JOHNSON v. BENNETT

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Case Basics

Docket No.

Petitioner

Johnson

Respondent

Bennett

Decided By

Warren Court (1967-1969)

Opinion

393 U.S. 253 (1968)

Argued

November 13-14, 1968

Decided

Monday, December 16, 1968

Term:

1960-1969
- 1968

Facts of the Case

None

Question

None

Argument

Johnson v. Bennett - Oral Argument

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Johnson v. Bennett - Oral Argument, Part 1

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Johnson v. Bennett - Oral Argument, Part 2

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Conclusion

Decision: 8 votes for Johnson, 1 vote(s) against
Legal provision: Due Process

None

Print this transcript Transcript:

Argument of Ronald L. Carlson

Chief Justice Earl Warren: Number 32, Gale H. Johnson, petitioner versus John E. Bennett, warden.

Mr. Carlson, you may continue with your argument.

Mr. Ronald L. Carlson: Thank you very much Your Honor.

May it please the Court.

Your Honors, at the conclusion remarks yesterday, counsel had mentioned that the Iowa State Penitentiary of Fort Madison had prior to my client's trial become the focus of investigation by the prosecuting attorney's office.

He had interviewed prisoners there but what they might know about Mr. Johnson, what they have been able to find out and so forth.

Two prisoners ultimately came up with a report admissions made by Mr. Johnson to this offense, oral admissions as well as notes which were introduced at the trial at State's Exhibits number 1 and 2.

These notes sought to portray the prisoner in this case is a man seeking to cook up an alibi to the record.

The prisoner said that they got the notes when my client was trying to smuggle them outside the penitentiary.

Now, these notes were also validated at trial by a handwriting expert called by the state.

This handwriting expert said that Mr. Johnson who was required to print this card, handwriting exemplar card was the same hand who had printed the two notes.

Now, on later years Your Honor, Mr. Johnson in about 1960 was able to send these three exhibits to a handwriting expert who was a leading authority in this country on the subject.

This man made a detailed examination of the handwriting on the exemplar card detailed analysis of that appearing on the two notes and he concluded that the original trial testimony was completely wrong.

That the notes were not written by Mr. Johnson, that they were in fact apparently forged notes.

Justice Potter Stewart: Are those reproduced in the appendix or not?

Mr. Ronald L. Carlson: They are printed in the appendix Your Honor but in this form, they are not.

They do appear with the exhibits that we have sent to the Court however.

Justice William O. Douglas: Mr. Carlson --

Mr. Ronald L. Carlson: Yes, Your Honor.

Justice William O. Douglas: -- this issue of handwriting came up with the trial did it, the original trial?

Mr. Ronald L. Carlson: Yes, it did although for reasons that I'll mention we were not able to present any handwriting analysis of our own, Your Honor.

Justice William O. Douglas: But at the original trial, there was a handwriting analysis?

Mr. Ronald L. Carlson: Yes.

And that was presented by the state.

Justice William O. Douglas: And what were the samples used at that time?

Mr. Ronald L. Carlson: The sample used was a printed card, Your Honor which is introduced in evidence in --

Justice William O. Douglas: So these are the same -- I mean the same comparison; the same documents were compared at the habeas hearing as it were at the original trial?

Mr. Ronald L. Carlson: Yes, that's very important Your Honor.

In other words, our handwriting known sample is the 1934 handwriting of Mr. Johnson, the very same that was used to this trial.

Justice William O. Douglas: Now, there was a handwriting expert who testified it to recent trial?

Mr. Ronald L. Carlson: Yes, there was a Mr. Foxen called by the state.

Justice William O. Douglas: And he testified that the handwriting on both were the same, did he?

Mr. Ronald L. Carlson: Yes, he did, Your Honor.

He said that --

Justice William O. Douglas: Now, what and now we have new set of experts who 33 years later, whatever time, will now say, no on their analysis, it is not the same.

Mr. Ronald L. Carlson: Yes.

Justice William O. Douglas: Is that right?

Mr. Ronald L. Carlson: That's right.

They say the opinion at that time was erroneous.

Justice William O. Douglas: Well, was there any suggestion that it was deliberately false with the expert of that time, testified both?

Mr. Ronald L. Carlson: It is perhaps significant Your Honor that in connection with other evidence in the case, my client received notice of that about two months before trial.

The prosecution had these notes in July.

Our trial was in November.

On this evidence, notice was served six days before the trial.

Not on the petitioner's attorneys but upon the petitioner in his jai cell.

He hurriedly wrote his lawyers telling them that there was some notes that are going to be introduced, didn't even have copies.

All he had was a notice that this was going to be used against him.

The lawyer got down after he got the letter one day in advance the trial still no copies just the notice and some notes would be used.

There was no opportunity afforded for the defense.

As far as I can see to give this evidence the kind of scrutiny which would have revealed its falsity.

Well, the serving of that notice may have been technically correct.

We question the propriety seeing that the genesis of these notes was penitentiary inmates.

In not affording the defense and opportunity to give this careful screening --

Justice William O. Douglas: Well, are you suggesting that perhaps had you have more opportunity, you might have been able to establish that the handwriting expert was indeed not giving honest testimony, is that what you suggest?

Mr. Ronald L. Carlson: No, I think not perhaps Your Honor.

I think what we would have been able to establish is that those two prisoners were not giving honest testimony.

The ones who produced the notes because these notes had to been printed by someone, the current evidence says Mr. Johnson did not print those notes and I think inferentially from the record, it appears that perhaps these two prisoners who produced them or someone that they were working with perhaps printed it.

Justice William O. Douglas: Well, assuming that the handwriting expert was honestly giving his expert opinion that this was the same handwriting.

Where does that leave us?

Mr. Ronald L. Carlson: That leaves us right here Your Honor.

I think in Pyle versus Kansas, a point was made that if false evidence comes into the case, even though the prosecutor does not know about it.

If that's --

Justice William O. Douglas: My whole point is how would you say it was false, if that was honest, expert opinion merely based upon the fact that later other handwriting experts also gave honest opinion that to the contrary that it was not?

Mr. Ronald L. Carlson: I think it comes down to whose opinion is correct, Your Honor.

I think if the opinion today is correct then we submit it is and state has had this now examined by their own expert here very currently.

At the state very few investigation, he said, it is -- this expert says it is correct.

Mr. Johnson did not write these notes.

And his report --

Justice William O. Douglas: So you mean in effect that these comes to us then with a virtually stipulation on the part of the state that these were not written by this defendant?

Mr. Ronald L. Carlson: In the trial brief, the state said we can see that the introduction of these notes were error.

But we simply say that it didn't form material part of the case.

Justice William O. Douglas: Thank you.

Justice Potter Stewart: Still of course, you're still dealing with opinions though not consequently truly the facts?

Mr. Ronald L. Carlson: Yes, I think that's true.

Justice Potter Stewart: It is opinion evidence.

Mr. Ronald L. Carlson: I think that's true Your Honor.

Justice Potter Stewart: Now, the opinion on both sides now is that these notes were not written by the petitioner contrary to the opinion evidence while on the original trial there was a conflict in the opinion evidence, wasn't there?

Mr. Ronald L. Carlson: No, there was no defense opinion that was mastered at that time.

Justice Potter Stewart: There was just a denial on his part?

Mr. Ronald L. Carlson: Just a denial, right.

And this denial was done by a prisoner named Mr. Yates, who said for the defendant those notes were fictitious.

Those notes were false.

I told the prosecuting attorney they were false.

Justice Potter Stewart: And that was before the jury at the original trial.

Mr. Ronald L. Carlson: Yes, that was before the jury at the original trial.

The same prisoner also said that he received a monetary offer of $25.00 to assist by providing evidence or the names of witnesses against the defendant.

Stating at page 109 of our appendix or excuse me, page 107, Your Honors, was anything talked about any money of any kind.

Well, Mr. Daley offered me $25.00 to name the defense witnesses.

And if we turn over to the prosecutor's closing argument on 110, he says, before I go into that I want to say the state would have been glad to have paid Yates $25.00 to get the names of the alibi witnesses.

Now, we don't suggest that this reference is absolutely clear.

But it is perhaps suggestive of a climate which may have been created the penitentiary for the production of this kind of evidence which the current expert opinion is was not correct.

Justice Potter Stewart: The petitioner was in the penitentiary prior to trial, are they not?

Mr. Ronald L. Carlson: Yes.

Justice Potter Stewart: County jail?

Mr. Ronald L. Carlson: He was Your Honor.

Now, when this notice was served on him just on the eve of trial he'd been transferred up to a county jail at that time but he was in the man in the penitentiary.

Chief Justice Earl Warren: Were these two prisoners who presented these notes the same prisoners who testified at the trial that he had -- that the prisoner had confessed to them that he had done it?

Mr. Ronald L. Carlson: They were the very same persons, Your Honor.

Chief Justice Earl Warren: Same ones.

Mr. Ronald L. Carlson: Same source of testimony in both cases.

Argument of Mr.Justice Marshall

Mr.Justice Marshall: What objection was made to the introduction of these notes?

Rebuttal of Ronald L. Carlson

Mr. Ronald L. Carlson: They were vigorously objected to.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: And where is it in the record?

I missed it, I sort of deny it.

Rebuttal of Ronald L. Carlson

Mr. Ronald L. Carlson: Yes, Your Honor.

Could I locate that and I'm reserving some time.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Well, I (Inaudible)

Rebuttal of Ronald L. Carlson

Mr. Ronald L. Carlson: In addition to the burdens of the suppressed witness and what we contend is false evidence, our petitioner here was required, Your Honors, to bear one further burden and that was the burden of proof on a lead issue in this case.

The issue of whether the prisoner was at Burlington, Iowa or in Des Moines, 165 miles away at the time of the offense in question.

Now, he presented here a very strong alibi defense.

He called the owner of a gas station who had filled his tank in Des Moines that morning about the time the homicide occurred, 165 miles away.

He traded there for about a year and this appears to be an independent witness, no particular acts to (Inaudible).

But later that morning, the owner of the cigar counter said, “Mr. Johnson was in.

His father was here and bought a cigar.”

I'm not asking the Court here to retry these facts but I'm simply raising the point that a strong alibi defense was presented.

Several witnesses, many of them independent placed my client in the City of Des Moines at a point where it would have been impossible for him to have committed this murder if they were believed.

Now, the trial court because we had gone ahead and called witnesses on this point of alibi, instructed the jury that in order to prevail on none presence at the scene, the defendant was required to prove by a preponderance of the evidence that he was elsewhere.

As Mr. Justice Brennan pointed out in Speiser versus Randall, the burden of proof may well be determinative in a given case and for that reason, we suggest that this instruction given by the trial court as well as the references by the prosecuting attorney which appear on page 113 and 114 of our record were highly detrimental to our prisoner's presumption of innocence in his fair trial rights in this case.

It is up to the defense, the prosecutor said, the burden of proof of alibi and they have to prove that.

The court will instruct you that they have to prove alibi.

Again, the prosecutor said, “Are you going to accept the alibi of pool-hall hangers-on and friend of Johnson and his relation when the man himself has never denied it under oath?”

Certainly, he tells the jury.

“Certainly, you are entitled to know what he has to say and remember the burden of proof of alibi rests on the defense, and they have to meet that burden.”

Chief Justice Earl Warren: Was the statute on that necessity of proof?

Mr. Ronald L. Carlson: No, there was not at this time, Your Honor.

This was a judicial interpretation that it brought us to this point.

Later on Iowa enacted a statute requiring the defendant to give the names of his alibi witnesses in advance.

But that is not involved in this case.

Now, apparently Iowa and two states or one other state, Iowa and Georgia observed to this rule and every federal case that we've been able to discover has struck down charging the jury that the defendant has the burden the proof on this lead issue in the case.

Justice Potter Stewart: Is that still the law in Iowa, Mr. Carlson?

Mr. Ronald L. Carlson: Yes.

Justice Potter Stewart: So far as the Iowa courts are concerned?

But I gather that the Eighth Circuit has recently held that it violates the United States Constitution?

Mr. Ronald L. Carlson: Yes, it held, it shetters the presumption of innocence and unfairly penalizes the defendant.

Your Honor, since you asked that question, I should mention a case which is not in the Advance Sheets yet for you.

This is a very recent one, State of Iowa versus Larry Carter which will be out in Northwest in a couple of weeks, I anticipate.

Justice Byron R. White: Larry who?

Mr. Ronald L. Carlson: Larry Carter, C-A-R-T-E-R Your Honor.

Justice Byron R. White: In affidavit?

Mr. Ronald L. Carlson: It was filed October 15, 1968 and on the point of what is the law in Iowa, the Supreme Court notes that this case is before the Court and suggest the matter will probably be decided by the Supreme Court in the near future and then instructs the trial courts not to give this instruction pending any disposition this Court might make.

Justice Byron R. White: Was there objection to this instruction?

Mr. Ronald L. Carlson: Yes, there was Your Honor.

Justice Byron R. White: On the constitutional ground?

Mr. Ronald L. Carlson: The objection took the form of saying that the instruction violated the petitioner's rights and that it disparage alibi.

And I'm frank to admit Your Honor that the fairly complete attack I think that we've made on the alibi instruction was not spread on this exception.

But it was not a case where the trial counsel permitted the court to go ahead and instruct and then combed the record later.

The resistance to this instruction was fully put on record.

Your Honors, I am going to try to save some time so unless there is question.

Chief Justice Earl Warren: You may.

Mr. Claerhout.

Argument of William A. Claerhout

Mr. William A. Claerhout: Mr. Chief Justice and may it please the Court.

So that the Court will have a better appreciation of the rather complicated rules of law here involved, I would like to very briefly recount the basic facts involved in the case.

It began about 5:30 in the morning on May 27, 1934 when a Burlington, Iowa policeman was shot while investigating a reported burglary.

He later died of shotgun wounds without making an identification of his assailant.

However, two witnesses near the scene heard shots and saw two people running from the scene.

One of the two persons, these two witnesses identified very positively was the petitioner in this case.

They saw --

Justice Potter Stewart: What time of day or night?

It was night time, was it?

Mr. William A. Claerhout: I don't know Your Honor whether or not it was light or dark but it was established there was about 5:30 or 6:00 in the morning in May.

Justice Potter Stewart: In May.

Mr. William A. Claerhout: So I would --

Justice Potter Stewart: It could have been dawn.

Mr. William A. Claerhout: -- speculate it would be light at that time.

Nevertheless, the petitioner who was seen by these two witnesses walking briskly from the scene after the shots, he was seen in the company of another man.

The two got into a black V8 Ford and drove away.

The state also presented testimony showing the petitioner a few miles east of Burlington in Illinois, the Friday night before the Sunday morning.

At that time, he also had a shotgun.

Chief Justice Earl Warren: The Friday night before the Sunday?

Mr. William A. Claerhout: The Sunday, before the Sunday morning, 36 hours or so, Your Honor.

Although no shotgun was ever found, the Ford V8 was identified at the residence of Mr. Johnson in Des Moines when he was arrested.

He was identified by the witnesses who had seen it in Burlington.

Now, although Mr. Johnson did not take the witness stand, he did present at least six witnesses from Des Moines who claimed that he was in Des Moines at the time when it would have been impossible for him to also have been in Burlington a 165 miles away at the time of the murder.

Thus, the alibi proposition is raised.

Now, there are three issues involved here and I think --

Chief Justice Earl Warren: May I ask you, did the state attempt to discredit those witnesses?

His witnesses, alibi witnesses?

Mr. William A. Claerhout: Yes, Your Honor, the state was a very vigorous trial on both sides and those witnesses were attacked vigorously of course on their association with the petitioner.

One was I believe his mother and his brother was involved and his father.

Yes, they were attacked.

Chief Justice Earl Warren: But there were others were they not like the gasoline station man and so forth, with the close associate?

Mr. William A. Claerhout: I don't know that the record shows that there are close associates, perhaps they knew each other, I believe it was as far as they went.

Well the three issues here involved and I think are very crucial issues that had been before this Court before and I will attempt to spend at least short of 10 minutes on each of them.

The first is the suppression of witness Orsucci.

Now the District Court below did in fact find that Mr. Thomas Orsucci, one of the 13 or 14 requested witnesses was in fact in the Polk County Jail in Des Moines, Iowa and not in the Clarinda Institute for the Insane as the Deputy Sheriff had written on the subpoena return.

Now, this we do not dispute.

Justice Potter Stewart: Does is -- it also appears, doesn't it that he never have been in this Clarinda Institute for the Insane.

Mr. William A. Claerhout: I believe that as a fair result of District Court, didn't find some.

Justice Potter Stewart: And this is the sheriff's office that had control of custody of the people in the jail.

Is that also correct?

Mr. William A. Claerhout: The people in the Polk County Jail, yes, Your Honor.

Justice Potter Stewart: What was he in jail for?

Drunkenness?

Public drunkenness?

Mr. William A. Claerhout: I believe it was something of that nature.

Drunkenness, OMD or something.

Justice Potter Stewart: And he was released --

Mr. William A. Claerhout: He was released.

Justice Potter Stewart: Just few days before this fellow -- before the petitioner of this case was convicted and sentenced to life imprisonment.

Mr. William A. Claerhout: I believe it was about December 8.

It was within the vicinity at the time when the conviction was handed on us.

Chief Justice Earl Warren: Did that sheriff testify in any of the habeas corpus hearings issued that since?

Mr. William A. Claerhout: I -- no, Your Honor.

I don't believe he has.

Chief Justice Earl Warren: Is he living?

Mr. William A. Claerhout: Pardon me?

Chief Justice Earl Warren: Is he living?

Mr. William A. Claerhout: I understand from my predecessors on this case and of course there had been a number of it the immediate way.

Chief Justice Earl Warren: Sure.

Mr. William A. Claerhout: That the assistant sheriff, the one that actually filled out the return, his name I believe was Kuhns was deceased sometime ago, yes, in other words, before the time when the matter actually came up in the federal district court for hearing.

Chief Justice Earl Warren: But how about the man, the sheriff who testified originally?

Mr. William A. Claerhout: I'm not sure whether or not Your Honor that particular sheriff testified.

Chief Justice Earl Warren: I see.

Mr. William A. Claerhout: I don't recall.

Justice Potter Stewart: Mr. Orsucci has long since deceased, is that right?

Mr. William A. Claerhout: He, Your Honor, died in 1965.

A short time before this matter finally made it to the hearing stage at federal court.

Justice Potter Stewart: These proceedings were not initiated by the petitioner until after Mr.Orsucci died, is that correct?

Mr. William A. Claerhout: There were proceedings attempted in the Federal District Court as early as 1948 or 1949.

About the time that petitioner obtained an affidavit from Mr. Orsucci.

However, no hearing was held until after he deceased.

Chief Justice Earl Warren: Was there a hearing ever requested on that issue?

Mr. William A. Claerhout: I don't believe Your Honor that a hearing was specifically requested on your association.

Many issues --

Justice William O. Douglas: My hearing was requested in the District Court and the District Court denied habeas corpus without a hearing, is that right?

Mr. William A. Claerhout: Yes, Your Honor.

There are many, many issues before the Court and I believe that was one of them.

If I may, the rule we think is entirely applicable here and were not contesting any of this Court's rules.

It's in Brady versus Maryland and I quote from 373 U.S. page 87, “The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment irrespective of good faith or bad faith of the prosecution.”

But we submit that the petitioner has freely admitted the purpose for which Mr. Orsucci was going to be used.

That is, he was going to be used to impeach one of the two eyewitnesses of the flight of the two people from the scene of the murder.

Mr. Orsucci was not going to be used to say that Mr. Johnson was not the one but he was going to be used to impeach one of those witnesses who had a previously identified Mr. Orsucci as being the partner of Mr. Johnson.

Now, we think that his testimony going by what the petitioner admits.

It was going to be, was probably not favorable to his case and secondly, we don't think and we completely agree with all the federal courts below that even if this testimony have been presented it would have not -- would not have been material to guilt or punishment.

The impeachment would not have affected the very sure testimony of the two witnesses as to the petition.

It would have only affected the unsureness of one of the witnesses.

Justice William J. Brennan: I gather then you make no point of the fact that this was a sheriff of a county of 165 miles away.

Mr. William A. Claerhout: Well, Your Honor, because it was said in Brady that irrespective of good faith or bad faith of prosecution, I think the handwriting is on the wall, that perhaps that's sure.

But I must call attention to the Court that the Eighth Circuit did not reach that position because it found that the testimony would have not have been material so I don't think this Court really has to go --

Justice William J. Brennan: I know, I just wondered what was your position.

I gather from what you -- the answer you just gave me that you would not think if this were a proper case with its application because that would not -- that would make impossible the application rule on suppression.

Mr. William A. Claerhout: I think the evidence would have to be found material before we could arrive to that question.

Chief Justice Earl Warren: Well I wonder if a witness testified that both identified, both Orsucci and Johnson as they did in this case, isn't that right?

Mr. William A. Claerhout: Yes.

Chief Justice Earl Warren: And the defense could present a witness who would totally discredit that testimony so far as Orsucci was concerned.

Do you not believe that that would have anything to do with the credibility of that witness's testimony in the trial?

Mr. William A. Claerhout: Well Your Honor, Mr. Chief Justice I think that it would not and I take this position based upon the peculiar facts of this case.

The two attorneys that represented the defendant at that trial or have been found to be very able review of the trial transcript record shows that they were very vigorous.

They tried very hard to shake these two witnesses as to their identification of the petitioner and they were steadfast.

I believe this further because I think the defense used this many witnesses or several witnesses ahead as an alibi.

I think that the impeachment would have merely amounted to one more alibi witness.

And therefore, I do not think I agree with the Court of Appeals below that even if that testimony had been presented it would have not impeached the one witness little own both.

Chief Justice Earl Warren: Well, but you don't think if it was established that they were entirely wrong about Orsucci in the testimony that that would have any effect upon the correctness of their identification of Johnson?

Mr. William A. Claerhout: No, Your Honor for this reason.

I believe that it would have made states case perhaps even stronger if the witness would have said true, I am unsure about the one man but yet I'm sure about the defendant.

Chief Justice Earl Warren: But they didn't say that.

Mr. William A. Claerhout: No.

Chief Justice Earl Warren: They didn't say that.

They said both of these men were there.

And the defendant represents a man who let us assume could establish that he was not the one, the second man that they identified.

Do you not think that that would discredit, have a tendency to discredit their entire testimony?

Mr. William A. Claerhout: Mr. Chief Justice, only one of the witnesses I believe was going to be impeached of course.

Chief Justice Earl Warren: Well, we stated, I will stick to that one witness.

Mr. William A. Claerhout: Yes.

No, I quite candidly think that Mr. Orsucci's involvement in this case that the possibility that maybe he was the other witness would have been looked upon by the jury and is more favorable to the state perhaps than to the defendant.

I don't think impeachment of that witness could have been obtained.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: But neither you nor the court knew the witness did.

You didn't see and you don't know what kind of witness he would have made be?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: No, sir.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Of course you don't.

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: Mr.Justice --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Well, how can you predict what effect he would have on the jury?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: Well, Mr. Justice, this is exactly our point I believe.

The jury in 1934 was present and they have some 43 witnesses I believe to look at.

They disbelieve obviously petitioner's witnesses because if they would have, they would have found him not guilty.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: And so we assumed that this witness would be just as ineffective without knowing that they knew all about it?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: Mr. Justice, I think we must rely upon what petitioner says.

He would have used that one as far.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Well, don't you agree that some witnesses or the other witnesses than others more persuasive?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: Very much so.

I --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: So, there's no way anybody can predict what effect he would have on that jury?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: Well, not with any reasonable probability.

I think it is subject to some speculation.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: That's what I was thinking.

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: I might add that much has been made about if whether or not this particular witness would have been favorable.

It is interesting to note that an affidavit was obtained in 1949 from this Mr. Orsucci saying that he had evidence relevant to the defense.

Nothing further was ever done on that, apparently, although of course as we've already seen the petitioner did try to get a hearing in federal court.

He did manage in 1961, three or four years before Mr. Orsucci died.

He did manage to get the court to direct a deposition be taken of another witness Mr. Ruggles on a perjury question.

Well, Mr. Ruggles lived in California and by the petitioner's own admission in the habeas corpus hearing when he finally did get it.

He spent almost $2,000.00 obtaining this particular deposition while Mr. Orsucci was not in California but in Des Moines and he admitted that his brother often talked with Mr. Orsucci.

Yet, no testimony was ever perpetuated from this, what is claim now, key important witness, Mr. Orsucci.

Chief Justice Earl Warren: But Mr. Orsucci could have been if he had been given a hearing, Mr. Orsucci could have been present there as a witness, couldn't he?

Mr. William A. Claerhout: Yes, sir.

Chief Justice Earl Warren: He would -- he couldn't' take the deposition of Mr. Orsucci if he was in Des Moines, was he and subject to subpoena?

Mr. William A. Claerhout: I don't believe I understand.

He could have taken the deposition of Mr. Orsucci in Des Moines I think if he could take the deposition of Mr. Ruggles in California which --

Chief Justice Earl Warren: Well, do you then -- in your state practice, can the defendant take a deposition of any witness he wants whether he's subject to the subpoena power or not?

Mr. William A. Claerhout: Well, I don't quite know the answer to that Mr. Chief Justice but I do know that in this Court, or rather in the Federal District Court, the judge did order a deposition to be taken in 1961 of this Mr. Ruggles and I --

Chief Justice Earl Warren: But Ruggles was in California?

Mr. William A. Claerhout: Yes, sir.

Chief Justice Earl Warren: Yes.

Mr. William A. Claerhout: Well, I -- my point is that if this could have been done with regard to Mr. Ruggles under federal law, I believe that because at that time the petitioner's attorney I believe was from Des Moines.

His brother was there and so as Mr. Orsucci that could have been accomplished relatively easily compared with the other.

Chief Justice Earl Warren: Yes.

But what I'm -- what I was asking is this, in a criminal case or in a habeas corpus case, if the witnesses are all within the jurisdiction of the court, does a defendant have the right to go out and take their depositions before the hearing in court?

Mr. William A. Claerhout: I, quite honestly Your Honor, I don't know.

One other point I'll raise very quickly and then go on to the next.

It is shown in the habeas corpus district court hearing that the petitioner was in fact out of prison for two and a half or three years.

It appears that he walked away from a prison farm in 1953 and was later recaptured in 1956 in Detroit having spent most of his time in Canada.

We would thus submit that again if Mr. Orsucci had been as important a witness as he is now claimed, perhaps the petitioner might have done something during that time.

And this also might answer the question which was raised yesterday about the parole.

I think the question is not why parole has not been granted but why the governor of the state was able to commute the sentence has not commuted the sentence?

Perhaps, that had something to do with once the sentence is commuted of course to a term of years then parole could thereafter be granted.

Justice Potter Stewart: But did -- I understand I missed what you said at the beginning.

You said this man escaped -- try to escape, the petitioner?

Mr. William A. Claerhout: The petitioner walked away from a prison farm in 1953.

Justice Potter Stewart: 1953.

Mr. William A. Claerhout: He admitted this during his testimony before the Federal District Court.

Justice Potter Stewart: This was a -- what were the circumstances of this murder?

It was a killing of a police captain?

Mr. William A. Claerhout: Yes, sir.

Justice Potter Stewart: What, in the commission of a felony or what?

Mr. William A. Claerhout: A reported burglary had brought forth several Burlington policemen.

They surrounded the store that was reported being burglarized and when this Captain Sauer went to one side or to the back of the store, shots were heard and he was found wounded with shotgun wounds.

He later died.

Justice Potter Stewart: But he died.

Mr. William A. Claerhout: But he did not testify or of course speak who was --

Justice Potter Stewart: So, a second-degree verdict would appear offhand to be something of a compromise verdict, wouldn't it?

Mr. William A. Claerhout: It was the least of the three convictions offered to the jury and they took that one, yes.

The false evidence which has claimed here has to do with the notes which were intercepted by other prisoners presented to prison official and made their halfway into the hands of the prosecutor.

Now, this Court's decision in Miller versus Pate, and that was bloody shorts case was completely avoided by the petitioner in his brief here until reply.

But we think the rule is directly on point that was used by the Eighth Circuit and that is this and I quote from 386 U.S. page 7.

“The Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.”

Well, there are two critical points which lead us to believe that that particular rule does not require a finding of violation of due process here.

First of all, the falsity of the notes is still simply a matter of opinion.

Secondly, regardless of what is said today, the notes were before the jury in all their ramifications.

The witnesses for both sides testified.

It was before the jury that perhaps they were forged.

A Mr. Yates, a defense witness got up and gave very clear testimony that he did not think the petitioner had written the notes.

Furthermore, the court gave a very clear instruction telling the jury that this sort of thing and one can imagine it might have even more true in 1934, that this sort of evidence was the lowest form of evidence.

So, we believe that the jury was completely aware of the circumstances surrounding these notes that it was a jury determination to be made then and the jury's decision we are sure even if there had been the expert testimony available today would have been relatively the same as was then.

We don't know whether the jury found they were false or not.

But I do think that their weight was entirely decimated by the instruction and by the able objections the able other witnesses presented by the defense on this particular subject.

Chief Justice Earl Warren: In the hearing below, did the state put on any testimony, any expert testimony to counteract the testimony of the petitioner that these were forged?

Mr. William A. Claerhout: The expert testimony in the hearing was presented by the petitioner.

The state also had expert opinion but I don't recall that the expert was there however, it was admitted at the hearing that the state expert had looked at the notes and had concluded the same as the expert before the petitioner in 1965, I believe it was.

Chief Justice Earl Warren: Now, is this original handwriting expert who testified that these were the writing of the defendant, is he still living?

Mr. William A. Claerhout: To my last knowledge which was years so ago, he was Your Honor.

Chief Justice Earl Warren: I don't know why the state didn't use him, again, to show that this was actually the handwriting of the petitioner.

Mr. William A. Claerhout: Well, based upon what the state expert said and based on the lapse and years, quite frankly I don't know why they didn't use Mr. Foxen again, but I think it was admitted by the state at that hearing that the state expert had concluded the same as the petitioner's expert.

Chief Justice Earl Warren: Well, does the state concede that those were forged?

Mr. William A. Claerhout: No, Your Honor and I think this is a good point which has been raised here.

The return to in order to show cause I believe it was, the state said based upon the testimony, it would appear that the notes were wrongfully admitted.

However, we contend now that this was not an admission of falsity but only the reasonable conclusion that notes or rather the expert's opinion in 1965 was different than it was in 1934 and there's no showing or no hand even that the 1934 examination was fraudulent in anyway.

Justice Potter Stewart: Well, who put on the testimony in habeas hearing of the state expert or was it ever in the case?

Mr. William A. Claerhout: I believe it was merely stated by counsel at the end of the hearing following --

Justice Potter Stewart: The state's counsel?

Mr. William A. Claerhout: Yes, sir.

Justice Potter Stewart: And the state's expert never testified?

Mr. William A. Claerhout: I don't believe he did testify, no sir.

But it was stated that if he did, he would testify relatively the same.

Justice Potter Stewart: Well, is the state bound by -- is the state -- if the state had put the expert on the stand, would the state be bound by his testimony or not?

Mr. William A. Claerhout: Well, no Mr. Justice.

I don't think so because I think this is a jury question.

And I think that in 1965, it would be entirely improper based merely upon expert testimony or the state to usurp the jury function and the state beyond what the jury had in 1934 that these notes were false.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Mr. Claerhout, what about exhibit response exhibit 2 on page 128?

That's your exhibit, isn't it?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: Yes, sir.

This was the letter that I believe I refer to.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Well, I mean you did put it in evidence?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: Yes, there's no question about that.

Now the -- in conclusion on that point, though we think that the petitioner received due process by protection of the jury and we think that this would be the same in 1968, as it was in 1934.

Finally, the alibi instruction --

Chief Justice Earl Warren: Well, before you get to that, on just what as Justice Marshall has presented to you, this is an almost a clear concession that they were not, these notes were not the documents signed or written by the petitioner, isn't it?

Mr. William A. Claerhout: I think Mr. Chief Justice based on expert opinion, this is all we have to go on, yes.

Chief Justice Earl Warren: It says the examination has been made of the above described material as requested.

And we have compared the known specimen of printing with the two items in question.

It has been concluded and there's the opinion of the examiner that Gale Johnson whose known printing appears on specimen K-1 is not responsible for the printing on specimens Q-1 and Q-2 and that's signed by the Director of the Ohio Bureau of Criminal Investigation and you vouched for that in putting it into evidence so the state does vouch for the fact that this is not the handwriting of the petitioner, isn't that correct?

Mr. William A. Claerhout: Well, if this is considered an admission, I don't think the state can admit to such a thing on mere expert opinion.

I think it ought to be more.

But even if it is admitted that this --

Chief Justice Earl Warren: What more could they have than expert opinion?

Mr. William A. Claerhout: I think if the man who actually authored the notes stepped forward and said I did those, not the petitioner, I think the state would then be in the position that they would have to admit that they were not.

What it's doing here by if it were to admit as taking the jury function.

But the point is Mr. Chief Justice, the jury was well informed of all these.

We think everything short of expert opinion to the contrary in 1934.

Justice Potter Stewart: Your basic point is that even accepting all these, there was no knowing use of false testimony, no false evidence?

Mr. William A. Claerhout: No knowing use by the prosecutor or anyone else who state.

Justice William J. Brennan: You mean at the very, the maximum the defense can claim is that the expert for the state in 1934 was mistaken?

Mr. William A. Claerhout: I think so.

Justice William J. Brennan: Was that -- but that honestly mistaken if he was mistaken?

Mr. William A. Claerhout: I think this is a reasonable conclusion, yes, sir.

Chief Justice Earl Warren: You don't doubt do you that this evidence of these two notes was highly pressed initial to the defendant?

Mr. William A. Claerhout: If they were believed.

Chief Justice Earl Warren: But you say they were believed.

Mr. William A. Claerhout: No, I say they probably were not believed in 1934 because of the strong case the defense took against them even presenting a witness who claimed that the petitioner had not written and that he thought that they had been forged.

Chief Justice Earl Warren: Well, that was a non-expert witness who said that it wasn't.

Mr. William A. Claerhout: This is true but again I think the Court's instruction to the jury reduced their credibility greatly by saying these are the lowest form of evidence and the jury should take great care in looking at it.

Finally, on the alibi issue, there are three positions involved.

One, of the majority of the Iowa Supreme Court, one of the Eighth Circuit Court of Appeals in overruling Stump, and then there is an intermediate position.

The three positions are unwise instruction and unconstitutional.

The other is unwise but not unconstitutional, and the third is wise and constitutional.

We submit that the medial --

Chief Justice Earl Warren: Who has that third opinion?

Mr. William A. Claerhout: Yes, sir, three levels I think the Stump versus Bennett opinion by the Court of Appeals.

Chief Justice Earl Warren: But what level has the third?

Mr. William A. Claerhout: The third one Your Honors, the view, the present view of the majority of the Iowa Supreme Court.

We submit that Chief Judge Van Oosterhoout's opinion below and his dissent in the Stump versus Bennett case are indeed the wisest of all positions.

Justice Potter Stewart: Is that unwise but constitutional?

Mr. William A. Claerhout: I think the handwriting is on the wall, even before the Iowa Supreme Court after reading their Carter case that perhaps it's not the best but wouldn't go so far as to say it's unconstitutional for the reasons of course set forth in our brief and for the same reasons this Court found the --

Chief Justice Earl Warren: No -- finish your statement.

Mr. William A. Claerhout: For the same reasons this Court found the insanity instruction which was required to be proven beyond the reasonable doubt was not violative of due process in Leland versus Oregon.

Argument of Mr.justice Black

Mr.justice Black: How old is this petitioner now?

Rebuttal of William A. Claerhout

Mr. William A. Claerhout: The petitioner I understand was born in 1905.

Thank you.

Chief Justice Earl Warren: Mr. Carlson.

Rebuttal of Ronald L. Carlson

Mr. Ronald L. Carlson: Thank you Your Honor, may it please the Court.

Your Honor, the age of the petitioner as Mr. Justice Black asked is presently 63 years old and I understand he was 29 when he entered the penitentiary.

Mr. Justice Marshall has suggested that the effective Orsucci on the jury is absolutely incalculable at this point.

I think that's true and had our right to have him secured as a witness at the trial then vouchsafed to is, Your Honor, that there would be no problem on that.

It is in fact the responsibility of the state that this was not done and we suggest there responsibility in years since.

Well, prior to the time that Mr. Orsucci died that we were denied a hearing.

Their steady resistances to our applications for hearing are off record.

In 1961, we appeared in the District Court in the Southern District of Iowa, raised this point, raised the point of the false notes and again we were denied without hearing, again this was resisted by the state.

Now, the witness dies in 1965, the respondent says, well, you didn't preserve his testimony.

I suggest that we had disabilities in preserving that.

We did try to take an affidavit.

Your Honor, I have looked at that California deposition and in connection with the colloquy on that point, the Federal District Court at the time he ordered this California deposition made clear that he was doing it only because the witness there, the deponent was out of state, was of old age and there was a possibility his testimony might be lost.

Now in connection with the notes, the point has been made here that the notes did occupy a very substantial place in this trial.

Now, the trial record shows that over 40 pages of transcript were dedicated on the part of state evidence to these notes.

In addition, we urged to the Court that there were exhibits 1 and 2 at the original trial.

Chief Justice Earl Warren: Which trial?

Mr. Ronald L. Carlson: This was in the 1934 trial Your Honor.

Mr. Claerhout suggests that because we were able to put on the stand a prisoner from the state penitentiary who said, “Mr. Prosecutor, those notes were fictitious, you knew it and I knew it and I told you that.”

That somehow now we had destroyed their effect on the jury.

This overlooks the fact that we were not able to generate expert testimony at that time and the state's case on this point was much more persuasive at the time of this original trial.

Justice William J. Brennan: But Mr. Carlson.

Mr. Ronald L. Carlson: Yes.

Justice William J. Brennan: I suppose this gets back to the colloquy you and I had earlier.

On this note issue, simply we haven't yet have we when this Court said that a false testimony gets in.

That's favorable conviction unless it was knowing, got in with the knowledge of its falsely on the part of the prosecution.

Mr. Ronald L. Carlson: Well, the view of --

Justice William J. Brennan: I mean, hasn't that been our --

Mr. Ronald L. Carlson: This is why I mentioned Pyle versus Kansas, Your Honor.

In that case, the lower courts have all taken the position.

Curran versus Delaware is a good example.

That case involves no knowledge by the prosecutor himself of perjured testimony and yet if is shown to be material, the point is that the --

Justice William J. Brennan: But in my mind Mr. Carlson, I suppose is not a trial carried on this that this perjured testimony doesn't get in whether its false or in any event whether it's in fact perjury.

Are you suggesting that wherever it's established that it's in fact false; however innocent the prosecutor may be of knowledge of its falsity that that ought to be a rule which requires the offsetting of the --

Mr. Ronald L. Carlson: Well, I'm suggesting there's evidence in this record that this prosecutor was told this evidence was false.

I'm suggesting --

Justice William J. Brennan: Well, that's a different place.

Mr. Ronald L. Carlson: That's right.

Justice William J. Brennan: In other words you're saying this is within the rule that there's something which establishes that he knew of the falsity of this.

I gather the handwriting expert is against you on that.

Mr. Ronald L. Carlson: The findings are against me on that, Your Honor.

Justice Potter Stewart: He was told it was false in open court so as the jury told them it's false.

Mr. Ronald L. Carlson: Yes, sir.

Justice Potter Stewart: But that doesn't mean that he thought it was false and certainly does it mean that he knew it was false.

Mr. Ronald L. Carlson: This is true Your Honor but we were denied notice of this evidence until the very eve of trial.

I see my time has expired Your Honor.

Justice William J. Brennan: Before you sit down Mr. Carlson.

Mr. Ronald L. Carlson: Yes, I'll be glad to --

Justice William J. Brennan: I'm a little confused about this 35-year business I think you told us yesterday that the Iowa practices and the life sentence, this is without possible of the parole and if it's to be short of actual life, there must be a commutation of it.

Now, I thought that the Attorney General said differently, am I wrong?

Mr. Ronald L. Carlson: No, I believe he agrees with me -- the Board of Parole has no authority to parole a life --

Justice William J. Brennan: Well now, has there been any effort to get commutation of Johnson sentence?

Mr. Ronald L. Carlson: I'm not aware on that point sir.

I do know as I said yesterday that he is being considered for recommendation at the present time but what the --

Justice William J. Brennan: Recommendation for what?

For commutation?

Mr. Ronald L. Carlson: For commutation.

Justice William J. Brennan: I see.

Thank you.

Mr. Ronald L. Carlson: If there are further questions, Your Honor?

If not let me thank the Court very much.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript:

Argument of Ronald L. Carlson

Chief Justice Earl Warren: Number 32, Gale H. Johnson, petitioner versus John E. Bennett, warden.

Mr. Carlson, you may proceed with your argument.

Mr. Ronald L. Carlson: Thank you Your Honor.

May it please the Court, I am Ronald Carlson from Iowa City, Iowa.

I'm here today Your Honors representing Gale Johnson who is a prisoner at Iowa State Penitentiary in Fort Madison, Iowa.

Mr. Johnson was originally charged in this case with the crime of murder.

The jury, Your Honors, was presented with four alternative verdict forms: murder in the first degree with death penalty, murder in the first degree with life imprisonment, murder in the second degree, or not guilty.

The jury rejected the first two alternatives that is the first-degree murder alternatives and found Mr. Johnson guilty of murder in the second degree.

Justice Byron R. White: Mr. Carlson?

Mr. Ronald L. Carlson: Yes, Your Honor.

Justice Byron R. White: This was 35 years ago?

Mr. Ronald L. Carlson: Yes, 34 years ago Your Honor.

Justice Byron R. White: He got life sentence?

Mr. Ronald L. Carlson: Yes.

Justice Byron R. White: I gather life sentence like (Inaudible).

Mr. Ronald L. Carlson: Well, --

Justice Byron R. White: Even the defendant (Inaudible) may advise for 15 years.

Mr. Ronald L. Carlson: Yes.

Now, we have a rule there I believe Your Honor that provides that the life sentence is non-parolable and has to be commutable to a term of years.

So, at the present time I believe he is being considered for parole right now but there's nothing certain about it and I believe he would have to undergo the commutation first.

Justice Byron R. White: And I gather quite that they'll say in Iowa, life is almost (Inaudible).

Mr. Ronald L. Carlson: Yes, that's right.

Now, he claims certain very distinct errors occurred in his trial Your Honors.

Justice Byron R. White: (Inaudible)

Mr. Ronald L. Carlson: Sure.

Justice Byron R. White: Had he raised these questions in other procedures he elevated?

Mr. Ronald L. Carlson: Yes, he has.

He has been denied evidentiary hearings on every occasion, --

Justice Byron R. White: When did --

Mr. Ronald L. Carlson: -- say the one below.

1949, Your Honor.

Justice Byron R. White: That's I suppose -- that was 15 years I believe.

Mr. Ronald L. Carlson: Yes.

Yes.

But well the witness who was suppressed was still alive which is very important.

He in fact filed three habeas corpus, I believe that year.

Then he filed again in federal habeas corpus in 1960.

Again, the witness was still alive and he was still trying.

He took an affidavit from the witness in the meantime.

He filed for habeas corpus again in the Iowa Supreme Court as an original petition in 1966.

This again was denied without hearing.

He then went back to federal district court to file for habeas corpus again.

Now, he got his evidentiary hearing.

Now, he was able to put off record the significant facts about the suppression that we're talking about here today.

Justice Byron R. White: Thank you.

Mr. Ronald L. Carlson: Thank you, Your Honor.

Chief Justice Earl Warren: Was he an indigent at the time he was convicted?

Do you know?

Mr. Ronald L. Carlson: Yes, at least Your Honor he was an indigent as it pertained to his securing of witnesses.

Now, by reason of his poverty he was entitled to use a statute under which he could subpoena witnesses if he could show the trial court that the witness was material and necessary to the defense.

He made application and the court granted the subpoena under the statute so apparently that was the case.

Now, the statute admittedly that he subpoenaed his witness under required him to make a preliminary showing of the necessity of this witness.

So, he went to trial court back in 1934.

He applied for this witness and the subpoena was issued.

It was sent from the county of trial approximately 165 miles away to the county of the residence of the witness.

Now, this witness's name was Mr. Orsucci.

Mr. Orsucci lived in our City of Des Moines and the Sheriff in Polk County which is Des Moines, Iowa received this subpoena and did not serve it.

In fact he made a subpoena return indicating the witness could not be served and that the witness, Mr. Orsucci was confined in a mental institution.

Now, Your Honors, I'm very sorry to say this was not true.

In fact this witness, Mr. Orsucci, was at the very time of the subpoena return under lock and key of the very sheriff whose responsibility it was to serve the subpoena.

Now, this fact that I'm now stating is beyond dispute in this proceeding.

So we have a purely legal question I think involved.

The records of the Polk County Jail were subpoenaed into the habeas corpus hearing below and I reflected them in our appendix here.

They demonstrate that this witness that was subpoenaed by the defendant was in fact during the course of the trial in the Polk County Jail at the relevant times.

Justice Abe Fortas: Is it clear whether this was a deliberate falsehood or a mistake on the part of the sheriff?

Mr. Ronald L. Carlson: Your Honor, the facts I think would exclude the mistake analysis.

If Your Honor's question goes to whether we have direct admissions of the sheriff or prosecuting officer that they were locking the man up to keep him away from the trial we don't have such admissions.

Justice Abe Fortas: And you don't have any findings, do you?

Mr. Ronald L. Carlson: We do have the finding of the Court of Appeals below for instance which says the evidence on the point establishes a prima facie case that the sheriff made a false return.

That also, Your Honor, is established by our trial court's finding below in which --

Justice Byron R. White: (Inaudible)

Mr. Ronald L. Carlson: Well, Your Honor, the trial court made an independent investigation at the mental institution.

He concluded I believe his order appears on page 34 of our appendix that the records there show that this witness was never entered there as a patient and he could find no evidence that he transfer of the witness to the mental institution was contemplated.

So while the sheriff put on the return, your witness is in the mental institution, is virtually unexplainable.

Justice Byron R. White: I take a picture, unavailable, would he?

Mr. Ronald L. Carlson: Yes, he has desist, Your Honor.

Justice Byron R. White: It's not your submission though that the -- said this county was 160 miles when the file came?

Mr. Ronald L. Carlson: That's exactly right Your Honor.

Justice Byron R. White: Does it also suggest that the prosecutor, I take it, is an official of the prior case?

Mr. Ronald L. Carlson: Right.

Justice Byron R. White: Does anyone -- local sheriff of that county knew anything of this assuming now what are these people?

Mr. Ronald L. Carlson: There is no evidence in the record Your Honor positing clear proof that the trial prosecutor in our county of trial was aware of what was going on in Des Moines.

Justice Byron R. White: So to that extent, it's a question issue we have.

This would rather be in a larger with possible amount of this situation which we have found that no trial was required --

Mr. Ronald L. Carlson: Yes, although clearly was in the spirit Your Honor and I think the due process clause protects against governmental action.

And cases have said that you can't carve out the Government into small units.

In other words, if sheriff's officers in another county brutalized the confession from a defendant, could it be said that the prosecutor at a different county could take the confession on a silver platter and use it.

Justice Byron R. White: So far the case is I think am I correct?

Mr. Ronald L. Carlson: Yes.

Justice Byron R. White: In this area, knowing some question of evidence have involved fact situation that were under the prosecutor itself or someone related officially to him like a local police officer or something who was responsible for his right?

Mr. Ronald L. Carlson: This is clear.

Justice Byron R. White: So again, to that extent your submission that was require a logical principle so that the --

Mr. Ronald L. Carlson: This is exactly right and I consider it very consistent one, Your Honor, nothing inconsistent.

I will in connection with the false notes that were introduced into the trial to speak just a little bit about the prosecutor's participation but it does not play a role in this particular aspect that we can point to in the record.

Justice Byron R. White: I was thinking, if you prevail, this man will end up to be tried.

Mr. Ronald L. Carlson: Well, I don't think it's that clear I think there can be an attempt to retrial we'll just have to cross that bridge when we come to it.

I think --

Justice Byron R. White: Well, I thought you said if somebody believes.

Mr. Ronald L. Carlson: Many witnesses are unavailable.

I think it would be very difficult Your Honor.

Now, the suppression point that we have mentioned here Your Honors, the respondent treats at page 7 of the respondent's briefs saying the fact that a requested defense witness was held in jail during the course of petitioner's trial is undisputed.

So as I say, there apparently is no fact issue on that key question.

Now, the respondent would deny the due process implications which we alleged exist in this particular situation by saying basically that the case is an old one.

The respondent asserts that the petitioner in the years ensuing since his conviction has more or less sat on his hands.

In respondent's brief, resisting certiorari, the respondent stated the unusual age of this case combined with the death of the witness and the lack of concern by the petitioner while the witness was alive served a highlight his lack of availability of relief here.

It's her point that he has saw it in every way he knows how and every way a man in the penitentiary can do to keep his case alive, to bring it on for hearing.

And it seems to us that it is especially unseemly for the state to take this position when they have resisted his attempts to get this case in the court.

To get these witnesses evidence before the judge of record.

Now, to say well he sat on his hands.

I think the record bears out that he has filed one habeas corpus after another.

In addition to that, he has not left us of completely dry as it pertains to exactly what this witness experience was.

He did obtain an affidavit from the man which appears at page 33 of our appendix wherein Mr. Orsucci said, “On the relevant date, I was confined in Polk County jail.

I saw in the Des Moines Register a news item saying I was being sought for witness.”

He tells that he has to note to the turn key wanted to be let out, and pass the note for the judge.

His requests were denied and he was never served with subpoena.

Now, the idea of prosecutorial knowledge --

Justice Byron R. White: Incidentally, with direct trying the (Inaudible)

Mr. Ronald L. Carlson: No, there was not Your Honor.

His particular position in the trial of the case is not much referred to and we have our ideas of how it would have been used and I think he certainly was a key figure in this whole thing.

He'd been arrested for this murder and clearly I think the defense wanted him to point out that the state's witnesses down there in Burlington, the place of the trial had identified him as being one of the man implicated and he would have very clearly undercut their credibility had he been produced, I think.

Justice Hugo L. Black: Where was he tried?

Mr. Ronald L. Carlson: Pardon me, Your Honor?

Justice Hugo L. Black: Where was he tried?

Mr. Ronald L. Carlson: At Burlington, Iowa Your Honor is where my petitioner was tried.

Justice Hugo L. Black: And what's that Burlington have to do with it?

Mr. Ronald L. Carlson: Well, there were two witnesses in Burlington at the scene who had identified my petitioner and one of them apparently made an identification of this Mr. Orsucci as well which prove to be erroneous.

Now --

Chief Justice Earl Warren: Do I understand from you that before the judge issued the subpoena, that it was necessary for him to be the opinion that this witness was necessary to the defense?

Mr. Ronald L. Carlson: That is precisely right Your Honor, that's exactly what the law provided.

Now, prosecutorial knowledge place a great role or lack there of in connection with a second development in this trial.

There was introduced we contend false documents, false notes against the petitioner.

The state penitentiary at Fort Madison and I think this is undisputed was a great focus for the prosecutor to be investigating before the trial.

The evidence on both sides -- oh!

Excuse me.

Chief Justice Earl Warren: We'll recess now Mr. Carlson.