MCMANN v. RICHARDSON

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Argument of Brenda Soloff

Chief Justice Warren E. Burger: Number 153, McMann against Richardson.

Ms. Soloff, you may proceed whenever you're ready.

Ms Brenda Soloff: Thank you.

Mr. Chief Justice and may it please the Court.

The principle issue in these cases is whether or not a guilty plea can be opened up to collateral attack in order to test in evidentiary defense which could have been tested at a trial.

These are three habeas corpus petition cases in which the Court of Appeals for the Second Circuit has ordered evidentiary hearings on the petitions of state prisoners who are detained by virtue of their pleas of guilty.

The District Courts which initially considered these habeas petitions, declined to order such hearing because the primary allegation of each relator that a coerced confession had been obtained from him was not the direct attack on a guilty plea itself.

Biased decisions in these cases, the Second Circuit has held that confessions which weren't introduced against a relator nevertheless can be attacked collaterally.

I will address myself primarily to the nature of a plea of guilty as precluding a subsequent attack on the admissibility of potential evidence.

Mr. Juviler of the Office of District Attorney of New York County will also discuss this issue.

And in addition to claiming that a coerced confession was used against him, each of these relators makes other allegations on which the Second Circuit has also ordered evidentiary hearings and Mr.Juviler will discuss those allegations as well.

These three men were all convicted in New York State of serious crimes following their pleas of guilty.

All three were represented by counsel, all of them pleaded guilty to substantially reduced charges.

Richardson satisfied two first degree murder charges by his plea to one charge of murder in the second degree after a plea to murder on the first degree had been rejected in his behalf.

Dash satisfied indictment charging with robbery in the first degree by pleading guilty to robbery in the second degree after he personally rejected a guilty plea to the higher charge and Williams satisfied an indictment charging robbery and rape for the first degree with his guilty plea to robbery in the second degree.

None of these --

Justice John M. Harlan: Was the best sentence still on the both?

Ms Brenda Soloff: Yes, it was at the time of the pleas.

Justice William J. Brennan: Are the proceedings at the time that the pleas are taken in the record anyway?

Ms Brenda Soloff: The proceedings in the Richardson case are in the record.

The proceedings in the Dash and Williams cases are not in the record because they were not before the circuit court.

There's some question in the record as to whether or not they were before the District Courts.

It appears to me from reading each District Court opinion in those two cases that they did have those minutes.

Justice William J. Brennan: Don't you think that on the issue we have to deal with it would be irrelevant to know what happen at the court decision?

Ms Brenda Soloff: I think that it's more than relevant and I think that this is one of the problems with the Second Circuit decision that they place absolutely no weight on the one colloquy which they did have before them which was a model of inquiry.

Justice William J. Brennan: That's the Richardson.

Ms Brenda Soloff: That's the Richardson.

It was most thorough inquiry in --

Justice William J. Brennan: Is that in any of these printed papers or is that --

Ms Brenda Soloff: Yes, that's in the appendix at pages 88 through 97.

Justice William J. Brennan: Thank you don't -- don't stop to that, I look at it.

Thank you.

Ms Brenda Soloff: No, I was not going to.

I would like to follow at that thought for a moment there because I think that one of the problems in these cases is that no matter how we look at these petitions and at the Second Circuit decision, no colloquy even the one in Richardson could ever satisfy the issue raised in these cases.

After the judgments of conviction became final in these cases, each of these relators sought collateral relief in New York by coram nobis which is a post-conviction procedure in New York for testing claims which are not apparent in the face of the record.

Relief was denied in each case without a hearing and the denials were affirmed by the state appellate courts.

Then each relator sought federal habeas corpus, claiming essentially that he after his arrest he gave a coerced confession.

After the District Courts had dismissed these petitions the Court of Appeals for the Second Circuit ordered evidentiary hearings in three separate opinions.

The Dash case was part of en banc decision, Richardson was decided to the same day and Williams about a month later.

Basically, the majority opinion held in the Second Circuit that where a claim is made that evidence was illegally obtained and where it is also maintained that the existence and threatened use of that evidence at a trial substantially motivated a plea of guilty, a petitioner is entitled to evidentiary hearing to test his claims -- to test his claims that his confession was coerced that his plea was involuntary, that his plea was substantially motivated by the allegedly coerced confession that hold the whole range of allegations.

We think that in rendering these decisions, the Court of Appeals has seriously misinterpreted the significance of a plea of guilty.

Justice William J. Brennan: What about -- does this contemplate also an inquiry into the voluntariness of the confession?

Ms Brenda Soloff: Yes, it does.

The hearing -- (Voice Overlap)

Justice William O. Douglas: Without any state hearing in any state court on that question?

Ms Brenda Soloff: The Second Circuit contemplates hearings without there having been states hearings, that's right or without certainly there having been pre-plea state hearings.

The question of whether or not the state would open up its doors to these petitions if this case were affirmed is another issue.

The convictions here because they are based on pleas of guilty, don't rest on any evidence.

No evidence was used against these relators at a trial and this has occurred because each relator after consulting with counsel decided to forgo a trail and all the contest of fact that that decision by definition involves.

Each instead deliberately choose to have their convictions rest solely on their pleas of guilty in open court.

Justice Potter Stewart: Is it clear that each one of these cases there was in fact a confession?

Ms Brenda Soloff: No.

Justice Potter Stewart: That's just an allegation?

Ms Brenda Soloff: That's just an allegation.

It's never -- we haven't seen any confessions, we don't know if they're written.

I believe each one may state that they're written, I'm not sure, maybe oral.

Justice Potter Stewart: That's not under the Court of Appeals holding, I guess the -- your counsel on the other side agrees that it's up that at any hearing, it's incumbent upon the petitioner to show that there was a confession and that confession was coerced and what if I suppose always within the power of the states there was or wasn't a confession at all.

Ms Brenda Soloff: If the state can verify this in anyway.

Justice Potter Stewart: Well, it's not up to the state to verify, it's up to the petitioner to prove it, isn't it, that there was one and that it was coerced.

Ms Brenda Soloff: Well, as the practical matter I don't know how beyond his own word, a petitioner would establish that he made a confession.

Justice Potter Stewart: Is there anyway of knowing whether police departments or District Attorney's offices and so on keep the -- keep the files of cases that have lost since been dispose off?

Ms Brenda Soloff: I don't know with the practice is with respect to each County District Attorney as to how long they keep files and I don't know to what extent for example a policeman's memo book which may contain the only statement which was ever made would be preserved by the policeman or how long he would be able to read his notes or if they were ever turned over to the District Attorney.

There's a whole initial problem in these cases as to ever establishing that a confession existed, let alone the circumstances under which it was given and the scope of their confession whether it was in fact a confession or a half admission or --

Justice Potter Stewart: That's not your problem, that's not the state's problem, that's the petitioner's problem, isn't it?

Ms Brenda Soloff: Well, it is the state's problem to the extent that we have to go to hold hearings to get all records, to get whatever witnesses are available.

It's an extremely difficult --

Justice Potter Stewart: Well, it's the nuisance to have hearings, but this particular problem, it's the petitioner's problem because he has the burden of proof, am I correct?

Ms Brenda Soloff: Certainly, he would have the burden of proof, but as a practical matter, it would turn back to the state because the state has whatever records there are, if there are any.

Justice Potter Stewart: Because that just mere assertion would be a prima facie case that the statement have to meet, isn't that true?

Ms Brenda Soloff: This is one of the questions that the Second Circuit has not answered.

They've said that other allegations affidavits should be necessary but they didn't require it in any of these cases and we're already getting petitions which make very bare assertions on which hearings have been ordered.

Chief Justice Warren E. Burger: May I ask you question to test the scope of what the Second Circuit opinion really is because I'm not sure I understand it.

Suppose an allegation were made in these same circumstances in terms of time on criminal acts and the petitioner alleged that he had been motivated in making his guilty plea by the knowledge that an eyewitness was available, but that this eyewitness was one who's testimony was “tainted” because of improper line ups or exhibition of the photographs etc.

Would you read its being within the scope of what the Second Circuit has now opened up?

Ms Brenda Soloff: I think it's entirely possible that it's within the scope of what the Second Circuit has opened up along with illegally-seized evidence, the claim that evidence was illegally seized along with almost any evidentiary claim which can be made.

I have received a brief from the office of counsel for respondent which alleges that the plea was coerced because of unfair pre-trial publicity and it rests directly, I mean that the allegations are based directly on this case in the Second Circuit.

So that its ramifications for other kinds of opening up of the plea are enormous, I think they're endless.

And I think that this is one of the reasons why once a decision has been made to rest a conviction on a plea of guilty and to take whatever benefits flow from that plea and after years have passed and the state has relied on this for years in just the way that we've describe that it should not be the relator's option to repudiate the plea because then there is no meaning to the plea of guilty.

It only because of a procedural step to the testing of evidentiary claims and its significance as an independent basis of conviction is completely negated.

Justice Potter Stewart: I understand it to be the theory of the Second Circuit that a plea substantially motivated by the existence of the involuntary confession is an involuntary plea?

Ms Brenda Soloff: Yes.

Justice Potter Stewart: Or that whether or not an involuntary plea it's voidable even though voluntary if it was substantially motivated by the involuntary confession.

That maybe just a matter of semantics, but it maybe of some importance and I'm not quite sure I understood the rationale of the --

Ms Brenda Soloff: Without meaning to be facetious, I have problems with the rationale of the Second Circuit.

Justice Potter Stewart: That prompted my question further on.

Ms Brenda Soloff: I think it can be read that if a confession is coerced and if that confession, not the coercion of the confession but the confession itself.

Justice Potter Stewart: The existence of the confession.

Ms Brenda Soloff: The existence of the confession substantially motivated to plea that is taking into account whatever other evidence may have been available, taking into account the nature of the bargain that was struck, taking into account any variety of factors.

The District Court now must weigh this and call it substantial motivation and decide how substantial it was and if it was substantial and apparently if the confession was coerced then the pleas to be set aside.

Justice Potter Stewart: Even though the plea itself was a voluntary plea under the normal conventional standards of what's a voluntary plea, i.e., a knowing, intelligent, informed plea with the advice of counsel and etcetera.

Ms Brenda Soloff: That's right.

Justice Potter Stewart: That's the rationale.

Ms Brenda Soloff: I believe that that's their rationale of the Second Circuit.

I think they ran right around the plea of guilty to the confession.

Justice William J. Brennan: Yet there has to be a nexus though between the confession and the plea, don't you think?

Ms Brenda Soloff: I don't believe that that's really so with what -- in Second Circuit rationale.

Justice William J. Brennan: Well, may I ask then, what you meant when you said Ms. Soloff, a substantial, a substantial factor in the making of the plea, what do you mean by that?

That's mean nexus doesn't it between the confession?

Ms Brenda Soloff: That's what the Second Circuit said, that there has to be a substantial --

Justice William J. Brennan: Well, that -- that was my question.

Doesn't there have to be some kind of nexus between alleged coerced confession and the plea?

Ms Brenda Soloff: No.

No, because I don't think substantial motivation means that.

I think all that substantial motivation means is there was a confession, and for some reason it was coerced, but I didn't test it, instead because of that confession --

Justice William J. Brennan: No, no, no.

I'm assuming the premise that it's a coerced confession.

I thought that the attack under the plea depended upon showing that the plea was a consequence of the coerced confession.

Ms Brenda Soloff: Not at all.

I don't believe that that is what the Second Circuit held.

I think that what they said was there was a confession and it caused me to plea guilty.

It induced my plea.

I'm sorry.

I am getting confused.

It substantially motivates -- the existence of the confession substantially motivated my plea.

Justice William J. Brennan: I would not have made the plea, but for my fear that this confession were successfully used against me I come off worse than I would by pleading guilty.

Ms Brenda Soloff: No.

Justice William J. Brennan: No?

Ms Brenda Soloff: There's no “but-for” Mr. Justice Brennan has no “but-for” test announcement on the Second Circuit decision, that's the first thing.

Chief Justice Warren E. Burger: Yes but wasn't there a gap between “but-for” test and a motivation test, influence test, isn't there?

Ms Brenda Soloff: I think that the problem in all these cases, I agree that there is a difference but I think that substantial motivation or “but-for” may come down to the same thing, but the answer is still this plea was entered in lieu of a trial.

There could have been a trial and there wasn't.

Once the term induced or substantially motivated and all of these terms predicated on all go or ignore the existence of the trial, they ignore the very nature of a guilty plea.

They ignore the fact that no evidence is necessary to support the conviction, that the plea is the independent basis and that once you use words like “substantially motivated” or “induced” to reach out the evidentiary test you had negated the plea of guilty.

You simply said, first you plead guilty and then we'll have this evidentiary hearing when you demand it at your request.

Many years later, perhaps, and you've undermined the plea of guilty for which there are certainly very great justification.

Justice Byron R. White: I take it then that you disagree with the Richardson case too.

Ms Brenda Soloff: Yes.

Well, we do Your Honor.

Justice Byron R. White: And you say that it makes no difference if the defendant alleges and makes a specific allegation incompetence of counsel in advising him about how to plead?

Ms Brenda Soloff: I think that the allegation that a counsel is ineffective is certainly a ground on which collateral attack against a plea of guilty can be based.

I would never not argue to contrary but --

Justice Byron R. White: Well, how would you -- how would you attack the plea of guilty using that?

What would you say?

Do you say I had an incompetent and ineffective counsel and therefore what?

Ms Brenda Soloff: Therefore, I did not knowingly involuntarily enter a guilty plea because he did not advice me of the consequences not because I had a coerced confession.

Justice Byron R. White: Right, right, right, but what if the counsel says or what if the allegation is that I told the counsel that I was beaten and he says it doesn't make difference if you were beaten at all, your confession is admissible and with the confession, you're cooked?

Ms Brenda Soloff: And he comes into Court and he makes a long list of acknowledgments of guilt of the knowing nature of the fact.

If he made a coerced confession, and counsel didn't attack it, and he only attacks counsel on the ground of not having an attack --

Justice Byron R. White: No, he said -- he attacks his counsel on the ground that the counsel said that confession is usable against you.

Ms Brenda Soloff: Well, that's a perfectly competent piece of advice on the part of counsel.

Justice Byron R. White: Why, he said, he was beaten?

Ms Brenda Soloff: He alleges that --

Justice Byron R. White: Would you advice any client you had that if confession that would be out of you was usable against you?

Ms Brenda Soloff: We have no acknowledged coerced confessions in these cases.

We have allegations support.

Justice Byron R. White: I understand that.

Ms Brenda Soloff: It may well be a close case as to whether or not the confession is or is not admissible.

This is especially true where coming up with the right to counsel and statements as to whether or not warnings were given the full range of possibility of the admissibility of the confession.

Justice Byron R. White: What would you say if the allegation was that that it was represented to my counsel and then to me that a co-conspirator or co-defendant had confessed and implicated me and would testify against me, and that was false, absolutely false.

The state made the representation that was a false representation and I wouldn't have pleaded except for this fear of having the testimony used against me and with that testimony I had no case.

Ms Brenda Soloff: Once you have a false representation by an officer of the state, you have a collateral issue.

In fact, we cite a case in our brief in which New York has held that where an officer testified falsely as to the circumstances of the crime --

Justice Byron R. White: But what would you say that that the plea was not intelligently made then, wouldn't you?

I mean, you were operating on a false premise.

Ms Brenda Soloff: That's right.

Justice Byron R. White: And you would set the guilty plea aside?

Ms Brenda Soloff: That's right, but where we have a claim of coercion and an available procedure and this is essentially what we're talking about in these cases, then we have --

Justice Thurgood Marshall: But in a guilty plea, how can you ever get to the whether the confession is coerced or not?

Ms Brenda Soloff: Except for where you have --

Justice Thurgood Marshall: So, if there is a coerced confession and for some reason the lawyer and the defendant both say there's no use in taking a chance, that's it.

Nobody can handle it in terms.

Ms Brenda Soloff: That's right, that's what the plea of guilty --

Justice Thurgood Marshall: But if there is a coerced confession and a trial and the conviction and later on you can get objection then or hearing?

Ms Brenda Soloff: That's right.

Justice Thurgood Marshall: And the difference is being what?

Ms Brenda Soloff: The difference being that once you go to trail and test a confession, the confession becomes a part of the basis of the judgment of conviction.

It is evidence which probably led to the judgment of conviction and you're entitled in those circumstances to a determination of whether or not that confession was coerced.

Justice Thurgood Marshall: So that if the police officers identify the man and they know they're wrong and if they beat a confession out of it, I'm not even assuming that this case, and yet the lawyer tells, “Look, they're going to believe that police officer and they're not going to believe you and he pleads guilty, that's it?

Ms Brenda Soloff: That's right.

That's it because there's no more point to testing a confession after a plea of guilty and there is at a trial the same issues of credibility still exist.

There's no --

Justice Thurgood Marshall: Well, suppose that this hearing that the Second Circuit had ordered, it found there were no confessions, the conviction stands?

Ms Brenda Soloff: That's right.

Justice Thurgood Marshall: If the Court finds that there were confessions, they were perfectly legal the conviction stands.

If they find that the confession was extorted by force and violence or what have you then they will more than likely set aside the conviction and let's go again.

Outside of the problems and difficulties of holding hearings which are normal what else is wrong with that as a --

Ms Brenda Soloff: It's not longer a plea of guilty.

What you're doing is holding exactly the same trial that you would have held before the man pleaded guilty at a time when witnesses may have died, the evidence of guilt maybe completely dissipated and the bargain which he struck for a lower charge can be repudiated.

This is not the plea of guilty, this is a trial and if we're going to --

Justice John M. Harlan: Underlying that you're saying that in effect these and others convicted, or are there some innocent people who don't plea guilty without lawyers?

Ms Brenda Soloff: That's right.

Justice John M. Harlan: Isn't that a part, doesn't that up here on circulate the premise what you got?

Ms Brenda Soloff: I think that certainly a premise from which we operate.

Chief Justice Warren E. Burger: And there is a vehicle I think you suggested this or intimated, there is a vehicle that if they want to test that out at that time while it's fresh, move to suppress any existing confession and test it out there and if they have not so moved, is it your suggestion they permanently waived it?

Ms Brenda Soloff: That's true but this is not the case with these three relators who all pleaded guilty before the decision of this Court Jackson against Denno.

Now, the Second Circuit felt that it was compelled by the decision in Jackson against Denno to hold that New York did not provide these relators with a reasonable opportunity to test their claims of coercion.

Justice Potter Stewart: And Judge Kaufman as I understand it in his concurring opinion thought that these decisions were limited to pre-Jackson-Denno situation, am I correct?

Ms Brenda Soloff: That's right.

He thought they did it.

It's another issue on the Second Circuit opinion as to whether that concurrence by Judge Kaufman in which other members of the Court concurred is truly the limiting, it's the limiting point.

Justice Potter Stewart: But his view, at least his view was that these decisions were so limited to pre-Jackson-Denno cases.

Ms Brenda Soloff: If that's -- that's correct and if that's true then the Second Circuit decision is in a sense more limited than the many other decisions from the other circuits which never take account at all of the possibility of going to trial.

They never regard it as a viable alternative and yet it seems, it would seem that the right to go to trial is really what is at issue in these cases.

Now, as I said briefly before, before the Jackson decision, the problem in Jackson was at the same jury passed on the question of guilt or innocence and on the question of the voluntariness of a confession and that procedure was upheld by this Court in 1953 in Stein against New York.

Since the Jackson decision applies to cases which had already been tried prior to June 22, 1964, the Second Circuit concluded that it applied also to cases in which there was no trial prior to 1964.

But clearly, Jackson does not apply where there never was a jury trial.

The problem arising from a case that had already been tried before 1964 is that a confession that the jury had already heard might have been coerced and therefore the conviction, that is the jury's verdict, would've been based on the coerced confession.

And so now, we have to hold evidentiary hearings to determine whether or not that was the case, but as we've said here the convictions aren't based on confessions or any other evidence.

Now, the Second Circuit also found that these relators couldn't be deemed to had entered voluntary pleas of guilty if their pleas were substantially motivated by coerced confessions, the validity of which for practical purposes they were unable to contest.

But for this assertion to have any meaning it would have to be alleged factually that the pre-Jackson procedure in some way actually motivated the plea of guilty and counsel's advice to plead guilty.

In other words, the Stein procedure as a matter of law was so bad that it even prompted pleas of guilty, innocent man to plead guilty.

Chief Justice Warren E. Burger: We'll recess now for lunch.

Argument of Michael R. Juviler

Mr. Michael R. Juviler: -- from the bench if a defendant plead at guilty prior to the Bruton decision, he may not now come forward and say that he was induced to plead because he expected that his co-defendants' confession would be introduced and the jury would hear it and that would prejudice him.

Justice Byron R. White: Well, I would think in the Second Circuit he could?

Mr. Michael R. Juviler: It's difficult to understand precisely how far the Second Circuit would go, but I think that is a logical outcome of much of the reasoning of the Second Circuit and I think it's intolerable -- it is an intolerable outcome.

Justice Byron R. White: Could I ask you whether in New York now there maybe a pre-trial hearing about the admissibility of confession?

Mr. Michael R. Juviler: Yes, New York State appears to be the only jurisdiction in America in which there can be a pre-trial hearing as to admissibility of confessions and the defendant may preserve his claim of coercion on appeal after a plea of guilty.

Justice Byron R. White: And if the -- and if the upper court reverses the decision that it was admissible, he may re-plead?

Mr. Michael R. Juviler: He has the option of withdrawing his plea and going to trial or negotiating a lesser plea, but at his option, the judgment of conviction is vacated.

Chief Justice Warren E. Burger: Any time limit on that in New York?

Mr. Michael R. Juviler: Yes, the time limit is the normal appellate process.

Chief Justice Warren E. Burger: But he can't do this by collateral attack 15 years later?

Mr. Michael R. Juviler: No.

Justice Byron R. White: How long is this right been?

Mr. Michael R. Juviler: This was enacted by the legislature in 1965, about six months after the Jackson case.

Justice Byron R. White: You understand -- you don't understand that that so-called omnibus hearing, pre-trial hearing in some jurisdictions includes a confession hearing?

Mr. Michael R. Juviler: Yes, the hearings include the issue of confession, I would assume, in every jurisdiction but only in New York is that issue preserved on appeal after a plea of guilty.

Justice Byron R. White: I see, I see.

Mr. Michael R. Juviler: And the logical outcome perhaps of the Second Circuit opinion read in its broadest sense is to require the New York procedure as a matter of constitutional law to be enacted in every jurisdiction because the logical outcome indeed of the Second Circuit position and apparently of the relators' arguments is that if evidence is obtained by police in an illegal manner, there really is no way that a contested hearing on issues of fact can be avoided even if the defendant pleads guilty.

Here, we have merely allegations of coercion of the confessions unsupported by anything outside of the petitioner's own motions, but even assuming the truth of these allegations, there is no connection, there is no nexus in a constitutional sense between this alleged coercion and the plea of guilty.

So long as the defendant has a reasonable opportunity prior to the entry of judgment to raise these constitutional claims and indeed the expansion of the list of these claims as to the admissibility of evidence requires that we maintain the time honored orderly procedures for presenting these claims whether they involved confessions or tangible evidence or eyewitness identification.

There is no suggestion of a nexus in the allegation that a plea of guilty was induced by the threatened use of a coerced confession.

That is merely a legal fiction which states the conclusion to be reached but that is not a step in the reasoning.

There is no claim factually in these cases that the relators were told by any public official that these confessions known to be coerced by the state were going to be use against them and for that reason they had better plead guilty.

These were self-motivated pleas of guilty.

Justice Byron R. White: Suppose that if they were admittedly or clearly coerced confessions, a counsel would've advised him of that and he wouldn't have taken them in a consideration in considering whether to plea?

Mr. Michael R. Juviler: Yes, and that brings us to the second possible nexus between the coerced confession and the plea of guilty and that is the suggested nexus of incompetency of counsel.

If the attorney consulting with his client as is admitted to have occurred in each one of these cases consulting with his client as to the prospects for suppressing this confession knowing as is admitted in each one of these cases by the relators that they had a opportunity -- they had a procedure by which they could keep this confession out of evidence and if after those deliberations, the defendant and his attorney reach the considered judgment that it would be the bet to the best interest of the defendant to accept an offer of a lesser plea and to forgo the trial then that decisions should be binding.

That is what a plea of guilty is all about.

Justice Potter Stewart: What do you mean by nexus, Mr. Juviler, a connection, a connection or what it is?

Mr. Michael R. Juviler: Well, I think the problem here is that the relators are striving to find some kind of a constitutionally acceptable theory on which they can connect this confession.

Justice Potter Stewart: Well, I'm not interested in theory as to the meaning of that particular word to you.

You find that scattered through the opinion to this Court particularly those of Justice Frankfurter, but the Latin word you mean connection?

Mr. Michael R. Juviler: As I suggest it has been used in many contexts and I'm just trying to pinpoint that.

Justice Potter Stewart: Well, that's reason I'm asking you what do you mean by it?

Mr. Michael R. Juviler: To me I would say that a nexus is some constitutionally acceptable reason why the plea of guilty should not be considered binding.

Justice Potter Stewart: That's not a definition you find in the dictionary for nexus.

Mr. Michael R. Juviler: No.

No, and I think that in such a nexus would include the following. One would be that the advice --

Justice Potter Stewart: Well, I don't mean such in nexus, what do you mean by the word nexus --

Mr. Michael R. Juviler: Well, a chance.

It's just a statement of the conclusion.

Nexus means under what circumstances will we allow a defendant to have an evidentiary hearing.

Chief Justice Warren E. Burger: It means relationship, doesn't it?

Mr. Michael R. Juviler: Some relationship.

Justice Potter Stewart: Connection, doesn't it mean connection?

Mr. Michael R. Juviler: It could mean a factual connection.

Justice Potter Stewart: But what does it mean to you?

Mr. Michael R. Juviler: To me, it means a factual connection.

Justice Potter Stewart: Thank you.

Mr. Michael R. Juviler: It means a continuation of the coercion that was addressed in the station house to the defendant, a continuation of that coercion into the courtroom.

Justice Potter Stewart: Now, that's --

Mr. Michael R. Juviler: And that is not alleged in these cases.

That is not alleged in these cases or per -- and as long as there is nothing other than that to take out of our -- to take out this case the dispositive fact that these defendants had attorneys who with the relators made a reasoned choice to forgo their constitutional challenges as long as there's nothing to remove that then the plea of guilty should mean what it says, I am guilty, though you don't have to prove it.

Now, it seems apparent from the decisions in the states and in, I would say, all of the circuits that this is assumed to be the case with the search and seizure claims where there is an attack in post-conviction proceedings on the admissibility of tangible evidence after a plea of guilty, and I don't see why there should be any difference when we come to the confession claim other than the perhaps emotionally significant fact that both the plea of guilty and the confession are oral, but if there is a break in the chain of events between the station house interrogation and the plea of guilty as there is in each one of these cases then that fact that these are both oral is completely immaterial.

There is an independent act of free will exercised by these defendants when they decided to forgo their trial.

The cat was not out of the bag when they allegedly confessed in the station house.

Now, if a defendant is coerced into confessing by the police and subsequently while in custody he makes another confession, that second confession maybe admissible at a trial even though in a sense the cat is out of the bag if the facts established that there was a break in the chain of events and that the second confession was voluntary and came after the defendant was aware of his rights.

Well, in our case the confession, the cat is not out of the bag at all because that the defendant aided by counsel is still armed with the power to try to keep that cat in the bag.

He just says that it's not worth my trying for various reasons and so long as the state or the Federal Government does not unnecessarily discourage the opportunity of the defendant to challenge these pieces of evidence then his decision not to do so should be binding.

Justice Thurgood Marshall: How does Jackson and Denno are on at point?

Mr. Michael R. Juviler: It could enter into the picture if the defendant and his attorney are actually, factually motivated to enter a plea of guilty on the feeling that they just can't get a fair trial, they just can't get a fair hearing.

Justice Thurgood Marshall: Wouldn't that come out in the hearing that the Second Circuit proposes, yes or no?

Mr. Michael R. Juviler: I think that the first obligation is to allege it before such a hearing should be ordered.

We cannot just presume it.

I think indeed it would be unreasonable Mr. Justice Marshall to presume that because I think in common sense as Judge Friendly pointed out in his dissent there is no reason to believe.

It's purely speculative to say that this difference between the Stein procedure, the pre-Jackson procedure and the post-Jackson procedure compelled this defendant or unnecessarily encouraged him to forgo the trial.

Justice Thurgood Marshall: Didn't Judge Kaufman slow you down a little on that?

Mr. Michael R. Juviler: He tried and he prevailed in the Second Circuit, but I think that with all respect to the opinion of Judge Kaufman, it is not persuasive and it does not overcome the fact that there was no factual allegation.

It just doesn't overcome the dissent of Judge Friendly.

Now, that the relators here in this Court, the way their brief is written urge on the Court this factual connection, this actual, factual motivation entering into the minds of counsel that they sat down with their defendants and they said, “Well the Stein procedure is not fair.

We just can't get a fair shake” but I do not see that in the petitions themselves and even if they were in the petitions, because all we have in the petition is citations to Jackson against Denno accept for Richardson who doesn't even make this claim, so in his case, it's not before the Court, but even if they were, some are resourceful defendant were to listen to my argument and comeback into a federal court with these factual allegations, I would say again these are immaterial because these convictions were based upon pleas of guilty not upon evidence.

And when these defendants pleaded guilty, it was understood by everyone in the courtroom, including every member of this Court that the New York procedure was not fundamentally unfair.

Now, the problem is raised, well perhaps an innocent man might be coerced into pleading by some improperly obtained evidence and we can't tolerate having people in prison under those circumstances.

Perhaps the police deliberately perjured themselves in testifying at a preliminary stage of a case and faced with that the defendant had no choice.

I would say that under those circumstances, where we would have merely allegations those are the reasons we have trials and either we maintain the practice of accepting pleas of guilty or we have trials in every case.

If there is a risk of an innocent man --

Justice Thurgood Marshall: Do I understand you to say that there was perjured testimony?

Mr. Michael R. Juviler: Yes, I think it was, Your Honor who ask or suggested that perhaps --

Justice Thurgood Marshall: Do you say if there were perjured testimony by a police officer and as a result of that and for no other reason, a man can't take a chance that he is still convicted and there is no way to reach it.

Mr. Michael R. Juviler: Now, then I --

Justice Thurgood Marshall: You don't have to go that far?

Mr. Michael R. Juviler: Then I think that plea should be vacated and I'm talking about a case where the man admits his guilt and he pleads guilty because after consulting with his counsel, he comes to the conclusion that he is guilty, he will admit it in Court, his conviction will be based on that plea and it just isn't worth a contest, and that brings us to the other allegations in these petitions.

First, that of Mr. Richardson because he attempts in a way to get under this rubric and say that his attorney just completely failed to protect him against the use of a coerced confession.

When Mr. Richardson pleaded guilty, the colloquy situs precluded the dangers suggested in your question, Mr. Justice Marshall.

As reflected on pages 90 and 91 of the appendix, the Court inquiry of Mr. Richardson, “Did you discuss this case fully with Mr. McCooe and Mr. Rosner,” those was his assigned counsel, “Yes sir, I did.”

“Did you understand them when you spoke to them about your case?”

“Yes sir.”

The Court then established that there were no threats made to induce the plea and no promises from a long list of public officials.

Now, the Court inquires, “Did you commit this crime?”

“Yes sir.”

“Now, did you on or about March 24, 1963 in the County of New York willfully and feloniously strike Rosalie Smith with a knife there by causing her death?”

“Yes sir.”

If we have a danger of innocent man pleading guilty then the way to attack that is in the colloquy of pleading to protect the pleading procedure as has been suggested in the Bargain case by this Court and in the McCarthy case interpreting Rule 11 of the Federal Rules of Criminal Procedure, but in neither of those cases was there one bit of a suggestion that this colloquy, this protection of the defendant must include any inquiry whatsoever from the Court as to the admissibility of evidence.

With respect to the other allegation in these petitions which include ineffective assistance of counsel and a judicial threat to induce a plea, our basic position is that the Court of Appeals deprived the District Court of a sound discretion when it overruled the denial of these allegations without a hearing and if there is to be no finality in criminal cases, no end to litigation after a conviction, then there should be no end to the sound discretion of the District Courts who are in the front lines and their colleagues in the state courts reviewing post-conviction claims for relief.

It is established that if a claim in post-conviction proceedings is vague, conclusory or palpably incredible then it can be denied without a hearing and that was overlooked by the Court of Appeals in these three cases without dwelling at too great length on the specific facts.

Mr. Richardson who claims ineffective assistance in counsel in objecting to this coerced confession, in his petition in the District Court merely made conclusory allegations at pages A78 and A82 and surely there is nothing stated there which overcomes the colloquy which I read to Your Honors.

The Court of Appeals did not say otherwise.

They didn't order a hearing on the petition for habeas corpus filed in the District Court.

They ordered a hearing on a supplementary affidavit that was attached to the appellate brief in the Second Circuit in complete disregard for the orderly procedures of federal habeas corpus, and this was over the objection of the state which we reassert in this Court that this matter in the supplementary affidavit was not presented to the District Court and it was not presented to the state courts and therefore the relator had not exhausted his available state remedies.

Justice Potter Stewart: This was submitted at the Court of Appeals, Federal Court of Appeals level?

Mr. Michael R. Juviler: Yes, it was attached to the appellate brief in 1968.

The habeas corpus petition was denied in 1965. Now, in 1966 we gather from the briefs that Mr. Richardson applied to the Second Circuit for a certificate of probable cause and there for the first time he made an allegation that his -- which is repeated in the supplementary affidavit that is attorney told him that by pleading guilty, he would not give up disclaim of the coerced confession.

I don't have that.

It is not reproduced in the appendix, but that is still part of the appellate process that was not before the District Court.

Now, our position --

Justice Potter Stewart: That would be corrected vice today in New York, wouldn't it?

Mr. Michael R. Juviler: I'm sorry.

Justice Potter Stewart: That would be corrected vice today in New York as I understand that.

Mr. Michael R. Juviler: Yes, that's why as I was about to say even if the allegations in the supplementary affidavit are true and not that they present the picture of an outstanding member of the bar, but if they are true they still do not state a claim for federal relief because they do not show that this man was completely without the effective assistance of counsel and the length of the deliberations and consultations with his counsel which are alleged to be too short are not the test of the effective representation.

Not only that, but the supplementary affidavit is contradicted by the record.

It's contradicted by the pleading minutes and there is no explanation why Mr. Richardson after allegedly having been told by his attorney that he could test his confession by a writ of habeas corpus, waited for a minimum of two-and-a-half years before attempting to do so in the federal court.

Mr. Dash was granted an evidentiary hearing by the Second Circuit on an allegation that when he appeared in Court for pleading, the judge threatened him off the record with the maximum sentence if he went to trial and was convicted.

Now, if that were true, it would establish a ground in New York State for a hearing -- for relief.

New York is very, very careful to preclude judicial threats, but 11 New York State judges before the District Court passed on that petition and said there is not enough substance here for a hearing that included the coram nobis court, five judges of the appellate division and five of the seven judges of the New York Court of Appeals and this was a sound exercise of discretion because the defendant had waited for more than three years before he brought this claim.

It was totally unsubstantiated by any affidavit from his attorney and it was contradicted in the state proceedings by the affidavit of the district attorney in charge of the case.

Justice John M. Harlan: You say there was a split decision on that.

Mr. Michael R. Juviler: Yes, there were two dissents in the New York Court of Appeals in the Dash case on this issue of the allegation as to threat.

The Court of Appeals was unanimous in holding that there was no need for a hearing as to the claim of a coerced confession and in that they were reversed by the Court --

Justice John M. Harlan: Was there an opinion written in that case?

Mr. Michael R. Juviler: There was a brief opinion written which reaffirmed long standing New York law.

Justice John M. Harlan: Who were the dissenters?

Mr. Michael R. Juviler: Judges Full and Burke I believe and it was clear why Dash brought this petition as he explains in his motion papers, His co-defendants, Waterman and Devine, who were elected to go to trial received ultimate relief on appeal because the New York Court of Appeals changed the law relating to their right to counsel after indictment during interrogation.

There was no finding that these confessions of Waterman and Devine were coerced, but the Court of Appeals anticipated the Messiah decision of this Court.

Now those men, Waterman and Devine, had an opportunity before Jackson against Denno.

They contested their confessions and they want them at the Court of Appeals.

Justice Potter Stewart: But not on the basis before he had confession?

Mr. Michael R. Juviler: No, but they attempted that but they did at least establish a record and they won.

And Mr. Dash --

Justice Potter Stewart: Is the claim made here that the -- that the confession was made after indictment?

Mr. Michael R. Juviler: Yes.

Justice Potter Stewart: So therefore, it would not only be the claim that is not a coerced confession, but also one that's inadmissible because it violates the New York rule that antedated the Messiah decision?

Mr. Michael R. Juviler: Yes, but the New York rule was not applied, I don't think at this time it was applied retroactively and to my knowledge the Messiah case has not been either, so that I don't think that would give Mr. Dash any relief but in any case it academic, he pleaded guilty.

Justice Potter Stewart: Oh, I understand that.

Mr. Michael R. Juviler: The Williams petition was held sufficient for a hearing on a claim which is quite remarkable at page 50 in the footnote to this habeas corpus petition.

It's introduced by the information that six years after the plea of guilty, Mr. Williams' assigned counsel was disbarred for overzealousness in a divorce case.

Now, when that disbarment notice was published, this petition, this claim was raised in the state court and then in the federal court that Mr. Davidson had just prior to the plea advised the relator that the charge to which the D.A. was allowing to plea was a misdemeanor not a felony and that relator did not discover the fact until sentenced on the felony.

Now, he was sentence to seven-and-a-half to 15 years for robbery in the second degree.

It is palpably incredible that he would knowing at sentencing discovering then that this was not a misdemeanor, wait for six years before informing us as to this advice from counsel, particularly a man who was no stranger to the criminal law.

The alibi claim on which the Second Circuit appears independently to have ordered an evidentiary hearing is also vague and palpably incredible.

This claim is that Mr. Williams told his attorney that he had an alibi, that he was out of the jurisdiction and the attorney disregarded this.

There is no statement as to where Mr. Williams was, there is no corroborating affidavit and Williams waited in this instance eight years before he first informed any one of this alibi.

Now, if this attorney had suggested a trial on such an alibi then Mr. Williams would be here saying that the attorney was incompetent.

What is the hearing going to be into in the Williams case on this alibi?

What is the purpose of this hearing?

And I think these three petitions with their -- these additional allegations on which hearings have been ordered raise a very serious question in the administration of justice.

How much are we going to ponder over past cases when the administration of criminal justice is currently in crisis?

The wolf is at the door and the Court of Appeals for the Second Circuit has said that we have to go poking in the chest in the attic to see whether there something amiss there and I think that the ordering of hearings on these allegations weakens and deprecates the great writ.

Chief Justice Warren E. Burger: Thank you, Mr. Juviler.

Mrs. Oberman.

Argument of Gretchen White Oberman

Ms Gretchen White Oberman: Mr. Chief Justice and may it please the Court.

There are two primary things that I would like to address myself to because I feel that there has been either misstatement or confusion about first of all, the facts in the case and secondly, just precisely what the court below did do in each of these cases and what it did not do.

First and foremost, I think that it is clear that Second Circuit did not announce a new rule of law in any of these cases.

It merely reinterpreted and severely limited one of its own cases, United States against ex rel. Glenn against McMann.

Now, this was a very long overdue step because the Glenn decision was at odds with decisions in this Court as well as with the decisions in the Courts of Appeal of at least five other circuits.

Secondly, the court below in limiting this Glenn decision acknowledged that under certain circumstances, the existence of a coerced confession could coerce a guilty plea.

The surprising thing about this recognition is that it came so late.

But it cannot be stressed enough that the Second Circuit did not hold that the bare allegation that a confession was coerced entitles a habeas petitioner either to a hearing or to relief.

A certain specified cause an effect relationship has to be alleged and has to be proved and the cause an effect relationship varies in each one of these cases.

In the Richardson case and to an extent in the Williams case, the reason that the defendant was prevented from raising his confession claim at trial was because he was represented by counsel who was incompetent or negligent and refused to lift a finger to help him.

According to the allegations, now we're on the pleadings here, and this is not a question of what has been proved, these are un-controverted allegations.

In the Dash case, the cause an effect relationship between the coerced confession and the guilty plea was that counsel was unable to do anything meaningful to prevent the coerced confession from being used to convict the defendant at trial and the reason for this was Jackson against Denno or Stein against New York, I should say.

The third thing that I would like to point out is that the decisions below do not automatically call into question the validity of all guilty pleas no matter how painstaking and how complete the colloquy at pleading has been or despite the fact that the defendant has been represented by counsel.

The Second Circuit merely held I think virtually every other Court in the country that in certain instances where you have off the record or allegations of off the record facts in a petition even a full colloquy at pleading and even representation by counsel do not create an irrebuttable presumption of voluntariness of the plea.

Moreover, the Second Circuit recognized that both these factors, the completeness of the colloquy and representation by counsel are entitled to great weight in the ultimate assessment of the voluntaries of the plea.

And in this connection, it should be noted that the circuit held that both the belief -- the burden of pleading that is the burden of going forward to make a showing to get a hearing and the burden of proof at the hearing of each and every allegation in the petition was upon the habeas petitioner.

Now, it must be also stressed that each of these cases came up for review on the pleading and the issue for decision in each case was whether the facts alleged to the each petition's stated claims which have prove at a hearing either in state or federal court would entitle the petitioners to relief under the Fourteenth Amendment and the Second Circuit gave New York the option of holding the hearing that it envisioned because the matter was remitted to the District Court and the District Court was to hold the hearing only if New York did not hold the hearing.

In each case, the circuit held that if the allegation were proved at a hearing then pleas in each case were involuntary and for this reason, a hearing had to be held.

It should be noted here that the state's position and in all of these cases where they took the position because at least in one case no response was filed in the District Court was that the allegations even if proved at a hearing would not entitle the respondents to relief.

Justice Byron R. White: Ms. Oberman could I interrupt you a moment?

As I understand the Court of Appeals' opinions, if it were merely alleged by a petitioner that a confession was coerced from him and that that coercion in that confession motivated his plea because he thought it would be usable against him and that therefore his guilty plea was coerced.

If those were the allegations as I understand the Court of Appeals' opinions there, he would be that the entitled to a hearing.

Ms Gretchen White Oberman: I don't --

Justice Byron R. White: Let's put aside the -- I know there are other allegations in these cases but as I read their opinions that even if there weren't any allegations of incompetency of counsel, as long as he alleged there was coerced confession and if that coerced confession motivated or caused his plea and without the confession he never would have plead guilty, as long as he alleges that he can get a hearing?

Ms Gretchen White Oberman: Yes, I would have to amplify that just to a certain extent.

The circuit in its burden of pleading put upon the petitioner the obligation to come forward with whatever affidavits record proof to so much.

Justice Byron R. White: Oh!

Surely, he would have to prove his case.

Ms Gretchen White Oberman: No, no, in order to get the hearing so that the bare allegations as you have outlined.

Justice Byron R. White: Sure, alright.

Well, assume he makes a detailed allegations as to why he thinks the confession was involuntary.

Ms Gretchen White Oberman: Yes.

Justice Byron R. White: And assume he says, there weren't any -- the state had no other evidence that no other substantial evidence but the confession?

Ms Gretchen White Oberman: Well, if he made a colorable showing and if I think of that's the only way I can express it, the confession was coerced and that the confession for reasons specified was the factor which induced his plea of guilty.

Justice Byron R. White: That's all he has to allege.

Ms Gretchen White Oberman: Yes.

Justice Byron R. White: And then in Richardson you have the additional factor of allegations of incompetency of counsel, don't you, in connection with advising the plea?

Ms Gretchen White Oberman: In Richardson, you have the factor of incompetency of counsel which I think comes to bear in two places, that it is an independent ground or claim for relief beyond the coerced confession claim and vis-à-vis the coerced confession claim, counsel's failure to investigate and counsel's wrong advice and it was clearly wrong under New York law and under federal law at that time about the time for raising the confession was the reason the nexus, the causal connection.

Justice Byron R. White: Well, if you win, if you win, his advice was right?

Ms Gretchen White Oberman: Well, that's fortuitous circumstance that I don't think should have anything to do with decision here.

Justice Byron R. White: Yes, but I take it then on my previous question if he just alleges the coerced confession that caused his plea, he gets a hearing even though he freely concedes that his counsel was competent.

Ms Gretchen White Oberman: I'm afraid I have to divide that question into two parts and then answer each one.

I think that before the decision in Jackson against Denno, if there is no challenge to the competence of counsel, but there is the allegation that the reason that the confession issue was not raised at trial was because of the Stein procedure and all of the chilling effects that that procedure had upon or the distorting effects that that procedure had upon the fact finding process and the guilt determination.

The fact that the defendant was represented by competent counsel under the point of view that circuit took doesn't preclude him from a hearing.

Now, after Jackson against Denno, you have a different kind of problem because as Mr. Juviler has pointed out, in New York at any rate, you have the full hearing on voluntariness of the confession that's held prior to trial, at that point the defendant has the option of the other.

Justice Byron R. White: If he takes advantage of it?

Ms Gretchen White Oberman: Yes and after Jackson against Denno the deterrent effect or there is no unconstitutional procedure which could deter a defendant from going to trial on a coerced confession.

Justice Byron R. White: But I understand -- as I understand the Court of Appeals' opinion, it did make incompetency of counsel a critical matter in or a necessary item in ordering his hearings.

It was the allegation that the coerced confession and the connection between the confession under plea.

Ms Gretchen White Oberman: Yes, Your Honor but I believed in the Richardson decision which was not an en banc decision and a separate decision in which one of the dissenters in the en banc wrote the majority.

The connecting factor between the coerced confession and the inability to raise the confession issue at trial was -- the allegation of incompetency of counsel and counsel's mis-advise.

Justice Byron R. White: That was the -- that was the factor in the Richardson case?

Ms Gretchen White Oberman: Yes, but in Dash, it was pointed out by the Second Circuit that there was no allegation of incompetent representation by counsel.

So then the next question was, well if you have a claim that you consider a valid claim, if you feel that your confession was coerced, you have competent counsel to represent you at trial, you had your chance in it, why didn't you present that claim at trial.

And if you didn't present it at trial can we say that under those circumstances there has been a waiver because you have failed to present the claim in an acceptable state procedure.

The answer to that was Stein against New York that even competent counsel before the decision in Jackson against Denno would think long and think hard about taking his defendant to trial with a coerced confession claim under that procedure and I cannot stress enough the detrimental effect, the coercive effect that that procedure had both to counsel and to a defendant confronted with a coerced confession claim and the possibility of trial or plea.

Justice William J. Brennan: Mrs. Oberman, may I ask?

Is this to say then that if this hearing goes forward, this is in the Dash case now, not the Richardson case.

Dash is where there's been no allegation of incompetent counsel, and it is established by Dash that indeed the confession was beaten out off him.

Then are you suggesting that any advice of counsel because he was represented by counsel then becomes irrelevant to his right to relief.

Ms Gretchen White Oberman: No, Your Honor.

Justice William J. Brennan: Well, what is the relevancy of advice to counsel then?

Ms Gretchen White Oberman: I think the circuit viewed it in terms of the prime motivating factor that other circuits have talked about --

Justice William J. Brennan: Well, excuse Mrs. Oberman, let's take a concrete hypothetical.

Suppose in fact what counsel did was to say, now you say this was beaten out of you and you have some corroborating proofs that it was beaten out of you.

How about there were two police officers involved and there's going to be a question of credibility because those officers are going to deny that they beat it out of you and your witnesses are going to say they did and there's always a chance that being a fact question that the issue of credibility will be resolved in favor officers' story.

Therefore, I suggest to you that if that should happen, now you may go to electric chair and the better thing for you to do under circumstances then is to plead guilty if we can get a second degree plea.

Now, suppose that's -- those are the facts as to the advice that his counsel gave him.

Ms Gretchen White Oberman: Taking your hypothetical strictly on its facts, I think the circuit has answered the question in its opinion by saying even where of confession is coerced, a defense counsel may have -- may properly advise a defendant to plead guilty, say if there's a substantial or the evidence or if the possibility of proving the claim is minimal because of the caliber of witnesses is in so--

Justice William J. Brennan: Was that quite the question I put to you?

Ms Gretchen White Oberman: Perhaps I --

Justice William J. Brennan: Well, I'm trying to get at now is the reasons you told me, initially a hearing on the -- whether or not the confession is coerced and it is decided factually that the officers testify and I'm speaking now with the habeas hearing and here were the issue was resolved in favor of the petitioner and they said yes it was coerced and yet the counsel had said to him at the time before he pleaded guilty, these are the chances that we take.

This is an issue of credibility and if you go to trial and maybe resolved against you.

Does that -- does that defeat, what I'm trying to get at is so that's what develops.

Notwithstanding the finding at this habeas hearing is that the police did beat it out of him, it was coerced, but counsel has just told him what the chances were before he pleaded guilty and he then pleaded guilty, would you think he'd entitled to relief?

Ms Gretchen White Oberman: Well, the Ninth Circuit has held no in a very recent case.

Justice William J. Brennan: And then what would you say?

Ms Gretchen White Oberman: And I would say no also under the decision of the circuit because there are two elements.

Justice William J. Brennan: No, he's not entitled to relief.

Ms Gretchen White Oberman: Yes, there are two elements that have to be proved not only the fact that the confession was coerced, but the fact that the confession was the substantial, the prime, the main motivating force behind entry of the plea of guilty.

Now, there are of force --

Justice William J. Brennan: Well, of course the confession is in my hypothetical is not in the sense of what's involved he's getting advice from the lawyer whether or not he should take the chance on the issue of credibility as it bears on his claim of coerced confession?

Justice Byron R. White: And he was afraid of the confession that's why he pleaded guilty.

Suppose that was established in habeas corpus hearing.

Ms Gretchen White Oberman: Well, I thought that your hypothetical was that he was not -- well, perhaps I divided my own mind a little bit to finely not that he was a afraid of the coerced confession but he was afraid that his proof would not be accepted, his proof of coercion would not be accepted voluntary.

Justice William J. Brennan: No, he was -- the lawyer called in frankly as I would expect any good lawyer would. Now, look this is going whether of not a confession is beaten out, it just going to turn on whether the fact finder believes you and your witnesses or believes police and that's the (Voice Overlap) that we go to trial on this and they believe -- the fact finder believes the police you may end up in the electric chair and I think you better not take that chance you just better plead to second degree if we can get such a plea.

Ms Gretchen White Oberman: Well, I think that only what I could answer that question Your Honor is the following.

I believe as I read the Second Circuit decisions that the defendant would lose, given your hypothetical because then this could be a situation possibly were a lawyer could properly advice a defendant to plead guilty despite the confession.

I think that there are other courts as we pointed out in the brief that do not take this hard and fast line and feel that or have granted relief in cases where the attorney or the defendant or both have to take the confession into account as one factor in determining the strategy of whether to plead or go to trial and to this extent --

Justice William J. Brennan: Well then, I want to get very clear.

At least it's not your position that the Second Circuit has said that a finding at the hearing it has ordered that a confession was coerced in and of itself, entitles the petitioner to have this conviction on the guilty plea set aside.

That's not your position, you don't think the Court of Appeals said that.

Ms Gretchen White Oberman: I guess that is not my position and yes I don't think the Court of Appeals says that --

Justice Byron R. White: But I gather, you also answer that even if on the habeas hearing it shown that coerced confession was a major factor in inducing the plea that there would not be a relief.

Ms Gretchen White Oberman: No, if it -- if it were a major factor in the terms that the Second Circuit has spoken out, if the coerced confession were the prime motivating factor and not other kinds of considerations, then there would be relief but I say that the Second Circuit has taken rather a hard line with this because there are other courts which have granted relief upon a showing that the confession was coerced and that the confession was the factor to be reckoned with.

In the pleading decision I think that that I believe that the citations to those cases are at page 32, footnote 29, Zachery against Hale, Cuevas against Rundle and Smiley against Wilson where the Courts in the first two cases in granting relief say that the Court appointed counsel was forced under the circumstances to give some consideration and weight to an illegal confession.

Chief Justice Warren E. Burger: Now, bring this to something that I've been wanting to inquire about by me.

In order to decide whether it is the primary motivation, the Court is going to have to hear what other evidence the state to have, is that not so?

Ms Gretchen White Oberman: Possibly.

Chief Justice Warren E. Burger: Well, now we come to this hearing which maybe three years, nine years, twelve years after the trial and the state then is required to show that it had five eyewitnesses and if they can bring these five eyewitnesses then I suppose reasonably the District Judge might find that the coerced confession, the allegedly coerced confession, was not the primary motivation, is that a reasonably fair conclusion to draw for the moment?

Now then, suppose the state says yes, we have five eyewitnesses at the time and one of them moved to Hawaii and we can't get the testimony, two of them died and one was in Vietnam, now what kind of a predicament does that put the state in?

Ms Gretchen White Oberman: The point, I think that the dilemma that you pose is really not a prosecution or a state dilemma because it is up to the petitioner to establish that the confession was the prime motivating factor and not --

Chief Justice Warren E. Burger: The state isn't going to take the risk of just letting him hear all his evidence unless it so utterly spurious on its face that they are willing to take that risk.

The state is going to really have to prove its case to show how the total evidence balances with the coerced -- with the confession?

Ms Gretchen White Oberman: Well, I think the only answer I can give Your Honor is that the federal courts throughout the country have lived with this problem for long lengths of time that there have been --

Chief Justice Warren E. Burger: They suffered would be rather a better word for us, suffered with this problem.

Ms Gretchen White Oberman: Well, I like to think that whenever a claimant comes in to Court with a constitutional claim that it is not suffering for a district judge to hear that.

Chief Justice Warren E. Burger: 12 years later.

Ms Gretchen White Oberman: Well, in Pennsylvania against or Pennsylvania ex rel Herman against Claudy was eight years later.

I think in the Machibroda case, it was four or five years later.

We're dealing with indigent defendants who are not trained lawyers, who don't wake up right away to violations of their rights because they don't realize that their rights have been violated.

Chief Justice Warren E. Burger: We're dealing now with the cases where they had lawyers, they did have lawyers at the time these pleas were entered.

No problem with these people being in any different position because of their indigency than any other defendant.

Ms Gretchen White Oberman: Well, two of the defendants alleged that that court-assigned counsel was incompetent, that court-assigned counsel didn't protect their best interests, and those of the hearing goes forward on the allegations or it doesn't.

Now, I would like just very briefly --

Justice Potter Stewart: Just before we leave the business of what would be incompetence then involve in the hearings, in the hearings that have been now ordered under the Court of Appeals directives?

Wouldn't it be enough for the petitioners to carry his burden of proof to say well, yes I confessed and in my opinion and in my view that was coerced confession and that's what motivated my plea of guilty?

Ms Gretchen White Oberman: No, your Honor.

Justice Potter Stewart: Why not?

Ms Gretchen White Oberman: Well, first of all the Second Circuit --

Justice Potter Stewart: He knows better than anybody else in the world what motivated his plea of guilty, doesn't he?

Ms Gretchen White Oberman: Well, it's not just a question of motivation.

Justice Potter Stewart: (Voice Overlap) motivated it and it is pretty hard to disprove it, isn't it?

Ms Gretchen White Oberman: But motivation is only one of the two aspects that have to or one of the two factors that have to be proved.

The defendant must prove a real violation of his constitutional rights because the reason that he's given relief is not his subjective state of mind, it's because the state coerced a confession from him.

Chief Justice Warren E. Burger: But how do you get at that without the subjective test, Mrs. Oberman?

As justice Stewart suggested, who can say what his motivation was except himself?

Ms Gretchen White Oberman: Yes, but the motivation is not the be-all and end-all.

He can't say until the cows come home that the reason I confessed or the reason I pleaded was because of this confession.

If the confession was not extracted by physical brutality or psychological torture, he has no standing to complain.

Justice Potter Stewart: Well, what if he says, “Yes, I confessed orally to a policeman only because he was beating me with his club above my head and this did happen and I did confess orally and that's the reason I pleaded guilty.”

And then the state comes in and says, as far us we can see that there never was a confession of any kind, coerced or un-coerced.

It doesn't necessarily disprove this case, does it?

He says it happened and that he did confess and that it was a confession that was beaten out of him and that's the reason, the only reason or the substantially motivating reason that induced his plea of guilty, hasn't he proved his case?

Even though the state says, we can find any confession at all.

Ms Gretchen White Oberman: The -- I don't think so.

I don't think so.

In the least you -- this hearing is proceeding before a District Court judge.

The District Court judge could believe the defendant or the District Court judge could disbelieve the defendant and it's been my experience as a defense lawyer that the defendant has to come in with the little bit more than you've said in order to convince the District Court judge.

Justice Potter Stewart: Well, he's now a petitioner, not a defendant and he comes in and he -- unlike the defendant in a criminal case, the petitioner does have the burden of proof.

So we're talking about petitioner on this habeas corpus hearing, and -- all right, just change the situation a little bit and say that it is shown that there was a confession which was arguably a coerced confession.

And then, the state comes back and says, yes but we have this and the petitioner says, and that's the reason I pleaded guilty, this motivating reason and the sole reason.

The state responds, the Chief Justice's hypothetical case and said yes but we have this eight eyewitnesses.

Can the petitioner say, well, I didn't know if there any eyewitnesses that wasn't my reason.

I did this because of the coerced confession.

I didn't know about eyewitnesses.

So the state showing that if there were in fact eight doesn't defend against his claim, does it?

Ms Gretchen White Oberman: Your Honor, this may seem like a problem in the abstract, but I don't think it is a problem in the concrete situation because as I have said before --

Justice Potter Stewart: Well, we're up against the very concrete situation here and I'm just asking what kind of a hearing this is going to be or many hundreds of hearings?

Ms Gretchen White Oberman: Well, I would rather -- I would like to answer that by saying that there have been hearings of this sort and perhaps the latest case is French against United States which is Ninth Circuit case were after a full hearing the District Court judge found that the confessions were taken in violation of both Miranda and Escobedo that they were illegal confessions, but also found that the illegal confessions did not induce the plea because there were a number of other facts in the case.

Justice Potter Stewart: Wouldn't you have to show that the petitioner knew of all those facts?

Ms Gretchen White Oberman: I don't --

Justice Potter Stewart: It's not sufficient for the state to show that there were eight eyewitnesses.

It has to show that the petitioner knew there were eight eyewitnesses.

Ms Gretchen White Oberman: I don't believe that this is how it has been done.

I think that's the only --

Justice Potter Stewart: But if the theory -- that's the theory of the Second Circuit Court of Appeal, isn't it?

The confession has to be shown to have been motivated by the existence of a -- the plea has to be shown to have been motivated by the existence of a coerced confession and that has to do with subjective motivation, so you have to show what was in the mind of the petitioner and what he had knowledge at the time of the plea, isn't that right?

Ms Gretchen White Oberman: Not precisely because I think the theory of every other case that we cite in the appendix to our brief is also of substantial motivation theory, but for substantial motivation prime inducing factor and you don't have to psychoanalyze the defendant at the hearing to come to the result.

It just -- it hasn't proved that much of a problem in practice.

I think that that's my only -- the best answer that I can give.

Courts have been doing this for a long time and --

Chief Justice Warren E. Burger: Under this standard?

Ms Gretchen White Oberman: Yes, Your Honor.

I think it is precisely the same kind of standard announced in every other circuit.

Substantial motivation, but for prime factor, language is imprecise and people struggle with a word that shows cause an effect, prime cause an effect.

Justice Potter Stewart: Well, the old standard was is this plea voluntary or involuntary the plea of guilty?

I'm not talking about any confession.

Is this plea of guilty voluntary or involuntary and generally speaking the test has been was it made intelligently, informingly and with the advice of counsel, by a man competent to make it?

Now, that's been a general test, conventionally, is that correct or am I all wrong?

Ms Gretchen White Oberman: Well, I think the test has been yes whether or not the plea was voluntary but what is voluntary.

Justice Potter Stewart: Yes, exactly that's where the horse is buried, what is voluntary?

Now, here the new thing about these cases is as I understand it that the Court of Appeals for the Second Circuit has now said even though a plea is made voluntarily according to the conventional test, with all the information of the facts with the advice the counsel, by a man competent, nonetheless it could be set aside if it were substantially motivated by the existence of an involuntary confession.

Have I misread the Court of Appeals' opinion?

Ms Gretchen White Oberman: With the all due difference Your Honor, I don't believe that that was the basis of the decision that all.

The genesis of this whole case came from Glenn against McMann.

Glenn against McMann was a decision which says -- which said that a guilty plea was a waiver of all prior non-jurisdictional defects and refused to recognize the other side of the coin which was that an involuntary guilty plea is a nullity and I think that since Chambers against Florida and Herman against Claudy, Walker and Johnson, Waley and Johnson, this Court has taken into account the pressures brought to bear upon the defendant to get him to plead and specifically that one of those pressures could be the existence of a coerced confession.

Justice Potter Stewart: I'd understood those other cases, at least the ones which I'm familiar, were posted on the proposition that the coercion continued up to and through the time of the plea.

Ms Gretchen White Oberman: I don't think so.

Justice Potter Stewart: Which is presenting quite different thing than a voluntary plea made in the light of the fact that there had been a confession it can be set aside.

Ms Gretchen White Oberman: But voluntary is the conclusion that we're all after and when you say voluntary plea, I must take exception with you because I think all you have in these cases are pleas of guilty and whether they're voluntary or they're presumptively voluntary, let's say because you have a presumption of regularity and the earmarks of voluntariness were there.

Now, even in your two confession cases, the second confession can have all the earmarks of respectability, but something might have happened to that defendant before that made it impossible for him to do anything except to utter the second confession of guilt and that's our understanding of the rationale behind the circuit decision.

Pleas don't come out of thin air.

Pleas our caused -- just as jury verdicts don't come out of thin air.

Jury verdicts are predicated upon what goes before the jury, pleas are predicated upon what happens to a defendant between the times he's arrested and between the time he comes to court.

Chief Justice Warren E. Burger: Doesn't it sometimes have something to do with what happened before he was arrested?

I can't quite follow your statement that it flows from what happened between the time he was arrested and the time he comes to court.

Ms Gretchen White Oberman: Well taking -- yes.

Chief Justice Warren E. Burger: Suppose you have -- suppose you have, this may seem a very elementary question, but it maybe needed to clear it up.

Suppose that a man robs the supermarket and there are 29 people seen him and all 29 are ready to come in the court, his lawyer interviews all these witnesses whose names are given to him by prosecutor and they all say, yes this is the man and I can identify him.

So his advice to the man is you better plead guilty.

Now, he is coerced, is he not?

Ms Gretchen White Oberman: No.

Chief Justice Warren E. Burger: By the facts he is compelled to come to the conclusion that he better take the best plea he can get, is he not?

Ms Gretchen White Oberman: No, he has a perfectly free choice at that point.

He can go to trial --

Chief Justice Warren E. Burger: What's the difference between the free choice in the one case than the other if you will?

Ms Gretchen White Oberman: I can't see a free choice when you have an attorney, say in Richardson, the allegations were this.

I was picked up.

I was subject to physical and verbal abuse.

I confessed my guilt to a crime I didn't commit just to stop the beating.

I wanted to call a lawyer because I knew a lawyer.

They wouldn't let me call a lawyer.

I was assigned a counsel, a court-assigned counsel to represent me in a capital case.

He came in to see me for a ten-minute conference and he said to me, “I'll get the same amount of money no matter what happens to you,” talked to him for ten minutes.

When Richardson and came to Court told the attorney he wanted to go to the trial, he didn't want the plea that was offered because he only confessed since the confession had been beaten out of him.

The attorney said, “This isn't the proper time to raise the confession.

You go ahead and take the plea and save your life and bring it up later by habeas corpus.”

Well, that was completely wrong advice.

If this is a voluntary plea --

Justice Potter Stewart: It turned out to be a very good advice, didn't it, so far as the Second Circuit held?

Ms Gretchen White Oberman: Fortuitously only, Your Honor.

It could have been a very bad advice.

Justice Potter Stewart: It wouldn't have mattered.

Ms Gretchen White Oberman: It was -- you can't escape the fact that it was wrong advice at the time.

The Nicholson case in New York as we point out in the brief was decided a year before and Nicholson set a guilty plea as a waiver.

You can't plead and raise a coerced confession claim.

This man says, I wanted to tell a court what those police did to me and my attorney said to me don't do it now.

Let's go ahead, let's get it over.

Justice Potter Stewart: Each one and then there was, Richardson as I understand it turned down the original offer of the guilty plea, opportunity to plead guilty to the greater charge and he negotiated plea was, a bargain was then made that he plead guilty to lesser your charge, lesser, lesser degree of the same offense, is that it?

Ms Gretchen White Oberman: The offer of a plea to lesser degree is not an uncommon offer in New York.

Justice Potter Stewart: Or anywhere else.

Ms Gretchen White Oberman: Secondly, it could very well be that everything that Richardson says can -- just won't wash at a hearing.

Perhaps the reason that he pleaded was because of the offer of a lesser plea but the circuit recognized this, the circuit said this is a question that can only be resolved after a hearing.

We can't decide this on the pleadings.

But my point is that --

Justice Thurgood Marshall: Is there anything in the pleadings that says, that New York State was going to use that alleged confession?

Ms Gretchen White Oberman: No, Your Honor and there's nothing in New York State's answers that say that they weren't.

Justice Thurgood Marshall: You sought the kind of burden, aren't you?

Ms Gretchen White Oberman: These cases are little bit --

Justice Thurgood Marshall: Let me put it in another way.

What constitutional right was violated when that policeman beat him up?

Let's assume that he did.

What constitutional right was violated at that stage?

Ms Gretchen White Oberman: Well, I believe that there is a -- well, at that stage --

Justice Thurgood Marshall: Isn't it true that it doesn't become a constitutional right unless when it's presented as evidence?

Ms Gretchen White Oberman: I don't think so, Your Honor.

Justice Thurgood Marshall: What right was violated when they beat him up to get a confession?

Ms Gretchen White Oberman: I will.

I would -- what comes into the mind is First Amendment, Fourteenth Amendment, we just can't permit this kind of thing.

Justice Potter Stewart: That's due process of law.

What you can't permit is the admission of a coerced confession in the Court of law of criminal prosecution.

Justice Thurgood Marshall: You can have the policeman convicted or you can sue him for damages but what constitutional right is violated if the state never uses the alleged confession?

Ms Gretchen White Oberman: But the point here is that if it was a motivating factor to induce a plea, the state had the benefit of that wrong its police officers committed in that back room of the station house.

Pleas --

Justice Potter Stewart: Do you assume that a state was going to use evidence of violation of the Constitution?

Ms Gretchen White Oberman: I don't make the presumption one way or another.

Justice Potter Stewart: (Voice Overlap) I should think the presumption would have to be the other way, wouldn't it?

Ms Gretchen White Oberman: I'm sorry Your Honor I don't agree.

The state made this argument in their brief and our counterargument to that was there has been case after case in which they did introduce it and I think in this respect --

Justice Potter Stewart: Now, do you know how many cases there may have been when they didn't because that would never be a matter of record.

Ms Gretchen White Oberman: That's right and this is something that's pointed out that I think very cogently by Professor Oshiler (ph) in his University of Chicago Law Review article where he says that sometimes, compromised police are offered by the prosecution to cover up constitutional weaknesses in their case and I would think that the extent to which it could be shown by a petitioner that he was offered a plea to a lesser degree in his case because the prosecuting attorney was worried about the legality of his confession to that extent bad faith is present.

Chief Justice Warren E. Burger: But then when a close question, a choice is made, why is not that the end of it?

You just posed a hypothetically close case that it may or may not be admissible.

Why isn't the choice then final, instead of having to have a district judge review it eight, ten or 12 years later?

Ms Gretchen White Oberman: In these cases, I think the petitions themselves cry out as to why the choice is not final.

Each man said, I was coerced into confessing to a crime I did not commit and I pleaded because I had no other alternative and if the law's ears are closed to this kind of plea, just for the name of finality, I think that we haven't gained anything.

The other way, okay we have to work a little bit harder but it's worth it in order to uncover the one instance of injustice that may exist or the five or the ten to the 20 and there are -- the plea is the least circumscribed of all procedures upon which a conviction is predicated and what goes on behind the scenes may not be that severed.

I would just like to turn to the Williams petition for a moment because I think that Mr. Juviler misstated Williams' claims to a certain extent.

Williams alleged that he was 20 years old when he was arrested that he was held without booking, he wasn't informed of his rights, he was handcuffed to a chair, he was beaten, he had no food or sleep because of this he confessed and alleged that to confession was false.

He said that he was initially offered a plea but he refused to plead and refused to plead guilty but his attorney told him that the plea was merely to a misdemeanor and Williams alleged that the judge at pleading never told him that the crime he was pleading to was a felony.

Well, the state never produced the Williams hearing minutes, so we don't know whether or not the trial judge informed him.

Justice Potter Stewart: And what was the offense?

Ms Gretchen White Oberman: Robbery.

Justice Potter Stewart: Larceny or burglary?

Ms Gretchen White Oberman: Robbery.

Justice Potter Stewart: Robbery under the statutory.

Ms Gretchen White Oberman: Now, Williams also alleged that he told his attorney that he had an alibi defense and the attorney refused to raise at a trial were also as Mr. Juviler before pulled out of the thin air.

The only fact, one significant fact that I think that we can come forward with was a fact that appears on those so-called DCI sheet which the Attorney General annexed to their answer in District Court which shows that Mr. Williams in fact on a prior date had been identified as being in Dayton, Ohio in Court on a day when he was in jail or in New York City in Court on the day when he was in jail in Dayton, Ohio and that factor in itself gives one a little bit of disquiet.

So that again what the circuit did in this Williams case was to look at the allegations to say, do these allegations, state of claim which have proved at a hearing would entitle the petitioner to relief and I think that the answer is if these allegations were proved at a hearing, there is not one court in the country that could say that this was a voluntary plea.

This was a plea that was produced not because the defendant freely and voluntarily acknowledged his guilt but because of factors outside of his control which were brought to bear on him and he was left with no alternative.

Justice Thurgood Marshall: What about the past statement that he did kill the woman?

Ms Gretchen White Oberman: Now, this was Richardson, Your Honor.

And in there --

Justice Thurgood Marshall: Yes, what about that?

Ms Gretchen White Oberman: I think and I --

Justice Thurgood Marshall: Before he went, you say the court has went that far, he said on the other day, yes I'm guilty and everything but then he says to a specific crime and he says yes, I did it.

Ms Gretchen White Oberman: If the confession was involuntary and if the confession was the reason that he made this in-court admission then that in-court admission is tainted and I think that here I must cite Harrison against United States where a similar kind of situation was considered because in that case, the defendant had made a confession which was introduced into two evidence at the first trial and the defendant took the stand in order to counter certain statements that were contained in the confession.

When the confession was ruled involuntary, the state sought to introduce the in-court admission at the second trial.

Justice Thurgood Marshall: We're not dealing with use in that statement except in a colloquy between you and me.

Couldn't he have said when he said did you kill this woman, could he have said no?

He's admitted guilt to the crime and everything else but he had said no.

Ms Gretchen White Oberman: Well, it would be very difficult to say no after there is a confession and when you have an attorney who is not willing to --

Justice Thurgood Marshall: But he could have said no.

Ms Gretchen White Oberman: He could have said no and the house could have fallen on his head even harder than it did fall.

Justice Thurgood Marshall: It did happened.

The judge still could have accepted the plea, couldn't he?

Ms Gretchen White Oberman: In New York, that's really not so clear because New York has a couple of cases which hold that if inconsistent material comes out at the pleading then the judge does have a duty to make further inquiry.

Justice Thurgood Marshall: Well, but he could've.

So, even he assumed that all of the other was or one side then this is on the other side, isn't it?

Ms Gretchen White Oberman: I'm afraid that I can't make two compartments and say what happened in Court was respectable even though what happened out of Court immediately before it was not.

Justice Thurgood Marshall: Well, would your submission be in trouble so far as I'm concerned if I can put it in two compartments, if I can?

Ms Gretchen White Oberman: Well, if the in-court admission is going to be isolated from everything that happened before the statements in court were made, then no collateral attack upon the plea of guilty is possible.

Chief Justice Warren E. Burger: Suppose instead of just asking the question as was put here, did you commit the crime and getting an affirmative answer, suppose the trial judge taking the plea said, now tell me what you did and the defendant then related in great detail all of the circumstances, how to crime was planned and executed, would you say -- would you make the same arguments with reference to the possibility of an alleged coerced confession that you now do?

Ms Gretchen White Oberman: Yes, Your Honor because it's --

Chief Justice Warren E. Burger: In other words, then the issue does not have anything to do with guilt or innocence, but only with what led the man to decide to make the plea?

Ms Gretchen White Oberman: No, guilt or innocence is relevant to a certain extent, but I don't think it's dispositive because in all cases where the voluntariness or the intelligent nature of a plea is considered, the allegation that a man is innocent to is not critical because we are arguing due process.

Chief Justice Warren E. Burger: You're now speaking though in the context of case towards being tried and the question of the use of the confession is involved, isn't that quite different when you come to a plea of guilty?

Ms Gretchen White Oberman: No, Your Honor because a plea can be coerced even from a man who is guilty and in that -- in a such a case the Due Process Clause does not permit that plea to stand.

If a plea is coerced because let's say a judge tells a defendant I know that you're the man that did it and you got a trial and waste my time and you're going to get 60 years whereas if you plead I'll give you consideration and then man pleads, that's not a voluntary plea even though the man might be guilty and that plea is in violation of due process of law because we have two values that we're concerned with.

The reliability of the fact finding process, the pleading process and also the value of making this process one that comports with due process of law.

Chief Justice Warren E. Burger: How does that value to come in to play when the man has stood before the judge in open courtroom, and spent 15 minutes describing in detail how he committed the crime when there can be no possibility that a policeman or anyone else is going to beat him with the club in the presence of a judge?

Ms Gretchen White Oberman: But if his freedom of choice has been removed, if he can make no other statement because of what happened to him before the plea was entered, then the in-court admission is as tainted as the out of court admission and I think that this I can only again cite to Harrison because I think this was the consideration which underlie the Harrison case.

There was no question about the truthfulness or untruthfulness of the admissions made on trial in that case.

The question was whether or not those admissions were the fruit of a poison tree, and this is precisely the way I see.

The plea situation itself was the in-court admission at the time the plea was taken a fruit of the poison tree and the poison tree being a coerced confession in all of these cases.

Justice Hugo L. Black: What was the evidence, state evidence on which you say it was a coerced plea?

Ms Gretchen White Oberman: A coerced plea?

Justice Hugo L. Black: Yes, what was the evidence to support that?

Ms Gretchen White Oberman: Well, in each of the three cases there were independent or separate allegations.

Justice Hugo L. Black: I'm not talking about the allegations.

What was the evidence?

Ms Gretchen White Oberman: I don't know, Your Honor because there has never been the hearing.

We have only that the petitioners allegations and --

Justice Hugo L. Black: What was the allegation of coercion?

Ms Gretchen White Oberman: The allegation -- (Voice Overlap)

Justice Hugo L. Black: Mere existence of a fear that he might be convicted because of the coerced confession?

Ms Gretchen White Oberman: Well, in -- the allegations vary from case to case because each case was brought separately.

These were not three cases that were brought together.

They just came sort of went their way up together.

So that in Richardson, the first case you have a man who's on trial for a capital case.

He alleged that he was questioned, beaten and that the reason that he confessed to the police was to get them to stop beating him even though he hadn't committed the crime.

He alleged that he was given court-assigned counsel who refused to do anything to prepare for trial and who also affirmatively mislead him about the time for raising the issue of coerced confession and Richardson said in effect because of the coerced confession, because my counsel didn't do anything for me, I had no choice other than to plead guilty.

Therefore, I pleaded and I made the admissions that I made in Court.

In Dash, you have a defendant who was arrested after he was indicted.

Justice Hugo L. Black: So, he put himself up to prove two separate statements, one was that he was beaten and coerced about beating and to a confession.

The second that his lawyer had advised him to plead guilty.

Ms Gretchen White Oberman: No that his -- that his lawyer refused to do anything to prepare the case to take to the case to.

Justice Hugo L. Black: Did he say that the charge that he'd made anything complain about his lawyer in court?

Ms Gretchen White Oberman: No, there was no allegation about the complaint but the Mr. Justice Black, this is -- the complaints to court are really the exception rather than the rule.

With the kind of client that we have legal aid society in New York City represent, people don't know enough to complain about their rights.

Justice Thurgood Marshall: Well, isn't it true that about what percentage of your people that come to legal aid complain about ineffective counsel, including legal aid, what percentage, about 90, isn't it?

Ms Gretchen White Oberman: Oh, I wouldn't think so, Your Honor.

Justice Thurgood Marshall: Well, if the petitions filed in the Southern District about how many complains ineffective counsel?

Ms Gretchen White Oberman: I haven't seen at that often and I've been --

Justice Thurgood Marshall: Where is and if in order to sustain your position, do we have to say that charge of ineffective counsel of itself will get this relief?

Ms Gretchen White Oberman: No, not a charge.

You can't make a conclusory allegation of ineffective assistance of counsel.

Justice Hugo L. Black: What it is that he didn't do anything is rather conclusory?

Ms Gretchen White Oberman: Well, that there was -- here you have a ten-minute conference taking the allegations on their face un-controverted an allegation of a ten-minute conference between an attorney and a client in a capital case and there are at least --

Justice Thurgood Marshall: Do you have any doubt that was told to any judge in New York State, he would have given a continuance?

Is there any doubt in your mind?

Ms Gretchen White Oberman: But yet you have a case in the Ninth Circuit where the same thing happened.

The defendant didn't complain and he only got his relief on a writ of habeas corpus years after the fact.

Justice Thurgood Marshall: I'm talking about New York.

Certainly, a judge wouldn't call someone into trial who haven't seen his lawyer more than ten minutes.

You're not going to say that, aren't you?

Force him to try?

Ms Gretchen White Oberman: But still and no complaint was made and possibly at a hearing the fact that no complaint was made might be considered dispositive either of the truth or falsity of the defendant's allegations afterwards or may not but that's something to be considered at a hearing.

Justice Thurgood Marshall: Was that litigated in New York Courts?

Ms Gretchen White Oberman: I beg your pardon?

Justice Thurgood Marshall: Was it litigated into post-conviction in New York Courts?

Ms Gretchen White Oberman: There was never a hearing in anyone of these three cases in the New York Courts?

Justice Thurgood Marshall: Was it alleged?

Ms Gretchen White Oberman: Yes it was, I believe all of these allega -- all of these claims were alleged and Mr. Juviler's bringing in exhaustion of state remedies on oral argument.

Justice Thurgood Marshall: You believe it but is it here in the record?

Is it here in the record?

Ms Gretchen White Oberman: Yes, Your Honor.

Justice Hugo L. Black: What happened in the New York Courts?

Ms Gretchen White Oberman: That there were post-conviction -- that there were post-conviction remedies sought probably coram nobis in all cases.

Justice Thurgood Marshall: Well, are the papers here?

Ms Gretchen White Oberman: No, Your Honor.

The state never made the papers a part of the record below.

Justice Thurgood Marshall: Well, you could have, couldn't you?

Ms Gretchen White Oberman: Your Honor, we were assigned in the Circuit Court of Appeals at which point the record was fixed.

Justice Thurgood Marshall: You didn't make any effort to get that?

Ms Gretchen White Oberman: No, Your Honor.

Justice Thurgood Marshall: So, if we want to see it, we'll have to go find to what?

Ms Gretchen White Oberman: The papers were not before the District Court and that's the way the cases came up.

Justice Hugo L. Black: Are all three charged with the same crime?

Ms Gretchen White Oberman: No, Your Honor.

Justice Hugo L. Black: Separate crimes?

Ms Gretchen White Oberman: Separate crime, Richardson --

Justice Hugo L. Black: Separate places?

Ms Gretchen White Oberman: Yes.

Justice Hugo L. Black: Separate times?

These are all three charges and a lawyer had made the same false statement?

Ms Gretchen White Oberman: No, Your Honor.

The allegations are different in each case.

The allegations that I gave you before were the allegations in the Richardson case.

The allegations on the Dash case are completely different because it wasn't -- Dash never challenged the competence of his attorney.

Dash said that the reason he didn't go to trial and raised the coerced confession claim was because he had an -- the only trial procedure given to him by New York was an unconstitutional one and that the failure to invoke an unconstitutional procedure is not a waiver.

Williams alleged that his attorney didn't investigate the alibi defense.

I see that my time is over.

Chief Justice Warren E. Burger: Thank you, Mrs. Oberman.

Rebuttal of Michael R. Juviler

Mr. Michael R. Juviler: As Mrs. Oberman says, it's very difficult to assess the competency of counsel and it's rarely required that a federal court do so.

What I would venture to say that if Mr. William's attorney had attempted to rest on alibi defense at trial on the defendant's fingerprint record --

Justice Hugo L. Black: What was it --

Mr. Michael R. Juviler: If Mr. Williams attorney had attempted to base an alibi defense at trial on his client's fingerprint record, then the attorney would have come to the attention of the appellate division long before that divorce case.

This fingerprint record merely shows that two persons with the name William McKinley or Williams McKinley or McKinley Williams were in custody, one in Ohio and the other in New York and it expressly states that there are no fingerprint cards to support this statement.

Nor it must we assume that the Richardson petition even with the supplementary affidavit establishes ineffective assistance of counsel.

The defendant Richardson was charged with a double killing by stabbing, two first degree murders.

The attorney secured for him a plea of guilty to one second degree murder and Your Honors will recall from the pleading colloquy that his client unequivocally admitted his guilt of this crime.

Justice Hugo L. Black: What was he charged for admitting?

Mr. Michael R. Juviler: He was charged with stabbing to death two people at the same time, and he admits in his motion papers before this Court that the police knew that three men had seen him in the company of the deceased pair before they started an altercation which led to their death.

He admits that he had blood on his clothing and he admits that these people who died were his relatives and he further acknowledges that he gave the police a false alibi prior to the initiation of the coercive tactics which he now alleges, and he attributes this false alibi to his desire to avoid getting these three men in trouble.

Further, Mr. Richardson acknowledges that he did have two conferences although they were brief with his attorney respecting the admissibility of his confession and the attorney came to a reasoned decision that it would be best or that it was not -- he was not going to succeed if he attempted to keep it out of evidence.

The only defense tendered to any court at any stage of the litigation against Mr. Richardson, is that in his District Court habeas corpus petitions which is surely a very weak foundation for a defense to a first degree murder charge.

At the time of the altercation Mr. Richardson alleges involving these two persons his relatives, I was the only other person present and when they drew knives and started stabbing at each other I tried to stop them and break them apart but I couldn't, I only succeeded in getting my clothes bloody.

They took me to the station house and I tried to explain what happened as far as I knew and showed them my bloody clothes, then they booked me on homicide.

Justice Potter Stewart: That was not in New York City or the state, is that Buffalo or what?

Mr. Michael R. Juviler: No, that was New York County.

Justice Potter Stewart: Richardson I thought was --

Mr. Michael R. Juviler: Yes, New York County.

Justice Potter Stewart: -- in the northern district?

Mr. Michael R. Juviler: No, Richardson -- the petition was in the Northern District.

Justice Potter Stewart: Because that's where he was incarcerated.

Mr. Michael R. Juviler: That's right.

Chief Justice Warren E. Burger: I think your time is up, Mr. Juviler.

Mr. Michael R. Juviler: Thank you.

Chief Justice Warren E. Burger: Thank you for you submission.

Mrs. Oberman, you appeared on behalf to Legal Aid Society that while you were not appointed by the Court, your Legal Aid Society fulfilled a function similar to Court-appointed counsel and we thank you for your assistance to the Court.

Rebuttal of Gretchen White Oberman

Ms Gretchen White Oberman: Thank you.

Chief Justice Warren E. Burger: Counsel we thank you.

The case is submitted.