BRADY v. U. S.

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Argument of Peter J. Adang

Chief Justice Warren E. Burger: Brady against the United States.

Mr. Adang, you may proceed whenever you're ready.

Mr. Peter J. Adang: Mr. Chief Justice, may it please the Court.

I represent the petitioner Robert M. Brady in the case of Brady against the United States which is on writ of certiorari to the United States Court of Appeals for the Tenth Circuit.

This case involves a denial of a motion to vacate sentence made under Title 28 Section 2255 of the United States Code.

I believe that this case presents three issues for resolution by this Court.

These are, first, whether the decision of this Court in the case of United States against Jackson will be given retroactive application to prior guilty pleas under the Kidnapping Act.

Secondly, if the decision is to be given such retroactive application, the question is what test will be formulated to determine when such guilty pleas were involuntary prior to that decision?

And finally, assuming that the Court does make Jackson retroactive as suggested and does formulate an appropriate test, how the facts of the petitioner's case fit within that test?

I would like to depart somewhat from orthodox procedure on oral argument and address myself initially to the first issue which I have mentioned and that is the retroactivity of the Jackson decision.

And the reason I'd like to do this if the Court would allow me is because I feel that this is a question which can and should be determined as an abstract proposition of law without reference to the facts of this case or any particular case for that matter.

Also, I would like to say that at this time that since we only received the Government's answer brief last Monday, we're unable to have an opportunity to file a reply brief and therefore I'd like to try to concentrate on attempting to rebut the arguments which appear in the Government's answer brief.

The Government has taken a position on retroactivity which we feel is essentially a negative argument which as a practical matter would allow very little or possibly even no retroactive application of the Jackson decision.

The Government quite directly points out in its answer brief that there are apparently two underlying purposes for Jackson.

First, to prevent discouragement of guilty pleas and deterrence or encouragement of guilty pleas and discouragement of the exercise of the right to a jury trial and secondly, to stop penalizing those defendants who do assert their constitutional rights to a jury trial and to plea not guilty.

Essentially then, the Government's argument is that we should only apply Jackson retroactively to those cases in which a defendant has pled not guilty and then tried, convicted, and sentenced to death.

We of course take the position that the first purpose which we believe is inherent in Jackson should also be given retroactive application and we have brief 3 arguments in support of this contention as alternative arguments for retroactive application of the decision to prior guilty pleas under the Kidnapping Act.

The first of these arguments we believe is that it is implicit from the language of the case itself that it should be given such application retroactively.

This Court held in Jackson that the evil in the selective death penalty provision of the Kidnapping Act was that it tended to discourage assertion of the right to plead not guilty and deter the exercise of the right to a jury trial.

Now, this evil while it wasn't necessarily coercive was held to be needlessly encouraging of guilty pleas and this, the Court said, had a chilling effect upon the exercise of constitutional rights.

That chilling effect being unnecessary was therefore excessive.

We submit therefore that the rationale behind Jackson or the implicit rationale was that if the selective death penalty provision had been allowed to remain in the Kidnapping Act, there would have been a potentiality in the future for involuntary guilty pleas and we submit that if that is recognized, then there has to be a recognition of the implicit corollary and that is that guilty pleas prior to Jackson might also have been involuntary.

And if that presumption is accepted, then I feel that Jackson had to be given retroactive application to prior guilty pleas automatically because this Court has held in the past that involuntary guilty pleas are subject to collateral attack.

Justice Byron R. White: I realize yours is a federal case, but in your retroactivity argument, do you think whatever rule that is appropriate here is also appropriate as application of Jackson to the states.

Mr. Peter J. Adang: I feel that it is Your Honor.

Assuming that we're talking about a statute with the same kind of a selective death penalty provision --

Justice Byron R. White: You are not concerned for that I recognized.

Mr. Peter J. Adang: Well, I believe that it should be applicable postulating that we have the same kind of a statute and the same kind of selective death penalty provision, I would submit that it should be applicable to the states.

The Government has made an argument in rebuttal to our contention on retroactivity that when this Court stated in the Jackson decision that not every defendant who pleads guilty under the Kidnapping Act to a capital indictment does so involuntarily.

This Court implicitly rejected any contention that prior guilty plea should be open to collateral attack.

We feel that the conclusion hardly follows from the language of the case.

We feel that all the case says is that the Court was not going to say that the selective death penalty provision was necessarily coercive because that would have meant invalidating all prior guilty pleas automatically.

We submit that the Court merely was recognizing that some guilty pleas could be involuntary in the future and the selective death penalty provision then left in the Act, and as I stated before, I think the implicit corollary is that some guilty pleas in the past could also have been the involuntary.

And for that reason, we submit that Jackson should be, under the language of the case applied retroactively to prior guilty pleas.

Now, in alternative argument which we have made is that under the doctrine of absolute retroactive invalidity of an unconstitutional statute, there should also be retroactive application to prior guilty pleas.

And because of the time limitation on this argument and the fact that the Government hasn't made any response to this contention, I'm going to skip over unless the Court has some question.

Another argument which we made is again an alternative argument and the Court had heard it yesterday and that is that under prior decisions of this Court on the retroactivity question, Jackson should also be applied retroactively to prior guilty pleas.

These decisions are discussed in detail in our brief in chief at pages 28 through 32 and I'm sure they're more familiar to the Court than they are to me so I'm not going to discuss them in any detail except to mention that the Court did say in the case of Linkletter against Walker that there are three tests for determining retroactivity of prior decisions and these tests are first, the purpose to be served by the new rule.

Secondly, the extent of reliance upon the old rule by law enforcement authorities.

And finally, the effect upon the administration of justice of a retroactive application of the new decision.

In the Desist against United States, this Court held that the most important of these considerations is the purpose to be served by the new rule and it has been further held that when the purpose of the new rule is to ensure fair trials and reliable verdicts, in other words, to ensure integrity of the factfinding process, then that consideration is paramount and other consideration such as reliance by law enforcement officials or in adverse effect upon the administration of justice, deserve a little consideration.

And we submit that under that philosophy, that the Jackson decision must also be given the retroactive effect which we suggest.

The effect of the selective death penalty provision is the Federal Kidnapping Act in inducing individuals to plead guilty in order to avoid imposition of the death penalty was not merely to deny them a fair trial but it was to deny them any trial at all.

And we submit therefore that it is obvious that the implicit purpose of Jackson was to ensure fair trials if individuals wanted trials and to ensure reliable verdicts if they are going to plead guilty.

And I feel therefore that because of this and because of the authorities cited, Jackson should be given retroactive application to prior guilty pleas.

Now, the Government had made to arguments in response to this.

First, the Government has said, “If we give Jackson such retroactive effect, we're probably going to have a substantial adverse effect upon the administration of justice.”

But in the very next breadth, the Government says, “Well, there are only about a 120 federal prisoners now in custody under guilty pleas or bench trials under the Kidnapping Act.”

And then it further admits that not all of these individuals are incarcerated under capital indictments and as I will show the Court later, we're only concerned here with capital indictment situations.

So the number of individuals that we're dealing with is something less that a 120 under the Kidnapping Act.

Even if we add to this number, those individuals who are incarcerated under the Federal Bank Robbery Act or similar state statute having selective death penalty provisions, we submit to the Court that the number we're talking about really isn't that great.

And even if every one of these cases were to be reviewed on a collateral attack, we don't feel that there would be a substantial effect, adverse effect upon the administration of justice, especially when compared to the potential adverse effect that there would have been had this Court made in Miranda or Griffin or Mapp retroactive.

I had one of those decisions had been made retroactive, the effect would have been on literally thousands of prior convictions as opposed to mere handful of cases we're talking about here.

So we don't feel for this reason that the argument of the Government on a substantial adverse effect is really supported by the facts which the Government cites.

In addition to this, the Government has made another argument and this is that purpose of Jackson doesn't require that we give a retroactive effect to prior guilty pleas.

The Government says and I pointed this out previously that Jackson --

Justice Potter Stewart: Mr. Adang, does the -- is the decision in your favor on retroactivity have impact far beyond the Kidnapping Act?

Mr. Peter J. Adang: I don't believe it would Your Honor.

We'll the Kidnapping Act and the Federal Bank Robbery Act and state statutes where we do have selective death penalty provisions --

Justice Potter Stewart: Well that may be in six, seven or eight states.

So when you start counting that numbers, you can just talk about significance.

Mr. Peter J. Adang: Well, that is a possibility but I don't think that the Government has submitted --

Justice Potter Stewart: Possibility?

Mr. Peter J. Adang: I believe so, Your Honor.

As I stated --

Justice Potter Stewart: Isn't it stronger than that?

Mr. Peter J. Adang: Well, I don't know how many cases we're talking about.

Certainly I don't think it would be the kind of effect that we would have had in Miranda been made retroactive.

Justice Potter Stewart: Well since we don't know, you can't just say its 120.

No, I didn't say it was 120 Your Honor.

I didn't mean to imply that, I'm sorry.

All I'm saying is that the Government's arguments on the substantial adverse effects, simply isn't supported by the facts which they cite in their brief.

And therefore we have a nebulous question.

As I was stating, the Government has made a second argument on the purpose of Jackson and they state that Jackson should only be applied to those cases in which an individual has plead not guilty and been tried and convicted and sentenced to death.

Justice Byron R. White: That -- that was the holding of Jackson, wasn't it?

Mr. Peter J. Adang: No, it wasn't Your Honor, because Jackson -- the facts in the holding of Jackson --

Justice Byron R. White: The holding of Jackson didn't get the death penalty provision of the federal so-called Lindbergh Law was unconstitutional period, isn't that true?

Mr. Peter J. Adang: I believe that that is correct and I think that while the facts of Jackson were very limited, I think that because of the holding, it encompasses our argument and the retroactivity.

I think that the Government's argument as I was pointing out is essentially a negative argument because unless the Government has found some magical formula for resurrecting the dead, I don't think that there would be very much retroactive application under their theory.

I don't again have all of the figures on death penalty convictions but as I understand that there are only been six of them under the Federal Kidnapping Act and I understand also that all of these people have already been executed, even again if we take into consideration the possibility that there are some people now under death penalty sentences under the Bank Robbery Act which I don't believe there are because the only case that's come up in the past year has been Pope against the United States.

And the individuals who may be sentenced under state statutes on death penalty were probably not talking about a very great number of individuals and I think it's really infinitesimal and I feel therefore that essentially the Government's argument for retroactivity is that there wouldn't been any retroactivity or very little in any event.

Chief Justice Warren E. Burger: Does the rational you are urging on us have any possible application to situation where a defendant enters a guilty plea to, let us say, any lesser offense, manslaughter on a second-degree murder charge where no death penalty is involved, where he is giving up his jury trial in order to avoid a heavier penalty?

Mr. Peter J. Adang: I don't believe that it does, Your Honor, and if I may, I'll address myself to this argument because the Government has raised it in its answer brief.

The Government takes the position that even if we have needless encouragement in this case or in any case we're dealing with of a guilty plea, that doesn't equate with involuntariness or coercion and therefore, evidence of needless encouragement is irrelevant, so the Government cites in factual support of this the situations involving multi-count indictments or several indictments against the same individual or the lesser degree of the same crime.

And the Government says that in this situation, an individual might very well be encouraged to plead guilty to a lesser degree of crime in order to have some counts dropped against him or some indictments dismissed or to get a lesser degree to avoid a harsher penalty.

Chief Justice Warren E. Burger: Isn't that the whole idea underlying the concept of plea negotiations and discussions?

That's correct Your Honor, but I think that there is a definite distinction.

I think that in the plea bargaining situation, it is implicit that the penalties which the state can't create for the various degrees of crime are all valid in constitutional penalties, in other words, the state can create a crime of first-degree murder and make that penalty and sentence and create a crime of second-degree murder and make 20 years the maximum sentence.

And in that situation, the individual is definitely encouraged to plea guilty to the lesser degree to avoid the harsher penalty but as I stated, the distinction is that there, the Government or the state can create the alternatives and therefore the choice that derives from those alternatives is not unnecessarily compelling.

In other words, I would submit that there the encouragement is only incidental to the fact that there is a choice available and that encouragement is not unnecessary and is not excessive whereas in the death penalty situation, it's inherent in the opinion of Jackson that the fact there is a choice available, is itself compulsion, is itself unconstitutional.

There the Court, well it's implicit in the essence of that decision, that the state cannot create two different penalties for exactly the same degree of crime and impose the harsher penalty only when the individual chooses to assert his constitutional rights.

So therefore in that situation, because there is a choice, which is compelled and that choice is unnecessary and avoidable, the encouragement which resolves from that choice is also unnecessary and excessive.

And I believe it's sufficient to make a guilty plea involuntary.

So what we end up with this situation in the plea bargaining case, we have a choice available but that choice is one which can be imposed by the state.

The encouragement which derived from that choice is therefore not unnecessary and not excessive and not illegal.

However, in the Jackson situation or the Kidnapping Act situation, the fact that there is a choice is itself unconstitutional and therefore the encouragement which derives from that choice is unnecessary and excessive and can be avoided in the words of the Government.

So I don't think that if we're going to make Jackson retroactive as we suggest that that is necessarily going to affect the plea bargaining situations --

Justice Potter Stewart: What about the situation where there is a bargain for penalty without the bargain for a lesser degree or another crime or through the defense, is the straight charge and the plea of guilty in return for recommendation not only in certain sentence, then you are right in fact in Jackson, absolutely as you read it?

Mr. Peter J. Adang: To some extent, but in that situation, it's obvious that the recommendation is not binding on the Court so there's really no guarantee.

Justice Potter Stewart: Well, I know, but the Court accepts it.

Mr. Peter J. Adang: Pardon, Your Honor?

Justice Potter Stewart: The Court accepts it and what if it were acceptable?

What if they plead -- pled guilty and the bargain wasn't kept?

Mr. Peter J. Adang: Well, again I don't think that would invalidate the plea because the Courts have always held in this kind of situation the recommendation of the United State's attorney or the prosecutor in the case is not binding upon the Court.

So, I don't think that in that situation, the claim of the plea was involuntary would be necessary upheld.

Justice Potter Stewart: But if it were accepted, if the Court followed the recommendation, the Court asked the prosecutor what he recommends, perhaps that isn't the practice but assume it did and the prosecutor made the recommendation and it was taken and accepted and there was a plea of guilty?

Mr. Peter J. Adang: Well again, I think all I can say about is you get down to a negotiating situation or bargaining situation and we've always held that plea bargaining is not itself invalid whereas in the situation of the death penalty provision, that's there in the statute and it itself creates a compulsion.

Another analogy might be the situation where a judge on arraignment says to the defendant, “If you plead guilty, I'm going to give you 20 years of imprisonment.

If you plead not guilty and are convicted, I'm going to give you 50 years of imprisonment.

And I think in that situation, it's fairly obvious that the guilty plea of one results is invalidated.

It is involuntary.

And I think that our situation here is instead of the judge saying that, the statute says it, is you plead not guilty, the maximum penalty is the death penalty whereas if you plead guilty, the most you can get is life imprisonment.

So, I feel that that is a more consistent analogy with the situation and does support our argument.

I was going to say previously that in addition, the Government's theory if one thinks about it would be to punish the potential innocent individual and reward the guilty individual.

In other words, the Government would say, “Let's reward those people that were tried and convicted and sentenced to the death penalty by reducing their sentences.”

But let's not go into prior guilty pleas on collateral attack and thereby I think we would potentially punish individuals who might be innocent or who might be incarcerated because of the clear violation of their constitutional rights.

So, I think, for all of these reasons, Jackson should be given the retroactive application which we request.

With that, and assuming that the Court does adopt that argument, I'd like to give a brief statement of the facts of this case to present the framework for the remaining arguments which we have in our brief.

Now Brady here was indicted under the Federal Kidnapping Act on January 27, 1959 and it was a capital indictment.

He was arraigned on the following day and he pled not guilty.

On April 30, 1959, he was again brought before the judge and he changed his plea from not guilty to guilty.

And on May 8, 1959, he was sentenced to 50 years imprisonment which was later reduced by executive clemency.

On September 20, 1967 he filed his motion to vacate sentence and as I stated in his motion, he contended that his plea was coerced and nor entered freely and voluntarily and the argument he made was essentially the argument which appeared in the Jackson case.

There were other claims in the motion but they are not issue in this proceeding.

On March 20, 1968 his came on for hearing and evidence was introduced on all of the claims and the evidence and the influence of the death penalty provision is set out in our brief, I'm not going to try to go into it, it's quite detailed but I believe that the Government has admitted in it's answer brief that Brady was undoubtedly encouraged and motivated to plead guilty by fear of the death penalty and his desire to avoid the imposition of death penalty.

After all of the evidence was in the District Court denied, the motion on all of the grounds stated and it held that the Federal Kidnapping Act was constitutional and I feel that it implicitly held that because the statute was constitutional, Brady's claim that fear of the death penalty coerced him was without any merit.

On April 8th of last year, this Court handed down the decision of the Jackson case and the denial of Brady's motion was then appealed.

And the Tenth Circuit on December 17, 1968 affirmed the decision.

Now, the Tenth Circuit apparently held the decision in the Jackson case should be applied retroactively to prior guilty pleas but it went on to state that the existence of the prescribed provision did not necessarily imply that all individuals prior to Jackson who had pled guilty did so involuntarily.

And therefore, to affirm the District Court's conclusion that Brady's guilty plea was influenced and encouraged by factors other than the death penalty provision.

It held that that was supported by substantial evidence.

And the second point in our brief in chief we have proposed a test to be utilized by District Courts in determining when prior guilty pleas are involuntary.

As I stated before, we're only concerned here with cases where the death penalty was a reasonable possibility and that would only those cases where there was a capital indictment.

Once that requisite is satisfied, the next question is what kind of evidence will be necessary to show that a guilty plea is involuntary.

And I submit that the only practical and reasonable test that can be formulated is a simple test and rather undefined and that is, that if the District Court can find from the evidence, that fear of the death penalty and the desire to avoid the imposition of death penalty was a definite factor or substantial factor in motivating the guilty plea, then that should be sufficient to invalidate the guilty plea.

Now --

Chief Justice Warren E. Burger: Would there always be a definite factor, how could if not be?

Mr. Peter J. Adang: Well, I think there you can probably postulate situations Your Honor where it wouldn't be.

For example, I think maybe in the situation where an individual was indicted under the Kidnapping Act and also was indicted under the state charge for first-degree murder, he might conceivably very well plead guilty to the kidnapping charge to have the state charge against him dropped and he might not even consider the possibility of the imposition of the death penalty under the Kidnapping Act.

But really, that kind of argumentation doesn't lead anything to the question.

It kind of obfuscates the issue.

I think there are certainly can be cases wherein an individual would plead guilty not out of fear of the death penalty but out of a genuine sense of guilt.

The practical question is in every one of these cases an individual is going to claim that he was afraid of the death penalty and he get involved in an evidentiary problem.

And the question is, how do you resolve that?

And I think that the only way to do that is to give the district courts this general test and let them go from there because I think as a practical matter the District Courts aren't going to believe the testimony in every case of the defendant himself that he was afraid of the death penalty, I think they are going to require that there would be some more independent objective evidence of the influence of the death penalty.

And I think that this kind of evidence could come from the lawyers that were involved, or from possibly other witnesses who were involved at the time who would have less of a motivation to fabricate a story than to accused himself.

Chief Justice Warren E. Burger: But if there is complete implementation of Rule 11 on the judge who takes the plea makes an inquiry which develops all the facts which accumulatively would make for guilt?

Would you then say that that satisfies the test that you have advanced?

Mr. Peter J. Adang: That's postulating leaving the selective death penalty provision and I suppose --

Chief Justice Warren E. Burger: Yes.

Mr. Peter J. Adang: And I would say no, it would not because I think that question has already been dealt within Jackson because --

Chief Justice Warren E. Burger: If there is a complete demonstration on the record at the time of the plea that the man is guilty, do you say that would not be enough under Jackson?

Mr. Peter J. Adang: Well, I don't know how you make a complete demonstration on the record at the time of the plea that he is guilty.

Chief Justice Warren E. Burger: Well, isn't that the purpose of -- isn't that the purpose and thrust of Rule 11, the New Federal Rules or the Amended Rule?

Mr. Peter J. Adang: The purpose and thrust is to determine whether he is making his plea voluntarily and not whether he is guilty or --

Chief Justice Warren E. Burger: And whether there is a factual basis for the plea? That's the language of the rule isn't it?

Well, yes that's true, I stand corrected on that that is the basis of it to determine whether there is a factual basis and whether there are -- but the factual basis is a practical matter is determined by the defendant standing there and saying, “Yes, I did it” which is his guilty plea.

Chief Justice Warren E. Burger: Well, if the --

Mr. Peter J. Adang: In other words --

Chief Justice Warren E. Burger: -- district judge, if the trial judge is doing his task the way it should be done, he will not accept that, he will ask the man to recite what he did and develop on the record the full statement of all the facts that would -- a summary of the facts that would be in the case against him?

Mr. Peter J. Adang: Alright then adopting the court's line of reasoning, assuming there is some factual basis for the plea, that still does not necessarily rule out that fear of the death penalty would motivate and encourage that guilty plea.

In other words, a factual basis does not necessarily mean that the man is in fact guilty.

Chief Justice Warren E. Burger: Your argument almost carries us to the point that you can't have a guilty plea in these circumstances?

Mr. Peter J. Adang: Well, with the death penalty provision in there, I would say that is correct.

If we take the death penalty provision out, then we alleviate the problem.

And that's crux of the matter.

The death penalty provision is the fly in the ointment and I think if we take that out, then we alleviate the problem.

I see that my time is rapidly coming to a close and I would just like to summarized our last point briefly and that is that it is clear on the record that Brady's guilty plea was encouraged and motivated by fear of the death penalty and that it was a substantial factor in his plea.

His lawyers testified to this.

Other witnesses testified to this and there was evidence on the statements made by the court to him at the time his plea and time of all of these proceedings.

And the Government has admitted that there was encouragement of his guilty plea and I feel therefore that because of his evidence, Brady's guilty plea should be vacated and his motion to vacate sentence should be granted.

The Government's argument is that, even if we show encouragement of a guilty plea under our test, that wouldn't be enough to invalidate the guilty plea because it wouldn't be involuntary and the Government cites cases which extensively hold that an individual can only show that his plea is involuntary if he is able to demonstrate that fear overcame his capacity to make a rationale decision.

Now I believe that these cases are not in point, they all involve the plea bargaining situation which I have discussed previously with the Court.

And it's always been held in the plea bargaining situation that guilty pleas bargained for are not involuntary.

And I see that my time has run out.

Justice Potter Stewart: Is there anything you didn't have Jackson on the books at all, would you be here at all?

Mr. Peter J. Adang: I don't quite understand the question Your Honor.

Justice Potter Stewart: What if the Jackson decision had never been made?

Mr. Peter J. Adang: Well, if Jackson decision had never been made I think eventually if not this case, some other case would have obviously, this case was based upon Jackson because it was cited in the motion.

But if Jackson hadn't been decided I think eventually a case would have gotten here anyway because I really believe that this is an invalid procedure and I think that it does induce involuntary guilty pleas.

Justice Potter Stewart: Given Jackson Mr. Adang, what if your client had not pleaded guilty but had waived the jury trial and requested to be pleaded not guilty and request a trial before the judge and had been sentence to 50 years in the penitentiary as your client was, would you be here trying to set that aside under reasoning of Jackson?

Mr. Peter J. Adang: I think I would Your Honor, because I think that the third exercise of this right to a jury trial.

But I think in this case, that's not a consideration because here, there's evidence in the appendix that the District Court prior to the plea had indicated that he would not allow bench trial.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Adang.

Mr. Connolly.

Argument of Joseph J. Connolly

Mr. Joseph J. Connolly: Mr. Chief Justice and may it please the Court.

Post-conviction hearing in this case disclosed the following facts which should be emphasized.

Petitioner was 24 years old when he pleaded guilty to a charge of kidnapping a young woman.

An element of the charge in the Government's case was that petitioner and his codefendant raped their victim several times during the abduction.

Petitioner was represented by competent and experienced counsel.

After thoroughly investigating the case, counsel concluded, “That we just couldn't go to a jury, it would be almost sure conviction.”

Petitioner's codefendant Tafoya had given a confession which fully implicated the petitioner.

Thereafter, Tafoya decided to plea guilty and seek leniency from the Court when the ground the petitioner was the instigator and principal actor in the crime.

Faced with the testimony of his victim and other witnesses including possibly his codefendant, petitioner with the concurrence of his counsel entered the plea of guilty.

Petitioner now contends that his conviction must be set aside in the authority of United States versus Jackson.

He does not argue that his guilty plea involuntary in a traditional sense which I will discuss in a few minutes, rather his arguments rest entirely when the Court's finding in Jackson that the death penalty provision needlessly encouraged guilty pleas in jury waivers.

We must assume that such encouragement was present in this case, but the issue here is whether the needless encouragement so far undermines the validity of the guilty plea that petitioner is thereby entitled to release on habeas corpus.

The function of the writ of habeas corpus, as the Court said in Fay versus Noia is to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.

He is continued incarceration under a needlessly encouraged guilty plea and intolerable restraints.

We submit that it is not.

In our brief, we consider two theories under which the validity of the guilty plea might be affected by the needless encouragement rational of Jackson.

The first theory which I will discuss in more detail here is the Jackson announced a new standard to be applied in determining the voluntariness of the guilty plea.

This is the approach taken the Fourth Circuit in the Alfred case which was argued yesterday.

The second theory is unrelated to the concept of voluntariness, the elements of this theory are, one, that Jackson established in essence a right to be free from needless encouragement.

And two, that this right should be applied retroactively so that all defendants who had previously pleaded guilty are entitled to automatic release on habeas corpus.

Returning to the involuntariness theory, it is our submission that the determination of the voluntariness of the guilty plea to a kidnapping indictment is not affected by the decision in Jackson.

Even before Jackson was decided, a defendant's extreme fear to death sentence after trial could have been shown to establish the involuntariness of his guilty plea.

The fact that the statute created a needless encouragement added nothing to its coercive effect.

It has long been held that in the involuntary guilty plea is invalid in subject to collateral attack continued incarceration under such a plea is in the language of Noia an intolerable restraint.

We borrow from the more developed body of law concerning confessions for statement of the test of voluntariness, that is whether the fear or inducement to which the defendant must subjected was sufficient to overcome his capacity to make a free and rational decision.

But more important than a statement of a test is an understanding of the policy considerations which underlie the rule.

The first of these considerations is he overriding purpose of rules of criminal procedure to ensure the reliability of criminal convictions.

We reject guilty pleas that the product of compulsive pressures because of our concern that such pressures may have caused the conviction of one who is not in fact guilty of a crime to which he pleaded.

The second consideration which underlies the requirement of voluntariness is our concern for preserving the dignity and integrity of the individual in the criminal process.

This is the fundamental principle enforced to the Fifth Amendment privilege against compulsory self-incrimination.

It is inconsistent with our adversary system of justice to subject the individual to compelling pressures which overcome hid determination to make the state prove its case against him.

With these considerations in mind, we think that the fear of the death penalty which overcomes the defendant's capacity to make a free and rational decision renders his guilty plea involuntary.

Such a defendant who pleads guilty in a matter which precludes the death penalty is entitled to relief even if the death penalty provisions are entirely constitutional.

But there is no showing in this case of a fear to death penalty which deprived the petitioner of his capacity to make a free and rational choice.

He was represented by competent counsel who fully investigated the prosecution's case and the possible avenues of defense.

Counsel concluded that there was no realistic hope of acquittal if the case went to trial. Petitioner had been counting upon the assistance of his codefendant Tafoya and the expectation that they would both give consistent exculpatory testimony.

But when Tafoya who would giving the confession implicating the petitioner, decided to plead guilty, petitioner concluded that he had no choice but to do the same and seek leniency from the Court.

There is no indication here that petitioner was so moved by fear of the death penalty that he could not realistically assess his chances for conviction or acquittal.

This is not a case where the defendant abandoned a substantial defense because of his fear of execution.

This is a case where the defendant knew he would be convicted and freely decided that there was no reason to risk the sentence of death.

But the question remains whether petitioner's guilty plea should be viewed as involuntary because the death penalty was a needless or unnecessary burden on his right to a jury trial.

We believe as Mr. Justice White recognized in a different context in the Harrison case that the compulsive effect of the capital punishment provision is not related to the necessity or the validity of the provision.

The fact that the death penalty provision was subsequently declared invalid gives no additional reason to conclude that petitioner's will was overborne.

It gives no reason to believe the petitioner was not in fact guilty of the charge.

The needlessness of the encouragement we submit is not relevant to the question whether that encouragement produced an involuntary guilty plea.

Justice Potter Stewart: Now, what's you're saying in your argument is leaving out the question for retroactivity that the Jackson decision has now impact upon what the issue is in determining whether the plea of guilty is coerced or not coerced?

Mr. Joseph J. Connolly: That's right Mr. Justice.

I will leave to our brief the discussion of the alternative theory on which petitioner might be entitled to relief on the basis of Jackson.

Under that theory, Jackson would be viewed as creating a new constitutional right to an unencumbered choice, the choice of plea or motive trial free from needless encouragement.

If this right is given retroactive application, then petitioner and all other defendants who pleaded guilty under the Kidnapping Act or entitled to their immediate release.

Although, we doubt the Jackson decision was intended to create such a right, we analyze this theory in our brief and we conclude that retroactive application of such a right is not appropriate because of the purposes of the rule do not cast out on the accuracy or integrity of prior convictions.

Petitioner's argument that the principle of Jackson was that there was a possibility that there would be involuntary pleas in the future and hence, a possibility that there were involuntary pleas under the Kidnapping Act prior to the invalidation of the death penalty provision.

It's fully answered as it was in Johnson versus New Jersey by the fact that such defendants have available to them, a vehicle to show, the involuntariness of their guilty plea.

Finally, it may be argued that our inquiry has been too limited and that it is difficult to believe that the Jackson decision had no effect or whatsoever on previous guilty pleas.

In preparation of our brief and our argument, we have tried to explore other possible theories in which Jackson would affect past convictions.

Indeed, three different theories are presented by the three individuals in these cases argued yesterday and today.

But the difficulty in selecting any of these theories is that the Jackson opinion, if it is to be applied to previous convictions at all gives no indication as to which defendants should and should not benefit from it.

When the proper retrospective effect of the rule is thus so uncertain, we believe that the appropriate course is to decline to release serious offenders without it showing of the involuntariness of the guilty plea under established standards.

For these reasons, we submit that the judgment of the Court of Appeals should be affirmed.

Chief Justice Warren E. Burger: Thank you.

Does Mr. Adang have anymore time left?

Thank you Mr. Adang.

Thank you Mr. Connolly.

The case is submitted.