SANTOBELLO v. NEW YORK
Argument of Irving Anolik
Chief Justice Warren E. Burger: We will hear arguments next in number 98, Santobello against New York.
Mr. Anolik you may proceed whenever you are ready.
Mr. Irving Anolik: Mr. Chief Justice and may it please the Court.
This case is here on certiorari to the appeal provision of the Supreme Court of the State of New York which affirmed a judgment of the Supreme Court Bronx County convicting Santobello, the petitioner of possession of Gambling Records in the Second Degree as a misdemeanor upon his plea of guilty.
The issue before this Court is whether or not but for a promise --
Unknown Speaker: Right.
Mr. Irving Anolik: -- which admittedly was articulated by the Assistant District Attorney to refrain from any recommendation with respect to sentence, Santobello would have pled guilty in the first place.
We maintain that is the only issue before this Court.
At the trial level, the Executive Assistant Mr. Rodka(ph) when asked whether or not a promise had been articulated.
That is when he was asked before the sentencing judge said that the minutes of the plea did not reveal any such promise.
Although he had been personally present at the plea.
Commendably, Mr. Sullivan who was Chief of the Appeals Bureau of that office inquired of Assistant District Attorney Greenfield who had been also present at the plea of guilty with Mr. Rodka and he notified Mr. Sullivan that such a promise had indeed been made.
And that in the briefs before this Court as they were before the appellate Division of the Supreme Court of New York, there is a concession that the promise had in fact been made and broken.
We respectfully maintain that had Mr. Rodka, the Executive Assistant, told Justice Gelanoff who was the sentencing judge in this case that the promise in fact had been made.
One, Justice Gelanoff probably would have permitted a withdrawal of the plea of guilty or two, certainly under the American Bar Associations standards, the District Attorney would have been bound to have assisted the defendant in withdrawing his plea of guilty.
Instead the impression was left with Justice Gelanoff that no such promise had been made.
Direct application on appeal was more solace to Santobello.
Now, in the course of the proceedings --
Justice Potter Stewart: Now, the promise was that the prosecutor would make no recommendation with respect to Santobello.
Mr. Irving Anolik: That is correct Mr. Justice Stewart.
Justice Potter Stewart: That was the length and breadth of the promise.
Mr. Irving Anolik: That is correct and we maintain that that has a substantial influence contrary to my illustrious colleague here, we maintain that as a substantial influence upon a sentencing Court.
In their Brief they maintain that judges are never influenced by recommendations or lack of recommendations of the prosecutors.
Justice Potter Stewart: This particular judge said that he was not influenced, did he not?
Mr. Irving Anolik: That is quite true Justice Stewart he said that.
But we maintain that what he said and the consequences of what he did are quite incompatible.
We maintain that in White v. Gattney (ph) for example the Tenth Circuit case which is adverted to, that there too the judge, said he is not a listed influence.
Since my colleague here went dehors the record so to speak in saying judges are never influenced and incidentally, he is my successor as Chief of the Appeals Bureau on that office.
I think that I can ask this Court to take judicial notice of the fact that judges are frequently influenced by what prosecutor’s say.
So to say that it was diminished or that the judge merely by articulating that he was not influenced is of no solace because it begs the question.
The issue here is not whether the sentence was fair.
That is not the issue at all but that seems to be what the respondent is maintaining.
That the sentence was fair, it was the maximum permitted under law and perhaps it was fair.
But that is not the issue.
Justice Potter Stewart: The issue is that when the prosecutor gives a promise of a quid pro quo for a plea of guilty.
It is Due Process requires that he keeps words.
Mr. Irving Anolik: That is absolutely correct Justice Stewart and that is our position.
Now in the course of --
Chief Justice Warren E. Burger: What is the remedy for that then, would the remedy be to send it back or on a re-sentencing in circumstances where there was no recommendation or there was a premise fulfilled?
Mr. Irving Anolik: No.
The remedy would be --
Chief Justice Warren E. Burger: Why would not that be a delivery of the consideration promised?
Mr. Irving Anolik: Because the -- well, it conceivably could be the delivery of the promise except that now because of the notoriety which this case has achieved, we maintain that it would be of no use.
This case is extremely well-known now in Bronx County.
Chief Justice Warren E. Burger: I do not mean what is the reason for the notoriety, what is the reason that the judge cannot be assumed to make a decision independently.
Mr. Irving Anolik: Well, a judge certainly can be assumed to make a decision independently.
Justice Gelanoff if no articulation of a promise at all had taken place, quite possibly might have given the year sentence.
That is entirely possible.
Chief Justice Warren E. Burger: That is what he chose now is it not?
Mr. Irving Anolik: That is what he said at the time.
However that is merely speculation because --
Unknown Speaker: I know you understood the case, I thought he wanted to withdraw his plea?
Mr. Irving Anolik: He does want to withdraw his plea.
That is exactly what he wants to do Justice.
Unknown Speaker: Well that will be trial in the merits.
Mr. Irving Anolik: That is correct that is the only remedy we are seeking here is the right to withdraw his plea of guilty and to plead new.
Chief Justice Warren E. Burger: That does not necessarily mean that is the remedy that you would get.
Mr. Irving Anolik: That I realized.
But by the same token it would be the only fair remedy because the fact remains that we are now trying to undo what has been done wrongly.
Justice Potter Stewart: I was questioned, whether you get specific performance or recession.
Mr. Irving Anolik: That is correct and we maintain that where there has been a misrepresentation.
Even if it was without malicious intent and we are not alleging maliciousness here.
Even if were without malicious intent, the only remedy is to permit the withdrawal of the plea of guilty.
And that is --
Justice Potter Stewart: Now that is recession of the contract-
Mr. Irving Anolik: In effect, yes.
Justice Potter Stewart: Chief Justice was expressing the tentative view in his question that maybe what you are trying to do is specific performance of the contract.
Mr. Irving Anolik: Yes.
Justice Potter Stewart: Or re-sentencing in which the prosecutor would make no --
Mr. Irving Anolik: Alright and I recognized that the possibility of that interpret -- we are not asking for that and we feel under the circumstance of this case that would be unfair.
Because you could not undo the publicity and the notoriety that has taken place in this case.
Justice Harry A. Blackmun: Would it be acceptable to the reinstatement of the dismissed felony counts?
Mr. Irving Anolik: Oh, by all means.
The reinstatement of the felony counts would certainly follow and that he would have to go to trial and face the possibility of a number of years in jail.
We well recognize that, I have communicated this to the petitioner and he is willing to take his chances on that.
Mr. Justice Blackmun there is no question about that he would have to go to trial on the original felony counts.
Justice Harry A. Blackmun: I want to be sure, I did not get it from your Brief and I want to –
Mr. Irving Anolik: No.
Well I want to make that quite sure that I am not asking that he be permitted to go to trial in the misdemeanor.
That would be totally unfair and I am not trying to advocate such a procedure at all Justice Blackmun.
The prosecutor in his Brief, the respondent’s Brief indicates that during the course of these proceedings and perhaps I should take one moment just to give you the chronology of what occurred here.
That the defendant here been indicted for two felonies involving gambling.
He had made a motion to suppress evidence returnable June 17th, 1969.
On June 16th, 1969, a day before the return day of that motion he interposed a plea of guilty to the misdemeanor before Justice Marks.
On the 17th the motion to suppress evidence was apparently adjourned without any disposition.
A lawyer by the name of Fructman(ph) represented the defendant during these times.
Subsequently, I believe it was on September or October of 1969, a different lawyer by the name of Garanstein(ph) was retained by the petitioner here in.
And he then apparently tried to revive the crescent or dormant motion to suppress.
And in the course of doing that he indicated that this petitioner was unaware of certain rights which apparently was an incorrect statement.
Now, if there had been an issue of credibility as to whether or not a promise had been made or if there had not been a concession that the promise had been and broken then this factor would be significant in judging the credibility of the petitioner.
And we maintain that bringing this issue out is irrelevant completely.
Because it begs the question here namely that whether or not the credibility of the petitioner is good or bad after as to a collateral issue, the fact remains that by concession, this issue was crystallized namely if the promise was made and broken.
So to that extent will you just wish to distinguish that from the Brief of the respondent.
We also maintain that in this case the District Attorney says, well this defendant has never indicated that he was innocent.
Well, in our Brief of course we say that he is so maintaining but if we look at what he was trying to do and I think Mr. Justice Blackmun put his finger on it.
Here is the defendant who is asking that he be put back instead in status quo anti.
They would be permitted to withdraw this plea of guilty and go to trial under felonies.
Well, obviously if you were guilty and felt that he would certainly be convicted.
I doubt that he would seek such a remedy.
So I think that certainly, circumstantially and inferentially he clearly indicates and has always indicated that he is innocent and I think that too is an irrelevant aspect of this case because the petitioner has made no doubt whatsoever as to what he is seeking here and no more and no less of course.
At the time of the sentencing, I might point out most respectfully to your Honors that the sentencing minutes begin at page 21 (a) of the joint appendix inadvertently, it seems that the printer calling it plea.
The sentence begins at 21 (a) of the joint appendix.
Now, at the time of the sentencing here which incidentally came on before a different justice than the justice who accepted the plea of the guilty, Justice Marks as I had indicated accepted the plea of guilty.
He had retired at the end of 1969 and he then apparently was superseded in the capacity of sentencing judge anyway by Justice Gelanoff.
The District Attorney argues in his briefs and there is no basis in the record for this incidentally but he contends in his Brief that Santobello received the functional equivalency of his promise.
Now I frankly fail to follow that line of reasoning and I believe that it is a casuistic line of reasoning.
Because there was no functional equivalency here, he said that after all, the respondent says after all Justice Gelanoff said that he did not really pay any attention to the prosecutor.
Now, we have to bear in mind that the prosecutor here who was the executive assistant.
I think second or third in command of that office came in and made an impassioned plea for the maximum possible sentence under the law, adverting to merits clearly dehors the record conceiving in the record that he did not know what the probation report contained.
Linking this defendant with organized crime whether or not there is such a thing that probation report, I do not know because I have not seen it.
Chief Justice Warren E. Burger: Is that all in the appendix?
Mr. Irving Anolik: Oh yes.
Yes at page --
Chief Justice Warren E. Burger: That begins at 21 is it?
Mr. Irving Anolik: Yes but at page 33, 34 and 35, I think you will find that Mr. Chief Justice.
And I think that that is very significant because after all we are not just dealing with a simple articulation of a statement.
At page 38, the actual or the word arraign him for sentence appear.
So from 21 to 30 (a) are just preliminaries although it is a part of a sentencing minutes.
But at 30 (a) begins the actual meet so to speak of the sentencing minutes, and I would point out that Mr. Chief Justice that Mr. Rodka begin at page 32 (a).
And in the course of that as I say he brings in a number of things which were completely irrelevant and I think the fact that he adverts to organize crime, adverts the fact that this man had allegedly or not allegedly but had been previously convicted of a murder, which incidentally as I understand it from knowledge of the co-defendant in that same case, a fellow by the name of Joseph Corbo (ph), the United States Court of Appeals had declared that a confession in the Corbo case had been involuntarily obtained and it is my understanding that Santobello also reaped the benefit of that because although not for that he would still be in jail.
He was apparently given time served and got out after 11 or 12 years of that sentence.
So he had previously been the victim of a coerced confession.
It is true that a plea of guilty may not be an extra judicial confession but it is nonetheless an ultimate confession of guilt.
And when the prosecutor says that he was sophisticated, he maybe correct to the extent the he knew what could happen to him because he had been formerly victimized as the victim of a coerced confession.
But we maintain that the all too often function of a prosecutor, who perhaps sometimes is carried away by his zeal of bringing in completely irrelevant inflammatory and prejudicial matter to which the hapless defendant has no right to confront witnesses, cannot come forward and say what is the basis for these allegations.
They are just articulated at the time of sentence which was done here and to say that a Judge can sit by in completely without being affected by that, I say is a mental gymnastic which no judge in the world or very few judges could possibly perform.
And just to paraphrase Judge Hand on that.
And we maintain that is a serious and important factor in this case.
Now, in addition to the forgoing, the District Attorney in arguing further on his conception of functional equivalency states that we really should look into the issue of whether or not this man received a fair sentence.
And with all due respect to the respondent I think that completely misses the point here.
We are dealing now with a concept of whether or not the representation of a District Attorney, a public prosecutor, whether or not it is malicious or innocent, if he makes a representation thus he have a right to break that representation if it in fact induced a plea of guilty.
Justice Gelanoff permitted no hearing on this issue although Mr. Aronstein said that a trial attorney who was present at that time was prepared to come forward and testify under oath that such a promise was made and we must bear in mind and I give the benefit of the doubt to executive assistant Rodka.
We must bear in mind that at that time Mr. Rodka made no inquiry of anyone as to whether a promise in fact was made.
He merely said that there is nothing in the plea minutes indicated was made.
Now, that frankly from an experienced prosecutor is a very amazing statement and perhaps this Court should be oriented to the extent of knowing what goes on at a plea bargaining session which perhaps you know far better than myself but at a plea bargaining session unfortunately there is a certain charade that is put on and I do not think that my colleague would can test this.
Namely, that outside the presence of the sentencing judge the prosecutor and the defense counsel get together and perhaps ask each other.
Well, how can we resolve this case?
And I recognized that this Court has said that plea bargaining is perfectly proper and I am not condemning it but the point is that they decide that this case can be resolved by offering a plea of guilty to a misdemeanor which was done in this case.
But no attorney worth his salt who is experienced in the criminal field and Mr. Aronstein at that time was a man of about 75 who had been practicing criminal law for many, many years.
No attorney worth his salt would accept a plea bargain without at least some conception as what the possible sentence might be.
Now, I might say that Justice Marks had a reputation of being fairly lenient sentencer, Justice Gelanoff has the contrary reputation.
The representation was elicited from assistant District Attorney Greenfield that he would not in any way put the judge so to speak on a spot.
That he would refrain from making any representation whatsoever or recommendation with respect to sentence.
And in that context this was communicated to the petitioner and that is the reason that he pled guilty.
Now, you may wonder why was it that this was not put on the record.
For some reason it is almost never put on the record.
I might point out also that in the elocution at the time of plea, now plea which is at pages 19 and 20 particularly of the joint appendix.
For some reason, and perhaps for a good reason, the judge Justice Marks did not ask the petitioner, was a promise made to you which is very unusual in New York plus that is almost always asked.
In this case it was not asked.
So, we may well infer that even the Judge perhaps was aware of the fact that a promise had been made.
Now, if that were the case, of course it would merely exacerbate the situation.
But it is quite contrary to usual practice, not to specifically inquire of a defendant who was taking a plea where any promises made to you or any threats made to you.
In this case, neither of those two questions were ever put to Santobello.
The ABA standards as I have adverted to already clearly indicate what responsibilities of the prosecutor are.
Those ABA standards, the American Bar Association standards were clearly violated.
Again, I face into argue on this.
I am not alleging malicious violation because I have no reason for believing it is malicious.
Particularly in view of Mr. Sullivan’s very commendable admission that the promises were made.
But I do think the damage has been done and the only remedy of course, we would maintain would be the remedy of permitting a withdrawal of the plea of guilty and let me go to trial on the felonies and if he is convicted of the felonies and serves many years.
Well, that is his problem.
He has been made well aware of these facts.
Justice Potter Stewart: Mr. Anolik this case begin with the two felony charges.
Mr. Irving Anolik: That is right.
Justice Potter Stewart: That he was indicted.
Mr. Irving Anolik: That is correct.
Justice Potter Stewart: Two related felonies.
Mr. Irving Anolik: Two.
Justice Potter Stewart: And then that as a result of the plea bargain he pleaded guilty to one misdemeanor.
Mr. Irving Anolik: That is correct Justice Stewart.
Justice Potter Stewart: Were the felony indictment dismissed and --
Mr. Irving Anolik: No they were not, the procedure that would be followed with a plea of guilty is permitted to be withdrawn, is that the felony indictments would automatically be reinstated.
He would have to go to trial on the felony indictment and quite sure of my colleague Mr. Sullivan, would not for a moment deny that fact.
Justice Potter Stewart: And there would be any double jeopardy --
Mr. Irving Anolik: There would be no double jeopardy in my opinion and as a matter of fact I think that he is bringing this proceeding to withdraw the plea would be a waiver of such a defense.
So and certainly I would not be a party to such a defense.
Justice Potter Stewart: Well, then there is no question as I get it that the felony indictments are still outstanding.
Mr. Irving Anolik: No question about it if there should be a reversal and that permitting him re-plead.
I do not think there is any question about that Justice Stewart.
Chief Justice Warren E. Burger: Mr. Anolik.
Mr. Irving Anolik: Yes Mr. Chief Justice.
Chief Justice Warren E. Burger: Looking at page 35 of the appendix where the sentencing judge said in response to Mr. Aronstein’s calling attention to an agreement which had not been fulfilled said “I am not at all inference by what the District Attorney says,” does not make a particle of difference what the District Attorney says he will do or does not do.
I have here and then he goes on reading apparently from the pre-sentence report indicating that this man as he put it was a professional criminal, a recidivist and that the only way of holding his criminal activities was to put him away, that is the language that he used.
Now in the face of that categorical language, insist as I understand it that the judge would not have given this same sentence, if the District Attorney had been absolutely silent.
Mr. Irving Anolik: Well, Chief Justice I would say this.
Perhaps he would have perhaps he would not.
I do not know.
Chief Justice Warren E. Burger: Who is the best judge of those available?
Mr. Irving Anolik: Well, the Judge himself of course.
Chief Justice Warren E. Burger: When now he did not have much of the range here to work in, did he?
Mr. Irving Anolik: Yes he did.
He could have give him a suspended sentence--
Chief Justice Warren E. Burger: Oh yes.
Mr. Irving Anolik: Anything up to the --
Chief Justice Warren E. Burger: But I am speaking of the difference in the range where you have no sentence to one year or you had a one year to 20 years then that is kind of range, I am talking about.
Mr. Irving Anolik: That is true.
Well, I think though Chief Justice that you are addressing yourself to the fairness of the sentence and we may --
Chief Justice Warren E. Burger: Addressing myself to the whole problem.
Mr. Irving Anolik: Yes I realize that.
Chief Justice Warren E. Burger: I can understand he was an advocate, when he compartmentalized this --.
Mr. Irving Anolik: And I am not trying to avoid the question, believe me.
I fully recognize the problem that you are posing Mr. Chief Justice but it would appear to me that this would go to the very heart of the plea bargaining process, because in effect it would be establishing the precedent that a prosecutor could violate a promise and as long as the Sentencing Judge said, “well, it is truly violated the promise” but I am not influenced by it anyway.
I am going to give him this maximum sentence anyway, and I think that that would go to the very gut of the plea bargaining process and render it a mockery.
No defendant would feel safe in relying upon the promise of a prosecutor again, because of the fact that he would know that the prosecutor could deliberately violate it knowing that if he were lucky enough to put him before a tough judge and bear in mind in this situation, the prosecutor picks the judge.
When the judge retires that the calendar procedure in New York county and I believe it is the same in Bronx county is that the judges are selected by the prosecutor.
They are not automatically picked out of a lot, as the cases in the southern district of New York.
So it is quite something when a prosecutor can pick out a judge who he knows is tough and that is what happened in this case.
So it is quite something to consider.
Chief Justice Warren E. Burger: Mr. Sullivan.
Argument of Daniel J. Sullivan
Mr. Daniel J. Sullivan: Mr. Chief Justice, and may it please the Court.
I know of course that this tribunal will look at my briefs or statement of the legal position, I have taken because as yet I have not heard it articulated.
Alright, perhaps more importantly, I have not really heard much that resembles the factually the case of Santobello against New York and I propose (Inaudible) specific case.
Now, to begin with counsel seemed to had some difficulty in focusing on just what the legal question is here.
We are not accused of trying to overreach as such in this case, the fact is this record will demonstrate that we do not have a prosecutorial misconduct case at all.
There is no proof on this record of any bad faith on bar.
It has been disclosed to the Court that when time permitted and we became aware of it, well, we disclosed the true fact here.
Now, the legal question that I do see here is one of reviewing the exercise of judicial discretion.
In other words, the judge at the sentencing level being asked for permission to withdraw the plea.
He acts decently in this situation finding out now, where he sentenced the petitioner that perhaps such a promise has been made.
Now, I will come back hopefully to that in a moment.
There is more in this record than even the sentencing judge was aware.
Like, I am aware of the powers of this Court to review the record in this in entirely and I submit to your honors that if you look at this record, one thing will become crystal clear that this whole claim by the petitioner can be fairly rendered a sham.
The fact of the matter is that there was never a viable sentence agreement, we can analogize the contract law.
In other words, Santobello just never put any stock in this representation.
You recall how it came up.
One assistant district attorney tells us before his counsel.
The prosecutor would remain partisan at the time of sentence.
Petitioner is given a misdemeanor plea, go ahead into the future, a different assistant is in the bar and he asked for a maximum sentence.
In this case, it was a year.
Now, in support of my claim and I say the record demonstrates, that this I think would fairly be called a sham claim.
I call the Court’s attention in several facts.
From Santobello's perspective, he himself reports with his prior murder conviction and all was no reign on in the Courts.
He knew certainly that judges control sentences and there was no a judge privy to any of the promises made here.
I have spoken already about the limited scope, then the nature of the promise itself I think has a relevance here when the man hopes that a prosecutor will remain partisan at the time of sentence.
He is not really opting for much in this situation.
It is more, I would suggest in expectancy or a hope really what one might call a promise and I have referred in my brief to several cases on that score.
Justice Potter Stewart: Mr. Sullivan, where in the appendix of the record can we find the words of this promise and circumstances under which it is made or does it all rest now just simply on the confession of viewing your colleagues.
Mr. Daniel J. Sullivan: Yes Mr. Justice Stewart, it is my doubt.
I came up on appeal.
The claim was made in the appellate division, so what happened simply that call of follow up that was named or recorded asked him if you made those promises, he said yes, so it is closing.
Justice Potter Stewart: And that.
Mr. Daniel J. Sullivan: Pardon me?
Justice Potter Stewart: And that is all we have?
It is just your confession, we do not know when or where, how or it affirms the policies.
Mr. Daniel J. Sullivan: No.
But I am willing to concede that the promise was made before the man pleaded.
I know that to be the fact that as -- say I think in this area I can certainly make the confession.
Now, in short, the way I got it was that counsel said that was you would not ask or anything at the time of sentencing and the assistant said “no, I would not”.
That is assistant A and then of course B comes in to the picture at the actual time of sentence.
Justice Potter Stewart: Do we even have that much in writing anymore in the record?
Mr. Daniel J. Sullivan: We do not Mr. Justice Stewart, no.
Justice Potter Stewart: Just your confession before the reports inherently.
Mr. Daniel J. Sullivan: Well, then the problem there was in the review of the record whether we should make it in session or whether on balance, at least in our view, we felt that the man had not been overreached and thus proceeding, and so that that is on 34 (a) of the appellant's appendix. Now, while characterizing the petitioner here, I think I may fairly say on this record that he was engaged in Judge shopping here.
You have heard reference made to Justice Marks being lenient in his sentences and that he had but one intendment to this petitioner, that says out of jail.
Alright, and I suggested to the Court that perhaps that is the same kind of thread running through this case right up until now despite the pro-rata respecting, having to face future charges.
Who knows what the future will bring? But I propose of what I am saying here that this was Judge shopping in effort to stay out of jail, you will find that the record indicates that Santobello’s first action in this case was to move to suppress the tangible evidence that had been found on its presence.
Now, it predates that several months until Justice Marks, who usually is in New York County, up into Bronx.
As it happens he takes the plea before Justice Marks.
Now, he withdraws that motion, alright?
We never have a point in this case again in which there is any claim of innocence which has a very important bearing under the Law of New York State because if a man made such a claim prior to the actual pronouncement of sentence or laws, is pretty much if you have to do something about it, you have to let him vacate or at least to have a hearing.
So now, I said that is an indication that he picked this judge, and looked like he was going along, alright.
The judge will order the probation report.
Now wanting to adjourn date before Justice Marks with no preliminaries, no reported preliminaries.
Justice Marks gets up and says, in the record, one line.
In view of the probation report I am putting in this case over.
And I say that is an artilerry of things to come, that a Justice armed with a full probation report, now knows the background and Santobello knows the background.
In short, there is very little hope even before Justice Marks.
So what happens?
A week goes by, we have a change and the defense waives, incomes Santobello the petitioner would have battery emotions now.
One of which is to withdraw the plea of guilty.
In it, among other things he squares in an affidavit, hey, you did not know, we had a right to move to suppress.
The fact being he already put in a small affidavit, abandon that claim.
We submit to the Court as evidence, the conduct of this man to be taken as prima-facie evidence of perjury and more important in this context of the fact that what was happening here was Santobello, the petitioner was trying to dupe the Courts of New York State, and this case really is the other way around.
Chief Justice Warren E. Burger: Trying to do what?
Mr. Daniel J. Sullivan: Dupe.
In other words, I am suggesting to this Court and on this record, you may conclude that you are going to probably ensure what coming in here.
Looking for every advantage, not at all concerned with the claim of innocence, that was no where in this case, I can hear it now, first time.
All he wants to do is walk away, avoid incarceration, watch another mark, given his particular background.
Chief Justice Warren E. Burger: How much of the sentence if any has he served?
Mr. Daniel J. Sullivan: Oh, I think the matter, he got out on post conviction, bail application Mr. Chief Justice.
Now, again now as I say, that sentencing over the case, that particular affidavit which is fairly susceptible of characterization as precarious and somehow disappeared from New York to files in New York Supreme Court.
Well, in any event now, we react to base, a suppression motion in conjunction with this effort to withdraw his plea.
Additionally as I say he does not trigger the New York law by making a claim of innocence.
At that time, we offered him a hearing.
As it turned and particularly as we put in our own opposing phase, it was to challenge this assertion about how active knowledge of constitutional right.
However, Judge Marks decided that we did not need that hearing and he puts the case over.
Now, this truly came on before Justice Gelanoff and on this record, I do not know myself in this record would not tell you how it got before for him, characterization is that he is a tough sentencing Judge.
I have made clear, I do not see that there is any way that can be determined on this record but what can be --
Justice Potter Stewart: No, Judge could have been much tougher under this plea of guilty, he gave the maximum sentence.
Mr. Daniel J. Sullivan: He did Mr. Justice Stewart but we come again to this probation report which is before to the Court and I am going to suggest shortly, that really there is no alternative.
I do not know if Santobello knows.
Now, the sentencing proceeding itself was marked by the effort by the Attorney Aronstein, that to stole again, keep this man out of jail.
And if you will find it, it is clear in the record, he starts involving some things about prior motions and about some comment of one he did not now, what had happened when he has been in the part and had been ruling -- I do not know, bogged down on that.
I think the fair characterization of this episode is that his last big stand was to stay out of jail.
Now, never was there a formal motion.
What happened was this, the man will sentenced Santobello, counsel Aronstein and then brought up the subject of this prior promise.
And that happened very quickly now.
The prosecutor in the bar said something about it not being reflected in the minutes but the prosecution for the defense for that matter really did not get an opportunity to dwell on this subject to go into evidence because the judge took over.
So there is no opportunity to do anymore even if we want to do.
And what the judge said in essence was a promise or not, I would not be affected because I have got an overriding probationary report.
I would have no alternative when he was silent, you ask for the maximum.
There is only one thing I can do, here is a quoted portion in the record of the probation report which is a plea to remove this man from the streets and this Court now has a full probation report and of course, would be better positioned to make an analysis of the propriety of that decision which as I see it is the question in this case.
Usually this kind of thing comes up in the collateral post-conviction application.
What is happened here of course is the sentencing judge was (Inaudible).
Now, there is a Tenth Circuit case that (Inaudible) referred to in which Kansas went along much the way I have been speaking in Tenth Circuit vacated judgment.
On the reasoning that I have some difficulty coping with.
However, Kansas approached that this is a matter of the exercise of the judicial discretion.
The case involved however a license without over parole and while we will never know, the point is that the case was vacated and as the reason is not clear.
They talk in terms of the effectiveness of the promise, I do not see really what difference that would make because, had we got ahead and remained partisan, he got no benefit from it.
Esthetically, then of course we would have gotten, well he opted for a bargain for and that is what I say essentially happened here.
The judge is not privy to it, he is apprised of what happened.
But the judge has positioned himself that there is nothing else he can do about it.
Your Honor I think the biggest difference between this case and White and all is there is no proof of reliance, whatsoever in this case.
As I have said before that has been suggested here that in reliance upon this assertion, a promise to remain partisan that Santobello took the plea.
You would not find that record at all and if we were even to assume, this Court will exercise its powers over the facts that if Santobello recalled that hearing and I do not see that it would be necessary and we assume that he testified it and relied on it, well that is a fact or not.
You have enough record evidence here.
Taking a broader view of the record to reject that claim and in constitutional terms, in the narrower case if we reject that argument, I suggest to your honors that he did not in fact get what I call the functional equivalency.
Certainly, the man has been promised something, we have to leave up, it would not be here.
Justice Thurgood Marshall: Mr. Sullivan, you say on the pre-sentence report that when we study it, we will then know that it those could be done by the maximum sentence?
Mr. Daniel J. Sullivan: Mr. Justice Marshall yes, I say that you will --
Justice Thurgood Marshall: Then, again, I assume that the district attorney had the same feeling?
Mr. Daniel J. Sullivan: That he might the way -- I think he would have gone --
Justice Thurgood Marshall: Why did he take his time arguing?
Mr. Daniel J. Sullivan: I am sorry Mr. Justice.
Justice Thurgood Marshall: Why did he make the statement that he had to make extra sentencing period, if he was so sure that there was nothing else Judge Marks could do but give him the maximum.
He could have mooted this whole thing out, could he not?
Mr. Daniel J. Sullivan: Mr. Justice Marshall I think he could, they could have stopped.
He could have checked in.
I will read this record and certainly there is no indication, he knew what the other fellow had done you see, and as l say that was very quick, the whole thing you will see, a line or two in the record and it is over.
Justice Thurgood Marshall: But you say we can look at this pre-sentence report which I have looked at, you say we will be overwhelmed and there is nothing else we can do.
I do not see why you have the presentation at all if the sentence is unclear.
Mr. Daniel J. Sullivan: Mr. Justice Marshall, I do not know why is that, I think myself that.
That would have been the case but I am focusing on what I believe to be the legal question.
Justice Thurgood Marshall: What we are trying to do is find out what is in the States attorney's mind and what is in the judge’s mind and --
Mr. Daniel J. Sullivan: It is difficult, that is true that this is not the conventional type record that comes up.
What we are trying, I submit respectively to assess is the exercise of discretion by the sentencing judge, that is what is reviewable here and given what I do know if by way of record indications here.
I respectfully submit that the exercise of that discretion cannot be forbid and in this context that the judge is going ahead in this fashion did not deprive the petitioner of his constitutional rights.
Justice Harry A. Blackmun: Mr. Sullivan, if this case should go back, do you share opposing counsel's assurance that the felony charges would be reinstated?
Mr. Daniel J. Sullivan: Mr. Justice Blackmun, I feel it will yes.
Justice Harry A. Blackmun: There is no limitations barrier or double jeopardy aspect that you have know of.
Mr. Daniel J. Sullivan: No, Mr. Justice.
May come to State Law and we have cases on that, that would have been so.
May I suggest Mr. Justice Blackmun that you have virtually argued ever get in a hearing of any kind presently in the record.
I think all I can imagine I could be at it would be an assertion why Santobello that he relied upon this representation and I just cannot imagine what else would come up because constitutionally speaking in my view at least it makes no difference what the prosecutorial intendment was and I say, yes a promise was not kept in this case, but on this record in Santobello against New York that one may fairly conclude that that is shredding literally to comply after all the mentioned it before the sentence, would be an innocuous source of playing in constitutional charms and the commissary doctrine that we apply elsewhere would have a varied niche because in short Santobello got what he bargained for.
There are no guarantees in these kinds of the situations that you will stay out of jail.
In sum then I submit nothing in this case violates the declarations of this Court, anyone’s norms or ethics respecting what happens to Santobello and at this case, I tend to be affirmed.
Rebuttal of Irving Anolik
Mr. Irving Anolik: Mr. Chief Justice.
Chief Justice Warren E. Burger: Would you think -- let me ask you this before you start Mr. Anolik, would you suggest that at this case hypothetically were remanded for re-sentencing with fulfillment of the promise before a different judge that, that new judge could not approach the matter with an open mind?
Mr. Irving Anolik: I would say he could not for two reasons.
Chief Justice Warren E. Burger: It does it make any difference who he is?
Mr. Irving Anolik: Well, as they say theoretically --
Chief Justice Warren E. Burger: Is that your point?
Mr. Irving Anolik: Well, theoretically it is possible, Chief Justice.
But I would say that the fact is that the promise was made and broken and this defendant relied upon the promise.
Now, under those circumstances it would establish a very dangerous precedent the plea bargaining system, namely that a prosecutor can --
Chief Justice Warren E. Burger: But that is something, that is something we are capable of evaluating.
The direct question is that I take it that your position, no matter who the judge is, he cannot fairly sentence this man just on the basis of the record without any recommendation?
Mr. Irving Anolik: I would say it would be extremely difficult Mr. Chief Justice because I know from my own experiences, the case has received a great deal of notoriety in New York.
You have to get some maybe some up State judge or something and I think that in itself would be on this like a red flag that there is something bringing in the judgment different area.
We would maintain that the only remedy here is to permit him to withdraw this plea and re-plead.
And we also question whether or not the prosecutor here, if he wanted to be fair, why did he not once found out of this come into Court as the American Bar Association of Standards 4.3 require and join an emotion to permit him to withdraw and indeed the fact is that a motion to suppress was made is given great import.
Under the New York Law, 813 (c) of the code of our procedure, a motion to suppress maybe made consistently with the plea of guilty, it survives the plea of guilty and in fact many times that is the way a motion of suppress is crystallized.
So there is nothing inconsistent whatsoever with having made a motion of suppress.
Justice Potter Stewart: Mr. Anolik, what would the maximum sentence be under the -- if your client was f found guilty or pleaded guilty to two original felony charges?
Mr. Irving Anolik: Well, if a consecutive concurrent from this --
Justice Potter Stewart: (Inaudible).
Mr. Irving Anolik: I would say it, I believe it is the eight years all together I believe, it would be eight years, that would be the theoretical maximum --
Justice Potter Stewart: Four on each count?
Mr. Irving Anolik: Yes.
And I think that certainly if he were completely guilty, he would be out of his mind to be seeking to relief which he has directed me to seek.
So I think he was well aware of the exposure he has here and nonetheless he has asked me to bring this petition on for him and the appellant's counsel, you are going to appreciate and we are urgently asking that this be done because of the sentence in this case and because of the damage that would do to entire plea bargaining process if this is permitted to stand.
And we think it was the only fair thing to do under the circumstances, particularly in view of commendable admission that the promise was made and broken.
And at page 34 (a) by the way, off the record, the attorney specifically said.
Now, if what Mr. Frukman (ph) as the trial lawyer, says it is true then the plea was obtained by flawed interception by the district attorney, it was obtained on the express promise that district attorney would make no recommendations, it is right in the record, Justice Stewart, the fact that, that was called for the attention of the Court.
Thank you very much, thank you.
Chief Justice Warren E. Burger: Thank you Mr. Anolik.
The case is submitted.