ILLINOIS v. ALLEN

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Argument of Joel M. Flaum

Mr. Joel M. Flaum: May it please the Court.

Before proceeding with argument at the suggestion of the office of the clerk this morning, I was informed that correspondent from respondent's attorney failed to reach the Court that was dated February 20 at 1970.

In that correspondence the asked that the Court please disregard the second argument entitled the case is moot, to the extent that the Court to entertain that and unless there are questions in that regard, the petitioner would stand on his brief on that point.

Chief Justice Warren E. Burger: We take a note of that problem.

Mr. Joel M. Flaum: Thank you Your Honor.

Justice Potter Stewart: Do you agree that the case is not moot, do you not?

Mr. Joel M. Flaum: Yes, we do Your Honor.

We argued at some length in our brief, it would want to – with this position I would like to go forward.

Justice Potter Stewart: That's no longer an issue between.

You keep your voice on that.

Mr. Joel M. Flaum: Yes, Your Honor I will.

Justice William O. Douglas: Now who filed this, you?

Mr. Joel M. Flaum: Yes, Justice Douglas this was filed by the --

Justice William O. Douglas: By you or by the --

Mr. Joel M. Flaum: The State of Illinois, is the petitioner.

Justice William O. Douglas: I know but I said who filed this memo on mootness?

Mr. Joel M. Flaum: The point was raised in the respondent's brief, we replied in a reply brief.

And then the letter was forth coming last week from the respondent asking that it would be withdrawn as a point.

Turning to the instant case, Your Honor, the case which we feel is one of the first impressions certainly, factually before this Court.

However, a little more than 100 years ago in the federal district court in New York, when George Davis was put on trial for perjury, shortly after the onset of that trial, the defendant became unruly.

This was during certain statements being made by the prosecutor.

The defendant was removed from the court during a motion for a new trial, the trial judge ruled.

He was absent during a part of the opening only because of his own disorderly conduct.

It does not lie in his mouth to complain of an order which was made necessary by his own misconduct.

Now, 101 years later people in the State of Illinois asked this Court to review and reverse Court of Appeals for the Seventh Circuit's decision in Illinois v. Allen.

Allen was indicted for armed robbery in 1956, tried in the criminal court of Cook County Illinois and sentenced to a term of 10 to 30 years in the penitentiary.

He is presently on parole and I am informed that parole -- from beginning of the trial, Allen insisted on his right to question jurors on the voir dire examination, embarked on deliberate and knowing course of disruption outburst and threats which finally culminated in his removal from the courtroom during most of the presentation of a states' case.

We contend the facts are not in dispute.

Justice William O. Douglas: Was he present for some part of the trial?

Mr. Joel M. Flaum: He was present Your Honor for the entire defense.

In fact, relative calm was to obtain when the defense began its presentation.

He was left; he was taken out during the voir dire examination which he was conducting.

Justice Byron R. White: So, he was not there for the opening?

Mr. Joel M. Flaum: He was not there for the opening.

Justice Byron R. White: Nor for any of the evidence in states' case.

Mr. Joel M. Flaum: Not of the states' case.

He was given opportunity to come back immediately after and before the voir dire, and immediately before the presentation of the states' case.

Invitation was extended by the trial judge through counsel to have him return.

The dialog upon his return was such that it clearly informed the trial judges.

Justice Byron R. White: There was appointed counsel was --

Mr. Joel M. Flaum: There was.

Justice Byron R. White: He was present throughout the states' case?

Mr. Joel M. Flaum: Throughout the entire states' case.

Justice Byron R. White: And did he cross-examine the witnesses?

Mr. Joel M. Flaum: He did.

Justice Byron R. White: Did he make an opening?

Mr. Joel M. Flaum: He did, Your Honor I would draw that I'm not sure if he chose to be --

Justice Byron R. White: What is the Illinois practice?

Was the opening made immediately after jury?

Mr. Joel M. Flaum: There is.

Justice Byron R. White: By both side and --

Mr. Joel M. Flaum: By both.

The reason we contend the facts in this case are not in dispute is that pleading of the Court of Appeals even in its majority opinion as well as in the Seventh Circuit -- the dissent of Seventh Circuit and the opinion -- per curiam opinion of the Illinois Supreme Court clearly on agreement on the nature of the conduct here.

Of the 10 reviewing judges who had an opportunity to examine the record all 10 agreed on the conduct only two felt constrained by the constitutional prohibition as they read it to rule that Allen was unlawfully removed from his trial.

Just briefly, the respondent threatened the life of the trial judge, ripped his attorney's file and arranged the court in such a way that the judge felt his removal was necessary.

I might add that there was a warning in all of these cases.

Some of the commentators on this area have suggested that if this rule of exclusion is allowed that it be appropriately done in areas where there are warning.

The Court of Appeals in its majority opinion found adequate warning by the trial judge and I suggest there is more than one warning included in the administrators from the trial court for the respondent to remain silent.

Justice John M. Harlan: How long is the trial?

Mr. Joel M. Flaum: Mr. Justice Harlan, I believe the trial took approximately two-and-a half days.

It was a jury trial; it was a simple case of an armed robbery of a tavern.

Allen was identified by the bartender and in turn Allen identified the victim.

The defense was insanity in -- the year-and-a-half before the defendant had been declared incompetent.

He had been restored and his defense from sanity was rejected by the trier of fact.

We are here today because we feel, we have asked this Court to review because we do not believe that the constitution in the United States compels the result which the Seventh Circuit reluctantly I might add arrived at.

We feel that the right of confrontation through its birth in the common law, certainly and its adoption by the Sixth Amendment wasn't meant to broaden the exceptions that the common law recognizes.

And this Court in 1926 in Salinger versus United States specifically mentioned that while the common law was brought into the purview of the Sixth Amendment's right to confrontation it certainly wasn't meant to make the exceptions not included in that new amendment.

This Court had in Diaz versus the United States in 1912 clearly addressed itself to the issue of waiver.

Now, in that case the murder case out of the Philippines tried on the Philippine Code, the court concluded that what they were reviewing was a substantial equivalent of the Sixth Amendment.

The court -- the issue in Diaz as presented or the claim made was that the Supreme Court -- in the Supreme Court here that he did not waive the right of confrontation but that he could not waive it.

This Court held that waiver was possible, was permissible and did obtain in that case.

In that case, the defendant voluntarily left.

The Court sent a message to the presiding judge that he wouldn't return.

Significant, we feel in this case are two things.

One, the Davis case which the only direct American president other than the prior Illinois case in 1956.

On this point was mentioned in Davis favorably -- in Diaz favorably and what is significant is that Diaz they're residing Davis which was an involuntary removal case.

We feel that if waiver is recognized, certainly the waiver by an escapee from a courtroom that the unruly defendant is not be accorded treatment different in the escapee.

Diaz makes it clear that a defendant walks out or escapes, waives his right to be present as the trial can continue.

We believe there's no difference between a defendant who walks out of the courtroom and a defendant who was ordered to move because his courtroom conduct makes a fair and orderly trial impossible.

If there's waiver in the prior case -- the former case, we think there's waiver in a latter.

Now, on the issue of whether waiver has been recognized our research indicates only the Davis case in 1869, two English cases, one a felony case, one is misdemeanor case, Rex v. Brown and Rex v. Berry, also in the 19th century.

But it's been never rejected by court of review as we confine.

Further, we suggest that this Court in dictum in the Diaz case in a subsequent case in Schneider versus Massachusetts has adopted the waiver principal and that the dictum allows for its application here.

I might add that in dictum, in Schneider versus Massachusetts the capital case involving whether the defendant was entitled to view the scene when the jury left to do that.

Mr. Justice Cardozo specifically added -- no doubt, the privilege of confrontation may be lost by consent or even at times by misconduct.

So, in the Schneider versus Massachusetts case that wasn't an issue when we --

Justice William J. Brennan: I'm just wondering, is the correct analysis really that waiver or is it rather when may a courtroom, the right to be present by this conduct?

Mr. Joel M. Flaum: Your Honor we have --

Justice William J. Brennan: It just doesn't seem to me in this instance as I understand it this respondent was funded protested.

Mr. Joel M. Flaum: Yes he did.

Yes he did Your Honor.

Justice William J. Brennan: His removal from the beginning.

Now, really he was absent voluntarily in that sense, was it?

Mr. Joel M. Flaum: No.

Justice William J. Brennan: And we dealt waiver, haven't we ordinarily and in terms of a voluntary relinquishment of a known right?

Mr. Joel M. Flaum: I think that's true Your Honor.

Justice William J. Brennan: Then why is it this really a question whether the constitutional right has been forfeited by the conduct?

Mr. Joel M. Flaum: Well --

Justice William J. Brennan: Isn't that at least more realistic perhaps more honest analysis?

Mr. Joel M. Flaum: Well, I think in -- if I might disagree to an extent Mr. Justice Brennan, I feel waiver is applicable in this case for this reason.

The dialogue between the judge and the defendant in this case was one of not a lack of communication.

They seem to be understanding, the warning seem to be clear.

Certainly when one reads the record in this case, the defendant had no problem in making his intentions known.

The Court of Appeals found, they set a patient and very tolerant judge.

I think that when the dialog reaches the level it did in this case where the inclusions of the warnings, which might result if in fact the conduct does not cease that waiver would not be stretching the concept to apply it here.

I think it would also lend to a more flexible rule of discretion and if I might suggest a more easy handle for courts below, if this Court so ruled that waiver was permissible in this instance.

We find that the commentators while acknowledging limited authority on the case seem to be pretty much unanimous in their feeling at least to the visceral one that removal is the appropriate remedy.

We in our study found that the development of the right to be present was early cast in jurisdictional terms and we suggest that if it has any vitality today it may only be perhaps in capital cases --

Justice Thurgood Marshall: Did you say removal is the remedy or one?

Mr. Joel M. Flaum: One of the remedies Mr. Justice Marshall.

We suggest that we just broaden the trial judge's discretion to include this as one along with content and what apparently has been permitted by lower court's binding and gagging.

Our feeling is that it doesn't fall outside binding and gagging.

In fact, it's a much more reasonable and much more desirable end for justice to have the exclusion when it's positive under the case like this.

Justice William J. Brennan: (Inaudible)

Mr. Joel M. Flaum: And that Your Honor.

Justice William J. Brennan: (Inaudible)

Mr. Joel M. Flaum: I will.

We feel that there is -- the policy reasons toward adopting the exclusion over other forms are one, contempt may not really satisfy the situation.

In this case, we had a man faced to the possible life sentence.

Our feeling is that contempt in cases like that may not live level well with a defendant bent on disrupting the trial.

We feel the scene of binding and gagging and I question whether the right of confrontation is any better preserved by the defendant found gagging and maniacal.

It brings the service to the Court that in which this action takes place.

Justice Hugo L. Black: (Inaudible) would you say, we must find the facts --

Mr. Joel M. Flaum: Mr. Justice Black, in this case below, the defendant at the outset announced his unwillingness really to participate in the trial processing.

He informs the judge (voice overlap) --

Justice Hugo L. Black: To do w hat --

Mr. Joel M. Flaum: That he would not participate in the trial.

Not in a voluntary passion.

He informed the court, “You have a right to restrain me, but you haven't got the right to remove me and you're not going to remove me.”

And that the court replied, we will determine that.

The defendant, “No you're not, there's not going to be a trial, I'm going to sit here and you're going to talk and you can bring out your shackles and straight jacket and put them on me and take my mouth but it will do no good because there's going to be no trial.”

Justice Potter Stewart: And at what time at one point he said the judge is going to be a corps here?

Mr. Joel M. Flaum: Yes he did, prior to noon recess, -- another time I mean to stress very strongly Your Honors how tolerant this trial judge was.

The defendant announced that the judge would be a corps upon his return -- defense return from the lunch time -- lunch recess.

There is --

Justice Thurgood Marshall: Is he out on bail or he is in custody?

Mr. Joel M. Flaum: He was in custody Your Honor.

Justice Thurgood Marshall: Well, that was slightly of (Inaudible), wasn't it?

Mr. Joel M. Flaum: Well, the record is vague but there is some indication that when this defendant left the courtroom and went to the anteroom he intended to be a little physical with the property in the lock up.

So, --

Justice Thurgood Marshall: That is what I was saying.

Isn't it your position just to say that in the courtroom could be a matter?

Mr. Joel M. Flaum: Yes, yes it is.

Justice Thurgood Marshall: Well I'm still in fact, you don't have to argue that this is better than Shack (ph) v. Williams.

Mr. Joel M. Flaum: No I do not, I think it's a lesser --

Justice Thurgood Marshall: It was on the same level, it's --

Mr. Joel M. Flaum: No, Your Honor I would suggest that this is a milder form of --

Justice Thurgood Marshall: But you don't have to win that?

Mr. Joel M. Flaum: No, I understand.

But when you said it's on the same level I -- we might --

Justice Thurgood Marshall: I was saying that Second Circuit case which we will be shackling.

Mr. Joel M. Flaum: (Inaudible) yes sir.

Justice Thurgood Marshall: Yeah.

Mr. Joel M. Flaum: Yeah, well I think the exclusion is much more preferable remedy to that and a much milder.

Chief Justice Warren E. Burger: Does the Court of Appeals in the District of Columbia Circuit which reverse a conviction because the court shackled the gaged of the defendant.

Other remedies should have been taken.

Mr. Joel M. Flaum: Mr. Chief Justice, that's our view that it would the shackling and gagging what it's brought with is the parallel prejudice to the existing procedure in addition to disruptive conduct that may be taking place by the defendant's actions.

Chief Justice Warren E. Burger: Now, this disruptive conduct began at the very moment that the proceedings opened before they had picked the jury, doesn't it?

Mr. Joel M. Flaum: In fact, Mr. Chief Justice it preceded that because in pretrial before another judge of the Cook County Circuit Court where he made a motion for a change of judges -- substitution judges we thought is based on prejudice.

He again there caused some sort of a scene and we -- so you can trace it back there.

But, yes this started immediately and we suggest upon no propagation.

There's an absence totally of any dialog for example between a prosecutor and the defendant.

So, there's no act of -- to state apart from the judge in incurring the raft of the defendant by any spoken word in the opening statement or the like.

Your Honors, we would add one other fact and that is that we recognized in whenever asking this Court to acknowledge broader jurisdiction discretion and a trial judge -- that's a weighty problem.

However, if the police of this country can be entrusted with stock and first discretion which we suggest is a low visibility situation.

Certainly, the entrusting to a trial judge subject to appropriate review of the opportunity to expel and --

Justice Potter Stewart: (Voice Overlaps) -- I'm just quite to say your analogy, the police can't be trusted with what?

Mr. Joel M. Flaum: No Mr. Justice Stewart, our position is this, that we recognize we're asking for the recognition of a broad discretion in the trial judge.

Justice Potter Stewart: Right.

Mr. Joel M. Flaum: And recognizing that in any discretion case, there's a chance that the review is always difficult because of the area of discretion and is quite often intruded by Court of Appeals in very limited fashion entrusting great beliefs that a trial judge normally acts very fairly. We say this is not a low visibility situation.

We're trying to lay any fear in that regard that this will not become a wholesale tool of a judge annoyed with the look, smart talk of a defendant.

Justice Potter Stewart: Certainly, I suppose General Flaum that all would agree that a trial judge is in trust of a great discretion and what procedures he is going to follow and keeping order in this court room.

No question about that but here we have a claim of a violation of a specific constitutional right that i.e, the right of confrontation.

So, the fact, there's great discretion really doesn't meet the claim of your adversaries, isn't it?

Mr. Joel M. Flaum: On that specific point Mr. Justice Stewart I would agree.

However, on the violation of the constitutional right, constitutional right commentators in this Court have recognized is mainly to ensure the opportunity for cross-examination and it's a collateral benefit of that, the opportunity to observe the demeanor of the witnesses.

Certainly, exclusion --

Justice Potter Stewart: They have to face the witnesses and have the witnesses on the stand facing the defendant.

Mr. Joel M. Flaum: That's true but --

Justice Potter Stewart: And there are at least three ingredients for this confrontation.

Mr. Joel M. Flaum: Well, I would suggest Mr. Justice Stewart in Barber and Page the last Sixth Amendment case, not at all on point but written by this Court in '68.

The first to stress that I don't mean to exclude that the third but -- in more field that first to it are the greater.

In this case, the counsel continued with the cross-examination -- there wasn't that denial of the right of confrontation and the demeanor of the witnesses certainly remained a possibility because none of them were excluded.

It seems to us that he reach a point and that constitutional right, you cannot have both -- you can't be entitled the both, the right and a ruin of it.

And it seems that --

Justice Potter Stewart: By a --

Mr. Joel M. Flaum: The ruin of it, and it seems here that we have a case where defendant is bent on and clearly by his statements so destroying any right.

Chief Justice Warren E. Burger: Well didn't he tell the judge that in so many words at the outset there is going to be no trial?

Mr. Joel M. Flaum: That's exactly.

Chief Justice Warren E. Burger: How to make me sit down, there's going to ramping in the courtroom.

And you'll have to carry me out.

That a current stage of the judge that he was going to destroy the trial (Voice Overlap)

Mr. Joel M. Flaum: We feel Mr. Chief Justice that's at least one of three clear indications that he -- when brought back and insisted that there would be no trial in two of the returns where the invitation of the judge that you have a record that seems to me patently clear in an attempt by the judge to bring the defendant around to reasonable conduct and a clearing decision by the defendant to in no way entertain it until and this is significant until the defense began and then there was calm.

In fact, we found the defendant stating in affect that he realized that his conduct was improper.

It can also stand as a certain reflective process that he probably had throughout the trial but just chose to use in one case --

Chief Justice Warren E. Burger: But how many times did the court warn him?

Mr. Joel M. Flaum: We find at least three and perhaps four -- for the fourth one, Mr. Chief Justice has to be a reading into statements.

It does include the word, “warn.”

Court of Appeal's majority opinion in reversing concluded that he was warned and did not spell it up.

But they found as well as the Supreme Court of Illinois, a warning encompassed in the dialog between the judges.

Justice Thurgood Marshall: Your reading of the opinion and judgment with the Court of Appeals, this man is free, is that right?

I don't see anything about right on Illinois to try him again.

Mr. Joel M. Flaum: Well, this man is --

Justice Thurgood Marshall: I mean, legally free not illegally as he is now.

Mr. Joel M. Flaum: Right, he is on parole.

And if this court were to affirm the Court of Appeals, he would be no longer subject to any of the vital consequences that stem from a pro-violator and he has year or so or more to go.

So we --

Justice Thurgood Marshall: As you read the Court of Appeals' opinion, and this same matter comes up tomorrow in Cook County, how would -- could the judge legally handle that?

Mr. Joel M. Flaum: Well, as I read the Court of Appeals Your Honor, we feel that he can either try a contempt citation or he has to bind and gag him and in this -- in my jurisdiction and in my city we had the unsightly scene of a bound and gag defendant recently with the Federal Marshall placing his hands in front of the gag so that no words would come forward through the gag.

Now -

Justice Thurgood Marshall: On the Second Circuit we didn't have that problem.

When he would gag he would gag.

The Court of Appeals upheld him (Voice Overlaps).

Mr. Joel M. Flaum: Yes I do, I'm familiar with that case.

I would suggest Mr. Justice Marshall, that it's our view that not only must justice be done but there ought to be the appearance of justice and if I might in that assumption, we do a tremendous disservice to promoting that kind of a scene and in the rewarding conduct which in no way one can sympathize with.

If we have got an incompetent defendant then he shouldn't be on trial.

But certainly one which is a pure deliberate act of volition as it was in this case, it's very hard to not find that the limits of the constitutional right have been exhausted.

Justice Potter Stewart: Well, I understand that your theory to be that he waive the right of confrontation or that there was no denial of the right of confrontation?

I thought your argument was the former when it began but when you began talking about how he really did have the right of cross-examinations through counsel than that (Voice Overlaps) --

Mr. Joel M. Flaum: We acknowledge in the stricter sense Mr. Justice Stewart that there was a classic denial -- if the denial of the right of confrontation presupposes never removing a defendant from the view of the actual trial scene and we acknowledge that.

What I was suggesting perhaps not too clearly was that of the -- what commentators have suggested are meaningful benefits of the right of confrontation.

We're not totally denied when he had counsel continuing to go forward with the cross-examination.

Justice Potter Stewart: But your argument is that he waived it.

Mr. Joel M. Flaum: That he waived it.

Justice Potter Stewart: And you do concede that it was technically violent.

If he had not waived, it was violent.

Mr. Joel M. Flaum: Yes, it was violent.

The removal is a technical violation, if one can call up into play the word “violation” if you buy our waiver.

Justice Potter Stewart: Well, had there been no waiver, it would have been a violation?

Mr. Joel M. Flaum: It would have been a violation.

Chief Justice Warren E. Burger: As I read the Supreme Court of Illinois opinion, they didn't say it was a waiver but that is conduct operated as a waiver.

Is that not about the way they put it?

Mr. Joel M. Flaum: Yes it is Mr Chief Justice I --

Chief Justice Warren E. Burger: They equated it to a waiver rather than saying that it was a waiver?

Mr. Joel M. Flaum: That's correct, I would imagine that I've been opposing simply because as a trial, I'm used to the waiver of the signed paper, of the jury waiver or whatever but you're absolutely correct.

They did not call it direct waiver as much as they did by interpreting it from the conduct (Voice Overlaps)

Justice Potter Stewart: Is it not a forfeiture?

Mr. Joel M. Flaum: Not a forfeiture.

Justice Potter Stewart: You don't set that suggestion, I think very wisely.

Mr. Joel M. Flaum: Yeah, I --

Justice Hugo L. Black: He waived anything.

What if he waives during the trial, did you tell him he was not going to be tried?

Mr. Joel M. Flaum: Well, there is right of the state Mr. Justice Black.

Justice Hugo L. Black: Why?

Mr. Joel M. Flaum: We feel that the right of the state cannot be denied to the trial and to acknowledge his --

Justice Hugo L. Black: (Voice Overlaps) You say he waived what?

Why didn't he waive the whole but he had told you he didn't want to be tried?

Mr. Joel M. Flaum: Well, we feel he does not lie within his kin to make that ultimate decision.

I think he didn't -- I think he did not want to be tried or he certainly he didn't want or perhaps I might suggest Mr. Justice Black that maybe he did want to be tried but in furtherance of his particular defense, this kind of disrupted conduct may have been very calculated.

That's just our position of course in (Voice Overlaps).

Justice Hugo L. Black: What – you must be talking about trial or talking about forfeiture and talking about waive?

What you have here is the man who defies the court and told he was not to be tried.

Isn't it?

Mr. Joel M. Flaum: Yes it is.

Those are his statements, Mr. Justice Black.

Justice Hugo L. Black: And he kept making a noise to keep himself from being tried.

Mr. Joel M. Flaum: Well, I --

Justice Hugo L. Black: What difference it would make whether you call it the forfeiture or waiver?

Mr. Joel M. Flaum: Well, I just suggested that our theory be labeled waiver, we felt because it's one that we think is very workable if in -- by that I mean the trial judge reasonably interpreting conduct can find a waiver in a situation like that.

That's why we have leaned toward the waiver conducts also because as our reading of the dictum of cases that could preferably dealt with waiver in this Court that words like -- that he can waive it by his misconduct as Mr. Justice Cardozo said, suggest to us that was the route that we might appropriately offer up to this --

Justice Byron R. White: Well, Mr. Flaum I gather when the Illinois Supreme Court said they equated it to it, and when you equate something to something -- it's not the something, isn't that right?

Mr. Joel M. Flaum: Technically that's correct Mr. Justice.

Justice Byron R. White: Technically, actually.

Well, all you're saying, when you say it's equated the waiver is that you arrive at the same result as if he would.

Mr. Joel M. Flaum: As if he would, that's true.

Chief Justice Warren E. Burger: Yes, their precise language was such misconduct was in turn effective as a waiver.

It has the operative effect.

Mr. Joel M. Flaum: Yes sir.

Perhaps we should have practiced our claims of waiver as effective as a waiver.

We just felt, it would not be misleading to offer up to this Court the concept nakedly as waiver and that it would not be difficult one of the application if accepted by the Court.

I wonder if I might reserve a minute or two for reply?

Chief Justice Warren E. Burger: Very well.

Mr. Harris.

Argument of H. Reed Harris

Mr. H. Reed Harris: Mr. Chief Justice and members of the Court, may it please the Court.

The facts are not in dispute but I believe they --

Chief Justice Warren E. Burger: Would you raise your voice counsel, we seem to have a little difficulty with acoustics today.

Mr. H. Reed Harris: The effects are not in dispute but I feel that they need some elaboration -- so that the Court can more accurately understand the situation of this trial.

The respondent William Allen on August 12, 1956 at about 3 o'clock in the morning walked into a tavern, went to a corner of the bar where no one was around and when the bartender came over to ask him what he wanted to drink, the bartender saw a gun -- Allen said, “I want the money,” the bartender took the money and gave it to him and Allen left.

A few hours later Allen was apprehended.

He was searched, no gun, but approximately $200.00 was found in his presence.

The officer said, “Where did you get the money?”

And Allen said, “Oh I robbed this bar this evening.”

With that, he was taken to the police station and subsequently there was a line up.

When Allen was walked in with several other suspects to be viewed by the owner of the bar and the bartender both of whom were in the bar when the robbery occurred before he could be identified, Allen said, “Hey, I recognize you, you look familiar, didn't I rob you this night?”

Last night?

Chief Justice Warren E. Burger: How is this relevant now on our issue?

Mr. H. Reed Harris: Because I'm trying to explain Allen's behavior.

Allen was then indicted and while in jail, there were several attempted suicides.

Allen had a prior mental history back in the early 50's -- he was committed and served some time in a mental hospital.

Subsequently, a pretrial sanity hearing was held in 1956, it was determined that he could not cooperate with his attorney and he was sentenced to a mental institution.

Chief Justice Warren E. Burger: But that issue is out of this case long since, isn't it?

You haven't raised it --

Mr. H. Reed Harris: No, I have not raised but it bears to -- I think it's important for the Court to realize the type of person who Allen was and what the trial judge was confronted with.

I don't feel that the trial judge in the warnings realized that he was dealing with a person who has a prior mental history and may not -- although the issue is not before this Court and may not have been in full control of his faculties at the time he was tried.

And the fact that you may say to someone, if you don't sit-down and be quiet you're going to be removed and warn him once or twice and he continues to disrupt the proceedings and to remove that person -- that's different than dealing with a person who has complete control of his faculties who may realize what the Court is saying.

When Allen was subsequently --

Justice Thurgood Marshall: Did Allen realize what he was saying when he said, “You're not going to hold any trial (Inaudible)?"

You have been talking about what the judge didn't understand but I mean -- do you say Allen didn't mean that when he said it?

Mr. H. Reed Harris: No, he did mean that.

Justice Thurgood Marshall: He did?

Mr. H. Reed Harris: He did mean that because he wanted to conduct his own trial.

Justice Thurgood Marshall: What should the Court do then?

Let him break up?

Mr. H. Reed Harris: Well, no.

Because, when Allen was brought to trial, he requested the right to represent himself and the Court granted him that right.

He began to conduct a voir dire examination and during the conduct of that examination -- after some 14 pages of transcript of examining the first witness, he began to make statements about his case.

The state objected.

There then became a dialog between Allen and the judge.

The judge warned him not to make statements, conduct himself only to the qualifications of the jurors.

The dialog continued, Allen said he was going to conduct this trial as he knew how the judge warned him, any statements and I'm going to deny you the right to represent yourself.

Some more dialog, Allen continued to be disrespectful to the court because he wanted to conduct his defense the only way he knew how.

He is not a skilled attorney, he is an indigent who was on trial for his life but this time he said life and the judge said liberty.

But the issue involved is because Allen at this time was a three time loser.

This was his fourth conviction.

And it was possible for him to be sentenced for the rest of his natural life in the penitentiary and this may explain that the court be the dialogue between the judge and Allen with respect to life and liberty but the court was arguing him.

Justice Thurgood Marshall: What was the judge did do have been?

Mr. H. Reed Harris: Pardon?

Justice Thurgood Marshall: What was judge to do then?

Let him conduct the trial the way he wanted to conduct it?

Mr. H. Reed Harris: Well, if he did not, if the judge felt that Allen had the competence to conduct the trial in the beginning he should have let him proceed.

If he felt that he did not have the competence but he began --

Justice Thurgood Marshall: Well, he didn't know he was going to carry on like that at the beginning, didn't he?

Mr. H. Reed Harris: Well, then you don't begin a dialogue for two minutes and say, “Now, do it right, do it the way it should be done or I'm going to deny that right.

Why don't you have a recess, why not go into the chambers, why not sit down with the man?"

If the judge knew that he had a prior --

Justice Thurgood Marshall: Well, who got in the courtroom -- in the mean time?

Mr. H. Reed Harris: But the judge realized this before he gave him the right.

He should have known that a person he was dealing with and if he is going to give that person the right --

Justice Thurgood Marshall: Well, how could he have known that?

Mr. H. Reed Harris: Because his record was before him.

The judge had -- I presume --

Justice Thurgood Marshall: The record was before the judge?

Mr. H. Reed Harris: Well, the judge knew of his prior commitment to a mental hospital because the defendant made a request to the court that he wanted an order from a prior judge.

This order was a commitment of him to a mental institution several years ago.

I'm sure that the trial judge must have known that this man was just restored to sanity after being committed only a years ago.

Justice Thurgood Marshall: (Voice Overlaps) Do you have any reasons form to know that?

Nobody raised it.

Did the lawyer raise it?

Mr. H. Reed Harris: It wasn't raised by the lawyer but when --

Justice Thurgood Marshall: Was it raised by him?

Mr. H. Reed Harris: By Allen?

Justice Thurgood Marshall: Yes.

Mr. H. Reed Harris: Only with respect to a -- reference to a order from a previous judge as to his commitment.

Justice Thurgood Marshall: And when was that?

Mr. H. Reed Harris: That was during this dialogue between the courts.

Justice Thurgood Marshall: Well I'm saying at that stage, what should the judge do then?

Mr. H. Reed Harris: He should recess the court, sit-down with the defendant in chambers, take five minutes out and explain to him very simply in a calm passion rather than an argumentative passion and say, “Here's what's going to happen."

I mean they conducted --

Justice Thurgood Marshall: I would suggest that he would go in and ask the defendant, “How do you want me to run the trial?

Is that what you want?"

In that situation, the judge had a choice according to the Court of Appeals of three things and he chose one of them.

Mr. H. Reed Harris: Well, there were two rights which --

Justice Thurgood Marshall: We have already talked of binding and gagging?

Mr. H. Reed Harris: Well no.

Justice Thurgood Marshall: Was he?

Mr. H. Reed Harris: Pardon me.

There were two elements, first was, denial of Allen's right to represent himself.

This was denied first.

This is what brought about the second confrontation between Allen and the court because Allen objected that he is not being permitted to continue to represent himself.

The court had appointed an attorney that day to sit with him to protect the record.

There is no evidence in the record that Allen and this attorney had any discussions about his case whatsoever.

Allen did not want him.

He refused to accept him, but the judge said, “You sit down, he is going to conduct your defense."

He said, “No, he is not.

I don't want him."

The judge says, “You sit down and be quiet or else I'm going to have you removed."

Allen refused to sit and be quiet.

He didn't want the attorney who was being appointed.

The judge says, “remove him" and he was taken out of court.

Justice Thurgood Marshall: Is that still a choice made by Allen?

Mr. H. Reed Harris: Pardon?

Justice Thurgood Marshall: Is that a choice he made that judge says, “You need to keep quiet or get out" and he didn't keep quiet?

Mr. H. Reed Harris: He has a choice, after he has given the right to defend himself and that right and is now denied, just sits still and sit in a chair and have an attorney who he doesn't know represent himself, have an attorney who he hasn't talked to or who may know nothing at all about the case.

Is he to just sit there or is he permitted to protest when he thinks our violation of his rights.

And at this point in time (Voice Overlaps) --

Justice Thurgood Marshall: But how the court does by saying you're going to be at corps on lunch time, is that protest?

Mr. H. Reed Harris: Well, Allen was in custody, I am sure that this is something that was said in the heat of the dispute between the court and Allen and I doubt very much if the judge took that seriously.

Of course the Judge was a form of --

Justice Thurgood Marshall: In the New York case, Ben Vento (ph) picked up an old chair and told him and mentioned the judge.

Mr. H. Reed Harris: Yes he did, but that was after the trial had commenced. In Allen, it was a logical growth from his being denied his right to represent himself.

Justice Byron R. White: Mr. Harris, are you arguing that as a matter of the Confrontation Clause, there are no circumstances under which and if defendant may be removed from the courtroom for misconduct and the trial proceed without him.

Are you going that far?

Mr. H. Reed Harris: I am going that far because I believe that under today's technological advances there are alternatives for dealing with the unruly defendant which will preserve his right to confront the witnesses.

I do not believe that an attorney without his client to communicate with him is capable of properly conducting a cross-examination.

Justice Byron R. White: What are the alternatives?

Mr. H. Reed Harris: The alternatives are a glass sound proof booth which could be constructed.

Such a booth was actually used during a sanity hearing in 1956 in California, and I have in my possession photographs of that booth.

The defendant, the State of California built a booth which was 12 by 12, that was sound proof glass, it was air conditioned, there was a telephone in the booth.

In the booth was a guard with the defendant.

When the defendant first got in the booth as soon as the hearing began he picked up the chair, he was sitting in and he smashed against the glass.

They recessed the court and then built an iron chair which was bolted to the floor.

There were clamps which were built onto that chair so the defendant was then seated in the chair with the clamps around his leg, he had a telephone with which to communicate as soon as his attorney who was sitting just outside the booth.

Chief Justice Warren E. Burger: This is all very interesting but did you propose that some time or did the counsel propose (Voice Overlap)

Mr. H. Reed Harris: I propose that to the Court of Appeals in the Seventh Circuit and I'm late --

Chief Justice Warren E. Burger: It was a little late wasn't it?

It wasn't proposed to the trial judge --

Mr. H. Reed Harris: No it wasn't.

Chief Justice Warren E. Burger: Do you suggest that was a viable alternative?

Mr. H. Reed Harris: No, I did not and it was not proposed at that time.

But this is a possible solution.

The only problem with this solution --

Justice Byron R. White: Is there any other?

Do you suggest the gagging or something?

Mr. H. Reed Harris: Well, I suggest the possibility of close circuit televising the trial to another room where again he can see the proceedings and --

Justice Byron R. White: What about gagging?

Mr. H. Reed Harris: I feel that he should be -- if the court will not accept close circuit television or a booth then he should be gagged, he should remain in court because even though he's gagged and he can't talk to his attorney, you can still hear what's going on.

And it's completely different for a defendant to be in court and to hear what's going on so at a recess he can talk to his attorney rather than try and read a transcript during a recess and tell him what should or should not happen or should be set in cross-examination.

Justice Byron R. White: Well, now certainly you don't contest the very premise all of the gag which is that the government has a right to try in the key, doesn't it?

Mr. H. Reed Harris: Yes.

Justice Byron R. White: Is that the very premise of at least are just safeguards about the accused to see that he gets the kind of trial that the constitution guarantees?

Mr. H. Reed Harris: That is correct.

Justice Byron R. White: But certainly, he has to recognize the government's right to trial, doesn't he?

Mr. H. Reed Harris: Yes.

And I also believe now --

Justice Byron R. White: Doesn't that suggest that he may then by his misconduct that he prevents the government from trying it?

Mr. H. Reed Harris: Well I think I --

Justice Byron R. White: And he may by that misconduct?

Mr. H. Reed Harris: I do not believe that we can permit or the court should permit a defendant to disrupt the trial, to cause a mistrial to delay the trial by conduct.

And I feel that his right to be in court is mandatory so he can see what is happening and confer with his attorney.

If he attempts to purposely disrupt the court, I do not think that a contempt sentence is going to be effective because assuming a series of contempt convictions over a period of time during this time there maybe witnesses who could testify, who will now no longer be available and thereby through indirection he may be serving three or four contempt terms and avoid serving a much more serious term for the charges that are brought against them.

I think that there are more effective ways of gagging and binding a defendant rather the one which was used in the recent trial in Chicago where the seven defendants.

Bobby Seals was chained with a sort of a make shift gag on his mouth.

Had the court used a straight jacket and the hospital gag as we used in a recent Ohio trial.

The defendant would have been immobile and he wouldn't have been able to bite through the gag and other noises to disrupt the proceedings.

Justice Byron R. White: Well, I take it if you have a number of defendants who are equally abstract with your thought would be that each should have to have his own cubicle, state would have to provide -- what is that?

Mr. H. Reed Harris: Well, to close circuit the trial, I mean a cubicle I think is impractical because as was done in the senate hearing in California when the defendant got in the cubicle as a last effort to disrupt the proceeding -- he then pretended to be asleep during the entire hearing which lasted two or three weeks.

I think the close circuit television could be -- it's mobile, it could be setup and the cost is nominal.

Every bank and savings and loan association and the basis of a country have closed circuit TV every time (Voice Overlaps) --

Justice Potter Stewart: Probably that doesn't preserve his right to confrontation.

Mr. H. Reed Harris: Yes, but at least he will be seen the witnesses and he will be able to communicate with his attorney and tell him how to cross-examine.

Justice Potter Stewart: It preserves some time but it does not preserve his right to confrontation.

Mr. H. Reed Harris: Well, that depends on how the right of confrontation is defined.

He is to confront him for what purpose?

I think the purposes were there one so the -- he can face the witness, the defendant and cross-examine.

There is a second reason for the jury to see the witness.

And reflect on his demeanor and his testimony.

I don't think either of these rights would be violated if he is placed in a separate room.

Justice Thurgood Marshall: Suppose he is put in a separate room or in the chamber and we find at the end of the trial that the telephone which sometimes happen, is that all in 15 minutes?

Mr. H. Reed Harris: If the phone is out of order --

Justice Thurgood Marshall: Do we have new trial?

Mr. H. Reed Harris: No, because I would think that there should -- there would be a marshal in the room with the defendant who could -- if the phone is out of order, he could very simply communicate by a runner to the court that the phone is not working and let's get it repaired or recess for 10 or 15 minutes.

Justice Thurgood Marshall: But if he didn't do it, does he have to have a new trial?

Mr. H. Reed Harris: Well --

Justice Thurgood Marshall: Well, he didn't have is right of confrontation for 15 minutes I understand that's your argument.

Mr. H. Reed Harris: Well, he would still have the opportunity to see what is proceeding if the phone is not working because he now tries the phone to his attorney, it would only be a matter of minutes for him -- for a runner to go from the room where he's watching the trial to the court.

Let's say the phone is not working, that's recess.

During that time he can communicate with his attorney and they can very simply go over what he was unable to tell him on the telephone.

Justice Hugo L. Black: He says from the beginning and sticks to it and I am not going to be tried.

I will do anything to prevent the trial and what (Inaudible) is the telephone -- he still wouldn't be tried?

Mr. H. Reed Harris: Well --

Justice Hugo L. Black: That's his plan but he intends, what goes with that?

Why should the state have to govern, would have to go to all of that trouble to try unless the court should become absolutely impetus to carry on the responsibilities?

Mr. H. Reed Harris: Because the court still has a responsibility and the courts do have a responsibility and we should not permit certain defendants to use of the power of the courts and dictate to them what or what is not going to happen.

Justice Hugo L. Black: Let's say but I'm not going to be tried well would he cooperate anymore if you put him on somewhere where he could get a telephone and call up his lawyer?

Mr. H. Reed Harris: Yes, but at least he would --

Justice Hugo L. Black: (Voice Overlap) for other reasons?

Mr. H. Reed Harris: But he is not disrupting the orderly process of the trial which is going on.

He would not be disrupting the orderly process of the trial.

The trial would proceed, he would not have the opportunity to disrupt it which could be done if he was gagged or bound in court.

Or by ranting and raving because the question then becomes at what point in time does a trial judge say to a defendant who is objecting certain things which a trial judge may be saying that he has now waived his right to be present.

Justice Hugo L. Black: Well, as a lawyer, what do you think is, what would you suggest that a judge is under a duty to do but the defendant announces you will not be tried and conducts himself so as to prevent a trial in the courtroom?

Or do you think would really be the best?

Mr. H. Reed Harris: I would either have him bound and gagged or I would build a glass --

Justice Hugo L. Black: (Voice Overlaps), wouldn't it?

After about an hour to alternative, that was pretty bad.

Mr. H. Reed Harris: Why should that look bad? Historically this right has been -- defendant has always been bound and gagged, if he tries to cause a disturbance.

And the court is almost every state in the union.

Justice Hugo L. Black: But, you take (Voice Overlaps) better.

Now, what else would you think would be better?

Mr. H. Reed Harris: Well, I think the best thing is the closed circuit to trial too.

I think the next best thing would be the close circuit television of the trial to the defendant.

Remove him so he doesn't disturb --

Justice Hugo L. Black: What are you going to do when you get out of the small county like our practice at once he didn't have anything like that, is it?

Mr. H. Reed Harris: Okay, if you can't televise the trial, if you can't build a glass booth, then bind him and gag him and keep him in court.

Chief Justice Warren E. Burger: Now, this seems to be the theory that this numbly disabled defendant had from the start and reading from a transcript here where he said to the judge after getting his second warning, you have the right to restrain me but you haven't got the right to remove me and you're not going to remove me.

Mr. H. Reed Harris: That's correct.

Chief Justice Warren E. Burger: That's the theory of your case here and that was his theory of case of the trial.

Mr. H. Reed Harris: That is correct.

Chief Justice Warren E. Burger: Pretty good analysis on his part?

Mr. H. Reed Harris: Well, he spent a lot of time in prison reading law books Your Honor and he relied on that recent Illinois Supreme Court decision, the Decimian (ph) case which counsel referred to where a defendant did cause a disruption -- he was removed from the courtroom for a moment and at which time the attorneys approached the bench.

They discussed with the court that this might be a violation of his rights at which time he was brought back in.

His conviction was subsequently reversed on other grounds but the respondent has advised me that he had read that case and he realized that he had certain rights and he was going to preserve his rights.

Justice Hugo L. Black: I'm not saying it should have been done but of course, we are not ready to say (Voice Overlaps) --

Mr. H. Reed Harris: Pardon?

Justice Hugo L. Black: Suppose the judge could simply say, “Alright, you say you will not be tried, I will let you go to jail and stay until you're ready for a trial.

I will declare mistrial in this case and when you want a trial you can get him."

Mr. H. Reed Harris: Well, I think the court had the right to do that but the problem inherent in that is that there were four witnesses against--

Justice Hugo L. Black: But that is about the claim?

Mr. H. Reed Harris: Yeah -- no, I don't because there were four witnesses against the respondent.

Let's say he goes to jail for six months for contempt of the court.

He comes out, the judge says, “can you stand a trial again," he says, “no I'm not."

He's back in jail for contempt.

He is in jail for six months.

Meanwhile, one of the witnesses now moves to California, one dies, one become sick and something happens to the other one.

He comes back, he is not ready to stand trial Your Honor try me and there's no more witnesses.

So, he has --

Justice Hugo L. Black: Well, that's the life – things that happen and different would always happen.

Mr. H. Reed Harris: Well, but you see if --

Justice Hugo L. Black: I remember trying a case once in 12 years that's a murder was committed.

It's no plenty witnesses there.

Mr. H. Reed Harris: Well, but there are certain circuits in where witnesses may disappear, they may die.

One of the problems inherent in this case -- this case would be retried today.

I believe that two of the witnesses have died and one has subsequently been indicted by the grand jury in Cook County, Illinois.

So, all the four witnesses against him, there would just be one witness who can possibly testify.

Justice Hugo L. Black: You would agree, won't you that something has to be done to keep the court -- the big subject to such indignity with such frustrations of justice.

Mr. H. Reed Harris: Yes, I do.

But, now to continue on with what happens at Allen is that once the trial began he was brought in, after the voir dire was concluded.

The judge says, “You can stay here if you remain quiet."

He was non-committal as to what he was going to do.

The trial began, the first thing that was done is that his court appointed attorney made a motion of good witnesses.

The respondent looked around he didn't see his friends who were supposed to be in court.

His sister -- he got up and said, “where's my witnesses?

How can this trial go on?"

And with that the judge ordered him removed out of court.

He was in court four times the next, that afternoon which was during the prosecution's entire case.

There were four witnesses.

Two testified -- they saw him commit the crime, two testified that he admitted to him that he committed the crime.

And the point in testimony was reached, “do you see the man who did that?"

And the witness would look around and say, “no, I don't" and the judge would say, “bring in the defendant" and they dragged this guy in with handcuffs in a prison uniform that was stenciled across the front maximum security and they'd say, “that's the man."

And then they say, “Remove the defendant," they drag him out again four times in and out.

Chief Justice Warren E. Burger: But I thought you were arguing a little earlier that he shouldn't been bound and gagged and kept all the time, wouldn't that be (Voice Overlaps) reminder?

Mr. H. Reed Harris: Sure, keep him in court, but don't bring him in and out of the court every time you want to identify him.

I mean, even in the most primitive of identification in police line up, they just don't bring one person out and say, “is that the man who did it," they at least bring several out.

Here, he said, “Did you see the man in the courtroom when you look around?"

There are several faces, “no I don't."

“Okay, bring in the defendant."

One guy comes in, that's the man.

Justice Hugo L. Black: Don't you think this man was given about as fair a trail as it would possible for him to get?

(Voice Overlaps) in the courtroom?

Mr. H. Reed Harris: In the reading in the record, I will acknowledge that the court appointed attorney for him did an excellent job.

The trial judge who was in his 70's who may have had certain preconceived notions about justice because he was a former prosecutor for many years as a first instance -- in Cook County, was also very tolerant with this defendant.

However, I felt that he should have been more tolerant.

I felt that once this dispute began, he should have taken the opportunity to sit-down with this defendant and explain to him what he was going to do in a conversational tone in chambers, the whole thing would have taken five minutes and not in the heat of argument where the defendant may not be paying attention on what's going on because he wants to preserve his right to represent himself.

Justice Thurgood Marshall: How many times does this man had been convicted?

Three times?

Mr. H. Reed Harris: He was convicted three times and I'm advised that there were other charges against him which he was never prosecuted on.

Justice Thurgood Marshall: How old was he?

Mr. H. Reed Harris: When he was convicted -- he is 38 now, he was convicted in 57, he was --

Justice Thurgood Marshall: I was wondering about why he needs all these fatherly discussion.

He is quite a mature person.

Mr. H. Reed Harris: He -- well, I don't I -- it's not so much him, it's what he stands for which is the right of the defendant to be tried and preserve his rights and protect those rights.

Justice Thurgood Marshall: What I don't understand is under your theory every other person in that courtroom has to act with demeanor in respect for the court except the defendant.

Is that your position?

Mr. H. Reed Harris: I think that the defendant also has to conduct himself with respect but you can exclude a spectator from the courtroom without violating the constitutional rights of the defendant but I believe that you cannot do that to the defendant because he has the right -- the defendant was on trial.

Justice Thurgood Marshall: Regardless of what he does.

Mr. H. Reed Harris: Regardless of what he does, he has -- if he wants to go to sleep during the trial, that's his right.

But if he demands the right to be there, don't exclude him so he can't see what's going on.

And if he tries to disrupt the proceedings, don't let him be successful, deal with him, but preserve his right in the event all of a sudden he gets a change of heart that he wants to know what's going on.

Justice Thurgood Marshall: All your point is it is why he wants to be there.

Mr. H. Reed Harris: Well, anytime a defendant is tried, that's all the court really knows it, that is there because you have no knowledge as to what he is doing in his mind whether he is thinking about the baseball game that may be going on next week or something else.

Justice Thurgood Marshall: Is that your idea of confrontation, he is there bound and gagged?

Mr. H. Reed Harris: The constitution does not require that the defendant sit and be alert and pay attention to the trial -- it just requires that he be there so he has the right to confront the witnesses.

Justice Thurgood Marshall: Well, what's the difference between him sleeping outside and sleeping inside?

Mr. H. Reed Harris: Because, if he changes his mind that he wants to pay attention and wants to defend himself he can then do it.

Justice Thurgood Marshall: Well, he had four chances to change his mind.

Mr. H. Reed Harris: Well, no, he was warned once about conducting his trial then that right was denied him.

I believe he was just warned twice about his being removed and when he didn't pay attention he was then removed.

And I don't think those warnings were sufficient.

This is actually a case of first impression; this court has never really ruled on this issue.

The case as I cite -- the Hopt, case, the Shields to the Lewis case deal with examination of jurors or jury instruction outside the presence of the defendant and these cases rely on due process of the Fifth Amendment.

The Diaz case came out of the Philippines which although the Philippine Government Act had a similar provision as the right of confrontation which was supposedly based on the Sixth Amendment.

Diaz expressly waived his right to be present during the trial.One of the reason it was because the trial took several months and they would recess for 30 or 60 days and he has lived way far from the court and it was inconvenient from the Bean (ph) court so we said, "We'll proceed without him, there's only one or two – it's just going to be heard," "my attorney will be there, he can handle it for me."

I don't believe that would, what Mr. Justice Cardozo said in Schneider is applicable because that was a case involving whether a defendant had the right to go to a view of a scene with the jury under Massachusetts law that right did not exist although the right exists in most of the jurisdictions.

Mr. Justice Cardozo was in the violation of the Fourteenth Amendment because at this time the certain rights out of the Sixth Amendment first time have been said that and incorporated and applied to the states under the Fourteenth Amendment.

The Sixth Amendment historically -- the right of confrontation, it's not clear where it came from.

Some people say that some commentators say it comes basically from the evils of the Star Chamber proceedings in England.

Others say it stems from the injustice which happened to Sir Walter Raleigh who was tried in 1603 for treason.

This in effect was really an early political trial.

Queen Elizabeth had died and her successor, I believe was King Charles wasn't pleased with Rollie.

Rollie had caused the death of the (Inaudible).

Chief Justice Warren E. Burger: Very well, you have one minute left Mr. Flaum.

Rebuttal of Joel M. Flaum

Mr. Joel M. Flaum: Mr. Chief Justice and may it please the Court.

Just on the two main cases relied upon by the respondent writing in Schneider versus Massachusetts, Mr. Justice Cardozo stated Hopt v. Utah has been distinguished and limited and what was said in Hopt v. Utah under subject of the presence of the defendant was dictum and no more, we may say the same of Lewis versus the United States and if I might state the second on the state of the record Mr. Kelly who was counsel for the defendant below was appointed on October 14th the next proceedings were December 11 in the case.

He was granted the right to be co-counsel in his case.

It was only when he was disrupted during the voir dire that the judge asked that he let his counsel take over and that's when first right ensued, and leave the court with Justice Stewart.

The Court of Appeal's decision can be sustained only by the most slavish reading of the Sixth Amendment.

I respectfully ask this Court to reverse.

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

Thank you Mr. Harris.

The case is submitted.