NORTH v. RUSSELL

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Argument of Charles E. Goss

Chief Justice Warren E. Burger: We will arguments next in North against Russell.

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

Mr. Charles E. Goss: Thank you.

Mr. Chief Justice and may it please the Court.

My name is Charles E. Goss and I am Counsel for the appellant.

My client want to know what is under sentence of 30 days of imprisonment in the Harlan County Jail which was imposed upon him by one of the appellees in this case Judge CB Russell, who is the Judge of the Lynch City Police Court, Lynch Harlan County, Kentucky.

This appeal is from the Court of Appeals of Kentucky and challenges on Fourteenth and Sixth Amendment grounds, the constitutionality of certain Kentucky statutes which empower non-Lawyer Judges to preside in criminal cases and to impose sentences of imprisonment.

Since this appeal tests the competency and the capacity of the trial Judge in this case, Judge Russell I will begin by discussing, Judge Russell’s credentials, his qualifications to act as a Judge.

I would start by saying that Judge Russell is not a lawyer.

He is a coal miner and he has had absolutely no legal training or whatever.

Unknown Speaker: How long he is been on the bench?

Mr. Charles E. Goss: Your Honor, at the time the appellant was tried, Judge Russell had been on the bench for six months, in the small fifth class city, which does not auger for very much experience because the fact that they do not have a very heavy caseload.

Chief Justice Warren E. Burger: This is a part time.

Mr. Charles E. Goss: It is a part time job Mr. Chief Justice.

Chief Justice Warren E. Burger: Which is like the magistrates and the justices in piece and some others in England for example and in some States in this country.

Mr. Charles E. Goss: Much like the some of the States in this country, I was in England recently and did a very brief study of the lay Judge System over there.

And I found that the lay Judge System in England is quite different from the system in our country and that there they said entitled of three and they have at their disposal the services of the Clark.

What they call Clark and he is a gentlemen who really makes the legal decisions and the man who advises the Court as to what the applications of the law ought to be --

Justice William H. Rehnquist: Is he a Lawyer?

Mr. Charles E. Goss: He is a barrister or a solicitor.

Justice William H. Rehnquist: He is a barrister or solicitor.

Mr. Charles E. Goss: Yes, Mr. Justice Rehnquist.

Justice Harry A. Blackmun: I suppose Mr. Goss there is no any question here about the client’s qualification of Judge Russell is it?

Mr. Charles E. Goss: I should -- Mr. Justice Blackmun, I certainly hope that there is no question about it in view—

Justice Harry A. Blackmun: That is why I wonder why you emphasize on, so it seems to me they are fairly clear that he was not qualified.

Mr. Charles E. Goss: I emphasize on Mr. Justice Blackmun because I felt that it was important to this argument to bring in to the focus, the lack of competency and capacity to this particular Judge at being rather the crux jof this case.

Chief Justice Warren E. Burger: Would you take the same position about in appeals Court Judge, Judge that was reviewing convictions on appeal if he was not a trained Lawyer?

Mr. Charles E. Goss: Mr. Chief Justice, yes indeed I would.

Chief Justice Warren E. Burger: Then you might have that problem here someday. There is no requirement that any member of this Court be a lawyer?

Mr. Charles E. Goss: The resource that I have --

Unknown Speaker: The Senate could be confirm now for the present vacancy of non-lawyers if they wanted to --.

Mr. Charles E. Goss: That is true Mr. Chief Justice, my research --

Chief Justice Warren E. Burger: You then say the Court was incompetent there as a whole or just that one man was disqualified, one person?

Mr. Charles E. Goss: Well, I would suppose that if that situation were ever confronted the Senate, the Senate would be most reluctant to confirm a man who was untrained in the law.

I might say this that in my research does not indicate that there has ever been in the history of this Court, a person who is a Judge, who is not trained in the law, who is not a lawyer.

Justice William J. Brennan: What is the difference here?

It is because of our recent -- former New Jersey Court of appeals, top Court of that State.

Mr. Charles E. Goss: Your Honor, I am not.

Justice William J. Brennan: That was at 16 Judge Court of whom six members were lay judges --

Mr. Charles E. Goss: There are many variations of Court Systems in the different States.

Justice William J. Brennan: I just wonder if its judgments would come under the same criticism --

Mr. Charles E. Goss: I was very interested in the English Courts Mr. Justice Brennan, in the way that they are put together.

The three Judges over there are lay Judges often they sit stipendiary magistrates or trained barristers or solicitors.

They are largely a blue ribbon jury because the decisions that they make are largely factual decision rather than the decisions of law, although they do apply the law to a case much in the way that the jury does in this country.

Justice Thurgood Marshall: Then he does not have the due process clause does he?

Mr. Charles E. Goss: That is correct Mr. Justice Marshall and they do not live under the same kind of constitution that we live under.

Justice William H. Rehnquist: Mr. Goss, your discussion of qualification in some of the colloquy from the bench suggests almost assuming that the point in argument from the beginning, when you said the man was not qualified and he was not competent, all you mean is he was not legally, he did not have the law degree.

Mr. Charles E. Goss: What I mean -- I would answer that in two ways, I would say that not only that he did not have a law degree Mr. Justice Rehnquist, but I would say also that he did not have possessed sufficient legal knowledge.

Subjectively to have accorded in oath his constitutional rights is substantive and procedural constitutional rights.

Chief Justice Warren E. Burger: This is usually involved in determining the guilder innocence in this case trying to apply the law to the fact.

Mr. Charles E. Goss: All the legal issues would be involved in this case.

There were legal issues that were brought to the forefront in the actual trial itself.

Mr. Chief Justice.

Lonnie North when he went in to the Courtroom entered the plea of not guilty and demanded a trial by jury.

The Judge retired to an office in the next room for a few minutes.

First, he said I will give you a jury trial if it takes me all night.

He came back after having been in there for a while and said I just talked to the City Prosecutor and he tells me that I do not have to give you a trial by jury.

I am going to try you myself that Mr. Chief Justice was a decision of law in which he erred grievously.

And that was one of the most elementary propositions in Kentucky that under the Kentucky Constitution Section 11, this man was indeed entitled to a trial by jury.

Justice Lewis F. Powell: Mr. Goss, before you proceed does Kentucky require a law degree to be license to practice?

Mr. Charles E. Goss: Mr. Justice Powell, it does.

You have to have a law degree and you have to pass the bar examination and you have to be licensed.

Justice Lewis F. Powell: That is fairly reasonable in terms of an absolute requirement is it not the law degree that did not last quite to 10 to 20 years.

Mr. Charles E. Goss: It was not in my memory.

Justice Lewis F. Powell: Right.

Mr. Charles E. Goss: Other legal judgments that were required to be made Mr. Chief Justice were decisions that pertained to this man’s constitutional rights.

He was entitled to be represented by Counsel at this hearing but he did not have Counsel.

Chief Justice Warren E. Burger: Could any presumably well trained, legally trained Judges have made that judgment, also and times passed, recent times passed have they not?

Until --

Mr. Charles E. Goss: Yes, indeed and I think there are still—

Chief Justice Warren E. Burger: On this time?

Mr. Charles E. Goss: I think they are still making that.

Some of them are still lying.

Mr. Charles E. Goss: That false assumption according to our recent report done by the Boston University Law School many judges are failing to implement the mandate in Argersinger v. Hamlin.

Chief Justice Warren E. Burger: Well then the judgments so obtained would be subject to reversal on that ground would it not?

Mr. Charles E. Goss: Reversal on that ground except that in Kentucky, we do not have the review kind of process, we have it trial de novo process in Kentucky.

Chief Justice Warren E. Burger: Even better, is it not?

Mr. Charles E. Goss: That depends.

Mr. Chief Justice on your view of the matter.

We read and took to heart the decision of this Court in Ward v. Monroeville in which it was stated that nor in any of that may the States Trial Court procedure redeem constitutional acceptable, simply because as state eventually offers a man a constitutional trial.

Petitioners entitled to a fair trial in the first instance.

Justice William H. Rehnquist: But can you not distinguish biased from lack of competence?

Mr. Charles E. Goss: Yes, Mr. Justice Rehnquist.

I can distinguish biased between lack of competence in this respect.

Bias usually appertains in the case, only case by case basis and competent pertains across the board in every case, in which that person sits.

Justice William H. Rehnquist: But you do not think bias is a more serious infection in the process than it is lack of confidence?

Mr. Charles E. Goss: If I had my choice Mr. Justice Rehnquist between a biased Judge and a Judge who was unfamiliar with the law, I think that I would be a hard put to make the decision.

Justice William H. Rehnquist: Well, I will tell you.

I would not be.

We had justices of the peace in Phoenix where I practice, who did not require a law degree and some were lawyers and some were laymen and I think many members of the bar would have chosen the laymen to put their case before just because you could get a pretty competent laymen for the salary but all you could get was the bottom of the barrel so far as the lawyers were concerned.

Mr. Charles E. Goss: Could present a problem, will you?

Justice William H. Rehnquist: Well I think it would present a problem if your view prevailed here.

Mr. Charles E. Goss: I might say it too then Ward v. Monroeville, Mr. Chief Justice that was a case that involved a fine only.

If we were talking about a right which is considerably more fundamental than the right to protect your money and the right to protect your liberty.

Chief Justice Warren E. Burger: As Mr. Justice Rehnquist might doubt that case was dealing with bias of building a partisanship of the Judge was it not?

Mr. Charles E. Goss: Building partisanship with the Judge, yes it was Mr. Chief Justice.

Chief Justice Warren E. Burger: Because of his conflicting interest.

Mr. Charles E. Goss: The natural bias was really the basis upon which that case was decided but there is a broad language in there, broad constitutional language which would indicate that a man need not go through a chamber proceeding of the kind that Lonnie North had the go through, in order to find himself eventually in a constitutional Court and the Court which is able by training an experienced and presided order by Judge capable of courting him his rights.

This Judge did not advise Lonnie North of his right to be represented by counsel.

He did not advise him of his right to a trial by jury.

As a matter of fact he did not comply with any of the mandates of the Kentucky Criminal Code of procedure with respect to advising him of his vast constitutional rights.

Because it says specifically that every accused will be advised to his right to a trial by jury, his right to Counsel, his right to not to incriminate himself, of his right to confront the witnesses against him.

None of these things were done and then when it came down to the trial process, the Judge says, “I am going to try you myself”.

And as it turned out only one witness testify and that was the arresting officer and it was obvious on the face of this record that this trial contained none of the virtues of a due process trial.

Justice Byron R. White: Well, that all you need to prevail on is the fairness of theis for this particular trial.

Is it not?

Mr. Charles E. Goss: We need to prevail on the fairness for this particular trial and we need to prevail on the fairness of the trial to come Mr. Justice White.

If this case were reversed by this Court I feel certain that under the laws of Kentucky it would be sent back to Kentucky for retrial and --

Justice Byron R. White: Are you suggesting that any trial whatsoever tried by a non-lawyer would fail to be a due process trial?

Mr. Charles E. Goss: I am saying your Honor that the specter or the probability of an unfair trial and a Court presided over by a non-lawyer judge is so great.

Justice Byron R. White: So you say yes, you say yes?

Mr. Charles E. Goss: I say yes.

Justice Byron R. White: You would say that it would not so it does not make any difference how otherwise well trained, a person was -- suppose that one of the Judges had been on the bench for 20 or 30 years, had studied the law he just was not they -- he just had never been admitted to practice.

But he was a very-- as far as anybody knows, he probably knows more about his business and the lawyers that appear before him.

And you would suggest that your fear as there should prevail and upset any conviction before a Judge like that?

Mr. Charles E. Goss: Mr. Justice White, I would say this that in 17 years of practice, I have not found that Judge.

I practiced before many magistrates, many justices of the peace and in fact that have been in on bench for longer periods than the one period you suggested and I never saw one yet.

That was able to conduct a fair trial, a constitutional trial in accordance with the Fourteenth Amendment and in accordance with the --

Justice Byron R. White: And you would apparently, you would say that were true no matter what the issue in any case was?

Mr. Charles E. Goss: I think there maybe cases.

I think there maybe cases non-imprisonment cases.

Justice Byron R. White: Well, would you ever let one take a plea of guilty?

Mr. Charles E. Goss: A proper training perhaps, yes.

Justice Byron R. White: Proper training, what do you mean by that?

Mr. Charles E. Goss: I mean if he --

Justice Byron R. White: Do you mean if he is lawyer?

Mr. Charles E. Goss: On that one restricted point, it might very well be that in terms of one particular point or in terms of performing one particular service.

That a person could be trained to adequately perform that service even though he were not a lawyer, to me --

Justice Byron R. White: So would you say that would be also be true in any none where the plea is not guilty?

If the only issue in a case happened to be a particular kind of an issue like whether he was hurt or not and the fellow happened to be a Doctor?

Mr. Charles E. Goss: I would say Mr. Justice White that a criminal trial is a very, very complex matter.

This Court had said that many, many times.

It said it Powell v. Alabama more recently—

Justice Byron R. White: Mr. Goss, in a criminal trial always a very, very complex matter?

Mr. Charles E. Goss: It depends on the participants in the trial.

I would say that the trial is being conducted against the background of what could be a very complicated proceeding.

Justice Thurgood Marshall: Mr. Goss would you have not -- suppose the Judge in this case were a lawyer with practice probate law exclusively for 20 years.

And then he would be magistrate, he would be alright.

Mr. Charles E. Goss: Mr. Justice Marshall I think that is right under the standard that we are asking the Court to articulate in this case.

Justice Thurgood Marshall: But that is what you are asking me.

Mr. Charles E. Goss: That is correct.

Justice Potter Stewart: If I cannot pass -- if he had gone to Harvard College, then first day's class and gone two years and seven months to the Harvard Law School.

But first day’s class then had to relieve for reasons of illness and never resumed the practice of law and therefore never had been into the bar, he would be unqualified.

Mr. Charles E. Goss: Disqualified.

Thanks Mr. Justice Stewart.

Justice Lewis F. Powell: Mr. Goss, If your plaintiff had charged only with misdemeanor that called for no prison sentence.

Would you be making the same argument?

Mr. Charles E. Goss: If that had been the case Mr. Justice Powell I would not be here today.

Justice Lewis F. Powell: Suppose your client which I just -- the third time say with some traffic violation and that Kentucky law authorized the revocation of his license and issued whether he would be convicted, and if so, this license would be revoked.

Mr. Charles E. Goss: I would regard that as principally a civil matter.

Justice Lewis F. Powell: Right.

You would draw the line with Argersinger?.

Mr. Charles E. Goss: He would draw the line exactly where Argersinger drew the line because we realize to understand that this country, there are over 50 million traffic cases, I heard every year and that there are so many misdemeanors on the books that never really result in imprisonment.

Justice Lewis F. Powell: Again if you are traveling salesman and lost your driver’s license that the sanction might be very much more serious for you than if you confined in the jail for a night or two.

Mr. Charles E. Goss: I would say Mr. Justice Powell in the situation like that.

That the trial de novo procedure might be adequate.

Justice Lewis F. Powell: In Kentucky, to protect the interest of the driver

Mr. Charles E. Goss: As I see this line of questioning, if I maybe permitted to say this.

The other trial participants in a criminal case are lawyers.

I think that the trial Court was described by the Chief Justice as a Tripartite consisting of three elements.

The trial Judge, Defense Counsel and the counsel for the prosecution.

It is our contention that when one factor of this Tripartite breaks down, then for all practical purposes, you are dealing with a non-constitutional Court.

Chief Justice Warren E. Burger: But did not say anything about that the Judge being a licensed lawyer, did it?

Mr. Charles E. Goss: That is correct Mr. Chief Justice I used that -- .

Chief Justice Warren E. Burger: But then did it helped you very much, does it?

Justice Harry A. Blackmun: It might be a little bit about the Kentucky system, you do have a second tier and the de novo trial that is available, could Mr. North have pleaded guilty and then demanded a jury trial in the second tier without the plea standing against him?

Mr. Charles E. Goss: Yes, Mr. Justice Blackmun, he could have the de novo procedure.

Justice Harry A. Blackmun: So that in the de novo procedure, he could have obtained everything the lack of which is the basis of your complain now.

Mr. Charles E. Goss: That is correct.

Justice Byron R. White: Without going through a trial?

Mr. Charles E. Goss: Without going through a trial.

Justice Byron R. White: But you would still make the same argument even if he had a lawyer to advise him to plead guilty and take his de novo procedure.

Mr. Charles E. Goss: Under that hypothetical situation, yes.

Justice Byron R. White: Well, you said that you would let him plead guilty before a untrained Judge?

Mr. Charles E. Goss: If I said that Mr. Justice White, I said it in error --

Justice Byron R. White: Well, you did not say that.

You said that perhaps somebody could be trained to take pleas of guilty.

Mr. Charles E. Goss: Yes, your Honor.

Justice Byron R. White: But this one was not, I take it.

Mr. Charles E. Goss: This one was not.

I might say this that on this whole issue of trial de novo, there are some things involved that really transcend the question of fair trial as there are the economic disadvantages to a man having to go for two trials instead of one, having to pay a lawyer twice.

Unknown Speaker: I thought you just said he did not have to go two trials and he could plead guilty and go right up and have this de novo trial.

Mr. Charles E. Goss: But there has to be an appeal that lies in the Circuit Court from the lower Court, which involves activities in the lower Court.

Including the acquisition of a judgment, statement of cost and bringing it under the Circuit Court and getting a bond and lodging the matter in the lower court, in the Circuit Court.

Unknown Speaker: (Inaudible) had it?

Mr. Charles E. Goss: He can do it all in one stroke, that is correct.

But our contention is and our question is why should he?

We have --

Justice Harry A. Blackmun: Could we pass Judge Russell entirely in this case?

I do not want to have anything to do with your Court.

I wanted de novo trial in the regular Court.

Mr. Charles E. Goss: Mr. Justice Blackmun, no.

That is not an available procedure under the laws.

Justice Harry A. Blackmun: You have to file a plea of some kind.

Mr. Charles E. Goss: You would have to file a plea of some kind, there would have to be a judgment of conviction whether entered on a plea of guilty or following a trial before the de novo process could be invoked.

With respect to this whole idea of why a lawyer as opposed to a layman, I think if one starts with a premise that we are dealing here with two of the most fundamental rights that we enjoy as citizens.

one being the right of the fair and impartial hearing in the first instance.

Another, the right to affect of assistance to counsel which I have said -- both of which are said to be by this Court, very valuable fundamental rights, then a termination must be made as to what is the best way to protect those rights.

What kind of a Judge should you have on the bench.

Should you have a Judge who is familiar with the rules, should he know what the Fourteenth Amendment provides?

But Judge Russell did not.

Should he know what the Kentucky rules of criminal procedures say or be at least normally familiar with him?

Judge Russell was not.

He was asked one question there in the course of this hearing, if he knew why the decisions of the Court of Appeals in Kentucky were important in the administration of law.

His response was very curious.

He said, I could say misrepresentation of justice.

I do not know what that means except that it means that he really did not know what he was talking about.

Chief Justice Warren E. Burger: Did many people say that on appellant Courts including lawyers?

Mr. Charles E. Goss: I do not think Mr. Chief Justice that is exactly what he meant.

I think he was trying to tell us that he did not really know.

Justice Potter Stewart: He did express a view of (Inaudilbe), in some of the decisions of this Court --

Mr. Charles E. Goss: Yes, Mr. Justice Stewart he certainly did, saying that he did not agree with most of them.

Justice Potter Stewart: Yes.

Mr. Charles E. Goss: If you ask rhetorically of why not lawyers, why not have lawyers in these Courts then I think you really reached the crux of this case in terms of what I am trying to put across.

As I said the other lawyer, the people in the case, the other three parts of tripartite, and the two parts are lawyers.

Why not the Judge and should not the Judge be the best trained participant in that criminal process?

The Sixth Amendment does not say anything about counsel having to be a licensed lawyer but it has always been presumed that the counsel must be a licensed lawyer.

Justice Potter Stewart: In Argersinger itself, if I am accurate in my recollection that the opinion suggested that counsel need not be a licensed lawyer.

Mr. Charles E. Goss: There are some in this judgment.

Justice Potter Stewart: For the purposes of Argersinger requirement --

Mr. Charles E. Goss: Yes, Mr. Justice Stewart.

There is some suggestion in there and I believe as a matter of fact that the Solicitor General made that suggestion in the amicus brief that he filed with Court.

I do not know how you are going to get around the State requirements of the State Bar Associations—

Justice Potter Stewart: Am I not right in my understanding that in many States those formally very rigid requirements have been loosened up some ward at least to allow law students to participate in defensive indigent.

Mr. Charles E. Goss: That is right.

They have in Kentucky also but to us, it is question, do you adopt the objective standards or do you adopt some subjective standard.

Do you put the benchmark here somewhere and you say this man has to be at least be able to read and write his own name, which you do not have to be able to do in Kentucky.

Be Judge of the six class city.

This—

Unknown Speaker: Mr. Goss, (Inaudible) since 78.

does it not?

Mr. Charles E. Goss: 78.

Unknown Speaker: Have replaced what by the Court--

Mr. Charles E. Goss: By an all lawyer Court.

Unified Court system, staffed wholly by lawyers.

Unknown Speaker: This is Constitution Amendment is it?

Mr. Charles E. Goss: Constitutional Amendment.

Unknown Speaker: (Inaudible)

Mr. Charles E. Goss: I beg your pardon?

Unknown Speaker: Is there an exception to the statement you just made?

Mr. Charles E. Goss: There is this exception that if they are not available within the community, the lawyers with which to staff the District Court then lay person maybe called upon, assuming that they are properly qualified but they have to be approved.

Unknown Speaker: That it should be.

Mr. Charles E. Goss: They have to be approved by the Chief Justice.

Unknown Speaker: But they could not be, you would have the same objection to those.

On layman, would you not?

Mr. Charles E. Goss: Yes, I would.

Unknown Speaker: Yes.

Mr. Charles E. Goss: I would have the same objection and it certainly would not be an objection, it would be hard over current terms of implementation, there are Circuit writing Judges in vast States in the union that could be utilized into situation of that kind.

On the other hand if you adopt some subjective standard of judicial competency such as has been suggested by the Attorney General in his brief, then you get on the question of probing a person's knowledge.

You have to ask yourself what does he have to know?

How do we find out, how much he knows and what kind of a test do we promulgate to determine what his knowledge, which thus would be a very, very difficult thing to implement.

Justice Potter Stewart: Well, could you measure it by a very objective standards just what errors did he make.

I gather in this case, the Judge made three or four or more very egregious and self evident errors and so obviously this conviction if my understanding is correct, I understand it is conceded, then this conviction should have been vacated, was a nullity of the new trial.

Mr. Charles E. Goss: It took it though the Courts of Kentucky.

Mr. Justice Stewart and we did not get an area with that argument.

That is the reason why—

Justice Potter Stewart: Just I read at you, you insisted on not bringing up that argument.

Mr. Charles E. Goss: Yes, that is true.

That is true.

Justice Potter Stewart: So you obviously did not get anywhere with something that you refused to embrace.

Mr. Charles E. Goss: We had read the decision of Ward v. Monroeville and had taken it to heart.

Justice Potter Stewart: Right.

Mr. Charles E. Goss: And then our belief that this man was entitled to a fair trial in the first instance, we took the harder ground which led us to this Court today.

Chief Justice Warren E. Burger: (Inaudible) would not take you here is distinguished from disposing of the case with much less difficulty for everyone involved.

Is that not so?

Mr. Charles E. Goss: It was a harder ground, Mr. Chief Justice and was selected and that to us it accorded the kind of relief that ought to have been accorded in this case.

To assure Lonnie North, upon re-trial, he would be tried in the Court presided over by a competent and lawfully trained judge.

Thank you Mr. Chief Justice.

Justice Byron R. White: Could I ask you.

Suppose, the gentlemen went to jail after being convicted in this, by this untrained judge, and he then went through the, went to Federal habeas but he have exhausted his State remedies if had appealed up to the-

Mr. Charles E. Goss: Mr. Justice White, that would be a very interesting question in view of the trial de novo in Kentucky, I am not just not that familiar with that particular kind of practice, I wish I could answer your question.

Unknown Speaker: But apparently the Kentucky Courts accepted this in a State habeas proceeding, accepted this issue without requiring exhaustion of the appellate processes?

Mr. Charles E. Goss: That is correct.

The appellate processes insofar as they provide for trial de novo.

Thank you.

Chief Justice Warren E. Burger: Mr. Chenoweth.

Argument of Robert L. Chenoweth

Mr. Robert L. Chenoweth: Mr. Chief Justice and may it please the Court.

The position of the appellees today is that the Federal Constitution does not require that a defendant who is accused of a criminal misdemeanor charge for which the possible punishment is imprisonment that -that individual need not be tried by lawyer judge, that the Federal Constitution does not mandate that kind of requirement.

Now the Tenth Amendment of our Federal Constitution, the States have the right to establish their own judicial system and the Commonwealth of Kentucky has adopted a judicial system that handles misdemeanor cases, minor criminal misdemeanor cases and in part that criminal misdemeanor system utilizes non lawyer judges.

We do not feel that the Tenth Amendment, in the Tenth Amendment there is any constitutional compulsion that a State adopt what might be considered an ideal system of the administration of justice.

That the fact that a judicial system has lawyer judges does not necessarily mean that they are good judges, whether that is a good system or that a judicial system that has non-lawyer judges means that that is a bad judicial system.

And the States, the State of Commonwealth of Kentucky has in part adopted a system, using non lawyer judges.

The issue in the case, in this case is not whether the judicial power was constitutionally exercised by Judge C. B Russell, it was not.

But the issue is whether that judicial power was constitutionally vested and we believe that it was.

We believe that judicial power maybe constitutionally placed with a non lawyer, well, in keeping with the requirements of Due Process of law.

Court proceedings are held for the various solemn purpose of ascertaining the truth.

That seems to be the very heart of a fair trial is the ascertainment of the truth.

We readily agree that the Constitution and Due Process does require a fair trial in a fair tribunal.

This Court has considered several times what is necessary for there to be a fair tribunal.

The Court has said that the tribunal should be unbiased, that the tribunal should be neutral and detached Tome, Ward, Moore v. Demcy.

Each of these cases, there was something to taint the tribunal in terms of his biasness or his neutrality in considering the case.

But we believe that a non-lawyer can be unbiased.

He can be neutral, and he can be detached.

This unbiased, neutral and detached non-lawyer judge can give a defendant a genuinely fair trial.

It is a two part thing, fair trial in a fair tribunal and we do not feel that the non-lawyer Judge is prohibited by that status from being a fair tribunal and that status neither prevents him from affording one accused of a criminal misdemeanor a fair trial.

A non-lawyer judge seems can look at a case, can look at a case in terms of ascertaining the truth against the standard that is required in a criminal case.

The burden of beyond a reasonable doubt.

We believe that the non-lawyer judge can make independent judgments of the truth.

There is no real probability.

We feel that prejudice will result in a case that is handled by a non lawyer Judge.

There is no nothing to show that non lawyer judges convict more frequently or reversed more on appeal or that they allow matters into evidence or otherwise handle a minor criminal misdemeanor case.

In a fashion, that is any less fair than one handled by lawyer judge.

Unknown Speaker: You would argue that a court minor who has been on the bench for six months to be competent to decide what evidence was admissible?

Mr. Robert L. Chenoweth: well, I do not believe that-

Unknown Speaker: Why don’t you stick to the fact that in the magistrate's court those questions do not come up?

Mr. Robert L. Chenoweth: Well, you are absolutely your Honor.

There are I would say probably cases where they maybe would come up but you are absolutely correct that we are looking at the minor criminal offense.

We are talking about traffic violations, we are talking about other violations that, that more than likely would not come up but I would not begin to say that the non lawyer Judge would necessarily know all of the evidentiary rules that a lawyer does.

But I do not believe that that prevents a non-lawyer judge from giving the man a fair trail.

The real purpose it seems for Due Process in a criminal case is to give the accused an opportunity to defend and we feel that when you do have a tripartite entity, when you do have an attorney for the prosecution and you have an attorney for the defendant that these two attorneys will be able to afford the individual accused of the opportunity to defend.

The argument has been made that the right to a lawyer Judge is required by Sixth Amendment and specifically, the right to counsel there under.

But we believe strongly that this is not a right to counsel case.

The rights enumerated in the Sixth Amendment give the tools so that one can prepare an adequate defense in a Court of Law.

It is a fundamental right to one accused of a criminal charge to make a defense.

Due Process says that he must have the opportunity to make that defense.

The Sixth Amendment gives those standards that all criminal prosecutions must abide by in order to give that defendant the opportunity to defend.

Sure he has the right to be informed of the accusation.

He has the right to be confronted with the witnesses against him.

He has the right to compulsory process for witnesses that would be in his favor and he does have the right to assistance of counsel.

But the rights of the Sixth Amendment, basic to our adversary system of criminal justice do not have as a part of that bundle of rights to afford an accused, the opportunity to defend be right, not part of that bundle of rights, there is not existing the right a lawyer judge.

Justice William H. Rehnquist: Certainly some of the most celebrated cases in the Anglo-Saxon tradition.

I have involved extraordinary able counsel like Lord Byron in the Divorce Trial of Queen Caroline before the House of Lords, brought before the impeachment of Warren Hastings before the House of Lords in a situation where most of the House of Lords were not judges, have they not?

Mr. Robert L. Chenoweth: I think that is absolutely correct Mr. Justice Rehnquist, and this our belief that when you do have attorneys who are advocating both sides that they will help marshal the evidence, they will overlook the proceedings of the other opposing counsel.

They do and can require that there be a regularity of the proceedings.

Chief Justice Warren E. Burger: When the senate tried the Samuel chase 175 years ago more or less, and suppose not all of the 15 Senators -- 26 Senators were from the thirteen States were lawyers, was that?

Mr. Robert L. Chenoweth: I would certainly believe that that is correct and I think that again we go to that the purpose of those individual setting to consider those types of matters are to consider the ascertainment of the truth and that they did not have to be a lawyer judge to be able to make an ascertainment of the truth, when the matters are presented before them, they can fairly and impartially decide those matters as they are marshaled before the non lawyer judge.

Chief Justice Warren E. Burger: By coincidence, the presiding officer was a lawyer but the Vice President of the United States might not be a lawyer.

At present, the Vice President is not, and the executive officer or judicial officers were tried in the senate today.

Presiding officer ruling on evidence would be a non lawyer.

Would it --

Mr. Robert L. Chenoweth: That is correct and that individual could surely make a fair and impartial consideration of that case and could ascertain the truth of the charges that he would need to consider feel very strongly that that type of proceeding is not in violation of the Due Process clause of the Fourteenth Amendment to our Federal Constitution.

Unknown Speaker: Do you think our Chedward (ph) helps your case?

Mr. Robert L. Chenoweth: Well, I would only say that I think that it recognizes the fact that there are matters that a non lawyer judge or non lawyer individual can make.

Here in that case of course, we are talking about Clerks and they were making determinations of probable cause for warrants on municipal offenses.

So we are not really on square with that case but in terms of reasoning ability that we are because it is a recognition that non-lawyers can make decisions.

Jurors, everyday are asked to make just significant decision of beyond a reasonable doubt, that is a very tremendous burden placed upon these non lawyer individuals.

Unknown Speaker: This case when it was back in the Kentucky, your highest Court in Kentucky was just reaffirmed I take it.

Mr. Robert L. Chenoweth: Yes, as it was presented to our Kentucky Court of Appeals, the second time and I take it you mean when it was remanded by this Court.

Unknown Speaker: Your Court said that in any errors except the one that is at issue here had been waived or at least not pressed in.

Mr. Robert L. Chenoweth: They had not been presented, yes Honor.

Unknown Speaker: Would the Federal habeas still be open in this case?

Either way it goes.

Well, let us assume that you prevail on the issue here, would Federal Habeas still be available, for example, the challenge, the lack of a jury trial or a lawyer?

Mr. Robert L. Chenoweth: I do not believe that the Federal Habeas corpus addressed itself to considering that kind of an issue.

Unknown Speaker: Well what kind of issue?

Mr. Robert L. Chenoweth: Well, to addressing matters that are not the judicial errs that possibly were in the case.

Here, we maybe have a deliberate bypass I think that is probably-

Unknown Speaker: Well, so what you are saying is, unless it were a deliberate bypass, it would be open in Federal habeas.

Mr. Robert L. Chenoweth: I think that, that is true. We argue in Federal Habeas corpus cases.

However that those matters that are known at the time that more actions are taken, that these do need to be raised and that Federal Habeas corpus is no substitute for an appeal.

Unknown Speaker: But at least as the case comes to us; I take it -- we, ought to judge as -- had not been any errors before the magistrate?

Mr. Robert L. Chenoweth: As the case has been framed for this Court, I think that, that is correct because those have truly (voice overlap).

Unknown Speaker: And in any event, the only thing that is at issue is whether there is jail term, the conviction that is not an issue is the term, it is the sentence.

Mr. Robert L. Chenoweth: It is the fact that imprisonment was the punishment, part of the punishment needed in this case.

In our Kentucky system and nationwide, I do not believe there is any question but the man is not constitutionally entitled to an error free trial.

Judges who are lawyers make errors.

This Circuit Judge who considered this case, the habeas corpus, he made an error in terms of the whether or not a habeas was a bailable situation in the State and it is not a bailable situation.

And the Court of Appeals brought that out in the first consideration of this case.

So there are errors that are made and these errors are made by lawyer judges and non lawyer judges, but with our system in Kentucky, with the two-tier system we presently have, with the Courts of convenience, the police courts being one of them, we have also the general jurisdictions Circuit Courts and attorneys are required to be judges, or judges are required to be attorneys in the Circuit Courts.

This Court of course, had the occasion our two-tier system in Kentucky in Colten versus Kentucky and there were -- it was recognize that these inferior courts, as we refer to them in the Commonwealth that they are designed to afford the speedier and less costly adjudications and that if the individual accused is unhappy with the decision that is occurred in the inferior Court, that he has the unconditional right to take an appeal although it is not really an appeal, it is a de novo consideration to the Circuit Court where a judge is going to be presiding.

There is no record, the judgment in the lower Court is not considered.

It does not get into the case at all in the Circuit Court.

Chief Justice Warren E. Burger: Does Kentucky law and perhaps you may seem this incorrect, under Kentucky law, is there any, this petitioner if he fails here, that challenge or have reexamined the judgment on the basis of the lack of a Jury trial or lack of counsel.

Mr. Robert L. Chenoweth: In our State system Your Honor?

Chief Justice Warren E. Burger: Yes

Mr. Robert L. Chenoweth: I do not believe so.

Chief Justice Warren E. Burger: Nothing, there is no statutory equivalent of habeas corpus,

Mr. Robert L. Chenoweth: That is what this is?

Well, this was the initial, this case really evolves from the habeas corpus petition in the Circuit Court after Court of Appeals and of course, yes, we have been through a --

Chief Justice Warren E. Burger: (Inaudible) equivalent to the Federal 2255 for reduction of sentence.

Mr. Robert L. Chenoweth: I really do not believe so.

I have not considered as to whether they would have further redress in our State Court System, we most surely had this case before our highest State court.

Unknown Speaker: Not if Judge Gilmore has anything to say about it, I take it-

Mr. Robert L. Chenoweth: Well, I think you are absolutely correct, he was quite unhappy with the developments that came with this case.

Unknown Speaker: He was unhappy with your confession of error, I take it.

Mr. Robert L. Chenoweth: Yes sir, I think that is the very fair statement.

Unknown Speaker: Mr. Attorney General, the Kentucky as I understand it in the cities with 20,000 or more, you do require judges in the misdemeanor Courts, who have been qualified or who have been licensed as lawyers.

Mr. Robert L. Chenoweth: Yes, absolutely.

We are talking about the first and second class cities as our Constitution breaks down by population size.

So we are talking about those cities that have greater than 20,000 people in them.

State law does require the police court judge in the first and second class cities to be lawyers, is the third through six classes of cities.

All the way from less than 20 down to less than 1000 people that we did not require.

Unknown Speaker: The judges whether they be lawyers or layman in all cities in Kentucky apply the same State law, do they not?

Mr. Robert L. Chenoweth: Yes, this is true.

The criminal law is all applied the same by all of them and all fifth class cities, the law is applied the same in all of the fifth class States that exist in the State.

This is the very, this is stated in the section of our Constitution, classifying cities in section 156, where it talks about that all of the cities in a particular class that their organization and their Government that same laws will apply to them.

Unknown Speaker: Is there any reason other than convenience for drawing a distinction between the smaller and the largest cities?

Mr. Robert L. Chenoweth: Yes, I believe that there very much is.

We have first of all, the consideration that obviously as an outgrowth of that smallness, there is not going to be nearly the number of cases.

We have part time police court judges in the smaller cities whereas in the larger cities they would be a full time position.

In a small city, being in rural parts of the state, the police court judges, they know the people in that small, and the prosecutions usually are not that vigorous and there are differences in handling of the cases in a smaller class of city.

You also have just the very, very important factors still existing in Kentucky that we have counties in the Commonwealth Kentucky where there are few attorneys.

Maybe only one or two, or maybe only four or five existing in some 24 of our 120 counties, so we do have a problem that I think that you recognize in Argersinger, that we still have in the Commonwealth of Kentucky.

Although the situation in Argersinger and as far as the distribution of attorneys in the Commonwealth is quite different, we believe in this case.

In Argersinger, the requirement of having an attorney for a criminal misdemeanor case, the fact that that attorney would come from a first class city and drive down the road 25 miles to a class of city maybe a fifth or sixth class city.

That was really very unimportant as long as that man helped the accused, present his defense but we are talking about here the fact that as our State has liked and we think the citizens of the Commonwealth want to have matters handled by one of their own by residence.

And we have residential requirement for police Court judges, so it is not the shuttling of an attorney from maybe where there are two many attorneys in Louisville Kentucky, for example, and to a small community such as I live in with 4000 people and less than 10,000 people in the entire country, Only fifty miles from Louisville.

Unknown Speaker: (Inaudible).

Mr. Robert L. Chenoweth: The new District Court with the judicial Amendment, it will be patterned after the districts, the judicial districts as we now have with Circuit Court which is our Court of general jurisdiction, we have the 120 counties in the Commonwealth, are divided up now in 55 judicial circuits, judicial districts.

But the district plan is to be placed on top of that, so have-

Unknown Speaker: So we have judges in right Circuit?

Mr. Robert L. Chenoweth: Well, the judicial amendment specifies that each county shall be entitled to a District Court and this is the problem we get into at least problem in terms of the way this case has been franked, is that we do have multi-county judicial districts and there will be multi-county District Court districts.

And the new amendment to our Kentucky Constitution would say that each county is entitled to a District Court and in the county in which the District Court judge does not reside, he shall appoint a trial commissioner, that amendment goes on -- that section of the new amendment goes on further to say that if that the trial commissioner shall be an attorney, if one is available and qualified so again we are back to the same situation much as we find ourself before, that if every county is going to be required to have a District Court and there maybe as only one or two attorneys in the entire country.

One of these is probably going to be the county attorney, one of them is going to be possibly involved in the Commonwealth attorney’s office or some other matter such that he could not be, obviously he could not be a Judge.

We get to the-

Unknown Speaker: But the appointment of the trial commissioner will be by a District judge in the first instances?

Mr. Robert L. Chenoweth: The district judge has the power of appointing the trial.

Unknown Speaker: And I gather though if he appoints to layman, the layman has to be approved by the Chief Justice in the Court of Appeals, is that it?

Mr. Robert L. Chenoweth: There are lots of -- I cannot really say that, there are so many things that I have not been addressed with this.

The general assembly of course is going to have to meet and put some flesh on these bones that are in our Amendment and of course the Supreme, our new State Supreme Court Chief Justice, he is given quite a little bit of authority and he has a lot of decision making to make in the next couple of -

Unknown Speaker: What if the defendant has no money? Was to plead guilty in appeal and get a trial de novo, has he got a problem on his hands, how about is there some fee involved?

Mr. Robert L. Chenoweth: I do not believe so, if he wants to plead guilty, he can that he will go right to the Circuit Court.

Unknown Speaker: What is it costing?

Mr. Robert L. Chenoweth: I cannot, I do not know, if it costed that they would take into take his case from the police court.

Unknown Speaker: My question is whether there are any substantial barriers to his hearing a constitutional trial, even assuming that the layman is incompetent.

Mr. Robert L. Chenoweth: I do not know the cost figure but we do have and I believe that the statute, 26010 that sets up the police courts, it gives the police courts concurrent jurisdiction with the Circuit Court.

The Court of general jurisdiction that has a lawyer judge.

I believe that the individual who is accused in police court, he can ask that that case be initially brought in the Circuit Court.

Unknown Speaker: But he has no right, he has no right to it.

Mr. Robert L. Chenoweth: I believe that he does, the Court-

Justice Byron R. White: But you, you and your colleague then differ.

Mr. Robert L. Chenoweth: Yes, that is correct Mr. Justice White.

I believe the statute is that there is concurrent jurisdiction and I believe-

Justice Byron R. White: Let us assume there is not that he would have to either be tried and found guilty or plead guilty and then my question is which apparently do not know as to how difficult it is for him to get -- financially to have a trial de novo.

Mr. Robert L. Chenoweth: I can not really tell you how difficult it is Mr. Justice White.

There has been raised the Equal Protection argument in this case but we do not feel that there is an Equal Protection argument in this case which in part we have talked about already in this argument and that is that our classification is a classification of cities and the Police Courts are incidental to that constitutional classification of cities.

All individuals who proceed through a Court in a particular class of city is going to be treated -- have the same situation. Is going to be treated the same, he is going to be faced with that non lawyer Judge if that is the situation.

So, we have I think here clearly a situation that has been recognized that the Equal Protection clause protects the people.

It does not necessarily go to a geographical area, at least not in looking at situations as we have here which is and has to be recognized as being significantly different than the situation dealing with the right to vote for example where you do not necessarily look at geography but everyone’s vote should count the same nationwide.

We believe again that the federal constitution does not explicitly require and that there is no implicit guarantee that an individual who is accused of a criminal misdemeanor case for which imprisonment is a possibility that the Constitution requires that that case be heard by a lawyer Judge.

We believe the non-lawyer judge can and the truth and fact finding adversary process that he can make a fair decision and if he is not biased and he is not neutral and detached that he will in keeping with the Due Process have afforded a fair trial in a fair tribunal.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.