commission of felonies.

The statutes contemplate however, that on opportunity for reformation be given after each conviction before concluding that the criminal habit is incurable.

And that is why I was going to address myself to the point I think Mr. Chief Justice here raised and that is that the application of the recidivism statutes has generally been and I think from (Inaudible) all amounts we had has been almost uniform throughout the country that they look at what has happened after this given point of time, to see whether or six months or year or two years later there has been a falling back in to the old ways and more crime has been committed.

We have no recidivism statute in Maryland.

So that it really becomes of no particular consequences so far as this particular case is concern although I'm sure the Court will address itself to the broad question.

One of the things that bothers me about these whole thing is just what is going to happen if the concurrent sentencing doctrine is abolish by this Court.

I know what problems we had in the State of Maryland in dealing in the habeas corpus cases with the -- at the federal court level.

We have reached the point that I had to go to the governor of the State of Maryland to get additional funds in order to hire additional assistance to attorney general to be able to keep up with the work load in the federal court, and this is a very difficult situation and it's becoming even worst in the state courts.

Now, this means that we're having a backlog of cases at the appellate level, we're having a backlog of cases at the Federal District Court level and then the net end result of it is that those who are not out on bail by necessity, you're going to have to spend more time in jail awaiting either the culmination of their cases on appeal or new trials whatever the case might be.

And I would hate to think that unless there is a showing of a collateral consequence in the words of Sibron of a substantial nature, or in the words of Pollard of a substantial nature that we would create even, even greater backlog that would require those people who are now languishing in jail awaiting the culmination of all of their appeals that were required then to stay there even longer --

Justice Abe Fortas: Mr. Attorney General, --

Mr. Francis B. Burch: -- and I think this is a practical question that we must adjust ourselves too.

Justice Abe Fortas: Mr. Attorney General, Maryland does have an appeal as of right --

Mr. Francis B. Burch: That's correct.

Justice Abe Fortas: -- from the criminal conviction.

Mr. Francis B. Burch: To the first -- to the special Court Of Appeals then certiorari to the Court Of Appeals.

Justice Abe Fortas: Do you see a distinction which of consequence between the considerations of the concurrent sentence doctrine on direct appeal as compared with its application and collateral attack.

Mr. Francis B. Burch: Mr. Justice Fortas, yes I do.

I see a distinction and that I think that the concurrent sentencing doctrine should be under all circumstances keep viable at the -- on the collateral basis.

That is so that they can't go in under the habeas corpus in to the federal court after they had the opportunity to do it at the on the direct appeal level.

I believe that it is a viable doctrine that should be applied on direct appeal as well at the collateral level but certainly if it should ever come to pass where it is not kept at the direct appeal level it should never be abandoned and so far as the collateral level is concerned because at least that opportunity has been afforded through the method of direct appeal.

Chief Justice Earl Warren: General, let me ask you this question.

Assume that we could start afresh now without any consideration of your backlogs or what backlogs would be – with eventual aid in the event of taking into consideration all the cases that have been handled in this manner.

What is a great interest in the state?

And what -- how would the state be hurt by not attacking on this penalty that you say doesn't injure the defendant in anyway and I don't know how it is going to help the state to do it?

Why should we have all this difficulty and all this argument about something unless it's a real vital interest of the state involved?

If a man is going to do 10 years, why shouldn't he do 10 years on the case that he's clearly guilty of and not have this underlying current going on all the time?

Mr. Francis B. Burch: Mr. Chief Justice, I think it' simply gets down to the question of the fact that the defendants in many instances are tried on multiple counts.

Chief Justice Earl Warren: Why are they?

Mr. Francis B. Burch: You have as in this case a jury trial, multiple counts.

Chief Justice Earl Warren: Why are they though?

Mr. Francis B. Burch: Well I say you have a -- in this case a jury question.

The district attorney or the states attorney, as we call them in Maryland, prepares the indictments grand jury indicts and they may feel that they cannot be press at that at the then state of investigation that they may be able to prove through these series of facts that there was burglary.

Or they may not be able to prove all of the elements of burglary but they may be able to prove the elements of larceny or they may not be able to prove all of the elements of either one of this and they may be able to prove the elements of housebreaking which for the three counts needs particular indictments.

The housebreaking one by the way was abandoned on both instances before a trial took place.

So, now you have the case go to the jury as this did in one case the jury came in guilty as to count burglary not guilty as to larceny.

On the later trial, they came in guilty as to burglary, guilty as to larceny.

The judges now in the position of imposing the sentence, he imposes the sentence on the two counts, they have found -- been found guilty of both.

He opposes the sentence on the two counts.

Both of these cases now are subject to appeal.

It may be as we did in the Brady case where they found the first count to be defective that they reversed as to that but then they found the second count to be valid and therefore the imposition of the sentence was upheld.

So that there could be a failure on the part of the state to prove this particular aspect of that particular crime as alleged in the indictment, whereas it may be able to be sustained under a second count of burglary.

Justice Thurgood Marshall: Is it your submission --

Mr. Francis B. Burch: And this is the problem that they're using the opportunity to try to -- on the basis of the facts have a valid conviction and the court then sentences on both.

Justice Thurgood Marshall: Is it your submission that the sentencing judge if he's in doubt as to legality of the verdict, he may set a concurrent sentence on one that he knows is good, is that your submission?

Mr. Francis B. Burch: I don't really believe Mr. Justice that this is the philosophy of the lower court Judges in Maryland.

Justice Thurgood Marshall: I thought you were getting --

Mr. Francis B. Burch: I would say that almost invariably the federal -- the courts in Maryland when there are multiple counts and convictions on multiple counts of rising out of the same facts and circumstances will impose concurrent sentences.

It's a rare thing, a very rare thing to read where the court below has imposed sentences on these multiple counts and made them consecutive, very rare.

Unknown Speaker: How about if it was just a general sentence?

Does that happen very often, Mr. Burch?

Mr. Francis B. Burch: Well we had it in the Meade case.

I, myself don't have that much contact with the lower courts to be able to evaluate what they do on --

Unknown Speaker: I just want to (Voice Overlap).

Mr. Francis B. Burch: Mr. Borgerding might be better able to answer this.

Unknown Speaker: But in this very case I just wondered, might there have been just a single sentence a 10 years period.

Mr. Francis B. Burch: This -- there could have been.

There could have been but I think like the -- Mr. Strauss, the Solicitor General believes I think that the rights of the defendant are better protected by the concurrent sentences on the specific counts than on the general sentence.

And I would hate to have to go to the general sentence on multiple counts when I think the rights of the defendant are better protected on this specific sentences on these specific counts.

Justice Abe Fortas: Mr. Attorney General, what is -- can you tell me what the actual practices in Maryland on appeals on criminal cases, is it really the practice to refuse to review a concurrent sentence?

What does your appellate court do?

Mr. Francis B. Burch: The appellate --

Justice Abe Fortas: What is the practice?

Does it generally going ahead and review an appeal from a concurrent sentence or does it generally decline to do it?

Mr. Francis B. Burch: Well, there isn't much legal literature on that.

Justice Abe Fortas: I know that.

Mr. Francis B. Burch: And I would say that generally the courts if once they find a good count and the sentences has been imposed as, let's say 10 years on a particular count unless the maximum for all the counts that they won't go into the other counts because it's just simply a matter of a great inconvenience.

The court would have to write an opinion, have to go down as to each of the counts and it would end up by being extremely difficult, burdensome, time-consuming function of the court and again unless there can be shown some collateral consequence to the defendant.

I believe sincerely that it serves no purpose as far as the defendant is concerned.

It serves no purposes far as the courts are concerned, and it serves a great disservice as far as the other defendants who may be languishing in jail awaiting the disposition of their cases on appeal or a new trial.

Chief Justice Earl Warren: Well, General, do you think the views of the District Attorney as you lead them out should be important state interest where they say, well maybe we haven't much of a case on housebreaking and maybe we haven't very strong case on burglary and probably we haven't got much on larceny.

But if we throw them all together and put in testimony on all of them but maybe the sum will be greater than the parts and therefore they'll convict them on all three and we'll sustain them -- we'll sustain all three convictions for any sentence that the judge might want to give on all three of them that he can pick out of the whole situation enough to convict on one of the counts.

Mr. Francis B. Burch: Well, Mr. Chief Justice anything is possible but let me say this that whatever that conviction is, it is reviewable on appeal.

And if all of those four counts are infected with some error because they did not mount up to the quantum of proof that the law requires, then they all would be reverse on appeal, that's the first thing.

The second thing is and I must defend the right of the District Attorney to have the indictments handed down on a multiple counts because let's face it we had some very brilliant defense lawyers who are at the bar everyday.

And if they can use the technicality of the law whether it be because of a defect in the indictment or a defect in the proof or one little scintilla of evidence that might be necessary, absolutely to prove this particular thing they are in a position to find every single one of these doors to walk out of.

And I think then that the state has to right in fact it has the duty it seems to me to have the opportunity to make a -- to have the indictments handed down in such a way that if in fact there has been a crime committed which is punishable by the state.

And they can offer the proof which will stand up on appeal that society has the right to see that that conviction stands.

Chief Justice Earl Warren: Well, that's one thing but does society have the right to say that if there is evidence -- sufficient evidence in there to convict under one theory and the jury finds him guilty of both and that one of them cannot be sustained but still both of them should be sustained because one of them can be.

Mr. Francis B. Burch: I agree with you Mr. Chief Justice if there are collateral consequences that can be shown to have been imposed upon this defendant because of that state of affairs then there should be the right up of review.

Chief Justice Earl Warren: But let me ask --

Mr. Francis B. Burch: But I must go with the harmless error theory of my Brother, Mr. Strauss.

Chief Justice Earl Warren: Yes.

Let me -- I just ask you one question I asked of Mr. Strauss.

Suppose this man 10 years from now in another jurisdiction wants to take the stand as a witness, he therefore himself or for someone else and he has ask, “Have you ever been convicted of a felony?”

“Yes.”

“Have you ever been convicted of burglary?”

“I have.”

“Have you ever been convicted of larceny?”

Do you not think that the conviction on both of those would discredit him more than if he only had to say I was convicted one offense?

Mr. Francis B. Burch: Mr. Chief Justice, first of all I would say this sir that there is no question about it but if he asked the question he has the opportunity to explain his answer and if I were the defense lawyer and a prosecuting attorney were to try to pull that kind of a trick before a jury, I'll tell you, I'd go before that jury with the greatest argument than any defendant ever had.

Chief Justice Earl Warren: Maybe --

Mr. Francis B. Burch: It would be foolishness on the part of a District Attorney to try that type of thing.

Chief Justice Earl Warren: But I think it's done everyday.

We'll recess now.

Mr. Attorney General, you may continue with your argument.

Mr. Francis B. Burch: Mr. Chief Justice, Mr. Justices, during the course of this argument the attorney for the petitioner raised the question as to whether any evidence of the taking of goods in this particular case should have been admitted in to evidence because of his claim that the larceny conviction was illegal, void because of double jeopardy.

I think it should be noted that under the law of Maryland indictment dealing with burglary was the entering, breaking and entering with the intent to steal, and evidence was introduced to show that goods had in fact been taken in order to show that the intent to steal was present on which you would base the conviction for burglary.

As a matter of fact, it's very interesting in this particular case because the place that the defendant entered was a Wednesday Club that actually had to be the property of the people whose goods were taken but it was called the Wednesday Club, I believe it was.

And people came and went and when he was first accosted in the place he claim that he was there as a guest of the Wednesday Club so to speak.

So that it was important that they prove not only the breaking and the entering and the taking of goods for the intent but in case they weren't able to prove the breaking and entering that's why they had the larceny count to show the taking of the goods.

Unknown Speaker: But Mr. Attorney General to what -- under Maryland law, may burglary be proved without proving an actual larceny?

Mr. Francis B. Burch: It maybe intent to steal.

Unknown Speaker: That's all you have.

Mr. Francis B. Burch: That's all you have to prove.

Unknown Speaker: And in this instance then the -- it was the evidence of the larceny which pour on the intent to steal is that it?

Mr. Francis B. Burch: Or you might say the taking of the goods.

Unknown Speaker: Well, whatever.

Mr. Francis B. Burch: The possession of the goods was evidence of intent because the best evidence of intent is, tell me what you've done and I'll tell you what you intended to do.

So this -- so that it supports it.

It would have to come in irrespective of whether it was a larceny count or now there's still would have to come in order to properly prove the burglary count.

Now, let's go to the question of what where the collateral consequences if any that would be suffered by this defendant by the concurrent sentencing.

The first thing is parole.

It makes no difference whether he is in for 10 years or 15 years plus 5 on a concurrent basis because his parole rights are exactly the same.

If I may, I would like to read s the Solicitor General has pointed out in his brief.

“When the Parole Board makes a determination as to whether parole should be granted, they look to the background of the -- and the circumstances of the crimes committed, the conduct and so on and so forth in trying to determine on a current basis whether or not this particular inmate may make a good parolee.”

Under the law of Maryland which is in Article 41 Section 111, it says that talking about the Board of Parole.

“It shall be the duty of the Board in carrying out his power as authorize herein, in determining whether a prisoner is suitable for release on parole, (1) to consider the circumstances surrounding the crime and the physical and mental qualifications of persons who eligible for parole.

(2) To determine whether there is reasonable probability that the prisoner if release on parole will remain at liberty without violating the laws and whether the release of the prisoner on parole is compatible with the welfare of the society.”

And that is the test that just is to be applied by the Parole Board.

Unknown Speaker: Well, are you saying then that the any consideration on release date by reason of the fact that he was also convicted of larceny would be inappropriate and improper under those standards?

Mr. Francis B. Burch: Conviction of larceny would absolutely not come into the picture at all in determining a parole because they would go to the facts and the circumstances.

They would find that the same act was the subject matter of the conviction of burglary and the conviction for larceny.

So they take the facts and circumstances as directed and required by the statute and they apply their test and then they look and say is this man eligible?

Is this man a good risk for parole?

This is the sole thing that Parole Board would be required to consider.

Justice Abe Fortas: But that would not be true if you were serving concurrent sentences for two different transactions so to speak.

Mr. Francis B. Burch: If there where a series of crimes and he was convicted of all say five and he was given concurrent sentences.

There is a greater likelihood but I don't believe the Parole Board in Maryland at least would consider that other than the fact, yes they would consider the nature of the person, the disposition towards multiple crimes.

Justice Abe Fortas: Yes.

Mr. Francis B. Burch: So that on the series of crimes I think probably but that would be a factor that would be involved but this was not situation in this particular case.

Justice Abe Fortas: In this case?

Mr. Francis B. Burch: Yes.

Impeaching the petitioner's credibility, well as Mr. Cramer pointed out in his argument he was regretful that in his brief, he only indicated that there had been one felony conviction of this particular defendant.

I refer the Court to our supplementary brief on page 20 where we show not only three felonies but we show several misdemeanors and plus contempt and this would certainly indicate that the additional conviction on larceny under the same facts and circumstance of the conviction of burglary would have absolutely no effect whatsoever on the impeachment of the witness in his credibility.

And I believe I gave Your Honor Mr. Chief Justice an example, that if I were the defendant's lawyer I would love to have the prosecuting attorney get up and side us, make two crimes out of this thing of attacking the credibility because I think it would come back and hit him right in his face if I may use of an active verb.

Affecting the sentencing of the court, I think it's exactly the same posture.

We're not talking about different crimes we're talking about one set of facts and circumstances in this particular case and I don't believe that there would have one iota of effect on the court in so far as future sentencing is concerned.

Ineligibility for licenses, here we have a man who is convicted of three felonies, several misdemeanors and under the law of Maryland certain licenses are not -- you cannot get certain licenses if you are not of good moral character.

The fact that he's had this other felony convictions, the fact that he was no convicted of burglary and that this other concurrent to sentencing for rising out of the same facts of circumstances wouldn't affect one iota his eligibility for licensing because he wouldn't be eligible because he wouldn't be of good moral character in view of his record.

The right to vote, he's been convicted of three felonies, he wouldn't have the right to vote irrespective of what happened in this particular case and the same thing with respect to the right to serve as a juror.

So when we look at all of the factors in this particular case, the goal to determine and to give us some indication as to whether there is a reasonable possibility.

Unanimous substantial possibility but a reasonable possibility that this concurrent conviction, this concurrent sentencing might have an adverse effect upon him or collateral consequences as far as he's concerned, the answer has to be a categorical no would not have any effect.

Unknown Speaker: Well, Mr. -- I take it Mr. Attorney General then that's it implicit in your argument that if the state did it some time it have to use and successfully use some prior conviction which had not been reviewed and affirmed because of the concurrent sentence rule, that at that time the defendant should be able to object to it.

Mr. Francis B. Burch: I don't think it would be any question about it.

Unknown Speaker: I think you -- let's assume the state did.

Assume the state did some time base on which state not Maryland base the recidivist in charge on the fact that a defendant has been convicted of on the same day two felonies arising out of the same transaction and the count of that is two felons for the purposes of their recidivist statute.

And one of them had never been reviewed and was refused to review because of the concurrent sentence rule.

Would you think the defendant had a constitutional right at that point to object to the use of that against him?

Mr. Francis B. Burch: If that in fact were the case Your Honor, yes and I -- in our appreciation as we have set forth in our brief and as I say here --

Unknown Speaker: Similarly, similarly if you were -- if somebody attempted to impeach him with this evidence.

Mr. Francis B. Burch: He would have the right to put on the record all of the evidence and whatnot --

Unknown Speaker: Well, yes but why wouldn't he -- why couldn't he say you may not even mention that other conviction because it was never reviewed and was never affirmed.

I was deprived of my review of that conviction because of the concurrent sentence rule therefore the state may not if the state wouldn't review it for its own convenience that's all, wholly convenience and therefore he could never be able to use it.

Mr. Francis B. Burch: If Your Honor please it may well be that this Court might feel that constitutional rights have been denied and if so then that will be a proper case but we don't kill the patient in order to cure the ill.

If in appropriate case, it's been shown there's been an abuse then there's a remedy to this Court or to the courts of the state towards the federal courts.

Unknown Speaker: You're saying that if that were the rule, it ought to be applied at that time.

Mr. Francis B. Burch: At that time.

Unknown Speaker: Rather than at this stage?

Mr. Francis B. Burch: Exactly right, Your Honor this is the position that we have taken both in our brief then I take to you before Your Honors today that we recognize that there are certain circumstances whether it will be collateral of consequences if you have a concurrent sentencing doctrine which is applied without the -- any consideration being given to the particular facts as the circumstances.

But in this case, there isn't one single scintilla of evidence nor is there one single argument that I could conceive -- that I have perceived that suggested there would be any collateral consequences to this defendant.

Unknown Speaker: Are you saying with that argument, I don't quite understand it.

Do you mean by that, that you are saying this judgment should not be reversed on that extent but that if a time should come some court, somewhere else or even here by some adverse disadvantages would have been impose on this on the count of both conviction, he should be allowed to show it then, is that your argument?

Mr. Francis B. Burch: Yes.

Yes, Your Honor.

I have said that we were here today to review the viability of the concurrent sentencing doctrine.

We take the position that it is viable, it is still viable, it is important and so far as the administration of justice and the expeditious administration of justice is concerned.

But there are circumstances such as in Sibron which was not the concurrent sentencing doctrine but to mootness doctrine.

But there are circumstances where there has been a concession that there has been, there will be collateral consequences or where there can be proof shown that there were in fact a lot of consequences than in those in cases there should be a remedy.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Cramer.

Rebuttal of M. Michael Cramer

Mr. M. Michael Cramer: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

Just a few matters if you please for rebuttal.

The -- both the Solicitor General of the United States and Maryland's Attorney General had argued that the abandonment of the concurrent sentence doctrine would unnecessarily burden the administration of justice.

However, it is interesting to note that the experience of the Maryland Courts of Appeal which often review all convictions whether sentences were concurrently served or not does not indicate that the courts workload has become unbearable because of its review of invalid as well as valid convictions.

If there is no doubt Your Honors but the Maryland's higher Courts of Appeals and highest courts review convictions in which the terms are ordered to be served concurrently.

I have the volumes here.

I can quote from them and cite the cases, many of them all the ones that I've reviewed in fact deal with situations where two sentences were imposed as a result of one criminal transaction.

In other words situations eminently analogous to the situation which petitioner is presently in.

Unknown Speaker: Suppose the Court should not agree with you on this point and should hold that the conviction in so far as is concerned and some of this is valid, would that -- would you still have pending before us, your double jeopardy for argument?

Mr. M. Michael Cramer: I believe the double jeopardy argument would still be before the Court Your Honor.

Unknown Speaker: It'd be no different if that would --

Mr. M. Michael Cramer: Both the court --

Unknown Speaker: That would have to be disposed of, wouldn't it?

Mr. M. Michael Cramer: Well, I believe that double jeopardy argument as a matter of justice sir must be dispose of in this case, yes sir.

Unknown Speaker: Well, it would have to be dispose of, whatever ruling we took on this one I believe if we held it valid.

Suppose we held it invalid but not valid but not invalid as to this case as a valid sentence, then would your former jeopardy case -- argument have to be read?

Mr. M. Michael Cramer: If the Court Your Honor held that the larceny conviction was invalid.

We respectfully submit that they can reach it regardless of the fact that it was a concurring sentence because we feel that the doctrine enunciated in the suit case of Sibron versus New York should be applicable to this case.

Moreover, we contend and respectfully request that this Court void both convictions because of the prejudice that was inherent in the trial.

Unknown Speaker: Well, are you arguing your former double jeopardy position.

Mr. M. Michael Cramer: Yes, sir.

Justice Abe Fortas: How do say a proceeding now pending in the Fourth Circuit cut across of the propriety we're considering, the former jeopardy point or maybe your view, maybe it does but what do you have to say about that?

Mr. M. Michael Cramer: I believe it has no effect, Your Honor.

Justice Abe Fortas: Why?

Mr. M. Michael Cramer: Were the Court to reject the petitioner's appeal in this case according to the order of the United States District Court for the District of Maryland, Benton will serve no more than 10 years in prison.

Justice Abe Fortas: Now was that because of the jeopardy point?

Mr. M. Michael Cramer: That's because -- yes, sir, it's because of the former jeopardy point that reached the question of whether double jeopardy attached where after in a success of prosecution the defendant received an increase penalty.

Justice Abe Fortas: Right.

Now, whether that right or wrong or what its implications are, it is a question that is now before the Fourth Circuit as I understand it?

Mr. M. Michael Cramer: That's correct Your Honor.

Justice Abe Fortas: And it's possible I suppose, I know it's possible that it is necessarily something that's involved in your submission that this Court on the former jeopardy point.

Mr. M. Michael Cramer: We did not raise the point, Your Honor.

Justice Potter Stewart: But that's a different double jeopardy point of this I understand it.

Mr. M. Michael Cramer: Yes.

Justice Potter Stewart: And you tell me if I'm wrong, that point is on the burglary conviction alone forgetting all about the larceny conviction.

On the burglary conviction alone he was given a greater sentence on the new trial after new trial he was given 10 years on the first trial and 15 years on the second trial.

That's what's involved in the case now pending in the Fourth Circuit and by contrast these case involves whether or not he could be tried the second time at all for larceny having been acquitted the first time.

Mr. M. Michael Cramer: Yes, sir.

Justice Potter Stewart: Am I mistaken about that?

Mr. M. Michael Cramer: Not at all.

That is correct.

Justice Abe Fortas: Oh, I understand that that is the case but if I haven't seen the District Court opinion, I didn't know until this morning that District Court had filed an opinion but that was the -- what the District Court's reduction of sentence here or order of the sentence should be reduced was in response to a full-fledged former jeopardy argument, wasn't it?

Mr. M. Michael Cramer: No, Your Honor.

Justice Abe Fortas: No, it was not.

Mr. M. Michael Cramer: The limited double of jeopardy argument of increased penalty on a second trial.

Justice Abe Fortas: Is that the only argument that was made to the District Court?

Mr. M. Michael Cramer: Yes sir and that was based on the case of Patton versus North Carolina, Fourth Circuit case which held that was another form of double jeopardy.

Justice Abe Fortas: I see.

So the argument that has been presented to us namely the conviction after the dismissal of the county whatever the enlargement county this was, that was not presented at the district courts, is that what you're telling us?

Mr. M. Michael Cramer: That is correct, Your Honor.

The District Court was apprised of the fact that I had this case pending before this Court.

The -- excuse me -- the -- in -- Mr. Burch speaking for the State of Maryland states that in the Sibron case, the Attorney General of the State of New York stated to this Court at least in his brief stated to the Court that collateral consequences did in fact exists in Mr. Sibron's case.

I have before me, Your Honor volume number 25 of the transcript of records and file copies of briefs on file on this Court.

And I note that from the State of New York's supplementary -- respondent's supplemental brief the Attorney General attempts to negate probable collateral legal consequences rather than admit that they exist.

And of course this Court did not accept the New York Attorney General's argument in the Sibron case.

Unknown Speaker: Now, does State of Maryland have any appeal where the jury acquits a man of a crime?

Mr. M. Michael Cramer: No, but they do have appeal where the judge acquits him.

Unknown Speaker: But they do not or the jury acquits?

Mr. M. Michael Cramer: That's correct, Your Honor.

Unknown Speaker: And who acquitted this man?

Mr. M. Michael Cramer: The jury Your Honor.

The -- I would like to respectfully point out to the Court that the petitioner's criminal record is substantially similar to the criminal record which Mr. Nelson Sibron had in the case of Sibron versus New York.

And that there are no cogent reasons for distinguishing this petitioner situation from the situation that Sibron was in.

On behalf of the petitioner, I respectfully thank the Court for the great consideration they have given to this case.

Thank you, Your Honor.

Chief Justice Earl Warren: Mister -- thank you.

Mr. Attorney General would you mind sending us copies of the opinion of the District Court that's all we need, we don't need any further argument on it.

Just send us a copy.

Rebuttal of Francis B. Burch

Mr. Francis B. Burch: Well, could I refer the Court to have that brief -- original brief that says all six questions were considered by the Court although the opinion may not deal with it.

Chief Justice Earl Warren: I know but we'd like to see --

We'd like to see the opinion.

Mr. Francis B. Burch: Yes.

We'll see that copy of the opinion is submitted.

Chief Justice Earl Warren: I beg your pardon?

Rebuttal of M. Michael Cramer

Mr. M. Michael Cramer: Excuse me Mr. Chief Justice, but may I address the Court for one more moment on --

Chief Justice Earl Warren: Yes, you may.

Mr. M. Michael Cramer: I thank you very much.

I would like to make clear Your Honors the question of what happened in the remand.

On page 2 and 3 of the appendix filed with this Court.

The third paragraph shows that on June 30, 1966, the defendant challenged the array of the grand jurors.

In other words, he exercised his right to have his burglary conviction set aside.

It was until two months later as revealed on page 3 of the appendix that he was indicted on the larceny as well as the burglary conviction.

So it cannot be said on the basis of this record that at the time he made his election which was June 30, 1966 that he knew of the dire consequences that would face him if he took advantage of his First Amendment rights.

Therefore Your Honor, the second trial for the larceny as well as the burglary was unfair from the very beginning.

Thank you.

Chief Justice Earl Warren: Very well.