BARKER v. WINGO

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Argument of James E. Milliman

Chief Justice Warren E. Burger: We'll hear arguments next in number 71-5255 Barker against Wingo.

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

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

First, I would like to reserve five minutes for rebuttal, if I may.

The facts to this case are --

Chief Justice Warren E. Burger: The signal for that Mr. Milliman will be, when your white light goes on.

Mr. James E. Milliman: Thank you, Your Honor.

The facts to this case are as follows.

The petitioner Willie Mae Barker was indicted in September of 1958 for the murder of Orlena Denton, a vicious heinous crime which he was accused of bursting into her bedroom and beat her to death with a tire iron with an accomplice one Silas Manning who becomes very relevant.

His case was originally set for trial in October of 1958.

However, there occurred a series of 16 continuances granted the prosecution in this case.

Willie Mae Barker was not brought to trial until October of 1963, a delay in excess of five years.

Chief Justice Warren E. Burger: When did he have counsel?

Mr. James E. Milliman: Counsel was appointed right after indictment, Your Honor.

He was represented by counsel throughout this delay.

We have no complaint in this regard.

Petitioner --

Unknown Speaker: Did the counsel receive notice of the motions for continuance?

Mr. James E. Milliman: Yes, Your Honor.

He had full notice to these motions for continuances.

Unknown Speaker: Does the record show whether or not he was present.

Whether motion --

Mr. James E. Milliman: The record does not show whether he was present Your Honor for this continuances.

There was no objection made to these continuances until 1962.

At which point counsel started objecting to this continuances.

But Barker was released on bail.

Unknown Speaker: How many of continuances were granted over the objection of your client?

Mr. James E. Milliman: I believe there were four or five, Your Honor.

They began -- the first motion to dismiss in this case was filed on February 12, 1962 and this is on page 9 of the appendix and thereafter the counsel for Willie Mae Barker at that time objected to further continuances.

Unknown Speaker: There is some confusion as to whether or not it was 62 or 63.

Mr. James E. Milliman: Yes, Your Honor.

The Kentucky Court of Appeals and both in the Sixth Circuit held it was 1963 that this motion was made February 12, 1963 but the -- and where they found this date I have no knowledge, the record clearly shows it was made on February 12, 1962.

Unknown Speaker: And the Federal Government's amicus brief, it's in to a little bit to but --

Mr. James E. Milliman: Yes Your Honor but the District Court, it's ironic to District Court on page 22 of the appendix pointed out that the motion was made in February 26, 1962 then talked about the resulting eight months delay but the delay was a resulting 19 months delay.

So there is confusion as to this date.

The petitioner was released on $5,000.00 bond in June of 1959 and remained free on $5,000.00 bond until he was finally convicted.

Petitioner then appealed to the Court of Appeals of Kentucky alleging he was denied as right to a speedy trial and other errors in the trial court.

The Kentucky Court of Appeals affirmed the conviction then later petitioner filed this habeas corpus proceeding in the District Court, the Western District of Kentucky which denied relief.

He appealed to this United States Court of Appeals for the Sixth Circuit which affirmed the District Court decision and this Court granted certiorari January 18th of this year.

The Court of Appeals for the Sixth Circuit decided this case on two grounds.

They held that petitioner had waived his right to a speedy trial by failing to demand trial.

That the demand rule states that the right to a speedy trial is guaranteed by the Sixth Amendment is a personal right which may be weighed.

So the Sixth Circuit computed only the time after the first motion to dismiss was made in computing the length of the delay which had found to be nine months using the 1963 date.

It also held that petitioner had not shown that he was prejudice by the delay.

Petitioner's therefore raised two points on this appeal.

First that the demand rule is inconsistent with constitutional safeguards and should not be required and the second issue is where there is a five year delay, prejudice should be presumed as inherent in the delay and it's important to emphasize in this case the two amicus briefs have been filed.

We are concerned in this case with a five-year delay.

We are not concerned with a one year delay or two-year delay.

This case presents a five-year delay.

The demand rule is applied in this case, is subject to attack on two grounds.

This Court has consistently held that any waiver of a constitutional right must be voluntary and intelligent knowing and that it will not accept a passive waiver --

Unknown Speaker: That assumes you answer, doesn't it?

That assumes that the right to a speedy trial exists without the demand.

Mr. James E. Milliman: This is correct Your Honor.

And --

Unknown Speaker: Well then, how about the demand?

Why should he let -- why shouldn't they have to demand that in order to trigger the right --

Mr. James E. Milliman: Your Honor in the present case, it is contended that the demand rule as such chills his right to a speedy trial.

We had a man here who was indicted for willful murder.

Now his accomplice had twice received the death penalty.

This put him in the position of -- if he has to demand trial to protect his right to a speedy trial, he has possibly asking himself, asking the prosecution to give him the electric chair.

The result if he is successful is death, this is a grisly choice which this Court condemned in Faye versus Noia, where --

Unknown Speaker: You're saying that he can't be required to come in and ask for what he will later contend, he should have been given automatically.

I don't see that there's any chilling or burden there when you're dealing exactly with the thing that you're requesting.

Mr. James E. Milliman: Your Honor, your question if I understand it, supposed you said the right is a personal right which can be waived.

Now, we are contending that to ask him to demand trial on the face of the death sentence is putting him in the same position that the defendant was in, in Faye versus Noia.

Chief Justice Warren E. Burger: Are you saying in effect that a trial is the last thing he wants and therefore he shouldn't be compelled to ask for what he doesn't want?

Mr. James E. Milliman: It may well be that trial is the last thing he wants Your Honor.

Chief Justice Warren E. Burger: Is that what you're arguing?

Mr. James E. Milliman: No we are not arguing this.

Chief Justice Warren E. Burger: That he should not be compelled to ask for it because he really doesn't want it.

He wants to postpone that evil day.

Mr. James E. Milliman: Well, this is correct and I think this would be desired by any defendant.

Unknown Speaker: But nonetheless, he can come in and if he has been tried in a particular time even though he hasn't request and say now you got to dismiss the whole proceeding?

Mr. James E. Milliman: This is what we're contending, Your Honor.

Chief Justice Warren E. Burger: What if he had asked -- what if he had asked for all the continuances?

Mr. James E. Milliman: Then we would have an entirely different situation.

Chief Justice Warren E. Burger: Why is it different now --

Mr. James E. Milliman: In this case, the defendant did not in any way contribute to the delay.

He had made no continuance himself, he made no dilatory motions.

He merely --

Chief Justice Warren E. Burger: Oh!But going back to your proposition that the predicate of your whole argument here is that because death may await him down the end of the road, he therefore doesn't want to trial.

That seems to be your predicate for now.

That same urge might make him to come in every time that the case was set for trial and ask for a continuance.

What you say, if he ask for it and got it that would be different from getting it without asking for it.

Mr. James E. Milliman: In that event Your Honor, he would have affirmatively contributed to the delay.

He would have brought it about by his own affirmative actions by merely sitting back and doing nothing.

He did nothing to contribute to the delay.

Now he did file a motion to dismiss on February 12, 1962.

Unknown Speaker: Well do you say that have it be unconstitutional at the state had a rule, a court rule that says that continuances by the state and delay must be on notice to the defendant and that unless and that ---the defendant wants a trial, he isn't going to be responsible for the delay he must object.

Mr. James E. Milliman: Your Honor, in that event I would think there would be less, far less of a constitutional objection, in that case we would still have this grisly choice.

Unknown Speaker: Well, so you still claim it would be unconstitutional if the state said, look, we are going to give you an early trial or a late trial, now which one do you want?

And he said I want the late trial.

Mr. James E. Milliman: I would contend in that event that it would still be unconstitutional but for less sufficient reason because there is another impelling reason in this case.

When must the demand be made?

The demand or rule or set of standard, it says a petitioner, a defendant must demand trial.

But when must he make that demand, there are no guidelines, there are no standards.

Florida has past a statute that says after three successive demands --

Unknown Speaker: Well, here at least for three or four years the continuances were unnoticed to him and he never objected to this.

Mr. James E. Milliman: This is correct Your Honor.

Unknown Speaker: And you say that you are -- you say the state nevertheless should be charged with that delay?

Mr. James E. Milliman: Your Honor, there are system of jurisprudence and burden of prosecution is on the state.

To require this man, Willie Mae Barker to demand trial is imposing the burden upon him to bring about trial to prove his innocence.

This is contrary to establish principles in this country.

He should not have the burden of bringing to that trial.

This is the burden of the prosecution.

It is there duty, the American Bar Association has disapproved that the "demand rule" for this reason that the burden is on the prosecution to bring trial not on the defendant.

But when does the defendant demand trial?

Must he demand trial at the indictment after a year at every term of Court?

Any waiver of a constitutional right must be made intelligently.

Now, petitioner was represented by counsel.

But I submit that even though he is represented by counsel, his counsel couldn't determine when the demand must be made.

What if it would have been made at the indictment and no other demand had been made.

What if it's done in many cases?

In other words, what the demand rule is, it's treating the constitutional right as a procedural nicety which can be waive like they knew if you fail to demand it.

Unknown Speaker: We are treating it as something basically like a statute of limitations and it runs without regard to the defendants and a civil case giving notice to hear that said that he is invoking the statute limitations.

It simply comes in after its run and said --

Mr. James E. Milliman: That's correct Your Honor.

Unknown Speaker: The problem as I see it with your position is that there isn't any fix time that you're talking about.

The way there is with a statute of limitations at least the state has noticed that if they don't for constitutional purposes try with uncertain person and period and then they're through.

Mr. James E. Milliman: Well, Your Honor we submit that the burden -- since the burden is on the state to bring about trial but notice to the state is not merely as essential as notice to the defendant as to when the demand must be made.

In this case, petitioner Willie Mae Barker had no idea as to when the demand must be made.

He made a motion to dismiss on February 12, 1962.

He filed another motion to dismiss prior to trial.

Because it was denial of a right to a speedy trial but both cases --

Unknown Speaker: But he never did -- he never did ask for a speedy trial.

He asked that the indictment be dismissed.

Right?

Mr. James E. Milliman: This is correct Your Honor and this raises another problem, the Sixth Circuit held that the motion to dismiss was equated with the demand.

The Solicitor General's brief on other course have held that a motion to dismiss is not a demand.

What is a demand?

There are no standards, there no guidelines.

There are in Florida now three times.

And you either try --

Unknown Speaker: Ant there are in the Circuit Court of Appeals I think?

Mr. James E. Milliman: Please.

Unknown Speaker: Aren't there are also in New York State and in the Second Circuit Court of Appeals, at least respectively?

Mr. James E. Milliman: This is correct.

But petitioner had none of these guidelines to guide him in this choice.

Petitioner responded to the Commonwealth of Kentucky.

He submitted in their brief that any demand would have been superfluous that it wouldn't have been granted.

That was a useless act to require him to demand trial and that requiring asking him to bring about his own prosecution to prove his innocence.

Unknown Speaker: You mean in this particular case?

Mr. James E. Milliman: In this particular case --

Unknown Speaker: That the key witness would have pleaded his compulsory self incrimination [Voice Overlap].

Mr. James E. Milliman: This is correct, Your Honor.

Now this brings us to second issue, the issue of prejudice.

Looking at the bare record in this case, there is no specific example of prejudice except for the testimony of one witness Martha Barber, sister-in-law of the accomplice, Silas Manning who could not recall certain specific events but otherwise testified with certainty.

Unknown Speaker: What kind of prejudice are you talking about?

Is it at the trial?

Mr. James E. Milliman: Actual prejudice informed.

Unknown Speaker: At the trial, at the trial?

Mr. James E. Milliman: Yes Your Honor, in the form of lost witnesses, faded memories.

Unknown Speaker: But what about the -- What about other prejudice of the speedy trial provision as oppose to in fact the end?

Mr. James E. Milliman: The speedy trial provision as this Court has held in each speedy trial case brought before it pretrial anxiety, hostility in the community, lost of jobs, curtailment of associations, there's even more be specific pretrial prejudice here.

Chief Justice Warren E. Burger: How do you square with that with your earlier argument that he really doesn't want a trial and therefore should not be put to the burden of asking for what he doesn't want?

Mr. James E. Milliman: Simply because that he has the right under the Sixth Amendment to be brought quickly to trial whether he ask for it or not.

Now, it may be that if he affirmatively does not want trial, he will make the motion for continuances.

As everyone knows a defense lawyer can continue a trial indefinitely and if he had actually wanted or was afraid of being brought to trial, he would have moved for continuances.

Now it's true that the reason for this delay was the Commonwealth of Kentucky desired to secure the testimony of the accomplice, Silas Manning.

And it's true that if Silas Manning were never convicted, Willie Mae Barker would have never been convicted, we conceive this.

Commonwealth admits it.

Unknown Speaker: Or if you had gone on trial before he did, you would defend it?

Mr. James E. Milliman: This is correct Your Honor, so what the Commonwealth is doing was postponing Willie Mae Barker's trial until they convicted Silas Manning.

There is only one problem.

Unknown Speaker: Until they got the evidence to convict?

Mr. James E. Milliman: This is correct Your Honor.

It only tipped them six trials to convict Silas Manning.

And so there is prejudice even there that if he had been brought speedily to trial, of course the testimony of Silas Manning would not have been available to convict him but this does not appear in the black and white record.

More fundamentally, petitioner is now released on parole.

He was paroled in August of 1971 after serving eight years of a life sentence.

Now, had he been brought to trial in 1959 in Kentucky the normal sentence is seven or eight years for a life imprisonment.

Had he been brought to trial in 1959, it is very reasonable to assume that he would have been released four or five years ago to resume his right for place in society.

Unknown Speaker: I say that it's even more reasonable unless he might have been acquitted --

Mr. James E. Milliman: It is.

Well, had he been brought to trial without the testimony of Silas Manning Your Honor, the Commonwealth of Kentucky has admitted specifically in its response to the motion to dismiss on October 9, 1963 that they cannot convict Willie Mae Barker without the testimony of Silas Manning.

They admitted this.

Chief Justice Warren E. Burger: Suppose the witness that was needed for this conviction had been a fugitive from justice living in Algeria or Canada or some place where he couldn't be reached and brought back.

Would you think that would alter the Gover -- the State's posture on the delay?

Mr. James E. Milliman: If Silas Manning had been a fugitive.

It would have given some more sufficient reason for the delay.

Whether it would have justified it for five years is highly debatable.

There would be a burden on the prosecution to make every effort to bring this man back.

But is certainly would be more sufficient reason than in the present case.

Chief Justice Warren E. Burger: Well is his test -- was his testimony in the circumstances of this case, any more or less available in realistic terms than if he'd been in Algeria?

Mr. James E. Milliman: Yes, Your Honor.

It was available at all times.

All the Commonwealth of Kentucky had to do was to convict him.

With all due respects to the Commonwealth of Kentucky, the only reason for the delay here was their incompetence and their inability to convict this man.

The errors they committed, one conviction was reversed because of the admission of illegally seized evidence and the admission of an involuntary confession.

Another conviction was reversed because they insist about in trying the crime and the venue where the crime was committed at mid pretrial hostility.

They made these motions, they tried Silas Manning.

They committed these constitutional errors and procedural errors and an attempt to convict him for a procedural advantage, for strategically advantage but cannot succeed because the Court of Appeals would not affirm the convictions obtained under these grounds.

So he was there, all they have to do is convict him legitimately.

Unknown Speaker: Mr. Milliman, you say in your brief that they cannot be a passive waiver of a right to a speedy trial.

Do you consider that the failure of counsel to object to these 16 continuances was a passive waiver?

Mr. James E. Milliman: No, Your Honor.

I do not.

I think his failure to object was more than the grounds of perhaps a procedural error in the sense of an attorney fails to object to a hearsay statement or a leading question and as precluded from raising that --

Unknown Speaker: Are you suggesting that a continuance particularly one granted 16 times, if procedural so far as the right to a speedy trial?

Mr. James E. Milliman: No, Your Honor that -- I believe that is most substitute unconstitutionally in a constitutionally defined area.

And that is why I say that his failure to object should not be and would not be a passive waiver of any kind.

He did follow the motion to dismiss.

He did make his motion to dismiss.

Unknown Speaker: He made that in 1962, what did he do between March of 1962 and March of 1963?

Mr. James E. Milliman: He did absolutely --

Unknown Speaker: As counsel for the petition?

Mr. James E. Milliman: Please?

Unknown Speaker: Counsel for the petition?

Mr. James E. Milliman: He filed his motion to dismiss in February of 1962, February 12.

Then as the appendix shows that there were further continuances made on June 4, 1962.

Unknown Speaker: Did he object to that?

Mr. James E. Milliman: No he didn't Your Honor and then on February 11, 1963 the Commonwealth made the motion to continue and over the objection of defendant, he objected to this motion and then he objected to the motion I believe on June 17, 1963, they continued again over the objection of the defendant to the --

Unknown Speaker: That's when the witness was ill, wasn't it?

Mr. James E. Milliman: That was after the sheriff, the material witness was ill, the man who had arrested the petitioner, yes.

And the Sixth Circuit held that this was a sufficient reason for delay and we don't deny this.

We concede that this was sufficient for the delay from March 1963 to October but it does not explain the delay prior to that.

But the question again Your Honor is when should he have made the demand?

He didn't know.

Counsel wouldn't know.

Nobody was requiring counsel for petitioner to speculate and guess as to what he must do?

What procedures he must take to protect and preserve the constitutional right of the accused and that is the issue.

Unknown Speaker: And you weren't the counsel on that?

Mr. James E. Milliman: Please?

Unknown Speaker: You weren't the counsel?

Mr. James E. Milliman: No, I'm not Your Honor and I'm glad I wasn't.

But with respect to the prejudice issue, again he would have been released.

There is no question he had pretrial anxiety and that we do not know as to what influence this delay had on the witnesses.

We cannot tell from the record whether their memories faded even though the record doesn't show they said it.

We don't from the record what facts were distorted.

We don't know from the record what the attitude in the community was at that time whether it was still hostile or whether it had come calmed considerably.

The only thing we can do to protect his right in this case is presume is to acknowledge that there was such a possibility of prejudice after five years.

Everyone knows that memories are going to fade, that facts are going to become distorted.

To protect his rights, we have to presume.

After five years these things happen.

Chief Justice Warren E. Burger: Does this record show what happened to Mr. Manning?

Mr. James E. Milliman: Mr. Manning finding, the appendix doesn't show -- the transcript of record Your Honor would show that Mr. Manning was convicted in March of 1963 to life imprisonment and convicted in December -- or March of 1962, I'm sorry, for life imprisonment and December of 1962 to life imprisonment for the murder of the other party, there were two parties killed.

And he served lives and I don't know if he is still in jail or not.

Unknown Speaker: And how many other trials were there Mr. Milliman?

Mr. James E. Milliman: Mr. Manning was tried six times, Your Honor.

The first trial resulted in the hang jury.

The second trial, he received the death penalty.

The Court of Appeals of Kentucky reversed it because of the admission of illegally seized evidence and the admission with involuntary confession.

I believe.

Unknown Speaker: But I suppose one can argue that with all these trials, the memory of witnesses is indeed kept alive.

Mr. James E. Milliman: It is possible that the memory of the witness is indeed kept alive and it is possible that the hostile attitude of the community was indeed kept alive also.

This was a vicious crime of two prompted people in a rural community and it is very possible that Manning's trials kept alive the hostility of the community to the petitioner in this case.

We don't know with this.

I am speculating.

Unknown Speaker: You're not suggesting that the community of it, it would be more hostile in 1963 than it would have been in 1958?

Mr. James E. Milliman: Yes, Your Honor I am.

For the simple reason here we have one indicted murderer tried six times.

The Commonwealth Attorney of Kentucky is going to have a very difficult time explaining to the electorate why he can't convict this man and the fact that this man is not being convicted is going to stir the animosity of the community.

In fact, petitioners first two trials were committed -- were tried at the scene of the crime at the county of the crime.

His third trial, he requested the change of venue because of hostility which the Court refused.

Unknown Speaker: Barker had three times?

Mr. James E. Milliman: No, I'm talking about Manning now.

So this leads me to believe that the hostilities increased as the time went by because nothing had been done to bring this two people to trial or nothing had been done to convict them and we have to understand the attitude of the circumstances at the time.

Chief Justice Warren E. Burger: Yet that attitude seems to have not interfered with his being placed on parole.

When did he go on parole?

Mr. James E. Milliman: He went on parole in August of 1971 Your Honor and I submit to you that the attitudes of rural Kentucky have changed greatly from 1958 to 1970.

There's a possible explanation why he has been paroled 1970 and why there was hostility in early 1960's.

Unknown Speaker: What was the site of Hopkinsville?

Mr. James E. Milliman: This was Christian County Kentucky, Hopkinsville County sit in Southern Kentucky.

Unknown Speaker: It's pretty good size town.

Mr. James E. Milliman: Yes it is and we won't into things not in the record Your Honor but thank you.

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

Mr. Willmott.

Argument of Robert W. Willmott, Jr.

Mr. Robert W. Willmott, Jr.: Mr. Chief Justice and may it please the Court.

The facts in this case are not in dispute.

The Commonwealth did delay the trial of the petitioner for five years and I think a little more thorough explanation of why it delayed it as an order, the Commonwealth shows to prosecute Silas Manning first.

Now this decision I don't know why it was made but the Commonwealth Attorney did make it and they had not by my brother he -- they did have a difficulty in obtaining a valid conviction.

I don't think it can be blamed on any incompetence on the part of the Commonwealth Attorney.

And after in December of 1962 when Manning's final trial was held, trial was set for the next term to Court to February term of the 1963 Christian County Circuit.

The chief collaborating witness was the sheriff of Christian County, Sheriff McKinney.

He became seriously ill with a stomach disorder, he was later admitted to the hospital and portions of his stomach were removed and he later underwent a gallbladder operation.

Chief Justice Warren E. Burger: When did that, that didn't come until 1963?

Mr. Robert W. Willmott, Jr.: Three, 1963.

Chief Justice Warren E. Burger: Well that doesn't explain 58 to 63 at all, doesn't affect that really does it?

Mr. Robert W. Willmott, Jr.: No.

It's just an explanation of the last ten months or so of the delay.

The first four years of the delay were due to Manning being unavailable for testimony.

Chief Justice Warren E. Burger: If we had a ten months delay, we probably wouldn't be here on this case.

Would we, probably?

Mr. Robert W. Willmott, Jr.: Right.

And the Commonwealth submits that the real issue in this case is not when the demand should be made or if a demand should be made but narrowest down to the fact made the Commonwealth delay a trial for any reason for this period of time.

Now, there are several statutes from different states which call for a dismissal of the indictment similar to Federal Rule 48 (b) if a trial was not held within so many days or so many months or so many terms at Court.

But every -- every rule or every statute also states in the final line unless good cause be shown and our contention is that the Commonwealth had good cause in this case.

The -- it's a simple fact without Manning, we would not be here today because petitioner would not have been convicted and without the sheriff, the collaborating evidence would have been insufficient to support the testimony of an accomplice.

Unknown Speaker: Did Manning -- Manning didn't testify -- I mean the petitioner didn't testify at Manning's trial, did he?

Mr. Robert W. Willmott, Jr.: No, sir.[Voice Overlap]

Unknown Speaker: You, the state, the Commonwealth had other evidence against Manning.

Is that right?

Mr. Robert W. Willmott, Jr.: Yes sir.

They had -- they found his car -- or the --

Unknown Speaker: You're telling us that the petitioner could not have been convicted without confederate Manning's testimony?

Mr. Robert W. Willmott, Jr.: Yes sir.

The --

Unknown Speaker: Or apparently Manning could be -- was convicted without his confederates.

Mr. Robert W. Willmott, Jr.: Well Manning came into the house covered with blood and there was tangible evidence to convict Manning but Manning was the --

Unknown Speaker: Well, that clearly shows why the Commonwealth chose to try Manning first.

You said you didn't know, it's very clear why they did it, isn't?

Mr. Robert W. Willmott, Jr.: Well, yes sir.

I believe that is the reason that they felt more assured of securing conviction of Manning.

The evidence was stronger against Manning than it was against Barker.

Unknown Speaker: Unless they convicted Manning, they couldn't have convicted either of them?

Mr. Robert W. Willmott, Jr.: Right.

Unknown Speaker: And initially they were relying of his confessions, Manning's confession?

Mr. Robert W. Willmott, Jr.: In Barker case or the Manning case?

Unknown Speaker: The Manning case.

That was one of -- was not that one of the reasons for reversal in one trial?

Mr. Robert W. Willmott, Jr.: No, sir.

I believe the reasons for reversal were -- well yes, sir.

One of -- he was improperly admitted evidences to result of a search and seizure and on involuntary confession, yes sir.

Unknown Speaker: That's right.

So they did have a confession from Manning?

Mr. Robert W. Willmott, Jr.: Yes, sir.

Unknown Speaker: But not from (Inaudible)?

Mr. Robert W. Willmott, Jr.: This -- there was an admission made by Barker along reliance of -- when the sheriff came to arrest him, he boarded out before being asked or told anything.

If you're wondering what happened to those old folks, Manning did it.

And that was -- excuse me, the major portion of the sheriff's testimony was his admission.

Now, as stated the reason for the delay in this case is legitimate and at my opinion, the interests of society have to be balanced against the interest of the accused and if there is a valid reason.

If there can be any valid reason for postponement of a trial for five years, this case presents the same.

Unknown Speaker: And you would argue this if Barker had every week demanded a trial?

Mr. Robert W. Willmott, Jr.: Yes, Your Honor.

If --

Unknown Speaker: I gather you -- your submission is that we don't have to deal -- it's not actually concession I take it, but on the premise that the speedy trial again does not require the accused to make a demand.

Assuming that premise, you say nevertheless the state for good reason, may continue to trial until it's ready to go to trial.

Mr. Robert W. Willmott, Jr.: Right Your Honor, I have -- and I believe the demand issue is secondary.

I do not feel that the accused should be allowed to play both ends against submittal and sit back and not take any affirmative action.

Unknown Speaker: But if the rule where you have to make a demand, we don't need this parole?

Mr. Robert W. Willmott, Jr.: I don't think -- I think you have to consider both of them in a case such as this.

Unknown Speaker: You could prevail on either point I take it, if the Court were to adopt the line of reasoning favorable to you?

Mr. Robert W. Willmott, Jr.: Right, Your Honor.

I think initially, there's very little guidance on what constitutes good cause for the Government delaying the trial.

There are ample evidences to the defendant filing dilatory pleadings or shuffling to street and avoiding trial, being a fugitive, being incompetent.

These do not violate the right to a speedy trial.

However, there is fair little guidance as to why the Government may delay a trial.

The most decisions have followed the Gleichman (ph) case and which necessitates a demand and if a demand does not made, waiver his presumed.

Unknown Speaker: You could prevail I suppose still on the third round with or without demand, with or without good cause on the part of the Commonwealth unless the constitutional provision is not violated without a showing of prejudice.

Mr. Robert W. Willmott, Jr.: Yes, sir that is meant.

There -- the only prejudice that could be assumed and my brother points out in his brief that possible prejudice may be presumed and that he suffered the scorn or the stigma of being under an indictment for five years for hearing his crime such as murder.

There is no actual physical tangible prejudice shown.

All the witnesses testified, they were also witnesses at Manning's trial and by the petitioner's trial they were thoroughly burst in their testimony.

And one has but to read the evidence to see how concrete they were in answering their questions.

Chief Justice Warren E. Burger: But Manning did testify at the trial that was finally held?

Mr. Robert W. Willmott, Jr.: Yes Your Honor at Barker's trial.

Chief Justice Warren E. Burger: Yes and was - it be fair to say that his testimony and the sheriff's testimony were the two major factors --

Mr. Robert W. Willmott, Jr.: Yes there were -- there were other corroborating evidence but it was not what one would consider the major key witness.

Chief Justice Warren E. Burger: But I take it Manning described the crime that had been committed by the two men together.

And then the sheriff's testimony with respect to the admissions, that was the corroborating evidence?

Mr. Robert W. Willmott, Jr.: Well the sheriff was also the one that found the car -- Barker's car parking from the house next door and he had some other investigative facts at the --

Chief Justice Warren E. Burger: But it was to meet the Kentucky requirement of corroborating testimony?

Mr. Robert W. Willmott, Jr.: Yes, sir.

I think if -- I think his testimony alone would have been enough but I don't think that some of the other testimony would have been enough to corroborate Manning's testimony.

Unknown Speaker: This was not a felony murder, burglary or robbery?

Mr. Robert W. Willmott, Jr.: They initially were drinking and needed some money and they had heard that Mr. and Mrs. Denton kept large sums of money.

Unknown Speaker: So, they did break in to --

Mr. Robert W. Willmott, Jr.: Yes, sir.

They went in the window with the tire and proceeded.

I think they hit Mrs. Denton first while she was in bed but the --

Unknown Speaker: Excuse me.

Did I interrupt you?

Mr. Robert W. Willmott, Jr.: No, sir.

Go ahead.

Unknown Speaker: I understood you to say that there were one or more Kentucky statutes that related to speedy trial and in each instance provided that just cause would be an excuse the night going forward.

Are those statutes cited in the briefs, in the record?

Mr. Robert W. Willmott, Jr.: Your Honor, may have mislead you, I didn't mean to say that Kentucky has some statutes there.

I think California or Michigan other states have enacted.

Chief Justice Warren E. Burger: California and Illinois for example.

Mr. Robert W. Willmott, Jr.: Right in the model, the Model Penal Code I believe contains provision.

Unknown Speaker: May I ask this question, in kind of different matter.

Would you refresh my recollection as to what motions were made after the petition as motion to dismiss in 1962?

I think it was February of 1962 and the date of the trial?

Mr. Robert W. Willmott, Jr.: There were three others.

Three -- there was initial in February of 1962, there is one in the summer I believe in July of 1962.

Unknown Speaker: Right.

Mr. Robert W. Willmott, Jr.: And then there was one in March of 1963 in the summer of 1963, June or July and then at the trial just before trial start.

Unknown Speaker: And the ground for all of those was unavailability of witnesses?

Mr. Robert W. Willmott, Jr.: Yes, Your Honor.

Unknown Speaker: Well the motion was the denial of a right to a speedy trial?

Mr. Robert W. Willmott, Jr.: Motion dismissed for lack of --

Unknown Speaker: Motion to dismiss?

Mr. Robert W. Willmott, Jr.: -- prosecution as to whether they --

Unknown Speaker: And then the prosecution defended against the motion saying that our witnesses are not available, is that it?

Mr. Robert W. Willmott, Jr.: Yes, sir.

But the motions for continuance that I was asking --

Unknown Speaker: Oh!

I beg your pardon?

I beg your pardon?

There were however, how many motions to dismiss on behalf of the defendant?

Mr. Robert W. Willmott, Jr.: Four motions.

Unknown Speaker: Four.

Beginning in 1962?

Mr. Robert W. Willmott, Jr.: Yes sir, February of 1962 that is according to the record.

I don't know how the Court, the District Court and the Sixth Circuit Court of Appeals got confused but they have cited and in it is the first demand being made in 1963.

Unknown Speaker: Mr. Willmott, the Court rendered in opinion in United States against Marion last December.

This does not say that in your brief or in the other brief or in the main amicus brief.

It is cited in the government's amicus brief.

Is this -- are you familiar with this case?

Mr. Robert W. Willmott, Jr.: Your Honor, I picked up a slip this morning, when I became aware of it, we did not have the advance sheet in our office before I came in to Washington.

Unknown Speaker: What I want to ask you of course perhaps you can't comment on it is whether you feel that has any pertinency in this case.

I'll ask the same question on your opponent when he is up in rebuttal.

Mr. Robert W. Willmott, Jr.: Well, as I understand Marion it was a pre-indictment delay and this Court held that the Sixth Amendment speedy trial clause was not applicable to pre-indictment delays.

Now that the concurring opinion --

Unknown Speaker: Under all circumstances?

Mr. Robert W. Willmott, Jr.: That was my opinion that it did not - it was not applicable to the pre-indictment stage because a person had not become an accused.

Back in the prejudice argument, we stated that there were no lost witnesses that the witnesses memory was -- there was no mnemonic loss and no lack of testimony to align this case with a case such as Dickey which states that if a persons defenses is impaired or just lost to some witnesses dying and disappearing or being unavailable and I think this would distinguish this case from Dickey.

Though in the main, I think the Commonwealth contentions can be divided into three categories.

The first is that if there is such a thing as a valid Government delay that this case must meet the standards and we base this on the fact that in applying the demand rule, the demand was made after almost four years, three and a half years had passed.

That the reasons for the delay were valid, there would have been no conviction in this case if the Commonwealth had been forced to trial earlier than it was.

There was no lack of diligence on the part of the Commonwealth in this case.

I'm certain that the Commonwealth Attorney in Hopkins County, Christian County, excuse me, got very tired of this case, he was in Court with every open term of Court or else Manning had an appeal pending.

He wanted to conclude this more than anyone I would assume.

Unknown Speaker: Mr. Willmott is the Kentucky State Court set up such that a Court is continuously sitting except for vacation time in Christian County or does it just sit on Circuit there at certain times of the year.

Mr. Robert W. Willmott, Jr.: In Christian County and it is not a continuous session.

Unknown Speaker: How many sessions of Court do they have each year in Christian County?

Mr. Robert W. Willmott, Jr.: Three sessions, I believe.

Unknown Speaker: And how long does an average session lasts?

Approximately?

Mr. Robert W. Willmott, Jr.: I would say a month and a half or two months.

Unknown Speaker: So a Court would be sitting in Christian in maybe six months out of the 12 of each year?

Mr. Robert W. Willmott, Jr.: Unless, I think if there is provision for a prolong calendar if the docket load is heavy, unusually heavy.

I don't think they are bound by a specific termination date on each call.

So, the prejudice resulting from this delay has been argued was not great.

Petitioner was not the object of prolonged delay in order to gain an advantage.

The Government prosecuted this case with diligence, they -- it went to trial the first open term of Court that all the witnesses were available and it is very -- the petitioner was -- came very close to not being tried when Sheriff McKinney went in the hospital.

Chief Justice Warren E. Burger: When the -- how soon after the event was Manning tried the first time?

Mr. Robert W. Willmott, Jr.: He was tried at the first term of Court in October.

Chief Justice Warren E. Burger: For then, six months after the murders?

Mr. Robert W. Willmott, Jr.: Two months.

Chief Justice Warren E. Burger: Two months after the murder.

Mr. Robert W. Willmott, Jr.: I think the murder were on July the 20 and he was tried October 9, I believe is the date of his first trial and he was prosecuted every succeeding term of Court or had an appeal pending in the Kentucky Court of Appeals at every subsequent term of Court.

So this couple with a fact that the petitioners defense was in no way impaired that the demand was not made until very late in the time period and the no lost of prejudice and the good cause for which the continuances were granted.

The Commonwealth submits at these grounds are sufficient and adequate to affirm the Sixth Circuit opinion.

Thank you.

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

Mr. Milliman, you have few minutes left, do you have anything further?

Rebuttal of James E. Milliman

Mr. James E. Milliman: Yes Your Honor, I would like to express my opinion on the reason for delay.

The Sixth Circuit Court of Appeals do not specifically decide this question.

They decided simply that from the period of the time of the demand which they found to be February 12, 1963 to the time of trial but there was a sufficient reason.

We do not specifically urge this point on our petition for certiorari for the simple reasons of the Court of Appeals do not really decide it.

And that this Court could conceivably, if they wish remand to the Sixth Circuit of Appeals for further findings on that issue if they would strike that down the demand rule and hold the petitioner has shown or is not required to show prejudice.

It could remand to the Sixth Circuit for further findings as to the reason for delay.

As his Honor, I believe, Justice Blackmun referred to the U.S. versus Marion case.

We would like to accept the good and reject the bad.

The Marion case is not applicable to this case for the simple reason that in that case this Court held that the defendants were not an accused.

Because they were talking about a pre-indictment delay and that the Sixth Amendment applies only to an accused and one does not become accused until he is indicted and there is still no question in this case that Willie Mae Barker fit the definition of an accused.

The Marion case would be applicable and that it explained that the statute of limitations for example are designed to guarantee against stale claims and of course in Kentucky and most states, there is no statute limitations for murder.

So there is no statute of limitations to apply in this case and it did point out again that reaffirmed the -- this Court's position of the prejudice resulting from the pretrial delays, the anxiety, the hostility and so forth.

So in that respect, it is most applicable to this case.

Chief Justice Warren E. Burger: But after February 12, 1962, your anxiety and hostility arguments really don't square with your argument that you didn't want to have this confrontation to society and that is why you didn't ask for it.

Mr. James E. Milliman: Again Your Honor, I would refer to the American Bar Association project for minimum standards that this is no reason for delay that his acquiescence for the fact that he may desire --

Chief Justice Warren E. Burger: Quite right.

That doesn't justify delay.

I am simply was addressing that observation to the weight of your argument on that point.

Mr. James E. Milliman: Your Honor I would concede that Willie Mae Barker probably -- I don't know this for a fact, probably, did not want to be tried.

I don't think any man wants to be tried and I don't consider this a liability on his behalf.

I don't blame him.

What he was trying to do is once he found Manning had been convicted then of course he wanted the case dismissed.

There is no question about this.

Chief Justice Warren E. Burger: But you are not arguing that every accused person is in the posture of not wanting a trial, are you?

Mr. James E. Milliman: No, Your Honor.

I'm sure that some accused people do but even to someone who is innocent, there is always a specter that he may be convicted, even though innocent and the fact that he is going to come to trial is going to cause him great apprehension, question --

Chief Justice Warren E. Burger: I expect there might be more accused if he knows he is guilty, wouldn't it be so that you can't really generalize on that.

Mr. James E. Milliman: I don't know if it would be more accused or not Your Honor.

Guilty man made well be resigned to his faith.

Unknown Speaker: Well, you are making any claim that the -- that counsel was inadequate in this case?

Mr. James E. Milliman: No, Your Honor.

I am not.

I believe --

Unknown Speaker: Well , he was the counsel -- he was the counsel and if the states evidence were so weak, you would think there might have been interest in an early trial.

Mr. James E. Milliman: This is quite possible.

Chief Justice Warren E. Burger: Well have -- if counsel makes a decision, it's better to wait than to try now, that might be a gross error but it might not be a gross error.

Mr. James E. Milliman: Again Your Honor, to answer this question any affirmative would be to require the speculation from the record that he did take a -- make it strategical --

Unknown Speaker: Mr. Counsel turned to have the choice of either objecting or not objecting --

Mr. James E. Milliman: This is true, this is true.

Unknown Speaker: And he exercised that choice of not objecting?

Mr. James E. Milliman: We don't know whether he did that, he exercised that choice but we don't know if he did that for a strategical purpose or not.

Chief Justice Warren E. Burger: But isn't that reasonably assumed that he knew the problem of the unavailability of Manning until Manning's conviction was definite?

Mr. James E. Milliman: Well, Your Honor, it's possible that he thought that they had other grounds to convict based upon the testimony of the sheriff.

Now, looking at the scene of the trial, it's quite possible that he thought, hostility prevailing at the time if there was such that the man would have been convicted based upon the testimony of the sheriff.

We don't know his reasons for not demanding a speedy trial but we do know that it would have been superfluous.

Chief Justice Warren E. Burger: Well, is it reasonable to assume that when the prosecution asked for continuances, the -- they were required to give a reason and the reason was, that Manning was not available?

That was known to everybody?

Mr. James E. Milliman: This is reasonable Your Honor.

Unknown Speaker: To the extent that the defense counsels consent to the continuances may have been based on the possibility of the future absence of a witness to the extent that the sheriff was important to the prosecution of this case.

It almost paid off, I take.

Mr. James E. Milliman: It almost did Your Honor except for one thing if I may state this.

It's important to note that Manning was convicted to the first murder in March of 1962 but they still didn't bring Barker to trial.

They tried Manning again in December of 1962.

There is no reason in the world they couldn't have brought Barker to trial after the first conviction of Manning but they refused.

Chief Justice Warren E. Burger: Well, do you mean that Manning would have been a willing witness just because he had a conviction with --

Mr. James E. Milliman: Your Honor, the record shows that Willie Mae Barker was keeping company with Mr. Manning's wife at the time and whether that would have made him a willing witness or not I think it would have made him more willing than otherwise.

Chief Justice Warren E. Burger: Very well, I think your time is up.

Mr. Willmott, thank you.

Mr. James E. Milliman: Thank you, Your Honor.

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

The case is submitted.