CHAFFIN v. STYNCHCOMBE

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Argument of Glen Zell

Chief Justice Warren E. Burger: We’ll hear arguments next in 71-6732, Chaffin against Stynchcombe.

Mr. Zell, you may proceed whenever you are ready.

Mr. Glen Zell: Mr. Chief Justice and may it please the Court.

This is -- this case involves the re-sentence of a man to a higher sentence from retrial.

In the first trial Mr. Chaffin was indicted and convicted of robbery by open force and violence, received a sentence of 15 years.

I was then appointed to appeal his case.

I appealed to the Georgia Supreme Court and I raised one issue that of the -- an instruction involving the putting the burden of proving of alibi of the defendant.

It was affirmed, Thereafter it went to Federal District Court and in the lead case in Georgia, the alibi instruction in Georgia was struck down.

Now, Mr. Justice Black might be more familiar with the alibi instruction in Iowa when he was on the Eight Circuit.

He struck down a similar instruction in Iowa.

The state did not appeal.

Mr. Chaffin then was tried again on the same charge.

The evidence was exactly the same and I like to draw in this point for just a moment.

At the second trial, I was ordered to represent him in his trial.

I decided to add the defense of insanity.

I felt it was -- it involved with this particular person.

The evidence as to the crime was exactly the same, one eye witness, the victim.

One other witness who thought he couldn’t identify Mr. Chaffin but a man who resembled him.

The extra evidence that the Fifth Circuit in the decision points out and the state points out in their brief is that a psychologist and a psychiatrist were called to the stand to testify for and against the defendant.

I called a psychiatrist who said he thought he had a mental disorder.

The State called the psychiatrist to say he didn’t.

The State also called a few witnesses to testify as to the man’s appeared to be a rational prior to the crime, that was the extra evidence.

No extra evidence related to the crime at all.

The jury then came back with the sentence of life imprisonment.

A substantial increase.

Now let me say this to the Court.

I had submitted an instruction to the judge in the second trial that the jury should be charged if they could give Mr. Chaffin no more than 15 years what he got in the first trial.

The judge refused the instruction.

After the jury returned a sentence of life, I thereafter objected strenuously under Pearce versus North Carolina.

The judge refused and let the life sentence stand.

I might add that when the jury sets the sentence in Georgia, the judge does actually sign the sentence.

Chief Justice Warren E. Burger: To give that instruction that you requested --

Mr. Glen Zell: Yes, Your Honor.

Chief Justice Warren E. Burger: -- as part of the trial before they had reached a verdict, it might have been quite a hazardous business.

It might have later become a subject of a charge that this was a suggestion on a part of the judge that he was guilty?

Mr. Glen Zell: Well, now let me say this, Your Honor.

Chief Justice Warren E. Burger: In any event, you covered that by making the motion again later?

Mr. Glen Zell: Let me clear that a little bit, Your Honor.

At the time of the second trial -- we now have a bifurcated trial in Georgia.

We have guilt and innocence.

Now, we have a sentencing or punishment to phase if he’s found guilty.

At the time of Mr. Chaffin’s both trials, there was none of this.

They tried guilt and innocence and punishment at the same time.

So the judge charged the jury on guilt and innocence, and also charged the jury on sentence.

All in the same same set of instructions, you see.

So, in charge in a jury prior to the instructions, I said, Your Honor, if the jury does find him guilty would you include in your charge they can give no more than 15 years what he got in the first trial.

Judge refused the instruction.

Justice Byron R. White: What is the charge he gave that the dismiss the --

Mr. Glen Zell: He just -- the standard sentence of life or death.

Justice Byron R. White: That mean -- now, he charges the jury.

If you find him guilty then you must then impose sentence and the limits are such in such?

Mr. Glen Zell: Drop to death.

Justice Byron R. White: I see.

Mr. Glen Zell: In fact, he charged death.

I’ll cover that, the jury was out about two hours in the death sentence.

They came back filing for life.

Now at this point, of course, we are familiar with Stroud versus U. S. which this court in 1919, “The Birdman of Alcatraz”, I think he was known as, received a life sentence.

He appealed it, reversed it and on this retrial, he got death and this Court affirmed it.

Now of course, Furman versus Georgia come out, again my state, and this -- that they may or may not still be enforced, I don’t know.

Justice Harry A. Blackmun: Well, didn’t the Greene case intervened and solved that problem?

Mr. Glen Zell: Well, there’s been the Greene case, but that deals with now -- with conviction with the crime itself, we're talking about punishment.

Greene dealt with first degree and second arson.

The Georgia case, I think it was Price versus Georgia dealt with the man slaughter murder verdicts.

You remember that?

Where he was found guilty of murder, you reversed it.

You found him guilty of man slaughter, Georgia tried to try him again for murder, you said they can't do it.

He was acquitted of murder, manslaughter was most he could get on second retrial.

We’re talking here about punishment, not about crime which clearly there is a difference.

Now, Mr. Justice White, Justice Harlan, Mr. Justice Marshall, Mr. Justice Douglas say that double jeopardy applies to punishment as well as the crime.

I’ve taken this attack as well and accepted it naturally.

I also argued due process and equal protection.

I thereafter, after the conviction of life, I went to the Georgia Supreme Court and they affirmed it, again, citing a previous Georgia case.

I then went to the Federal District Court in the second go around and Judge Sydney Smith affirmed it, denied the writ and then I went to the Fifth Circuit.

Fifth Circuit affirmed.

I lost in four courts and I am now before this Court.

I didn’t get a a dissent yet.

I’d like to then get into the constitutional questions involved here.

Very surely of course, it’s the right of appeal obviously.

If a man gets a sentence, if he gets a high sentence, of course, he has less to loose.

He will appeal if he gets a life sentence certainly or certainly a death sentence, but if a man gets one or two years, now for example rape.

In Georgia it's anywhere from one year to 20 years life or death.

If a man gets one or two years on a rape charge or a robbery charge which is anywhere from one to 20 years life or death or burglary which is one to 20.

Forgery is one to 10, theft or taking is one to 10.

So meaning, if it’s a low end of sentence, one or two years.

There’s this threat by the State.

It’s implied for it obviously, that if you appeal on a retrial, we’ll go for the maximum sentence.

This is a built-in threat, it’s not an expressed threat, it’s an implied threat, not to appeal.

Now, I think in any system of justice, we should encourage a man to exercise his rights, whether it'd be for jury trial or for an appeal and we should encourage --

Justice Harry A. Blackmun: And you think we should cut loose from the limitations imposed in Pearce that the rule was aimed that at averting the possibility of vindictiveness?

Mr. Glen Zell: We have -- I think we have a more subtle vindictiveness, Your Honor.

In Pearce, it was the --

Justice Harry A. Blackmun: What you are saying, we should just simply say that the chances of a higher penalty deters the right to appeal?

Mr. Glen Zell: That’s correct.

Justice Harry A. Blackmun: And that’s the end of it?

Mr. Glen Zell: Well, it’s like playing Russian roulette with the man’s freedom.

Justice Harry A. Blackmun: Well, you say your answer is yes?

Mr. Glen Zell: Yes.

That’s correct.

I agree.

Justice Harry A. Blackmun: In Pearce, isn’t it?

Mr. Glen Zell: Well, I -- no -- the way of a different problem in Pearce.

Pearce, deals with an obviously vindictive judge, no question about the judge.

He was increasing sentence for no reason.

Justice William J. Brennan: No, but the rule as stated in Pearce was certainly not the one that is yours?

Mr. Glen Zell: That’s correct, but there are words in Pearce that I could certainly use.

Justice William J. Brennan: That wasn't our holding in Pearce --

Mr. Glen Zell: That’s correct.

Pearce just dealt with the vindictive judge.

Chief Justice Warren E. Burger: In almost any case that you can use for some other case, can’t you?

Mr. Glen Zell: That’s correct.

My argument is a -- I think I've several points of argument, I'll discuss Jackson versus U.S, I think its a very similar argument to this case, the Limburg kidnapping crime.

There if a man pled guilty, he couldn’t get death, but if he had a jury trial, he can get death and this Court struck it down, Justice Marshall wrote the opinion.

This chills a man’s rights.

So, Jackson versus US, I could use my argument.

It fetters a man’s rights.

It says, don’t try a jury trial or you might get death, so plead guilty to life.

This Court struck down that provision of death penalty in Limburg statute.

Chief Justice Warren E. Burger: Isn’t there another aspect of Russian roulette as you put it that if this argument, an approach, your approach should prevail, you put a premium on every trial judge to give the maximum sentence on every case so that this can’t happen?

Mr. Glen Zell: That’s a possibility, Your Honor, there is no question about that.

Chief Justice Warren E. Burger: Isn't it more than a possibility, isn’t it a real probability over which some public defenders are somewhat concerned?

Mr. Glen Zell: Yes Your Honor, but I would hope judges in their fairness and honesty, compassion will set a sentence that’s in line with the crime.

I think our whole legal system is based on fairness and justice, and I would like to think that a judge --

Justice Byron R. White: Well, on that basis its an argument for permitting the sentence to be increased later.

I mean, after all that the system is supposed to be right.

Mr. Glen Zell: Yes, Your Honor.

Justice Byron R. White: It's supposed to max the penalty of the crime you say and so the questions should be, not whether its higher or lower than the first time, but whether on its own basis is alright?

Mr. Glen Zell: But you raise the proposition that what is the state's interested in increased penalty though, what is the policy, why should the state introduce this punishment?

Justice Byron R. White: You just stated it, you just stated it.

Mr. Glen Zell: I said, they have very little if any compelling reason --

Justice Byron R. White: No, you just stated that the sentencing should be rational.

Mr. Glen Zell: Yes.

Justice Byron R. White: It should be based on facts of the case.

Mr. Glen Zell: That’s correct.

Justice Byron R. White: So your question should consider the sentence at the second trial on its own two feet without regarding to the person.

Mr. Glen Zell: Well, but of course then you place -- the man is going to appeal his first conviction, is he not, and then he won't appeal it because he is afraid of an increase sentence, if he in particularly got a low sentence the first time.

Justice Byron R. White: And by the way Jackson just set aside the sentence, not the conviction.

Mr. Glen Zell: That’s correct, or in this is to reduce the sentence, I am not asking you to set aside the conviction.

Justice William J. Brennan: Are you going to try to bring this case within the principle stated in Pearce?

Mr. Glen Zell: Well, there are words in Pearce that are very helpful to this case about the right to extra due process, the right to appeal, that you shouldn’t be worried about getting an increased sentence.

You could certainly used that to the subsequent --

Justice Byron R. White: Did the jury know anything about the first trial?

Mr. Glen Zell: No, they did not.

Now, let's take --

Justice Byron R. White: Is there any possibility of vindictiveness?

Mr. Glen Zell: No, there is none, obviously none.

Justice Byron R. White: Why not?

Mr. Glen Zell: Because the jury did not know the first sentence.

Justice Byron R. White: I know but -- in Georgia does it make any difference how the prosecutor goes for it?

Can you argue about that?

Can this prosecutor argue about this sentence in Georgia?

Mr. Glen Zell: In the sentence increase at the trial, he argues for a greater sentence to the jury.

Yes he does.

He argues for it.

Justice Byron R. White: Does that have ever any effect, do you suppose?

Mr. Glen Zell: I’m sure, it does occasionally.

They hope it does, I think the prosecutor.

But let me say this --

Justice Byron R. White: And the judge knows about it, doesn’t he?

Mr. Glen Zell: Yes.

We have different judge by the way which makes no difference, the judges.

Justice Byron R. White: Well, how about the prosecutor, was he same?

Mr. Glen Zell: I think the prosecutor is different.

The judges --

Justice Byron R. White: But in the file, it is the same.

Everybody knows that he was trying the first.

Mr. Glen Zell: That’s correct.

Justice Byron R. White: Except the jury.

Mr. Glen Zell: Except the jury.

That’s correct.

Chief Justice Warren E. Burger: Did I understand you to say that this man was tried before the bifurcated --

Mr. Glen Zell: Before.

Chief Justice Warren E. Burger: -- trial.

So that he was tried on --

Mr. Glen Zell: All at once.

Chief Justice Warren E. Burger: So that prosecutor is considerably more inhibited in a single trial than he is in a bifurcated trial when they come to the sentence.

Mr. Glen Zell: That’s correct and bifurcated to present more evidences as to sentence.

We have a complete statute whatever is admissible in a sentencing at his trial.

Chief Justice Warren E. Burger: Did the prosecution go for the death in the first trial?

Mr. Glen Zell: No, they didn’t.

I didn’t try the first case.

I don’t think they did.

I don’t think they did, but they went for it on the second one.

Chief Justice Warren E. Burger: I would think you might argue that Pearce on its face would apply to a situation like this?

Mr. Glen Zell: There was no question.

Well, I argue as the prosecutor asked for the death penalty.

Under that point, we’d been vindicated.

They did go for the death penalty.

Let me say this too apart from vindictiveness, prior to second trial, Mr. Chaffin is in a dilemma as many of these appellants would be, defendants would be.

You have been now been convicted and reversed and let’s say you receive -- let's take a real low sentence like one year.

You’ve appealed.

There were legal errors and you reversed it.

Now, what you do at the second trial?

To protect yourself against an increased sentence by jury, you waive your jury trial and try it to the judge.

The judge obviously knows the prior conviction, would have access to it or read it in the event sheets.

So, we consider this by the way waiving his right to jury trial in the second trial.

We consider that.

He asked my advice I remember prior to the trial about we should do, will I get an increased sentence and I told him I couldn’t answer that question.

I didn't know, the law was unsettled.

So with the increased sentences and life to death, four states do not follow Stroud and apparently, three do.

Iowa in 1926 allowed a sentence to go from life to death on the second trial when the man was executed.

The same in Louisiana and in Massachusetts and dicta has said they will allow going from a life sentence to death.

Now, whether we’re talking about going from five years to 20 or going from life to death, I think this is just offends due process.

Justice William J. Brennan: I don’t find in the appendix, the closing argument of the prosecutor to the jury in this case, was it recorded?

Mr. Glen Zell: Yes, Your Honor.

I don’t know, I better not say that.

Justice William J. Brennan: They did the full transcript of it?

Mr. Glen Zell: No, there was no record made in this case and let me explain why.

When I filed the writ, in the second go around in the federal court for Judge Sydney Smith, he just asked for briefs and he did not allow anything in the record.

Justice William J. Brennan: Is there a transcript of the state court trial, extend anywhere.

This one exist?

Mr. Glen Zell: Yes, on both trials.

They do exist.

Justice Byron R. White: You have the final arguments recorded in Georgia?

Mr. Glen Zell: They normally are.

I do not want to state to this Court that they were recorded in this particular because I don’t remember.

Justice Byron R. White: They may have been transcribed?

Mr. Glen Zell: That’s correct.

I don’t remember.

The actual trials were transcribed to show that the evidence was exactly the same.

Justice Byron R. White: Who would you ask to find that out, you?

Mr. Glen Zell: Well, I could check with the clerk of the both Superior Court and send the records up if the Court wanted them or get them send up?

Justice Byron R. White: Or you are colleague on the other side may?

Mr. Glen Zell: They were recorded in the court both transfers.

They’re filed in the clerk's office standing the trial court.

Justice Byron R. White: You don't know whether the closing argument?

Mr. Glen Zell: I do not.

I do not, I don’t know.

Justice William H. Rehnquist: Is it possible that closing argument might have been transcribed, but are rather taken down by the reporter, but not transcribed because neither party designated it?

Mr. Glen Zell: Possibly, yes Your Honor.

Possibly, I can’t answer that.

It’s been a long time back and I think it was at he same time in 71.

It’s been almost two years.

So, I don’t want to say for sure whether it was transcribed or not.

I would say this to the Court, I’d be going to file an affidavit because I clearly remember it that Mr. Bill Weller did try for the try for death penalty.

I do remember jury being out for about three hours because --

Justice Byron R. White: You don't remember whether he did the first time?

Mr. Glen Zell: No, I didn’t try the first case.

I clearly remember the second trial, the reason why he wanted the death penalty because when I went out the cargo of the trial, the victim was running up and down the cargo laughing.

Justice Byron R. White: How about the first trial?

Is there any transcripts of that?

Mr. Glen Zell: Of the trial, but I don’t know of the final argument, Your Honor.

Justice Byron R. White: The same, so in comparison you (Inaudible) to have both trials?

Mr. Glen Zell: That’s correct.

I think I get affidavits from the Attorney, Mr. Rene, tried the first trial an affidavit from him, and the District Attorney.

Bill Weller tried both trials, the District Attorney.

And I think with affidavits to verify or clear up that -- but I do not, they did go for the death penalty in the second trial knowing they only got 15 years the first.

Chief Justice Warren E. Burger: (Inaudible) go for it.

Mr. Glen Zell: The death penalty in the second trial.

Justice Potter Stewart: As he asked the jury to impose?

Mr. Glen Zell: That’s correct.

Knowing, just knowing that he got 15 in the first and that’s vindictiveness to me, is it not, knowing he got 15?

Justice William H. Rehnquist: The state frequently asks for more than it thinks it can get or perhaps more, doesn’t it, on a penalty phase?

Mr. Glen Zell: Yes, Your Honor, very definitely.

The question we are faced here of course is does this chill your right to appeal?

Justice William H. Rehnquist: Well, supposing the prosecuting attorney thought that the 15-year sentence awarded at the end of first trial was a very just and proper one, and he wanted to get just that again.

If he has any sense, he’s not going to ask the jury for 15 years, he’s going to ask them for something more because you’ll be asking for something less and the chance are the jury will split it.

Mr. Glen Zell: Yes, absolutely correct.

Chief Justice Warren E. Burger: Isn’t that the essence of the adversary system?

Mr. Glen Zell: Here’s my answer to that, Your Honor.

In the Federal System in 43 of the 50 states, Mr. Chaffin can actually get an increased sentence.

What’s good for the goose should be good gander and that's what the Fifth Circuit in argument Charlesburg versus Bradley said, well had you until -- that’s not true in the federal system, if you appeal, you don’t get anymore the second trial.

Justice Byron R. White: But is this a -- you mean 43 of the 50, that’s the counting them after Pearce?

Mr. Glen Zell: No, no, only seven states, the jury sets the sentence.

Only seven states.

Now, all seven are against me, including Georgia, all are increased.

The Fourth Circuit agrees with me, the Fifth Circuit of course disagrees and there are three District Courts in Tennessee, federal would agree with me.

And of course its four to three in states are going from life to death in my favor I believe.

So, there is involving the principle of increased sentence.

Of course, this Court has only reached decision once in Stroud.

Justice Potter Stewart: You said there are only seven states where --

Mr. Glen Zell: The jury sets it.

Justice Potter Stewart: -- the jury sets the sentence?

Mr. Glen Zell: That’s correct and they are all against me.

Justice Potter Stewart: On this issue?

Mr. Glen Zell: Yes, Your Honor.

Justice Potter Stewart: And they have all decided this issue?

Mr. Glen Zell: Yes, Your Honor.

It’s in my brief, footnote, if the Court would indulge, it's on page 6, Footnote 2.

And I also cite the case in the Fourth Circuit in Tennessee on the same page.

But it's strange, seven to nothing against me on life to death, it's four to three in my favor. So apparently as the sentence gets higher, they can draw the line I guess.

Now this Court, I want to mention this Colten versus Kentucky, I was frankly surprised by that decision, honestly, but there you drew the line in misdemeanors.

Justice Byron R. White: Unless you are wrong inside?

Mr. Glen Zell: That’s correct.

Justice William J. Brennan: It doesn’t help you here, does it?

Mr. Glen Zell: No, it doesn’t, it sure doesn’t.

But there you drew the line on misdemeanors.

You said well misdemeanors, it wasn’t really an appeal, it was just going from a G plea (ph) to a little court, what’s big deal about going from $10.00 fine to a year in jail.

I’m not sure exactly but I want to point out Justice Brennan’s concurring in Yule versus U.S. He used words about oppressiveness.

This is where they set aside that Government withdrew an indictment, one can indictment into three can of indictment and you concurred to the judge along, you said it's certainly oppressive.

In this rule, we have used an oppressive threat by a man to if he appeals, if he appeals, what may happen?

Now, is this what we wanted on our system of justice?

That’s all it is.

Can a man correct legal errors?

Of course, you’ll deny an appellate court the right of jurisdiction of this case.

I’m sure many appellate courts wouldn't mind that.

They are overloaded, but you’re certainly on a low sentence would deny a man a right of appeal no question about it unless the Court will disregard that statement.

I was going to raise the death on Parker versus North Carolina and I’ll point out where they had a bad death penalty --

Justice Byron R. White: You can’t, of course, you can’t claim that -- that the evil you want to cure was felt by your plan.

He got a higher a sentence, but his right to appeal wasn't deterred?

Mr. Glen Zell: Well, if he had to go over again I’m sure he would want to.

Justice Byron R. White: Are you talking about safeguarding the right of somebody else?

Mr. Glen Zell: Well, I’m asking this Court--

Justice Byron R. White: The way you put it.

If you’re not going to argue vindictiveness, you’re talking about the rights of, you know of, somebody who wasn’t here, some later defendant?

Mr. Glen Zell: No, you can correct this -- Mr. Chaffin -- you can reduce the sentence to 15 years or I think under Georgia procedures, if you did they keep the sentence.

Justice Byron R. White: But only not to help him, but to help somebody else?

Mr. Glen Zell: We’ll certainly to help him.

Justice Byron R. White: Oh, yes but the only the reason you’re doing it is to make sure that somebody else’s rights to appeal weren't deterred because yours weren’t.

However, bad it is to face the risk of an increased sentence, your client wasn’t deterred the least?

Mr. Glen Zell: That’s correct.

Well, he did appeal.

He exercised his right and got punished for it, that’s correct.

We’ve had about four subsequent Georgia cases on the same point.

I might point out, it’s not in my brief, I reversed the case --

Justice Byron R. White: So that the way you put it, you’re going to have to make the argument that he was punished for it and you didn’t make that argument in your brief?

Mr. Glen Zell: I am making it now --

Justice Byron R. White: Now after --

Mr. Glen Zell: -- and I clearly state in my brief that he was punished and he did get an increased sentence.

Justice William H. Rehnquist: You say this punishment connotes some sort of intentional vindictiveness when you used the word?

Mr. Glen Zell: Well, I think it’s a scheme by the state certainly to go for, in this case death penalty maybe what if they didn't get this one for life.

Justice William H. Rehnquist: Oh okay.

What evidence did you introduced in your habeas corpus proceeding before Judge Smith in Atlanta to show this sort of intentional vindictive alibi?

Mr. Glen Zell: I didn’t get a chance, Your Honor.

I filed a writ and after briefs were filed, he didn’t ask for any transcripts which is that's why this is not before this Court, he denied the writ.

We're talking about the second go around now, an increase?

Justice William J. Brennan: You mean, you haven’t a hearing?

Mr. Glen Zell: Did not have a hearing, that’s correct.

Justice William J. Brennan: And if you did, what would you offer?

Mr. Glen Zell: I would offer the two trial transcripts to show that the trials were exactly the same not as the Fifth Circuit seems to say, there were exactly the same evidence.

No reason for the increase, except the first jury did and another first --

Justice William H. Rehnquist: What was that you alleged in your habeas corpus petition?

Mr. Glen Zell: Based and relied on Pearce that he was punished for his right of appeal.

Justice William H. Rehnquist: Did you allege that there were some sort of intentionally vindictive conduct on the part of the state?

Mr. Glen Zell: Well, I alleged vindictiveness by the state, yes.

I think I used vindictiveness, it's in the appendix and we have it laid out.

Chief Justice Warren E. Burger: You made the point a moment ago that if your client had to do it over again, he wouldn’t do it and you seem to rest something on that as something wrong in the system of justice.

But if you have the man who is offered in plea negotiations a five-year sentence and he finally rejects that and goes to trial and then gets a 15 years sentence, would you say, there is something wrong with the system of justice then?

Or it is --

Mr. Glen Zell: That -- that is -- plea negotiation, Your Honor is apparently been upheld by this Court I think in Alfred versus North Carolina, you upheld even the man seems innocent, you have the plea.

That’s always bothered me and in the states and I think it’s on federal courts where --

Chief Justice Warren E. Burger: Well, but is there something wrong with that when he has made a conscious choice with advice of counsel or perhaps against the advice of this counsel to reject a guilty plea and five-year sentence and then he goes to trial and runs out and gets 15, something wrong with that?

Mr. Glen Zell: It certainly bothers me because the man should exercised --

Chief Justice Warren E. Burger: It sure bothers the defendant when he has made that choice but I am talking about the principle now?

Mr. Glen Zell: I don’t accept that principle because it does punish for you saying, I am saying my rights to have a jury trial, is that right?

Yes, you do.

You want me to go trial.

Well, if you go to trial and we -- you -- we find you guilty either by judge or jury we’re going to give you 15.

It bothers me because why would they offer five in the very beginning, if he didn’t deserve the five.

We are talking about theoretical, what -- does this man deserve for punishment?

What he’s done?

Not because he asked for a jury trial or because he asked for an appeal.

Chief Justice Warren E. Burger: Well your approach would stop all plea negotiations entirely --

Mr. Glen Zell: That’s the problem that the other side of the coin.

It would possibly break down.

I don’t know if it would but would break down plea negotiations.

Now, in many counties in our state, we do not have any plea negotiations and it works.

The system works.

Other county such as Atlanta which is a big city, Fulton County, we have plea negotiations.

I don’t know what the answer would be, if we didn’t punish a man for trying this case.

I think in the northern district of Georgia, the federal Court I don’t like to think and I don’t believe that these federal judges, punish the man for trying his case I don’t think they do.

They do in state courts obviously.

I accept that, I concede that.

Justice William H. Rehnquist: Mr. Zell, I'm looking at pages 4 and 5 of the appendix which is your petition for writ of habeas corpus.

I don’t claim to have read every word of it but I would characterize it as simply alleging that the sentence was increased and therefore Pearce was violated.

I don’t see any allegation of any sort of vindictiveness or intent on the part of the state?

Mr. Glen Zell: Well page 5, paragraph 7, that the entire retrial was void and illegal since the jury was qualified in death sentence and several juries were excluded and the state argued the death penalty and the trial judge charged on a law of capital punishment to the jury.

That indicates --

Justice William H. Rehnquist: That’s the extent of the allegation of vindictiveness?

Mr. Glen Zell: I think it would be a reasonable--

Justice William J. Brennan: What about in paragraph 5, the second Clause that they increased his sentence without any legitimate reason penalizing his petition for appealing his first conviction.

Mr. Glen Zell: And I site Griffin and Douglas which is of course your case in avenues of appeal.

Once they are open, they should name --

Justice William J. Brennan: I notice you also, in paragraph two allege that at the first trial, the jury was qualified to a death penalty with the trial judge did charge on the law of capital punishment.

Mr. Glen Zell: Yes, Your Honor.

Apparently he did charge but they only filed 15 years.

Apparently, they did go from death sentence in both cases.

Justice William J. Brennan: Issue perhaps they did.

Mr. Glen Zell: Yes Your Honor.

We still alleged though.

Justice William J. Brennan: Your times is up.

Mr. Glen Zell: That’s right.

Chief Justice Warren E. Burger: Very well, Mr. Zell.

Mr. Hicks.

Argument of Richard E. Hicks

Mr. Richard E. Hicks: Mr. Chief Justice and may it please the Court.

I think the question we have here is a very narrow one, relative to the Pearce due process question.

I believe this Court has held in Stroud, the Pearce, and the Colten cases that nether double jeopardy or equal protection impose an absolute bar to a higher sentence.

So I think, we are limited in this case to the narrow question of whether or not a jury can impose a harsher sentence on retrial and the authority involved here is the Pearce case.

And as the Fifth Circuit read the case and as I read the case.

And hopefully as the Court wrote the case that was based on the due process argument or requirement that a prisoner should be free from apprehension that should he appeal he might receive a higher sentence solely because he appealed.

The judge is saying, you appealed my ruling, my sentence, well, I’m going to show you.

Now, we just don’t have that with juries.

There’s not the same motivation there.

There is just no vindictiveness.

A judge has his career to look after, perhaps as in Georgia, he runs for election.

Justice Byron R. White: What were the odds in Georgia that the jury would or do you know?

About the jury giving death if the prosecutor doesn’t ask for it or is that wholly out of the hands of the prosecution?

Mr. Richard E. Hicks: Well, we don’t ask for it, it's on the statute books.

Justice Byron R. White: Well, that’s what I mean --

Mr. Richard E. Hicks: I mean he does know -- it's not up to us to decide.

Justice Potter Stewart: The prosecuting attorney says something about it, doesn’t he?

Mr. Richard E. Hicks: Well, he can yes.

Justice Byron R. White: Well, he can but sometimes he doesn’t?

Mr. Richard E. Hicks: Sometimes he doesn’t.

Justice Byron R. White: Does he say, “No, I don’t think for a moment that the death is appropriate in this case?”

Mr. Richard E. Hicks: Well, what I have said in myself many times when the death penalty was in exist --

Justice Byron R. White: Well, you are not asking for it?

Mr. Richard E. Hicks: I would say, “Well, we’ve waive the death penalty but we are not to waive anything else.

Justice Byron R. White: Yes.

Well, so you do have a choice and ask what you say to the jury about it.

Mr. Richard E. Hicks: Yes, that’s correct.

Justice Byron R. White: And what about -- in your experience does a jury ever give that prosecution that was --

Mr. Richard E. Hicks: They never given it when I was trying the case.

Justice William J. Brennan: Well tell me --

Mr. Richard E. Hicks: Whether you ask for it or not?

Justice William J. Brennan: Right.

Mr. Richard E. Hicks: Yes.

Justice William J. Brennan: When you say, we are waiving the death penalty what’s the nature of the instruction that the trial judge sentenced this --

Mr. Richard E. Hicks: Well, just doesn’t charge on death.

Justice Lewis F. Powell: Well now here --

Justice Byron R. White: He doesn’t?

Mr. Richard E. Hicks: No.

Justice Byron R. White: If you do not go for it if you don’t ask for it --

Mr. Richard E. Hicks: That’s in my experience, right.

Justice Byron R. White: What?

Mr. Richard E. Hicks: That’s been my experience.

Justice William J. Brennan: Well then if assuming this allegations in paragraphs 2 and 5 --2 and 7 of this petition for habeas are true well then it would appear that the prosecutor must have asked for the death penalty since the trial judge charged him in the both trials on the death penalty?

Mr. Richard E. Hicks: Well, it would appear from that.

I will ask the question that was asked of Mr. Zell.

This -- the arguments are not transcribed.

They may have been recorded, but they are not transcribing the --

Justice Byron R. White: Well, the instructions are?

Mr. Richard E. Hicks: The instruction, yes.

Justice Byron R. White: Now, did the judge instruct for the death penalty in the first trial?

Mr. Richard E. Hicks: I don’t know.

Justice Byron R. White: So, it is alleged here.

Justice Potter Stewart: Or the allegation he did?

Mr. Richard E. Hicks: Right, Your Honor.

Justice Byron R. White: Or if he did then the prosecution must have asked for it?

Mr. Richard E. Hicks: Yes.

Justice Byron R. White: In both trials?

Mr. Richard E. Hicks: And not necessarily.

Perhaps they just didn’t waive it.

Justice William J. Brennan: Oh, you mean not addressed it at all (Voice Overlapping) closing, I see.

Justice William H. Rehnquist: If the prosecution doesn’t expressly waive, but doesn’t expressly argue, then does the trial judge charge on him?

Mr. Richard E. Hicks: They will normally charge him anyway.

Justice Thurgood Marshall: And he did charge life imprisonment?

Mr. Richard E. Hicks: For robbery he was charged with death, life or up one to twenty.

Justice Thurgood Marshall: That’s what – I am talking about the second charge?

Mr. Richard E. Hicks: He charged death, he also charged life and he charged 120 on both trials.

Justice Thurgood Marshall: What would be your objection to him saying that in this particular case the heavier sentence you can give is 15 years?

Mr. Richard E. Hicks: Well, I think the problem with that is then the jury says well, that’s the top.

Maybe, we don’t want to give him the maximum as they said in this case, they said we want to give them life, we don't want to give him death, but they say that the 15 would be the top limit so they probably come down a little bit.

Justice Thurgood Marshall: Well, if Pearce means what the petitioner here says that is a top?

Mr. Richard E. Hicks: Well if there’s vindictiveness, that’s way I read Pearce.

Justice Thurgood Marshall: Yes, it wasn’t on me so that, he could then say 15 as the most you can get?

Mr. Richard E. Hicks: He could say that --

Justice William J. Brennan: Tell me Mr. Hicks, may a trial judge when the jury brings in life as in this case, say well no I'll cut that back to 30 years or 15 or something?

Mr. Richard E. Hicks: No, he can’t do it on the life or death charge but he could on a less sentence.

Justice William J. Brennan: That is if they brought in 20 years by the jury he could cut it down to 10, but he can’t cut on the life and death.

Mr. Richard E. Hicks: That’s correct.

That was cited in our brief of the code section.

Justice William J. Brennan: Yes.

Justice Potter Stewart: You understand that the instructions of the trial judge to the jury in the second trial are available?

Mr. Richard E. Hicks: Yes.

Justice Potter Stewart: Have were -- have been transcribed and are available?

Mr. Richard E. Hicks: Yes.

Justice Potter Stewart: Would you have any objection to its submitting them to the Court?

Mr. Richard E. Hicks: No sir.

I have copied --

Justice Byron R. White: On both trials?

Mr. Richard E. Hicks: Yes, sir.

Justice Potter Stewart: Alright and did I further understand that the arguments to the jury at least by the prosecutor are non-available or couldn’t be made available?

Mr. Richard E. Hicks: They were not transcribed.

I know that, whether not they were taken down, I don’t know but I could find it out.

Chief Justice Warren E. Burger: Would a jury can agree on that?

Mr. Richard E. Hicks: Yes, that’d be good.

Chief Justice Warren E. Burger: Well, perhaps the other materials with the clerk?

Mr. Richard E. Hicks: Yes.

Justice Byron R. White: But you were in the trial of the case, I take it?

Mr. Richard E. Hicks: No, not that case --

Justice Byron R. White: So, you don’t know what the prosecutor -- what the posture of the prosecution was in either trial with regard to the death penalty?

Mr. Richard E. Hicks: Well, I do know of the record --

Justice Byron R. White: Well, you do know that at least the prosecution didn’t waive it?

Mr. Richard E. Hicks: He didn’t waive --

Justice Byron R. White: -- in the second trial or the judge wouldn’t have instructed on it?

Mr. Richard E. Hicks: That’s correct.

Justice Byron R. White: And he didn’t waive it in the first trial?

Mr. Richard E. Hicks: That’s correct.

Justice Byron R. White: Well, you don’t know that?

Mr. Richard E. Hicks: If I know he instructed it because I have the instructions.

Justice William J. Brennan: But you don’t know whether if the prosecutor addressed the jury in either instance as to death?

Mr. Richard E. Hicks: That’s correct.

I don’t know from the record because we don’t have the record.

Now personally, the prosecutor’s office is right next door to me and he has told me that he asked for it and --

Justice Byron R. White: How about the first?

Mr. Richard E. Hicks: Both, the facts in the case, it’s a horrible case, and he asked for it in both cases because of a horribleness of the case.

Justice Byron R. White: I see, I see.

Justice Potter Stewart: And then there was a proffered instruction in the second trial like counsel for the defense, was there not?

Asking the court to instruct the jury that the 15 years would be the maximum that could imposed --

Mr. Richard E. Hicks: When he says I assume that’s true.

Justice Potter Stewart: Well, would that be a matter of record also?

Mr. Richard E. Hicks: I don’t remember reading it myself, so I can't say--

Justice Potter Stewart: If that is -- for the record, could you submit to that with fellow counsel?

Mr. Richard E. Hicks: Okay.

I like to --

Justice Potter Stewart: Proper instruction and what the court said about it?

Mr. Richard E. Hicks: Yes sir.

Justice Potter Stewart: In the second trial?

Mr. Richard E. Hicks: Yes sir.

Justice Potter Stewart: Thanks.

Mr. Richard E. Hicks: The appellant here seems to be very concerned with the chilling effect of the possibility of a higher sentence on the appeal but I think he is over estimating this chilling effect.

As it stands now, every appellant, everybody who is convicted who comes along appeals this case I think that’s a matter of general knowledge.

Now, it certainly hasn’t been too chilling in my experience so far and look at the possibilities should he appeal.

The fact is that if he appeals, he has a four possibilities.

He can come out less, he can come out and be turned loose the second time not guilty, he can come out with less time the second time around, he can come out with the same amount or he can get more but the first two possibilities, that is that he will be found not guilty or he will get less times seem to be the more reasonable predictions of what will happen because the second time around, the prosecution, I can tell you has a hard time getting the witness as the first time.

And the second time, it’s even harder to round up the witnesses.

They die, they move, they forget what they said the first time.

The information is not clear on their minds anymore and in fact the possibilities are getting more time or very negligible.

This is the only case I’ve seen is come on, of course, as I have researched, I’ve seen there have been a few through the courts but it's really not that big scare.

They all want to appeal.

It seems to me that a majority of them want to appeal anyway, no matter what their sentence is.

Now, Mr. Zell in his brief in his argument, it seems to say that we are limited at first sentence.

That first sentence is the best, I guess, but really, we don’t claim that this first sentence is anything particularly significant are wholly about the first sentence.

Perhaps, the jury and jury sentencing didn’t have all the information that the second jury had and what we are looking after really is justice.

Now, what’s right in a particular case, a particular sentence and a particular case?

We’ll bring about rehabilitation of this person if he is really rehabilitatable or what punishment is due if punishment is due?

Justice Thurgood Marshall: Or that do you agree with Mr. Zell that the records are practically identical?

Mr. Richard E. Hicks: No, I don’t.

The first time around, the defendant had a purely an alibi defense.

He said he was in Warm Springs at the time this crime was committed and he presented an alibi witness, who said he was in Warm Springs.

That was his defense.

The second time around and now of course the state's case was the same, we had the same victim, same outcry of witnesses and things of that nature.

But the defendant, the second time around said, he didn’t present his alibi witness, he just said, I was in Warm Springs and I didn’t do it.

Then, he also presented a psychiatrist and a psychologist who said that he did know there’s between right and wrong under the M'Naghten Rule and he wasn’t guilty for that reason.

On rebuttal, the prosecutor put up a doctor who examined the defendant within four to five hours prior to the commission of this crime and said he was perfectly fine.

The defense psychiatrist and psychologist didn’t examine him until nine months after the commission of the crime before the trial.

So, it would seem to a reasonable person sitting on jury, a doctor who examined the man within hours of the commission of the crime, would seem to have more credibility than a doctor who had examined him some nine months later.

Chief Justice Warren E. Burger: Do you know the explanation for that rather remarkable coincidence?

Mr. Richard E. Hicks: It is remarkable.

It's almost unbelievable the way it happened.

The victim in the case lived in an apartment downstairs from the apartment where the defendant lived and they were neighbors.

The husband of the victim took the defendant to the doctor on the day this crime was committed. When he came home from the doctor, he dropped by to see the victim and thank for her for her husband taking him to the doctor.

And for some reason, he then proceeded to strike her in the head, knock her down, take a t-shirt and choke her.

Next thing she remembers is waking up in the woods in Clayton County some distance away where she had been brutally beaten.

Some object had been used on her to sexually molest her and she was terribly molested and beaten, and spent some considerable time in the hospital.

Now that doctor, we managed to find out who that doctor was that the victim’s husband took the defendant to on the day of the trial -- of the commission of the crime.

And I -- as I understand, Mr. Zell was surprised when that doctor showed up on rebuttal testimony.

Chief Justice Warren E. Burger: There’ll be reasonable grounds for surprise --

Mr. Richard E. Hicks: Yes sir.

Chief Justice Warren E. Burger: Under circumstances --[Attempt to Laughter]

Mr. Richard E. Hicks: So, for that reason, even if we are talking about the Pearce pure vindictiveness rule under the judge theory then, we think there’s reasonable grounds to see that there were some different evidence before this jury to give more time than the first time around.

And primarily, we say that the Pearce rule of looking for identifiable characteristics after the first trial, doesn’t apply here because the jury just doesn’t apply vindictiveness. They don’t have the same motivation.

A judge is trying to look out for himself.

Justice Byron R. White: On that basis you would say it wouldn't make a difference I suppose if the jury knew about for previous conviction and sentence or not?

Mr. Richard E. Hicks: Well, if they knew it, it would perhaps make a difference.

But they just don’t know. Well, they would know if it please the Court.

Justice Byron R. White: No one, I know of.

I think its certainly unusual for the transcript for previous file to be used, in the course to examining witnesses?

Mr. Richard E. Hicks: That’s correct.

Justice Byron R. White: Was it here?

Mr. Richard E. Hicks: It was used here as a matter of fact.

Justice Byron R. White: So, they must have known then there was previous trial?

Mr. Richard E. Hicks: Yes and they knew there was previous trial, but not of the previous conviction or what the previous sentence was.

Justice Byron R. White: Well, how are the odds that really -- if there was a previous trial that was either a conviction -- the odds are that there was a conviction that was set aside or it wouldn’t be a second trial because of double jeopardy.

Mr. Richard E. Hicks: I wouldn’t agree with that.

You have many mistrials in Georgia.

Chief Justice Warren E. Burger: A mistrial --

Mr. Richard E. Hicks: Many more mistrials and reversals and retrials, I'll say that.

Justice Byron R. White: So, the jury would be confused as to what is actually happening.

You couldn’t--

Mr. Richard E. Hicks: Perhaps they would be, yes.

Justice Byron R. White: At least you couldn't have referred to the jury (Inaudible) been convicted and move to set aside his trial?

Mr. Richard E. Hicks: I don’t think you could, no sir.

Chief Justice Warren E. Burger: Or if they knew that to -- would it be likely that they knew the precise sentence that had resulted?

Mr. Richard E. Hicks: It would -- that certainly would not be admissible in Georgia, to say what his prior sentence was and they just wouldn't know that unless it was highly publicized crime or something then they might know.

In a situation where they would know in a highly publicized crime or if it should come out in the trial then the Pearce rule to show vindictiveness could be applied to the jury, but in the general run of the mill cases where the jury does the sentencing the Pearce vindictiveness rule does just not apply as far as we are concerned and that is what the Fifth Circuit has held also.

Thank you.

Chief Justice Warren E. Burger: You have a few minutes left.

Resume Mr. Zell.

Rebuttal of Glen Zell

Mr. Glen Zell: Let me just say this up on my defense is a fairly pitch quite a bit from doctors and so the witness.

They would have just had seen him and just said that he appeared to be okay to me which you could think of Napoleon, and some of you might think you are okay just for a few minutes but anyway, the evidence was the same as to the crime.

You say that’s the important thing we are concerned with.

This Court has never commented or discussed Stroud problem, life to death.

It seems to stay away from that and that's what I am asking this Court to do is overturn the doctrine.

And the -- what I am saying is I am agreeing with Justice Douglas and I believe Justice Marshall in their concurring in Pearce case.

The balancing, the sentence upward or downward on a retrial, you should favor the defendant on balance to give him the unfettered right of appeal.

That’s basically the primary base of my argument is justice Douglas as concurring in Pearce.

Chief Justice Warren E. Burger: Anyway, I don’t remember from the record here was the defendant charged with kidnapping as well as assault and --

Mr. Glen Zell: They charged him with many, many other crimes in other counties.

Clayton County, he mentioned an adjoining County charged with some sexual act and another crimes.

I think they were disposed of--

Justice William J. Brennan: On this victim or other victim?

Mr. Glen Zell: No, this victim and I think they were disposed of either by concurring sentence of few years or dismissed.

But the only charge against him was the robbery case.

He actually robbed her car that’s this case was about.

After not already took her car and that what’s the charge is stealing or robbing her car by force and violence.

But I want to stress this Stroud doctrine that is still alive and that’s what I want to see overturned from life to death that is still with this Court it has never been overturned.

Thank you.

Chief Justice Warren E. Burger: Mr. Zell, you came here at our request and by appointment of the Court and on behalf of the Court, I want to thank you for you assistance not only to your client but to your assistance to the Court.

Mr. Glen Zell: Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.