NORTH CAROLINA v. ALFORD
Legal provision: Due Process
Argument of Jacob L. Safron
Chief Justice Warren E. Burger: Number 15, North Carolina against Alford.
Mr. Safron, you may proceed whenever you’re ready.
Mr. Jacob L. Safron: Mr. Chief Justice, may it please the Court.
This matter is before this Court upon direct appeal on the United States Court of Appeals for the Fourth Circuit on the opinion of that court from the divided opinion.
Chief Justice Haynesworth dissenting holding that statutory scheme for the imposition of capital punishment in North Carolina in light of the opinion of this Court in United States v. Jackson is unconstitutional.
Therefore, the issue before this Court today is the import and impact of the Jackson opinion upon the laws of the State of North Carolina, the laws of our sister states and of the federal judiciary.
On the evening of November 22, 1963, Nathaniel Young, a Negro gentleman who operated a house that could best be described as a party house in the City of Winston-Salem, North Carolina opened -- responded to a knock at the door, opened the door slightly and was cut down by a shotgun blast.
Earlier that evening, petitioner or actually the appellee in this case Henry C. Alford, had come to that house.
Henry Alford also is Negro.
He had been accompanied by a white girl.
They purchased several drinks of liquor by the drink which under North Carolina Prohibition Board -- Prohibition Laws is not legal.
And then Henry Alford gave Nathaniel Young his last dollar to rent a room in that house.
Alford was accompanied by his girlfriend into that room and after several minutes, they left because Henry Alford no longer had any money.
He demanded that this young lady leave with him.
Daniel Young, the proprietor of this house said, “She could stay here if she wishes.”
An argument ensued and Henry Alford run off with the lady’s coat being chased by Nathaniel Young and someone else.
Approximately, 15 to 20 minutes later, there was a knock at the door and Nathaniel Young was cut down by a shotgun blast.
Alford was indicted by the grand jury of the White County Superior court for murder in the first degree.
Counsel was appointed. Counsel thoroughly investigated the case.
Counsel contacted every witness named to him by Henry Alford except one by name of Jack who cannot be found.
In each case, the testimony of Alford’s purported witnesses was contrary to Alford’s allegations as to their testimony.
Upon the call of the case, Alford through counsel entered a plea of guilty to murder in the second degree which under North Carolina Law carries a maximum punishment of 30 years imprisonment.
He did not plead guilty to the capital offense which under the law been in state would have carried a life sentence.
He pled guilty to second-degree murder.
The State then placed on the stand.
The detective E. I. Weatherman --
Unknown Speaker: Let me get that right statement.
Do you say the first-degree murder carried on a life sentence?
Mr. Jacob L. Safron: Upon a plea of guilty.
Unknown Speaker: Oh, upon a plea of guilty.
Mr. Jacob L. Safron: Upon a plan of guilty.
It would carry a penalty of life.
Unknown Speaker: Right.
Mr. Jacob L. Safron: But Alford pled guilty to murder in the second degree which carries at a maximum, a sentence of 30 years.
The State placed on the stand after the tender of the plea, Officer Weatherman, now if the Court please, I’m not sure whether or not you -- this Court has a copy of the actual trial transcript in that case.
I have a copy here which I’d like to file with the Court if the trial transcript is not included.
Unfortunate -- the appendix does not include the entire trial transcript.
It does not include the testimony of the officer and other witnesses.
Unknown Speaker: If there is a -- if there was here a guilty plea, I don’t quite see why there was a trial transcript.
Generally, if there’s a guilty plea, there’s no trial.
Mr. Jacob L. Safron: Well, that’s true Your Honor.
However, in order to satisfy the Court of the evidence and also to give the Court an opportunity to judge the nature of the crime for the purpose of sentencing, evidence was presented.
Unknown Speaker: And that’s use for North Carolina proceeding?
Mr. Jacob L. Safron: Yes, Your Honor it is.
Unknown Speaker: After a guilty plea?
Mr. Jacob L. Safron: Yes, the judges presiding at the trials want to know exactly what happened.
Now, prior to the entry of the plea, counsel obtained this affidavit.
The defendant, Henry C. Alford after being --
Chief Justice Warren E. Burger: Now, is this in the record counsel?
Mr. Jacob L. Safron: I’m not sure if this is in the record or not, Your Honor.
I like to submit a copy of this also.
Chief Justice Warren E. Burger: Now, we’re getting a little bit outside the --
Mr. Jacob L. Safron: Well, I’d like to show what happened prior to the entry of the plea Your Honor because --
Chief Justice Warren E. Burger: And in what court was this first filed?
Mr. Jacob L. Safron: This was filed as part of the post-conviction proceedings in the Superior Court of White County.
Chief Justice Warren E. Burger: And that court considered that document?
Mr. Jacob L. Safron: Yes, Your Honor.
Chief Justice Warren E. Burger: And then was it considered by another tribunal after that?
Mr. Jacob L. Safron: Oh, this has gone on and on, Your Honor, I’ll describe the rooting in my argument.
Chief Justice Warren E. Burger: I wanted to be sure we weren’t getting new material or new matter at this state.
Mr. Jacob L. Safron: No, this is part of the original post-conviction proceeding.
That Attorney Fred G. Crumpler who was appointed by the court to represent the defendant has conferred with the defendant on numerous occasions.
In addition to this, this attorney has consulted on numerous occasions with me in the presence of my sister and various friends in preparation for the trial of this case.
This attorney has advised me that I’m charged with a capital crime and if I plead not guilty, the possible verdicts of the jury including the right of the jury to find me not guilty.
He has also advised me that if I’m convicted with first-degree murder, the law provides for mandatory life sentence of imprisonment if the jury recommends mercy, or in mandatory death penalty, if the jury does not recommend mercy.
He has also advised me of my rights of appeal in all events including the final right of appeal for mercy before the Governor of the State of North Carolina.
I hereby authorized Attorney Fred G. Crumpler to tender a plea of guilty to the offense of second-degree murder to the court which decision is in my own freewill, made in the presence of my sister and friends who are also present during the consultation with said attorney.
It is my opinion that this attorney is able, experienced, and competent.
The above affidavit has been both read by me and to me by the undersigned officer of the court and it was read to the defendant and signed in the presence of R.B. Hoskins, Deputy Clerk of the Superior Court of White County.
Unknown Speaker: (Inaudible)
Mr. Jacob L. Safron: Well, if Your Honor pleases, counsel as this Court is well aware is constantly under attacked nowadays.
Part of this, I submit is counsel’s protection of himself and of course, this is also a written authorization to counsel to enter the plea on his client’s behalf.
To show that the plea was authorized, perhaps an expectation of the Boykin decision of this Court.
Justice Thurgood Marshall: Is this before the Court of Appeals?
Mr. Jacob L. Safron: Yes, Your Honor it was.
Justice Thurgood Marshall: And it’s not in the appendix?
Mr. Jacob L. Safron: I don’t believe it.
Justice Potter Stewart: It must be in the original record, isn’t it?
Mr. Jacob L. Safron: It’s in the --
Justice Potter Stewart: Because this was presented was it to the trial -- to the court that accepted the guilty plea?
Mr. Jacob L. Safron: No, Your Honor this was not.
Justice Potter Stewart: Where was the --
Mr. Jacob L. Safron: -- part of the counsel’s private records but then was introduced into evidence at the post-conviction hearing.
Justice Potter Stewart: At the state court’s conviction?
Mr. Jacob L. Safron: Yes, Your Honor that’s right.
Justice Potter Stewart: And that must be here with the original record. Do we have one copy here?
Mr. Jacob L. Safron: I would assume it’s with the original records which have been transmitted to this Court as the record has been built up.
Justice Thurgood Marshall: But you showed it before the District Court and the Court of Appeals?
Mr. Jacob L. Safron: Oh, yes, Your Honor.
Justice Thurgood Marshall: And nobody mentioned it?
Mr. Jacob L. Safron: It’s footnoted in the Court of Appeals.
Justice Thurgood Marshall: Yes, for me its own place its there.
Mr. Jacob L. Safron: I’d like to read to the Court some transcripts -- some excerpts from the original trial transcript to show the Court the taste the state have against this defendant.
We then contacted Ruby McGill where Alford had been living and Ruby, as a consequence of an interview with her, said that she and Henry have been living together for some three years that they were at this address about five months.
So Henry left around dark stating that he’ll be back for a few minutes.
That about two-and-a-half to three hours later, he came back and stated that he was breathing hard, appearing to have been running and stated, “G.D.S.O.B. has been running me, I’m going to kill him.”
She stated that at that time, he said “Nathaniel Young” and that he kept and he repeated that a couple or three times that he was going back and kill the S.O.B. and the other fellow with him also.
She stated that he got a shotgun out of the wardrobe and four shells.
That she and Shirley, it’s another woman who was there at the time, asked him not to.
They told him that there were no use in that and said that he kept repeating that he was going back and went out the door.
We talked to Betty Jeanne Robinson who stated that she was on the porch of the store at 1202, 10 1/2 Street which is little better about half a block from the home, the direction of Nathaniel Young’s home.
And she stated that she and Paul Hill, was standing on the porch and Henry C. Alford came by them with a gun.
In her statement to us, Ruby McGill stated that after he left with a gun that he came back and approximately 30 to 35 minutes and stated that -- said, “Honey, if I don’t kill that Nathaniel, I’m going to leave you with the furniture.”
She said, “You don’t have no business killing any man.”
And he said, “Yes, I killed that G.D.S.O.B.
I’m not going to have anyone to kill me.
I went to the door and when I shot him, he just turned his head around and fell on the floor.”
Officers’ testimony continues, while we was attempting to pickup Alford in regard to this, we went to the home of Sidney Lucky who leaves down a couple of houses across the street and we first went to his house around 11 o’clock and asked him if Henry had been there.
He said, after waking him said that he had come in there and told him if the officers come looking for me, tell them I haven’t been here.
And I talked with Sidney later and he stated, that after we left, he went out and found Alford and asked him why we was looking for him and he told him he shot a man.
And the testimony continues here with another witness that they found, a young lady with whom Alford had drinks later that evening.
And that they went out and he bought her two drinks of whiskey which he paid a dollar and a half for that he asked her for her address and her full name.
He stated that he had shot a man that he’d be gone a long time.
And the testimony goes on and on, and the --
Chief Justice Warren E. Burger: And this too was also presented for the first time of the post-conviction hearing in the state court?
Mr. Jacob L. Safron: This is part of -- this is the original trial transcript, Your Honor.
Chief Justice Warren E. Burger: No, my original trial -- you mean on the plea of -- the guilty plea?
Mr. Jacob L. Safron: On the plea of guilty.
Prior to the acceptance of the plea subsequent to its tender and the officer concluded his testimony, “And the gun in my opinion smelled as if it had been recently fired.”
It was also presented that this original hearing upon the tender of the guilty plea, the testimony of Shirley Wright, who was the young lady’s girlfriend who was in the house at the time.
And she states, “After he came in and got the gun, I left.”
Well, I’ll describe exactly what happened when he came to get the gun.
Well, when he come and got the gun, I had -- went to bathroom and I come out and he had got the gun. You know and he said, “I’m going to kill that blank.”
So he didn’t say who and I didn’t ask him.
I just told him, “No, you know, don’t do it” That’s all he said to me.
So this was what was tendered to the court by the detective at the time of Henry C. Alford’s tender of plea of guilty to second-degree murder.
He then took the stand himself.
And as it appears in the record, the night that he -- he have not shot no man.
But there from the circumstances they say, “I’m guilty.”
He was sentenced to 30 years in prison.
Approximately three months later he filed a petition for writ of certiorari in the North Carolina Court of Appeals.
The North Carolina Court of Appeals rejected the petition for writ of certiorari but remanded the case to the Superior Court of White County for a plenary hearing under the North Carolina post-conviction hearing at.
In due course, with court-appointed counsel, the hearing was held.
And the post-conviction judge found that the tender of the plea was really involuntarily made.
Several weeks later, Alford filed a petition for writ of mandamus with the Clerk of White County Superior Court.
The purpose of which, I’m really not sure and that was denied.
The next step was the filing of an application for writ of habeas corpus with the Clerk of United States District Court from the Middle District of North Carolina.
The court dismissed the petition at that time because Alford was not within the jurisdiction of the court but within a week or two he was transferred to a prison unit within the jurisdiction of that court and the court reinstated the application.
Subsequently, the Honorable Eugene Gordon, United States District Court Judge for the Middle District of North Carolina entered an opinion denying habeas relief.
Forty-eight days after the entry of Judge Gordon’s order Alford filed notice of appeal.
He also filed an additional writ of habeas corpus directly with the Fourth Circuit Court of Appeals.
A panel of the Fourth Circuit held that the court did not have jurisdiction due to the late filing of the notice of appeal.
But that in additional application for habeas corpus had been filed originally in that court and Chief Justice Haynesworth of the Fourth Circuit entered an order concluding upon the original application of that court that Alford’s plea of guilty was really voluntarily and understandingly entered.
Alford subsequently filed yet another application for writ of habeas corpus with the United States Court -- District Court for the Middle District of North Carolina and Judge Gordon once again reviewed his contentions and denied relief.
From that denial, Alford once again appealed to the Fourth Circuit Court of Appeals and the Fourth Circuit Court of Appeals in reviewing that application concluded that the statutory scheme in North Carolina for the imposition of capital punishment was unconstitutional in light of the United States v. Jackson, the Jackson decision having been decided in the interim between Judge Gordon’s denial of habeas relief and the filing of the appeal.
Until 1949, in the State of North Carolina, upon a conviction of a capital crime, the four capital crimes are murder, rape, arson, and first-degree burglary, the death penalty was automatically imposed.
In 1949, the legislature amended these various acts to permit a jury to recommend mercy.
And upon that recommendation, the defendant would be sentenced to life imprisonment.
In 1953, yet another statute was passed 15-161 which provided that upon the tender of a plea of guilty to a capital crime, in writing and represented by counsel.
If that tender is accepted by the Solicitor of the State and approved by the court, then life imprisonment would be mandatorily imposed.
In view of that scheme, the Fourth Circuit concluded in light of Jackson that the North Carolina Statutory scheme was invalid and held that Alford who have tendered a plea to second-degree murder was coerced.
Early this year, the legislator of North Carolina repealed N.C.G.S. 15-162.1, the provision permitting the entry of plea of guilty to a capital offense.
It is of interests to note at the present time in North Carolina, there are 11 defendants under sentence of death.
These 11 commenced from sentences of death initially imposed in February of 1963 to the present.
From February of 1963 to March of this year, prior to the repeal of the statute there are six defendants under sentence of death.
Unknown Speaker: Can a defendant in -- if he pleads guilty --
Mr. Jacob L. Safron: No.
Unknown Speaker: I say, can a defendant who pleads guilty in North Carolina appeal from the judgment entered upon his plea of guilty?
Mr. Jacob L. Safron: Your Honor, it happens in just about every case nowadays.
A guilty plea as you are well aware hardly stops of the appellate procedures.
Unknown Speaker: But that -- if by statute is there an appeal?
I’m not talking about collateral attack.
Mr. Jacob L. Safron: We have had not in capital cases yet.
But in the typical guilty plea situation our office is inundated with direct appeals from guilty pleas.
Unknown Speaker: Is the appellate --
Does your Supreme Court ruled on it? As to whether or not there is an appeal?
Mr. Jacob L. Safron: The -- as I say in this capital situation --
Unknown Speaker: I’m talking about that (Inaudible).
Mr. Jacob L. Safron: I am not familiar with their ruling.
But we have had innumerable situations.
Each week we are flooded with appeals which are noted from guilty pleas.
So I would assume due to the vast volume of these appeals that there is no question about it.
Unknown Speaker: I don’t quite understand your reference?
Did you say eight capital cases?
Mr. Jacob L. Safron: No.
Unknown Speaker: Since 1850?
Mr. Jacob L. Safron: No, Your Honor, what I said was this.
Since February of 1963 in 11 instances, juries have refused to recommend mercy.
Of these 11, six were for the time period between February of 1963 through March of this year subsequent to the repeal of the statute permitting a capital defendant to enter a plea of guilty.
Now, all capital defendants are required to stand trial before a jury.
We have had five instances in seven months where juries have refused to recommend mercy.
And along the same line, I should note that the judicial counsel of the State of North Carolina, the official advisory body on matters of legal policy.
This very weekend, back in yesterday’s paper recommended that the provisions added in 1949 permitting the jury to recommend mercy be repealed.
I make it solely an issue of law.
Excuse me, solely on issue of fact for the jury to determine guilt or innocence and permit the law solely to impose the punishment.
Unknown Speaker: What punishment?
Mr. Jacob L. Safron: Death.
However, if it please the Court, in the Alford case we’re really not concerned with this. Because although the Fourth Circuit used Alford as a form to completely strike down capital procedures in North Carolina.
Alford, entered a plea of guilty to second-degree murder which completely insulated, they are not only from the death penalty but also from the imposition of life imprisonment.
The Jackson case decided in light of the Federal Kidnapping Act was in light of the federal criminal procedure in which a federal criminal defendant could waive a jury trial and be tried by a judge.
In North Carolina, by Constitution, a criminal defendant cannot waive his right to a jury trial and a criminal defendant who pleads not guilty must be tried by a jury.
A bench trial is constitutionally impermissible.
Unknown Speaker: Mr. Safron, to go back to what you said a moment ago that to the effect that the United States Court of Appeals for the Fourth Circuit in this case used this case a vehicle by which to completely strike down and invalidate the procedures for capital punishment into the State?
Mr. Jacob L. Safron: Yes, Your Honor.
Unknown Speaker: I haven’t read the opinion that way.
I just thought they’d reverse the conviction in this case because they found that it was involuntary?
Mr. Jacob L. Safron: This is one aspect.
Unknown Speaker: Am I mistaken?
Mr. Jacob L. Safron: That’s one aspect of the case Your Honor.
But the opinion states quite clearly that the present posture of the North Carolina statutes, the various provisions of imposition of death penalty are unconstitutional.
Hence, capital punishment may not under Jackson be imposed under any circumstances.
Unknown Speaker: Where I have the appendix, what page?
I missed that.
Mr. Jacob L. Safron: It would appear to be on page 34 I believe of the appendix, Your Honor.
Unknown Speaker: Thank you.
Mr. Jacob L. Safron: The Supreme Court of North Carolina in state repeal has considered United States v. Jackson and the Supreme Court of North Carolina has concluded that Jackson is not applicable to our procedures.
For the federal system in the various statutes under consideration, upon conviction, the law fixed a maximum of life or a term of years.
However, the jury could in this various situations recommend capital punishment thereby, upgrading the punishment permissible by law.
I see Your Honor that my time is very quickly coming to a close in this.
I would like to quickly point out Chief Justice Haynesworth dissent in which he pointed out that this is actually a situation of plea bargaining.
That -- and I would like to pull out to this Court that in Holiday versus United States.
This tribunal noted that 80% of all convictions in the federal system are upon pleas of guilty or nolo contendere and various researches have noted that 90% of all convictions nationally are upon pleas of guilty of nolo contendere.
The -- if plea bargaining in its various forms is to be struck down it would be almost a mortal blow to the administration of criminal justice in the United States.
Additionally, we come to the very issue, of whether or not this opinion should be retroactive.
I think this is absolutely vital.
In North Carolina, as a February 1st of this year there were 448 defendants serving life -- terms of life imprisonment.
We have determined that 68.8% of these defendants in their pleas of guilty because at the time they were brought to trial the State had overwhelming proof of their guilt and they pled guilty.
Now, we reach the weird paradox that the stronger the case the State had to present against the defendant, the stronger his argument would possibly be under Jackson.
The weaker the State’s case then of course the weaker would be the defendant’s argument that he was coerced to save his life.
The various federal courts which I have considered this up till now have almost uniformly held effect would be devastating.
In the State of New Jersey which Justice Brennan is well aware, the non-bulk procedure has been in effect since 1893.
The effect to New Jersey would be absolutely devastating if every murder who pled nun vult could now say his plea was involuntary.
In fact, the North Carolina counsel has submitted an opinion from New York State this week in which New York State statutes were held in light of Jackson and Alford by District Court there.
If that done, the State of New York would be devastating.
The federal system you have the --
Unknown Speaker: Or I didn’t understand that this Court of Appeals said that it would be automatic in every case.
I thought it said that if something was the primary or major factor in the plea?
Mr. Jacob L. Safron: Granted Your Honor but still, I submit this that at the present time I’ve already been involved with more than a dozen such cases.
All the petitioner does is say, “We’ll I was afraid of the death penalty.”
Or unless you accept the fact that you have to retrial the case in this collateral hearing and show that the State’s evidence was so overwhelming that what was available to the State at the time was truly the basis of the man’s plea of guilty.
However, I submit this that you reach the conclusion that the stronger the State’s case then quite frankly if the defendant says, “You know if I had to be tried.
If the case was that heinous it may very well have emotional overtones.”
That’s the very reason that they are now then five capital convictions in the last seven months.
The heinous crimes that previously the defendant insulated himself through the device of a guilty plea, these defendants are now having to stand trial and have their cases submitted -- have they submit to juries.
Justice Potter Stewart: But I understood today the defendant under your laws that existed at the time of this trial did not have a right -- absolute right to plead guilty.
Mr. Jacob L. Safron: The right is not absolute Your Honor.
Justice Potter Stewart: There have to be accepted by both the prosecutor and the court.
Mr. Jacob L. Safron: That’s true.
Justice Potter Stewart: And presumably in the most flagrantly, outrageously heinous offenses at which you’re speaking the -- if that provision means anything and probably the prosecutor of the court would not have accepted the guilty plea, isn’t it fair to assume?
Mr. Jacob L. Safron: Actually, Your Honor I don’t believe that really is fair to assume because --
Justice Potter Stewart: And what was the purpose of giving the prosecutor the court how do these statutes --
Mr. Jacob L. Safron: It’s part of the statute but I believe most prosecutors are happier to accept their plea and have the case end there and then rather than having to go with -- have lengthy trials and all the various other collateral attacks which do occur.
Justice Potter Stewart: The law now as I understand it is that if a person indicted the charge for the capital offense cannot plead guilty in your state?
Mr. Jacob L. Safron: That’s your right, Your Honor.
Justice Potter Stewart: Under any circumstances?
Mr. Jacob L. Safron: Under no circumstances to a capital offense.
Justice Potter Stewart: Could he plead guilty in the case such as this one today to second-degree murder.
Mr. Jacob L. Safron: Yes, he could Your Honor.
If you plead guilty to a lesser included offense, of course that’s part of the issues presented in this case.
If of course the plea were freely voluntarily and understandingly entered and in each instance, evidence is adduced upon the tender of the place of the Court to reveal.
Unknown Speaker: But how does your -- how does the Court of Appeals --
Mr. Jacob L. Safron: I’m sorry Your Honor, I don’t understand your question.
Unknown Speaker: If the Court of Appeals would be saying here that this kind of pleas is in doubt?
Mr. Jacob L. Safron: Well, in this particular instance, Your Honor --
Unknown Speaker: You think?
Mr. Jacob L. Safron: I don’t think they really said that.
What they said was this, “You have a situation but although the --”
Unknown Speaker: That’s kind of -- maybe you didn’t understand.
The North Carolina Court has repealed some statutes.
Mr. Jacob L. Safron: Yes.
Unknown Speaker: Or its legislature repealed some statutes.
But if the Court of Appeals decision’s stand would the State rely on the plea in a case just like this one in the future.
Mr. Jacob L. Safron: In the case such as this one, Your Honor, where the defendant gets up after tendering its plea, and then starts saying, “I have not shot any man.”
It would come directly within in the Alford opinion.
However, I say this, that if a defendant tenders a plea and the court is satisfied it’s freely, voluntarily and knowingly entered.
And you know, and the defendant is admittedly guilty.
Unknown Speaker: So that the -- in spite of the repeal of your statutes, the Court of Appeals decision would – or an opinion would still apply in a case like this.
Mr. Jacob L. Safron: In a case like this, it would Your Honor.
But if the defendant were admittedly guilty, it would not.
Chief Justice Warren E. Burger: Thank you Mr. Safron.
Mr. Jacob L. Safron: Thank you.
Chief Justice Warren E. Burger: Mrs. Bray, before you get started.
You can perhaps clear something out for me.
I have not found in your brief any discussion of what transpired at the time of the guilty plea in sentencing that is the disclosure of the case against Alford which has been discussed by your friend.
Argument of Doris R. Bray
Ms Doris R. Bray: Yes, sir.
Chief Justice Warren E. Burger: Have you covered that?
If not, will you -- at some point in your argument at your own convenience give us your view of the effect to that testimony as it relates for example to compliance or substantial compliance with the general requirements or rule of evidence in the federal rules?
Ms Doris R. Bray: The transcript from he read was --
Chief Justice Warren E. Burger: Would you raise your voice a bit.
Ms Doris R. Bray: Yes, sir.
Chief Justice Warren E. Burger: -- some difficulty hearing you.
Ms Doris R. Bray: The transcript from which Mr. Safron read is the transcript at the time when the guilty plea was tendered.
It has been a part of the record I believe since the District Court’s consideration of the last habeas petition.
There was a prior habeas petition also.
But this transcript was not available in the prior consideration of this case by the Court of Appeals.
The procedure in North Carolina upon tender of guilty plea is that the State in narrative form presents what it contends is its evidence.
But it’s a hearsay sort of narrative by the State which is subject to no rules of evidence.
And the defendant puts on no evidence.
I presume that this is for the benefit of helping the judge in sentence.
Chief Justice Warren E. Burger: This is so that the judge will not accept to plea guilty unless there is some evidence that shows him in a very substantial way that the State has a case, is that not true?
Ms Doris R. Bray: I think that’s true.
Chief Justice Warren E. Burger: Well, is that not very important in this whole process?
Is it not indeed the key to the whole problem?
Ms Doris R. Bray: Perhaps because it tends to I suppose you’re suggesting that that tends to establish that the defendant is pleading guilty for some other reason and because of the unconstitutional statutory scheme.
Is that what you’re suggesting?
Chief Justice Warren E. Burger: Well, with the second-degree murder plea, he was not confronted with any possibility of the death sentence.
Is that not true?
Ms Doris R. Bray: But Your Honor, the second-degree murder plea was a plea of guilty.
The prisoner was never given the option to plead not guilty the second-degree murder.
His choice always was between risking the death penalty and pleading guilty.
He never had an opportunity to plead not guilty to anything but first-degree murder.
Chief Justice Warren E. Burger: Well, but in this equation, do you say that we must -- with the court’s dealing with it must weigh the statement of the case against him, against his current statement -- his later statement that he was not guilty?
Ms Doris R. Bray: No, sir I think not.
I think what the defendant is the only thing that the defendant must establish is that his guilty plea was a result of the coercive effect of the statutory scheme which has been held unconstitutional.
Chief Justice Warren E. Burger: Because the court’s --
Ms Doris R. Bray: And in one sense, the stronger the case is, the case for the State, the more coerced he is. Because the more fear he has of the possibility of the death penalty.
Chief Justice Warren E. Burger: Well then you agree with your friend that the stronger the state’s case against him by way of evidence, the greater the coercion as you characterize it?
Ms Doris R. Bray: I think that’s true as a matter of fact in this case.
Chief Justice Warren E. Burger: Well --
Ms Doris R. Bray: And this is what the defendant’s attorney continued to stress.
Chief Justice Warren E. Burger: It cleared up the points that were troubling me so you may proceed.
Unknown Speaker: I don’t quite understand what you are arguing?
I understand you to stay that the coercion years and the fact that a man charged with murder is not allowed to plead guilty to murder in the second degree?
Ms Doris R. Bray: No, sir.
That statute was a result of this case in the Fourth Circuit.
At the time that this defendant was charged he could plead guilty and avoid the death penalty.
The North Carolina --
Unknown Speaker: And is that what is said to be coercive?
Ms Doris R. Bray: Yes, sir.
Unknown Speaker: Well, isn’t that the rule in every state in the union?
Ms Doris R. Bray: No, sir.
I think it’s the rule in six or seven states.
Some states have recently changed the rule.
I think the states affected are about eight.
Justice William J. Brennan: Well, in every state in the union, I suppose plea bargaining is not unknown?
Ms Doris R. Bray: Yes, sir.
Justice William J. Brennan: I mean that -- so that extends here the answer to my brother Black’s question would be yes.
Just as a generality?
Ms Doris R. Bray: Yes, because plead bargaining is inherently coercive in the same way that the North Carolina statutory scheme or capital punishment is coercive.
There’s a vast difference in degree because under the North Carolina you had to risk your life in order to plea not guilty and have a jury trial.
Normally, in plead bargaining, you’re just bargaining for a number of years and not for your life.
Justice William J. Brennan: But I suppose if we should accept your argument at which is the -- which is also the basis of the majority opinion in the Court of Appeals.
The logical result would be would it not to find that in every case where there was plead bargaining you would have to find that there had been a coerced plea of guilty?
That’s what I understood you to suggest.
Ms Doris R. Bray: I suggest that that’s a possible interpretation of United States v. Jackson.
I see --
Unknown Speaker: But it’s not what this Court held?
As I understand, what has been held is that when a crime is charged there can be lower crimes involved.
And that went for such a murder in the first-degree, murder in the second, manslaughter, manslaughter in the second, assault and battery, that anything, when there’s any plea you’re in, they need the first degree. That that’s automatically coercive in such a law is unconstitutional?
Ms Doris R. Bray: I think that probably if the defendant is in fact indicted of first-degree murder or of any other capital crime and he has never given any opportunity to plead not guilty to any other crime other than the capital crime then other Jackson, his plea is coerced by the unconstitutional --
Unknown Speaker: But that’s what he was given and pleaded second isn’t it?
Ms Doris R. Bray: Yes, sir but he was only given the opportunity to plead guilty to second-degree murder.
He could never plead not guilty to it and have a trial and at the same time avoid the death penalty.
Unknown Speaker: Does that mean that in some constitutional unless a defendant if a man is charged with first-degree murder, it’s unconstitutional; let him plead guilty to any other offense because it’s coercive?
Lesser I think?
Ms Doris R. Bray: Well, I think it’s unconstitutional in the same way that is unconstitutional if you let him plead guilty to first-degree murder.
Unknown Speaker: Well, suppose he didn’t ask for it?
Ms Doris R. Bray: Well, the Fourth Circuit said that when you plead guilty to a lesser included offense then that puts a greater burden on the defendant to show that his plea was a result of the coercive nature of the statute.
Justice Thurgood Marshall: Suppose the first-degree indictment and then withdrawn in the second-degree indictment have been filed?
Ms Doris R. Bray: Then I wouldn’t have a case.
Justice Thurgood Marshall: What’s the difference?
Ms Doris R. Bray: The difference is that he can assert his right to have a trial and to have his guilt or innocence found by a jury and still not risk the death penalty.
Justice Thurgood Marshall: No, I think you misunderstood it.
The person indicted to first-degree murder they can’t bargain so they withdraw the first-degree indictment and put in the second-degree indictment.
And he pleads guilty to the second-degree indictment and you said that’s alright.
Ms Doris R. Bray: Because the penalty for second-degree murder is the same regardless of what he pleads guilty or innocent?
Justice Thurgood Marshall: So that would be alright?
Ms Doris R. Bray: The unconstitutional --
Justice Thurgood Marshall: You’d still get the same 30 years?
Ms Doris R. Bray: Yes, sir.
But under the first-degree murder statutes that they stood at the time that this defendant was tried, if he pleaded not guilty he got the death penalty.
If he pleaded guilty, he only got life imprisonment.
And what I understand U.S. v. Jackson says is that you can’t set up two different penalties depending on whether a man asserts his rights to a trial by jury or whether he doesn’t.
Justice Thurgood Marshall: Well, that’s right.
Ms Doris R. Bray: That’s the coercive defense.
Unknown Speaker: I think you’ve in a sentence in so far as the sentence can do so have described the whole thing in the Jackson case but the Jackson case have nothing to do with the plea, did it?
Ms Doris R. Bray: No, it did.
Unknown Speaker: It deal with the -- it had to deal with putting a penalty on a person who exercise his right to a jury trial.
Ms Doris R. Bray: That’s true.
Unknown Speaker: It had nothing to do and that was decided on a motion that is there had been no trial, there had been no plea.
Isn’t that correct?
Ms Doris R. Bray: Yes sir, which is why one of the issues now is retroactivity of that decision.
Unknown Speaker: Well, but you make your argument, right?
Chief Justice Warren E. Burger: Mrs. Bray suppose that the trial in this case had started and the Government, the prosecution put on its entire case and had five or six eyewitnesses and the witnesses to whom he had threatened the kind and advance and the witnesses to whom he admitted the crime after the event.
And then the State rest and then he decided to enter a guilty plea to second degree.
Would you say he was coerced by this overwhelming undisputed evidence against him or is he coerced by this same problem that you say exists in the statute?
Ms Doris R. Bray: Well, if the Jackson opinion is copmpletely retroactive then you would be coerced in any event or he would be presuming to be coerced and he would be entitled to some sort of relief.
Chief Justice Warren E. Burger: Well, as Justice Stewart has just pointed out Jackson dealt with the case where the man had a trial --
Ms Doris R. Bray: Yes.
Chief Justice Warren E. Burger: -- now I’m giving you a hypothetical case where the trial has started with undisputed overwhelming conclusive testimony against him, eyewitnesses and all.
Now, of course he’s under great pressure, isn’t he?
No one would dispute that.
But do you say that that’s an impermissible kind of coercion that society is exercising on him because the facts destroy his possibility of getting an acquittal?
Ms Doris R. Bray: The dissent in Jackson took the position that I think you’re getting at and that is the statute should not be declared unconstitutional.
Rather, there should be a burden on the Court to determine that the coercive nature of the statute had nothing to do with the plea.
But that was the dissent and the majority in Jackson held that the statute was unconstitutional because it setup two different penalties depending on whether you pleaded guilty or innocent.
Unknown Speaker: No, that wasn’t quite true.
If I can with respect make at least a slight correction.
It didn’t have to do whether or not she pleaded guilty or innocent.
It had to do about with whether or not you ask for a jury trial.
Ms Doris R. Bray: Yes, sir.
Unknown Speaker: And under the federal statute you could have had a bench trial pleading.
Pleading not guilty and the federal statute involved in Jackson and the statute was not held unconstitutional only one part of the way, the death penalty part.
Because that death penalty was put on as a punishment for anybody who exercised his constitutional right to a jury trial and the holding in Jackson simply was at that part of the federal statute was unconstitutional.
And only that part that provided for a death penalty, it didn’t involve anybody who had pleaded either guilty or not guilty because that case was decided on a motion attacking the constitutionality of that statute and the District Court had held the entire statute unconstitutional.
We reversed that holding and held simply that the death sentence part of the statute is unconstitutional.
But it didn’t involve pleading guilty or not guilty.
It involves simply the exercise of a right to a jury trial.
Am I wrong in my recollection of that?
Ms Doris R. Bray: I thought it involved both whether you pleaded guilty or not guilty and whether or not you are in the jury trial.
In North Carolina, the jury trial alone cannot be waived.
You have to waive everything or nothing.
So the question is whether you plead guilty and in doing so, also waive your right to a jury trial or whether you plead not guilty.
The North Carolina statute is not servable.
At least the State has never suggested any way in any manner which it could be servable because of the structure of the statute.
The statute imposes death unless the jury recommends right -- life, excuse me.
And then another statute sets out the ability of the defendant to plea -- to plea guilty and received an automatic life sentence.
Unknown Speaker: May I ask Mrs. Bray.
If the Court of Appeals judgment stands I gather, Alford has to be retried?
Ms Doris R. Bray: Yes, sir.
Unknown Speaker: And do I understand that if he’s found guilty under the present sentencing statute in North Carolina, he automatically gets the death penalty?
Ms Doris R. Bray: Unless the jury recommends mercy.
Unknown Speaker: Well, in a minute that’s what I thought that power to recommend mercy to the --
Ms Doris R. Bray: The jury may still recommend mercy but you may not plead guilty.
Unknown Speaker: I see.
Ms Doris R. Bray: And a guilty plea covered or not carried an automatic life imprisonment sentence.
The guilty plea was treated as a guilty --
Unknown Speaker: So on the retrial if the jury doesn’t recommend mercy then this is rather pure (Inaudible)?
Ms Doris R. Bray: Well, that depends on whether the recent case of Pierce against -- North Carolina against Pearce applies.
Unknown Speaker: Oh, I see.
Ms Doris R. Bray: And also the case of Greene against United States.
I would suggest that the State has made an election.
The charging was second-degree murder and they probably precluded from retrial for first-degree murder.
Unknown Speaker: Well, I suppose now we couldn’t -- if this Court is right, he could not plead guilty the second-degree murder again, could he?
Ms Doris R. Bray: Well, if he is only -- there is a problem.
Now if he has no -- if he can plead not guilty the second time around and not risk the death penalty then I think he can also plead guilty. Because then he would just -- he would have the same exposure either way.
Unknown Speaker: On a second-degree charge?
Ms Doris R. Bray: Yes, sir.
Unknown Speaker: Is that we’re talking about?
Ms Doris R. Bray: Yes, sir.
And if he had ever been given that option then I wouldn’t have case.
Unknown Speaker: I thought under the court’s opinion, he couldn’t -- couldn’t he be tired for manslaughter?
He couldn’t even plead guilty to manslaughter if we presume to be coercive?
Ms Doris R. Bray: As long -- well, I don’t believe the court said it would be presumed to be coercive in this case.
Unknown Speaker: They said it would be --
Ms Doris R. Bray: Pardon?
Unknown Speaker: They just said he wouldn’t be, didn’t they and so decide.
I mean --
Ms Doris R. Bray: Yes, sir but the Fourth Circuit found as a matter of fact that this guilty plea was coerced.
And they said that if the defendant pleads guilty to lesser included offenses.
Then he has a greater burden to show that his plea of guilty was a result of the unconstitutional coercive effect of the statutory scheme.
So, I suppose if you kept going down under the Fourth Circuit’s rule, then at some point the coercive effect of the statute would lose its strength.
Unknown Speaker: But how could you figure that one?
Ms Doris R. Bray: The Fourth Circuit put the --
Unknown Speaker: Yes, he is trying to get away from the jury trial to be --
Ms Doris R. Bray: Yes, sir.
I think that’s right.
Unknown Speaker: Maybe behind?
Ms Doris R. Bray: Yes, sir.
Unknown Speaker: I don’t see what degree you would have to answer whether it’s manslaughter or if it is in that state he could be tried in Alabama.
He can be tried for assault, convicted also or assault and battery, arson and assault.
Ms Doris R. Bray: If --
Unknown Speaker: And is that true in North Carolina?
Ms Doris R. Bray: Yes, sir.
I think that is true.
I think that is true.
The Fourth Circuit said that the burden was on the defendant to show that his guilty plea was in fact coerced by the fear of the death penalty.
Now, I suppose that if he is truly guilty and the State is wiling to let him get off with an assault charge that maybe the fear of the death penalty really wasn’t the motivating force in his pleading guilty.
And maybe there wasn’t -- if the State is wiling to accept that lower degree of the included offenses, then the State probably don’t have a very good case for obtaining a death sentence.
I’d like to emphasize that this Court in all of its -- in most of its decisions on the question of the retroactivity of a constitutional principle has established that in any case, even though a particular constitutional principle is declared to be perspective only in its application.
Any defendant who cans show that the facts of his case actually show an abuse of due process is entitled to relief.
For example in the case of Davis against North Carolina, this Court held that Davis’ confession was in fact coerced even though the Court had just held that Miranda and Escobedo were not retroactive and the Court held that the principles established in Miranda and Escobedo were relevant to the question of whether or not Jackson’s coerced confession was in fact coerced.
Now this is a case of a coerced guilty plea and it seems to me that the principle laid down by the Court in United States v. Jackson is relevant to the issue of whether or not this guilty plea was in fact coerced.
And in this record, it seems to be no other conclusion one can reach then that the defendant pleaded guilty in order to escape the death penalty.
He has never, this is so far as the record shows, ever admitted his guilt to anyone not even his attorney.
His attorney testified at the post-conviction hearing that the defendant always said that he was innocent but that he would plead guilty in order to avoid the death penalty.
Justice Potter Stewart: Well according to the -- according to what was introduced in the trial he admitted his guilt or at least he admitted he showed them to the woman with whom he was living when he returned, am I wrong about that?
Ms Doris R. Bray: But I point out that that is only what the State says it has as evidence.
The woman was not at the trial.
It was no -- there was no evidence as such.
He was never given --
Chief Justice Warren E. Burger: But this must be accepted as true unless its refuted, isn’t that the whole purpose of that presentation?
Ms Doris R. Bray: I’m not sure that the defendant has any right to refute it.
I think that the procedure is that the State simply narrates its -- what it contends as its evidence.
Chief Justice Warren E. Burger: And is the defendant in the courtroom at the time that narration is given in the record?
Ms Doris R. Bray: Yes and after the narration, the defendant said I am not guilty.
I didn’t kill no man and I’m only pleading guilty because they told they were going to ask me if I didn’t.
And the record shows that it took a great deal of persuasion ever to get him to plead guilty that it was -- that his attorney approached his sister and his cousin who was a policeman and that they prevailed upon him to plead guilty because the attorney said he couldn’t win the case and because the attorney said that the facts were aggravated because he’d been out with the white woman just before the murder.
I’d like to say a few words about the retroactive effect of United States v. Jackson.
The principles which this Court has set out in determining retroactivity are the purpose to be served by the new standards the effect of reliance by law enforcement officials and the effect of the decision on retroactivity on the administration of justice.
Now in -- one of the more recent cases on this subject Desist against United States, the Court pointed out that the purpose to be served by the new constitutional rule is paramount and that only if the purpose and this is not clearly dictate retroactivity or non-retroactivity do you go to the second, and third points the reliance factor and the effect on the administration of justice.
Now in this case, under North Carolina law, in order to avoid the coercive nature of the capital punishment provisions of the statutes, you have to plead guilty.
You may not have a bench trial.
You have no choice but to completely waive your right to a trial at all which means if you waive your right to a trial, you waive your right to have your guilt proven by the State.
You wave your right to cross-examine and confront your witnesses.
You waive your right to a jury trial.
Now, if the fact is to considered in determining on whether or not a constitutional principle is retroactive is whether or not the defendant has been deprived of a fair trial, and whether or not the new constitutional principle really purifies the fact-finding process of the Court.
Now if the right of counsel is important enough to be retroactivity, then surely the right to any trial at all is important now.
And its very possible, it seems to me that in the situation where a man with the first grade education is told by his attorney that he can’t win the case and that the facts are aggravated and the jury are therefore not going to be favorable towards his position, that he may very well plead guilty when in fact he is innocent because he is being force to gamble with his life.
And it seems to me to be a real possibility of a danger of an innocent person being convicted under this sort of coercive statutes.
If there are no further questions --
Chief Justice Warren E. Burger: Thank you Mrs. Bray.
I think your time is up counsel.
Thank you for your submission and Mrs. Bray you acted at the appointment of the Court, we thank you for accepting the appointment and responsibility.
The case is submitted.