ADAMS v. ILLINOIS

Print this transcript Transcript: 

Argument of Edward M. Genson

Chief Justice Warren E. Burger: We will hear arguments next in Number 5038, Adams against Illinois.

Mr. Genson.

Mr. Edward M. Genson: Mr. Chief Justice and may it please the Court.

The grant of certiorari in the instant case is limited to the single question whether Coleman versus Alabama is retroactive and applicable to the instant case were prior to trial.

The defendant objected to the failure to provide counsel at a preliminary hearing.

It is our position that the State does not have standing or right, to argue reliance or non-retroactivity.

In a case where the error was pointed out to the State by the defendant prior to the trial to the Court and the State ignored the plea proceeding to trial.

The case of Linkletter versus Walker established the criteria for determining whether a rule should be or should not be retroactive.

The reasons and the criteria were the purposes to be served by the new rule, the reliance on the old rule and the effect of the new rule -- the retroactivity, retroactive application of the new rule on the administration of justice.

The purpose of the rule in Coleman as I see it is to enhance the integrity of the fact finding process and thy doing this by providing a lawyer at the preliminary hearing which in Illinois is a very critical stage of the proceeding and a very vital stage of the proceeding in the prosecution of a defendant.

The value of counsel at a preliminary hearing in Illinois is immeasurable.

The Attorney as pointed out in Coleman can use the impeachment tool later at trial.

He can fashion his tool and this would be something -- would be impossible to do without an attorney at the preliminary hearing.

As Justice Schauer pointed out in his dissent in Bonner, Bonner is one of the cases in Illinois that established the preliminary hearing not to be a critical stage.

In that case where there was no counsel the witness testified against the defendant in response to leading questions by the prosecutor in the Court.

He was not advising my co-witnesses on his own behalf, he did not testify.

He was not advised that witnesses could be excluded or kept separate during examination.

He was not advised at the preliminary hearing and Illinois can be used to perpetuate testimony which is specific in the statute.

I differ with the respondent’s analogy of Stovall versus Denno and Coleman as I can contemplate a fair wind up without an attorney present but how might a preliminary hearing be there without an attorney.

This is an adversary proceeding.

In this particular case, in the instant case not one question was asked by the defendant, not one witness was called by the defendant.

The insufficiencies or whatever insufficiencies that there might have been indicate for the State would have been -- were corrected by leading questions by the States attorney.

And I would submit that unlike Stovall where you can have a fair lineup without an attorney present, it is not possible to have a fair preliminary hearing or preliminary hearing which performs the function of a preliminary hearing in Illinois without an attorney.

Chief Justice Warren E. Burger: We will only test that in a moment, suppose the acts are witnessed by great many people and at a preliminary hearing they bring in two witnesses that are said to be typical of nine others except for discovery purposes, what would be done at the preliminary hearing?

Mr. Edward M. Genson: Mr. Chief Justice, at the preliminary hearing those two witnesses would be cross-examined.

They would be – their story would be used to -- would be tested.

There would be impeachment perhaps laid for further use at trial.

At the preliminary --

Chief Justice Warren E. Burger: If -- it is discovery now.

I said other than the standard.

Mr. Edward M. Genson: No.

For all purposes --Mr. Chief Justice, for purposes –

Chief Justice Warren E. Burger: But if you are using it to prepare for trial, you are using it for discovery, are you not?

Mr. Edward M. Genson: Well, you are using it also if it please the Court for impeachment because those statements used or fastening an impeachment tools would be used later on.

Chief Justice Warren E. Burger: So, that is still discovery, is it not, preparing for trial?

Mr. Edward M. Genson: Coleman in its determination of the values of a preliminary hearing differs between the fashioning of impeachment tools through the use of prior -- through the use of the prior statements at trial and discovery.

Chief Justice Warren E. Burger: Was the Illinois statute not familiar with the details or its history.

Was that shaped as a discovery tool?

Mr. Edward M. Genson: The Illinois statute relative to preliminary hearings?

Chief Justice Warren E. Burger: Yes.

Mr. Edward M. Genson: No.

The Illinois statute relative -- preliminary hearings deals specifically with the holding of the preliminary hearing in the finding of probable cause.

There is nothing in the statute in Illinois which deals with preliminary hearing which relates to the use of preliminary hearings for purposes of either discovery or impeachment.

Chief Justice Warren E. Burger: May the prosecutor under Illinois statutes bypass the preliminary hearing by giving an indictment or issuing an information if you use that process?

Mr. Edward M. Genson: The indictment procedure in Illinois Mr. Chief Justice, but at that time they no longer can.

But at that time at the time of the preliminary hearing in Adams the prosecutor would have had the option of going directly to the grand jury under the recent constitution which came into effect July 1, 1971.

If an arrest is made and no indictment is pending the prosecutor no longer has that option in Illinois.

Unknown Speaker: He must go to the preliminary hearing?

Mr. Edward M. Genson: He must go to preliminary hearing before he can go to indictment.

Chief Justice Warren E. Burger: But he gets an indictment before he arrests --

Mr. Edward M. Genson: If he has an indictment before he arrests, he can bypass the preliminary hearing.

But I would just like to point out that the vast majority of the arrest in cases contemplate or result from arrest, the error around the time the offense is allegedly committed and indictments are very rarely sought.

Only in the exceptional cases you would have an indictment prior to arrest in Illinois.

Chief Justice Warren E. Burger: So you are speaking of cases where an arrest is made right on the scene.

Mr. Edward M. Genson: Or an arrest is made sometimes a month or two later.

It is an extremely rare situation only in -- perhaps certain financial claims or other claims of that type in Illinois have we seen indictments gained before the arrest sir.

In Illinois also with reference to discovery and the witnesses can be -- the lawyer can get discovery from those witnesses at the preliminary hearing.

Now, under the rules as they were fashioned in Illinois at that time, the only items that the attorney were entitled to were the witnesses of -- the statements of the defendant and a list of witnesses.

At the time of the trial and after testimony, the statements of the various witnesses were available.

Now, if these witnesses testified at trial, of course again in addition to having those statements available for impeachment or possible impeachment later on, these statements would also be available for purposes of discovery and these would be statements under the discovery rules at that time which would not be available at the time of trial.

Under the new rules these statements are available at the time or after the bringing of the indictment but even then under the new rules of the indictment in Illinois generally do not come till three or four months after the arrest.

The attorney in Illinois in addition to the processes of getting discovery and providing impeachment tool can expose weaknesses in the case which might eliminate an indictment and this is very relevant certainly under the new rules in Illinois because it is my contention that the Illinois rules provide that once there has been a finding of no probable cause that the only way that this can be brought again before the Court system is for new evidence to be found and if brought again before the preliminary hearing judge.

The value of an attorney in Illinois is -- goes to other aspects of it.

The Great majority of the cases brought in Illinois are disposed off a preliminary hearing to reduction of charges, though acceptance of a plea to a lesser charge.

Through an acceptance of plea on an information which is filed right in the preliminary hearing courtroom and therefore I do not think the respondent can contest the fact that the vast majority in cases -- of cases in the State of Illinois that are brought as felony complaint are disposed off at the preliminary hearing level and this is another value at least in the State if Illinois for the retroactive or the application certainly of Coleman and the retroactive application in this case because a lawyer -- a lawyer’s presence at that preliminary hearing becomes immeasurable at that time.

Chief Justice Warren E. Burger: At that hearing --at that preliminary hearing, can sentencing process take place too in Illinois?

Mr. Edward M. Genson: The procedure generally --

Chief Justice Warren E. Burger: Or just a plea?

Mr. Edward M. Genson: The preliminary hearing is brought by a felony complaint.

The plea is not entered at that time.

After the preliminary hearing the procedure usually follows that the prosecution in the event of a witness perhaps in their case or because of whatever reasons they feel is important would reduce that charge to a misdemeanor.

The Municipal Court Judge at that time has jurisdiction to receive a plea as to the misdemeanor equivalent or the misdemeanor included offense at that time.

They also have in Illinois an information process wherein at -- just subsequent to the preliminary hearing the judge then or between conferences there is a conference that takes place between the judge, the states attorney and the defense attorney pursuant to a specific Supreme Court rule and an information is filed pursuant to waiver and indictment and plea negotiation takes place.

The pleas usually received at the preliminary hearing are generally quite a bit less in the event that you do partake in those discussion and those that might be taken after indictment.

Now the other -- another advantage of an attorney at the preliminary here in Illinois is regarding psychiatric examinations notwithstanding the fact that there has been no cases cited and the respondents make the point that there is no authority for psychiatric examination in the State of Illinois.

Not withstanding that, there is a Municipal Court psychiatric clinic and what this means is, it is either a great number of cases are referred when there is evidence of some sort of psychiatric disorder to that psychiatric hearing at the preliminary hearing level.

Now, the value of an attorney in asking for that again becomes immeasurable because certainly, if Your Honor please, the psychiatric examination takes place with one -- maybe a week or two weeks after the alleged commission --

Justice Harry A. Blackmun: Preliminary hearing throughout the State held in the Municipal Court?

Mr. Edward M. Genson: The preliminary hearing in Cook County is held in Municipal Court.

Justice Harry A. Blackmun: And the psychiatric service you have mentioned is available only in Cook County?

Mr. Edward M. Genson: As far as I can determine this is the only specific psychiatric service available in Cook County.

Justice Harry A. Blackmun: But the value is only in Cook County?

Mr. Edward M. Genson: Cook County, yes sir.

Your Honor but the facts of the matter is a good many or I would imagine a good majority, the vast majority of preliminary hearings held in the State of Illinois are held in Cook County.

And therefore I think it is important to point out to you Your Honors that the fact that the -- psychiatric examination might at this time be held one week, one week or two weeks perhaps after the alleged commission of the offense has a lot more value than having one order subsequent to indictment which might be four or five months later.

Another added addition that a lawyer can perform at a preliminary hearing --

Justice Harry A. Blackmun: But you are arguing Cook County laws, as it is now?

Mr. Edward M. Genson: I am arguing regarding that part of it.

Regarding the psychiatric examination Cook County law but there is nothing, Mr. Justice Blackmun, which prevents an attorney from requesting a psychiatric examination at the preliminary hearing level under Illinois law.

I am only saying that the facilities are available in Cook County, of a specific facility designed almost entirely for this purpose.

Justice Harry A. Blackmun: Now, we had a case up here a little while ago, Belleville down in St. Clair County, what would happen if he wanted a psychiatric examination?

Mr. Edward M. Genson: He would have to make a request to the preliminary hearing judge and the preliminary hearing judge would either not or he would either order or not order it but there is no, there is no authority in Illinois allowing or not allowing him to order it.

And I think the value of the psychiatric examination is certainly immeasurable when one considers the fact that indictments generally follow the crime by about three or four months.

I know the prosecution often in indictment in defenses where insanity is raised would raise the fact that the examination was not gotten until substantially after the offense.

Addition --

Unknown Speaker: Exactly what you are telling us about, preliminary hearing practices.

Are these preliminary hearings before or after the constitutional hearings?

Mr. Edward M. Genson: The preliminary hearing practices that I speak to are before but after the same rules apply with the additional factor that under new Illinois, under Illinois law subsequent to the constitution the preliminary hearing is required as the constitution reads unless the person has been arrested, unless the person is arrested after the indictment.

Unknown Speaker: Has the practices or functions have changed with a new constitution amendment?

Mr. Edward M. Genson: The only function is, is that it eliminated whatever direct indictments, it would reference to cases, specifically murder cases.

In certain narcotic offenses, direct indictments were generally the only way it was proceeded.

They would arrest them, hold the preliminary hearing, the State would continue the preliminary hearing, four months or whatever.

And during that time they would proceed to indictment.

Again in my experience, again there is no law and I practice all through the State.

Most of the other counties did not practice the indirect indictment procedure.

Almost all the counties even before practiced a system wherein preliminary hearings were gained before indictment.

The other --

Justice Potter Stewart: Do you have information in your State -- you proceed to criminal trial on informations in your State at all?

Or is everything like that --

Mr. Edward M. Genson: It can be proceeded if there is a waiver. Generally it is very rare that you see an information unless it is specifically waived and it is generally only waived in cases of pleas of guilty.

And the information proceeding in the last three or four years is practiced extensively at this preliminary hearing level because of a constitutional amendment passed about three years ago or prior to that constitutional amendment and the District Court judge did not have the power to take a plea on a felony even by information.

Since that -- the new amendment, they have been allowed to do this and therefore they have in proceeding information at the preliminary hearing level in great amounts.

Since -- well, in the last two or three years.

Justice Potter Stewart: And that is by a waiver of the defendant though.

He has a State constitutional right to be indicted?

Mr. Edward M. Genson: Yes Mr. Justice.

Justice Potter Stewart: For a felony?

Mr. Edward M. Genson: Yes sir.

The only additional factor that I would like to point out is that even under the new constitution.

The grand jury can not be eliminated by a simple vote of a legislature and this again assuming that this might be done which certainly put greater value on the preliminary hearing, if this could be done or were done.

Another function, a very important function of the lawyer or the attorney in Illinois at a preliminary hearing is regarding the motion to suppress.

The motion to suppress at the preliminary hearing at Illinois is binding and appealable.

Now at the time the respondent filed their brief in the instant Court, legislation was passed by the State to bypass this and to allow the State to proceed to indictment even though the motion to suppress has been sustained by the preliminary hearing judge.

Since then, that law has been declared unconstitutional and the State of the law in Illinois at this time and at the time of the instant cause of the Adams case is that the preliminary hearing in Court makes the final determination on motions to suppress.

The preliminary hearing and this is a binding and appealable order and if not appealed by the State, the State can go no further relative to that evidence.

Unknown Speaker: Why in Gilbert we said that a counsel at a lineup that -- in those decisions, we said Stovall was not retroactive?

Mr. Edward M. Genson: Yes sir.

Unknown Speaker: Why -- and those two could turn on harmless error in the case of preliminary hearings?

How do you distinguish -- why should this be retroactive on the primary counsel lineup?

Mr. Edward M. Genson: Because Mr. Justice, I feel that the -- there is a difference in determining retroactivity.

The only test is not whether there was counsel or was not.

There are three tests.

But going back to the first test, the purpose of the rule, it would seem that an attorney at a preliminary hearing will invariably help the defendant in Illinois it is not invariably in a lineup as U.S. versus Wade that it would not held --

Unknown Speaker: But we did say in court that even if he does not have one in lineup if it is a -- it has established that the absence of counsel was harmless error than a -- the absence of counsel at a preliminary hearing?

Mr. Edward M. Genson: The point that I am trying to make Mr. Justice is that a lineup can be held, a lineup can be fair without an attorney present, it is possible.

A preliminary hearing sir, it is my contention cannot be fair.

Unknown Speaker: I know, but it might be harmless error that even after the preliminary hearing also could be fair even though there was no counsel present.

Mr. Edward M. Genson: The logic --

Unknown Speaker: I mean, on your approach --

Mr. Edward M. Genson: I am listening.

Unknown Speaker: Would there be any room for harmless error?

Mr. Edward M. Genson: In --

Unknown Speaker: In your approach.

Mr. Edward M. Genson: In my approach, if Your Honor please, the logic of Brennan -- he logic of Mr. Justice Brennan in Coleman would not allow for a harmless error remand, no sir.

But it should and under my contention I would think it should be a person.

Unknown Speaker: Yes, and then to that extent would we not have to modify or overrule what we said about harmless error in Coleman?

Mr. Edward M. Genson: I think that one, it is not necessary to conclude because that there was a harmless error remand that the case should not be retroactive.

I think the determination of whether or not a case should be retroactive revolves and relies on all three criteria.

Unknown Speaker: Well that makes -- but is it not rather inconsistent to say that maybe harmless error even in situations respectively were spoken about, do you say that Coleman per se actively retroactive.

Mr. Edward M. Genson: I am not saying -- well, no I do not think so.

Unknown Speaker: Mr. Genson, while we have you interrupted, was the Illinois Court unanimous in its decision here?

Mr. Edward M. Genson: The Illinois Court where there was not dissent.

I do point out though that there had been one dissent in the initial finding or the finding of People versus Bonner.

That was by Justice Schauer.

Unknown Speaker: If he went along in this case.

Mr. Edward M. Genson: He did not write a dissent, there was no dissent, it is not -- they do not record as I understand it, the findings in Illinois, if the judge does not write a dissent.

The second consideration in link whether it is a reliance of the law enforcement authorities on the over rule.

It is our position that the state does not have standing argument.

Reliance in non-retroactivity applied to a case where that error was pointed to them at trial.

It is further our consideration that we are dealing with different types of law enforcement authority.

Is it by law enforcement authorities we mean the police officers and police investigative technique certainly there was no reliance there and I think there is a far greater argument for retroactivity where police investigative techniques as opposed to Court procedures are involved.

Now, I would like to point out, they are the differentiation in Stovall, because in Stovall we were dealing with various investigative techniques that it was arguably made that the police were depending on it, at the time of the waived decision.

In this particular case though this does not reflect that, it reflects only of the effect on the Courts and I think that is properly dealt with the last point, the administration of justice.

Lastly, relative to the reliance point, I would like to point out that the Coleman opinion as pointed out by many of the opinion in the decision was certainly foreshadowed by the decisions that proceeded it and perhaps not relied on by some of the State Courts, it should have been because of the different opinions by the Court relative to the right of counsel.

The third criteria that I would like to point -- that the link rather points out is the effect of the new rule on the retroactivity of the new rule on the administration of justice.

The effect of this case, we feel is negligible because we are asking that rule to be applied and limited to only those cases where it is raised the trial.

That is if a man has counsel at trial and if the counsel does not raise or make issue of the fact that he did not have an attorney at the preliminary hearing, we are asking that the Court deemed this to be waived and not apply it retroactively as to those cases where it has been raised as it has been raised in this case, we would ask that it be quite applied retroactively.

I think the effect on the administration of justice as to that type of application certainly would be negligible.

Thank you.

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

Mr. Gildea.

Argument of James E. Gildea

Mr. James E. Gildea: Mr. Chief Justice and may it please the Court.

Must I forget to mention this I would like to first deviate from my prepared text in connection with the questions concerning the Bonner case and Justice Schauer's dissent.

I would urge Your Honors to consider the fact that Justice Schauer dissent at that case did not address itself to the constitutional question.

It addressed itself to a matter of statutory interpretation as construed by the majority of the Court’s statutory interpretation under the Illinois law.

We had a statute that provided that counsel was to be appointed at the preliminary hearing if a defendant was indigent.

We had another statute saying that at the point of arraignment no plea was to be taken without appointment of counsel.

The Bonner case construed the two statutes to be imparting a curia and held that the two provisions required only that counsel be appointed prior to any plea wherever interposed and Justice Schauer took umbrage with that and took exception and it was his opinion that the Illinois statute provided otherwise.

However, he did not dissent on the basis of any constitutional questions.

As to the factual background of this case is Your Honor, this case charged the defendant with the sale of narcotics and it was a what we call a controlled sale and that an informant was used in connection with two police officers.

The defendant was arrested immediately after the alleged incident and he appeared in Court the following day.

The case was then held on call for one day and continued variously.

Subsequently there was a preliminary hearing and we conceive that the counsel was not appointed by the judge at the preliminary hearing.

There was testimony introduced at that point from one witness, one of the officers upon the testimony of that officer the judge found probable cause and held the defendant to answer to the grand jury, indictment was returned and it was not until the day that the case was set for trial that counsel for the defendant filed his motion in connection with a claim for having his constitutional rights violative by a failure to appoint counsel at the preliminary hearing.

And in that connection, the motion that was filed was a motion to quash the indictment.

It was not a motion asking for a preliminary hearing and the defendant did not in his motion alleged that he was in fact indigent and therefore required the appointment of counsel.

And furthermore the defendant did not allege that he suffered any prejudice during the course of their preliminary hearing.

Now, addressing myself to the principal issues here, since Linkletter versus Walker on -- down through the recent cases that the Court pronounced last year in speaking in terms of Williams and Hill and Elkanich.

The Court has applied a three fold test in determining whether or not a new constitutional doctrine should be held retroactive.

In that connection the Court has stated that deciding that issue the Court will look first of all to the purpose of the new constitutional doctrine, secondly, to prior reliance on previous standards and thirdly, to the effect on the administration of justice.

Addressing myself, first of all to the purpose of the constitutional doctrine as pronounced in Coleman versus Alabama, the Court stated that the purpose was to secure for a defendant advantages prefatory to trial and in that connection the Court mentioned six possible advantages.

The Court said that the presence of counsel at a preliminary hearing might be effective in preventing a possible bind over to the grand jury by making effective arguments and cross-examination or whatnot.

Secondly, he could perhaps to secure a lower bail or bail initially and he would have some bearing or he would have some influence on that determination.

Thirdly, by cross-examination, he could perhaps create material for impeachment at trial.

He could discover the -- some of the State’s evidence that would be used to trial.

He could perpetuate favorable testimony for a later date and then he could secure an early psychiatric examination.

Now, with connection to the purpose -- aspect of the purpose criterion, the Court said that where the major purpose of a new constitutional doctrine is to overcome an aspect of the trial would substantially impair the truth finding process so as to create serious doubt as to the reliability of a guilty verdict.

In prior cases this Court will hold the doctrine retroactive.

In that connection we submit that the purposes espoused in Coleman for the appointment of counsel at a preliminary hearing do not go to that degree.

We do not believe that the functions to be served by counsel at a preliminary hearing have any substantial effect on the truth finding process at a subsequent trial.

And we do so for the following -- we make that assumption for the following reasons.

Addressing ourselves point by point to the intended effects to be served by the presence of counsel at a preliminary hearing, we have first the prospect that the presence of counsel could prevent a bind over to the grand jury by cross-examination and by argument and he could secure perhaps a lower bail.

Bearing in mind that the function of a preliminary hearing is only to establish probable cause, we submit that those two considerations would have no bearing on the subsequent trial would have nothing, no impact on the truth finding process at a trial and in fact would be mooted by subsequent guilty verdict.

Since the standard proof at a trial is beyond a reasonable doubt and standard of proof at a preliminary hearing is merely a probable cause, we submit that in effect a jury finding would overcome any impediment in these two aspects that would be suffered by the defendant by failure to have the appointment of counsel.

As to the possibility of securing an early psychiatric examination and perpetuating favorable testimony, we submit first of all that these two considerations would occur very rarely in the normal criminal process.

As to the perpetuation of favorable testimony there is also this consideration that is this, whether or not defense counsel would in fact want to do so bearing in mind that by perpetuating favorable defense testimony he would have to in effect declare his defense prior to trial.

Now first of all, preliminary hearing generally takes place and it is designed to take place shortly after arrest.

At that point, the defense counsel has had a little opportunity to investigate into the allegations of the State's case.

So, generally he has insufficient knowledge to frame a defense bearing in mind that he would want to frame his defense only after he has heard the State's case or has ascertained the states case to determine whether or not he in fact would want to declare and interpose a defense and bind himself at a subsequent trial.

Chief Justice Warren E. Burger: Well, Mr. Gildea, are you not arguing the Coleman case now and we are -- that is behind this?

Mr. James E. Gildea: Yes Your Honor.

I am but I am only arguing in the sense that I am addressing myself to whether or not the failure to have counsel at a preliminary hearing will create any substantial incurment of the truth finding process at trial and that is why I address myself in that way and perhaps I did not understand the Court’s question.

Chief Justice Warren E. Burger: I thought the issue in this case was just, whether Coleman was to be retroactive?

Mr. James E. Gildea: That is correct Your Honor.

And in answering, attempting to answer that question, I proceed on the basis of whether or not the denial of counsel at the preliminary hearing would have any substantial effect and in result substantial effect on the truth finding process of trial and addressing myself to the functions of counsel or the purposes or the advantages to be secured by counsel at a preliminary hearing that is espoused by Court in Coleman.

Addressing myself to those specific remarks, I feel that in that connection by not having counsel for that purpose the defendant would not suffer any substantial incurment as the truth findings functions at trial.

Justice Thurgood Marshall: The sentence you are saying that nothing can be accomplished, why do lawyers retain counsel, a waste of time at preliminary hearings?

Mr. James E. Gildea: Well, it was not my intention to say that nothing can be accomplished.

I simply say --

Justice Thurgood Marshall: Why, if you admit that something could be accomplished then where are you with solving this?

Mr. James E. Gildea: Well, something can be accomplished but something could also have been accomplished in Miranda, something could also have been accomplished in Wade and Gilbert and --

Justice Thurgood Marshall: You have only got Coleman there.

Mr. James E. Gildea: That is correct but in the resolution of -- whether or not this substantially affects a subsequent trial.

The same things could be said in Wade and Stovall and Gilbert that something could be accomplished but does that mean by mere virtue of the fact that something could be accomplished by the presence of counsel.

Justice Thurgood Marshall: Well, would not the presence of counsel increase the truth finding process?

Mr. James E. Gildea: That would be I think a -- the very least it could do is just speculation.

I do not think that --

Justice Thurgood Marshall: You do not think that defense counsel do its cross-examination that aid the truth finding factor.

Mr. James E. Gildea: I think there is the possibility it could.

It is -- again it is matter of probabilities in degree.

Could we say though in all instances he would?

I -- that I would say no but I would say he could also to the same degree aid the truth finding process by attending a lineup.

Justice Thurgood Marshall: Have you not read Law Review Articles of famous criminal lawyer said they would never waive a preliminary hearing under any circumstances.

You think they are just nuts?

Mr. James E. Gildea: Well, it is not a question of waiving a preliminary hearing.

No Your Honor, I would not waive a preliminary hearing and this is not a question --

Justice Thurgood Marshall: What is the difference between waiving the preliminary hand and being there without counsel?

Mr. James E. Gildea: The question is what will a counsel do at a preliminary hearing?

Will he affect, do the things that the Court --

Justice Thurgood Marshall: Well, he will cross-examine, is it not?

Mr. James E. Gildea: He will cross-examine, yes Your Honor.

I would think he would.

Justice Thurgood Marshall: Because he has not got a thing in the world to loose.

Mr. James E. Gildea: That is correct.

Justice Thurgood Marshall: So he will cross-examine.

Mr. James E. Gildea: That is correct.

Justice Thurgood Marshall: Is that not helpful to the truth finding?

Mr. James E. Gildea: Yes.

It is helpful but is that -- are there alternatives because that also has to be considered.

Could he by discovery ascertain the same things and is it --

Justice Thurgood Marshall: Only in Illinois?

Mr. James E. Gildea: He has the right to interview witnesses, he gets to -- he has a right under his pretrial motions to a list of witnesses, he can ascertain the identities of the witnesses and he can talk to the witnesses.

Justice Thurgood Marshall: Can he cross-examine them under oath?

Mr. James E. Gildea: No, he cannot Your Honor.

But that may not be critical.

However, he has -- does have access to their testimony at the preliminary hearing.

He does have access to the testimony before the grand jury and he cannot frame questions during his cross-examination at trial in reference to their testimony at these preliminary stages.

I say these things because the Court has remarked in Stovall and I believe in Johnson versus New Jersey that the question of -- is a question of probabilities and Mr. Justice Marshall’s remarks are well taken but I would say that by the same degree, by the same token that Griffin versus California could have an effect on the truth finding process.

And in that connection I would say this -- that Bloom versus Illinois and Douglas versus Louisiana could also have an effect on the truth finding process of trial and I will also say that Miranda and Gilbert and Wade could also have an effect on the truth finding process but could we say simply by virtue of that fact that they would have a substantial effect so as to require that in all cases the rule should be applied retroactively.

Judged by the standards that were employed in Gilbert and Wade and in Miranda, we submit that the defendant would suffer no greater adversity by the absence of counsel at a preliminary hearing than it would in most cases.

And for that reason that -- the rule should no more be applied retroactively here than it would in Gilbert, Wade and Miranda.

Unknown Speaker: Does Illinois concede the possibility even if you are -- if we agreed with you that there should not be retroactivity of a due process exception as to cases preceding Coleman?

Mr. James E. Gildea: I would exceed that -- I would agree to that Your Honor and as a matter of fact in Bonner and in the Illinois cases, the Court has held where a defendant can show that he suffered prejudice or adversity by the failure to appoint counsel at the preliminary hearing then that in itself will entitle them to relief.

Unknown Speaker: Is that been the Illinois rule before Coleman?

Mr. James E. Gildea: Yes Your Honor that has been.

Unknown Speaker: I see.

Mr. James E. Gildea: And that has been, from the time of Morris at least until the time of Morris on -- up to the present.

Justice Potter Stewart: Now, that rule was restated in the Bonner case, would it not?

Mr. James E. Gildea: Yes Your Honor.

Justice Potter Stewart: At least the Court had opinion in this case.

Mr. James E. Gildea: Yes Your Honor.

Justice Potter Stewart: Was that based on the Due Process Clause of the Fourteenth Amendment or just on Illinois law or --

Mr. James E. Gildea: I think it is --

Justice Potter Stewart: Or Illinois constitutional --

Mr. James E. Gildea: The Due Process Clause, I think it has reference to perhaps White and Hamilton at the same time.

Unknown Speaker: That is based on the Federal Constitution not on Illinois law?

Mr. James E. Gildea: That is correct Your Honor.

I might also say that the preliminary hearing in Illinois is not particularly suited for the utilization or the gaining of the benefits that were intended on the Coleman rule, for example, that in the State of Illinois there is no requirement that a preliminary hearing be attended by a court reporter or a transcript be made of the testimony.

The Court is only required to hear so much evidence as will give rise to conclusion in his mind that there is probable cause.

That is that the defendant -- that a crime was committed and that this particular defendants before the bench committed it.

The presumption is therefore that the judge could hear just testimony from one witness and would not necessarily have to hear defense testimony.

Furthermore, the testimony at a preliminary hearing maybe based upon hearsay evidence solely.

And generally the rule is, or the practice is, the same as with grand jury matters and that is that the State will only call one witness, generally a police officer and he will relate what facts were revealed by the process of his investigations.

So, in reality there is not that great of an opportunity to secure material for impeachment and to discover that much about the State’s case.

As to the second criterion used by the -- or used by the Court as practiced in determining whether or not a case should be held retroactive that being the question of reliability, we submit that the State of Illinois did in good faith rely upon prior standards.

The only cases that were before the Court concerning the question of appointment of counsel were of course Powell versus Alabama which concerned itself with the effect that -- counsel at trial.

I do not believe that bears on the Coleman question.

Other than that we had Hamilton versus Alabama and White versus Maryland.

Hamilton versus Alabama was a question of concerning the appointments of counsel in an arraignment.

Now, in Illinois counsel is required to reappoint arraignment and under Hamilton, of course the arraignment there differed, we believe drastically from the preliminary hearing in Illinois in this respect in Hamilton versus Alabama of course, the defendant had to assert rights there such as a plea and abatement.

A challenge to the composition of the grand jury and (Inaudible), I assume too or by not doing so he would forever waive those rights.

Now, under Illinois law as interpreted in People versus Bonner, there was no binding effect that a defendant could suffer by not having or by not asserting any rights or by not objecting to any evidence at the preliminary hearing.

Indeed if he testified, that testimony could not be used against him during a subsequent proceeding and he was not bound by a failure to assert any defense.

And of course in White versus Maryland the – there, there was a plea of guilty interposed by the defendant at the preliminary hearing which was used at his trial.

And that ipso facto did bear upon the truth finding process at the trial since it was considered by the Trial Court.

Now Illinois as relied on this distinction has pointed out the distinction in People versus Bonner, in that connection I would call the Court’s attention to the fact that we were not alone in doing so.

There were some 33 other jurisdictions that also pointed to that fact in distinguishing their preliminary hearings from those in White versus Maryland and as against the arraignment proceedings in Hamilton versus Alabama and as to amongst those 33 other jurisdictions, all of the Federal Courts of Appeals subsequent to 1963 did themselves hold that where the preliminary hearing was not such as to bind -- defend at the trial that the requirement of counsel was not of constitutional dimension.

So, we submit there was no clear foreshadowing of the Coleman Doctrine prior to the announcement of Coleman that the Illinois Courts could be bound by it.

As to the effect upon the administration of justice, the appellant asserts that it is his contention that this would not affect a great number of cases in Illinois because of the fact or a great number of cases anywhere because of the fact that it is his contention that the failure to interpose an objection on that basis must be considered a waiver and we consider that -- we believe that that is a misinterpretation of the law as stated by this Court in O’Conner versus Ohio where it said that a defendant could not be deemed to waive an objection to a constitutional question that was subsequently pronounced because it could be no more binding on him that it could be upon the States who could not have anticipated such a ruling.

So I do not believe that he is correct in his say as to that point.

Justice William J. Brennan: I gather your Bonner rule -- it does not matter whether the objection is made, does it not?

Mr. James E. Gildea: No, Your Honor, it does not.

Justice William J. Brennan: Whether it is -- whether made or not if that prejudice is shown that he is entitled to release?

Mr. James E. Gildea: Whether there has been an error -- a question of substantial magnitude, a constitutional magnitude, the waiver doctrine does not preclude the defendant from not making that assertion at the first time or an appeal or in a collateral proceeding.

As recently as 1965, some two-thirds of the States of this union did not provide for the appointment of counsel at a preliminary hearing.

It was not until 1964 that the Federal Courts adopted Section 3060 of Title 18 providing for the appointment of counsel in federal cases.

So that we submit that there is a vast number of cases prior to 1964 and 1965 that would have to perforce be affected by any ruling by this Court holding the requirement of counsel at a preliminary hearing retroactive.

Furthermore, since in Illinois and I believe in many other States a transcripts of the preliminary hearing is not required.

It becomes a very difficult question to determine how if Chapman, if the case is to be remanded on the bases of Chapman versus California for a determination of whether or not there was harmless error, how could that be established where there was no transcript of the preliminary hearing in which anybody can decide what in fact happened at the preliminary hearing.

Furthermore, what criteria would be used by the Court to decide whether or not failure to cross-examine, failure to object would have any substantial effects on the truth finding process of the trial?

How could that determination be made?

We are dealing in a very naiveties area.

The problem of finding change, there would be no standards, no guidelines that the Court could use and as to cases going far back, I question whether or not it could even be ascertained at least from the State's point of view, whether or not the petitioner did have the benefits of counsel or not.

Justice William J. Brennan: I gather most of those missed prior proceedings, no transcripts were made, no record even taken (Voice Overlap)?

Mr. James E. Gildea: That is correct Your Honor.

That is correct.

Justice William J. Brennan: What about today?

(Inaudible)

Mr. James E. Gildea: Well, the rule has been changed drastically because of the recent opinions and now they are compelled to do so for this very reason.

Also addressing myself to one or two remarks that were made by my colleague in his presentation, I might say that the failure to move to suppress any physical evidence prefatory to trial is -- does not preclude the defendant from making such a motion at trial.

Thank you.

Chief Justice Warren E. Burger: Thank you.

You have seven minutes left counsel.

Rebuttal of Edward M. Genson

Mr. Edward M. Genson: Just briefly speaking and may it please the Court.

Justice Schauer in his dissent in Bonner did deal with constitutional issues and as a matter of fact stated that if constitutional issues are to be considered, this is the last two paragraphs of his opinion, the appropriate constitutional reference in my opinion is Escobedo versus Illinois in which it was held that a constitutional right of counsel was abrogated when a suspect was denied an opportunity to consult with his retained attorney.

Following that he points out to the -- he points out the different advantages a defendant would have where he would have had an attorney at the trial.

So, Justice Schauer did in his concurring opinion or in his dissenting opinion in Bonner did speak to the constitutional issue.

Further, I would like to point this out that relative to the motion to dismiss the indictment that was filed, the motion to dismiss indictment within Illinois had the same effect as the motion to request a preliminary hearing.

The indictment would have been dismissed, the statute of limitations would have been tolled, there would have been no difference.

Thirdly, I would like to say this, whether in fact a harmless error could be shown would depend I think on the individual case, and therefore, it would become relevant whether a case was a strong or weak one.

In this case the testimony revolved around the uncorroborated statement or substantially uncorroborated statement of an addict informer who allegedly purchased narcotic during a substantial period of time, though the policemen were not present and a lot of things could have happened.

In Illinois --

Unknown Speaker: (Inaudible)

Mr. Edward M. Genson: In Illinois and on the basis of the different appellate opinions, a sale of narcotics to an addict informer which is substantially uncorroborated would merit reversal.

The Courts in the -- the Court has in cases dealing with the right to counsel as a judicial proceeding have held this to be retroactive in the past.

We are contending and asking in the present case that this be done here too.

One more thing I would like to point out.

The due process exception in Bonner or alleged due process, there is nothing in Bonner which specifically states that a man has a remedy if he could show prejudice and I think one of the difference and perhaps if this Court and their opinion would point out the difference, one of the differences between Coleman or Stovall and Johnson and Coleman is in Stovall, we specifically state that there is a due process or a stopgap in the event because it is not being held retroactive.

In Johnson, they specifically say that the due process is stopgap relative to the issue of voluntariness.

The Bonner case in Illinois does not set out any test whatsoever as to whether or not something should devolve or be a violation of due process.

The only remarks in either Bonner or Morris is that in this case no prejudice was shown.

It does not state specifically that if prejudice would be shown that we would -- that there would be any opportunity for the defendant to waive this in any way.

So I think this is another important difference between Stovall, between Johnson and between Coleman in that in Stovall and Johnson there is an expressed exception, a due process exception.

There would be none under Illinois law specifically.

There is nothing in Illinois that leads to it.

The last point I would make is the analogy between or the analogies made between Bloom, Duncan, Griffin, relative to the effect on the fact finding process.

Coleman dealt with a Sixth Amendment right to counsel just as Gideon dealt with the Sixth Amendment right to counsel.

Bloom and Duncan in order to assume a lack of fairness would have had to assume that the judge that heard the case was prejudiced.

Griffin concluded that this was a Fifth Amendment protection.

In this case, Coleman is a Sixth Amendment protection and the Sixth Amendment protection at a judicial proceeding and this is in a -- we feel that the exception is broad enough here to the other cases.

The differences are clear enough as to one claim of retroactivity.

Thank you very much, Your Honor.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.