HENDERSON v. MORGAN

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Argument of Joel Lewittes

Chief Justice Warren E. Burger: We will hear arguments next in 1529 Henderson against Morgan.

Mr. Joel Lewittes: Mr. Chief Justice and may it please the Court.

This case involves the granting of a federal writ of habeas corpus to the State Prisoners by the United States District Court from the Northern District to New York.

Wherein, the District Court vacated a 1965 plea of guilty solely on the ground that the relater, that is the responded here, was not informally advised of each legal element of the crime to which he pleaded, where the plea was otherwise unassailable and where the responded admitted the act charged.

The second Circuit Court of Appeals unanimously affirmed to that opinion, the granting of the writ.

Turning to the facts for a moment, the crime was committed on the night of April 6, 1965, where upon Mrs. Ada Francisco, a widower, who owned the farm where the respondent was working, was brutally murdered in her home in Fulton County which is an up state rural community in New York State by an assailant who stabbed her more than 40 times.

The respondent Morgan was convicted of that murder which occurred while he was working on the victim’s farm.

Mr. Morgan at that time was 18 years old and the record varies as to his intelligent “From a range of 40 to 75”.

It is noteworthy as we will refer to later on that at the time of sentence there was psychiatric report on the basis of the psychiatric examination of the Utica State Hospital that the defendant, the respondent in this case, was competent to stay in trial, was able to understand the nature of the charges, and would able to assist in the defense.

The underlying altercation which resulted in the commission of the crime here, was no doubt the fact that the respondent originally was a resident of the Rome State Hospital which a division of the New York State Mental Hygiene Department for Young Defectives, Mental Defectives.

Apparently --

Justice Potter Stewart: He was there as a patient?

Mr. Joel Lewittes: He was there as patient, Your Honor.

That is correct.

And apparently his record was good enough so that he was released out to various farms and particularly in this case to the farm of the decedent where he worked.

And apparently his will, there was a rule on the part of the Rome State Hospital that those that were released would have to be home by 10 o’clock at night, each night, and the respondent violated those rules and Mrs. Francisco, the decedent, told the respondent that he must not to do that again.

He must not violate the rules but yet he did, and she said, “Well, I am going to have to tell the people of Rome State Hospital.”

And the respondent fearing no doubt that he would be returned to the State Hospital sat according to the record bruited about it, and decided that he was going to leave.

He went up to Mrs. Francisco’s room with a hunting knife in his hand.

It was not a pocket knife as the record reveals; it is was a hunting knife 5 inches long, went into the room, awakened her.

The decedent screamed and thereupon the respondent stabbed her approximately 44 times.

He ran away with a small some of money, fled in the decedent’s car, drove about a hundred miles away was involved in a head on collusion with another car, and was taken into the hospital whereupon he was arrested based upon the description of the respondent that they were looking for him.

They did find the hunting knife in the car and confessions were made, the record shows.

He was arraigned about nine days afterwards to the crime of murder in the first degree at which time the Judge at the arraignment proceeding assigned to him two counsel, two lawyers.

The indictment, murder one, was read to him in open court.

He was advised that he was entitled to a Jury Trial and have the right to subpoena witnesses, on his behalf to produce any evidence, necessary for the defense.

The Attorney’s at the time of the arraignment requested that the respondent be examined psychiatrically.

This was granted by the Court.

The Attorney’s also informed the Court that they would moved at that time to obtained copies of various statements made by the respondent to the police into the District Attorney’s office.

That was on April of 1965, on June 8, 1965 respondent in fact pleaded guilty to murder on the second-degree upon the recommendation of the District Attorney and the request of the respondent.

Defense counsel was present at that time, those were members of the family.

The Trial Court was quite aware of the limited intelligence of the respondent and the record shows, the plea minutes too demonstrate, the solitude taken by the Trial Judge.

Justice William H. Rehnquist: Mr. Lewittes, does the New York make what I think of as a customary distinction between the first-degree murder and the second-degree murder that first degree would require a predisposition as well as intent, while at second-degree intent would be sufficient without predisposition or premeditation?

Mr. Joel Lewittes: That is correct.

That is way statute read in 1965.

It has subsequently had been changed Your Honor, but at that time, murder in the first degree required premeditation and deliberation with intent, a murder in a second just required an intent to affect the design to kill.

The respondent at the time of plea, admitted he had consulted with his attorney and that he knew that he was going to go on the prison, and seven days later, the sentence was imposed and ended termed 25 years to life.

The actual minimum amount under the statute for murder in the second degree at that time was 20 years to life.

There was a plea for leniency on the part of the defense and before passing sentence, the Court did note as it is required and was required of that time in New York State that prior to sentence, the Trial Judge must have before he may present his report in a social history report, and he did have the report of the psychiatrist.

It is noteworthy as well that at the time of sentence there was no surprised or disappointment either by defense counsel or by the respondent when the sentence was pronounced.

Well, all was quite for five years, and five years after the conviction, Coram Nobis application was commenced by this respondent, and for the first time, he now alleged this his plea was involuntary because he was unaware of the consequences of the plea, and he was unaware that intent was an element of murder in the second-degree.

Supreme Court in Fulton County denied the writ without a hearing.

It determined that indeed it was voluntary that he did have counsel that he had spoken to counsel about it, and it was voluntarily and knowingly made.

The State Coram Nobis denial was affirmed unanimously without opinion by the Appellate Division of the Supreme Court in New York State and leave to appeal was denied by the New York Court of Appeals on July 6, 1972.

Then following the procedure that is quite familiar in my office, the State inmate then proceeded by way of federal writ of habeas corpus, it was time in the District Court, in northern District of New York.

And he raised the same issues that he raised in the State Coram Nobis proceeding, they had failed to ascertain, the Trial Court failed test ascertain the factual basis for the plea and that he was not told with the elements of the crime to which he pleaded where the consequences of it.

The District Court denied the federal writ of habeas corpus not unlike the decision in Coram Nobis that actually tracked the decision of the State Coram Nobis within State Court termination, and District Court held that the plea was indeed voluntary.

A certificate of probable cause was granted by the Second Circuit Court of Appeals and they reversed or remanded on they say without any request for opposition by the State to put in opposition papers on the certificate of a probable cause --

Justice William H. Rehnquist: It was not orally argued.

Mr. Joel Lewittes: It was not

Justice Potter Stewart: If you know about the tendency of the application for Certificate of Probable Cause, did your office know?

Mr. Joel Lewittes: We did not know at that time.

Justice Potter Stewart: Although, this was --

Mr. Joel Lewittes: That is correct.

Justice Potter Stewart: Does a statute or rule require notice, I wonder?

Mr. Joel Lewittes: I do not believe that it does.

I may say this is in all candor, however, that when the certificate of probable cause is granted, we did move for rehearing of that which is denied.

The Second Circuit reversal and remand was for an evidentiary hearing to be held in the District Court to determine whether or not the allegation is raise of the federal writ of habeas corpus application.

Justice William J. Brennan: (Inaudible), is there any practice at all relating the notice that you are familiar with?

Mr. Joel Lewittes: I can say Justice Brennan that there is no hard and fast rule.

I usually find my experience is that where the relater is defended by counsel as opposed to pro se, when he is defended by counsel, we do get notice of it.

But usually in the pro se applications it is determined in the first instance by the pro se clerk, and then so the judges and we do not --

Unknown Speaker: In the District Court or in the Court of Appeals?

Mr. Joel Lewittes: In the Second Circuit of the Court of Appeals, and very often we do not get any notice of it until the denial or the commission so proceed.

Chief Justice Warren E. Burger: Any procedure comparable to an order to show cause directed to your office, why release should not be granted?

Mr. Joel Lewittes: Not when it comes to certificate of probable cause in most cases.

Justice William H. Rehnquist: Does the Court of Appeals on a significant number of occasions grant a certificate of probable cause but not decide the case, set it down for oral argument after granting it?

Mr. Joel Lewittes: No, they usually remand it.

Justice William H. Rehnquist: So if they grant a certificate --

Mr. Joel Lewittes: Oh I am sorry, I am sorry.

They do grant a certificate of probable cause and then, we are -- counsels then usually assigned if there is no counsel at that time and then the appeal proceeds normally.

Justice William H. Rehnquist: So, this would be the extraordinary procedure, the one followed here.

Mr. Joel Lewittes: That is correct.

Justice Lewis F. Powell: Can I ask a question?

In your brief and in your petition, as I understand it, you take the position that the Court of Appeals of Second Circuit adopted per se rule.

Mr. Joel Lewittes: We do.

Justice Lewis F. Powell: You do.

And yet if I am reading the District Court’s opinion correctly, on Page 6A of your petition for a writ, bottom of Page 6A, the Judge under caption entitled the law cites Black in the first sentence and then says, “the standard to be applied to the plea of guilty herein is whether under all of the circumstances, the petitioner made a reason choice voluntarily after proper advise and with a full understanding of the consequences”.

Do you find any fault with that statement of standard?

Mr. Joel Lewittes: I find no disagreement with the statements at all.

My disagreement is with the application thereafter, in spite of that statement --

Justice Lewis F. Powell: Right.

Mr. Joel Lewittes: -- the District Court when on and did formulate the per se rule.

Justice Lewis F. Powell: Yes.

The District Court may have decided the facts incorrectly but Court said and stated the rule correctly as you just conceded, so they would be no precedent against you, would it?

Mr. Joel Lewittes: Well, I am afraid that I am not in agreement.

On Page 8A of the Appendix, and this is to the petitions, the Court cites the statement McCarthy and then says, based on upon the foregoing, I hold this is a matter of law, that petitioner plead guilty was not intelligently and knowingly entered.

So, it seems to me that in spite of the general statement at the beginning of the decision, it is clear indeed and it is seem also in light of the fact in the remand order by the Second Circuit Court of Appeals that the holding was indeed that this was a per se rule that but for that it would have been voluntary.

Justice Byron R. White: Are you suggesting that the Court has held anytime you fail do advise a person of an element of the crime that it automatically means that the plea not voluntary.

Mr. Joel Lewittes: That is our understanding of the case.

Justice Potter Stewart: If the word that fact have been substituted for the word law in the passage that you read us, you wouldn’t be so sure that was a per se rule, would you?

Mr. Joel Lewittes: Well, I might be, because if read that I hold is a matter of fact that the petitioner’s plead guilty was not intelligently or knowingly entered and was therefore involuntary.

I still would fear that mere fact, rather than the use of the word law, still could render a guilty plea involuntary.

Justice Potter Stewart: It would, at least in your admission, have been an erroneous factual determination in this case.

But if the District Court’s opinion contained as my Brother Powell, pointed out it did contain a statement of a proper general principles to be applied.

This would then be a single erroneous case in your submission.

Mr. Joel Lewittes: Yes.

Justice Potter Stewart: I mean, I am not assuming it was erroneous but you say it was.

Mr. Joel Lewittes: There was this evidentiary hearing on the basis of the remand where the relater, the respondent here, did testified the, two defense counsel testified the District Attorney testified, and although technically not made part of the Rule 52A, conclusions of law and findings of fact.

The Court did note that indeed there was a factual basis for the plea, but did hold as mentioned moment ago that a mere fact in essence that the element was not of the crime, was not told to this respondent, the plea was involuntarily as a matter of law.

The District Court --

Justice William H. Rehnquist: You read that District Court’s opinions, the Court of Appeals’ opinion was reading out any possibility of harmless error in a situation like this, I would think where the defendant had stabbed the victim 40 times.

Whether he knew as a matter of law that intent had to be proved or not, might be fairly in material since I would think that Jury confronted with that evidence would virtually inevitably conclude that there was intent.

Mr. Joel Lewittes: I have assumed, they read out a harmless error here.

Unknown Speaker: You read this is in fact a holding that the omission to mention any element means a guilty plea must be vacated.

Mr. Joel Lewittes: Yes, that is the way we read this decision and that is the evil of this decision we feel.

Now, that the decision itself from the District Court is quite odd, it seems to me, particularly when they commence their discussion of the law citing Boykin against Alabama, and they claim it is not applicable to the instant case because Boykin is not retroactive.

And yet, they rely upon the McCarthy case which was held not to be retroactive, and the Halliday decision in this Court, and yet they have based their reliance upon the McCarthy against the United States which was, of course, decided under the supervisory powers of this Court.

So that it is a strange decision even on that basis.

Justice William H. Rehnquist: Do think there is some possibility that Judge Port (ph) may not have been internally persuaded by the Court of Appeals.

Mr. Joel Lewittes: No, I think the opposite was truly -- Justice Rehnquist, I think that he was very much influenced by the Second Circuit.

Unknown Speaker: There were very (Inaudible).

Mr. Joel Lewittes: In my Judgment, that is correct.

Chief Justice Warren E. Burger: You are relying on the McCarthy case.

Mr. Joel Lewittes: I think if we look at Page 8A of the Appendix to the petition for writ of certiorari.

Chief Justice Warren E. Burger: Give me your view of it?

Mr. Joel Lewittes: It says there that citing McCarthy can not be truly voluntary unless the defendant possess and understanding of the law relation of the facts.

Chief Justice Warren E. Burger: New York State County has, in the way of a counterpart, Rule 11 of the Federal --

Mr. Joel Lewittes: We do not.

Chief Justice Warren E. Burger: What is inherent the applying Rule 11 as a judicially constructed --

Mr. Joel Lewittes: Very much serves, and I believe that the fear that Justice Harlan related in Boykin case in his dissent that Rule 11 was -- excuse me.

Justice Byron R. White: I think you would be making the same arguments this was post Boykin case.

Mr. Joel Lewittes: Yes.

Justice Byron R. White: I gather --

Mr. Joel Lewittes: The Court --

Justice Byron R. White: Judge the District Court said that this is a pre Boykin case and to be Judge by pre Boykin standards.

Mr. Joel Lewittes: Yes, I would make this argument even if it were post Boykin because I think that we can not isolate one single element and say, and fashion a per se rule, and I think the court decisions in Brady and McMann against Richardson, and in the output case tell us that we have to look at all the relevant circumstances.

Justice Byron R. White: So you would not say that it is never a violation of the Boykin Rule to put on the record reasonable -- and make a reasonable showing on the record that if plea is intelligent and voluntary to -- you would not say it is never a violation that rule to fail to informing of an element of the crime.

Mr. Joel Lewittes: No.

Justice Byron R. White: When is it?

Mr. Joel Lewittes: I think that it is a violation of the Boykin Rule when there is no factual basis for the plea in conjunction with not understanding the nature of the plea plus the fact that it must be intelligently and knowingly made.

So what I am saying in essence is that it must be a voluntary statement, it must be consensual.

Justice Byron R. White: I think of that but how about not knowing an element of the crime that is your pleading guilty too?

Mr. Joel Lewittes: I do not think if we set it that way we have a problem, because it we can not communicate to the defendant in essence the element of the crime without formally using the statutory phrase.

Justice Byron R. White: If that is the Boykin Rule before, I gather to think it would be true.

You do not -- I guess you think the rule is the same after than as before Boykin.

Mr. Joel Lewittes: That is correct!

Justice Byron R. White: So it does not make any difference whether Boykin is retroactive?

Mr. Joel Lewittes: No, it does not, except that I think -- except that I think many of cases that have followed Boykin assumed, some of the cases assumed that they are constitutional requirements, although that flow out of Boykin through McCarthy.

Justice Byron R. White: I wonder if Boykin made though -- was it the requirement of having on the record?

Mr. Joel Lewittes: Yes, there was no record at all on the Boykin case.

Justice Byron R. White: Now, suppose you believe after Boykin or before or suppose you agree that it is been shown that the defendant was actually ignorant of one of the elements of the crime to which she was pleading guilty.

Mr. Joel Lewittes: I do not think that in itself would change my view, because if the motivation behind the plea was, for example, that he -- and there are several reasons why one pleads guilty, but one maybe that he still felt that he wants a shorter sentence and sentences are very important motivation or perhaps the most important motivation.

I think that even if he did not understand the element but he understood that he would get a lower sentence and there would be less penalty imposed and he pleaded because of that, I do not believe the guilty plea would be infirm.

Chief Justice Warren E. Burger: The maximum, but he could not get under New York Law, life.

Mr. Joel Lewittes: He could have had a mandatory sentence of life on a murder one conviction at that time.

Justice Potter Stewart: That was a plea of guilty to second degree murder.

Mr. Joel Lewittes: That is correct.

Justice Potter Stewart: That was a maximum sentence that could have been imposed to him.

Mr. Joel Lewittes: A maximum was life but the minimum was 20 years.

He received 25 here to life.

Unknown Speaker: What if the State argued in the Court of Appeals that the error, and then it was harmless beyond the reasonable doubt.

Mr. Joel Lewittes: I do not believe they do.

Chief Justice Warren E. Burger: What do you suggest now or at least I got an inference that was 44 stab wounds the intent element is really not an element in the case, that any trier, in fact, could reasonably assume that if you stab somebody 44 times you intended it.

Mr. Joel Lewittes: I believe it as well, Mr. Chief Justice that that was the assessment of his counsel, but that would be the problem if he had to go trial but no Jury would believe that there was no intent here.

Chief Justice Warren E. Burger: Is the impact to this holding now that all the State Courts and the Second Circuit are bound by Rule 11?

Mr. Joel Lewittes: It would be appear to be and more -- yes, it would and I am disturbed by that for many reasons, because I think that the Rule 11 goes some extent to the tools to be used by a judge.

These are tools in ascertaining voluntariness.

They do not necessarily go to voluntariness itself.

But this case of all cases we believe, it is a perfect example not to have any per se rule.

This was the case where the man was very happy to get away of what he did sentence wise.

He entered the room with a knife and the multiple stab wounds, and to omit a per se rule here would not only to substantial harm as far as criminal administration is concerned.

But I should like to tell the Court and I am sure we are all aware that there hardly a guilty plea entered or has been entered, where the legal elements would necessarily toll to the defendant.

So I can imagine the plethora of federal writ of habeas corpus that will succeed after this.

Unknown Speaker: But if he prevails, then what do we do with this case?

Mr. Joel Lewittes: I think we --

Unknown Speaker: We tell them the standards of your right.

We read it as you have suggested it should be read.

We say “No” there is no per se rule; it’s totally or circumstances.

Mr. Joel Lewittes: And this is one of the circumstances.

Unknown Speaker: Well, then what do we do send it back and let them apply the Rule as we tell him.

Mr. Joel Lewittes: I think that we -- I think you could reverse, just plain reverse.

Unknown Speaker: If we say it is totally rule then we have to apply the rule, said it?

Mr. Joel Lewittes: Yes.

Unknown Speaker: Do we usually do that?

Mr. Joel Lewittes: Yes, I think you do.

In the case where there was evidentiary hearing and the, I think yes.

Chief Justice Warren E. Burger: Now that have passed on this event.

Mr. Joel Lewittes: Yes.

Chief Justice Warren E. Burger: Pretty good record made.

Mr. Joel Lewittes: That ends and the fact that they relater waited five years before he suddenly discover this.

Chief Justice Warren E. Burger: He was satisfied -- he was satisfied for a while with his sentence but not after a while.

Mr. Joel Lewittes: That is correct.

Chief Justice Warren E. Burger: Mr. Joseph E. Lynch.

Argument of Joseph E. Lynch

Mr. Joseph E. Lynch: Mr. Chief Justice, may it please the Court.

Sitting on the Court room the portion of the last two days I have instruct by what it seems to me to be a significant difference between this law suit and the cases I have heard and I suppose when it the cases it come here.

In those cases, the party’s are in disagreement about what the law is.

There is no such disagreement here.

We all recognize that under our system of Justice are probably under any unlike system of Justice or a plea of guilt to a crime to be valid and must be intelligent act.

It must be done by a person who realizes his significance in quite consequences of that act.

Both parties also agree that when the question is whether a particular plea meets that standard that the Judge charge with the determinate question was looking all of the circumstances that surround the plea.

Chief Justice Warren E. Burger: You mean that that (Inaudible) circumstances rule?

Mr. Joseph E. Lynch: I do, your Honor.

Chief Justice Warren E. Burger: Do you think the Second Circuit did?

Mr. Joseph E. Lynch: Yes.

Chief Justice Warren E. Burger: In this case?

Mr. Joseph E. Lynch: In this case, very definitely Your Honor, if I may explain.

Chief Justice Warren E. Burger: How do you explain the Court relying on Rule 11 in the McCarthy case?

Mr. Joseph E. Lynch: No, I do not think that this case stands for proposition as counsel has suggested that this means that every --

Chief Justice Warren E. Burger: McCarthy decided in the opinion, it is not?

Mr. Joseph E. Lynch: The opinion says that the plea must be voluntary.

What I am saying Your Honor is this, vis-a-vis Kercheval and Machibroda, the plea must be voluntary, that in deciding whether it is voluntary the Court can and must look at the circumstances it is surrounded, and I say that that is what they did here.

Chief Justice Warren E. Burger: The crucial elements of those of the totality of circumstances starting I suppose with the fact that he had counsel or you would concede that was --

Mr. Joseph E. Lynch: That would be pertinent very definitely Your Honor.

I think --

Chief Justice Warren E. Burger: But you have to inquire whether this was experience Counsel?

Mr. Joseph E. Lynch: Yes.

Chief Justice Warren E. Burger: Do you think its passes those two tests here?

Mr. Joseph E. Lynch: Yes, I have no quarrel with the conduct of the defense counsel here.

They did certainly as good a job as I could have done and well that may not be a very adequate standard.

It compels me to say that they did a good job.

I think the other circumstances that are included here and that were before the Court and which I say that the Court must have taken into consideration was the age of the accused, the fact that prior to this particular problem he had had no serious crushes with the law and, therefore, was not presumably familiar as harden criminals are familiar with the judicial process, and of course, very importantly the diminished intellectual quotient of the accused.

Justice William H. Rehnquist: Mr. Lynch, Judge Port originally found that it had been a voluntary and intelligent plea, and then the Second Circuit reversed.

Mr. Joseph E. Lynch: That is correct, Your Honor.

Justice William H. Rehnquist: And at Page 10 that very short opinion of the Second Circuit or at Page 10A of your petition.

All they say the case is remanded to the District Court to conduct an evidentiary hearing on the issues raised by the petitioner including whether at the time of his entry of his guilty plea, he was aware that intent was essential element of the crime.

Now, does that not suggest that the Second Circuit thought that fact might have been dispositive?

Mr. Joseph E. Lynch: It certainly suggests that the Second Circuit thought it was important, but that does not mean I believe that in deciding this case Judge Port looked only at that issue.

You see, I think where the parties part company here and where the disagreement arises is that petitioners says to this Court that there was only one factor that decided the outcome of this case, namely the effect that this young man did not known that intent was an element of the crime.

And let me say, so I do not forget it parenthetically, I would agree with you that there is all kinds of intent in this case.

If this went to a Jury, a Jury clearly could have found to intent in the number of wounds.

Justice William H. Rehnquist: But then let me interruption you and then go ahead and answer as much.

Judge Port originally found that to be voluntary and advised, it goes up to the Second Circuit.

The second Circuit says take it back and consider whether he knew intent was an essential element of the crime and whether was advised to the scope there punishment.

It goes back to Judge Port..

Judge Port says he was advised to the scope of the punishment.

He did not know that intent was an element of a crime and Judge Port releases him.

Now, to Judge Port, that was dispositive what the Second Circuit said about to intent.

Mr. Joseph E. Lynch: I respectfully disagree, Your Honor, because in Judge Port’s original decision there had been no evidentiary hearing.

After the Second Circuit decision, there was an evidentiary hearing.

For the first time the Judge saw this young man; he heard testimony not only from this young man but from the other people, and it is this type of thing that creates the additional circumstances which I contend he took in the consideration.

Justice William H. Rehnquist: He does not say he did though.

Mr. Joseph E. Lynch: Oh no! That is true.

Well, he does not say that he does -- he did acceptance so far as he says I am going to apply the totally of circumstance rule.

When he talks about the law that he is going to apply, he says that he is going to use the very standard that the petitioners says, he should use.

You see what the petitioner says here as I understand his argument and I am reading his brief.

Everything he says is premised in one simple conclusion and that conclusion is that since the opinion talks about nothing except intent of necessity, it must be only intent that dictated the decision.

Now, I think that is logically wrong and unpersuasive when the Court says “I am not going just consider this on the element of intent but I am going to look at all of the surroundings circumstances”.

I think it is also significant when those circumstances are as important and as significant as they are here and, of course, I am thinking about the intellectual level of this young man particular.

Really that premise that if it is not cited, it is not considered, I suppose has a corollary that it is says that if you are writing decisions, you must put in the decision what you consider to be significant, because if you do not it will be assumed that you have not considered it.

And that -- well, I think the premises are illogical, I think that corollary is potentially catastrophic, and I would assume it makes the writing of opinions even more chancy than I suppose they are without that corollary.

Justice Byron R. White: What you can say that is just the other side of the -- but requiring on guilty plea -- you are supposed to put on the record if the elements that go to guilty plea.

Mr. Joseph E. Lynch: Under the Federal rules as I understand them that is correct.

Justice Byron R. White: It is under Boykin too.

Mr. Joseph E. Lynch: Yes.

Justice Byron R. White: Under Boykin, and so may we assume that the Judge put up record the elements that he relied on in overturning the guilty plea?

He was supposed to?

Mr. Joseph E. Lynch: Yes, I think you may assumed that I would like to have you also assume what I think is a valid assumption that when a Judge says I am going to take into consideration all of the circumstances that is what he does.

Now, there is no question that he wrote solely in terms of intent.

Chief Justice Warren E. Burger: First time or the second time.

Mr. Joseph E. Lynch: The second intent.

Unknown Speaker: Were those all of the circumstances as far as he was concerned?

Mr. Joseph E. Lynch: Well, you see I find difficulty accepting that Your Honor, because -- well, stop and think a second, isn’t in any adversary proceeding isn’t one of the most significant things that takes place throughout the preceding, is it not the presence of the witnesses, the appearance, the impression they create, their integrity, their ability to honestly recall and relate.

That is present in every preceding, and it was present here, and it is seems to me that to say that this stands for the proposition that the decision rest only on the element of intent overlooks the facts that this Judge saw these witnesses, came to the conclusion as to what their are testimony was and to what the facts were and fact that he entered in the decision that he rendered here.

Chief Justice Warren E. Burger: He did that twice; he did that twice.

First time he came up black and the next time he came up white.

Mr. Joseph E. Lynch: No, if I may disagree, Mr. Chief Justice.

The first time there was no hearing.

All he had in front of him on the first occasion were papers.

On the second --

Chief Justice Warren E. Burger: I think it probably showed that this man stabbed the victim 44 times --

Mr. Joseph E. Lynch: True.

Chief Justice Warren E. Burger: -- a pretty important the element of intent is it not?

You have already conceded.

Mr. Joseph E. Lynch: I conceded, and the issue Mr. Chief Justice, it is vital, if it went to a Jury for determination.

There is no question they could have found intent here.

Chief Justice Warren E. Burger: I hold in the appraisal of a defendant and his lawyers as to how he should plea?

Mr. Joseph E. Lynch: Yes, but that is not the issue here.

As I understand the issue here, it is not whether he had they intent but it is whether he knew that the State had to prove he had the intent.

He says that he did not -- and I think that that is a very different proposition.

Chief Justice Warren E. Burger: Well, if you concede that without the any doubt as you apparently have that the State could make a case of intent.

Mr. Joseph E. Lynch: No question.

Chief Justice Warren E. Burger: Then, how is the degree of his understanding of this, a layman’s understanding of this, assuming of perfectly average intelligent person not a subnormal as he is, what would that have to do with it?

Mr. Joseph E. Lynch: Does that not really go to the very question we are trying to resolve whether the plea is voluntary and intelligent.

In other words, how can a person make an intelligent decision as to what he should do under these circumstances, if he does not know that one of the problems that the people face here is that they must prove that he had intent?

Now, I am not suggesting --

Chief Justice Warren E. Burger: For realistic matter such a person, a layman, on that kind of an issue, depend almost entirely on his counsel.

Mr. Joseph E. Lynch: Yes, but you see here Your Honor, the counsel quite candidly admitted that -- and I do not denigrate them for this; one counsel said that he had not told this to the -- not told the accused that intent was an element of this matter, and the other counsel said that he thought of what he could not be sure and accused himself testified that he had never been told.

Justice William H. Rehnquist: But is that not one of the things that counsel would just pretty well write off in assessing the defense of this kind of a case when you stabbed 44 times, you do not dwell with any great length in your client on how we are going to disprove the element of intent?

Mr. Joseph E. Lynch: I agree with that.

I would not dwell on it, particularly, whereas here my client had very limited ability to understand.

But that does not mean that I -- well, I might not dwell on it.

I think I have to tell it to him.

So that there maybe some inconsistency in saying that an accused who is at some place between an idiot and a moron, must be told the -- I must saying he has to be told the elements of crime; I think he has to be told the substance of the crime, and I think, that was not told to him here, and I think that that is one of the circumstances that resolved in this decision.

Justice William H. Rehnquist: And yet he was found capable of standing trial; that decision was never challenge.

Mr. Joseph E. Lynch: Well, that is true and we are not saying in this preceding that he was not capable of understanding.

In fact, the irony of this --

Justice John Paul Stevens: Mr. Lynch, could I ask -- you say that he has to be told the substance of the crime --

Mr. Joseph E. Lynch: Yes.

Justice John Paul Stevens: Suppose this lawyer tells them that if the Jury finds A - that you are mentally competent, and B - that you stabbed this lady 44 times, they will find you guilty, would that not be substantially true?

Mr. Joseph E. Lynch: I do not think it would be technically true, but I think it would be practically sufficient because I --

Justice John Paul Stevens: Suppose as you admit that all you have to tell them is the substance of the crime.

It seems to me you have to confessed error?

Mr. Joseph E. Lynch: But you see that they did not tell them that Your Honor.

Justice John Paul Stevens: Oh, Yes.

The only thing that the Judge found was, he was not aware of this concept to intent which may mean that he thought, well I did really mean to kill her, but that would not be a defense.

Mr. Joseph E. Lynch: Well, you see that is what I am really saying.

Perhaps my answer to your original question was they will conceive what the -- what I am saying here is it is my understanding of the law that the plea must be an intelligent plea.

Now, they will obviously assume that the person making that plea has some knowledge.

I mean that, Mr. Morgan were from another planet and you know came down and was charged and had no knowledge of our society or our rules whatsoever.

I think that that we would have to impart some knowledge to him.

Now the question turns, what kind of knowledge must you impart for the plea to be an intelligent act?

And what I suggest is that what you must tell in accused for his plea to be an intelligent act is the substance -- the essential substance of the crime of with which he is charged.

Now I do not wish to get into --

Justice John Paul Stevens: It is between that and telling him the specific legal elements of the crime.

Mr. Joseph E. Lynch: Well, let me explain.

There are number of cases as I am sure Your Honors aware where pleas have been set aside because the accused did not understand the nature what he was doing.

Now, these have tended to fall and may exclusively fall under the conspiracy area.

The Courts have said in those matters, because the accused did not know what he was doing; he did not know in effect what a conspiracy was, we are not going to accept his plea and we are going to send it back for re-pleading.

I take those cases to mean that for an accused to plead intelligently in accordance with the constitutional requirements of due process, he must know the essential substance of the crime.

The essential substance of conspiracy, I take it, is that two or more people get together to commit a crime.

The essential --

Chief Justice Warren E. Burger: The effects would be more subtle than whether 44 stab wounds afford a basis for an inference of intent.

Mr. Joseph E. Lynch: Well, it maybe more subtle, in fact the petitioner has suggested that the conspiracy cases that have set aside plea should be considered -- he does not phrase it this way, but I gather a short of an aberration in this system that those are complex cases, and therefore, it can be understood only in that light.

I prefer to think of them as I think that they are, not an aberration but an actual practical example of the principle of the rule which says that he accused must know.

Now, a conspiracy case complex as it may or it may not be.

The plea to such a charge may not necessarily have to be set aside because the accused is not told.

In fact, as I recall, I think it is the, I want to say Podell case, the Podell case.

There the case went through partly to trial.

The accused was an Attorney, pleaded guilty and then moved to separate plea aside and a grounds he did not -- not that he did not understand but to be was not told the element of conspiracy and the Court had no problems that will -- this is as sophisticated and intelligent man and he does not need --

Chief Justice Warren E. Burger: The same analogy, the Court might have reached that conclusion very properly, if this young fellow had been pleading guilty to conspiracy given all the other facts.

But when his pleading becomes something very much less subtle than conspiracy, doesn’t the explanation –isn’t the explanation to be tailored to the nature of the crime?

Mr. Joseph E. Lynch: I think it is to be tailored to the nature of the accused, because I think that a sophisticated accused may need no explanation.

Certainly the attorney example that I have just mentioned, he requires no explanation.

The unsophisticated or the mentally deficient, I think need a lot more.

If the standard is a complexity of the crime, does not that necessarily pre suppose that you make a list of the crimes in terms in order complexity, and that seems to me like an unworkerable judicial rule.

I think --

Justice John Paul Stevens: Your suggestion about the intelligence of the accused may not cut the other way.

Is it not possible that the more ignorant the man the more important that is that they have the advise of Counsel on which to rely.

Mr. Joseph E. Lynch: I would accept that.

Justice John Paul Stevens: And here you do have two trained counsels who in effect made the decision for him.

So Is it not reasonable to assume and made it in intelligent decision.

Mr. Joseph E. Lynch: Let me say quite candidly that they made the decision, I am sure that I would assume suggest if you made.

There’s no way through there.

But the issue really is not what they did what was right or wrong, but whether this was an intelligent plea.

Now, there are problems both ways, I mean, do you have a young man of very limited intellectual ability and I suppose it can be said well with such a person is not really unwise to say you must tell him in great detail what the substance of the crime is.

On the other hand, this has been pointed out, he has been found able to stay in trial.

He is able to understand apparently enough to go to trial and it is seems to me that the due process provisions of our constitution say that under those circumstances, it his plea is to be an intelligent one, it has to be made on a basis of some knowledge.

He is not just a chip in a whirlwind of legal knowledge here.

He has to make an intelligent decision of his own and he has to --

Unknown Speaker: What is the (Inaudible) did you stab a lady 44 times?

Mr. Joseph E. Lynch: I think that he should have gone on and if he had answer such question—

Unknown Speaker: Well, I do not think somebody asking when they ask him when he said yes.

Mr. Joseph E. Lynch: I would not consider that giving him information he need it

Justice Byron R. White: (Inaudible).

Mr. Joseph E. Lynch: That is correct.

Unknown Speaker: (Inaudible)

Mr. Joseph E. Lynch: Because the—when I talk of substance of the crime you Honor.

I am talking about the element without which the crime would not be the same.

Now, when you are talking about murder second, the very thing that is distinguishes it from the lesser degrees of homicide is the intent to cause the death.

Unknown Speaker: You think Mr. Lynch the Lawyers, the two of them, should have said to him: “Now, look young fellow second-degree is the plea that they are asking you to -- let me tell you what that is all about that involves intent, it involves this, it involves that, it involves the other one.

Now on this case, 44 stab wounds are enough to establish intent.

The jury could find the intent on the basis of that.

Now there you are, that is all the thing, how do you want to plea of them.

You can get from 20 years to life.”

Is that what they should have done?

Mr. Joseph E. Lynch: I think that that is the least they should have done yet.

Unknown Speaker: I suppose in Judge Port’s initial findings, it suggested that is exactly what they said to him?

Mr. Joseph E. Lynch: No.

You see, I would hope that Court not go off on the original decision.

The original decision was decided and papers submitted solely --

Unknown Speaker: Well, I agree Mr. Lynch, but what Judge Port did in his initial opinion, layout the things that he found had been done at the plea hearing by every one concerned the lawyers, the accused, and the Judge.

There are the couple of paragraphs.

Mr. Joseph E. Lynch: In so far is that was contained in the Court records.

Unknown Speaker: I miss the word intent I agree, but he talks about what the lawyers did, he lays down of, as I read that on the taking of the plea, the court made a special effort to emphasize the defend the gravity and importance to this change of plea.

The Court asked the defendant while he understood that he was accused to killing the victim.

Did the plea of guilty was the same as being convicted after Jury Trial and it would be sentenced to prison.

Defendant answered in affirmative to each of these questions.

Mr. Joseph E. Lynch: That is correct Your Honor.

Unknown Speaker: Then they ask him in addition if he fully understood what he was doing and if he was doing this voluntarily and upon the advise of counsel.

The defendant again responded in the affirmative where other defendants mother and two brothers were present with him in the Court room and he change this plea to guilty.

As of that is separate list to what Judge Port found on the basis only the papers had occurred at the taking of the plea.

Mr. Joseph E. Lynch: That is correct Your Honor.

The reason at decision was different on second occasion in my Judgment.

Its ironically enough the presence of the defense counsel testifying on behalf of the people of the State of New York.

I think, it is very possible that if those Counsel would not have not been present and if the Court had not have enough opportunity see the witnesses, it would come into different—different results.

The --

Unknown Speaker: So even, if there are some suggestions what I have just read to you that the usual intent had been discus between Counsels that the after hearing the lawyers the Judge concluded now he was wrong --.

Mr. Joseph E. Lynch: I think, that after hearing not only the lawyers but of course the accused himself, the Court had a complete picture of what -- not only what went on, that was in the records originally.

But he could better understand the intellectual deficiency of the accused and could recognize as I think he did recognized based upon at deficiency, that he accused did not know that intent was an element.

And it is, you know, it is very well for us to say that he should have known, I mean that intent was so obvious, and it is obvious here but this young man testified at the evidentiary hearing that he not intent to kill this one.

Now, you know, let me find it --

Unknown Speaker: Then it is quite possible to read that testimony that was confusing intent and pre-meditation, is not?

He testified as he went up the stairs he did have to intent to kill her.

Mr. Joseph E. Lynch: That is possible -- there is one possible explanation of the testimony Your Honor, that is true.

I think, it is also possible to interpret that testimony to mean, that he actually believe he did not intent.

Justice William H. Rehnquist: What that does it mean?

He did not intent not only at the first stab wound but at the 44th to kill her.

Mr. Joseph E. Lynch: That is was he said.

And when you are dealing -- now at this we are perfectly rational human being, normal human being, I would agree that that is testimony is incredible as a matter of Law.

I am not sure is not incredible when you are dealing with the person of this—of this intellectual level or lack of that, really.

I think that the --

Justice John Paul Stevens: Or not at the level of one competent to stay in trial, it is what you are saying?

Mr. Joseph E. Lynch: He was competent found to be competent, and I can say candidly that I was surprise in my discussion with them at the level of his understanding at that time.

I think that if have been told that intent was element of the crime, I am sure he could have understood it and he says we would not plea that if had them so told.

Unknown Speaker: And I gather you just that we are not to make these decisions on the cold record when a Judge who actually had him before him.

Mr. Joseph E. Lynch: That is correct.

Unknown Speaker: Ask the questions they heard his answers and that --

Mr. Joseph E. Lynch: That is correct Your Honor.

I feel that there is clearly a question of fact, like what I have cited the Brady case with the proposition that to question of voluntariness of the guilty plea is always a question of fact and it obviously only the Judge it sees the witness and hears the testimonies in a position to make that judgment.

I would ask that you affirm the judgment of the lower court unless you have any other question out.

Chief Justice Warren E. Burger: The sentence would reduce to 20 years, would that wash this case out?

Mr. Joseph E. Lynch: Well, it might watch the case all but I do not think it would do anything with your principle your Honor.

You see the --

Chief Justice Warren E. Burger: (Inaudible) you get 25 instead of 20 years, is it not?

Mr. Joseph E. Lynch: Well, actually I am not sure he is even complaining about that.

Honestly, I have just been advised that he is on the street on parole.

You see, I do not think this stands for the proposition in this decision that there has to be a legalistic mechanistic formalistic recitation of every element of the crime to an accused.

At the very most this decision stands for the proposition.

If you say he did consider another single thing, at the very most it stands for the proposition that when a person is charged with murder in second degree, he must know that intent is an element of that crime, and that he must not -- that that information may not come to him from the horrendous nature of the crime.

It has got come to him by someone who is in a position that to tell him this is the element.

That is the only element that was talked about here.

There are cases as the Court realizes where people for example have been found guilty of postal robbery and they attempt to set -- and not found guilty, pleaded guilty of postal robbery.

They attempt to set the plea aside on the grounds that it was not explained to them that to commit this crime, you will have to have to put life in danger, you have to use a dangerous weapon and put life in danger, and there are certain presumptions as to whether a weapon is dangerous, whether ti is loaded or not.

The Court had no problem with that they said no, you do not have to know all that, you do not have to be told all that, but that I take its different when you are talking the element of intent in a murder second charge.

Thank you very much Your Honors

Chief Justice Warren E. Burger: Thank you Gentleman.

The case is submitted.