NORTH CAROLINA v. PEARCE

Transcript: 

Argument of Paul T. Gish, Jr.

Chief Justice Earl Warren: Number 418, Curtis M. Simpson, warden, versus William S. Rice.

Mr. Gish.

Mr. Paul T. Gish, Jr.: If the Court please, Mr. Chief Justice.

I'm Paul Gish, Assistant Attorney General of Alabama representing Warden Simpson as the petitioner in the case of Simpson against Rice.

In this case, Mr. Rice was convicted in 1960 of four separate cases of second-degree burglary.

It was seen on a plea of guilty in each case four years in one case and two years in each of the other three cases, making a total of ten.

His plea of guilty was entered without aid of counsel to a post-conviction remedy.

He received a new trial some two-and-a-half years later.

Our counsel was appointed for a new trial and he was tried I believe in December 1964, I think that's where I'm in, in two of the cases.

He was convicted by a jury, a second judge who passed an earlier sentence, gave him 10 years on each of those two convictions.

The next part in making a -- took Rule 20.

The next point, he was tried on a third case, (Inaudible) case was convicted by a jury and the same judge sentenced him to five years imprisonment and this time, the time of the last trial, the state prosecuting officer with a motion to nisi prius for us before the case and that is what the trial did, fourth case was now before us.

Now, this case if the Court please is similar of course to the North Carolina v. Pearce case.

However, those who are summoned caucasians over argued by counsel that we don't have here.

Of course, this man did receive harsher punishment.

He received much harsher punishment on the second trial than he did on the first.

He's not only did that but Your Honor I'm searching for word technically at least he received no credit for the two-and-a-half years served between the first convictions and his post convictions remedy.

Now, our position is that the trial did as complete discretion to our sentence after a judgment of guilt having that complete discretion he uses many factors, some of which are connected with the crime itself.

Some of which may be connected with the man, some of which are -- can be connected with the issue of the case itself, some of which if the Court please depends upon how much the trial judge knows about this particular case at this time.

In other words, on a plea of guilty, I have seen in the record that showed here what I've seen in years of good experience that all of the current cases in which the, I believe until May were doing the prosecuting officer and the accused that we will go -- entertain a plea of guilty if all of those that I have ever seen (Inaudible) that would not --

Chief Justice Earl Warren: Mr. Gish, would you suggest that among those things that the judge takes into consideration might puzzle the fact that a man who appeals and gets a reversal should be punished more than a man who did not take an appeal?

Mr. Paul T. Gish, Jr.: Of course Mr. Chief Justice I must agree with -- I must agree with you.

Some judges I'm sure would do that but our position is that the judge who is an elected or appointed official who in Alabama does not say and does not have any way of prescribed violation cited by the courts but why I've given you more --

Chief Justice Earl Warren: How was the defendant ever raised a question as to whether the judge had that in his mind or not when he sentenced him?

Mr. Paul T. Gish, Jr.: I don't feel that he could, Your Honor.

Chief Justice Earl Warren: But you don't think that would be permissible do you to have that ordered?

Mr. Paul T. Gish, Jr.: I don't -- Your Honor, if I disagree with you that he couldn't I think that if there are second chances that we don't know about.

We have vindication now.

Vindictiveness could be shown then we would have the case where a man could show that my rights are vindictive judge who did this just punish me.

But what I'm saying my position is that the mere fact that he receives -- that the accused receives a harsher punishment and in this case in my judgment can be and should be contributed as much to other sentencing factors and not to give vindictiveness.

Chief Justice Earl Warren: Well, here we have -- here we have the same judge, the same evidence and dismissal of one of the charges for the second trial and still the judge gives him accumulated sentences of 25 years instead of the 10 years that he gave them on the first trial, what more could one has for him to determine whether it was interpreted or not?

Mr. Paul T. Gish, Jr.: If Your Honor please, I agree with every part of your question except when Your Honor states that it's the same evidence, now I think --

Chief Justice Earl Warren: I thought that was in the -- I thought that was in the record here.

And then thought it's the same evidence.

Mr. Paul T. Gish, Jr.: On a plea of guilty.

Chief Justice Earl Warren: I beg your pardon?

Mr. Paul T. Gish, Jr.: On a plea of guilty as this man even the first in a crime of this sort.

In many times, no evidence in our own is presented to the court.

Now, we don't know from this record whether the judge had any evidence but we do know that the judge has the evidence on the jury trial.

Justice Thurgood Marshall: I was under the impression that the trial of both cases, I was wrong.

Mr. Paul T. Gish, Jr.: That's right.

Now, my time is over, I shall ought in this case I can't argue all about our contentions.

Let me point to a few things that are not in the brief.

In the Goolsby cases in which I have in the appendix to my brief on the merits and which was not reported throughout our brief, they've sentenced appropriate in 215 Seventh Circuit 598 and 602.

Now, those cases does need subsequent to the second conviction in this case of in essence that a man in Alabama cannot receive more punishment for one crime than the maximum provided by statute.

Now, that is all that Alabama requires and frankly that is no way that I know of to give a man credit in Alabama on his prior conviction of the second case.

The legislature does not leave it to the present authorities receive a man with the judgment and sentence of the court.

The present authorities have no discretion as to what to do with this man except to receive him and let him serve his term under the roof.

Now we do have “good time” and there are two types of good time which is the same as “gain time” of North Carolina.

Those things are figured by the present authorities.

Now, if I may, let me get to the records in this case in the appendix on pages 55 and 56, we have as an exhibit to add if that's alright with this court, a statement by the prosecutor as to how he handles the second cases on retrial.

Now, frankly I do not understand the statement of the District Court that flatly a key to the sta staf Alabama of increasing punishment, increasing sentences merely for punishment that in no evidence that I see in these records except the statement on which 55 and 56 and the statement by the petitioner below that he didn't know why he served or why he had to serve the sentence.

Now, of course I don't think that any convicted man could say why the judge gave him the maximum instead of the minimum is somewhat intriguing.

This Court I think can never held that this type of situation is similar-type situation involve double jeopardy.

The Court has held in Alabama from the beginning had also held that if a man is convicted of a lesser offense, he'd automatically acquitted of a higher offense.

In other words, if he were convicted of second-degree murder he cannot again be tried and convicted of first-degree murder but we should admit the difference between that situation and being convicted of first-degree murder for ten years on the one hand and on the second trial being convicted and getting a life of the same degree of crime.

There is a case that's cited by the Circuit Court of Fifth Circuit reported on 403 F.2d 1019.

This is not cited in any of the briefs filed here before filed in this case.

Frankly, I do not -- I cannot from a constitutional standpoint understand this case to Williams against State of Alabama, this case in connection with the case before this Court.

In the Williams case, there were three convictions on first trial.

Each sentence was for five years.

On the second trial, Mr. Williams was convicted by the jury and given ten years in one case.

In the other two cases, he was given a year and a half which put him of course in a better position, the second time he was than in the first time.

And I can tell you that he's in a better position.

I have constitutionally if Mr. Rice was entitled to receive only what he did the first time with credit for time served and the District Court held then constitutionally why wasn't Mr. Williams entitled of the same treatment except that on the whole Mr. Williams got a better deal at the cases than Mr. Rice did.

To me at a constitutional point, I do not understand that as a form of morality as a point of what should be known in a particular case, I can't understand it but in the constitutional point, if Mr. Rice has in the end of his year with no addition, then I submit that Mr. Williams is entitled of the same thing.

Thank you.

Chief Justice Earl Warren: Mr. Lawson.

Argument of Thomas S. Lawson, Jr.

Mr. Thomas S. Lawson, Jr.: Mr. Chief Justice and may it please the Court.

My name is Tom Lawson and with Mr. Oakland Melton we have represented the defendant or respondent in this cause up to this Court.

The facts can be briefly stated from our standpoint.

Mr. Rice was unfairly convicted, did not have an attorney at his first trial.

The State of Alabama granted him a new trial.

At that trial, they said Mr. Rice we are sorry that you spent two-and-a-half years in jail but we don't recognize that that exists and in fact we are so sorry that you spent that time in jail that we're going increase your sentence on these three cases from eight years to 25.

At the evidentiary hearing in the District Court, the State of Alabama produced no witnesses, not a single person testified for the State of Alabama.

Mr. Rice testified on his own behalf and a member of the Pardon and Parole Board of the Corrections I think testified as to certain time he spent in jail.

Justice Hugo L. Black: They don't have a witness at the (Inaudible)?

Mr. Thomas S. Lawson, Jr.: This is -- Mr. Justice Black, this is at the District Court, the federal district court in the habeas corpus proceeding but at that case, Judge Johnson at the conclusion of the case and in his opinion, it's on page 69 of the appendix found that the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for having exercised his right of post-conviction review and for having had the original sentences set aside.

We submit as the Honorable Attorney General of the State of Louisiana mentioned that this is a flagrant violation of Mr. Rice's constitutional rights.

We realized at the same time that this case is before the Court primarily because of the several splits in the jurisdictions dealing with the patent case and as to the concepts involved there, we think that beyond the finding of the District Court that Mr. Rice was being punished for having made this appeal that our case can be supported here on the same three theories as the patent case.

Justice William J. Brennan: Excuse me Mr. Lawson, may I just get myself oriented?

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice William J. Brennan: I understand that this offense, second-degree burglary carries a maximum of ten years.

Mr. Thomas S. Lawson, Jr.: That's right sir.

Justice William J. Brennan: Suppose there have been only just one count to which had been a guilty plea and there had been a sentence of ten years, that the denial of assistance to counsel didn't come to light until after he had served say eight years or ten years, if he could have served that long, could he -- could he have served that long?

Mr. Thomas S. Lawson, Jr.: Your Honor, it gets through all complicated in figuring out good time and I can't say offhand, it would probably be more than they would of six years.

Justice William J. Brennan: Let's take six years.

Just before he had served these six years, then he succeeds in getting the conviction set aside for denial of assistance of counsel and he goes to trial.

Now, do I understand that on conviction, on trial, he could get another ten-year sentence that he would have serve that six years if it's a good time produced to six years so that the aggregate would be say 12 years on what for the offenses on the maximum of ten years under the statute, is that right?

Mr. Thomas S. Lawson, Jr.: Your Honor, I think the law in Alabama has been changed by the Goolsby case in that regard.

It now puts a maximum sealing on what you can get up to those two trials.

It cannot be above the maximum specified.

Justice William J. Brennan: Well, at the time --

Mr. Thomas S. Lawson, Jr.: But in this case, it did occur exactly the same thing that the situation that you said Your Honor occurred.

In the first case, --

Justice William J. Brennan: Well, then -- then in fact then Rice has to serve an aggregate of time in jail which exceeds the maximum for the offense.

Mr. Thomas S. Lawson, Jr.: In one of the offenses, that's true.

Not -- not on all three but because he had not entered into service of all three of these cases.

But on the first case, he had served some two years of a four-year sentence.

He was re-sentenced to 10 years in jail.

So that basically, had received two.

Justice Hugo L. Black: On that account?

Mr. Thomas S. Lawson, Jr.: Sir that was on one case.

One case.

Yes, sir.

There were four cases originally.

One was nol. pros. and as Judge Johnson mentions in here, on page 71, Judge Johnson found that the case was not nol. pros. as the state contended in order to compensate the petitioner for the time that he had served in the previous case but it was done because the main witness that the state had to rely on was not present.

And of course, we do contend and quite seriously that the evidence in the record as presented to the District Court is sufficient to sustain his finding that Mr. Rice was being punished for exercising his right of appeal.

You have to put this on the context of time.

The Gideon case have been decided and later Escobedo and Alabama had been reinstated the old writ of error coram nobis as state procedure for hearing these constitutional claims.

The habeas corpus in Alabama is not broad enough to hear those.

And it was only after this had been done that Mr. Rice was able to bring these things before the state court.

He was the first one.

Justice Hugo L. Black: Did Mr. Simpson had a fact that this was done in order to punish the (Inaudible)?

Mr. Thomas S. Lawson, Jr.: Yes sir.

Justice Hugo L. Black: What page?

Mr. Thomas S. Lawson, Jr.: Page 69, Your Honor of the appendix, the last part of the second paragraph.

Also in connection with the punishment, it's also important to realize that this man was the first one to his knowledge to file one of these writs after the Gideon decision in this particular county in Alabama.

I think the effect of this and the reasons for it can be illustrated by a case, United States District Court case in which the sentencing judge who was about to release someone on habeas corpus wrote in his opinion to -- not just to the person but to all the other prisoners and he said let me remind you that it may not be real rainbow that you see these writs that you are filing to get a fair trial.

He said, at the end of that rainbow then there may be nothing than a pot of fool's gold and of course that's -- sir?

Justice Hugo L. Black: A pot of what?

Mr. Thomas S. Lawson, Jr.: Fool's gold.

Justice Hugo L. Black: Fool's gold, alright.

Justice Byron R. White: Who said this and when?

Mr. Thomas S. Lawson, Jr.: This is on a district court case Your Honor, Schupp versus Sigler, 230 F. Supp. 601.

Justice Potter Stewart: That's in your brief or not?

Mr. Thomas S. Lawson, Jr.: Sir?

Justice Potter Stewart: Is that in your brief?

Mr. Thomas S. Lawson, Jr.: No, sir.

I just ran across it.

The point of law is not important but except the way that it expresses it to show what these prisoners are confronted with who are attempting to obtain a fair trial.

Justice Abe Fortas: May I --

Mr. Thomas S. Lawson, Jr.: Why did you say the --

Mr. Thomas S. Lawson, Jr.: 230 F. Supp. 607.

Justice Byron R. White: What was your basic point to this a due process point, is it?

Mr. Thomas S. Lawson, Jr.: Not really.

My basic point to begin with is, it goes really beyond due process to the very fundamental concepts of law.

I think --

Justice Byron R. White: Well, how do you -- is that the most you can say forum of their fundamental concepts?

Mr. Thomas S. Lawson, Jr.: Well, I can go back to Chambers versus Florida.

Justice Byron R. White: Well, how about -- what constitutional ground do you rely on?

Mr. Thomas S. Lawson, Jr.: Well, if we're going to a specific constitutional ground, it would have to be due process.

Here you have a person being convicted of something in effect that is not a crime.

The only thing that he did was to appeal, a right which the state could give Your Honor and it was for that that the District Court found that he was punished.

Justice Byron R. White: Well, does he have any constitutional right to appeal?

Mr. Thomas S. Lawson, Jr.: You have never held that he has a constitutional right to appeal but this Court has indicated that perhaps the states must provide at least one means of reviewing federal questions.

Justice Byron R. White: But why isn't this so -- why can't you approach it as just a burden on the other constitutional rights that he would be urging on appeal.

Mr. Thomas S. Lawson, Jr.: Well, sir the -- the unconstitutional conditions --

Justice Byron R. White: That isn't necessarily a due process approach, isn't it?

Mr. Thomas S. Lawson, Jr.: Well, due process only because in our view of the case, based at this point, on the district court's findings Your Honor and we got two different views, one if the court punished him for something that was not a crime, that's we say not due process.

That's not law of any kind.

But if the court was not punishing him for a crime, we think then that we can go back to Patton and to the basic concept developed in that case and support our position here.

Justice Byron R. White: They went on -- they went on three grounds.

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice Byron R. White: We want to know which one you're going on?

Mr. Thomas S. Lawson, Jr.: We urge all three, Your Honor.

Chief Justice Earl Warren: Do you see an equal protection?

Mr. Thomas S. Lawson, Jr.: Yes, sir.

I see a very keen issue of equal protection.

Let's first take it as to the denial of credit for time served and to take it one step further, and suppose that he had been on appeal, instead of in jail, exercising this writ of error coram nobis notice.

The reason for this is that in Alabama, you have to go by a writ of error coram nobis notice after your appeal time has run.

But if he had been appealing, he would be denied the equal protection that those people have -- who have the money to get out on bind, they don't spend any time in jail.

The time that they served every -- the time that the other people served who do not appeal, every minute of this is credited to their sentence but it is only this class, this class that is defined one way and that is a class of people who had been denied a fair trial, a constitutionally fair trial --

Justice William J. Brennan: Well, wasn't this a --

Mr. Thomas S. Lawson, Jr.: -- in the first instance.

Justice William J. Brennan: Didn't this case ever bump federal habeas?

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice William J. Brennan: Well, nobody has been out on here, has been out on bail while he was serving his sentence.

Mr. Thomas S. Lawson, Jr.: No -- no, I was making a statement Your Honor that the logic in this case becomes more keen when you look at it.

Justice Byron R. White: Well, I know but this isn't this case.

Some other cases in this case.

We're talking about this case.

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Well, in this case, you still have people who are in jail under sentence of law who are serving their sentences and they are receiving credit for it and only these people who have been denied of fair trial and who have to go back to the Court to obtain a fair trial and I'm speaking now in terms of due process, we're not speaking of state error, procedural errors, errors in the admission of evidence that do not reach constitutional proportions.

Justice Thurgood Marshall: Did I understand here that under Alabama law; before the writ of coram nobis was reinstated there was no way of bringing this point up?

Mr. Thomas S. Lawson, Jr.: No, sir.

Justice Thurgood Marshall: Well, then where do you get the equal protection argument of the wealthy man, he couldn't bring it up either, could he?

Mr. Thomas S. Lawson, Jr.: That's true Your Honor.

Justice Thurgood Marshall: What happens to equal protection argument on this case?

Mr. Thomas S. Lawson, Jr.: Well, if it's a question of whether they -- you have to provide a forum for these people, it may be that the state does not have to provide any method of appeal on raising these things but you do get to the -- your equal protection argument on this particular thing is that the people who are sentenced and stay in jail and that includes two classes: those people who were denied of fair trial but are scared to get one and those people who had a fair trial and had been convicted and sentenced.

They get credit for every minute they are in jail.

Justice William J. Brennan: Well, I suppose you're arguing too are you Mr. Lawson that if on the same day, two who had pleaded guilty to second-degree burglary or robbery whatever this is, each got ten years.

One did appeal, seek this collateral remedy because he didn't have counsel.

The other did have counsel either and he didn't appeal.

At the end of six years, he'd be out, whereas this fellow is going to have to serve 12.

Mr. Thomas S. Lawson, Jr.: That's right, Your Honor.

Justice William J. Brennan: So that's a denial of equal protection as between prisoners who stay in the same situation merely because he sought a relief from this unconstitutional conviction.

Mr. Thomas S. Lawson, Jr.: Yes, Your Honor but we think that that.

Justice Hugo L. Black: It belonged to the same effect.

Mr. Thomas S. Lawson, Jr.: Sir?

Justice Hugo L. Black: How did it belong to the same effect?

Mr. Thomas S. Lawson, Jr.: Well, that necessarily have to be framed, it has to be tried in the same day but we're speaking of prisoners as a class and that they -- these people who obtained a sentence whatever the length of it is do not have this sentences reviewed.

It may be that that second person needed to have his sentence increased as much as the first person but if the state of Alabama believes this is a necessary end, in and of itself, it can provide another means of doing it, apart from taking only one group of people and reviewing their convictions and reviewing their background.

Justice Byron R. White: Convicted on this --

Justice Hugo L. Black: And the treatment among the class has attacked the judgment on the grounds as you call it unconstitutionally reachable those who are in that class, what is the difference with equal protection?

Mr. Thomas S. Lawson, Jr.: Between constitutional reasons and procedural error?

Justice Hugo L. Black: All -- between all the prisoners which were in jail doesn't have to successfully attack their judgment on the ground that they were really (Voice Overlap)?

Mr. Thomas S. Lawson, Jr.: Alright sir.

I think if you divide it up in your illegal convictions between those who suffered a denial of a fair trial in a constitutional sense not having a lawyer or for many of the other constitutional reasons and those people --

Justice Hugo L. Black: The difference in treatments?

Mr. Thomas S. Lawson, Jr.: The difference in treatments, sir.

Justice Hugo L. Black: All that, within that class?

Mr. Thomas S. Lawson, Jr.: Because if they have been denied a constitutional right to a fair trial, they go back to seek a fair trial and the state says the years that you've served in jail would go into --

Justice Hugo L. Black: If you go (Inaudible) --

Mr. Thomas S. Lawson, Jr.: Yes, sir.

They are in the same class.

They are prisoners who have been one sentence.

Justice Hugo L. Black: Now, if (Inaudible) --

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice Hugo L. Black: It seems to me that --

Mr. Thomas S. Lawson, Jr.: Well, the class that I'm intending to create are those people serving in jail under sentence of law and it's within that class that I'm speaking.

Justice Abe Fortas: Have you considered what the effect of this doctrine would be in California under the Adult Authority (Inaudible)?

Mr. Thomas S. Lawson, Jr.: No, sir, I have not.

I am familiar with the California decision of Henderson and People versus Ali which carries forward your Green case to support our contentions here in this Court.

But I'm not familiar with what you speak of.

Justice Abe Fortas: I suppose the state procedure, state law has provided that the court merely sentences the convicted defendant let's say to one year to life and then there is an Adult Authority that determines how long he shall serve, makes that determination and re-determination from time to time within that very broad charter and I take some appeal conviction reversed to retry, again, sentenced one year to life and with the doctrine that you for what you contend have to be binding upon the administrative agency that has said the Adult Authority in the respect that they could not thereafter compel a man to serve more time the last time they have fixed prior his appeal.

Would you carry out that fine, in other words?

Mr. Thomas S. Lawson, Jr.: Well sir, I might.

I'm not really familiar enough to know how that works but that is the idea that I have in mind of what the state could resort to if they felt that this constant review of sentences were necessary and if you have this constant review of sentences, that becomes very administratively perhaps.

It becomes very little reason for having it done by the Court.

In fact, if you look at the public --

Justice Abe Fortas: Yes, except that I'm suggesting that maybe the principle for which you contend would operate to restrict the discretionary power of the Adult Authority in the sense that after a successful appeal and reconviction I don't know why he's asking whether in that case after a successful appeal and conviction on the second trial you would say that this principle should apply to the administrative authority namely that they can't keep it following custody any longer than the last ruling prior to his appeal provided.

Mr. Thomas S. Lawson, Jr.: Well, it could have that effect but I think if the -- it would not have that effect under the equal protection argument that we make Your Honor.

It might well have in effect under the due process argument or the double jeopardy argument that we make.

Justice Abe Fortas: I'm not suggesting that would be the result but I am suggesting that that is a problem.

Mr. Thomas S. Lawson, Jr.: Yes.

Justice Abe Fortas: It might be raise -- it might follow as a consequence of the doctrine for which you are here arguing.

Mr. Thomas S. Lawson, Jr.: Well, I've already touched on I believe due process and the equal protection arguments, our double jeopardy argument we can attack in two concepts really.

One, you can carry forward this fictitious void doctrine that began in Stroud and some of the earlier cases as the Court did in Green.

And in that case, the Court held that that was an implied acquittal of the first-degree murder sentence when he was sentenced to second-degree murder.

We think that there's very little reason that it should not be carried all the way forward as they've done in California to apply the same logic and reasoning to the degree, not to the degree of the sentence but to the time in jail.

Some states divide crimes up into many different degrees.

Others have only a very few but the end purpose of both is to fit the punishment to the crime.

Now, the only argument made by the state in this case has been that this was on a plea of guilty and because of that that the state ought to have a second chance to look at it if the man decides to appeal.

But I think we have to carry it a little further and realize that it was on a plea of guilty when he was without counsel.

At that time, the state's attorney has a duty owing to the state to see that he does not make an agreement that will be sole -- require smaller time in jail that the state would be jeopardized.

If the state's attorney makes an agreement and it's adopted by the Court that it may well, it should represent what the state is going to require of this crime and we see no reason that the state is going to require of this crime and we see no reason that the state should have a second chance to look at this man, only this man not the others who may need their sentences reviewed just as much.

The other viewpoint of double jeopardy is the multiple punishment angle and this began in the case of Ex parte Lange some years ago and that is to look at double jeopardy as being more than one concept but having three different parts to it: retrial after conviction, retrial after acquittal, and multiple punishment for the same offense.

It may be that when this man appeal that he waived his right against a double jeopardy not to be retried but that does not mean that he necessarily waived his right to have that particular sentence fixed against.

I think that a lot of these arguments that we have made up here in Professor Van Alstyne's article in the Yale Law Review and I'd like to give some credit and mention to him because he probably should be the one before the Court today making the arguments in these cases --

Justice Potter Stewart: Mr. Lawson, excuse me.

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice Potter Stewart: I didn't mean to interrupt.

Mr. Thomas S. Lawson, Jr.: No, sir.

Justice Potter Stewart: The Court of Appeals here adopted as its own the opinion of District Judge Johnson.

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice Potter Stewart: Is it not and of course, Judge Johnson decided in your favor.

Mr. Thomas S. Lawson, Jr.: He did sir.

Justice Potter Stewart: In doing so, however, he made very explicit that he did not believe that it is constitutionally impermissible to impose a harsher sentence upon retrial if there is recorded in the Court record some legal justification for it and I'm quoting from his opinion.

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice Potter Stewart: You remember that language?

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice Potter Stewart: If -- first of all, I'm sure you're not going to look a gift horse in the mouth so I won't ask you whether or not you don't need to say whether or not you agree or disagree with it.

But if he is correct about that, if he is correct about that then this means that he has rejected any claim that this would violate the double jeopardy guarantee, does it not?

Mr. Thomas S. Lawson, Jr.: Yes, sir.

He did not rest his opinion on double jeopardy.

Justice Potter Stewart: And he could not have if he said it's constitutionally permissible, as he did trust constitutionally permissible.

Mr. Thomas S. Lawson, Jr.: Yes, Your Honor.

Justice Potter Stewart: Under certain circumstances to impose a harsher sentence.

Mr. Thomas S. Lawson, Jr.: Yes sir, I agree.

I agree with the language of the District Court as to your interpretation of it and I don't necessarily agree that the judge should have stopped at that point instead of going further.

Justice Potter Stewart: Well, but even -- you --

Mr. Thomas S. Lawson, Jr.: But we have supported on that ground too.

There is no evidence in the record at all as to reason for this.

Justice Potter Stewart: But if the District Judge is right in that statement then that means that your double jeopardy argument is -- cannot prevail does it not?

Mr. Thomas S. Lawson, Jr.: That's true sir.

Justice Potter Stewart: Because if you're right on the double jeopardy claim, there just simply would be an absolute prohibition of imposing a harsher sentence.

This is on the after the second trial no matter what the circumstances of the evidence showed, is that right?

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice Potter Stewart: Also your equal protection argument.

Mr. Thomas S. Lawson, Jr.: I believe you're right there too, sir.

Justice Potter Stewart: Well, except Judge Johnson relied rather strangely on equal protection.

Mr. Thomas S. Lawson, Jr.: Yes sir, he did.

But I think there are three views that have been expounded by the district courts.

One takes the view that there can be no increase at all and that was the Patton case.

Another takes the view that there can be increase under justifiable circumstances which appear on the record.

That was the lower court case in the instant case and also the lower court in the Patton case.

The Marano case takes a position that there can be an increase for reasons appearing, I believe, for things that have occurred after the first sentence.

Another view is expressed that it can be for reasons not that have occurred since the first sentence but for reasons in connection with the crime itself, the first crime, or aggravated circumstances.

Therefore, we believe the simple solution is to --

Justice William J. Brennan: Is there another possible view that if the second sentences were then statutory maximum that really all that he's entitled to do is to be sure that credit and time already served?

Mr. Thomas S. Lawson, Jr.: Your Honor, that view of the statutory maximum has bothered me considerably because it flies right in the face of the own doctrine that the courts rely on and that is that the case is void for all reasons.

Justice William J. Brennan: Well, I know but -- I wonder what we're talking about here is what the federal constitution imposes in the way it will restrain in this circumstance on a new sentence.

Isn't that we're talking about.

Mr. Thomas S. Lawson, Jr.: Yes, sir.

Justice William J. Brennan: Well, focusing on that, if he -- actually, he sought to have a first conviction set aside and the hope that on a new trial he'd be acquitted I take it?

Mr. Thomas S. Lawson, Jr.: Yes.

Justice William J. Brennan: That's the reason he did it, was it.

And if that's the chance he wants to take and the -- and he fails and the sentence for whatever reason is within the statutory limit on the new sentence, does he really have any justification for asking for more than an assistance that he get credit on time already served in the first sentence?

Mr. Thomas S. Lawson, Jr.: Yes sir, I think he does.

Justice William J. Brennan: Yes, that's --

Mr. Thomas S. Lawson, Jr.: I believe it's a --

Justice William J. Brennan: Well, I believe my question to you was is it that another possible view of this problem?

Mr. Thomas S. Lawson, Jr.: Yes, sir.

I have nothing further unless the Court has some more questions.

Chief Justice Earl Warren: Mr. Gish.

Rebuttal of Paul T. Gish, Jr.

Mr. Paul T. Gish, Jr.: If the Court please.

Mr. Justice Brennan's view accused in this case received on the second trial, he doesn't (Inaudible) the ideas.

He has the maximum sentence on three indictments for burglary in second degree is 30 years.

I do not think we have any question here that this man has received what was more than the maximum allowed by the Alabama statute.

When he was on his first 1960 convictions, he received 10 years out of a maximum total of 40.

On the second trial, he received 25 years out of a maximum total of 30.

So we have --

Justice Potter Stewart: Now, 25 plus the time he'd already served Mr. Gish.

Mr. Paul T. Gish, Jr.: Two and a half years.

Justice Potter Stewart: Yes.

Mr. Paul T. Gish, Jr.: Which was still less.

It would 27 and a half years.

Yes, sir.

Justice Potter Stewart: Is it true that this was the first collateral attack upon a conviction in your state under the rule of Gideon against Wainwright?

Mr. Paul T. Gish, Jr.: No, sir not in my state.

Justice Potter Stewart: But in this county --

Mr. Paul T. Gish, Jr.: It may have been in this county.

Justice Potter Stewart: Well, now you say it may have been the petitioner alleged that it was.

Mr. Paul T. Gish, Jr.: The petitioner has said before at the evidentiary hearing.

I do not know if it's correct or not that is a test before.

Justice Potter Stewart: And you don't know whether it's correct

Mr. Paul T. Gish, Jr.: No, sir.

Justice Potter Stewart: But he is the -- of course he wouldn't have the records available to him I presume, only the state would or the court or the clerk courts or somebody but.

Mr. Paul T. Gish, Jr.: No, I do not know.

I know --

Justice Potter Stewart: In the record, that's uncontradicted testimony at least that this was the first attack upon a conviction based upon this Court's decision in Gideon against Wainwright in this county in Alabama.

Is that correct?

Mr. Paul T. Gish, Jr.: That is correct.

Justice Potter Stewart: And the -- from that fact, as well as from the state's failure to present any witnesses, the habeas corpus hearings and perhaps some other circumstances, Judge Frank Johnson the federal district judge in this case concluded as a matter of fact that the reason for imposing the harsher sentence was the vindictive reason of penalizing this petitioner's attacked on a sentence under a decision of this Court, is that correct?

Is that fairly said?

Mr. Paul T. Gish, Jr.: That may be so Mr. Justice Stewart.

Let me say this.

I do not fully understand Judge Johnson's opinion in two or three respects.

And this isn't forum, he says they either not know in the first place that the state cannot give a harsher sentence.

Alright, then he says that where the state does not show by the record “the reason for your harsher sentence been a due process or equal protection overtly.

Then I am wondering was my hindsight has always been a lot better foresight but I guess it does, what if I had at the time of the habeas corpus hearing introduced the evidence in front of the judge and the prosecutor to let them explain why this was (Inaudible).

As I read -- as I read Judge Johnson's opinion even that were not have had my cause at that state of the game and I read the opinion and he said in the record and offered them the record on the second trial might show some reasons.

Well, I couldn't conceive of no reason other than the fact as I said it earlier that the judge had the evidence before him the second tim and he accepted the plea of guilty on the first trial.

Now, would it be enough for the trial judge in stating the record at the end of the trial when jury convicts.

Well, this time, I read the evidence against you.

The first time, you and the prosecutor entered to an agreement and I ratified it by accepting your plea but this time, no more advantage.

So therefore, I'm going to give you a harsher sentence.

Now, would that be enough?

I don't know what this opinion.

Justice Byron R. White: (Inaudible)

Mr. Paul T. Gish, Jr.: No, I think they based that on to that note -- I have --

Justice Byron R. White: (Inaudible)-- the statute --

Mr. Paul T. Gish, Jr.: Now, this instance confronted me sir and seriously I know that the decision of this Court in this case and in related cases, it bound to have a tremendous effect upon the sentencing policies of the trial judges all over the country.

I am sure talking with such judges in that thing of course each individual, they got to be when someone have a policy on plead of guilty or being lenient and frankly I'm not looking too closely to case other than of course the no harder than from the beginning but if the state cannot make its bargain in the one instance and repudiated at the same time, accuse to repudiate then the sentencing policies of the trial judges in the land will change many of them.

Justice Byron R. White: (Inaudible)

Mr. Paul T. Gish, Jr.: Saying what?

Justice Byron R. White: (Inaudible)

Mr. Paul T. Gish, Jr.: Yes, they have gotten to the bargain.

Justice Byron R. White: On agreement?

Mr. Paul T. Gish, Jr.: On agreement.

Yes, sir.

I've seen it happen many, many times to a person to us.

What?

Justice Byron R. White: Judge who?

Mr. Paul T. Gish, Jr.: Judge Harris and Powell and partly Johnny.

Now, I don't want you to understand me sir.

I did not say, I did not mean to imply that they had any motive of a bargain and we would make it buying and selling of property.

I meant -- I meant merely this that the agreement and I call it a bargain would be if you leave out the fact of no attorney the defense attorney would ask the prosecutor how much sentence can we have if we plead guilty and then maybe bargaining in this instance that there might be some little time before an agreement is reached.

Justice Byron R. White: (Inaudible)

Mr. Paul T. Gish, Jr.: I'm not apologizing.

I'm just trying to be shoot with this.

Justice Byron R. White: (Inaudible)

Mr. Paul T. Gish, Jr.: Right.

Thank you very much.

Transcript: 

Argument of Andrew A. Vanore, Jr.

Chief Justice Earl Warren: Number 413, North Carolina et al., petitioner versus Clifton A. Pearce.

Mr. Vanore.

Mr. Andrew A. Vanore, Jr.: Mr. Chief Justice, may it please the Court.

I am Andrew A. Vanore Jr., I'm a member of the staff for the Attorney General of North Carolina and I represent the petitioners, the State of North Carolina and Warden R.L. Turner in this particular case.

The single issue involved in this particular case is upon retrial for the same offense which has been set aside on appeal or post-conviction proceeding due to a constitutional defect in the first trial, may the second trial court impose a harsher punishment upon the defendant.

The facts briefly stated are Clifton A. Pearce, the respondent in this particular case, was initially tried at the May 1961 term of the Superior Court of Durham County, North Carolina on the capital charge of rape.

Upon arraignment, the prosecuting attorney or the solicitor announced that he would not seek a verdict in excess of assault with intent to commit rape.

The jury found the defendant guilty of assault with intent to commit rape and the judge imposed a sentence of 12 to 15 years upon the defendant.

The defendant started serving the sentence on May 25, 1961.

In 1965, the defendant filed a petition under the Post-Conviction Relief Act questioning the admissibility of a confession introduced against him in the first trial.

Relief was denied by the Superior Court of Durham County on May 10, 1965 and certiorari was accepted by the Supreme Court of North Carolina which reversed the case and awarded the defendant a new trial.

The defendant was released from custody upon the first sentence imposed upon him on February 2, 1966.

At that particular time, he had served four years, eight months and six days flat time and six years, seven months and 16 days flat and gain time.

The gain time being computed upon 150 days granted to the defendant for each year of service on the sentence.

The defendant was tried the second time at the June 6, 1966 term of the Superior Court of Durham County upon an indictment charging assault with intent to commit rape.

The jury found him guilty of assault with intent to commit rape and the presiding judge who specifically stated in his judgment that he was taking into consideration the fact that the defendant had served six years, seven months and 16 days flat and gain time was going to impose only a sentence of eight years upon the defendant.

The judge stated in his judgment that it was his intention to impose the maximum sentence allowed by statute for the offense which is 15 years however, because of the gain time and so forth he reduced it to eight years.

In March 19 --

Justice Abe Fortas: Let's -- that -- there's a factor in this case that bothers me, if the sentence said the first time around on the first conviction was -- what was it, 12 to 15 years?

Mr. Andrew A. Vanore, Jr.: Yes sir.

Justice Abe Fortas: Ten to 12, something like that and second time around there was eight years, right?

Mr. Andrew A. Vanore, Jr.: That's correct.

Justice Abe Fortas: Now, do I understand that it's the rule in North Carolina that you do give prisoners on their second conviction credit for time served?

Mr. Andrew A. Vanore, Jr.: That is correct.

That is the rule as --

Justice Abe Fortas: That's the rule of law?

Mr. Andrew A. Vanore, Jr.: That is rule announced by the Supreme Court.

Justice Abe Fortas: Does that include gain time?

Mr. Andrew A. Vanore, Jr.: That includes gain time, yes sir.

All credits served --

Justice Abe Fortas: So that the --

Mr. Andrew A. Vanore, Jr.: -- upon the board, its sentence.

Justice Abe Fortas: Yes, so when this fellow was given eight-year sentence in the second trial if he had served the whole eight-year without any reference to additional gain time, he would've had to serve another one year and five months?

Mr. Andrew A. Vanore, Jr.: That is correct.

The trial judge in taking into consideration the gain and flat time that the defendant it served, reduced it or deducted it from the maximum sentence allowed under statute, 15 years.

He did not reduce it from the minimum sentence that was imposed upon the defendant at the first trial that means 12 years.

Justice Abe Fortas: You mean the sentence here was not eight years but 15 years?

Mr. Andrew A. Vanore, Jr.: The sentence was eight years.

However, the judge said, it is my intention to give you a sentence of 15 years.

However, since you have served this particular flat and gain time upon the first sentence which was less than seven years, since you have served that time, I am going to deduct that time from the maximum of 15 years and impose an eight-year sentence upon you.

The --

Justice Abe Fortas: So, he got eight years?

Mr. Andrew A. Vanore, Jr.: He did in fact get eight years.

Justice Abe Fortas: Now, if he had been given credit for the time served under the first sentence including plus gain time, he would've had only as I said before, you had only another -- what was it, year and five months served?

Mr. Andrew A. Vanore, Jr.: That is correct, assuming that the second trial judge would be prohibited from increasing his sentence upon the second trial.

Justice Abe Fortas: Well, he would be, wouldn't he?

No, no, no, --

Mr. Andrew A. Vanore, Jr.: Oh, I think --

Justice Abe Fortas: -- I don't mean that.

I don't mean he wouldn't be.

No, I don't mean that he would be but I mean to say it already passed a sentence and the sentence was eight years, is that right?

Mr. Andrew A. Vanore, Jr.: That is correct.

Justice Abe Fortas: Not 15 years but eight years?

Mr. Andrew A. Vanore, Jr.: That is correct.

Justice Abe Fortas: Now, does the North Carolina law rule that you've just recited with respect to giving him credit the time served plus gain time applied to that eight-year sentence?

Mr. Andrew A. Vanore, Jr.: It applies to the eight-year sentence, yes but I -- perhaps I'm not making myself clear Justice Fortas.

Justice Abe Fortas: Well, I've struggled with this on the basis of the briefs and I'm still bewildered because if I -- just looking at this thing literally this follows to you to be sprung about now.

Mr. Andrew A. Vanore, Jr.: Well, --

Justice Abe Fortas: Isn't that right?

Mr. Andrew A. Vanore, Jr.: I don't think there's any question about it.

Because of the eight-year sentence, he is going to have to serve some additional time other than he would've been required to serve under the first sentence.

But the reasoning of the trial judge is that he could have in fact imposed a 15-year sentence and if you give him all credit for time served under the 15-year sentence which he is required to do by a decision of the Supreme Court --

Justice Abe Fortas: Yes.

Mr. Andrew A. Vanore, Jr.: -- then he still in fact has left to serve seven years.

Justice Abe Fortas: I know but my problem here is this in truth and in fact a case -- does this case really present a situation in which the second sentence was greater than the first sentence.

Mr. Andrew A. Vanore, Jr.: It does if you compute the time that he would have to serve in -- on the end of terminate sentence, the 12 to 15 years if you compute it from the lesser of the two sentences imposed from the 12-year sentence.

Justice Abe Fortas: 12-year sentence?

Now, when would he be entitled to get out --

Mr. Andrew A. Vanore, Jr.: He would be entitled --

Justice Abe Fortas: -- including maximum gain time which is fuller -- seems steadily govern?

Mr. Andrew A. Vanore, Jr.: He would've been entitled to get out after having served eight years, five months and 22 days of actual time on the first sentence.

Justice Abe Fortas: Alright.

Now, that's --

Mr. Andrew A. Vanore, Jr.: Now there's a statute --

Justice Abe Fortas: -- bound to be less, that's bound to be less on the time he's got to serve under his second sentence?

Mr. Andrew A. Vanore, Jr.: That is correct.

If we were to assume that he would be given credit under both of these sentences, the defendant would have to serve an additional sentence of one year, 10 months and 10 days because of the new trial.

Justice Abe Fortas: Not because of -- well, you -- I -- this is much to elaborate.

I computed this yesterday on the basis of the briefs and I have very serious question in my mind as to whether we are in truth and in fact here faced with a situation in which the man would serve longer under the second sentence than to the second conviction and under the first conviction and --

Mr. Andrew A. Vanore, Jr.: Well, of course the District Court thought so and the --

Justice Abe Fortas: District Court thought so

Mr. Andrew A. Vanore, Jr.: -- Fourth Circuit of Appeals thought so.

Justice Abe Fortas: -- but apparently the District Court had an idea that what had happen here was a 15-year sentence but it wasn't, it was an eight-year sentence on the second conviction.

Mr. Andrew A. Vanore, Jr.: The District Court who saw the opinion based on the Fourth Circuit Court's opinion in Patton that the flat and gain time served under the original sentence would have to be deducted from the minimum of an indeterminate sentence and since it was not deducted from the 12 years but rather from the 15 years that was the infirmity that the District Court found in this particular sentence.

Justice Thurgood Marshall: Mr. Vanore, is this man been out on bail at all?

Mr. Andrew A. Vanore, Jr.: Yes, he is out on bail now, Your Honor.

Justice Thurgood Marshall: When did he get out on bail?

Mr. Andrew A. Vanore, Jr.: Approximately, six months ago.

Justice Thurgood Marshall: Well, then except for that six months, he's been out on bail but for this new trial he'd be out for good.

Mr. Andrew A. Vanore, Jr.: No, I believe that he would still have to serve approximately a year-and-a-half of the second sentence.

Justice Thurgood Marshall: He had seven-years from today?

Mr. Andrew A. Vanore, Jr.: Well, not computing the time that he's been out on bail, yes.

Justice Thurgood Marshall: Yeah.

So, he would just about be out now?

Mr. Andrew A. Vanore, Jr.: That's correct.

Justice Thurgood Marshall: And solely because he made a mistake of going to the Court and solely because the mistake the Court gave in giving him a new trial, he's got to serve more time, isn't that it?

Mr. Andrew A. Vanore, Jr.: Well, no.

I don't quite agree with you Justice Marshall.

I think that here, we have two points that we must consider.

Justice Thurgood Marshall: What I mean -- speaking for the man, I imagine a very great difficulty in seeing anything other than fact he's got to serve more time solely because he was given a new trial.

Mr. Andrew A. Vanore, Jr.: Well, I'm sure he feels that way, yes.

Justice Thurgood Marshall: Doesn't he have a little reason to feel that way?

Mr. Andrew A. Vanore, Jr.: I do not think so based on the principle of law that I think the case brings up before this Court whether or not the Patton rule which prohibits an increase sentence or which prohibits the state from giving the man a sentence over and above the sentence that was given at the first trial.

I think that the -- that question is a very basis of our system of jurisprudence and that it assumes that the trial judge, the second trial judge is going to punish this man for exercising a constitutional right of appeal.

Chief Justice Earl Warren: Mr. Vanore, let me ask you this question.

Let me take you to a situation.

Now, suppose the judge of this case, in the second trial, have said that I'll give you the same sentence you were given in the first trial, subject of course to the law of the state that you're entitled to credit for the time you would serve plus the -- with the sentence you receive.

That's one situation.

Judge would assume, what we currently have here when the judge said that, I (Inaudible) figure out myself but the credit you were entitled to under your first sentence and what the time he served and I have no authority to give you a sentence of eight years this time.

Now, I wonder which of those two situations that the man have to serve for his sentence.

Mr. Andrew A. Vanore, Jr.: He would have to serve the same amount of time under both situations.

Perhaps I misunderstood your question then.

Oh, he would have to serve more time under the second situation, I beg your pardon.

Excuse me, yes.

Chief Justice Earl Warren: Well, just the question about the (Inaudible) --

Mr. Andrew A. Vanore, Jr.: So long as it comes within the statutory maximum allowed for by the statute, yes.

I think that is the question whether or not a judge can give more time on the second trial.

Chief Justice Earl Warren: Well, that's what I want (Voice Overlap)?

Mr. Andrew A. Vanore, Jr.: Yes.

Chief Justice Earl Warren: Now, do you have the (Inaudible)?

Justice Byron R. White: Does North Carolina effectuate the statute which requires credit?

Mr. Andrew A. Vanore, Jr.: By -- the judge takes in -- the second sentencing judge takes into consideration --

Justice Byron R. White: He doesn't -- he just doesn't say, I'm going to give you 15 years without regard to the credit then leave it up to the prison authorities to say --

Mr. Andrew A. Vanore, Jr.: It's done both ways, he can --

Justice Byron R. White: Is it done both ways?

Mr. Andrew A. Vanore, Jr.: Yes, he can say that --

Justice Byron R. White: I want to give you 15 years and the prison authorities will credit you in the time, all that he served.

Mr. Andrew A. Vanore, Jr.: Will credit you for time served, yes or he can compute it himself as he --

Justice Byron R. White: And here, he did it the other way?

Mr. Andrew A. Vanore, Jr.: Yes.

Justice Byron R. White: And is it clear that he did it the other way?

Mr. Andrew A. Vanore, Jr.: I -- it's clear to me.

Justice Byron R. White: So the prison authorities would not give him credit for any more time on his eight-year sentence?

Mr. Andrew A. Vanore, Jr.: No, they gave him credit --

Justice Byron R. White: Do you think the judge has already given him all the credit he deserves?

Mr. Andrew A. Vanore, Jr.: Yes, yes.

He gave him -- he specifically stated in giving him --

Justice Byron R. White: So he will be in no position to claim any more credit from the prison authorities on account of the sentence that he'd already served?

Mr. Andrew A. Vanore, Jr.: That is correct because at the time the second sentencing judge imposed sentence he had before him --

Justice Byron R. White: At least that seems to be the basis on which this case comes here?

Mr. Andrew A. Vanore, Jr.: Yes.

He had before him the prison records which showed exactly how much gain and flat time this defendant had served on the first sentence.

Justice Byron R. White: Because if he were still entitled to credit on the eight-year sentence for all the time that he had served before, there wouldn't be much left, would there?

Mr. Andrew A. Vanore, Jr.: No, that's true.

If we compute it from the maximum that would be allowable under the statute, he still has approximately almost six years to serve under -- even by way of the Patton Court's reasoning, he would have an additional time to serve.

Mr. Andrew A. Vanore, Jr.: And I believe that Judge Butler points that out in his order ordering the state to resentence him or to release him and of course the state when it came on for hearing before the state judge, the judge refused to order this man resentence and Judge Butler thereupon entered an order requiring his immediate release and that is why we appealed to the Fourth Circuit Court of Appeals which in a memorandum decision based upon Patton versus North Carolina affirmed the District Court's holding.

Justice Potter Stewart: Mr. Vanore, this second trial was held before the same judge as who would -- as had presided the first trial or not?

Mr. Andrew A. Vanore, Jr.: I don't believe so, no.

Justice Potter Stewart: And didn't make any difference?

Mr. Andrew A. Vanore, Jr.: Well, I think that the argument might be greater if it were held before the same trial judge as was done in the Sanders case from California that the second trial judge might have more reason perhaps if we want to assume that the trial judge is going to be vindictive, that the second judge might have more reason for imposing a harsher sentence.

Justice Potter Stewart: And in both cases, both the first trial and the second trial in this case is what I mean, the sentence was imposed by the judge not by the jury?

Mr. Andrew A. Vanore, Jr.: It is imposed by the judge in North Carolina by statute.

Justice Potter Stewart: And he is -- the jury's function is only to find guilt or innocence?

Mr. Andrew A. Vanore, Jr.: That's correct.

Justice Potter Stewart: And the jury nor your state has no function with respect to fixing the severity of the sentence, is that right?

Mr. Andrew A. Vanore, Jr.: Except in a capital case, the jury can return a verdict of guilty without leniency and thereupon the defendant is sentenced to death.

However, they can impose leniency and the statute provides automatically for a life imprisonment.

Justice Potter Stewart: But in this kind of a case, in this case (Voice Overlap) --

Mr. Andrew A. Vanore, Jr.: Yes, this kind of a case, the judge has the complete unfettered discretion to impose any sentence which he deems necessary under the facts.

The only prohibition that is put upon the second sentencing judge is that the time served under the first sentence which was voided --

Justice Potter Stewart: Has to be credited?

Mr. Andrew A. Vanore, Jr.: Has to be credited and the time served under the first sentence and the time imposed under the second sentence --

Justice Potter Stewart: Cannot exceed the maximum, alright.

Mr. Andrew A. Vanore, Jr.: -- cannot exceed that maximum allowed by the statute.

Justice Potter Stewart: The statutory maximum.

Now, you have already alluded to your position which perhaps you'll amplify a little further because it's emphasized in your brief that it's improper to assume that a judge or a -- whether it be the same judge or another judge in the same court after a second trial would be vindictive and would be motivated to penalize the person for having appealed his first conviction.

I understand that position.

What would you say if there were proof that the second sentencing judge had been in fact vindictive?

What if he had been frank enough to say, well you appealed your first conviction and we don't -- I don't think that was proper -- you what -- put the state to a great deal of expense and trouble and now the juries found you guilty all over again.

And since you did appeal your first conviction I'm hereby going to sentence you to twice as long of sentence within the statutory maximum.

Mr. Andrew A. Vanore, Jr.: That would be a flagrant violation of the man's constitutional right to appeal --

Justice Potter Stewart: Of what constitutional right?

Mr. Andrew A. Vanore, Jr.: The constitutional right to appeal without any fear of reprisal.

And our Supreme Court so held in a case called State versus Patton --

Justice Potter Stewart: And --

Mr. Andrew A. Vanore, Jr.: -- where the sentencing judge -- yes, first imposed the fine on the individual.

And then the individual gave notice of appeal and the sentencing judge thereupon struck his first sentence of a fine and imposed active time.

Our Supreme Court said that this was a flagrant violation of the man's constitutional right to appeal without fear of any reprisal.

Justice Potter Stewart: Well, now how often do you think that the -- that you could educe evidence that the motivation of the second sentencing judge was a vindictive motivation of that type?

Mr. Andrew A. Vanore, Jr.: I think it would be extremely difficult to educe that type of evidence but I think --

Justice Potter Stewart: Normally a judge would simply --

Mr. Andrew A. Vanore, Jr.: I think that we have -- yes.

I think that we have to presume though since -- as I see it, our whole system is based upon the good faith of judges.

We have to assume that the sentencing judge is not going to be vindictive and if he were vindictive, he could easily circumvent the rule that was applied in Patton by imposing the maximum sentence the first time around and then there would never be any question about it.

Justice Hugo L. Black: Did your court hold that that sentence would be void unconstitutional under the state constitution or under the federal?

Mr. Andrew A. Vanore, Jr.: Under the state and federal constitution.

Justice Potter Stewart: That's the Patton case?

Mr. Andrew A. Vanore, Jr.: Yes.

Justice Potter Stewart: Yes.

Mr. Andrew A. Vanore, Jr.: That is -- that is not Eddie Patton that was decided by the Fourth Circuit.

Justice Potter Stewart: A different Patton case.

Mr. Andrew A. Vanore, Jr.: It is a different Patton case.

Justice Potter Stewart: Right.

Justice Hugo L. Black: Oh, it is (Inaudible) void under the state law then we would reach the verdict.

Mr. Andrew A. Vanore, Jr.: Well, of course our Supreme Court has already upheld in a similar situation as is now before the court as a matter of fact in the Pearce case itself that the second sentencing judge properly within his discretion imposed the eight-year sentence.

They found no violation of the man's constitutional right.

Justice Potter Stewart: Is there any indication at all in this record as to why the second sentencing judge imposed a greater sentence?

Mr. Andrew A. Vanore, Jr.: I think the only indication is that the second sentencing judge intended to impose the maximum, the 15 years.

Justice Potter Stewart: Yes, but we know what he did and he what intended to do and what in effect it is.

Mr. Andrew A. Vanore, Jr.: There is --

Justice Potter Stewart: My question was, was there any indication as to why?

Mr. Andrew A. Vanore, Jr.: No, there is not.

Justice Potter Stewart: Would you think that in the absence of any indication that this presumption of judicial good will and good faith that can prevail and there's no indication at all of any reason whatsoever to impose a harsher sentence after the second trial?

Mr. Andrew A. Vanore, Jr.: I think it should, I think the burden should be upon the defendant to show.

Justice Potter Stewart: How could he possibly show?

Mr. Andrew A. Vanore, Jr.: Well, it depends upon the disparity between the two sentences that were imposed.

Here, we're talking about a very short period of time.

If the defendant --

Justice Potter Stewart: But you concede that a greater punishment was imposed by the -- after the second trial, that's not an issue here.

You concede that that --

Mr. Andrew A. Vanore, Jr.: That is correct, yes.

Justice Potter Stewart: That's true, isn't it?

Mr. Andrew A. Vanore, Jr.: Yes, that is true.

My argument would be that rather than adopt the flat prohibition set forth in Patton if the Court were not -- of the opinion that the burden is on the defendant to show abuse that the position should be if any additional evidence is shown at the second trial then the trial judge should have complete discretion in imposing a harsher sentence upon the defendant than was imposed at the first trial.

Justice Thurgood Marshall: Mr. Vanore, did I -- isn't that true that in North Carolina once a sentence is given, this final judgment, the judge can never increase that, can he?

Mr. Andrew A. Vanore, Jr.: That is correct.

Justice Thurgood Marshall: But if there is an appeal that comes back to him, he can increase it, is that correct?

Mr. Andrew A. Vanore, Jr.: If a new trial is awarded that is correct.

Justice Thurgood Marshall: Well, what happens to all of this judicial faith and the judging of?

He couldn't do it, wouldn't he be obliged to show why on the second go around he gave more?

Mr. Andrew A. Vanore, Jr.: Well, I --

Justice Thurgood Marshall: Because he can't give --

Mr. Andrew A. Vanore, Jr.: Of course our argument is --

Justice Thurgood Marshall: -- that's the only way he can give more.

That's the only way he can give more time.

Mr. Andrew A. Vanore, Jr.: We must assume that the trial judge had some good reason in imposing a harsher sentence.

Justice Thurgood Marshall: Well, wouldn't it be better if he'd give his reasons?

Mr. Andrew A. Vanore, Jr.: I think definitely he should give his reasons, yes.

Justice Thurgood Marshall: Well, then -- but I thought you said that the defendant should be given the burden of showing it --

Mr. Andrew A. Vanore, Jr.: Well, I --

Justice Thurgood Marshall: -- he doesn't want this burden, does he?

You agree with me that the judge has got a little burden?

Mr. Andrew A. Vanore, Jr.: The Supreme Court of North Carolina in a very recent decision, State versus Stafford which is cited in the State's brief stated that the burden should be upon the defendant to show abuse.

However, it would be more orderly if they -- if there was evidence or if the judge stated his reasons into the record as to why an increased sentence was given.

The main contention that we have here is that the flat prohibition laid down in the Patton case than you can never no matter what the evidence is at the second trial.

You can never exceed the sentence imposed at the first trial.

We think that that is a flagrant violation of the discretion of the trial judge to impose a proper sentence and the discretion of the state legislature to fix a punishment for a particular crime.

Justice Thurgood Marshall: Well, what I'm saying is, if a man committed a crime and he's sentenced to five to 15 years and after that time the judge finds out from reputable sources that this is about his horrible character has ever came down the line, one.

Two, if I had that information whether it was before me I would've given him 15 years.

There's nothing he can do about it unless there's a new trial.

Mr. Andrew A. Vanore, Jr.: That is correct.

Justice Thurgood Marshall: And if there's a new trial then he gets 15 years?

Mr. Andrew A. Vanore, Jr.: Of course, the defendant is the one that has to request the new trial, the state can't go in on its own initiative and --

Justice Thurgood Marshall: Well, then the only way this man can get (Inaudible).

Mr. Andrew A. Vanore, Jr.: That is correct.

I'll pay him to appeal or try to get a new trial under the Post-Conviction Hearing Act.

Justice Hugo L. Black: Well, it takes more time, depends on the matter.

Mr. Andrew A. Vanore, Jr.: Well, I believe that I have tried to make my position clear in this particular case that the second sentencing judge deducted that gain and flat time from the maximum that he could've imposed under the offense, 15 years and not under the minimum and that was the violation which the District Court and the Fourth Circuit Court found in this particular case.

Justice Hugo L. Black: Does the record show (Inaudible) --

Mr. Andrew A. Vanore, Jr.: It would seem that the record does show that Justice Black.

As a matter of fact in the second appeal to the Supreme Court of North Carolina, the Supreme Court so stated that in their fact -- situation that the evidence was essentially the same.

Of course, there --

Justice Hugo L. Black: Does the record show that it was the same judge?

Mr. Andrew A. Vanore, Jr.: I believe it was a different judge, I think the record would show that.

Unknown Speaker: Yes.

Justice Hugo L. Black: (Inaudible)

Mr. Andrew A. Vanore, Jr.: No, I mean -- as I recall I am fairly sure that the judge --

Unknown Speaker: (Inaudible)

Mr. Andrew A. Vanore, Jr.: If this Court has any further questions?

Chief Justice Earl Warren: Mr. Sitton.

Argument of Larry B. Sitton

Mr. Larry B. Sitton: Mr. Chief Justice, may it please the Court.

My name is Larry Sitton.

I'm from Greensboro, North Carolina.

And I represent the respondent in this case, Clifton A. Pearce.

At the outset, I might say that -- I think Mr. Vanore has made it clear that in this particular case at the second trial the judge gave Mr. Pearce credit for the time he had served under this first sentence and deducted that amount to fix the eight-year sentence and that this credit would not have been made on the second year sentence.

He still had eight years to serve and in my brief that's the reason I said it out as I did.

In North Carolina the computation of good conduct time, governor's time and gain time becomes very complex but if you measure the person's sentence as if he served it straight through.

In other words, his minimum sentence on his first conviction was 12 years and this was in 1961.

If he had served it straight through, he would've been released in 1973.

The second sentence was for eight years and this was in 1966.

He served it straight through he would've been release in 1974 and that's the basis of our argument that it was harsher.

Justice Potter Stewart: Well, you're --

Justice Abe Fortas: I beg your pardon.

Justice Potter Stewart: Excuse me, I didn't -- there's no issue between you and your Brother at the bar that the second sentence was harsher.

We're a little bit confused here on the bench because as I understand it, you don't disagree about that at all.

He got a more severe sentence the second time.

Justice Abe Fortas: Well, if I may, the appendix on page 3 sets forth the district judge -- the District Court's statement when it sentenced the man and regardless -- I think it could've been stated perhaps a bit more precisely but it appears from that what he really did was to sentence the man to time served plus gain time plus eight years --

Unknown Speaker: Oh, it'd be (Inaudible)

Justice Abe Fortas: -- is that right? Is that right?

Mr. Larry B. Sitton: That's correct Your Honor.

If you'd stated it that way, I don't think there'd be ay question.

Justice Abe Fortas: But that's what it amounted to as you see it and as your adversary sees it, is that right?

Mr. Larry B. Sitton: That's correct.

Unknown Speaker: Oh, you turn it around (Inaudible).

Justice Abe Fortas: Yes, the difficulty.

That's right but the difficulty is he didn't say that but --

Mr. Larry B. Sitton: That's right.

Unknown Speaker: That's the --

Justice Abe Fortas: -- in effect that's why the two of you construe.

Mr. Larry B. Sitton: That's the way we have both interpret it.

Unknown Speaker: Well, (Inaudible)

Mr. Larry B. Sitton: There's also the factor that it's harsher in terms of parole.

In North Carolina, they construe the decision as meaning now, unless the judge gives -- makes an actual reference to credit for parole purposes the person has to serve the minimum period again.

So that at the time Pearce was tried again, he was eligible for parole.

After a second sentence he was not eligible for another two years.

Chief Justice Earl Warren: Let's assume this is (Inaudible).

If he had said, I asked the counsel, he had just said, I wont give you the same sentence you got last time.

15 years less the time you got served plus the time you have earned.

Then he would've been alright, wouldn't it?

Mr. Larry B. Sitton: No, sir, Your Honor, because his first sentence was 12 to 15 years.

He would've had to do that on a 12-year basis.

Chief Justice Earl Warren: Well, 15 years, you'd give him the same sentence that you gave him the last time.

Mr. Larry B. Sitton: That's right.

There would be no problem except for parole purposes.

Chief Justice Earl Warren: Plus he gets the same the way he did.

This man must serve more time.

Mr. Larry B. Sitton: But he makes -- but he cast his in terms of a straight 15 years sentence.

Chief Justice Earl Warren: (Inaudible) what he did to, other than that to serve more time than he would have served -- just the 15-year term which he did.

Mr. Larry B. Sitton: That's correct.

Chief Justice Earl Warren: So all we're talking about is whether the judge can give a greater sentence on the second one than the first one.

Mr. Larry B. Sitton: That's correct.

Chief Justice Earl Warren: And you both agree that under this sentence that he did get in the second proceeding he must serve more time than he would in the first.

Mr. Larry B. Sitton: That's right, that it is real --

Chief Justice Earl Warren: (Inaudible)

Mr. Larry B. Sitton: That's right.

In this -- and in this case, the decision of the District Court was affirmed by the Fourth Circuit Court of Appeals on the basis of Patton versus North Carolina.

And that case, thoroughly explored the constitutional issues involved and whether you can have an increased sentence and said that an increased sentence on retrial violated three portions of the Constitution, the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Double Jeopardy Clause of the Fifth Amendment.

Now, in due process, the state should not be allowed or require the defendant to waive a benefit conferred by the state in order to assert his constitutional rights.

Now, the benefit is immunity from an increased sentence as already been pointed out after the term of Court has expired and the sentence has began to be served, it cannot be increased in North Carolina.

Yet, the only way that this is possible is for a person to assert his right to a fair trial through some method of post-conviction review.

And if he does this, if he asserts his right to a fair trial saying that there is a constitutional defect in this first trial then he runs the risk of getting an increased sentence.

If he had not sought a fair trial, he would've been assured that the time he had served would be credited and that he would become eligible for parole in due course.

But he didn't do this in this case.

He said that there was a constitutional defect in his first trial and this was borne out by the State Supreme Court.

Justice Thurgood Marshall: The states as I could be rectified by giving him the maximum every time.

Mr. Larry B. Sitton: That would be one way to get around this problem Your Honor, that's true.

Justice Thurgood Marshall: That's what I understood it to say it should.

He wasn't recommending it but he said that would be a way you do --

Mr. Larry B. Sitton: I think so and in North Carolina because they do have this credit rule, it would be a way to get around it but this again is -- this goes into the function of the sentencing judge.

Justice Potter Stewart: What if instead of the judge having discretion as to the sentence to be imposed within statutory limits?

What if these were a matter for the jury to determine as is in fact true in many states as you know, would the jury under your submission on the second trial have to be told that while ordinarily the statute gives the juries in our state power to impose a sentence for this type of offense anywhere from -- upon conviction of this type of offense anywhere from probation up to 20 years in the penitentiary anything in between while normally that's the power given to a jury?

Yet in this case this man has been tried before and he was sentenced by a previous jury to 12 years.

And therefore, you cannot in this case, if you convict this man, sentence him to more than 12 years.

That would be the result I suppose of --

Mr. Larry B. Sitton: Yes, sir, I think it would.

Justice Potter Stewart: -- your submission.

Now, wouldn't that pretty well prejudice this hypothetical defendant before a jury to be -- to have the jury told that he has been convicted before and sentenced to 12 years in penitentiary for the same offense?

Mr. Larry B. Sitton: Well, I think that the -- if there was a problem of prejudice in bringing out the first conviction I think that rule could be in such a situation that the jury would be allowed to set the sentence and then it would be reduced to bring it in line with this rule.

That was the problem.

I think if the jury --

Justice Potter Stewart: The other answer I suppose would be that in the instructions, the judge could say that you're limited to sentencing him upon conviction from probation to 12 years without giving the explanation as to why, I suppose (Voice Overlap) --

Mr. Larry B. Sitton: Whether the jury sentences or the judge sentence.

The risk is still the same for the defendant in asserting his constitutional right.

Justice Potter Stewart: Well, the risk is the same for the defendant for asserting his constitutional right but if he prevails on appeal then the -- at least the conventional theory is that the original trial was wiped out and he goes to trial again and he has a very good opportunity of being acquitted.

Mr. Larry B. Sitton: That's true, Your Honor.

Justice Potter Stewart: And your submission would result in a heads high, win tails, you lose proposition for the state, wouldn't it?

Mr. Larry B. Sitton: Well, if he was reconvicted though, if he was not acquitted, then he would still under -- even under this rule he would still go back to prison or could conceivably go back to prison to serve out what he would've had under this original sentence.

He just -- not walk out because of this rule.

Justice Potter Stewart: What if -- what if on the second trial all sorts of evidence comes in that shows that he'd be -- the crime is much more flagrant than had -- than the evidence that shown in the original trial or what if the pre-sentence investigation in the second trial shows an entirely different kind of character than the defendant had been assumed to have had on the first trial and a much, much worst on the second trial.

Mr. Larry B. Sitton: I don't think the rule should be any different, Your Honor.

The simple reason that that if it's possible under any circumstance to increase the sentence because of additional evidence or because of information in the pre-sentence report, then the danger still remains that the person will be penalized for asserting his constitutional right.

Justice Hugo L. Black: (Inaudible)

Mr. Larry B. Sitton: It's a penalty though if he has to serve an increased sentence.

Justice Hugo L. Black: (Inaudible)

Mr. Larry B. Sitton: But if you have a different rule, Your Honor, then you restrict his right of appeal.

Justice Hugo L. Black: (Inaudible)

Mr. Larry B. Sitton: But we -- but we submit Your Honor that it shouldn't be that way.

Justice Hugo L. Black: Well, maybe (Inaudible)

Mr. Larry B. Sitton: Yes, I think you should because I think this is a violation of the person's due process, his right to due process.

Justice Hugo L. Black: And under the (Inaudible)

Mr. Larry B. Sitton: I think so Your Honor.

Justice Hugo L. Black: (Inaudible)

Mr. Larry B. Sitton: And that if a state has established a right to appeal or a method of post-conviction review then it -- once they've established it, it should not be restricted.

It should be open to everyone.

Justice Hugo L. Black: (Inaudible)

Mr. Larry B. Sitton: That's correct, Your Honor.

On the equal protection argument, you come back to the same point again that the person's sentence can't be increased after he began serving.

So that the only class of persons exposed to the risk of increased sentence are those who exercise their right of appeal.

We submit that this is an arbitrary classification.

There's no reason to believe that only the class of persons who have won a new trial should receive any harsher sentence.

Justice Potter Stewart: Mr. Sitton, how far does your argument go and perhaps I shouldn't ask you this, you're from North Carolina, you're representing the North Carolina petitioner.

And the rule is in North Carolina as a matter of state law that a person sentenced after a second conviction has to be given credit for the time served on his first conviction as a matter of state law and that the total of that prior time plus the new sentence could not exceed the statutory maximum as I understand it but now there are states where there is no such rule of state law.

Would your argument be that like this case the man is convicted by a jury and sentenced by the judge to five years in the penitentiary.

He serves two years of it then he gets his conviction set aside and he goes back for a new trial, he's convicted again by the jury.

Now, how much time of the penitentiary can the judge sentence him, to five years?

Mr. Larry B. Sitton: No sir and under (Inaudible) --

Justice Potter Stewart: Why not?

That'd be the same sentence he got the first time --

Mr. Larry B. Sitton: Yeah, he's already spent two years of his life in prison.

Justice Potter Stewart: -- it wouldn't be greater.

So you say the constitutional -- that you say the state rule of North Carolina is also a constitutional, is also a rule required by the Federal Constitution, do you?

Mr. Larry B. Sitton: Yes sir, Your Honor.

Justice Potter Stewart: North -- did -- North Carolina didn't say that, did it?

Mr. Larry B. Sitton: No sir.

Justice Potter Stewart: In creating this rule.

Mr. Larry B. Sitton: The rule of credit.

Justice Potter Stewart: The rule of credit.

Mr. Larry B. Sitton: No, this is -- this rule is of recent origin and I don't think they -- I think they did not make it on the basis of the Federal Constitution.

Justice Potter Stewart: You said this is what we're going to require North Carolina?

Mr. Larry B. Sitton: This is fair.

Justice Potter Stewart: This is fair in North Carolina.

This is what we're going to require but what -- my question I think you understand it is, what if a state doesn't have that rule, if a man is sentenced to five years in the penitentiary though in the first conviction he gets a reversal after serving two years time.

He's tried again convicted by a jury; the judge sentences him to five years in the penitentiary.

You say that's not permissible either, is that right?

Mr. Larry B. Sitton: That's right, Your Honor.

I think even if the state didn't have the rule as North Carolina does that it would still be unconstitutional and impermissible.

Justice John M. Harlan: What would you say about giving the first trial to get a fair distinction (Inaudible)?

Mr. Larry B. Sitton: This case, I don't think I would go that far.

It's not in this case, of course, Your Honor.

But I don't think the restraint placed on a person while he is on bail is the restraint that is placed on him while he is on custody.

And I don't think the rule would go that far.

Justice Hugo L. Black: Well, suppose he's not out on bail, he is in jail, he waits two years to be tried, does the Constitution require to get a fair trial?

Mr. Larry B. Sitton: I think by natural extension, it could, Your Honor.

Justice William O. Douglas: In answer to Justice Black, you said this was a one of the requirements of a fair trial.

I thought this was a double jeopardy case, isn't it?

Mr. Larry B. Sitton: We do raise that issue too, Your Honor, that it violates double jeopardy because it is in effect a multiple punishment.

Justice William O. Douglas: Have we ever held that the Double Jeopardy Clause of the Fifth Amendment is applicable to the states by reason of the Fourteenth?

Mr. Larry B. Sitton: No sir, you have not.

And I state in my brief that the way I understand it you have this issue before you in a case, Benton versus Maryland.

And I think it's -- it has been argued once and is set for re-argument squarely presented in that case.

But in this -- in Patton, when faced with this rule, the Fourth Circuit relied on the (Inaudible) case and stated that it was applicable to the states.

Justice Potter Stewart: What case -- I was -- my question to you Mr. Sitton is going to be that even assuming -- even assuming, let's assume that the Double Jeopardy Clause of the Bill of Rights is fully applicable to the states, is there any federal case, is there any federal that says that the sentencing of a person on a second trial after he's won a new trial to a greater sentence violates the Double Jeopardy Clause?

Mr. Larry B. Sitton: No sir, there is not.

Justice Potter Stewart: I think there was.

Justice Byron R. White: There's a case that say it isn't though.

Mr. Larry B. Sitton: That's right, Your Honor.

Justice Byron R. White: In this trial?

Mr. Larry B. Sitton: Well, I think --

Justice Byron R. White: In this Court?

Mr. Larry B. Sitton: I think -- I think that those cases if we make reference to Stroud and the Murphy versus Massachusetts that was the factual reality that there was an increased sentence in both cases but I don't think that the Court face that issue.

I think in both of those cases that the argument was made -- that the second trial itself was barred --

Justice William O. Douglas: But we have held --

Mr. Larry B. Sitton: --by the Double Jeopardy Clause.

Justice William O. Douglas: We have held that if the man on the first trial against life and on the second trial after an appeal gets death, that's double jeopardy.

Mr. Larry B. Sitton: I think that was the --

Justice William O. Douglas: It was a federal case.

Mr. Larry B. Sitton: -- the fact in Stroud and in Stroud that was (Voice Overlap).

Justice William O. Douglas: That was a Green case, wasn't it?

Mr. Larry B. Sitton: I think in Green, he was convicted of first degree -- he was acquitted a first degree murder, convicted of second degree murder and then a subsequent trial was convicted of first degree murder and this Court said that the conviction of second degree murder at the first trial was an implied acquittal of first degree murder and that's the basis we say that --

Justice William O. Douglas: I thought that -- those are the semantics the judges sometime use but --

Mr. Larry B. Sitton: I think it was observed that there can be no distinction between the Stroud case and the Green case, that there is no difference --

Justice William J. Brennan: Stroud, you say only turn really on the old law that, perhaps still law, that a second trial after a successful appeal is not in and out of itself a violation of double jeopardy?

Mr. Larry B. Sitton: That's right, Your Honor.

I think that was a sole issue that was brought forward.

The constitutional arguments that were made in this case were not made in Stroud.

They were made in Green to some extent and in Green it was held that person was impliedly acquitted.

Justice William J. Brennan: Well, if your argument had been made in Stroud, do you suppose that Stroud would have been more -- anymore successful than in Green?

Mr. Larry B. Sitton: Maybe not at that time, I hope he would --

Justice William J. Brennan: That -- at that time, clearly double jeopardy -- there's no suggestion of double jeopardy by the state, wasn't it?

Mr. Larry B. Sitton: That's correct.

Justice William J. Brennan: Wasn't that Kansas?

Mr. Larry B. Sitton: Stroud?

Unknown Speaker: Well, I think it's a -- there was a federal (Inaudible)

Mr. Larry B. Sitton: If the court have any further questions?

Thank you.