GERSTEIN v. PUGH

Print this transcript Transcript: 

Argument of Leonard Mellon

Chief Justice Warren E. Burger: We will hear arguments next in 73-477, Gerstein against Pugh.

Mr. Mellon, before you proceed, I observed we have allowed an hour-and-a half here.

Having allowed it, we will honor that.

But, it appears to us that this may not warrant it and if you, Gentlemen, can shorten your submission, it will help.

Mr. Leonard Mellon: Mr. Chief Justice and may it please the Court.

I am the Assistant State Attorney in Florida and I represent the petitioner here, Richard E. Gerstein the State Attorney in the Judicial Circuit of Florida for Dade County.

Petitioner was the appellant below and one of the defendants at trial in United States District Court for the Southern District of Florida.

We are here on a petition for writ of certiorari to review the August 15th, 1973 decision of the Fifth Circuit Court of Appeals, in which, that Court held in affirming the United States District Court from the Southern District of Florida that the Fourth Amendment and the Fourteenth Amendment to the Constitution of the United States mandated that preliminary hearings be given for all persons being held in custody even in instances where they are charged by an information filed by a state attorney in which he has certified that there is probable cause to hold those persons in custody pending trial.

The respondents, at the time of the initiation of this litigation where defendants, then in custody in the Dade County Jail, charged with various crimes: felonies and misdemeanors, charged by information or information which had there before had been filed by the Dade County State Attorney, the petitioner here.

In the class actions, they asked that the District Court declare and mandatorily compel the Dade County Circuit Court to grant them a preliminary hearing on the charges then pending against them.

The United States District Court, in its ruling, held among other things that these defendants were entitled under the Constitution, the Fourth Amendment and the Fourteenth Amendment, to a preliminary hearing even though they had been charged in an information in which the state attorney had certified the issue of probable cause.

We are here confronted with that question.

Do persons in state custody, charged under information in which there has been a certification as to probable cause by the prosecuting attorney that is the State attorney, do they have a right to a preliminary hearing before a magistrate on that question of probable cause.

Throughout this litigation, the petitioner has relied on a line of cases by this court beginning with Ker versus California in which this Court held that a man need not be charged by a grand jury indictment but can, in fact, be charged by information.

Lem Woon versus Oregon has been argued throughout this litigation.

This Court has held that no prior probable cause hearing is necessary prior to the making of an arrest.

We relied especially on this Court’s language in Ocampo versus United States in 234 United States.

There, it was held that the function of determining probable cause is only quasi-judicial and, therefore, that function need not be confided to a strictly judicial officer or tribunal.

This Court, in recent years, in its decision in Shadwick versus Tampa, for example, held that a magistrate must meet two tests.

First, that he’d be neutral and detached and the second that he’d be capable of determining probable cause.

When this Court held in Coolidge versus New Hampshire that the very Attorney General who would act as a magistrate in the issuance of a search warrant, that Attorney General who had been the Chief Investigator in the case leading up to the application for a search warrant and who would be the Chief Prosecutor did not have the degree of neutrality and detachment necessary in that instance.

We submit that we are not here confronted with a similar situation to Coolidge versus New Hampshire.

A state attorney in Florida and the state attorney in this instance, the petitioner, in his determination as to whether or not there are sufficient facts to file an information has a degree of neutrality and certainly has a degree of detachment for he does not make the case.

The case is brought to him by a law enforcement agency.

He sits, in effect, at the juncture in the proceeding in a quasi-judicial capacity.

He meets --

Justice Potter Stewart: Mr. Mellon, I wonder if I can interrupt you to ask you if you can help me get cleared the chronology of how this happens.

Is there, first, an arrest by a policeman presumably, at least as far as this case goes, a valid arrest because no arrest is being attacked in this case and then, the policeman comes to the prosecutor, the county, and gives him the case that he thinks he has against the man.

Then, the prosecutor files the information.

Or, does the information come first and then is followed by an arrest?

Mr. Leonard Mellon: It occurs both ways, Mr. Justice Stewart.

In the majority of cases in our jurisdiction in Florida, in Dade County, are warrantless arrests where the officer comes upon the scene and makes an arrest on probable cause.

In that case, the information is filed subsequent to the arrest.

Justice Potter Stewart: After the arrestee is in custody?

Mr. Leonard Mellon: Is in custody that is right.

In the --

Chief Justice Warren E. Burger: Is there a time limit?

Mr. Leonard Mellon: Yes, Your Honor.

Chief Justice Warren E. Burger: In which he must act.

Mr. Leonard Mellon: Yes, Your Honor.

Under the present rules of criminal procedure in Florida, which were amended effective March 1 of this year, he must file an information within 96 hours after the initial appearance.

And, the initial appearance is held that conforms to your rule, Rule 5, must be held within 24 hours after the arrest.

But, the majority of cases are of a warrantless variety.

On the other hand, there are instances where a police officer comes to the State Attorney’s Office, testifies to the state attorney or his assistant as to the nature of his case and, thereafter, a warrant, a habeas or warrant is issued when an information is filed.

Justice Potter Stewart: So, in that kind of a case, the arrest follows the issuance of the information and it’s by virtue of a habeas issued by the prosecuting official.

Mr. Leonard Mellon: Yes, the habeas issues in Florida, under the Florida rules, unless the man is already in custody or unless he is out on bond.

In those two instances, the habeas will not issue.

However, if he is at large and has not been arrested at a prior time, a habeas will issue.

Justice Potter Stewart: By the same man who files the information presumably.

Mr. Leonard Mellon: No, Your Honor, the habeas is issued by the Clerk acting at the Court’s behest.

Justice Potter Stewart: Acting in the prosecutor’s behest, isn’t it?

Mr. Leonard Mellon: The prosecutor indicates that if the rule provides that the habeas shall issue at the time the information was filed --

Justice Potter Stewart: Right, issued by --

Mr. Leonard Mellon: Unless the prosecutor request that it be issued at some subsequent time.

Justice Potter Stewart: And now that I have interrupted you can you tell me what determines, in Florida procedure, whether a prosecution is to be initiated by information or whether it is to be instituted by a grand jury indictment.

Mr. Leonard Mellon: The only mandatory requirement in Florida is in the area of capital offenses that a grand jury indictment must hand it up.

Otherwise, all crimes are prosecutable by information.

Justice Potter Stewart: And are they, in fact, prosecuted by information or are they sometimes prosecuted by grand jury indictment, other crimes?

Mr. Leonard Mellon: Yes, other crimes.

Very many crimes are prosecuted by indictment.

Justice Potter Stewart: Well, what determines that?

Who is it who decides it and on what criteria?

Mr. Leonard Mellon: The grand jury, generally, makes that determination.

And the state attorney, quite often, will bring matters before the grand jury, matters dealing with public corruption for example, matters which, historically, have been brought before a grand jury.

Florida has a unique law, Sunshine law, which requires all executive agencies to conduct their business in the sunshine effect and that there not be executive sessions.

Justice Thurgood Marshall: Can the grand jury take up a case that the prosecutor doesn’t want them to take up?

Mr. Leonard Mellon: Yes, sir.

Indeed they can.

Justice Thurgood Marshall: How?

Mr. Leonard Mellon: Simply by directing the prosecutor to bring that matter before them.

Justice Thurgood Marshall: When you have this here before the prosecutor, are the witnesses sworn?

Mr. Leonard Mellon: Yes, Your Honor.

The prosecutor must certify, in his information, that he has had sworn testimony taken and they are, in fact, sworn.

Justice Thurgood Marshall: And where is that in the statute?

Mr. Leonard Mellon: Where is that in the statute?

Justice Thurgood Marshall: I didn’t see that in the statute.

Can you tell me where it is?

Mr. Leonard Mellon: Your Honor, counsel for amicus will—it’s set out in the four rules of criminal procedure that the matter must be based on the --

Justice Thurgood Marshall: And you say that this is a detached person, the prosecutor?

Mr. Leonard Mellon: At that juncture, yes, Your Honor.

Justice Potter Stewart: And as I understand it, most mind-run criminal offenses are preceded against by information.

Capital cases have to go by way of indictment and some cases involving official corruption and so on go by way of indictment, but most mind-run criminal offenses are initiated, the prosecution is initiated by information.

Is that --

Mr. Leonard Mellon: That is correct, Your Honor.

Justice Potter Stewart: Do I understand that correctly?

Mr. Leonard Mellon: That is correct.

Justice Potter Stewart: Now is this case confined in Dade County, Florida or is this a statewide problem or question?

Mr. Leonard Mellon: It’s a statewide question, Your Honor, since we are dealing here with the problem about -- Dade County has a unique magistrate system which arose during the time this case was pending on appeal.

Florida provides, on a statewide basis, under its rules for preliminary hearings now but its ramifications are clearly statewide.

Unknown Speaker: Mr. Mellon, as this case started, I understood it concerned both a person who’s accused for felonies as well as misdemeanors.

Is misdemeanor aspect of it before us now?

Mr. Leonard Mellon: It is, Your Honor.

Unknown Speaker: So we are concerned both with --

Mr. Leonard Mellon: Both with felonies and with misdemeanors.

Justice Lewis F. Powell: Mr. Mellon, before you proceed, did I understand you to say that the state's attorney would require us one evidence before he issued an information or would he rely, say, on an affidavit from the policeman?

Mr. Leonard Mellon: In Dade County, in instances where information are filed after an officer has com to the State Attorney’s Office and has exposed the case to the state attorney.

In those instances, a sworn testimony is taken in each instance.

Justice Lewis F. Powell: From the officer --

Mr. Leonard Mellon: From the officer and --

Justice Lewis F. Powell: Before a court reporter?

Mr. Leonard Mellon: Not always with a court reporter but he’d sworn when an officer comes into the office.

There are certain policies set out in the office that determine as to when court reporters will be advised.

But, the officer and/or any other witnesses who were there are sworn in those instances.

Justice Lewis F. Powell: Does the state attorney adhere to, say, the same standards of requiring probable cause that a magistrate would before issuing a search warrant or arrest warrant?

Mr. Leonard Mellon: Your Honor, under the revised rule which was effective on March 1st of this month, the Supreme Court of Florida has imposed on state attorneys in Florida an even higher burden in the per curiam opinion which accompanied the revised rule.

The Supreme Court of Florida said that prosecutors now have 96 hours after the first appearance hearing to make a determination as to whether or not an information shall be filed against that person in custody.

Now, in making that determination, they must not only look to see if there’d be probable cause.

They must go beyond it and establish if there is proof beyond to the exclusion of reasonable doubt.

And if there’d not be proof beyond to the exclusion of reasonable doubt, then the defendant should be discharged.

That is the implication in the per curiam opinion which accompanied the release of the new rule of criminal procedure.

Justice Byron R. White: This is not stated expressly in the new rules, is it?

Mr. Leonard Mellon: Your Honor, in the Appendix to the respondent’s brief, the amended rule appears with its accompanying opinion.

It’s the last exhibit in the respondent’s Appendix.

It was not, heretofore, brought to this Court’s attention and the petitioner since the amended rule in the opinion in which it was released occurred in early February.

Justice Byron R. White: Could I ask you this?

I take it the claim is not that the convictions that occur without the preliminary hearing should be automatically reversed?

Mr. Leonard Mellon: That is not at issue here.

Justice Byron R. White: The issue here is pretrial custody.

Mr. Leonard Mellon: Pretrial detention of a man --

Justice Byron R. White: And this is a 1983 action?

Mr. Leonard Mellon: No, Your Honor.

We’re up here on --

Justice Byron R. White: It was brought in the District Court, was it not?

Mr. Leonard Mellon: Yes, sir.

Justice Byron R. White: As a 1983 action, as a federal -- asserting that that was a denial of the constitutional rights by pretrial detention without a preliminary hearing.

Mr. Leonard Mellon: No, Your Honor, it was brought as a class action in seeking --

Justice Byron R. White: Well, I know, but it is a 1983 action in a sense that jurisdiction of the District Court.

Mr. Leonard Mellon: Yes.

Justice Byron R. White: It rested on 1983, but it has only to do with custody, does it not?

Mr. Leonard Mellon: That is right, Your Honor.

That is the salient question here.

Justice Byron R. White: And do you think that Florida -- does Florida have something akin to habeas corpus that permits a person to challenge a pretrial custody?

Mr. Leonard Mellon: Heretofore, at the time the suit was instituted, there was -- habeas corpus was a possible remedy.

At any time after custody the question, a lack of evidence at all to hold a person.

Florida, by statute, had a 30-day period which allowed a state attorney at that time in which to file an information.

Justice Byron R. White: And of course -- as far as custody is concerned, if a person is on bail, he is considered in custody, I suppose.

To some extent, he is under restraint.

Mr. Leonard Mellon: We do not reach that question here, Your Honor, not in the question in which it came up from the Fifth Circuit.

Justice Byron R. White: But do you think rather than bringing this 1983 action, the petitioners here could have filed for habeas corpus in Florida challenging their pretrial detention?

Mr. Leonard Mellon: That was argued below, Your Honor.

I think there is a possibility that they could have filed for habeas corpus.

Questioning the -- however, the 30-day statute that had existed which has now been repealed in Florida had provided he must wait that period of time before he could question it, before the judge who was to try him.

However, it’s always been felt in this case, certainly by the petitioner, that the other type of habeas corpus which would lie where there is the absence of any evidence to hold that man could have been petitioned for.

Justice Byron R. White: How about -- well, which would have encompassed the preliminary hearing issue, I suppose.

How about federal habeas?

Mr. Leonard Mellon: I think that federal habeas corpus was available in this suit.

Justice William H. Rehnquist: Supposing that the incarcerated pretrial detainee initiates a habeas corpus action in the Florida Circuit Court.

What is the issue there prior to his trial, whether there is any evidence at all that justifies holding him?

Mr. Leonard Mellon: Under the old procedure in Florida, yes.

Justice William H. Rehnquist: Well, now, is this procedure still available?

Mr. Leonard Mellon: Habeas corpus is still available in Florida.

However, the Supreme Court decided that the speediest way, I think, was by this amended rule which became effective on March 1.

If after the elapse, in effect, it is 96 days plus another 24 hours for there’s --

Justice William H. Rehnquist: 96 hours?

Mr. Leonard Mellon: Excuse me, Your Honor, 96 hours plus the additional 24 hours in which the man must be brought in for a first appearance hearing.

If after the elapse of that time, an information has not been filed, the Supreme Court has directed in its rule that the man be released in his own recognizance.

Justice William H. Rehnquist: Is he entitled to challenge on state habeas corpus, this lack of any evidence even after an information has been filed?

Mr. Leonard Mellon: His remedy there is to move by a motion to dismiss, Your Honor.

At the time of arraignment, the information is read to him unless he waives the reading.

He can, at that time, attack the sufficiency of the evidence to hold him.

Justice Potter Stewart: Do you say there is any -- some state remedy available whether or not an information has been filed?

Mr. Leonard Mellon: Yes, Your Honor.

Justice Potter Stewart: What is this first appearance?

That is not clear to me.

I am looking at the rule as effective on March 1, 1974, that is this month, the first of this month, which the general rule seems to be, in all cases where the defendant is in custody, except capital offenses, the preliminary hearing shall be held within 96 hours from the time of the defendant’s first appearance.

Now, when is the first appearance?

Mr. Leonard Mellon: The defendant must be brought before a magistrate within 24 hours after his arrest.

Justice Potter Stewart: And what is the function of that first appearance?

Mr. Leonard Mellon: If he is advised of his constitutional rights at that time, his right to bail.

Questions of sanity are quite often raised at that first appearance hearing.

He is, thereafter -- he is advised generally of his constitutional rights.

Justice Potter Stewart: He is advised of his rights, but is any determination at all made by that magistrate as to the reason why he is being confined?

Mr. Leonard Mellon: Not at that first --

Justice Potter Stewart: Not at the first appearance.

Mr. Leonard Mellon: It’s --

Justice Potter Stewart: And so the -- and that has to occur within 24 hours of his apprehension.

Mr. Leonard Mellon: That is correct, and --

Justice Potter Stewart: And --

Mr. Leonard Mellon: Excuse me, Your Honor.

Justice Potter Stewart: You go ahead.

Mr. Leonard Mellon: Dade County has a unique, I looked earlier, has a system of committing magistrates which sit regularly and which afford preliminary hearings in an almost overwhelming majority of cases.

The Courts were created, as I say, at the time this case was making its way up through the appellate structure.

However, in fact, in Dade County at the first appearance hearing, the man is advised of his constitutional rights and, thereafter, told the aid of his preliminary hearing which is a matter of course thing.

However, candor compels me to indicate to this court that the system of Magistrates Courts in Dade County are unique and, though other circuits in Florida offer preliminary hearings on a regular basis, Dade County is the unique one that does it as a matter of course.

Justice Potter Stewart: But in every county there is a first appearance within 24 hours after apprehension, is that right?

Mr. Leonard Mellon: That is right, Your Honor.

Justice Potter Stewart: And then the rule provides that the preliminary hearing shall be held within 96 hours, that’s four days, from the time of his first appearance and --

Mr. Leonard Mellon: Unless --

Justice Potter Stewart: And then, as I understand it, that is unless an information has in the mean time been filed.

Is that right?

Mr. Leonard Mellon: Yes, and that rule was modeled after your Rule 5.

Justice Potter Stewart: Yes, I just want to be sure I understand the system.

Mr. Leonard Mellon: Yes, that is it, Your Honor.

Justice William H. Rehnquist: That is really the guts of the argument, is it not?

Mr. Leonard Mellon: Right

Justice William H. Rehnquist: The fact that your rules, except from the preliminary hearing requirement, the cases in which an information has been filed.

And your opposing counsel says you have to have one.

Mr. Leonard Mellon: That is as succinctly as it could be put, Your Honor.

Yes, it is.

Chief Justice Warren E. Burger: Some of the circuits in the federal system have held that there need be no preliminary hearing once an indictment is returned.

What is the -- do you know the Fifth Circuit situation on that score?

Mr. Leonard Mellon: I am not clear, Your Honor.

I am sure that counsel for the respondent could supply the Court with that information.

We’ve always submitted in Florida.

We also argued Beck versus Washington in which this Court also alluded to the fact that in the State of Washington, for almost 50 years, Beck was decided in 1962, that in Washington for almost 50 years prosecutions were had not by grand jury indictment but by information without determinations as to probable cause.

Now, clearly, the language of this Court seemed to lieu to prior determinations.

However, we’ve argued and we argue here that the State of Washington law at that time and at the present time is such that there are no probable cause hearings given neither prior to the time of an arrest or after an arrest in the State of Washington.A

nd, that the prosecutor in Washington proceeds as he does in Florida and as he does in several other states which we allude to in our brief, Wyoming, Montana, Iowa, Arkansas, Connecticut and that the Supreme Court of Connecticut, in discussing this matter, in an early case has said the state attorney when proceeding by information is vested with the common law power of Attorney General.

And that they cited Hertado in that case and Ocampo, and held that the state attorney really, in effect, acts as a one-man grand jury and that’s what we submit to this Court.

The State Attorney in Florida is capable of acting in a detached neutral manner so that his finding, his certification for probable cause should be entitled to as much weight certainly as a finding of probable cause by a grand jury.

We submit to this Court, respectfully, that the decision of the Fifth Circuit Court should thereupon be reversed.

Argument of Raymond Marky

Mr. Raymond Marky: Mr. Chief Justice and may it please the Court.

Chief Justice Warren E. Burger: Mr. Marky.

Mr. Raymond Marky: Three rulings that were decided by the Court of Appeals disturbs Florida in particular.

Number one is that they held a rule which exempted misdemeanors from preliminary hearings.

It was a deprivation of equal protection of the law.

Second, they said the delay in holding a preliminary hearing in a capital case or in what Florida calls a life felony case, on the one hand, with general felonies on the other.

Now, let me back up so the Court understands.

If it’s a capital or a life felony, we have seven days within which to inform or indict.

If it is a normal felony, we have four days.

The Court of Appeals held there was no rational basis to classify these different crimes and have these different periods, and that it constituted a denial of equal protection.

The Third, of course, was that we had to mandatorily have preliminary hearings notwithstanding the filing of the information.

Now, all of this of course is of interest to the State of Florida because these are rules of statewide applications.

Insofar as the misdemeanant are concerned, the misdemeanant petitioner in this case is charged with, first, possession of marijuana, case bail of 60 days, $500 fine.

Rule 5 of this Court exempts from preliminary hearings heavy offenders, 6 months, $500 fine.

So, I would submit to this Court that the Court of Appeals is either wrong or this Court’s rule is unconstitutional because you are, in fact, discriminating between a petty offender and a felon.

That’s quite clear.

I think it is vivid and I think the opinion must follow this Court’s rule in this fault.

The second one, the delayed hearing, I think really misses the mark.

There is a rational basis to classify these two crimes.

Under our rule, it’s Rule 3.130, first appearance, we got to show, in a capital case or a life felony, presumption great, proof evident or he has a right to bail.

Justice William H. Rehnquist: Who was the first appearance before?

Mr. Raymond Marky: A magistrate, Your Honor.

In other words, we’re having a bail hearing in 24 hours and if we can’t show a proof evident, presumption great in a capital or life felony, this man is entitled to bail.

So, he is getting a hearing.

Justice William H. Rehnquist: But supposing that the prosecutor try and goes in on this first hearing and says “we do not contest the right to bail.”

Mr. Raymond Marky: In that instance, Your Honor, we still have a rational classification.

I’ll tell you what it is.

In a capital offense, under Florida Constitution, there must be an indictment.

So the state attorney, in addition to filtering this evidence before himself sworn he must, in necessity, take in additional step not requiring the other felony.

By then, taking this to a grand jury and presenting it to them, a duplicitous step which is additional to the normal felony.

And it is that ministerial administrative function that, we submit to you, justifies the additional three days on this more serious crime.

So --

Justice Potter Stewart: Well not involved here, as I understand it, but the people who are in custody as a result of grand jury indictments --

Mr. Raymond Marky: No, I am talking about the discrimination, Your Honor, of equal protection between the seven days and the three days.

The Court of Appeals ruled that that statute was, or that rule was unconstitutional because of equal protection.

Justice Potter Stewart: You say this is done before a magistrate.

That’s just in Dade County, is it?

Mr. Raymond Marky: No, that’s statewide, Your Honor.

Justice Potter Stewart: Statewide?

Mr. Raymond Marky: Which brings me to the third element of the Court’s ruling, Your Honor, under the old system, it was no good and I’ll stand here and tell you that.

The state attorney was not required to file an information in any particular time.

If the man was in custody, he had to stay there for a period of 30 days before he could do anything, whether an information was brought down or not.

Consequently, we had the gravamen of the complaint in the Court of Appeals and in the District Court and, that is, that a man languishes in jail for two weeks, three weeks, months before information is even filed.

Now, that’s in to the old system but the Court transposed that historical problem in to the present rules which it doesn't fit because the state attorney better be in there with an information in 96 hours or he’s going to a hearing.

Justice Potter Stewart: Yes, but the claim and that’s the issue in this case is that if he is in there within 96 hours with his information then the man stays in custody, if he cannot make bail, indefinitely without any hearing as to probable cause --

Mr. Raymond Marky: That’s not --

Justice Potter Stewart: That’s what the issue is in this case, is it not?

Mr. Raymond Marky: Yes, but I am going to the problem, Your Honor, of this long detention before anything occurs.

Justice Potter Stewart: Well, but that’s not the issue in this case.

Mr. Raymond Marky: But after the information is filed, a whole host of things happen including Florida’s criminal rules.

It provides, as 3.190v, provides for in a nature of a summary judgment they can come anytime in a form of a motion to dismiss.

Now, as the come and stated it, we admit that these are the facts and this is the facts of this man’s entitled to release.

It’s unique to Florida.

It’s the only rule I’ve ever heard of a criminal summary judgment, but Florida law authorizes it which gets --

Chief Justice Warren E. Burger: Is it one way of summary judgment?

Mr. Raymond Marky: Yes.[Laughter]

Chief Justice Warren E. Burger: It makes quite a difference, does it not?

Mr. Raymond Marky: It -- Your Honor, which brings me to the point.

You can’t take the episode here in ignorance of all of the other Florida rules.

Florida has the most comprehensive rules of discovery.

Now, under Coleman versus Alabama which tells us why preliminary hearing is important to having the man discharged, early pretrial release, the discovering of the state’s case, in certain insanity presentations.

Florida provides for your pretrial at your own recognizance, 24 hours hearing on bail.

Secondly, we have these rules of discovery which are broader than any in the United States.

Unknown Speaker: Yes, but what has that got to do with the issue before us here?

Mr. Raymond Marky: I think what it has to do with it, Your Honor, is that what a man gets under our comprehensive overall scheme is much deeper in terms of preparing himself than anything he would get out of his preliminary hearing.

Justice Potter Stewart: He’s not talking about any opportunity not to the lack of opportunity to prepare himself for trial.

He is talking about being locked up on the basis of an information with no preliminary hearing as to any probable cause --

Mr. Raymond Marky: Well --

Justice Potter Stewart: But locked up only on the say-so of a prosecutor.

That is what the issue is here, is it not?

Mr. Raymond Marky: Yes, it is, Your Honor, but the point that I’m getting at is the gravamen of the complaint at the District Court and at the Court of Appeals level was this two months protraction.

And Florida has, as I’m trying to illustrate, it is a companion package of rules designed to stop this long delay and that’s what the first appearance and the immediate information is all about.

Then your mandatory speedy trial in 60 days on misdemeanors and 90 days on felonies, which, I think cannot be ignored in the totality of his --

Justice Potter Stewart: But he’s talking about being locked up for 60 days or 90 days on a say-so of a prosecutor.

Now, that’s the only issue before us, as I understand it and maybe I wholly misapprehend his case but --

Mr. Raymond Marky: Apparently, you and I are not communicating, Your Honor, because the very purpose expressed in Coleman by Mr. Justice White was that he was concerned that we would result in a dispensing with preliminary hearings if we required counsel at them.

And this Court cataloged all of the important features that a preliminary hearing serves and I am merely trying to convince the Court that it’s there.

Justice Byron R. White: Surely the preliminary hearing, as Mr. Justice Stewart suggests, would also result in his release if it was held that there was not probable cause.

Now, forget that --

Mr. Raymond Marky: Alright.

Justice Byron R. White: Discovery for a moment and why don’t you address yourself to whether or not it’s constitutional to continue to hold a man after the information is filed even in the absence of a judicial determination.

Mr. Raymond Marky: Of course, I understand the point and you are --

Justice Byron R. White: Well, that’s the point --

Mr. Raymond Marky: Taking the assumption that the bail has been denied and all these.

In that context --

Justice Byron R. White: Those are the ones you are talking about in this case.

That’s all.

Mr. Raymond Marky: In that context then, Your Honor, we quite agree with the petitioner in the case that Beck versus Washington very definitely qualifies a state attorney as a one-man grand jury and that this is really akin to Morrissey which was cited by the Court of Appeals.

You didn’t require a magistrate there.

It was just someone who was not directly involved in what it was that brought about the man’s incarceration.

Chief Justice Warren E. Burger: Yes, but there’s a difference to Morrissey because the man that you are talking about here is going to be the man who prosecutes and presents the evidence against him.

He’s had to make the preliminary determination that it was a prosecutable offense and, in that sense, Coolidge has something to do with it because it might be thought difficult for him to dissociate his decision on the first stage from his responsibilities on the second.

Mr. Raymond Marky: I understand the distinction, but then we are presented with this Court’s Rule 5 where a man happens to be indicted.

He gets no --

Chief Justice Warren E. Burger: Yes, but there you’ve had a dozen or more people making the decision --

Mr. Raymond Marky: That’s right.

Chief Justice Warren E. Burger: As distinguished from one, and a dozen or more do not have any further obligation with respect to the prosecution.

Mr. Raymond Marky: I understand the dichotomy of the lay person’s 12 out of 18 in Florida must return the indictment, but I would submit to Your Honor that if the indictment is that different, then why did this Court say that the states may choose to bring to trial pursuant to an information as opposed to an indictment that the Federal Government has.

If it was that --

Chief Justice Warren E. Burger: This Court, at that stage, wasn’t addressing itself to the narrow problem that’s before us here today though.

Mr. Raymond Marky: But I think it nevertheless follows, Your Honor --

Chief Justice Warren E. Burger: Functionally, it’s one thing to say that functionally the information charged by the prosecutor is the same as the action of the grand jury but that doesn’t mean it’s the same for all purposes.

Mr. Raymond Marky: I understand what the Court is saying, but the treating of these two types of bringing to trial as sufficiently alike to not require indictments by the states linked up with Beck versus Washington, as counsel has pointed out and as quoted in the brief, makes it clear that I think the state attorney is sufficiently removed to where he is not directly involved to bring in this charge.

He’s certainly confident to decide the question.

Justice Thurgood Marshall: Does the States Attorney in Florida run for office?

Mr. Raymond Marky: By the electorate, yes.

Justice Thurgood Marshall: And is he any different from the other states attorneys that brag about how many convictions he’s got?[Laughter]

Are they different from others?

Mr. Raymond Marky: Your Honor, I’m not prepared to answer that question.

I’m not familiar with the state attorneys or their political campaigns that closely to even answer the question.

I think a state attorney in the statistics in this record bear it out.

He’s not likely to file an information in a case where he can’t even get by a directed verdict.

I mean, I think the man would have to be somewhat foolish to set about a course of filing information knowing he doesn’t have the evidence.

Justice Thurgood Marshall: And that’s what makes him unbiased?

Mr. Raymond Marky: I think it makes him --

Justice Thurgood Marshall: That’s what makes him neutral?

Mr. Raymond Marky: It certainly makes him reflective, Your Honor.

Justice Thurgood Marshall: That makes him neutral too, doesn’t it?

Mr. Raymond Marky: That, I guess the Court will have to --

Justice Thurgood Marshall: Is he neutral to --

Mr. Raymond Marky: I’d have to dispose of that.

The state’s position is that Florida has tried to emulate this Court’s Rule 5, the spirit of that Rule 5, notwithstanding the differences between indictments and information.

And that it has substantially changed the time within which a man must be picked up, brought to a judge.

An amicus and in a course of appeal, they constantly refer to McNabb, and they keep saying “well, what we need is McNabb.”

And, I think that this is somewhat amusing for our rule and the first appearance is McNabb.

As I understand McNabb --

Chief Justice Warren E. Burger: We’ll resume at this point after lunch.

Mr. Raymond Marky: Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Rogow, you may proceed when you’re ready.

Argument of Bruce Rogow

Mr. Bruce Rogow: Mr. Chief Justice and may it please the Court.

In Florida, the state attorney absolutely controls the question of probable cause.

If he files an information, there is no right to be heard on the question of probable cause.

Justice Byron R. White: Can I ask you at the outset, was Preiser against Rodgriguez cited at all or considered in the Court of Appeals?

Mr. Bruce Rogow: It was not, Your Honor, but it has no application in this case.

It has no application, one, because we have never sought release from custody in the District Court.

All we sought was a pretrial procedural right.

But, even if the Court felt that Preiser did have an application --

Justice Byron R. White: If the custody was the only thing that was at issue in the sense that if there had been no pretrial incarceration and just a summons to come to court at a certain time, this case wouldn’t have arisen, I take it.

Mr. Bruce Rogow: It may still have arisen Your Honor, because the question of whether or not there is custody might still be a valid question.

Justice Byron R. White: Well, I know, but if it wasn’t?

Mr. Bruce Rogow: It is true that this was a pure custody case, but my point is that all we’re asking is the District Court to compel there to be a preliminary hearing --

Justice Byron R. White: Or release.

Mr. Bruce Rogow: No, sir, never.

Never ask for release.

The decision on release would have to be that made by the magistrate.

If he determined there was no probable cause, then he would release the person.

The State Magistrate would.

Nevertheless --

Justice Byron R. White: Your object was never to be released.

Mr. Bruce Rogow: Only if there is no probable cause, Your Honor.

Justice Byron R. White: I know but—

Justice William H. Rehnquist: But even if you’re there under 1983, certainly, the District Court’s ruling on your action has got to be the only alternative.

Doesn’t it say either give this man a hearing or release him?

Mr. Bruce Rogow: The decision of the District Court, in offering the alternative to the state and saying “this is the sanction,” whereas, a statement saying “release him.”

But that would assume, of course, that the state would fail to abide by the constitutional decision.

I don’t think we can make that assumption, but if I may divest --

Justice Byron R. White: The question I asked is if Preiser had been considered it all by the Court of Appeals, and you say it was not.

Mr. Bruce Rogow: It was not and let me add one other thing regarding Preiser, it’s that even if Preiser has application in this case, state remedies were futile and Preiser makes it quite clear that there’s no need to attempt habeas corpus in State Court if it were to be futile and it is in Florida.

Justice Byron R. White: I know, but the question is the form of your action in the Federal Court, whether it should be federal habeas corpus or not.

Mr. Bruce Rogow: And if it should be habeas corpus.

If the Court felt that this was properly a habeas corpus matter, we think --

Justice Byron R. White: Then we would have -- then you would certainly focus on and have the District Court’s judgment as to whether there was a local remedy.

Mr. Bruce Rogow: Yes, sir, but it’s quite --

Justice Byron R. White: Which we do not have now.

Mr. Bruce Rogow: Yes, you do, Your Honor.

I think the record is absolutely clear that there is no local remedy throughout this litigation.

Justice Byron R. White: Did the District Court say so?

Mr. Bruce Rogow: Yes, sir, and the Fifth Circuit said so.

Justice Byron R. White: What did they say so?

Mr. Bruce Rogow: It said that, in Florida, once an information is filed, it is quite clear there is no way to test the termination of probable cause.

And the Fifth Circuit, in a footnote, I think, in their decision --

Justice Byron R. White: How about federal -- state habeas?

Mr. Bruce Rogow: Futile, absolutely futile, because once the information is filed under Florida law you cannot go behind it to determine probable cause.

State ex rel.

Hardy versus Blount makes it quite clear and the Florida decisions, for a long period of time, make it quite clear that a state habeas corpus charge will not inquire --

Justice Byron R. White: Do you disagree with your opponent here? He suggests that state habeas might be available.

Mr. Bruce Rogow: He suggested it, but he did not address the question of whether or not it would be futile.

He said you could file a habeas corpus petition, but we are telling the Court that if you did file one, it would be a futile act, an empty act and the record is quite clear on that point.

Chief Justice Warren E. Burger: There’s a footnote, I think, in your brief or one of the briefs about what has happened to the respondent in this case.

What’s his posture now?

Mr. Bruce Rogow: He has been convicted, Your Honor, and he is in jail in Belle Glade, Florida.

But, we do not see any mootness problem here, if that is what the Court is --

Chief Justice Warren E. Burger: You are talking about the class action aspect.

Mr. Bruce Rogow: It is a class action, but it is also a problem of the low visibility of the criminal process, one which is “capable of repetition yet evading review.”

Chief Justice Warren E. Burger: But you are not, then, seeking any relief with respect to the respondent but only to those who are similarly situated.

Mr. Bruce Rogow: Yes, sir, exactly.

Justice Thurgood Marshall: And we have no named parties available now?

Mr. Bruce Rogow: At the time this suit was filed, all the named parties suffered this exact deprivation.

Justice Thurgood Marshall: I said now with --.

Mr. Bruce Rogow: No, sir.

Justice Thurgood Marshall: Well, how could he maintain a class action without a named party?

Mr. Bruce Rogow: Because at the time the class action was maintained originally in the District Court, he was a member of the class and so he had standing at that point and the class action survives him.

But, I hasten to add that this is “capable of repetition yet evading review.”

Justice Thurgood Marshall: I think you should hasten because I don’t agree with you at all.

Justice Potter Stewart: There’s a case called Bernie against Indiana, I think, that probably cuts the other way from what you just told us.

Mr. Bruce Rogow: I am sorry.

I am not familiar with the Bernie case, but I am familiar with the cases that talk about “capable of repetition yet evading review.”

Justice Potter Stewart: Yes.

Mr. Bruce Rogow: The point is that this issue would never be litigated in the 30 or 60 or 90 days in which that custody is deprived.

There would be no way ever to successfully litigate the issue and the Court, if it felt, that this was not a “capable of repetition yet evading review” case, would relegate people to having no opportunity to raise the issue at all because the Florida law is clear and the only way to maintain such an action would be as a class action and pointing out the “capable of repetition yet evading review” exception to mootness.

Within recent -- I should back up and point out that even if a preliminary hearing is held in Florida, because a state attorney does not file an information, the state attorney can overrule the discharge at that preliminary hearing.

If the magistrate finds out probable cause and the state attorney is unhappy with that determination, the state attorney can file an information and the person is back in jail again.

So, I hearken back to my original statement that the state attorney absolutely controls the question of probable cause.

Within recent years, this Court has held that before a person’s welfare check may be taken, before their wage is garnished, before their driver’s license is suspended, there must be a prior hearing.

This case presents the issue of whether or not after a person’s liberty is taken there is a right to a subsequent hearing.

And, recently, in Morrissey versus Brewer and Gagnon versus Scarpelli the Court held that persons whose liberty is conditional, people on parole, on probation were entitled to prompt subsequent preliminary hearing.

Once it was determined that that conditional liberty should be revoked.

We are talking here in terms of absolute liberty.

These people are presumed innocent and it is their absolute liberty which is being deprived.

The right to which we seek the Court to accord, we ask the Court to accord is not a new or novel right.

Preliminary hearings are ancient institutions.

They were known in the 12th Century, codified in the 16th Century, used in the colonies before and after the revolution.

They have evolved into impartial determinations of probable cause over the years historically.

The forerunner of the preliminary hearing, which we asked the Court to grant today, was granted in the case of Aaron Burr where Chief Justice John Marshall held a preliminary hearing to determine whether or not there was probable cause to hold Aaron Burr on a charge of treason.

And, the extent of that inquiry was whether or not an offense had been committed and whether or not Burr had committed it.

And that is the kind of preliminary hearing which we are talking about, and it has been known long ago in England and here, and the Marshall hearing was held in 1807.

Our position is that the information process cannot determine probable cause for two reasons, one, because it provides none of the elements of a due process hearing.

There is no right for the defendant to be heard.

There is no right to confront and cross-examine witnesses.

There is not right to present evidence.

So, it is solely an ex parte non-adversarial hearing and that is not consistent with due process.

Justice Potter Stewart: Well, by definition, hasn’t there in this case been an arrest on probable cause?

Mr. Bruce Rogow: Yes, sir, on Fourth Amendment probable cause.

What we are seeking is the test of that Fourth Amendment determination.

It’s interesting, I think, to note that if evidence is seized upon a warrant stating probable cause, you contest that determination by a motion to suppress.

But here in Florida, you cannot test the taking of liberty.

Justice Potter Stewart: Well, you don’t get a motion to suppress -- I mean, these procedures in the states vary but sometimes that doesn’t happen until the actual trial that you are allowed the motion to suppress.

Isn’t that correct?

Mr. Bruce Rogow: I’m not sure about most states.

In Florida, you can move to suppress certainly before trial if the evidence has been illegally seized.

It seems that if the evidence has been illegally seized or if the taking of the body is improper, to have to wait for trial and remain in jail during all that time only to find out six months later that there really is no case at all, so there is no useful purpose for a defendant or for the state.

Justice Potter Stewart: Well, but here there has been, as I understood you to agree, a taking into custody on probable cause.

Mr. Bruce Rogow: Fourth Amendment probable cause.

Justice Potter Stewart: For arrest of the person.

Mr. Bruce Rogow: For arrest, yes, sir.

And we are seeking to test that probable cause in a due process hearing subsequent to the taking.

Justice Potter Stewart: Of course, the basic element test comes in the trial of the criminal offense, doesn’t it?

Mr. Bruce Rogow: Well, the basic element of the test at that point, of course, if a --

Justice Potter Stewart: The ultimate test.

Mr. Bruce Rogow: It’s the ultimate test, but it is of no benefit to a person who’s been incarcerated for 60 days and shouldn’t be there in the first place.

And, that’s what the preliminary hearing is all about and that’s what the preliminary hearing in Morrissey versus Brewer was all about.

Certainly, ultimately, the taker might decide that there is reason to revoke parole or probation.

There should be a preliminary determination as to whether or not parole or probation is revoked.

Justice Potter Stewart: Isn’t this procedure very similar to the procedure under Rule 5 of the Federal Rules of Criminal Procedure?

Mr. Bruce Rogow: No, it is not.

Rule 5 uses informations only in misdemeanor cases.

They can only be used in felony cases if a defendant waives his right to indictment.

So, Rule 5 involves only misdemeanors.

To that extent, it is similar because this case also presents the issue of whether or not misdemeanors are entitled to preliminary hearings if they, too, are in custody.

But, it is a limited comparison.

Justice Potter Stewart: Well, when is a defendant in a federal trial first told of his right to be indicted by grand jury before he’d be tried?

Because, the fact is, many felonies in the federal system are commenced by the filing of informations and a waiver.

Mr. Bruce Rogow: And a waiver?

Justice Potter Stewart: Yes, when in the federal system is the defendant first given his opportunity to waive?

Mr. Bruce Rogow: I think, probably at the commissioner hearing, the first appearance hearing, he might be told that.

I am not quite sure.

Justice Potter Stewart: There’s no requirement under Rule 5 that he’d be told that.

Mr. Bruce Rogow: No, sir.

There is no requirement that he’d be told that, but he would obviously have counsel at the first appearance hearing before the Commissioner.

And, seemingly, his counsel would inform him that if he makes a decision that he wants to waive indictment that he could be preceded against by information.

Justice Potter Stewart: You often wouldn’t have counsel.

It’s at that first appearance that he’s advised of his right to counsel, isn’t it?

Mr. Bruce Rogow: And in felony cases, it seems since they’re going to be determining bail and other issues, at least the practice in Florida and the Southern District of Florida to appoint counsel at that time.

Justice Lewis F. Powell: I understood from prior argument that there were two types of arrests that were involved primarily, arrest made in the field by an officer to bear witness to crime or there were accident circumstances justifying arrest.

In those circumstances, there was probable cause for the arrest.

Now, I understand you to say that where the states attorney issues a warrant for arrest on the basis of testimony of a police officer, sworn testimony, that probable cause is created by that act, that is, the issuance of the warrant by the states attorney.

Is that correct?

Mr. Bruce Rogow: Yes, sir.

That is a Fourth Amendment ex parte determination of probable cause.

There are deficiencies in it because of --

Justice Lewis F. Powell: Well, the next question I was going to ask you is that you accept or you agree that there is probable cause there even though the state's attorney is not an impartial officer.

Mr. Bruce Rogow: What we have there is a very practical kind of consideration.

I cannot concede that there is absolutely pure Fourth Amendment probable cause there because neither the state attorney nor the arresting officer is a neutral and detached person.

But as a practical matter, there is -- we are willing to have the state attorney or a police officer decide that there’s probable cause and make an arrest.

Otherwise, what we’d be asking for would be a prior to arrest determination of probable cause and we don’t ask that because that would be a ridiculous request to invite possible defendants in to see if they’re going to be arrested sometime in the future.

It would work.

So obviously, when the balancing process takes place, you have to allow the arresting officer to make that quasi determination of probable cause or the state attorney perhaps, making a similar quasi determination of probable cause, neither are neutral and detached.

What we’re seeking is to test that determination.

And so, it is a flexible kind of think we’re asking after the taking of liberty, an opportunity to test that determination that was made.

And that is a Fourteenth Amendment request that we’re making and I think it’s interesting to note that the state attorney is not neutral and detached not only under the Fourth Amendment but under the Fourteenth Amendment.

In Morrissey versus Brewer, the Court talked about one of the essential elements of a due process hearing is to have that hearing conducted by a neutral and detached person.

And, we submit that the state attorney, the Chief Prosecuting Officer, certainly in not neutral and detached under the Fourteenth Amendment and of course, in the decisions of this Court in Coolidge versus New Hampshire and Chadwick versus City of Tampa, he’s certainly not neutral and detached under the Fourth Amendment.

Chief Justice Warren E. Burger: In Morrissey against Brewer, do you really think we went that far to say he must be neutral and detached or did we way that it must be a probation officer other than the one who has been supervising his release?

Mr. Bruce Rogow: Yes, those were the words in Morrissey versus Brewer and we respect those words.

Chief Justice Warren E. Burger: That doesn’t necessarily make him neutral and detached anymore than in Goldberg and Kelley you had neutral and detached.

It just meant a person who had not had a prior connection with the case.

Mr. Bruce Rogow: Or will not have a future connection with the case.

In other words, at the time he makes a decision, he is not involved in the case before or after.

The prosecuting attorney is the Chief Prosecutor.

He is involved in the case afterwards.

There is no way that he can be said to be neutral and detached.

Chief Justice Warren E. Burger: It might not be the same prosecutor anymore than it would be the same probation officer or the same agent in the Welfare Office.

Mr. Bruce Rogow: But we are talking about the Head of the Office, the state attorney, and everyone working under him are Assistant States Attorneys so he’s --

Chief Justice Warren E. Burger: Benjamin Rodriguez, is that true for him?

Mr. Bruce Rogow: Yes, sir.

He is the one to whom responsibility finally resides and he is the one who signs the information.

He is the one who charges probable cause.

It’s true, an assistant may have made the initial determination which, I think, perhaps in some way underscores the kind of procedure that we have here.

And this record, at page 49 of the Appendix, reflects that a police officer comes in, talks to an assistant state attorney perhaps a year or two out of law school, and tells him what he thinks is the problem or what the gravamen of the charge is.

And then, the assistant prepares the information.

He passes it on to another deputy state attorney who looks it over.

And, finally, the Chief State Attorney signs it.

So, you’ve got three people in this process, all whom are rubberstamping with the original decision made by an assistant who’s working under the direction of the state attorney.

Justice Potter Stewart: Would you have any reason to suppose that basic practice is very much different in the federal system with respect to informations?

Mr. Bruce Rogow: No, sir.

I do not think it’s much different and, to be quite frank to the Court -- if we were correct, if a person in custody upon an information is entitled to a preliminary hearing then, under Rule 5c, a person who’s in custody prior to trial in the federal system would also be entitled to that preliminary hearing.

Justice Potter Stewart: Alright, in the federal system if there has been an arrest with a warrant and the person is brought before a magistrate whose only function, if the arrest has been with a warrant, is to advise him of his rights which is like the first hearing in Florida.

Mr. Bruce Rogow: Yes, sir.

Justice Potter Stewart: And he is then in custody and there has to be a preliminary hearing within 10 days except that the preliminary examination shall not be held if the defendant is indicted or if an information against the defendant is filed before the date set for the preliminary examination.

Mr. Bruce Rogow: Yes, sir.

Justice Potter Stewart: And then if an information is filed, then he comes up before the District Court and not until then does he have an opportunity to be told of his right to be indicted rather than be informed against.

Mr. Bruce Rogow: Well, he would have no right to be indicted because it would have to be a misdemeanor, and he could be informed against it.

Those information would be --

Justice Potter Stewart: No, I’m talking about a felony now.

I am talking about a felony in which there is a constitutional right not to be proceeded against except by indictment.

But, he’s not told about that until he appears in open court in the District Court under Rule 7.

Mr. Bruce Rogow: And the question is, Your Honor, whether or not that person would have a right to preliminary hearing.

Justice Potter Stewart: Well, I’m just suggesting that that federal system is basically the same as the Florida system and it doesn’t mean that it’s valid but it does mean that these rules annunciated by this Court are unconstitutional if you’re correct.

Mr. Bruce Rogow: Yes, sir.

I would say that would be true if we are correct.

Justice Potter Stewart: On the other hand, in the federal system, if the arrest has been without a warrant, then the magistrate has the duty of finding probable cause.

And to that extent, the federal system is unlike the state system of Florida.

Is that right?

Mr. Bruce Rogow: I believe that the Assistant US Attorney could file an information after the arrest in a misdemeanor case and then there would be no preliminary hearing conducted by the magistrate.

Justice Potter Stewart: No, when he comes before the magistrate, if the arrest has been without a warrant, it’s the magistrate’s duty to find probable cause and if he doesn’t find it, the man is released, as I read Rule 5 of the federal system.

Mr. Bruce Rogow: Under the federal rule.

Justice Potter Stewart: Yes, and that makes it different.

Now, were these arrests with or without warrants?

Mr. Bruce Rogow: Without warrants, Your Honor.

Justice Potter Stewart: That would differentiate the two systems.

Mr. Bruce Rogow: There would be a distinction to that extent between the two systems, but I think there’s another distinction that has to be raised and, that is, that we’re talking about people who were in custody prior to trial.

And in the federal system --

Justice Potter Stewart: While they’re in custody as a result of valid arrests.

Mr. Bruce Rogow: Yes, sir, but --

Justice Potter Stewart: They’re not --

Mr. Bruce Rogow: There needs to be an opportunity to test whether or not that is a valid arrest and not keep a man, unless he’s been indicted, awaiting trial for 60 or 90 days only to find out that there was no probable cause to hold him during all that time.

That’s what we’re getting at in this case and that’s what the issue that’s presented in this case is.

Chief Justice Warren E. Burger: You’re saying that every time a person is arrested there must be a prompt, without defining that now, a prompt determination of probable cause by a neutral agency.

Mr. Bruce Rogow: Yes, sir.

Chief Justice Warren E. Burger: Whether it’s in laying aside what the crime is, whether warranted or unwarranted arrest.

Mr. Bruce Rogow: If he is in custody, yes, sir, except for indictments.

This case does not involve indictments at all.

Justice William J. Brennan: But it does involve arrests on a warrant.

Mr. Bruce Rogow: Yes, sir.

It does involve arrests on a warrant.

Even if that warrant is issued, I may add, by a judge.

Justice William J. Brennan: I understand.

That’s my question.

Mr. Bruce Rogow: And of course, the question that was raised regarding misdemeanors takes us to our misdemeanor argument which is that in Florida they have a classification which totally excludes misdemeanors from the possibility of ever getting a preliminary hearing, even if the state attorney was willing to tolerate one.

The classification imposed by the rule is that there is no right to preliminary hearing unless you charge with a felony and, of course, unless the state attorney does not file an information.

That classification affects a fundamental right, the right not to have your liberty taken without an opportunity to be heard.

And, our position is that there is no compelling reason advanced by the state for that classification.

The Court of Appeals agreed.

The District Court agreed.

In fact, the state has really not advanced a compelling reason nor even a rational reason for that distinction between --

Justice Potter Stewart: Well, perhaps I’m being repetitious and perhaps I don’t understand your point but thousands of times everyday in this country people’s liberty is taken away when they’re arrested by law enforcement officers on probable cause.

Mr. Bruce Rogow: Yes.

Justice Potter Stewart: They’re taken down to jail and locked up.

Mr. Bruce Rogow: Yes, sir.

Justice Potter Stewart: Now, what is your -- are you attacking that, that there cannot be an arrest and a custodial arrest on probable cause?

Mr. Bruce Rogow: No, we’re saying there can be a custodial arrest on probable cause but there must be a subsequent review.

Justice Potter Stewart: When?

Mr. Bruce Rogow: The Court of Appeals said, adapted to the Florida --

Justice Potter Stewart: What do you say in your argument?

Mr. Bruce Rogow: Four to seven days.

Frankly, I say within 24 hours if the sides are prepared.

A man’s liberty should not be taken away for more than 24 hours without opportunity to test it.

And, we look to Argersinger for support because in Argersinger the Court said you cannot take away a man’s liberty for 24 hours without counsel and, now, we are talking about taking away his liberty for 24 hours or more without even a hearing.

So --

Justice Potter Stewart: If it’s constitutionally valid for 24 hours, why isn’t it valid for 36 hours or 48 hours?

Mr. Bruce Rogow: The line has to be drawn somewhere.

The Court of Appeals said 4-7 days.

Justice Potter Stewart: You can see that it’s valid for a period of time after a lawful arrest, can’t you?

Mr. Bruce Rogow: I can see that because as a practical matter, it has to be because there is no other way in which the state can carry out its obligation to arrest people who possibly have committed crimes.

Justice Potter Stewart: Well, this isn’t possibly.

By definition, they’re being arrested on probable cause.

Mr. Bruce Rogow: Yes, sir, untested probable cause but probable cause, which, we concede is sufficient for the arrest.

The question, I believe, that Your Honor asked me was how long afterwards must that probable cause be tested.

And, my response was with Argersinger 24 hours, but the Fifth Circuit said 4-7 days.

Justice Potter Stewart: Well, the point of an arrest warrant is to test the probable cause, isn’t it?

Mr. Bruce Rogow: Not --

Justice Potter Stewart: Before a neutral and detached magistrate.

Mr. Bruce Rogow: But there’s --

Justice Potter Stewart: A warrant.

Mr. Bruce Rogow: But there’s an opportunity to be heard.

That’s a Fourth Amendment probable cause determination, ex parte, non-adversarial.

We are talking about a due process opportunity to contest or test that Fourth Amendment, non-adversarial determination of probable cause that’s made.

And, we look to the property cases which say that before your property is taken you have a right to contest that taking.

And all we’re saying is after your liberty is taken, there ought to be a right to contest that taking.

Justice Thurgood Marshall: Well, but for the Florida cases to the contrary, wouldn’t this all be handled by a writ of habeas corpus in the State Court?

Mr. Bruce Rogow: Yes, sir, if the State Court had permitted us to test probable cause through habeas corpus --

Justice Thurgood Marshall: You wouldn’t be here.

Mr. Bruce Rogow: No, sir, we would not.

It would strictly be a statement.

Justice Thurgood Marshall: That’s your real complaint, isn’t it?

Mr. Bruce Rogow: That Florida law absolutely forbids an inquiry into probable cause when an information is filed.

Yes, sir, that is our --

Justice Thurgood Marshall: By habeas corpus?

Mr. Bruce Rogow: By any means, because information stands for probable cause.

Justice Thurgood Marshall: If you could raise it on habeas corpus, you wouldn’t be here.

Mr. Bruce Rogow: That’s right.

If we could raise it successfully in Florida or be heard on it in Florida, we wouldn’t be here.

Justice Thurgood Marshall: I’m not talking about successfully.

Mr. Bruce Rogow: Well, I say successfully only because the habeas corpus will be dismissed in Florida right away because the issue that would be raised --

Justice Thurgood Marshall: My point was, if it could be raised and could be cited and the Judge sitting on habeas corpus could inquire into it, you would have no complaint.

Mr. Bruce Rogow: Absolutely.

Yes, sir, we agree.

Unknown Speaker: Then habeas corpus --

Justice Thurgood Marshall: But not automatic.

We don’t need it automatic, do you?

Mr. Bruce Rogow: When you say do you need it automatic, the only difficult --

Justice Thurgood Marshall: I think, according to your rule, every man that’s now in jail has to go before somebody within 24 hours or turn him lose.

My suggestion is you don’t get that release unless you, yourself, go for habeas corpus.

Mr. Bruce Rogow: I see.

Justice Thurgood Marshall: Now, which do you agree on?

Mr. Bruce Rogow: I see the point Your Honor makes.

I may back off a little bit from my point because in asserting your habeas corpus right, it’s incumbent upon you to test probable cause.

That may not be due process.

I really -- This case, of course, was raised in the framework of the existing Florida law.

Justice Thurgood Marshall: You can go for it or not, you get a writ of habeas corpus.

Everybody is automatically in a hearing on everything.

Mr. Bruce Rogow: No, not a hearing on everything, Your Honor.

Justice Thurgood Marshall: But you really don’t need that.

Mr. Bruce Rogow: But a hearing, certainly, if your liberty is taken.

Chief Justice Warren E. Burger: Didn’t state say something this morning about the right to move forthwith to dismiss which would afford a test of the probable cause?

Mr. Bruce Rogow: That motion to dismiss which the state spoke about can be traversed merely by filing a traverse by the state attorney.

And so, the state attorney can dispute whatever statements are made and then the Trial Judge cannot dismiss the case.

So, again, it’s certainly within the power of the state attorney to make all these determinations for probable cause.

That motion to dismiss, in a way, I suppose is really illusory because all the state need do is not acquiescent it and it’s an unsuccessful and futile remedy.

Justice William H. Rehnquist: What is your position on the question Justice Marshall asked you a moment ago?

Is it essential to the constitutionality of the procedure, in your view, that the probable cause preliminary hearing be initiated by the state or is it enough that the defendant or accused have a right to initiate it if he wants to?

Mr. Bruce Rogow: I think that, theoretically, it ought to be the state’s obligation to provide that proceeding in which a person can test whether or not probable cause does exist.

If Florida had a different procedure, if it could have been tested, I don’t know that this case would have been brought.

Frankly, we just had not fought this case through in light of a non-existent situation.

The situation existed and that was what we were addressing ourselves to.

Justice Lewis F. Powell: May I ask you about the Florida practice where there is an indictment pursuant to a grand jury.

What is your position as to an adversary hearing to determine whether there was probable cause for the issuance of the indictment?

Mr. Bruce Rogow: We take no position on that question.

We do not say that after an indictment there must be an adversarial hearing.

In order to say that, one would have to assume that the historical protections which this Court has found in the indictment procedures no longer exist.

It reminds me of the fact that John Peter Zenger, when he was sought to be prosecuted by the crown twice, they sought indictments and twice they failed.

And, finally, they resorted to an information to prosecute him.

Now, if the protection which Zenger had no longer exists, then perhaps our case might spawn future litigation.

But, we take no position on that and this record does not accord the Court an opportunity to get to that question because there is no showing that indictments do not really protect the individual.

The cases cited by the state, Hertado, Lem Woon, Ocampo, Beck have no application in this case.

Those cases -- Hertado, as a matter of fact, was an information filed after a preliminary hearing.

So, Hertado certainly has no real effect on this case.

The other cases talk about the fact that there is no need for a preliminary hearing prior to the issuance of an information, and we agree with that position.

Fine, let the information issue but after the information issue there must be a subsequent determination of probable cause.

There’s --

Chief Justice Warren E. Burger: Would you think or would your problems be satisfied if Florida procedure provided that, upon request, a preliminary probable cause hearing would be held forthwith?

Mr. Bruce Rogow: It might.

I just -- as a pure due process matter, we think it’s incumbent upon the state.

If you can make the request and it be granted, notwithstanding the filing of the information, that would certainly lessen our argument somewhat.

Chief Justice Warren E. Burger: Suppose in every cell there was a sign in large letters, “Upon request of preliminary hearing to inquire into the probable cause for your arrest and detention will be granted to you within 24 hours.”

Mr. Bruce Rogow: That approaches the question really of waiver.

If one fails to assert that right he would, in effect, have been waiving his right and I think --

Chief Justice Warren E. Burger: Would you think a great many people who are arrested have no interest whatever in a preliminary hearing on probable cause?

Mr. Bruce Rogow: I certainly don’t think that.

Chief Justice Warren E. Burger: You don’t think so?

Mr. Bruce Rogow: I think the people would want an inquiry on probable cause.

Chief Justice Warren E. Burger: Every one of them?

Mr. Bruce Rogow: No, I would not say every one of them.

Chief Justice Warren E. Burger: Well, wouldn’t -- on the contrary, isn’t it ordinary human experience that most of them would recognize that they have committed some crime and that they’re not interested in a preliminary --

Mr. Bruce Rogow: And, of course, they could waive their right.

If the state said here is your preliminary hearing, a defendant or his lawyer could say “yes, I waive my right.”

Chief Justice Warren E. Burger: Then we come back to where I was.

Then your answer to my question is that, if they are offered a prompt hearing that would satisfy the due process complaint that you are urging on the Court.

Mr. Bruce Rogow: Yes, if they were offered.

The only difficulty I find with your question, Mr. Chief Justice, is that it would require them to initiate that request by seeking out the probable cause hearing.

I think if there is an offer and they say “I waive it,” fine.

It can be waived.

There is another distinguishing characteristic between Lem Woon, Ocampo, and Beck and this case and the Court of Appeals cases which have been cited by the state.

All of those cases sought to overturn otherwise valid convictions.

We do not seek to overturn an otherwise valid conviction.

We do not say that a man cannot have a fair trial without a preliminary hearing.

What we say is that he cannot be fairly deprived of his liberty without a preliminary hearing.

And that distinction runs through all of the cases cited by the state and the state attorney and this case.

There is no bar.

The state has raised Younger versus Harris.

They --

Justice Potter Stewart: You’re not really saying that, are you?

Because you’ve already conceded, in answer to my question, that thousands of people are deprived of their liberty everyday in the various jurisdictions of this country upon an ex parte hearing and/or upon no hearing at all on arrest upon probable cause.

Mr. Bruce Rogow: Yes, sir.

But we’re not --

Justice Potter Stewart: So you’re not saying that nobody can constitutionally be deprived of his liberty without an adversary hearing.

Mr. Bruce Rogow: No, but what --

Justice Potter Stewart: Are you?

Mr. Bruce Rogow: What we’re saying is that if a person is convicted and never has a preliminary hearing that does not vitiate the conviction.

Justice Potter Stewart: No, I know that.

But then you say, on the other hand, what your argument really is, you’re telling us, is that nobody can be deprived of his liberty except by an adversary hearing.

Mr. Bruce Rogow: Yes, sir.

Justice Potter Stewart: And I’m suggesting you’re not really saying that either.

Mr. Bruce Rogow: I --

Justice Potter Stewart: Because, as I’ve -- as you conceded, people are deprived of their liberties by the thousands everyday without prior adversary hearings.

Mr. Bruce Rogow: And I think then I probably ought to restate my position and say a person cannot be deprived of his liberty for any length of time beyond whatever that the Court deems (Inaudible)

Unknown Speaker: I think your position is pretty clear.

Justice Potter Stewart: Well, it isn’t to me.

Unknown Speaker: You’re not arguing for the Russian system.

Justice Potter Stewart: If it were clear, I wouldn’t be asking you these.

If it were clear to me, I wouldn’t be asking these questions.

Mr. Bruce Rogow: We can see the person can be deprived of his liberty at that initial arrest, yes.

But, afterwards, there must be a way to test it.

So, we’re saying that the taking of his liberty without a way to test it is unfair.

The question is how long may that liberty be taken.

I think that’s really what Your Honor is getting to.

We agree that the liberty can be taken.

We don’t seek prior preliminary hearing.

Chief Justice Warren E. Burger: You say it must be done within a reasonable time, that is, 24, 48, 96, some --

Mr. Bruce Rogow: Certainly.

Chief Justice Warren E. Burger: Relatively short time much like Rule 5 of the federal, “Without unnecessary delay” is the language of the Federal Rule.

Mr. Bruce Rogow: But in Florida, already we have a period from 5-8 days, I believe, under the rules and we think that even is too long.

But we think it ought to be framed out in a time period.

Chief Justice Warren E. Burger: What did the Fifth Circuit say?

Mr. Bruce Rogow: The Fifth Circuit said it would not reach the question and so --

Chief Justice Warren E. Burger: They said 4-7 days, didn’t they?

Mr. Bruce Rogow: Yes, sir, 4-7 --

Chief Justice Warren E. Burger: That’s too long for your standard, isn’t it?

Mr. Bruce Rogow: For us, it is, Your Honor.

I should point out that the Florida rule has now changed to make it 5-8 days.

It was 4-7 when the Fifth Circuit decided it.

The amendment to the rule has now increased the time that the state attorney has in which to file an information and obviate the preliminary hearing.

So, they have permitted even greater tolerance for a state attorney to obviate that determination of probable cause.

We think that a preliminary hearing --

Justice William J. Brennan: You’re not asking us to fix the time?

Mr. Bruce Rogow: We think that the question of time is a valid question when one addresses a due process issue.

When must the hearing --

Justice William J. Brennan: But I gather you’d be content with an affirmance of the --

Mr. Bruce Rogow: Certainly, I would.

Justice William J. Brennan: I should say that that seems to suggest that at least 4-7 days satisfies due process requirements.

Mr. Bruce Rogow: Yes, sir.

Justice William J. Brennan: You would not complain.

Mr. Bruce Rogow: No, sir.

And, in fact, we would be happy with an affirmance, yes.

We think that the preliminary hearing would promote the efficient administration of criminal justice because what it does is offer an opportunity for both sides to get together at an early point perhaps to enter a plea, perhaps to have a release on bail decision made once the facts are in.

And, the record in this case reflects that there has been a reduction in the Felony Court case load in Florida in Dade County of 20-25%, once preliminary hearings were initiated when the state attorney didn’t file information as a direct result of the litigation below and of the order of the District Court below which then prompted the local judges to setup magistrate hearings unless there was an information filed.

And I should also point out, I think, that at that time, the Attorney General of Florida sought to be a plaintiff in the case and sought to join with us and affect preliminary hearings because his clients and judges requested that.

Today, he argues that there is no right to such a hearing.

The --

Justice Potter Stewart: In Florida system it’s 10 days?

Mr. Bruce Rogow: Ten days under --

Justice Potter Stewart: Unless an information has been filed.

Mr. Bruce Rogow: Then there is --

Justice Potter Stewart: Then there’s none.

Mr. Bruce Rogow: Open-ended, yes, sir.

The state has also raised the question of Younger versus Harris which, in some ways, runs along with the Preiser versus Rodriguez issue.

And, I think I should address that very briefly.

Both the District Court and the Fifth Circuit agreed that Younger versus Harris was not applicable because what we were seeking here was a pretrial procedural right and no interference with the State Court proceedings at all.

Any decision which would be made will be made by state judges.

There was great respect for comity.

But even if Younger versus Harris had some application in this case, we have an exception to it because there is a reparable injury, the taking of liberty without a hearing, and there is absolutely no way to test that taking of liberty in the Florida Courts.

Justice Byron R. White: I wonder about that.

I understand the District Court and the Court of Appeals address themselves to the Younger problem and said it was not applicable or at least didn’t control here for at least one of the reasons you give.

But the Court of Appeals said something which I’m not sure would be an answer to the exhaustion requirement of the federal habeas corpus case which is considerably different.

The Court of Appeals said “while the plaintiffs might have filed suit in State Court for declaratory judgment and other equitable relief,” based upon the same grounds as in this suit, it may be true there wouldn’t be a remedy in the criminal case.

That doesn’t mean that in an independent action there would not be relief available in the State Courts.

Mr. Bruce Rogow: I believe it does, because the state law is clear.

The case would be dismissed.

Justice Byron R. White: That may be, but this is what the Court of Appeals said.

Mr. Bruce Rogow: I understand that.

Justice Byron R. White: Whom are we supposed to believe?

The Court of Appeals says that there they could have sought the same grounds, that this remedy was open to them.

Now, it may be that the answer on the merits has been foreclosed in the State Courts, maybe that’s true because that’s what you’re talking about, isn’t it?

Mr. Bruce Rogow: It is true, but I think --

Justice Byron R. White: It isn’t that the remedy -- that there isn’t a procedural remedy available.

Mr. Bruce Rogow: Certainly, there is a procedural remedy --

Justice Byron R. White: Alright, that’s all.

Mr. Bruce Rogow: Which --

Justice Byron R. White: You go ahead then.

Mr. Bruce Rogow: It’s wholly futile.

Justice Frankfurter wrote that due process is compounded of history in fairness and reason, and our position is that history in fairness and reason all compel to conclusion that preliminary hearings for a person incarcerated in custody, deprived of his liberty, must be given under the due process clause.

Chief Justice Warren E. Burger: Thank you, Mr. Rogow.

Thank you, gentlemen.

The case is submitted.